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Carry On Constitution…

06 May 2015. Published by Constantine Christofi, Senior Associate

Vote on Election Day, then wake up to a new Government and new Prime Minister. That's what people in this country have been used to for the best part of 150 years.

Well, in the era of wide-spread voter apathy and record high distrust in politics, we seem to be taking a hiatus from switching from Blue to Red majority Government as the conventional norm. Hung Parliaments and subsequent coalitions now seem to be here to stay.

As the parliamentary arithmetic sits on a knife-edge for the 2 major Parties, this election is destined to throw up more constitutional questions and latent crises than any other in recent history.

What, then, will happen after May 7th and what are the processes/possibilities following the election result?

Think Mel Gibson's Apocalypto. I'm indulging in the same sort of hyperbole that we are used to hearing from our political leaders, of course. But the possibilities are numerous and, for your inner political nerd, fairly exciting (!)

Off the back of the latest poll of polls, the Tories look set to win around 280 seats, while Labour is set for around 270. Based on the pledges of the smaller parties and their projected seats, for the Tories to form even a coalition Government, they would have to hold around the same number of seats as they currently have (302), or certainly no fewer than 290.

The path to No.10 is, however, somewhat easier for the Labour party. In the first instance, the electoral dice is loaded in their favour – they could, in theory, form a majority government with 36% of the national share of the vote (in contrast to the Conservatives who require almost 40%). The SNP have, however, put the cat amongst the proverbial pigeons in relation to Labour's Scottish strongholds – one poll suggests the SNP will win ALL of the available 59 seats in Scotland. Deals with the SNP, the Greens, Plaid, the Lib Dems and Independents are, nonetheless, all on the cards for Labour.

In terms of practicalities following the vote - the PM, as incumbent, gets first crack of the whip in forming a Government (326 seats are needed to form a majority Government). Depending on whether they can hold their current seat numbers and how badly the Lib Dems come out of this, a deal could be done (probably with DUP support) in a few days, as in 2010, which would inevitably entail the policy horse-trading that is widely detested by the electorate.

However, even if "call me Dave" is unable to get over that 325 threshold he could still remain in office if he is certain that he could approach Her Majesty in confidence that he can get his first piece of legislation (the Queen's Speech) through the Commons. If the Queen's speech gets voted down by the remaining MPs in Parliament, the PM will have to attend the Palace and offer his resignation and MUST then recommend a successor.

It will then be Red Ed's turn to have a stab at governing. He will require the Queen to attend Parliament to deliver her Speech (which she can, in fact, do by proxy).  

Luckily Her Maj has kept up her Tuesday morning Pilates, so she should have no problem handling the toing and froing from the Palace of Buckingham to Palace of Westminster to read out her speech (drafted by her wannabe Ministers).

Labour has ruled out a formal coalition with the SNP (whose support would be a prerequisite for forming a Government). It will, therefore, be for Labour to "dare" the SNP, so to speak, to vote down their Queen's Speech and, potentially, pave the way for the return of Mr Cameron and/or another election. The former would be a hard sell for the SNP to the Scots and the latter poses yet another interesting possibility.

A so called "confidence and supply" agreement and minority Government would be the viable alternative, with the SNP supporting a Labour budget and on a vote-by-vote basis thereafter, in exchange for their own policies making their way onto the statute books. The very notion of material SNP influence on any Westminster Party-led Government raises fundamental questions of "legitimate Government" and whether or not such an arrangement would be constitutional. I unfortunately have not the space to address such questions here.

The Con-Lib coalition, as you know, passed the Fixed-Term Parliaments Act in 2010 (the "Act"). This fixes Parliaments in 5 year tranches. If no government can be formed in the first instance by either Party, they would, you might think, have to hold another election (as is tradition). In order to do this under the Act, a motion of no confidence would need a 2/3 majority to trigger an election. Now, any constitution 1-0-1 lesson will teach you that "no Parliament can be bound" and a simple majority is all that is needed to effect any change that Parliament wills…This clash of nebulous constitutional authority and statute would amount to a bona fide constitutional crisis, which is very much on the cards, and I, like you (I'm sure), cannot wait to see the outcome…

Constantine Christofi

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