Fixed-term Parliaments Bill - Constitution Committee Contents

CHAPTER 4: Early Parliamentary general Elections


88.  Clause 2 of the Bill provides for an early parliamentary general election to take place in two situations. First, where at least two thirds of MPs have voted in favour of a motion to that effect and, second, following the passing of a motion of no confidence in the Government. We have received a significant amount of evidence on both the central issues of policy—whether and how Parliament may be dissolved early—and on the detailed drafting of this clause.

The need for a safety valve

89.  Despite the short title of the Bill, it is not the case that all future Parliaments would necessarily last for the full five year period. International comparisons show that absolute fixed terms are in fact rare. Amongst western democracies, only the Norwegian Storting cannot be dissolved early in any circumstance; all other western parliaments with fixed-term arrangements allow for at least one safety valve to provide for situations where it is regarded as necessary for an early general election to be held.

90.  The Deputy Prime Minister told us that "there are circumstances in which the desire for a general election, to press the reset button, is so great that something needs to happen."[120] Professor Bradley agreed, arguing that the introduction of fixed terms was "a serious change" which justified the provision of a safety valve.[121] Robert Blackburn has also argued in favour of safety valves on the grounds that "the essence of the reform would be to replace the existing common law discretionary power of dissolution with a clear legal procedure for when an early dissolution and election should take place."[122]

91.  However, the evidence we received was not unanimous on this point. Scandinavian experts argued that "The existence of fixed-term parliaments, de jure in Norway and de facto in Sweden means that governments have to find other means of resolving political crises than turning to the voters."[123] David Howarth argued that the only safety valve should be Parliament's power to repeal or amend the legislation on the ground that "Where sufficient political consensus exists that an early election should be called, an amending bill would go through quickly."[124] He stressed that a bill "intended to take advantage of short-run political conditions would inevitably fail to enjoy broad support" and "find itself making slow progress in the Lords."[125]

92.  We noted in Chapter Two that an earlier than anticipated election is not "axiomatically a bad thing".[126] The Constitution Unit has compiled a list of 67 cases from across Europe where an early election was called, together with the reason for the early dissolution. These included:

·  to increase a government majority;

·  after a constitutional crisis or major constitutional change;

·  after losing a vote of no confidence;

·  after a major policy change;

·  resignation of a Prime Minister—new mandate sought;

·  collapse of a coalition or a loss of supply;

·  post-war;

·  after a political crisis or collapse of a government;

·  after a new constitution;

·  government split;

·  dissolution before a no confidence motion;

·  to form a united government.[127]

93.  Many of these cases, in particular the loss of a vote of no confidence or a government split, provide a strong argument for allowing an early election. The Bill does not distinguish between the different situations by specifying under what circumstances an early election may be held. However, it would not be possible under the bill's provisions for a government to unilaterally dissolve Parliament in order to avoid a no confidence motion.[128] Moreover, whilst possible, it would not be appropriate for a government to use the Bill's provisions to seek an election simply in order to increase its majority.[129]

94.  We conclude that it is sensible for the Bill to contain some form of safety valve which would allow for an early election in circumstances such as the government losing the confidence of the Commons or where a political or economic crisis has affected the country. Such circumstances cannot be identified nor listed in advance and so the safety valve(s) chosen must be sufficiently flexible to deal with the various situations which might arise.

95.  In this context, we note Professor Bradley's warning that "if it is too easy to have an early election, you ... would get speculation very early on in the life of a fixed-term Parliament. ... How one can, as it were, get the safety valve so that it is there but not too easily used is a question of great subtlety."[130]

The need for two distinct mechanisms

96.  We received very little evidence on the question of whether it is appropriate for the Bill to contain two different mechanisms by which Parliament may be dissolved early, though Professor Robert Hazell, Director of the Constitution Unit, University College London, told us that he was "slightly puzzled why the Government sees the need for a dual threshold".[131] The Minister for Political and Constitutional Reform told us that without the two-thirds majority mechanism "you would force Parliament to have to engineer the loss of a confidence vote".[132]

97.  Democratic Audit also submitted that the two-thirds majority mechanism was a necessary addition to the possibility of a vote of no confidence since: "in the event of an irresolvable deadlock, the Commons could vote for an immediate election without waiting for 14 days to lapse. It seems appropriate to leave open the possibility for Parliament to dissolve itself in exceptional circumstances."[133]

98.  The purposes of the two mechanisms are different: the two-thirds mechanism provides for situations where there is cross-party agreement that an election should be called whereas motions of no confidence are likely to be passed in situations of great political dispute. We therefore conclude that it is appropriate for the Bill to contain two different safety mechanisms as long as each one is workable and fulfils its purpose.

