Monday 30 March 2015

Parliament dissolved ~ the fight for power at Westminster commences

Today (30th March), Parliament was dissolved.  The coalition government remains in place pending the outcome of the General Election on 7th May and it may remain in place for some time beyond the election (see later).  At present, the opinion polls suggest that no political party will gain an overall majority over all other parties in the House of Commons.  Hence, one possible outcome is another coalition between the party with the largest number of seats and one or more of the other parties.  There being no such thing as free lunch, the other parties will make demands as a price for their support.  An alternative to a formal coalition is a supply arrangement with the largest party but that would lead to constant haggling over the conditions for support.

See the Coalition Agreement entered into in 2010.  No doubt, political analysts will examine how successful that agreement has been - (see this) - though it appears, on the whole, to have delivered a stable government with (perhaps) the prevention of some of the worst excesses of a full Conservative government.  For my part, I view the cuts to civil legal aid as particularly damaging for the future of the rule of law.  It must also be remembered that a future Conservative government appears to be committed to repeal of the Human Rights Act 1998.  Their promised draft legislation has not appeared but the talk in the autumn of 2014 included the extreme possibility of the UK withdrawing from the European Convention on Human Rights.

Whilst there is no doubt that other issues (Taxation, the NHS, Education, Defence etc) are more likely to dominate the election campaign, voters might do well to look at the party manifestos for indications of what may happen in the legal world.  One certainty seems to be that we cannot expect major reversal of the civil legal aid provisions.  "Tweaks" at most I fear !

The end of any Parliament is marked by a rather hidden process known as the "wash up" and various Bills manage to become law as a result.  On 26th March, some 21 Bills received Royal Assent and became law.  These include the Modern Slavery Act, Recall of MPs, Deregulation, House of Lords (Expulsion and Suspension), International Development (Official Development Assistance Target) and a Finance Act.  Some of those Acts are clearly of some constitutional importance and some are, at a time of imposed austerity, of significant economic importance.

The Fixed Term Parliaments Act 2011 is controversial.  In truth, it seems to have been enacted to lock the 2010-15 coalition into the House of Commons since an election may now only be called as prescribed by the Act (see section 2).  Aspects of this legislation may yet fall to be examined in the courts.  It is also interesting to speculate on what would happen if the Act were repealed.  Of course, the repealing legislation could enact a process to regulate the situation or, maybe, the repealing legislation could state that the process for dissolution of Parliament reverts to the situation as it was prior to the commencement of the 2011 Act.

The 2011 Act gave the Prime Minister the power to delay the election by up to 2 months - see section 1.   Despite some fears, I submit that this power may not now be exercised because the election has been called. Section 1 includes the following:

(5) The Prime Minister may by order made by statutory instrument provide that the polling day for a parliamentary general election in a specified calendar year is to be later than the day determined under subsection (2) or (3), but not more than two months later.

(6)A statutory instrument containing an order under subsection (5) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.

(7)The draft laid before Parliament must be accompanied by a statement setting out the Prime Minister's reasons for proposing the change in the polling day.

There being no Parliament, the necessary statutory instrument cannot be approved.

After the election, an important document may prove to be the Cabinet Manual. Here is an important document saying much about governmental processes.  Paragraph 2.12 may prove to be vital:

"Where an election does not result in an overall majority for a single party, the incumbent government remains in office unless and until the Prime Minister tenders his or her resignation and the Government’s resignation to the Sovereign.  An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative."

Interesting, but, in a democracy, a Prime Minister or Government should not remain in place in defiance of the will of the electorate and, as regards an ultimate timescale, the manual is silent.  However, equally, there cannot be an absence of government.

Other material relating to general elections may be seen via the Parliament website.  Government UK - General Election 2015.

Of Interest to Lawyers - Is this the first time that the Monarch has not dissolved Parliament?

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