Four Bad Arguments (and a Good One) for the Human Rights Act

I am, on balance, in favour of the Human Rights Act, and think that the European Convention on Human Rights has made the world a better place. Whilst the European Court of Human Rights is capable of improvement, it is institutionally necessary if the open textured rights in the Convention are to be meaningful. Without such a central court, signatory states could each adopt their own idiosyncratic interpretations, and the entire purpose of the Convention defeated.

But, the case for the Convention is not as easy and obvious as its supporters sometimes believe. Two examples of such over confidence are

Shami Chakrabarti

http://www.independent.co.uk/voices/comment/government-plan-to-scrap-the-human-rights-act-is-just-a-confidence-trick-10248460.html

and

Philippe Sands

http://www.theguardian.com/commentisfree/2015/may/14/british-bill-rights-could-end-uk

in today’s Independent and Guardian.

Bad Argument One: Human Rights are Universal

The label ‘Human’ rights is deeply misleading. It lays claim to the idea that these rights are common to all human beings in all times and places. An examination of the rights set out in the European Convention, and those in the UN Declaration, makes it clear that they are not of this kind.

For our purposes it should be accepted that some rights are universal in the strong sense of being moral rights that we all possess in all times and places that others should respect. These impose correlative duties on others to behave towards us in certain ways. Not only do I have a right in this sense against all others not to be tortured, I also have rights that others do not touch me without consent,  tell me lies I believe, defame me, or burn down my home. If the legal system of any particular place does not recognise such natural rights, so much the worse for it.

The rights in the Convention are observably not like this. They are not rights we have against all others but rights against the State. These rights “set limits on the sovereignty of the state”.

(For a careful study of the nature of human rights see Joseph Raz. “Human Rights Without Foundations”

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999874 )

That the Convention’s rights presuppose the existence of a State against which they are exigible is enough to demonstrate that they are not of the universal natural law kind. People on stateless desert islands do not possess them. An easy illustration of the difference between what we have come to call ‘human rights’ and the older idea of natural rights is the right to education (Art 2 First Protocol, European Convention, Art 26 Universal Declaration). In what sense could cavemen have possessed such a right? Even rights such as that in Article 3 of the European Convention prohibiting torture confer upon us rights against the State that are far more extensive than the rights we have against all others in a state of nature. The State is not only obliged not to torture me (as all people are) but also to take positive steps to protect me from torture (by for example setting up a police force) which all people are not obliged to do. Conversely. some of the rights we do have against all others at all times (eg the right not to be deceived) do not appear in any Human Rights Convention as they are nothing specifically to do with the relationship between citizen and State.

To explain and justify the system of human rights that we have requires a careful and sophisticated consideration of political theory.

Bad Argument Two: Bingham’s Self Evident List

In his magnificent defence of the Human Rights Act, the late Lord Bingham stated that the strongest argument in its favour was as follows:

https://www.liberty-human-rights.org.uk/sites/default/files/lord-bingham-speech-final.pdf

The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being. Let me briefly remind you of the protected rights, some of which I have already mentioned. The right to life. The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved. The right to liberty and security of the person. The right to a fair trial. The right not to be retrospectively penalised. The right to respect for private and family life. Freedom of thought, conscience and religion. Freedom of expression. Freedom of assembly and association. The right to marry. The right not to be discriminated against in the enjoyment of those rights. The right not to have our property taken away except in the public interest and with compensation. The right of fair access to the country’s educational system. The right to free elections.

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?

Framed in this way, one might think that the list of these goods is so self evident, that to be opposed to any of them is to defy reason, Who is going to argue against education? Who thinks retrospective punishment is a good thing? What kind of monster do you have to be to disagree with any of these things?

This argument has a strong rhetorical pull, but it is quite wrong. To oppose incorporation of these human rights into law is neither to be against freedom of expression, nor to oppose marriage. Rather it is to think that in a liberal democracy there should not be constraints on the State’s power to pursue the common good in general, or these particular goods in particular, as it thinks fit. The class of people most commonly found to be of the view that elected politicians should be free to pursue the common good in the way they think best , unconstrained by how other unelected people think they should behave, are elected politicians. Whether people of the same sex should be allowed to marry, or what the term limit for abortion should be, should be matters for democratic resolution, not for decision by judges. Those who passionately oppose abortion are more likely to accept a legal position contrary to their views if the decision is taken by a democratic legislature rather than by an appellate court relying upon an open textured value set out in a constitutional document. The Abortion Act (UK) 1967 is just a better way of deciding such questions than is Roe v Wade (US) 1973.

