This fixed-term election law is built to last

COYNE: To unlock Britain’s election law, you need two keys


I’m quite certain this is wrong:

The mother of all Parliaments has taught Canada a lesson. We have some for her, too.

Britain’s new government has demonstrated that coalition governments are possible, even outside of wartime, in the modern era of Westminster-style parliaments…

New British Prime Minister David Cameron and Liberal-Democrat deputy Nick Clegg have even devised a new plan to ensure stability in a hung Parliament: a five-year fixed term for elections to be set out in law. …

But another part of that agreed law is less likely to fly: changing the convention so that it will take 55 per cent of MPs to defeat the government. That would effectively give Mr. Cameron’s Conservatives, with 47 per cent of MPs, a veto on its own survival….

So the fixed-term bill appears to make it impossible for Mr. Cameron to call an election. But it probably can’t bind Mr. Clegg from splitting away and forcing one – given a pretext, and good polls. And if Mr. Clegg can’t be bound, it’s not impossible for Mr. Cameron to trigger a split by pushing measures the Liberal Democrats can’t accept.

If this were true, that it would take a vote of the 55% of the House to defeat the government — if, henceforth, the standard of confidence would no longer be the support of a majority of the House, but 45% — it would quite literally mean that the Cameron government, with 47% of the seats, could not be defeated. The budget, the Queen’s Speech, its entire legislative program could be rejected, but it could never be removed from office, for the life of the Parliament. The Conservatives could govern as long as they liked, with or without the support of the Lib Dems.

There is no way that any party would propose such constitutionally dubious legislation, and certainly no way that the Lib Dems would agree to it, since it would be signing away the very bargaining power they had just won. It’s nonsensical.

In fact, if you look at the text of the Conservative-Lib Dem accord, it doesn’t say 55% would be required to defeat the government. It says 55% would be required for “dissolution,” that is for dissolving the House and calling an election. This is a crucial difference. Significantly, too, the provision comes at the tag end of the paragraph establishing a fixed five-year term of government. Because it’s the guarantee of it.

What it means is that if the government were defeated in the House — by the usual 50% margin — Prime Minister Cameron could not simply go the Queen and ask for dissolution. He would have to get a vote of 55% of the House to permit him to do so. So he could not wriggle out of the coalition, or the commitment to a five-year term, by engineering his own defeat (still less do what Stephen Harper did, and call a snap election, without even the fig-leaf of defeat to justify the breach).

If he were to propose legislation that was obnoxious to his Lib Dem partners, they could always combine with the opposition to defeat it. But Cameron could not use this as a pretext to force an election, because he couldn’t get the 55% needed for dissolution — not without the Lib Dems. An election would only follow defeat on a confidence matter if the Lib Dems agreed it should; but they might instead decide to enter into a coalition with Labour and the other parties. So Cameron’s power is significantly constrained by the 55% rule, and he can’t get rid of the rule because he’d need the Lib Dems’ votes to do that, too.

For their part, the Lib Dems could not force an election on their own, either: they have enough votes, in combination with the other parties (53%) to defeat the government, but not enough to meet the 55% dissolution standard. Only if both parties agreed (or, more fancifully, if the Tories and Labour voted together) could Parliament be dissolved.

So the two coalition partners could together break their promise of a fixed five-year term, and pay the political consequences. But there is no way one can double-cross the other, and force an election on its own. This isn’t like Canada, in other words. To unlock this election law, you need two keys.

CODA: The Globe story gets this part right, however:

Canada’s fixed-election law had an out, because it had to. Calling elections is the Crown’s power, and our Parliament can’t change that without a constitutional amendment approved by provinces. So the fixed-term law left the Governor-General’s ability to launch elections whole, and Mr. Harper asked for one.

Britain’s similar, but not the same. They have no written constitution, and Parliament can limit the Crown’s powers. Its coalition can pass a fixed-term law.

