Sir Humphrey’s constitution

The DIY British contstutional convention on a hung parliament.

The British general election tomorrow is likely to lead to a hung parliament. So what, constitutionally, happens next? Ah, there’s this:

16. Where an election does not result in a clear majority for a single party, the incumbent Government remains in office unless and until the Prime Minister tenders his and the Government’s resignation to the Monarch. An incumbent Government is entitled to await the meeting of the new Parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence. If a Government is defeated on a motion of confidence in the House of Commons, a Prime Minister is expected to tender the Government’s resignation immediately […}

17. If the Prime Minister and Government resign at any stage {…] the person who appears to be most likely to command the confidence of the House of Commons will be asked by the Monarch to form a government. Where a range of different administrations could potentially be formed, the expectation is that discussions will take place between political parties on who should form the next Government. The Monarch would not expect to become involved in such discussions, although the political parties and the Cabinet Secretary would have a role in ensuring that the Palace is informed of progress.

18. A Prime Minister may request that the Monarch dissolves Parliament and hold a further election. The Monarch is not bound to accept such a request, especially when such a request is made soon after a previous dissolution. In those circumstances, the Monarch would normally wish the parties to ascertain that there was no potential government that could command the confidence of the House of Commons before granting a dissolution.

So that’s all right then. Except that it isn’t. There are two big problems. The convention stated above gives first shot to the outgoing Prime Minister. He or she has ex hypothesi just lost an election, so the priority is not obvious. Why not give first whack to the leader of the party that has won the most seats?  If the other parties can form a majority coalition, they can still win a confidence vote and form the government. This seems to be the current Tory line. The Queen could also go straight to the person who looks likeliest from public information to enjoy a coalition majority: perhaps Gordon’s replacement as leader of the Labour Party.
The bigger problem is the source of the document: the Cabinet Office, i.e. the Civil Service, specifically Sir Gus O’Donnell, the Cabinet Secretary.  He is very plausibly reported to be in regular touch with the Queen’s and the Prime Minister’s Private Secretaries on the scenario, and probably consulted them on his paper. It is still a pure Civil Service opinion –
even labelled “draft”. The arguments for the guidance seem to be: (a) to ensure that there is always somebody in 10 Downing Street to respond to a crisis like a terrorist attack, and to feed the Chief Mouser; (b) to keep the Queen entirely out of it.

Humphrey, controversial Chief Mouser 1989-1998 , © BBC

Motive (a) is irrelevant – it’s a given that Gordon stays until somebody else moves in, and in any case the office of Chief Mouser is currently vacant. Motive (b) is peculiar. What is the point of an expensive monarch symbolising the continuity of the state if she can’t be asked to perform a simple task to that end?

No elected politician has SFIK been asked to sign on to Gus O’Donnell’s constitutional addendum: not the heads of the parties, not the chief executives of devolved Scotland, Wales, and Northern Ireland, not the Speaker of the House of Commons. It’s as strong as wet tissue paper. On Friday Cameron may have an incentive to challenge it. John Bercow, the Speaker, is a capable maverick with his own incentive to exploit the opportunity to enhance his own role and that of the Commons.

It all must look very strange to an American eye. You have this beautiful sacred piece of 18th-century constitutional machinery, like a contemporary ship of the line, with stunsails, sheets, chains, halliards, bowsprit, and hundreds of other bells and whistles like the Electoral College. Brits have Gus O’Donnell’s guesswork.  But a hung parliament may lead to proportional representation – the key demand of the Lib Dems – and in the slipstream a proper written constitution.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

8 thoughts on “Sir Humphrey’s constitution”

  1. I'll preface this by saying that my experience with this stems mostly from Canada, the other prominent Westminster system still in place, though we do have some more experience with minority parliaments. Nevertheless the points are the same. In any event:

    1) I don't think it's fair to characterize the summary above as "guesswork". In fact, that's as good of a summary of procedure for minority parliaments as I've read. Britain's (and Canada's) constitutional law is replete with unwritten conventions that have the force of law, such as those above. Whether it makes "more sense" to do something else is irrelevant. It might make "more sense" that the winner of the popular vote becomes President of the United States, but nobody cares because that is not the law.

    2) I can't figure out why you'd think the summary was written to keep the Queen out of it, when right there under point 18 it says "The Monarch is not bound to accept such a request" and in general the whole thing is full of guidance offered to her. It's worth remembering that the Sovereign wields considerable reserve powers, called royal prerogatives, that exist for precisely such an occasion as this. Canadian Governors-General have been called upon to do this more frequently (including q

  2. got cut off.

    2) I can’t figure out why you’d think the summary was written to keep the Queen out of it, when right there under point 18 it says “The Monarch is not bound to accept such a request” and in general the whole thing is full of guidance offered to her. It’s worth remembering that the Sovereign wields considerable reserve powers, called royal prerogatives, that exist for precisely such an occasion as this. Canadian Governors-General have been called upon to do this more frequently (including quite recently) and it's precisely the existence of these prerogatives that helped the country avoid a constitutional crisis.

