Thursday, 30 September 2010

Fixed-term Parliaments Bill ... more constitutional tinkering ....

In July 2010, the government introduced a Bill to establish five year fixed term Parliaments - see Fixed-term Parliaments Bill. Is this Bill either desirable or necessary?

Under present arrangements, a Parliament has a maximum term of 5 years - Septennial Act 1715 (as amended by the Parliament Act 1911).  The present Parliament was elected under present constitutional arrangements.  The Bill will fix the term of even this Parliament at 5 years and the next general election will be held on 7th May 2015.  No doubt this will suit most politicians in the present coalition government but, as political events continue to unfold in the present difficult climate, whether it will prove to suit the nation is an entirely different matter.

Prior to the coalition government being formed, the Liberal Democrats had argued for fixed term Parliaments of 4 years.  They argued that it was wrong for the incumbent P.M. to be able to dictate the timing of the election.  In effect, the party in power had the starting pistol for the race.  The Conservatives did not make any commitment though, in May 2009, David Cameron expressed interest in the idea.  Labour also included them in their 2010 manifesto but did not specify the length.  They also proposed an "All Party Commission to chart a course to a written constitution".   After the general election, the idea became a key element in the Coalition Agreement.

The Bill will abolish the ancient power of the Crown to dissolve Parliament and general elections will only occur as provided for by the Bill.  At present, the power to dissolve Parliament is exercised by H.M. The Queen on the advice of the Prime Minister.  Thus, the Bill effectively removes the right of a Prime Minister to simply request, - (and, by convention, be granted) - a dissolution of Parliament.  Traditionally, this has placed Prime Ministers in a very powerful position and the threat of holding an election could be used to bring awkward M.P.s to heel.   It has also retained flexibility within the constitution which could be of benefit in some, perhaps unforseen, circumstances.

General election on a Motion of the Commons:

Under the Bill, one way in which a general election might be called is Clause 2(1) - if the Speaker of the House of Commons issues a certificate certifying that the House has passed a motion that there should be an "early parliamentary general election".  The drafting of Clause 2(1) is interesting.  It does not appear to actually require a "division" (in which votes are counted).  However, if there is a division then the number of members voting in favour must reach a "number equal to or greater than two thirds of the number of seats in the House (including vacant seats).  The Speaker's Certificate is to be "conclusive for all purposes" and, before issuing a certificate, the Speaker must consult the Deputy Speakers (so far as practicable).  The purpose of such consultation is not entirely clear and the "so far as practicable clause" might be thought in the future to enable a Speaker to avoid consultation.  It is difficult to see why it might not be practicable to consult.

General Election after a Vote of Confidence:

If, in the future, a disastrous administration is in power how can it be forced out of office if they have a fixed term?  The current method is that the government loses a Vote of Confidence in the House of Commons.  This occurred with the Labour government under James Callaghan which lost a Vote of Confidence on 28th March 1979 by one vote - (311: 310).  The Bill alters this arrangement.

Under Clause 2(2), the Speaker of the House of Commons may issue a certificate - (under the Bill it seems that he is not actually required to) - stating that on a specified day the House passed a motion of no confidence in H.M. Government (as then constituted) AND that 14 days after the specified day there has not been a motion expressing confidence in ANY government.  On the face of the Bill, there is nothing to indicate what the governmental position would be during those 14 days.  Could the Party which had just lost the vote somehow reconstitute itself and go on to win a further vote?  In practice, it would usually be one of the other parties which tried to form a government but on what democratic basis should they be allowed to do this without an election?

What if there were to be an early election?

The Bill contains some clauses aimed at dealing with the length of a Parliament following an early election.

The 5 year term - is it absolute?

The Bill - Clause 1(5) - enables an outgoing Prime Minister to fix the general election date within certain limits.  Polling day may not be more than 2 months earlier or later than the basic (5 year date).  It is argued that this is needed to "accommodate short term crises or other conditions".  Foot and Mouth (as in 2001) is given as an example in the Explanatory Notes to the Bill.   It is very much a moot point whether this is either necessary or desirable and, in reality, seems to be included to give some tactical advantage to an incumbent Prime Minister.  There is nothing in the Bill to limit the reasons why a P.M. should use this power.  However, if a P.M. wishes to do so then he must make an Order by Statutory Instrument and a draft must be laid before and approved by a resolution of each House of Parliament.

On one view, Clause 1(5) can be seen as a Bill to extend the lifetime of a Parliament beyond 5 years - even if only marginally and with Parliamentary approval.  If that view prevailed, then the Bill could be vetoed by the House of Lords and could not be passed using the Parliament Acts 1911-49 procedure.  However, one suspects that this argument is weak.

The Clerk of the Commons raised concerns:

Concerns about the Bill were raised by Mr Malcolm Jack - Clerk to the House of Commons - see The Guardian 7th September 2010.  He expressed the view that the judges might end up being drawn into political controversy and that there might be the possibility of challenge under Protocol 1 Article 3 to the European Convention on Human Rights.  He was also concerned that the Bill had not been presented in draft form for scrutiny.  See the Political and Constitutional Reform Committee at which Mr. Jack gave evidence.  His views are entitled to great respect.

The Head of Legal Blog has raised other concerns about the Bill - it is well worth a read and discusses the views of Mr Jack.  Further comment may be read at "Of Interest to Lawyers".

Our constitutional arrangements in this area have served us well overall.  The Bill would not actually prevent a Prime Minister getting a general election if he wanted one though he would have to obtain a motion in favour - Clause 2(1).  In effect, the government could vote itself out of office!  Furthermore, if the 2005 German experience is any guide, even Clause 2(2) might be used.  In 2005 Gerhard  Schröder deliberately set out to lose a Vote of Confidence.  This Bill is ill-considered, it is self-serving on the part of the coalition government  and it is potentially riddled with problems.  It adds complexity to the constitution and it is unnecessary.

Further and more detailed material:

Explanatory Notes to the Bill

Fixed-term Parliaments - Parliament and Constitution Centre Standard Note - 6th September 2010.

House of Commons Research Paper

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