That much is true. It’s easier to amend the British constitution than ours. It’s not quite true to say, however, that Britain doesn’t have a written constitution. Magna Carta is written down, as is the Bill of Rights 1689 and sundry other documents and laws that together make up the British Constitution. It just isn’t written down in one place. But then, neither is ours. It comprises the 1867 Constitution, the 1982 one, plus all of the constitutional principles, conventions and precedents we inherited from the Brits.


This fixed-term election law is built to last

  1. I hadn't quite looked at it that way until now, thanks.

    However, it is still possible if a wing of the Conservative party broke off and defeated the government with the Libdems and the rest, or if the Conservative Party split apart on some issue. This is all assuming the Conservative Party is united, no?

    • No. They could always engineer their own defeat, by not showing up, as you say. But to get to the 55% needed for dissolution, they face a different challenge: not to get fewer votes, but to get more — more than they have on their own. They can't do it without the help of one of the other two parties.

        • Well, no: the Guardian article you link to makes my point pretty exactly. "The legislation will provide for a general election to be called if 55% or more of the Commons votes in favour. The convention since 1782 has been that a significant defeat on a major issue can lead to a vote of no confidence in the government. If they lose that vote then they are obliged to resign or call a general election…. The fixed-term parliament legislation will take away the power of a prime minister to call an election in these circumstances. But it will also mean that if the government falls the sitting prime minister can try to form a new coalition government from among the opposition parties. If that fails … they have settled on a threshold of 55% of MPs to force a general election."

          So 50% is enough to defeat the government, but 55% is needed to call an election. If defeated, Cameron can resign or (and I missed this option) try to form a different coalition himself. The one thing he can't do is call an election. Just as I said.

          The BBC, on the other hand, got it wrong.

          • Andrew, I want to agree with you, I really do, but the Guardian isn't helping us. The Conservatives can only lose a confidence vote if the Lib-Dems leave the coaltion. The Conservatives then become a minority government, unless the Lib-Dems can form another coaltion. The Conservative minority government cannot be dissolved except by a 55% vote, which the oppostion doesn't have: "So they have settled on a threshold of 55% of MPs to force a general election. The 55% figure is significant because the Conservatives have 47% of MPs and it ensures that the Lib Dems cannot simply walk out of the coalition and vote with the opposition to call a general election as they can only muster 53% of the vote."

          • You're confusing defeat and dissolution. Governments are defeated, but Parliaments are dissolved.

            If the Conservatives were defeated in a confidence vote (50%), they could hardly then turn around and form a minority government: convention counts for something. The only way they could carry on, if the Lib Dems abandoned them, is if they could form a coalition with Labour, which would be a decided longshot. The more likely scenario would be the Lib Dems and Labour giving it a go.

            But however these scenarios played out, the one thing the Conservatives could not do is dissolve Parliament, because they'd need 55% for that. Again: governments are defeated with 50%, but Parliaments are dissolved with 55%.

          • You're right. If he were supported by less than 50% of the House, Mr. Cameron would need to resign. But if less than 50% of the House supports the proposed Lib-Lab coaltion, they can't form a gorvernment either (this bit is weird, I admit). What happens then? Parliament can't be dissolved but it has no government. Other countries with this system have the head of state intervene if events start going this way, but the Queen won't be given that role here. What should happen is that one of these defeats should be on a confidence motion that also repeals the fixed term law – meaning that Parliament will be dissolved on a simple majority. But, as long as the tixed term legislation is there, you have a peculiar situation of no stable government and no dissolution. Somebody has to declare peace or repeal the law, and declaring peace means a government with 45%+1 support.

          • Right, up until the last line. As I say lower down in reply to another comment, if a) the government were defeated (possible), and b) no other party or combination of parties could form a government (possible, if less likely), and c) the Conservatives, despite a and b, refused to allow a dissolution, thus condemning Britain to no government at all (highly unlikely), then it would be open to the other parties to combine to repeal the law. But they would do so with the express purpose of forcing a dissolution, not to leave the Conservatives in power. They could presumably form a government long enough to advise the Queen of this necessity.