For some therefore, the answer to Bingham’s rhetorical question “Which of these rights would we wish to discard?” is “All of them.” The best known exponent of this form of argument is Professor Jeremy Waldron

http://philosophyfaculty.ucsd.edu/FACULTY/RARNESON/Courses/Waldroncore.pdf

If society is organised in such a way that we have a properly elected democratic legislature and government, why should its conception of how best to pursue the education of its citizens be in any way constrained by law? This is not to oppose these goods, but rather to oppose the resolution of the difficult question of how they are to be pursued by anyone lacking democratic legitimacy. Clearly there are certain rights that no government, democratic or otherwise, should ever violate (eg the state must not torture) but these universal rights are just not the same as those contained in the European Convention..

Bad Argument Three: The Convention is Peculiarly British

It is true that leading British politicians took part in the drafting of the European Convention on Human Rights. It is however nonsense to claim that the Convention rights are “based largely on those developed by the British common law, reaching back to the 1215 Magna Carta and the 1689 Bill of Rights”.

http://ukhumanrightsblog.com/2013/09/03/why-we-would-be-mad-to-leave-our-european-convention-on-human-rights/

The United Kingdom’s constitutional approach has been the Diceyan one of Parliamentary sovereignty. Unlike many continental European systems, the state has not been constrained by rights enshrined in a constitution. There was no constraint on the legislature’s ability to determine who (if anyone) could marry. If we abolished the Human Rights Act and withdrew from the Convention there would be nothing to constrain Parliament’s ability to circumscribe freedom of assembly. Certainly there is nothing whatsoever in either Magna Carta or the Bill of Rights remotely resembling the constraints on the state found in the European Convention (as a cursory reading would tell anyone).

You do find constitutional restraints, closely resembling the list in the Convention, in the constitutions of continental European countries. So, someone hostile to the Convention might point to the Constitution of the Soviet Union of 1936

http://www.departments.bucknell.edu/russian/const/36cons04.html#chap10

or the Weimar constitution of 1919 (technically in force throughout the Nazi period)

http://en.wikipedia.org/wiki/Weimar_Constitution#Main_Part_2:_Basic_Rights_and_Obligations_of_Germans

where you will find a list of rights that were, in principle, inviolable by the state that closely resemble the list in the European Convention. A reading of the text of the Convention, and a comparison with the constitutions of other European countries, tells us more about the Convention’s intellectual foundations than do fairy stories about how it was all Winston Churchill’s idea.

Bad Argument Four: The Human Rights Act cannot be repealed because of devolution

The Human Rights Act is incorporated into the devolution arrangements for Scotland and Wales. The Good Friday agreement guarantees that Britain will incorporate the European Convention into Northern Ireland’s law. Unless the people of Scotland, Wales and Northern Ireland show through the democratic process that they want their constitutional arrangements to be changed, it is clearly unacceptable for the United Kingdom Parliament to alter them (regardless of whether in constitutional law it has the power to do so).

This does not however mean that the Human Rights Act cannot be repealed or replaced in England. This would indeed lead to different laws being in force in different parts of the United Kingdom, but so what? It is the entire point of devolution that it allows for different laws to be in force in the different constituent parts of the United Kingdom.

Good Argument One: The Rules of the Club

A good argument is given today by the rightwing Conservative MP David Davis

http://www.theguardian.com/law/2015/may/15/eurosceptic-david-davis-could-oppose-government-on-human-rights-reform

Although the arguments for some kind of system of rights restricting state power within the wholly domestic context of a properly functioning democracy (as in the United States) are problematic, the arguments for them in the form of an international agreement between states is much easier.

