20 January 2015

The prospect of another hung parliament after the May 7 elections is being treated with a mixture of alarm and excitement by the business, political and media worlds. There are certainly risks in an inconclusive result, but the British political system is remarkably resilient. Government will carry on: services will be provided and taxes will be paid (unlike the current situation in Greece where there are reports of a taxpayers’ strike ahead of this weekend’s election).

The real danger is the persistence of a majoritarian way of thinking in face of fragmented election results and multi-party politics. As the ‘five days in May 2010’ showed, the absence of a single party majority requires changes in expectations and behaviour, as the Institute for Government has argued, notably in our post-election assessment in 2011.

The novelty, excitement and momentum of the events five years ago meant that many underlying tensions and problems could be brushed aside, or only emerged later. But it is likely to be much harder this May because the result may be less clear-cut and closer scrutiny, both within parties (insisting on greater consultations) and by the media, may complicate negotiations. These discussions could easily last longer than the five days of May 2010, but political and media pressures means they are likely to be shorter than the month (or more) often seen in Germany, for example. But, as that case shows, government does not fall apart if talks take some time.

There are two causes for concern: first during the period when a new government is being formed - and then immediately afterwards.

A survey in the Financial Times on Monday showed widespread business and City worries about the implications of an inconclusive result and political gridlock. However, experience from Scotland from 2007 to 2011 and elsewhere in Europe, shows that minority governments can be both long-lasting and effective. I have discussed these issues and the constraints of the Fixed Term Parliaments Act before.

If there is no clear majority, an incumbent government remains in office until the Prime Minister resigns. According to the Cabinet Manual (para 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’. There is some dispute about when this imposes a duty, or merely an expectation, that the incumbent PM will stay, and what precise conditions have to be fulfilled to define when ‘clear advice could be given to the sovereign’ and a ‘clear alternative’ exists.

On the Tuesday after the election in May 2010, it was clear that Gordon Brown could not command confidence, and he resigned that evening, but, even then, it was unclear whether David Cameron would head a coalition. As it was, a deal with the Liberal Democrats was quickly agreed. Some ambiguity is probably unavoidable. But the important point is that, in the absence of a clear-cut result, the incumbent PM is not only within his or her rights, but also correct to remain in office, rebutting talk of squatting in Downing Street.

This has wrongly been interpreted to mean that the incumbent PM has the ‘first go’ at forming a government, but that is wrong. As 2010 showed, the Leader of the Opposition can take the initiative in negotiations. What happens is that the incumbent PM remains in office until a conclusion is reached. There has to be continuity of government, not least to respond to emergencies.

However, as we have previously argued, there needs to be greater clarity over what happens between polling day and the formation of a new administration, the so-called caretaker period. Our worries have been echoed by two Oxford academics (Petra Schleiter and Valerie Belu in an article for Political Quarterly) who argue for an improvement in the caretaker conventions to ensure greater clarity about their length and the restrictions involved.

We already have clear guidance on what happens during an election campaign, this year from March 31st until May 7th, essentially deferring activity such as taking or announcing major policy decisions, entering into large procurement contracts and making senior appointments. Of course, urgent government business carries on during the campaign.

The Cabinet Manual says (para 2.30) that ‘immediately following an election, if there is no overall majority, for as long as there is significant doubt over the Government’s ability to command the confidence of the House of Commons, many of the restrictions {applying during a campaign} would continue to apply’. However, it is unclear how long this lasts. The Cabinet Manual also says it ‘depends on circumstances, but it may often be either when a new PM is appointed by the sovereign or where a government’s ability to command the confidence of the Commons has been tested in the House of Commons’.

It is possible a new PM will be appointed as head of a minority administration who has yet to prove whether he or she can command the confidence of the Commons. Under the present timetable, such confidence may not be clear until the end of the Queen’s Speech debate, which could be between four or five weeks after polling day.

This is why the Institute and the Constitution Unit at UCL have been urging a nomination or investiture vote, as in Scotland, as the first item of business after a Speaker has been elected and MPs have been sworn in. That could substantially reduce the period of uncertainty, possibly by half.

Above all, as we argued in 2009 and 2011, and as Schleiter and Belu propose, public expectations over the length and nature of any talks can and should be managed by greater public discussion by the key officials since politicians will not want to talk about them before an election.

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