Examination of Witnesses (Questions 59-86)
PROFESSOR ROBERT
HAZELL, MR
PETER RIDDELL
AND PROFESSOR
VERNON BOGDANOR
24 FEBRUARY 2010
Q59 Chairman: Professor Hazell, Mr
Riddell and Professor Bogdanor, welcome. Perhaps I could start
by asking you—at least two of you if not all three of you
were here for all or part of the preceding session—whether
you have comments or any differences of view to express from what
you have heard so far, starting with the issue of whether there
is clarity about what the processes are in the circumstances we
have described when a general election does not produce an overall
majority for any one party.
Professor Bogdanor I think there
is not full clarity about the position of the Prime Minister in
such circumstances. It seems to me that the Prime Minister derives
his authority to advise the Queen from the fact that he has the
support of Parliament, which of course he normally has. If there
is a hung Parliament and the view of the new Parliament has not
been tested, in my judgment the Prime Minister does not have the
authority to advise the Queen on a successor. He might be asked
by the Queen for a recommendation and he might give a recommendation,
but that cannot be binding. Otherwise a Prime Minister, if he
could advise in those circumstances, could advise something entirely
mischievous. He is also not in a position to seek a second dissolution
in these circumstances. There is a very fundamental principle
that lies behind the whole issue namely that we have a parliamentary
system of government, and it is for Parliament to decide who should
be the next Prime Minister. The role of the Queen is obviously
to endorse that view. I think a good slogan might be: it is Parliament
which chooses, Parliament decides; and the Queen then sends for
the person whom Parliament has decided should be the next Prime
Minister.
Q60 Chairman: But that is not the
actual order of events, is it, because Parliament does not have
the opportunity to decide until a Prime Minister brings a Queen's
Speech before Parliament, and so there is a period in which what
Parliament is going to do is to some degree or other speculative?
You are not challenging, are you, the right of the incumbent Prime
Minister, to see whether he can create circumstances in which
he can win a vote of confidence at the Queen's Speech debate,
are you?
Professor Bogdanor Certainly the
Prime Minister has every right to meet Parliament and to challenge
Parliament to reject him. I think it was said in the previous
session that this had not happened for 200 years, but in fact
it did happen after the 1923 election when the Conservatives,
who were the largest party but without an overall majority, decided
to meet Parliament. There was a hiatus of six weeks and the Conservatives
were defeated on the Queen's Speech, and as a result there was
a Labour minority government. It also happened in earlier times
in 1892 and in 1886: in each case the purpose was to test whether
Parliament would support the Prime Minister. In 1924, it was to
show the public that the centre party—the Liberals—were
putting into power a Labour government. An incumbent Prime Minister
can, if he so wishes, test the water in Parliament.
Mr Riddell: Can I make a point,
in relation also to the question that Mr Hogg raised at the end
of the previous session with Lord Butler and Lord Turnbull, and
that is the distinction between advice and information! There
is plenty of information going around at the same time. Indeed,
if you look back at the memorandum that Lord Armstrong of Ilminster
wrote, when he was Principal Private Secretary to Ted Heath and
then Harold Wilson in 1974, which I am sure you have all seen,
it is a fascinating account, because he makes it quite clear over
that weekend in February 1974 that he was in frequent communication
with Lord Charteris at Buckingham Palace, discussing what was
going on. There are plenty of sources of information. Therefore,
if a Prime Minister was seen—going back to Mr Hogg's question—as
giving partisan or special advice, the Monarch would know perfectly
well that there are other opinions around, and indeed the Cabinet
Secretary had been quite active. I think it is fair to say that
it is envisaged in the manual that the Cabinet Secretary would
have a special role in providing, not advice in the technical
sense of saying who should be the next person, but information
on what was going on.
Q61 Mr Hogg: I will ask Professor
Bogdanor, if I might: you said, and I understand entirely, that
a Prime Minister who has not won the election in the conventional
sense, has lost his or her authority to advise the Prime Minister
(sic). That is what you began by saying. That leaves the question
open to whom should the Monarch actually turn for advice as opposed
to information, which is Mr Riddell's point?
Professor Bogdanor I said that
the Prime Minister has lost the authority to advise on who a successor
should be until he has the endorsement of Parliament. The Queen
no doubt will consult her private secretary on what the political
situation is, and he may consult with political leaders or others
as he chooses; but it is for the politicians to sort out the result,
and the role of the Queen is to endorse the outcome decided upon
by politicians.
Q62 Mr Hogg: But the Queen in this
context is instigating the process, is she not? : Because
she is looking to her private secretary at this point to take
soundings from within the political community.
