29 May 2024
When the general election was suddenly called I was in the middle of writing about another legal topic for Prospect.
And then when the current Prime Minister squelchingly announced a general election, I was asked if I could quickly write about that instead.
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My first thought was that this new general election told us something about the unintended consequences of constitutional reform – for the Fixed-term Parliaments Act 2011 was supposed to put an end to this sort of thing.
Had the Act had its intended prime effect, we would still be 4/5 way through the 2020-25 parliament, which would have followed the 2015-20 parliament.
But, of course, that did not happen.
Instead of an orderly and leisurely succession of predictable five-year parliaments, we have had consistent political chaos and constant constitutional drama.
We had a general elections in 2017 and 2019 by sidestepping (in two different ways) the primary object of the 2011 Act, and then the Act itself was repealed in 2022.
That is not to say the Act was ineffective: it certainly had effects.
Indeed the extraordinary events of late 2019 – where Parliament insisted with the Benn Act that there could not be a no-deal Brexit which, when enacted, enabled the then Prime Minister to get opposition support for a December general election – only make sense by knowing the constraints of the 2011 Act in stopping that Prime Minister calling a sooner election.
And the course of that 2017-19 “hung” parliament – a much underestimated parliament, though it certainly frustrated those who dislike having parliamentary checks and balances on executive power – can also only be understood by knowing that a Prime Minister was not able to easily call another general election.
The Fixed-term Parliaments Act 2011 certainly was an effective piece of legislation, they were just not the effects that were intended.
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But writing about that 2011 statute did not seem enough to carry a Prospect article.
I was stuck.
And then…
…and then this was tweeted – and widely retweeted:
It is safe to say that in thirty years of thinking about constitutional issues I have never considered such a question: could a general election, once called, somehow be un-called?
What a notion!
Constitutional law should not be this fun; constitutional law should be dull.
And not only had I never considered it, I also could not think of an immediate answer to the question.
The historian and commentator Robert Saunders mentioned that in 1831 the following happened:
Perhaps a vote like this could have been passed by a majority of the House of Commons, but it would have had to have been done very quickly.
And it would have required, well, a majority of the House of Commons – and those government backbenchers aghast at the sudden general election are presumably a minority.
So that was not going to happen.
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The only other realistic way would be for there to be a change of Prime Minister – or a change of mind by the Prime Minister.
And that would all have to been done before parliament dissolved tomorrow (30 May 2024).
That has not happened.
And it is difficult to think how it could have happened, for there would not have been enough time for a vote of no confidence and a new election for a new Conservative leader. It also assumes that the King would have accepted the new leader immediately as Prime Minister.
It is a measure of how strange the last few years have been that such a possibility was canvassed.
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Another way for the general election to be un-called could be perhaps a judicial review going even further than “Miller II” – which merely quashed a prorogation – that attacked the very proclamation of a general election.
That would have been a breathtaking (and rather entertaining) invitation to the courts for an extension of the remit of judicial review – and surely those government supporters who were upset by the Miller cases would not resort to such an ambitious and bold legal claim.
And now, we will perhaps never know how such an un-calling of an election would be done in practice.
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As I mention in the Prospect article (please click and read), it may be that with this general election our period of constitutional giddiness is coming to an end.
Or it may be that there are new constitutional excitements ahead: the moves towards Irish unification and Scottish independence, towards a closer and more sustainable relationship with the European Union, and towards a reformed House of Lords. There may even be scope for a re-examination of the role and powers of the Crown as and when there is a new monarch.
So a “brace” – if not a “brace, brace”.
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All of this – including the ‘cancel the election’ idea – reminds me how small groups often seem able to wield outsized amounts of influence in our democratic system. This is a flaw in ‘first past the post, oppositional two-party-dominated’ electoral systems.
It could be said that a similar flaw exists in nations where PR is used in elections. The resulting outcomes are usually coalition governments where small groups can also appear to wield disproportionate influence. Some would the Greens were in exactly that position in the Scottish government.
Fascinating as ever.
Am I right to think that in the 1831 case, it was still up to the monarch to appoint a government and party structures still hadn’t become so binding as to ensure that the biggest party in the Commons would automatically become the governing one, and also that PMs were usually from a chamber where there are no elections? So not really comparable with now.
It seemed to me that the Fixed Term Parliaments Act only made sense in the context of a PR based parliament where coalitions and cooperation were the norm instead of the current two party adversarial system which is a consequence of FPTP, and which is fundamentaly failing us.
I think there is much more ‘fun’ ahead if Labour wins the 2024 General Election.
