Constitutional processes following a general election - Justice Committee Contents


Examination of Witnesses (Questions 1-58)

LORD BUTLER OF BROCKWELL AND LORD TURNBULL

24 FEBRUARY 2010

  Q1  Chairman: Lord Butler, Lord Turnbull, welcome. We are very glad to have your help and advice and I am sure the whole country is going to be glad to have your help and advice. Lord Butler, you and I have been here before in February 1974, I remember. Are the procedures for the formation of a government following a general election in which there is no overall majority clear at least in the minds of those most closely involved? What is your experience?

  Lord Butler of Brockwell: I think that they are clear and that they are simple. The convention is that the Prime Minister before the election remains Prime Minister until it is clear that he can no longer command the majority in Parliament, and that somebody else can. I think it may be the popular myth that the Prime Minister loses office if his party is defeated in a general election, but that is not the position. The Prime Minister remains Prime Minister until he cannot command a majority in Parliament and somebody else can.

  Q2  Chairman: Is there an assumption that the process must be completed very quickly? For example, how soon does Parliament have to meet? What other time constraints are there?

  Lord Turnbull: Chairman, at the time that the old Parliament is dissolved, a timetable is usually set for the start of the new one, and implicitly it assumes that the process of forming a new government is not going to take too long. It certainly does not allow for the length of time which one sees in many other jurisdictions. There is an assumption that a hung Parliament is either not very likely or can be quickly resolved, and it is possible that you could find that there is some conflict between those two.

  Q3  Chairman: Lord Butler, when you were in Number 10 in 1974 it did take until Monday before the issue was resolved. Were you conscious of a tremendous time constraint and that things had to be rushed and decisions made very quickly?

  Lord Butler of Brockwell: No, not at all because I think from Thursday to Monday is not a very long time by comparison with other jurisdictions. No, I think that what I and others of us in Number 10 were conscious of was tremendous public and media pressure, but not pressure of a timetable. As I understand the situation, the writ for a dissolution sets a date for Parliament to meet again and that cannot be changed, but the Queen's Speech can be delayed so that if it took longer for an administration to be formed, then that is how it would be done.

  Q4  Chairman: Is it not possible by a further proclamation to delay the opening of Parliament?

  Lord Butler of Brockwell: It may be so. I do not know the answer to that.

  Q5  Mr Hogg: Can I ask a question that is probably relevant to both Lord Butler and Lord Turnbull? I recognise of course that in 1974 it was possible to be a little more leisurely in the negotiations, albeit there was a great deal of public pressure. Now with the present economic condition which we face and a fear that the markets may be expecting early signs of spending plans or spending reductions, would you agree that the timeframe may be compressed by those market considerations?

  Lord Turnbull: The answer is "yes" and that will condition the behaviour of the players. They will know that they cannot spend a long time haggling away, making no concessions. There is a game of blame here; that no-one will want to be blamed for being the people who perpetuated this position of uncertainty or who prevented an agreement. That will concentrate minds. There will be pressure, but it will, I believe, have a beneficial effect on the behaviour of the people involved.

  Q6  Mr Hogg: Concentrating minds most wonderfully.

  Lord Turnbull: It will, yes.

  Q7  Chairman: You have made the point that in many other countries, particularly many other European countries, the process is quite slow, and some countries, like the United States, have a long hand-over period, or a long old administration period, but face the same markets. Why are we different in this respect or are we?

  Lord Turnbull: One of the features is that we choose our ministers from the executive.

  Q8  Chairman: From the legislature.

  Lord Turnbull: Sorry, from the legislature. You could have a position in which you have a chancellor of the exchequer who either did not stand again or was defeated, still remaining as chancellor of the exchequer, and this is a slightly odd situation which I think in many other countries would not necessarily apply; that people would continue in their present posts in a more natural way. In the US of course it has provided a period of almost two months in which the previous administration stays in power until the new administration is ready take over.

  Chairman: We are going to return to some of the caretaker government issues a little later.

