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( 155 .)


of discretion by the Queen.
In the event of a sudden death or resignation of the Prime Minister, the gov-
erning party would doubtless expedite its election procedures. If there were still
to be substantial delay before a successor could be chosen, the Cabinet could be
expected to bring forward a minister who would assume temporary leadership
of the government, the Queen being invited to con¬rm his or her authority to
act. Otherwise the Queen might call on the Deputy Prime Minister, or if there
were none, the minister ranking highest in precedence, to take this responsibil-
ity. (See further R Brazier, Constitutional Practice (3rd edn 1999), ch 2.)
If in a general election the main opposition party wins an overall majority of
seats, the Government will resign and the Queen will call on the leader of the
Opposition to form a new government. But if no party gains an overall major-
ity it may not be immediately clear whether the existing Prime Minister, or
the leader of the Opposition, or some other party leader, will have su¬cient
support in the House of Commons to govern e¬ectively. This indeed was the
position after the general election of February 1974.

Rodney Brazier, ˜The constitution in the new politics™ [1978]
PL 117, 117“20
What may be said with confidence about the February 1974 General Election is that the Con-
servative Government lost it. Its 323 seats out of 630 at the dissolution were reduced to 296
out of the newly-enlarged House of 635, and the Ulster Unionists no longer took the Conserva-
tive whip. Labour gained the largest number of seats, 301, but no overall majority. Such a result
had not occurred since 1929. What, if anything, is constitutionally prescribed in such an event?
It was expected on the Friday after polling that Mr Heath would resign: after all, Labour
had a clear majority of five seats over the Conservatives. And the Labour Shadow Cabinet
had issued a statement announcing that the Labour Party was prepared to form a minority
government, without coalition or inter-party pacts. But Mr Heath saw the Queen merely to
inform her of the political situation, and then tried to form a coalition with the 14 Liberal
MPs, or, failing that, at least to reach agreement on a parliamentary and administrative
programme. The negotiations failed, and on Monday, March 4, 1974, Mr Heath resigned and
Mr Wilson kissed hands on appointment as Prime Minister.
358 British Government and the Constitution

Those who must work the constitution at the centre must decide what a Prime Minister
should do if he loses a General Election in circumstances in which no opposition party has
captured a majority of Commons seats. A Parliament so composed is very unusual in modern
times, for every General Election since 1931 had produced a majority government. The prece-
dents are unhelpful. In the December 1923 Election Baldwin™s majority was destroyed, the
Conservatives holding 258 seats but Labour achieving 191 and the combined Liberals 159 “
Labour thus becoming the second largest parliamentary party for the first time in its history.
The new Parliament did not assemble until January 1924. Baldwin reluctantly accepted
George V™s advice not to resign in the interim but to meet the new House of Commons, where
he was duly beaten on an amendment to the address in reply to the King™s Speech.
MacDonald then became Prime Minister on Baldwin™s resignation, to hold office at Liberal
sufferance. After the 1929 General Election Labour formed the largest grouping in the House
(with 288 seats) followed by the Conservatives (260), the Liberals holding only 59 seats but
again having the balance of power. This time Baldwin resigned forthwith, to allow MacDonald
to form his second minority Government. It is of no help to recall that ever since that resig-
nation a Prime Minister who has lost his majority in the House at the polls has, with the
exception of Mr Heath, resigned immediately, because in every case with that exception
there has been a Leader of the Opposition with a parliamentary majority waiting in the
wings. And as in 1923“24 and in 1929 the sitting Prime Minister made no attempt to con-
struct a workable Commons majority, these precedents are of even less use in considering
the constitutionality of Mr Heath™s delayed resignation or that of any future Prime Minister
who might be placed in his predicament. If it is accepted that many constitutional conven-
tions mean what the current set of politicians say they mean, then with both Mr Heath and
Mr Wilson being of the view that it was right for the former to try to form a fresh govern-
ment from the new House [see H Wilson, The Governance of Britain (1976), pp 25“6], we
are propelled to the view that if a House of Commons is elected in which no single party has
an overall majority it falls first to the Prime Minister to see if he can construct an adminis-
tration enjoying the confidence of that House, and that if he cannot do so within a reason-
able time, he should offer to resign. . . . [I]t seems that the Queen acted in a wholly
appropriate manner after the February Election. Given a Labour minority government in
waiting, it was surely correct for her to stay out of the political arena and to allow the parties
to resolve the difficulties of the electorate™s making. Had she on the day after polling insisted
on Mr Heath™s immediate resignation, when a Conservative-Liberal coalition was on the cards,
then that would have been an entirely unjustifiable use of the prerogative which would have
caused the Queen to become, in Asquith™s phrase, ˜the football of contending factions™.

