Who’s on first


Argh. I had a feeling something wasn’t quite right as I was typing it, and should have checked: it’s not actually true, as both the Liberals and I have lately suggested, that the party that wins the most seats in an election has the right under convention to be called upon first to form a government.

In fact, as a scholarly friend reminded me, it is the party in power at the time the election was called who has that right. The presumption is that it enjoys the confidence of the House until the House votes otherwise. Of course, in most cases the incumbent party, having suffered defeat at the polls and knowing defeat is certain in the House, does not attempt to hold onto power. But not always.

As I should have remembered, an important exception was the trigger event for the King-Byng affair. Defeated in the election of 1925 by Arthur Meighen’s Conservatives — with 101 seats to Meighen’s 116 — Mackenzie King nevertheless insisted on the right to form a government, hoping to persuade the 28 Progressive MPs to support him. A reluctant Lord Byng agreed, on condition that he would then call upon Meighen if King were ever defeated in the House.

When that moment arrived, however, King nevertheless demanded Byng dissolve the House and call new elections. Byng refused, citing their agreement, and asked Meighen to form a government instead. King seized on the supposed “interference” by a foreign potentate as an issue which he used to great effect in the next campaign.

A more recent almost-example: after the defeat of Paul Martin’s Liberals in the election of 2006, there was a brief flurry of speculation that Martin might try some sort of last-ditch deal to remain in government. He immediately ended it by announcing his resignation.

CODA: While incompetence explains my mistake, I suspect this was not an entirely honest error on the Liberals’ part. Rather, it was to put Harper on the spot, to foreclose any chance of him trying to carry on without a plurality of the seats on election day. Hence Ignatieff’s demand to know whether Harper agreed “with how I have described the workings of our democratic system.”

It’s a hard enough case to make, politically, at the best of times — “I may not have won the most seats, but I’m still Prime Minister, dammit!” — but given the stands Harper has taken, probably impossible. In other words, Ignatieff’s giving Harper a taste of his own populist, constitutional-niceties-be-damned medicine.


Who’s on first

  1. Arguably, Martin's action, Ignatieff's statement, and Harper's stream of attacks on the coalition are evidence that the convention is now that the leader of the party with the most seats gets the first shot at finding enough votes to pass a confidence vote. On that point, all three of those leaders agree.

    Beyond that, we then have Ignatieff stating that if that leader fails, the leader of the second place party is entitled to attempt to corral a majority; it's unclear what Harper thinks, since he hasn't squared his actions in 2004 with his words today. Beyond that point, we really have no idea; maybe the third then fourth place party leaders, maybe we have an immediate election, maybe the Governor General steps in and identifies a different MP who appears to be at an ideological pivot point to become PM (I prefer the latter).

    My point being, you may not be as wrong as you thought; conventions can change. If this is how you, I, and the leaders of the major parties all believe the convention to stand, then that's what it is.

  2. Bravo – I was just about to correct your colleague Mr. Ibbitson on the same point. He missed it in the Globe this morning, too.

    By convention, a Prime Minister "resigns" after losing an election. If the GG automatically went to the person with the most seats that whole resignation step would be unnecessary.

    On a related note, am I alone in finding it bizarre that Constitutional law (as it relates to elections and Parliament) is the only kind of law that can be apparently overruled by pollsters and the media?

    • I snuck in just above you and argued that the convention may now be that the PM resigns, then the GG goes to the person with the most seats.

      I suppose one could argue, based on the precedent Mr. Coyne cited, that it's "the person with the most seats, unless the seat totals are very close, in which case the sitting PM gets first crack". However, I don't think it's clear we have a consensus from the actors involved on that point; Mr. Ignatieff didn't deal with that question in his statement, and I personally suspect Mr. Harper would support it if he fell just behind the Liberals, but that, were the positions reversed and the CPC started out well behind but then snuck past the seat total of a party led by a Liberal PM, he would argue that the GG had to recognize "the clear will of the Canadian people" expressed in his party's momentum.

      • Except that that's what the convention is now and always has been. The PM can always CHOOSE to resign, in ANY circumstance (no one's FORCING him to be PM). If you're suggesting that the convention is now that the PM is OBLIGED to resign if he or she doesn't get the most seats in an election then I would simply point out that the one and only precedent in our history of a PM deciding not to resign after failing to win the most seats in an election was UPHELD by the Governor General. None of the recent actions you cite violate that precedent, so the convention can't be said to have changed. Nothing contrary to the convention has even happened yet, let alone has happened and then been judged to be constitutionally valid.

        Until something actually happens that is contrary to the precedent set by Byng, that's still the relevant precedent.

  3. ."…there was a brief flurry of speculation that Martin might try some sort of last-ditch deal to remain in government."

