The Spoils

Pity the poor British. The outcome of this week’s election—a hung Parliament with no party winning a majority of seats in the House of Commons—has created plenty of uncertainties to trouble the public (and the markets). One question in particular demands an urgent answer: who gets the chance to form the next government?

That’s not so simple. It’s the first time since 1974 that an election has produced such an inconclusive result, and Britain lacks the experience or the formal rulebook that might offer definitive guidance. In fact, the nation doesn’t even have a constitution. What subsists in its place is a hodgepodge of statutes and time-honored conventions without the force of law.

Even its admirers admit that the system is little more than the messy product of centuries of history. “It’s a convoluted, back-of-the-envelope sort of thing that’s difficult to explain without weeks of opportunity,” says Catherine Haddon of the Institute for Government, a London think tank. “It’s a fuzzy mix of the arcane and the practical.”

Sure, the present case is covered by a draft Civil Service manual, published earlier this year, that sets out an understanding of what should happen. Put simply: even if a ruling party wins fewer seats than its leading rival (the way Prime Minister Gordon Brown’s Labour Party won fewer seats than David Cameron’s Tories), the prime minister can stay in office while trying to form his own coalition with smaller parties before the new Parliament first meets.

In the more formal words of the manual: “An incumbent government is entitled to await the meeting of the new parliament to see if it can command the confidence of the House of Commons or to resign if it becomes clear that it is unlikely to command that confidence.” So Brown could stay in Downing Street despite his trouncing at the polls—Labour won just 258 seats to the Conservatives’ 306—making the election seem awfully pointless.

But Cameron sees matters differently. Before the election, he had already made clear his position: “There is convention and there is practice, and they are not always quite the same thing.” That means Cameron has his own interpretation of the precedents. He thinks that if he can strike a deal with the Liberal Democrats, who gained 57 seats, he deserves the keys to Downing Street. Only hours after the last vote was counted, he was talking publicly of inviting the Liberal Democrats into a “collaborative government.”

But would a clearer set of rules, set out in a constitution, smooth the business of transferring power? Certainly the general idea of a written constitution has powerful supporters. Both the Labour and the Liberal Democrat election manifestoes mentioned the possibility of drafting a constitution as part of a wider overhaul of the British political system. Brown himself is a long-term enthusiast.

On the other hand, it’s far from clear whether a neat constitutional code would help resolve the issues now facing the big parties. The question of how to form a government in a parliament with no majority is ignored in the constitutions of the many European countries where indecisive elections are standard, says Robert Hazell, who heads the constitution unit at University College, London. Instead, it’s left to loose conventions that allow a more flexible approach.

In fact, as Hazell observes, constitutions often have nothing to say about some critical areas of government practice. “There is nothing in the American constitution that says that the Supreme Court can strike down legislation from Congress; it’s just a hugely important convention,” he says. Besides, many of Europe’s written constitutions are in fact modeled on the uncodified British version. It may be messy, but it isn’t broken: don’t fix it.