Professor Bogdanor She might do
that, but of course there is no vacancy until the Prime Minister
either resigns or is defeated; and when that happens, if it happens,
then it is for Parliament to decide who the successor should be.
It is for the politicians, crudely, to sort it out, and for the
Queen to endorse that solution. That is what happened in 1974,
and in 1929 and in 1923-24 when we had hung Parliaments. In no
case was the Sovereign involved in an active way. The politicians
made the decisions themselves. Perhaps even more pertinently,
it has happened in New Zealand, which introduced proportional
representation in the 1990s, with the effect that every parliament
has been a hung parliament; but the Governor General has not been
actively involved in the process of government function. The politicians
have decided who the next Prime Minister should be, and the role
of the Governor General has been to endorse the decisions made
by the politicians. I think the fear that the Queen might be actively
involved is misplaced.
Professor Hazell: Chairman, in
answer to your first question whether there is sufficient clarity,
my answer would be that there is not public clarity about the
procedure. There is not very good media or wider public understanding
about the processes that would be followed, which we have heard
canvassed in the previous session. I strongly support the Cabinet
Office initiative in producing a Cabinet manual, and I would like
to pay tribute to Sir Gus O'Donnell and his Whitehall colleagues
for the work that they have done on that and for the first fruits,
which I think we are about to see disclosed to the Committee today
in the draft chapter on elections and government formation. I
think it is a very strong start; it is clearly written, it sets
out broad principles, not detailed rules; and it does help to
clarify some of the central conventions of our constitution. It
is not at all easy to do that. So any criticisms which I or perhaps
colleagues might express I hope will be subject to that very strong
welcome for the new Cabinet manual. It is an excellent initiative
and I think that the new draft chapter is a very strong start.
Q63 Chairman: Are we to assume that
it will be in force at the time of the next General Election?
Professor Hazell: I very much
hope that the draft chapter—and I think it is the reason
why the Cabinet Office have brought this chapter forward early,
is that it should be in place in time for the next election. Peter
Riddell may want to say something about the media's understanding
of the procedures. I think it is highly desirable to have this
guidance in the public domain before the next election.
Peter Riddell: Can I add on that
with my Institute for Government hat, where I work two days a
week? I produced a report with a colleague of mine, Catherine
Haddon, on transitions and one result of that is that we have
been going around Whitehall and the political parties and the
private sector discussing the transition process. Also, more generally,
with my journalist hat and something that has come back from that
is the degree of misunderstanding and confusion about what the
procedures are, and therefore the vital necessity—in answer
to your question—that it should be clarified before the
campaign happens, so that everyone knows publicly. It is a long
time since 1974; there are a few people around from that era—some
people got re-elected to Parliament that weekend—but it
is generally not known, and there is both ignorance and danger
in the world of 24-hour news, of sovereign funds potentially dumping
sterling and things like that. But the rules should be absolutely
clear—and I share Professor Hazell's view that the Cabinet
Office has done a very good job on this, and I think there are
aspects of the document which will be released which are desirable.
The mere fact of releasing that chapter actually goes a long way
towards it. There are aspects of a caretaker convention which
Mr Tyrie raised earlier, which we might discuss because I think
there it needs to be much clearer; but in general this is a big
step forward.
Q64 Mr Heath: We have heard a lot
of stress on the role of Parliament, quite rightly—that
Parliament actually determines who the new administration is—but
is it not the case that Parliament actually does this in an extraordinarily
imperfect way; that the administration has to be formed first,
the Prime Minister has to go to the Palace; creates an administration
and that brings forward the Queen's Speech, and it is on the programme
of policies that the House determines whether it will support
the administration, rather than bring forward a Prime Minister
Designate, which would greatly assist the Monarch, it seems to
me, in making a choice. Is there a case for an entirely different
way of Parliament approaching this issue of actually getting to
the nitty-gritty very early on and saying, "Who is the person
that we will support, that we will put forward as Prime Minister
Designate for the Palace to determine?"
Professor Hazell: There is a possible
alternative procedure which Parliament could adopt and we have
seen it in action in Scotland. It is called an Investiture Vote
and in the Scottish Parliament after an election and after choosing
the Presiding Officer the first business of the new Parliament
is to nominate a First Minister, who is then appointed by the
Crown to be First Minister; but this is a matter for the House.
If the House chose as its first major piece of business to have
an Investiture Vote instead of a debate on the Queen's Speech
then it could choose the new Prime Minister in the manner which
I think you are suggesting.