    I love how the media can create their own idle speculation, and then retrieve it five years later as precedence. Paul Martin resigned almost immediately after the result of the election was clear. Any speculation that he might have done anything else was generated by your likely travel-fatigued colleagues at the time. That's hardly grounds for constitutional precedent.

    • Besides which, Martin's actions are not actually incompatible at all with the constitutional convention. Martin COULD have tried to cobble together enough support to maintain the confidence of the House, but he's not OBLIGED to. Martin resigning as PM after the election is completely consistent with the convention that he was still PM after the election. In fact it even bolsters the convention.

      • exactly.

  4. “Arthur Meighen’s Conservatives — with 101 seats to Meighen’s 116 —”

    Is it just still too early on a Sunday morning, or is a typo? Meighen’s 101 to M.eighen’s 116?

    • If you read a little more of the sentence:

      "Defeated in the election of 1925 by Arthur Meighen's Conservatives — with 101 seats to Meighen's 116 — Mackenzie King nevertheless insisted on the right to form a government…"

      you will see that it works – the 101 seats refers to King, who was defeated by Meighan.

    • The subject of the sentence is Mackenzie. So, while somewhat confusing, is not incorrect.

      "Defeated in the election of 1925 by Arthur Meighen's Conservatives — with 101 seats to Meighen's 116 — Mackenzie King nevertheless insisted on the right to form a government"

  5. Sigh.

    Canadians are now being called on to decide between fighterplanes/prisons/corporatetaxcuts and pensions/eldercare/education.

    Or as I see it, the difference between the old and the new.

    I would suggest that if any party insists on talking about such irrelevencies as a 'coalition', the media smack them about until they get back on track to discussing their actual policies, since that is what matters to people.

    We can leave the how-many-angels-can-dance-on-the-head-of-a-pin discussion to May 3….when we may discover we don't need to discuss it all.

    • Well said.

  6. Even your non-scholarly friend was trying to get you to re-think:

    In your defence, you used the word "convention," rather than "law," to describe the scenario.

    • Because there's no written law about it, it runs on convention and precedence.

      • OK, you just shattered my defence of Coyne, then. Do you really mean that it's not established in written parliamentary procedures (the "law") that the incumbent government gets first crack if it wants to? The incumbent-goes-first is just an unwritten precedent-supported convention? I find that surprising.

        • Don't lose confidence in Coyne…he didn't create the system. These conventions are very well established, going back to when the King or Queen was an active player, and have evolved over time. They are robust. Part of that robustness is that that they aren't written down as laws though, and so can evolve over time as the world changes.

          I suspect that we are seeing part of that evolution right now. The leaders of the two largest parties have stated that the party with the most seats gets the first chance at governing. That's on top of something similar happening in Britain. It would be exceedingly difficult for somebody in 2015 to try to pull a King…the GG would likely laugh in their faces as a result.

          What I want to know is what happens if the winner of this election loses the confidence of the house in three or six months? Do we have another election that soon? On the face of it, that seems to be what both Ignatieff and Harper are saying.

  7. Giving credit where due, Mr. Coyne eventually got his facts checked and corrected a misconception. Unfortunately, it seems most present-day journalists could care less about facts — so they promulgate all manner of nonsense. Sadly, a whole lot of Canadians accept reporters at their word. I can't tell you how often MSM commentators use a "the fact that" phrase in describing pure fiction. I wish they would somehow realize the damage they do.

  8. I am no consitutional scholar but I believe you are exactly right Andrew.

    The overriding principle of Westminster-style government is the ability to command the confidence of the House.

    I believe this situation is that the government has the confidence of the House until it loses it and at such a time the GG, on the advice of his/her sole constitutional advisor (the PM), either disolves Parliament and an election ensues or instead calls on another party/group of parties/individual/ to form a government and ask for the confidence of the House.

    Paul Martin would have certainly been in his rights after the 2006 electon to try and cobble together some sort of agreement that would havecommanded the confidence of the House but for a variety of very reasonable grounds he decided not to do so.

    The obvious example that shows it does not have to be the largest party that forms a government is Israel where Kadima won the most seats but Likud formed a (dreaded) coalition with a number of other smaller parties. And yet Stephen Harper is Benjamin Netanyahu and Likud's biggest cheerleader.

    • So, are you saying that Harper's foreign policy favours a nation whose government is a "coalition of losers"?

  9. But the real question remains: how to deal with the presence of the BQ in the House. Such was not present at the time of King but it was present at the time of Martin.

    The likely result of minority governments, now that the BQ has been added as a player in federal elections, did not play a role when Chretien won majority governments time and again. Chretien won majoriities because the Conservatives had been divided. If the Liberal party, at this time, would run as two separate parties, the Tories would likewise easily win majorities.

    And so, because a coalition with the BQ is what poses a problem for all of the federal parties when it comes to coalition forming, and Harper has always been clear on that, we must be able to deal with new conventions.