If we think that there are certain minimum goods all states must secure for their citizens (eg a justice system, secure property rights, freedom of assembly) then it makes sense to set up an international system to try to ensure that all states meet these minimum standards. A set of internationally agreed rules applies pressure on all members to comply. Whether certain matters are within (eg education) or without (eg housing, healthcare) is a matter for agreement, and is not self evident. This was the point of both the European Convention and the UN Declaration. Such a system requires an independent international arbitrator. That also requires that individual signatories have to put up with the results of those independent decisions, even if they think they are wrong (or indeed even if they are wrong). If we do not want the Russian courts to have the final say on whether it is ok to torture, the quid pro quo is that the UK courts do not either.

This point, and its limits, is lucidly discussed here

http://ukconstitutionallaw.org/2014/07/23/mark-elliott-human-rights-reform-and-the-role-of-the-strasbourg-court/

Further, as it is implausible that every claim for violation of such an internationally agreed system of rights could be heard before a single international court, it is necessary for domestic legal systems to give some mechanism of redress before their courts. This is what Article 13 of the European Convention on Human Rights requires, and what the Human Rights Act 1998 achieves in the United Kingdom.

One significant problem with such a system is what happens if the international court gets it wrong. There is no simple mechanism of democratic override, as would happen in the UK if our Supreme Court reaches a decision unacceptable to the legislature. The only mechanism of correction is either by reversal by the court itself (as has occasionally happened) or by international agreement by members of the club to change the rules (which is very difficult indeed to achieve). This means that the court must show restraint.

Infamously, the clearest modern example of error is the European Court of Human Rights’ decision in Hirst that the UK’s blanket ban on prisoner voting was incompatible with article 3 of the First Protocol guaranteeing free and fair elections. Given that the court accepted that it is permissible to deny the vote to some who commit criminal offences, it is (to say the least) obscure why a signatory state could not define those who are denied the right to vote as being coextensive with those whose crimes are sufficiently serious to warrant a custodial sentence. However, accepting decisions such as these is the price we must pay for the system.

There are good arguments for an international system of human rights. There are also good arguments why such rights need to be enforceable before the courts of signatory states if they are to be meaningful. These arguments are however more complex and contingent than some advocates for Human Rights are prepared to allow. By making bad arguments instead, they endanger the entire enterprise.

1924 and All That

The last time Labour was the second largest party, but formed a minority government, was in 1924. The story is nicely told here by Lord Norton of Louth,

https://nortonview.wordpress.com/2015/05/06/baldwin-in-1924/

The government did not last long, from January to October when there was another General Election less than a year after the last.

MacDonald was appointed Prime Minister following Baldwin’s resignation, after he lost a vote of confidence when Parliament convened after the General Election of December 1923. There was only one Queen’s Speech, that of Baldwin’s government which was defeated on an amendment to it. After Parliament has been opened there is no need to re-open it, and so there is no need to call the sovereign back to read out another list of implausible claims about how transformative the government’s legislative programme is going to be.

MaDonald upon appointment gave a statement to the Commons, which is noticeable for two things.

http://hansard.millbanksystems.com/commons/1924/feb/12/prime-ministers-statement

First he set out no government programme. Instead he says

“I propose to introduce my business, knowing that I am in a minority, accepting the responsibilities of a minority.”

It is rather difficult to imagine Prime Minister Miliband being quite so diffident.

Second, he opens the statement with stories concerning members hiding in the lavatories:

“I have known bathrooms downstairs utilised, not for their legitimate purpose, but for the illegitimate purpose of packing as many Members surreptitiously inside their doors as their physical limitations would allow.”

It is also difficult to imagine Miliband wanting something like that to be the first thing he says in Parliament as Prime Minister of the United Kingdom. (The point of such hiding was and is to ambush the government by hiding the number of MPs who had turned up to vote.)

It seems likely that were Miliband to find himself in a similar position, some kind of legislative programme would be set out, equivalent to a Queen’s Speech, with a division of the House to determine whether the new government had the confidence of the Commons.

One possible straw to show what the future holds is also referenced by Lord Norton who quotes Robert Blake on the attitude of the Liberals in 1924:

“[The Liberals] supported Labour from an entirely independent position, with no written treaty, not even an informal understanding.  Those Liberals who hoped for tacit, unspoken cooperation were soon disillusioned.  There was none.’”

