Lessons from the process of Government formation after the 2010 General Election - Political and Constitutional Reform Committee Contents

2 Constitutional Rules and Conventions

6. Government formation takes place within a constitutional framework which is largely unwritten and based on precedent.

7. We have heard that following the May 2010 general election, constitutional processes were broadly clear and worked well.[9] On the whole, the media demonstrated a better level of understanding of constitutional processes than some had feared. There was no evidence of panic by the public or the financial markets. Dr Ruth Fox, Director of Parliament and Government at the Hansard Society, told us that "the markets didn't have much of a response to what was happening",[10] and the Institute for Government wrote that "[media] pressure was markedly less than many had feared".[11] This is to the credit of those organisations, including the Hansard Society, the Constitution Unit at University College London and the Institute for Government, which worked in the run up to the election to increase public and media understanding of what would happen if there was a hung Parliament.

8. The draft Cabinet Manual chapter was a crucial explanatory document for academics and the media.[12] However, this chapter and the revised chapter on Elections and Government Formation in the December 2010 Cabinet Manual are not entirely unproblematic, and in this chapter we address aspects of the rules and conventions around government formation which in our view require further attention.

The First Opportunity to Form a Government

9. The question of who has the first opportunity to form a government is subject to differing views. The traditional position is that "the constitutional conventions on government formation (including in situations of a hung Parliament) were and are, firstly, that the incumbent Prime Minister has the first opportunity to continue in office and form an administration".[13]

10. The draft Cabinet Manual chapter states that "An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons".[14] The December 2010 Cabinet Manual adds the phrase "but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative".[15]

11. During the election campaign and immediately after the election, Rt Hon Nick Clegg MP, the leader of the Liberal Democrat party, expressed a view on the circumstances in which he and his party would support an attempt to form a government.

12. In a television interview, Nick Clegg stated this conclusion as "whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own or by reaching out to other parties".[16] Rt Hon David Laws MP, a member of the Liberal Democrat coalition negotiating team, explained the background to this statement as follows:

What Nick had said during the general election campaign is that, whichever party had the largest number of seats and votes—we assumed that it would be the same, but obviously it could have been different—we would talk to them first, because we thought it would look very odd to the public if we went into talks first with the party that had just appeared to have lost power.[17]

13. This appears to contradict the traditional constitutional convention, and "may have misled people into thinking that he was asserting constitutional doctrine".[18] Nick Clegg's comment is also included as a footnote to the December 2010 Cabinet Manual which may suggest that it has set a precedent for future elections where there is no overall majority.[19]

14. Both the constitutional convention and Nick Clegg are right in different ways. The constitutional right need not be reflected in the political reality of a political party's choice of negotiating partner. Professor Robert Blackburn, Director of the Centre for Political and Constitutional Studies, King's College London, states this clearly in his written evidence:

An important distinction to be drawn in interpreting the constitutional conventions on hung Parliaments is to realise that the right of an incumbent Prime Minister to remain in office and attempt to form a working Commons majority with others outside his party, does not mean or translate into a constitutional obligation upon third parties to do a deal with the incumbent Prime Minister or even to enter into any negotiations with him and his party.[20]

15. The December 2010 Cabinet Manual provided greater clarity on the extent to which an incumbent government has a right to stay in office to see whether it can command the confidence of the House of Commons. However, the inclusion of the comments made in May 2010 by the Leader of the Liberal Democrat party may suggest that this view will carry weight in future.

When should a Prime Minister resign?

16. Closely linked to the question of who has the first right to form a government is the question of when an incumbent Prime Minister should resign once it becomes clear that his position is unsustainable.

17. As discussed above, in the event of a hung Parliament, an incumbent Prime Minister (and government) has a right to remain in office to see whether or not he can form a government which commands the confidence of the House of Commons. There is precedent for this as in 1974, the last time that there was a hung Parliament, the incumbent Prime Minister Edward Heath remained in office for four days after the general election "because he wished to ascertain whether there was any reasonable prospect of him being able to command a majority in the House of Commons before deciding whether or not to resign".[21] The last Prime Minister to exercise his right to meet the new Parliament and be defeated was Stanley Baldwin in 1924.[22]

18. Distinct from this is the duty of the Prime Minister to ensure that the Monarch is not without an advisor, and therefore to remain in office until the identity of his successor is clear. Under current constitutional conventions, the Prime Minister does not have a duty to remain in office until the nature of the next government is clear or until the next government is ready to take office, only until a successor as Prime Minister can be found. Evidence from the Hansard Society states that