  Q9  Mr Heath: Of course, some countries manage without a government for rather long periods without any huge deleterious effect, apparently. I wonder, is there any formal arrangements for the Civil Service to co-ordinate with the authorities of Parliament under these circumstances? Is the contingency planning simply in the hands of the permanent Civil Service, or does it extend to the authorities in this House as well, because obviously there are implications for the way Parliament does its business early in a new potential administration?

  Lord Butler of Brockwell: I think there would certainly be contacts between the Civil Service and the House authorities, and particularly so in circumstances when it looked as if the arrangements for the resumption of Parliament would have to be delayed, but I would expect that just to be, as it were, a normal bit of business between the Civil Service and the House authorities. Could I just say in relation to the previous exchanges: I have said in other contexts that I think the arrangements in Britain for the formation of a new government after an election are unwisely frantic because—I have seen this, and Lord Turnbull has seen it—if it is a new Prime Minister, when the new Prime Minister comes in, he or she comes in in circumstances where they have had a long campaign; they may have had to sit up most of the night waiting for their election results, they then may have to travel to London, and they arrive in a state of exhaustion. To then have to make decisions that are crucial for the country, including the appointments of your main lieutenants in the first few hours, and a lot of other important decisions, has never seemed to me to be particularly wise, nor does it seem to me to be necessary. It is part of a drama that we have got used to that everybody enjoys, and it is difficult to break.

  Q10  Mr Hogg: In the present circumstances it is inevitable, is it not, given the financial position?

  Lord Butler of Brockwell: I do not know. I would not agree with that actually. I do not think it is inevitable; but there are certain situations when outside pressures would be greater to get a new administration into place.

  Q11  Mrs James: How important is it in any agreement between political parties to share power whether it be by coalition or by compact to be made public?

  Lord Butler of Brockwell: I think it is inevitable that such arrangements would be made public. I suppose there could be confidential understandings which the parties keep to themselves, but I doubt whether they would remain confidential for very long!

  Q12  Mrs James: Do you think it should be made public prior to an election? If they have been having these negotiations should they be published before an election so that people can make a decision on that agreement?

  Lord Turnbull: I would say no because all those discussions will be hypothetical and there will be many permutations and combinations within them. It is inevitable that they write up what the nature of the agreement is, whether it is a coalition or support for a minority government. There are precedents which we have seen written up in the Constitution Unit's report. People are now seeing different ways of formalising these agreements. We have the examples of Scotland and Wales. I just do not think it is viable to have an agreement that does not have some solid written element to it.

  Q13  Dr Whitehead: There is the circumstance under which the incumbent Prime Minister stays on, as it were, as chief adviser to the Sovereign, over and above his political imperative to form a government; but at what point does the leader of the next largest party get invited to be involved in the process or get invited to the Palace?

  Lord Turnbull: Only when the Prime Minister has concluded that he cannot form a government himself. I think we can take this one stage further: I do not think that in his role as adviser to the Sovereign he can simply go to the Palace and say: "I cannot make it work; you will have to try someone else." I think it is incumbent upon the Prime Minister to present to the Sovereign an alternative arrangement which he believes is going to work and that has been agreed. In other words, it would be a dereliction of duty for the outgoing Prime Minister to leave a limbo in which the Queen has got to try and make a decision. The last thing you want is the Queen to be presented with trying something out which may not command political support. It has happened in her dominions and it has been controversial, but it would be most regrettable if it happened here.

  Q14  Dr Whitehead: Does that mean that the leader of the next largest party following the result of the election, as it were, simply has to wait in the wings, or does the leader of the next largest party have any role in that particular process in your view?

  Lord Turnbull: He may be arguing that he can form an administration, but I think it is clear that the incumbent Prime Minister in a sense has first refusal in this process. He can see whether he can find an arrangement that would produce support for himself and his party. This is what happened in 1974: even though Edward Heath was not the leader of the largest party, he was the incumbent. Until that process had run its course, only then was the opportunity offered to the leader of the next party.