This may presage the Labour attitude to the SNP. Of course, in 1924 this was not an attitude that was constructive for either party of the left. By the end of the year Labour was out, and the Tories were back with a majority.

The Fixed-term Parliaments Act and Professor Adam Tomkins

In a recent post, Professor Tomkins has written about the implications of the FTPA in a hung Parliament.

https://britgovcon.wordpress.com/2015/05/04/a-fixed-term-hung-parliament/

Almost all that he says is correct, until the final three paragraphs,

It had formerly been thought that were a government to be defeated on its Queen’s Speech (i.e. the outline of its legislative programme, presented to Parliament at the beginning of each session) or on its budget, such a defeat would amount to a loss of confidence and would lead to the government resigning and to a general election. Under the FTPA this is no longer the case. It is clear under the Act that only a motion using the words “that this House has no confidence in her Majesty’s Government” is a vote of confidence. No other vote, no matter how important, is a vote of confidence, unless it includes these words. Thus, were a government now to lose a vote on its Queen’s Speech, or were a government now to fail to get its budget through, this would not of itself mean that the House had lost confidence in the government.

My reading of the Act is that that is clearly incorrect. As Dr Mark Elliott states

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

[T]here are (other) circumstances in which a Government can be brought down that have nothing to do with the Act. As Lord Norton has explained, there are several ways in which an absence of confidence in the Government can be manifested. The Act does not purport to regulate or change this. It does not define what a motion of no confidence is, and it does not provide that a motion of no confidence will always trigger the 14-day period. Rather, it provides that a specifically worded motion that expresses an absence of confidence will have that effect. It leaves open the possibility of an absence of confidence in the Government being manifested in other ways, including by means of a differently worded motion of no confidence. Such non-statutory no-confidence motions continue to produce effects that sound in constitutional convention rather than constitutional law. In particular, convention continues to require the resignation of a Government in which an absence of confidence is expressed. The difference under the Act is that a non-statutory no-confidence motion only requires resignation, and can no longer trigger an early election — constitutional law, in the form of the Act, having displaced the convention that used to facilitate the dissolution of Parliament whenever no confidence was expressed in the Government.

The first, and most obvious, proof of Dr Elliott’s position is the wording of section 2 of the Act

http://www.legislation.gov.uk/ukpga/2011/14/section/2/enacted

On its face it does not purport to define what a confidence vote is.

Second,  examples illustrate why the (plain words) reading of Dr Elliott is correct

1. The Prime Minister states “This vote is a matter of confidence in the government, if it is lost I shall resign.” If the vote is lost, what does (Convention) require that he does?

2. A motion of is tabled stating “This House has lost confidence in the government and calls on the Prime Minister to resign” is passed. What must the Prime Minister do?

3. After the May 8th election the result is a hung Parliament and the Cameron government puts forward a Queen’s Speech which is lost. What must he do?

It would be true to say that the Act has defined the only motions of confidence that will now trigger a dissolution (as a dissolution outside of the Act is no longer possible.) Quite wrong to claim that the Act has defined what a vote of confidence is for purposes of resignation. 

It is wrong to say, as Professor Tomkins does that prior to the Act a confidence vote “defeat would amount to a loss of confidence and would lead to the government resigning and to a general election”. The Prime Minister could elect to ask for a dissolution, but not resign pending the outcome of the election (Callaghan 1979), or to resign recommending that another who commanded confidence be called upon but with no election (Baldwin 1924), but it is wrong to suppose that he could do both.

This is clear in the Cabinet Manual para 2.19

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdf

Professor Tomkins concludes

Suppose that a Labour-led minority government is struggling to pass its budget in the face of SNP resistance. There is nothing to stop Mr Miliband going to the House to say that, if his budget is not passed, he will resign on behalf of the government and advise the Queen that the Leader of the Opposition should be invited to form a government.If the PM does this the SNP would have to support Labour’s budget or usher in a new Tory government. That new Tory government may well not last long: if it could not gain the confidence of the House it could suffer defeat on a motion of confidence and we would be into the 14-day period provided for by the Fixed-term Parliaments Act. None the less, the FTPA does not give to a minority bloc of even 45 SNP MPs quite the strong hand that the SNP leadership imagines. For sure, the parliamentary arithmetic at the end of the week could allow the SNP to cause chaos and wreak havoc, but the Fixed-term Parliaments Act is not a legislative licence for the tail to wag the dog.

