Ed can enter No. 10 without Nicola’s keys

by Carl Gardner on April 19, 2015

Ministry of Defence | Creative CommonsThis election looks a close-run thing – very close run indeed. As I write, polls and forecasts suggest strongly that no party’s going to get near a majority. There’s a lot of talk about what could happen after May 7th. And an idea’s beginning to take hold that, in a hung Parliament, Ed Miliband would need some sort of advance promise of support from the Scottish Nationalists before the Queen would appoint him Prime Minister.

That, though, is a wrong reading of the constitution. Except by allying with the Conservatives no smaller party – whether the SNP, the Liberal Democrats or even both together – can deny Ed Miliband “the keys to Number 10”. Let me explain.

Under our Parliamentary system, the test for whether a Prime Minister can govern or not is whether he (or she) commands a majority in the House of Commons. Once it’s clear to the Prime Minister that he no longer does so, by convention he should resign. It used to be the case that he had the option of asking the Queen for a general election if he lost the confidence of the House mid-term: that option is now removed by the Fixed-term Parliaments Act 2011.

But we’re interested not in the mid-term position: only in the situation immediately following an election. Even before the 2011 Act, by convention the Queen would not have granted a second dissolution of Parliament to a Prime Minister who’d just lost an election a few days or weeks before. On this, the constitution is unchanged. The Prime Minister resigns once it’s clear he no longer commands a majority. That’s what we’re used to seeing happen in the past, when one party lost an election, and the other clearly won it.

This is how it’s explained in one of the leading constitutional law textbooks, Bradley and Ewing (15th edition):

by a long-standing conventional rule, the government must have the confidence of a majority in the Commons. Therefore, when it is clear from election results that the Prime Minister … has lost the election and another party has been successful, he or she must resign immediately without waiting for the new Parliament to meet.

All very simple, when one side losing its majority at the election amounts to the same thing as the other being successfully achieving one. The problem about hung Parliaments is that they can break that equation. The government can lose its majority without anyone else winning one.

So which side of the equation matters then, in constitutional terms?  Is the PM entitled to carry on, even if it’s clear he himself will have no majority, until someone else succeeds in achieving one? Many have I think been misled by the events of 2010 into thinking so. But actually it’s the existing Prime Minister’s loss of a majority that is decisive. It remains the case that by convention he must resign once it’s clear he no longer has one: whether anyone else does is irrelevant.

A vital point to understand is that the duty to resign only arises when it’s clear that the PM’s majority is gone. He’s entitled to carry on as long as he might still have one (as Ted Heath did in February 1974). Ultimately, any uncertainty is resolved in the House of Commons itself. If he seriously thinks he can present his plans and win MPs’ approval for them after the election, David Cameron will be entitled to carry on and test the opinion of the House (as Stanley Baldwin did in 1924). But lose that vote on the Queen’s speech and his moment of clarity, and resignation, will have arrived.

This is the moment at which the “hidden keys” theory would be seen to be correct, or wrong. Would the Queen refuse to appoint Ed Miliband if he had no deal with another party showing his command of a majority? Would the Queen make him wait until he’d done such a deal? Would she allow or require Cameron to carry on regardless? Let’s see what monarchs have done in the past.

In 1924, as I’ve said, Baldwin came back following a general election to test the opinion of the House. At that election, his Conservatives were by some margin the biggest party: he had 258 of the 615 seats. But Labour on 191 and the Liberals with 158 ganged up to vote him down, and forced his resignation. As Nicola Sturgeon might put it, together they “locked Baldwin out of Downing Street”. The King appointed Ramsay MacDonald, the leader of the next largest party, without any question of his first having to prove he had a majority of his own. What happened is explained by Professor Rodney Brazier in his excellent book Constitutional Practice. Notice what he says at footnote 26 on page 34:

The National Executive Committee resolved on 12 December 1923 that the “Parliamentary Party should at once accept full responsibility for the Government of the country without compromising itself with any form of coalition”: The Times: 14 December 1923.

MacDonald’s government lasted only nine months. But the example shows that when the PM resigns, the minority leader of the biggest opposition party can expect to be appointed in his place even if he refuses any deal with others. Notice, also, that MacDonald had fewer seats than Baldwin.

In 1929, Baldwin resigned immediately following an election at which his party had won 260 of the 615 seats; again, MacDonald was appointed to lead a minority government, having only won 287 seats. There was no question this time either of his having first to prove he’d secured support from anyone else. His minority government lasted two years before MacDonald split Labour by going into coalition with the Tories.

In February 1974, Ted Heath won only 297 of the 635 seats. He tried to do a deal with the Liberals, who had 14, assuming he could also persuade the 7 Ulster Unionists to back him. But he could reach no agreement with the Liberals, and Heath resigned the Monday after the election. The Queen immediately appointed Harold Wilson to replace him. Wilson had 301 seats – admittedly a few more than Heath.

But it’s important to notice that this fact alone did not mean the Queen summoned him the morning after polling. He was appointed only after Heath resigned, in accordance with convention. And he was appointed in spite of having made clear he sought no deal with any other party. As this contemporary civil service note says,

Mr. Wilson had issued a statement making it clear that he was prepared to form a minority Labour Government but not to enter into any coalition or understanding with other parties in the House.

Yet again, we see that Wilson was appointed as a matter of course, the PM having resigned. His minority government lasted seven months before he won a knife-edge majority that October.

The example that may confuse people is 2010. The fact that Gordon Brown stayed on for five days after the election while the Conservatives and LibDems negotiated has I think given the impression that he resigned, and that a Conservative PM was appointed, only because a coalition deal gave Cameron a majority; that Nick Clegg “held the keys” to Downing Street. But the impression’s misleading, in a significant way. One particular detail is telling: Brown resigned before the coalition deal was struck.

They real “key” to understanding 2010 is to realise that the position of the LibDems, whose talks with both the main parties showed that (at least in theory) they might support either, more or less restored the equation between one side achieving a majority, and the other side realising it had lost one. So long as the LibDems might support him, Brown had the prospect of a majority, or at least being best placed to achieve one. But by the Tuesday, it was clear to him that prospect had gone. Tory-LibDem talks had reached the point where it was clear to Brown (whether Nick Clegg actually sealed the deal with the Tories or not) that he’d lost command of the House. He resigned; and Cameron as leader of the biggest opposition party was summoned as a matter of course.

Having gone through the history, now let’s look at how constitutional experts explain the position. Bradley & Ewing again:

Where the result of the election gives no party an overall majority in the Commons, the Prime Minister may continue in office for as long as is necessary to discover whether he or she is able to form a coalition or to govern with the support of other parties.

Not, you note, until some other combination of forces proves it has a majority.

Brazier says

If the party Leaders were to agree within a few days that a majority coalition could not be formed and that a minority government should take office (as in 1974) the succession question would be decided. The Queen, acting on the views of the party Leaders as published … would perform without controversy her dignified function of receiving the outgoing Prime Minister’s resignation and appointing his minority successor.

All it would take of course for it to be clear no majority coalition could be formed would be for Ed Miliband to refuse one in advance – like both MacDonald and Wilson.

Professor David Feldman puts it this way in his book English Public Law:

If there is a ‘hung’ Parliament, with no party in overall control, the monarch invites first the incumbent Prime Minister to continue in office; if he is unable to do so, then the leader of the largest opposition party is appointed Prime Minister.

This, of course, is precisely the principle I’m arguing for. Feldman cites what was written in a 2004 article in the journal Public Law by Professor Robert Blackburn, who explained

The incumbent Prime Minister has the first opportunity to continue in office and form an administration. If he is unable to do so (and resigns, or is defeated on the Address at the meeting of Parliament), then the leader of the largest opposition party is appointed Prime Minister.

The “Address at the meeting of Parliament” he mentions is the debate on the Queen’s speech. Professor Blackburn puts the same point in a very balanced way as author of the constitutional law section of Halsbury’s Laws of England (5th edition, 2014, §204):

a consensus is lacking as to what is the appropriate procedure to be followed if no party commands an overall majority. Some hold that the leader of the largest opposition party should be convention automatically be asked.

He himself holds that position, as we’ve seen; and in a footnote he adds that

This outcome was arrived at, for instance, following the inconclusive general elections of 1924, 1929, February 1974 and 2010.

But what alternative opinion might anyone else “hold”? Professor Blackburn explains that

In its account of existing practice the executive leaves open the possibility of a range of options, though emphasises the idea of political leaders resolving the issue between them and not drawing the monarch into party political decisions.

This “executive account of existing practice” is the Cabinet Manual, which calls itself a “guide to laws, conventions and rules on the operation of government” and “an authoritative guide for ministers and officials”. So we can assume it represents the advice the Cabinet Secretary will give both the Prime Minister and Buckingham Palace. It says (para 2.8)

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

It’s worth noting that a person most likely to command a majority is a different thing from a person who’s already shown he can do so. The Cabinet Manual puts it another way in the following paragraph (2.9):

In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons.

Again, the Cabinet Manual avoids suggesting an incoming PM must prove he or she already has a majority; the person appointed will be whoever is best placed to achieve one. That, if David Cameron resigns in May this year, is bound in reality to be Ed Miliband. There’s little if any difference between what Professor Blackburn and the Cabinet Manual each “hold”.

I must just mention the one theoretical circumstance in which Miliband might not be “best placed” if Cameron resigns in May. If it became clear not only that no other party would support Ed, but that MPs were rallying in large numbers behind some other figure, then that person might be best placed to command the House.

Feldman (who, you’ll remember, agrees with Blackburn and with me on the basic principle) covers this situation at a later point in English Public Law:

If in such a situation the incumbent Prime Minister finds that he or she is unable to command a majority in the House … the Queen will invite another person to see if he or she can form a government. This person may be the leader of the largest or next largest party in the House of Commons apart from that of the previously incumbent government. However if another person can command a majority in the House, for instance through a coalition or pact formed from two or more smaller parties, the sovereign may invite that person to form a government.

But who would that person be this May? Nick Clegg? And who’d be his supporters? Even with, say, 30 LibDem MPs, 50 from the SNP, the Greens, Plaid Cymru and all the Northern Irish parties, he’d still need many Tory or Labour defectors to displace Ed from pole position. This is all so far-fetched that it can just be dismissed for practical purposes.

