The Formation of Governments in the UK:
Law, Procedure, Conventions and Politics
One of the functions of constitutional law is to establish procedures for identifying those who are to
hold senior positions in the state. Article 2 of the United States constitution, for example, sets up a
system for electing a President for a fixed four year term and then vests in the president a power to
appoint ‘officers of the United States’ either with the consent of the Senate or directly. In the French
constitution, Articles 7 and 8 lay out how the President of the Republic is elected; article 9 says that
the President of the Republic appoints and dismisses the Prime Minister and appoints and dismisses
other ministers on the advice of the Prime Minister; article 50 says that if the government loses a
vote of censure in the National Assembly, it has to resign; and article 12 says that the President can,
after consulting the prime minister, dissolve the Assembly and call new elections at any time, except
that no dissolution can happen less than a year since the previous one. In Britain’s uncodified
constitution, however, these matters are not so clear. The process for appointing and dismissing
prime ministers and ministers and for dissolving parliaments and calling new elections are not
collected together and given legal force but consist of a not particularly transparent or wellunderstood collection of laws, procedural rules, conventions and practices. That is fundamentally
why, when the seemingly simple question is asked of how governments are formed following
inconclusive parliamentary elections, all sorts of disputes break out. In the weeks before the 2015
election disagreements have broken out about, just to name a few, whether there was any way of
forcing out a prime minister who had failed to win a majority but who did not want to resign,
whether a prime minister who lost a vote on the Queen’s Speech (the government’s legislative
programme) had to resign immediately or could carry on and try again, and whether the Queen
would arbitrate between the claims of different party leaders about the relative strengths of the
alliances they had formed in the Commons. Discussions in the media and at coffee breaks reveal that
even simpler questions are being asked, for example can the political parties just ignore the Fixed
Term Parliaments Act (no), does that Act mean that if a prime minister loses a vote on the Queen’s
Speech the parties have 14 days to form a new government, failing which there is a second election
(no), and even do we still have a government after parliament is dissolved? (Yes).
The purpose of this paper is to provide answers to these, and to some more challenging questions in
as straightforward a way as possible, avoiding the hand-waving and mysticism that often
accompanies constitutional discussion in Britain. The answers derive from a mixture of law,
parliamentary procedural rules and politics. They are often clearer than sometimes imagined, but
where they are not clear, it is at least useful to know why.
Laws, Standing Orders and Conventions
The legal starting point is tolerably clear. The head of state is the monarch. The monarch’s claim to
be the monarch rests on statute – principally the Act of Settlement 1701 and the Act of Union 1707.
Equally clear is that ministers, including the Prime Minister, are in strict legal terms appointed by the
monarch and can be dismissed by the monarch. If it is doubted in a legal context whether a person is
a minister, the question is settled simply by asking the Queen, or at least the Queen’s officials. Of
course monarchs no longer appoint and dismiss ministers at their own discretion. Various
conventions and practices developed over the past four centuries have turned the United Kingdom
1
from a monarchy into a crowned democratic republic. But the legal position is still that the power to
create and dismiss ministers lies with the monarch.
Monarchs used also to have the legal power to dissolve parliaments and to call elections, but that
power was removed by the Fixed Term Parliaments Act 2011, which lays down instead that
parliaments last five years unless cut short either by a vote of two thirds of the House of Commons
on a ‘dissolution’ motion,1 or by a process under which the government is defeated in a motion of no
confidence and a replacement government fails to win the confidence of the House within fourteen
days.2 Both of those motions only count if passed in the precise form specified in the Act, so that
other votes that might be claimed to be ‘votes of confidence’ (for example on the Queen’s Speech)
do not count for the purposes of the Act and neither trigger nor end the 14 day period.
The one further legal rule worth mentioning is that the government may not spend public money
without legal authorisation and many of those authorisations operate on an annual basis. Some
taxes, particularly the income tax, also require annual authorisation.3 In other words, if parliament
denies the government ‘supply’, eventually the government will not be able to do much.
