Political and Constitutional Reform Committee Committee Office House of Commons 7 Millbank London SW1P 3JA Tel 020 7219 3498 Fax 020 7219 3923 Email [email protected] Website www.parliament.uk/pcrc

22 November 2010

Written evidence published by the Committee to date for the inquiry into Lessons from the process of government formation after the 2010 general election

LPGF 01 Mr Graham Clowes LPGF 02 Dawn Oliver, University College London LPGF 03 Professor Robert Blackburn, King’s College London LPGF 04 Hansard Society LPGF 05 Mr David Laws MP LPGF 06 Peter Riddell, Akash Paun and Catherine Haddon, Institute for Government LPGF 07 Professor Robert Hazell and Dr Ben Yong, Constitution Unit, University College, London LPGF 08 and LPGF 08A Sir Gus O’Donnell LPGF 09 Professor Matthew Flinders, University of Sheffield and Dr Felicity Matthews, University of York LPGF 10 Baroness D’Souza, Crossbench Convenor, House of Lords LPGF 11 Baroness Royall of Blaisdon, Leader of the Opposition, House of Lords LPGF 12 Mervyn King, The Governor, Bank of England LPGF 13 Rt Hon Gordon Brown MP

LPGF 14 George Osborne MP, Chancellor of the Exchequer

1 Written evidence submitted by Mr Graham Clowes (LPGF 01)

Please find attached my submission to the Political and Constitutional Reform Committee of the House of Commons for their study of processes that were followed after the general election. I am submitting this comment in my personal capacity as a voter. I am only answering one question as follows:

9. What are the implications, if any, of the fact that these proposals lack a popular mandate?

Not one voter actually voted for this Government. The coalition’s programme has not been voted upon by the electorate and consequently the current Government cannot be said to have any mandate to pursue the programme they are following. This may not have been so bad had the coalition programme simply drawn from each of the participants manifestos, and to a certain extent this is what happened. However, the actual programme which has been pursued subsequently has consisted of initiatives which were neither in the party manifestos or indeed the coalition’s published programme.

The result is that, at a time when the public has little confidence or respect for the political process (due in part to the expenses scandal), the current Government are bringing the system further into disrepute by pursuing a programme for which they have no mandate.

A government in Asia or Africa, who received no votes and pursued an agenda which had no mandate via the ballot box would be branded as a dictatorship or banana republic. We would suggest they were undemocratic, but this is the situation we find ourselves in currently. The implication is that the system is being abused and is not delivering the choice of the British people. The outcome is that confidence in the British electoral system diminishes further eroding the trust the British people have in the establishment.

I do however understand why a coalition has emerged, and appreciate that it is not viable or practical to call a rerun of an election simply because one party has failed to achieve a majority of seats. However, where a coalition emerges I believe that a standard five year term is too long. I understand that systems exist whereby a Government can be dissolved before the end of a five year term – but this is reserved for extreme situations and not within the control of the electorate. The five year term for a programme which does not have a mandate from, and potentially the confidence of, the electorate serves to undermine the integrity of the system.

The nature of any coalition government programme inevitably must be a compromise. It has to be created after an election so will not carry a mandate from the electorate. Therefore there should be a shorter term - maybe two years. This will enable the coalition to set out its programme and begin work – it will also enable the electorate to pass its judgement on that programme. If the programme is appropriate the coalition would be re-elected, and if so a five year term would be appropriate. This would however require that the coalition proposes a joint programme and stands for election that basis. It may be that the partners in a coalition arrangement may wish to stand separately at the two year point – but if that was the case them one could argue

2 that the coalition was not sustainable in the first place. This early election requirement would also ensure that the policies pursued by any coalition would not be too extreme.

13 September 2010

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Written evidence submitted by Dawn Oliver, University College London (LPGF 02)

Questions

9. What are the implications, if any, of the fact that these proposals lack a popular mandate?

As long as the proposals are put forward as being in what the proponents honestly believe to be the general or public interest, and the population will acquiesce, the lack of a mandate does not matter.

I do not consider a popular mandate to be essential for proposals for constitutional change. What is essential is that any proposals should be put forward in what the proposers honestly consider to be the public interest and should not be motivated by desires for partisan political advantage. That does not preclude a political party or MPs from proposing changes that would advantage particular sections of society: if that were not the case women would never be able to propose sex equality legislation and ethnic minorities would not be able to propose anti discrimination legislation. But the justification for reform proposals – indeed for any government policy – must be that it will promote general public interests. The mandate ‘principle’ (not really a principle at all) is supposed to promote the public interest principle, but of course it cannot be guaranteed to do so. A mandate can indicate popular consent to a new policy, and government by consent/acquiescence is an important principle of the UK constitution. However the fact of the matter is that no government for many decades has won the votes of a majority of those who voted in an election, given the fact that most constituencies are won on three or four etc cornered fights and the winning candidate seldom wins a majority of the votes cast. Thus winning an election does not necessarily grant a government a ‘mandate’.

11. Should the head of government or Cabinet require the endorsement of the House of Commons, by way of an investiture vote?

No. This would be too formal.

I consider it a positive aspect of our constitutional arrangements that politicians operate within a culture of responsibility and not just by rules, whether of a legal or purely conventional/political kind.

Compliance with a culture of responsibility/sociality is demanded by the general population and is widely reflected in press and media comment. Politicians are conscious of this. The public and press reaction to the expenses scandal illustrates this.

My understanding of general public opinion is that MPs of all parties, and any government, single party or coalition, and opposition parties ought not to act in a partisan way and ought to exercise their judgment as best they can in the public interest, honestly and without being improperly influenced by selfish considerations.

4 After the election it was obviously not possible for the coalition partners to insist on implementation all of their manifesto commitments. The population generally realises and accepts this. Our electorate is fairly sophisticated in these matters.

If matters such as the formation of a coalition or of a single party government required endorsement of the HC, then the focus might be on the letter of the rules rather than the spirit of the constitution, which assumes inclusiveness, trustworthiness and good faith, and punishes lack of trust heavily through public opinion. That would not be right – unless and until the culture of the constitution changes so that the general interest is considered not to exist but to be a myth. There is currently no sign of such a shift.

It would not be good for the country if combinations of parties which lack a majority could prevent the formation of a new government if the previous one no longer had a majority by refusing endorsement. E.g. if there were two main but minority parties and say three or four smaller ones, the position could be reached where no government could be formed because the smaller ones vetoed every permutation, seeking to bargain for special deals. For instance, if Labour had formed a government in May on the basis of an investiture vote after doing deals with the nationalist parties that their regions/nations would receive special funding, that would have been a very partisan outcome and contrary to the general interest principle.

2 October 2010

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Professor Robert Blackburn, King’s College London (LPGF 03)

Professor Blackburn is Professor of Constitutional Law, and Director of the Centre for Political and Constitutional Studies, King’s College London

Introduction

1 Earlier this month I forwarded to the Committee my article on “The 2010 General Election Outcome and Formation of the Conservative-Liberal Democrat Coalition Government”,1 giving a history and constitutional analysis of the five days in May, when the outcome of the election was uncertain and negotiations were taking place between the political parties on the formation of the new government. In this Memorandum, I offer some thoughts on the political circumstances and constitutional framework within which the events of May 2010 took place and the implications of what happened. My aim is to help inform the Committee’s deliberations and contribute to their lines of inquiry on the lessons to be learnt from what occurred.

Aspects and special features of the 2010 election and its outcome

2 The UK system of parliamentary government is majoritarian in culture. Generally under our simple plurality voting system, there is an overall majority in the House of Commons for one party, giving its leader the right to enter 10 Downing Street. Therefore, the fact of the hung Parliament and the coalition it produced is of considerable political and historical significance, and what happened in May 2010 will serve to mould ideas and expectations about the future.

3 It is almost 80 years since the last peace-time coalition was formed,2 and it is 65 years since the end of Winston Churchill’s coalition formed for the purposes of fighting the Second World War. It is the only coalition government to have been appointed during the reign of Queen Elizabeth II.

4 The arithmetic of the 2010 election result could hardly have thrown up a more difficult political and constitutional equation for the parties to deal with.

UK GENERAL ELECTION RESULT, 2010

Votes (000s) % vote Seats won Conservative 10,703,744 36.1 306 Labour 8,606,518 29.0 258 Liberal Democrats 6,836,198 23.0 57 SNP 491,386 1.7 6 Green 284,823 1.0 1 Independent 229,021 0.8 1 Sinn Fein 171,942 0.6 5 Democratic Unionist 168,216 0.6 8 Plaid Cymru 165,394 0.6 3

1 Public Law (forthcoming, 2011). 2 This was the National Government of 1931.

6 SDLP 110,970 0.4 3 Alliance 42,762 0.1 1 Speaker 22,860 0.1 1

5 This hung Parliament was of a markedly different nature to the previous occasion in February 1974, where the two main parties were virtually even – the Conservative government gaining 297 seats, to Labour’s 201 – with the Liberals fielding a very small band of MPs, just 14. In 1974, because there were 23 other MPs (7 SNP, 2 Plaid Cymru, 12 members for Northern Ireland constituencies, and two independent Labour MPs), the Liberals could not offer either the Conservatives or Labour an overall working majority.

6 In 2010, by contrast, the Liberal Democrats were fielding a much larger parliamentary team of 57 seats. A figure of 326 parliamentary seats was needed for an overall majority, leaving the largest party, the Conservatives, 20 short. If the Liberal Democrats entered into an arrangement with Labour (the party with which they had the closer ideological affinity), their combined voting power in the Commons was greater than that of the Conservatives, 315 to 306. This would leave the regional and other Members holding the balance of power, though the Green and SDLP Members could be expected to vote with Labour, and the Unionists with the Conservatives. The SNP and Plaid Cymru Members would generally support Labour too, so pressures behind a “rainbow” or “progressive” alliance behind Labour remaining in office was certainly feasible.

7 The state of public opinion on events in May 2010 came against a backdrop of popular disengagement from politics, ambivalence over voting intentions, and a strong expectation that there would be a “hung” Parliament. Yet precisely what were the rules on government formation in situations of no single party gaining an overall majority in the House of Commons was the subject of widespread confusion and misunderstanding in the country and the media.3 In some respects this was aggravated by the Cabinet Secretary initiating novel procedures and ideas about government formation.4

8 Popular expectation in the UK is that the transition of government after polling day is swift. In normal conditions the Prime Minister’s resignation and appointment of the opposition leader as successor takes place at Buckingham Palace the next morning, immediately followed by the new premier entering 10 Downing Street, minutes after the outgoing Prime Minister has left the premises with furniture vans by the back door. But in May 2010 no such immediate climax occurred, leaving the 24- hour mass media and country in a state of suspense over five days, Friday 7th to Tuesday 11th May. The 24 hours news media, a political fact of life since the 1990s, added to the sense of national drama and pressure on resolution on who would be Prime Minister.

9 A feature throughout this period was the intense confidentiality surrounding the communications and meetings between participants. There were virtually no off the record briefings to the media about the substance of the meetings or how the

3 See below for clarification on the rules. 4 See below.

7 negotiations were going, in contrast to the normal state of affairs where the media and politics are closely intertwined. The only politicians actively involved in the negotiations who talked at all to the media beyond the formal statements or public utterances outside the Cabinet Office or other inter-party meeting places were on the Labour side.

10 A final observation to be made of the pressures wrought by public opinion and the media on government formation in 2010 relates to the televised party leaders’ debates, the first ever of their kind in the UK. Presidential in character, these high profile events served to invest the Liberal Democrat leader Nick Clegg with a far higher public profile and popularity. This will have been a key factor in David Cameron’s decision to embrace him as Deputy Prime Minister in the coalition.5 Indeed, so personal is Mr Clegg to the formation of the coalition government that no provision has been made in the coalition documents, discussed below, for the appointment of a new or different Deputy Prime Minister in the event that Mr Clegg resigned, died, or was deselected as Liberal Democrat leader.

The constitutional framework for government formation

11 The UK has a traditional constitution, where historical precedent tends to guide future conduct, particularly in areas where the legal basis for executive action – including government formation and prime ministerial appointment - is the royal prerogative. Therefore prior to the 2010 election a consideration of the events of February 1974, the last occasion when an electoral outcome produced no overall majority, was one way of answering the question of what were the constitutional rules under a hung Parliament in 2010.

12 A summary of what happened in February 1974 is as follows. The incumbent Prime Minister leading a Conservative government was Edward Heath, and the result of polling day on February 28, 1974, in terms of parliamentary seats won, had been Labour 301, Conservative 297, Liberal 14, SNP 7, Plaid Cymru 2, Northern Ireland parties 12, Others 2. So no party had won an overall majority, and any Labour claim to have the strongest mandate was offset by the fact that the Conservatives nationally won almost 300,000 more votes than Labour, or a 37.9 per cent share of the total vote compared to Labour’s 37.1.

13 Mr Heath chose to remain in office over the weekend, and proceeded to attempt to form an agreement with the Liberal leader Jeremy Thorpe that would sustain him in government. He had meetings with Mr Thorpe at 10 Downing Street on the Saturday at 4pm and on the Sunday at 10.30pm, and indicated his preference for a coalition, with Mr Thorpe being offered a seat in Cabinet. Any possible deal foundered, however, after meetings of the Liberal parliamentary party and the Conservative Cabinet on the Monday morning, with Mr Thorpe’s Liberal colleagues refusing to support any deal without a commitment from Mr Heath to enact proportional representation, and the Conservative Cabinet being unwilling to go further than offer a Speaker’s Conference on electoral reform. On Monday early evening, Mr Heath visited the Queen at Buckingham Palace to tender his resignation,

5 The issue of popular consent and maintaining public support for a government was a critical factor for Mr Cameron who was faced with the reality that the Conservatives had not won the election, and there were many more votes cast against the Conservatives than for.

8 and Harold Wilson was invited to form his third Labour administration. 14 Reflecting on the process that had been followed, Mr Heath in his memoirs expressed the view,6 “I had a clear constitutional duty to see if I was best placed to carry on that responsibility”. Rumblings of Labour disquiet and murmurings of unconstitutional conduct had emanated from some quarters in the Labour party, but the Opposition leader, Harold Wilson, was content with Mr Heath’s position. At Mr Wilson’s meeting with the Labour parliamentary committee on the Friday, it was “resolved that none of us would make any news comment, claim or forecast over the weekend. The Conservatives still formed the Government. They had to decide whether to resign or seek to carry on.”7

15 Stated as simply as possible, the constitutional conventions on government formation (including in situations of a hung Parliament) were and are, firstly, that the incumbent Prime Minister has the first opportunity to continue in office and form an administration; secondly, that if he is unable to do so (and resigns, or is defeated on the Address or in a no confidence motion at the meeting of the new Parliament) then the Leader of the Opposition is appointed Prime Minister; and thirdly, it is for the political parties to negotiate any inter-party agreement for government among themselves without royal involvement. This is precisely what happened in 2010, as indeed it had happened previously in February 1974.

16 During the year preceding the election in 2010, a few constitutional specialists, including myself, explained this constitutional framework in a variety of publications and sessions with the press. Thus in my letter to The Times on 28 November 2009, I wrote,

Sir,

If there is a hung Parliament after the next general election, there will be no constitutional crisis (Daniel Finkelstein, “How to stop the Queen picking the next Prime Minister”, Opinion, Nov 25; and Mark Oaten MP, “We must head off the possible constitutional crisis if the result of the next election is close”, Letter, Nov 27).

There is already in existence an established procedure and basis for the resolution of who will be Prime Minister after a general election that produces a House of Commons with no overall majority for a single party. If this occurs after the 2010 election, the situation will be –

• The incumbent Prime Minister has the first opportunity to continue in office and form an administration.

• If he is unable to do so (and resigns, or is defeated on the Address at the meeting of the new Parliament), then the Leader of the Opposition is appointed Prime Minister.

... If no single party obtains an overall majority at the election, Gordon Brown is

6 Edward Heath, The Course of My Life (1988), p.517. 7 Harold Wilson, Final Term: The Labour Government 1974-76 (1979), p.9.

9 entitled to see if he can remain in office with the support of the Liberal Democrats to ward off a defeat on the Address (or no confidence motion) at the first meeting of the new Parliament. He would, of course, enter into talks about agreeing to implement some Liberal Democrat policies such as constitutional and voting reform as the price of survival in office.

But if, as the Liberal Democrat leader Nick Clegg suggested in a BBC interview (Andrew Marr Show) last Sunday, the Liberal Democrats only wish to negotiate with the party which received “the strongest mandate” at the election (it was ambiguous as to whether he meant more seats won or more national votes cast), Mr Clegg will indeed be in a position to force Mr Brown to resign and allow David Cameron into 10 Downing Street..

