The poll figures currently suggest that the general election in May will produce another hung parliament, with neither major party likely to win an overall majority of the seats. The commentariat continues to write and speak as if this must mean another coalition government, right? No, wrong. Or at any rate that the party with the most seats has the right to have the first shot at forming a government, OK? No, wrong again. Well, it’s bound to mean that if the LibDems hold the balance of power again (i.e. if they win enough seats to put either Labour or the Conservatives over the top), they will try to negotiate the terms on which they would join either in a coalition, starting with whichever of them has won more seats? Not necessarily — not even probably. OK: but it might not matter that much: the Tories are already trying to raise even more money from their hedge fund manager friends to enable them to fight a second election later in 2015, which Cameron would be entitled to call if he emerges as prime minister in May, wouldn’t he? Again, not necessarily.
There was a significant but almost wholly unnoticed constitutional amendment sneaked onto the books shortly before the 2010 election, mainly by the then Cabinet Secretary, Sir (now Lord) Gus O’Donnell. Just one month before that election, I wrote a blog post in which I described, with links to the sources, a constitutional development with major implications in the event of a hung parliament in the following month:
There is a fear that such uncertainty [caused by the failure of either party to win an overall majority], if it lasts more than a very few days, will cause a run on sterling, turmoil in the bond markets and a possible need to raise interest rates, which would slow down and perhaps reverse Britain’s economic recovery. To avert this potentially damaging fall-out from a hung parliament, the Cabinet Secretary, encouraged by the prime minister (and possibly with the agreement of the other party leaders), has written a new “rule book” — although No. 10 Downing Street has demurred at this description, asserting that it’s no more than a codification of existing and hitherto unwritten constitutional practice. The Cabinet Secretary’s code, apparently taking the form of a new chapter for the Civil Service Manual, provides, among other things, that if a hung parliament results from an election, the incumbent prime minister, regardless of the number of votes or seats his party has won, should not and must not resign as prime minister until it’s clear that there is a specific alternative MP likely to be able to form a government that will win the support of a majority of members of the House of Commons, expressed in majority support for that government’s programme, as defined in the Queen’s Speech. This formulation is designed to protect two fundamental constitutional principles: the nation’s government must be able to be carried on without a significant hiatus; and the monarch must not be placed in a position of being forced to make a decision (such as having to choose whom to invite to try to form a government when there is no consensus on whom she or he should choose) that would entail, or seem to entail, political partisanship as between the parties, thus potentially damaging confidence in the monarchy’s position above party politics.
This (probably new) rule has important implications. Newspaper editorials claiming that Brown will be morally and politically obliged to resign immediately as prime minister if Labour comes second or third in terms of votes cast, have got it wrong. Brown and the Labour government would be obliged to continue in office for as long as there was any uncertainty about how the LibDems would vote on a Labour or Conservative government’s Queen’s Speech or on a vote of confidence in either government.
What’s more, the dilemma facing Nick Clegg will not be which of Labour or the Conservatives to ‘support’ in a hung parliament, but whether deliberately to bring down the existing Labour government in the vote on the Queen’s Speech or in a vote of confidence in the government.
As we all now know, my prediction turned out to be wrong on at least two counts: Gordon Brown, lambasted by the media for his failure to resign the day after the election as soon as it became clear that the Tories had won more seats than Labour, resisted pressure from the LibDems and the Tories to hang on as prime minister until the terms of a Tory-LibDem coalition under Cameron had been agreed, got fed up with being vilified for “clinging to office”, drove to the Palace, and resigned anyway, taking the rest of his administration with him (not physically, of course); and it became clear that whatever the state of the parties’ negotiations in the effort to glue together a coalition commanding a Commons majority, there could be no question of the LibDems being willing to serve in or even support a government under Gordon Brown as prime minister, so low was his standing in the country at the time. His resignation was thus inevitable, whatever the new O’Donnell rules might say about the incumbent prime minister having a duty to remain in office until a clear successor with majority support in parliament had emerged.
The situation next May will however be different. The biggest difference is that in 2010 the incumbent prime minister was Labour, whereas in May 2015 the Tory leader will have the huge advantage of incumbency — an advantage which Gordon Brown was unable to exploit because of his unpopularity. Regardless of which party wins the most seats in a hung parliament, and even if Labour with support from the LibDems, SNP, Greens and some leftish nationalist MPs win enough seats to constitute a majority, David Cameron will still be entitled to remain in office, even until the new parliament meets. At that point Cameron would be entitled to present a programme for government in the Queen’s Speech and seek approval for it in the House of Commons (which would in effect constitute a vote of confidence in his government). If the Tories plus UKIP and some LibDems (if any) plus the right-of-centre nationalists managed to muster a majority in favour of the Queen’s (i.e. Cameron’s) Speech, Cameron could constitutionally continue as prime minister: the question of his resignation would not arise, and the Queen would have no power to demand it, even if she (and her advisers) thought that Miliband had a better chance of forming a government likely to command a more durable majority’s support in the House.
