Constitutional implications of coalition government - Constitution Committee Contents


CHAPTER 2: GOVERNMENT FORMATION

9.  In recent decades there has been an expectation that any change of government after a UK general election will be rapid, with a new prime minister in place on the day after polling day—the "removal van" attitude to Westminster elections.[5] In 2010 it took five days before a new prime minister was appointed at the head of a coalition government.

10.  In reality there were only two immediate transitions between governments of different parties since the last hung parliament in February 1974. While Margaret Thatcher in 1979 and Tony Blair in 1997 formed majority governments immediately after the election, it took four days after the February 1974 poll before Harold Wilson replaced Edward Heath at 10 Downing Street, after it became clear that Heath could not enter into an arrangement with the Liberal party which would have enabled him to command a majority in the House of Commons. In an earlier era, Stanley Baldwin did not resign after the 1923 election until it was clear that Labour could command a majority with Liberal support, and the Conservatives could not. More recently, devolved elections in Wales and Scotland have returned coalition governments that have been the result of days, weeks or even months of negotiations—albeit in a system based on proportional representation and without the pressures facing national Governments.

11.  A hung parliament need not result in a coalition. Harold Wilson led a minority government between the February and October 1974 elections, and the Scottish National Party formed a minority government after the 2007 election in Scotland, replacing a coalition government. There are also examples of governments losing their majorities and governing in a minority. Whether the apparent assumption before 2010 that minority governments would result from hung parliaments at Westminster has been replaced by a new assumption that coalition governments will be formed cannot be known until the situation occurs in future.[6] Among our witnesses, Lord Donoughue was alone in advocating minority government over coalition.[7] If the decision over whether to form a coalition or a minority administration arises in future, it is likely that parliamentary arithmetic and circumstances will influence actions more than precedents.

12.  This chapter deals with issues that arise in the formation of a government after an election that produces a hung parliament. This process should be thought of as government-formation, rather than coalition-negotiation—a coalition is merely one of a range of possible outcomes. The possibility of inconclusive polls and the need for negotiations mean that the roles, duties and responsibilities of those involved—including the political parties, the incumbent prime minister, the civil service and the monarch—need to be carefully considered. Context is important: there are restrictions on the time available to form a government—arising from, for example, international developments and reactions in financial markets—and on the length of the Parliament.

Fixed-term Parliaments and government-formation

13.  For the purposes of this report the most significant constitutional change under the current Government has been the Fixed-term Parliaments Act 2011. This Act removed the power of the Prime Minister to advise on an early dissolution of Parliament, instead setting the date for future general elections as the first Thursday in May every five years.[8] During the negotiations following the 2010 election, the proposal to introduce fixed-term parliaments formed an important part of the proposed agreements between the Liberal Democrats and each of the other parties. Cheryl Gillan MP, Secretary of State for Wales from 2010-12, referred to the agreement over fixed-term parliaments as "the scaffolding for the coalition-building".[9] David Laws MP, one of the Liberal Democrat negotiators in 2010, told us that it gave "both sides assurance that this was an enterprise that was going to last the period of time and one side would not suddenly pull the rug out from under the other after a short period."[10]

14.  Constitutional reforms should not bias government-formation in any particular direction: towards minority, coalition, confidence and supply, or any other arrangement. Some of our witnesses were concerned that coalition should not be treated as the default or preferred option.[11] Given the importance of the agreement to a fixed-term Parliament in the formation of the current Government, a question arises as to whether it might steer any future post-election negotiations towards a coalition.

15.  Lord Adonis, one of Labour's negotiators in 2010, felt that it would not:

    "At the point of the formation of a government after the next election, those political options will still be completely open. They will be completely open because, if a leader of the largest party wished to form a minority government, they would be within their rights to do so and would not be able to compel the Liberal Democrats, if they were the party holding the balance, to go into government with them. This would be an entirely political judgment, which would not, in any way, as I see it, be affected by the Fixed-term Parliaments Act."[12]

16.  However, the Fixed-term Parliaments Act 2011 could affect the calculations made by a potential governing party. It significantly reduces the capacity of a Prime Minister in a coalition to call an early election at a point which suits his or her party (but which may not suit another party in the coalition). It also reduces the opportunity for a minority government to call a new election within a few months in an attempt to gain a majority in the House of Commons, as happened in 1974. This may affect government-formation negotiations by prompting parties to seek alternatives to forming a minority administration.