The two-thirds majority vote

99.  The coalition agreement stated that the legislation would provide for dissolution if 55 per cent of the House of Commons voted in favour.[134] This proposal was subject to significant criticism, both in the media and in Parliament,[135] particularly with regard to the suspicion that the percentage chosen was designed to enable the coalition Government, but not the opposition parties, to dissolve Parliament.[136] These concerns led to the Government raising the bar to a two-thirds majority vote when the Bill was introduced.[137] This is the same requirement as exists in the devolved institutions.

100.  The Minister for Political and Constitutional Reform told us that:

    "the logic was to set a number that was sufficiently high that it was unlikely that a government could reach it ... it would have to be a cross-party decision with broad support across the House, which means that it would not be being done for partisan reasons but because of the general sense that an early election was in the interests of the country."[138]

We received no evidence arguing in favour of an alternative super-majority.

101.  Professor Bradley agreed that this provision was appropriate, arguing that if the two major parties believed an election to be necessary they should be able to have one.[139] Professor Bogdanor disagreed, stating that the provision would enable a government with a landslide majority to secure an election whenever they liked: "I cannot see why a government with a landslide should have that extra privilege."[140] Conversely, Professor Blackburn has stated that the provision would make it too hard for a Prime Minister to call an election.[141]

102.  It is necessary to re-emphasise here that the Bill would establish a semi-fixed parliamentary term under which the government could persuade the House of Commons of the need for an early election. In the light of our conclusion at paragraph 94 that there needs to be a safety valve mechanism in order to deal with possibly unforeseeable circumstances, we consider that the best way to do this is to enable Parliament to dissolve itself when there is a cross-party majority that an election should be called. Although it is not possible to determine the relative majority which might be held by governments in the future, a requirement of two-thirds of MPs voting in favour of a dissolution motion would most likely necessitate the agreement of cross-party MPs. We therefore conclude that this safety valve is appropriate.

Motions of no confidence

103.  Clause 2(2) provides for a two-stage mechanism under which an early dissolution may follow a vote of no confidence. First, the House of Commons must have "passed a motion of no confidence" in the government. Second, 14 days must have passed "without the House passing any motion expressing confidence in any Government of Her Majesty." These provisions have raised a number of issues.

104.  When faced with criticism over the initial proposal for a 55 per cent threshold,[142] the Government responded that it had never been their intention to remove the traditional right of the Commons to pass a motion of no confidence by a simple majority.[143] The definition and use of votes of (no) confidence have been the subject of intense academic and political debate for many years[144] and the Deputy Prime Minister has claimed that the Bill would place these votes on a statutory footing:

    "no confidence motions have until now been a matter of convention. Although it has been widely accepted that a no confidence vote would require a Prime Minister either to resign or to call an early election, there has been nothing to date to enforce this. So for the first time, the Bill gives legal effect to a motion of no confidence passed by this House."[145]

105.  The Minister for Political and Constitutional Reform argued that the Bill would not alter the existing conventions as to what happens when a government loses a confidence vote: in such cases the government would resign and there would either be an election or a new government would be formed.[146] David Howarth agreed that the loss of a vote of confidence would not necessarily lead to an election if a new government could be formed.[147] Whilst the Bill clarifies, to this extent, the position of what happens if a vote of no confidence is carried, it leaves open the question of what constitutes such a vote in the first place.

106.  Clause 2(2) places on the Speaker of the House of Commons the onus of certifying whether the two stages specified in the Bill have been met. The Minister for Political and Constitutional Reform argued that this would not change the nature of the Speaker's role vis-à-vis the House.[148] However, he also stressed a number of times that "the Speaker would make it very clear before ... a vote took place whether it was a vote on which he would issue his certificate"[149] and that the Speaker would be guided by convention in making his decisions.[150]

107.  The evidence we received suggested that the Government's certainty regarding clarity of the no confidence provision is misplaced. Firstly, it is not always clear what would constitute a motion of no confidence. Secondly, it is arguable that the Speaker's new role could bring him into conflict with the government and, possibly, the House.


108.  Clause 2(2)(a) applies where "the House [has] passed a motion of no confidence in Her Majesty's Government". This is potentially a broad phrase but, depending on what it is meant to achieve, it may equally not be broad enough. There are three issues. Firstly, are the Bill's provisions limited to motions of no confidence tabled by opposition or backbench MPs, or might an early election be triggered by the loss of a motion of confidence tabled in the government's name? Secondly, do the Bill's provisions extend to votes on the Queen's Speech, on the Budget or on major items of government policy?[151] Thirdly, if the Bill is intended to extend to instances where the government lose a motion of confidence or an important vote, does the provision, as currently drafted, cover this?

