“Whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties.”

Introduction

Last week, Andrew Scheer, Leader of the Conservative Party of Canada, caused some controversy by arguing that the party which wins the plurality of seats in a minority parliament should be allowed to form government, which would, under some circumstances, require the incumbent prime minister to resign.

“But what I’m saying is that the party that wins the most seats should be able to form the government and the other convention in modern Canadian politics is that a prime minister who enters into an election and comes out of that election with fewer seats than another party, resigns. That is a modern convention in Canadian politics.”

Scheer’s statement earned him some rebukes. On the one hand, I am pleased that Canadians have generally become more knowledgeable of minority parliaments and that the media tend to take constitutional discussions over the formation of governments and the established constitutional positions of the Governor General, Prime Minister, and House of Commons more seriously than in previous decades, especially since the premiership of Stephen Harper. On the other hand, Scheer’s argument warrants neither sneering dismissal nor scornful rebuke but instead serious consideration and examination.

Precedents

The only federal precedent in which the incumbent prime minister opted to remain in office after another party won a plurality in a minority parliament occurred in 1925 – and with such considerable controversy that it has never happened again. King’s decision to remain as Prime Minister after the election of October 1925 generated ferocious opposition in the conservative press and ultimately precipitated the King-Byng Affair in June 1926. But Prime Minister King stated unequivocally that “the only manner in which rule by the people could be made possible was to allow parliament to decide who was to govern.”^[1] King also restrained his incumbent government to a caretaker (probably on the insistence of Governor General Lord Byng), declaring: “Until Parliament meets, the Government will refrain from making any appointments other than those essential to carrying on the public business.”^[2] Meighen denounced King’s constitutionally correct formulation as a “usurpation of power” and claimed a popular mandate to govern.^[3] Meighen argued that King had clung to power “in defiance of a heavily adverse verdict from the people of Canada.”^[4] To make matters worse, King had even lost his own seat in the House of Commons in October 1925. Frankly, it is unthinkable that a prime minister would remain in office under the same circumstances in the early 21^st century.

In 1957, incumbent Liberal Prime Minister Louis St. Laurent decided to resign one week after the election and after the overseas military ballots had been counted. John Diefenbaker had led the Progressive Conservatives to a plurality but in a very close margin in this minority parliament: 112 seats to the Conservatives, 105 to the Liberals, 25 to the Cooperative Commonwealth Federation, and 19 to Social Credit. The Liberals could have formed a coalition or struck a confidence-and-supply agreement with the Co-operative Commonwealth Federation (ancestor of the New Democratic Party), with their combined 130 seats, though the Progressive Conservatives could also have combined forces with the right-wing Social Creditists for a total of 131 seats. The 4 independents could have determined who governed. But in the end, the Liberals had by that point remained in government uninterrupted for the previous twenty-two years, and the momentum had gone against them; St. Laurent opted to resign.[5] Diefenbaker called a snap election in 1958, after newly-minted Liberal leader Lester Pearson suggested that the single-party minority government simply resign, and led the Progressive Conservatives to a landslide.

But in 1962, the erratic “Dief the Chief” reduced his party to a plurality – but he still remained in power. This supports the view that the party which wins the plurality should remain in power. The Conservatives won 116 seats versus 100 to the Liberals; the CCF returned 19 MPs, and Social Credit saw 30 of their candidates elected. In that case, the right-wing block won 146 versus the 119 to the left-wing parties. But that did not prevent Lester Pearson from tabling a motion of non-confidence in the Diefenbaker government in February 1963 after several ministers resigned; the CCF and Social Creditists sustained the motion, and the House voted 142 to 111 against the government.[6] In that election of 1963, Lester Pearson led the Liberals to a strong plurality of 129 (133 made a majority at the time) opposite 17 New Democrats, 95 Conservatives, and 24 Social Creditists. Diefenbaker resigned and made way for Pearson.[7]