˜Hung™ Parliaments, with no party enjoying an overall majority, will doubtless
recur at Westminster, and would be likely to do so frequently if a system of pro-
portional representation should be introduced for elections to the House
of Commons. A general election might produce a result allowing of either a
single-party minority government or a government formed from any of various
combinations of parties under one or other of a number of party leaders. In these
circumstances the existing conventions and precedents might fail to give an
unequivocal indication of the way in which the prerogative should be exercised.
359 Crown and government

A fictional twenty-first century general election
Suppose that a Labour Prime Minister has called a general election, the
Sovereign granting a dissolution of Parliament, and the result of the election “
held, it might be, under a system of proportional representation “ is the
following distribution of seats in the House of Commons:
Conservatives 260
Labour 240
Liberal Democrats 120
Others 26
Suppose further that the Labour Prime Minister tenders her resignation to the
Sovereign, after making it known to him or her that the Liberal Democrats have
agreed to join in a coalition government led by the deputy leader of the Labour
Party (awaiting con¬rmation as the new party leader).
The Conservative leader (and former Leader of the Opposition) declares that
he is prepared to form a minority government.
The precedents (especially those of 1923, 1929 and February 1974) suggest that
the Sovereign should send for the Conservative leader, as leader of the largest
party in the House of Commons, to form a minority government. This might be
the most prudent course for the Sovereign to follow in such circumstances for, as
Vernon Bogdanor observes (The Monarchy and the Constitution (1997), p 153):

Were he or she to act on the basis of precedent . . . the sovereign would not require a gov-
ernment in a hung parliament to command majority support. Were he or she to depart from
precedent, the sovereign would be open to criticism from the major parties of acting partially
towards the Liberal Democrats, since he or she would not be allowing a Prime Minister to form
a minority government without negotiating its terms with them. On the other hand, the Liberal
Democrats can reasonably claim that the working of the system is biased against them.

It has been objected, however, that the precedents are unreliable, since they rep-
resented ˜political accommodations arrived at as the result both of the political
realities of the day and of the personal relationships between the party Leaders™
(R Brazier, Constitutional Practice (3rd edn 1999), p 31). Also, a minority
Conservative government taking o¬ce in the circumstances supposed would
very likely be unstable, so that the Queen might be asked for a further dissolu-
tion of Parliament within a short time. On the other hand a coalition Labour-
Liberal Democrat government would have the support of a substantial majority
in the House and might seem to o¬er the prospect of stable government.
The view seems to be gaining ground that, in the event of a hung Parliament,
the leader of the largest single party should have no overriding claim to be
appointed as Prime Minister if it were clearly demonstrated to the Sovereign
that a ˜copper-bottomed coalition agreement™ had been reached between other
parties, and that their chosen leader was assured of majority support in the
Commons (see in particular Brazier, above, ch 3). In any event the conventions
360 British Government and the Constitution

of a two-party system would be of limited use in guiding the Sovereign™s choice
of a Prime Minister if multi-party politics and hung Parliaments should become
normal at Westminster. New conventions would be needed to guide the actions
of party leaders and the Sovereign, but the politicians show no disposition to
reach agreement on conventions for dealing with contingencies which do not
seem imminent or inevitable. If these do occur we shall be unprepared for them,
and there will very likely be ˜an extremely messy intervening period in which
di¬erent conceptions of political reality jostle for acceptance™ (Bogdanor, above,
at p 165). Bogdanor doubts that a code of conduct for the Sovereign could be
laid down in advance (cf P Hennessy, The Hidden Wiring (1996), pp 61“3), con-
cluding rather that new conventions ˜would gradually come into play™ in
a multi-party system. Hennessy adds (p 177):

