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2 August 2016

Could a divided Labour party lose its status as the official opposition in the House of Commons?

As SNP unity, and rumours of a Labour split, call the definition of “Her Majesty’s Official Opposition” into question, what actually constitutes the official opposition, and could Labour lose that title?

By Stephanie Boland

With the prospect of a Labour split being rumoured in the press for months, the question of who would be the official opposition has inevitably arisen.

The SNP in Westminster has even made a bid to replace Labour as the official opposition in the Commons, citing Jeremy Corbyn’s loss of two-thirds of his shadow cabinet.

According to the UK Parliament website, and the House of Commons standing orders: “The opposition . . . refers to the largest political party in the House of Commons that is not in government.”

The page on “Her Majesty’s Official Opposition”, meanwhile, says that the opposition is “usually the political party with the second largest number of seats”.

If that sounds straightforward enough, there is some room for ambiguity.

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Erskine May, the book generally held to be the most authoritative guide to parliamentary procedure, refers to the official opposition as being, “the largest minority which is prepared, in the event of the resignation of the government, to assume office”.

So how is the official opposition chosen – and what constitutes “being prepared to assume office”?

We asked Dr Catherine Haddon, from the Institute for Government, for clarification:

“The exact text from the Ministerial and Other Salaries Act sets it out:

“This relates to the decision of the official opposition on the basis of who gets front opposition benches and also who gets funding for being the official opposition.

“The reason for the Erskine May description relates to the evolution of Her Majesty’s Loyal Opposition over the course of the 19th century. We have had occasions where, after the fall of a government, an alternative prime minister felt unable to form a government and also refused office. However, this was also during a time in which the more coherent political parties we have today did not exist in the same way.

“Put simply, it evolved that the purpose of the opposition was constitutionally to sit in waiting as an alternative government and it was increasingly recognised as a constitutional entity in that way, eventually getting more rights and recognition but with Short Money also being officially recognised. 

“The SNP formulation doesn’t stand because it is a hypothetical. Unless Corbyn stated that his party would not accept office if asked (in the event of a sudden fall of the current government or its loss of majority), the assumption has to remain that it does form a viable alternative should the Queen need to call for a change.

“The Fixed Term Parliaments Act also updates the old 19th-century formulation in that it, in theory, provides the means whereby this can be tested or a dissolution can be granted (and we have a new election). Again, this used to be a political and constitutional decision. Ie. if a government/prime minister fell, the monarch could ask someone else to serve, from the same party or from an alternative party.

“The expectation is that the outgoing PM could recommend who to call for or ask for a dissolution (these days the monarch is largely expected to grant it, but there have been historic cases when it was refused and someone else – the opposition  was asked to serve). If Corbyn indicated that, rather than accepting the call to serve, he would – following any vote of no-confidence in the government – prefer the country went to an election rather than he assumed office immediately, I do not think this could be construed as not being a viable alternative government. 

“It is also worth noting that it is the Speaker’s ability to make a decision – but only if there were not clarity as to who the official opposition would be. This might occur if the numbers were very close, but we haven’t seen that since the 1923 election. The only argument here would be if the 80 per cent of MPs who voted against Corbyn seemed likely to refuse the whip or to refuse to serve in a Corbyn government were one likely. If that happened the argument does change. But we are not there yet.”