Senior Labour sources have said that Sir Keir is frustrated with the democratic process so:
The hereditary peers would leave the House of Lords and be replaced by as many if not more Labour life peers to get Sir Keir’s legislative programme through the Lords with the minimal amount of obstruction. Sir Keir, anonymous sources say, is unhappy with the traditional constitutional roles of the Lords in revising Bills, acting as a counterweight to the House of Commons and holding the Government to account
Already twenty Labour MPs are each working with an unelected and/or self appointed faith leader ahead of playing a key role in Sir Keir’s Government
Sir Keir will alongside the faith leaders bring in unelected and/or self appointed community leaders to play a key role at the heart of his Government
And, Sir Keir’s Take Back Control agenda sounds less inapt when set in the national context of taking planning decisions about major projects, however defined, away from local government and placing them in the hands of an anonymous group of civil servants, possibly leavened with businessmen from the City of London (see below)
Sir Keir’s enhanced devolution for Scotland package, drawn up inclusively by Labour grandees and supporters is on a take it or leave it basis to be enacted by Act of Parliament with no input from the Scottish Parliament or the Scottish People in a referendum
Labour has been considering its take on the current Government’s Rwanda scheme. It must be cost effective; credible enough to deter migrants and avoid the legal challenges that have delayed the Rwanda plan
Rachel Reeves has said that she aims to place her British Infrastructure Council with representatives from some of the biggest UK and global investment funds, and her Industrial Strategy Council on a statutory basis, whatever that means. Both bodies will have a significant number of members drawn from outside of government. The history of bringing business people into government is a chequered one. It worked well for David Lloyd George and Winston Churchill in World War One and World War Two, respectively. It damaged for all eternity the reputations of Sir Keir’s and Reeves’s spiritual Labour predecessors, Ramsay MacDonald and Philip Snowden.
I think it was a nice touch that the work with faith leaders was ‘leaked’ to the media in time for the Guardian to cover the story on Easter Sunday.
Sir Keir has ruthlessly centralised power within his Labour Party so it is perhaps hardly surprising that he appears to plan to do so in Government?
The front page of Tuesday’s i carried the story that all of Labour’s directly elected mayors are bracing themselves to stand up to Sir Keir’s centralising tendencies.
A Labour insider said, according to the i, there is already “distrust” between the party’s HQ and some mayors.
Quintin Hogg, Lord Hailsham once spoke about the potential for a UK Government with a large majority to become an elective dictatorship.
And how does Parliament hold a group of business leaders on a statutory decision making Treasury committee to account?
The FTPA is a prime example of Cameron’s casual insouciance as PM. Did he intend a permanent change to our electoral arrangements, or merely to ensure that the coalition with the Lib Dems held for the full five years?
If the latter, why didn’t he insert a sunset clause into the legislation? If the former, he neglected to consider what was to happen if a minority government wanted an early election, given that the only devices available for curtailing the fixed term required the consent of a majority. In 2019 a concerted, organised opposition might have kept an impotent government in office but not in power until 2022.
I’m impressed. Something that happened in British politics has surprised me. I wouldn’t have thought that was still possible.
The attempt to delay the election by preventing the dissolution of Parliament shows the desperation of the Tory hardliners to cling to power as long as possible regardless of the constitutional implications. That kind of thinking began with illegal prorogation of Parliament and continued with various attempts to bypass human rights conventions and international law.
Such a move would surely have backfired. Rather than improve their chances, the delay of the election and the prospect of yet another leadership election would have destroyed any remaining credibility of the Tory Party as a government for the foreseeable future.
The short time available within the “normal” dissolution process would seem to prevent any attempt to reverse it. It would need more time, and the whole list of circumstances to be favourable for it to succeed. It would appear to be impossible within the Conservative Party’s current leadership election process. Even if enough letters were received to start that process, just one PM loyalist putting themselves forward as a “blocking” candidate would be enough to create delays beyond any feasible maximum timescale for a new election.
I don’t know enough about Labour’s rules to be able to comment on a similar situation with a Labour PM.
A quick question I can’t think of anywhere else to post:
If there was a serious event before July 4th (say a new pandemic or war) that required a recall of parliament, what might happen given there are now no MPs apart from those MPs in cabinet roles?
No clear idea. A recall of parliament would require I suspect the king to issue a new proclamation somehow cancelling his proclamation of an election. But beyond that I can only offer guesswork
The government continues, and ministers are still ministers. It is difficult to imagine a crisis that required parliament itself to be recalled.
Which is quite shocking in a way and a reminder of the extent of the Royal Prerogative exercised by UK Prime Ministers.
And an interesting contrast with, for example, the power the United States Congress voted itself in 1973 to curb a President’s ability to commit the USA to war.
The separation of powers was designed to prevent a President from becoming a Monarch.
According to Wikipedia, “The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for use of military force or a declaration of war by the United States. The resolution was passed by two-thirds each of the House and Senate, overriding the veto of President Richard Nixon.”
I assume that for Congress to be notified in 48 hours it has to be convened as a body in Washington?