          • Sure, there would need to be peace – but that's either a minority government or an election. It doesn't have to be the Conservatives who block dissolution .

            The Lib-Tory coalition only breaks if one of the parties decides to break it. If the Conservatives want an election, it will be because they have better electoral prospects than the opposition. So, they'll break the Lib-Tory coaltion by choosing an issue that forces the Libs to vote against them . Now there are three possibilities: the opposition forms a (minority) coalition against a popular government; the Conservatives get their election on a simple majority vote or the Conservatives are compelled to be a minority government. Can the minority coaltion be blocked by a 50% vote or does it take 55%? If it's just 50%, then we're in the situation I've already described. If it's 55%, then the no confidence threshold has been raised and the Conservatives weren't just defeated.

          • "Presumably"; "she would just have to step in and put things right". My goodness, how fortunate we are to have a constitutionalist of your calibre to refashion our democracy in three days..

      • Two things I'm unclear about:

        1. Do they mean by 55% of the House either to mean:
        a. 55% of all MPs regardless of how many of them are present. or
        b. 55% of the MPs that are sitting in the House that meet quorum for the vote.


        2. I'm unclear as to whether:
        a. In order for the house to be dissolved, there has to be a confidence vote that fails by more than 55% against. or
        b. In order for the house to be dissolved, there has to be a specific motion recommending that the house be dissolved.

        If it's both 1-a and 2-b respectively, then I am quite pleased with such an arrangement. Otherwise, less so.

        Either way, I'm quite impressed by the way in which Cameron is going about this whole endeavor.

  2. I still don't quite understand this. Doesn't it mean though that the government cannot be brought down. Lets just imagine for a moment that Britain is Greece in three years time – rioting, burning streets (i hope not but bear with me). Labour the other smaller parties and a significant number of liberal MP's are very worried. Someone calls a vote of no confidence in the government – that vote could pass but parliament couldn't be dissolved because that would neat 55% right?

    So it means that as far as voting for individual legislation then yes the government can be defeated but re being removed – they cannot be unless 55% of the house votes for it. This means the oppostion cannot call an effective motion of no confidence?

    Sorry for my ignorance but this is important and I want to understand it.

    • Parliament couldn't be dissolved if 45+1% of MPs were opposed to dissolution, but the government would have been defeated and the Queen could turn to a new individual to step in as Prime Minister.

      And, as Mr. Coyne correctly pointed out, 50%+1 MPs could convince the Queen to select one of theirs as PM, then immediately pass a statute reversing the 55% threshold and then vote for dissolution.

      • Fascinating…

  3. It's 55% to dissolve Parliament not to defeat the Government, a Government can still be brought down with a normal vote of no confidence.

    • Gee, I hope no one would bring Her Majesty into such tergiversations. That would mean the Crown forcing a coalition of the unwilling???

  4. the 1982 charter is not exactly constitutional. we just like to pretend it is.

  5. The problem with this is that it's surprisingly easy to pass a motion of non-confidence.

    So you're stepping into a situation where the government can get canned, but nobody is up to take the baton and Parliament cannot dissolve, so everyone's going to retroactively brush things off and say the whole thing wasn't a matter of confidence in the first place.

    • If it came to that unlikely end — Conservatives defeated, nobody else can form a government, Conservatives refuse to agree to dissolution — it would still be open to the other parties to pass legislation repealing the 55% rule. This isn't a straitjacket. It only prevents the present coalition partners from cutting short Parliament prematurely.

    • Or the Lib Dems could switch horses in mid-term and join the Labour-Lib Dem-SNP-PC Alliance that didn't happen this week. Just as happened in Ireland in 1993.

  6. I'm pretty sure Andrew Potter has mentioned this a while back, but we already have a fixed election term.

    (see here:http://rebelsell.squarespace.com/blog/2006/5/30/f… )

    Our Constitution says that "Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer"

    I'm not sure what the difference between that and a five year fixed election date or even four-year fixed election date, other than the specific date isn't specified.