    We cannot simply compare conventions of old, or constitutional law for that matter, if new scenarios are placed before us (BQ) which were not present at the time of constitutional law so being prescribed or at the time of conventions so being set by trend.

    • But the real question remains: how to deal with the presence of the BQ in the House.

      To my mind, if we all agree that a Tory-Liberal coalition is never going to happen ('cause that could REALLY hurt the Bloc, imho) then the answer to this question is electoral reform. Get rid of FPTP finally. To my mind it's pretty shocking that we can spend all this time talking about conventions, it can be so highly charged and emotional, we can determine anecdotally that Canadians are not at all keen on the notion of parties being so often reliant on the Bloc, no matter how legitimate it is, and STILL almost NO ONE is talking about electoral reform. Why? Because, imho, the prospect of being PM in a majority government is too seductive to both Harper and Ignatieff to let go of, so they won't risk losing that opportunity, even if it would be best for the country.

      • It isn't best for the country, though. FPTP, or as John Pepall calls it, the single-member plurality system, gives people the opportunity to choose clearly between competing alternative governments. Proportional representation takes away that opportunity in order to replicate the conflicting whims of every fringe constituency inthe electorate onto the House of Commons. I reject that view of "representation" and will always prefer the big-tent national party that pulls a majority of members together in one team.

        As for the Bloc, PR would weaken its current dominant status (Why should it be weak? The Bloc is the dominant choice of mainstream Quebecers.) but entrench it forever even after it falls out of general favour.

        • “single-member plurality system, gives people the opportunity to choose clearly between competing alternative governments“

          The problem is though the translation of their choice into the constitution of the legislature. In FPTP it`s technically possible for a party to win the second highest number of votes in an election and still form a `majority` government (as has happened in Canada at the provincial level), and that`s just crazy imho.

          • As far as I know, that has only happened once, in the BC 1996 election. Admittedly, sometimes anomalies do happen, but extreme cases make bad law. Even some "anomalies" are perfectly defensible; the Conservatives won more seats than the Liberals in 1957 and 1979 despite winning fewer votes nationwide both times, due to Liberal supermajorities in Quebec. I'm certainly not arguing that Quebecers' votes count for less than those of other Canadians, but it's a plain fact that the Tories' support was more broad-based throughout Canada than the Liberals' in those elections. Do you think they should have won those campaigns?

    • To be accurate, FVerhoeven, you're not talking about an entirely new convention, but an exception to existing convention. You are saying that all of our existing conventions apply UNLESS the confidence of the House includes support from the Bloc. As soon as it is clarified in this way, your comment is revealed to be ridiculous. Should budget votes subtract the votes of the Bloc before determining if the government has won the vote? Should the same thing be done for other confidence votes? The answer is NO – this would be tantamount to disenfranchising those who voted for that party, and would establish two classes of MPs.

      Once again, you have not thought through your own premises. And by the way, the old federal PC party and the Reform party were not two halves of one party – they were two separate parties, and many Red Tories have never supported the new Conserative Party.

  10. Technology question for my fellow commenters.

    Anyone else finding that the comments aren't playing nice with Firefox 4? (I think it's an issue with Intense Debate somehow)

    Sometimes things load up fine, but frequently commenters' avatars aren't appearing for me, and the ability to reply to comments is missing, and it's only been happening since I got FF4.

    • Yes, that and weird Flash artifacts when closing FF4.

    • Not just Firefox. IE, too. I often have to click "date" at the top to see any comments at all, and many of them disappear. I had a conversation with one guy where the entire thread disappeared and stayed disappeared. We emailed back and forth and the comments have never shown up, so the 'testing' reply to make an earlier reply show up doesn't always work. And yes, lately beloved avatars have been ugly red x's instead. Which I took to be an election how-to.

      • Are you still running IE8 Jenn? I haven't seen the issue in IE9 yet myself, but I'm stubborn, so I'm hardly going to switch to IE at this point, even if IE9 is a decent browser (I've got it on my desktop though, since I heard good things and I wanted to see if it was really a good browser). Shockingly, it's pretty good, but I'm not using it really, so I could just be getting lucky in not seeing the issues there yet those few times I've gone to check.

        Good to know that it's not just FF4 then. I guess it's related to ongoing problems from the crash they had on Budget Day. I'll see if I can find the right person to contact to make sure they know it's still buggy around here.

        • Yes. But I've always found intense debates to be 'buggy' in one way or another. Shame, because it blows every other commenting software out of the water in terms of using it.

    • It's glitchy with Safari too…OS Leopard or Panda or whatever goofy name they gave it…the one that came out last summer.

      • Good to know! (I think it`s Snow Leopard btw, but it actually came out in the summer of `09 I believe… Lion is coming out this coming Summer).

    • Now that you mention it, intensedebate has been misbehaving on my computer, too, coinciding with my upgrade to Firefox 4. I hadn't made the connection until you pointed it out.

