Tuesday 4 May 2010

Revealed: Tory strategy to pull Queen into political controversy if hung Parliament

Despite accusations of Conservative complacency in the run up to Thursday's General Election, a great deal of effort has gone into what happens if the result is not a clear cut one but results in a Hung Parliament with the Tories some way short of an overall majority.

Here is what has now emerged as the Tory plan:

Declare victory anyway.
Have the party's media allies strain every sinew to make that a self-fulfilling prophecy.
Insist on being given the keys to number 10 without having to talk substantively to any other party first - to avoid a coalition or any substantive policy concessions.
Make a partisan challenge to the civil service in seeking to overturn any existing constitutional convention or practice that might conceivably get in the way, or even slow this down a little.
Threaten to drag the Monarchy into political controversy for partisan advantage, by challenging the conventions designed precisely to avoid this.
Hold out against electoral reform, whatever the election result.
Threaten apocalyptic political and financial meltdown if anybody disagrees.

The strategy does not aim simply to speed up the Tory path to power if well ahead, with say 310 seats, where a Tory minority government is overwhelmingly the most likely outcome, and would probably take office very quickly in any event. The key objective of this strategy is to use the vociferous campaigning of the press - no doubt amplifying interventions from friends in the City - to argue that any negotiations between parties would be democratically illegitimate, without first putting the Conservatives into power, even (or especially) if Labour and the Liberal Democrats could between them muster a majority of both votes and Commons seats.

See David Cameron's interview with Monday's Independent - in which the Tory leader says "there is convention and there is practice and they are not always quite the same thing".

And now we have a more explicit outlining of an emerging new Tory constitutional doctrine in an extraordinary Guardian report on Tuesday - based on anonymous briefings from "senior shadow Cabinet members" - that the Conservatives intend to mount a partisan attack on existing constitutional conventions, and the Cabinet Secretary's protocols for handling a hung Parliament, even though a primary motivation for these has been to protect the Monarchy from being dragged into party political controversy.

The Guardian reports that:

Senior shadow ministers are making it clear that Cameron, who intends to lead a minority government if the Tories fail to win a parliamentary majority, is prepared to ignore the rules. These are designed to allow for a week of discussions between the party leaders on forming a coalition.

This audacious attempt to rewrite, during election week, the established constitutional conventions for partisan gain - relying on a lack of public knowledge in the first hung Parliament for 35 years; a populist media challenge to established rules which could be portrayed as fusty and old fashioned; and Whitehall's fear of offending a party which would be favourite to emerge in government anyway - could well provide an apt occasion on which to reapply the title of Chris Mullin's previous work of political fiction: the Tories appear to be advocating a very British coup, against the conventions and practices of our unwritten constitution at least.

Yet there are several fundamental contradictions and weaknesses in the partisan case which senior Conservatives are making for overturning existing understandings of our (uncodified) constitution so as to assume power before any substantial inter-party political negotiations take place.

First, it is surely quite unprecedented for a man who wants to be Prime Minister on Friday morning to have his senior frontbench colleagues launch a major - and anonymous - briefing effort to challenge the impartial Cabinet Secretary and the constitutional conventions 72 hours before the Election. The Cabinet Office guidelines were published in February, when the Cabinet Secretary gave evidence about them to a cross-party Commons Select Committee. If the Leader of the Opposition wanted to challenge the referee over the rules, he had ample opportunity to do so publicly and formally well before the election campaign began. (This is particularly surprising, given that the offside rule is applied more strictly at Eton than elsewhere).

Secondly, Shadow Cabinet sources surely wreck their own case when they complain of a fear that so-called "new rules" would allow the Prime Minister to follow the precedent of the actions of the Conservative Prime Minister in the last hung parliament 35 years ago.

The Tories fear Brown will use the new rules to follow the example of Edward Heath, who tried to hang on after the February 1974 election to broker a deal with the Liberal party. Heath, who won the most votes but secured four fewer seats than Labour, resigned four days after the election, after the talks broke down.