ROBERT BLACKBURN Professor of Constitutional Law, King’s College London

Similarly, the constitutional position was set out in a widely distributed pamphlet co- authored by myself, a senior member of the Hansard Society, and two members of the House of Commons library.8

17 An important distinction to be drawn in interpreting the constitutional conventions on hung Parliaments is to realise that the right of an incumbent Prime Minister to remain in office and attempt to form a working Commons majority with others outside his party, does not mean or translate into a constitutional obligation upon third parties to do a deal with the incumbent Prime Minister or even to enter into any negotiations with him and his party. In other words, in 2010 it was open to Gordon Brown as incumbent Prime Minister to make overtures, but it was for the Liberal Democrat leader Nick Clegg to decide with whom he would forge an agreement for government.

18 In this context, the public statement made by Nick Clegg in a television interview on 22 November 2009 that he would regard the party with “the strongest mandate” as having won the election and therefore the one with which he would enter into negotiations first, was a highly significant political development, and indeed a portent for how the election outcome would eventually unfold in terms of the negotiations between the parties during the five days of 7th and 12th May. The emphatic way in which the Liberal Democrat leader presented his view to the public, later characterised as “the Clegg doctrine”, went as follows.9

ANDREW MARR: Can I ask you about the opinion poll this morning, which suggests that we may be closer to a hung parliament than we all thought. Is your position that it would be the sort of morally right thing, if there was that condition, to back the party which got the biggest number of seats or votes, or what? ...I'm asking about your sort of philosophical approach to a situation where nobody had an overall majority... Would you feel it was the right thing to offer your support first to the party which had done best?

8 R. Blackburn, R. Fox, O.Gay, L. Maer, Who Governs? Forming a Coalition or a Minority Government in the Event of a Hung Parliament (Hansard Society/SPG, 2010), issued at a press conference in the House of Commons, 11 March 2010. 9 BBC The Andrew Marr Show, November 22, 2009.

10 NICK CLEGG: Oh, I think it’s just an inevitable fact, it's just stating the obvious, that the party which has got the strongest mandate from the British people will have the first right to seek to govern either on its own or reach a …

ANDREW MARR: Well that's not, that's not been the case in the past...Ted Heath, for instance, as you know, discussed with the Liberal Democrats first before throwing in the towel. So we could have a situation where Gordon Brown was coming to you and saying …

NICK CLEGG: No, I start from a very simple first principle. It's not Gordon Brown or David Cameron or Nick Clegg, who are sort of kingmakers in British politics. It is the British people. So the votes of the British people should determine what happens afterwards. You know that is what should happen in a democracy... It’s whichever party - whether it's the Liberal Democrats, Labour or the Conservatives - have the strongest mandate from the British people. It seems to me obvious in a democracy, they have the first right to seek to try and govern either on their own or with others.

The Cabinet Secretary’s intervention

19 Shortly before the 2010 election, the Cabinet Secretary started to prepare a “Cabinet Manual” describing the structure and operation of central government, including a chapter on electoral outcomes. A draft form of this chapter was shown to the House of Commons Justice Committee as evidence in its short inquiry into constitutional processes following a general election, and its content was discussed with the Cabinet Secretary Sir Gus O’Donnell at an evidence session held on February 24, 2010.10

20 On hung Parliaments, the draft Manual reads,

Where an election does not result in a clear majority for a single party, the incumbent Government remains in office unless and until the Prime Minister tenders his and the Government’s resignation to the Monarch. An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence. If a Government is defeated on a motion of confidence in the House of Commons, a Prime Minister is expected to tender the Government’s resignation immediately...

21 However it appeared from other parts of the draft Manual, and became clear during the Cabinet Secretary’s evidence session with the Justice Committee, that a major purpose lying behind the new draft Manual was not simply to describe existing convention but to create new expectations and processes.11

10 HC Paper No.396 (Session 2009/10). The purpose of the Justice Committee’s inquiry was to hold an evidence session “on how constitutional principle, provision and practice apply after general elections... in the light of speculation that the forthcoming general election could result in a House of Commons where no one party has an overall majority”: para 1. 11 Sir Gus O’Donnell was influenced by two reports, Transitions: Preparing for Changes of Government by P. Riddell and C. Haddon (Institute for Government, 2009) and Making Minority Government Work ed. R. Hazell and A. Paul (Institute for Government/Constitution Unit, 2009).

11

22 The first change in conventional practice desired by the Cabinet Secretary was to establish and extend the principle of a “caretaker” prime minister and government. Currently, between the public announcement of an election and polling day, a period of “purdah” has been said to exist, when the government will refrain from initiating any significant new government policy, executive action, or expenditure of public money, particularly if it represents a commitment that will bind the post-election government. Its democratic logic is essentially one of fairness: that a popular act could be seen as stealing an advantage over the other parties; and particularly if a change of government is in prospect, the decision is rightly one for the new government to take.

23 The Cabinet Secretary told the Commons Justice Committee that he wished to now extend this “discretion” on the part of a government into the post-election period “when we do not have a stable government”.12 This would include any period of inter-party negotiation, as in fact occurred between 7th and 11th May 2010, and could extend considerably further, not just until the meeting of the new Parliament and Queen’s Speech, but arguably for several months thereafter if a minority government’s position in the House of Commons was considered politically fragile with a real possibility of losing a confidence motion or a second general election being called.

24 The new principle drafted on Sir Gus O’Donnell’s instruction for the draft Cabinet Manual was,13

As long as there is significant doubt whether the Government has the confidence of the House of Commons, it would be prudent for it to observe discretion about taking significant decisions, as per the pre-election period. The normal and essential business of government at all levels, however, will need to be carried on.

25 The second change sought by the Cabinet Secretary was for the civil service to take over the hosting of any post-election inter-party negotiations.14 The draft Cabinet Manual included a paragraph stating,15

It is open to the Prime Minister to ask the Cabinet Secretary to support the Government’s discussions with Opposition or minority parties on the formation of a government. If Opposition parties request similar support for their discussions with each other or with the Government, this can be provided by the Cabinet Office with the authorisation of the Prime Minister.

The precise details on the nature of support envisaged were unclear at the time the draft Manual was shown to the Justice Committee, with Sir Gus O’Donnell agreeing in discussions with members of the Committee that “we have some quite difficult

12 HC Paper No.396 (Session 2009/10), Ev 16, Q87 (February 24, 2010). 13 Para 20. 14 The Making Minority Government Work report, cited above, had concluded, “Lessons for the civil service: Be prepared for a caretaker government, and the need to support negotiations between political parties during a prolonged period of government formation”, p.5. 15 Para 19.

12 practical issues to sort out as to how we make this work”.

26 During the five days in May, the actual support given by civil servants from the Cabinet Office appears to have consisted of making a room available at 70 Whitehall for the Conservative-Liberal Democrat talks and serving sandwich refreshments. It is thought there may have been one civil service intervention from the Treasury in giving some factual background information. No support appears to have been given for the Labour-Liberal Democrat talks, which were held in the House of Commons, although it is believed the Permanent Secretary at the Foreign and Commonwealth Office made his office available for the private meeting held between Mr Brown and Mr Clegg during the afternoon of Sunday 9 May.

27 One net consequence of the Cabinet Secretary’s initiative was to remove 10 Downing Street as the forum for the incumbent Prime Minister’s talks with the third party, as Mr Heath had had in 1974, as well as the regional parties. Some claim the Prime Minister thereby lost a valuable psychological advantage in terms of maintaining initiative and momentum over events.

28 The Committee may now wish to establish from the Cabinet Office –

• the precise details of its support given to the negotiations;

• what instructions were issued by the Cabinet Secretary to his staff on the matter;

• what requests were made by members of the negotiating teams in all three political parties; and

• how useful members of the respective negotiating teams found the civil service support and for what purposes.

29 Supporting the ideas of the Cabinet Secretary on transition of government arrangements were modifications made under the authority of the royal prerogative to the meeting of the new Parliament.16 The date for the first meeting of the newly elected Parliament in 2010 was put back one week longer than had been normal under post-1945 constitutional practice. The principal reason for this change,17 certainly as it was perceived by the media briefed by the civil service,18 was to facilitate post- election negotiations in the transition of government.

Mr Brown’s “constitutional bind”

16 Generally see R. Blackburn, The Meeting of Parliament (1990). 17 It had also been a recommendation of the House of Commons Modernisation Committee, HC paper 337 (Session 2006/07) on the basis that it would enable new Members more time to acclimatise to their new jobs. 18 Thus the day after the royal proclamation dissolving Parliament and summoning its successor, the Daily Telegraph reported, “Party leaders could take almost three weeks to form a government if the election results in a hung Parliament... Party bosses will use the time to negotiate deals and coalitions if a clear winner does not emerge on May 6... The Cabinet Office has issued guidance on the constitutional rules and procedures in such circumstances” (April 13, 2010).

13 30 As stated above, the idea of the Cabinet Secretary was that the incumbent Prime Minister should remain in 10 Downing Street as a “caretaker” as long as it took for negotiations leading to a new government and agreed policy programme for office to be concluded. Although originally suspicious of civil service interference,19 during the five days of negotiations Mr Clegg came to enthusiastically adopt the Cabinet Secretary’s views. As expressed shortly after the election,20

I come from the perspective that if you're trying to do something very unusual, which is of course creating a coalition in a political culture such as ours which isn't used to coalition, this is very unusual. We were doing it in an extraordinarily compressed timetable. In most other countries where they negotiate coalitions, they take months to do it. We were doing it in a matter of hours and days when everyone was pretty tired after the election campaign. So suddenly to be told out of the blue the Prime Minister was going to you know march off to Downing Street and say, ‘I'm fed up with this. You know I'm going to throw the towel in and I'm going to you know march off into the distant horizon’, I thought was not the right way of going about things.

31 However our political culture, and the popular expectations of the media and country during the five days in May, was not yet ready or primed for this “caretaker” idea. Gordon Brown found himself in an extremely difficult position of personal and professional embarrassment on Tuesday 11 May, once it had become clear the Opposition leader would become the new Prime Minister. The combination devised by the Cabinet Secretary of displacing Number 10 as the central forum for resolving who would form the next administration, and encouraging the opposition parties to take as long as they wanted in finalising a policy deal, left Mr Brown in a constitutional bind. Some of the mass circulation press were being vitriolic in presenting their view to the public. “Whitehall property scandal – squatter holed up in No 10 – Man, 59, refuses to leave house in Downing Street”, ran one of the Sun’s front pages during the five days.21 It was this factor, above all, that motivated Gordon Brown to resign abruptly on Tuesday evening, May 11, even though it seems the Cabinet Office, and Buckingham Palace officials taking their lead from the civil servants, were putting him under some pressure to remain in post until the next day or even longer.

The political parties and their leaders

32 One further noteworthy aspect of the five days of negotiations was the role of internal party procedures. The Conservative and Labour leaders were procedurally free to negotiate as they thought fit, consulting only those they wished to do for tactical advice.

33 The Liberal Democrat leader, Mr Clegg, alone was bound by party rules on the matter, which were –

Conference notes the absence of specific constitutional provisions which clearly define the Party’s approach to gaining positive consent to proposals for an

19 See interview, Evening Standard, April 14, 2010. 20 Interview, BBC Andrew Marr Show, 23 May 2010. 21 May 8, 2010.

14 important change in strategy or positioning: agrees that:

(i) in the event of any substantial proposal which could affect the Party's independence of political action, the consent will be required of a majority of members of the Parliamentary Party in the House of Commons and the Federal Executive; and

(ii) unless there is a three-quarters majority of each group in favour of the proposals, the consent of the majority of those present and voting at a Special Conference convened under clause 6.6 of the Constitution; and

(iii) unless there is a two-thirds majority of those present and voting at that Conference in favour of the proposals, the consent of a majority of all members of the Party voting in the ballot called pursuant to clause 6.11 or 8.6 of the Constitution.

Thus under party rules, there was this “triple lock” of constraints binding Mr Clegg before entering into any agreement with another party. The resolution governing the procedure was passed by the Liberal Democrat party conference in 1998, at which time there were concerns among activists about its then leader Paddy Ashdown’s ideas for closer relations with Tony Blair’s New Labour government.

The coalition partners’ agreements for government

34 On the substance of the post-election agreements between the Conservative and Liberal Democrat leaderships, four documents were published in May, shaping how the coalition government would operate, two dealing with policy, two with process. Collectively, these documents and the accompanying statements made by the party leaders represent the constitutional principles and working arrangements for the Conservative-Liberal Democrat coalition government.

35 The first of these, published as a simple seven page stapled document on 11 May, was launched by the two party leaders at their media conference the day after taking office. It set out the issues that needed to be resolved between the two parties in order to establish a “strong and stable government”, and said it would be followed in due course by a final Coalition Agreement, covering the full range of policy including foreign, defence and domestic policy issues not covered in the preliminary document. Eight days later on 20 May, a HM Government document gave the further elaboration on the parties’ agreements, entitled The Coalition: Our Programme for Government.

36 The Coalition Agreement reads and looks like an election manifesto, although its moral authority in terms of representing a democratic mandate for government is open to debate which the Committee may wish to explore with some specialists in political philosophy.22

22 Some claim the idea of an electoral mandate is an unconstitutional doctrine anyway: see for example the former Conservative Lord Chancellor Lord Hailsham’s remarks in his 1977 book, The Dilemma of Democracy. To give just one conundrum, even in normal conditions it is elementary logic that, given that a party manifesto contains a hundred or so policy items, you will never knowingly receive majority backing for each and every individual policy item. And if a governing mandate requires a majority

15

37 The nature and procedures for the Conservatives and Liberal Democrats joint working arrangements were finalised between the party leaders last, and is contained in a document entitled Coalition Agreement for Stability and Reform.23 It needs to be read alongside the fourth key document of the coalition, the new revised version of the Ministerial Code.24 Whilst Stability and Reform document goes to the heart of the political partnership of the two parties, the Code has a more formal status so far as the Cabinet Office and machinery of government is concerned.

38 The Stability and Reform agreement is a concise, three page summary of essential working arrangements, under the headings of “composition of the government”, “collective responsibility”, “functioning of the government”, and “support for the government in Parliament”. At the crux of the power relationship between the parties and their respective leaders lies the constitutional fact that the Prime Minister has the executive powers of the royal prerogative at his disposal. These include the key powers of ministerial appointment, transfers, and dismissals; public appointments, including peerages in the second chamber; and control over the agenda and arrangement of Cabinet proceedings. Unsurprisingly therefore, consultation processes with the Deputy Prime Minister feature strongly throughout the Stability and Reform agreement.

39 More complex and politically sensitive is precisely how disagreements are to be managed and resolved, and how each party leader (particularly the Deputy Prime Minister) will deliver the support of his party in parliamentary votes crucial to the life of the coalition government. The well-known principles of collective Cabinet responsibility – confidentiality of proceedings and the public appearance of unanimity - are emphatically endorsed in the Coalition Agreement for Stability and Reform. They are stated to apply “unless explicitly set aside”, and this is mirrored in the new version of the Ministerial Code. The agreement takes into account, however, that demands for collective responsibility must be matched by allowing ministers to present their views and be involved in relevant consultations and discussion.

40 Carefully constructed machinery has been created by the two party leaders to sustain the coalition and swiftly resolve any issues between the two parties. The most senior component in this is the “Coalition Committee”, which has the status of being a formal Cabinet Committee. It is co-chaired by David Cameron and Nick Clegg, and comprises an equal number of Cabinet members from each party. It meets weekly, or as required. Below it is the Coalition Operation and Strategic Planning Group, which is designated an informal working group (not a Cabinet sub-committee), comprising four members, two from each party.

41 Across the new structure of Cabinet Committees established by the Prime Minister, each Committee has a chair from one party and a deputy chair from the

vote, only once in the last 100 years has a winning party gained over 50 per cent of votes cast at an election (the proportion being even lower if you take consider the result as a proportion of the electorate as a whole, including those who did not vote at all). In 1997, for example, when Labour won a crushing victory and overall majority of 176, in fact only 43.2 per cent of popular votes cast were for Labour, equating to 30.8 per cent of all electors in the country – a clear minority. 23 Cabinet Office, May 2010. 24 Cabinet Office, May 2010.

16 other party, and if any unresolved issues arise between members of the different parties on any of the Committees, they are to be referred to the Coalition Committee.

42 So too, the Coalition Agreement for Stability and Reform carefully sets out the principles aimed at securing support for the coalition government in Parliament. “Ministers will be responsible for developing and maintaining a constructive dialogue with Members of both Parliamentary Parties”, the agreement reads, and “the two Parties will aim to ensure support for Government policy and legislation from their two Parliamentary Parties, except where the Coalition Programme for Government specifically provides otherwise”. The document provides that any exceptions allowing dissent must be specifically agreed by the Coalition Committee and Cabinet.

Concluding thoughts

43 Some key political and constitutional lessons to be learnt from the process of government formation at the 2010 election are that –

• In the event of a hung Parliament, it is the political leaders in consultation with their parties (under specific party procedures, where applicable) who by negotiation determine who will be Prime Minister and form the government.

• The House of Commons has no direct role in formalising a new administration, which is a royal prerogative act of the monarch. The Committee may wish to consider whether a formal vote of confidence should now take always place in the Commons, consistent with the proposal for this procedure in the event of a censure motion and alternative government taking office under the terms of the Fixed-term Parliaments Bill [Bill No 64 of 2010- 11].