109.  In relation to the first issue, Dr Fox suggested that "it is hard to see how the government would bring forward a motion of no confidence in themselves. ... The wording of the Bill suggests that it would come only from the opposition."[152] We note that government backbench MPs may also, in theory, propose a motion of no confidence in their own party.

110.  As discussed at paragraph 96 the Government's case for having two distinct mechanisms is at least partly dependent on the argument that without the two-thirds mechanism, it might be necessary to "engineer the loss of a confidence vote".[153] This would appear to suggest that, in order to preserve the distinction between the two mechanisms, a motion of no confidence should only be tabled by the opposition or backbench MPs. The wider the definition of a motion of no confidence, the easier it would be for a government to manipulate the provisions in order to call an early election.

111.  In relation to the second issue, the Government told us that "there is a convention that certain kinds of votes, like votes on the Queen's Speech, are treated as confidence votes."[154] Although Dr Fox agreed that, under the current conventions, a vote of no confidence "is one of those things where you know it when you see it"[155] this might not continue to be the case, since the current conventions would need to be considered in the light of the Bill's provisions.

112.  The third issue was raised by the Commons Political and Constitutional Reform Committee:

    "It is hard to see ... how a Speaker could certify that the House had 'passed a motion of no confidence in Her Majesty's Government', as the Bill requires, if it had voted down a motion designated as a matter of confidence by the Government, even a motion 'That this House has confidence in her Majesty's Government', but not in fact 'passed' a motion at all." [156]

The Government did not refer to this question in their response to the report on this Bill of the Commons Political and Constitutional Reform Committee.[157]

113.  The Deputy Prime Minister told us that:

    "we want to try to provide as much clarity as possible about what a no confidence motion and process looks like, but equally it is for the House and the Speaker to make his and its own determinations about what they consider to be a motion of no confidence. In a sense, we have provided the tramlines in this draft Bill, but at the same time, I clearly want to retain as much flexibility and autonomy as possible for the House to decide for itself how it then interprets that."[158]

The Deputy Prime Minister acknowledged that it may be necessary to strengthen or clarify this provision.[159]

114.  The Bill as drafted does not explicitly cover all motions of confidence (including defeats on key confidence issues such as the Queen's Speech or the Budget), nor situations where the government lose a vote. Nor does it distinguish between votes of confidence and no confidence. The Government should bring forward amendments to clarify its precise scope.


115.  Broadly speaking, we understand the current convention is that it is for the government to determine what constitutes a vote of confidence (other than a motion of no confidence proposed by the opposition). Neither the House as a whole, nor the Speaker, have had a role in this. Clause 2(2) would appear to change this convention by making the decision to issue a certificate one for the Speaker. This provision appears to give the Speaker a constitutional role which he has not previously had. Moreover, although the Speaker would be likely to follow any direction of the House, it is not clear how any such direction would be given.

116.  There would be no legal duty on the Speaker to clarify in advance whether a vote were one in respect of which he would issue his certificate. In most circumstances it may be unlikely that a Speaker asked by the government, opposition or the House of Commons to set out whether a vote was one of confidence would refuse to do so. But it is possible that the government could unexpectedly lose a vote on a major item of policy and that the Speaker could then designate this as a motion of no confidence retrospectively. Although a majority government could then pass a vote of confidence in itself within 14 days,[160] this might inadvertently bring down a minority government, unless the opposition were willing to pass a motion of confidence in order to avoid holding an early election.

117.  It is also possible to envisage situations in which the Speaker might be put under pressure to designate an issue as one of confidence. The Minister for Political and Constitutional Reform accepted that "the Speaker would take his direction from the House"[161] but he also argued that the government would be likely to indicate in advance how they wished to treat any significant issue.[162] Whilst it would be appropriate for the House explicitly to resolve that a particular motion was, or was not, one of confidence, it may be less appropriate under this legislation for the government to do so.

118.  Whilst greater "transparency and clarity would be helpful for the House",[163] it is unclear what a Speaker might do were a government with a small majority (or a minority party governing with a confidence and supply agreement[164]) to start indicating that votes on minor issues should be treated as votes of confidence in order to ensure that they were passed. Such behaviour has been demonstrated in the UK in the past.[165] Were a government to do this, it could put the Speaker in the difficult position of trying to determine when and whether to accede to the government's requests.

