CHAPTER 4: Early Parliamentary general
Elections
Introduction
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
policywhether and how Parliament may be dissolved earlyand
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 Ministernew
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.
DEFINITION OF A NO CONFIDENCE MOTION
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.
THE ROLE OF THE SPEAKER
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.
IS 14 DAYS THE MOST APPROPRIATE
LENGTH OF TIME FOR GOVERNMENT FORMATION?
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.
HOW CAN THE COMMONS PASS A MOTION
OF CONFIDENCE IN A GOVERNMENT WHICH DOES NOT YET EXIST?
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.
MAY A GOVERNMENT WHICH HAS LOST
THE CONFIDENCE OF THE COMMONS RECONSTITUTE ITSELF?
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
judgmentsfor example about what constitutes a confidence
motion, the selection of amendments to such motions and the consequences
of their being carriedbut 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
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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