• The monarchy accepts that it has no proactive role to play in government formation, though it closely follows events in order to offer any support necessary, including the ceremonial acts of receiving the resignation of the outgoing prime minister and inviting his/er successor to take office and form an administration.

• The Cabinet Secretary has taken the initiative in developing constitutional practice on government formation. His purpose is to encourage negotiating parties to establish a detailed policy programme for government, whilst maintaining a caretaker government in office whilst the negotiations are conducted. However, the process by which this initiative was, and is, being conducted is questionable.

44 The Committee may therefore wish to consider –

(a) whether it should inquire into the changes and whether they were shown to be necessary or desirable;

(b) whether the pre-election preparations for implementing the Cabinet Secretary’s changes were adequate or need improvement in a similar future situation, for example in the quality of support given to the incumbent Prime Minister in the

17 role as “caretaker”, and in developing public expectations about transition of government arrangements; and

(c) whether it is intended that the Cabinet Manual is a public document of constitutional authority; and if so, whether the degree of public consultation outside Whitehall has been sufficient, and whether as a process for reform this should now be developed further by a cross-party parliamentary body such as the Committee itself and/or by a minister responsible to Parliament.

9 October 2010

18

Written evidence submitted by the Hansard Society (LPGF 04)

The Cabinet Manual

1. The drafting of the Cabinet Manual amounts to partial codification of aspects of our constitutional arrangements. With one exception (the extension of the rules governing the purdah/caretaker period beyond the election until a government formed) it did not set out anything that is constitutionally ‘new’, rather the novelty lay in setting out the existing arrangements (both conventions and legislation) in clear written form. That chapter six on elections and government formation was published in draft form before the rest of the manual was understandable due to the pressing nature of the political and electoral circumstances that pertained in spring 2010 and the understandable desire of both the civil service and Buckingham Palace that the arrangements should be clear to the politicians, media and the general public in the event of a hung Parliament at the general election.

2. The original draft was revised to take account of comments made at the Justice Committee’s public session on 24 February and it was this revised draft that was used by the civil service in May 2010. This revised draft was not published due to a lack of time before the election was announced - we therefore do not know exactly how the changes were made. A number of issues arise:

a. The Justice Committee recommended that the wording in relation to the extension of the purdah/caretaker period should be clarified and strengthened but how this was subsequently achieved is not in the public domain. The guidance needs to be clear in setting out how the opposition parties are to be consulted if action beyond that usually permitted in the purdah /caretaker period is deemed necessary by the incumbent government. In April - May 2010 two specific situations arose – the closure of air space following the eruption of the Icelandic volcano, and the deteriorating economic situation and problems specifically in relation to the Greek economy – where the conventions of the purdah/caretaker period might conceivably have come under pressure. In the latter case the Chancellor, Alastair Darling MP, did consult his opposite numbers, George Osborne MP and Vince Cable MP, about the ECOFIN meeting he attended over the course of the weekend immediately following the election. In the absence of any significant criticism of the handling of this event it would suggest that the wording of the revised draft did provide the politicians and the civil service with the necessary guidance to deal with such situations.

b. Additionally, the position about what support the civil service can provide to inter-party negotiations needs to be clear, albeit flexible, in light of the political permutations that might emerge. In May 2010 the civil service appear to have played a very limited role. However, in the event of a minority government being formed and some form of supply

19 arrangement being reached it is conceivable that an opposition party(ies) might seek some civil service support and policy advice if only on an ad hoc basis. In 1977-78 during the Lib-Lab Pact, for example, some, albeit limited, civil service support was provided to the Liberal Party leader, David Steel, through the workings of the inter- party Joint Consultative Committee whose secretariat was staffed by civil servants from the Privy Council Office. Throughout the period of the Pact government ministers steadfastly refused to answer questions about the Joint Consultative Committee, including its resourcing arrangements, in the House of Commons on the grounds that it was an inter-party not a governmental arrangement. This clearly stretched the boundaries of accountability. In February 2010 the Cabinet Secretary indicated to the Justice Committee that he and his fellow Permanent Secretaries would have to come up with some guidance ‘about what constitutes the right level of support’ to give to the parties because they might be supporting a party which then turned out to be in opposition to the government. If such guidance were developed, it should be incorporated into the revised Cabinet Manual chapter.

c. The drafting of the chapter was handled largely by officials within the Cabinet Office in consultation with a small number of eminent constitutional experts. The House of Commons Justice Committee was then consulted on the draft. For political reasons associated with the proximity of the general election the parties themselves, although consulted, did not want to be closely associated publicly with the document for fear of how it would be interpreted. However, there is now time for a proper period of consultation with a wider range of interested individuals and bodies thus ensuring that a broader range of opinions and ideas are brought to bear on the document than was possible with the small number of constitutional experts hitherto consulted. Thus:

i. the final draft of the chapter of the Cabinet Manual should be published for further consultation and consideration; ii. the full draft of the Cabinet Manual – which Sir Gus O’Donnell had previously indicated would be completed soon after the general election – should be published at the earliest opportunity for consultation; iii. it should be made clear which minister at the Cabinet Office now has ministerial responsibility for the process and is therefore accountable to Parliament for it.

Government formation – issues arising

3. The previous benchmark for negotiations in the event of an uncertain election result was the three days of February/March1974. That has now been pushed to five days by the events of May 2010. It is likely that in future this limit can, if required, be pushed still further given that the events of May demonstrated that political and financial collapse need not follow an inconclusive election result as many had threatened and feared. However, clearly constraints on the

20 ability of parties to conduct negotiations over a longer period remain: the longer that talks go on the stronger will be the media and market pressures, and the parties themselves will come under increased internal strain (in relation to confidentiality, leaks etc).

4. In constitutional terms the only test for government formation is whether or not it is able to command the confidence of the House of Commons in the votes at the end of the Queens Speech. This year the Queen’s Speech debates and votes did not conclude until 8 June. There was therefore a month between the election and the actual demonstration, in constitutional terms, of political certainty with regard to the formation of the government. Were the period for inter-party negotiations to require more than five days then this period of constitutional uncertainty might be extended still further in the future. In the event of the negotiation of a minority government, it is also conceivable that a government might be in office for five weeks or more following an election during which period it would not necessarily be clear whether they commanded the support of the House of Commons. This cannot be regarded as ideal. There is therefore a strong case for holding an ‘investiture vote’ (as for example in the Scottish Parliament) to confirm the identity of the Prime Minister and Government shortly after Parliament reconvenes, perhaps after the Speakers election, rather than waiting for the later date of the conclusion of the Queen’s Speech debates.

5. It has been suggested in some quarters that Prime Minister Gordon Brown’s decision to resign on the evening of 11 May was precipitous because the coalition agreement between the Conservatives and Liberal Democrats had not been finalised. The incumbent Prime Minister had a constitutional obligation to stay in Downing Street until such time as the political position was clear as to who could form a government. There is clearly a difference between the point of political clarity with regard to the identity of the future government and the point of readiness in terms of that government being ready to assume the reins of office in full. Our constitutional system does not provide for a formal period of transition and therefore political clarity takes precedence over subjective perceptions of readiness. When, for example, would the coalition government in-waiting have been deemed ready to take over from the caretaker government: when the inter-party agreement was completed by the negotiating teams; when the agreement had been endorsed by the Liberal Democrat Party via its triple lock mechanism (which had there been any real opposition in the party could have added a week or more to the process); or when, for example, all appointments had been agreed (the new Prime Minister took a week to complete the appointment of his ministerial team)? Any one of these scenarios would have left Gordon Brown in Downing Street for anything between an additional day or a week or more. Politically, if not constitutionally, such a delay would not be deemed appropriate. .

6. It was decided this year that Parliament would reconvene on the 18th May, a week later than the usual timetable adopted after the general election. This implemented a recommendation of the Modernisation Committee in 2007 in order to facilitate improved induction and orientation of new members of the House. The Hansard Society is currently conducting a new study – A Year in

21 the Life – exploring the experience of new MPs in their first 12 months in post, part of which explores their views on the induction programme that was offered. Our interim findings suggest that the induction programme was well received by new members. The extended timetable certainly helped and we would recommend that it be repeated after the next general election with consideration given to extending it by a further week in order to improve it still further. This would also beneficially relieve some of the pressure on inter- party negotiations in the event of an uncertain election outcome.

Salisbury Convention

7. The coalition’s policy commitments reflect a meshing of the two parties’ manifestos with a number of additional measures that did not appear in either of their manifestos. In terms of a popular mandate most members of the public will have had only a broad sense of each party’s policy commitments and few will have read the manifestos prior to marking their ballot paper on election day. In political terms however, the emergence of measures that are not contained in either manifesto may have implications once the legislation reaches Parliament as it is conceivable that members of the House of Lords might not feel bound by the terms of the Salisbury Convention and amend or reject the legislation accordingly. There has long been a legal academic debate about whether the Convention really exists anymore, but this could be put to the test if peers feel that they are on safe political ground in challenging the government on an item of its legislative programme. Whether this constitutional convention unravels will ultimately be a matter of peers’ political judgement – if they sense strong public support for their stance they may feel empowered to face down the government. On contentious issues, particularly of a constitutional nature, they may therefore not feel bound to acquiesce to the will of the Commons if the proposed measures do not carry the authority of having been manifesto commitments. If this occurs, we could face a political and constitutional crisis. Ultimately however, whether it comes to pass will depend on the circumstances of the moment and the application of acute political judgement as to the attitude and reaction of the general public on the issue.

15 October 2010

22

Letter from Mr David Laws MP to the Clerk of the Committee (LPGF 05)

Dear Steven

Re: Evidence session on the Process of Government Formation after 2010 General Election

With regard to the question put to me on a draft confidence and supply agreement, I can confirm that what was offered in this on electoral reform was a free vote in the House of Commons on an AV referendum.

14 October 2010

23

Written evidence submitted by the Institute for Government (LPGF 06)

Introduction In the year and a half prior to the May 2010 general election the Institute for Government considered a number of issues relating to preparations for, processes and consequences of UK general elections and subsequent government formation. This work included the publication of two reports, Transitions: Preparing for Changes of Government and Making Minority Government Work (the latter published jointly with the UCL Constitution Unit) and looked in particular at the implications of an unclear electoral result, or hung parliament. Subsequently, the Institute in general, and the authors of this submission in particular, followed the election and government formation process very closely, and provided comment to numerous media outlets as events were unfolding. In the paragraphs below we set out our responses to six of the specific questions posed by the Political and Constitutional Reform Committee inquiry into the 2010 government formation process. What constitutional and practical lessons are there to be learned from the process of government formation after the 2010 general election? In the six months before the election there was wide agreement on the need for better understanding about the constitutional conventions for an unclear election result by politicians, civil servants, and the media and in the City – as well as the general public. Alongside this were questions about how prepared these groups were. The outcome of the election result itself has reinforced the importance of this understanding and the need for more coherent preparation. The main gain was the public discussion ahead of, and after, the general election about the constitutional conventions surrounding an unclear result. The decision by the Cabinet Office to publish the chapter of a draft Cabinet Manual that dealt with the subject was timely and practically useful. Another precedent set was in managing, and potentially changing, expectations about the time needed for this process to be allowed to take its course. The media, financial markets and politicians saw that government did not fall apart – and, indeed, operated smoothly – over the five days, instead of the usual one day, that it took to form a new administration. The experience of the 2010 election may have made it easier, in future, for there to be a less hurried process of government formation. Were there any departures in practice from the principles of government formation set out in draft before the general election? Were these justified? The events following the 2010 general election were a specific test for the draft Cabinet Manual chapter on government formation. However, it is important to note that the process of government formation did not see departures in practice from the principles set out in the draft. There were, however, evolutions from past practice. One area in which the draft conventions marked a shift was in the role of the Civil Service in facilitating the negotiation process. This was not entirely unprecedented – members of the Civil Service were involved in facilitating negotiations in February 1974. What was new was the move towards formalising this role, as embodied in the

24 permission given by Prime Minister Gordon Brown to the Cabinet Secretary for the Civil Service to support the coalition negotiations between the Opposition parties. This development was part of a wider effort to ensure that the process was more transparent than in the past. In the event, the Civil Service appear to have played a very limited direct role in the coalition negotiations during the immediate post- election period, but did play a considerable role in the process of developing the more detailed second Programme for Government that was drawn up after the coalition took office. Another evolution was in the extension of purdah from Election Day until a new government was formed – affecting new appointments, new contracts and ensuring consultation with Opposition leaders on any major policy issues. More specific definition of the ‘caretaker’ role, of a government remaining in office following an unclear result but before it is clear who was likely to be able to command confidence in the House of Commons, could be seen as a departure from previous practice. The wording and detail of these principles were an extension of the pre-election ‘purdah’ conventions. However, there was one area in which further clarity may be required. Namely, how to determine what constitutes a ‘stable’ government, meaning one to which the caretaker convention would not apply. Attempting to clarify this matter in the draft Cabinet Manual was a sensible step. However, introducing a Scottish-style ‘investiture’ vote (discussed below) might be a more effective way of providing clarity. Was the draft Cabinet Manual chapter on elections and government formation drafted in a satisfactory way, and has the subsequent consultation been adequate? Given the pressures of time in which the draft Cabinet Manual chapter was produced the process was about as good as could have been expected. The Cabinet Office did talk to outside experts and, crucially, the Justice Committee held a hearing and produced a report. Now, with more time available and the ability to reflect upon the Election result itself, there is clearly a role for Parliament in being consulted on the draft of the full Cabinet Manual, though it should remain the property of the Cabinet Office. What impact did media pressure have on the position of the incumbent Prime Minister and coalition negotiators? The impact of media pressure on the position of the incumbent Prime Minister and coalition negotiators was clearly considerable. However, this pressure was markedly less than many had feared in the period before the election – considering the expansion and immediacy of media and 24 hour news compared to 1974, let alone concerns about the potential reactions of financial markets. One reason for this may have been the efforts to educate media and markets, including by the Institute for Government, in the period before the election, as well as the behaviour and messages of politicians in the period after the results began to suggest an unclear result. Education and public discussion of the possibility of the process taking longer does appear to have mitigated its effects. Clearly, however, there are still lessons that can be learnt, particularly in terms of how other countries approach the period following an election result and whether the UK process is rushed in a way that is detrimental to the quality of governance. A particular question of interest is whether the Prime Minister should have gone to the

25 Palace at the time he did. He left at the point when it had become evident that he could not remain in power, and that David Cameron was the only political leader able to form a government that could command confidence in the House of Commons, although it remained uncertain whether that might be through minority government with ‘supply and confidence’ support from other parties or formal coalition. Under existing conventions this course was constitutionally correct; he was able to recommend to the Monarch who his successor should be, and further consideration of the exact form that the government would take was subsequent. However, there is a case to be made that there should be a longer handover period after the election whatever the result. This would ensure that an outgoing PM would wait until not only his/her successor, but also the composition of the new government was known. Thus it is not merely a question of media pressure, but of political and personal pressure which is inherent in a system accustomed to seeing a handover of power within a day of a general election result – something not seen in any other comparable democratic system. Are there more satisfactory models for coalition and government formation in use elsewhere in the world, or in other parts of the United Kingdom? One major difference between government formation in the UK and elsewhere in the western democratic world is the time set aside for this process. The five-day government formation period in May 2010 was long in British terms, but remarkably short compared to many other western democracies. Allowing for a slightly slower pace in future might be sensible, since an overly compressed timetable can lead the parties to put to one side difficult decisions or to agree upon policies without sufficient consideration. Certainly, we would not desire months of negotiations as in the Netherlands or Belgium, but two weeks or so, as is common in Scotland, Canada and New Zealand, might strike a sensible balance between the two extreme positions. In some systems, including Scotland and Wales, there is also a statutory time limit for the government formation process, or at least for the election of a First Minister (28 days in both cases). Given that the Government proposes (in its Fixed Term Parliaments Bill) to place in statute a 28-day limit for government formation in the event that a no confidence motion is passed during the lifetime of a Parliament, it would be worth considering whether a similar provision at the beginning of a Parliament would also be desirable. In the devolved systems, and also in some European legislatures including Germany, heads of government (and sometimes other Cabinet ministers too) formally take office only after having been nominated by means of an ‘investiture’ motion in the legislature. In the final section of our submission we set out reasons why introducing a similar mechanism at Westminster might be beneficial. Finally, in other countries such as New Zealand and Canada, an outgoing Prime Minister is expected to remain in office (in a caretaker capacity) until the new government is fully ready to assume power, even after it is apparent that there will be a change of power. Thus in 2008, the outgoing New Zealand PM Helen Clark remained in office for 11 days after the election while the victorious National Party negotiated ‘confidence and supply’ agreements with smaller parties. Establishing such a convention in the UK (perhaps through the Cabinet Manual) could provide for a clearer transfer of power from one fully-formed government to another, and avoid

26 excessive haste in concluding negotiations.25 Should the head of government or Cabinet require the endorsement of the House of Commons, by way of an investiture vote? In Making Minority Government Work, the Institute for Government (in partnership with the UCL Constitution Unit) concluded that there were arguments in favour of holding an investiture vote following a general election. This change could be made without undermining the personal prerogative powers of the Crown, as it could be on a motion that simply made a recommendation to the monarch as to whom to appoint as PM (as is the case in the Scottish Parliament). First, a formal vote among MPs on who should be invited to form the new government would be more comprehensible to the general public than the current mechanism for testing the confidence of a new government – the vote traditionally held during or at the end of the Queen’s Speech debate. Second, an investiture vote would make explicit the fact that governments in the UK are made and broken on the basis of their ability to secure the confidence of the House of Commons. This public education function could become particularly important in the event that the leader of the second largest party emerged as the person best able to form a government, when questions of legitimacy may come to the fore in public debate. Third, if it were unclear whether or not a prospective PM enjoyed the confidence of parliament an investiture vote would clear up the uncertainty relatively quickly. If the answer was in the negative, then an alternative government could be formed at that stage, rather than waiting for the Queen’s Speech vote which may be some weeks later. The case of 1923-24 springs to mind, when six weeks elapsed between the election and the defeat of Prime Minister Stanley Baldwin in a confidence vote. Fourth, if an election result were very close, such that more than one party leader had plausible aspirations to form a government, debate on the investiture motion would offer an opportunity for the competing leaders to state their cases, and for parties or Members holding the balance of power to explain their reasons for backing a particular candidate. This would help to assuage fears that government formation following an inconclusive election takes place largely behind closed doors and away from public scrutiny. Fifth, putting government formation so transparently in the hands of the House of Commons would reduce the chances of the monarch being drawn into the political process of determining who is best placed to form a government.