    All we really need to do is get out the calendar and we can figure out when 5 years from the day of the return of the writs is and bingo FIXED ELECTION DATES….

    I find this debate a bit strange, given this

    • A maximum value is different from a fixed value. If I offer you $5 for your shirt (subject to me decideing to pay you less), that's very different from me offering you $5 for your shirt. Under the first formulation, I'm getting a shirt for a penny. It;s the little bit in brackets in your quote that makes all the difference.

      • Yeah, my point on this was in relation to the Tory fixed-election date law, which did not change practice in the least except by lowering the maximum value by a year. It was a pointless law.

        • Well, no. It didn't just lower the maximum value; it also raised the minimum value. It was no more than and no less than 4 years. It was only pointless to the extent that the government refused to be bound by its own solemn legislated commitment.

          • It did no such thing. Except every legal and constitutional scholar in the land argued that the law did not constrain the prime minister in the least. And a senior Tory senator has admitted as much in parliament.

          • As a technical matter, yes. But people had, and should have, a reasonable expectation that when a government goes so far as to pass a law declaring that elections will be held on a fixed four-year timetable, that elections will indeed be held on a fixed four-year timetable. We should not have to be parsing every law to find loopholes the government could wriggle through to make them mean the opposite of what they seem to mean. When people talk about whether a law is "enforceable," they generally mean whether scofflaws in the general public can be made to obey it. They have not hitherto had to consider whether the government itself would be bound by it.

    • We have a fixed election date law.

      It was designed to avoid snap elections that benefit the partisan purposes of the Prime Minister to the disadvantage of the opposition parties.

      Only the Prime Minister chose to ignore his own law when he called a snap election that benefit the partisan purposes of the Prime Minister to the disadvantage of the opposition parties.

      • And he’ll break it again, if that’s the best line that you Liberals can come up with.

        • What a great party that leads our nation.

          No principles. No plans. No promises kept. No untruth left unsaid. No ditch too deep to jump into. No mud to wet to throw. It's all about power and keeping it.

          • Tell us how you really feel. Don't hold back.

  7. In other words, it's a great innovation for this parliament, to keep both the Tories and the Lib Dems honest, but it's insane in the long term.

    Fair enough — any future parliament can pass a new law on confidence/dissolutions.

    • 1933

      • Oh, come on! That parliament dissolved itself – stupidly. This says this one is going the distance. 180 degree difference.

        If I were a Tory backbencher, I’d join UKIP now. But that doesn’t mean this isn’t an interesting innovation.

  8. Why is this a good thing? I'm mystified as to how this improves things.

    • It means fixed election dates are real. If you don't like fixed election dates, that is if you think governments should be able to call elections whenever they happen to be ahead in the polls, you'll think that's a bad thing. If you think elections should be contested on a level playing field, without such obvious advantages to the incumbents, then fixed election dates are a good thing. But fixed election dates that aren't fixed serves nobody's interest.

      • Well, I don't see how, in a minority parliament, the advantage is always, or even mostly, to the incumbent.

        • Clegg wont give up deputy PM easily.He.much like say Layton, likes this position, and he likes it a lot!

        • Fair enough. The intent in the present circumstance was to prevent either party from seeking advantage. But in a majority Parliament, the constraint would be on the government.

    • It is also good in that it attempts to codify how a minority parliament should actually work based on the unwritten traditions – that is that a defeat of the government does not absolutely require a dissolution of the existing parliament if
      a. the existing government can re-gain the confidence of the house, by rejecting the offending legislation, or,
      b. a new government can be formed formed within the existing parliament.

      It actually give the Crown an out if the government is defeated but there is the potential for another coalition. The Crown would not as quickly be forced into the political decision of dissolving parliament or turning to a new PM or coalition.

  9. Ok, what happens if there are three parties, call them the Government, the Opposition, and the Idiots, with 49%, 48%, and 3% respectively and the Government tables a budget rejected by the Opposition and the Idiots, but the Idiots won't form a coalition with the Opposition and the Opposition won't support dissolution of Parlament? Then Parliament can neither pass a budget nor have an election….