Peter Riddell: I think there are
a lot of attractions in that. After all, it was proposed by the
current Prime Minister—although I do not think it has got
anywhere—in the original Green Paper that there would be
a vote on the dissolution of Parliament and we will see whether
this happens in the next month or whenever. I think there is equally
a symmetrical point that there would be to clear up any ambiguity—in
effect, of course, the vote and the Queen's Speech Vote does it;
but to deal with concerns over a delay it might well be to have
a vote, effective confidence in the new government, which you
would have earlier to shorten any delay; but in effect the no
confidence and the Queen's Speech Vote. But of course that, even
on the current timetable, is three weeks after an election.
Professor Bogdanor: There is a
case for change but it would alter the political dynamics. Our
current system makes it much easier to sustain a minority government.
I suspect that the Scottish system makes it more difficult, although
of course we do now have a minority government in Scotland. Nevertheless,
it is easier to sustain a minority government in Westminster because
to get a government out you need, as it were, a positive majority
against it, which is sometimes difficult to achieve when you have
a number of minority parties. There was general agreement in Scotland
after the last election to sustain a minority government because
of special circumstances. But I think the proposed change would
alter the political dynamics very significantly.
Peter Riddell: Could I disagree
with Professor Bogdanor on one point? I think that is true once
the government is in place; but it is to start off with that everyone
knows that this is a government which commands the confidence
of the Commons is different to what may happen later on as, for
example, happened in the minority administration in the late 1970s
and of course in the last two years of the Major Government when
it was very difficult, even though it was technically a minority.
I think it is very different to start with.
Q65 Mr Tyrie: You have given some
nice words to us about the draft chapter and I agree, I think
it is a step forward to have something that is written down. If
one reads it carefully one can see that it is quite vague actually,
in places itself—the language is pretty vague. In particular
it is vague about whether the caretaker period should continue
after an election until it is clear that a Prime Minister can
command a majority in the House, in the same form as it is now
established, as it already is currently established, that the
caretaker arrangement should continue beforehand. Would anybody
like to comment on that?
Peter Riddell: Can I just say
on that, I think this is a very urgent issue. In the presentations
I have been doing on the Transitions Report around Whitehall with
the senior management of various departments I have had several
questions asked, "What happens if there is a hung Parliament?
The Secretary of State comes back; what can he do?" There
are ambiguities there and serious ambiguities that the election
purdah guidelines which the Cabinet Office puts out which cover
exactly the issues raised, appointments and so on, the very interesting
answer that Lord Turnbull gave on an Accounting Officer, I think
that the proposals in the draft manual do not go far enough. They
still leave too much discretion. I think that if we got into that
awkward situation we should have very clear-cut rules. Whilst
I welcome most of what is in that chapter basically the election
purdah rules should be extended to cover until we have a new government
formally inaugurated, which is exactly what happens in Australia,
Canada and New Zealand and with them the emphasis is post-election
rather than pre-election and they have—it is in the appendix
to our Transitions Report—their purdah rules applying from
the dissolution of Parliament—in some cases the announcement
of dissolution—until a new government is inaugurated, which
is usually up to a week after the election, even when it is a
certainty.
Q66 Mr Tyrie: For the sake of clarity,
can I read out the key sentence in paragraph 20: "As long
as there is significant doubt whether the government has the confidence
of the House of Commons, it would be prudent for it to observe
discretion about taking decisions, as per the pre-election period."
The set of questions I was asking the former Cabinet Secretaries
was what happens when the Cabinet Secretary concludes that an
appointment here or an appointment there might be imprudent?
Peter Riddell: I think the wording
needs to be stronger, Mr Tyrie. It should become exactly the same
practice as happens during an election period, which is to say
anything unnecessary, or consultation with the opposition parties.
Q67 Mr Tyrie: Do you think we also
need to set down what the sanction is: that is, that the Cabinet
Secretary should be required to make public his dissent and give
his reasons, should a decision be taken which he thinks is imprudent
or not essential to the good conduct of government business? Was
that a "yes" to that?
Peter Riddell: Yes, it was a yes
to that. It was not an issue I confess I had thought about until
Lord Turnbull made his comments, but of course that is implicit
in any disagreement on something as fundamental as that. I am
not sure that you need to set it down but I certainly accept what
Lord Turnbull said, that that would be the response.
Professor Hazell: I strongly agree
with what Peter Riddell has said and I would like, if I may, to
offer some suggestions as to how the caretaker convention could
be made stronger. First, I think we should call it that and the
government should announce that it is operating as a caretaker
government if it is an incumbent government which is staying in
office in a new Parliament, where it is not yet clear who can
command the confidence of Parliament. I think it should be made
clear in the guidance about the caretaker convention and not simply
a vague phrase like "it is prudent to observe discretion";
but clear that this covers any major policy, it covers any major
public appointments and it covers any major government contracts.
