Clarify election guidelines before May 2015

One of the most misleading comments made in early May 2010 was that Gordon Brown was squatting in 10 Downing Street over the post-election weekend—implying that he was resisting or frustrating the decision of the voters. He wasn’t. Mr Brown was performing his correct constitutional responsibility. Yet this is one of a number of areas where there is a gap in public understanding of what happens after an election if there is no clear winner, obviously a strong possibility in three months’ time. In this case, there is also an uncertainty in practice, as the Political and Constitutional Reform Committee of the Commons (PCRC) has highlighted in its latest report, Revisiting the Cabinet Manual. The 2011, and most recent, version of the Manual, states, guardedly, that: ‘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.’ Or, as Sir Jeremy Heywood, the Cabinet Secretary, recently told MPs, the Manual is ‘just a record of where the current state of understanding is. As such, it is probably the starting point for how I would expect things to pan out if there was not a clear majority at the next election’. But, in his words, ‘it is not binding on future Prime Ministers, so we will just have to see what happens’. This is more cautious than his predecessor Lord O’Donnell was about the Manual. So in place of the ‘good chaps know best’ version of history, we have the ‘cross-fingers and hope it goes all right on the night’ version. Some uncertainty may be unavoidable but the PCRC was right to argue that ‘the principle that there must always be a government, and that the Sovereign must always have an adviser in the form of a Prime Minister, is unambiguous. We recommend that, for the benefit of the media and the general public, the Cabinet Secretary should set out clearly, and well in advance of the general election, the Government’s view of the constitutional principles which underpin the continuance in office or otherwise of administrations following a general election’. The two key principles are continuity of government and keeping the Queen out of political controversy. What this means is that the politicians have to sort out among themselves who can form a viable government and meanwhile the incumbent prime minister remains in office. But, as I have previously discussed that raises several questions, which will be addressed in a forthcoming paper from my colleague Dr Catherine Haddon.

The main questions if there is a hung parliament are:

What can the incumbent prime minister and government do? They remain in office, hence the dislike in Whitehall for the phrase ‘caretaker’. But ministers govern under broadly the same restrictions as during the pre-election, campaigning period between the dissolution of parliament and polling day. That means avoiding decisions on appointments and contracts which can be postponed. What happens if Cabinet ministers lose their Commons seats? They still remain ministers until either they or the Government resigns. You do not have to be an MP or peer to be a minister, though nowadays this is only likely to be a short-lived period until a reshuffle or a new government is formed. Similarly, David Cameron can remain as prime minister even if Nick Clegg and the Liberal Democrats withdraw from the coalition after the election. Does the party with the largest number of MPs have the first go at forming a government? No. Any party can, and no doubt will, talk to others, regardless of size, with negotiations going on in parallel. The key is which party or parties can command the confidence of the Commons. How long can the period of uncertainty last? It will last until a new government is formed. In many continental countries, such as Germany, forming a government takes several weeks, though most MPs and commentators in the UK seem to believe that the British public/media will not tolerate more than a week or so, compared with the ‘five days’ in May 2010. But, as I have previously argued, it could take longer after this election because of the possible complexity of the outcome and the pressures for more consultation. When will we know who the next government will be? The complication is if a formal coalition commanding a Commons majority cannot be formed. Then it will be a matter of a minority government entering a formal or informal arrangement with other parties, or calling the bluff of the other parties, as Harold Wilson did in 1974 and Alex Salmond did in Scotland between 2007 and 2011. Ultimately, the decision is taken by the Commons, usually at the end of the Queen’s Speech debate. That can easily be at least four weeks after polling day. There is meanwhile ambiguity in the Cabinet Manual over the status of a minority government untested by the Commons even if a new Prime Minister has been appointed by the Queen. The incumbent government can always seek to face the Commons, as Stanley Baldwin did in January 1924 despite losing his overall majority in the late 1923 election. He was then defeated and the first, minority, Labour Government was formed. Such a delay would add to pressure to bring forward a Commons vote. Some degree of ambiguity is inevitable and not all contingencies can be addressed. In practice, the political realities usually prevail. But because we could be in for a longer period of uncertainty in May, there needs to be more of a public debate now on these questions before the election campaign starts.