223.Prerogative powers are legal powers. Looked at in isolation, these powers are very broad. They allow a Monarch to summon and dissolve Parliament at will, and to appoint and dismiss governments at will. Such a system, stripped from its political context, would appear to be incompatible with the norms of a modern Parliamentary democracy. This is why constitutional conventions have constrained the discretion of both the Monarch and the Executive in the context of dissolution, elections and government formation.
224.Conventions are, as Sir Malcolm Jack put it, “long-standing practice[s] or rule[s] which [are] accepted, and observed, by those to whom [they are] directed.” They are also, as the Joint Committee on Conventions observed in 2006, quite unlike legal rules, in that they are “changeable” and (by the courts at least) “unenforceable”. The flexibility of conventions is seen as one of their strengths, but it also increases the importance of there being a shared understanding of what they are and how steps can be taken to ensure that they are observed. As the Government of the day said in response to the 2006 Joint Committee report: “for a convention to work properly […] there must be a shared understanding of what it means. A contested convention is not a convention at all.”
225.Certain conventions embody constitutional principles that constrain the behaviour of both the Monarch and the Executive in relation to prerogative powers. For example, some prerogative powers, by convention, are exercised by Ministers, or by the Monarch on the advice of Ministers. The reason Ministers typically take these decisions is three-fold.
a)Firstly, unlike the Monarch, Ministers can be held to account by Parliament for their prerogative decisions.
b)Secondly, the Government of the day is presumed to command the confidence of the House of Commons, and therefore (unlike the Monarch) derives democratic legitimacy from it to exercise prerogative powers.
c)Thirdly, if the Monarch is obliged to act on the advice of Ministers, he or she is not understood to be accountable for the substance of the decisions taken. This is intended to insulate the Monarch from both the reality and the perception of being involved in matters of party-political controversy. It is understood to protect the institutional integrity of a constitutional monarchy in a 21st century democracy.
226.When prerogative powers concern the existence of Parliament, the holding of elections, and the formation of Governments, however, the associated conventions necessarily operate slightly differently. It can no longer be argued that Ministers are directly accountable to a Parliament if it has been dissolved, or that, if a Government appears to have lost the confidence of the House of Commons, it derives its legitimacy from its support in the lower house. It therefore is less straightforward, and not necessarily justified, to make the Executive the de facto decision-maker in all circumstances. The “personal prerogatives” (i.e. those in respect of which Ministerial advice is not automatically followed) have typically operated under a distinct set of rules that recognise the unique implications of their exercise.
227.The UK Government’s draft legislation (in most respects) seeks to restore the legal position that existed prior to 2011: that dissolution and calling of Parliaments would once again be prerogative rather than statutory powers. However, legislation—by definition—does not create or restore conventions: it can only create legal rules or, at most, explicitly recognise the existence of judicially unenforceable conventions. If the old conventions on dissolving and summoning Parliaments are to be restored, or indeed if they are to be replaced by new ones, there needs to be a political process to identify, and to articulate, what those conventions are. It is in that context that the Government published its Dissolution Principles document alongside the Bill.
228.The overwhelming consensus of those who gave evidence to the Committee is that the Dissolution Principles document falls short. The concerns raised by witnesses, including those who supported a return to the prerogative system were broadly three-fold:
a)that the document does not adequately distinguish between personal prerogatives (which the Prime Minister “requests” the Monarch should exercise and in respect of which a request might be refused) and Ministerial prerogatives (in respect of which the Monarch is bound to follow the advice of her Ministers);
b)that the document does not adequately articulate the role of the Monarch, in that it fails to articulate the factors that might be taken into account when deciding whether to accept or refuse a dissolution request; and
c)that the document does not address fully the relationship between the conventions on dissolution and those to do with:
i)the calling of a new Parliament;
ii)confidence and confidence motions; or
iii)the formation of governments, whether following a general election or during the lifetime of a Parliament.
229.The Government appears to have relied on the fact that the Cabinet Manual addresses some of these issues as its justification for confining its principles document to matters directly concerned with dissolution. The problem with this approach is that the different conventions are closely linked. The UK’s limited experience of fixed-term Parliament legislation shows how changing the rules on dissolution can change how Governments, and parliamentarians, interpret the rules on confidence and government formation. The current Cabinet Manual addresses the other conventions in the context of there being fixed-term Parliaments legislation. If that legislation no longer exists, that account no longer reflects political practice.
230.The Committee’s attention was drawn to the draft Cabinet Manual chapter entitled “Elections and Government Formation” which was published by the Cabinet Office in February 2010 under the Brown administration. It provides a comprehensive account of the conventions and practice not just on dissolution, but a range of closely related matters. We are surprised that this document appears not to have formed the starting point for the Government’s account of convention and practice under a prerogative system.
231.The “Dissolution Principles” document is inadequate. It does not reflect the nature of the Monarch’s personal prerogatives to do with dissolving Parliament prior to 2011. Further by not considering and setting out the interrelated matters to do with other aspects of the election cycle, confidence of the House of Commons and government formation, it cannot provide a proper guide as to how dissolution should operate under a prerogative. The document cannot form the basis of a “shared understanding” of political practice and conventions which will be needed in future.
232.This Report sets out the Committee’s views on the conventions on dissolution, Government formation and confidence. We expect the Government to respond to it before any legislation is introduced. In that response the Government must address these conventions in detail, explaining where it agrees with the Committee and where it does not. Most importantly, it must give a full explanation in a statement to Parliament for its position. Consideration should also be given to enshrining some conventions relating to confidence in the House of Commons Standing Orders.
