Lessons learned – Part 1

Last week, the House of Commons Political and Constitutional Reform Committee released their two-volume report Lessons from the process of Government formation after the 2010 General Election. It’s a fascinating reading, if, like me, you find this sort of thing fascinating.

The report (found in Volume IVolume II is written evidence) tackles the following subjects: Constitutional Rules and Conventions, Practical aspects of government formation, the Coalition’s Programme for Government, Pre-election and post-election activity, and the Cabinet Manual. I want to discuss only a few of the points made and raised in the report. This will probably take the form of at least two, perhaps three, posts on this subject. (Note, while the links provided above are to the HTML versions of the report, the page references provided here refer to the PDF version.)

The Committee notes in its Introduction that hung parliaments “have been rare in post-Second World War UK history. The last time this result occurred in a UK general election was in 1974” (p. 5) with the last formal coalition dating back to 1931. Consequently, “the events of May 2010 are ‘of considerable political and historical significance’, and ‘will serve to mould ideas and expectation about the future.'”(p. 5) In contrast, since 1945, Canada has seen 9 hung parliaments, all of which have resulted in minority government.

The section on Constitutional Rules and Conventions raises some interesting points. One of the first issues the Committee looked at was the conventions surrounding government formation. There had been some fear, should the election result in a hung parliament, that the public and the markets might show some signs of panic. However, this did not materialise, and the Committee attributes this to, surprisingly, the media, which it says “demonstrated a better level of understanding of constitutional processes than some had feared.”(p. 8) That this proved to be the case is in large part due to organisations such as the Hansard Society, the Constitution Unit at University College London and the Institute for Government, “Which worked in the run up to the election to increase public and media understanding of what would happen if there was a hung Parliament.”(p. 8)

As a Canadian, this impresses me greatly as it is in sharp contrast with how Canadian media approach a similar expected election outcome. The use of the term “hung parliament” is not part of the Canadian political vocabulary, thus media (and sadly, political and constitutional experts as well) tend to refer to any election result in which no party wins an outright majority as a minority government – even before it is decided that this will indeed be the outcome. I have blogged about this in the past. Minority government is not an election result, it is a form of government that can emerge following a hung parliament, where the party that ends up with the most seats, but not an outright majority of seats, governs. As the Committee report states: “there is no transparent link between the results of a general election and the formation of a government. A general election returns a House of Commons…”(p. 12)

The Canadian media has frequently failed to demonstrate a clear comprehension of constitutional rules and conventions that govern government formation, for example, their “declaring” an election result as being a “party X minority government” when what they really should be saying is that it will be another hung parliament, and not presuppose what sort of government might materialise from that. That the British media, for the most part, listened to experts and then explained what was happening and why to the public is notable.

The Committee discussed the issue of who has the first opportunity to form a government. The traditional position is that the incumbent Prime Minister has the first opportunity to continue in office and form an administration.

However, during the election campaign, Nick Clegg, Leader of the Liberal Democrats, when asked under which circumstances his party would support an attempt to form a government, stated that in his opinion, “whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to govern, either on its own or by reaching out to other parties.”(p. 9) This point was further clarified by Lib Dem MP David Laws when he appeared before the Committee. Laws explained that the Lib Dems would speak first to whichever party got the most seats and votes because “it would look very odd to the public if we went into talks first with the party that had just appeared to have lost power.”(p. 9)

Of course, Clegg’s statement contradicts traditional constitutional convention, which is, as stated earlier, that the incumbent PM has the first opportunity to form a government (in the case of a hung parliament). However, a constitutional expert who testified before the Committee, Prof. Robert Blackburn, noted that while it is the constitutional right of an incumbent PM to try to form a working Commons majority, this doesn’t oblige third parties to do a deal with the incumbent or even enter into negotiations with that party, therefore, Clegg was in some ways right. The Lib Dems were perfectly free to talk to whichever party they wanted to talk to, they weren’t bound to deal with Labour simply because Gordon Brown was the incumbent PM.(p. 9)

However, Clegg’s comment might end up setting a sort of precedent. The Committee notes that his comments from May 2010 have been included in the December 2010 Cabinet Manual as a footnote. The Cabinet Manual is an account of the workings of Cabinet Government that consolidates the existing unwritten, piecemeal conventions that govern much of the way central government operates under the existing constitution. It was authorized by Gordon Brown in February 2010, and in December 2010, a full draft was released for consultation. The Committee notes with some concern that while the December 2010 Manual “provided greater clarity on the extent to which an incumbent government has a right to stay in office to see whether it can command the confidence of the House of Commons”, the “inclusion of the comments made in May 2010 by the Leader of the Liberal Democrat party may suggest that this view will carry weight in future.”(p. 9)

In my next installment, I will look at the issues of when should the incumbent PM resign, and appointment of a new Prime Minister.

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