    3)Finally, those who think Britain or Canada should have a written constitution (by which they usually mean a single document) always strike me as totally unimaginative. The Westminster conception of a constitution as a living thing made up of many parts is a beautiful creation, that provides both the consistency of fundamental rules and the necessary flexibility to overcome crises.

  3. "He or she has ex hypothesi just lost an election, so the priority is not obvious."

    No, he hasn't just lost an election. You're thinking like an American. He's just won the only election he's run in – the election for his own seat from his own constituency.

    The voters vote only for their own members. If a group of members can be assembled that is large enough to win a vote of confidence for the current government then it will stay in power.

    Forget about the parties and the government titles for a minute. All that stuff is ephemera. The actual legal working of the process is that the government will stay in power if more than half of the members of the House will vote for it to do so.

  4. PS- I don't see why you think a written Constitution is superior. One of the biggest problems we Americans have is that our written Constitution is virtually unamendable on any issue of importance. We've developed a work-around by allowing the Supreme Court to proclaim that the words mean things that they don't actually mean, but I don't see why that's better.

  5. I agree that Sir Gus' paper is not all guesswork. But the parts about granting a dissolution or trying again are based on very little practice. Until recently there wasn't much more in the public domain to go on than an anonymous letter to The Times by the then King's Private Secretary in 1950. As to the beauty of a flexible and evolving unwritten constitution vs. god-awful amateur night shambles, I think we may be about to find out.

  6. I agree with nd that there is Canadian practice, some of it not so recent (1926) and some very recent (2009), and a bit of brinksmanship in 1972 as well, and Australian practice too, about the right of the Queen's representative (and of course HMQ herself in the UK) to refuse a dissolution or to decide who gets to try to command the confidence of the Commons. In 1985 in Ontario the two opposition parties signed an agreement to keep one of them in power after an election produced a minority government, and after a vote of non-confidence in the party with the largest number of seats (which had been the government and which tried to hang on afterwards), the leader of the party with the second-largest number of seats took power for two years.

    There is no reason for the UK Parliament and Monarch and their advisors not to look to the Canadian and Australian precedents.

    There was considerable political debate in Canada in December 2008 about whether a coalition of the three opposition parties, which together had a majority of the seats in the Commons, could ask the Governor General (= Queen in the UK) to ask them to govern – via an invitation of the leader of the largest party to form a government, with the written assurance of the other opposition parties to support it. This was perfectly legitimate at law, though much of the public did not understand it. (That is separate from the question whether such a government would have survived for long, but it would have been reasonable for the GG to call on it. She chose not to.)

    Canada has a written Constitution, but it leads off by saying "similar in Principle to that of the United Kingdom", and that's what we've had to go on in the discussions of the options available to the Queen's representative. No Constitution can foresee every detail of future sticky situations in any event. (The Supreme Court has also found in it implied principles of federalism, including a right to secede in certain circumstance that is not mentioned in the text. I doubt that the government of the UK will want to be inspired by that one, though it's a very smart and sensitive decision in the Canadian context.)

  7. "PS- I don’t see why you think a written Constitution is superior. One of the biggest problems we Americans have is that our written Constitution is virtually unamendable on any issue of importance. We’ve developed a work-around by allowing the Supreme Court to proclaim that the words mean things that they don’t actually mean, but I don’t see why that’s better."

    Got that precisely backwards: "We" developed the work-around to deal with some issues where federal office holders wanted amendments the states wouldn't have agreed to. (Kind of like calling safe cracking a "work around") And the work around turned out to be so much easier than amending the document, those federal office holders no longer bother with the amendment process even where the states might be willing to ratify. Why bother? 'Ratification' by the Supreme court is virtually always a sure thing, and much faster.

    If they ever were denied something by the Supreme court that was genuinely popular, you'd soon learn that the amendment process isn't that difficult. But it's hard to imagine the Court refusing to adopt an 'interpretation' that was both wanted by Congress AND popular.

    It is, however, demonstrably possible for Congress to refuse to originate amendments which are widely popular, and would be ratified in a heartbeat if they ever reached the states. I think we'll be seeing a constitutional convention within a decade, as a response to Congress' longstanding blockade of popular amendments. Whether Congress and the Supreme court will permit the convention to accomplish anything is, of course, another question. (See the fate of the 27th amendment, rendered toothless by the Court because Congress didn't like it.)

  8. OK, naming a Downing Street civil servant that is by its very nature certain to ignore the desires and interests of basically anyone else except when they directly impinge on that civil servant's wellbeing "Humphrey", in 1989, is pretty darn funny.

    And whatever else you can say about Maggie, and lots of people can say plenty of things, apparently she managed to keep her Chief Mouser going until he was nearly twenty.

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