The best safeguard for constitutional monarchy . . . lies not in any specific set of constitu-
tional rules or conventions, but rather in a willingness on the part of both politicians and
people to preserve the role of the monarchy by avoiding actions which would have the effect
of compromising its neutrality.

As long as the choice of a Prime Minister may still call for the exercise of
political judgement, is the decision best left with the Sovereign and his or her per-
sonal advisers, or should it be given instead to the Speaker of the House of
Commons, or a panel of eminent citizens, or a ˜special adviser™ approved by all
parties, or a ballot of MPs? The Institute for Public Policy Research, in its draft
Constitution of the United Kingdom (1991), proposed that the Head of State
should ˜appoint as the Prime Minister the person elected to that o¬ce by the
House of Commons™. A like solution is urged by the Fabian Society in its report
on The Future of the Monarchy (2003), p 56. In devolved Scotland, where the elec-
tion system has so far produced hung Parliaments and coalition governments, the
First Minister is chosen by the Scottish Parliament, to be formally appointed by
the Sovereign: Scotland Act 1998, section 46. Once the Government of Wales Act
2006 comes into force a similar provision will operate in Wales: see section 47 of
the 2006 Act.

(b) Dismissal of ministers
The Queen has a prerogative power to dismiss ˜her™ ministers, singly or collec-
tively but, again, the legal power is overlaid by convention. In practice the fate
of individual ministers is in the hands of the Prime Minister. Although con-
strained by political factors he or she has by convention the power to require the
resignation of any minister. (In the last resort the Prime Minister could advise
the Queen to exercise her power of dismissal.)
In Adegbenro v Akintola [1963] AC 614 the Privy Council had to decide a
question about the power vested by the Constitution of Western Nigeria in
the Governor of the Region to dismiss the regional Premier if he had lost the
361 Crown and government

con¬dence of the elected House. Arguments addressed to the court had sought
to draw analogies from the Queen™s prerogative of dismissal in the United
Kingdom. Lord Radcli¬e said (at 631):

British constitutional history does not offer any but a general negative guide as to the cir-
cumstances in which a Sovereign can dismiss a Prime Minister. Since the principles which are
accepted today began to take shape with the passing of the Reform Bill of 1832 no British
Sovereign has in fact dismissed or removed a Prime Minister, even allowing for the ambigu-
ous exchanges which took place between William IV and Lord Melbourne in 1834. Discussion
of constitutional doctrine bearing upon a Prime Minister™s loss of support in the House of
Commons concentrates therefore upon a Prime Minister™s duty to ask for liberty to resign or
for a dissolution, rather than upon the Sovereign™s right of removal, an exercise of which is
not treated as being within the scope of practical politics.