119.  Greater clarity on the definition of a vote of no confidence, as recommended by paragraph 114, would reduce the potential for the Speaker to be drawn into political controversy. The questions of from whom, if anyone, the Speaker should take direction and of whether and when the Speaker should state his view on the effect of a particular vote should be procedural matters for the House of Commons to determine.

Formation of an alternative government following a no confidence motion

120.  Clause 2(2) of the Bill provides that once a motion of no confidence has been passed, an early dissolution will happen unless a motion expressing confidence in any Government of Her Majesty is passed within a period of 14 days. The Minister for Political and Constitutional Reform told us that this provision clarifies the existing convention:

    "The reality at the moment is that if the government does not have a working majority and loses a vote of confidence, there is no necessity for an election to be called already. It is perfectly possible under our existing arrangements for a new government to be formed without an election taking place, so I do not think we are doing anything new. But perhaps it is the case that, both in Parliament and among the public, expectation about what would happen in certain cases is not as clear as it ought to be."[166]

121.  The provision does make it clear that an alternative government can be formed, the period in which that may be done and that if no such government can be formed there will be an early election. Whilst these are the major points which the Bill should determine, the provision leaves some consequential issues unclear or unaddressed.


122.  The Government "believe that a period of 14 days strikes the right balance, allowing enough time for an alternative government to be formed while ensuring that there is not a prolonged period without an effective government."[167] Whilst we note that the Scottish Parliament and Welsh Assembly[168] may be dissolved early following a period of 28 days after a vote of no confidence, we have not received any evidence suggesting that a greater length of time would be more appropriate for the Westminster Parliament.

123.  The Minister for Political and Constitutional Reform told us that "I suspect it would become clear pretty quickly that the government could not put together an alternative government, or a different government could not be formed."[169] This begs the question of whether 14 days is too long. As Professor Oliver has said, "it is against the public interest for there to be no effective government of the country."[170]

124.  In the most recent cases of the loss of a vote of confidence by the Government, a decision to call a general election has been taken quickly.[171] Whilst it would be open for the House of Commons, following a successful vote of no confidence, quickly to pass a two-thirds early dissolution vote, this may not be easy for the major parties to agree at a time of political crisis. The Deputy Prime Minister argued that this "limbo" would be avoided by means of automatic dissolution after 14 days.[172] This would, however, result in a two week period of uncertainty as to whether an election was going to take place.

125.  We recognise that the 14 day period for formation of a new government may result in a period of uncertainty. However, it is not possible to determine in advance the many different circumstances under which a vote of no confidence may be passed. We therefore conclude that 14 days is an appropriate period to allow for formation of a new government.


126.  Dr Twomey, Associate Professor, Faculty of Law, University of Sydney, raised the question of what is meant in clause 2(2)(b) by any motion expressing confidence in "any Government of Her Majesty". Is it intended that Her Majesty would commission a new Prime Minister whose government would need a vote of confidence to survive? This raises the question of what would happen if it were not clear whether a prospective new government could achieve a vote of confidence. Or is it intended that:

    "the House may pass a motion indicating its confidence in someone else to form a government, even though it is not yet formally a 'Government of Her Majesty'. Query whether this would oblige Her Majesty to commission that person as Prime Minister? The Bill ought really be clearer as to what is intended."[173]

127.  The Government should bring forward an amendment to clarify this provision.


128.  Minority governments will always be subject to the possibility of losing the confidence of the Commons. Following a vote of no confidence, a minority administration may decide to form a coalition with another minority party. Situations may also arise whereby a government which has a very slim majority loses a vote of confidence due to MPs having difficulties in attending the House.[174] In either situation, it would be open to the defeated government to table and seek to win a motion of confidence in itself (or the new coalition) in order to avoid an early dissolution.

129.  The Minister for Political and Constitutional Reform told us that an election would be held if "the government could not put together an alternative government, or a different government could not be formed."[175] In supplementary written evidence, the Government also confirmed that "It is not our intention that the Bill should rule out the possibility ... of the House changing its mind within the 14 day period and deciding nevertheless to support the current government."[176]

130.  In the light of the above statements, we conclude that the Bill is intended to allow a government which has lost a confidence motion to reconstitute itself within the 14 day period. However, since this does not necessarily follow from the wording of clause 2(2)(b), we recommend that the Government bring forward an amendment to clarify this provision.