      But I gather from other responses here that there are problems with it on other browsers, as well.

      • Ironically, it`s my understanding that the Macleans blogs crashed entirely on Budget Day (dum, dumm, dahhhh!) and I do remember running into major 404-type errors that day trying to access the site. Again, ironically, Tuesday was not only Budget Day but also the release day for Firefox 4, so I`m gonna chalk it up to coincidence for now, and hope it gets fixed up soon.

    • Actually, it's only since FF4 that Intense Debate pages have worked halfway-well at all for me.

      But the recent Windows 7 SP1 update, well, that has caused me a lot of misery.

      • Weird (the first part, not the second!). Regardless, I actually don`t blame Firefox anymore given the other responses here, I think the timing might just be coincidence.

        • I've tried them all, and they all have glitches I think is the intensedebate software that one that has a problem.

    • All appears normal for me in FF4 (betas 1 & 2).

  11. There's something to be said for the unwritten constitution. It seems to me that the party that wins the most seats gets first kick at the can in forming a government. The other parties have no obligation to hold confidence in that government of course. Government in Canada is a privilege, not a right, something Mr. Harper seems to have forgotten. If one cannot hold the confidence of the people's house then one has no right to govern.

  12. I'm not trying to be clever, this is an honest question. Above, Andrew writes:

    "[That} it is the party in power at the time the election was called who has that right [to be first to form a government.]. The presumption is that it enjoys the confidence of the House until the House votes otherwise. "

    Which should be the case if the PM freely chose to ask that parliament be dissolved. But hasn't parliament already voted and the government already lost that confidence?

    • I think it is because of the change in parliament. Harper lost the confidence of the 40th parliament, not of the 41st that will be formed after this election.

  13. We could just get all the parties to take turns. 1st place gets Monday, 2nd place Tuesday etc. On Fridays we could rotate through independents and parties without official status.

    • How about half-day rotations, sort of like kindergarten used to be in Ontario? Somehow, the comparison works for me.

  14. LKO, I agree with your thorough analysis, although I believe you meant "flout [not flaunt] the current convention".

    • LOL, I did indeed!

  15. The presumption is that it enjoys the confidence of the House until the House votes otherwise. Of course, in most cases the incumbent party, having suffered defeat at the polls and knowing defeat is certain in the House, does not attempt to hold onto power. But not always.

    If THAT is the way to think about it, what then of the present wrinkle where the incumbent governing party has LOST the confidence of the House prior to the election? Does your learned friend (or unwritten parliamentary convention) have anything to say about that?

    • That`s interesting, I hadn`t thought about it that way.

      It seems to me that the convention still lets the last guy (or gal) have first kick at the can, if they want to try it, on the logic that said person is still technically Prime Minister until someone else becomes Prime Minister (after all, the government did indeed lose the confidence of the House of Commons this week, but I think everyone would agree that today, right now, the Prime Minister of Canada is still Stephen Harper). I think the convention is still the convention, it`s just that that particular explanation of the convention is not comprehensive.

      • I suspect you are correct. It's just that the sentence…

        The presumption is that it enjoys the confidence of the House until the House votes otherwise.

        … failed to notice that the House DID, in fact, just vote otherwise.

        INSTANT EDIT: And I see that "former ADB" makes the same point above, so my apologies for the duplication.

        • Fred`s reply is interesting too. The 41st Parliament hasn`t yet said either way who they do or do not have confidence in.

  16. And while we are on the topic of Coynerrata…

    Are you ready to re-think the position that the $300 million for an election is pretty nearly the same thing as the $400 million the CPC witheld from the bribe to the NDP over senior income support? What with one being a single event, and the other being a recurring annual expense?

  17. They're still Prime Minister after the election, but I'm suggesting that the claim that it is NOW convention that they should resign, giving the leaded of the party that wins the most seats the first shot at attempting to form a government that can receive the House's confidence, isn't crazy (you even quoted me as saying "arguably"). So it's not entirely clear to me that your post, however substantive, actually addresses the thesis of my post (which, to be clear, I wasn't entirely endorsing).

    I think you'll be able to agree that, at least, the statements I cited do seem to say that a PM failing to gain a plurality should resign after advising the Governor General to first consult with the leader of the plurality party leader. That's exactly what Mr. Ignatieff's statement said:

    Whoever leads the party that wins the most seats on election day should be called on to form the government.

    If that is the Liberal Party, then I will be required to rapidly seek the confidence of the newly-elected Parliament. If our government cannot win the support of the House, then Mr. Harper will be called on to form a government and face the same challenge. That is our Constitution. It is the law of the land.

    I am NOT certain that this changes the convention, such that a PM who failed to win a plurality couldn't cling to power anyway, but I think it's possible; if the intention of the two major actors involved is to act in that manner, then there's a case.