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Nicola Sturgeon and Carwyn Jones have this week been re-elected as First Ministers of Scotland and Wales, whilst two week ago Enda Kenny was re-elected as Irish Taoiseach. In each case the newly elected parliament elected the head of the new government. In a new report Petra Schleiter, Valerie Belu and Robert Hazell argue that a similar procedure should be adopted at Westminster, where currently the Queen decides who should be Prime Minister before parliament meets. Robert Hazell explains why.

This week has seen the re-election of Nicola Sturgeon and Carwyn Jones as First Ministers in Scotland and in Wales, following the devolved elections on 5 May. Two weeks ago we witnessed the re-election of Enda Kenny as Taoiseach in Ireland, ten weeks after the Irish election on 26 February. What these three countries have in common is not just that the same leader has been re-elected, but that in their recent elections Scotland, Wales and the Republic of Ireland all saw the return of a hung parliament in which no party gained an overall majority. In these circumstances it does not fall to the Queen to decide who shall be First Minister, or in Ireland to the President; under their constitutions it falls to the newly elected parliament, whose first business (after election of a presiding officer) is to elect the head of the new government.  That is what happened in Ireland on 6 May, in Scotland on 17 May and in Wales on 18 May.

In a report published this week, which I have written with Professor Petra Schleiter and Valerie Belu of Oxford University, we suggest that is what should also happen in future at Westminster. Instead of the Queen having to decide who should be Prime Minister before parliament meets, the first business of a newly elected House of Commons should be to select the Prime Minister, who would then be formally appointed by the Queen.

This may seem unnecessary after elections when a single party wins an overall majority, and it is obvious who is going to be Prime Minister: as happened in the UK in 2015. In those cases the election of the leader of the majority party to head the new government would be a formality.  The value of asking the House of Commons to choose the Prime Minister is when it is not obvious who can command confidence in the newly elected parliament. That is always going to be the case in a hung parliament, especially if it is closely hung. We risk forgetting how narrowly we escaped from having such a parliament after the 2015 general election. In the weeks before the election the polls suggested a very close result, with some forecasting a dead heat between the two major parties. Although the Cabinet Manual says it is for the political parties to work out who can command confidence in the new parliament, there is a risk of confusion and uncertainty if there is a standoff, with both main parties claiming to be able to form a government. The only reliable way to determine who can command confidence in such a situation is a nomination vote in the House of Commons. That would be a quicker and cleaner solution than the traditional vote on the Queen’s Speech as the first test of confidence in a new government.

In our report we analyse the experience of other European countries, which have parliaments without a majority party most of the time, and we identify six rules that are in practice used to guide who should be asked to form a government. We also show that the UK has in the past applied five of these rules in the context of hung parliaments. These different conventions and principles are potentially contradictory and do not all follow an equally democratic logic. This can jeopardise the Monarch’s role in the government formation process. To protect the monarchy and its political impartiality, the rules need to be clear, democratic and effective.

We conclude that the most effective and democratic way to decide who should be tasked with forming the next government in such situations is a vote in parliament to nominate the new Prime Minister, in the form of a recommendation to the Monarch. This would protect the monarchy and its political impartiality by separating the political choice of the Prime Minister (made by parliament) from the formal act of appointing the new head of government, made by the Monarch.

There are three objections to our proposal which might be made by traditionalists at Westminster. The first is the one already mentioned, that where one party has gained an overall majority, there is no need to go through the formality of holding a vote in the House of Commons to decide who is going to be Prime Minister. To this we would answer, the formality does no harm, and could do some good, not least in promoting greater voter literacy. In the run up to the 2010 election, and again in 2015, media commentators suggested that in the event of a hung Parliament, it would be up to the Queen to decide who should form the new government. That kind of myth is damaging to the monarchy, and to our parliamentary democracy. It would be much clearer to voters if they could see that in our parliamentary system, first we elect a parliament, and then it is up to the new parliament to decide who shall form the government.

The second objection is the risk of delay. The tradition at Westminster is one of exceptionally quick government formation, so that in 2010 the five days in May before the coalition was formed seemed extraordinary. But by international standards the two weeks taken in Scotland and Wales are closer to the norm. Even in Westminster systems like Australia and Canada, where their disproportionate voting systems frequently produce single party majorities, it normally takes ten days or so before the new government is formed. Government formation need not be done in a mad rush immediately after an election, when the politicians are exhausted from the election campaign. Justin Trudeau took two weeks to form his new government before being sworn in as Canadian Prime Minister last year, and the skies did not fall.

The third objection is the risk of deadlock, exemplified in the 29-29 vote when the National Assembly met in Wales in their first attempt to select the First Minister on 11 May. But a week later, after negotiations between Labour and Plaid Cymru, Carwyn Jones was elected unopposed. It helps to have a deadline: in Wales as in Scotland, fresh elections must be held unless the First Minister is elected within 28 days. A similar deadline might have helped to speed up the long drawn out negotiations before the eventual formation of the new government in Ireland.

Now may not be the best time to propose adoption of a nomination vote at Westminster, when the next election seems far away, and both major parties claim they are confident of winning an overall majority. But after an election, it is too late to introduce a nomination vote as the first item of business. The challenge lies with the politicians to acknowledge the risks and to reform the government formation procedures before we have another hung parliament, and the risk of a messy and contested process of government formation. The best time to fix the roof is when the sun shines.

The full report, Government Formation in the Event of a Hung Parliament: The UK’s recognition rules in comparative context, can be downloaded here. It is published jointly by the Constitution Unit and the Department of Politics and International Relations at Oxford University.

This post was originally published on the Constitution Unit blog and is re-posted with permission.

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