17.  Oliver Letwin MP, one of the Conservative negotiators in 2010 and now Minister for Government Policy, told us that one of the key advantages of having a fixed-term Parliament was that it allowed governments to plan for five years, and therefore to think long term.[13] On the other hand, Lord Falconer of Thoroton, the Opposition Spokesman on Constitutional Affairs and Adviser on Planning and Transition into Government, said:

    "I would seek to change the Fixed-term Parliaments Act for two reasons. Five years is too long; the natural rhythm of our electoral system is four years, with the ability to extend. Secondly, it is too rigid. There should be much greater flexibility about when there are elections."[14]

Time for government formation

18.  The five days taken to form a coalition in 2010 were quick by the standards of multi-party government formation in other European countries.[15] While the coalition's full Programme for government was not published until two weeks after the election, broad agreement on policy and the structure of the government was reached within those five days.

19.  Our witnesses were grateful to the then Cabinet Secretary (now Lord O'Donnell) for his work in preparing the Cabinet Manual and briefing the press about the potential for a period of negotiations following polling day.[16] However, many felt that five days was too short a period and that there was undue pressure, particularly from the media and speculation about the reaction of financial markets, to resolve the shape of the next government immediately. Lord Adonis told the committee that the negotiators "felt under massive pressure to get everything done PDQ".[17]

20.  Oliver Letwin MP was the only witness to suggest that the time taken should be shorter than the five days taken in 2010. He said that parties would have just spent an election campaign scrutinising other parties' programmes, and that no more information would emerge about each party's policy positions during longer negotiations.[18]

21.  It would not be appropriate for a period for post-election negotiations to be prescribed by convention, let alone by statute. The length of time taken will depend on the number of seats won by each party in the Commons, the number of administrations that are potentially viable, and relevant political, social, economic or other circumstances. Many witnesses thought it should be made clearer to the parties, the media and the public that it may take time to form a government after a hung parliament. This should be an easier task at the next general election than before the 2010 poll. That said, there may be an expectation, which would be unfounded, that five days is the length of time allowed and that a longer period is undue or unconstitutional.

22.  Five days should not be taken as a template period for government formation. Governments should be formed as promptly as possible; no more or less time should be taken than is required to produce a government able to command the confidence of the House of Commons. It is important that the public and, particularly, the media are better informed about this matter.

23.  The first date by which it becomes constitutionally significant whether a government has or has not been formed is the debate on the Queen's Speech. It is at this point that it is determined whether a government has the confidence of the House of Commons; if it does not, a different administration must be formed or a new election held.

24.  Although there must be a government in time to draw up the first Queen's Speech, that does not mean that the same government will continue in power for the rest of the Parliament, nor even the rest of the session. What is required is simply that the Queen's Speech is approved by the House of Commons. It could be that at the time parties are still negotiating and so agree to support a short Queen's Speech while the negotiations continue. It would be possible for those parties, a different combination of parties or a single party to form a government later. If no government appeared likely to be formed by the time of the Queen's Speech, the first meeting of Parliament could be postponed by a proclamation by the monarch.[19]

25.  Even firm deadlines do not remove the potential for ongoing coalition negotiations. The National Assembly for Wales is required to nominate a First Minister within 28 days of an election. Following the 2007 poll, Rhodri Morgan was nominated as First Minister while negotiations for a coalition not including Mr Morgan's Labour party were ongoing; the coalition that eventually took office comprised Labour and Plaid Cymru. This course of events does not appear to have caused any constitutional problems in Wales.

26.  The date of the first meeting of Parliament after a general election has varied in recent decades. Following a recommendation by the House of Commons Modernisation Committee in 2007,[20] the period between election day and the first meeting of Parliament was extended from six days in 2005 to 12 days in 2010.[21] In a hung parliament, this longer period would allow more time for government formation. We recommend that a 12-day gap between a general election and the first meeting of a new Parliament should be the preferred choice following future general elections.

The role of the incumbent Prime Minister

27.  In February 2010 the Cabinet Office produced a draft chapter of the Cabinet Manual on elections and government formation, which was scrutinised by the House of Commons Justice Committee.[22] A full draft Manual was published in December 2010, incorporating a revised version of that chapter, and the final version was published in October 2011. In our report on the December 2010 draft Cabinet Manual we recommended that the Manual should distinguish between the right of the Prime Minister to remain in office until a successor is named and the duty to do so, and that it should note that there is uncertainty about this duty.[23] Changes were made to the final Cabinet Manual to reflect these points. The relevant section now reads:

    "2.8 Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

    2.9 ... the incumbent Prime Minister ... at the time of his or her resignation may also be asked by the Sovereign for a recommendation on who can best command the confidence of the House of Commons in his or her place.