There also needs to be guidance on how to consult the opposition
parties if that is deemed desirable. Such requests I think should
be routed through the Cabinet Office and the Cabinet manual should
state that. If the Cabinet Office here want to look for models
of more clear-cut guidance there are very strong models in Australia
and in New Zealand. In closing I would simply like to say Chairman
I hope that this Committee might give its cross-party support
to a stronger caretaker convention being in the manual because
I think the Cabinet Office might be receptive to that.
Q68 Dr Palmer: I have an unease about
what you have just said. Are you not in danger of enshrining paralysis
in the constitution? We have all said that there may be several
weeks during which it is not entirely clear who is going to form
the government. During those weeks there may be quite urgent decisions
to be made, either financial or something else, on which there
may be a degree of consensus between the major parties, which
is not present on who should be the Prime Minister. In other words,
even if you are not sure whether the Opposition can form a new
government they might accept that in order to satisfy the markets
or whatever certain policy steps had to be taken, that if we actually
had guidance that said you cannot take major policy decisions
that would be bad.
Peter Riddell: No, because it
is covered. All this is talking about is non-essential. There
is no dispute that if there are problems with financial markets
or indeed a terrorist attack or foreign policy then that would
go ahead, but with a degree of consultation. There is no suggestion
that exactly what you have described, Dr Palmer, would not be
covered. Indeed, if you look at the overseas examples, there is
a classic example in New Zealand with Prime Minister Mr Muldoon,
who refused to devalue and then he was forced to after two days;
and now there is a full acceptance and practice to cover exactly
what you are describing.
Q69 Mr Hogg: With consultation between
the major parties?
Peter Riddell: Yes.
Q70 Alun Michael: Do I understand
correctly that you are not talking, as I thought Professor Hazell
was saying, about no decisions being taken but about explicit
processes of consultation to allow decisions to be taken?
Professor Hazell: Absolutely.
I am sorry if I was unclear about this. The incumbent government
remains the lawful government; the essential business of government
must be carried on and it is only non-urgent decisions which,
wherever possible, should be put on hold. If decisions have to
be made then if time permits—if they are important decisions
which might tie the hands of a future government—the other
parties should be consulted. But there may be a terrorist incident
which may require Cobra immediately to be set up, immediate decisions
have to be made, and I think that one would understand in that
kind of emergency—
Q71 Alun Michael: So it is a graduation
from immediate decisions to ones where if there is perhaps a lack
of decision it might not be absolutely essential it should be
taken but, for instance, the work of a government agency would
be frozen for a period of weeks if decisions are not taken. You
are saying that in that case it is appropriate consultation that
needs to be in place so that the business of government does not
freeze entirely.
Professor Hazell: Indeed. Forgive
me; this is very well written up in Australia and New Zealand
where they have had a caretaker convention in place for at least
15 years or so, and there are very good examples given in the
documentation about how it works, showing the kinds of decisions
that have to be made, that are made; the kinds of decisions that
can be put on hold, the kinds of decisions on which they consult
the opposition parties. It is perfectly workable.
Q72 Alun Michael: Going back to an
issue that you talked about a few minutes ago, about the question
of an inaugural vote: is there not a danger in that, that you
end up with effectively a confidence vote being taken on a name,
an individual, a personality, rather than at the moment the confidence
vote is on the programme—because that is the situation with
the Queen's Speech, you either agree or do not agree the programme.
Is not what you are saying there rather a move to a more presidential
style rather than decision-making which is formally at least focused
very much on the programme of government?
Professor Hazell: The underlying
principle throughout has to be who can command the confidence
of Parliament.
Alun Michael: Yes, but is it not a question
of the confidence of Parliament on a programme that is going to
be taken forward, which is the situation at the moment, rather
than a vote. I say this having experienced the fragility of minority
governments and the importance therefore of being clear that what
Parliament and government exist for is for the taking of decisions,
rather than on a popularity contest, as it were.
Q73 Chairman: If I could add to Mr
Michael's question, there could be a situation in which some members
of a party were prepared to consider the possibility of someone
being Prime Minister but only if certain items were not included
in his programme.
Professor Bogdanor: In this sort
of situation presumably a coalition agreement would be drawn up,
and made public and it would have to be endorsed by the parliamentary
parties concerned.
Chairman: In effect you are saying that
they would withhold their vote from him in this personal, this
inauguration vote unless they had previously agreed what the principal
content of the Queen's Speech was going to be.
Q74 Alun Michael: If I may, that
is the danger I was trying to point to of muddling whether we
are voting on programme or on personalities. It seems to me that
it is quite a fragile suggestion.
