So who gets to be Prime Minister?

Electoral Reform Society,

Posted on the 6th May 2015

In 2011 the Fixed Term Parliaments Act was passed. Setting aside its merits or demerits, the politics behind its introduction and the decision to fix the terms at five years, it is a piece of legislation whose true impact will only be known after May 7th and analysis of which indicates some disagreement as to its effect.

What complicates this short piece of legislation still further is that it must interact with both longstanding unwritten constitutional conventions, the Cabinet Manual (itself only in draft in 2010) and politics – that is to say how the politicians decide to behave, what they consider to be in their own best interests, whether they think they can win a vote in the House of Commons, and how they perceive the expectations of the public.

That said, looking at the conventions, the Cabinet Manual and the Fixed Term Parliaments Act it is possible to produce an assessment of what ‘should’ happen in the (very likely) event of a hung parliament next Friday.

In my view, unless one of either the Conservatives or Labour wins a majority (as mentioned, very unlikely), this is what happens after the election:
David Cameron is still the Prime Minister. As the incumbent PM he has an opportunity to try forming a Government. Regardless of whether he negotiates a coalition or other deal with another party or parties, he has the right to introduce a Queen’s Speech to the House. If he loses the vote on that Queen’s Speech, it is a constitutional convention that he resign. Of course, if he knows he’s going to lose a vote he might just resign. Equally, if Ed Miliband is perceived to have ‘lost’, he may concede.

Meanwhile, Ed Miliband may well have been having his own negotiations and at this point he gets an opportunity to follow the same path.

If Ed Miliband cannot get his Queen’s Speech to pass either, then (and only then) we enter Fixed Term Parliaments Act territory. The Act sets out two very precise situations where parliament can be dissolved and a second election called. The first is if the House agrees to call an election and that motion passes with a ‘super-majority’ of two thirds of MPs. The second requires a motion of no confidence in the sitting Government to be passed with a simple majority. This triggers a 14 day period in which a motion of confidence in a new (or slightly amended) Government must be lodged and passed. If such a motion is not lodged, or passed, then we go to an election.

Of course, this all rather assumes that the people, the markets, the Queen, and the other parties in the House of Commons, will put up with this potential uncertainty.

What does this confusion teach us? Perhaps most of all, that the voting system of First Past the Post is just not fit for purpose in a multi-party era. A more proportional voting system, designed to produce rainbow parliaments, would mean the conversations about collaboration and possible coalition would be part and parcel of the election campaign, not some ethereal collection of analysis, guess work and hope in politicians behaving sensibly.

Further reading
The Fixed Term Parliament Act 2011
The Cabinet Manual
Catherine Haddon from the Institute of Government on the (Not So) Fixed Term Parliaments Act
Professor Vernon Bogdanor on What happens next in a hung parliament
Professor Adam Tomkins on a fixed term hung parliament
Carl Gardner on constitutional conventions, a hung parliament and the Fixed Term Parliaments Act
Petra Schleiter and Valerie Belu on ‘recognition rules’ and the conditions under which it is normatively most appropriate to adhere to a rule which privileges the incumbent, the largest party, or the relative election winner
Philip Cowley on different post-election scenarios
Philip Norton on the FTPA and votes of confidence

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