Government manipulation of the no confidence process

131.  Many of our witnesses referred to the possibility of a government manipulating a vote of no confidence in order to seek an early dissolution (for example, by proposing a confidence motion and then abstaining in order deliberately to lose it). Under this Bill, a government might be able, were there a consensus for calling an early election, to persuade the Commons to dissolve itself under the two-thirds majority procedure. It is therefore arguable that such manipulation would not be within the spirit of the legislation.

132.  Our witnesses agreed that votes of no confidence should not be engineered by the government.[177] The Deputy Prime Minister accepted that it was not possible to exclude this possibility but argued that:

    "if a government sought to do that it would be so transparent and so self-evidently grubby and self-serving that it would not do that government any good at all. The final court of opinion, of course, is what the electorate would do, and I think they would be very unforgiving. ... Can you exclude the theoretical possibility? I think it is pretty difficult to do that. Can you exclude it in practical political terms? I think you pretty well nigh can."[178]

133.  International experience does not necessarily show that this argument is borne out in practice. In Canada where, as we note below,[179] the Prime Minister sought an early dissolution in 2008 through use of the Governor General's prerogative powers, the incumbent government was not punished in the ensuing general election.[180] In Germany where, in 2005, the Chancellor deliberately lost a confidence vote in order to hold an election (the only way in which an early dissolution can be brought about in Germany) the circumstances were "scrutinised very carefully by the President, a court and public opinion",[181] but it is not clear from the evidence whether the early dissolution had any significant effect on the subsequent election result.

134.  Christian Leuprecht concluded that:

    "To disabuse a Prime Minister of this temptation, there would have to be a period of good faith whereby successive administrations would not indulge themselves in early elections merely to gain a political advantage. After this period a convention would be established, and the public would have become accustomed to having elections at regular intervals on a set date. In other words, any bill that fixes election cycles requires much broader agreement and political will than one mere majority vote."[182]

135.  We conclude that, if the Bill is passed, it would not be possible to prevent a government using a vote of no confidence to bring about an early election. To do so would be seen by many as an abuse of the Act's provisions and would undermine the fixed-term principle.

Government resignation

136.  Although unlikely, it is possible that a majority government could unilaterally resign without having lost a vote of confidence. Were this to happen at present, it would be expected that the Queen would consult other party leaders to see whether they wished to form a government and, if not, she would then dissolve Parliament. However, the prerogative power of dissolution is to be abolished by the Bill[183] so this course of action would no longer be available.

137.  The Minister for Political and Constitutional Reform responded to our question on this point, noting that:

    "There is nothing in the Bill that prevents a government resigning ... If a government decided to resign when the Speaker had indicated that he was not minded to issue ... a certificate [under clause 2(2)(a)], then the 14 day period would not be triggered although ... a period of government formation would obviously follow. It would just not be time-limited. Because of the very firm convention that the Queen should not be left without a functioning government, in practice, the outgoing government would not resign until the Queen was in a position to appoint a replacement Prime Minister."[184]

138.  It may be that the opposition were not in a position to form an alternative government (whether a single-party government or a coalition). If the government threatened to resign, Parliament would eventually be forced to dissolve itself through the two-thirds mechanism. Thus, the government could bring about an early election without having been said to have manipulated a vote of no confidence. We believe that any manipulation of this kind would be an abuse of the Act's provisions.

Abolition of the prerogative in respect of dissolution

139.  Clause 3(2) abolishes the prerogative power of dissolution by stating that Parliament cannot be dissolved other than under the provisions of clause 1 or 2 of the Bill. Evidence we received on the experience of the Canadian Parliament throws light on the need for this provision.

140.  The Canadian constitution sets the maximum parliamentary term at five years. However, in May 2007, legislation was passed which set fixed election dates for October 2009 and every four years thereafter. The legislation explicitly stated that the prerogative powers of the Governor General were not affected, including the power to dissolve Parliament at his or her discretion. This provision was described by Professor Milner as "a loophole big enough for a locomotive to drive through."[185] In September 2008, the Canadian Prime Minister requested an early dissolution under the Governor General's prerogative powers.[186] Dissolution was granted and an early election took place.

