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The General Election: Creating a Constitutional Crisis? (Part I)

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About The Author

Alex Hitchcock (Former Writer)

Alex is a graduate of the Universities of Sussex and Cambridge. He attained a first-class degree in History from the former before graduating with an MPhil in Modern European History with Distinction from the latter in 2014. He is currently undertaking a full-time internship in the Westminster Office of a Member of Parliament.

This is the first part of a series. For the second part, see 'The General Election: Creating a Constitutional Crisis? (Part II)'.

The more astute readers of Keep Calm Talk Law will have noticed that there is a general election coming up. With political talk dominated by inanities such as Ed Milibands kitchens, now seemed an opportune moment to analyse some potentially serious constitutional problems that have not been addressed by the Coalition Government over the last five years.

Two, in particular, stand out in the run up to an election: the first concerns rules governing what is unofficially referred to as the ‘caretaker’ period of government (between the dissolution of parliament and the formation of a new administration); the second regards (related) problems engendered by the much maligned Fixed-term Parliaments Act 2011.

The analysis of these problems will be split into two articles. This article will focus on the confusions and ambiguities of rules guiding a caretaker government, specifically between Election Day and the appointment of a new government.

The Caretaker Period

This is pertinent because, at the time of writing, political commentators can agree on little except the likelihood of no single party gaining a majority at the election. A hung parliament will therefore elongate the period between Election Day and the formation of a new government. There are currently no statutory rules governing how long a party leader can take to form a government, only the spectre of the Select Committee on the Modernisation of the House of Commons’ 2007 recommendation (accepted by the last Government) for the gap to ‘be about twelve days.’

Hung parliaments have been rare in UK general elections. The first past the post system and two party dominance have delivered majority governments in all but five general elections since the beginning of the twentieth century: two in 1910; one in each of 1929, 1974 and 2010.

But this dominance may be over. The move away from two party politics has been a long-term trend in our political landscape: from 1951 to 2010 the percentage of voters voting for the two main parties at a general election fell from 96.8% to 65.1%.

Certainly, negotiations in 2010 went rosily. Four days after the last general election results, the Coalition Government between the Conservatives and Liberal Democrats was formed.

However, few polls suggest the creation of a simple two-party coalition along those lines this year. Rather it is possible that a either formal coalition is constructed from a number of parties, or an informal coalition is conducted on a confidence and supply basis. This time, negotiations will be complex.

In light of this political turn, it is only right that questions are raised about whether a constitution so proudly developed through practice has had enough experience to manage what have hitherto been electoral anomalies.

Without a codified constitution, the UK government has had little guidance on how to act when hung parliaments occur. Whereas countries such as Ireland or Germany have constitutional provisions relating to how a government functions during a caretaker period, the UK is advised by a non-binding Cabinet Manual. This Manual was hastily drafted in 2010 when then Prime Minister Gordon Brown asked the Cabinet Secretary to provide guidance for the hung parliament that appeared imminent. It was finalised under the Coalition and published in December 2010.

However, the guidance provided by this Manual is not as comprehensive as one would hope. A number of ambiguities and confusions lurk, which have been most lucidly outlined in recent research by academics at the University of Oxford. These potential banana skins may have not have causes a legal slip-up during the last election, but moving into a brave new world of multiple party politics means the constitution should be thorough when it comes to the caretaker period.

The Manual, incidentally, does not use the term ‘caretaker government’. Professor Robert Hazell, Director of the Constitution Unit, explains that the ‘Cabinet Office appears to think ‘caretaker government’ is a pejorative term, implying a weak government.’ He counters, however, that ‘[i]t is not; it is a technical term, implying a government which has full lawful authority to govern, but has lost (or has yet to acquire) full political authority.’ I will persevere with the term for reasons that will become clear.

Upon analysis, then, problems arise in three key respects, each of which are dealt with in turn below.

1. There is no duty for an incumbent government to remain in office

The first constitutional problem thrown up by the Manual is that it does not prevent a caretaker government resigning. Section 2.12 of the Manual states that during the caretaker period the incumbent government may wait to see if it can form a new one. But section 2.10 notes that ‘it remains a matter for the Prime Minister, as the Sovereign’s principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government.’ Section 2.10 continues to state:

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. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.