Peter Riddell, Akash Paun and Catherine Haddon

14 October 2010

25 Had such a convention been in place in May 2010, Gordon Brown would have been expected to delay his resignation until the coalition agreement between Conservatives and Liberal Democrats had been finalised, rather than resigning as soon as it became apparent that David Cameron would lead the new government one way or the other.

27

Written evidence submitted by Professor Robert Hazell and Dr Ben Yong, Constitution Unit, University College London (LPGF 07)

1. Summary of key points The process of government formation after the 2010 election was very successful. This was mostly thanks to the careful preparation of the civil service. The system of government was not brought into disrepute, and the key actors all understood their roles. In particular:

1.1 What was successful • The Cabinet Office chapter on Elections and Government Formation was useful to those involved in the process, and to the media in explaining it. • The Monarch remained above the fray. Before the election there were concerns that the Monarch might make political decisions were a hung parliament to result, but this did not happen.26 • The new caretaker convention was observed. • The civil service had prepared carefully for a hung parliament, and were able to provide guidance to the parties about the government formation process, and to support their negotiations.27

1.2 What could be improved • Informing the public and media of the basic principles of the government formation process following a hung parliament. • Clarifying the extent of the caretaker convention. • Clarifying the duty of the incumbent Prime Minister to remain in office until the new government is formed. • Allowing more time for the parties to negotiate. • Holding an investiture vote to help the public understand that it is Parliament which selects the new government • Removing from the Prime Minister the power to determine the date for the first meeting of the new Parliament.

2. Lessons to be learned from the process of government formation in 2010 Overall, the process of government formation following the 2010 general election was successful—‘successful’ in the sense that the actors all understood their roles and did not bring the government formation process into disrepute; and that it led to a

26 Robert Hazell and Akash Paun (eds) Making Minority Government Work: Hung Parliaments and the Challenges for Westminster and Whitehall (Constitution Unit and Institute for Government, London, 2009) http://www.ucl.ac.uk/constitution-unit/files/research/in-the- round/IFG_making%20minority%20government_final%20proof%2020%20nov%2009.pdf; “How to stop the Queen picking the next PM” The Times (25 November 2009) at: http://www.timesonline.co.uk/tol/comment/columnists/daniel_finkelstein/article6930463.ece. 27 “Conservatives and Lib Dems get first experience of full civil service support” The Guardian (9 May 2010) at: http://www.guardian.co.uk/politics/2010/may/09/gus-odonnell-civil-service-chinese-wall

28 relatively stable government.28 This was mostly due to the careful preparation of the civil service and the good sense and civility of the political parties.

3. Departures from principles of government formation set out before the election The key actors all followed the draft Cabinet Manual guidance. The departures were rather from the practices of previous elections. These included:

• The extension of the guidelines on the restriction of government activity during the election into the post-election period • Greater specificity about the kinds of decisions which are subject to restrictions • The provision of civil service advice to the political parties during the process of government formation following a hung parliament • A clearer articulation of the constitutional conventions concerning elections and government formation.

These departures from previous practice were all needed, and in the event were justified in order to ensure a smooth and orderly process of government formation.

4. The draft Cabinet Manual chapter on elections and government formation The Cabinet Secretary Sir Gus O’Donnell initiated the Cabinet Manual project as part of preparations for the possibility of a hung parliament, with the authorisation of the then PM Gordon Brown.29 The draft elections chapter is but one chapter of a much larger Cabinet Manual which will cover:

• Elections and Government Formation • The Sovereign and the Privy Council • The Prime Minister and Ministers • Collective Cabinet decision making • Ministers and Parliament • Ministers and the Law • Ministers and the Civil Service • Relations with Devolved Administrations and Local Government • Relations with the EU and international institutions • Official Information • Government Finance and Expenditure.

The draft elections chapter covered:

28 “Tory-Lib Dem coalition: The Queen, Britain's top civil servant and Germany's chancellor sigh with relief” The Guardian (12 May 2010) at: http://www.guardian.co.uk/politics/wintour-and-watt/2010/may/12/david-cameron-nick-clegg 29 “Towards a new politics”, Speech by the Prime Minister to the IPPR (2 February 2010) Available from: http://www.totalpolitics.com/speeches/speech.php?id=422. The Cabinet Manual project may have also been inspired by recommendations made in Hazell and Paun (eds) Making Minority Government Work. See also Robert Hazell and Peter Riddell “Opening the Door to the Secret Garden—A Plea for Revised Public Guidance on How Governments Are Formed and Operate”, reproduced in an appendix to the report of the Justice Committee Constitutional Processes Following a General Election (HC 396, 2010) at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/396/396.pdf

29

• The mechanics of holding a general election in the UK • The mechanics of proroguing, dissolving and summoning Parliament • The principles and processes of government formation

The guidelines on government formation had three objectives. First, they make clear that if a general election has an uncertain result, the previous government remains in office until a new government can be formed. Second, they aim to guide the key actors and provide the framework in which they can form an effective and stable government. Finally, the guidelines make clear that government formation is a political matter, the province of the political parties, with the Monarch in the background.

The draft chapter was made public before the Justice Committee on 24 February 2010.30 A number of concerns were raised at the Justice Committee, including restrictions on government activity during the pre- and post-election period (the caretaker convention); the principles and proper procedures for government formation; dissolution; and the role of the incumbent Prime Minister. On March 29, the Justice Committee published its report Constitutional Processes Following a General Election.31 The report set out a number of proposed recommendations, many of which related to restrictions on government activity during the election and government formation period.

On the whole, these recommendations were fairly straightforward, and should have been incorporated into the draft. But the Brown Government did not respond to the Justice Committee’s report; and a new, updated version of the elections chapter, or the Cabinet Manual as a whole has still to be published. We set out below a number of suggestions which would improve the draft elections chapter. We have two sets of suggestions, one relating to process, the other to substance.

4.1 Process 4.1.1 Legitimacy and legitimation The New Zealand Cabinet Manual, from which the UK Cabinet Manual draws its inspiration, has gained its legitimacy over many years. It commands considerable respect, and is regularly updated. The NZ Prime Minister says in the most recent Foreword that:

[The Cabinet Manual] is a primary source of information on New Zealand’s constitutional arrangements, as seen through the lens of the executive branch of government … The Cabinet Manual does not effect change, but rather records incremental changes in the administrative and constitutional arrangements of executive government.

The NZ Manual is now in its fifth edition, and has changed significantly over the years, from a guide primarily for officials (originally named the Cabinet Office

30 The draft election chapter can be found here: http://www.cabinetoffice.gov.uk/media/343763/election-rules-chapter6-draft.pdf. 31 Justice Committee Constitutional Processes Following a General Election (HC 396, 2010) at: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/396/396.pdf.

30 Manual), to a guide primarily for Ministers, and the outside world. It retains its status as an authoritative guide. Each new edition is subject to extensive consultation within government (of ministers and officials), but is not put out to external consultation, save to officials such as the Clerk of the Parliament and the Ombudsman. The UK Cabinet Manual faces the challenge of trying to achieve the same degree of legitimacy and authority in its first edition that the NZ Manual has acquired over many years. It also faces the dilemma of whether it merely summarises existing conventions or tries to improve upon them. We believe that in certain respects it should improve upon them (eg, the caretaker convention). But we recognise that this requires a wider process of consultation than has happened in New Zealand. This process of external consultation can include constitutional experts, to check that the Manual accurately describes the existing constitutional conventions; and parliamentary committees, to check that the Manual commands cross-party support.

But Parliament has no veto, and (as in all parliamentary scrutiny) can only propose changes, not require them. The Cabinet Manual remains a document of the executive, and its authority derives from the fact that it is approved by the Prime Minister and Cabinet as a guide to how they will conduct the business of the executive. As with the Ministerial Code, the Cabinet Manual will need to be submitted and approved by each new government; and each new government will be free to make its own changes.

4.1.2 Informing the media and the public The Cabinet Office provided an important public service in publishing the draft chapter on elections and government formation prior to the election. Their objective was to provide guidance to the political parties and the media about the process of government formation; and to reassure the public and the markets that the process would be orderly and reasonably swift. There were three key messages to get across:

• The incumbent government remains in office as a caretaker government until a new government is formed • The test of who should lead the new government is who can command the confidence of the House of Commons • The political parties have to work out who can command confidence, with the Monarch playing a very limited role.

In general the media did well in the way they reported the election outcome. None of the media declared that the Conservatives had ‘won’ simply by being the largest single party. And none suggested that it was up to the Queen to decide. But the Sun and the Mail unfairly attacked Gordon Brown for ‘squatting’ in No 10,32 when constitutionally it was his duty to remain in office. And Nick Clegg may have misled people into thinking that he was asserting constitutional doctrine when he said

whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to seek to govern, either on its own

32 “Squatter, 59, holed up in No 10” The Sun (8 May 2010) at: http://www.thesun.co.uk/sol/homepage/news/election2010/2964713/Gordon-Brown-squatting-in-No- 10.html; and “From green-eyed Chancellor to the 'squatter of No10', Gordon Brown finally admits he can't hang on to job he coveted for so long” Daily Mail (10 May 2010) at: http://www.dailymail.co.uk/news/election/article-1272278/From-green-eyed-Chancellor-squatter- No10-Gordon-Brown-finally-admits-hang-job-coveted-long.html.

31 or by reaching out to other parties.33 In reality Clegg was laying out the Liberal Democrats’ negotiating position, which he was perfectly entitled to do. The constitutional doctrine remains that stated in the Cabinet Manual, that

It is for the Monarch to invite the person whom it appears is most likely to be able to command the confidence of the House of Commons to serve as Prime Minister and to form a government. 34

That person is likely to be the leader of the largest single party, but not necessarily so. It could be the leader of the second largest party: as it was in January 1924, and as it might have been in 2010 if the Liberal Democrats had reached an agreement with the Labour party instead of the Conservatives.

A final point raised by Nick Clegg’s statement is whether any party has the ‘first right’ to seek to govern. Strictly only one person has the ‘first right’, and that is the incumbent Prime Minister. As the draft Cabinet Manual puts it

An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence.35

33 “Nick Clegg’s statement on the results of the election” Liberal Democrats Website (7 May 2010) at: http://www.libdems.org.uk/ncorguk_news_details.aspx?title=Nick_Clegg%27s_statement_on_the_resu lts_of_the_election&pPK=910a0064-f1e8-430c-afb6-49ccc4fd32e0. 34 “Chapter 6: Elections and Government formation (DRAFT)” at: http://www.cabinetoffice.gov.uk/media/343763/election-rules-chapter6-draft.pdf The principles of Government formation 14. Governments hold office by virtue of their ability to command the confidence of the House and hold office until they resign. A Government or Prime Minister who cannot command the confidence of the House of Commons is required by constitutional convention to resign or, where it is appropriate to do so instead, may seek a dissolution of Parliament. When a Government or Prime Minister resigns it is for the Monarch to invite the person whom it appears is most likely to be able to command the confidence of the House of Commons to serve as Prime Minister and to form a government. However it is the responsibility of those involved in the political process – and in particular the parties represented in Parliament – to seek to determine and communicate clearly who that person should be. […] “Hung” Parliaments 16. Where an election does not result in a clear majority for a single party, the incumbent Government remains in office unless and until the Prime Minister tenders his and the Government’s resignation to the Monarch. An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence. If a Government is defeated on a motion of confidence in the House of Commons, a Prime Minister is expected to tender the Government’s resignation immediately. […] 17. If the Prime Minister and Government resign at any stage, the principles in paragraph 14 apply – in particular that the person who appears to be most likely to command the confidence of the House of Commons will be asked by the Monarch to form a government. Where a range of different administrations could potentially be formed, the expectation is that discussions will take place between political parties on who should form the next Government. […] 35 Para 16.

32 The last Prime Minister to exercise his right to meet the new Parliament and be defeated was Baldwin in 1924. Similarly in 2010 Gordon Brown had the right to meet the new Parliament. But the right is heavily tempered by the political realities. It did not confer on Brown any significant political advantage. It did not give him the right to initiate talks with other parties: when the Liberal Democrats started talking to the Conservatives he was left on the sidelines. And although he had the right to meet the new Parliament, it would have been disastrous for him and the Labour party if he had insisted on doing so. He chose instead to resign as soon as it became clear that he could not command confidence.

4.2 Substantive 4.2.1 The role of the incumbent Prime Minister In accordance with the draft Cabinet Manual and established constitutional practice, Gordon Brown remained in Number 10 after the general election, once it became clear that no party had an overall majority. We must always have a government. As the doctrine was expressed in former times, ‘the Queen’s business must be carried on’, and ‘the Queen must never be without responsible advisers’.

The departure of Gordon Brown from Number 10 on the evening of May 11 was arguably premature, because at that stage it was not clear what form the new government would take. 36 True enough, Brown was able to advise the Monarch that there was an alternative Prime Minister who might command the confidence of the Commons. But David Cameron has noted that when he went to see the Queen, he was not yet clear what the form of the government should be; and a formal deal between the Conservatives and the Liberal Democrats had not been finalised.37

To clarify that it is not merely the right, but the duty of the incumbent government to remain in office, the Cabinet Manual could perhaps say:

The incumbent Prime Minister should not resign until it is clear that someone else is better placed to command the confidence of the House of Commons.

If it was felt desirable to have complete clarity about the new government before the incumbent PM resigns, the guidance could add ‘and the form of the alternative government has also become clear’.

4.2.2 Time for negotiation and government formation German observers were horrified at the time taken to form the new UK government. By European standards it was indecently, recklessly short. But even by the standards of other Westminster countries it was rushed. Australia, Canada and New Zealand have typically allowed at least 10 days for the formation of a new government after an election. It took 17 days before Julia Gillard formed her new minority government after Australia’s September 2010 election.38 But New Zealand provides an example

36 “Gordon Brown, Nick Clegg and the scramble for power” The Guardian (19 September 2010) at: http://www.guardian.co.uk/politics/2010/sep/19/gordon-brown-andrew-rawnsley 37 “Cameron 'unsure of government's form' as he met Queen” BBC News Website (29 July 2010) at: http://www.bbc.co.uk/news/uk-politics-10794180. 38 “Shock of election outcome felt across the world” The Australian (23 August 2010) at: http://www.theaustralian.com.au/business/media/shock-of-election-outcome-felt-around-the- world/story-e6frg996-1225908598772

33 closer to the UK’s 2010 experience. After their 2008 election the major party in the incumbent government, Labour, won only 43 out of 122 seats, while the National Party won 58 seats – just short of a majority. The incumbent Prime Minister, Helen Clark, conceded on election night, as well as resigning as Labour leader. However, the leader of the National Party, John Key, remained ‘Prime Minister elect’ until formally sworn in; and it was to take him 11 days before formally forming a government. In the meantime, Clark acted as caretaker PM.39

It may seem strange in the UK for the ‘Prime Minister elect’ to form his new government from outside Downing Street, but there are strong arguments for allowing more time for a more orderly and reflective process of government formation.40 The UK may gradually develop new norms in terms of what politicians, the media and the public expect about the timescale after an election. The old norm was for a new government to be announced within 24 hours. The new norm from 2010 is that it takes at least five days if there is an uncertain result. The hope must be that this norm might gradually increase, to allow greater time and space for the political parties to negotiate with each other. They need to discuss and think through substantive policies, their cost, timing and feasibility; areas of compromise; portfolio allocation; to allow for possible negotiations with different parties; and to ratify any decision made in accordance with their respective party constitutions. Stable government is not best served by having all of these matters compressed into an unreasonably short time frame.