  Lord Butler of Brockwell: If I can just endorse that, the leader of the second largest party might be having discussions with other political parties, but it is important that the Queen is not involved until the Queen can be sure that the person she invites to form a government has got the best possible chance of doing that. That is something which the outgoing Prime Minister has got a duty to advise her on.

  Lord Turnbull: There may be circumstances, for example, where the Prime Minister decides if he or she will submit a Queen's Speech, but without any certainty that it is going to be carried, and yet may wish to proceed with that. Does the Sovereign have a particular role at that point in perhaps saying, "That does not look like it is going to work; could we please call somebody else."

  Lord Butler of Brockwell: The answer to that question is "no"[1]. If the incumbent Prime Minister decides to present a Queen's Speech, then he has a right to do that, and wait for the outcome of Parliament. I think the fact is that for nearly 200 years a Prime Minister, as a result of an election, has not faced Parliament and been voted down on a vote of confidence; but one can imagine circumstances in which the Prime Minister might want to try that out.


  Q15  Dr Whitehead: There may be alternative circumstances where the incumbent Prime Minister may go to the Palace and say: "This is an awful mess, is it not; there is no overall result; why do we not have another general election?" At what point does the Sovereign have a hand in that sort of situation?

  Lord Turnbull: That was dealt with in 1950 with the so-called "Senex letter" of Sir Alan Lascelles—he wrote under the pseudonym—which sets out some conditions under which a second dissolution could be denied. In other words, if the Sovereign thought there was a possibility that someone else could produce a workable majority, then they should be given that chance, rather than someone saying: "Can I have another election in a few weeks' time?" I think there are strong pressures against someone asking for a second election, saying, "I did not quite win last time but let me have one more go." Those principles have been around for 60 years.

  Q16  Chairman: Is the letter to The Times in 1950 under a pseudonym Senex, which we now know is Alan Lascelles, a constitutional document that now guides us?

  Lord Turnbull: In a strange way, it is, yes; people have accepted the logic of the arguments that he put forward.

  Lord Butler of Brockwell: I think that things have moved on in this respect, as Lord Turnbull said. There is a factor which protects the Queen from having to get into that position of refusing the incumbent Prime Minister a further election; and that is there is evidence that the British people so dislike being taken to the polls that if they were forced to have another general election they would heavily punish the person they saw as responsible for it. I think it very unlikely in those circumstances that the Prime Minister would say, "May we have another general election, Ma'am?" and hope to do well in it. I do not think it is likely that in practice the Queen would these days be put in a position of having to refuse a general election.

  Q17  Dr Whitehead: There may be other circumstances, to put a final scenario, that the incumbent Prime Minister does not look like he or she is going to be able to form a government, but it is not necessarily the case perhaps in the Sovereign's and others' opinions that the party of that incumbent Prime Minister might be able to form an administration. At that point the Sovereign might conceivably say, "Yes, perhaps someone could have a go from your party at forming an administration but it is not you, Prime Minister."

  Lord Butler of Brockwell: Again, I do not think that the Sovereign ought to be put in that position, or would be put in that position. It would be the duty of the politicians to work it out, and of the incumbent Prime Minister to go to the Sovereign and say: "I do not think I can form a viable government in partnership with other parties, but it has been made clear to me that if there was another leader of my party it would be possible." I think in those circumstances the right course would be for the Prime Minister to stay on while the procedures for producing another leader went through, and until he could go to the Queen and say: "There is another leader. The other parties have indicated that they will support the party in those circumstances, and I advise you to send for that person." That might take three weeks or so. That is when you would get into the position of possibly quite a long delay.

  Lord Turnbull: This would be hugely controversial. Supposing Labour had two more seats than the Conservatives, and the Liberals said: "We will form a government with you but not with your leader; you find another leader." What the Conservatives would be saying is, "Are you serious that this country should be led by someone who did not stand in the election as a potential Prime Minister, who was not tested in any of the debates, as opposed to someone who has gone through that process and is only two seats short and possibly has a lot more votes?" That particular example you have given of whether a leadership switch can be made is, I think, a very difficult one.