Another set of rules, albeit not legal rules and beyond the purview of the courts,4 requires particular
attention. These are the internal procedural rules of the House of Commons. One important such
rule is Order 14(1) of the House of Commons’ Standing Orders for Public Business. It lays down that
the business of the government has precedence at every sitting of the House, which means that the
government has the power at all times to control what the House of Commons debates. The rest of
SO 14 provides for exceptions to the rule, but those exceptions can only be operationalised by
motions put down by the government. Crucially SO 14 gives the power to control the agenda of the
Commons to the government as the government, not to the majority of the House. Even a
government with no majority can exercise the power to keep off the agenda of the House matters it
wishes not to be debated.5 Furthermore, the Standing Orders of the Commons can only be changed
by a majority vote of the Commons itself and so at the start of a new Parliament, before the
exceptions to SO 14(1) have been operationalised, unless the government gives the Commons an
opportunity to change the rules, they remain the same.
A second House of Commons standing order deserves attention. Standing Order 51(1) says that ‘A
ways and means motion may be made in the House without notice on any day as soon as an address
has been agreed to in answer to Her Majesty’s Speech’. This order means that no motion about
taxation, and thus no Budget Resolution, can be moved until a Queen’s Speech (technically an
‘Address’ or reply to the Queen’s Speech) has been passed. It is the modern version of the old
principle of ‘grievance before supply’. Its effect is that a government that has not been confirmed by
a positive vote on a Queen’s Speech will find governing very difficult.6
1
Fixed Term Parliaments Act 2011 s 2(2)
Fixed Term Parliaments Act 2011 s 2(3)
3
See Income Tax Act 2007 s 4
4
Indeed the Courts are not allowed to interfere with them. See Bill of Rights 1689, art. IX.
5
There are counter-measures that oppositions who control a majority of votes can take, especially if they have
the cooperation of the Speaker, though they are very messy and only really work as an ambush. The method
essentially consists of moving the previous question on each item of government business until that business is
exhausted and then defeating the government motion to adjourn.
6
Some might argue that SO 51(1) merely gives more leeway to the government in the way it brings in a
budget, on a motion without notice, but a glance at the history of this standing order, and particular the old SO
13 that it replaced, reveals that the change it brought in was to allow such motions to be taken on the floor of
2
2
Of the various (legally unenforceable but generally accepted) conventions relevant to the formation
of new governments, two are particularly important. The first is that a government must retain the
confidence of the House of Commons. The confidence convention is the basis of accountable
government and ultimately of representative democracy in its parliamentary form. ‘Confidence’,
however, is not a precise term. As the Cabinet Manual, the Civil Service’s official guide to the
constitution, says, ‘Commanding the confidence of the House of Commons is not the same as having
a majority or winning every vote’.7 It means, roughly speaking, being capable of carrying the House
on votes essential for the continuity of government. Which votes count as votes of confidence apart
from ones that say they are is a matter of judgment. Failing to obtain the support of the Commons
on the Queen’s Speech, and thus falling foul of SO 51, is, however, most certainly a matter of
confidence.
The confidence convention can be seen as a consequence of the legal rule that taxation and
expenditure need authorisation by the House of Commons combined with an abhorrence of
ineffective governments. Its effect is that a situation in which a government has lost the ability to
govern must be brought to an end. That can happen in one of two ways: either the formation of a
new government that holds the confidence of the House or the election of a new House of
Commons. The Fixed Term Parliaments Act makes the second option more difficult, but it does not
remove it entirely. Both options remain open. It is just that the Fixed Term Parliaments Act gently
guides decision-makers in the direction of resolving a loss of confidence by changing the government
rather than changing the composition of the House of Commons.8
The second convention, a more recent one, is that, for the sake of preserving the monarchy as an
institution, situations should be avoided in which the monarch is called upon to take politically
controversial decisions. In the past, before this neutrality convention developed, monarchs had no
compunction in interfering with the process of forming new governments. The last monarch,
however, openly to defy a parliamentary majority and then to call an election in an attempt to
change it was William IV.9 The current consensus is that political parties should not expect or ask the
Queen to take any initiatives of her own but should agree amongst themselves what should happen
the House instead of in the Committee of the Whole. It did not affect the central principle that confidence had
to precede supply.
