Implications of the new rules for a hung parliament

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By Brian Barder / @BrianLB

Much of the current speculation about what the Lib Dems will do if the election on May 6th returns a hung parliament is based on a misunderstanding of how the system now works. There’s particular confusion over which party leader will “be invited to form a government” after the election if Labour winds up with more seats in the House of Commons than any other party, but has won a smaller share of the vote than the Conservatives, and possibly even than the Lib Dems. It’s suggested that it would be utterly immoral, and likely to spark a major constitutional crisis, if Gordon Brown were to “form a government” after the election on the basis of having more seats than any other party but having come second or third in terms of votes cast.

The first thing that’s wrong about this scenario is that no-one will be asked to “form a government” after the election, whatever the result, until and unless Gordon Brown resigns as Prime Minister (which would automatically mean the rest of the present government also resigning). Until he goes to the Palace to resign, he is constitutionally entitled to continue in office as Prime Minister; all other ministers similarly remain in office (unless sacked or reshuffled by Brown); and neither Brown nor anyone else is “invited to form a government”. This is the case even if the Conservatives have won more seats than Labour, as well as more votes. There are only two circumstances in which Brown will be constitutionally obliged to resign: if Labour loses the vote in the House of Commons to approve the Queen’s Speech at the opening of parliament, some time after the election; or if the government is defeated in a vote of confidence, probably even later. Of course Brown may choose to resign the premiership earlier, taking the rest of the government with him (for example if he sees no realistic possibility of being able to get his programme and budgets approved by parliament and if David Cameron has an obvious entitlement to the first go at forming a government): but he is not constitutionally obliged to do so. So long as there’s even the faint possibility that the Lib Dems may decide not to vote against the Queen’s Speech and not to vote No in a vote of confidence in his government, Gordon Brown is entitled to soldier on.

The second point most often overlooked is that Gordon Brown will be under no moral or political obligation to resign as Prime Minister, just because Labour may have won fewer votes than the Tories and/or the LibDems. The precedents are quite clear. Three elections since the second world war have produced this anomalous result. In 1951 Labour, elected in 1945 in a landslide and re-elected in 1950, won more votes than the Conservatives, indeed more votes than Labour had ever won before (even in 1945) and more than it has ever won since, yet won fewer seats than the Tories, so Attlee immediately resigned and Churchill, defeated in 1945, came back as Conservative Prime Minister. No-one seems to have complained that this was unacceptable or immoral. The same thing happened at both the elections of 1974, this time benefiting Labour, which won more seats than the Tories despite having won slightly fewer votes. After the first of these, Heath as incumbent Prime Minister tried to do a deal with the Liberals, remaining in office for four days while he haggled with Jeremy Thorpe, but when he failed, he resigned and Harold Wilson formed a minority Labour government. Eight months later Wilson asked for, and was granted, a dissolution and fresh elections, at which Labour narrowly secured an overall majority (319 seats out of 635!). Few if any complained at the time of the first 1974 election that Labour, as the biggest single party, occupied Number 10 Downing Street despite having won fewer votes than the Conservatives: and the narrow overall majority of Commons seats won by Labour eight months later was not regarded as invalid even though once again the Conservatives had actually won more votes.

There’s a third easily overlooked factor pointing to the likelihood of Labour continuing in office for some time after the election if there’s a hung parliament, regardless of the number of seats and votes won by Labour compared with the scores of the other two major parties. The prospect of a hung parliament has for some time alarmed the City and the international markets because of the risk of a prolonged period of political uncertainty while the parties haggle over the deals or partnerships necessary for the formation of a stable and durable government able to tackle the huge problems of an unprecedented budget deficit and the mountain of national debt, as well as the task of nursing and accelerating recovery from the recession. There is a fear that such uncertainty, if it lasts more than a very few days, will cause a run on sterling, turmoil in the bond markets and a possible need to raise interest rates, which would slow down and perhaps reverse Britain’s economic recovery. To avert this potentially damaging fall-out from a hung parliament, the Cabinet Secretary, encouraged by the Prime Minister (and possibly with the agreement of the other party leaders), has written a new “rule book” – although Number 10 has demurred at this description, asserting that it’s no more than a codification of existing and hitherto unwritten constitutional practice. The Cabinet Secretary’s code, apparently taking the form of a new chapter for the Civil Service Manual, provides, among other things, that if a hung parliament results from an election, the incumbent Prime Minister, regardless of the number of votes or seats his party has won, should not and must not resign as prime minister until it’s clear that there is a specific alternative MP likely to be able to form a government that will win the support of a majority of members of the House of Commons, expressed in majority support for that government’s programme, as defined in the Queen’s Speech. This formulation is designed to protect two fundamental constitutional principles: the nation’s government must be able to be carried on without a significant hiatus; and the monarch must not be placed in a position of being forced to make a decision (such as having to choose whom to invite to try to form a government when there is no consensus on whom she or he should choose) that would entail, or seem to entail, political partisanship as between the parties, thus potentially damaging confidence in the monarchy’s position above party politics.

