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).

The question remains, how is it tested who can command the confidence of the House of Commons? Traditionally the first test of confidence is the debate on the Queen’s Speech. That is normally the first item of business in a newly elected parliament at Westminster (after election of the Speaker). This finishes with a vote to approve the government’s programme which is the first formal test of confidence in the new government. In 2010 after the election on 6 May the Queen’s Speech was delivered on 25 May. There were then six days of debate, and (with the Whitsun recess) the formal confidence vote approving the new government’s programme was not held until 8 June. David Cameron had been Prime Minister for four weeks before it was established that he could command confidence in the new parliament.

One way of reducing the uncertainty and speeding things up would be to hold the confidence vote at the beginning of the Queen’s Speech debate instead of at the end. In 2010 this would have meant holding the vote on 25 May, two weeks after Cameron had been appointed Prime Minister. But it would still not offer any guidance as to whom the Queen should invite to be Prime Minister if it is not clear who is likely to be able to command confidence in the new parliament. That dilemma might happen in 2015 if both major parties win roughly equal numbers of seats and the new House of Commons contains different combinations of parties with credible claims to form a new government. In that circumstance the default rule is that the incumbent Prime Minister has the right to meet the new parliament to test whether he can still command confidence, as Baldwin did in 1924.

An alternative would be for the first item of business to be a nomination vote to select the new Prime Minister. This might be seen as more democratic, more transparent and more comprehensible for the public. The people would have elected a parliament, and they would then be able to see the parliament decide in a transparent process who should form the government. Many European parliaments have such a procedure, known as an investiture vote, with Germany being a leading example: the Chancellor is elected by the Bundestag.

But we need not look as far as Europe; in Britain, Scotland and Wales follow a similar procedure. In the Scottish Parliament the first item of post-election business after electing the Presiding Officer is a series of votes to establish which party leader can command confidence in the new parliament. In the first round of voting, a candidate must win an overall majority. If no candidate achieves an overall majority, there is a second round run-off, in which a simple majority is sufficient. Candidates are voted on in alphabetical order. For an example, see the record of the voting procedure in the ‘parliament of minorities’ in 2007, when the SNP had 47 seats, Labour 46, the Liberal Democrats 16 and the Conservatives 16. Alex Salmond won the nomination with 49 votes (with support from two Green MSPs): not an overall majority, but three more votes than Labour’s nominee who received 46 votes. The Presiding Officer then submitted Salmond’s name to the Queen, who appointed him as First Minister.

For this to happen at Westminster would require changes to Standing Orders. These would need to be made before the election for it to happen in 2015. But the parties are not going to agree to a change at this late stage, because the major parties cannot publicly admit before the election that they might not gain an overall majority. If the Queen’s Speech proves to be a messy and protracted way of establishing who can command confidence in the new parliament, with a lot of procedural wrangling which damages Westminster’s public reputation, they might start to change their minds and to think about how to do things differently in 2020. And they might have amongst their number someone who will be pleased to tell them how these things are done better in Scotland: a newly elected Alex Salmond MP.

Postscript

Just as I was about to post this blog, the Political and Constitutional Reform Committee published their report on Government Formation Post Election, in which they made this recommendation:

‘A matter of days away from dissolution, it is clearly too late for a procedure for an investiture vote to properly be introduced in time for Parliament’s return after the election, though if there were a clear requirement in the national interest for an early demonstration of the House’s confidence in a new administration then we expect that it would be possible for agreement to be reached on the procedural change required. We recommend that, in the next Parliament, the necessary steps are taken to introduce investiture votes for incoming governments in the future’ (para 62)

About the Author

Robert Hazell is Professor of Government and the Constitution & Director of the Constitution Unit.