CONSTITUTIONAL CHANGES ALERT

GENERAL ELECTION May 6 2010
Possible Constitutional Changes
(Julie’s first blog)

I hope that this note on the 2010 General Election will be of interest to you if you are studying Government & Politics, Law or Public Law. Look out for changes as the Coalition develops its constitutional plans.

The May 2010 General Election in the UK resulted in a ‘hung’ Parliament, the first such event for 36 years, that is a Parliament in which no party has an overall majority. We now have a coalition government. Why did this happen? The election campaign was fought under a climate of much mistrust of politicians, in part due to the scandal over MPs’ expenses and voter apathy but also because the Labour government was considered responsible for much mismanagement of the country through its failure to control the financial deficit. Another relevant factor was the introduction of pre-election televised debates during which the Liberal Democrat leader, Nick Clegg, was able to increase his political profile and offer to voters a viable alternative to Conservative or Labour.

Against this background, the results of the May 2010 General Election saw the Conservative party managing to secure a victory over Labour in so much as it gained the largest number of seats (and votes) but not enough to provide a majority over all other parties. In the circumstances, the incumbent Labour Prime Minister, Mr Brown, was entitled to find out if he could command a majority through agreement with other parties before resigning . The Liberal-Democrat leader, Nick Clegg, however, believed that the Conservatives as the largest party had the right to govern. It would have been possible but difficult for the Conservatives to govern as a minority party. Both Labour and Conservative parties needed the Liberal-Democrats.

There was speculation as to whether Nick Clegg would agree to form a so-called’ Progressive Alliance’ with the Labour party or whether he would stand by his pre-election pledge to side with the party which had gained the most votes - the Conservative party. The Liberal-Democrats held negotiations with both the other two main parties. Labour and Liberal-Democrats combined could not however provide an overall majority - the other minor parties would have had to join a ‘rainbow’ coalition and this was seen to be fragile.

The agreement between the Conservative and Liberal-Democrat parties, formalised in the Coalition document, meant that each party had to compromise. The result is that some constitutional changes seem likely during this Parliament. These may include the following:
Ÿ Voting reform
Ÿ Life of a Parliament to be five years
Ÿ A vote of confidence will require support of 55% of Mps to force a government resignation
Ÿ Within Parliament, voting on English domestic issues may be restricted at certain stages to Mps from English constituencies

Voting Reform
The main sticking point in any discussion with the Conservative party was the insistence by the Liberal Democrats that voting reform should be introduced because the ‘first-past-the-post system’ works in favour of the major parties while at the same time disadvantaging the minor ones, including the Liberal-Democrats who had failed to win seats commensurate with their vote in the country. The Labour party had already announced a referendum on introducing the Alternative Vote system, which retains existing constituencies but allows voters to state first and second preferences. Although not strictly ‘proportional representation’, AV ensures that each MP elected has secured at least 50% of the vote and is therefore considered to improve representation.

Five Year Parliaments
First, the life of a Parliament is to be fixed to five years. This would prevent a PM from calling an election whenever he thought he could win it. Fixed-term Parliaments have been called for since the 19th century but usually for three or four years.

Vote of Confidence
For a government to resign on a vote of no confidence a 55% majority would be required. Without such agreements, the Government would be at the mercy of a vote of no confidence in the House of Commons, with a new General Election being held within months. This was considered undesirable when there was a great need for both political and economic stability. It was under these conditions therefore the new coalition put forward plans for a higher threshold to be necessary before a vote of no confidence would lead to the government‘s resignation.

Opponents of this plan pointed out that it was undemocratic for the Government to introduce such an important constitutional change without the prior agreement of other parties in Parliament. The measure could be seen as an attempt by government to prolong its own life and this may be seen as unconstitutional because it usurps the will of Parliament. It has also been pointed out that one of the important constitutional roles of the monarch is to dissolve parliament in the event that a government can no longer govern effectively, that is it has lost its majority When this happens the Prime Minister has to ask the Queen for permission to dissolve Parliament. Questions therefore can be raised as what would be the constitutional significance if an unpopular government decided to remain in power because this higher threshold had not been reached. In effect, on losing a vote of confidence by say one vote, instead of resigning the Government would continue and would hope to get most of its business through the House of Commons.

It can be equally argued that for government to function efficiently there needs to be a process of compromise over political policy. Indeed this is the argument advanced by David Cameron that the 55% threshold is needed for political stability so the coalition is able to survive the five year fixed term over which he is seeking to govern. The simple 50% majority vote of no confidence by MPs means in effect it is relatively easy to bring down a government with a small majority or lacking an overall majority. Allowing for such a significant change to the constitutional political practices within government is perhaps a step too far and such radical changes should be subjected to full parliamentary scrutiny before they are adopted.

The West Lothian Question
A further change was indicated in that the Coalition Agreement specified that a commission would be established to review the ‘West Lothian Question’, so-called as first used by the Labour MP, Tam Dalyell, when MP for West Lothian. He asked why he, as MP for West Lothian, should vote on matters of English domestic policy if domestic policy in Scotland were devolved to a Scottish Parliament. Under the Labour government’s constitutional reforms in 1998, Scotland was given its own Parliament with primary law-making powers while Wales was given an Assembly with more limited powers. Devolution was established in Northern Ireland under the peace agreement. In effect, the devolved parliaments or assemblies now decide considerable areas of domestic policy in Scotland, Wales and Northern Ireland. English domestic policy is, however, decided by the Westminster Parliament, which includes Mps from Scotland, Wales & Northern Ireland. As part of devolution for Scotland, the number of Mps for Scotland was reduced from 72 to 59.

The Conservatives proposed a reform whereby the Committee stage of an English domestic bill would be considered by the MPs from English constituencies only, with all Mps voting but not amending the Bill at its final reading in the House. This was opposed by the Labour party on the grounds that it created two classes of MP at Westminster and that it constituted a possible threat to the Union. The Conservatives alleged that there were already two classes in effect, as Mps from the devolved countries do not have to answer to their constituents on matters such as health and education which are devolved to national parliaments. The position is further complicated as the Labour party continues to hold a majority of the Westminster seats in Scotland and Wales, so there is a political divide between them and England following the 2010 general election. In England alone the Conservative party gained a majority over all other parties.

This should be seen in the context of the likely devolution of further powers to the Scottish Parliament (proposed by the Calman Commission) and to the National Assembly of Wales (proposed by the Holtham Commission) during this Parliament. There is pressure in Scotland for ‘devolution max’ amounting to almost full fiscal independence and in Wales for primary law-making powers for the Assembly. It seems conceivable that under the Coalition, the United Kingdom may take steps towards a quasi-federal structure.

PS Even since this note was drafted further changes have been announced by the Coalition. It is now proposing that a two-thirds majority should be required to force the dissolution of Parliament but that a simple majority would be required for a ‘no-confidence’ vote. It remains to be seen how these changes will work out in practice, if introduced.