Brazier says (he actually has in mind a coalition between the “outgoing” PM and others, like Ted Heath; but his point could apply in Feldman’s situation) that where a putative coalition has a real claim to have more seats at its disposal than the opposition leader, the Queen should wait to see if it can achieve a “copper-bottomed agreement” before appointing anyone else. But even in that example (in which helpfully for our purposes he casts Labour as the opposition), Brazier says, returning yet again to the fundamental principle I’ve been arguing for, that

If after the party negotiations no such copper-bottomed coalition agreement were to prove possible, the Queen should accept the outgoing Prime Minister’s resignation and appoint the leader of the Labour Party as minority Prime Minister.

If it becomes clear after May 7th that David Cameron no longer commands a majority and cannot continue in office, then in accordance with convention he’ll resign; and all precedent, all expert opinion and the Cabinet manual itself tell us the leader of the largest opposition party will be appointed Prime Minister. Miliband won’t first need to ask Sturgeon to go looking in her handbag.

How long his government could survive is a separate question.

My e-book What a Fix-Up! tells you everything you need to know about the Fixed-term Parliaments Act. Read about it here, and buy it here.

{ 100 comments… read them below or add one }

1 hatfield girl April 19, 2015 at 19:40

After a general election the sitting prime minister stays in office until he resigns, or until he is defeated in the House. It doesn’t seem any different from what it has always been. I had thought the outgoing prime minister also advises the head of state on his successor (along with other advisors) but perhaps that is no longer the case?

If the Conservatives have most seats in a parliament without an over all majority the Prime Minister may well choose (in the memorable words of Pierluigi Bersani after falling short by 7 in the Senate in 2013) to “go scouting” and see who can be caught using the considerable powers conferred by prime-ministerial patronage (and willingness to compromise).

There are some weeks before the new Parliament meets and, despite still having a first-past-the-post system, much greater experience of coalition building and coalition government since Brown’s failure to form a coalition after failing to be elected.

2 Carl Gardner April 19, 2015 at 20:02

Hatfield Girl,

After a general election the sitting prime minister stays in office until he resigns, or until he is defeated in the House. It doesn’t seem any different from what it has always been.

That’s right. It’s the same as it was in 1924.

I had thought the outgoing prime minister also advises the head of state on his successor (along with other advisors) but perhaps that is no longer the case?

The important thing is to realise that the Queen doesn’t have to act on any advice the outgoing PM gives on this. It seems some PMs do say something, others don’t. Brazier wrote (in 1999) that they’d offered advice about half the time; he quotes Harold Wilson as writing that there’s no duty or inherent right to offer advice.

This all makes sense if you think about it, since, if Cameron (say) gave advice while still in the room and Prime Minister, why should the Queen follow that advice once he’d left, and no longer was?

If the Conservatives have most seats in a parliament without an over all majority the Prime Minister may well choose … to “go scouting” and see who can be caught using the considerable powers conferred by prime-ministerial patronage (and willingness to compromise).

Maybe; in which case we wouldn’t have reached the point of Cameron’s resignation, so Ed’s “claim” wouldn’t arise. Actually it doesn’t matter whether the Tories had most seats or not, as the Ted Heath example shows. Constitutionally, “who has most seats” is a red herring. All that matters is when the outgoing PM is clear s/he can no longer command a majority.

3 nikhil April 19, 2015 at 20:29

Are you not ignoring this? Cameron could just say, in absence of a deal between Lab and SNP, there is no other person who could command a majority http://www.theguardian.com/politics/2010/dec/14/civil-service-rewrites-rules-prime-minister-resign

4 Alex April 19, 2015 at 21:52

My understanding of 2010 is that one of the preconditions for Lib Dem support of Labour was that Brown must go. If that had happened would convention state that the Queen should ask the agreed Labour successor to form a government or the leader of the largest opposition party?

5 MattF April 19, 2015 at 22:07

Carl, have I missed the possibility that Conservatives win most seats but Cameron then can’t form a government and so resigns? What happens if the person best placed to form a government is then the new leader of the Conservatives who other parties may then work with? Thanks.

6 Phil April 19, 2015 at 22:42

MattF’s question is an interesting one, but I think it would only have any practical importance in a situation where a hung parliament was accompanied by a leadership crisis in the governing party. Even then, I suspect HMQ would feel that not giving the opposition leader a go wasn’t cricket.

7 Carl Gardner April 20, 2015 at 00:43

Nikhil,

No, I don’t think I am ignoring it. I included two quotes from the very same Cabinet Manual. There are three reasons why I think the Cabinet Manual cannot have the radical effect you suggest.

First, what you’re saying is that the existing PM should stay on not till it’s clear someone else is best placed to command a majority, but till it’s clear someone else certainly will command a majority. But the Cabinet Manual doesn’t use anything like that wording. Why not? It easily could have done. The fact that it sticks determinedly to the language of someone being “most likely” or “best placed” to command a majority supports my reading, not yours.

Second, what you’re suggesting would be a radical shift in our constitution in favour of the current government. It’d mean the government could carry on regardless, even if it’d been humiliated at the polls and was well behind another party in seats – and in fact even if it was well behind two other parties in seats – just so long as it could keep the opposition divided. That’s such a dramatic pro-incumbent reading that it surely can’t be right. I accept that that government might not be able to pass any legislation; but government has power to do much more than just pass legislation. It can go to war, for example. It’d be extraordinary in a modern democracy to have such a sudden shift of power in favour of a rejected government.

And third, it’d be truly extraordinary to the point of being a constitutional outrage if such a profound change were caused not by legislation or any cross-party agreement, but merely by the issuing of a document by ministers in the very administration that would benefit from it following the next election.

These three considerations together I think make your approach untenable.

8 Carl Gardner April 20, 2015 at 00:48

Alex,

Good question. I think that would be like the example mentioned by Brazier, which I discuss towards the end of the post, and shows the value of his thinking. I think she’d wait to see if a “copper-bottomed” agreement could be reached that a majority (or at least a bigger minority than would be available to the opposition leader) would support the agreed successor. If there were such an agreement, she’d appoint the agreed new leader; if not, she’d appoint the biggest opposition party leader, as Brazier says.

9 Carl Gardner April 20, 2015 at 00:53

Matt,

I think this is the same situation as was mentioned by Alex: it’s the example mentioned by Brazier that I discuss towards the end of the post. If the original PM can’t get the support of other parties then I think a “copper-bottomed” agreement involving a new leader could displace the leader of the opposition party. As Alex suggests, this is what could have happened had Brown’s resignation as party leader in 2010 (remember that?) then led to a “progressive rainbow” coalition agreement.

10 Carl Gardner April 20, 2015 at 00:56

Phil,

I think this could work – but only with evidence of something like the firm agreement Brazier talks about. I think that actually emphasises the gravitational pull towards the leader of the biggest opposition party that there is once the sitting PM has lost hope of commanding a majority.

11 Simon Carne April 20, 2015 at 12:28

In my view, people over-complicate this issue by not distinguishing (1) the immediate aftermath of the election and (2) the longer term position which begins when parliament has been reconvened and is required to vote on anything of significance, starting with the Queen’s speech.

The first of these two time-frames is exciting, both in terms of the drama and the constitutional discussion it generates (even before it happens, as Carl’s blog illustrates), but no decisive governing takes place during this period.

What really matters is the second of the two time-frames, which depends on securing more Ayes than Noes – not more Ayes than half – on any vote of sufficient significance that its loss could indicate that the government can no longer govern.

If the post-election parliamentary arithmetic gives any individual party the “balance of power”, no amount of constitutional history or law can alter the fact that, by choosing how to vote (for, against or abstention) that party will determine which prime minister can govern and for how long.

It is a legal nicety to say that no one needs to ask the balancing party how they intend to vote before the name of the prime minister is known but, in practice, that is exactly what determines the outcome, as we saw in 2010 (http://www.simoncarne.com/constitution-nil/).

12 Carl Gardner April 20, 2015 at 12:50

Simon,

I think I draw the distinction clearly in my post. Of course you’re right about the enormous importance of the “second phase”. I may write about that soon. The reason I wrote this post was precisely because many people are merging the two phases you say should be kept distinct, by assuming that Ed’s likely difficulties if appointed mean he would not be appointed in the first place.

I agree that if the SNP has the balance of power, it will (in time) determine which Prime Minister can govern and for how long. But what it could not do (unless it actually allied with the Tories to keep them in, as I mention early in my post) is block Ed Miliband’s entry into Downing Street in early May.

I agree other matters become more important after that, in the second phase. That does not, though, detract from the importance of seeing clearly how the first phase works, and of challenging important misunderstandings about it.

13 Simon Carne April 20, 2015 at 13:36

Carl,

Let us hypothesise that the SNP have sufficient votes to block the Queen’s Speech by supporting which ever of Labour and Conservative is in opposition and (purely for the purposes of this thought experiment) let us also hypothesise that they announce that they will do exactly that.

Your second paragraph appears to say that, if Cameron were to resign, the Queen would invite Miliband to form a government, even though the same SNP announcement which had forced Cameron to realise he couldn’t govern would make it impossible for Miliband – possibly even more so if Cameron had more support in the House than Miliband.

(1) Are you sure that Miliband would be invited to face the same obstacles that had defeated Cameron? (2) Do you think Miliband would accept the challenge? In other words, (3) are you sure that the SNP could not, in practice, block Miliband, even if the constitution says otherwise?

I fully appreciate that my hypothesis is fanciful. I can see no point in the SNP wanting to block all potential governments and the consequences would be devastating for them at any subsequent election. But you made quite a strong statement about Sturgeon not having the power to block Miliband and I wonder whether that is really right. Or whether you are simply saying that, if Cameron can’t command a majority, the SNP is unlikely, in practice, to choose to block Miliband from governing, at least for a while.

By the way, when I said (above) “people” over-complicate the subject, I wasn’t referring to you!

14 Will P April 20, 2015 at 13:39

Carl – very interesting piece.

I think you successfully prove that in the eventuality that DC resigns, EM would be asked to form a government regardless of SNP support. He does not need to prove he has a majority of his own. As you say, the survival of that government is a different subject. Realistically however we all agree that SNP support for a minority Labour Queens Speech shortly after this would be decisive.

I do not think it is clear the circumstances under which the PM should to resign.

The phrase – “he/she doesnt control the house” – does this mean unable to form a majority themselves.. or does it also mean a lack of an opposition majority?

I still do not see why DC would resign unless faced with a clear majority against him “ie. he doesn’t control the house”. This is especially true should the Tories win the most seats. Should Labour win approximately 275 seats or less, they would be unlikely to be able to form a gov’t with full SNP support anyway. It would be dependent on full support from the Lib Dems as well. (Some calling this “Double Hung”).

