Friday, 14 May 2010

Questions of Confidence for the Coalition

Debate rages about the 55% rule. Last night's Newsnight amounted to a LibDem confession that it was politically motivated in arithmetic and design; yet some constitutional experts like Robert Hazell say there is little to worry about, since this distinguishes dissolution from confidence, so that no confidence votes can continue as before.

But can they? That seems to me much too sanguine until we know much more about the detail of how the consequences of a no confidence vote would now change. So here are questions which the Coalition should answer - along with my constructive proposal as to how advocates of a 'new politics' might propose that the Coalition seek to regain trust in their intentions over this contentious proposed constitutional reform.

1. The convention is that the Prime Minister dissolves the House or resigns if defeated in a confidence vote.

Would David Cameron promise that he would resign as Prime Minister if he lost a no confidence vote, and was either unable to unwilling to propose a dissolution? Or does he believe he could and should stay as Prime Minister after a no confidence vote was lost?

My reading of the Coalition arrangement is that the latter is the case, so that the Prime Minister could not only remain in a caretaker role, but could secondly take the first opportunity to construct a 'new' government after losing the confidence of the House. What is the government's view of this?

2. The Prime Minister, if they were to resign after a no confidence vote, would have to advise the Queen as to who might have the ability to form a government.

Does David Cameron believe it would, if resigning after losing the confidence of the House, be as legitimate to recommend a party colleague in preference to the Leader of the Opposition?

Even if Cameron believes he could survive a no confidence vote, there might be political reasons why the PM might feel they should follow established practice and resign. My understanding is that he would keep open his options - depending on what could be agreed, he might tell the Queen to send for George Osborne, William Hague, Nick Clegg or for the leader of the official (Labour) Opposition.

If a No Confidence vote can neither secure an election, nor necessarily secure an opportunity for the Leader of the Opposition to form a minority government either, then the route to getting a government out if it does not believe it should go in a stalemate situation is much more opaque than before. (In 1924, both Baldwin and then MacDonald advised the King to send for the Opposition Leader; Rosebery also did so in 1895 even though there remained a Liberal majority in the Commons when the government lost the 'cordite' confidence vote, allowing the Conservatives to govern and then dissolve the House).

3. Does the government believe it could enjoy the right to stay in office indefinitely in a caretaker role, after a no confidence defeat, if no alternative government were agreed between parties? Or will they commit to introducing a mechanism to prevent the possibility of an indefinite "zombie government" carrying on to the end of a Parliamentary term, even where it did not have the confidence of the House?

In Scotland there is a clear time limit of 28 days to appoint a new Prime Minister after a no confidence vote, at which point a dissolution takes place.

At Westminster, if a government lost the confidence of the House, would there be a mechanism to trigger a dissolution if no alternative government with the active confidence of the House were formed? The coalition implies not. On the existing principle that "Her Majesty's government must continue", this suggests a government without the confidence of the House would remain the government for a period of days, weeks or months if negotiations did not form another government. (There could be a dissolution, because everybody wanted one, but what is new is that the minority Conservatives would have a veto over this).

***

The Coalition may reply that the Conventions on No Confidence votes are themselves not necessarily absolutely clear, though that only really becomes a live issue once one seeks to remove the practice of dissolution from confidence, since there is little doubt about the current "dissolve or resign" essentials.

Earlier this year the Cabinet Office produced rules and guidance how to handle a Hung Parliament, which proved rather important and avoided an enormous legitimacy dispute last week (once everybody decided they would play by the existing rules after all). The Coalition's proposal makes similar guidelines on no confidence votes essential.

So, a suggestion:

4. Will the government now ask the Cabinet Secretary and Speaker of the House to lead a a non-partisan process, involving Parliamentarians as well as external constitutional experts, to record the existing conventions and rules, and to set out options and guidance for how they could be incorporated in a new fixed term agreement?

The draft guidelines should be debated and endorsed by Parliament before any draft legislation is produced or voted on over fixed election dates and, were to remain the government's policy, the new 55% rule.

Could any proponent of the 'new politics' seriously disagree with that as a way forward?

8 comments:

Stuart White said...

Sunder: very helpful analysis.

What do you think of the view that Vernon Bogdanor and Anthony Barnett have both expressed, that the proposed 55% rule is of no real consequence since any law embodying it could be repealed by a bare parliamentary majority anyway, restoring the status quo?

Either way, it is striking just how cavalier with the rules our 'new politics' government would like to be....

Scot M. Peterson said...

I disagree, Sunder.

Your proposal is a way of delaying the change's effectiveness. But the changes are in the interests of everyone (*except* the Conservatives, perhaps), including a viable Labour coalition partner for the Liberal Democrats, for the Liberal Democrats to have increased power against the Conservatives. Your hypothetical zombie government won't happen for three reasons: 1. it would destroy the Liberal Democrats, as both large parties could campaign effectively in the next general election for strong (>55%) government, and the Lib Dems would be eliminated (that means before they leave the C's they will have explored a coalition with Labour); 2. the British public, with the scrutiny of the media on the government, would not stand for it (cf. the US in November 1995); 3. an entirely obstreperous Lib Dem Party might force Labour to form a grand coalition with the Conservatives or at least agree to dissolve the government or lose all credibility themselves.

Meantime, if the measure passes, the Lib Dems can stop individual pieces of legislation (say, redistricting to ensure a Tory majority) by allying with Labour. That's a lot of power on an ad hoc basis.

