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. 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",
and the Institute for Government wrote that "[media] pressure
was markedly less than many had feared".
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.
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
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".
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".
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".
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
Hon David Laws MP, a member of the Liberal Democrat coalition
negotiating team, explained the background to this statement as
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.
13. This appears to contradict the traditional constitutional
convention, and "may have misled people into thinking that
he was asserting constitutional doctrine".
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.
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.
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
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".
The last Prime Minister to exercise his right to meet the new
Parliament and be defeated was Stanley Baldwin in 1924.
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
19. In May 2010, Gordon Brown was under conflicting
sets of pressure in what Professor Blackburn calls a "constitutional
bind". 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".
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".
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'".
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.
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
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.
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.
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".
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".
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".
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".
The Institute for Government argued in their written evidence
for the introduction of an investiture vote.
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.
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?" and
Oliver Letwin suggesting that it would be unlikely to be "transformingly
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.
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".
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.
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
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
9 Q 81. See also Q1and Ev 67 [Constitution Unit]. Back
Q 130 Back
Ev 66. See also Q 159. Back
Ev 67 Back
Ev w4 Professor Robert Blackburn at para15 Back
Cabinet Office, Cabinet Manual Chapter 6 [draft], published
with HC 396 (2009-10) Back
Cabinet Office, The Cabinet Manual - Draft, December 2010,
para 48, available online at http://www.cabinetoffice.gov.uk/resource-library/cabinet-manual Back
Ev 70 [Constitution Unit] Back
Q 11 Back
Ev 70 [Constitution Unit] Back
Cabinet Office, The Cabinet Manual - Draft, December 2010,
page 26 Back
Ev w5 Back
Q 66 Back
Ev 70 Back
Ev 64 Back
Ev w6 Back
Ev w7 Back
Q 23 Back
Ev w7 Back
Ev 70 Back
Ev 66 Back
Cabinet Office, The Cabinet Manual - Draft, December 2010 Back
As above Back
'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
Ev 67 Back
Q 89, Q 90 Back
Ev 67 Back
Ev 67 [Institute for Government]; Ev 72 [Constitution Unit]. Back
Q 223 Back
Q 90 Back
Ev 67 Back
Parliamentary Oaths Act 1866 Back
Ev 73 [Constitution Unit] Back