4.2.3 The caretaker convention The guidelines concerning restrictions on government action during the election period were revised and adapted in preparation for the 2010 election. In particular, the restrictions on government activity were extended into the period follow an inconclusive election outcome (see para 20 of the draft elections chapter of the Cabinet Manual). These guidelines are becoming known as ‘the caretaker

“Horse-trading begins as Australia votes for a hung parliament” The Guardian (22 August 2010) at: http://www.guardian.co.uk/world/2010/aug/22/australia-election-horse-trading “$10bn for regions a fair share: Gillard” The Australian (September 7 2010) at: http://www.theaustralian.com.au/national-affairs/bn-for-regions-a-fair-share-gillard/story-fn59niix- 1225915461509 39 “Clark concedes NZ election to Key” New Zealand Herald (8 November 2008) at: http://www.nzherald.co.nz/nz-election-2008/news/article.cfm?c_id=1501799&objectid=10541856; “John Key announces he has numbers to govern” New Zealand Herald (16 November 2008) at: http://www.nzherald.co.nz/nz-election-2008/news/article.cfm?c_id=1501799&objectid=10543317; “Tearful goodbye turns to smiles for new leader” New Zealand Herald (20 November 2008) http://www.nzherald.co.nz/nz-election-2008/news/article.cfm?c_id=1501799&objectid=10544031. It is also worth noting that the NZ Cabinet Manual provides for the situation where there is a clear electoral outcome, and in particular the role of the incumbent (but perhaps unsuccessful) government. See NZ Cabinet Manual, para 6.24, which reads: Where it is clear which party or parties will form the next government but Ministers have not yet been sworn in, the outgoing government should: a. undertake no new policy initiatives; and b. act on the advice of the incoming government on any matter of such constitutional, economic or other significance that it cannot be delayed until the new government formally takes office - even if the outgoing government disagrees with the course of action proposed. http://cabinetmanual.cabinetoffice.govt.nz/node/35#6.24 40 P Riddell and C Haddon Transitions: Preparing for Changes of Government. Institute for Government, 2009.

34 convention’.

It appears that the caretaker convention was followed by the incumbent Labour Government during the period of government formation. For instance, Alistair Darling apparently consulted with Vince Cable and George Osborne on 8 May over an extraordinary meeting of European finance ministers in Brussels for a €60 billion "European stabilisation mechanism".41

Traditionally, the restrictions on government activity during elections have been known as ‘purdah’, and have applied mainly to government announcements. The rationale was that the party in government should not use the government’s publicity machine for electoral advantage. We believe that this rationale is too narrow; that the restrictions should apply to more than just government announcements; and that they should apply in a wider set of circumstances than just during elections.

First, the rationale. The underlying principle is that during and immediately after the election the incumbent government remains in office, with all the lawful authority of a government to take executive action. But until it can demonstrate that it can command the confidence of the new House of Commons it has lost the political authority to govern. So it must not take any action which binds the hands of a future government which can command confidence.

Once that is understood as the rationale, it follows that a caretaker government should not • Make any new policy which binds a future government, or new expenditure commitments (other than of a routine kind) • Make public appointments which bind a future government • Enter significant government contracts • As well as being cautious in terms of public announcements.

And once it is understood that any government which can no longer demonstrate that it has the confidence of the House of Commons has lost its political authority to govern, it follows that the caretaker convention applies in three possible contexts:

• During a general election, because Parliament has been dissolved, and there may be a change of government • After a general election, until a new government has been formed which commands the confidence of the new House of Commons • Mid term, if the government is defeated on a confidence motion.

The draft Cabinet Manual needs to recognise that the caretaker convention applies in this third context as well. It is pertinent because of the government’s proposals for fixed term parliaments, which specifically provide for a situation where the government has lost the confidence of the Commons and no alternative government can be immediately found. The bill provides for a period of up to 14 days in which the search for an alternative government can take place. As we noted in our report on Fixed Term Parliaments:

41 http://www.telegraph.co.uk/finance/financetopics/financialcrisis/7697471/Alistair-Darling-trapped- in-euro-deal.html

35

If a no confidence motion is passed, the government remains in office until a new government can be formed in which the House has confidence. It cannot immediately resign, because there must always be a government. But once it has lost confidence the government should be subject to the caretaker convention….42

The clearer justification we have advanced for the caretaker convention, and wider set of circumstances in which it applies, is how it essentially operates in Australia and New Zealand. In New Zealand, the caretaker convention operates whenever there is a loss of confidence.43 Any Prime Minister who no longer has the confidence of the House has lost the political authority to govern. He or she remains in office as a caretaker Prime Minister, and must consult with the other political parties before making any significant decisions which might tie the hands of a future government.

4.2.4 An investiture vote to determine who commands confidence In Scotland the first substantive business of a new Parliament is to hold an election to nominate the First Minister, who is then appointed by the Queen. It has been suggested that an investiture vote might be introduced at Westminster, as a more direct way of demonstrating who commands confidence in the new Parliament.44 It would be easier for the public to understand as a test of confidence than the traditional debate on the Queen’s Speech. It would make it clear that in a parliamentary system of government electing a government is a two stage process, in which the public first elect a parliament, and the parliament then selects the government. An investiture vote would perform a public educative function, demystifying and legitimising the outcome of the government formation process.

The main difficulty for proponents of an investiture vote is to show how it might work in terms of timing. In the Appendix we set out a chronology of the election and government formation process in 2010. David Cameron was appointed Prime Minister on the evening of 11 May, and the first meeting of Parliament was on 18 May. If Parliament is first to hold an election to nominate the Prime Minister before he or she can be appointed by the Queen, Parliament would have to meet earlier, or the new Prime Minister must be formally appointed a week or so later.

This would be feasible if the UK adopted the same practice as happens in Australia, Canada and New Zealand, where there is an interval of about 10 days between the election and the swearing in of the new government. But it would be a big change in terms of the traditional practice at Westminster. The process of government formation would take place away from Downing Street, and new ministers would not fully engage with their new departments until about a week later than usual. There are

42 Robert Hazell Fixed-Term Parliaments (Constitution Unit, London, 2010), pp28-29. This report was reproduced in the Political and Constitutional Reform Committee report Fixed-Term Parliaments Bill (HC 436, 2010) at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpolcon/436/436.pdf. 43 NZ Cabinet Manual, 6.20 and 6.58, at: http://cabinetmanual.cabinetoffice.govt.nz/6.16 and http://cabinetmanual.cabinetoffice.govt.nz/6.56. 44 Robert Hazell and Akash Paun (eds) Making Minority Government Work: Hung Parliaments and the Challenges for Westminster and Whitehall (Constitution Unit and Institute for Government, London, 2009) p 82.

36 strong arguments for a more orderly and more deliberative process for the appointment and induction of new ministers; but traditional expectations are strong, and the government in waiting may prove impatient to get their hands directly on the levers of power.45

4.2.5 The summoning of a new Parliament The proclamation to summon a new Parliament also specifies the date on which the new Parliament will meet. The appointed day is chosen on the advice of the Prime Minister. Recent custom had been for Parliament to meet on the Wednesday following the election.46 In the 2010 election, Number 10 indicated that Parliament would first meet on 18 May, 12 days after the election.47 This followed a recommendation of the Commons Modernisation Committee that the interval between polling day and the first meeting of Parliament should be 12 days to allow more time for the induction of new MPs.48 But Gordon Brown was criticised because he was seen by some Conservatives as allowing himself more time in which to negotiate to continue in government.49

The decision to have a longer 12 day period between polling day and the first meeting of Parliament was sensible, and proved successful. It allowed for the possibility of a protracted period of government formation, which was entirely appropriate given concerns about a hung parliament. It also gave the incoming MPs and ministers more time for induction and adaptation to working in Parliament and in government.50

There is a wider issue, which is who should decide on the return date for Parliament: the outgoing government, or Parliament itself? Historically it has been the government, because the power to dissolve and summon Parliament is a prerogative power, exercised on the advice of the Prime Minister. But the Fixed Term Parliaments Bill abolishes the prerogative power to dissolve Parliament, on the ground that it confers too much discretionary power on the Prime Minister. In future only Parliament should have discretion to dissolve itself. Following the same logic, the power to appoint a date for the first meeting of the new Parliament should be determined by Parliament, with the Speaker of the outgoing Parliament setting a date for the return of the new one.

5. Conclusions We end with some suggestions for the new Cabinet Manual:

45 Peter Riddell and Catherine Haddon, Transitions: Preparing for Changes of Government. Institute for Government, 2009; p 32. 46 “Election timetables” House of Commons Library at: http://www.parliament.uk/documents/commons/lib/research/rp2009/rp09-044.pdf 47“General Election to take place on 6 May” Number 10 Website (6 April 2010) at: http://webarchive.nationalarchives.gov.uk/+/number10.gov.uk/news/press-notices/2010/04/general- election-to-take-place-on-6-may-2-23093 48 Draft elections chapter, para 9, fn1. 49 “Conservative anger at rules that may let Labour cling to power after election” The Guardian (4 May 2010) at: http://www.guardian.co.uk/politics/2010/may/03/conservative-anger-rules-labour-cling-power and “General election 2010: What if we can't make our minds up?” The Telegraph (4 May 2010) at: http://www.telegraph.co.uk/news/election-2010/7678833/General-election-2010-What-if-we-cant- make-our-minds-up.html 50 http://www.publications.parliament.uk/pa/cm200607/cmselect/cmmodern/337/337.pdf, paras 37-39.

37

• Include the recommendations from the March 2010 report of the Justice Committee • Clarify that it is the duty of the incumbent Prime Minister to remain in office until a new government is formed (or the existing government is confirmed in office) • Specify that the caretaker convention includes restrictions on new policy, public appointments and government contracts, as examples of the general need to exercise ‘discretion’ • Extend the caretaker convention to any period when the government does not command the confidence of Parliament: including post election, before a new government is formed; and mid term, if the government is defeated on an issue of confidence • Remove from the Prime Minister the power to determine the first meeting of the new Parliament.

This last could be effected by an amendment to the Fixed Term Parliaments Bill, which retains the existing procedure for the proclamation summoning the new Parliament. Other issues which the committee might like to consider are:

• How to inform the public about the basic principles of government formation, without going into the inevitable complexities and subtelties of the Cabinet Manual • Whether, as part of the process of public education, there should be an investiture vote to determine who can command the confidence of the new House of Commons, before the debate on the Queen’s Speech.

38 Appendix: The 2010 Election Timeline

Proximity Date Constitutional Event to polling day -71 Wed 24 Justice Committee hearing on Constitution Processes Feb following a General Election.51 Draft elections chapter published.52 -52 Mon 15 Gordon Brown declares that he will not resign as Labour March leader if there is a hung parliament.53 -37 Mon 29 Justice Committee publishes Constitutional Processes March following a General Election.54 -30 Tues 6 Brown announces election to be held 6 May; Parliament to April meet again on 18 May.55 -28 Thur 8 Prorogation of Parliament.56 April -24 Mon 12 Dissolution of Parliament.57 April 0 Thurs 6 Polling day. May Buckingham Palace indicates to senior civil servants that in event of a close result, the Queen will only consider seeing the politician who is likely to form the next government after 1pm, rather than the traditional morning meeting when there is an outright winner, thus imposing a ‘cooling off period.’58 1 Fri 7 BBC News declares a hung parliament.59

51“Sir Gus O'Donnell gives evidence on elections” Cabinet Office website (24 February 2010) http://webarchive.nationalarchives.gov.uk/20100403220440/http://cabinetoffice.gov.uk/newsroom/news_stories/ 100224-election.aspx. 52 “Chapter 6: Elections and Government formation (DRAFT)” Cabinet Office website (23 February 2010) http://www.cabinetoffice.gov.uk/media/343763/election-rules-chapter6-draft.pdf. 53 “Gordon Brown is set to stay at the helm even if the Labour Party sinks” The Times (15 March 2010) http://www.timesonline.co.uk/tol/news/politics/election_2010/article7061761.ece. “PM: 'I Won't Quit Over Hung Election'” Sky News Online (March 15 2010) http://news.sky.com/skynews/Home/Politics/Gordon-Brown-Says-He-Will-Not-Resign-If-Labour-Does-Not- Win-A-Majority-In-The-General- Election/Article/201003315574004?lpos=Politics_News_Your_Way_Region_8&lid=NewsYourWay_ARTICL E_15574004_Gordon_Brown_Says_He_Will_Not_Resign_If_Labour_Does_Not_Win_A_Majority_In_The_Ge neral_Election. 54 “Constitutional processes following a general election” House of Commons Justice Committee website http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/396/396.pdf. 55 “Gordon Brown announces election date” BBC News (6 April 2010) http://news.bbc.co.uk/1/hi/uk_politics/8604770.stm. “General Election to take place on 6 May” Number 10 website (6 April 2010) http://webarchive.nationalarchives.gov.uk/+/number10.gov.uk/news/press-notices/2010/04/general-election-to- take-place-on-6-may-2-23093. 56 http://www.parliament.uk/about/how/elections-and-voting/general/election-timetable2010/. 57 “Dissolution of Parliament: 12 April 2010” Parliament.uk (12 April 2010) http://www.parliament.uk/business/news/2010/04/dissolution-of-parliament-12-april-2010/. 58 “Queen’s ‘cooling off’ period for the winner” The Telegraph (6 May 2010) http://www.telegraph.co.uk/news/election-2010/7684132/General-Election-2010-Queens-cooling-off-period- for-the-winner.html. 59 “UK set for hung Parliament with Tories largest party” BBC News (7 May 2010) http://news.bbc.co.uk/1/hi/8666128.stm.

39 May Brown signals he will remain as Prime Minister and extends civil service support to all parties in negotiations.60 Nick Clegg asserts that the Conservatives have the first right to try to form a government.61 2 Sat 8 Conservative and Liberal Democrat negotiating teams meet May in the Cabinet Office, facilitated by civil servants.62 Alastair Darling appears to act in accordance with the caretaker convention when representing Britain at a meeting of European finance ministers in Brussels. Apparently consults with opposition counterparts in the Conservatives and Liberal Democrats before the meeting.63 4 Sun 10 Brown resigns as Labour leader, but remains as acting Prime May Minister. Labour and Liberal Democrat negotiating teams meet.64 5 Mon 11 Brown resigns as Prime Minister. The Queen appoints David May Cameron as Prime Minister.65 Cameron announces he intends to create a full coalition with the Liberal Democrats. Liberal Democrat parliamentary party and Federal Executive meet and approve coalition participation by the requisite majority.66 6 Tues 12 Coalition negotiation agreement published, setting out broad May policy direction of Coalition.67

60 “Statement by the Prime Minister” Number 10 Website (7 May 2010) http://webarchive.nationalarchives.gov.uk/20100511083257/http://www.number10.gov.uk/news/latest- news/2010/05/statement-by-the-prime-minister-34077; and “Full text: hung Parliament - the party leaders' statements” Times Online (7 May 2010) http://www.timesonline.co.uk/tol/news/politics/article7119793.ece 61 “Nick Clegg's statement on the results of the election”, Liberal Democrats Website (7 May 2010) http://www.libdems.org.uk/ncorguk_news_details.aspx?title=Nick_Clegg%27s_statement_on_the_results_of_th e_election&pPK=910a0064-f1e8-430c-afb6-49ccc4fd32e0 62 “Tories and Lib Dems positive after talks” BBC News Website (9 May 2010) http://news.bbc.co.uk/1/hi/8670559.stm. “Conservatives and Lib Dems get first experience of full civil service support” The Guardian (9 May 2010) http://www.guardian.co.uk/politics/2010/may/09/gus-odonnell-civil-service-chinese-wall 63 “Alistair Darling trapped in euro deal” The Telegraph (8 May 2010) http://www.telegraph.co.uk/finance/financetopics/financialcrisis/7697471/Alistair-Darling-trapped-in-euro- deal.html. 64 “Gordon Brown 'stepping down as Labour leader'” BBC News (10 May 2010) http://news.bbc.co.uk/1/hi/8672859.stm. “Gordon Brown to quit in bid to woo Lib Dems” The Independent (10 May 2010) http://www.independent.co.uk/news/uk/politics/gordon-brown-to-resign-as-labour-leader-1970273.html. 65 http://news.bbc.co.uk/1/hi/uk_politics/election_2010/8675913.stm. 66 “Gordon Brown resigns as UK prime minister” BBC News (11 May 2010) http://news.bbc.co.uk/1/hi/uk_politics/election_2010/8675913.stm. “David Cameron is UK's new prime minister” BBC News (12 May 2010) http://news.bbc.co.uk/1/hi/8675265.stm. 67 “Coalition Agreement published“ The3 Conservative Party website (12 May 2010) http://www.conservatives.com/News/News_stories/2010/05/Coalition_Agreement_published.aspx.