In this instance I would agree with ‘Hatfield girl’ that the only reason for him to resign would be defeat in the house.

Unless you say there is clear constitutional precedent that would force him to resign, it appears that a Conservative Minority government would at least attempt to control the house, rather than just hand the keys to Number 10 to EM and a Labour Minority without much fight. Not sure the Tory back benchers will be happy with that purely based on ambiguous constitutional ‘precedent’ ?

It strikes me this Election is simply about which of the two will win the most seats.

15 Peter A Bell April 20, 2015 at 14:13

All of which would seem to make a mockery of British Labour’s “vote SNP, get Tory” scaremongering.

16 Carl Gardner April 20, 2015 at 14:27

Peter,

I don’t think so. It’s quite true that being the biggest party isn’t the key. But every SNP gain does make a Labour government less likely.

And if the SNP have the balance of power and vote down a Labour government on a confidence issue such as the budget (as they sometimes seem to threaten, though Nicola Sturgeon somewhat evasively played the idea down at her manifesto launch) then you would indeed end up with a Tory government.

17 Carl Gardner April 20, 2015 at 14:34

Will,

My argument is not about when, in time, Cameron would resign (either on the day after an election, or following a defeated Queen’s speech). My argument in this post treats those as equally possible.

All my argument is about is (a) that he would resign when he was clear he could not command a majority, either following a lost Queen’s speech or before; and (b) who’d be appointed when he did resign.

You say

The phrase – “he/she doesnt control the house” – does this mean unable to form a majority themselves.. or does it also mean a lack of an opposition majority?

It means he’s unable to form a majority himself, as I explain above. You lose a Queen’s speech, and command of the House, if a majority votes you down. It’s irrelevant whether that majority is united or divided.

I still do not see why DC would resign unless faced with a clear majority against him “ie. he doesn’t control the house”.

You’re right: he doesn’t. I don’t dispute that at all. But to have a clear majority against Cameron, it’s not necessary to have a clear majority for someone else.

18 Carl Gardner April 20, 2015 at 14:58

Simon,

I mean the strong statement; not merely that the SNP is unlikely to block Miliband.

There’s no problem with fanciful speculations! I think they’re very helpful to illuminate reality. But you need to think yours through in more detail, I think.

Let’s say Cameron, buoyed by the SNP’s promise to vote down any Queen’s speech at all (I think this was your hypothesis), takes the view that he’s still best placed to command the House. So he stays on, presents his Queen’s speech and loses it (Labour & the SNP combining to vote it down, on the assumption that together they’re a majority).

By convention, all previous practice and all expert opinion (as I’ve explained) he should then resign. Nothing supports your view that he can maintain his belief in his majority beyond that point. And note that if this came true, the SNP would not have “locked Cameron out”.

But say he did yet again decide to stay on, for the sake of argument. His staying on is of course (unless some other figure rallies the House behind him or her, which I discuss in my post) the only alternative to getting Ed.

Either Labour accepts that meekly; or else Ed now tables a Fixed-term Parliaments Act no-confidence motion. Now, unless the SNP abstains, or in some other way reneges on its pledge to “lock the Tories out”, Cameron loses that vote as well.

Again, by convention, all previous practice and all expert opinion (as I’ve explained) he should then resign. Nothing supports a view that he can maintain his belief in his majority beyond that point. And again, note that if this came true, the SNP would not have “locked Cameron out”. He’d be in.

If he did pig-headedly stay on (surely in the midst of a constitutional crisis) then again unless the SNP allied with him, an election would automatically follow under the FTPA. But it could only follow because both the Tories and SNP wanted it, and had combined to force it on Labour.

So, yes, there are several scenarios in which the SNP could combine with the Tories so as to enable Cameron to stay on, at least till a forced second election. That would, yes, have the result of blocking Ed. But this isn’t news; I say early on in my piece that they couldn’t block Ed except by allying with the Tories. The easiest way of blocking Ed would of course be to support the Conservatives, and every possible way of doing it does amount to that in the end.

What this all adds up to is that they can lock one possible Prime Minister out of Downing Street, but not both. If it’s true that the SNP will do all it can to “lock Cameron out of Downing Street” then it follows that they cannot block Miliband. If Cameron resigned at any point in the scenario I’ve just outlined, then the Queen would appoint Ed.

All you’re doing is asking us to imagine how things might play out if the SNP decided to lock Ed out instead. They can’t have both.

19 Simon Carne April 20, 2015 at 15:53

Carl

You said that I needed to think my hypothesis through some more, but then you discussed a very different one! In my hypothesis, I said “if Cameron were to resign” and yet you discuss a scenario in which Cameron stays on.

I think we can agree that, in the hypothesis I described, we end up with another election. It is by no means clear to me that Miliband HAS to be appointed PM before that happens. But, more to the point, it’s a near-pointless appointment since (in this hypothesis), he can’t actually govern.

In short, if this debate is about whether Sturgeon could stop Miliband being appointed PM for as long as it takes to hold another election, I am ready to concede that she can’t do that if Cameron quits and Miliband wants the job for a few weeks. But if, as I originally understood it, this debate is about whether Sturgeon could stop both Miliband and Cameron actually governing if she wanted to, I remain confident that she can … and equally confident that she won’t, so my point will never be tested.

20 Marlowe April 20, 2015 at 16:07

Many interesting points here. Can I just tease out a little the scenario in which the Tories have a plurality though Lab & SNP combined have a majority.

Initial talks between Lab & SNP don’t go well so Cameron says that as, in his judgement, no-one is better placed or more likely to command a majority, he will stay on and face the House.

His Queen’s Speech is duly defeated (as it would be politically unacceptable for Lab & SNP to do other than vote against it). Cameron then makes it known that he still thinks he should stay on, as the “winner” of the election, but he would immediately resign if a vote of no confidence in the govt is carried.

Now the fun begins. EdM can place a vote of no confidence, but he knows that if it is carried he will immediately find himself PM with an obligation to find a majority within 14 days (under FTPA). This is where the SNP truly become powerful because unless EdM is sure of their support in the subsequent confidence motion he cannot risk placing the initial no confidence motion. If the SNP were to abstain in the 14-day confidence motion (no need to actively oppose) then a second election would almost certainly follow, the blame for which Cameron would (with some justification) lay at EdM’s door.

I don’t believe the SNP would suffer unduly in such chaos and the ensuing second election, given that part of their core message is precisely that the Westminster system is dysfunctional. Their abstention on the 14-day confidence motion could easily be justified to their supporters by saying that they could not, as a matter of principle, support a govt which has refused to do a deal with them and remains committed to more austerity (“we are not the LibDems”!).

So whilst EdM would technically be able to enter No.10 without Nicola’s support in the above scenario, it might in practice be futile for him to do so.

21 Marlowe April 20, 2015 at 16:11

Have just seen Simon’s post of 15:53 and I think that in essence we are making the same point! Apologies for the duplication.

22 Carl Gardner April 20, 2015 at 16:32

Simon,

Okay; but if Cameron had already resigned, who do you say the Queen would appoint? We really are entering a science-fiction national crisis scenario if you’re suggesting the office would remain vacant. I’m sure President Kirchner would be asking how quickly a landing could be made on the Falklands, and I wonder what’d happen to the Pound.

As I said in my post, unless some other figure emerged behind whom many Tory or Labour MPs rallied, the only constitutionally sound option would be to appoint Ed.

If you’re saying “Ah, Cameron resigns but then is immediately reappointed, with no one in between” then we’re back to the logic of my earlier reply to you.

So if you think your hypothesis shows flaws in my argument and that you’ve fully thought it through, maybe you should say exactly how you think it’d play out!

I agree with you about governing. A hostile SNP could well bring down Ed Miliband. But as I said in my post, that’s a separate question from whether it can block him from achieving power initially.

Whether the SNP can stop Ed even reaching No. 10 in the first place is a very important question in itself, one on which some confused thinking seems to be going on and which I thought worth trying to clarify.

23 Carl Gardner April 20, 2015 at 16:45

Marlowe,

I notice you mention the SNP abstaining on a vote, which I think makes my point for me. Of course the SNP can block Ed, if they support the Conservatives! That’s surely obvious. The easiest way would be simply to do a coalition or other deal with Cameron; but there are other ways they could support him.

Many people seem to be assuming (as the SNP is encouraging them to) that the SNP can both “lock Cameron out” and “deny Ed the keys” unless he strikes some deal with them. I think my post demonstrates that they can’t (not just won’t); and I don’t think anything Simon or you has written calls that into question.

As I said in the post, unless they ally with the Conservatives in some form (for instance by abstaining on some vote unhelpfully to Labour, as you suggest) they cannot block Ed from No. 10. In fact in your example, they don’t even manage to do that.

To say appointing Ed would be pointless (yes, it could be if the SNP voted against his Queen’s speech) is not the same as successfully demonstrating that the SNP has the power to stop it happening.

24 Simon Carne April 20, 2015 at 17:03

Carl

I’m not trying to prove you wrong and I’m not suggesting that the PM’s chair would be left vacant. I am simply suggesting that, if the parliamentary arithmetic ends up matching the premise of your blog, the SNP would be able to stop both Cameron and Miliband from governing.

As to who would actually be PM once it had become clear that another election had to take place before any parliamentary business got done, I can see arguments for wanting to be the incumbent on the day after, but I can also see arguments for not wanting to suffer a defeat in the House immediately prior, so there would be some strategic game theory being analysed behind the scenes. If the job of PM has, temporarily, been reduced to holding the fort in case of attack, does it matter which party is in office?

25 Andy J April 20, 2015 at 17:08

Would anyone like to give odds on the West Lothian question being resolved in the next Parliament? Given the rhetoric from the SNP I can see that, whatever the make-up of the next government, the SNP will use every opportunity to cause mischief when the House is considering England-only legislation. The predicted strength of SNP Members in the House surely means they will get places on some of the more of the important Standing and Bill Committees. They could make Jacob Rees-Mogg look like a rank amateur when it comes to a fillibuster.

26 Carl Gardner April 20, 2015 at 17:23

Simon,

Fine: this post of mine isn’t about whether the SNP could stop Ed from governing. I’m trying precisely to draw the distinction between that second phase and the first phase, in which (according to my argument) either Cameron would survive a Queen’s speech or Miliband would be appointed; with no realistic opportunity for smaller parties to block him.

If you’re talking only about the second phase, then fine; perhaps we agree. But in what you write there does seem to be at least a faint implication (tell me if I’m wrong) that the prospective difficulties Ed might have in governing in phase two would somehow “feed forward” into phase one and stop him becoming PM.

