The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Formation rules and minority governments

September 10 2015 10 September 2015

In a recent post, Léonid Sirota corrects the record on statements made by the main federal party leaders that whichever party emerges from the election with the most seats, but without a majority, gets a first crack at forming government:

The conventions of responsible government require the government to enjoy the confidence of the House of Commons; but an incumbent a government is, we might say, deemed to be enjoying the confidence of the House until a vote of the House proves otherwise. The prorogation crisis of 2008, when the Governor General took the Prime Minister’s advice to prorogue Parliament is a case in point ― even though everybody knew that at that moment the government did not actually have the confidence of a majority of MPs, it is not enough for everybody to know. There has to be a Parliamentary vote to confirm what “everybody knows.” Similarly, it has always been said, after an election, the incumbent government is entitled to “meet the House” of Commons and test its confidence. Only if it does not obtain the confidence of the House does convention force it to resign.

Thus, contrary to what Messrs Mulcair, Harper, and Trudeau have claimed, the government’s number of seats has nothing to do with its entitlement to remain in office ― so long as no other party has got a majority.

But, Sirota continues, conventions change:

If the Conservatives do not win a plurality of seats on October 19, and the government resigns without trying to meet the House, despite no opposition party having won a majority, and especially if it explains its resignation by reiterating Mr. Harper’s belief that it would be improper for a party that has not won a plurality to attempt to govern, that will be a very important indication that the convention has changed. We would have a precedent, and we would have a statement from the actor in the precedent that he felt bound by a rule. Would there be a reason for the rule? Arguably, yes, though that’s a somewhat trickier question. The rule that the winner of a plurality of seats gets first crack at forming a government has simplicity to recommend it, and it appeals to our majoritarian intuitions. It is similar to the rule we use in our electoral system ― though ironically the opposition parties might be looking to change that. I’m not saying, mind you, that this rule would be a better one than the old one. Only that there would be some reasons to justify it.

David Mitchell explains why Canadians are often confused about the rules surrounding how parties form government:

One reason is that Canada doesn’t have a simple, publicly accessible description of the conventions related to government formation, unlike Britain, Australia and New Zealand. In Canada, the rules are shrouded in secrecy and the often-opaque language of constitutional scholarship. As a result, election campaigns and their aftermath sometimes feature unnecessary debates about a single, incontrovertible fact: The House of Commons decides which party and leader has the required confidence to form a government.

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