Hence, there is no duty for the Prime Minister and the government to remain in power, simply an appeal to precedent.

A Prime Minister resigning his or her government would create chaos. Petra Schleiter and Valerie Belu point this out, using an example from the last general election:

Had Gordon Brown and his government resigned immediately after the 2010 election, before the coalition formed, it is not clear who would have represented the UK the day after the election in the emergency teleconference with other G7 finance ministers . . . or who would have replaced [Alistair]  Darling at the extraordinary meeting of European finance ministers the following day. The resulting uncertainty might have damaged not just UK interests, but also the wider efforts to manage the economic crisis.                                                                                            

The UK clearly requires a functioning government to conduct pressing business. Indeed, it would be extraordinary to suggest that any business, even for a matter of hours, could be undertaken without a government in place. As Professor Hazell notes, ‘[w]e must always have a government, because there is always government business to be done, and we never know when disaster may strike.’ In this respect, reports mocking Gordon Brown as a ‘squatter’ in Downing Street following the last election were unhelpful since, as Prime Minister, Brown was playing an important stabilising role by remaining in office.

This demands attention. A statutory basis should be established for when a government can resign. This should ensure that the country cannot be without a Prime Minister nor a government. It should therefore place a duty on the incumbent government to remain in office until a new government has been installed. This would follow the Irish Constitution, which, under Article 21.11.2, states that ‘[t]he members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.’ This is a clear determination that Ireland will not be without a government since it cannot resign until its successor is appointed.

2. There is no clear definition of when a caretaker government ends

However, a second issue that the Cabinet Manual fails to clarify is when a caretaker government ends. Section 2.30 of the Manual states:

The point at which the restrictions in financial and other commitments should come to an end depends on circumstances but may often be either when a new Prime Minister is appointed by the sovereign or where a government’s ability to command the confidence of the Commons has been tested in the Commons.

As Schleiter and Belu point out, this is ambiguous. ‘In the absence of an investiture vote,’ they note, ‘there is no clear consensus as to when a government’s ability to command parliamentary support can be considered to be tested.’

Clear guidance must therefore be provided to determine the cessation of the caretaker period to avoid confusion and a possible crisis of legitimacy for a government. As the Justice Committee argued in 2010, ‘[t]he period in which “caretaker” principles should apply should be defined.’

However, deciding where this line is drawn is tricky. In recent evidence to the Political and Constitutional Reform Committee, Dr Catherine Haddon noted that there is no defined moment when a new government is in place in the UK:

We [in the UK] still do not have either in the Cabinet Manual or in our own popular understanding of it that clear moment when we think, yes, this is clear, except for the Queen’s Speech and that can often be well after a Government has officially been formed.

The date of the Queen’s Speech is established by the Prime Minister when parliament is dissolved and involves a government attempting to pass their legislative agenda. The formal vote at the end of a Queen’s Speech does not usually occur for some time following the Speech. At the last election, the vote took place around five weeks after Election Day. Hence it would be ridiculous to expect the previous government to stay in office until the Queen’s Speech had been voted on.

At least two alternatives to the status quo have been suggested. Professor Hazzell has indicated ‘[o]ne possibility would be not to leave the formal vote until five or six days after the Queen’s Speech but to hold it, for example, immediately after the Queen’s Speech.’ Although agreement to the contents of the Speech could render the following debate meaningless.

Another option may be to follow the Scottish model of a nomination vote. In the Scottish Parliament, after electing their Speaker (the Presiding Officer), they then immediately elect the First Minister. As one would expect, this is achieved along party lines and the person who wins the series of votes is appointed as the First Minister by the Queen. It is swift and, for Professor Hazell, ‘a very clear, early way of the Parliament deciding who shall form the Government, deciding who shall be the head of the new Government. It is a way of cutting through the possible period of uncertainty if it is not clear that a Government might be able to carry a Queen’s Speech or not.’

