Initially, the Tories’ current campaign strategy – which centres on various forms of shroud-waving at the prospect of a Labour/SNP government – left me genuinely puzzled: even granted the premise (which clearly I don’t share), I couldn’t see any logic to it at all. “A Labour government would rely on SNP votes, therefore you should vote Tory”? How could that possibly work? The implicit comparison is between a Labour arrangement (of whatever sort) with the SNP and a Tory majority, but surely that’s a false choice. There isn’t anything magical about a Tory vote that makes it capable of bringing about a single-party government; the Tories, just as much as Labour, are going to be fishing for allies in the 80- to 90-strong ‘small parties’ group. And the attacks on a potential SNP lash-up remind us that, unlike Labour, the Tories have no hope of making allies of the majority of that group – if only because the majority of that group will almost certainly be SNP. The Tories will be able to call on any Kippers and Official Unionists, as well as the Lib Dems, the DUP and Alliance (NI); Labour will be able to talk to the SNP, Plaid Cymru, the SDLP, the Green(s) and perhaps even Respect – as well as the Lib Dems, the DUP and Alliance (NI). Potential Tory allies (rough estimate): 30, giving a bare minimum of 296 Tory MPs for a (fragile) majority. Rough estimate of potential Labour allies: 80, giving a minimum Labour group size of 246. Most current forecasts have both parties on between 270 and 280 MPs. That would be fine for Labour – with the SNP on their side they might even be able to dispense with the Lib Dems – but it’s no good for the Tories: barring a massive revival of Lib Dem fortunes, 280 Tory MPs would not be able to form a government with any imaginable combination of allies.
The brute facts of current polling – including current polling in Scotland – are extremely unkind to the Tories, and this situation is unlikely to change unless they find and broadcast some positive reasons for voting Tory in short order. This being the case, at first I was baffled by the amount of time and energy they were devoting to pointing out, in effect, how well the SNP are doing and how unlikely it is that they’ll support the Tories after May 7th. As time’s gone on, though, the message has become more sophisticated. The initial message, focusing on how undesirable a Labour/SNP government would (supposedly) be, has been supplemented by three more: an argument that a Labour/SNP government would be, not merely undesirable, but inherently unstable and unworkable; an argument that the largest party (and/or the one with the largest popular vote) should get first go at forming a government; and – doubling down again – an argument that a Labour minority government sustained by the votes of the SNP would somehow be unconstitutional or illegitimate.
Nick Clegg – who on current form is surely destined for a Tory seat in the House of Lords – has spelt it out, speaking to the FT and the BBC . As well as “rul[ing] out any arrangements with the SNP” on political grounds, Clegg dismissed the SNP as essentially untrustworthy, arguing that a coalition dependent on the SNP for its majority would be “on a life support system, where Alex Salmond could pull the plug any time he wants”. Governmental stability seems to be a preoccupation for Clegg, but on closer inspection stability doesn’t seem to mean the numerically-guaranteed ability to win votes and pass laws. Rather, stability and instability seem to be intangible qualities deriving from the conditions under which the government was formed: a blessing (or curse) bestowed on a government in its cradle: “You cannot provide stability, you can’t take difficult decisions, if people are constantly questioning the birthright of a government”. We are told that “Liberal Democrats will ensure that any government is legitimate and stable”, which is nice of them. What this actually means, though, is something quite specific and potentially rather ominous.
“That means that, in a democracy, the party with the greatest mandate from the British people – even though they haven’t got a majority – seems to me, to us, to be the party that has the right to try to assemble a government first. They may not succeed, but they should surely be given a chance to succeed.”
Clegg would only talk to the second party if the largest party’s coalition-building efforts had failed. And woe betide any second party which stole a march on the Lib Dems and put together a parliamentary majority without waiting to hear from them. Even with Lib Dem involvement, Clegg suggests, a “coalition of the losers” could lack “legitimacy”; without them, presumably, legitimacy would be a lost cause. A second-placed Labour Party might be able to get the numbers, but it wouldn’t have the birthright.
This all deserves a bit of analysis. The comment about Alex Salmond pulling the plug is odd, to say the least. Any large minor party in a coalition (e.g. the Lib Dems, 2010-15) has precisely this power; the Fixed Term Parliaments Act makes it less straightforward to use, but obviously this would apply to the hypothetical Labour/Lib Dem/SNP coalition as well as the actual Tory/Lib Dem one. What Clegg seems to be telling us here is that not all minor parties are like those rascally nationalists: once the Lib Dems have chosen their coalition partner, they will never defect. Which is nice, I suppose, although it doesn’t seem like terribly good politics. (Or perhaps it’s simpler than that. If we take into account Clegg’s reference to Labour’s “frothing bile” towards the Coalition – a line which goes back to 2010 – perhaps what he’s saying is simply that he has chosen his coalition partner, and will never defect.)