If this were true (it isn’t) then the entire point of the FTPA could be subverted.

The FTPA is there to remove from the Prime Minister the power of timing of elections. If Professor Tomkins were correct, a Prime Minister could resign, and compel the sovereign to call upon a leader of the opposition in whom the House of Commons had no confidence. Such a leader would inevitably lose a no confidence motion, and elections would then be triggered. Precisely the result the Act was designed to avoid.

The correct position is stated in the Cabinet manual

The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.

The Prime Minister cannot resign, and put in office someone in whom the House of Commons would have no confidence. Whilst he is correct that the Prime Minister has the power (not the duty) to resign at any time, it cannot be the case that he is free to recommend to the sovereign that he is replaced by anyone of his choosing (advice upon which the sovereign would, in 2015, be bound to act upon).

Even if (implausibly) the Prime Minister did recommend to the sovereign that she appointed someone without majority support in the Commons, that person should refuse the office, indeed is arguably under a duty to do so. If the Leader of the Opposition declined (as he should) the Prime Minister would have to continue until someone who could command the confidence of the House could be found.

Professor Tomkins hypothetical Prime Minister has attempted to blur two issues into one, by positing that defeat for the Budget implies that the House has confidence in the Leader of the Opposition. That does not follow. By voting against the Budget, Parliament has shown that there is majority opposition to the Budget, not that there is majority support for the Leader of the Opposition, whatever the Prime Minister said in advance.

Salmond in his New Statesman interview stated

And then under the [Fixed-Term] Parliaments Act that Westminster parliament’s passed but nobody seems to have read, you’d then have a two-week period to form another government – and of course you want to form another government because this might be people’s only chance to form another government.”
Would he expect Ed Miliband still to be Labour leader at this point?

“I have no idea,” he says. “But somebody will be. I mean, one of Labour’s big fibs – there are a number – but one of them has been that the party with the most seats forms the government. No, the party that can command a majority in the House of Commons forms the government as Ramsay MacDonald did [in 1924] . . . so it’s the party that has the majority. And the Parliament Act reinforced that, because it limits the ability of the incumbent to dictate an early election, and puts more power in the hands of parliament and indeed in the hands of your [party].”

That is correct. If, say, Labour won 285, SNP 45, Tory 273, Lib Dem 24, then Labour and SNP together form a majority in the Commons. What if the SNP opposed a Budget, could Prime Minister Miliband compel the sovereign to call on Leader of the Opposition Johnson if he is defeated? Could he compel the SNP to put the Tories in, through resigning?

(I have used different numbers from Professor Tomkins as he has selected a composition where Con + LD + DUP is a majority, ie where it is plausible that a Tory Prime Minister would have the confidence of the House.)

No because as Salmond says, if the SNP and Labour oppose the Tories the Queen cannot call upon Johnson to be Prime Minister as he would not command the confidence of the House. Miliband could resign, but he would have to be replaced by someone from the same block as only they can command the confidence of the House.

If it were otherwise, the FTPA could just be circumvented, and the ridiculous position that the sovereign could be compelled to make Prime Minister someone without majority support in Parliament reached. We must not let opposition to separatism (which I share) cloud our judgment.

The SNP, the Queen’s Speech, and Budgets

It is relatively easy to give advice as to the impact of a statute on a Constitutional Convention. If you ask “Assuming the Convention is X, what is the impact of Statute Y?”, the answer is simply a matter of statutory construction, and the right person to ask would be a lawyer.

The existence and content of a Convention is much more difficult as it is not a matter of positive law, and a lawyer as such is not necessarily the right person to ask. Conventions are a question of fact, and so it may be thought that past behaviour is the only guide. Precedent is certainly relevant, but a Convention is not merely a habit. A Convention is a rule that those acting under it ought to follow. If I make myself a cup of tea every morning at 8 am for twenty years, that is not a Convention. If one morning I wake and decide that I would prefer a coffee, I break no rule that I have good reasons to feel bound by.  A Convention is a rule, not just a pattern of behaviour. We can sometimes determine what the rule requires, even though we have no specific precedent to guide us, because we can reason what ought to be done.