This much weakens the Tory claim: it demonstrates that these so called "new rules" were in the main an attempt to set out clearly what the existing constitutional conventions have long been understood to be. (Indeed David Cameron told The Independent he had studied these during his PPE course at Oxford in the 1980s, which again rather explodes the absurd claim that they have been invented by Sir Gus O'Donnell since Christmas).

A definitive account of February 1974 and the constitutional conventions for handling of hung Parliaments is contained in Peter Hennessy's book The Prime Minister. There was little political chance of Heath succeeding, but the claim he was acting outside constitutional precedent or convention has no basis at all. (Though had he asked for a second dissolution, it would have been rejected).

Hennessy writes that:

Heath informed the Queen that instead of resigning straight away he intended to try to strike a deal with the Liberals. He would stay on in No 10 over the weekend. The Palace was content with this. Until 1868 it was normal practice for a Prime Minister whose party had been defeated at the polls to meet Parliament and take defeat there too on a confidence vote or its equivalent before resigning ... Baldwin reverted to pre-1868 practice in January 1924, after losing the December 1923 election. As Lord Charteris told me later in a television interview: "the point that has to be remembered is that the Prime Minister remains Prime Minister until he resigns. That's the starting point anyway ..."

Labour's Shadow Cabinet were in effect in purdah: The previous afternoon, steered very much by Party Chairman and Shadow Foreign Secretary Jim Callaghan, they had, in Callaghan's words "decided we would not challenge Mr Heath; we would allow him to carry on and try to make any arrangement that he could. We did this because we were fairly satisfied he wouldn't be able to make such an arrangement ... The country had expressed its lack of confidence in the Conservative government ... I won't say it was improper of Mr Heath because there are no conventions on this matter. I think it was stretching the thing a bit for him ... I remember I took the bold step of saying we should allow Ted Heath to 'swing slowly in the wind'.

Thirdly, one of the major aims of the conventions has been to keep the Monarchy out of party politics.

This has traditionally been understood and accepted as a particular responsibility of parties which support a Constitutional Monarchy. It has certainly been a very keen focus of Buckingham Palace, which has always feared that being seen to exercise political discretion could significantly damage the Monarchy's standing "above politics" and broad support.

Yet the Conservatives say they would sacrifice that if there was an angle in it for them.

There is another factor. In no circumstances must the Queen be embarrassed or drawn into or suspected of being drawn into political strife or partisanship. This has always been and remains their joint number one rule (the other being that "the Queen's government must be carried on". [Former Cabinet Secretary] Lord Armstrong was speaking for all postwar 'triangles' when he told me: "In the hung Parliament situation, the Sovereign and the Sovereign's advisers - and, one would hope, the politicans concerned - would have as primary objectives to ensure that the government of the country was carried on, and that everything possible was done to avoid the Sovereign being put into a position where action had to be taken which might bring the Crown into the area of political controversy"
- Peter Hennessy, The Prime Minister: The office and its holders since 1945

The Armstrong quote comes from Hennessy's 1991 BBC Analysis programme 'The Back of the Envelope'. Despite or because of its title, Sir Robin Butler later described as "an encapsulation of the current constitutional thinking on the Queen's personal prerogatives". (The BBC ought to publish a transcript of that programme online this week). The 2010 O'Donnell procedures reflect this too.

Ironically, the anonymous Tory frontbencher attacks "the idea that a courtier like Sir Gus O'Donnell will decide this is straight out of the Victoria and Albert Museum". The explicit intention of that clumsy remark is less a (surely unconservative) thrashing of constitutional practice and history - for is not the idea of a new Prime Minister being commissioned by kissing hands at Buckingham Palace "surely straight out of the Victoria and Albert Museum" too - but rather to make an anonymous accusation that the Cabinet Secretary is guilty of party political bias towards Labour and Gordon Brown. Yet the real effect is to call for the Monarchy to immediately be drawn into party political controversy, rather than asking the political leaders and parties to negotiate, and to set out clearly to Buckingham Palace who would have Parliamentary support before an appointment is made, or otherwise to let Parliament make the decision on its return.

