A hung Parliament would give rise to a number of intriguing constitutional dilemmas
Anyone who doubts the bizarre nature of the British constitution should read the Hansard report of the debate approving the Constitutional Reform and Governance Bill in the House of Lords between midnight and 3am on Thursday, April 8, in the “wash-up” procedure after the announcement of a general election and before the end of the Parliament. If the election to be held on May 6 produces a hung Parliament, as now seems a distinct possibility, another curious feature of our constitution may come to life: the role of the Queen in choosing a prime minister.
In normal circumstances, the monarch has, as Walter Bagehot explained in The English Constitution (1867), “three rights — the right to be consulted, the right to encourage, the right to warn”. But the sovereign must act on the advice of her prime minister. As Bagehot mischievously suggested, the Queen “must sign her own death-warrant” if Parliament sends her legislation to that effect. But when a general election results in no party having an absolute majority of seats in the House of Commons, the Queen cannot rely on one politician or party to give her advice.
In an attempt to confine the sovereign’s discretion, and to try to keep her out of partisan politics, a series of conventions has been developed over decades of constitutional practice. But these conventions are not widely known or understood. And there has been no need to apply them for a long time.
On the last occasion of a hung Parliament, in February 1974, the country was prepared to wait a weekend while the Prime Minister Edward Heath unsuccessfully tried to put together a deal with the Liberal Party, led by Jeremy Thorpe, before Heath resigned and made way for Harold Wilson’s Labour Government. In the age of the internet, the mobile phone and satellite broadcasting, when esteem for, and trust in, politicians are minimal, the public would now expect to be immediately told what deals are being considered by politicians, and what constitutional principles govern their negotiations.
We should therefore welcome the report published by the House of Commons Justice Committee last month on Constitutional Processes Following a General Election. The report included a draft chapter of a Cabinet Office manual on the formation of a government after an election, and the evidence of constitutional experts, including Sir Gus O’Donnell (the Cabinet Secretary), Professor Vernon Bogdanor (Professor of Government at the University of Oxford), and Peter Riddell (a political commentator for this newspaper). Sir Gus recognised that it could not be assumed that the Civil Service “is up and ready” for a hung Parliament, especially when there has been only one change of administration (in 1997) in the past 30 years. That was why considerable work was being done in advance of the election.
The draft chapter explains, and the experts agreed, that in a hung Parliament it is first for the incumbent Prime Minister to decide whether he can form a government that commands the support of the House of Commons, If not, the Queen will invite the person who appears most likely to be able to enjoy the confidence of the House of Commons to serve as the next prime minister and to try to form an administration. It is the responsibility of the politicians to seek to determine who that person is. As Professor Bogdanor said in his evidence, “it is for the politicians, crudely, to sort it out”.
But what if there is a dispute between political parties as to who has the best prospect of forming a government? Indeed, the disagreement may be within, as well as across, parties. A Labour Party that is short of an absolute majority of seats (whether or not it is the largest party in terms of seats or votes) may be able to form a government with Liberal Democrat support but only with a leader other than Gordon Brown. It is far from inconceivable that the Queen’s advisers would have to make a political judgment on evidence that is less than objectively verifiable. They would undoubtedly form that judgment in the light of advice from the Cabinet Secretary and others, but there is a real danger that the Queen would be unable to avoid making a decision that is politically contentious.
Could the constitutional conventions be improved so as to provide more detailed and objective guidance? The difficulty (and the fascination) of politics is that today’s problems differ from yesterday’s in unpredictable respects. Conventions help to pose the right question but rarely provide an answer. So it is just possible that on May 7 we may be experiencing the modern equivalent of Bagehot’s description of Queen Victoria and the Prince of Wales (later Edward VII): “. . . the actions of a retired widow and an unemployed youth become of such importance”.
David Pannick, QC, is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords.