In her manifesto speech on Monday, Nicola Sturgeon made an apparently clear statement of the SNP’s position in the event of a hung parliament:

“We will not do any deals that would put the Tories into power – indeed, if there is an anti-Tory majority after May 7th, we will vote to stop a new Tory government even getting off the ground.”

This is consistent with previous SNP statements, such as this one from their deputy leader, Stewart Hosie:

“Electing a strong team of SNP MPs will let Scotland lock David Cameron out of Downing Street…”

In both cases, the chosen wording ignores the fact that David Cameron is the sitting Prime Minister. As such he is already in Downing Street and thus can’t be “locked out” unless first compelled to leave.

Though much has been written about the effect of the Fixed-term Parliaments Act, it doesn’t change the fact that the sitting PM gets the first chance to form a viable government. Nor does it change the other constitutional conventions that determine events immediately following an indecisive election result.

These conventions are explored in a fascinating post by Carl Gardner on his Head of Legal blog:

“Under our Parliamentary system, the test for whether a Prime Minister can govern or not is whether he (or she) commands a majority in the House of Commons. Once it’s clear to the Prime Minister that he no longer does so, by convention he should resign.”

Gardner makes the crucial point that “it’s the existing Prime Minister’s loss of a majority that is decisive” – whether there’s an alternative majority waiting in the wings is not relevant (at least not straight away). There’d be no requirement for Ed Miliband to show up at the Palace with a coalition deal (or similar agreement) in his pocket:

“…when the PM resigns, the minority leader of the biggest opposition party can expect to be appointed in his place even if he refuses any deal with others.”

But there’s another crucial point to note here:

“…the duty to resign only arises when it’s clear that the PM’s majority is gone. He’s entitled to carry on as long as he might still have one (as Ted Heath did in February 1974). Ultimately, any uncertainty is resolved in the House of Commons itself. If he seriously thinks he can present his plans and win MPs’ approval for them after the election, David Cameron will be entitled to carry on and test the opinion of the House…”

There are many different ways in which the election result could be so finely balanced as to make the likely outcome of a confidence vote unclear until actually held – by which time a new Tory government would already be “off the ground” (if only briefly).

This possibility therefore injects a note of ambiguity into Sturgeon’s statement of intent. To avoid any confusion, what she should have said in her speech is that even if the existence of an “anti-Tory majority” were uncertain, the SNP would always vote to bring down a Conservative Prime Minister.

An alternative possibility is that David Cameron would resign rather than submit himself to a confidence vote he couldn’t be sure of winning. This would be a mistake – indeed a dereliction of duty. Losing such a vote wouldn’t be pleasant, but it’s vital that every party and every MP is put on the spot before putting Ed Miliband into Downing Street.

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