Professor Hazell: In terms of
who can command the confidence of Parliament I would suggest that
it is always going to be a blend of the two, and the only reason
for stressing that that is always the underlying principle is
the difficulty sometimes placed upon the Crown is that the Crown
is being asked to divine who can command the confidence of Parliament
after taking certain soundings. If Parliament were able clearly
to declare, "This person commands our confidence; we have
had an Investiture Vote and please, Ma'am, this is the person
we nominate"—
Q75 Alun Michael: With respect, I
understand that side of the argument but I am trying to test out
the other side of the argument. The other side of the argument
is that at the moment whereas the fate of an individual may stand
or fall by the confidence vote in the programme, the Queen's Speech
Vote, that at least makes it clear that we are voting on the purpose
of Parliament, which is to decide on the future programme, the
legislative programme which will be considered by Parliament,
and the government is to take forward a programme of action. Is
it not dangerous to do what I think you are suggesting, which
is to separate merely the choice of an individual from the programme
that is meant to be delivered? The Chairman asked the question
there, the formation of a coalition may depend very much on agreement
on the programme to be pursued.
Peter Riddell: Mr Michael, after
all it is the Prime Minister who forms the government.
Q76 Alun Michael: For a purpose.
Peter Riddell: For a purpose,
absolutely, but it is the Prime Minister who is invited to form
a government—that is how the system works—and who
appoints the members of the Cabinet and so on and so forth; so
it is bound to be through an individual. But in a sense, as Professor
Bogdanor was saying, you would have prior negotiations between
the parties who would say either not that individual or not that
bit of programme, or whatever in order to get the majority.
Q77 Alun Michael: But then is it
not healthy that as at the moment we have a vote on which the
fate of the individual hangs, understood; but it is basically
clarity about a programme to be pursued by the government—
Peter Riddell: I think you perceive
a distinction without a difference. If at the end of the Queen's
Speech debate an amendment is passed and the Prime Minister resigns,
in practical terms the distinction does not apply.
Professor Bogdanor: There might
or might not be a case for changing current arrangements but I
do not think the argument that Professor Hazell used a moment
or two ago, the question of doubt, is likely to be one of them.
In no previous hung Parliament has there been any doubt, and were
there ever to be doubt the Queen could give a particular person
an exploratory commission as she did in different circumstances
with Lord Home in 1963; Lord Home did not kiss hands but was asked
to consider whether he could form a government. This was not a
question of whether he had parliamentary support but whether he
could form a Cabinet. If he had gone back and said, "I am
afraid I cannot" I do not think that would have been regarded
as a humiliation for the Queen. I think in normal circumstances
with a hung Parliament it would be perfectly clear who is likely
to have the support of Parliament if an incumbent Prime Minister
is defeated; the natural course would be to send for the Leader
of the Opposition and to ask him to try and see if he had the
support of Parliament. Then it would be up to him either to negotiate
an arrangement with other parties or to test the water in Parliament.
And for the reasons given by Lord Butler in the previous session,
people would not welcome a rapid second election; I think many
of the smaller parties who hold the balance would not welcome
it either because they tend to be weaker financially than the
larger parties. So I suspect that the extent to which there is
likely to be doubt is vastly exaggerated.
Chairman: I am rather anxious, particularly
because one of the purposes of this session is to increase clarity,
that we do not spend too long on something that quite clearly
is not going to happen in this timescale: namely, that Parliament
changes its procedures in the manner that some have suggested,
but to get back to what we do know is going to be in place and
indeed what preparations might be made for this circumstance possibly
arising, because those things are happening, and we know from
the Cabinet Office draft chapter that that is so. With that warning,
can I turn first to Dr Alan Whitehead?
Q78 Dr Whitehead: I wonder to some
extent whether there really is the clarity that Professor Bogdanor
has suggested normally applies, even in the case of a hung Parliament.
For example, in the February 1974 election there appeared to be
early clarity about a Labour majority; overnight results and further
developments suggested that that was not the case. The incumbent
Prime Minister was holding fast in office at that time. Subsequently,
a number of Ulster Unionists declared that they should have been
counted in the Conservative camp, therefore giving the Conservatives
the position of the larger party than Labour. Matters changed
on a day by day basis. Under those circumstances at what point
would the Sovereign be advised to say, "Actually, the Leader
of the Opposition ought to be called in to form a government"?
And bearing in mind what we have said about the position of the
caretaker government and the role of the incumbent Prime Minister,
at what point does the Sovereign effectively say, "The game
is up; I am going to call on the Leader of the Opposition to come
along and try and form a government"?
