The Convention on Resignation

Two further thoughts on the Convention governing resignation of the Prime Minister.

First, what happens in practice if, come May 8th, the result is unclear? What if Con + Lib Dem + DUP is at 320 (majority  is 323 = 650-5 Sinn Fein/2), and the Conservatives manage to get the agreement of the Lib Dems and DUP to support them. In such a finely balanced case (with possible Ukip MPs, and Independents), I think the proper course is for confidence to be tested in a vote. Put another way, we return to the 1920s and Cameron would be acting correctly (or at least within the Convention) not to resign immediately, and require the issue to be tested in Parliament.

The last time this happened was in 1924. Baldwin was Prime Minister going into the election in 1923. The Conservative party had a plurality of seats but was well short of a majority. Upon reconvening, the House debated a vote of no confidence, which was passed, causing Baldwin to immediately resign, advising the King to call on MacDonald.

Here are the proceedings in Hansard.

http://hansard.millbanksystems.com/commons/1924/jan/21/debate-on-the-address#S5CV0169P0_19240121_HOC_361

MacDonald’s government only lasted until October, when defeat in another General Election led to the return of Baldwin.

Let us hope all 645 are in robust health.

Second, how may Conventions be changed by legislation? A Constitutional Convention confines how a legal power or discretion may be exercised. So, the sovereign, as a matter of law, has a great deal of discretion in how he or she exercises the powers of appointment and dismissal of a Prime Minister. Constitutional Convention means that, in practice, the sovereign has no such discretion.

This means that a Constitutional Convention relates to a discretion that a person with authority (the Sovereign, the Prime Minister, the House of Lords etc) has , and restricts the wider scope that it has as a matter of law. A statute may amend or remove a Convention not by directly changing it (it cannot do that, because Conventions are definitionally not matters of positive law) but by changing the legal rule to which the Convention relates. There are not, to my knowledge, statutes of the form “the Constitutional Convention to do X is hereby abolished.”

Two examples.

By Convention, members of the Judicial Committee of the House of Lords did not vote in matters of political controversy. In 2005 the Constitutional Reform Act removed them from Parliament. The Convention came to an end because the power to which it related came to an end.

By the Ponsonby Convention, international treaties had to be laid before Parliament 21 days before ratification. The Constitutional Reform and Governance Act 2010 laid down rules requiring treaties to be laid before Parliament 21 days before ratification, removing the Crown’s power to do otherwise, thereby abolishing the scope for any Convention on the matter.

If we look at the Fixed Term Parliaments Act, what does it do? Prior to the Act the PM could call on the sovereign to dissolve Parliament, and by Convention she always acceded. The Act removes the power to dissolve Parliament save in accordance with its terms, and so that Convention falls with it.

The Prime Minister also has a discretion whether to resign, and instruct the sovereign to call on someone else to form a government. Assuming this power to be constrained by Convention (as it is), does the Act say anything about the legal power to which this Convention relates?

No.

[I am grateful to Professor Gavin Philllipson for making me think about the Ponsonby example. The views above are mine alone.]

The Fixed Term Parliament (sic) Act and Professor Colin Talbot

Many rules of the Constitution are not found in posited laws, such as statutes. Our Constitution makes use of Conventions: rules that the sovereign, government and Parliamentary officials know they must follow, but which are not set down in the positive law. An example, and one that may become important after the 2015 General Election, is the Salisbury Convention that the House of Lords will not oppose any government legislation on a second reading concerning a matter in an election manifesto.

That there are rules of conduct that are not posited by those in legal authority may seem odd but we are familiar with them in our daily lives: men don’t wear a hat in church.

What conventions require is a matter of consensus. If we collectively decided over time that hats were fine in church, the convention would change. The Constitutional Conventions governing the freedom of choice of the sovereign have changed dramatically over time.  The existence and content of Constitutional Conventions cannot be ruled upon by courts as they are not matters of positive law. A statute can overturn a Convention, but a court can only rule on what the law now requires. It cannot authoritatively determine the impact of the new law upon the old Convention.