  Q18  Chairman: Where would the Palace get its advice in this situation, from you or from whom?

  Lord Turnbull: Our successor, I think is the answer. The Palace can get advice from wherever it likes, but it should definitely include advice from the Cabinet Secretary.

  Lord Butler of Brockwell: I think it is known that the Palace does have other constitutional advice. As Lord Turnbull says, it can take advice from anybody.

  Q19  Dr Palmer: We have an element of deliberate ambiguity in the British constitution, starting with the fact that we do not have a constitution; but I thought that what Lord Turnbull said was interesting, that the Prime Minister has a responsibility for advising the Sovereign on what steps to take even if those steps are to replace him. There will be situations where there is a legitimate difference of opinion on who might have a stable majority. I am thinking of the marginal cases where a couple of dissident MPs in a potential majority could be expected perhaps to vote against, but their intentions are not entirely clear—you are aware of the type of situation. In that situation, are you really saying that the outgoing Prime Minister has a responsibility to say, "Oh, I think that Fred is the one who is likely to come out best with this"? Would it not be more a question of Parliament testing it in a series of votes?

  Lord Turnbull: I think you are right. The way I look upon the election is that it creates an electoral college. As Lord Butler has said, it does not determine an outcome directly. Unlike the US, the electoral college is the legislature, and ultimately these propositions have got to be tested there. You can see where support really lies, who is bluffing and who is not. Ultimately Parliament may have to perform that role.

  Lord Butler of Brockwell: I think that it would not simply be a matter of the incumbent Prime Minister expressing an opinion; I think the incumbent Prime Minister would be expected to have some evidence, i.e., in statements by the other parties that they would support an alternative head of government.

  Q20  Chairman: Is this not history now that parties elect their leaders by various different processes, all of which take quite some time?

  Lord Butler of Brockwell: I think it is history—exactly—that the incumbent Prime Minister will simply express an opinion as between two people.

  Q21  Chairman: I meant history in the sense of being no longer applicable.

  Lord Butler of Brockwell: Exactly. The Sovereign should not be expected to act on that and there would be procedures to resolve the issue, as you say, by parties undertaking their own election.

  Q22  Dr Palmer: To complete my point, I do not think the Sovereign can reasonably be expected to form a view on the opinion of each individual backbencher on whether they are going to follow their party's preference for one leader or another. Someone is going to have to take the initiative to decide the order in which potential governments are tested in the House of Commons. Am I right in saying that your understanding is that the initiative basically rests with the current Prime Minister, and after that the Sovereign can look at alternatives?

  Lord Butler of Brockwell: Yes, but on the basis of as good evidence as the incumbent Prime Minister can produce. You are right in that it might fail. Let us say there was a backbench revolt and the person whom the incumbent Prime Minister had advised the Sovereign to summon brought a Queen's Speech, and that Queen's Speech was defeated, and then the process would have to go on again. The essential thing would be that it would be for the politicians and the House of Commons to work it out, and the Sovereign should stay above that frame.

  Q23  Mr Heath: Can I just put it to Lord Turnbull that he came up with two mutually contradictory statements in consecutive answers? He correctly stated the view that Parliament is effectively the electoral college for determining the administration; but in a previous answer he postulated a quasi presidential view, that nobody who had not been presented to the country as the potential Prime Minister could possibly be considered by that college on the grounds that they were untried and untested in television debate. I am not sure I accept both of those views simultaneously.

  Lord Turnbull: I was not saying that the second of those was the true constitutional position; I was saying that is what I would expect, in current circumstances, the Conservatives to be arguing.

  Q24  Alun Michael: Can we focus on the role of the Cabinet Secretary, a shadowy role that is illuminated mainly by Yes, Minister and Yes, Prime Minister perhaps! What role does the Cabinet Secretary play in the process of the formation of a potential government by an incumbent Prime Minister, and would that role be different if the process is being undertaken with the leader of what until then has been an opposition party?