Having regard to the facts that governments are sustained in o¬ce by a
democratically elected House of Commons, and that no Prime Minister has been
dismissed by the Sovereign since 1783, when George III dismissed the Fox-North
coalition government (or perhaps since 1834, when the circumstances of
Melbourne™s departure were equivocal), it must now be unconstitutional for the
Sovereign to dismiss the Prime Minister and his or her colleagues in all but
the most exceptional circumstances. George V contemplated dismissing the
Asquith Government in 1914 with a view to a general election being called by
a new Prime Minister, in order to forestall the passage of a Home Rule Bill
and avert an apparent threat of civil war in Ulster. In the event the crisis was
resolved without royal recourse to this extreme remedy. The power of dismissal
is said still to survive for use if a government should act to destroy the democra-
tic or parliamentary bases of the constitution. But unless the Queen™s judgement
of the necessity to dismiss her ministers on these grounds should be generally
supported by public opinion, the monarchy itself would be placed in jeopardy.
What consequences might follow if a government, defeated on a vote of
con¬dence in the House of Commons, refused to resign or request a dissolution
of Parliament? Would this be an occasion for the exercise of the prerogative
of dismissal? For Geo¬rey Marshall this is a plain case: ˜Ministers who
clearly ignored a loss of con¬dence by the House of Commons and de¬ed the
conventional rule might properly be dismissed™ (G Marshall, Constitutional
Conventions: The Rules and Forms of Political Accountability (1986), p 27).
When in 1975 the Governor-General of Australia, Sir John Kerr, acting in the
name of the Queen but on his own initiative, dismissed the Prime Minister of
Australia, Mr Whitlam, and all the ministers of the Labour Government with
the object of resolving a political and constitutional impasse, his action pro-
voked much controversy and reactions of an intense and bitter kind. The crisis
had resulted from the refusal of the Upper House of the Australian Parliament,
where the Opposition had a majority, to pass Appropriation Bills providing
necessary supply (authorisation of expenditure) for the government. This
362 British Government and the Constitution

unprecedented action of the Senate was designed to bring down the govern-
ment, which attempted to extricate itself from a critical situation by devising
unorthodox expedients for raising money. In this crisis the Governor-General
acted by dismissing Mr Whitlam and his Government and appointing as Prime
Minister the Leader of the Opposition, Mr Fraser, who had ¬rst assured the
Governor-General that the Appropriation Bills would be passed and that he
would as Prime Minister advise a dissolution of both Houses of Parliament in
order that the deadlock might be resolved by the verdict of the people. The sub-
sequent election was convincingly won by the opposition Liberal and Country
Parties, and a coalition government was formed under Mr Fraser.
Sir John Kerr™s drastic action has been defended in that it brought about the
immediate passage of the obstructed supply bills and placed the resolution of
the con¬‚ict in the hands of the electorate. But the Governor-General was criti-
cised for acting precipitately when a political solution was still possible.
These events took place in a political and constitutional context di¬erent
from that in which the Sovereign has to operate in the United Kingdom and they
do not provide us with a directly applicable precedent (even if any clear princi-
ple can be deduced from them). They demonstrate, however, that dismissal of
a government may still be an available measure of last resort, but also that it is
likely to generate vehement public controversy.
See further Howard and Saunders in G Evans (ed), Labor and the Constitution
1972“1975 (1997); Sir John Kerr, Matters for Judgment (1978), especially chs
16“22; Low, ˜Wearing the Crown: new re¬‚ections on the dismissal 1975™ (1984)
19 Politics 18; D Low (ed), Constitutional Heads and Political Crises (1988), ch 6.

(c) Dissolution of Parliament
The prerogative power of dissolving Parliament belongs to the Sovereign, but
its exercise depends in ordinary circumstances on the judgement of the Prime
Minister. Until the First World War the decision to request the Sovereign to dis-
solve Parliament was taken by the Cabinet collectively, but the power to request
a dissolution was appropriated by the Prime Minister early in the twentieth
century, it seems through a misunderstanding of the precedents: see Lord Blake,
The Of¬ce of Prime Minister (1975), p 59 and G Marshall, above, at pp 48“53.
Marshall argues that the justi¬cation for the present practice is weak, but it
seems nevertheless now to be established as a constitutional convention that the
responsibility rests with the Prime Minister alone. In any event it is usual for
the Prime Minister to consult senior colleagues before asking for a dissolution.
May the Sovereign in any circumstances refuse a dissolution requested by the
Prime Minister? The question was canvassed after the general election of
February 1974, when Labour took o¬ce with four more seats in the House of
Commons than the Conservatives but no overall majority. The new Government
faced the threat of immediate defeat in the House in a division on the Address in
reply to the Queen™s Speech, which would have obliged the Prime Minister either
363 Crown and government


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( 155 .)