The Sovereign

We are often told that we vote for governments and not Prime Ministers, as we do not live in a Presidential system. This is inaccurate. We vote for Members of Parliament, not governments. Parliament itself does not appoint or remove a Prime Minister. The person with power of appointment and removal is still, as a matter of formal law, the sovereign not the Parliament. In a Parliamentary democracy it is clearly unacceptable for a hereditary monarch to, in fact, exercise any power. As a result, today the sovereign’s role is a purely formal one. She is a cog in the system without any power of decision. This has led to the Convention that a Prime Minister who does not have the confidence of the House of Commons, when another does, will resign and recommend that the sovereign appoints the person best placed to command such confidence. The sovereign always acts upon such a recommendation. This is usually straightforward: the leader of a party with a majority in the Commons is Prime Minister. As recently as Victoria, the monarch had some discretion as to whom to call upon to act as Prime Minister, but nobody would consider that acceptable today. Least of all the sovereign personally.

In more complex cases, how is it determined whether the Prime Minister has lost the confidence of the Commons without an express vote on the matter? Before the Fixed Term Parliaments Act the Prime Minister always had the option to resign or ask for a dissolution, but the latter option has now been removed. Losing which votes now require, as a matter of Convention, that the Prime Minister resigns?

It is sometimes said that votes on the budget or a Queen’s speech are (or were) matters of confidence. (Here is Dr Catherine Haddon of the Institute of Government making this claim,)

http://www.theguardian.com/politics/reality-check/2015/apr/27/will-snp-run-britain-under-minority-labour-government

What has triggered Prime Ministers to resign, and a government to consequently change, in the past?

Resignations

Most common (since 1900) is loss of majority support because of the change in the Commons following a General Election (Brown 2010, Major 1997, Callaghan 1979, Heath 1974, Wilson 1970, Douglas-Home 1964, Attlee 1951, Churchill 1945, MacDonald 1931, Baldwin 1929, MacDonald 1924, Baldwin 1924,, Lloyd George 1922).

Of least Constitutional significance are cases of resignation for personal reasons, usually ill health (Wilson realisation of the onset of dementia 1976, Macmillan’s misdiagnosed cancer 1963, Eden’s stomach 1957, Baldwin’s weariness 1937,  Bonar-Law’s fatal cancer 1923, Campbell-Bannerman’s fatal cancer 1908, Salisbury’s old age 1902) to be replaced by a new leader from the same party. MacDonald’s mental deterioration led to his resignation as leader of the National government in 1935, but he was replaced by Baldwin, a Conservative member of the coalition.

More recently, Prime Ministers have resigned because they have lost the support of their party in the Commons (Thatcher 1990, Blair 2007). Gladstone’s resignation in 1894 was similarly caused by loss of support from his own party, but by that point he was a weary 84. In 1929 the Labour party was split over drastic reductions in spending, causing MacDonald to tender his resignation, but he was persuaded instead to head a coalition National Government.

Lloyd George’s resigned in 1922 when the Conservatives, following the election of that year, withdrew their support for the coalition that he headed, leading to the appointment of Bonar Law. Similar was the resignation in 1916 of Asquith following the loss of Conservative (and other) support for his prosecution of World War I. In 1905 Balfour resigned because of splits within the Unionists over tariff reform, but this was in part tactical rather than because of loss of majority support within the Commons.

Confidence Motions

Modern examples of a Prime Minister resigning because of the loss of a vote of confidence are rare. Chamberlain in 1940 following the Norway debate is a possible example. The government Chamberlain led actually won the vote, but with such a large defection of Conservatives to the opposition motion that it implicitly showed he had lost the confidence of the Commons.

In  January 1924, after the General Election of 1923 had led to a hung Parliament, Baldwin resigned following the passing of an express motion of confidence:

 “That an humble Address be presented to His Majesty, as followeth:— Most Gracious Sovereign, We, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled, beg leave to offer our humble thanks to Your Majesty for the Gracious Speech which Your Majesty has addressed to both Houses of Parliament. But it is our duty respectfully to submit to your Majesty that Your Majesty’s present advisers have not the confidence of this House.

