How should parliament decide who will be the next Prime Minister: by a nomination vote, or the Queen’s Speech?

robert_hazell (1)

Robert Hazell weighs up options for establishing who can command the confidence of the House of Commons, which will be particularly significant in the likely event of another coalition. This is the fourth in a series of posts about government formation after the election.

The Cabinet Manual explains the rules as follows:

‘… the Sovereign will invite the person who appears most likely to be able to command the confidence of the House [of Commons] to serve as Prime Minister and to form a government’ (para 2.8)

In a hung parliament that appears to require the Queen to play a guessing game. But the Cabinet Manual goes on to say:

‘Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government. The Sovereign would not expect to become involved…’ (para 2.13).

Continue reading

May 2015: Who forms the UK government in the event of a hung parliament?

Petra Schleiter (2)

The polls continue to predict a hung parliament after the May 2015 election in which more than one potential government could be viable. In this context, Petra Schleiter and Valerie Belu ask how government formation negotiations will proceed and which actors will have a privileged role in the bargaining process?

When several alternative governments are viable, negotiations are in practice guided by constitutional principles that determine which actors are asked to form the government and in what order. These principles are referred to as recognition rules in the field of comparative politics and they are often central in narrowing a range of potential government formation options decisively.

In the UK, the prime minister designate is appointed by the sovereign and asked to form a government. The monarch is expected to discharge this role in government formation without becoming involved in any negotiations. This is not difficult when a single party commands an outright legislative majority so that the prime minister designate is directly identified by the election result. However, in hung parliaments, the task of naming an appropriate government formateur often involves political choices. Moreover, who is selected as the formateur can have important consequences for the nature of the government that forms. In the past, the UK has applied a range of different principles to select formateurs. The problem is that these principles are potentially contradictory. The need to resolve the contradictions is becoming increasingly pressing in the context of long-term changes in electoral behaviour, which make it unlikely that the hung parliament of 2010 will remain an isolated outcome.

Continue reading

The Cabinet Manual and the caretaker convention

robert_hazell (1)

In the second of a short series of posts about government formation after the election, Robert Hazell discusses the weaknesses of the Cabinet Manual in terms of offering guidance on role of the incumbent PM and the caretaker convention.

On 23 February I gave evidence to the Political and Constitutional Reform Committee for their inquiry into government formation after the election. We discussed the inadequacy of the guidance in the Cabinet Manual about two things:

  • Whether there is a duty on the incumbent Prime Minister to remain in office until it is clear who can command confidence in the new Parliament
  • The caretaker convention, which requires a caretaker government to avoid actions or decisions which would bind the hands of a future government.

Duty on incumbent Prime Minister to remain in office

The draft Cabinet Manual published in December 2010 stated:

‘The incumbent Prime Minister is not expected to resign until it is clear that there is someone else who should be asked to form a government because they are better placed to command the confidence of the House of Commons and that information has been communicated to the Sovereign.’

Continue reading

Preparing for another hung parliament: 9 key questions answered

robert_hazell (1)Recent polls have suggested that the 2015 general election will result in another hung parliament, with no single party gaining an overall majority. The media and voters may assume that 2015 will then see a replay of 2010, with the swift formation of another coalition government. Not necessarily so, as Robert Hazell, along with Peter Riddell of the Institute for Government, has been explaining in pre-election briefings for the broadcasters. 

1. Will the leader of the largest party become Prime Minister?

Not necessarily. The constitutional rule is that the politician who can command the confidence of the House of Commons becomes PM. This could be the leader of the second largest party, if he can secure sufficient support from third and minor parties.

2. Does the Queen play a formative role?

No. The political parties must establish between themselves who can command confidence in the new House of Commons. The Queen will be kept informed, and will appoint that person as Prime Minister when the result of the negotiations becomes clear.

Continue reading

Defining the office of Prime Minister

The British Prime Minister has extensive and growing powers, yet the role is ill-defined in UK constitutional documents. Graham Allen argues in favour of clarifying the role of the Prime Minister. He also suggests it should become a directly elected office, to ensure that it is properly answerable to the UK public.

It is symptomatic of the British constitution that the more important something is, the more vaguely defined it is, and the harder it is to make it democratically accountable.

This principle certainly applies to the office of Prime Minister.