141.  This experience would appear to suggest that the Queen's power to dissolve Parliament should be abolished. However, Dr Twomey has argued strongly that the power should be retained, describing the stipulation of a five year term without any possibility of removal of a majority government as "a courageous act".[187] She argued that "if there were some kind of public crisis of confidence in the government (for example, it was found to have engaged in systemic corruption or other forms of illegality) there would be no chance of an election as long as the government controlled majority support in the lower House and did not want an election."[188]

142.  Prerogative powers were used in Australia to dissolve the federal Parliament in 1975 and in New South Wales to dissolve the Legislative Assembly in 1932. The Clerk of the New South Wales Legislative Assembly stated that: "The existing conventions would only make that course available where the government is acting illegally or if the government did not resign or to seek to dissolve Parliament after it lost the confidence of the lower House."[189]

143.  There are other ways to protect against the possibility of a government acting illegally or abusing its citizens' human and civil rights. Judicial review is the primary mechanism for controlling illegal, irrational or procedurally improper government actions.[190] The House of Lords has a significant role in revising and delaying legislative proposals. Whilst the prerogative power of dissolution is an important constitutional longstop, the Canadian experience would indicate that it is necessary under a fixed-term arrangement to abolish that power.

Retaining the prerogative in respect of prorogation

144.  Prorogation is a prerogative act of the Crown, in practice acting on the advice of the Prime Minister, which brings to an end a parliamentary session. It has the effect of putting an end to all business before the House, subject to certain limited exceptions.[191] The new session of Parliament will then commence with the Queen's Speech. In recent times prorogations of the Westminster Parliament have lasted for short periods. Clause 4(1) of the Bill expressly preserves Her Majesty's power to prorogue Parliament.

145.  We received further evidence from Canada on the controversial use of this prerogative power. Following his re-election, the Canadian Prime Minister requested in December 2008 that the Governor General prorogue Parliament in order to avoid losing a threatened vote of no confidence and being replaced by a proposed opposition coalition. By the time Parliament returned, almost two months later,[192] the principal opposition party had changed its leader and the threat to the government had subsided.[193]

146.  We put the suggestion that a British government could similarly abuse this power to the Minister for Political and Constitutional Reform. He responded that:

    "That is theoretically possible now. The convention that if the opposition want to table a motion of no confidence the government make that time available has worked well in the past. Although it was a theoretical risk we did not think it was a practical risk. If a government were so minded, it would not prorogue the House for a significant period as they need the House's power to continue in government. ... Part of the check here is a political one. If the government were abusing procedure to prolong its period in office artificially, there would be a reckoning when it eventually sought a mandate from the public."[194]

147.  Professor Bradley agreed that such a possibility, whilst theoretically possible, "would be very unsatisfactory and British politics would have sunk to a new low."[195] Professor Bogdanor suggested that this be left to the discretion of a "wise constitutional monarch" who would not prorogue at the request of a Prime Minister who no longer had the confidence of the House.[196] Whilst the risk may be low, Dr Fox warned that "you can't know the views of future monarchs in a scenario 40 or 50 years down the line."[197]

148.  However, Professor Milner stressed that:

    "The Canadian case was unique because prorogation saved the government, which it normally should not. ... [The] circumstances [were] so unusual that you could not imagine them. I would have to give you each of the steps in the Canadian case, all of which were unlikely and all of which fitted together. Frankly, I would not worry about it."[198]

149.  We agree that the risk of abuse of the power of prorogation is very small. We therefore conclude that Her Majesty's power to prorogue Parliament should remain.

Judicial review of early dissolution arrangements

150.  The Clerk of the House of Commons has identified a risk that the provisions of clause 2 could lead to a questioning of parliamentary proceedings in the courts. For this reason, he would prefer that the detailed provisions were contained in Standing Orders of the House on the basis that the courts would be even less likely to intervene.[199] Were the courts indeed to intervene to prevent Parliament from being dissolved early, "the impact, politically and constitutionally, would be very great."[200] It is therefore important to assess carefully the Clerk's submissions.

151.  Clause 2 of the Bill provides for an early dissolution following one of two events (a two-thirds vote or a vote of no confidence followed by 14 days without a relevant vote of confidence). That one of these events has taken place is to be certified by the Speaker of the House of Commons. A certificate under clause 2 "is conclusive for all purposes."[201] The Clerk of the House argued that this certificate would be justiciable because the Bill would embody the internal proceedings of the House in statute so that they became questions ultimately to be determined by the judiciary.[202]

152.  In his evidence to the Commons Political and Constitutional Reform Committee, the Clerk outlined some of the issues which he suggested the courts may call into question. "Not only might the Speaker's decisions involve difficult judgments—for example about what constitutes a confidence motion, the selection of amendments to such motions and the consequences of their being carried—but they would be made in a potentially highly charged political situation".[203] He also highlighted practical issues concerning divisions, such as mistakes in counting, members voting in both lobbies in order to cancel out their votes and conventions which allow sick members who are on the precincts to be nodded through.[204]