The incumbent Prime Minister had a constitutional obligation to stay in Downing Street until such time as the political position was clear as to who could form a government... Our constitutional system does not provide for a formal period of transition and therefore political clarity takes precedence over subjective perceptions of readiness.[23]

19. In May 2010, Gordon Brown was under conflicting sets of pressure in what Professor Blackburn calls a "constitutional bind".[24] It seems that "the Cabinet Office, and Buckingham Palace officials taking their lead from the civil servants, were putting him under some pressure to remain in post until the next day or even longer".[25]

20. Since the election Gordon Brown has been criticised for resigning prematurely. For example, David Laws said in oral evidence that "he ... eventually lost patience a few hours before it would have been ideal".[26] The Deputy Prime Minister said in a television interview following the election that he "thought it was not the right way of going about things" for him "suddenly to be told out of the blue the Prime Minister was going to ... march off to Downing Street and say, 'I'm fed up with this. You know I'm going to throw the towel in and I'm going to... march off into the distant horizon'".[27]

21. However, Gordon Brown was also facing media accusations that he was a "squatter" in Downing Street, creating pressure for him to resign earlier than he did.[28]

22. Gordon Brown resigned at a constitutionally appropriate time. He did not have a constitutional obligation to remain in office for longer, nor to resign sooner.

23. This is because, as the Institute for Government explain:

He left at the point when it had become evident that he could not remain in power, and that David Cameron was the only political leader able to form a government that could command confidence in the House of Commons, although it remained uncertain whether that might be through minority government with 'supply and confidence' support from other parties or formal coalition.[29]

24. The December 2010 Cabinet Manual states that

The incumbent Prime Minister is not expected to resign until it is clear that there is someone else who should be asked to form a government because they are better placed to command the confidence of the House of Commons and that information has been communicated to the Sovereign.[30]

25. The December 2010 Cabinet Manual also states that "The Government... is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative".[31]

26. The December 2010 Cabinet Manual goes some way to clarifying this issue. However, it is interesting that following its publication, media commentators have interpreted the Manual as suggesting that "the situation whereby the losing prime minister can force the formation of a new government by offering his or her resignation before a coalition is fully formed should not occur again" and that "this is designed to prevent the power vacuum that existed when Gordon Brown suddenly gave up and quit".[32] This is not how the passages quoted above read to us, but it indicates that it would be helpful if the Cabinet Manual were more explicit on this point. Greater clarity could also be brought to the distinction between the right of a Prime Minister to continue in office to face a confidence vote in the House of Commons, the duty of the Prime Minister to ensure that the Sovereign is not without an advisor, and the obligation upon the Prime Minister to resign when it is clear that someone else is better placed to command the confidence of the House of Commons.

27. There needs to be clear and well-understood published guidance about when an incumbent Prime Minister should resign and when he has a duty to remain in office, in particular whether this extends to a duty to remain in office until there is clarity as to the form of an alternative Government, as opposed to simply the name of an alternative Prime Minister. Reaction to the events of May 2010 suggests that more detailed guidance was needed then. Reaction to the revised text in the December 2010 Cabinet Manual suggests that it may not go far enough.

Appointment of the Prime Minister

28. Currently, when a Prime Minister resigns, he or she advises the Queen on whom she should appoint as the next Prime Minister. The established convention seems to be that the Monarch is not obliged to take the advice of the outgoing Prime Minister, and may take advice from other sources, although if the resignation of a Prime Minister follows a general election in which another party has won a single majority in the Commons, there will be in practice no question about who should become the new Prime Minister. This person is then asked by the Monarch to form a government. An alternative to this arrangement would be to introduce an investiture vote.

29. An investiture vote has been described by the Institute for Government as "a formal vote among MPs on who should be invited to form the new government".[33] With an investiture vote, while the ultimate power to appoint the Prime Minister would remain with the Monarch, the power to propose a name would move from the incumbent Prime Minister to the House of Commons. By way of a parallel, section 46 of the Scotland Act provides for the Scottish Parliament to nominate one of its members for appointment by the Queen as First Minister.

