The Independent guide to the UK constitution: How is the right to govern conferred?

The unwritten rules that decide who has the right to govern us

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If the opinion polls published before this year’s general election had turned out to be accurate, we might still be without a government. In 2010, it took five frantic days to form a coalition after the Conservatives failed to win an overall majority in the House of Commons. It was always clear, though, that the governing party would be the one that reached an agreement with the Liberal Democrats, and it was always more likely to be the Conservatives than Labour.

This year, we were led to  expect a more confused picture, with the SNP as the third party and the Liberal Democrats reduced to a rump, so that it might have been necessary for three or even four political parties to strike up a deal before anyone could claim to have a working majority.

In the end, this was all academic. Unless there is some major convulsion inside the Conservative Party, or a long string of by-election defeats, they are securely in office until May 2020. That date is fixed because the one major constitutional change which the Coalition government got on to the statute books was the Fixed Term Parliament Act (2011), which decrees that unless there is a major crisis, there will always be five years between one general election and the next.

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Lord Salisbury, left, devised the unwritten Salisbury Convention, which is now interpreted as meaning that the Lords will never try to vote down a measure that was included in the ruling party’s election manifesto (Getty)

 For the previous 100 years, that figure of five years was the maximum time permitted by law, but within that time an election took place when the prime minister chose to call it – unless the government was brought down by a vote of no confidence, in which case the prime minister had no choice but to go to the country.

Forming a government after an election may look simple enough in the UK. This is because, as events have worked out, every general election since the war – except those of  February 1974 and 2010 – has produced an outright majority for either the Conservatives or Labour. Even in those, two, exceptional cases, the question of who governed was quickly resolved.

But the public willingness to keep on voting for the big parties is diminishing. This year’s result was notable for the impressive gains in the votes cast for the SNP, Ukip and the Greens – though only the geographically-concentrated SNP had the MPs to show for it. It may well be that next time the public will deliver a dramatic “plague on both your houses” message to the Conservatives and Labour, throwing up a messy result from which it really is not clear at all who has the right to be prime minister.

In this tricky situation, it is theoretically up to the monarch to appoint a prime minister – but only in theory. The last monarch who actually chose a prime minister to suit his prejudices was William IV, in 1834. He did not like the way the Whigs were reforming the system, sacked the Prime Minister, Lord Melbourne, and sent for the Tory leader, Sir Robert Peel, But Peel could not command a majority in the Commons, and was forced to hold an election, which he lost, putting Melbourne back in office, making the king look foolish. Since then, it has been agreed on all sides that monarchs should stay out of party politics.

 

But suppose that next time there were two contenders, each claiming to be the rightful prime minister, neither being prepared to give way to the other. How then could the monarch stay neutral? Such a situation did in fact arise, in February 1974, when the Conservatives won more votes than Labour, but Labour won more seats. Under those circumstances, according to the manual that the former Cabinet Secretary Sir Gus O’Donnell compiled at Gordon Brown’s request, the responsibility of advising the monarch “falls especially on the incumbent Prime Minister, who at the time of his or her resignation may also be asked by the Sovereign for a recommendation on who can best command the confidence of the House of Commons in his or her place.”

During those five days in 2010 when Gordon Brown was still in No 10, he was unfairly accused of clinging to office after being rejected by the electors – when in fact he was doing what the Cabinet manual required him to do. He actually accepted defeat gracefully once he knew that Nick Clegg had struck a deal with David Cameron. Edward Heath was also accused of clinging on too long in 1974, but he, too, was within his rights to do so. No matter how messy the result of the 2020 election, the one certainty is that on the Friday morning after polling day, the Conservative incumbent would still be Prime Minister, and the more complicated the situation was, the longer he or she would be likely to continue squatting in Downing Street.

Even when the dust settled, what remained might well not be the kind of stable coalition that came into being in 2010. It is possible for a minority party to govern without a majority in the House of Commons, which has happened for short periods since 1945. Such a government may not be able to do much, but so long as it can get a budget passed every year and not lose a confidence vote – as the minority Labour government in 1979 eventually did – it can muddle on.