Secondly, is it in fact difficult to get things done when – or rather because – a government is seen as lacking legitimacy or having its ‘birthright’ challenged? Setting aside other sources of difficulty, such as a small majority or a divided governing party – which would make it hard to win votes whether the government’s birthright had been impugned or not – I can’t think of any examples. The outstanding example of a government having its creation called into question is surely the election of George W. Bush in 2000, and that controversy doesn’t seem to have had any long-term effects at all. Admittedly, the question was officially resolved in fairly short order, but many opponents of Bush didn’t think the book was closed; I remember seeing “Re-elect Gore” .sig quotes months afterwards. The effectiveness of the government doesn’t seem to have been impaired. If we get away from government as a whole and look at specific government policies, Thatcher and Heseltine mobilised millions of people against pit closures, which went ahead anyway; Blair mobilised millions against British involvement in the second Iraq war, to no effect. (Both Blair and Thatcher did eventually step down, but not for another four and five years respectively.) Conversely, if we think in terms of questioning the ‘birthright’ of an individual political leader, we need look no further than the MP for Doncaster North: the legitimacy of his election to lead the Labour Party has been weighed and re-weighed by the right-wing press, and found wanting every time. Not only is Ed Miliband still the leader of the Labour Party, he has the distinction of being the leader of the Labour Party who broke with the Murdoch press and halted a US-led drive to war with Syria – not the sign of somebody who “can’t take difficult decisions” for all the awkward questions people keep asking.
The idea that the SNP would have blackmail power over a minority government is an odd, sensationalist misrepresentation of the position any junior partner occupies in that situation, including the Lib Dems over the last five years; there’s no reason to believe an agreement with the SNP would be any more volatile than the Tories’ agreement with the Lib Dems, assuming of course that an equally binding agreement was reached. (If the larger party doesn’t offer the SNP an agreement, but challenges it to support a minority government, volatility is guaranteed – but that’s not the SNP’s doing.) The idea that the ‘birthright’ of a government needs to be unimpeachable if the government is to operate is even odder. In fact, this doesn’t seem to have any basis in reality at all: as long as the government can get things done, how it came into being doesn’t matter.
On inspection, Clegg’s idea of securing the birthright of the next government seems to boil down to the slightly more mundane idea that any minority government should be led by the largest single party: “the party with the greatest mandate from the British people” is “the party that has the right to try to assemble a government first”. Perhaps Clegg’s undertaking that “Liberal Democrats will ensure that any government is legitimate and stable” simply means that the Lib Dems will refuse to join any coalition not led by the largest single party – and will denounce any such coalition formed without them. I’m sure we’re all lucky to have such guardians of constitutional rectitude to hand. Or are we? This government has, unusually, published a manual documenting how the government works – the two houses of Parliament, the Cabinet, relations with the devolved governments, the works. What the Cabinet Manual says on this topic is
Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.
it remains a matter for the Prime Minister, as the Sovereign’s principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.
An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.
Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government.
And, er, that’s it. As you can see, the ‘largest party goes first’ principle isn’t there; it’s a reasonable description of the Lib Dems’ behaviour in 2010, but nothing in constitutional principle made them do it. Nor will they be able to claim constitutional backing for such an approach this year. Interestingly enough, what we may call the Clegg Principle did appear in a draft of the Cabinet Manual, but it was removed in 2011 (Tristram Hunt, who is a historian and knows precedent-setting when he sees it, referred to this as a “Liberal Democrat attempt to change our constitutional procedures”). There are many ways to approach coalition formation: we could argue that the ‘formateur’, charged with pulling together a coalition of its allies, should be the party with the best chance of gaining an overall majority; or we could give the role to the party with the main responsibility for the previous government falling; or we could start by eliminating any parties whose vote has dropped since the previous election, then apply one of the other tests. Alternatively, perhaps the formateur should (as Clegg says) be the party with the ‘greatest mandate’, but this in turn could mean a number of things: the largest single party; the party with the highest vote; the party whose vote has risen the most in absolute terms; the party whose vote has risen the most in proportion to its previous vote… I very much doubt that’s an exhaustive list of approaches. The idea that a coalition is illegitimate if it’s not centred on the largest single party, or even that the largest party should always get the first go at forming a coalition, is “absurd” (in the words of Vernon Bogdanor, who knows this area fairly well).
In reality there is no reason why a government should not be formed excluding the largest single party, and in some cases this may be a very good idea: the second party may have the highest vote; its vote may have risen the most; and it will almost certainly have some responsibility for the situation in which the previous government is unable to carry on. Most importantly, it may have the best chance – or even the only chance – of gaining an overall majority. Most of these things look like being true of the Labour Party on May 8th, even if it doesn’t have the largest number of seats (although I hope it will). It may also be the case that Labour needs the Lib Dems’ support to achieve an overall majority (although I fervently hope it won’t). Even in that unfortunate situation, however, we can be fairly sure that the weight of the minor parties would be more or less unchanged. This in turn means that the Tories, even with more seats than Labour, would be a long way short of a parliamentary majority – and that it would be significantly easier to form a majority with the SNP than without them. For Nick Clegg to refuse Labour his party’s support in that context would be, at best, to usher in a ramshackle Tory/UKIP/DUP/Lib Dem alliance, which would struggle to agree any policies – let alone to get then through the Commons. A more likely result would be a Tory/Lib Dem minority government, permanently a couple of votes short of a majority, surviving from one vote to the next on temporary alliances and defections. To take that choice on the grounds that a Labour/SNP/PC/Green/Lib Dem majority government would be unstable is enough to make a cat laugh.
The Tories – and their allies – seem determined to stay in power after May 7th, majority or no majority; arguments to the effect that re-electing the Coalition would exemplify stability, legitimacy and adherence to constitutional principle are ringing increasingly hollow. Which, perhaps, is why the assault on the legitimacy of the next Labour government has taken a new and nastier turn, with the outright delegitimation of the SNP. But I’ll stop here and cover that in the next post.