153.  We agree that it would be inappropriate to create a situation in which the courts might be called upon to assess the basis on which the Speaker had issued a certificate. Indeed, on one view, the Clerk of the House's arguments provide the very justification for the courts to rule that a Speaker's certificate would not be justiciable. Professor Bradley told us that the judiciary would surely accept that this was "an area for political judgment which the courts were not qualified to make."[205]

154.  Despite the weight of the evidence we received being against the view that a Speaker's certificate would be justiciable, few of our witnesses were prepared to argue that the courts would "announce a sweeping abstentionist rule"[206] preventing judicial intervention whatever the circumstances.[207] Nor have the Government entirely excluded the possibility that there may be some risk. The Minister for Political and Constitutional Reform told us that: "We took the view that on these very political matters, the risk of the courts straying into or getting involved with them was very small. ... On that basis, we were content to proceed."[208]

155.  We also raised the question during our oral evidence sessions of whether a claim brought before the courts, even if dismissed by the judiciary, would lead to a period of delay which might impact on the subsequent election. The Clerk of the Parliaments, whilst not offering his view on the question of justiciability, did note the "risk of litigation to test [the] proposition" that the courts would not intervene.[209]

156.  Court cases occurred following early dissolutions in Germany in 2005 and Canada in 2008. In neither case did the judicial proceedings delay the subsequent election.[210] Professor Bradley told us that: "the judiciary now in the public law field are very able and prepared to give a swift answer if circumstances require it. It would be scaremongering to say that the general election will be held up for six months or longer while the judges were deciding this."[211]

157.  The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker's certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill.

Further drafting issues relating to clause 2

158.  Clause 2(3) provides that "A certificate under this section is conclusive for all purposes." We note that it does not contain the additional words contained in the equivalent provision in the Parliament Act 1911: "and shall not be questioned in any court of law."[212] We questioned the Minister for Political and Constitutional Reform on the reason for the difference. He responded that: "[clause 2(3)] simply uses a more modern drafting style, using the more recent precedent ... There was no particular policy decision."[213] The wording in clause 2(3) is the same as that used in the Representation of the People Act 1983,[214] an Act which is closely related to this Bill.[215] The wording is also more expansive than that used in relation to a certificate by the Clerk of the Parliaments in the House of Lords Act 1999 which merely states that the certificate shall be "conclusive."[216] On this basis we are content to accept the Minister's assurance as to the most appropriate form of words.

159.  The Clerk of the House raised one further issue with the drafting of clause 2. Clause 2(4) imposes a duty on the Speaker, before issuing a certificate, to "consult the Deputy Speakers (so far as practicable)". The Clerk of the House considered that the question of whether consultation was "practicable" would become a legal question.[217] Whether or not this would be the case, we agree that the question of whom the Speaker should consult is a matter of internal House of Commons procedure and should not be contained within the Bill's provisions. Clause 2(4) should therefore be omitted.

120   Constitution Committee, 5th report (2010-2011), op. cit. Q 58. Back

121   Ibid. Q 16. Back

122   The prerogative power of dissolution of Parliament: law, practice, and reform [2009] PL 766, p 788. Back

123   FTP 36 (Anders Widfelt). See also FTP 28 (Norwegian Parliament).  Back

124   FTP 19, para 12.  Back

125   Ibid., para 9.  Back

126   Q 83 (Professor Bogdanor).  Back

127   Constitution Unit, op. cit., Fig 7.2 Back

128   Clause 3(2) Back

129   See paras 131-135. Back

130   Q 22. Back

131   Constitution Committee, 5th report (2010-2011), op. cit. Q 13; see also ibid. Q 21.  Back

132   Q 137.  Back

133   FTP 10, paras 35-36.  Back

134   HM Government, The Coalition: Our programme for government, p 26. Back

135   Press Association, Cameron faces backbench calls over confidence vote, 14 May 2010; HC Deb 25 May 2010 cols 135-154. Back

136   The Guardian, A giant gerrymander, 19 May 2010 (Lord Falconer of Thoroton); The Telegraph, This 55 per cent majority plan will taint the new politics, 18 May 2010 (David Davis). Back

137   Second reading debate, HC Deb 13 September 2010 cols 628-629. Back

138   Q 138. Back

139   Q 18.  Back

140   Q 96. Back

141   Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit. Q 81. Back

142   Discussed above at para 99.  Back

143   Speech given by the Deputy Prime Minister, 19 May 2010; see also HC Deb 25 May 2010 col 147. Back

144   See HC Library Standard Note, Confidence Motions, SN/PC/2873, 9 July 2010; Philip Norton, Government defeats in the House of Commons: myth and reality [1978] Public Law 360. Back

