Who gets to govern? Venturing deep into the post-May 2 scenario weeds

The question, it seems to me, is a simple one: can the party that didn’t win the most seats in a Canadian election legitimately form a government? Well, I guess it would be better to say deceptively simple.

The question, it seems to me, is a simple one: can the party that didn’t win the most seats in a Canadian election legitimately form a government? Well, I guess it would be better to say deceptively simple.

As you may have heard, Prime Minister Stephen Harper is darkly warning on the campaign trail that Liberal Leader Michael Ignatieff secretly plans to try to win this election without winning. If the Conservatives fail to secure a majority on May 2, Ignatieff will, with the backing of the NDP and Bloc Québécois, deny the Tories a chance to govern.

Or so Harper tells us. “That’s not right,” he said today at a rally in Brampton, Ont. “That’s not democracy.”

Ignatieff declared yesterday that he agrees the party that wins the most seats must get the first chance to form a government. Only if that first-place party can’t gain the confidence of the House, he says, would the second-place party be called on by the Governor General to try.

These days Harper seems to hold that even if the first-place party has been given its chance, the notion of the leader of the second-place party becoming prime minister without winning an intervening election is abhorrent.

Yet when he was an opposition leader, back in 2004, he signed a joint letter with the NDP’s Jack Layton and the Bloc’s Gilles Duceppe to the Governor General, asking her to “consider all your options” if the Liberal minority of the day fell.

Did Harper envision becoming PM then with NDP and Bloc backing, without having to win an election?  That’s certainly what Layton and Duceppe say they were contemplating. (CBC’s Terry Milewski reminds us here of what Harper was saying at the time.)

As for what his campaign team has to say about it now, Senator Marjory LeBreton held an impromptu symposium for a few reporters on the question after Harper’s news conference this morning. To me, her take seemed to square neatly with what parliamentary scholars have written. Whether that dovetails with Harper’s stance is another matter.

“In the parliamentary Westminster tradition, when a prime minister goes to the Governor General and asks that Parliament be dissolved and call an election, the Governor General has options,” LeBreton said.

So, what were the options back in 2004? What if the Liberal minority had fallen then, and Martin visited then-GG Adrienne Clarkson and asked for an election?

“She could have said, ‘No, I’m not going to grant you an election, you continue governing’,” LeBreton said. “Or she could have called on the party with the next largest number of seats, and in that case it would have been us, and then we would have had to go face Parliament as a minority government and seek the confidence of the House. And both Duceppe and Layton could have supported the government, as they’ve done our government and other governments in the past.”

In that case, Harper would have become prime minister without having to win an election. LeBreton stressed, however, that her description of the GG’s options, and the theoretical result of one of them, was meant to explain the rules, not to hint at what Harper actually had in mind.

The Prime Minister was asked about it all today, repeatedly, and pleaded for attention to his clear actions in 2005, rather than his somewhat fuzzier words in 2004, as the true indication of what he believed then—and still does now.

“We did not bring in a non-confidence motion to overturn the government. We brought in a non-confidence motion to force an election. That’s what we did,” he said. “That’s how we became the government. We won an election with the most number of seats. That’s my position, my position then, my position now, and I think that’s what Canadians expect.”

For those who find this whole matter intriguing (I know I do), and in the firm belief that Sunday morning reflection is good for the soul, I sought out the viewpoint of Don Desserud, a University of New Brunswick political science professor and expert on our Westminster parliamentary model.

Desserud was generous enough to respond at length this morning by email. I’ve arranged his responses on key points as a Q & A, although he actually responded in one cogent email:

Q. Do clear rules exist for forming a government after an election that fails to give one party a House majority?

A. The reason why your question is difficult to answer is that it 
deals with aspects of the Constitution which are entirely dependent on 
conventions. So to suggest, as some have, that such traditions are 
merely conventions is misleading, to say the least. That’s all we have 
to guide us, and as such they are constitutionally binding.

Q. And what are those binding conventions?

A. Here’s the deal: at one time the convention was that the incumbent 
government always met Parliament, regardless of the results of the 
election. Had they been soundly defeated, then the first meeting would 
be short, and the GG would then ask the leader of the party that “won” 
the election to form a government.

As political parties became more organized, and party discipline 
stronger, this convention became redundant (and would have been 
ludicrous in, for example, 1993). As soon as the results were in, it 
was obvious which party won the election and so it was a waste of time 
to go through the charade of meeting Parliament after a defeat.

So ever since the days of Louis St. Laurent, the convention has been 
that the party that finished the election with the most seats has 
first crack at meeting Parliament. So what Ignatieff says has indeed 
been the case for 50 odd years.
But having the first chance to meet Parliament is not the same as 
saying the party with the most seats has a right to govern.

Q. When would the party with the most seats not govern?

A. Ignatieff is also right that if such a party cannot find majority 
support, then another party, likely the party with the next highest 
total, would be asked to see if it can govern. In others words, if the 
Conservatives finished with the most seats, but without a majority and 
found themselves unable to gain support from another party (or 
Independents, if there were enough of them), then the party with the 
next highest total — likely the Liberals — would be asked to form a 
government and see how they would do.

Q. There’s been much talk about the legitimacy or otherwise of coalitions. Do the conventions tell us anything about that?

A. What goes on outside of Parliament among parties is another matter. 
Deals may well be struck between two or three other parties, and may 
be struck well in advance. Think of David Peterson and Bob Rae in 
Ontario [in 1995]. By having a “contract” setting out a framework for the 
Liberals to govern with NDP support, the Lieutenant Governor was 
convinced that Peterson should be asked to form a government.