    • The Government and the Idiots could then combine to pass legislation to repeal the 55% rule. Unless nobody wanted to form a government, and nobody wanted an election. But, I mean, come on…

      • Either way it takes the cooperation of the Idiots, so my point is that if there were a party bent on gumming up the works (cough Bloc cough ) and capable of attracting at least 3% of the vote, they could cause a lot of problems before the Oppos decide to take one for the team and support either dissolution or the the Government.

        • The idiots could negotiate a confidence and supply arrangement for some concessions with the Opposition. I think your assumption that the Bloc want to block or mess things ups entirely are grossly inaccurate.

          • I think we're also overlooking the vital balancing role played by the Slightly Silly Party.

          • Yes, I guess I was assuming their cooperation was a given, but they might be gunning to pull off what Labour did in the UK and destroy the silly party (opposition). Also, in the next election the eventual government might even need the support of the Very Silly Party as they might just have a seat.

            However, that analysis is totally invalid if you meant that the Liberals were the slightly silly party and the ndp were the silly party.

            In which case, they need to figure out whether they support the government or the want to rule with support instead. I doubt anyone can achieve a majority at this stage.

    • If the idiots aren't going to cooperate with anybody, thus stalling government completely, you'd soon see the Government and the Opposition getting together to hold an election.

      • That is entirely inaccurate. If the idiots do not provide for their province, then non separation voters that already vote for them would not vote for them.

  10. I'm wondering why we haven't seen a post from Coyne pointing out that the new Coalition cabinet is all of 23 ministers despite the obvious temptations to enlarge the cabinet and provide more cabinet seats for more people (given that a few Tories who otherwise would have had posts now won't). And this in a country that is still essentially a unitary state (since the functions carried out by the regional parliaments still have to be carried out by Westminster for England (and to some degree Wales)). Furthermore, two cabinet posts are actually 'national' posts concerning Scotland and Northern Ireland (though one could argue that the intergovernmental affairs and the Indian affairs posts here are the equivalents).

    It makes one wonder why we have so many cabinet posts when a coalition government in a unitary state can manage with 2/3s the number we do…

    • Sorry, they have a Wales post as well as Scottish and Ulster posts.

  11. And don't forget Canada's other beautiful contribution to Constitutionality: "Terms of Union" agreements with three provinces.

  12. Introducing fixed term laws in Westminster systems might be compared to the NHL implementing a ground rule double rule. If you really want a ground rule double rule, play baseball FFS; similarly, if you really want regular elections, dump the monarchy and let's build one or more republics.

  13. So would a majority with greater than 55% still be able to dissolve parliament at its will, or is the point that with the additional alternative voting system that large of a majority is unlikely enough that it would be a reasonable right to provide to a gov't with that much support?

    Is it just me, or does it seem like this law was written to specific political circumstances rather a more general improvement to the functioning of parliament with the maximum possible situations thought out and the best solution selected. That seems like that would make for a worse law, though perhaps in reality all laws are passed in this way…

  14. Since when does EVERY MP show up for every vote? All this requirement means is that a dozen or so Conservative MPs have to be out of town on business when the vote is taken to permit dissolution. Or, several backbenchers could actually vote against the Government.

  15. It occurs to me that the confusion among politicians pertaining to democratic principles, both in the UK and Canada, relates to the fact that too many of them hail from a discipline that strongly emphasizes precedent. In other words, the past! Things are not likely to improve much until we get more representation from professions that are forward looking, like science and engineering.
    ENJOY !

  16. I don't quite agree with the Globe that "Britain's similar, but not the same. They have no written constitution, and Parliament can limit the Crown's powers. Its coalition can pass a fixed-term law."

    Canada's Parliament can also limit the Crown's powers, if Britain's can, because the governing point is the section of the Constitution Act, unchanged since 1867, that we have "a Constitution similar in principle to that of the United Kingdom."

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