Should Brown have resigned on the Friday?

I’ve been interested by a series of pieces musing on the political consequences of Gordon Brown’s decision to remain as Prime Minister for five days following the election – rather than resigning on the Friday. First to consider this was Toby Young in his Telegraph blog a couple of days later:

I’ve been puzzling away at the question of why Gordon Brown didn’t simply resign on Friday morning when it was clear he’d been comprehensively defeated in the general election. And the conclusion I’ve come to is that it was an error of judgment.

He goes on to argue that Brown was entitled to hang on, constitutionally, during the Con-LibDem talks – but not required to. I think he must be right about that. Brown could have resigned at any moment, and Toby Young thinks he fouled up tactically:

In effect, by waiting five days before resigning, and behaving in the way he did, Brown enabled Cameron to forge a deal with Clegg that has left him in a far stronger position than he otherwise would have been. Had Brown gone on Friday morning, the Labour Party would now be squaring up against a minority Conservative government. Such a government would have been weak and unstable, a far preferable enemy to the formidable Lib-Con coalition it now faces.

He argues that Brown’s carrying on gave Cameron time to conclude his deal, and that had David Cameron been summoned by the Queen on the Friday morning, he’d have had to form a minority government immediately.

Next to look at this was Tom Harris. His take is a little different, though. He’s a bit more critical of Brown in constitutional terms for hanging on,

Surely the correct constitutional course of action would have been to accept the will of the people and to have tendered his resignation to the Queen, who would then have invited the Leader of the Opposition to form a new government.

but he agrees an earlier resignation would have made David Cameron’s position more difficult:

Had the Tory leader suddenly found himself heading to the palace on the Friday afternoon, before he’d even had a chance to open up talks with Clegg, the pressure from his party to form a minority administration would have been immense – possibly even irresistible. In which case, we would now have a vulnerable, unstable Tory government, able to govern but not legislate and poised for defeat at any time in the next year.

Finally Mike Smithson at Political Betting yesterday saw a lot in Tom Harris’s argument:

If Cameron had been asked to form a minority government on the Friday afternoon then the whole negotiating environment would have changed and it is hard to see how the party would have agreed to any offer to the Lib Dems.

I’ve already said I agree with Toby Young about the constitutional position Gordon Brown was in; I disagree with Tom Harris about this. I can accept the argument that the Prime Minister has a constitutional duty to resign when it’s clear he cannot form a government; but I see no duty before then. It wasn’t clear Gordon Brown had “lost” until a “progressive coalition” became impossible.

The real trouble with the theory though is the argument that had David Cameron entered Number 10 on the Friday, he’d have been likely to form a minority government straight away. The Queen certainly wouldn’t have asked him to – and I doubt Mike Smithson really meant she would. One of the interesting things about the way the constitution works is that the Queen appoints a Prime Minister, not a government. Her appointment of David Cameron on the Friday would in no constitutional sense determine the political complexion of the administration he would then try to form.

Tom Harris of course puts his emphasis more plausibly on the political momentum that would have been caused by an early Cameron appointment: he’d certainly have been under pressure to form a minority government, from his own side. But I doubt that would have shifted the balance critically. The Parliamentary maths would have been the same, the political logic of a deal would have been the same, and there is no reason why Cameron could not have told the Queen of his intention to make a “big offer” and his aim of forming a stable, enduring government.

I see no constitutional reason why the Conservatives could not have spent the same five days negotiating with the Liberal Democrats after his appointment as they did before, and, with the risk of a revolving door and Gordon Brown’s still being recalled by the Queen, I doubt that calls of “betrayal” from the Tory right would have had any more purchase than they did as things actually turned out. Ministerial appointments could have waited, except for one thing: the 9 May meeting of EU finance ministers that Britain attended. Even that difficulty could have been overcome, the question of who would be Chancellor simply being brought to the top of the Con-LibDem negotiating agenda, or by an immediate or interim appointment.

So although this is an intriguing counterfactual, I don’t think Gordon Brown’s resignation would have changed this dramatically, except – had he gone, and the new Prime Minister David Cameron’s offer been rejected by the Liberal Democrats who then informed the Queen they wanted to negotiate with Labour, it’s not absolutely certain Mr. Brown would have been the right man for the Queen to recall – as opposed to Mr. Clegg himself, or Harriet Harman.

But the very prospect of this “revolving door” scenario shows why Gordon Brown acted properly – at least until the Tuesday evening. He wasn’t obliged to stay till then, but in my view this was the best course, constitutionally. First, because it wasn’t yet clear he himself wasn’t the person best placed to lead a majority in Parliament. Second, because until the real political succession is clear, some sort of caretaker government is in practice needed to govern on a minimalist, non-controversial basis, and the most effective caretakers are those who’ve just been governing full-bloodedly.

Professor Rodney Brazier in his book Constitutional Practice (3rd edition, 1999) proposed an approach to hung Parliaments which seems to me constitutionally impeccable, and which it appears was essentially followed this time. No doubt both the civil servants supporting the process and the Queen’s advisers were aware of his view. If an election resulting in a hung Parliament opened a variety of possibilities for coalition or minority governments, the Queen, he says, would be unwise to appoint a new PM immediately:

… it would be more prudent if, through the outgoing Prime Minister, the Queen were to tell the Leaders that if she were to receive evidence … of a copper-bottomed agreement on a majority coalition … together with an equally sound guarantee that the coalition government would not seek a dissolution within a reasonable time, then she would appoint the person agreed upon to be Prime Minister. The Queen should further stipulate that the package should be endorsed by the relevant Parliamentary parties … and also that the ultimate agreement should be made public … If the whole agreement on a majority coalition were achieved, then that fact would be communicated to the outgoing Prime Minister, who would see the Queen, recommend that she send for the coalition leader, and resign.

Not that the Queen has to follow the Prime Minister’s advice on who to appoint next; she doesn’t. But Professor Brazier’s suggested approach is so close to what actually happened that I can’t help speculating that the Cabinet Office and Buckingham Palace were following it. It goes further than the guidelines published by the Cabinet Office earlier this year.

My one query is whether Gordon Brown timed his resignation impeccably in constitutional terms. Conservative and Liberal Democrat MPs had met to consider the deal on the Monday, but negotiations continued on the Tuesday afternoon (after Labour-LibDem talks broke down) and I don’t think there were any further meetings of Tory or LibDem MPs until after Gordon Brown offered his resignation. So the question is: had Gordon Brown been told by 7 o’clock on the Tuesday evening that the coalition deal had been authorised (perhaps in advance by means of negotiating mandates agreed the previous day) by MPs of both coalition parties? If so, then what he’s reported to have said to Nick Clegg on the phone at about that time would be entirely justified. If not, then he’s open to the charge of having jumped the gun.