An election is no time for a debate about ‘legitimacy’

By Catherine Haddon

As we face the prospect of another hung parliament, confusion and obfuscation are dominating discussion of post-election negotiations and government formation.

The constitution has come front and centre and particularly the question about who has the right to attempt to form a government first, who would be the most 'legitimate' government and on what basis this is all worked out.

This last minute debate is raising questions on constitutional authority versus what seems logical to people or how they would prefer the process to operate.

First, it's worth putting this in some context. Let's start with the simple stuff. In minority government the ability to govern is being able to form a majority through parliamentary groupings – either through formal arrangements or simply surviving votes. There is no process that means that whichever party comes out with most seats gets the first go at this. All can negotiate with each other. However, because it is already the government, the PM is able to stay on and test that majority in parliament. It's a simple fact of life.

The second issue is how clear it will be that the party first attempting to form a government is likely to be able to command a majority. The guidance we have on this, the cabinet manual, is vague because the convention is vague. It talks about whether a government, before that first vote, is likely or unlikely to command confidence.

The parties can and are haggling over what issues will frame this nebulous description. It may well be that the arithmetic on May 9th makes it obvious. Or it may be that we have two possible groupings that could command confidence. In this case, unless Cameron resigns Labour cannot form a government. They would most likely have to wait for him to be defeated in the Queen's Speech – as happened in 1924 when Stanley Baldwin stayed on to the King's Speech despite the other parties making it clear they wouldn't support him.

What past oppositions can and have done is try to frame the narrative about whether that first attempted government is legitimate and put pressure on it – and this is what we are seeing at the moment. In 1974, the Conservatives came out of the election 4 seats behind Labour (though with a higher share of the vote). There was debate then about whether more seats meant that Labour had the right to govern.

But this is a political position, not a constitutional one. In other countries, the party with most seats is given the first opportunity to form a government and there is a formal process for this. We could change our system, but it would mean wider changes to how power is passed from one government to another, a handover phase and formal negotiating process, and possibly changes to our electoral system.

But trying to make any massive constitutional change at the crux of a fractious election debate is not a good idea. It would be better to wait for calmer times and have a less partisan debate. In the meantime, it is worth remembering that there is an election on and, unsurprisingly, our politicians are using every weapon at their disposal.

Catherine Haddon is a professional historian and Research Fellow at the Institute for Government

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