Canadians elected another minority parliament in 1972 in the closest results yet between the two largest parties: 109 Liberals, 107 Conservatives, 31 New Democrats, 15 Social Creditists, and 2 independents. Quite rightly, Pierre Trudeau remained in office as prime minister and, like Pearson before him, depended upon the New Democrats for a majority in the House of Commons.[8] During the Leaders’ Debate in 1979, Joe Clark declared, in what has become an infamous example of ludicrous posturing, “We will govern as though we have a majority.” And Clark’s full quote reveals that he necessarily believed that the party which wins the plurality of seats should be allowed to form government:

“If there is a minority government — and I very much hope that there won’t be — I very much hope that we will be given the opportunity to form a majority government. If there is a minority, I intend to govern entirely on the program that the Progressive Conservative Party has installed forward, not on somebody else’s program. We will be governing as though we have a majority, although it would be far easier, naturally, far more effective, for the system, I believe, if we had the certainty of there being four years in office for a government in which to plan.”[9]

At first, Clark appeared disappointingly prescient rather than foolish; in May 1979, the Progressive Conservatives won 136 seats, while the Liberals only returned 114 MPs. The New Democrats and Social Creditists rounded out the House of Commons with 26 and 6 seats, respectively. Like 1957, this produced an incredibly close split between the two right-wing parties and the two left-wing parties, 142 vs 140. Clark went down in a spectacularly stupid, unnecessary, and obstinate defeat in December 1979 when the Commons voted against his government’s budget because it would have imposed a carbon tax of 18 cents per Imperial Gallon on gasoline.

And, most recently, on 23 January 2006, the Conservatives won a plurality of seats. Prime Minister Paul Martin announced that he would resign the premiership so that Governor General Michaelle Jean could appoint Stephen Harper as Prime Minister.[10]

How Conventions Evolve and Potentially Revert Back

In July 1896, Prime Minister Sir Charles Tupper argued from a valid, though pedantic and time-consuming, constitutional position that even though the Liberals had won a parliamentary majority in the election that June, he should be allowed to stay on as Prime Minister, continue filling out vacancies, and test the confidence of the 1^st session of the 8^th Parliament. Governor General Lord Aberdeen disagreed, refused to implement Tupper’s nominations to the Senate, and thereby dismissed him from office. Strictly speaking, any incumbent ministry could stay in office after any election – even if another party wins a parliamentary majority – subsequently meet the new House of Commons, and, finally, only resign after losing the vote of confidence on the Address in Reply to the Speech from the Throne. This convention from the early days of Responsible Government (1840s to 1870s) started to die out once the entrenchment of party discipline in the late 19^th century rendered it inefficient and impracticable. As Eugene Forsey and Graham Eglington observe, this convention took shape in the United Kingdom amidst the various oscillations between Liberal Prime Minister William Gladstone and Conservative Prime Minister Benjamin Disraeli in the 1860s and 1870s; Gladstone set the instructive precedent after the election of 1868 when he decided to resign instead of meeting his inevitable defeat in the new House of Commons.[11] Queen Victoria approved of this development and regarded waiting for imminent defeat as “simply a waste of time.”[12] In the early 21^st century, we would say that the incumbent government can stay in office after the election of a minority parliament unless and until the elected assembly or the Governor General withdraw confidence in it or revoke the Prime Minister’s commission to govern.

The same convention had taken hold in British North America by the 1870s as well, and Tupper’s rear-guard action in 1896 succeeded only in putting the old conventions into abeyance. After Aberdeen’s dismissal of Tupper, it had become universally accepted in Canada than the incumbent Prime Minister resigns within a few weeks after the election if another party wins a parliamentary majority, rather than staying on and testing the confidence of the new House of Commons. In other words, the electorate, no longer the House of Commons, now in effect decides who governs in the case of majority parliaments. And majoritarian electoral systems facilitate majority parliaments. We accepted a key premise of popular sovereignty 140 years ago, but this concession to popular sovereignty can only work properly under majoritarian electoral systems and a strong two-party system. If either or both of those underlying conditions change, then the convention and default option would also have to change in kind.