7
Cabinet Manual p 14 para 2.7
8
In passing it should be noted that the Fixed Term Parliaments Act reinforces the idea of representative
democracy, which explains much of the opposition to it on the populist right of British politics. That opposition
in turn explains the propagation of the view that the Act would not stand in the way of a Prime Minister
determined to call a second election and prepared to ignore it. For that to happen, however, the following
people would need consciously to act unlawfully: the Queen (in dissolving parliament and issuing a
proclamation for a new parliament), the Permanent Secretary of the Ministry of Justice (in her capacity as the
Clerk of the Crown in Chancery, who issues the writs for the election) and every chief executive of every
district or unitary local authority in the country (as the officials charged with organising the election).
9
In November 1834, William IV dismissed his prime minister, Lord Melbourne, using as a pretext the
unsuitability of the ‘dangerous little radical’ Lord John Russell for the office of Chancellor of the Exchequer (in
the place of the not much less radical Lord Althorp, who had retired from politics on his inheritance of Spencer
earldom). The King inserted the Duke of Wellington as a stop gap and then Robert Peel as a permanent new
prime minister. He then dissolved parliament at Peel’s request. The Tories gained ground in the election but
not enough to create a stable majority. Peel lost a vote on an amendment to the King’s Speech by 7 votes but
he refused to resign, claiming that the opposition was divided. He eventually offered his resignation two
months later after he was defeated on a motion about the Church of Ireland proposed by Lord John Russell.
Melbourne then returned to office, with Lord John Russell in the not much less exalted post of Home
Secretary.
3
and then ask the Queen to put that agreement into effect.10 That, of course, does not help if the
parties fail to agree. In those circumstances some believe that the less ‘political’ option for the
Queen is to do nothing, but others believe that doing nothing could be seen as just as ‘political’ as
doing something. The real test for those advising the Queen (which largely means her Private
Secretary11) is to ask which course of action generates least risk for the future of the monarchy. That
judgment inevitably involves an element of assessing the public mood.
Applying the rules
The Basics
Bringing these norms together, we can now examine how governments are formed in the UK. To
understand the process where there is no majority party, however, one must first understand what
happens when a general election results in a new majority party in the Commons. The shorthand for
what happens is that following the election, as soon as it is clear that another party will have a
majority in the new House, the previous government resigns and the Queen calls upon the leader of
the new majority party to form a government. That government then puts its first year programme
to the Commons in the form of a Queen’s Speech, and as soon as it has won the vote on the Address
it can bring in its own budget. But this is a little too quick for a full understanding. In principle, a
sitting prime minister is still in office after the election and could refuse to go. In particular a sitting
prime minister could propose to stay on until she or he had lost a vote on the Address. If no Address
is agreed,12 the government’s existence becomes pointless because of SO 51. But even then the
prime minister could try to stagger on, claiming to be looking for a new majority. At that point, in
this admittedly extreme and unlikely set of circumstances, the Queen would probably feel safe,
regardless of the neutrality convention, in dismissing the incumbent and asking the election winner
to form a government. Whether the Queen would dismiss such a recalcitrant prime minister earlier,
before parliament had met, for example, is less clear. It would depend on how uncontroversial a
decision it would be. But in normal circumstances, the election result being an expression of the
people’s will, dismissing such a prime minister would pose no obvious threat to the standing of the
monarchy. It is sometimes said that there are no longer any circumstances in which the monarch
would dismiss the prime minister. But that is not correct, as these examples show. It is just very
unlikely for the relevant circumstances to arise.
Turning then to the situation of no majority, the main difference is that dismissing the old prime
minister before the House meets is clearly far more controversial for the monarch than dismissing
one who had definitively lost the election: so controversial in fact that it is very unlikely to happen.
