[EL] UK now has fixed term parliament with option of self-dissolution

Mon Sep 26 17:33:02 PDT 2011

It's not inconceivable that the monarch or some other constitutional 
umpire with a wide roving brief (eg, in Germany, the Constitutional 
Court) might intervene to look behind the parliamentary numbers and 
say "Notwithstanding that these MPs put their names to (or hands up 
for) a motion expressing want of confidence in the Prime Minister, 
they do not in fact lack confidence in him/her. This is an attempt to 
do an end-run around the law."

True, this would require a lot more activism than constitutional 
monarchs usually engage in, but it does fall within what's generally 
considered the legitimate remaining sphere of reserve powers in a 
Westminster system - ie, granting or refusing a dissolution against 
the Prime Minister's wishes is one of the very few areas in which a 
monarch or Governor-General is allowed to still say "La Reine s'avvisera".

In Germany, the Constitutional Court called out Helmut Kohl for 
trying this stunt in 1983, although it held back from blocking the 
actual dissolution or declaring the new election invalid. It warned 
"don't try this again or we'll get serious".

Going by this example (and some mid-1970s decisions of the High Court 
of Australia regarding double dissolution election), I'd say that 
practically a court is limited to acting ex post facto and is usually 
reluctant to enforce what appear to be constitutional (even 
judiciable) limits on dissolution once a fresh election is underway - 
throwing out the new results would seem both (a) undemocratic and (b) 
a huge waste of money. By contrast, the head of state or their 
viceroy is in a position to stop a new election taking place at all, 
by refusing ex ante to sign off on a dissolution.

Ironically, simply saying "no early elections at all", as in USA and 
Switzerland, sidesteps the whole issue by making it abundantly clear 
that a dissolution is never valid. And at the other extreme 
dissolution at will, with no legal preconditions - - the former rule 
for the UK and Canadian House of Commons and most Australian State 
lower houses, and still the legal rule for the Irish and Australian 
Houses of Representations - also avoids litigation It's only when a 
term is semi-fixed, with dissolutions allowed only when there is in 
some sense a "deadlock" between the lower house and either the Prime 
Minister or the Upper House, that the prospect of litigation and the 
spectre of "Oops, that election we just had shouldn't have happened" 
can emerge.

At 01:37 27/9/2011, Douglas Carver wrote:
>Thanks Josiah and Adam for the clarifications and explanations. I 
>hope other members of the listserve don't mind the interchange -- I 
>find comparing our system with others instructive.
>
>Douglas Carver
>
>On Mon, Sep 26, 2011 at 9:06 AM, Adam Morse 
><<mailto:ahmorse at gmail.com>ahmorse at gmail.com> wrote:
>As I look at it, the specific law is mostly political theater (or I 
>suppose "theatre," since it's British). A no-confidence vote can 
>still cause a snap election, albeit with a 14-day period to try to 
>re-assemble the governing coalition. And despite the two-thirds 
>majority requirement, the government could presumably still cause an 
>election that isn't scheduled by either deliberately failing a 
>no-confidence vote or by passing a new law repealing this law, and 
>then following that with a decision to call a new election. 
>Requiring a procedural two-step doesn't make much of a difference. 
>I'm not aware of anything that would insulate that super-majority 
>requirement from repeal by a simple majority, although perhaps there 
>is some wrinkle of British parliamentary practice that I don't 
>understand. Under current circumstances, that would require the 
>cooperation of the Lib-Dems, but even without their cooperation the 
>Conservatives could engineer an election by deliberately failing a 
>no-confidence vote.
>
>The law may have actual impacts because of its symbolic effects. 
>There might, for example, be political reasons that Cameron would be 
>unwilling to have his party express a lack of confidence in his 
>government. And over time, if elections are held at the regularly 
>scheduled times as the law provides, a tradition may develop that 
>would make it politically difficult and unpopular to break the 
>tradition. But unless I'm missing something, any effects would be 
>because of those symbolic, political impacts rather than because of 
>the direct effects of the law.
>
>--Adam Morse
>
>On Mon, Sep 26, 2011 at 10:27 AM, Josiah Neeley 
><<mailto:JNeeley at bopplaw.com>JNeeley at bopplaw.com> wrote:
>Actually, I believe that enacting fixed-term parliaments was one of 
>the conditions the Lib-Dems had for entering the coalition with 
>Conservatives. Fixed-term parliaments don't mean that the Lib-Dems 
>can't leave the coalition; a government can still be brought down at 
>any time by a vote of no confidence. What it does mean is that the 
>party in power can't just pick an election date based on what would 
>be to its own partisan advantage.
>________________________________________
>From: 
><mailto:law-election-bounces at department-lists.uci.edu>law-election-bounces at department-lists.uci.edu 
>[<mailto:law-election-bounces at department-lists.uci.edu>law<mailto:law-election-bounces at department-lists.uci.edu>-election-bounces at department-lists.uci.edu] 
>on behalf of Douglas Carver 
>[<mailto:dhmcarver at gmail.com>dhmcarver<mailto:dhmcarver at gmail.com>@gmail.com]
>Sent: Saturday, September 24, 2011 12:25 PM
>To: <mailto:jure.toplak at uni-mb.si>jure.toplak at uni-mb.si
>Cc: <mailto:law-election at uci.edu>law-election at uci.edu
>Subject: Re: [EL] UK now has fixed term parliament with option 
>of    self-dissolution
>Evidently Mr Cameron is not confident in the durability of his coalition..
>On Sat, Sep 24, 2011 at 2:58 AM, 
><<mailto:jure.toplak at uni-mb.si>jure.toplak at uni-mb.si<mailto:jure.toplak at uni-mb.si>> 
>wrote:
>I have not seen news about this on the list (I may have missed it) and
>members may find it interesting:
>Last week UK for the first time in history enacted fixed-term
>parliament. Elections will take place each 5 years in May. With this,
>the prime minister is giving up the right to pick and choose the date of
>the next election. Two thirds of the House of Commons can, however,
>dissolve the House and call early elections any time (self-dissolution
>of the parliament). The parliament is also dissolved early in case it
>votes that there is no confidence in the government and then, within 14
>days, it does not vote that there is confidence in a government.
>The text of The Fixed-term Parliaments Act 2011
><http://www.legislation.gov.uk/ukpga/2011/14/enacted>http://www.legislation.gov.uk/ukpga/2011/14/enacted
>Wiki
><http://en.wikipedia.org/wiki/Fixed-term_Parliaments_Act_2011>http://en.wikipedia.org/wiki/Fixed-term_Parliaments_Act_2011 
>
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>Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.
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>(I have loved justice and hated iniquity, therefore I die in exile.)
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>   -- the last words of Saint Pope Gregory VII (d. 1085)
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