145   HC Deb 13 September 2010 col 629.  Back

146   QQ 130 and 141.  Back

147   FTP 19, para 19.  Back

148   Q 150.  Back

149   Q 144; see also QQ 147-148.  Back

150   QQ 149, 151-152. Back

151   Constitution Unit, op. cit., para 7.3; Philip Norton, Government defeats in the House of Commons: myth and reality [1978] Public Law 360. Back

152   Q 103.  Back

153   Q 137 (Minister for Political and Constitutional Reform). Back

154   Q 149 (Minister for Political and Constitutional Reform). Back

155   Q 103. See also Q 18 (Professor Oliver).  Back

156   Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit., para 45.  Back

157   Government response to the report of the Political and Constitutional Reform Committee on the Fixed-term Parliaments Bill, op. cit..  Back

158   Constitution Committee, 5th report (2010-2011), op. cit. Q 67. Back

159   Ibid. Back

160   Q 152; see also FTP 44. Back

161   Q 151.  Back

162   Q 153.  Back

163   Ibid. Back

164   An agreement that a minor party or independent member of parliament will support the government in motions of confidence and appropriation (supply) votes. Back

165   See Philip Norton, Government defeats in the House of Commons: myth and reality [1978] Public Law 360, pp 373-375.  Back

166   Q 130. See also Q 100 (Professor Bogdanor).  Back

167   HC Deb 13 September 2010 col 629.  Back

168   The relevant period for the Northern Ireland Assembly is six weeks. Back

169   Q 131.  Back

170   Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit., Ev 28.  Back

171   On the last two occasions (October 1924 and March 1979) the government announced the dissolution of Parliament on the following day: Constitution Unit, op. cit., para 1.3.2. See further Q 100 (Professor Bogdanor). Back

172   Constitution Committee, 5th report (2010-2011), op. cit., Ev 2. Back

174  173   See, for example, Harold Wilson, A personal record: the Labour Government 1964-70 (1971), p 30. Back


175   Q 131. Back

176   FTP 44. Back

177   Q 20 (Professor Oliver), FTP 38, para 12 (Raymond Youngs). Back

178   Constitution Committee, 5th report (2010-2011), op. cit., Q 68.  Back

179   Para 140. Back

180   FTP 41 (CES Franks).  Back

181   Q 66 (Professor Padgett). Back

182   FTP 22.  Back

183   Clause 3(2); see paras 139-143. Back

184   FTP 44. Back

185   Q 63. Back

186   This was separate from his request for a prorogation later that same year, which we discuss at para 145. Back

187   FTP 35, para 4.7. Back

188   Ibid., para 4.6. Back

189   FTP 3. Back

190   For the grounds of judicial review, see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock).  Back

191   See Companion to the Standing Orders, House of Lords 2010 paras 2.12-2.16. Back

192   Parliament was prorogued on 4 December 2008 and returned on 26 January 2009. Back

193   Q 78 (Professor Milner); FTP 41 (CES Franks); FTP 24 (Professor Mendes). Prime Minister Harper sought, and obtained, a second two month prorogation on 30 December 2009. Back

194   Q 162. Back

195   Q 30.  Back

196   Q 108. Back

197   Q 107. Back

198   Q 78. Back

199   FTP 20; see also Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit., Ev 26, paras 28-29. Back

200   FTP 20. Back

201   Clause 2(3).  Back

202   Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit., Ev 25, para 17.  Back

203   Ibid., Ev 24, para 16. Back

204   Ibid., Q 10.  Back

205   Q 29. Back

206   FTP 19, para 30. Back

207   See also Q 24 (Professor Oliver), FTP 16 (Richard Gordon QC). The Supreme Court recently considered the question of exclusive cognisance in R v Chaytor [2010] UKSC 52. Back

208   Q 159. Back

209   FTP 43, para 12.  Back

210   The German Constitutional Court reached its decision on 25 August 2005, one month after the dissolution on 21 July and one months before the election on 18 September; the Federal Court of Appeal in Canada did not reach a decision until August 2010, two years after the election had been held: Conacher v Canada 2010 FCA 311. Back

211   Q 27. Back

212   Section 3. Back

213   Q 160. Back

214   See, for example section, 174(3) of that Act. Back

215   Clause 1(1) of the Bill refers explicitly to the 1983 Act.  Back

216   Section 2(6). Back

217   Political and Constitutional Reform Committee, 2nd Report (2010-2011) op. cit., Ev 25, para 19. Back

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