If you do think that, then I think you need to meet the challenge I posed you earlier, and say who else you think would be appointed if Cameron resigned!

27 Calum Carlyle April 20, 2015 at 17:49

All of this article being correct, it is still true that Mr Miliband would not be able to run a minority government without the support of a practical majority in the house.

This either means vote by vote support from the SNP, going by current polls, or the much less likely idea of at least some of the Tory party defying their whip regularly and reliably to allow legislation to be enacted.

In practice, when Ed Miliband forms a government, it will be because the SNP voted against a Tory queen’s speech, to “lock David Cameron out…” and this Labour minority government will still not be able to run the country without SNP support.

So it’s not really clear what point is being made here about Labour “not needing” the ano, since clearly they will, if current polls are reflected in the election.

28 Carl Gardner April 20, 2015 at 17:56

Calum,

I thought I’d made it pretty clear what point was being made.

The post is not about whether Miliband could govern successfully in a hung Parliament without support from someone else. It’s about whether being able to demonstrate such support in advance would be a precondition for his appointment as PM.

29 Will P April 20, 2015 at 18:10

“Recent examples suggest that previous
Prime Ministers have not offered their
resignations until there was a situation
in which clear advice could be given to
the Sovereign on who should be asked
to form a government.”

This is from the Cabinet Manual

Carl – surely this supports the idea that if no clear agreement is made between SNP and Labour (or they dont have enough seats) there is no reason for DC to resign?

30 Marlowe April 20, 2015 at 18:17

Carl

I have not seen anyone (SNP or otherwise) suggest that the SNP could simultaneously “lock Cameron out” and “deny Ed the keys”. As you say, the office of PM cannot be vacant and in the current circumstances I agree with you that no-one else could plausibly fill it. However I didn’t think that rather obvious point was the one you were making.

I thought your point was that the SNP must perforce either support the Tories or Labour. My counter is that they could – in certain circumstances – simultaneously oppose the Tories and make their support for Labour conditional on a deal. The choice would then be EdM’s – do a deal and enter No.10 or refuse a deal and allow Cameron to remain. This is precisely what Sturgeon was getting at in last week’s TV debate.

Any “abstaining on some vote unhelpfully to Labour” would only occur AFTER Cameron had been forced from office, so could in no way be construed as supporting him.

Thus the SNP might (again, in certain specific circumstances) be able to deny Ed Miliband “the keys to Number 10″ without allying with the Tories. (Pedantically you might say he was denying himself the keys because he was unwilling to pay the price demanded by the SNP)

31 Carl Gardner April 20, 2015 at 18:37

Will,

You’re quite right that that’s a quote from the Cabinet Manual: it’s from para. 2.10. But no; I don’t think it supports the point you’re making.

First, it’s clear from the context and particularly from footnote 13 especially that the words you quote are meant to cover all changes of PM. The first two examples given are Thatcher being replaced by Major, and Blair being replaced by Brown. The central point being made in those words is that a PM with a majority should not just flounce off and leave his or her party with no idea who their new leader is.

Yes, I must admit footnote 13 goes on to mention 2010. But as I explain in the post, it’s a misunderstanding to read 2010 as proving a unified opposition majority must be sealed before a PM resigns. The best possible reason for thinking this is a mistake is that fact that it isn’t even what actually happened in 2010.

Actually, a later part of the Cabinet Manual supports what I’m saying here. Paras. 2.12 to 2.17 specifically discuss government formation after an election with a hung Parliament.

Para. 2.12 says:

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.

Not that this does not say (although it easily could have done) that the “clear alternative” must have a proven majority. Ed would be the clear alternative.

The Manual then goes on to discuss talks between parties, etc., but at para. 2.17 spells out three possible types of government that could result. The first of these is:

single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests

If what you’re suggesting were right, surely this would be impossible, and the Manual wouldn’t even mention it.

Or, at least, the Manual would spell out that only the sitting PM could attempt to govern as minority, wouldn’t it? Though I can’t imagine why that rule would make any sense.

32 Sandman April 20, 2015 at 18:55

What’ll likely happen is that the SNP will demand purposely unreasonable conditions for supporting Labour, such that they won’t be able to reach an agreement. The last thing the SNP wants to be doing is propping up a Labour government.

The SNP will then follow an abstentionist policy. They will say that neither EdM nor DC cares about Scotland, that the Westminster system is broken, and they will play no further part in it.

DC will then command greater support than EdM for the purposes of a no confidence vote, and will stay in No.10.

33 Carl Gardner April 20, 2015 at 19:17

Marlowe,

If my point is obvious, then my job is done! I think it is pretty obvious, actually, once you realise there have in fact been Labour minority governments before. But I don’t think it can be obvious to all, because you go on to disagree with me!

You say

they could – in certain circumstances – simultaneously oppose the Tories and make their support for Labour conditional on a deal. The choice would then be EdM’s – do a deal and enter No.10 or refuse a deal and allow Cameron to remain. This is precisely what Sturgeon was getting at in last week’s TV debate.

But I think I’ve disproved this. How would they “oppose the Tories”? What do you mean? The clearest way of analysing this is to suppose Cameron tries to pass a Queen’s speech. The SNP would vote against it, yes? They have to, to satisfy your condition for them to oppose the Tories. Labour would also vote it down.

As I said to Simon, convention and precedent say Cameron must resign at that point. If he does, then Miliband is the clear alternative, best placed to command a majority. He is appointed, unconditionally. The SNP could not block him.

If Ed then refused a deal with the SNP, the result might be to bring his government down in turn – and perhaps put the Tories back, or lead to an election through the FTPA process. It would not be to allow the Tories to stay in the first time.

The only way the SNP could try to make Ed’s entry to No. 10 conditional on their support would be to threaten either to vote with Cameron or abstain on his Queen’s speech so as to allow it through. That, of course, would be allying with the Tories.

I suppose Cameron could behave outrageously and stay in No. 10 even after losing his Queen’s speech, and even after losing a no confidence motion, forcing a second election. I think we’re now in the realms of fantasy (and to be honest I think the Queen would take the extreme step of dismissing him, if things went this far, to restore proper constitutional behaviour), but I’m prepared to think it through. I accept Ed could be “denied the keys” in this way, but only by Cameron and the Queen acting in an extreme, unprecedented way and plunging the country into crisis. It would not be because of SNP conditions, and they would not have “locked Cameron out”. He’d be in.

And my argument, anyway, is about what happens if and when Cameron does resign. Not if in some extreme, quasi-coup type of situation he simply refuses to, come hell or high water.

You say

Any “abstaining on some vote unhelpfully to Labour” would only occur AFTER Cameron had been forced from office, so could in no way be construed as supporting him.

Yes. And after Cameron was forced from office, Miliband would have been appointed. This example supports me, I think.

34 Simon Carne April 20, 2015 at 22:25

Carl

You have asked me to respond to the following point which you made above at 17:23:

“But in what you write there does seem to be at least a faint implication (tell me if I’m wrong) that the prospective difficulties Ed might have in governing in phase two would somehow “feed forward” into phase one and stop him becoming PM.”

No, I’m not saying the problems in phase 2 would stop him becoming PM. I am, however, suggesting that they might deter him from wanting to take up the role if he can see that it would be for only a few weeks.

My fundamental point is that this is a “game” (in the game theory sense of the word, not a pejorative sense) and the outcome will be determined by the various players in the game in the light of the post-election arithmetic. The constitution and the FtPA may well determine intermediate steps en route to the result, but they won’t determine the final result.

35 Marlowe April 21, 2015 at 00:38

Carl

From what you are saying it seems there was only one point of substance to your post which is that if Cameron resigns (at whatever point and for whatever reason) then EdM will immediately and unconditionally become PM. This point is obvious and I fully agree with it.

I thought you were saying more than that but it appears that I was wrong.

36 Anonymous April 21, 2015 at 15:02

Fixed Term Parliaments alter things. They disturb the post-electoral constitutional settlement; they alter the balance of power between the Executive and the Parliament. With Parliament ended but not the Executive I can see no ‘constitutional outrage’ in a prime minister refusing to give way to an Opposition leader who is in no better an electoral position to claim the premiership; certainly not when ending the parliament has passed almost beyond political control.
Furthermore, with a declaredly a-political, hereditary head of state, a return to further elections is the only democratic solution. And during such democratic consultations, the sitting prime minister remains, he doesn’t take turns with an antagonistic Opposition leader. David Cameron is in power, and has every justification for remaining so until he is dismissed by the electorate, not the parliament. FTPs change everything.

37 Carl Gardner April 21, 2015 at 17:32

Sandman,

The scenario you outline – an SNP determined simply to abstain on everything – is highly unlikely, I think, but certainly worth thinking through.

But I suspect it supports my argument. If Cameron knew he’d be able to get a Queen’s speech through because of SNP abstentions, then yes, the SNP would have blocked Ed; but only because they can obviously always do that by offering some sort of support to Cameron (which this would be).

If Cameron still couldn’t get his Queen’s speech through, then obviously Ed would be in.

38 Carl Gardner April 21, 2015 at 17:39

Simon,

Fine: it seems we agree. I’m not making an argument about whether Ed will choose to accept the Premiership. I’m simply making an argument about the SNP not being able to block him from being appointed (except by the obvious route of actually helping the Conservatives stay in instead), or make his appointment somehow conditional.

I very much agree with you about game theory. That’s in a sense why I wrote this post. I think it will help everyone’s “wargaming” of the post-election situation if we’re clear about one important element of it: even if they hold the balance of power in a hung Parliament, assuming they do not defect from their strongly-avowed opposition to Conservative government the SNP cannot deny Ed Miliband the Premiership.

39 Carl Gardner April 21, 2015 at 17:41

Marlowe,

No, that’s it! It was that one narrow but important point I was trying to establish in this post. I’m pleased you agree it’s obvious! I wrote this because some people have been saying things that imply it’s wrong.

40 Carl Gardner April 21, 2015 at 17:59

Anonymous,

I disagree with what you say. But it is interesting, in more ways than one.

What I agree with is that the Fixed-term Parliaments Act has shifted power as between Parliament and the executive. I think, contrary to what its fans argue, that it shifts power to the executive, not away from it.

I think your reading of it is extreme, and I don’t think you’re right. Even under the FTPA, a PM would normally be obliged to resign if defeated on a matter of confidence, or at least on a no confidence motion under section 2(3)(a) of the Act.