Fourth, the Hung Parliament rules already in effect favour an Opposition. The reasons set out by Peter Kellner in last week's New Statesman explain why that is also one of the lessons of February 1974. O'Donnell's rules make quite clear that the election "purdah" remains in place, so preventing a sitting Prime Minister making major decisions to affect the course of negotiations. The conventions are clear too that the existing Prime Minister can not expect a request for a dissolution to be accepted, until alternative possibilities for a government are exhausted, while a new Prime Minister could expect to be granted a new election on request.

Fifth, that makes the Tory claim that "This is a way of saying if we have a hung parliament why worry about politicians? It is mildly anti-constitutional" entirely disingenuous. What the comment is trying to engineer is that David Cameron should receive the keys to number ten Downing Street before having to talk to the other parties in a Hung Parliament. (The strategy would be to dare other parties to vote him out and trigger a General Election).

"Why worry about politicians" is clearly the policy that this approach is intended to establish, not to avoid. David Cameron would like an invitation to form a government asap; he does not intend to sit around "inviting" other people to join it other than by voting for him at the ballot box. Nick Clegg may have misunderstood his copy of the Tory manifesto.

So it turns out that the Conservatives - the party traditionally least in favour of a written British constitution - now challenge the well-established conventions of an uncodified constitution as inoperable if they may not seem to be in their own immediate, partisan interests. This suggests that the value of an unwritten, uncodified constitution is that it can be bent to the interests of the powerful - and so offers a powerful example of the case for codification. The Conservatives are the only party with a staunch, unthinking support for the current electoral system - yet also wish to maintain that position while declaring some possible outcomes of the system as lacking in democratic legitimacy.

It seems clear this emerging Tory constitutional doctrine is contradictory, deeply flawed, ahistorical and enormously self-serving.

Still, that doesn't mean it won't work.

There will be an enormous effort - shared between the Tory leadership and their press allies - to drive and frame the broadcast news "narrative". Anybody who thinks that the right-wing newspapers have behaved in a hyperpartisan during the campaign itself may well find, by the morning after May 6th, that they ain't seen nothing yet.



There have been suggestions that the Monarchy could be insulated more effectively in politically uncertain situation. The Fabian Monarchy Commission, whose 2003 report provides the most detailed recent study of the Monarchy's political role, noted the established convention, and proposed a statutory change to clearly place responsibility with Parliament.

The Head of State has responsibility for appointing the Prime Minister. The appointment is again governed by convention giving the incumbent Prime Minister the first opportunity to form a government rather than the leader of the largest political party in the new Parliament. In most circumstances, the matter is straightforward ... In such cases, the the leader of the majority party is invited to take office, with a losing incumbent making way.

However, clear majorities do not always occur and a minority govenment was formed as recently as 1974. In these circumstances, or in times of national crisis necessitating a 'grand coalition' or National Government, the head of state has genuien discretion. There are clearly cases for having a neutral mediator in the parliamentary process of forming a government where the decision is not clear cut. However

This is defended by some as an essential contingency power. But there are other constitutional monarchies where the Head of State has little or no role in these circumstances. In Sweden, the monarch does not appoint the Prime Minister at all, while the Dutch Monarch, acting on the recommendations of political leaders and the Speakers of the Houses of Parliament, simply appoints a senior political figure to determine which of the parties are prepared to work in coalition together ...

Consistent with our principle of depoliticising the role of the Head of State, we believe that the role should simply be to recognise as Prime Minister whoever can command a majority in the House of Commons. The election of Prime Minister should be the first item for a new Parliament or in circumstances where no Prime Minister is in office, and the Speaker should manage the voting process. This would require codification in Statute of the process by which Prime Ministers are appointed and governments formed. (This would incidentally have the additional benefit of formalising the position of the Prime Minister, which at present is not a statutory position at all).