Professor Bogdanor: That is a
very fundamental point, if I may say so. I think there is a great
gap between public perceptions and the constitutional rules. I
can cite the example that you gave of 1974. I believe the public
took the fairly straightforward view that Edward Heath had lost
the election. He had enjoyed a majority, he called an election
and he had lost that majority; but the constitutional position,
as we have seen, is that he was entitled to meet Parliament either
as a minority party or with arrangements with other parties. There
was certainly some feeling—perhaps not very strong—that
the Queen ought to intervene, that the Queen ought to do something,
but it was not the Queen's role to intervene; it is for Parliament
to decide and the Queen then to endorse. I think that this difference
in public perception is one important reason to publish the Cabinet
Manual. I think that the public do have a right to know what the
position is. Someone once defined democracy as "government
by explanation" and I believe there has been insufficient
explanation. I believe there is a further area where there is
a difference between public perception and the constitutional
position, because if a coalition were agreed in a hung Parliament
situation—suppose in 1974 there had in fact been a coalition
between the Conservatives and the Liberals-one could imagine many
voters, perhaps some who had voted Liberal saying, "I was
not myself in favour of such a coalition and had I known that
the Liberals would form a coalition with the Conservatives I might
have voted rather differently." If there is to be a coalition,
this should be signalled clearly before the election and not after
the votes have been counted to keep an incumbent government in
power. So I think that there is a great divergence. The public
believe that it is they the public who choose the government.
That of course is normally the case. In a hung Parliament situation
the public do not unequivocally choose the government, it is Parliament
that chooses the government and I think that this can raise considerable
tensions, which needs to be resolved.
Peter Riddell: In that case of
course the Liberal Party did not do a deal, and with my journalist
hat I was actually covering Jeremy Thorpe, the Leader at the time,
and I remember exactly that weekend very clearly. So the political
realities intervened. The key distinction is between clarity about
the constitutional process, that people do not think it is unfair,
and the political realities, which in most cases, as Lord Turnbull
said earlier, are going to mean that the process will be completed
quite quickly. They only took a weekend. I think if they had had
mobile phones then they would probably have had it a day earlier.
The difficulty was that they could not get in touch with people
a lot of the time in 1974. In most cases it will happen quite
quickly because the political dynamics will come in. But the need
is for people to understand what the process is behind that. That
is why I think that all three of us are totally agreed on the
need for public clarity before the campaign starts.
Q79 Dr Whitehead: The draft Cabinet
document that we have mentioned states that if the Prime Minister
and government resign at any stage, in particular the person who
appears to be most likely to command the confidence of the House—most
likely to command the confidence of the House, and not tested
at that stage—will be asked by the Monarch to form a government.
Jeremy Thorpe, as it happens in 1974, I think tramped over three
fields in order to secretly get to Westminster to discuss a deal.
Peter Riddell: He was being chased
by people like me at the time!
Q80 Dr Whitehead: Indeed, yes. But
the suggestion in the Cabinet paper is indeed, as it were, the
Monarch, upon the resignation of the government, assuming the
incumbent Prime Minister then resigns, has to divine to some extent
which way the wind is blowing and what the various forces are,
prior to Parliament having assembled to make its own decision.
Professor Bogdanor: That is a
misleading suggestion, if I may say so. I take your argument,
Dr Whitehead, and I think the Cabinet paper is unclear on this
point is unclear. In those circumstances that you have defined
the Queen would naturally call for the Leader of the Opposition.
I think the only circumstances in which she would not is if two
or perhaps more parties had signed a coalition agreement which
had been endorsed by their parliamentary parties and which showed
that they could command a majority in Parliament under some alternative
leader—it is highly unlikely but it could happen—and
if there was absolutely cast-iron evidence that such a government
could survive not just a vote on the Queen's Speech but for a
longer period. Then the Queen might be justified in not calling
for the Leader of the Opposition. But it would need to be not
the Queen divining but absolutely solid evidence—not just
a hope. One saw that in Canada in 1926, a famous precedent where
it seemed that there was an agreement but it collapsed within
four days. In normal circumstances the Queen would call the Leader
of the Opposition and the Leader of the Opposition would then
test his strength in Parliament.
Q81 Dr Whitehead: I think you would
agree that solid evidence could, for example, be that actually
the opposition parties would probably support the formation of
a government but not with the present, shall we say, cast or the
head of that particular party continuing to be the Prime Minister
or leading Cabinet members. That is a process of saying, "We
will put you in power if we can have some role in the selection
of who it is actually heading up that Government." There
could be quite firm evidence that that was the case. Would that
come within the guideline?
Professor Bogdanor: That would
be for the politicians to sort out. This was suggested in 1974.