But your approach does in a way typify the sort of literalist, “force me out of power” thinking the FTPA encourages. If you were right, then a Prime Minister, even with a dwindling band of MPs going down from 300 to 250 to 200 and so on, right down to 50 or less, could keep sitting in Downing Street, keep being voted down, and keep going through fresh elections, never resigning at all – just as long as no other party achieved a majority in any of the series of elections.

In fact, what on your approach would make that PM resign even if someone else did obtain a majority?

This shows the poverty and the danger of written-rule literalism. Constitutional conventions are not airy nonsense: they’re what make it hard for politicians to stand on their small-print rights. One of the big problems with the FTPA is that it’s encouraged everyone to think everything has changed and that there are literally no rules except those written in that Act.

Finally, I don’t agree that the FTPA affects government formation immediately after an election (and I’d like to see a fully worked-through argument explaining why, if anyone claims that it does). I think it makes no difference to that. It does make a difference once a government’s in business.

41 Marlowe April 21, 2015 at 19:30

Carl

Good to hear that – thank you. From some of your replies I was under the impression that you were claiming that the SNP would in no circumstances be able to deny EdM the keys to No.10 without explicitly supporting Cameron as incumbent (i.e. voting with the Tories on a Queen’s Speech or confidence motion). I don’t believe this to be the case as I (and others) have outlined above.

I’m glad we’ve clarified that their inability to deny EdM is only absolute in circumstances where Cameron has already resigned (or announced his decision to do so).

42 Carl Gardner April 21, 2015 at 22:38

Marlowe,

I agree with what you say, but must make insist on the other side of the coin you’ve just described, which is (as I said in my post) that an SNP holding the balance of power would have no ability to deny Miliband the Premiership at all, except by using their votes in such a way as to allow Cameron to remain in office instead.

I agree that to achieve this, the SNP need not necessarily explicitly support Cameron in the sense of voting for his Queen’s speech or against a motion of no confidence in him. Depending on how many seats each party had, they might do it by abstaining. But they would have to actually support him by deploying their votes in a way that secures his survival.

Otherwise – if they stay true to their avowed total opposition to Conservative-led government, and vote against its Queen’s speech – they have no ability to block Miliband at all. This is very important, since it’s quite likely David Cameron would assume this is how they’d behave, and make a resignation decision based on that assumption well before he could try to pass a Queen’s speech.

If you agree with all that, then we’re at one!

43 Felix the cat. April 22, 2015 at 19:13

It occurs to me that their is another option.. If EM has the largest party but only just, he will be asked to form a government. He then says “No”. and leaves DC and the conservatives to form a Government with even less chance of passing legislation. It’s unlightly that they will also refuse as well. This is when EM holds their feet to the fire. DC and his administration will look stupid and inept. EM calls for the repeal of the FTPA which only needs a majority- not the two thirds that the FTPA needs to fold a parliament. EM looks statesman like and DC runs around like a headless chicken trying to maintain an unsustainable government. At this point it’s back to the country and EM looks better than DC or his successor . I say “successor” as no Tory PM has been in post within six mouths of failing to win a GE as at this point they will be fighting like cats in a bag.

Enjoy.

44 Felix the cat. April 24, 2015 at 16:11

Here’s another bit of nonsense… DC has more seats but no majority he is asked by the queen to form a government. He dose so and appoints ministers to the departments. But he dose not bring forward a queens speech.. No new primary legislation is offered. No QS, no vote of confidence, things carry on as before using the existing legislation. Measures and instructions to departments will keep things ticking.

So why would he do that? First, this uses time and he may feel that the country will move his way.
Second the boundary commission will have time to redistribute constituency’s again and this may well favor him. Thirdly, the constitutional skwaking this will through up will do more damage to the other party’s than his own, although the Euro skeptics will have a fit with no referendum.

The only thing to stop this synopsis is the Queen dismisses him which she will be reluctant to do this as this is direct interference in parliament. Or DC tenders his resignation at a time of his advantage… Fun!

45 Nigel D April 24, 2015 at 20:48

What would happen if a national emergency arose between the outgoing PM leaving the palace and the incomer arriving?

46 Marlowe April 25, 2015 at 00:05

Carl

We are moving towards agreement however I still believe that the SNP can (conditionally) deny EdM the premiership without compromising their “avowed total opposition to Conservative-led government” and in so doing they can vote against a Tory Queen’s Speech.

A possible scenario as to how this might occur was given in my post of 20th April (16:07). You said the problem with this scenario was that a defeat on a QS would automatically lead to Cameron’s resignation (following convention and precedent) and the entry of EdM into No.10. However the Commons Information Office confirmed in 2013 that following the introduction of the FTPA a QS is no longer considered a confidence issue so the convention no longer applies.

47 Marlowe April 25, 2015 at 00:21

Nigel D

A good question but as the “gap” between PMs is normally no more than an hour or so it’s not something I think we need to worry about unduly!

Technically I suppose the Queen would be in charge for the very brief period during which the office of PM is vacant and she has no government (?). Practically I expect in a time of crisis the outgoing ministers would continue to exercise their offices until the new ones had arrived to take up their positions.

48 Marlowe April 25, 2015 at 00:36

Felix the cat

As we don’t have a written constitution it might be possible to do away with the QS, or the subsequent Commons debate on it (which is what gets voted on). However that isn’t going to happen this time round as the QS is already fixed for 27th May.

49 Carl Gardner April 25, 2015 at 11:34

Marlowe,

Please give us a link to that Commons Information Office note you’re relying on. I find that very surprising indeed.

Even if you’re right, were a Queen’s speech lost the Opposition leader would surely table a motion of no confidence. The SNP would then have to decide whether to support it, vote with the Conservative government, or abstain knowing that would help one side or the other. I’m afraid they could not keep avoiding the choice, as you suggest they could.

Finally, I must point out how the FTPA is encouraging you to think in ways that are outrageously favourable to the executive. You’ve suggested they can simply carry on merrily after losing a Queen’s speech; and now you’ve suggested a Queen’s speech can just be dispensed with.

Critics like me have been saying for ages that the FTPA is a pro-government, anti-Parliament measure. I don’t think it goes as far as you do, but the fact that you can imagine these things shows the regressive shift in thinking this bloody awful Act has caused.

50 Felix the cat. April 26, 2015 at 11:16

I put the no QS thing up as a bit of fun, for discussion. In reality a simple motion to the house for a “Motion of confidence in the government.” would see off it off. Such would deal with it unless the house was so divided that could not win such a vote. If this was the case, HMQ would dismiss the PM.
Simpells.

51 Andrew Bourne April 26, 2015 at 13:26

Sorry if you have already addressed this question. Does the monarch still involved in the appointment of First Minister of the Treasury following the fixed terms legislation. If not is this not wrong that an unelected person is involved in choosing the First Minister and that one of the important acts for the next Parliament that only democratically elected persons should decide who is the Prime Minister

52 Thill April 26, 2015 at 17:34

Excellent post. So what u r saying is that in the event of Cameron resigning (as he surely would if defeated at Queens speech) the EM becomes PM. That’s it. You are not making any claims for what happens next. Right?
But what happens next is even more interesting. Does the new PM have to do a queens speech? And if he refuses to do a deal with the SNP and they abstain and he us defeated, what then?

53 Nigel D April 26, 2015 at 19:01

Cabinet Manual para 2.19: ” The Prime Minister is
expected to resign where it is clear that he
or she does not have the confidence of the
House of Commons and that an alternative
government does have the confidence.

54 Thill April 26, 2015 at 20:08

Nigel D : so if no-one has the confidence? Another election? Or can Cameron stay unless Labour / SNP announce a deal….so he can force them into a deal….if Labour continue to say ‘No deal with the SNP,’ Cameron can just sit…

55 Pam Smith April 27, 2015 at 01:47

This blog is really helpful. I remember getting very distressed as a teenager when I saw on the news that Ted Heath was trying to form an alliance with the Liberals that would keep him in Downing Street in 1974 instead of leaving immediately because he hadn’t gained a majority, with my parents trying to explain this didn’t mean he was establishing a dictatorship. Maybe studying modern European history for A level had made me a bit over sensitive about democracy!

What strikes me about all the hypotheses proposed above is that they assume the sitting prime minister is under no pressure to do anything within a particular timetable. I remember from the formation of the coalition in 2010 there were some shadowy civil service and Buckingham Palace representatives mentioned who seemed to be driving the process towards a conclusion. And of course if Parliament is reconvened with a minority government, we currently have a Speaker who is very assertive about the right of Parliament, not the executive, to make decisions about how it conducts itself. Perhaps this is why Gove and Hague staged an attempted coup to destabilise him on the last day of Parliament? Or would that be unfairly ascribing too much self-serving cynicism to the last government?

56 Carl Gardner April 27, 2015 at 12:33

Nigel D,

With respect, I think your comment shows the dangers of selective quotation from the Cabinet Manual. The Cabinet Manual needs to be treated with care: all it is is the government’s view of the relevant conventions. It’s not actually a written constitution. I’m not sure it’s brilliantly drafted, or correct in all respects (the reference to 2010 in footnote 13 under Chapter 2 is certainly wrong, for instance). But it definitely needs to be considered as a whole.

You’ve quoted from para. 2.19, but it’s important to notice that that paragraph comes under the heading: “Change of Prime Minister or government during a Parliament”. Paragraph 2.18 follows the heading, and is clearly about Thatcher-Major and Blair-Brown handovers. There then follows your paragraph, which is plainly about what governments have to do after losing votes of confidence in mid-term. It’s not about the immediate post-election situation.

The post election situation in a hung Parliament is covered by paras. 2.12 to 2.17, under the heading “Parliaments with no overall majority in the House of Commons”. Para. 2.17 makes clear that –

The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

• single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
• formal inter-party agreement, for example the Liberal–Labour pact from 1977 to 1978; or
• formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons.

If what you’re implying were right (I think you’re implying that a PM need not resign unless and until it is clear that another government will carry the House) then it’s quite difficult to see how the first bullet point here could ever come to pass. I don’t think what you’re implying can be squared with para. 2.17.

After all that, now let me deal with what the paragraph you’ve quoted literally says. To say

The Prime Minister is expected to resign where … an alternative government does have the confidence

is not quite the same as saying

The Prime Minister is not expected to resign unless … an alternative government does have the confidence

but it’s this second meaning I think you must be contending for. The literal meaning of the passage you’ve quoted does not contradict me.

