28 January 2011

The dramatic events surrounding the formation of the Conservative / Liberal Democrat Coalition government last May has forced a review of the conventions over what should happen in a hung parliament.

Almost everyone who took part has had their say (apart from Gordon Brown) and there has been growing debate on the lessons to be learnt. The Cabinet Office has produced its own view of the implications as part of the draft Cabinet Manual, whilst the Commons’ Political and Constitutional Reform Committee is the first of three parliamentary committees to report on the issue (PDF, 1.2MB).

The report underlines a broad, but not total, consensus now emerging about the conventions. It also highlights some big, and so far unresolved, unintended consequences.

Does the Salisbury-Addison convention still apply?

The long-running attritional battle in the House of Lords over the AV and constituency boundaries bill has shown that some peers "may not feel bound to apply the Salisbury-Addison convention to policies contained in a Coalition government’s programme".

The convention arose out of the post-1945 situation when Labour had a huge majority in the Commons, but was in a very small minority in the Lords. Since the removal of a majority of the hereditary peers in 1999, the ruling convention has been that no single party should have a majority in the House.

But on the arguable assumption that the crossbenchers are excluded, the two Coalition parties have, on paper, a working majority over Labour: hence the current frustration. The question is how to ensure the rights of the minority party when the Lords, for once, has a majority on the governing side.

The Salisbury-Addision convention says that a manifesto bill is given a second reading, is not subject to 'wrecking amendments' and is passed or returned to the Commons in reasonable time. But what is a manifesto bill when the Coalition programme has superseded the two parties’ manifestoes?

This issue is not mentioned in the draft Cabinet Manual but is urgent and needs to be debated in detail, preferably in a less charged mood than now.

What is the position of the incumbent Prime Minister?

Much confusion has arisen over the position of the incumbent Prime Minister if their party loses its overall majority. Before the election, the main emphasis was on the right of the PM to have the first opportunity to continue in office and form an administration.

That remains true, but it has to be qualified by the May 2010 experience. The right of the incumbent PM to stay in office to see whether a government can be formed which commands the confidence of the Commons does not preclude negotiations amongst other parties.

There was nothing wrong with the first formal negotiations being between the Conservatives and the Liberal Democrats, though there were private talks between Labour and the Lib Dems at the same time.

How long should an incumbent PM stay?

An incumbent PM should only stay for long as it is clear whether he can command a Commons majority or whether someone else can. The focus is on the name of the potential PM, not on the nature of the government (minority or coalition) that can be formed.

Some dispute that Mr Brown resigned prematurely since the coalition negotiations had not been completed. But, by the Tuesday afternoon, it was clear he could not command the confidence of the Commons and only Mr Cameron could. So the MPs are correct that “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.”

The report argues that the clarification of the December 2010 Cabinet Manual does not go far enough on this issue. I am not sure how far this can be nailed down given the range of possible situations. Some of the potential difficulties could be reduced if there had to be an investiture vote on the choice of PM at the start of a parliament before a Queen’s Speech, as happens over the choice of First Minister in Scotland.

Above all, the report underlines the advantages of the more open discussion of these issues which has emerged over the past year thanks to the Cabinet Office’s initiative in publishing, first, the draft chapter on government formation in February 2010; and, second, the full Cabinet Manual in December 2010.