  Lord Butler of Brockwell: We are talking about the circumstances of a hung Parliament, I take it?

  Q25  Alun Michael: I am asking in general. Obviously it comes more into focus with a hung Parliament.

  Lord Butler of Brockwell: The Cabinet Secretary will be the adviser to the Prime Minister, but of course there is a convention that is in operation, for some 15 months before the election; there can be contacts between the opposition parties and the senior Civil Service and obviously between the leader of the opposition and the Cabinet Secretary. Indeed, even outside those conventions, with the Prime Minister's permission there may be such contacts at other times and frequently are. The Cabinet Secretary would be taking an apolitical role and would be a neutral person who would be available for advice to any party.

  Q26  Alun Michael: Is Lord Turnbull willing to give a less planned response?

  Lord Turnbull: No! The Cabinet Secretary has available advice of his own. The one person I turned to a lot was the First Parliamentary Counsel who was the repository of a great deal of wisdom and knowledge on the law and the conventions. It is to them where the Prime Minister will turn to for advice in the first instance.

  Q27  Alun Michael: In the event that there is a hung Parliament—and that obviously involves discussions about a government formation rather than a decision by a single leader—does the Cabinet Secretary or the Cabinet Office in any way have a role in the process; and, whether it does or not, should it?

  Lord Turnbull: It can do. To some extent this has been pioneered in Scotland where what I would call the old Permanent Secretary of the Scottish Office, head of the executive, has now developed processes for handling the formation of a new government, and it is the same thing in Wales. One of the possibilities canvassed is that in effect the Cabinet Office and its equivalent in the devolved administrations would appoint liaison officers. There would be someone designated to work with each of the other parties and be their point of contact and source of advice. The Cabinet Secretary would undoubtedly stay working with the Prime Minister of the day.

  Q28  Alun Michael: In a sense, that is inevitable with the almost inevitability of a coalition government in Wales and Scotland, so those mechanisms are necessary. In the case of the UK government is that role clear? Have there been developments, for instance since 1974 in the development of conventions?

  Lord Turnbull: No, the answer is that there have not been, but the work of the Constitution Unit is saying that there should be. One of the key reasons for that is that the width of the no man's land of people other than the two main parties is far larger than it was. Even as late as 1992, there were still only 20 Liberals. Therefore, the probability of being caught in this no man's land must be greater than it was, and therefore we ought to begin thinking about better mechanisms for handling something which has not happened but which probably has a higher probability of happening now than it did 40 years ago.

  Lord Butler of Brockwell: I think that the position of the Civil Service is that it could service discussions between the political parties at the request of those parties and with the permission of the Prime Minister. I think both those conditions would have to be fulfilled. I think it is likely they would be fulfilled, but I think they would have to be. The other thing with the Civil Service is that it could service the discussions. It could not advise on the political tactics. It would be a matter of setting agendas, arranging meetings and keeping minutes.

  Q29  Alun Michael: I think that is an important answer in the sense that, obviously, these are essentially political and relational discussions, are they not?

  Lord Butler of Brockwell: Yes.

  Q30  Alun Michael: And therefore there is a danger, if the Cabinet Secretary becomes embroiled in the content as distinct from the process.

  Lord Butler of Brockwell: That is absolutely correct. That is the right distinction, I think.

  Q31  Alun Michael: The suggestion that the Cabinet Office is producing a Cabinet manual with a section on the process of transition, as I suppose one ought to describe it, how important is a public statement of a shared understanding of provision and principle in these circumstances?

  Lord Butler of Brockwell: I think it would be valuable because it is important that if this situation arises there would be a good deal of public understanding about the circumstances; and, for example, understanding about the point that we made at the beginning that the Prime Minister does not automatically lose office because he loses the election. The general public out there probably believe that it is the case that he would, and so there would be a tremendous fuss. I think that public education on this valuable.

