Constitutional processes following a general election - Justice Committee Contents

Examination of Witnesses (Questions 59-86)


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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