It might also be added here that there is a potential problem lurking regarding the indeterminate amount of time a party leader can take to form a new administration. With no statutory rules governing this, the caretaker period could, theoretically, be elongated indefinitely in the event of particularly complex coalition negotiations. Again, Westminster may be prudent to follow Scotland and Wales, where a First Minister must be elected within 28 days of Election Day. Certainly, section 2.4 of the Cabinet Manual refers to the proclamation of the Select Committee on the Modernisation of the House of Commons’ 2007 recommendations of a 12 day period. But, in the event of more frequent and potentially more complicated hung parliaments, the British government would be wise to cement a timeframe into law to avoid confusion or excessively long caretaker periods.

Ultimately, the definition of when a new government begins should be debated thoroughly by Parliament and the country. However, it seems that more than ever before, clarity over this specific constitutional issue is required.

3. There are ambiguities regarding who can make what government decisions

A further problem revolves around what decisions can be legitimately made and who should be involved in making such decisions. Section 2.29 of the Manual states that when decisions can wait, they should be deferred until a new government is instated. However, ‘[i]f decisions cannot wait they may be handled by temporary arrangements or following relevant consultation with the Opposition.’

Yet, at least two ambiguities arise from these rules. Schleiter and Belu point out that the guidance requires agreement between the parties over what decisions need to be made, and whether they are serious enough to qualify for cross-party support. This is not a given without clear examples of what qualifies for cross-party decision making.

A second ambiguity arises over the nature of consultation. During the last caretaker government, the then Chancellor of the Exchequer, Alistair Darling consulted with George Osborne and Vince Cable (his opposite numbers) when he attended the extraordinary meeting of European finance ministers the day after the election, which revolved around the bailout of Greece. Darling explained his thoughts on the situation and took Osborne’s and Cable’s views into account. The situation thus passed without controversy. However, as Dr Haddon notes, ‘The difficulty we have is what one understands by the term “to consult”. For some, consulting is just telling them. For others, consulting is obviously seeking their views. For others, it is making sure that you listen to and adhere to what they have asked you to do.’ Without clear guidance, understandings may vary wildly over conduct in this area.

The conditions surrounding when a government needs to consult the opposition and what qualifies as consulting should be made clear. As it stands, there is only one short paragraph in the Manual which covers these scenarios (Section 2.29) alongside some recent precedents.

It seems to me that legislation here would be unhelpful. It would be excessive (as it would border on micro-management of the Civil Service), rigid and ultimately perhaps more confusing that no law since it could not hope to govern every situation that could possibly arise. Indeed, it would also be impractical to enforce: could a headstrong Chancellor, unwilling to consult other parties, be sacked, fined or jailed for improper conduct? However, attention must be paid to these problems and, at the very least, Darling’s actions should be upheld as a strong precedent. The guidelines within the Manual should also be more comprehensive than they currently are. This is crucial because actions taken by a caretaker government could significantly affect the following government.

Interim Conclusions

In light of a political landscape in flux, the rules governing the government’s actions during a caretaker period must be cemented and clarified. Certainly conventions such as the Cabinet Manual’s have strong sway in Britain’s uncodified constitution. Dr Andrew Blick points out, for example, the understanding that a party winning an outright majority in the House of Commons provides the Prime Minister is a convention, not a law. However, the possible decline of two-party dominance means that we should ensure that guidelines relating to conduct during a caretaker period are clear and cannot leave the country without a government. In some cases, this may require legislation. 

To some extent clarification may already be underway: a report is currently being prepared by the Political and Constitutional Reform Committee into ‘the arrangements for forming a government after a general election, with particular reference to circumstances where there is no clear single-party majority in the House of Commons.’ It can only be hoped this suggests reforms to the problems of the rules governing a caretaker government highlighted here.

Yet, another factor has further complicated these potential problems. The passing of the Fixed-term Parliaments Act in 2011 will not only complicate the caretaker period following the general election, but it may also lead to the creation of a caretaker period during a parliament. This piece of legislation and its unintended consequences will be the topic of the second article in this two-part analysis.

This is the first part of a series. For the second part, see 'The General Election: Creating a Constitutional Crisis? (Part II)'.

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Tagged: Constitution, Parliamentary & Elections

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