All this shows the danger of written constitutioning. In March 1974, no one would have suggested Ted Heath could cling to power just because Wilson had no proven majority. There would have been outrage if he’d tried. Whereas now, even just on the strength of a government document that does not claim to change the constitution and which cannot legally do so, people are tempted to use it to conclude that the constitution has radically changed so that David Cameron can now do what Ted Heath couldn’t. Strange.

57 Carl Gardner April 27, 2015 at 12:42

Thill,

So what u r saying is that in the event of Cameron resigning (as he surely would if defeated at Queens speech) the EM becomes PM. That’s it. You are not making any claims for what happens next. Right?

Right. I’m not making any claims about what happens next.

But what happens next is even more interesting. Does the new PM have to do a queens speech? And if he refuses to do a deal with the SNP and they abstain and he us defeated, what then?

Yes, he would have to do a Queen’s speech, I think; though he might table a motion of confidence in the government first, to try to settle things more quickly. I think these are political questions about Parliamentary tactics, more than constitutional law questions.

If the new PM is defeated on a matter of confidence, then the traditional convention applies: he should normally resign (given that the Fixed-term Parliaments Act prevents him from unilaterally asking the Queen for a fresh election). If there were someone else with a decent case for trying to govern (say, a new Tory leader who’d somehow gained unexpected support from other parties) he or she should be appointed. But that’s probably unlikely. Another far-fetched scenario would be a “grand coalition” between the two big parties. But we’d probably be in a situation where, each of the big parties having tried and failed, it was clear only a fresh election could resolve things. That could happen either by both big parties agreeing to one, or by a Fixed-term Parliaments Act no confidence motion being passed and not “cancelled out” within 14 days.

58 Carl Gardner April 27, 2015 at 12:48

Andrew Bourne,

Yes, the Queen still appoints the PM. But it’s wrong to think she just chooses someone she personally wants. Convention limits her choice to the person in the Commons best placed to command a majority in the Commons. If a vacancy arises, it’s almost always going to be completely obvious who this is. It was obvious in 2010 that this was David Cameron. If a vacancy arises in 2015 it’s obvious (unless all the polls are wildly wrong) this will be Ed Miliband.

Democratically elected people do actually choose the Prime Minister.

59 Carl Gardner April 27, 2015 at 12:54

Nigel D,

On national emergencies at a critical moment – good question. If something sudden happened literally in the minutes or perhaps hour between on PM getting in the car to the Palace to resign and the next one arriving at No. 10, then the new PM would have to be briefed and act quickly.

More seriously worrying is what’d happen if an emergency arose while post-election haggling was going on. Either the “caretaker” PM would handle it; or he or she would resign to allow the clear alternative PM to handle it before negotiations were concluded. Which option would be wiser might I think depend on the nature of the issue and the “lie” of political forces. For instance were it a defence matter, and the PM in waiting had a very different approach to defence policy, it would I’d suggest be right to resign to let the new policy direction take effect.

60 Carl Gardner April 27, 2015 at 12:56

Felix,

I expect fun from cartoon cats! No worries.

I think an opposition no confidence motion under the Fixed-term Parliaments Act would be the motion that could end the situation you raise.

61 SpinningHugo (@SpinningHugo) April 27, 2015 at 14:27

There is considerable confusion here (and elsewhere – for an egregious example https://colinrtalbot.wordpress.com/2015/04/26/who-governs-britain-after-may-7th/) about the Fixed Term Parliaments Act and what it does.

A Government *only* comes to an end when the Prime Minister resigns (or dies). Once upon a time the sovereign could remove the PM, but those days are long gone.

So, Gordon Brown’s government ran from 27 June 2007 i(when the Queen appointed him) until 11 May 2010 (when he resigned four days after the election for a new Parliament). Margaret Thatcher’s government ran from 4 May 1979 – 28 November 1990. Every single government ends with the resignation of the Prime Minister, and may be uninterrupted be general elections for Parliament.

The issue then is when must a Prime Minister resign? The answer (and this is Convention only) is when he or she no longer commands a majority of the House of Commons.

How can a Prime Minister who once has this, lose it?

One way is that the composition of the Commons may change in a General Election, but that is not the only way.

It may be that a succession of byelections change the composition of the Commons. it is also possible that he loses this because a group of MPs change allegiance whether from his own party (eg the Liberals under Gladstone because of Home Rule) or another (eg if the SNP swapped sides after the 2015 GE.)

Once the PM has lost the support of the Commons, and there is another person who has it (usually the leader of the opposition but not necessarily – see the change of government during WWII) the PM *must* resign, recommending to the sovereign that she calls on that other person to form a government.

Now in some circumstances it may be unclear whether a PM still commands the confidence of the House of Commons. that is tested by a vote of confidence, often tabled by the opposition.

NB the FTPA does NOT define what confidence vote is. What it does is sets a fixed term of 5 years, and a procedure in section 2 for an early election. That is it.

How has the Fixed Terms Parliaments Act changed any of this? Only in one respect: it has made the PM’s position weaker, not stronger as Carl suggests.

Prior to the FTPA the PM could ask for a dissolution instead of simply resigning. The Convention had become that this was always granted by the sovereign. This acted as a deterrence (the opposition may not want an election) and a fresh chance (a new Commons may be differently constituted and support the PM). The Act takes this power away from the PM. His only option now is resignation.

The FTPA alters when Parliaments come to an end (through dissolution) not when governments come to an end (through resignation).

62 Marlowe April 27, 2015 at 15:20

Carl

The Commons Information Office position comes via this article in the New Statesman;
http://www.newstatesman.com/politics/2013/05/if-queen%E2%80%99s-speech-amended-prime-minister-must-resign
(scroll down to the “Update” for the bit about the CIO)
The CIO position seems to be that the FTPA has indeed defined what is, and what isn’t, a confidence motion (contrary to what Spinning Hugo asserts in his post earlier today). Whether or not that was parliament’s intention when it passed the FTPA is of course a completely different matter!

I would also commend Colin Talbot’s blog on the topic which is linked to in Spinning Hugo’s post. Prof Talbot shares my understanding of the position on the Queen’s Speech and I don’t believe this is “regressive” thinking: I am merely pointing out what I believe are the consequences of the FTPA – I make no moral judgments on the “bloody awfulness” (or otherwise) of the Act. For what it’s worth I agree with you and Prof Talbot that the FTPA has in some respects strengthened the position of the incumbent government.

Finally I am quite clear that the SNP would not “avoid the choice” if it came to a no confidence motion in Cameron’s govt – they would support it. However that does not mean they would automatically support the subsequent 14-day confidence motion in EdM’s government; therein lies the problem for Labour and the way for the SNP to oppose the Tories yet (potentially) keep EdM out of No.10.

63 SpinningHugo (@SpinningHugo) April 27, 2015 at 15:46

The relevant provision is section 2 of the Act

http://www.legislation.gov.uk/ukpga/2011/14/section/2/enacted

I have no idea who Eaton spoke to at the CIO, but the words are quite clear. They provide a mechanism for the early dissolution of Parliament and the calling of an election within the 5 year term.

They do not provide

(a) when a PM must resign

or

(b) what a vote of confidence is

or

(c) who the Queen must call upon to be PM

Or anything of that kind.

Wholly unsurprisingly as the Act concerns the legislature. Not when the Prime Minister must resign and a new government formed.

The correct answer is in the words of the Act.

Talbot is, I am afraid, very confused.

64 Thill April 27, 2015 at 18:33

It’s really interesting stuff. Thanks again. Can’t help but think that the media are underestimating the strength of the SNP position, in the event that Cameron gains most seats, but not a majority, they can kick him out with Labour. But then if Labour refuse to negotiate with them, they could threaten to abstain, in which case Labour is defeated and a new election takes place. They are the kingmakers!

65 Marlowe April 27, 2015 at 18:36

Spinning Hugo

There has never been a legal definition of a “matter of confidence”, it has always been a question of interpretation. Following the FTPA the official (CIO) interpretation is now that only the motions in the FTPA are “matters of confidence” and therefore – by extension – votes on all other matters are not ones of confidence and so do not oblige a govt to resign. There is no confusion here and Prof Talbot is not wrong.

You are of course correct that the FTPA is concerned with parliamentary dissolutions and not govt formation/resignation. But the above is an (unintended?) consequence of the FTPA.

If you don’t believe George Eaton’s report accurately reflects the CIO position I suggest you take that up with him and/or the CIO.

66 SpinningHugo (@SpinningHugo) April 27, 2015 at 18:56

“Following the FTPA the official (CIO) interpretation is now that only the motions in the FTPA are “matters of confidence” and therefore – by extension – votes on all other matters are not ones of confidence and so do not oblige a govt to resign.”

Perhaps you could point me at the words in the Act you think justify that?

http://www.legislation.gov.uk/ukpga/2011/14/contents/enacted

Certainly Talbot relies on none. He just airily talks about what he thinks the Act says, when no such words are there.

I haven’t seen any ‘official’ interpretation. I know what Eaton reports he was told. Without more, I’ll rely on my ability to read plain and clear statutory words.

I’d advise any lawyer to do the same, the New Statesman not being a source of law.

67 SpinningHugo (@SpinningHugo) April 27, 2015 at 19:53

To help you out in your reading of the Act, the kind of words you are looking for are

“A confidence motion means, and means only,…”

or

“A government shall resign when…”

Or some such.

I am sure that all those talking about the FTPA have in fact read it.

68 Nigel D April 27, 2015 at 20:37

Carl

On national emergencies at a critical moment – good question. If something sudden happened literally in the minutes or perhaps hour between on PM getting in the car to the Palace to resign and the next one arriving at No. 10, then the new PM would have to be briefed and act quickly.

I suppose the extreme case would be if an enemy decided the interval between PMs was an opportune time to lob a few missiles at us. I presume a PM’s resignation does take effect as soon as it’s accepted rather than once his successor is appointed (which would avoid any interval)? Is there a fall-back role for e.g. the Cabinet Secretary?

More seriously worrying is what’d happen if an emergency arose while post-election haggling was going on. Either the “caretaker” PM would handle it; or he or she would resign to allow the clear alternative PM to handle it before negotiations were concluded.

I notice the quotes around “caretaker”. Rather labouring the point, but there should be no such thing if the incumbent must resign upon ceasing to be a contender?

69 Nigel D April 27, 2015 at 20:40

So now I’ve established above that doesn’t work on here! What does?

?