    2.10 The application of these principles depends on the specific circumstances and it remains a matter for the Prime Minister, as the Sovereign's principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.

    2.12 ... An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, 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."

28.  There is continuing debate about whether there is a duty on the Prime Minister to remain until a successor can be chosen. Some witnesses called for greater clarity as to whether the Prime Minister has a right or a duty to remain,[24] and stressed the importance of continuity of government during the transition from one administration to another.[25]

29.  Peter Riddell, director of the Institute for Government, and Lord Adonis each hypothesised a scenario after the 2010 election in which Gordon Brown had resigned on the day after the election, potentially leading to a minority administration being formed by David Cameron as the coalition-negotiation period would have been curtailed.[26] Lord Adonis said that this could have risked a period without government:

    "What could have been the eventuality, ... à la Alec Douglas-Home in 1963, is that David Cameron might have said to the Queen, "I am not sure if I can form a government." The realistic situation on that Friday, depending on what the Liberal Democrats did, is that he might not have been able to form a government. We might have been in a situation where we had several days where we essentially did not have a government."[27]

30.  Professor Robert Hazell, Director of the Constitution Unit at University College London, recommended that the Cabinet Manual should state more clearly "that there is a duty on the Prime Minister to remain in office until it is clear who should be appointed in his place", as this would allow constitutional experts and election commentators to explain why the Prime Minister was remaining in office if the situation in 2010 was repeated.[28]

31.  While there is no established duty on an incumbent Prime Minister after a hung parliament to remain in office until a new government can be formed, precedents have created an expectation that the Prime Minister will remain until a successor can be identified. The Cabinet Manual should emphasise this expectation and it is important that the public and the media be informed of the reasons underlying it.

The role of the civil service

32.  Before the 2010 election the then Prime Minister, Gordon Brown MP, announced that, in the event of a hung parliament, the civil service would be available to support negotiations between the parties.[29] In the event the parties used the civil service only for certain logistical support.

33.  Experience is different in the devolved governments of Scotland and Wales, where the civil service has provided greater support in negotiations. Witnesses who had been part of government-formation negotiations in Scotland and Wales told us that the involvement of the civil service was useful, but had its limitations. Such negotiations were inherently political and needed to be conducted in an environment in which politicians felt able to speak honestly.[30] For some this precluded civil service presence;[31] for others the inclusion of officials (able to commission information from departments) allowed the discussions to be supported with a firm evidence base. The principle seems to have developed that full civil service support is offered but the extent to which it is used is for the negotiators to decide.[32]

34.  Having civil service support can provide benefits for politicians. We were told that in Scotland and Wales the civil service provided factual information that was particularly helpful to parties that had not been in government before. Ieuan Wyn Jones, Plaid Cymru's leader in 2007, told us that civil service support was "invaluable" from his perspective.[33] Mr Jones also told us that:

    "There is another advantage: if you have had civil servants as part of the negotiating team ... to give advice—once you are then in government, implementing it is a bit easier, because they have been part of the discussions. If they told you in advance, 'You now have a policy that is workable', it is very difficult for them to turn around and say, 'You cannot do it.'"[34]

35.  Lord McConnell of Glenscorrodale, First Minister of Scotland from 2001-07, found that the continuity of civil service involvement from pre-election contacts to post-election negotiations was an advantage.[35] However, Lord Stephen, Deputy First Minister of Scotland from 2005-07, described a change in Scotland: "In 1999 there were policies that the civil servants described as unworkable, which were enacted and delivered in the coalition government. 1999 was a difficult experience; by 2003, there was none of that negativity or misinformation."[36]

36.  It should be emphasised that the involvement of the civil service in this way following UK general elections is subject to approval from the Prime Minister. The Cabinet Manual states:

    "If the Prime Minister authorises any support it would be focused and provided on an equal basis to all the parties involved, including the party that was currently in government."[37]

37.  Given the importance of civil service support being available for government-formation negotiations, it is questionable whether such support should be in the gift of the Prime Minister. There is potential for an incumbent Prime Minister to seek to disadvantage other parties in negotiations by denying them the option of civil service support, however unlikely that may be in practice.

