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

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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).

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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.

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Constitutional Reform in the Queen’s Speech

Constitutional reform featured strongly in Queen’s Speech today, setting out legislation for the coming session of Parliament. The Unit dissects… 

Lords Reform Bill

This faces massive opposition in both Houses and may fail. The reform proposals are opposed by the Lords itself, and there is so much resistance among Conservative MPs the bill may fail to get through the Commons.

The committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost.

There are numerous issues over which the plans may fall apart. Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts.

Crime and Justice Bill

Of most constitutional relevance are the references to judicial appointments. Appointments are to be made more transparent and more diverse. Diversity is a central issue in judicial appointments, as the principle that appointment should be exclusively on merit is regarded as sacrosanct by the judiciary and many in the legal profession. The Ministry of Justice (which recently held a consultation on appointments) is thought to be frustrated at the slow pace with which minority groups have entered the judiciary.

It will be worth watching how far along the continuum between strictly merit-based appointment and affirmative action appointments are taken.

Draft Communications Bill

The proposed legislation allows intelligence officers real time access to communications of the public without a warrant. However there is growing concern about the potential impact on privacy. Theresa May commented “no-one is going to be looking through ordinary people’s emails or Facebook posts”.  The ICO have confirmed they are monitoring the development of the legislation closely and will press for the appropriate limitations and safeguards and  former head of GCHQ Sir David Ormand has drawn attention to the potential chilling effect that may occur on the use of social media as a source of information.

Electoral Registration and Administration Bill

The draft bill was widely welcomed as a means of tackling electoral fraud, however two particular concerns have also been raised. Scrapping the legal duty to register will cause millions of voters to fall off the register, as will scrapping the 2014 canvass. The Electoral Commission have called for a major public awareness campaign.

Scottish Independence & the Rules of Succession

Both issues had special mention as being actively pursued in the next parliamentary session.

The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)

Press release: Constitutional Changes to feature strongly in Queen’s Speech

The Black RodThree constitutional items will almost certainly feature strongly in the coming session of Parliament: Lords reform, Scottish independence and changing the rules of succession. Lords reform is the biggest, and threatens to overwhelm the rest of the legislative programme, and cause big tensions between the coalition partners.

Lords reform faces massive opposition in both Houses’ said the Constitution Unit’s deputy director Meg Russell.

The bill may fail: ‘We know the reform proposals are opposed by the Lords itself, but there is so much resistance among Conservative MPs in particular that the bill may fail to get through the House of Commons’, Meg Russell added.

It risks completely dominating the parliamentary session, she suggested. ‘Committee stage of the bill must be taken on the floor of the Commons and could take six weeks or more. Lords reform risks being for Cameron what the Maastricht bill was for John Major: this took 23 days on the floor of the House in committee alone, and saw numerous painful rebellions. At the bill’s Second Reading the rebels will seek to defeat the programme motion on its timetabling. If they succeed, the government will lose control over timing completely – but even if they fail, the bill may still be lost’.

There are numerous issues over which the plans may fall apart: ‘Simply to win the programme motion the government may need to concede a referendum on reform, which Nick Clegg doesn’t want. But defeats in the Commons are also likely on the powers of the Lords, the proportion of elected members, the electoral system, the proposed 15 year non-renewable terms, and the presence of the Bishops. Once MPs get hold of it, the bill may suffer a death of a thousand cuts’, Dr Russell concluded.

Scottish independence will also loom very large. The UK and Scottish governments will start negotiating in the summer and autumn about how to legislate for the independence referendum. The UK government wants there to be a single question, just on independence; while Alex Salmond will hold out for a second question, on Devolution Max. If they cannot agree the UK government may withdraw its offer to legislate for the referendum at Westminster, throwing up the risk that any referendum authorised by the Scottish Parliament is open to legal challenge.

Changing the rules of succession to the throne is much less contentious. To give a lead to the other countries where the Queen is head of state, the UK will want to legislate soon to remove the rule of male primogeniture, that sons come before daughters, and to remove one element of the discrimination against Catholics, that any heir to the throne who marries a Catholic is removed from the line of succession. (Catholics themselves and anyone else not in communion with the Church of England will remain barred from succeeding.)

Notes for Editors

  • For interviews, please contact the Unit’s Press Officer Brian Walker on 07802 176347 (williambrianwalker@gmail.com) or the Unit’s Administrator on 0207 679 4977 (v.spence@ucl.ac.uk).
  • The Constitution Unit is an independent and non-partisan research centre based in the Department of Political Science at University College London http://www.ucl.ac.uk/constitution-unit/