We do not know for certain when it came into existence. Historians tell us that the most important person in this process was Sir Robert Walpole, in the early eighteenth century. His reputation for corruption hardly makes for the most auspicious beginning for any great institution of state. Anyway, he did not actually officially create anything and always denied that he was a ‘Prime Minister’. The fact is that the most important job in British government has come about over a long period of three hundred years without anyone ever knowing precisely what it was; and without Parliament or the public ever having been consulted about it.

The House of Commons select committee of which I am the elected chair, the Political and Constitutional Reform Committee, has been looking at the office of Prime Minister for a number of years now, and we recently published a report on the subject. One of the surprising things we learned when investigating the subject was how little formal definition there is, even today, of the office of Prime Minister. The most that can be found is a few lines in a document published in 2011, The Cabinet Manual. Yet this text is – as the name suggests – an operational guide for government, aimed mainly at officials and ministers. It is not a full public definition of the prime-ministership, nor does it have proper legal force.

Continue reading

Continuing resentment against ‘establishment’ politicians has brought the right of recall back on to the legislative agenda

Robert Hazell discusses the challenges around developing legislation that will permit MPs to be recalled.

It was not a complete surprise to see the right of recall in the Queen’s Speech. The coalition government had kept open the option of legislating in a series of exchanges with the Political and Constitutional Reform Committee over the last two years.  The proposals stem originally from the MPs’ expenses scandal in 2009, which led all three major parties to include almost identical proposals for a right of recall in their election manifestos in 2010.  The precise commitment of the coalition parties in the May 2010 Programme for Government was framed as follows:

Image credit- UK Parliament

Image credit: UK Parliament

‘We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrong doing and having had a petition for a by-election signed by 10 per cent of his or her constituents’.

True to its word, in December 2011 the government published a draft bill and White Paper.  But in 2012 the Commons Political and Constitutional Reform Committee (PCRC) produced a very critical report, which led the government to pause.  The committee feared that the restricted form of recall proposed could reduce public confidence in politics by creating expectations that were not fulfilled.  The government’s long pause suggests that it may have shared the committee’s doubts.  But the rise of UKIP in the 2014 elections and continuing resentment against ‘establishment’ politicians tipped the balance: the government felt obliged to be seen to be doing something.

Continue reading

The UK Monarchy: Moving to a regency that dare not speak its name?

Bob Morris

The recent consolidation of the Queen’s and the Prince of Wales press offices under the Prince’s former press secretary and a YouGov poll(i) apparently showing warmer feelings towards the Prince’s deputising increasingly for his mother draw attention again to the gradual anticipatory transfer of functions between the Queen and her heir. How constitutionally is all this to be understood?

Abdication – the ‘A’ word

We are firmly told there isn’t going to be one. The Queen swore to serve all her days and she continues to mean it. Some other – lesser? – monarchies use abdication to pass on the throne to mature heirs with yet many years still in front of them(ii) and before the abdicator is senescent. That way the crown may still be held for decades and the appearance of continuity – thought to be one of monarchy’s advantages – preserved.

In such cases, abdication has been a response to generational arithmetic which, if its course is not revisited, could with modern longevity result in a succession of gerontocrats.(iii) Thus without an ‘A’ event and, just taking an example almost at random, it is possible to imagine a monarch plausibly likely to survive until a few years past their centenary to be succeeded by an octogenarian ruling for a decade or so to be succeeded in turn by a mere sexagenarian pushing 70 themselves succeeded by a similar aged heir.

Vernon Bogdanor is not moved by the arithmetic argument: ‘…the notion of abdications strikes at the heart of the British monarchy. For it implies that monarchy is a vocation that one can choose or abandon at will.//As soon as the monarchy becomes a matter of choice, its usefulness is greatly lessened’.(iv) But the first point naturally raises the question whether monarchy is not in the end a public office like any other public office. If so, then the view of the office holder would normally be subordinate to the interests of good government – and not entirely without regard either to the demands upon the incumbent in their old age. The second point – utility – raises just what, constitutionally, monarchy nowadays does – a point dealt with further below.

Regency

The law is clear: there can be a regency only when it can be authoritatively certified that one is necessary because of the mental or bodily infirmity of the sovereign (or for some other definite cause). The Regent has to be able to satisfy all the normal requirements for succession (Including not being a Roman Catholic but being in communion with the Church of England) and swear the relevant oaths. Prohibited from assenting to Bills changing the succession or reneging on the constitutional guarantee to the Church of Scotland, the Regent otherwise assumes all the sovereign’s functions.

