We are on the brink of a constitutional scandal

A constitutional scandal is in the offing as the result of dubious views expressed by the Cabinet Secretary, Sir Jeremy Heywood, to the Political and Constitutional Reform Committee of the House of Commons.

Reflecting the urgings of a small group of academics who wish to hasten the UK’s transformation into a continental European polity, Heywood intimated on 9 March that, even if David Cameron has little prospect of forming a new government, he should delay tendering his resignation as Prime Minister in order to allow a prolonged series of coalition talks between the other parties.

This does not accord with historical tradition. As Heywood admitted, it could be a new convention in process of formation. Put simply, this means that his recommendation has no constitutional status at all. Certainly, Cameron should not feel pressured to follow Heywood’s questionable advice. When the incumbent Conservative PM Stanley Baldwin failed to win a majority in the 1929 election, he did not delay in tendering his resignation to King George V, even though Labour failed to gain an outright majority of seats.

Bogus reasons are given for expecting the defeated premier to remain as a squatter in Downing Street. Supposedly, it would ensure a smooth transition and would keep the Monarch out of party politics (arguably it does the opposite). In practice, the main effect of retaining the defeated premier in office while his main opponent attempts to form a coalition is to allow minor parties to play Conservative and Labour off against each other with ever more extravagant demands. As demonstrated in the post-election negotiations of 2010, the auction process also allows a minor party to give each of the two main parties deceptive reports about concessions offered by the other one.

In 2010, the Cabinet Secretary of the time, Sir (now Lord) Gus O’Donnell (“GOD”) made no secret of his support for the idea of coalition government and thus of new conventions that would promote coalition.

As an instrument likely to achieve this, he recommended a so-called “Cabinet Manual”. He did this just before the 2010 poll when there was no time to consult other than his selected, reformist experts. Under guise of recording existing procedures, the “Manual” was an ideal way to infiltrate reforms, especially about the rules relating to the formation of governments following a hung election.

Gordon Brown accepted the advice that he should stay in Downing Street while the Liberal Democrats conducted simultaneous talks with Conservative and Labour negotiators. In December 2010, O’Donnell issued a full draft of the Cabinet Manual for consultation. After extensive criticism (including detailed pieces of mine in Standpoint Magazine), he was obliged to present a modified version to the Cabinet in July 2011.

Even this encountered objection within the Cabinet to O’Donnell’s favoured ideas about government formation. The draft seems to have been changed yet again before being published in October 2011 shortly before his retirement. The Cabinet Manual itself has no formal status. Its very existence remains a matter of dispute.

Having lost the battle to establish as a new norm in the Cabinet Manual the idea that a defeated premier has a duty or at least an “expectation” to remain in Downing Street following defeat in an inconclusive election, the reform cabal in the Institute for Government and the Constitution Unit at University College London is having another try. This time, it has the support of the new Cabinet Secretary, Sir Jeremy Heywood.

In strictly formal terms, there are no rules at all. An incumbent premier has the choice of resigning immediately after an election or of remaining in office until defeated in the House of Commons weeks later. A victorious opposition party has no legal rights prior to winning a vote in Parliament.

In practice, there are two alternative approaches, one to the advantage of the two main parties, the other benefiting minor parties. If he wishes to avoid normalising coalitions, Cameron should not squat in Number 10 if he has no realistic prospect of forming some kind of new administration (possibly a minority government).

If he fails to form a new government, he should resign and leave it to Ed Miliband to go to Buckingham Palace. There is no need for Miliband to engage in prolonged inter-party talks before he accepts the Queen’s invitation to form an administration. He should try to do so only from Downing Street.

The prolonged post-election wheeling and dealing that characterises politics in Israel, Belgium, Italy and other West European countries is hardly a democratic ideal. Nor is it a recipe for smooth governance. Some inter-party haggling may be inevitable in the UK after 7 May, but there is no need to create new institutional structures that make coalitions almost inevitable. Certainly, if constitutional conventions are to change it is the business of politicians, not of civil servants or academic lobbyists, to engineer the reforms.

The author is currently senior consultant on constitutional affairs to Policy Exchange