70 Nigel D April 27, 2015 at 20:48

And that last comment was where I discovered that blockquote works but quote doesn’t (but both are invisible). Apologies for the intrusion…

71 Nigel D April 27, 2015 at 20:55

Really sorry for littering your comments with my failed HTML experiments. If you’re able to delete comments 68, 69, 70, what I was attempting to say was:

Carl

On national emergencies at a critical moment – good question. If something sudden happened literally in the minutes or perhaps hour between on PM getting in the car to the Palace to resign and the next one arriving at No. 10, then the new PM would have to be briefed and act quickly.

I suppose the extreme case would be if an enemy decided the interval between PMs was an opportune time to lob a few missiles at us. I presume a PM’s resignation does take effect as soon as it’s accepted rather than once his successor is appointed (which would avoid any interval)? Is there a fall-back role for e.g. the Cabinet Secretary?

More seriously worrying is what’d happen if an emergency arose while post-election haggling was going on. Either the “caretaker” PM would handle it; or he or she would resign to allow the clear alternative PM to handle it before negotiations were concluded.

I notice the quotes around “caretaker”. Rather labouring the point, but there should be no such thing if the incumbent must resign upon ceasing to be a contender?

72 Brian Barder April 27, 2015 at 22:57

Carl,
All fascinating stuff with many illuminations of hitherto dark places. If I might venture into the bear-pit, though, I think you may be underrating the important implications of the Cabinet Manual, some of which in practice look as if they are meant to supersede some of the precedents that you and other authorities have relied on. For example, one of the purposes of the Manual, according to its authors, is to relieve the Monarch of her right and duty to decide for herself (of course after her advisers, such as by tradition her principal private secretary, the Speaker, the cabinet secretary and the prime minister’s principal private secretary, have taken soundings of the party leaders, former prime ministers, and others) who in her opinion is likeliest to form a government that will command the confidence of the House: that selection is now, under the Manual, to be done by the party leaders through interparty negotiation, and the result reported to the Monarch — who is apparently expected to act on it without question. This withdrawal of one of the Monarch’s few personal prerogatives on the basis of a document written by a cabinet secretary with the assistance of two (admittedly eminent) professors, and informally approved by the then party leaders with only the most cursory national debate and parliamentary sanction, has quietly become part of the constitution, with the dubious consequences that you rightly deplore.
In particular I am not entirely convinced by your argument that para 2.19 of the Manual, requiring a defeated prime minister to remain in office until a successor with the confidence of the House is identified, applies only during the life of a parliament and not in the situation immediately after an election. This ingenious downgrading of the paragraph seems to me to be contradicted by footnote 12 (still Chapter 2) which admits that the doctrine set out in 2.19 has not been universally accepted by several authorities, the footnote ending: “the House of Lords Constitution Committee concluded that an incumbent Prime Minister has no duty to remain in office following an inconclusive general election until it is clear what form any alternative government might take” — clearly relating 2.19 to a post-election situation. I also suggest that there was indeed a vigorous attempt in 2010 to persuade Gordon Brown to obey 2.19 and to defer his obviously inevitable resignation until Cameron and Clegg had tied up and signed the coalition agreement which alone made it clear that Cameron’s (coalition) government would command the confidence of the House: Brown, sick of being assailed by the tabloids for “clinging to office” when he had clearly lost the election, lost patience and decided to resign even before the coalition negotiations had been completed (he’s reliably reported to have telephoned Clegg to tell him of his decision, Clegg imploring him to hold on just a little longer to give him time to wrap up the agreement with the Tories).
In accordance with the Manual, the ciivil service — obviously including the author of the Manual — was closely involved in the coalition negotiations and I believe, although I can’t cite a source off-hand, that the cabinet secretary concerned was also pressing Brown not to resign until “an alternative government [did] have the confidence” [of the House], to quote 2.19.
I have offered some thoughts about all this, including a respectful tribute to your blog post under discussion, in a post on my own blog at http://www.barder.com/4445, qv, where I quote virtually the whole of both 2.19 and footnote 12, both of which I suspect may cause endless confusion and misunderstanding on and after 8 May!
(I should mention that the version of the Cabinet Manual on the Cabinet Office website is dated 2011 although an earlier edition was of course “in force” before the 2010 election for which it was written, at Gordon Brown’s request; but I think the cautiously contradictory footnote 12 was added *after* the 2010 election.)

73 Sam G April 28, 2015 at 01:19

There is nothing in FTPA that stops or excludes other votes of no confidence in Parliament – the only type of vote of confidence it references is the one to trigger an early election within the confines of section 2 of the FTPA. FTPA has nothing at all to do with which person is PM or the make up of the government. All the constitutional conventions relating to Parliamentary votes of confidence and the effect on serving PM’s and their constitutional position to recommend that the Sovereign calls on an alternative person to be PM (or not) remain intact. Spinning Hugo is correct. An incoming PM taking over after a sitting PM has tried and failed to command confidence of the house can not call an early election to attempt to seal his legitamacy as has happened previously unless he can also control the special majority needed for the FTPA early election procedure.

Slightly off the point, but the position that hasn’t been considered is that where Labour (acting in a very grown up fashion) decides that life in charge of a minority adminstration that is always going to be seeking SNP support just isn’t going to be worth it, and any sort of deal or reliance on SNP will damage their credentials of being a pro-Union party irreparably. Then I can actually foresee them putting a bit of a squeeze on the Tories behind the scenes to produce a Queen’s Speech with a few things to appease Labour thrown in on which they could abstain rather than vote against. There is no absolute requirement for the Opposition to vote against a QS. The gamble on Labour’s part would be that the Tories will become ever more hated in minority government and that they can actually get more of their agenda through by making the Tories kow-tow to them in order to ensure their continued abstention when it comes to money bills etc rather than been torn to shreds continually by the SNP. The gamble would be that after 5 more years of SNP in Scotland, the Scots might have just woken up to the true horror of what the SNP are and what continued division is going to do to the Scottish economy, so that come 2020 they should be poised to win handsomely in Scotland and England/Wales.

74 Alan Bell April 28, 2015 at 10:36

so if Cameron can’t command a majority it would seem they look for the person best placed to have the confidence of the house. That is normally the leader of the second largest party, but what if it is someone else from the conservatives, maybe Boris Johnson?

75 SpinningHugo (@SpinningHugo) April 28, 2015 at 11:06

” That is normally the leader of the second largest party, but what if it is someone else ”

Could be, see Churchill taking over from Chamberlain.

It is PMs duty to tell Q who she should call.

76 Philip April 28, 2015 at 14:24

“There is nothing in FTPA that stops or excludes other votes of no confidence in Parliament”

True, not explicitly, but it has to be implied. Take a situation where the party holding the balance of power in the Commons uses its votes in such a way to prevent either of the two largest parties passing a budget in the form it wants, but also uses its votes to block a s2(4) no-confidence motion. (And that one of the large parties doesn’t want an election so prevents a s2(2) two-thirds majority being achieved). The Queen would have to fit a revolving door to Buck house.

77 Heather Barrett April 28, 2015 at 15:33

This is very helpful. An excellent analysis of what will happen if there is a hung parliament. Thank you.

78 SpinnngHugo April 28, 2015 at 16:24

Philip

“it has to be implied”

I don’t understand why.

In your (to say the least unusual) scenario

1. There is no majority for a Budget.

AND

2. The motion that would trigger an early general election is blocked.

How would a implying a term blocking votes of no confidence assist?

Remember, the PM must resign if he does not command the confidence of the Commons, and another does so. In your (rather odd) scenario, nobody does. (I think. If I have understood your hypothetical).

79 Marlowe April 28, 2015 at 16:52

Sam G & Spinning Hugo

The FTPA is, like every other Act of Parliament, subject to interpretation. It would be great to live in a world where every statute was “plain and clear” to everybody but alas that is not the case.

We’re all entitled to our own interpretations of a law but at the end of the day the only interpretation that matters is that of the relevant authoritative body. What you or I think the FTPA means is irrelevant – in this case (if George Eaton’s report is accurate) the only interpretation that matters is that “only the motions in the FTPA are “matters of confidence” and therefore votes on all other matters are not ones of confidence”.

I’m not saying I agree with this interpretation – I’ll leave it to Philip to defend why the CIO’s view might make sense. But I am crystal clear that this is the interpretation that will be applied when the HoC assembles after the election.

So I am still with Prof Talbot; we have to deal with things as they are and not with things as we would like them to be.

80 SpinnngHugo April 28, 2015 at 18:21

Marlowe

It is quite clear

Here is a careful refutation of Talbot

http://publiclawforeveryone.com/2015/04/28/the-fixed-term-parliaments-act-a-reply-to-colin-talbot/

Notice that this is the same as the Cabinet manual.

81 Philip April 28, 2015 at 20:43

It’s not implying a term blocking votes of no confidence, it’s implying that votes other than under s2(4) are not no-confidence motions.

Which is, on the face of it, sensible: if a motion doesn’t include the words ‘This house has no confidence” etc, treating it as a confidence motion is not the obvious thing to do. Historically, it is PMs who have chosen to make other issues confidence motions (e.g. John Major over the Maastricht Treaty) as a way of pressuring members of the House into voting for them.

If Major had lost that Treaty vote as a confidence vote, he would have had to ask for a general election or resign as PM (recommending that the Queen send for John Smith). Under FTP, the first would not have been up to him. And it would hardly seem an attractive offer to an opposition leader to become PM, not be able to call an election and then be a prisoner of the former government’s majority. So neither option would have been open to Major: claiming the vote was a confidence vote would have been meaningless.

On the example of the budget, I agree that a circumstance where the Commons both refuses to remove a government and to provide it with supply is almost inconceivable.

However… merely a division being lost on a budget does not mean that the Commons would not pass any budget however. The result of the CIO interpretation is therefore to suggest that a minority government has to keep negotiating – until such time as the Commons wants to remove it – rather than give up. That’s a big transfer of power from the executive to the Commons.

82 Nigel D April 28, 2015 at 22:26

Can we assume that the Tories and Labour are aware of the lack of constitutional clarity and will have indulged in some wargaming?

83 Marlowe April 29, 2015 at 00:20

Spinning Hugo

With respect to Mark Elliott, his is just another unofficial interpretation. It’s no more relevant than yours or mine.

The only interpretation that matters is the one from the Commons authorities as that is the one which will count when the HoC assembles.

And it’s no use trying to drag in the Cabinet Manual, as it (purposefully?) avoids any attempt to define what is, and what is not, a confidence motion (other than referencing the FTPA motions!).