40 Clegg appointed Deputy Prime Minister; four other Liberal Democrats granted cabinet seats.68 12 Tues 18 First meeting of the new Parliament.69 May 14 Thur 20 Coalition’s Programme for Government published, outlining May substantive Coalition policies.70 15 Fri 21 Coalition Agreement for Stability and Reform published, May setting out the Coalition’s inner organisation.71 Ministerial Code published.72 19 Tue 25 The State Opening of Parliament and the Queen’s speech.73 May

21 October 2010

68 “Nick Clegg appointed Deputy Prime Minister” Number 10 Website (12 May 2010) http://www.number10.gov.uk/news/latest-news/2010/05/appointment-of-nick-clegg-as-deputy-prime-minister- 49926. 69 “Cameron hails 'new start' for politics as MPs return” BBC News (18 May 2010) http://news.bbc.co.uk/1/hi/8688832.stm. http://webarchive.nationalarchives.gov.uk/+/number10.gov.uk/news/press-notices/2010/04/general-election-to- take-place-on-6-may-2-23093 70 “The Coalition: our programme for government” Number 10 Website (20 May 2010) http://www.number10.gov.uk/news/latest-news/2010/05/the-coalition-our-programme-for-government-2-50350. 71 “Coalition Agreement for Stability and Reform” Cabinet Office Website (21 May 2010) http://www.cabinetoffice.gov.uk/media/409174/stabilityreformmay2010.pdf. 72 “Government unveils new transparency and accountability structures” Cabinet Office Website (21 May 2010) http://www.cabinetoffice.gov.uk/newsroom/news_releases/2010/100521-ministerial-code.aspx. 73 “Queen’s Speech 2010” Number 10 website (25 May 2010) http://www.number10.gov.uk/news/latest-news/2010/05/queens-speech-2010-3-50297.

41

Letter from the Cabinet Secretary to the Committee Chair (LPGF 08)

In advance of appearing before the Political and Constitutional Reform Committee to give evidence in relation to the inquiry into the process of government formation following the 2010 election, I thought it would be helpful if I wrote to you on progress on the Cabinet Manual and views on the Justice Committee’s recommendations on the draft chapter on elections and government formation.

I am of the view that the process of forming the first coalition government for over half a century was very successful. The report from the Justice Committee in March 2010 said that it “welcomed the evidence of significant thought and effort being put into preparations for the full range of Parliamentary election outcomes by the Government, and in particular by the Cabinet Secretary” and it was widely recognised that the civil service needed to be ready to support the government from day one – I believe the civil service achieved those aims. As had been set out in the draft chapter on elections and government formation, the civil service was also able to offer support to all political parties during the negotiations, helping to ensure a swift and smooth transition after the election.

Since publication of the draft chapter on elections and government formation, the Cabinet Office has been continuing work on the Cabinet Manual. I indicated in July, when I wrote to the Justice Committee, that I hoped to publish a draft later this year. Following discussions with Ministers, there is Government support for a Cabinet Manual. It is, however, important that careful thought is given to how best to reflect the experiences of government formation in 2010 and the impact that the Government programme of constitutional reforms will have on existing conventions, for example, the Fixed-term Parliaments Bill, which is currently being considered by Parliament. In particular, should the Bill proceed to Royal Assent, the draft chapter on elections and government formation will need to be revisited to ensure that it reflects the new arrangements. Whilst I think it important that the draft Manual is published as soon as possible, we should take the time to get this right.

For the purposes of your inquiry and in advance of publishing a revised draft of the Manual, I have set out initial views on the conclusions and recommendations of the Justice Committee in their report on constitutional processes following a general election, which made a number of recommendations in relation to the draft chapter.

The Justice Committee felt that there should be more clarity on a number of points: • using the term ‘caretaker’ instead of ‘purdah’ in formal guidance; • defining the principles that apply during the ‘caretaker period’, including the types of decisions that would need to be avoided and where there should be consultation with the opposition; • announcing the commencement and conclusion of any ‘caretaker’ period; and • a procedure for mediating, and if necessary, making public differences of opinion between Ministers and the civil service on the application of principles that apply.

The Committee was also of the view that in circumstances where there was no overall majority, it was for the politicians to clarify who was most likely to command the confidence of the House. They argued that the Sovereign should not be expected to take a role in that

42 process and that arrangements for civil service support should be set out in the Manual.

After reviewing the chapter, whilst the principles in the February version were right and hold true for any revised versions of the Manual, there are a number of areas where I agree the chapter could be developed. There should be greater clarity on the restrictions on government activity, although the Manual will need to make clear that there are three distinctive periods in which those restrictions would apply: before a general election; where there is no overall majority following a general election; and, following a vote of no confidence.

A revised draft of the chapter would need to acknowledge that slightly different restrictions apply in different circumstances, for example, following an election where there was no overall majority and for so long as there is significant doubt over the government’s ability to command the confidence of the House of Commons, restrictions on agreeing to long-term commitments should still apply. However, the Government should be able to announce its policy intentions, including those that it might wish to include in a Queen’s speech, since restrictions on announcements that would be appropriate during an election campaign would not apply.

The chapter must still set out the principle that the Government retains the responsibility to govern, that Ministers are in charge of their departments and that the essential business of government must be carried on. My current view is that the term ‘caretaker’ may not adequately reflect those principles, although I recognise that the term is adopted in other jurisdictions. Also, I do agree that ‘purdah’ may no longer be suitable for the Manual. Essentially though, the question of whether to adopt ‘caretaker’ or retain ‘purdah’ is a matter of terminology and is therefore a secondary issue.

I have also given thought to the Justice Committee’s recommendations that there should be a process in place where there was a disagreement between Ministers and Civil Servants on the application of the restrictions. It is my view that this can be addressed through the existing rules which apply to accounting officers, which will continue to apply during the three periods outlined above. Any restrictions on government activity in place during those periods will be relevant to the application of a Ministerial direction to accounting officers, as any commitments of public resources for political purposes must be avoided.

I agree with the Committee that there is benefit in ensuring such directions are made public immediately, although issues of commercial or other sensitivities would need to be taken into account. In normal circumstances the direction would be sent to the Comptroller and Auditor General, who would then forward it to the Committee of Public Accounts. However, if there is a period when restrictions on government activity are in place and Parliament is not sitting, then the direction together with the reasoning provided by the accounting officer could be made public by the department immediately and laid before both Houses at the first opportunity after Parliament meets. The direction should also be sent to the Comptroller and copied to the Treasury Office of Accounts at the time of publication.

In relation to negotiations where there is no overall majority, I absolutely agree that this is a matter for the political parties and the Sovereign should not be involved in that process, although the Sovereign’s representatives may be kept informed of progress.

43 On civil service support for government formation, I have published a summary note on the support provided in 2010 which can be found at: http://www.cabinetoffice.gov.uk/media/421449/coalition-negotiations.pdf. It is my intention to expand the text of the draft chapter on elections and government formation to include more on the nature of the support that can be provided by civil servants in these circumstances, as suggested by the Justice Committee.

A copy of this letter has been sent to Sir Alan Beith, chair of the Justice Select Committee.

3 November 2010

44

Further letter submitted by the Cabinet Secretary to the Chair of the Committee

I appreciated the chance to speak to the Political and Constitutional Reform Committee on 4 November on the 2010 government formation. It was very useful to hear the views of the Committee, and I await the outcome of your inquiry with interest.

Thank you also for your letter of 8 November 2010, asking about the relationship between the Cabinet Manual and a written constitution. As I said last week, when I appeared before the Committee, the Cabinet Manual brings together existing laws and conventions that govern the operation of Government. It is not a written constitution, which would be a fundamentally different document with a completely different status, and broader in scope and application.

As you point out in your letter, it is of course the case that the then Prime Minister’s announcement in February was made in a speech to IPPR, and not to Parliament, and I apologise for the mistake. As set out in Annex B, the group announced by the then Prime Minister, Gordon Brown (to consider the aspects of law and the relationships between each part of the state and between the state and the citizen that should be deemed ‘constitutional’), was never convened due to the General Election, and so did not publish any reports or other documents.

I also promised to follow-up on three points during my evidence last week, and I include information on those issues in this letter:

First, on the work done by the civil service under the last Government on investigating a written constitution, I attach a note (see Annex A) which sets out the publications and initiatives in which a written constitution was discussed.

Second, I said I would write about the status of MPs between a general election and when a member takes the oath or affirms. A person becomes a Member of the House of Commons on the day on which the writ for his election to the House is returned (usually the day after the election).

The law prohibits Members who have not taken the oath or affirmed from voting in the House or sitting during any debate at any time after the Speaker is chosen by the House. Members who decline to take their seats do not receive a salary but they are entitled to claim expenses and to use the facilities of the House provided for Members.

The entitlement to expenses and the use of facilities originates in resolutions of the House in 2001. IPSA’s MPs’ allowances scheme operates in that context. In future, the time from which Members’ salaries are payable will be fixed by section 4 of the Parliamentary Standards Act 2009 (as substituted by section 29

45 of the Constitutional Reform and Governance Act 2010), when it comes into force. Government departments treat correspondence from Members who have not taken the oath or affirmed in the same manner to letters from Members who have. Members who have not taken the oath are also disregarded for the purposes of some references to MPs in Part 1 of the Political Parties, Elections and Referendums Act 2000. More information about the law and practice relating to the oath can be found in House of Commons Library Research paper 01/116. The issue of how to involve MPs in post-election negotiations is a matter for the party leaders.

Lastly, I also enclose a summary (see Annex B) detailing whether other countries (in the EU or the Commonwealth) have a set period between a general election and the formation of a government.

I hope this is helpful, and I will be in touch in due course to discuss the Cabinet Manual further.

12 November 2010

46

ANNEX A A Written Constitution – Publications and Initiatives

This note summarises work undertaken by the previous government between 2007 and 2010 on:

1. The Governance of Britain” Green Paper

2. “Rights and Responsibilities: developing our constitutional Framework”: Green paper

3. Deliberative events – “People and Power: shaping democracy, Rights and responsibilities

4. A Written Constitution Group

1. The Governance of Britain Green Paper74 3 July 2007

The Ministry of Justice published the Governance of Britain Green Paper. The proposals in the green paper sought to address two fundamental questions: how should we hold power accountable, and how should we uphold and enhance the rights and responsibilities of the citizen?

Part 4, ‘Britain’s future – the citizen and the state’, set out a case for a written constitution and these sections are reproduced below:

Constitution

• 211. In parallel to consideration of the articulation of the rights of each citizen is the articulation of our constitution. Constitutions should allow the citizen to understand and fully engage with the state and state institutions. The vast majority of countries have codified, written and embedded constitutions. The UK has not. Instead, the British constitution has four principal sources – statute law, common law, conventions and works of authority, such as those of Walter Bagehot and A.V. Dicey – among which, under the doctrine of parliamentary sovereignty, statute law is preeminent. Partly by virtue of the political stability since the end of the 17th century, there has been no key event that has led to the need for one document setting out the rules on issues such as the length of parliamentary terms, the method of election to the House of Commons and appointment to the House of Lords, the powers of the judiciary, the powers of the devolved authorities, and the method whereby bills become law.

• 212. Today, we have to ensure that our country remains a cohesive, confident society in dealing with the challenges of the 21st century. Previous sections of this document have discussed the need to provide a clearer articulation of British values, and greater clarity about the nature of British citizenship. But there is now a growing recognition of the need to clarify not just what it means to be British, but what it means to be the

74 http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/publications/governanceofbritain.htm

47 United Kingdom. This might in time lead to a concordat between the executive and Parliament or a written constitution. • th European Convention on Human Rights • 213. It is clear that neither a Bill of Rights and Duties nor a written constitution could come into being except over an extended period of time, through extensive and wide consultation, and not without broad consensus upon the values upon which they were based and the rights and responsibilities which derived from them. The process of national debate through which the Government proposes to develop a British statement of values provides an opportunity to begin exploring the issues that would need to be considered. But this can only be considered as the start of a much longer process. The fundamental and constitutional nature of the guarantees provided in such instruments – as fifty years’ experience of the European Convention on Human Rights has demonstrated – require both government and Parliament to proceed with caution.

• 214. Our national identity is founded in the values we hold in common, manifest through our history and our institutions. If we are to forge the shared sense of national purpose we need to meet the economic and social challenges ahead, our institutions must reflect those values.

• 215. The programme of constitutional reform set out in this document seeks to meet that objective by renewing our democracy. This task does not fall to government alone, but to all the people of these islands – and the discussion now begins.

2. Rights and Responsibilities: Developing our Constitutional Framework (Green Paper) 75 March 2009

The Ministry of Justice published a Green Paper exploring whether our rights and responsibilities should be drawn together in one place, perhaps in a Bill of Rights and Responsibilities, where they might be easily accessible and understood.

There is one specific reference in this Green Paper to a written constitution (on page 22):

While it would not be appropriate in the UK context for a Bill of Rights and Responsibilities to impose a series of new legally enforceable duties upon individuals, it is nonetheless instructive to see how other countries have chosen to give constitutional expression to such duties. Of course, what works in another country, which may have a codified system of law, a written constitution or a different social and political context, will not necessarily translate into our system.

The Green Paper also includes various references to a constitutional instrument/document:

• Page 8 - A new constitutional instrument, reflecting the values that give rise to these rights and responsibilities, could act as an anchor for people in the UK. • Page 9 - Although not necessarily suitable for expression as a series of new legally enforceable duties, it may be desirable to express succinctly, in one place, the key responsibilities we all owe as members of UK society, ensuring a clearer

75 http://www.justice.gov.uk/publications/rights-responsibilities.htm

48 understanding of them in a new, accessible constitutional document and reinforcing the imperative to observe them. • Page 10 - The time is right to discuss whether our existing framework is sufficient or whether we need a new constitutional expression of our freedoms and responsibilities and the values which underpin them. • Page 14 - The Government believes that any new constitutional instrument should encapsulate the responsibilities we owe towards one another. • Page 31 - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.

The written constitutions of other countries were mentioned ranging from the US to South Africa.

3. Deliberative events and Report – “People and Power: shaping democracy, Rights and responsibilities76 October 2009 – March 2010

As part of the consultation on rights and responsibilities, the Ministry of Justice ran a series of deliberative events around the UK with members of the public to discuss constitutional reform. A broadly representative sample of 457 people was independently recruited to participate in these events.

A report on the deliberative events was produced and published on the Ministry of Justice website77, which included several passages about a written constitution:

Executive Summary / Conclusions (pages 5 and 6) • Participants valued the principle of providing greater clarity about constitutional arrangements. However, debates around the benefits and limitations of introducing a written constitution to this end revealed a more mixed response: specifically that a written constitutional should explore the potential for reform rather than merely codify existing rights. • People were undecided on the need for a written constitution.

Section 5 – Key findings – Written Constitution (pages 52-54) • Participants were given a very high level introduction to the possibility of introducing a written constitution. While participants valued the principle of providing greater clarity about constitutional arrangements in the United Kingdom; debate highlighted the complexities involved in drafting a constitution in practice. Participants also struggled to make the connection between a written constitution and improving levels of trust between the public and the government, MPs and courts. • Potential benefits highlighted by participants included providing clarity and certainty to individuals about how constitutional arrangements worked. A further benefit could be that the process of introducing a written constitution has the potential to invigorate democracy in the United Kingdom. In addition, participants felt that this could instil a sense of pride in Britain’s democracy thereby building national identity. It could also provide an insight for migrants into how the British system of government is

76 http://www.justice.gov.uk/publications/rights-responsibilities.htm 77 http://www.justice.gov.uk/publications/rights-responsibilities.htm

49 organised and what key principles are upheld. Finally, participants felt that a written constitution could provide a transparent, secure framework which would constrain future governments from making substantial changes to existing rights and responsibilities.

• Participants also identified a number of potential limitations of introducing a written constitution. A key theme centred on concerns about the possible unnecessary replication of existing legislation which would waste time and financial resources. Participants also raised concerns about the perceived inflexibility of a written constitution which would mean that once formalised, it could not be changed in light of social changes. This was most strongly stated in light of international examples, such as negative perceptions of the entrenched right to bear arms in the US, which was an argument cited against a written constitution by one of the ‘talking heads’ as part of the balanced stimulus material presented to participants. A further issue highlighted by participants was the possibility of negative financial impacts, both in relation to the cost associated with producing the document and from potential increases in litigation resulting from it.

• In particular, the polling results revealed an overall mixed response to introducing a written constitution, with just over 4 in 10 ten participants supporting the introduction of a written constitution, compared to just under 4 in 10 who did not support.

• Participants struggled to make the connection between a written constitution and improving levels of trust between the public and the government, MPs and courts.

