The Fixed Term Parliaments Act: What does it mean for the Coalition?

25 January, 2012 Leave a Comment

With the Conservatives well ahead of Labour in the latest opinion polling (Con 40 (+3) Lab 35 (-1) LD 16 (+1)), some in the Conservative Party would like to see a General Election to be called so that they can govern alone. An election based on that result would give the Tories 313 seats, Labour 286 and leave the Lib Dems on with just 24 MPs. That would leave the Tories just short of an overall majority, but with support from the 8 DUP MPs they could form a workable majority in the Commons.

Would it be possible for the Tories to dissolve Parliament? Short answer – Yes, possibly.

Under Nick Clegg’s own Fixed Term Parliaments Act 2011 the threshold required for an immediate General Election is 66% of all MPs. The Deputy Prime Minister said this in the House of Commons*:

First, traditional powers of no confidence will be put into law, and a vote of no confidence will still require only a simple majority. Secondly, if after a vote of no confidence a government cannot be formed within 14 days, Parliament will be dissolved and a general election will be held. Let me be clear: these steps will strengthen Parliament’s power over the executive. Thirdly, there will be an additional power for Parliament to vote for an early and immediate dissolution. We have decided that a majority of two thirds will be needed to carry the vote, as opposed to the 55% first suggested, as is the case in the Scottish Parliament.

These changes will make it impossible for any government to force a dissolution for their own purposes.

Could the Conservatives cobble together 66% of all MPs to vote in favor of an immediate dissolution for, as Nick Clegg put it “their own purposes”?

There are 650 MPs – with 5 Sinn Fein MPs who have not taken their seats. 430 MPs would therefore be required for an immediate dissolution. Subtract the Speaker, who by convention votes against a motion in the event of a tie, and you would require 429 MPs.

If we take the Lib Dems voting against any dissolution for granted (They could lose up to 4/5 of their MPs), then it would take all Conservative and Labour MPs to vote to dissolve Parliament –567 of them. That could only happen if both Parties were on a three line whip to support the motion.

With David Cameron seemingly content to keep the Lib Dems in Government to provide a moderating force to the Tory Right, it would be unlikely that the Tories would be whipped in favour of such a motion. It is also worth noting that Labour would be unlikely to support an immediate dissolution if the Tories were likely to win a majority. Labour’s polling numbers at the moment are soft and the Tories would be likely to pull further ahead in the polls. The Lib Dems could be dumped by the Tories in favour of a majority, but it is unlikely to happen.

The potential for a legal challenge to an early election was summarized by the UCL Constitution Unit:

A related question is whether there could be recourse to the courts to enforce the requirements of a fixed term law. The probability is that they would consider the issue to be non-justiciable; an obligation to be enforced in the political but not the legal sphere.

The most likely context for a legal challenge would be an attempt by a government to seek an early dissolution, as happened in Canada in 2008, and in Germany in 1982 and 2005. In the former instance, the Canadian Federal Court of Appeal dismissed the challenge on the basis that section 56.1(1) of the Canada Elections Act 2000 specifically preserved the powers of the Governor General.81 By convention, this extended to the power of the Prime Minister to advise the Governor General about the dissolution of parliament.

With regards to the 1982 early dissolution in Germany, the German Constitutional Court held that in the absence of unconstitutional actions, it would be politically inexpedient to go against the judgments of the President, Chancellor and leaders of the political parties. The Court accepted that Kohl faced general difficulties due to which he could not rely on a consistent majority in parliament. The Court responded similarly to the 2005 episode; the Chancellor’s assessment as to whether continuous governance could be assured was accepted.83

The international experience demonstrates that courts are unwilling to engage with such politically sensitive decisions, and a similar response is to be expected from the British courts.

Unless it was politically expedient for both the Tories and Labour to force a new General Election then an election before 2015 would be unlikely. 81 Tory MPs have shown themselves in the European Union Referendum debate it the Commons to be willing to rebel against their Whips. The Tories would be able to pass their NHS and Welfare Reform Bills, and their Budgets without having the Lib Dems interfering.

That must be tempting for the Tories……

 

* HC Deb 5 Jul 2010 col. 23

 

 

 

 

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Review: The Rule of Law, by Tom, Lord Bingham

1 January, 2012 Leave a Comment

The Rule of Law, written by Lord Bingham MR was, I admit, the first legal commentary that I read that was neither a textbook, a judgment or an academic paper.  It was the book that gave meaning to the the concept of “the rule of law” for me.

I was first introduced to the concept in my first constitutional law tutorial.  I had, I thought, completely understood the phrase. Like many others, when I started reading Lord Bingham’s book, I realized that I had completely failed to understand the true meaning of that simple, but important phrase.

I was taught that concept of ‘the rule of law’ is the same as eminent constitutional theorist Professor Dicey expounded in his book An Introduction to the Study of the Law of the Constitution:

That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

I was then told that ‘the rule of law’ is neither a rule, nor a law. Not particularly helpful, you may think.

Lord Bingham first spoke on the subject in November 2006, when he spoke at the University of Cambridge on the subject. You can read or listen to the speech in full here.

Fortunately, somebody suggested that the lecture should be expanded into a book. Bingham’s book is a clear and concise explanation of the idea of ‘the rule of law’, what it means to us, both as law students and as citizens, and why it is important. It neither speaks down to you or is complex that you could never read through it in one sitting.

It is hard to argue with the principles that Lord Bingham identifies as those that constitute ‘the rule of law’. They include, amongst others, the concepts of equality before the law, human rights and the right to a fair trial. The discussion of important issues of law and social policy makes for an important read.

This is especially true in the final chapter, based on the conflict between ‘the rule of law’ and the Sovereignty of Parliament. I suspect that these issues will become ever more important as the Euro-crisis rages, and Britain is asked to contribute more, both financially and politically to the European project.

The Rule of Law provides an insightful analysis of some of the great legal issues of our lives, at a time that the rule of law is more important that ever before. If you are going to read one book to put everything that you learn in undergraduate legal career into context, then this is it.

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