It was said by some that possibly the Liberals might support a
Conservative Government led not by Edward Heath but by, shall
we say, William Whitelaw. That is then for the politicians to
sort out. Presumably under current circumstances where there is
a long procedure for leadership elections, which include the parties
outside Parliament, the current Prime Minister would meet Parliament
and seek a vote of confidence but give a promise that he would
resign as Party Leader; he would institute the procedure for electing
a new Leader, which could take three or four weeks, and after
that, he would resign as Prime Minister. Then it would be for
the other parties to consider whether to support the incumbent
on that basis. The Queen would not be involved; it would be Parliament
that decides.
Q82 Chairman: There are one or two
things I want to make sure we cover. I want to test another aspect
of the 1974 scenario, which is of course that between February
and October 1974 it was possible for a government to take over
and so to organise national affairs that it gave itself the best
chance of acquiring a majority at an election in a matter of only
six months' time. Is it incumbent on the Sovereign to grant a
dissolution in circumstances like that, or is it politically more
difficult—or perhaps economically more difficult, given
our present economic situation—for such a thing to happen
now?
Professor Bogdanor: There has
been no refusal of a dissolution by the Queen in the 19th or 20th
centuries and in the Parliament of 1974 it was already clear because
of the rejection of the arrangement between the Conservatives
and the Liberals that an alternative government was almost certainly
not viable in that particular Parliament. There have been one
or two occasions in Commonwealth countries where dissolutions
have been refused and they were in two circumstances. Firstly,
where a Prime Minister had lost the authority to seek a dissolution—that
happened in South Africa in 1939 when a Prime Minister who had
lost the support of his Cabinet and of Parliament sought a dissolution.
The second situation would be the one I outlined earlier, where
there was absolutely cast-iron evidence that an alternative government
could survive in the House of Commons for some period of time,
and that today would have to be in the form of a written coalition
agreement endorsed by the parliamentary parties concerned.
Q83 Chairman: So are you saying that
the only restraint on that course of action being followed, that
is to say a government taking power with a minority, in circumstances
where the other parties did not want another election, cutting
taxes, spending money in order to try and create a favourable
atmosphere and then having an election in a few months' time,
in those circumstances they are only restrained by how the public
would perceive such actions they were in now.
Professor Hazell: Chairman, I
think that that political self-correcting mechanism is hugely
important. As Professor Bogdanor has already said, most of the
political parties cannot readily afford a second election—possibly
all of them—and if a minority government were to call a
second election hard on the heels of an earlier General Election,
for which the electorate did not wholly see the point, then they
would be likely to be punished at the polls. So I think that those
political correcting mechanisms are as important a safeguard as
the constitutional rules.
Peter Riddell: Could I add one
point? The suggestion which the Prime Minister made for a formal
vote on dissolution would cover a lot of those issues in a sort
of minority administration, say, as there was between February
and October 1974. If all the other parties are combined and if
you had had a dissolution vote to vote against a dissolution,
even if the Prime Minister had sought one, that would have been
a discipline in those circumstances. I mean, there is merit in
that suggestion, even though it has not been pursued, which would
act as a discipline against that happening. But I think in practice
the conventional dissolution, as Professor Bogdanor has rightly
said, has never been refused. There is a clear understanding that
a Prime Minister, a party that has lost the majority cannot ask
for a second election, and that is quite explicit in the manual,
and I think that is right. Beyond that I think that it is very
difficult to write anything down. However, having a formal dissolution
vote in the Commons might well be a safeguard.
Professor Bogdanor: Chairman,
in the circumstance you outlined, if the other parties do not
want a dissolution it is for them to make public through an agreement,
endorsed by their parliamentary parties, that they are prepared
to act together to allow the current Parliament to be viable for
a period of time. That would be the clear public test; the Queen
ought not to be asked to make a decision to refuse a dissolution
on anything less than that.
Chairman: We have just a few minutes
before we have an interesting session to find out what preparations
are actually being made. Could I ask Rosie Cooper to cover some
points that she covered in the earlier session about the role
of the Civil Service if you do have a coalition government.
Q84 Rosie Cooper: Essentially I am
sure you remember the question, which was how the obligations
and how the Civil Service function in a coalition government and
how they serve ministers of different parties.