This means that the people in authority to say what Conventions require are ‘constitutional experts’, people such as Vernon Bogdanor. If then a senior academic with authority in the area states that a Convention has been overruled by legislation it is more important than the expression of an opinion in an area where a court can definitively rule.

This post concerns the Fixed Term Parliaments Act 2011 and its impact on the Convention governing when a Prime Minister must resign. I shall set out the correct position, and then explain Professor Talbot’s mistakes.

The Position Before the Act

Under the UK system, government and Parliament are not coextensive. The ending of a Parliament, by dissolution, does not lead to the ending of a government, and vice versa. So, Gordon Brown’s government ran from 27 June 2007 (when the Queen appointed him) until 11 May 2010 (when he resigned four days after the election for a new Parliament). Margaret Thatcher’s government ran from 4 May 1979 – 28 November 1990, during which there were three separate Parliaments elected.

Every single government starts with the appointment of a Prime Minister by the sovereign, and  ends with the Prime Minister’s resignation. At the time of writing David Cameron is still the Prime Minister, although Parliament is dissolved for a General Election. When Harold Wilson resigned, and James Callaghan replaced him, the government changed, although its members were drawn from the same Parliament and the same party.

One Convention concerns when a Prime Minister must resign. After the 2010 General Election, it became clear that Gordon Brown could not command a majority in the House of Commons. He resigned, advising the sovereign to call on Cameron. If the Prime Minister does not command the confidence of the House of Commons, and another does, he or she must resign, recommending to the sovereign to call on the person who now possesses such confidence. No statute or posited law says that this is what had to happen. Indeed, as recently as the 1920s the Convention had been that the Prime Minister who lost the ability to command a majority in the Commons after a General Election did not immediately resign, but instead faced a vote of no confidence first.

Another Convention concerned the dissolution of Parliament, something which was in the power of the sovereign. At one time the monarch had a personal choice in this regard. The Convention became that the sovereign would grant a dissolution of Parliament whenever the Prime Minister requested it. This gave the government of the day an advantage as it meant that they could cut a Parliament short when the time looked propitious (eg Tony Blair in 2001, or 2005) or hold on to the maximum length of Parliament’s term in the hope something would turn up (eg Major 1997).

The latter power of the Prime Minister meant that when he or she no longer commanded a majority of the House, they had a choice, Either they immediately resigned, or they asked for a dissolution, with consequent general election. In 1979 Callaghan asked for a dissolution after losing an opposition confidence vote. In 1940 Chamberlain resigned after the Norway debate revealed he had lost the confidence of the House, and advised the Queen to call on Churchill . (This was not a clear cut case: Chamberlain actually won the vote.)

The Fixed Term Parliaments Act

The Act, as its name states, fixes the terms of Parliaments, not governments.

I would advise anyone who wants to form their own view as to whether my reading of the words of the Act is correct to read it

http://www.legislation.gov.uk/ukpga/2011/14/contents/enacted

The Act provides for an election every 5 years (section 1). An early election may only be called if the terms in section 2 are fulfilled. These are either (a) if the House of Commons votes by a majority that includes two-thirds of all MPs in favour of an early election, or (b) if a motion (passed on a simple majority) that “this House has no confidence in Her Majesty’s Government” is not followed within 14 days by a further motion (passed on a simple majority) that “this House has confidence in Her Majesty’s Government”.

The Act therefore abolishes the Convention that the sovereign will grant a dissolution, with consequent election, at the Prime Minister’s request, because the sovereign no longer has this power. The position of the Prime Minister (and his or her government) is therefore made weaker.

What of the Convention governing when the Prime Minister must resign, if no longer able to command a majority of the Commons? What has happened to that?

What happens if, come May 8th, Labour has secured a large majority. What does the Act say Cameron must do?

It says nothing at all about this question. Wholly unsurprisingly as the Act concerns Parliament, not the government.

Could the leader of the opposition use the Fixed Term Parliaments Act to remove Cameron if (implausibly) he refused to resign, in defiance of the Constitutional Convention? The answer is no. All that can be done under the Act itself would be to pass a motion of no confidence in the requisite form, which triggers a new election in 14 days. If the result remained the same what then? Do we just keep on having elections under section 2 of the Act forever?

