Imagine an election result where the incumbent party wins the most seats, but loses office to the second largest party with the support of a third party. Unheard of in New Zealand, you might think? Besides, isn’t there some convention that the largest party gets the first chance to form a government?
Yet this scenario is exactly what happened in New Zealand following the 1928 election. The Reform Party, led by Prime Minister Gordon Coates, lost its majority but still won one more seat than the United Party (the reconstituted Liberals) under Sir Joseph Ward. The smaller Labour Party decided to support United, giving it a combined majority in the House.
Earlier still, Ward lost his majority at the 1911 election when the Liberals won four fewer seats than Reform, but managed to survive the first confidence vote with the support of independent MPs.
Go back far enough and there are clearly precedents for silver and bronze beating gold. The primary constitutional convention in these circumstances has always been that our Head of State must have ‘responsible advisors’, or Ministers who enjoy the confidence of the House. However, this support does not need to be found in a single party (or indeed, any party, as was the case for the first forty years of responsible government in New Zealand).
Further, a government can even be formed with the support of fewer than half of the MPs in the House, as long as it has a ‘plurality’ or more votes in support on confidence and supply than any other combination. As the Governor General Sir Jerry Mateparae pointed out in a speech to the Parliamentary Press Gallery last November, this means that if a party chooses to abstain on a confidence vote it “is constitutionally significant, because it reduces the number of votes another party or grouping of parties will need to win confidence votes and command the confidence of the House.”
Apart from the responsibility convention, the process of forming a government in New Zealand is largely unprescribed. Although there is a requirement under the Constitution Act 1986 for Parliament to meet within six weeks of the return of the writs (the final election results), this does not mean that a government must be in place. Parliament could be summoned, members sworn in, and a Speaker elected before adjourning until the situation becomes clear.
In practice, however, the summoning of Parliament has served to clarify an unclear election result. In 1928 Coates resigned when he lost a vote on the Address in Reply debate, the first confidence motion after the election. Following the 1890 election, Premier Harry Atkinson saw the writing on the wall and resigned when his nominee for Speaker was voted down, heralding the first Liberal Party government under John Ballance.
For the last five decades of First-Past-the-Post elections these machinations were largely forgotten as either Labour or National won a clear majority of seats (even if neither had won a majority of votes since 1951).
But when the 1993 election delivered what appeared to be a ‘hung’ Parliament, a taste of the type of result that could be expected under the MMP system ushered in by the accompanying referendum, party leaders sought to reassure the country that a stable government could be formed. Citing the fact that National was the biggest single party, on election night Jim Anderton pledged his support on confidence and supply, even though the combined seats of Labour, NZ First and the Alliance outnumbered it by one. Earlier that year, lawyer Mai Chen even suggested that in such situations the Governor General should approach each party in turn, starting with the largest, to find a government.
There is no constitutional convention that the largest party gets the first opportunity to form a government. NZ First demonstrated this itself when it undertook simultaneous negotiations with both National and Labour in 1996. That does not mean that parties cannot adopt the position that they will talk to the largest party first, but that is a political judgment rather than a constitutional necessity.