The Fixed-term Parliaments Bill

Regular readers will know I’m opposed to fixed-term Parliaments. But that point of principle isn’t the only reason to be concerned about the Fixed-term Parliaments Bill.

The Clerk of the House of Commons himself, Malcolm Jack, has expressed concerned about it, apparently, in his evidence to the Political and Constitutional Reform Committee, comments I first heard about from Charon QC (who else?).

I’m not sure how the Clerk brings the European courts into it (the Bill raises no issue of EU law, and I can’t imagine why anyone could want to rely on the article 3 Protocol 1 Convention right to free elections to oppose the calling of an early election), but he must be right in principle that legislating to lay down a procedure for calling early elections makes it possible for people to challenge in court the calling of such an election.

I agree that the legislation is unwise: it’s wrong in principle for the coalition to meddle with the constitution merely in order to bind itself together politically itself by barring David Cameron from cutting loose of the Liberal Democrats. The bill is pointless for any other purpose, since clause 2(2) clearly permits the coalition to go to the polls early (just as the PM could unilaterally until now) through a vote of no confidence in itself followed by a refusal to pass a vote of confidence in anyone else:

An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—
(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted), and
(b) the period of 14 days after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.

There’s more specific cause for concern in the detail of clause 2, though – a clause which gives truly extraordinary power to both the Speaker and the Prime Minister. Subsection (1) does not, as the explanatory notes misleadingly claim, provide

for an early election if the House of Commons passes a motion that there should be such an election.

In fact it provides for an election if the Speaker issues a certificate saying a motion has been passed, which is quite different. The Bill does not say in terms that the Speaker must issue such a certificate; in fact clause 2(4) says he must consult his deputies before doing so, which may be a merely procedural requirement, but does raise the question what he could possibly consult them about, if he’s obliged to issue one anyway. I suppose none of us doubts that the Speaker would issue a certificate pretty promptly. It does seem extraordinary, though, that the Bill should not make Parliament’s intention crystal clear on the basic question of whether he has to – and if so, when – or whether he merely may do so. That certainly would need testing in the courts, if a Speaker kept the country waiting.

But it gets more extraordinary yet. Clause 2(3) provides that

A certificate under this section is conclusive for all purposes.

which means no one can challenge the Speaker’s certificate by arguing about who voted, or whether a motion was truly a motion of no confidence, etc.. All of which seems fairly sensible at first blush. But it’s worth reflecting on clause 2(3) for a moment – it purports to make the Speaker’s certificate conclusive, and for all purposes, so putting it in effect beyond any possible challenge. That being so, what’s to stop the Speaker from calling an election unilaterally by simply issuing a certificate whenever he fancied, even if a motion of no confidence had never even been tabled? After all, no one could object to it in court on the basis that no motion had been passed – the Speaker’s certificate would, by law, be conclusive on that. I can imagine an argument akin to that which succeeded in the (to public lawyers) well known Anisminic case, that a certificate in these circumstances was no true “certificate” at all, and so not conclusive. But litigation of that sort doesn’t bear thinking about.

Clause 2 contains something else yet worse, if that’s possible. Clause 2(6) provides that the date for an early election is to be

the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister

which means it’s set not by the Queen, but by the Prime Minister – and without any apparent limitation on what date he may recommend. Why not recommend a date a year away, or two, or three? Why not recommend a date ten years off? Again, I can imagine a legal argument based on the Padfield principle that the PM must use his discretion in line with the purpose of the provisions, not thwart that purpose. But it does seem unsatisfactory to rely on that principle alone to check the PM’s otherwise unlimited power. And even if we just consider what’s politically likely to happen, it seem strange that legislation supposedly aimed at taking power away from the PM should leave him with the undoubted power to choose whether to have an election in twenty days’ time, or fifty – a range of discretion within which I would have thought it difficult to challenge his recommendation in law. The Liberal Democrats would be wise to notice that this bill puts that power in the hands of one man – not two.

No doubt supporters of the coalition will want to dismiss thoughts like these as mad hypotheticals, as they did concerns about their proposed “55%” rule (before they sensibly backed off). But it’s not good enough to leave these matters open, trusting individuals with what on their face are extraordinary, Cromwellian constitutional powers (though to be fair, even Cromwell’s Instrument of Government tied him down more precisely on this sort of thing: see article XI).

We must never let these people try to draft a written constitution.