This scenario is by no means far-fetched: Cameron, ever the opportunist unhampered by principles or political philosophy, is quite capable of putting together a programme in the Queen’s Speech so alluring, so full of populist goodies, that it would be difficult for any reasonable centrist party to vote it down. In that case Cameron would almost certainly reject any idea of another coalition, heading a minority government, possibly with an informal “confidence and supply” understanding with UKIP and the other right-of-centre parties under which he would need to try to assemble a majority for each individual measure but would resign as prime minister only if defeated in a vote of confidence or on an issue involving the vote of funds to the government.
Even if events turned out in this way, or something like it, the time might well come when Cameron might calculate that if there were to be another election within a few months, the Tories would stand a good chance of winning it, this time with an overall majority. He would then be tempted to resign and hope to win an ensuing general election outright (the dubiously constitutional Fixed Term Parliament Act 2011 could easily be circumvented or if necessary repealed). Hence the reported decision of the Tories to start now collecting money to fight a possible second election in 2015. But this depends on a questionable assumption. David Cameron could resign and — if asked, but only if asked — advise the Queen to dissolve parliament, followed by a fresh election; but this is one of the few occasions when the Queen is not bound to accept her prime minister’s advice. She might well reject it if, for example, soundings by her advisers suggested that Ed Miliband would have enough backing from other parties to form a government with majority support in the House of Commons — and if she thought that the expense of another election so soon after the last would not be justified, especially in view of the risk that the outcome would be similar to that in May. In such circumstances even a prime minister in office can’t be sure that his resignation would necessarily precipitate another general election.
All this is of course pure speculation. It could well be falsified by any number of unpredictable factors, including the party arithmetic of the May election results and the extent of Cameron’s willingness to tough it out and hang on in No. 10 Downing Street until parliament meets even if Labour has won more seats than the Tories and would be generally regarded as having ‘won’ it. Or indeed Labour might win an overall majority, in which case Cameron would automatically resign and Miliband would accept the Queen’s commission to form a government. An overall Tory majority would similarly make speculation about the implications of a hung parliament redundant.
However, at the time of writing, the opinion polls seem to point to a hung parliament with Labour as the biggest party: and with less than five months left before the election, Labour clearly ought to be making contingency plans for that outcome.
So what could the Labour party do now to minimise the danger of Cameron winning fewer seats but contriving to continue as prime minister until he can stitch together a majority in support of a Tory programme in the Queen’s Speech? The first priority must be to begin now to put together an agreement with the LibDems, the SNP, the Greens and Plaid Cymru on the essential points of a minority (or indeed majority) Labour government programme for which they would all be prepared to pledge support, whatever the arithmetic of the new parliament. All this needs to be done urgently and above all publicly, so that the electorate knows what it will be voting for. It should not be difficult to find enough common ground for a programme manifestly more fair and humane than anything currently on offer from the Tories, while still being economically and fiscally responsible. For almost all concerned apart from UKIP the prize — an end to the Tory project of destruction of the welfare state and Britain’s departure from the EU — should be too great to turn down. Such a widely supported progressive Labour programme, publicly endorsed in advance by the majority of the parties likely to win seats at the election, would maximise the chances of a clear overall majority in the new parliament — and offer the best hope of preventing the Tories plus UKIP being able to assemble a counter-majority, with some support from the dithering centre. It will go against the grain and instincts of many good Labour people to begin now to look publicly for common ground with either the LibDems or the SNP, both of whom have so recently been sworn enemies of Labour. But if we are to have any hope at all of a Labour government next May, we need to swallow our pride and our prejudices and seek support for a progressive alternative to Cameron and Osborne wherever we can find it.
To be absolutely clear, I am emphatically not advocating a Labour-led government coalition with the LibDems or anyone else. If the new parliament comprises a medley of small parties, several of which would need to support any government measure in a kaleidoscope of different combinations for it to secure parliamentary approval, a laboriously negotiated coalition agreement between four or five different parties would be unachievable, as well as unmanageable and therefore undesirable. Failing an overall Labour majority (clearly the best outcome of all), the aim should be a minority Labour government with enough broad support from the other progressive parties to ensure parliamentary approval for the key elements of the Labour election manifesto to justify an informal confidence and supply understanding. For once Tina has proved her case. There Is No Alternative. But time is already dangerously short. To quote another former and very different Conservative prime minister, Action this day!