Granted, all of this is dependent upon a viable Labour opposition (which is a big ask at this point), but it should provide an incentive for that to happen rather than the opposite.

Stuart: I'm still worrying about how that works. If you think of the changes as restrictions on the royal prerogative, which they are, then it will be like any other act that restricted it. More interesting is a provision in the statute that says that it can only be repealed by the same percentage of MPs that passed it. (Yet another nail in Dicey's coffin...)

Tom Freeman said...

Another question (or pair of questions) is whether there even is a 55% majority in the Commons to support this rule, and whether it's at all morally credible to create a supermajority requirement without having a supermajority in favour. On both counts, I suspect not.

Sunder Katwala said...

Stuart,

Thanks. What Bogdanor and Barnett say does sounds right to me, though I don't know, and clearly they would know more. One would like a clear statement about that too.

If the Commons passed a "We have no confidence in the government and hereby vote for a dissolution" motion, the Bill will have had to set out how and why that would be disallowed, and/or the Speaker might be placed in the position of having to accept it (as a vote of the Commons) or refuse it (because of the provisions of the Bill). I can't myself see how it could go out to the judiciary, but others may know more.

It is clear that the Scotland Act is passed by the UK Parliament, which can abolish the Assembly, just as it can repeal the 1972 European Communities Act, so in all of these cases formal Parliamentary Sovereignty is preserved. This is a different case. (The question of how you would entrench a written constitution in the UK has some similar features: the practical political point must be that you legislate to create institutions with a referendum; we have a new convention that it would take a referendum to abolish (eg the Scottish Parliament).

hopeoverexperience said...

Scot, you say 'Meantime, if the measure passes, the Lib Dems can stop individual pieces of legislation (say, redistricting to ensure a Tory majority) by allying with Labour.'

I'm unclear on this one. I'm pretty sure, as much as I'm sure of anything at this point, that a government can have things voted down without needing to resign/dissolve etc. If the Lib Dems were to vote against something that wasn't included in their coalition agreement as something that the Lib Dems either had to support or abstain on, would it automatically be taken as a vote of no confidence? Even if so, shouldn't that sort of thing be dealt with between the parties and not by parliamentary rules?

CS Clark said...

Frakkin' Wordpress inability to implement OpenID right...

sdedman1 said...

The difference between confidence and dissolution is being used to justify this proposal, as if you can simply divorce one from the other. Well in the nice safe world of political theory maybe you can, in terms of a constitutional settlement for a future parliament, maybe you can. In political practice in other parliaments, maybe you can.

The significant point is we are talking about a Parliament that has not been elected on this basis. No one party was given an overall majority, all the parties should serve in the current parliament under the basis it was elected; and deal with the realities of the electorates’ decision within that context. They should not be trying to ‘fix’ the constitutional arrangements of this parliament to get short term political gain disguised as either providing for stability and/or enhancing democracy.

By trying to separate confidence from dissolution and moving the goalposts to 55% for that, you are trying to insulate yourselves and enjoy the same protection from dissolution a majority Government has.

All sorts of scenarios could arise once confidence was lost, yes there could be a Lib-Lab Deal, there could be a minority Tory Government, there could just as easily be legislative inertia and a constitutional crisis. No Government can command a simple majority, yet there is not 55% in favour of dissolution. Just a complete mess.

This parliament was not elected on the basis of serving a fixed term. It should serve only upon the basis it was elected. The issue of a fixed term parliament and the arrangements for its dissolution should only apply to future parliaments.

This proposal is the complete opposite of democracy. It seeks to entrench the major party and the current coalition in power for five years, regardless of whether parliament has confidence in it.

We need to look at the reality of this parliament and not some nice theory about how a fixed term parliament should work.

The reality of this parliament is that no one party has an overall majority and that thanks to FPTP we have distorted levels of party representation. We have the situation where the major party has 36% support but wields 47% of the power and the third party has 24% support but wields only 9% of the power; in terms of votes. Labour has 29% support and 40% of the voting power. The only way that the 55% mark for dissolution can be reached is with some support from the major party.

I am in favour of fixed term parliaments oddly enough. But we need to be very cautious about throwing away centuries of our constitutional arrangements for short term political expediency, dressed up as stability.

If we have a fixed term parliament elected upon a proportional voting system then a threshold of 55% or higher would be democratic. The reality of our current parliament is very different. What might work for a theoretical parliament simply does not cut in under the present realities.

Any fixed Term Parliament elected under FPTP or for that matter AV must retain simple majority rules for dissolution, given the distorted levels of representation and voting power they create.

Scot M. Peterson said...

Hopeoverexperience:

Votes of no confidence are slippery things. Sometimes, failing governments (Rosebery) declare them after the fact. Other times governments deny that they exist when they should. My example of a place where Labour and the LDs could agree was unfair redistricting that would squeeze them both out. Particularly on constitutional issues (in which I admit I'm most interested--and it seems Nick C is too), it seems to me that the agreement, as it stands, offers a lot of room for some productive LD-Labour agreements, in opposition to the Conservatives. I would argue that the areas that are spelled out explicitly in the coalition agreements would be potential confidence issues, but the question remains, if the coalition loses, should Labour push for a dissolution (when it's out of steam and money), or should it go into a coalition with Labour to advance reform of the rules to make them fairer for everyone? (Or will the Conservatives beat Labour to that objective, with Labour objecting from the sidelines, as an indiscriminate opponent to constitutional reform by the coalition?)