  Lord Turnbull: I think it is useful, for the reason Douglas Hogg mentioned, to have settled a lot of these principles in advance and mentally rehearsed a variety of different outcomes, because it may be highly desirable to produce an outcome faster rather than more slowly.

  Q32  Alun Michael: Does not sod's law in politics indicate that whichever scenarios you envisage, it will be a different one that turns up?

  Lord Turnbull: It may well be the case.

  Q33  Alun Michael: So could not rules be a constraint as well as a help?

  Lord Turnbull: No, I think it is useful for all the players to understand a common set of principles, so that they are not spending time arguing about things that ought to be part of the general consensus.

  Lord Butler of Brockwell: I think that Lord Turnbull's use of the word "principles" is better than "rules".

  Q34  Mr Tyrie: I would like to ask you about caretaker arrangements, but before I do, I would like to go back to one remark just for clarification that you made a moment ago, Lord Butler. You said that the Cabinet Secretary, in the event of a hung Parliament is available to advise the leader of the opposition. Does he consider that his role as adviser on these issues is equal, or does he have a primary responsibility to advise the incumbent Prime Minister; and when was such advice last sought and taken?

  Lord Butler of Brockwell: I think you are right to qualify what I said. I think his principal duty remains to the Prime Minister, but I would expect that, just as before the election, the leader of the opposition would have access to the Cabinet Secretary. I would expect that the Prime Minister would agree to that continuing after the election as well. The range of advice would be the same: it would be factual rather than policy.

  Q35  Mr Tyrie: And it will be factual rather than policy with the Prime Minister as well?

  Lord Butler of Brockwell: Correct.

  Q36  Mr Tyrie: On the caretaker arrangements, it is now intended that we should spell out in a Cabinet manual what these arrangements are; so even to the relatively informed insider the element of ambiguity, such as it is, will certainly be removed. What sanction is available to a Cabinet Secretary if a Prime Minister decides not to take the advice of the Cabinet Secretary and demands that a decision be taken which, in the opinion of the Cabinet Secretary, is something that goes beyond the minimum required for the conduct of good government during a caretaker period?

  Lord Turnbull: I think this is probably rather like an Accounting Officer's direction. It does not have a statutory backing in the way that that does. It is now the accepted practice that those directions which are regular but not frequent are reported to Parliament. It should be known that if the Cabinet Secretary believed that, for example, making a particular appointment was not strictly necessary but was being proceeded with, the minister concerned would be able to say, "I have received your advice; nevertheless, for the following reasons I think it is necessary to proceed with this and I so direct you to proceed."

  Q37  Mr Tyrie: If the Cabinet Secretary strongly disagrees he has got to go public, has he not?

  Lord Turnbull: I would say "yes".

  Q38  Mr Tyrie: How would he go about that: issuing a press release, holding a press conference? What exactly is the mechanism now that we are formalising all of this?

  Lord Turnbull: This mechanism is yet to be developed.

  Q39  Mr Tyrie: What should be the mechanism, that is the question I am asking?

  Lord Turnbull: I think by some means the Cabinet Secretary would say, "When you announce this, Prime Minister, it should be clear that you have proceeded on your authority, and used your judgment" if the Cabinet Secretary did not think this was essential. He is not saying it is wrong; it simply means that it is then clear whose judgment it is that is relied upon.

  Q40  Mr Tyrie: You will have to provide your reasons, will you not? It is not enough to say, "I disagree" and then fall silent again.

  Lord Turnbull: Possibly, yes.

  Q41  Mr Tyrie: I am trying to eliminate this ambiguity with this word "possibly" creeping in. Now we have a Cabinet manual it seems to me that this level of ambiguity is going to be quite problematic.

  Lord Turnbull: I think the idea that only essential business is conducted during an election is not one of the things that will be new in this manual. This exists already. I am pretty sure it is in the existing Ministerial Code. It is a question that could have been asked at any time in the last 20 years actually.

  Q42  Mr Tyrie: I am asking it now because we are publishing a Cabinet manual, and you correctly referred a moment ago to the fact that you can go to the First Parliamentary Counsel for advice. Would not a logical course be for you to obtain advice and publish it?