The result is that the outgoing prime minister would be able, if he or she wants, to meet the new
House of Commons and try to cobble together a majority on the Queen’s Speech.13 What happens
10
See e.g. Sunday Times 19 April 2015 p. 1
The Cabinet Manual ascribes the role of the Queen’s principal adviser on constitutional matters in the
context of the formation of new governments to the incumbent Prime Minister (p. 14 para 2.9), but in a
situation in which the incumbent prime minister is one of the politicians competing for office, for the prime
minister to claim to play such a role in any way that affects the outcome would be incompatible with the
neutrality convention. The leaders of the parties collectively have a responsibility to come to agreement and to
convey that agreement to the Private Secretary either directly or through the Cabinet Secretary (a process
acknowledged by the Cabinet Manual at para 2.13) and so they might be regarded as advisers, but the real
source of advice is the Private Secretary.
12
Note that it is not enough to pass an amendment to the Address. The Address itself has to be defeated. It is
sometimes believed to be somehow impolite to vote against the Address itself, as if it were some kind of
personal rebuff to the monarch. In these circumstances, however, it is politically necessary.
13
This explains the position as described by the Cabinet Manual at pp. 14-15 para 2.12.
11
4
after that is somewhat less clear, and we will spend some time trying to clarify it, but there is no
doubt as to what happens immediately after the election, namely, unless the Prime Minster resigns,
nothing happens. The Prime Minister is still in office.
The other big difference is that if the incumbent does go, the question who should be sent for to
form a new government is also potentially controversial. Does the baton pass to the leader of the
largest party in the Commons other than that of the previous incumbent? Or can someone else be
chosen, for example someone who might be able negotiate a grand coalition? Some commentators
give the impression that the Queen has to take the ‘advice’ of the outgoing prime minister as to who
to send for next, but the actual position is, as the Cabinet Manual implies but does not quite say,
that the Queen does not have to ask for such advice in the first place. It is simply that the outgoing
prime minister needs to be prepared to give it if asked.14 The confidence convention requires that
the choice should fall on the person most likely to gain the confidence of the House. The neutrality
convention, however, requires that the judgment about who that person is should not be that of the
monarch unaided but should ideally be that of the parties collectively. But if the parties disagree, or
purport to disagree for strategic reasons, the Queen has no option but to make a judgment. That
judgment is made on the basis of the principle of least controversy, which is why, subject to the
possibility of extraordinary circumstances affecting the public mood, the default option is to choose
the leader of the largest party that has not yet had the opportunity to form a government.
Can the Opposition ‘force out’ the incumbent earlier than the Queen’s Speech?
One issue that has been debated in the media is whether the process for expelling the incumbent
prime minister might be short-circuited by the leader of the opposition putting down a motion of no
confidence in the old government. A very big obstacle, however, lies in the way of such a motion.
Since the old prime minister is still the ‘government’ for the purposes of SO 14, if the opposition
gives notice of a motion of no confidence, that motion can only be debated if the government wants
to debate it.15 There is no obvious reason why a government would want such a motion to be
debated, and if the opposition were to point to the undoubted previous practice that governments
give time to motions of no confidence put down by the leader of the opposition it could plausibly
reply that a Queen’s Speech vote is itself a motion of confidence. Moreover, it is unclear why an
opposition faced with the opportunity presented by a Queen’s Speech debate to defeat the
government would want instead to debate a motion of no confidence. The latter course is no better
than the Queen’s Speech for expelling the government and it has the distinct disadvantage that if
passed it triggers the 14 day rule of the Fixed Term Parliaments Act. Why would the opposition give
itself a deadline it might not be able to keep?
What happens after an incumbent is defeated on the Queen’s Speech?
If the outgoing prime minister loses on the Queen’s Speech, the situation is fundamentally the same
as that in which the leader of the opposition had a majority all along. As long as the opposition votes
down the Address itself and does not just vote through an amendment, the outgoing prime minister
would not be able to move a budget and so should resign.16
14
Cabinet Manual p. 14 para 2.9.
This is subject, of course, to the possibility of an attempt at something like the unseemly process described
above in footnote 5.
16
On a matter of detail, the traditional way governments resign is that ministers ‘put their offices at the
disposal of his Majesty’ – in other words, they resign with effect from the point at which their successors are
appointed. It is not, however, entirely clear that this is what Gordon Brown did in 2010. One interpretation is
that he told the Queen that he was leaving there and then. A good deal of effort has gone into to persuading
15
5
Big problems arise, however, if the incumbent refuses to resign. Should the monarch dismiss the
incumbent, or is that course of action ruled out by the neutrality convention? One might think this a
very low probability problem, and it is, but its existence and the difficulty of solving it are themselves
very important, because ensuring that it never arises in the first place is one of the biggest incentives
in the system driving the monarchy towards encouraging consensus and persuading the party
leaders not to act in a way that would embarrass the Queen.
