Picture this: by the desperate small hours of 8 May, it has become clear that the result the polls and the pundits had confidently been predicting – and the two main parties confidently denying – is a reality: for the second time in successive elections, Britain’s voters have chosen not to entrust any one party with enough MPs to govern on its own.
The UK has a hung parliament. What next?
The theory is straightforward: the crunch constitutional test for any British government is that it retains “the confidence of the House of Commons”. Without the support of a majority of parliament’s 650 elected members, an executive is not considered capable of functioning.
So, as soon as the final result is known – or, in all probability, rather earlier – the negotiations will begin. The goal, quite simply, is to assemble an alliance in parliament that, in crucial votes when the chips are really down, can count on the backing of at least 326 MPs.
The numbers game
That alliance takes one of two main forms. It can be a formal coalition, such as the one between the Conservatives and the Liberal Democrats that has governed the country for the past five years. In this kind of arrangement, the key policy red lines, deals and trade-offs are generally hammered out between senior party figures before the new government takes office.
In its other form, decisions are rather less pre-cooked, the party whips busier, and the business of government rather more faltering. This is a minority government in which a larger party that does not have an outright majority strikes informal “confidence and supply” agreements with one or more of the minor parties: in exchange, usually for some policy concession, those parties agree to support the bigger one on its budget and any other key votes – such as motions of no confidence – in which the opposition might try to bring it down.
What is all that likely to mean after 7 May? This may, famously, be the most uncertain British general election in generations. But according to almost every pollster, it is highly unlikely that either Labour or the Conservatives, currently pretty much neck-and-neck in the Guardian polls average, will win an outright majority of 326 seats.
That will oblige them to seek an alliance if they want to govern. Right now, Labour looks to have more options when it comes to reaching its crucial 326 seats, and as such, to be better placed, if only marginally: if the election had taken place last weekend, a possible “anti-Tory” alliance of Labour, the Scottish National party, Plaid Cymru, the Greens and the SDLP would have totalled 333 MPs. A “pro-Tory” bloc of the Conservatives, Liberal Democrats, Ukip and the DUP, on the other hand, would have managed only 311.
But an awful lot can still change between now and 7 May. And while most experts see a minority government as a more likely outcome than another full-blown coalition, nailing those more informal agreements down is inevitably going to be a complex, difficult and deeply fraught process.
Need it be? Not for constitutionalists. The markets will doubtless be in meltdown, and the media hyperventilating about constitutional crises and secretive, undemocratic deals cut in smoke-filled rooms. But for constitutionalists, a hung parliament is not some dread spectre. It is an entirely normal outcome of an election.
Been there, done that
And it isn’t as if we haven’t been here before: of the 20 British administrations of the 20th century, half were coalitions and minority governments (and there were five of each, a useful historical reminder that a coalition is by no means the automatic outcome of a hung parliament).
But Britain’s problem in 2015, says Prof Robert Hazell, director of University College London’s constitution unit, is that we have not been there much recently.
“We have a majoritarian mindset,” Hazell says. “Over the past 50 to 70 years, one party has generally won a majority so we think what we’re doing, in an election, is electing a government. But we’re not. We’re electing a parliament, and a hung parliament is a legitimate and democratic outcome of a parliamentary election.”
In much of continental Europe, he says, voters accustomed to coalitions and multi-party politics understand that. “You won’t hear a German voter say: ‘But I never voted for this government, or that coalition.’ They understand that electing a government is a two-stage process. It’s going to take us a few elections to get to that point.”
So, no panic. Democracy is taking its course. But if voters, the media and politicians are still wary of this strange business of government-forming, it is not just because they are unfamiliar with it. The mechanics of the process in Britain are not always logical, and the rules that govern them often less than clear.
There are many misconceptions. For example, plenty of voters believe the leader of the largest party automatically gets to be prime minister, according to the Institute for Government. In fact, the new head of government could just as easily be the leader of the second-largest party – be it Ed Miliband or David Cameron – if they can garner sufficient minor party support. That is how the first Labour government was formed in 1924.
The rules
There is a rule book. The Cabinet Manual was drafted by the former cabinet secretary Gus O’Donnell a few months before the 2010 election, and revised the following year. But many constitutional experts argue that on some important points its guidance is at best vague, and on others, pretty much non-existent.
Take the way the negotiations are actually conducted. (This process is widely predicted, for reasons outlined above, to take considerably longer this time around than the five days it lasted in 2010: all parties are likely to want to consult far more widely with members and MPs, and to tie down much more detail of an eventual coalition or other agreement than the Tories and Lib Dems did five years ago.)
According to Petra Schleiter, associate politics professor at St Hilda’s Oxford, most European countries more familiar with coalitions – including Finland, Belgium, the Netherlands, Sweden, Greece and Bulgaria – have adopted the “plurality principle”, which dictates that the largest parliamentary party is designated government formateur, and has the first chance to try to form a government. (If that formation proves unsuccessful, the second gets a go, and so on.)
