Should Brown have resigned on the Friday?

by Carl Gardner on June 2, 2010

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.

{ 8 comments… read them below or add one }

1 hatfield girl June 2, 2010 at 18:01

The Head of state behaved impeccably, as did our constitution. But why are you trying to pick through Brown’s behaviour and make it somehow acceptable? Any normal political leader would have resigned on Friday morning, in defeat, advising the Head of State to send for the Leader of the largest party elected. There is no dual role for the leader of the outgoing regime and the Head of State. That’s what we have a head of State for, despite the attempts by the Labour party to identify itself, as government, with the state for so long. The outgoing regime has no role to play either in preserving stability during power transitions; that role too is wholly reserved to the Head of State; and if the role of head of state is so defined as being incapable of bearing that duty, we’d better get ourselves a new system.
.-= hatfield girl´s last blog ..Goodbye to All That =-.

2 Carl Gardner June 2, 2010 at 18:25

It’s not about making what he did acceptable; I think it was correct, at least until the Tuesday evening. The only question is whether he should have waited until the following morning.

If the Queen had thought his remaining as a caretaker was improper, she could have dismissed him.

3 hatfield girl June 2, 2010 at 19:53

I wonder how? It would be very unusual for the Head of State to dismiss a sitting prime minister (pace Australia). That is the work of the House of Commons.

People are expected to behave reasonably, otherwise we would have to have a constitutional court and a codified and relatively inflexible constitution, all written down.

For many left of centre people it was really, really the last straw that Brown, pretending to propriety, (and such falsely-based and represented propriety) tried to hang on. Heath destroyed much conservative support for the same reasons, in his day, and his sin was much the less.

We have a surprisingly robust understanding of our constitution; we don’t need academics to interpret its nuances for us. If we are to accept technical interpretation then we need a constitutional court; that we will concede, if the alternative is to have our expectations constantly ‘interpreted’ by self-appointed experts.

You, yourself, have argued most properly against the constrictions of a fully codified constitution, and court to go with it. Behaviour like Brown’s (and not just in conceding defeat in the election he finally faced, but in the regulation of parliamentary behaviour) has been of a piece in damaging our democracy and its practices.

We may decide that we need to firm the shifting sands but please not in response to the behaviours of New Labour.

(I do apologise for coming back, but these people are no representatives of decent Labour politics).

I appreciate greatly the point that the Head of State appoints a prime minister, even while some of us pretend to ourselves that we have elected a party; the Head of State has it, of course, and so acts. The defeated prime minister has no place in the construction of the new Executive.
.-= hatfield girl´s last blog ..Goodbye to All That =-.

4 Carl Gardner June 2, 2010 at 20:10

Come back and back and back, Hatfield Girl! You’re very welcome here.

The Queen certainly could dismiss him! It hasn’t happened since I’ve no idea when simply because there’s been no need. I can’t think of any time when a PM was seriously accused of trying to hold on to power constitutionally. And the Queen is actually the only person who can dismiss the PM. All the Commons can do is express a lack of confidence in him or her; the PM usually asks for a dissolution as a response, which is very different from being dismissed. Of course the pro-55%ers want to stop that.

It was notable that neither David Cameron nor Nick Clegg suggested Brown had acted unconstitutionally; nor does Toby Young in the piece I linked to. I think you’re in the minority!

5 Simon June 2, 2010 at 23:51

A very educational post and discussion with HG.

Not being a lawyer or constitution expert I can’t comment on whether you are right or not in what you say , but I have been around long enough to know low politics when I see it, and for that reason I think you are correct when you say DC would have still gone to NC to try to form a coalition if GB had resigned on the Friday.

For the six months, at least, running up to the election we had been regaled with tales of a center left progressive coalition between Labour and the LibDems which would mean an end to Tory governments. As I said on my alter ego blog – did nobody expect the Tories not to come out fighting at this prospect?

The election result was, in many ways, the best result DC could have wished for. It gave him the chance to marginalise his own right wing- even they aren’t that stupid that they couldn’t read the runes of the election result, as you say – and at the same time drive a wedge between the Orange Bookers and the social democrats in the LibDems; which has always been an alliance that has been strained, to say the least.

Its often been said that the Tory Party is nothing other than a party that believes in its right to govern and will do anything to maintain that position. Its own history shows many compromises and changes in principle to ensure that it stays in office, or at least as a the main opposition party.

Given all this, I believe DC will have looked at the way the wind was blowing and concluded that a new politics was inevitable and they need to be at the forefront. This makes the compromises they made to NC not only easy but an absolute necessity if they are to have a chance of being part of any future government.

We are now in the position that the LibDems who have always said they believe in PR having to make a coalition work to prove their point, the Tories being “decontaminated” by sowing how magnanimous they can be in sharing power and Labour being in the position of either defending FPTP or looking for “wedge” issues, which in the short term will strengthen the coalition and make the public realise that coalitions can work.

Much as I dislike DC I think he has done a great job for the Tory party and maybe the country.

6 Carl Gardner June 3, 2010 at 16:29

I agree that it’s smart politics from the Conservative point of view. It also allows Cameron an excuse to jettison policies he’d have had to abandon anyway because of their unworkability – the strange “national sovereignty” bill and the “British Bill of Rights”, for instance. The difficult task he would have had, of moderating the party on Europe, has been achieved at a stroke.

Brave politics from the LibDems, I think. This is much more impressive than an insistence on remaining unsullied in opposition. But I do think they’ll suffer for it at the next election. And it could yet split the party.

7 ObiterJ June 5, 2010 at 22:26

Carl, I am sure that your legal analysis is accurate. Please allow me, on this occasion, to look at the politics.

It was interesting to see the Cabinet Office Guidance published in advance of what was widely expected to be a very close election. The guidance was produced at the request of Gordon Brown. Just what caused him to make this request? It was all presented as an altruistic exercise designed to assist if the election turned out as expected which, of course, it did. Having said this, I have not see any particularly serious legal criticism of the guidance which appears to have set out the “received wisdom” distilled from previous political events.

I suspect that the guidance encouraged Gordon Brown to remain in place after Friday 7th May. Of course, it is absolutely right that he could have resigned on the Friday but the interesting question to me is why he clung to office until Tuesday 11th.

It appears that Brown was persuaded by various others to hang on in the hope that DC could not get a deal with NC. At times it seemed that such a deal was not going to happen and, as we know, the Lib Dems were also talking to Labour even over the weekend of 8th and 9th May. There must have been more than a mere hope within the Labour ranks that they might just have been able to hang on to power in a sort of “Rainbow Coalition “despite winning neither a greater share of the vote than the Conservatives nor a greater number of seats.

I suspect that Brown was persuaded to remain in the hope that a coalition would emerge which would have enabled Labour to ignore the realities of the election voting. It would have been a Labour hegemony without the true consent of the people. A permanent “centre-left” coalition with Labour as the dominant party. [The term “progressive coalition” emerged only after the election result was known]. One also suspects that, had Labour got away with this, they would have ditched Brown at the earliest opportunity.

Labour acted mainly in the interests of their party and it backfired on them. The eventual outcome is, I believe, better for the country than a continuation of government by Labour given that they must share some of the blame for the economic mess we are now in. I would still wish the present coalition a fair wind whilst, as ever, watching what they do.
.-= ObiterJ´s last blog ..Tragedy in Cumbria: will it lead to an overhaul of gun laws? =-.

8 keih June 30, 2010 at 03:22

Surely we have no Constitution only customs, Brown can do what he likes until he loses a vote on the speech from the thrown! Only than has he lost the confidence of the Commons House.

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