A Second Election?
Only two arguments exist for an incumbent to refuse to resign after being defeated on the Queen’s
Speech. The first is that the incumbent believes that there should be an immediate second general
election to produce a new parliament. Before the Fixed Term Parliaments Act, the process was that
the prime minister would ask the Queen to dissolve parliament. The Queen was not, however,
obliged to grant the request, and, according to the Lascelles Principles, would almost certainly refuse
to grant a dissolution so close to a previous election before other options for creating a government
had been tried.17 The issue is now, however, governed by the Fixed Term Parliaments Act, under
which the House of Commons, not the monarch, decides on whether parliament is dissolved early.
The monarch could, of course, before any motions are put to the Commons under the Act dismiss
the incumbent and insert a new prime minister. But that would almost certainly count as too
controversial for the purposes of the neutrality convention.
A further problem arises. The incumbent has a choice between the two motions that can be put
under the Act, a choice that because of SO 14 cannot be challenged. One might think that the honest
way to proceed would be to put down a dissolution motion, but the incumbent might be tempted
instead to put down a motion of no confidence in his or her own government. Some experts in
parliamentary procedure believe that putting down a motion of no confidence in oneself is out of
order, but in that case the prime minister might instead find a stooge on the backbenches or in allied
parties to put it down.
The temptation to use the self-inflicted no confidence motion arises for three reasons. First, the no
confidence motion needs only a simple majority to pass whereas a dissolution motion requires twothirds of all MPs to vote for it. Secondly, if the no confidence motion is defeated, the prime minister
might claim that as a result he or she now has the confidence of the House (not that this changes the
effect of SO 51, of course). And thirdly, although passing a no confidence motion under the Act does
not in itself produce an election, because it merely triggers the 14 day period for creating a new
government, the prime minister might be able to claim that the vote was a vote for a new election
and so justify obstruction of the formation of a new government. For example simply by refusing to
resign after the no confidence vote, the prime minister might succeed in running down the 14 day
clock. If that were to be attempted, the question for the Queen, a very difficult one, would be
whether to dismiss the incumbent and give a new government a chance to put down a confidence
motion. That course of action would be very controversial and thus unlikely to pass muster in terms
of the neutrality convention. On the other hand doing nothing would produce an election that in all
probability the Queen would have refused under the old system. It is very unclear what would
happen in these circumstances. To avoid it arising in the first place the Palace might work to ensure
that the parties agreed that the incumbent would resign if the no confidence motion were carried, a
David Cameron that if he finds himself in similar circumstance, he should stick to tradition. See Cabinet Manual
p. 14 para. 2.10.
17
‘Senex’, Letter to the Editor, The Times, 2 May 1950.
6
result fully justified as allowing the Act to work properly. If, however, the prime minister refused to
go along with such an agreement, the dilemma would remain.
One further complication is that the Speaker of the House of Commons might have a role at this
point. One obvious way out of the problem is for a dissolution motion to be moved as an
amendment to the no confidence motion. If the amendment were to be carried, all the advantages
of the no confidence route would fall through. The decision whether to select such an amendment
for debate lies with the Speaker. The current view in the Commons is that no amendments should be
debated on a no confidence motion under the Fixed Term Parliaments Act, but that view might not
prevail once the Commons authorities begin to talk to the Palace.
Another possibility, which, as it happens, does not depend on any decision by the Speaker, is that
the Commons could throw out the no confidence motion without defeating it. The way to do that
would be to move and approve ‘the previous question’ on the no confidence motion, namely a
procedural motion that ‘the question be not now put’. The effect of passing such a motion would be
that the no confidence motion would not be voted on. Some might say that such a procedural way
out the problem would be unsatisfactory, but one could interpret a vote in favour of it quite
straightforwardly as showing that the Commons did not want an immediate election.