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In 2010 it took five frantic days to form a coalition after the Conservatives failed to win an overall majority in the House of Commons (Getty)

This can be done through what is called a “confidence and supply” arrangement, under which the minor party agrees not to support a no confidence vote and not to vote down the Queen’s Speech or a Budget.The House of Lords is not involved in these arrangements. Even in Victorian times, Tory aristocrats such as Lord Salisbury, who was Prime Minister from 1895 to 1902, realised that there had to be a limit to how far unelected peers could thwart an elected government. He devised the unwritten Salisbury Convention, which is now interpreted as meaning that the Lords will never try to vote down a measure that was included in the ruling party’s election manifesto.

There was a crisis in 1910 when the Conservative majority in the House of Lords blocked the Liberal government’s budget. This led to the Parliament Act (1911), which took the budget out of the hands of the upper house altogether, and laid down that peers could amend and hold up legislation passed by the Commons, but not ultimately block it. The Act also shortened the maximum time between general elections from seven years to five. In 1949, the Labour government introduced another act which shortened the maximum time over which the lords could block legislation. So, no matter how complicated the business of forming a government, those involved can take comfort in the thought that, once it is sorted in the House of Commons, the job is done.

Key Texts: The formation of governments

A | From the Cabinet Manual (2011;  ‘2: Elections and government formation’):

“… 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.

... 2.11 After an election, if an incumbent government retains an overall majority … it will normally continue in office and resume normal business. There is no need for the Sovereign to ask the Prime Minister to continue. If the election results in an overall majority for a different party, the incumbent Prime Minister and government will immediately resign and the Sovereign will invite the leader of the party that has won the election to form a government…

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Gordon Brown was unfairly accused of clinging to office in 2010 after being rejected by the electors (Getty)

... 2.12 Where an election does not result in an overall majority for a single party, the incumbent government remains in office unless and until the Prime Minister tenders his or her resignation and the Government’s resignation to the Sovereign. 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.

... 2.18 Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor…

... 2.19 ...If a government is defeated on a motion that ‘this House has no confidence in Her Majesty’s Government’, there is then a 14-day period during which an alternative government can be formed from the House of Commons as presently constituted, or the incumbent government can seek to regain the confidence of the House. If no government can secure the confidence of the House of Commons during that period, through the approval of a motion that ‘this House has confidence in Her Majesty’s Government’, a general election will take place…”

B | From the Fixed Term Parliaments Act (2011):

“1 (3) The polling day for each subsequent parliamentary general election is to be the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell....

... 2 (1) An early parliamentary general election is to take place if –

(a) the House of Commons passes a motion in the form set out in subsection (2), and

(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).

(2) The form of motion for the purposes of subsection (1)(a) is – “That there shall be an early parliamentary general election.”

(3) An early parliamentary general election is also to take place if –

(a) the House of Commons passes a motion in the form set out in subsection (4), and

(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).

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Sir Robert Peel failed to command a majority in the Commons and lost the subsequent election (Getty)

(4) The form of motion for the purposes of subsection (3)(a) is – “That this House has no confidence in Her Majesty’s Government.”

(5) The form of motion for the purposes of subsection (3)(b) is – “That this House has confidence in Her Majesty’s Government.”

C | From The English Constitution,  by Walter Bagehot (2nd edition, 1873;  ‘1: The Cabinet’):

“As a rule, the nominal Prime Minister is chosen by the legislature, and the real Prime Minister for most purposes – the leader of the House of Commons – almost without exception so. There is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. We have in England an elective first magistrate as truly as the Americans have an elective first magistrate. The Queen is only at the head of the dignified part of the Constitution. The Prime Minister is at the head of the efficient part. The Crown is, according to the saying, the ‘fountain of honour’; but the Treasury is the spring of business. Nevertheless, our first magistrate differs from the American. He is not elected directly by the people; he is elected by the representatives of the people. He is an example of ‘double election’. The legislature chosen, in name, to make laws, in fact finds its principle business in making and keeping an executive.”

D | From Erskine May’s Parliamentary  Practice (24th edition, 2011):

“From time to time the Opposition put down a motion on the paper expressing lack of confidence in the Government or otherwise criticising its general conduct. By established convention the Government always accedes to the demand from the Leader of the Opposition to allot a day for the discussion of a motion tabled by the official Opposition which, in the Government’s view, would have the effect of testing the confidence of the House. In allotting a day for this purpose the Government is entitled to have regard to the exigencies of its own business, but a reasonably early day is invariably found. This convention is founded on the recognised position of the

Opposition as a potential Government, which guarantees the legitimacy of such an interruption of the normal course of business.”

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