234.The boxed text contains the Committee’s understanding of the conventions on elections and government formation under a prerogative system. This should assist the Government and provide the basis from which a new understanding of the shared conventions and practices is understood and how it should be set out in an updated Cabinet Manual.
235.There is one convention which we consider should be enshrined in House of Commons Standing Orders, and there may be others which would benefit from such formalisation.
236.In the past the requirement that a motion of no confidence in the name of the Leader of the Opposition should be debated as quickly as possible has rested on convention. The time taken to arrange such debates has ranged from one to seven days. We consider that motions of no confidence tabled by the Leader of the Official Opposition, whether directed at the Prime Minister or in the Government as a whole, should be debated as soon as possible and preferably on the next sitting day.
237.Given the refusal to find time for a debate on a motion of confidence in the name of the Leader of the Opposition in 2018, it may no longer be sufficient to rely on convention to enforce this. We consider there should be a Standing Order requirement that such a motion of confidence tabled by the Leader of the Opposition should be debated no later than the third sitting day (not being a Friday) after the day on which it is tabled.
Box 1: Principles and conventions on Confidence, dissolution, government formation
Paramountcy of confidence in the UK political system
1.The UK is a Parliamentary democracy, and its Government is not directly elected. It is the administration, by convention drawn from Parliament, that can best command the confidence of the elected House of Commons. The ability of a Government to command the confidence of the elected House of Commons is central to its authority to govern.
Principles on confidence
2.Commanding confidence is not the same as having a majority or winning every vote.
3.Where a Government lacks the confidence of the Commons it must either secure a refreshed mandate from the electorate, or it must instead allow a viable alternative Government to take its place.
House of Commons expression of confidence in the Government
4.A lack of confidence in the Government of the day can be expressed by the House of Commons in four distinct ways:
5.Other than the examples above, votes in the House of Commons are generally not regarded, in and of themselves, as being matters of confidence in the Government, whether or not the Government is defeated.
Conventions on ensuring that confidence can be tested
6.If the Leader of the Opposition tables a motion that would test the House of Commons’ confidence in the Government of the day the Government should enable it to be debated, in Government time, for at least a day’s debate, as soon as possible, and preferably the next sitting day.
7.So that there is no uncertainty as to whether Government time has to be made for a confidence motion, the Leader of the Opposition should ensure that the wording of the motion is clear: that it does indeed intend to test the House’s confidence in the Government, rather than simply to censure a policy or member of the Government.
When a Government loses confidence of the House
8.If the Government appears to have lost the confidence of the House of Commons, it is open to the Prime Minister to pursue one of two courses of action:
9.It is likely to be more appropriate for the Prime Minister to resign, rather than to request a dissolution, if:
10.The Prime Minister may request dissolution from the Monarch and it would be extremely unusual for the Monarch to decline such a request unless it were improper.
11.The following could be taken into account in considering the propriety of a request:
12.In such cases the Monarch may wish to satisfy him or herself that no alternative government can credibly be formed before granting a dissolution request.
13.A Prime Minister is expected to refrain from asking for dissolutions rather than the Monarch be put in the position of having to refuse a request that ought not to have been made.
Principles on government formation
14.There are three distinct circumstances in which there might be a change of Government under the UK’s constitutional arrangements:
Changes of Government following a General Election
15.If the largest party in the incumbent government wins a single party majority at a General Election, it will normally continue in Government. Equally, if another party wins an outright majority at the General Election, the Prime Minister is expected immediately to offer his or her resignation to the Monarch. The expectation will then be that leader of the largest party will be invited to form a Government.
Hung Parliaments and government formation
16.If, following a general election, a range of different administrations could be formed, the incumbent Government is expected to stay in office as a caretaker Government. This arrangement remains in place while discussions take place between political parties to identify the person best placed to form a Government. It is expected that the Monarch would not be involved in such discussions but that the Palace would be kept informed. As soon as it becomes clear who is best placed to form a Government, if that person is not the incumbent Prime Minister, he or she should resign and that alternative person will be invited to form a Government.
17.If a General Election produces a hung Parliament and it is unclear who is best placed to command the confidence of the House of Commons, the incumbent Prime Minister is entitled to seek the confidence of the House by bringing forward a Queen’s Speech. However, if the Government is then defeated on that Queen’s Speech, or an amendment to it, the Prime Minister is expected immediately to resign.
18.When coalition governments are being formed, smaller parties to that agreement may want reassurances that an early election will not be sought unilaterally by the Prime Minister of the day. If such assurances have been given, a request ought not normally to be made for a dissolution unless and until it is clear that no viable alternative government could be formed.
Changes of Government during a Parliament
19.A Government can lose its working majority without necessarily losing the confidence of the House of Commons. If, however, a Government does not simply lose its majority, but also loses the confidence of the House, it may be expected to resign. This, and the situation in which party leadership changes, are dealt with in paragraphs 8 to 10 above.
The role of the Monarch
20.Any system in which key matters of elections and government formation are fo rmally decided by the Monarch raises sensitivities about the nature of his or her role. Great care should be taken, both by the Prime Minister and other political actors, to ensure that this does not draw the Monarch into party-politics or matters of political controversy. Those disputes should—so far as possible—be resolved by the political process, rather than by any formal decision of the Monarch.
183 Professor Gavin Phillipson (Professor of Law at University of Bristol Law School) ()
184 ; Joint Committee on Conventions, First Report of Session 2005–6, , HL Paper 265-I, HC 1212-I, para 281
185 Joint Committee on Conventions, First Report of Session 2005–6, , HL Paper 265-I, HC 1212-I, para 282
186 ; ;