  Lord Turnbull: I do not think I favour publishing the advice the Cabinet Secretary receives because ultimately you get advice from various points, but if it came to it he would have to say why he thought, as in a Cabinet Office issue, this was not a proper public action, and the minister concerned would have to say why he thought it was.

  Lord Butler of Brockwell: I would suggest that the simplest mechanism is like the direction given to an accounting officer. The Cabinet Secretary should ask the Prime Minister to give a direction, or the Permanent Secretary should ask the Secretary of State to give a direction, and that direction should be reported to Parliament. That is what happens in the case of an accounting officer, and that is what I would expect would happen in this case.

  Q43  Mr Tyrie: One last question: with all this written down in this manual, were such a decision to be taken which might have adverse effects on some party in the country or some group, which may be very upset about it, who know the decision was taken in this way against the advice of the Cabinet Secretary, are any of these issues in this Cabinet manual now going to be subject to judicial review?

  Lord Turnbull: I do not know the answer to that. I would very much hope not.

  Q44  Chairman: Triumph of hope over experience!

  Lord Turnbull: None of this would be relevant to an election. A judicial review would be rather pointless because it would all come about afterwards.

  Q45  Mr Tyrie: The decision may affect a group or an individual in a big way and he or she may be very upset about it.

  Lord Butler of Brockwell: I think there are two lines of defence for an aggrieved citizen in those circumstances. The first line of defence should be Parliament; that this is reported to Parliament, and Parliament takes action on it. If that does not work, then I think it is perfectly open to a citizen to apply for judicial review on the grounds that the decision was not a decision that a reasonable person should have taken.

  Q46  Mr Tyrie: The assessment of reasonableness would be based on the advice given by the Cabinet Secretary to the Prime Minister that was overridden on a direction.

  Lord Butler of Brockwell: Possibly. I have used a word that you did not want used! I think this is a legal matter really and it would be for lawyers to say whether a judicial review would be likely in the circumstances.

  Q47  Mr Tyrie: There are many advantages in writing these things down, Lord Butler, but one of the disadvantages is that the lawyers tend to get more involved.

  Lord Turnbull: One of the advantages is that it raises the cost to all those involved of proceeding on a disagreed basis, and therefore it is less likely that these things happen.

  Mr Tyrie: I understand.

  Q48  Mr Turner I am really going back to the beginning. We are saying that on some occasion which may happen in the future we are talking about not four days but four weeks with a question mark over who is the Prime Minister, is that correct?

  Lord Butler of Brockwell: Yes.

  Q49  Chairman: Is that the same point?

  Lord Turnbull: Subject to the caveat that circumstances may be such that the participants realise that they cannot spend four weeks on this issue.

  Q50  Mr Turner They cannot spend four weeks, so they are forced into the corner.

  Lord Turnbull: They are forced to take a decision more quickly than that because they realise that damage would be done by the sight of politicians wrangling, making no attempt to reach reasonable compromises; so there are pressures on them. I know it is the case in some other countries that you can take weeks, but if you are facing the position where there are important decisions to be taken, there will be strong pressures on everyone not to take four weeks. It may take more than four days but I very much doubt it is going to take four weeks.

  Chairman: I am very conscious of the time. We can pick up in the next session things we have not managed to get through in this one.

  Q51  Rosie Cooper: Does the Civil Service function, indeed, is it required to function differently in a coalition government, and how would civil servants handle their obligations to ministers of different parties?

  Lord Butler of Brockwell: This is of course not tested in recent times, but the Civil Service serves the Crown, which is represented by the government of the day. A permanent secretary would be responsible to his or her minister, whichever party that minister came from; and through that minister to the Cabinet; so that is the way I would expect the system to work.

  Q52  Rosie Cooper: You do not see any difficulties in there?

  Lord Butler of Brockwell: Of course there might be practical difficulties, but in other countries they get round them, and in Scotland they get round them.