As such, the old 19^th-century convention – the redoubt which Tupper sacrificed his premiership to defend – still exists in narrower form in minority parliaments, where it makes practical sense and conforms to the aforesaid principles of forming governments. Inertia, surely the most powerful force within large institutions, governs all. The incumbent government remains in office unless another force acts upon it – where either the Prime Minister chooses to resign before meeting the elected assembly or the Prime Minister chooses to resign after the elected assembly defeats his government on the Address in Reply, or else the Governor General would have to dismiss the defeated incumbent Prime Minister from office. If the incumbent Prime Minister chooses to remain in office and test the confidence of the new minority parliament, then the House of Commons should first reject the government before the Governor General dismisses the Prime Minister from office. This order of events best maintains the democratic role of the elected assembly and the neutrality of the office of the Governor General.

If anything, what happened in British Columbia in 2017 and New Brunswick in 2018 shows, at least under some circumstances, that the incumbent prime minister really indeed ought to resign and give way to the leader of the party which won the plurality of seats in a minority parliament, as Scheer argues. In both cases, one cannot help but think of Queen Victoria’s observation that this method of dismissing and appointing governments, dragged out over several weeks, constitutes an enormous waste of time.

In 2017, British Columbians elected a minority legislature in which the New Democrats held the plurality, but incumbent Premier Christie Clark opted to meet the new legislature anyway. The Greens struck a confidence-and-supply agreement with the New Democrats, and the two parties combined out-voted the Liberals to defeat the Clark government on the Address-in-Reply. Premier Clark immediately trotted on over to Government House and advised Lieutenant Governor Guichon to dissolve the legislature; Her Honour refused to carry out Clark’s constitutional advice and thereby forced her resignation. Lieutenant Governor Guichon named John Horgan, Leader of the New Democratic Party, as Premier-designate that same evening. Of course, constitutionally, Clark had every right to remain as Premier and meet the new legislature so that the elected assembly could decide her fate. But politically, Clark’s refusal to resign before meeting the legislature seemed intransigent, and her stunt of advising an early dissolution immediately after losing the Address-in-Reply looked downright petulant. Similarly, in 2018, Premier Brian Gallant’s incumbent minority government lost the Address-in-Reply, but he at least had the decency to resign instead of asking for, and being refused, an early dissolution.

Conclusion

At the risk of sounding too flippant, the answer to the question of whether the party that wins the most seats should form government in a minority parliament seems to depend upon whether one supports the political party of the politician who made the claim. In May 2010 after Britons elected their first hung parliament since the 1970s, Nick Clegg, then Leader of the Liberal-Democrats, said “Whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties.” Clegg, the Europhile liberal, surely does not meet the threshold for a right-wing reactionary ignorant of parliamentary government, and nor does the Guardian which reported his remark.

On balance, the argument that the leader of the party which wins the largest number of seats in a minority parliament should become prime minister probably has not become a constitutional convention per se, but it remains, nevertheless, an eminently defensible and reasonable argument with strong and forceful points in its favour. The crux of the argument depends upon single-party minority governments as opposed to coalition governments, as well as to whether politicians should accord the plurality of the electorate deference against forming what Stephen Harper so bluntly, but accurately, called “Coalitions of Losers.” If minority parliaments became the norm in Canada (especially if they did because of electoral reform toward some type of proportional representation), Scheer’s argument would probably lose over the long term as coalitions replaced single-party minority governments as the norm. But under a majoritarian system and political culture where minority parliaments still remain the in the minority of parliaments elected, practical politics and the expediency of not wasting everyone’s time – like Premier Christie Clark of British Columbia did in 2017 and Premier Brian Gallant of New Brunswick did in 2018 – also weigh heavily in favour of Scheer’s argument as well.