Section 6 – Conclusions – Written constitution (page 58)

• There was only limited discussion on a written constitution and it was the only substantive issue explored by participants where there was no clear preference on an option to move forwards. • Nonetheless, three key issues emerged that will be instructive in taking forward debate in this area.

o First, while participants valued the principle of providing greater clarity about constitutional arrangements in the United Kingdom, debate highlighted the complexities involved in drafting a constitution in practice. One of the key benefits was that it would provide a transparent framework for how power worked in the UK and circumscribe the ability of future governments from eroding rights and liberties. However, this strength was also one of its flaws – with the inflexibility of a written constitution meaning that once formalised, it could not be easily changed in light of changing social circumstances.

o Second, a written constitution was not seen as the most pressing issue for parliament to wrestle with, given other social and economic priorities. Participants struggled to make the connection between a written constitution and improving levels of trust between the public and Parliament – though this may well have been because there was insufficient time to discuss constitutional reform options. Trust in government was seen as very important, and there is certainly potential to use reform as a means to reinvigorate the relationship between citizen and state. If the written constitution merely aimed

50 to codify existing rights, there were substantial concerns about the potentially unnecessary replication of existing legislation which would waste time and financial resources.

o Finally, while the courts were the most trusted institution to protect people’s rights, they were generally seen as the least bad option. While not subject to political pressures and restricted through law as to what action they could take – ultimately it was recognised that judges were not accountable to the electorate and there were difficulties in them shaping public spending priorities. Much of the kick back against Parliament related to the expenses scandal and a perception that MPs are motivated more by personal interests than the common good. When this controversy dies down, there is scope for exploring reform options in more depth.

4. A Written Constitution Group March 2010

The Ministry of Justice published a summary of responses to the Rights and Responsibilities Green Paper, which contained a reference to a speech by the then Prime Minister, Gordon Brown, on the 2 February 2010 in which he outlined how work on a written constitution would be taken forward:

• 53. It is worth recording also that the Green Paper consultation and complementary programme of deliberative research has contributed to the Government’s decisions to take forward other important constitutional changes. In a speech on transforming politics on 2 February 2010 the Prime Minister announced that the Cabinet Secretary would “lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a written document”; and second, that “a group will be set up to identify … what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed ‘constitutional’”.

• 54. This work is progressing. The Cabinet Office is leading work on consolidating existing conventions about the way central government operates. This material will follow the pattern set out in the New Zealand Cabinet Manual, although its contents will of course reflect UK practice. A draft of the chapter on elections and government formation was presented to the House of Commons Justice Select Committee on 24 February. The final document should be ready for an incoming government to consider after the general election.

• 55. The Government is also working on setting up the group to look at the aspects of law and relationships between each part of the state and between the state and the citizen that should be deemed ‘constitutional’. The Government envisages that after the group looking at principles has reported, there will then be detailed consideration of how our existing laws and conventions fit in with those principles and which should be given the status of constitutional. The Government believes we have reached a cross-road on our constitutional journey. Now is the time to create a new constitutional settlement that meets the aspirations of the UK public with a more equitable distribution of power that places Parliament and the people at its heart.

51 The group mentioned by the Prime Minister was never convened due to the General Election, and so did not publish any reports or other documents.

52 ANNEX B A Representative Sample of EU and Commonwealth countries: period between general election and formation of government

Country Is there a fixed period of Government formation after an election?

Austria No

Belgium No

Denmark No

Finland No

France No

Germany Yes

Basic Law for the Federal Republic of Germany

Article 63 [Election of the Federal Chancellor] (1) The Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President. (2) The person who receives the votes of a majority of the Members of the Bundestag shall be elected. The person elected shall be appointed by the Federal President. (3) If the person proposed by the Federal President is not elected, the Bundestag may elect a Federal Chancellor within fourteen days after the ballot by the votes of more than one half of its Members. (4) If no Federal Chancellor is elected within this period, a new election shall take place without delay, in which the person who receives the largest number of votes shall be elected. If the person elected receives the votes of a majority of the Members of the Bundestag, the Federal President must appoint him within seven days after the election. If the person elected does not receive such a majority, then within seven days the Federal President shall either appoint him or dissolve the Bundestag.

Greece Yes

Constitution, Article 84: “1. The Government must enjoy the confidence of Parliament. The Government shall be obliged to

53 request a vote of confidence by Parliament within fifteen days of the date the Prime Minister shall have been sworn in, and may also do so at any other time. If at the time the Government is formed, Parliament has suspended its works, it shall be convoked within fifteen days to resolve on the motion of confidence… “4. The debate on a motion of confidence or censure shall commence two days after the motion is submitted, unless, in the case of a motion of censure, the Government requests its immediate commencement; in all cases the debate may not be prolonged for more than three days from its commencement. “5. The vote on a motion of confidence or censure is held immediately after the termination of the debate; it may, however, be postponed for forty-eight hours if the Government so requests.”

Iceland No

Italy Yes

Constitution, Art.94:

“The Government must receive the confidence of both Houses of Parliament. “Each House grants or withdraws its confidence through a reasoned motion voted on by roll-call. “Within ten days of its formation the Government shall come before Parliament to obtain confidence. “An opposing vote by one or both the Houses against a Government proposal does not entail the obligation to resign. “A motion of no-confidence must be signed by at least one-tenth of the members of the House and cannot be debated earlier than three days from its presentation.”

Luxembourg No

Netherlands No

Norway No

Portugal Yes, in practice

Constitution, Art.125: “(1) The President of the Republic shall be elected during the sixty days prior to the end of his

54 predecessor’s term of office, or during the sixty days after that office becomes vacant. “(2) Elections shall not take place during the ninety days prior to or following the date of elections to the Assembly of the Republic. “(3) In the case provided for in the previous paragraph, the election shall take place during the ten days following the end of the period set out therein, and the term of office of the outgoing President shall automatically be extended for the necessary period of time.”

Art.187: “(1) The President of the Republic shall appoint the Prime Minister after consulting the parties with seats in Assembly of the Republic and in light of the electoral results. “(2) The President of the Republic shall appoint the remaining members of the Government upon a proposal from the Prime Minister.”

Art.192: “(1) Within at most ten days of its appointment, the Government shall submit its Programme to the Assembly of the Republic for consideration, by means of a Prime Ministerial statement. “(2) In the event that the Assembly of the Republic is not in full session, its President shall obligatorily call it for this purpose. “(3) The debate shall not last for more than three days, and until it is closed, any parliamentary group may make a motion rejecting the Programme, and the Government may request the passage of a confidence motion.”

Art.194(2): “No confidence motions shall only be considered forty-eight hours after they are made, and the debate thereon shall last for no more than three days.”

The Government shall resign following the rejection of the Government’s Programme, the failure of a confidence motion, or the passage of a no confidence motion.

Spain Yes

Constitution, Section 99

55 (1) After each renewal of the Congress and in the other cases provided for under the Constitution, the King shall, after consultation with the representatives appointed by the political groups with parliamentary representation, and through the Speaker of the Congress, nominate a candidate for the Presidency of the Government. (2) The candidate nominated in accordance with the provisions of the foregoing subsection shall submit to the Congress the political programme of the Government he or she intends to form and shall seek the confidence of the House.

(3) If the Congress, by vote of the overall majority of its members, grants to said candidate its confidence, the King shall appoint him or her President. If overall majority is not obtained, the same proposal shall be submitted for a fresh vote forty-eight hours after the previous vote, and confidence shall be deemed to have been secured if granted by single majority.

(4) If, after this vote, confidence for the investiture has not been obtained, successive proposals shall be voted upon in the manner provided for in the foregoing paragraphs.

(5) If within two months of the first vote for investiture no candidate has obtained the confidence of the Congress, the King shall dissolve both Houses and call for new elections, with the countersignature of the Speaker of the Congress.

Sweden Yes

The Instrument of Government:

Chapter 6. The Government Art. 1. The Government consists of the Prime Minister and other ministers.

The Prime Minister is appointed in accordance with the procedure laid down in Articles 2 to 4. The Prime Minister appoints the other ministers.

Art. 2. When a Prime Minister is to be appointed, the Speaker summons for consultation representatives from each party group in the Riksdag. The Speaker confers with the Deputy Speakers before placing a proposal before the

56 Riksdag.

The Riksdag shall proceed to vote on the proposal no later than the fourth day following, without prior preparation in committee. If more than half the members of the Riksdag vote against the proposal, it is rejected. In any other case, it is adopted.

Art. 3. If the Riksdag rejects the Speaker’s proposal, the procedure laid down in Article 2 is repeated. If the Riksdag rejects the Speaker’s proposal four times, the procedure for appointing a Prime Minister is abandoned and resumed only after an election for the Riksdag has been held. If no ordinary election is due in any case to be held within three months, an extraordinary election shall be held within the same space of time.

Switzerland No

Australia No

Canada No

India No

Ireland Yes in practice.

Art.12(7): “…every subsequent President shall enter upon his office on the day following the expiration of the term of office of his predecessor or as soon as may be thereafter…”

Art.13(1)-(2) “The President shall, on the nomination of Dail Eireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister. “The President shall, on the nomination of the Taoiseach with the previous approval of Dail Eireann, appoint the other members of the Government.”

Art.16(4)(2): “Dail Eireann shall meet within thirty days from that polling day [viz. the general election].”

New Zealand No

South Africa Yes in practice.

57

Art. 51(1): “After an election, the first sitting of the National Assembly must take place at a time and on a date determined by the Chief Justice, but not more than 14 days after the election result has been declared.”

Art. 83: “The President- “(a) is the Head of State and head of the national executive.”

Art. 86(1) of the Constitution: “At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.”

Art. 91(2): “The President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.”

Northern Ireland Yes

Within a period of seven days beginning with the first meeting of the Assembly after an election, the offices of First Minister and deputy First Minister shall be filled.

Scotland Yes

Following a general election, the Parliament shall within 28 days nominate one of its members for appointment as First Minister. (This is subject to extension in set circumstances.)

Wales Yes

Following a general election, the Assembly must, within 28 days, nominate an Assembly member for appointment as First Minister. (This is subject to extension in set circumstances.)

58

Written evidence submitted by Professor Matthew Flinders, University of Sheffield and Dr Felicity Matthews, University of York (LPGF 09)

1. Westminster-style government is based upon several key principles, including centralised power; a strong executive; and clarity in relation to the direction of public policy, and the responsibility of specific politicians. The resilience of the ‘Westminster model’ has been reinforced by the stability of the two-party system of single party government throughout the post-war period, as power oscillated between Conservative and Labour.

2. Whilst the two main parties’ share of the popular vote has declined since 1970, forms of government such as minority and coalition have remained deviant from established governing norms. Hung parliaments are rare and, prior to 2010, the last general election to produce a hung parliament was in February 1974, which was the first result without a clear- cut winner since 1929.

3. Indeed, the UK now provides an exceptional case, and is the only parliamentary democracy in North America, Europe and Australasia to have produced a coalition at its most recent election despite having a simply majority electoral system.

4. The limited experience of alternative forms of government at the national level means that there are few lessons that can be learned by looking into Westminster’s past. However, the existence of different forms of government at the sub-national level offers important lessons regarding the practicalities of coalition government.

5. Devolution ushered in a tier of governance that was forged upon minority or coalition government within a Westminster model of government, which means that the emergence of a coalition government at the national level in 2010 is not quite as novel for the established political parties as some people may have thought.

6. What is critical about the experience of coalition and minority governments at the devolved level is the manner in which the cultures, assumptions and values of majoritarianism appear to have been maintained by key actors. Indeed, there is also evidence that the preference for coalition has been driven by the desire to avoid the pitfalls associated with minority rule and to reinforce the capacity to of the executive to govern vis-à-vis the legislature.

7. The experience of devolution therefore reveals a certain path dependency whereby parties and individuals have tended to approach the new constitutional structures with the instincts and views that were honed within national (or local) majoritarian politics.

8. At Westminster, the coalition between the Conservative Party and Liberal Democrats was agreed in the middle of May 2010, and although the legislative programme was set out in the Queen’s Speech, within a fortnight the House of Commons immediately moved into the summer recess. It has only been in recent weeks, therefore, that the realities of coalition government have begun to come to the fore as ministers start to focus on reforming their respective bureaucratic networks.

9. As such it is simply too early to assess what difference coalition politics has had on

59 the culture and practices of Whitehall and Westminster with any precision or certainty. And yet the nature of executive politics has clearly changed and many long-standing myths about the nature of coalition politics have been pierced. Five key aspects of coalition formation and governance that the Committee may wish to focus upon are: speed; endurance; cohesion; support; and, transformation.

10. Speed – What was particularly marked about the post-election coalition negotiations was the speed at which an agreement was brokered. The average period of coalition formation in Western Europe is twenty-three days; but after the UK general election a broad agreement was reached within five days, and a Programme for Government as published within fourteen days of the general election. Such rapidity is therefore at odds with dominant understandings concerning weeks of uncertainty and confusion.

11. Endurance - The coalition government has already out-lasted many predictions. Not only are politicians from the two parties managing to co-operate and abide by the convention of collective responsibility, but they actually seem to be enjoying the challenge. At the base of this relationship lies a coalition agreement in which the Conservative Party is clearly the dominant partner. Research suggests that 43.3% policy statements in the Programme for Government were solely attributable to the Conservative manifesto; whereas 22.7% of the pledges appeared solely in the Liberal Democrat manifesto and only 19.7% appeared in both parties’ manifestos. This means that a total of 63.0% policy commitments can be traced directly to the Conservatives original manifesto plans.

12. However, the Programme’s pledge to hold a total of twenty-nine policy reviews and five commissions over the course of the Parliament – and the opportunities for abstention it affords the Liberal Democrats in key policy areas, such as university tuition fees – is a tacit acknowledgement of the significant differences that still exist amongst the two parties.

13. Cohesion – The broad distribution of portfolios and positions across coalition partners is key to internal cohesion and stability. The Liberal Democrats have been substantially over- represented within government, being awarded a total of twenty-four ministerial positions and five seats in Cabinet; and despite only having a share of 8.8% of parliamentary seats, the Liberal Democrats have secured a disproportionately large share of 19.5% of ministerial positions across government. The implications of such over-representation require further examination.

14. Issues of proportionality notwithstanding, each coalition party can be seen as a veto player that can maintain the status quo against the demands of coalition partners; and the coalition may result in more stability in terms of internal governance arrangements, as the introduction of an extra veto-player will reduce the frequency of Cabinet reshuffles. In turn, the dispersal across parties of positions within individual departments may bestow ‘watchdog’ powers upon junior ministers, with the capacity to keep their coalition partners in check; and it will be interesting to determine whether, over time, these ministers exercise their veto capacity over their superiors.

15. Support – The civil service have been forced to clarify certain roles and relationships, and generally adapt rapidly to a change in political circumstances; and it is difficult to avoid the conclusion that, despite opinion poll evidence that consistently pointed towards a hung parliament, the civil service was under-prepared for the experience of coalition.

60 16. What is particularly noteworthy about the institutional architecture supporting the coalition is the lack of conflict resolution mechanisms. The main formal arena for resolving tensions is the Coalition Committee, but this has not (as yet) been tested. The lack of conflict helps explain the apparent lack of focus on formalised conflict resolution mechanisms, or any apparent understanding that to establish mechanisms of this nature is an act of mature governance, rather than weakness and failure.

17. The civil service is therefore being forced to adapt and respond to the demands of coalition government. This may be a challenge for civil servants for whom serving the government of the day has for them meant dealing with the politicians of only one party. Ministers, too, will need to accept that ‘their’ officials will be in regular contact with coalition partners.

18. Transformation – To date the coalition has been able to minimise tensions through the creation of commissions of inquiry, task forces or simply delaying difficult decisions. This cannot continue indefinitely as the scale of the financial pressures on the government make hard choices inevitable at some point. And yet achieving ‘more for less’ is incredibly difficult and this was underlined by the Public Accounts Committee’s November 2010 report, which found that the three per cent efficiency savings that were included in the 2007 Comprehensive Spending Review had not been realised (PAC 2010).

19. Whether the nature of coalition politics will continue in the current high-trust low- blame vein, or veer back towards a more majoritarian low-trust high-blame model of political behaviour under the pressure of the coalition government’s attempt to eliminate the massive budget deficit within the course of the current parliament (i.e. by 2015), remains unclear.

10 November 2010

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Written evidence submitted by Baroness D’Souza, Crossbench Convenor, House of Lords (LPGF 10)

Many thanks for your letter of the 28th October on the Salisbury-Addison convention and I am happy to respond.

1. As I am sure you are aware the Cross Benches do not act as a group and therefore there is no collective view. Furthermore, the Cross Benches are not party to, nor bound by, the Salisbury-Addison convention. However I have asked a number of colleagues for their thoughts and, as you can imagine, they vary considerably. I hope it is helpful to summarise these views?

2. The Convention cannot logically apply since the Coalition Agreement differs from both the Liberal Democrat and Tory manifestos and thus were NOT voted for by the electorate. A compromise solution put by some is that the convention should apply only to those bills which can be shown to be in similar terms in both manifestos.

3. The opposite view, the Coalition Government was in fact voted by the electorate if only by denying any one party an overall majority and therefore expressing a preference for some sort of coalition. This has empowered the Government to draw up an Agreement and thus the Salisbury- Addison convention applies.