The Cabinet Office hung Parliament guidelines can be seen as a non-statutory approach to move some way in the same direction, from a similar concern to depoliticise the Monarch's role. The Conservative proposal is to remove the power from Parliament - perhaps intending to place the constitutional power to call the election in the hands of their good friends, Rupert Murdoch and Paul Dacre instead.


AncientBriton said...

The Tory's tactics remind me of those of Christina Rees and her chums in WATCH as they turn the Church of England into a feminist dominated secular organisation.

Braveheart said...

"It seems clear this emerging Tory constitutional doctrine is contradictory, deeply flawed, ahistorical and enormously self-serving."

A fair summation of the Tories' approach to any previously sacrosanct "law" or "rule" that they support as conservatives but brush aside when it suits them.

No change there, then, Dave.

Sunder Katwala said...

A comment from Paul Cotterill

"Your suggestion that the City may be in cahoots with the Tories to allow them to seize the keys to No. 10 is strengthened by the decision to open the bond markets at 1am on Friday morning to allow traders to sell heavily if it's looking like a hung parliament, thus allowing the Tories to stake the claim that only they can keep the markets steady.

See post at Though Cowards Flinch

Rich said...

I agree with the Fabian Society idea that the rules need to be codified and *Parliament* should decide who forms a government.

The worry I have is that Cameron will form a minority government and Labour will abstain and let him. What unites Labour and Tory is a desire to keep the FPP gerrymander (or a thinly disguised version, like AV) going.

BrianB said...

Thank you for an important, decisively well documented and cogent article. I have been trying in recent weeks to publicise in my blog and in LabourList the little-known procedures in the event of a hung parliament, under which whatever the results in votes and seats, Gordon Brown will be both entitled and obliged to continue in office until he has met parliament as prime minister and ascertained by the vote on his Queen's Speech whether he still commands a majority in the House. For pointing this out I have been reviled from the Tory right as unscrupulous, undemocratic, out of date and guilty of allowing my pro-Labour prejudice to warp my judgement. If the situation I have been envisaging arises, the Tory press (along with the right-wing establishment and above all the markets) will scream blue murder, exactly as you predict in this post. It will require strong nerves for Brown to go through with it.

The point for all sensible democrats to hang on to is that if the centre-left (Labour plus LibDems and perhaps Greens and some of the nationalists) together command a majority of Commons seats, that entitles them to form a government led by the leader of the largest centre-left party. Cameron won't be able to claim plausibly to have "won the election" if the combined centre-left parties have an overall majority in the house of commons, or even more seats combined than the Tories and Ulster Unionists.

I am about to put up a blog post at http://www.barder.com/ephems/ suggesting the outline of Labour's best line to take with the LibDems after the election has produced a hung parliament, if it does, and before parliament meets, while Brown and other Labour ministers sit tight, refusing to yield to the unconstitutional clamour for their resignation.

I hope other bloggers will give Sunder's post here (and my comment on it!) the widest possible publicity, reposting it, tweeting about it, FaceBooking it, etc.


Chris Brooke said...

This seems bonkers to me.

More over here:


Stuart White said...

Brian: don't you think there is a world of difference, morally, between (a) Brown attempting to plod on as leader of a minority Labour government and (b) Brown assisting in the formation of a Lib Dem - Labour coalition government? What is so odd about your view is that you seem to think Brown is constitutionally obliged to do (a). I can't see that Sunder has anywhere said that.

David Landon Cole said...

Fascinating post.

It strikes me that we would do well to adopt the practice of just about every other country where there is a delay between the results being announced and the new MPs taking up office - say a couple of weeks - so that there is continuity of government. This seems to be what will happen this time, but I'd very much rather that it wasn't written down on the back of an envelope.

Ultimately, I'm not sure that David Cameron can actually do anything to force his way into No. 10 as, constitutionally, the seals of office remain with Gordon Brown until and unless he resigns or loses a vote on the Queen's Speech.

BrianB said...