This (probably new) rule has important implications. Newspaper editorials claiming that Brown will be morally and politically obliged to resign immediately as Prime Minister if Labour comes second or third in terms of votes cast, have got it wrong. Brown and the Labour government would be obliged to continue in office for as long as there was any uncertainty about how the Lib Dems would vote on a Labour or Conservative government’s Queen’s Speech or on a vote of confidence in either government.

What’s more, the dilemma facing Nick Clegg will not be which of Labour or the Conservatives to ‘support’ in a hung parliament, but whether deliberately to bring down the existing Labour government in the vote on the Queen’s Speech or in a vote of confidence in the government. But a decision by the Lib Dems to bring down a Labour government could be taken only if they were prepared to commit themselves to acquiescing in a successor Conservative government under Cameron: it would be indefensible for them to refuse to allow both Labour and the Conservatives to hold office, since to bring down both, one after the other, would certainly cause a prolonged period of uncertainty while fresh elections were held – and in a second election caused by such Lib Dem negativity, the result would almost certainly be a Lib Dem wipe-out and the election of a Conservative government with an overall majority. Is that what the Lib Dems would want?

In other words, the LibDems’ ability to exact policy concessions in return for their ‘support’ for either Labour or the Conservatives is very limited: if either of the other party leaders refuses to grant the concessions demanded, the Lib Dems’ only sanction is to bring down, or threaten to bring down, that party’s government – and if that precipitates a fresh election, the Lib Dems are likely to be the principal losers. It will be like an insect that can use its sting only once, because it dies as a result of using it.

Nor will the Lib Dems have the luxury of choosing which of the other two parties to threaten to bring down if their policy demands are not met: if Gordon Brown chooses to carry on as Prime Minister until Labour is defeated on the floor of the House – as indeed the Cabinet Secretary’s new ‘rule book’ requires him to do in the absence of a firm Lib Dem undertaking to allow a Cameron government to take and hold office instead – the Lib Dems will have to make their choice in relation to a Labour and only a Labour government. Since by voting down a Labour government they would implicitly be demonstrating willingness to support, or acquiesce in, a Conservative government, Clegg would be risking a deep rift in his own party, most of whose members would prefer to allow a Labour government to continue in office rather than putting the Tories into No. 10 – this time without the option of turning them out, too, anyway for some time to come.

Thus the logic of the situation may virtually force Clegg to accept any offer from Brown either to join a Labour-Lib Dem coalition, with a few seats in the coalition cabinet for Clegg, Cable and one or two others, giving them considerable influence on government policy, but with an inescapable obligation to support some Labour-inspired policies that the Lib Dems would prefer to oppose; or alternatively to give a conditional promise not to vote against the (Labour) Queen’s Speech or against the Labour government in a vote of confidence provided that certain basic conditions were met by Brown. If that happened, there would be no opening for Cameron to be invited to try to form a government since the Brown government would continue in office without interruption. Of course this would mean the Lib Dems facing a storm of bitter invective for having kept an unpopular Brown administration in office despite Labour having ‘lost’ the election. But the alternative – ejecting a broadly like-minded centre-left government from office and installing a potentially far-right Tory government in its place – might be even more unpalatable for grass-roots Lib Dem members and supporters.

The fifth and final point which seems to have escaped some commentators is that Clegg would be running a serious risk if he were to seek to offer to allow the Labour government to continue in office but only on condition that Brown stepped down, to be replaced by, say, David Miliband as the new Prime Minister (but not necessarily as leader of the Labour Party). The moment Brown resigns as Prime Minister, the rest of the Labour government resigns also, right down to the most junior Assistant Whip. Moreover, when Brown goes to the Palace to resign, he may or may not be invited by the Queen to advise her on whom she should appoint to succeed him (he is not entitled to volunteer such advice): but even if he is asked for and tenders that advice, the Queen is not constitutionally obliged to accept it. There would therefore be no guarantee that the Queen would automatically invite David Miliband to form a new (Labour-Lib Dem) government even if Gordon Brown has advised her to do so: she might invite Cameron instead. Unlikely, of course: but possible.