4. The above option is favoured by many as a practical means of enabling the Government to define bills to which the convention would apply. This has led to a more philosophical discussion the main points of which are as follows:

- The Wakeham Commission Report (January 2000) explained that there is “a deeper philosophical underpinning for the Salisbury Convention which remains valid……where the electorate has chosen a party to form a Government, the elements of that party’s general election manifesto should be respected by the second chamber. More generally, the second chamber should think very carefully before challenging the clearly expressed views of the House of Commons on any issue of public policy.” (Para 4.21)

- Given that the Coalition Government commands a majority in the Commons and since there is no manifesto for the Coalition Government, the convention should apply to the programme for government.

- While it is true that this programme has not been put to the people, to focus on the absence of a manifesto for the Coalition Government is to ignore the ‘philosophical underpinning’ and to allow the House of Lords to ignore political realities in the Commons.

- The Salisbury-Addison convention is just that – a convention which can develop. Circumstances change and adaptations based on the political realities of the Coalition Government have to seek to respect the basic principles that have always been embodied by the convention.

7 November 2010

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Written evidence submitted by Baroness Royall of Blaisdon, Leader of the Opposition, House of Lords (LPGF 11) 1. The Salisbury-Addison Convention is, broadly, the means by which the elected government of the day secures, in general terms, and subject to amendments passed during the legislative process, its legislative programme as set out for the electorate in the general election manifesto of the political party which forms the government. 2. Since the convention was developed in the late 1880s, the Convention has been subject to discussion and definition. Perhaps the most authoritative recent delineation of the convention was set out in the Joint Committee on Conventions, chaired by Lord Cunningham of Felling, as follows (HL Paper 265-I Para 99): “99. The Convention which has evolved is that: In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the Bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.” We broadly accept and agree with this delineation. 3. The Joint Committee also noted the attempts over time to define what constitutes a manifesto Bill, and we note its decision (Para 113) not to recommend that such a definition be attempted. 4. The Joint Committee also noted that any further material reform would call into question the current conventions of the House – which would in our view include the Salisbury-Addison convention (Para 9.2): “If the Lords acquired an electoral mandate, then in our view their role as the revising chamber, and their relationship with the Commons, would inevitably be called into question, codified or not. Given the weight of evidence on this point, should any firm proposals come forward to change the composition of the House of Lords, the conventions between the Houses would have to be examined again.” 5. We strongly agree with this conclusion of the all-party joint committee of both Houses of Parliament. We believe that the proposals for further reform of the House of Lords which are currently being considered by the coalition government with the intent of bringing forward shortly a Bill to reform the Lords should indeed prompt a further examination of the conventions between the Houses. We believe that the best means of this examination would be a Joint Committee of both Houses. 6. Our principal reason for supporting this proposal, and its application now, is that we believe that the establishment a wholly- or partially-elected House of Lords would put the conventions between both Houses immediately into play. Indeed, we believe that the advent of a wholly- or partially-elected House would very quickly see the current conventions between the two Houses disappearing.

7. This process would certainly include – indeed, it would centre upon – the Salisbury- Addison Convention. So our first contention in relation to the Convention as it currently stands is that if the coalition government is successful in bringing about further reform of the House of Lords, then the Salisbury-Addison convention, unless re-addressed as proposed by the Joint Committee, might well have relatively little future. 8. Unless or until such reform is secured by the coalition government, though, the question of the Salisbury-Addison Convention remains. Our view too, though, is that the

63 formation of the coalition government is already fundamentally changing the nature and operation of the House of Lords, and the relationship of the House of Lords to the House of Commons. 9. While not completely operating as a full convention, it is unquestionably the practice and indeed the explicit policy in relation to the House of Lords over many recent years that no-one political party should have an overall majority. Without this practice, the House of Lords cannot properly carry out its major function – to act as a revising chamber, with the clear and correct role of scrutinising, amending and improving legislation. 10. The balance of the composition of the House of Lords prior to the 2010 election broadly supported this practice. In nominal terms, Labour held 30per cent of the total House of Lords votes, the Conservative Party 26 per cent, the Crossbenches 26 per cent and the Liberal Democrats 10 per cent. This has led to a House which, though unelected, in effect was equivalent to a parliamentary chamber which, looking at experience around the world, had been elected on a proportional basis. No single party had a majority. To get legislation through, a governing party had to win the agreement with one or another groups in the Lords. Not agreement by politics, but agreement on the issues concerned. So issues proceeded by consensus. Legislation was subject to proper scrutiny, amendment and improvement. The House was both able to carry out its principal function, as a revising chamber, and did so. 11. The advent of the coalition has fundamentally altered this balance, and so threatening the core role of the House. The two parties in the coalition in the Lords now have a nominal combined membership of 272, compared to 234 for Labour alone. While actual votes on individual days may of course differ from these totals, it is clear that the coalition now has a permanent, inbuilt majority in the Lords over Labour, with which it can push through its legislation. 12. We as an Opposition have so far managed to secure some victories in the division lobbies through presenting our case successfully to individual peers beyond our party. We will continue to adopt and pursue this strategy wherever possible. But we believe that the advent and operation of the coalition in the Lords is placing the role of the House of Lords as revising chamber beyond the reach of the House. We strongly believe that the coalition must not, and must not be allowed to, us its majority in the House of Lords to thwart this role, and to turn the House of Lords into a rubber stamp for the House of Commons. 13. We believe that both these issues – the impact of further reform in the House, and the impact of the advent of the coalition – are highly significant not only in themselves, but as the governing context for consideration of the operation now of the Salisbury-Addison Convention. 14. The coalition government seeks to argue that the establishment of their government does not affect the Salisbury convention. Indeed, Lord Strathclyde, the coalition government’s Conservative Leader of the House in the Lords has said that Labour in the Lords “will need to remember, as we always did in opposition, that the unelected House must not challenge the clear mandate of the elected one.” (House Magazine, No 1358 Vol 36 Oct 4, 2010) 15. This has not always been the view of the senior members of the coalition government in the Lords. Lord Strathclyde, in a lecture given in 1999 as Leader of the Opposition in the Lords, entitled Redefining the Boundaries between the Two Houses, argued that most of the conditions that gave rise to the Salisbury doctrine had gone, saying: "Some might therefore conclude that the doctrine itself, as originally conceived, has outlived its usefulness. I would be less dogmatic. Certainly it needs to be re-examined in the new conditions that arise." While he argued for the primacy of the elected House, he also said of the House of Lords: “But, equally, it should always insist on its right to scrutinise, amend and improve legislation.”

64 16. His deputy in the Lords, and the Leader in the Lords of the Liberal Democrats, Lord McNally, argued in 2005 that the design of the Salisbury Convention was even by then no longer appropriate: “The Salisbury convention’, Lord McNally, the leader of the Liberal Democrats in the Lords, argued in a debate in the Lords on 26 January 2005, `was designed to protect the non-Conservative government from being blocked by a built-in hereditary- based majority in the Lords. It was not designed to provide more power for what the late Lord Hailsham rightly warned was an elective dictatorship in another place against legitimate check and balance by this second Chamber.” (HoL Hansard 26 Jan 2005 Vol 668 Col 371). In a later debate Lord McNally went on to say : “I do not believe that a convention drawn up 60 years ago on relations between a wholly hereditary Conservative-dominated House and a Labour Government who had 48% of the vote should apply in the same way to the position in which we find ourselves today.” (HoL Hansard 17 May 2005 Vol 672 Col 20). Lord McNally has also in the past described the “traditional plea to the Salisbury convention” as “the last refuge of legislative scoundrels” (Cited in ‘Parliament’, by Philip Cowley, in Blair’s Britain ed. Anthony Seldon CUP 2007) 17. Lord Strathclyde’s formulation, “that the unelected House must not challenge the clear mandate of the elected one” is a reasonable shorthand version of the Salisbury Convention. But it fundamentally rests on the concept of a “clear mandate”. A clear mandate is given when a political party presents its proposed platform and programme to the electorate, ahead of a general election. The most usual form of this in the party’s general election manifesto. From this stem individual policies and proposals, including individual proposals for legislation. From this in turn comes the concept, utilised in the Joint Committee’s delineation of the Salisbury convention, of a ‘manifesto Bill.’ While the Joint Committee was understandably chary about trying to define a manifesto Bill, it is axiomatic from the term that the idea behind the Bill must have been contained in the election manifesto from a political party seeking to be elected to government and subsequently being elected to government. 18. This brings us to the first of the substantive points on the Salisbury convention we would wish to make in relation to the current coalition government. Both the parties which were likely to be able to form a government on their own, the Labour Party and the Conservative Party, presented manifestoes to the electorate as part of their general election campaign in 2010. So too did the Liberal Democrats, though every piece of polling evidence and electoral history over the past 100 years suggested that the party would be unlikely to be able to form a government on their own. One of the effects of the television debates which were such a prominent, notable and novel feature of the 2010 general election campaign was to put aside these key differences between the three main parties and in effect to present the three parties as equivalent, with the policies and the proposals of all three parties being given broadly equal time and consideration. 19. In one respect, the outcome of the election was starkly clear. Our party, the Labour party, lost. We were in government. We are no longer in government. However difficult for us as a party, that is a clear outcome. 20. But no other outcomes of the election were as clear. Neither the Conservative Party nor the Liberal Democrats secured enough seats to form a government. Neither the Conservative Party nor the Liberal Democrats received a mandate from the electorate to put their manifestoes into practice. 21. Post-election discussions and negotiations between the two parties led to the formation of a coalition government. But the coalition government was precisely a post- election formation. The coalition government could not and did not have a pre-election manifesto which set out its policies and programme. Leaving aside the product of any post- election discussions, what the two parties had which had been presented to the electorate

65 were their two separate manifestos – neither of which had received the endorsement of the electorate in the form of sufficient seats to form a government. 22. Accordingly, it follows that neither political party has a clear mandate for a manifesto Bill based on the manifesto it put forward at the general election. The only conceivably clear mandate for a manifesto Bill the coalition government could have based on the manifestos from each of the constituent party forming the coalition would be where either of the two parties forming the coalition had put forward policy proposals in their own manifestos which were in line with policy proposals put forward by the other party forming the coalition. 23. So we believe that where a proposal from the coalition government was contained in both of the 2010 general election manifestos from the political parties forming the coalition, that proposal would rightly be subject to the Salisbury convention. 24. Equally, proposals from the coalition government which were only in the 2010 general election manifesto from one of the political parties forming the coalition would not be subject to the Salisbury convention. 25. The second point about the Convention and the coalition government relates to proposals based on the policy agreements contained in the coalition’s programme for government. In relation to this point, we believe the position of the Convention is equally clear. 26. Regardless of the difficulty of defining conventions, including the Salisbury-Addison convention, and of defining manifesto Bills, as set out in the Joint Committee’s report, it is clear that the convention rests on the manifestos of political parties standing in the election and hoping to form a government. 27. It is equally clear that whatever was in the manifestos put forward in the 2010 general election by the two parties which, when the election was over, went on to form a government, nothing that the discussions which led to the formation of the coalition government or the subsequent policy agreements which were set out in the coalition government’s policy programmes for government – initial and full – had at any time been put before the electorate, either as manifestoes or indeed in any other form. So the programmes for government agreed by the two parties forming the coalition fail the fundamental test for the application of the Salisbury convention: that they have been put before the electorate, usually in the form of a manifesto, and so have a clear mandate for proposals which will then form a manifesto Bill.

28. Accordingly, we believe that any proposal from the coalition government stemming only from the post-election agreements reached by the parties forming the coalition would not be subject to the Salisbury convention. 29. Equally, we believe that any proposal from the coalition government stemming from the post-election agreements reached by the parties forming the coalition which had also been contained in both of the manifestos from the parties forming the coalition would be subject to the Salisbury convention. 11 November 2010

Written evidence submitted by Mervyn King, The Governor, Bank of England (LPGF12)

Thank you for your letter of 3 December, which asks a number of questions about the background to the formation of the Government following the May election. My answers to your specific questions are given below. You might also refer to the transcripts of the relevant parts of the hearings of the House of Commons Treasury

66 Committee on 28 July and 25 November, which covered these issues in some depth.

1) Did you have input in the process of government formation after the general election in May 2010? If so, what was your role?

I had no input to the process of government formation after the general election.

2) Did you have conversations with representatives from the Conservative or Liberal Democrat parties during the process of government formation or shortly before?

I had no conversations or meetings with any political party representatives during the election campaign. I made no public speeches or appearances, and gave no off-the- record talks.

In the weekend immediately following the election (8-9 May) I spoke with the then Chancellor, Alistair Darling, concerning the crisis in Greece and a meeting of ECOFIN, at which he represented the United Kingdom. He also asked me to accept a call from George Osborne, in which we discussed only the position that the United Kingdom should adopt at the ECOFIN meeting. I had no other conversations with any other members of the future Coalition government until after the Coalition was formed; nor was I asked to take part in any. I also spoke with the Prime Minister, Gordon Brown, on the evening of Sunday 9 May about the crisis in Greece.

After the Coalition was formed and George Osborne had been appointed as Chancellor, I had a conversation with George Osborne on the morning of Wednesday 12 May, in which he outlined the contents of the Coalition agreement on economic matters. On Saturday 15 May, I spoke by phone with the Deputy Prime Minister, Nick Clegg, at his request. As I explained in evidence to the Treasury Committee on 28 July, I said nothing in that call that I had not already said in public, most recently at the Inflation Report press conference on 12 May.

In line with standard civil service practice, I held occasional meetings with Opposition parties ahead of the election to provide technical advice on aspects of their programmes relevant to the responsibilities of the Bank. On that basis, between January 2009 and the start of the election in April2010, I had five meetings with the Shadow Chancellor, George Osborne – who was sometimes accompanied by the Leader of the Opposition David Cameron, and sometimes not. And I had two meetings with Vince Cable, who was once accompanied by Nick Clegg. All of these were carried out according to the normal conventions governing meetings helping to prepare Opposition parties in the run-up elections. As such, the occurrence of each meeting was notified to the Chancellor’s office. At no stage did I offer any advice on the composition of any measures designed to reduce the government deficit, in terms of spending and taxation.

67 3) Are there limitations on what you as Governor of the Bank of England should say or do during a period of government formation? If so, what are those limitations?

Yes, there are substantial limitations. The account set out above is, I believe, wholly consistent with them.

4) Are the representations made in David Laws’ book accurate and if not, can you give an accurate account?

I obviously cannot vouch for the veracity of comments about events in which I was not a participant. But neither quotation suggests any meeting took place. My views on the need for a credible deficit reduction plan had however been made very clear, and in public, as far back as March 2009. I said nothing in private meetings that went beyond those public comments.

I hope these answers help with your enquiry. I have copied this reply to Andrew Tyrie MP, as Chair of the Treasury of the Committee.

Written evidence submitted by The Rt Hon Gordon Brown MP (LPGF 13)

Thank you for your letter of 19 October 2010.

My comments are as follows:

I have no personal information on the civil service’s role in “organising the coalition meetings” other than what has been stated publicly by the Permanent Secretary to the Cabinet

The papers documenting what role the civil service had in this period, and in particular the Cabinet Manual referred to by the Head of the Civil Service in his evidence, should be made available to the Committee

I believe that as much information on procedures as can be made available should be in the public domain, and be subject to proper consideration by Parliament and the public.

On conventions and rules, I have said I favour a fixed term Parliament; an elected house of Lords; and I am of the view that we should make progress on moving towards a properly codified constitution.

29 November 2010

Written evidence submitted by George Osborne MP, Chancellor of the Exchequer (LPGF 14)

68 I am grateful for your letter of 1 December, which I received here in the Treasury on 7 December, regarding the Committee’s inquiry into the constitutional and practical issues relating to government formation and transition following this year’s General Election.

I have sought to answer the questions you raise below, though you will of course appreciate that, by longstanding convention, I have not had nor sort access to official papers relating to previous administrations. I have therefore not seen any official records of the specific events you refer to.

With regard to your questions:

(1) What process of consultation took place between the political parties on this matter?

The then Chancellor – the Rt Hon Alistair Darling MP – called me on Sunday 9 May ahead of the meeting of European Finance Ministers. The purpose of the call was to brief me on latest market developments and the proposals the UK expected to be brought forward at the Finance Ministers’ meeting. Mr Darling had also sanctioned the Permanent Secretary to the Treasury to brief me directly earlier that morning. This duly happened.

(2) Precisely what objection did you raise?

While I made clear my appreciation that Mr Darling remained the Chancellor and was therefore privy to the details and specifics of what were ongoing and fast-moving negotiations, I noted that we were, at that point, in a period of election purdah. In light of that, I cautioned against committing the UK to proposals that have a lasting effect on the UK’s public finances.

(3) Did you come to any agreement with your predecessor as to the strategy to be employed for the meeting of European Finance Ministers on 9 May?

The purpose of the phone call was not to reach agreement, but for Mr Darling to consult me on the course of action he proposed. Given he was still Chancellor of the Exchequer at that point, representing the UK in a dynamic negotiating environment, it was for him to reach decisions. He did this, aware of my views.

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