@Stuart White: The Cabinet Office rule-book (draft of chapter 6, approved by the House of Commons Select Committee on Justice and drawn up in consultation, I understand, with the party leaders and with constitutional experts) lays it down that after an election the incumbent prime minister has a duty, as well as a right, to remain in office until there's clear and incontrovertible evidence that someone else is definitely in a position to command majority support in the house of commons. The reasons are (1) to avoid damaging public confidence in the political impartiality of the monarch, and (2) to ensure that there is always a functioning government, in case of a national emergency.

In the situation we are all envisaging there's anyway likely to be a clear overall majority (in both votes and seats) for the centre-left parties, including Labour and the LibDems but also probably Respect, any Greens and some nationalists), which clearly gives a democratic mandate for the incumbent Labour government to remain in office with at least the acquiescence of the other elements of the centre-left majority. In answer to your question, I see no moral difference between that situation on the one hand and the formation of a formal LibDem-Labour coalition on the other.

Please now see http://www.barder.com/2526/ which makes some additional points that are relevant.


Ben Raue said...

This is almost exactly the same strategy pursued by the Tasmanian Liberal Party after the March state election. The election produced a result of 10 Labor, 10 Liberal and 5 Greens after an election using proportional representation.

After ugly experiences of Labor-Green government in 1989 and Liberal-Green in 1996, both parties vowed to not talk to the Greens, and the Labor Premier promised to not seek government if he ended up with less seats, or with the same number of seats but less votes.

Bartlett (the Labor premier) went to the Governor and advised him to commission Hodgman (the Liberal opposition leader), but the Governor (after the Greens came out to say they would support a Labor government but not a Liberal government) told Bartlett to test his numbers on the floor of the Parliament.

After that the Labor Party, while still insisting they would not do a deal with the Greens, unilaterally offered ministries to two Greens for the first time ever in Australia (or anywhere in the English-speaking world outside of Ireland), and have effectively locked in a deal with the Greens.

So in short, the Liberals pursued a strategy of using the conflict between the two other parties to govern without trying to form a majority, and it failed dismally.

It may not work that way in the UK, but it shows the big risk in such an approach.

The constitutional convention is clear: if there is no clear majority then the sitting PM has to test his numbers in the Parliament before the Opposition is given a chance.

Stuart White said...

Brian: if you can't see the difference between a minority Labour government that - in your words (from your original posts on this issue) - dares the Lib Dems to vote it down, and a coalition government based on a mutually agreed set of objectives, then you need to take a second look. The former is an attempt by a minority sect to cling to power when it has been voted out, the other (given likely seats and vote shares) is a democratic government.

Bangdoon said...

It is evident that our shambolic constitution is unfit for purpose. I support the calls made by Republic (www.republic.org.uk) for us to have a written constitution and an elected head of state.

Guido Fawkes said...

Jim Callaghan "there are no conventions on this matter."

BrianB said...

@Stuart White: Of course there's a difference between (a) a minority government which a smaller party permits to remain in office by not using its votes to defeat its programme and legislation, either ad hoc or in accordance with some semi-formal pact, and (b) a coalition in which both parties hold seats in the Cabinet. I didn't say there was no difference between the two: I said there was no moral difference between them.

I personally don't mind whether there's a Lab-LibDem coalition if there's a hung parliament, or a semi-formal pact that allows Labour to continue in office with conditional LibDem support. I suspect that the LibDems, if they decide against putting Cameron into No. 10, might prefer a pact to a coalition: it avoids tarnishing their image by a close association with Gordon Brown, it gives them freedom to criticise aspects of the government's policies that they don't like (instead of being bound by collective responsibility for everything done by a coalition Cabinet), and it makes it easier for them to switch horses in mid-stream if the government departs too radically from informally agreed policies. Labour might also prefer a pact to a coalition, fearing that having to square Clegg, Cable and Huhne (and perhaps others) to get their acquiescence in every Cabinet decision, as well as having to give them major departments of state, might make firm and decisive government, in the middle of a major economic and fiscal crisis, virtually impossible. In practical terms, therefore, I see a considerable difference between the two arrangements, and quite strong grounds for guessing that both sides might opt for a pact rather than a coalition.