When several alternative governments are viable, negotiations are in practice guided by constitutional principles that determine which actors are asked to form the government and in what order. These principles are referred to as recognition rules in the field of comparative politics and they are often central in narrowing a range of potential government formation options decisively.

In the UK, the prime minister designate is appointed by the sovereign and asked to form a government. The monarch is expected to discharge this role in government formation without becoming involved in any negotiations. This is not difficult when a single party commands an outright legislative majority so that the prime minister designate is directly identified by the election result. However, in hung parliaments, the task of naming an appropriate government formateur often involves political choices. Moreover, who is selected as the formateur can have important consequences for the nature of the government that forms. In the past, the UK has applied a range of different principles to select formateurs. The problem is that these principles are potentially contradictory. The need to resolve the contradictions is becoming increasingly pressing in the context of long-term changes in electoral behaviour, which make it unlikely that the hung parliament of 2010 will remain an isolated outcome.

Two government formations, two different principles

The UK’s post-war history of government formation negotiations is short. Before the 2010 election, which gave rise to the current coalition, the need for negotiations had arisen only once, following the February 1974 general election which also resulted in a hung parliament. Edward Heath, the incumbent prime minister, remained in office for four days, attempting to form an administration by offering coalition participation to the Liberals. Only when these negotiations failed did Heath resign, and Labour, the largest party by five seats, was invited to form the next government. At the time, the choice to entrust the incumbent prime minister rather than the leader of the largest party with the first attempt to form a government had cross-party approval. Yet, politicians followed a different guiding principle in 2010, when Nick Clegg, the Leader of the Liberal Democrat Party, stated that the party with the most votes and seats should have the initial say on forming a government. He then proceeded according to that view and negotiated primarily with the Conservatives, who had won 48 more seats than the incumbent Labour Party. The contrast between these two approaches to negotiating government formation concerns the nature of the UK’s recognition rules.

Recognition rules: importance and principles

Recognition rules are the constitutional principles that determine which actors are asked to form the government – i.e. to assume the role of the formateur and to act as the prime minister designate – and in what order. These constitutional rules are consequential. They condition the probability with which different parties enter the cabinet, affect a cabinet’s majority and coalition status, and may also have an influence on the relative advantage of different parties in securing key cabinet posts (formateur advantage). As a result, a country’s recognition rules can significantly influence its politics.

Scholars have identified six principles which European democracies use to select a formateur. Five of these principles have at some point been invoked in the UK. Only some of them are reflected in the Cabinet Manual, which is currently the most comprehensive guide to the laws, conventions and rules on the operation of government.

The principle that is most frequently applied in the UK is the majority principle. It is regarded as a clear constitutional convention. As the Cabinet Manual states, governments that retain their parliamentary majority in an election normally continue in office. Moreover, ‘[i]f the election results in an overall majority for a different party, the incumbent Prime Minister and government will immediately resign and the Sovereign will invite the leader of the party that has won the election to form a government’ (§ 2.11).

If the incumbent resigns, an alternative to the continuation rule must be invoked. The Cabinet Manual specifies that alternative as follows: Upon resignation of the incumbent, ‘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’ (§ 2.8). This is the gravitational principle, according to which the person mostly likely to succeed at the task is entrusted with forming the government. It emerged as a recognition rule in the UK during the middle of the 19th century, when the two-party system in place at the time was declining. This principle was revived in the first draft of the Cabinet Manual ahead of the 2010 election, when the polls were predicting a hung parliament. But because this rule potentially allows the sovereign significant discretion in choosing the formateur, which is at odds with the impartiality required of the monarch today, it is supplemented by the following convention: ‘If there is doubt, it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons’ (§ 2.9). In other European democracies the gravitational principle is usually viewed as the principle of last resort because it follows no clear democratic logic and does not provide unambiguous guidance.

Most European democracies which regularly work with coalitions prioritise the plurality principle. It dictates that the largest parliamentary party should be the first to be designated as the formateur. Only if the first formation attempt fails, should the nomination pass on to the second largest party, then to the third, and so forth. By focusing on the election result as the determinant of the order in which actors are invited to form a government, this principle follows a democratic and electoral logic. In Europe, it is for instance applied in Finland, Belgium, Netherlands, Sweden, Greece and Bulgaria. A slightly different formulation of this principle was invoked by Nick Clegg in 2010 when he stated that the party, which has won the most votes and the most seats, has the first right to seek to govern, either on its own or by reaching out to other parties (see Draft Cabinet Manual 2010, p. 26, § 49, fn. 8). In this form, the plurality principle can be problematic and ambiguous given the disproportionality of the UK’s first-past-the-post electoral system, as a result of which the party with the largest number of seats may be different from the party which wins most votes.

In the 19th century, when UK governments were frequently ousted by no-confidence votes, a fifth principle, the fault principle, was often applied. It dictates that the opposition party most responsible for toppling the government should form the next administration. This principle was last used in January 1924, when the Conservative government under Baldwin was defeated through a no-confidence amendment to the King’s speech. As a result, the leader of the Labour party, which had initiated the amendment, was asked to form the government, even though Labour had only won a third of the vote. This principle has not been invoked recently because governments have used their power to dissolve parliament upon losing its confidence. However, under the Fixed-term Parliaments Act 2011, the principle may regain relevance. The Act removes the prime minister’s discretion to dissolve parliament and instead creates a constitutional expectation that opportunities to form a new government be explored for a period of two weeks following a successful no-confidence vote.

Lastly, the plebiscitary principle is often applied in European democracies when the strongest party seems disqualified from forming a government because its vote share has stagnated or even decreased in the preceding election. This plebiscitary principle may trump the plurality principle, such as after Belgium’s 1954 elections, when the Christian Social Party government lost its majority. This was seen as justifying the formation of a coalition of left parties, despite the fact that the Christian Social Party remained the strongest party in parliament.

Conclusion

Recognition rules can have a powerful influence on the outcome of government formation negotiations, which makes them both consequential and potentially contentious. Since the UK has little recent experience with hung parliaments, and given the different precedents and principles that have been applied in the past, there could be considerable debate and even controversy after the next election. If the 2015 general election produces a parliament that would allow for the formation of more than one potential coalition, past precedent could justify contradictory recommendations as to whom the Queen should invite to form a government. The polls continue to predict another hung parliament in May. There is a timely debate to be had about the UK’s recognition rules, and about 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.

Note: The authors would like to thank Andrew Blick for helpful comments, and gratefully acknowledge the support of this research by the British Academy (Ref. CTRYFG0), the Higher Education Innovation Funding for Knowledge Exchange (DPIR Feb 2014) and the Economic and Social Research Council, Impact Acceleration Award (Ref. IAA/HEIF-DIA-005). 

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This article was originally published on the Constitution Unit blog and is the third of a series of posts about government formation after the election (see the full series here). It gives the views of the authors, and not the position of Democratic Audit UK, nor of the London School of Economics. Please read our comments policy before posting. 

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Petra Schleiter (2)Petra Schleiter is an Associate Professor and Valerie Belu a Masters Student, both at the Department of Politics and International Relations at the University of Oxford.