38.  Two characteristics of civil service support that should be maintained are equal treatment of all parties and the impartiality of the civil service. Instructions for civil servants were issued in 2010 in the event of support being requested by the parties. As in Scotland and Wales, a civil servant or small group of officials would be assigned to each party in the negotiations: "The civil servants working with each party may help to clarify the nature and scope of the information being requested by a political party, but will ensure that such discussions do not amount to policy advice."[38] Where information was requested by negotiation teams, the civil servants would commission factual briefing from relevant departments for the negotiators. This information would be supplied to any negotiators requesting it, but would be shared with other parties only if they also requested the same information.[39]

39.  There are risks to the use of the permanent civil service in political negotiations. Dr Andrew Blick, Lecturer in Politics and Contemporary History at King's College London, warned that the involvement of civil servants raised "questions involving to whom civil servants are accountable when assisting negotiations"; a question also arises as to whether their advice would be subject to Freedom of Information requests.[40]

40.  We recommend that, as in 2010, administrative support and factual briefings should be offered to parties involved in government-formation negotiations after future general elections. It is for the parties to decide what level of support they take up. We further recommend that the Government commit in advance of the next general election that this support will be given, rather than leaving the decision to the Prime Minister at the time of the election.

The role of the monarch

41.  One element of the transition in 2010 that participants and observers were satisfied about was the role of the monarch. The Queen was not involved in the process other than in the formal resignation and appointment of Prime Ministers. This level of detachment of the monarch from the political negotiations should be maintained; we were told that even the perception of personal influence over the process might be damaging to the monarchy.[41]

42.  The Cabinet Manual does not specifically preclude the monarch's involvement in negotiations; rather it states that the sovereign "would not expect to become involved", and that those involved should keep the Palace informed.[42] Her Majesty's private secretary was kept fully informed by Downing Street about what was happening,[43] as was his predecessor after the February 1974 election.[44]


5   Hazell, written evidence. Back

6   Q88. Back

7   Q5. Back

8   Under the Fixed-term Parliaments Act 2011 it is possible to dissolve Parliament early. It requires either two-thirds of MPs to vote in favour of an early election, or the House of Commons to pass a motion of no confidence in the government, followed by no new government being formed within a fortnight. Back

9   Q67. Back

10   Q46. Back

11   For example, Lord Donoughue (Q1). Back

12   Q95. Similarly, Oliver Letwin MP did not feel that it would constrain government formation (Q133). Back

13   Q133. Back

14   Q130. Back

15   It was, though, one day longer than the time needed to form a minority Labour administration in February-March 1974, when Conservative-Liberal negotiations failed. Back

16   For example, Lord Adonis (Q98). Back

17   Q98. Back

18   Q139. Back

19   Erskine May, Parliamentary practice, 24th edition (2011), p 146. The postponement may not be for more than 14 days from the date of the proclamation. Back

20   Modernisation Committee, Revitalising the Chamber (1st Report, Session 2006-07, HC 337), para 39. Back

21   The first two or three days in a new Parliament are spent on oath taking and the election of a Speaker of the House of Commons. The Queen's Speech usually occurs in the week after the first meeting of a new Parliament. Back

22   Justice Committee, Constitutional processes following a general election (5th Report, Session 2009-10, HC 396). Back

23   Constitution Committee, The Cabinet Manual (12th Report, Session 2010-12, HL Paper 107), para 59. Back

24   Barber, para 4.6; Riddell, para 10; Q90. Back

25   Q53; Hazell, written evidence. Back

26   Riddell, para 11. Back

27   Q90. Back

28   Hazell, written evidence. Back

29   "Civil servants to help in deadlock", The Independent, 31 March 2010. Back

30   QQ55 and 134. Back

31   For example, David Laws was unhappy with the support given in negotiations in Scotland in 1999 and had an official replaced; this appears to have shaped his view about civil service support in Westminster negotiations in 2010 (Q104). Back

32   Q111. Back

33   Q103. Back

34   Q105. Back

35   Q104. This view is confirmed by the Scottish Government's former permanent secretary, Sir John Elvidge, in Northern Exposure: Lessons from the first twelve years of devolved government in Scotland (2011), p 14. Back

36   Q105. Back

37   Para 2.14. Back

38   Civil Service Support to Coalition Negotiations, Annex B: Government Formation Negotiations-arrangements for provision of factual information, para 4. Back

39   Ibid., paras 4-9; Q117.  Back

40   Blick, para 29. Back

41   Blick, paras 13-14.  Back

42   Para 2.13. Back

43   See Andrew Adonis (Lord Adonis), 5 Days in May: The Coalition and Beyond (2013). Back

44   Robert Armstrong (now Lord Armstrong of Ilminster), "Events leading to the resignation of Mr Heath's administration on 4 March 1974". Back


 
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