In Britain, however, the Cabinet Manual states merely that if there is no outright majority, the parliamentary parties should “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”. That person will then be invited by the Queen – who plays no other role in the process and is, indeed, expected to spend the duration of the negotiations at Windsor Castle – to become prime minister, and form the new government.
Schleiter has said that using the plurality principle “follows a democratic and electoral logic”. She argues that the British formation process has no such logic, does not offer clear and unambiguous guidance and – more seriously – could allow the formation of more than one potential coalition.
And that, Hazell agrees, “would be really rather messy. We’re just not used to this need for parties to negotiate, so there is a potential gap in the rules: if Labour and the Conservatives are less than 20 seats apart, and if after negotiations there are still two credible camps, and if neither blinks and concedes defeat … Who would get to govern then?”
In fact, Hazell notes, there is a default position: in the event of a stalemate, the incumbent prime minister is entitled to remain in office and to have the first bash at testing whether or not he or she can command the confidence of parliament – as the Conservative incumbent, Stanley Baldwin, did in 1923-24, and David Cameron is, presumably, hoping to be able to do this year.
A fine mess
But even then, the process of that confidence test is decidedly messy. As things stand, the first formal opportunity to test parliament’s confidence in whatever government does emerge is due to come in a series of votes held after the Queen’s speech, scheduled to tale place three weeks after the election, on 27 May. “The procedure,” notes Akash Paun of the Institute for Government, “is not designed with clarity in mind.”
In the aftermath of the Queen’s speech, Paun has written, MPs are required to vote “on the motion that they ‘beg leave to offer their humble thanks to Her Majesty’ for the speech she has delivered. MPs wishing to oppose the formation of the government must then file through the no lobby, effectively saying ‘no, thanks’ to the Queen.” (Some have suggested that if Cameron tries to get a Queen’s speech past parliament and there is a risk it might be voted down, the Tory leader in the House of Lords, Tina Stowell, may stand in for the monarch to avoid such embarrassment.)
The Institute for Government and many constitutionalists, including Hazell, have argued for a simpler and cleaner process – similar to that in Germany, and in the Scottish and Welsh assemblies – in which the first piece of business undertaken by a new parliament is a straightforward nomination vote to select the prime minister.
“That seems to me preferable to the messy and protracted Queen’s speech business,” says Hazell. “It would be more democratic, and more understandable for the public, who’d see they’d elected a parliament, and that parliament had then decided who should form the new government.” Such a vote was recently recommended by parliament’s political and constitutional reform committee – but too late for the coming 2015 election. For now, we are stuck with what we have.
Who minds the shop?
Meanwhile, who is in charge while all this talking and confidence-testing is going on? There is, stresses Peter Riddell of the Institute for Government, always a government: Britain’s political system is “remarkably resilient” and government will “carry on if we have another hung parliament”.
Essentially, Riddell has noted, the incumbent prime minister “can, and should, remain in office until it is clear whether he, or the leader of the opposition, can form an administration which commands the confidence of the House of Commons” (so claims by some newspapers that Gordon Brown “squatted” No 10 after the 2010 election were simply wrong).
Even if they lose their seats, ministers remain ministers, although their powers are reduced: according to the Cabinet Manual, a caretaker government may make no decisions that would bind the new government. That rules out any new policies, appointments or big contracts. It must also consult the opposition parties if decisions cannot be put off, as the outgoing Labour chancellor, Alistair Darling, did before going to an EU finance ministers’ meeting straight after the 2010 vote.
The uncertainty principle
But uncertainty reigns here, too. As Hazell points out, the manual offers no clear ruling on when the incumbent prime minister should resign, saying only that it “remains a matter for the prime minister … to judge”. Experts are divided on whether any rule can really prevent a prime minister from going when he or she wants to go, or whether it is a prime minister’s constitutional duty to stay in office until they can confidently and safely tell the Queen who will be replacing them.
Nor is there any clear guidance on precisely when a caretaker government ends: the manual says this may be either when the prime minister is appointed by the Queen, or after the new government has won the confidence of the Commons in a vote. This, in Hazell’s view, is “not satisfactory – especially if post-election negotiations take some weeks. It should always be clear whether a government is a caretaker government or not.”
So there it is: a process, albeit a somewhat opaque, uncertain and unclear one, that should produce our new government. And it had better, because the consequences of its not doing so may be significant: the general consensus among constitutional experts is that by abolishing the prime minister’s prerogative to dissolve parliament, the Fixed Term Parliaments Act 2011 has made it more or less impossible for either Cameron or Miliband to first form a minority government, and then call a second election in the hope of being returned with a majority – as Harold Wilson did twice, in the 60s and 70s.
In other words, whatever government does emerge from the post-election negotiations, it is pretty much condemned to work.