This argument seems strongest when the incumbent prime minister led a party which had remained ensconced in power for over a decade, like Paul Martin in 2006 (the Liberals had governed for 13 years), Gordon Brown in 2010 (New Labour had also been in power for 13 years, from 1997), and Christie Clark in 2017 (where the Liberals had been in government for 16 years, since 2001). But in New Brunswick, Gallant’s Liberals had only eked out four years in the previous majority legislature before they lost the vote on the Address-in-Reply and gave way to the Progressive Conservatives. The answer depends heavily as well on the number of parties elected to the House of Commons, their relative strength toward one another, and whether, ideologically and programmatically and politically, the constellation of smaller parties can support the beleaguered incumbent government or not. For instance, the New Democrats would almost certainly never support the Conservatives because of the ideological and programmatic differences between the parties. The Bloc quebecois, if they roar back to life tonight in Quebec, could perhaps be persuaded to support either the Liberals or the Conservatives.

Ultimately, the incumbent prime minister can elect to remain in office after Canadians have returned a minority parliament, or he can opt to resign; the initiative remains with the prime minister. Four federal precedents – 1957, 1963, 1979, and 2006 – saw the incumbent prime minister resign when another party won a plurality, while one precedent from 1925 shows the opposite. The precedents from 1962, 1972, 2004, and 2008 show that the incumbent government also stays in office when it goes from a majority to a plurality. This election of 2019 appears to fall under that category as well — which would also prove Scheer right, though not in the way that he had hoped! History will also have repeated itself and entwined the fates of father and son: in 1972, Pierre Trudeau barely squeaked by with a plurality after winning a big majority in 1968. Two recent provincial precedents where the incumbent premier lost both a parliamentary majority and plurality but decided to stay on anyway spelled defeat for those governments. The preponderance of federal precedents favours Scheer’s interpretation (certainly as a matter of political expediency, but perhaps not as a constitutional convention), and so, too, even do these two recent provincial precedents.

If Canadians elect a minority parliament today – whether with a Liberal plurality or a Conservative plurality and whether Prime Minister Trudeau decides to stay on or to offer the Governor General his resignation – the 1^st session of the 43^rd Parliament should still meet for its pro forma despatch of business on 18 November 2019 in accordance with the proclamations for election from 11 September 2019. This would allow the House of Commons to settle the question of who should govern within a reasonable time and would preserve the neutrality of the Office of Governor General as well. Once the House of Commons elects a Speaker and votes on the Address-in-Reply, we’ll go from there.

Similar Posts:

• Government Formation
• British Columbia, 2017
• New Brunswick, 2018

Notes

^[1] F.C. Mears, “Promise Is Given to Refrain from Making Appointments,” The Globe, 4 November 1925.

^[2] Ibid.

^[3] F.C. Mears, “‘Usurping of Power,’ Meighen Charges,” The Globe, 5 November 1925.

^[4] Ibid.

[5] Peter Russell, Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy (Toronto: Edmond Montgomery Publishing, 2008), 25-26.

[6] Peter Russell, Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy (Toronto: Edmond Montgomery Publishing, 2008), 29-30.

[7] Parl Info, “26^th Parliament: Party Standings in the House of Commons,” accessed 20 October 2019.

[8] Parl Info, “29^th Parliament: Party Standings in the House of Commons,” accessed 20 October 2019.

[9] CBC Archives, “Encounter ’79,” CBC News Special, 13 May 1979.

Apparently, Clark also repeated this sentiment on 22 May 1979 after the Progressive Conservatives won only a plurality of seats. Darling might be reporting on the same statement that we see in the CBC archival footage with Anna Medina. Stan Darling and Beth Slaney, The Darling Diaries: Memoirs of a Political Career (Toronto: Dundurn Press, 1995), 179.

[10] Office of the Governor General, “Date for the Swearing-in of the Honourable Stephen Harper as the 22nd Prime Minister and of his Cabinet,” 26 January 2006.

[11] Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 59.

[12] Forsey and Eglington 1985, 59.