The problem of the recalcitrant PM
The second reason an incumbent prime minister might give for refusing to resign, and a reason a
prime minister might continue to raise even after the failure of an attempt to dissolve parliament, is
that no other clear option for forming a government exists, so that the incumbent should be given
another chance to find a majority.
The basic principles for dealing with this situation have already been mentioned. When deciding
which of the possible candidates has the best chance of gaining the confidence of the House the
Queen acts on the basis of the collective view of the political parties. If that is not possible, however,
as would be the case if there were a recalcitrant prime minister, the Queen is left with no option but
to exercise her own judgment based on the best advice she can obtain. The complication in this
situation is, of course, that her choice might involve dismissing the incumbent.
Some believe that it is now impossible for the Queen to dismiss an incumbent prime minister. As we
have seen, that is not so. A recalcitrant prime minister who had lost an election to a new majority
party would eventually be removed. The neutrality convention does not require the Queen to
frustrate the wishes of the electorate – quite the contrary if one remembers the purpose of the
convention, which is to avoid undermining support for the institution of the monarchy. The same
judgment would have to be made about a prime minister whose recalcitrance follows not just an
inconclusive election but also losing a vote on the Queen’s Speech and, in one of the variants we are
considering, losing a vote on calling a new election.
In the case of a prime minister who had lost on a Queen’s Speech but had not yet tested the opinion
of the House on calling a new election, the monarch would have the additional option of informing
the prime minister that she would refrain from exercising the option of dismissal only if the prime
minister asked the House for a dissolution. Although such a threat might be risky in terms of the
neutrality convention, it would be fully justified by the confidence convention – that there must
either be a new government or a new parliament.
In the case, on which all these routes converge, of a recalcitrant prime minister insisting on carrying
on after not only losing the confidence of the House but also having been rejected on a call for a new
election, the exercise of the royal power to dismiss is unlikely to be very controversial. But if the
7
Palace still feared that such an intervention might undermine the monarchy, there is a method of
resolving the issue of whether the opposition has the votes to form a government, a method on
which the monarch could reasonably insist. That option is that the recalcitrant prime minister should
allow the House to vote on an Address to the monarch of the form ‘This House believes that Her
Majesty should call upon the Leader of the Opposition [or whoever] to form a government’. The vote
on such a motion would authoritatively resolve the issue of whether the prime minister was right to
claim that no other clear option existed for forming a government. Moreover it is difficult to argue
that it would not be justified to threaten to dismiss a prime minister who refused to allow such a
vote. How could the incumbent justify making a claim that the leader of the opposition lacked the
necessary votes to gain the confidence of the House and yet refuse to allow that claim to be tested?
Nevertheless, uncertainty still surrounds such a situation. The Palace might prefer the comfort of
inaction and allow the recalcitrant prime minister to continue to look for a new majority, at least
until the money runs out. Ultimately the application of the neutrality convention depends on an
assessment of the public mood. One further consideration might, however, weigh heavily. Constant
reliance on the neutrality convention to avoid having to take difficult decisions raises a different
threat to the institution of the monarchy. The public might start to ask why we allocate these
decisions to someone who cannot or will not take them. The public might even come to see royal
inaction as undermining democracy. For example, allowing a prime minister to remain in office
whom both the electorate and the House have rejected seems to break the link between the results
of elections and the choice of governments. That is true not only for those, perhaps a dwindling
band, who believe in representative parliamentary democracy but also for those who believe in
more populist forms of democracy.
It is of course entirely possible for the Palace to attempt to shift the blame for any difficulties in
forming a government to ‘the politicians’. Given public attitudes to politics on the one hand and the
monarchy on the other, such an attempt would have a high probability of success. One might even
see the formulation of the neutrality convention in terms of an expectation that ‘politicians’ will sort
the issues out amongst themselves as preparing the ground for successful blame-shifting. At that
point, however, the issue becomes whether the monarchy is itself committed to parliamentary
democracy. More to the point, is it prepared to pay a price in terms of its own popularity to uphold
the principles of representative government? To that question we also have at this point no
definitive answer.
8