Could Harper Hold on to Power Without a Plurality of Seats in the House of Commons

…the short answer is yes. The long answer is the purpose of this post. The question is, could Prime Minister Stephen Harper hold on to power without earning a plurality of seats in the House of Commons on Monday, 19 Oct 15? Before we can answer the question, however, there are a few misconceptions we have to clear up and a few terms we have to define and better understand.

The Ministry. House of Commons Procedure and Practice 2nd Ed describes the Ministry as “exercis[ing] the practical functions of government, [which] has no fixed maximum duration. Its duration is measured by the tenure of its Prime Minister and is calculated from the day the Prime Minister takes the oath of office to the day the Prime Minister dies, resigns or is dismissed.” Stephen Harper is the Prime Minister of the 28th Canadian Ministry which was sworn in with the confidence of the House of Commons on 6 Feb 06. The Ministry continues regardless of the outcome of an election and thus the composition of each particular parliament. The 28th Canadian Minister continues at the time of this being published.

The Parliament. House of Commons Procedure and Practice 2nd Ed defines parliament as the period “between elections during which the institution of Parliament exercises its powers—is calculated from the date set for the return of the writs following a general election to its dissolution by the Governor General.” There is also a five year limit set on any part in accordance with the Constitution Act and that there must be a sitting once every 12 months. The parliament which just ended was the 41st Parliament. Stephen Harper has been Prime Minister through three distinct parliaments (two being  hung parliaments) which combined had seven separate sessions.

A Session of Parliament. A session exists within a parliament. Every parliament convenes in the first session of the respective parliament with a Speech from the Throne, an election of a Speaker of the House of Commons and the swearing-in of Members (this opening is often made distinct from others in calling it the opening of parliament). Subsequent sessions open with all of the fanfare of the first session, however do not include the election of a Speaker and the swearing-in of Members. The ending of one session into another is called prorogation of parliament and it is trigged by the Governor-General on the advice of the Prime Minister.

Hung Parliament. Often referred to as a minority government parliament. A hung parliament is one in which a clear option for the Governor-General in terms of who will be invited to form government is not present. In a hung parliament, the sitting Prime Minister retains the Ministry and carries on in government (the incumbency convention) but often in modern times a new Ministry is formed by the leader of the party with the plurality of seats in the House of Commons (if not the sitting Prime Minister).

On 2 Aug 15 the 41st Parliament came to a close when the writs were dropped by the Governor-General David Johnston on the advice of Prime Minister Stephen Harper. It started the longest campaign in modern Canadian political history. On 19 Oct 15, Canadians will head to the polls and cast ballots for candidates in the largest number of elections ever to take place in the country– 338 in total. From all of those elections, partisan (or independent) candidates will earn seats in the House of Commons– Canada’s legislature– and the 42nd Parliament will be composed. Out of the composition of the 42nd Parliament one of two things will happen; (1) the 28th Canadian Ministry will be invited to continue to govern or (2) the 29th Canadian Ministry will begin with a new leader being invited to form government. The first situation could happen if the Conservative Party of Canada receives a majority of seats in the House of Commons, a plurality of seats in the House of Commons or, in a hung parliament and without a plurality of seats, invokes the incumbency convention. The second situation could happen if, in a hung parliament and without a plurality of seats, Stephen Harper steps down as Prime Minister and the Governor-General invites the leader with the plurality of seats to form government or if another party wins a majority of seats in the House of Commons.

Let’s use the most recent poll numbers and seat projections from Eric Grenier at threehundredeight.com to understand a plausible situation where Stephen Harper would legitimately and constitutionally hold on to power without having a majority of seats or a plurality of seats in the House of Commons. Suppose a Conservative upset resulted in that party taking the high end of 139 seats to the low end of the Liberals with 124 seats. Regardless of how many seats the NDP, Green Party and Bloc have the 28th Canadian Ministry would be standing to the right of the Speaker during the opening of the 42nd Parliament. Whether or not their Speech from the Throne would pass is another question, and as a matter of confidence it would mean the end of that Ministry. However, the opening itself could be delayed up to an entire year after the closing of the last Parliament, specifically 2 Aug 2016. Even if the NDP and Liberals decided to merge and form a majority of seats in the House of Commons, they would have to convince the Governor-General that the incumbency convention should not stand, which would be a tough sell.

Another example where Stephen Harper could hold on to power is more sinister in terms of how Canadians have come to understand the function of the House of Commons and the formation of government (which, for the record, is largely misinformed) but I would argue is more plausible than the first situation (at least in terms of the composition of parliament as a result of the election). Let’s say it goes right down the middle of Mr. Grenier’s seat count projection. The Liberal Party taking 149 seats, the Conservative Party 118 and the NDP 66 (again, it wouldn’t matter how the other parties came out). In this instance the 28th Canadian Ministry would continue as per the incumbency convention. There is a snag here however, as all three federal leaders have stated that they believe the statement that the leader with the plurality of seats gets first crack at forming government to be true and so, politically speaking, Harper would face pressure to step down (thus keeping the incumbency convention intact as well). However, Stephen Harper could decide to not step down, remain Prime Minister and delay the opening of parliament to buy time. This is highly unlikely, but would be well within the bounds of the Constitution.

The situation becomes even more aggravated if we close the gap between the Conservatives and the Liberals in terms of seat count (most likely how the chips are going to fall in my opinion). Imagine the Liberals taking 130 seats to the Conservatives taking 128 seats. Stephen Harper would remain Prime Minister and one or both remaining major federal parties would most likely be looking to a leadership convention. In that instance, a delay in the opening of parliament, or even an immediate opening of it, would change the landscape. It would become even tougher for the Liberals and the NDP to vote down Harper in the House of Commons if a delay in opening parliament included the election of a new Conservative leader who could face parliament with a Throne Speech riddled with goodies  for the other federal parties.

There are several scenarios in which Stephen Harper could remain Prime Minister into the 42nd Parliament of Canada. The only sure way for critics to see him out for 24 Sussex Drive would be for the Liberals or the NDP to win a clear majority of seats in the House of Commons. Considering that a majority government outcome in the election has pretty much all but been ruled out during this extremely long campaign, we just may all be in for a constitutional lesson tomorrow evening.

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