There’s an indispensable account of the constitutional position and the Cabinet Secretary’s ‘rule book’ in a Guardian article of April 19th 2010 by Professor Robert Hazell (‘Nick Clegg: the power balancer’). Professor Hazell, director of the Constitution Unit and Professor of Government and the Constitution at University College London, is a formidable power behind (and sometimes in front of) the scene, having been a significant source of advice to the Cabinet Secretary in drawing up the ‘rule book’ and also maintaining contacts with the leaders of all three parties, among many others. (In 2006 he was awarded the CBE for services to constitutional reform.) If Gordon Brown justifies his refusal to resign as Prime Minister after winning fewer votes than the Conservatives (and perhaps than the LibDems) by reference to the Cabinet Secretary’s ‘rule book’, Professor Hazell will have earned a place in British constitutional history. A significant constitutional amendment invented and brought into effect by diktat of the Cabinet Secretary should also be worth a footnote. (There is also an excellent account of the relevant provisions of the constitution and their history in Chapter 3 of Peter Hennessy’s The Prime Minister.

I have not attempted to deal here with every possible eventuality if there is a hung parliament. One that is beginning to prompt a certain amount of speculation is what the Germans call a Grand Coalition, or what we sometimes call a government of national unity: a formal coalition of the two biggest parties, Labour and Conservative, with or without the participation of the Lib Dems also, usually only formed in the event of a national emergency. The question whether the budget deficit and the size of the national debt amount to an emergency comparable with the threat of a German invasion and the imposition of government by the Gestapo and the SS may be endlessly and fruitlessly debated. But Gordon Brown, who knows and understands the history of the Labour Party better than most, along with many other members or supporters of the Party, would be haunted and terrorised by the shade of Ramsay MacDonald if ever he had to decide whether to participate in a coalition government with the Conservatives.

Another possible eventuality that I have not discussed is a Lib Dem decision to abstain from voting on a Labour Queen’s Speech, leaving it to the arithmetic of the House of Commons (minus the Lib Dems) to decide the outcome, with the nationalist and any single-issue MPs, if sufficiently numerous, holding the government’s fate in their hands. This alone would enable the Lib Dems to maintain their favourite position sitting on the fence, but it would lay them open to the charge of irresponsibility in throwing away their golden opportunity decisively to influence British politics and perhaps the UK constitution too.

And I have not discussed yet another scenario, in which Gordon Brown, having come second or third in the number of votes cast, or having failed to win more seats in the House of Commons than any other party, defies the Cabinet Secretary’s ‘rule book’, or judges that it doesn’t apply, by resigning as Prime Minister immediately after the election, in which case Cameron would almost certainly be invited to form a government. This would present the Lib Dems with a different but very similar dilemma: whether to bring down a Conservative administration under Cameron by voting against a Conservative Queen’s Speech, with the inescapable implication that they would vote in favour of a Queen’s Speech offered by a restored Gordon Brown (or his successor as leader of the Labour Party).

Perhaps only constitutional and political nerds actually enjoy splashing around in these murky waters. We may be pretty sure that the leaders of the three parties principally concerned, mentored by Professor Hazell and the Cabinet Secretary, are fully familiar with them, even if a surprising number of our media pundits are not. Anyway, it’s still far from certain that the election will result in a hung parliament: an overall majority for the Conservatives still looks to me a sound if highly unattractive bet. In which case all these speculative permutations will become academic fodder for Professor Hazell’s seminars, and nothing more – until we adopt Proportional Representation for elections to the House of Commons.

Afterthought: I wish Nick Clegg and Paddy Ashdown would stop talking about the electorate not trusting either Labour or the Conservatives to govern on their own, if they vote for a hung parliament. This is palpable nonsense. The majority of those who vote Labour or Conservative (which means well over half of the electorate, even after the Clegg epiphany) want their party to win with an overall majority. A few opinion polls claim to have detected growing enthusiasm for the idea of a hung parliament, but that result depends heavily on the way the question is framed, and even then there’s a clear majority opposed. Even if you assume (without any evidence) that most – say two-thirds – of Lib Dem voters would welcome a hung parliament, and even in the unlikely event of the Lib Dems winning the same share of the votes cast on May 6th as the current polls would suggest, that would still amount to only around one voter in every five. No single voter can vote for a hung parliament: it’s not on the ballot paper, and the electorate comprises a few million single voters.

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