Professor Hazell: Perhaps I could
answer as a former civil servant. The Civil Service will continue
loyally to serve the government of the day, whether it is a majority
government, minority government, coalition government or any variation
on those. There are again encouraging models of good practice,
particularly from New Zealand, about how the Civil Service can
respond to minority governments, minority governments that include
ministers who are outside Cabinet, and who were not in their case
even bound by collective responsibility, and the Civil Service
is able to adapt and serve their ministers and the government
as a whole very effectively. I do not think that we should get
unduly alarmed about the different demands place on the Civil
Service, as long, again, as the rules are clear—and this
is a chapter of the Cabinet manual perhaps yet to be drafted—I
am sure that the Civil Service will be able to serve the government
very effectively.
Peter Riddell: And look at Scotland.
Even within the UK Scotland moved from the Scottish Office being
part of the UK administration—it was still a unified Civil
Service in theory probably more than practice—and the culture
of the new Scottish Executive has adapted precisely that. We now
have a minority administration of course rather than a coalition,
but for eight years of the coalition they adapted. It does involve
differences of behaviour, differences in behaviour, differences
in culture but it can happen. In many respects it is very interesting—and
when I was doing my transition project, talking to people in the
Scottish Executive—how actually quite straightforward it
was to adapt.
Q85 Rosie Cooper: Just a quick one,
talking about the Cabinet Office and Number 10. I asked the question
before and there is a textbook answer to it, but do you see any
tensions there in how a civil servant will handle Number 10 and
the Cabinet?
Professor Hazell: There are always
tensions at the centre of government because the centre of government
is always a very busy place and sometimes a frenzied place. Again,
I think that we wait to see the draft chapter of the Cabinet manual,
which will set out very clearly the rules; the rules are already
clear in the Civil Service Code and the Ministerial Code, and
at most times they are followed. Going back to an earlier question
about whether any of this is justiciable I beg to disagree slightly.
I do not think that the Codes or, in particular, the new Cabinet
manual will be or should be justiciable. We have not seen the
introduction to the Cabinet manual but I expect it to contain
a clear statement that this is guidance and if these issues ever
came before the courts I would be very surprised if the courts
were willing to rule on them.
Professor Bogdanor: I hope these
matters would not be not justiciable. With a coalition, there
would be a need for some machinery to resolve disputes, disagreements
or conflicts between the parties involved. That would be a matter
for the Party Leaders to work out with the Civil Service. There
was, I think, such machinery in the case, not of a coalition,
but the Lib-Lab pact in 1977 to 1978 because if one has such an
arrangement, then in addition to the normal conflicts in Cabinet
government between one minister and another there may be inter-party
conflicts between the parties forming the coalition.
Q86 Chairman: You could say that
that machinery existed to resolve conflict because it was not
a coalition and therefore matters did not go to the Cabinet in
which both of the parties were represented. But it does lead into
a point on which Professor Hazell has done quite a lot of work,
which is the issue of whether when you have discussions about
a potential coalition; or, if you have an agreement between parties,
there is a role for the Civil Service in supporting the other
parties which are partners in that process. If you go back to
the Lib-Lab pact that was in the form of one Civil Service, but
whether there is actually a greater role that needs to be played
in the interest of good government in helping to manage, not politically
but in terms of carrying out government, these sorts of negotiations
or relationships.
Professor Hazell: Very briefly,
if I may, I think it is helpful to break that down into two stages.
First, immediately after an election if the outcome is not clear
and there are then negotiations between the political parties
as to who can command confidence in the new Parliament, and the
parties want advice from the Civil Service about aspects of their
policy programmes in terms of their feasibility or their costing,
or whatever, then I think they should be entitled to approach
the Cabinet Secretary and seek that advice and, as the draft chapter
indicates, he would then seek the consent of the Prime Minister
to supply civil servants to offer that advice, and I hope that
the Prime Minister in those circumstances would generally agree.
Coming to a situation where perhaps a minority government is in
office and it is supported by one or more minor parties, those
minor parties might be small—they might be very small indeed—and
they might therefore have very little policy capacity to advise
them on what could be crucial issues leading to crucial votes,
and in those circumstances I think it is highly desirable for
them to be given more policy capacity than is available currently
through the Rules in this house known as Short Money, and to cut
through any difficulties in this House about giving disproportionate
support to a small party I would like to see the Civil Service
loaning people on secondment to that minor party or parties who
are supporting the government.
Peter Riddell: Also if you look
at the Scottish experience, in 2007 Sir John Elvidge, the Permanent
Secretary there, made preparations for after the election—crucially
after the election—to second civil servants originally
with the idea of potential coalition partners and that they would
be involved in advising purely to get the processes working, and
indeed temporarily I think somewhere involved were the Greens
because there was a suggestion of the Greens being involved with
the SNP, but that process had been considered and looked at in
Scotland where they would be in the coalition forming process
actually temporarily seconded to work with the Opposition parties.
Chairman: Thank you very much indeed.
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