Similarly in August 1892, following a General Election, Salisbury’s government was defeated in an expressly tabled vote of no confidence, leading to his resignation.

That we feel it, however, to be our duty humbly to submit to Your Majesty that it is essential that Your Majesty’s Government should possess the confidence of this House and of the Country, and respectfully to represent to Your Majesty that such confidence is not reposed in the present Advisers of Your Majesty.

In 1895 the Liberal Rosebery chose to treat a vote on army supply as a vote of confidence, and resigned, the Queen calling on Salisbury to form a government.

Looking at votes of confidence that have caused the Prime Minister to request a dissolution, there are no examples of this happening following the loss of a Queen’s Speech or Budget vote. Most recently in 1979, an election was held after Callaghan lost an expressly worded confidence motion tabled by the Leader of the Opposition.  In November 1924  MacDonald stated in advance that a vote on the setting up of an enquiry into ‘Campbell’s Case’ would be treated as a vote of confidence, its loss caused him to choose to ask for a dissolution. In 1886, the loss of the Irish Home Rule Bill was similarly treated by Gladstone as a trigger to seek a dissolution.

The Queen’s Speech and Budgets

To find examples of a Prime Minister resigning following the defeat of a Queen’s speech or Budget it is necessary to go back to the nineteenth century. In 1886, following a General Election, the Conservatives under Salisbury had not obtained a majority. Instead of immediately resigning however, a Queen’s Speech was put forward. Upon defeat upon an amendment to it, he resigned, The previous year, Gladstone’s government was defeated in a vote on the Budget, and he had resigned and Salisbury was called upon to form a government. The same sequence occurred in 1859 when the Earl of Derby resigned following the loss of an amendment to the Queen’s speech, as also had the same Prime Minister in 1852 when he resigned following defeat on a Budget.

Notice, importantly, that the defeat in all of these cases necessitated that the Prime Minister resigned. These losses did not cause him to ask for a dissolution with consequent elections. As precedents they stand for the proposition that a Prime Minister must resign in favour of another, and are unaffected by the loss of the power to ask for a dissolution following the Fixed Term Parliaments Act.

Losses in the case of a vote on the Queen’s Speech or Budget strongly implies a loss of confidence, and in most cases this must be so. Indeed, as in 1886, such votes may be used by the government in cases of uncertainty to deliberately test the issue. If a Queen’s speech is heavily defeated in a vote it is hard to imagine how this could not necessitate the Prime Minister’s resignation.

But, it is possible to imagine scenarios where this is not necessarily so. Say a Prime Minister in a coalition with a small majority is uncertain of whether he possesses a majority for a controversial budgetary measure. It is included in the Budget, but the Budget is narrowly defeated as a result. Does this necessarily show that he does not possess the support of a majority of the Commons? No. That there is no majority for this budget does not show that there is no majority for any budget put forward by this government. If a budget without that measure would pass, she may retain the confidence of a majority and continue.

Unless a vote is in express terms it is indicative only. No motion unequivocally demonstrates that a Prime Minister lacks the confidence of the Commons other than an expressly worded motion, or a motion that the Prime Minister makes clear in advance he will treat as a confidence motion, and hence a resigning matter.

The most recent example of the latter was in 1993 when Major stated that he world treat a vote on the government’s approach to the Social Chapter under the Maastricht Treaty as a vote of confidence, following the government’s earlier defeat on its ratification. If the Fixed Term Parliaments Act had been in force at the time, and Major had been defeated, he would have had no choice but to resign. At that time his position was stronger than it would in similar circumstances be today, as he would no longer be able to seek a dissolution if he lost: something the rebellious backbench Conservative MPs would not have wished.

The Fixed Term Parliaments Act and Motions of Confidence

The loss of a vote expressly or implicitly showing the lack of confidence of a majority of the House of Commons requires a Prime Minister to resign, just as it did at the time of the Earl of Derby. This obligation is a Convention only, the Act says nothing about it. One thing is altered however. Section 2 requires that if a motion is passed in the form

“That this House has no confidence in Her Majesty’s Government.

