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Gordon Brown’s decision?

Most discussion of the possibility of a November election assumes that the decision is solely Gordon Brown’s. But is it really that simple? I think not.

It’s the Queen who dissolves Parliament in fact, by issuing a proclamation under the great seal saying that she’s directed the Lord Chancellor to send writs to returning officers to cause an election to be held. I realise of course that the Queen, by convention, acts on the advice of her ministers. That’s sometimes called “the cardinal convention” of the constitution, and on that basis no dissolution has been refused since before Lloyd George decided the right to recommend one was his alone. But that doesn’t mean the Queen can’t lawfully refuse a dissolution. She most certainly can.

Professor Rodney Brazier, in the 3rd, 1999 edition of his excellent book Constitutional Practice, says this:

It is beyond doubt that the Sovereign can refuse a request for a dissolution of Parliament: the difficulty lies in identifying the situations in which such action would be constitutionally appropriate.

In other words, the convention that the Queen follows the recommendation of the Prime Minister is simply that – a convention. Not law, or a hard-and-fast constitutional rule. So in what kind of situation could the Queen properly refuse a dissolution?

Well, one such situation, you might argue, would be if a Prime Minister were to recommend a dissolution when it was not strictly necessary to hold an election, so that the timing of the election reflected, more than usually, party interests rather than national ones; and when returning officers were so unprepared that, taken together with the fact that electoral registers were out of date, there was a real risk of poor electoral administration and some voters feeling disenfranchised. A far fetched scenario?

I’m not seriously saying the current situation is one in which a refusal would be appropriate. I think for the question to arise seriously, the Prime Minister’s opportunism would need to be even more naked than it actually is today; more importantly, the risk of electoral chaos and of voters feeling excluded would have to be greater. Given that we now have the Electoral Commission, I think the Queen might feel some kind of warning would be needed from them first – certainly the opposition and all other parties would need to be making their objections clear, and there’d have to be reason to believe there was serious public unease. Even so, I’m very interested to hear what those responsible for elections are saying at the moment – and I’m sure both the PM’s advisers and the Queen’s have the point in mind.

My final thought is that, contrary to liberal reflex, all this is a good reason not to transfer the PM’s right to request a dissolution to Parliament itself, as Gordon Brown has proposed. It sounds nice and modern at first, until you realise of course that the PM will always be able to whip a big majority into voting for dissolution when he or she wants one, and that a narrow majority won’t need maglie calcio poco prezzo whipping, either because they think they’ll gain seats in an election, or because a confident opposition will itself support the dissolution motion. So there’s no real positive case for the change.

And there’s a case against, because the change would make it even more politically difficult than it is now for a monarch to resist the recommendation of an over-mighty Prime Minister and his obedient majority, should we ever get into an extreme situation. At the moment, the political pressure is on the PM: he or she alone must feel able to justify cutting and running, and can claim no more legitimacy than that justification brings with it. That creates a serious disincentive to abuse. Whereas a parliamentary vote carries its own feeling of legitimacy -paradoxically recucing the pressure for a dissolution request to be politically justified.

Call me a constitutional conservative if you like, but I don’t think that’d be a change for the better. A truly liberal, democratic constitution where a sovereign Parliament makes all law is one thing – the control by a Parliamentary majority of the democratic process itself is quite another.

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  1. “Sovereign Parliament makes all law” and “Parliamentary majority of democratic process”. In the mirror these two look the same. A body that has the power to make any law it wishes and that is not bound by the past body nor can it bind a future body seems to be absolute power in disguise. So yes, there are mechanisms for scrutiny but are they effective? But what do I know I am fresh behind the eyes in Public Law

  2. I know, Reggae: as I wrote that last sentence, something in my mind nagged at me, saying – hey! Isn’t this all the same? Don’t you have to choose between the sovereignty of Parliament (which obviously means a political majority, ultimately) and some superior law? Actually, though, I don’t think so. The distinction I was trying to draw (I admit I might not have conveyed it clearly – and even if I did, other might find it unconvincing) is between the sovereignty of the legislature as far as substantive law is concerned – public policy, if you like – and sovereignty over “meta-politics”, or the constitution itself. I think there is a distinction here, and that it tells us something about the British constitution: in a sense we do have a supreme constitution. Unwritten, yes; mainly embodied in conventions, perhaps; but that constitution is not identical to its cardinal rule, i.e. that Parliament alone decides all law.

    I think the distinction only really appears clearly if you imagine the extremes. What if Parliament wanted to abolish democracy? I think the Queen would fail to fulfil her duty if she gave assent to any legislation abolishing elections.

  3. Is there a scenario in which the Queen may dissolve parliament and CAUSE an election without council from her ministers?