A day of constitutional chaos...what now?

The shock result of a hung Parliament has left British politics in chaos. The Conservative Party have made a deal with the DUP and Theresa May has gone to Buckingham Palace to seek permission from the Queen to form a government. Although this is more to do with shoring up her political position than adherence to constitutional principles.  As the final results rolled in there was much speculation about who could, would and indeed should form a government. Whilst there are procedures laid out to be followed in such an event, they rest solely on convention, meaning that they could simply be ignored. At times like this it is more apparent than ever that we need a written constitution.

As the situation unfolds over the coming weeks and months here’s what to look out for:

  • The Queen’s speech - the government will most likely need to win a vote on this to stay in power.
  • The nature of the deal made between the DUP and the Conservatives
  • The transparency of the deal/coalition, are there new mechanisms put in place?
  • How the government will be scrutinised during Brexit negotiations

Now here are the answers to some key constitutional questions:

Who decides who is Prime Minister?

Guidance on how a government should be formed in the event that no party commands an overall majority can be found in the cabinet manual. This was created by the civil service in 2010 in light of the experience of the coalition negotiations after that hung parliament. This is the first time that we have had any clear rules about what should happen in this situation but as it is not law, there is no legal obligation to follow this guidance. So what does it say?

Earlier today Theresa May visited the Queen to ask if she could form a government, but she didn’t actually need to. In the event of a hung parliament the incumbent government - that’s the Conservative party in this case - is entitled to remain in office until the Prime Minister and/or the government resigns.

The government is appointed by the Queen under royal prerogative. Historically this meant that the Queen could pick whoever she wanted as successor. Now the cabinet manual states that if there is any political uncertainty it is the responsibility of the political parties to tell her who to appoint. As the sitting Prime Minister is the Queen’s advisor, it is their duty to make a recommendation on who to appoint.

What if the government can’t command a majority in the House of Commons?

The cabinet manual also says that the government can wait until the new parliament has met to see if they are able to command the confidence of the commons. The first test of this will be the Queen’s speech. If the government isn’t able to get a majority of votes and pass their Queen’s speech and there is a clear alternative then they are ‘expected to resign’. Note the word ‘expected’. It is unlikely, but it is entirely possible that a government could simply refuse to resign even if it couldn’t pass anything through Parliament. Without a written constitution, there is no law saying they have to or legal obligation compelling them to do so. We find this worrying.

Can the other parties try and form a government?

The previous government has the right to try and form a new administration but there is nothing to stop opposition parties from negotiating at the same time, either with the governing party or each other.  However it is up to the government whether or not opposition parties have access to support from the civil service and even access to government buildings to hold meetings. This gives the governing party a lot of unchecked power and is certainly something that Unlock Democracy thinks should be reviewed.

If the government didn’t resign after losing a vote on the Queen’s speech then it’s highly likely that the opposition would hold a motion of no confidence. The opposition parties would then have 14 days to try and form a new government. If they failed an election would be called.

What kind of government could be formed?

  • Single party minority - the biggest party may be supported by a series of ad hoc agreements
  • Inter-party agreement - Where the larger party promises to take on some of the policies of the smaller party in exchange for them supporting the larger party in votes of confidence, often known as ‘confidence-and-supply’
  • Formal coalition - Like the Tory-Lib Dem coalition in 2010, this usually consists of ministers from more than one political party.

What do we know about the deal?

Currently the nature of the deal the Conservatives have made with the DUP is unclear; some form of confidence and supply seems most likely. We also don’t know what was agreed and what terms the deal is subject to. This is particularly worrying as it is possible that they may have pledged their loyalty in exchange for material favours from the UK government such as increased spending on infrastructure in Northern Ireland or keeping the triple lock for pensions in Northern Ireland only. In the 2015 general election they apparently had a 10 point policy wish list to support a coalition government. It is important for democracy that the public are able to scrutinise any deal, but as it stands there are no requirements for disclosure.

There are also questions about mechanisms for accountability and transparency of agreements made between the two parties throughout this Parliament. Previous confidence and supply deals have evaded appropriate scrutiny.  For example the Lib-Lab deal in 1977 operated on the basis that the Liberal Party would support Labour on confidence motions in exchange for consultation on policy matters. Much of this consultation took place through a Joint Consultative Committee (JCC). The then opposition Conservative Party called for accountability in Parliament so that they could ask questions about what has been discussed and agreed in the JCC. However, the then Prime Minister James Callaghan refused, stating that they were intra-party discussions not governmental and so not subject to Parliamentary scrutiny. This was despite the fact that the JCC was supported by the civil service. Although accountability and scrutiny mechanisms have improved since the 70s, particularly with the creation of select committees, we must ensure that there is public and parliamentary scrutiny of the present and future agreements of the Conservatives and the DUP.

What does this mean for Brexit?

The DUP support Brexit and it is unlikely that the election is going to change the government’s position on Brexit. The only public statement regarding the DUP demands for supporting a Conservative government have been about Brexit.  There had been some speculation about creating a special status for Northern Ireland to prevent Brexit creating a hard border in Ireland which would undermine the Good Friday Agreement. The DUP is opposed to this as they believe this would separate it from the rest of the UK.

Although the election result may not signal a significant shift in Brexit policy is does call into question the level of parliamentary involvement in the Brexit process. This election was called specifically to give a strong mandate for a Brexit negotiating position - even if that position was not made clear in the campaign.  The fact that we now have a hung parliament means that there is no mandate and suggests that Parliament should have a greater role in the negotiations and in scrutinising the Brexit process. Unlock Democracy will be publishing our report on how we think this can be done shortly.

Will there be a second general election?

General elections can still only be called according to the terms of the Fixed Term Parliaments Act 2010. There are three things that could happen to trigger it

  • Motion of no confidence - the house could pass a motion of no confidence by a simple majority. The other parties would then have 14 days to try and form a government and get a vote of confidence. If they weren’t able to, then a general election would be called.
  • Motion to call an election - the house would need to pass a motion by 2/3rd majority to call an election. This was the mechanism through which this election was called.
  • Scrap the Fixed Terms Parliament Act - the FTPA could be amended or replaced. Despite it being a popular call among Conservative MPs, the Act can’t simply be scrapped. It replaced a prerogative power so if you repealed the Act there would be no means of dissolving a Parliament.

Will the Tories be able to pass laws that only affect England?

Devolution is still an unsolved problem in the UK. Unlike Scotland, Wales and Northern Ireland England doesn’t have it’s own Parliament or Assembly. When laws are passed that only affect England something called English Votes for English Laws (EVEL) comes into effect. This means that only MPs for England can vote on these issues. The Tories do have a majority in English seats, they hold 297 of 530, but we could very easily be in the weird situation that a government could pass laws in the UK but not if they only affect England.

 

At Unlock Democracy we think the rules aren’t clear enough, and also aren’t enforceable. Our piecemeal unwritten constitution leaves gaping holes on some really important matters. We rely heavily on political conventions which can be easily broken. We need a written constitution for the people, by the people.

For more information on parliamentary process during a hung parliament and minority government read the Hansard Society’s latest report ‘A Numbers Game: Parliament and Minority Government’