I've been blogging for the last few weeks on the implications of a hung Parliament and the effect of the Fixed Term Parliaments Act.
Today a much more distinguished lawyer has entered the fray, Professor Adam Tompkins.
I commend and agree with much of Adam's blog but in one critical aspect I think he is fundamentally wrong.That is on the issue of whether, in light of the terms of the Act, a Government can resign without the consent of the opposition either to take office themselves or to dissolve Parliament.
The figures Adam posits for the election outcome are broadly in line with my own previous hypotheses: A Tory Party clearly ahead of Labour in Commons seats but without, even with the Liberal Democrats, an absolute majority in the Commons.
I agree entirely that the starting point then is that David Cameron gets the first attempt at a continuing administration.
But where I disagree with Adam is as to what happens if that administration fails to secure a Commons majority on its legislative programme.
Adam suggests that the Government would resign and the Leader of the Opposition would be invited by the Queen to attempt to form an administration. Now, if it was known in advance that the Leader of the Opposition had the willingness to form an administration, or at least to try, I agree that is what would happen. But to my mind Adam misses one central point.
The day to day administration of the Country requires a Government and a Government requires a Prime Minister. We are in an election period and there are no MPs but David Cameron is still the Prime Minister and his Ministers are still Ministers of the Crown. From day to day they will still be called upon, necessarily, to exercise executive functions.
So what if the Governing Party offers to resign but the principal opposition party is either absolutely unwilling or at least as yet undecided as to whether even to attempt to form a Government?
It seems to me that in that circumstance the current Government can offer to resign but the Queen is not obliged, indeed could not, accept that resignation.
I illustrate that with an obvious example.
The purpose of the Fixed Term Parliaments Act is to prevent the current governing Party, in the person of the Prime Minister, having the effective right to require the Queen to call a General Election at a time of their choosing.
The Act is quite clear. Only two things now can trigger an early election. The first is the House of Commons voting for one by a two thirds majority. The second is the House of Commons passing a motion specifically declaring itself to have no confidence in the current Government AND no motion declaring confidence in an alternative Government then being passed within a fourteen day period thereafter.
Resignation of a Government is not mentioned in the Act but if resignation did effectively also trigger an election then the Act would have no meaning.
For, logically, a Government with a comfortable overall majority desiring an early election could simply resign. By Adam's argument the opposition would have to (?) take office and the majority party could then simply use that majority to pass a no confidence vote and achieve their objective of a dissolution.
That can't be right. Surely in that situation the Queen would refuse to accept the Governing Party's resignation.
And, in my opinion, if the coalition government sought to resign before Ed Miliband was sure he wished to attempt to form an administration, a similar scenario would ensue.
That's not to say the Prime Minister, or particular departmental ministers could not resign as individuals but in the case of the former development the Queen would simply invite another member of the governing Party/ies to serve as her Prime Minister pro tem. Of course you could get the absurd scenario of nobody being willing to be Prime Minister but before that point was reached I suspect there would be the two thirds Commons majority available for a dissolution.
This is where the Nats get lost. Their assumption is that if Labour plus the SNP have a Commons majority then somehow Ed would be obliged to become Prime Minister and, in the process, Labour be obliged to form an administration.
But we wouldn't.
Again, I illustrate that with another obvious example.
Suppose it was not the SNP but UKIP who were enjoying a surge. And suppose Labour had fewer seats than the Tories but Farage announced he would, for reasons of his own, be prepared to support a Labour Government. Would we take office on that basis? Not for five minutes.
Now, the SNP say that in real life Labour would grasp any chance of power. In that, in my view, they are simply wrong. Whether the Nats like it or not, even protest it to be unfair, much of the Labour Party finds their politics as distasteful as those of the Kippers. And, to flatter the SNP, supposing their prominence in Scottish politics is a permanent one, such would be the likely electoral backlash in England to the "losing" Party somehow winning "their" election, that it would be likely Labour would lose ground in England without recovering it in Scotland. Never mind forever losing the argument in Scotland that if you want a Labour Government you need to vote Labour.
My final point is this however. The Fixed Term Parliaments Act has the capacity to "trap" a Party in power. A Labour Government could find its legislative programme regularly blocked by the Nationalists but unable to dissolve Parliament because the same Nationalists refused to vote against us in a confidence vote. Because, I repeat, that Government couldn't then simply resign.
Now all this might yet be academic. Labour might yet have a Commons plurality. Or indeed the coalition a small majority. Barring either however it is increasingly difficult to see past an October re-run. The one and only thing the surge might deliver to the SNP is, if they wish it, a re-run even sooner than that.