What happens on May 8th?

With no written constitution to consult, we demystify the complexity of forming a government

Some people will wake up with headaches from celebrations the night before, while others may have been drowning their sorrows. What is clear is that no one will have a bigger headache than the mandarins charged with managing the formation of the new Government.

What we know for certain?

  • David Cameron remains the Prime Minister until someone else is invited by the Queen to lead a government. He actually has a duty to occupy Downing Street and must take decisions of national significance that cannot wait for a new government to be formed. The Cabinet Office has made this clear in order to combat a repeat of the accusations in the media that Gordon Brown was a “squatter in Downing Street”.
  • Ministers must also remain in office, although Cabinet Office guidance states that there should be greater consultation with their opposite numbers. This was actually a significant issue in 2010 when, in the days after the election, Alistair Darling had to attend an emergency meeting of EU finance ministers to discuss a major bailout of the Euro. Perhaps counter-intuitively, if a minster did not stand again or lost his or her seat, he or she nonetheless remains in post – not done quite yet, William Hague!

Who speaks to whom in the coming days?

There is no set procedure by which negotiations take place. Democratic convention sets out that the leader of the party with largest number of seats is in pole position to ‘initiate’ discussions, although, as happened in 2010, a number of potential-coalition discussions can occur at any one time. Therefore, if the Conservatives are the largest party, then their most preferable option would be a coalition with the DUP who are expected to secure between 8 and 10 seats. The second option would be to see what could be worked out with the Liberal Democrats. Although there is of course an outside chance that UKIP could have enough MPs to support them. At the same time, Labour can hold talks with the Liberal Democrats and/or the two nationalist parties, despite the fact that Ed Miliband has explicitly ruled out any formal arrangements.

When one coalition is able to command a majority in the House of Commons, then the Queen will invite the leader of the principal party to become Prime Minister. This process is initiated by the incumbent Prime Minister and serves as his resignation and, of course, as Sir Jeremy Heywood told the Political and Constitutional Reform Committee, the Queen must remain above party politics.

If no formal coalition can be agreed, then a minority government is the next option. As the incumbent, Cameron has the first opportunity to form this. If the Conservatives are the largest party then this makes sense, democratically. If, however, Labour and the SNP have enough seats to vote down any Conservative Queen’s Speech then Cameron’s position becomes untenable and he will have to resign as Prime Minister. This is on the provision that Ed Miliband can demonstrate that he could command the majority of the House – something that would be quite a challenge given Miliband’s clear declaration that there would be no deal with the SNP.

Could we have a second election?

In 2011, the Coalition passed the Fixed Term Parliament Act. This removes the ability of a Prime Minster to call an election when the polls look winnable (you may recall the fiasco of Gordon Brown’s Election That Never Was in 2007) and mandates that a General Election is held every five years. So, does this preclude a second election?

No – because in the UK, we have constitutional principle that no Parliament can bind the next and so the Act makes provision for two scenarios by which the House of Commons can be dissolved:

  • Firstly, by a ‘super majority’ of two-thirds of the House of Commons.
  • Secondly, if a motion that “That this House has no confidence in Her Majesty’s Government” is passed. In this instance, an alternative government has 14 days to form and pass a confidence motion or Parliament will be dissolved and a new election held.

For a full briefing on the FTPA the House of Commons Library note is, as ever, excellent.

This is all a far cry away from the simplicity of the clear majority governments of the 80s, 90s and 00’s. Many people have said that a minority government would plunge the country into chaos but I leave you with the sage words of the man who oversaw the formation of the Conservative-Liberal Democrat coalition, former Cabinet Secretary, Lord (Gus) O’Donnell,  “We didn’t know about coalition government [in 2010]. That turned out to last five years. Minority government, in theory, could easily last for five years under the fixed term parliament act, so I think it’s quite possible. I think people are underestimating the relative stability. But it does depend upon the nature of the numbers.”