Written evidence submitted by Professor
Anthony Bradley (FTPB 05)
1. This is a short Bill, but it has profound
implications for parliamentary government. It seeks to make a
permanent change in the relationship between the Prime Minister
as head of government, the House of Commons, and the electorate.
If we had a written constitution, the changes proposed by the
Bill would in all probability require the formality of a constitutional
amendment. Our unwritten constitution has both the obvious advantage
of flexibility, and the disadvantage that a piecemeal response
to a temporary need may bring about a permanent change before
all the implications have been fully considered.
2. In my view, it is necessary to distinguish
between (a) the immediate circumstances that have led to the Bill,
namely the result of the general election at a time of financial
crisis, and the formation of the coalition Government with an
ambitious programme that it wishes to deliver by remaining in
office for as long as the law permits; and (b) the arguments that
have been advanced during recent Parliaments (in particular by
Dr Tony Wright MP and David Howarth MP) for adopting a system
of fixed-term Parliaments. The Bill provides what is essentially
the same response to these two sets of considerations. It should
be enacted in its present form only if Parliament is satisfied
that the long-term changes are justified in their own right.
3. One matter that in my view may be left
out of account is the position of the Queen. Under the formal
process of dissolution, the Queen must by convention accept the
Prime Minister's request, but she has no absolute duty to do so.
Thus she could refuse a dissolution in exceptional circumstances
when it would plainly be an abuse for an election to be held (an
unpopular Prime Minister may not follow up defeat at one election
with an immediate request for a second election). A more difficult
situation in which a request for a dissolution might be controversial
would be where a Prime Minister were to seek an election to pre-empt
a challenge to his or her position as party leader. Where no party
has an absolute majority in the Commons, other difficult situations
could emerge. Despite these potential difficulties, which are
well explored in Professor Rodney Brazier's book Constitutional
Practice, concern for the future role of the monarch is not in
my view a reason for switching to fixed-term Parliaments.
4. As regards the provision in the Bill
that the next election will not be until 7 May 2015, an assurance
to this effect could be given by the coalition Government without
legislation. Of course, a non-statutory assurance could be set
aside if events occurred that made an earlier election desirable.
By contrast, a statutory assurance continues in force regardless
of changing circumstances: it could be revoked by a later Act,
but not by unilateral decision of the Prime Minister or the Government.
The proposed statutory assurance rightly does not seek to be absolute,
since it is qualified by two provisions for an earlier election:
one involving a motion of no confidence, passed by a simple majority;
the other a motion for an early election, passed by a two-thirds
majority of all MPs. The two-thirds majority of all MPs is indeed
a high hurdle, and it could not be secured in the present House
of Commons unless enough Labour MPs joined coalition MPs in voting
for an early election. Nevertheless, there is plainly an arguable
case for giving statutory form to the Government's wish to continue
until May 2015, subject to the two forms of override proposed,
novel as these provisions are.
5. On the more general question, and leaving
aside the immediate political situation, there is certainly a
strongly arguable case that democracy in the United Kingdom will
be strengthened by a system of fixed-term parliaments, in place
of the uncertainty that flows from the present practice by which
a general election may take place at a time that best suits the
Prime Minister or the Government in power. Speculation about the
date of the next election plays much too large a part in our politics.
However, the implications of the change need to be fully explored
in public debate, and if this is done it should help to create
a broad consensus in favour of the change. The Labour government
under Mr Blair was responsible for initiating major reforms affecting
the judiciary (eventually incorporated in the Constitutional Reform
Act 2005) in a wholly inept way that prejudged informed debate
and ran the risk of prejudicing some beneficial reforms. The coalition
Government needs to take a more skilful path than this in building
a consensus for the long-term constitutional reform that it wishes
to see.
6. One way of achieving this would be for
the present Bill to be split into two: one Bill limited to the
present Parliament, which could pass quite speedily into law;
and a second Bill making permanent provision for the life of future
Parliaments that would be subject to a full process of consultation
and debate. If it is too much to expect the Government to accept
that there should be two separate instalments of legislation,
the Government should be pressed to give ample time in Parliament
for the implications of the permanent changes to be fully explored,
with a view to promoting a consensus in support of these changes.
To take the Bill in committee of the whole House is not in itself
enough to achieve this. It is also important that the relevant
committees in both Houses (the Political and Constitutional Reform
Committee in the Commons, and the Constitution Committee in the
Lords) should be able to report on the implications of fixed-term
Parliaments before the Houses are called on for a definitive vote.
7. One major issue of principle that needs
to be resolved, assuming that the case is made for fixed-term
Parliaments, is what that fixed term should be. The switch to
a fixed term is so significant that an open debate on this matter
is justified. In my view, the Bill is wrong simply to apply the
present maximum life of five years to a fixed-term system. The
five-year rule came into being in different historical circumstances.
I believe that many electors would take the view that they should
be able to exercise their fundamental democratic right to vote
more frequently than once in five years. The public concern over
the scandal of parliamentary expenses surely provides support
for this view. Moreover, many recent Parliaments have shown that
a four year period is well capable of enabling a government to
carry through a programme of legislative and administrative reform.
More detailed arguments, including comparative material, could
be made in support of a four-year term. In summary, I consider
that the change to a fixed-term system should not be made unless
at the same time the life of Parliament is reduced to four years.
The reduction should, however, not be applied to the present Parliament.
8. A more technical question that arises
from the present Bill is the meaning of "a motion of no confidence".
Is this limited to a motion that expressly declares that the House
has no confidence in the Government, or does it include motions
in other terms that strike at the ability of the Government to
continue in office—for instance, the rejection of the Government's
budget resolutions, or a motion that accuses the Prime Minister
or other Ministers of corruption or dishonesty? As the Bill by
clause 2(4) provides for the Speaker to consult the Deputy Speakers
before certifying that a motion of no confidence has been passed,
does this envisage that it may not always be evident when such
a motion has been passed? It would appear from clause 2(3) (certificate
to be conclusive for all purposes) that the intention is to exclude
any possibility of the courts being asked to rule on these parliamentary
matters—and this intention is consistent with our historical
tradition.
9. Finally, there is always a danger that
a specific measure of constitutional reform is treated as a piecemeal
matter. The Government's case for fixed-term Parliaments needs
to be assessed in relation to other changes in the electoral system
that the Government is considering.
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