30. There are arguments for and against introducing an investiture vote in the UK.

31. At present, there is no transparent link between the results of a general election and the formation of a government. A general election returns a House of Commons, and a Prime Minister can only govern if he can command the confidence of the House. But the Queen chooses a Prime Minister after a general election on the basis of how her advisers think the newly elected House will vote, without asking the House first. This is partly a matter of history, partly to allow a Government to begin work without waiting for the House to meet, and partly because the results of elections are often clear. Currently the first test of whether a government and its Prime Minister can command the confidence of the House after a general election is towards the end of the debate on the Queen's speech. Rt Hon Oliver Letwin MP, a member of the Conservative coalition negotiating team, now Minister of State in the Cabinet Office gave the opinion that he considered it to be a "thinkable arrangement".[34] The Institute for Government argued in their written evidence for the introduction of an investiture vote.[35] It has been argued to us that an investiture vote would be more comprehensible to the general public, and would demonstrate that the government has the confidence of the Parliament that the people have just democratically elected.[36]

32. Government witnesses, however, questioned the added value that an investiture vote would bring, the Cabinet Secretary commenting that "it's a question about what does it add?"[37] and Oliver Letwin suggesting that it would be unlikely to be "transformingly different".[38] An investiture vote would certainly seem to have more obvious value following a general election that has produced a hung Parliament, yet most elections since the Second World War have resulted in a clear single-party majority.

33. It has been put to us that an investiture vote would also reduce the risk of the Monarch being drawn into the political process of determining who is best placed to form a government following an election producing a hung Parliament.[39] While all efforts are currently made to prevent the Monarch being drawn into the process, under the current constitutional conventions a risk remains that a monarch could appear to have intervened if someone was asked to form a government who was subsequently shown not to enjoy the confidence of the House of Commons.

34. It is obvious that an investiture vote would need to take place quickly. It is equally obvious that it could not take place quickly enough to keep step with recent changes of government, even that in 2010. Parliament does not normally meet until the Wednesday following a Thursday election. Members may not sit or vote in the House before taking the Parliamentary oath, other than to elect a Speaker. The statutory penalty for any Member who attempts to do so is that "his seat shall be vacated in the same manner as if he were dead".[40] The first sitting day is reserved for the election of the Speaker; three sitting days are then normally set aside for the oath to be taken. Altogether, this means that if current practice were continued, the first opportunity that the House would have to hold an investiture vote would be nearly two weeks after the election.[41] Even if this timetable were to be compressed, an investiture vote would cause some delay in any transition between administrations. There are arguments for and against such a delay, but it would certainly be a change in practice that goes against current political expectations.

35. There are arguments both for and against the idea of an investiture vote after a general election in which the House of Commons would choose a Prime Minister before he or she was appointed by the Monarch. It is an idea that we may wish to consider further in future.

9   Q 81. See also Q1and Ev 67 [Constitution Unit]. Back

10   Q 130 Back

11   Ev 66. See also Q 159.  Back

12   Ev 67 Back

13   Ev w4 Professor Robert Blackburn at para15 Back

14   Cabinet Office, Cabinet Manual Chapter 6 [draft], published with HC 396 (2009-10) Back

15   Cabinet Office, The Cabinet Manual - Draft, December 2010, para 48, available online at http://www.cabinetoffice.gov.uk/resource-library/cabinet-manual Back

16   Ev 70 [Constitution Unit] Back

17   Q 11 Back

18   Ev 70 [Constitution Unit] Back

19   Cabinet Office, The Cabinet Manual - Draft, December 2010, page 26 Back

20   Ev w5 Back

21   Q 66 Back

22   Ev 70 Back

23   Ev 64 Back

24   Ev w6 Back

25   Ev w7 Back

26   Q 23 Back

27   Ev w7 Back

28   Ev 70 Back

29   Ev 66 Back

30   Cabinet Office, The Cabinet Manual - Draft, December 2010 Back

31   As above Back

32   'Civil service rewrites conventions on when PM should resign in hung parliament', The Guardian, 14 December 2010; 'The Cabinet Manual - No more Gordo-style quitting or squatting?', PoliticsHome,14 December 2010 Back

33   Ev 67 Back

34   Q 89, Q 90 Back

35   Ev 67 Back

36   Ev 67 [Institute for Government]; Ev 72 [Constitution Unit]. Back

37   Q 223 Back

38   Q 90 Back

39   Ev 67 Back

40   Parliamentary Oaths Act 1866 Back

41   Ev 73 [Constitution Unit] Back

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