This triggers an early election unless a motion of the form

That this House has confidence in Her Majesty’s Government.”

is passed within 14 days.

This does nothing to the Prime Minister’s duty to resign. An express motion of the form “this House calls for the Prime Minister to resign”, a form similar to that proposed to be used to remove the former Speaker Michael Martin, or a motion implicitly showing the loss of the confidence of the House (as the loss of the Queen’s Speech almost always will) would require resignation, regardless of the Act.

Alex Salmond

In interviews with the New Statesman

http://www.newstatesman.com/politics/2015/03/alex-salmond-i-would-bring-down-any-tory-minority-government

and the Spectator

http://blogs.spectator.co.uk/coffeehouse/2015/03/alex-salmond-misery/

Alex Salmond has stated how the Fixed Term Parliaments Act strengthens the hand of Parliament at the expense of the government. This will be especially so in the case of a minority government.

Importantly, Salmond (for whom I hold no brief) says

“the Parliament Act reinforced that, because it limits the ability of the incumbent to dictate an early election, and puts more power in the hands of parliament and indeed in the hands of your [party]”

This is, essentially, correct. Today the Fixed Term Parliaments Act has removed the Prime Minister’s power to obtain a dissolution from the Queen with consequent elections. If the SNP vote down a Budget or Queen’s speech, this will not, alone, trigger an early election. With a Queen’s speech there would be little incentive to vote it down in any event. the Queen’s Speech has no legislative force, and if the SNP are opposed to individual items within it, they can oppose them as and when they come up. A Budget is however different, and the SNP may choose to oppose it in its entirety, with a fresh budget without the offending measures required to be resubmitted.   A Prime Minister unable to get through a Budget of which the SNP disapproves can choose to resign (as he or she can at any time) but this does not on its own change the combination of parties that are able to command a majority in the House (and consequently from which block a Prime Minister must necessarily be drawn), Such defeats may not therefore necessitate a Prime Minister’s resignation, with consequent change of government, but the SNP if they hold the balance of power will have a power of veto over measures they do not like. A Prime Minister can choose to resign if he likes, if there is someone else capable of commanding majority support in the Commons, but that does not remove the power of the party holding the balance of power.

Conventions: Are They Part of the Constitution?

The existence and content of Constitutional Conventions is a question of fact, not positive law. They are rules that exist outside of the positive legal order. They provide a set of rules for how legal powers may be exercised. A change to those legal powers may, and usually will, lead to either the change or abolition of the Conventions which relate to those powers.

When a judge needs to decide the outcome of a case, she must commonly rule not only on questions of law but of fact also. This means that rules from outside of the legal order may be relevant to the outcome of a dispute. Some simple examples of this may be given

-a claimant is injured in a car accident in Switzerland, and brings a claim against the defendant driver in England. If raised, the law to be applied to their dispute will be Swiss law. Foreign law is, before the English courts, as a matter of fact.

-a contract may provide that the question of how it is to be performed is to be governed by the principles of Sharia law. If a dispute under the agreement came before an English court, it may be necessary to examine what Sharia law requires, as a matter of fact, in order to determine what the parties have agreed.

Similarly, in the infamous Prince Charles Black Spider Memos case, the issue of what the Constitutional Convention of the education of the heir to the throne should be instructed on the business of government was relevant to what the ‘public interest’ required for purposes of disclosure under the Freedom of Information Act 2000. However, this was a matter to be determined by the trier of fact, the existence and meaning of which could not be directly addressed on appeal on the issue of law. See the (long and tedious) decision of the Supreme Court

https://www.supremecourt.uk/decided-cases/docs/UKSC_2014_0137_Judgment.pdf

One judge’s ruling on an issue of fact is not binding on subsequent judges in different disputes between different parties. A court cannot therefore authoritatively rule for the purpose of subsequent disputes on the existence and meaning of a Constitutional Convention.

Are such Conventions part of the Constitution then?

The answer to that question is, as with all good ones, it depends what you mean. What does the Constitution constitute?

If by the Constitution we only mean a body of positive law, then no, as Conventions form no part of the positive law. If by the Constitution we mean the body of rules, both legal and non-legal, then yes Conventions form a central part of the UK Constitution.