Elections should be confirmed by a simple Commons majority – anything else would be contrary to the view of Parliament
Where does power lie? That was the question at the heart of debate in the Lords on the Dissolution and Calling of Parliament Bill. The issue: should the decision to seek a general election be in the hands of the executive, in the person of the Prime Minister, or should it be subject to the will of the Commons as expressed in a simple majority resolution?
The Lords took the view that the Commons should agree before a PM can ask the sovereign for a dissolution. Will the Commons now assert its status as the “sovereign in Parliament”?
The Dissolution Bill is now returning to the Commons. The bill will repeal the Fixed-term Parliaments Act (FTPA) – all are agreed on that. The Conservative manifesto commitment to “get rid of the Fixed-term Parliaments Act” will be fulfilled.
But the government’s intention is that the constitutional position be restored to that which applied before the FTPA, ie a personal prerogative power of the sovereign. The bill includes the remarkable statement that the position should be “as if the Fixed-term Parliaments Act had never been enacted”. (I think of this as the “Bobby in the shower” escape clause! How tempting to deploy this concept in future legislation.)
The government is fixated upon the events of the autumn of 2019, and blames the Commons for “gridlock”. “Never again!” they cry. But they fail to recognise that three times the Commons voted for an election by a simple majority; it was the two-thirds majority requirement which led to gridlock.
The Lords has given the Commons a chance to assert its constitutional role as the source of the executive’s authority. It is only because an administration commands a Commons majority that the PM can continue, and it should be on the same basis that a decision for a dissolution should be made.
It is the responsibility of the Commons to decide if a government can carry on.
Ministers have talked of a “vital link between confidence and dissolution”. But the vital link is between confidence and resignation. It is clear that past prime ministers have lost the confidence of MPs and resigned, but a new PM has formed a new administration, which was then able to get its business through. And if no government could be formed successfully, political realities would mean that MPs would certainly vote for an election to resolve the impasse.
Ministers have wisely steered away from Jacob Rees-Mogg’s recent assertion that the PM has a personal mandate from the electorate; but it strengthens the need to reassert that the electorate give its mandate to MPs in the Commons, with the critical decisions being subject to that majority. By what right would a PM call an election which the Commons would not support? If the PM commands a majority, they would be able to secure such a vote.
It is the responsibility of the Commons to decide if a government can carry on. It should equally be its decision to return its mandate to the electorate before five years. The only other potential constraint on the power of the PM would be the intervention of the sovereign to deny a request for a dissolution. No one in the Lords argued that it would be wise to draw a sovereign into such an intensely political dilemma.
The Lords voted to amend the bill with cross-party support, but not the government’s. I don’t believe it is a party-political issue. The amendment was drafted and led by Lord Judge, former lord chief justice and current convenor of the crossbench peers.
The Lords’ intention was clear that it wanted the Commons to have a chance to reconsider, and the previous debate was not sufficient. The question is: will the Commons now assert its constitutional status and recover power from the executive, not further empower the executive?
Lord Lansley is a Conservative peer
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