  Lord Turnbull: The Civil Service is constantly reminded by its colleagues in local government that they do this every day of the week.

  Q53  Rosie Cooper: Looking at extrapolating that a bit to the difference between the Cabinet Office and Number 10, how would those respective roles be different in a coalition government, especially because Number 10 essentially serves the Prime Minister?

  Lord Butler of Brockwell: Correct. Just as in a department the staff of Number 10 support the Prime Minister now, the staff of the Cabinet Office support the Cabinet as a whole, as does the Cabinet Secretary; but clearly the Cabinet Secretary has a particular relationship with the Prime Minister as the chairman of the Cabinet.

  Mr Hogg: I wanted to go back to a situation which may well occur when the Prime Minister of the day, the incumbent Prime Minister, does not have the ability to form a majority government. From your description of his role the incumbent Prime Minister is the facilitator; he has got to suggest to the Monarch an arrangement that might work. That suggests an accommodating nature on the part of the Prime Minister which not all of us immediately recognise so far as the incumbent Prime Minister is concerned.

  Chairman: Or some previous Prime Ministers.

  Q54  Mr Hogg: No doubt some previous ones as well, but we are talking about the incumbent one. That being so, is there anybody to whom the Monarch can turn in the event that the incumbent Prime Minister proves less successful as a facilitator than we might all wish, for example the Cabinet Secretary?

  Lord Butler of Brockwell: No, there is not. The Prime Minister is the Sovereign's principal adviser, and it must be through the Prime Minister that this advice comes. What we have described is what we regard as the national duty of the Prime Minister.

  Q55  Mr Hogg: Who is going to remind the Prime Minister of the national duty?

  Lord Butler of Brockwell: I do not think there is any reason to suppose that this Prime Minister would not fulfil his national duty.

  Q56  Mr Hogg: That is your considered opinion, Lord Butler!

  Lord Butler of Brockwell: That is my considered opinion.

  Q57  Alun Michael: You said a few moments ago that a Prime Minister should be forced to accept that there is a heavy price to be paid for proceeding other than by agreement. This was in relation to matters of judgment. Given that weaknesses of personality apply on either side of the divide, is it not necessary for there to be an equally heavy price to be paid by a Cabinet Secretary who strays into making a political judgment in expressing that disagreement?

  Lord Turnbull: It is part of the culture and ethos honed over many years that the Civil Service led by the Cabinet Secretary is impartial; and somebody who is seen not to be impartial I think would pay a price and would lose the confidence of whoever came next. Part of the Civil Service code says you are not only impartial—in other words you will serve other people who may form a government—but in your present role you have to give assurance to whoever aspires to this, that you will serve them.

  Q58  Alun Michael: The point I am making is that we all hope that the highest levels of the code will be observed by politicians and by civil servants, but it does not always happen; and therefore when you are taking the Cabinet Secretary into the area of having to exercise a judgment, which is what this amounts to, it may get close to the point, depending on the circumstances, that Lord Butler made very clear: the expectation on the Cabinet Secretary and the Cabinet Office is the support of the exercise, and the decision-making process not entering into the political judgments themselves.

  Lord Turnbull: There was a predecessor who was dubbed "The Deputy Prime Minister", and that is a position that no Cabinet Secretary should really ever want to be in. I think that is an important sanction.

  Lord Butler of Brockwell: A predecessor as head of the Civil Service, not as Cabinet Secretary.

  Chairman: At that point we can thank you both very much indeed and invite our next group of witnesses.





1   Note by witness: I should like to make clear that in my second answer to Q14, when I said that no Prime Minister who had lost an Election has faced Parliament and been voted down for nearly 200 years, I was referring to Elections in which another party has gained an overall majority. It would have been more correct to say "nearly 150 years". I am advised that the first occasion in which a Prime Minister in such a situation resigned without facing Parliament was Disraeli in 1868. In situations when no other party had an overall majority, Salisbury faced Parliament in 1886 and 1892 and Baldwin did so in 1924. Back


 
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