The answer is, of course, no. The Act is silent as to the duty of the Prime Minister to resign. It has done nothing to the Convention governing this matter. The Prime Minister must resign if he no longer commands the confidence of a majority of the House of Commons and another does.

What if a Prime Minister commands the confidence of a majority of the House at the start of a Parliament, but loses it? Say party A has 300 seats, party B 300 seats, and party C 50 seats. If the leader of party A secures the backing of party C, he commands the confidence of the Commons and so is called on by the sovereign to be PM. What if party C swaps its allegiance to party B half way through a 5 year term? In those circumstances the PM must resign, and advise the sovereign to call  on the whoever can command a commons majority (usually the leader of party B). An early election is only triggered if a motion under section 2 is passed. Similarly if the composition of the Commons changes overtime through byelections, who it is who can command a majority may change.

How do we test in a finely balanced House (eg March 1979 or possibly after the 2015 election) whether a Prime Minister does command the confidence of the House? Easy: have a vote. If the result of the election is close Cameron will call a vote to determine this matter. Perfectly possible that the leader of the opposition may call, and win, a subsequent vote of confidence: “This House Calls on the Prime Minister to Resign.”

One ambiguity arises from the fact that, unless expressly worded, it may be unclear whether a particular vote means that a Prime Minister has lost the confidence of the House. The Norway vote revealed that Chamberlain had, even though he technically won the vote itself. This problem of ambiguity is easily solved by having a second vote on an expressly worded motion. There are recent precedents for doing exactly that.

The Act has done nothing to change when governments begin and end, because it is silent about this.

Professor Talbot

In a number of posts Professor Colin Talbot, Professor of Government, has expressed a different view from the one above

https://colinrtalbot.wordpress.com/2015/04/26/who-governs-britain-after-may-7th/

https://colinrtalbot.wordpress.com/2015/04/27/the-fixed-term-parliament-act-was-designed-to-protect-the-coalition-government-dont-be-surprised-when-it-protects-a-labour-one-too/

https://colinrtalbot.wordpress.com/2015/04/29/the-fixed-term-parliament-act-has-absolved-all-the-players-from-any-duty-to-respect-constitutional-conventions-rather-than-the-letter-of-the-law-senior-officer-of-parliament/

There are exemplary replies from Dr Mark Elliott, Reader in Law, who writes in support of the position taken in the Cabinet Manual (which is the same as the one I have tried to set out above).

http://publiclawforeveryone.com/2015/04/28/the-fixed-term-parliaments-act-a-reply-to-colin-talbot/

http://publiclawforeveryone.com/2015/04/29/a-short-follow-up-post-on-the-fixed-term-parliaments-act/

There are, I think, three errors in Professor Talbot’s reasoning.

First, he takes the view that the Fixed Term Parliaments Act determines when governments fall, indeed he claims that the Act is misnamed.

Second, he claims that not only has the Convention as to the Prime Minister’s ability to seek a dissolution of Parliament been abolished, but also the Convention as to when a Prime Minister must resign.

Third, he claims that the Act specifies what a motion of no confidence is, so that if one is not passed in the requisite form a Prime Minister has no obligation to resign.

In one way these are difficult claims to refute, as the answers require the proof of a negative: the wording of the Act says none of these things. However, the Act is short and clear.

First, at no point does the Act say anything at all about when a government begins and ends. Unsurprisingly as it is about Parliament. Parliaments only end with dissolution. Governments only end with the Prime Minister’s resignation (or death).

Second, by fixing the term of Parliament, the Act has necessarily abolished the Convention that the sovereign grants a dissolution on the request of the Prime Minister. This is because the sovereign no longer has the power to dissolve because of the Act. It is incumbent on those who would claim that the Convention requiring a Prime Minister who no longer commands the confidence of the House to resign has also been abolished to identify the words stating or necessitating that. The idea that there is no longer any Constitutional Convention binding a Prime Minister after election defeat requiring their resignation is not plausible.

Could a modern day Chamberlain refuse to resign? Where does the Act say that?

Third, section 2 of the Act does not provide an exhaustive definition of a confidence motion. It does what it says on its face: it sets out the motion required for an early election. That is it.