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 daythe "removal van" attitude
to Westminster elections.
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 negotiationsalbeit
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would result from hung parliaments at Westminster has been replaced
by a new assumption that coalition governments will be formed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.
Among our witnesses, Lord Donoughue was alone in advocating minority
government over coalition.
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
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-negotiationa
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 involvedincluding
the political parties, the incumbent prime minister, the civil
service and the monarchneed to be carefully considered.
Context is important: there are restrictions on the time available
to form a governmentarising from, for example, international
developments and reactions in financial marketsand 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.
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".
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."
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.
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."
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.
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."
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.
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.
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".
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.
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
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
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.
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,
the period between election day and the first meeting of Parliament
was extended from six days in 2005 to 12 days in 2010.
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
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.
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.
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,
and stressed the importance of continuity of government during
the transition from one administration to another.
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.
Lord Adonis said that this could have risked a period without
"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."
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.
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.
In the event the parties used the civil service only for certain
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.
For some this precluded civil service presence;
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.
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. Mr Jones
also told us that:
"There is another advantage:
if you have had civil servants as part of the negotiating team
... to give adviceonce 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
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.
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
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
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."
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. 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
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.
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
Her Majesty's private secretary was kept fully informed by Downing
Street about what was happening,
as was his predecessor after the February 1974 election.
5 Hazell, written evidence. Back
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
For example, Lord Donoughue (Q1). Back
Q95. Similarly, Oliver Letwin MP did not feel that it would constrain
government formation (Q133). Back
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
For example, Lord Adonis (Q98). Back
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
Modernisation Committee, Revitalising the Chamber (1st
Report, Session 2006-07, HC 337), para 39. Back
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
Justice Committee, Constitutional processes following a general
election (5th Report, Session 2009-10, HC 396). Back
Constitution Committee, The Cabinet Manual (12th Report,
Session 2010-12, HL Paper 107), para 59. Back
Barber, para 4.6; Riddell, para 10; Q90. Back
Q53; Hazell, written evidence. Back
Riddell, para 11. Back
Hazell, written evidence. Back
"Civil servants to help in deadlock", The Independent,
31 March 2010. Back
QQ55 and 134. Back
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
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
Para 2.14. Back
Civil Service Support to Coalition Negotiations, Annex B: Government
Formation Negotiations-arrangements for provision of factual information,
para 4. Back
Ibid., paras 4-9; Q117. Back
Blick, para 29. Back
Blick, paras 13-14. Back
Para 2.13. Back
See Andrew Adonis (Lord Adonis), 5 Days in May: The Coalition
and Beyond (2013). Back
Robert Armstrong (now Lord Armstrong of Ilminster), "Events
leading to the resignation of Mr Heath's administration on 4 March