Happily, the statutory criteria for a regency cannot at present be satisfied. There may come such a day but, without mental infirmity for example, bodily infirmity would have to be quite extreme to render the sovereign ‘incapable for the time being of performing the royal functions’ – the key statutory test. At what point, for example, would the sovereign become incapable of signifying assent – what sufficient minimal physical gesture, and as assessed by whom – to statutes, orders in council, church and other appointments recommended by ministers?

Short of becoming regent, an heir has no ‘hard’ constitutional position except to represent the sovereign for purposes that do not require the exercise of powers only the sovereign can exercise.(v) In a modern ‘welfare’ monarchy, this leaves quite a lot of room in the case of general ‘public duties’. For example, there is no reason why the heir could not read the sovereign’s speech at fresh Parliamentary sessions. Similarly, the heir could represent the sovereign at a range of public events varying from the annual review of the household regiments to attending the annual assembly of the Church of Scotland or leading on inward and outward state visits. The heir has already substituted for the sovereign at the biennial Commonwealth Heads of Government Meeting.

Present position

What seems to be happening is a movement to co-reigning where the sovereign is closely and explicitly shadowed by the heir but as the junior partner. The talk of an imminent ‘soft’ regency that is sometimes heard seems misplaced because no transfer of constitutional power is involved. There are ancient precedents for co-reigning monarchs but in very different circumstances: the aim seems mostly to have been to signify a preferred succession in turbulent times rather to arrange any real, immediate transfer of authority. Nonetheless, what is on hand does seem to be more a species of co-working than any other recognisable model.

Does any of this matter?

Were the sovereign still also the chief executive, then wooliness would be best avoided. Situations where there could be doubt whether an ageing sovereign could be relied upon to rein in a reckless heir’s dabbling in military matters or plundering the treasury cannot now arise. This is because the monarch is no longer the chief executive of the state: the modern head of state function in the UK is nowadays best understood as the hereditary president of a de facto republic.

The former key constitutional functions of granting Parliamentary dissolutions and selecting prime ministers no longer exist: the first was removed by the Fixed-term Parliaments Act 2011 (which substituted a statutory procedure) and the second by agreed procedures for government formation set out in a Cabinet Office Manual. The royal assent to Bills has long been a routine formality and, it has recently been argued, is ripe for statutory regulation.(vi) Otherwise no constitutional or executive function is exercised except on the advice of responsible ministers. Nonetheless, as Vernon Bogdanor points out, there are certainly important monarchical functions left, chief among them being the relationship with the prime minister, head of state in fifteen other Commonwealth ‘realms’ and headship of the Commonwealth itself. In addition, the crown is one of the few institutions operating throughout the UK. Though the longer term range of the role must be in doubt, the sovereign remains also involved in forms of UK-wide civil religion.(vii) The ‘welfare’ monarchy may beneficially continue to draw attention to causes that otherwise might struggle to obtain recognition. Helping an ageing sovereign more closely has advantages for both the sovereign and the heir, and co-working prepare the way more acceptably for accession – even to the point perhaps of smoothing passage to headship of the Commonwealth for accession to which there are, as yet, no agreed rules.

It seems, therefore, that the nation can expect a period of experimentation with co-working where, perhaps opportunistically, roles are transferred in relation primarily to public duties. One outcome should be a better prepared heir. Another – when that heir succeeds – might be a fresh look at the merits of resort in the long run to abdication as a part of succession planning.

Footnotes
(i) ‘Feet up, Ma’am, Let Charles do the work, Sunday Times 26 January 2014.
(ii) Thirty-two years each in the case of Queens Juliana and Beatrix of the Netherlands.
(iii) See Robert Hazell’s post – ‘Shouldn’t we allow our monarchs to abdicate, like the Dutch’ – 19 February 2013.
(iv) Daily Telegraph 20 January 2014.
(v) Brazier R. (1995) ‘The constitutional position of the Prince of Wales’, Public Law, 401-416, discusses the then minimal substance, a discussion taken further in Evans v Information Commissioner [2012] UKUT 313 (AAC). See also Perry A. (2013) ‘Constitutional Conventions and the Prince of Wales’, Modern Law Review, 1119-1128.
(vi) Brazier R. (2013) ‘Royal Assent to legislation’, Law Quarterly Review, 184-204.
(vii) For a recent discussion, see Bonney N. (2013) Monarchy, Religion and the State: Civil religion in the United Kingdom, Canada, Australia and the Commonwealth (Manchester, Manchester UP).