84 Marlowe April 29, 2015 at 00:25

Philip

A footnote to your post earlier this evening. Prof Talbot published an interesting piece on how a govt has considerable control of budgetary and supply matters even if it doesn’t have a majority;
https://colinrtalbot.wordpress.com/2015/04/20/could-the-snp-block-a-labour-budget-no/

85 SpinningHugo (@SpinningHugo) April 29, 2015 at 07:22

Saying ‘that is just someone’s view’ without engaging in how he shows what the clear words of the Act actually do is not really a credible response. Law is not just a matter of equally valid opinions.

The Cabinet Manual is quite clear (as is the Act although some people clearly don’t like reading them). That is what will be followed.

Eaton either
(a) asked the wrong question
(b) didn’t understand the answer
(c) misreported the answer
or
(d) got the wrong answer because someone didn’t read the Cabinet Manual.

Most of what Talbot posts is fine. He is just wrong on the FTPA. He seems to want to dig himself in deeper.

86 Nigel D April 29, 2015 at 13:13

Carl

With respect, I think your comment shows the dangers of selective quotation from the Cabinet Manual. The Cabinet Manual needs to be treated with care: all it is is the government’s view of the relevant conventions. It’s not actually a written constitution. I’m not sure it’s brilliantly drafted, or correct in all respects (the reference to 2010 in footnote 13 under Chapter 2 is certainly wrong, for instance). But it definitely needs to be considered as a whole.

You’ve quoted from para. 2.19, but it’s important to notice that that paragraph comes under the heading: “Change of Prime Minister or government during a Parliament”. Paragraph 2.18 follows the heading, and is clearly about Thatcher-Major and Blair-Brown handovers. There then follows your paragraph, which is plainly about what governments have to do after losing votes of confidence in mid-term. It’s not about the immediate post-election situation.

I’m not a lawyer and I was simply throwing para. 2.19 in for discussion.

However, regarding a mid-term loss of majority: supposing a government with a wafer thin majority lose that majority through a by-election or floor crossing. My (limited) understanding is that pre-FTPA the monarch would refuse the PM a dissolution and appoint the best placed alternative. Post-FTPA a No Confidence motion in the prescribed form is passed triggering 14 days for a new government to be formed. But a PM following 2.19 could maintain that it was not clear that there was an alternative majority. So no resignation, no new government, no Confidence motion passed within 14 days and the PM gets the dissolution the monarch would have refused?

87 Marlowe April 29, 2015 at 15:11

Spinning Hugo

I am deliberately not engaging with Elliott’s views because that is not my point. My point is that Elliott is not authoritative on these matters. That’s all the credibility required of my response. You are quite right that “Law is not just a matter of equally valid opinions” – some are more valid than others because they are authoritative.

Regarding the Cabinet Manual, my point is that it does not define what is, or is not, a confidence motion. If you disagree please direct me to the section(s) where there is a substantive definition of “matter of confidence” or “confidence motion” (other than the FTPA motion which is given in 2.31). Far from being “clear” it seems to me that the Manual is actually silent on these matters.

Yes, Eaton might be wrong, though personally I don’t think so as at the time what he was saying was accepted without query by the likes of Rob Ford and Prof Philip Cowley. But if you genuinely think one of your (a)-(d) applies why don’t you get some proof rather than just asserting that he must be wrong?

88 SpinningHugo (@SpinningHugo) April 29, 2015 at 16:26

Marlowe,

If interested here is a blogpost explaining this

https://spinninghugo.wordpress.com/

89 Berlaymont April 29, 2015 at 18:15

Carl

Brilliant post – you set out the convention very convincingly. The events of 1924, 1929 and February 1974 make this clear: the Prime Minister resigns even if it is not clear whether the Leader of the Opposition has the confidence of the Commons. (2010 too, since it was almost but not completely certain that Cameron could reach a deal with the Liberal Democrats).

However, I do think that a reasonable reading of the Cabinet Manual contradicts this convention.

Paragraph 2.19 states:
The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.

I take your point in a comment above that 2.19 is in a section referring to Changes of PM or government during a Parliament. But Paragraph 2.12 does not; it applies to government formation in ‘Parliaments with no overall majority in the House of Commons’ – precisely the situation under discussion.

Paragraph 2.12 states:
An incumbent government… 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.

One could easily imagine a situation whereby David Cameron, claiming legitimacy from having gained more seats and more popular votes than Labour, refuses to resign after a no-confidence vote until it is clear that Ed Miliband does have the confidence – i.e. through a “copper-bottomed agreement” or a vote in the Commons.

I am in complete agreement with you that this would be counter to the convention followed in 1924, 1929, Feb 1974 and 2010. However, I think it would be consistent with the wording in the Cabinet Manual.

Your thoughts?

90 Marlowe April 29, 2015 at 18:20

Yes I’ve seen your blog. Unfortunately it doesn’t address either of the points in my last post.

Incidentally Prof Talbot’s latest blog attributing comments to a “Senior Officer of Parliament” strengthens my belief that Eaton’s report was accurate. Even some of Talbot’s opponents (eg. Kell and Phillipson) concede that the FTPA has created uncertainty and confusion about previously accepted confidence conventions.

So I think it’s time to draw this discussion to a close. I shall continue to follow the to-ing and fro-ing between Talbot, Elliott, Phillipson, Norton et al and it will be interesting to see if the issues raised permeate into more mainstream arenas (not least the media!).

I have to say I will now be disappointed if anyone wins a majority as it means we will not get to see what happens in practice!

Good luck with your blog and best wishes.

91 Marlowe April 29, 2015 at 18:23

Sorry, my previous post (of 18:20) should have been addressed to Spinning Hugo

92 Nigel D April 30, 2015 at 02:06

Berlaymont

Is “a clear alternative” in para. 2.12 as demanding a test as “an alternative government [that] does have the confidence” in para. 2.19, or might it not be construed as “an alternative government clearly best placed to have the confidence”?

93 DHall May 1, 2015 at 22:11

Hi there, Carl. I was wondering for a point of clarification. Following the general election it is clear that DC can not ‘command the house’ and resigns his office. EdM is then appointed PM under the protocol of him being most likely to be able to ‘command the house’. Labour then put forward a Queen’s speech and the SNP abstain or vote against it and the motion fails. What happens then? My angle on this is that many commentators have stated that the SNP would ‘have to’ vote with Labour’s QS in order to keep the Tories out. However, it’s my contention that the SNP not supporting Labour’s QS does nothing to change the fact that DC has already resigned and the Tories are still not in a position to ‘command the house’. Would it then follow that – prior to or after a failed QS motion -Labour would have to negotiate support from the SNP or have another General Election? My question focuses around the issue of SNP influence. That they could have sway over Labour’s QS and potentially vote it down, without beckoning in Tory government?

94 Mark May 2, 2015 at 13:51

Fascinating discussion. Thanks to all.

I have a question that I don’t think has been addressed:

What if no one (remotely credible) wants to be PM? This could happen if Cameron resigns, but Miliband perceives accepting the post as a poison pill.

95 Dale May 3, 2015 at 00:10

You’re inconsistent. If it is clear that Cameron cannot command a majority, and yet it is also clear that Miliband also cannot command a majority because of his brinkmanship with selected nationalists (but not the SDLP) Cameron would be correct to resign, and also *not* to recommend that Ed be given a chance to form a government that negotiations have made clear cannot command a majority.

I gather the palace has been making noises that they will not entertain such brinkmanship as it would be involving the Queen in politics in relation to Cameron. So if the palace knows that there is a majority against Ed’s Queen’s speech, she won’t waste a day of everyone’s lives forcing everyone through the ceremony in the knowledge that it will come to nothing, just as she would not come out for a Cameron Queen’s speech that she knew wouldn’t pass.

This absolutely would be Nicola freezing Ed out of number 10 by informing the Queen her party intends to vote against Ed, with no risk of letting Cameron in as he would already have failed to form a government at the point Ed was considered.

The SNP abstaining would probably be enough to fail Miliband’s Queen’s speech, and his government doesn’t start until he actually passes one. He needs to persuade Nicola to give the Queen the nod that he actually has parlimentary support. He cannot achieve office by default for exactly the same reasons that Cameron can’t remain in office by default.

96 Phil Woodford May 3, 2015 at 12:10

Unfortunately, there is no such thing as a correct ‘reading’ of our constitution, as we have neglected to write it down. If we enter uncharted territory (at least for the modern political era), people will choose to interpret it in the way that best suits their political purposes.

97 Ed Parkes Walker May 3, 2015 at 23:59

Dear Carl

Excellent blog post, thank you very much for going through the history and the constitutional conventions involved.

On another note, all this speculation and desperate Tory wargaming in recent days about how they could avoid handing over power to Labour using the provisions of the FTPA seems ludicrous.

http://www.instituteforgovernment.org.uk/blog/11067/the-not-so-fixed-term-parliaments-act/

When it comes down to it, Labour and the SNP could repeal the FTPA with a simple majority and pass a no confidence motion, and perhaps even pass a motion calling on the palace to appoint a Labour government. The palace would then be obliged to continue politicise themselves and continue to support a government that had no majority when another bloc did, risking a major constitutional crisis, or do the sensible and obvious thing and commission Labour to form a government

98 Ed Parkes Walker May 4, 2015 at 00:05

@Berlaymont

The scenario is moot because it doesn’t matter what DC thinks; if he cannot command the majority then he must resign. The sovereign will then commission the person most likely to command a majority, or a person who gives reasonable assurances that they can command a majority. What matters here is not what the sitting PM thinks but what the sovereign thinks about likelihood of being able to command a majority.

There is absolutely no way DC could obstruct Labour being commissioned if the palace had received assurances from the leader of the SNP parliamentary party that he intended to vote for a Labour Queen’s Speech. This is particularly so given that if Labour + SNP = >323, then given the SNP’s statements pre-election (that they would lock out the Tories), it is axiomatically impossible for DC to command the confidence of the house and so he has no reason to remain Prime Minister

99 Marlowe May 5, 2015 at 10:12

@ Ed Parkes Walker

“What matters here is not what the sitting PM thinks but what the sovereign thinks about likelihood of being able to command a majority”

The convention is that the sovereign automatically acts on the advice of the sitting PM (even if she/her advisors disagree with it). To do otherwise would drag her into politics which is the last thing anybody wants.

100 Bitethehand May 6, 2015 at 13:36

This place was brought to my attention via a post on the Guardian’s Comment is Free and it is the most illuminating collection of authoritative legal opinions on the possible outcome of a “no overall majority election result tomorrow”.

So thanks to all of you and especially Carl Gardner.

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