Jean-Yves Gilg

Editor, Solicitors Journal

Seats of power

Seats of power


The coalition government has put constitutional reform and the protection of civil liberties right at the heart of the parliamentary agenda. Seamus Burns explains the changes to come

The inconclusive general election result on 6 May 2010 paved the way for the first hung parliament in 36 years, the first coalition government in 65 years and potentially for far-reaching and ground-breaking changes to our unwritten UK constitution.

After five days of negotiation between the Conservatives and the Liberal Democrats, an agreement was reached on 11 May 2010.

The agreement covered a wide range of issues, but those affecting our future unwritten constitution are potentially particularly significant.

Five-year fixed-term Parliaments

The new Lib/Con coalition government 'agreed to put a binding motion' before the House of Commons in the first days following the agreement stating that the next general election will be held on the first Thursday of May 2015 and that, following that motion, 'legislation will be brought forward to make provision for fixed-term Parliaments of five years'. This is a major change to our unwritten constitution because, until 2010, the prime minister could call an election at any time in a five-year Parliament to suit himself or his party interests if he thought this was electorally advantageous. The PM's wide and arbitrary power has thus been curtailed. Objective certainty replaces capricious uncertainty. There are clear precedents for fixed-term Parliaments in all three of the UK's devolved assemblies (with all three having four-year fixed terms enshrined in the respective parent legislation).

55 per cent dissolution rule

The agreement provides that the legislation on five-year fixed-term Parliaments 'will also provide for dissolution if 55 per cent or more of the House votes in favour'. Again this is a radical departure from the status quo.

Currently, by convention, if the government loses a vote of confidence in the House, by a simple majority of one, it must resign. This convention has been followed for many years, and was most recently evident in 1979 when Jim Callaghan's Labour government lost a vote of confidence by one vote in the elected chamber and resigned, calling an election. Conventions are unwritten rules in the UK constitution, not contained in statutes/ common law decisions and not strictly enforceable in a court of law like legal rules, but which are generally observed by the parties to whom they are directed. This new 55 per cent rule for dissolution '“ a special weighted majority as opposed to a simple majority '“ means that the opposition parties if they all vote together cannot reach 55 per cent of the votes necessary for dissolution, given that the Lib/Con coalition has 55.89 per cent of seats in the Commons. Also, if the Liberals pull out of the coalition and vote with the opposition parties, they can only muster 53 per cent of votes and of course the Conservative minority government would only have 47 per cent of votes, again not enough to trigger an election under the new dispensation. David Cameron said this was 'an important' and 'huge' change to our system, that he was the 'first prime minister in British history to give up the right unilaterally to ask the Queen for a dissolution of Parliament', that it moreover was 'a big giving up of power' by the PM, but that it was 'a good arrangement to give us a strong and stable government'. Again, special weighted majorities for dissolution are built into the legislation relating to the devolved assemblies; e.g. 66 per cent of the Scottish Parliament must vote in favour of dissolution to dissolve it, so our devolved assemblies have been trail blazers in this untraditional-Westminster constitutional mechanism for dissolution.

Critics of the 55 per cent rule included Lord Adonis, who described it as 'a brazen attempt to gerrymander the constitution which calls into question the legitimacy of the coalition from day one'. David Blunkett called it a 'stitch-up'. Jack Straw said the rule was 'completely undemocratic and totally unworkable'. And Lord Falconer said it would result in a 'zombie government' since 53 per cent of MPs could vote against it but it could still continue until May 2015.

Professor Peter Hennessy said that he was not sure it was 'a very sensible change', that he would leave the status quo 'well alone' and that 'it looks as if you are priming the pitch, doctoring it a bit'.

However, David Howarth, the former shadow Lib Dem justice secretary, countered that 'this dissolution vote, the 55 per cent for a dissolution, is not the same as for a vote of confidence', that they were 'entirely different things' and this appeared to be supported by a Downing Street spokesperson who said that the old rule would still apply to confidence votes '“ but should a government be defeated it would not automatically trigger an election as a 55 per cent vote would be required to dissolve Parliament.

Professor Robert Hazell, director of the Constitution Unit think tank, said the threshold 'certainly won't prevent the opposition from tabling confidence motions on which the normal threshold of 50 per cent will and should continue to apply', and that the 55 per cent rule was intended to prevent the government from calling an election without the consent of both coalition partners. The adoption of the rule does not prevent backbench revolts in Parliament and if 16 Conservative or Liberal Democrat MP's voted with the total opposition parties the 55 per cent threshold would be achieved.

Electoral reform

The agreement states that the coalition 'will bring forward a Referendum Bill on electoral reform, which includes provision for the introduction of the alternative vote in the event of a positive result in the referendum, as well as for the creation of fewer and more equal sized constituencies'. Interestingly, although the agreement states that both coalition parties will be whipped to support the holding of this referendum, they will not be, by contrast, forced to campaign in favour of adopting AV.

Electoral reform and having a fairer electoral system has been one of the main policy planks of the Liberals for many decades. The first-past-the-post system, while having many strengths '“ leads to strong and decisive governments, emphasises the strong connection between MP and constituency, avoids horse-trading in forming governments '“ is arguably unfair since the number of votes cast for a party bears little or no relationship to the number of seats they win. Thus, the Liberal Democrats got 23 per cent of the vote, but only 57 MPs (8.76 per cent of the seats), whereas Labour got 29 per cent of the vote and 258 MPs (39.63 per cent of the seats). If seats where allocated strictly on the percentage of votes won, these figures would mean the Liberal Democrats would had got 149 MPs, Labour 188, and the Conservatives 234. In other words, retaining the first-past-the-post system favours strongly the two largest parties unfairly at the expense of the smaller third party. The Liberal Democrats favour a full single transferable vote system as opposed to AV.

There is also a proposal to have fewer and more equal sized constituencies. There is a strong case for saying we have too many MPs (650) for a population of 60 million. The USA, with a population of 300 million, has only 435 members of the House of Representatives. Also, there are too many unequal sized constituencies in the UK '“ for example, Shetland and Orkney had 19,346 electors turn out compared to 54,747 in Skipton and Ripon, both returning one MP. Also considerably fewer electors (i.e. 33,350 compared to 34,989) are needed to elect Labour MPs than Conservatives (and 119,788 are needed to elect each Liberal Democrat MP).

Power of recall

The coalition will 'bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by ten per cent of his or her constituents'.

MPs may prima facie be elected for a fixed five-year term, but if they are found to have engaged in serious wrongdoing then ten per cent of their constituents can force them to fight a by-election. A moot point is what exactly constitutes 'serious wrongdoing'.

The necessity of ten per cent of constituents being needed to trigger this power of recall could be queried but it arguably prevents a tiny, vociferous minority of malcontents venting their spleen. Arguably this new power of MP recall addresses the massive damage done to the general trust the population have in MPs following the recent expenses debacle, as well as partially tackling the 'elective dictatorship' problem raised by Lord Hailsham in 1978, namely the government and MPs, once 'democratically' elected every five years can effectively then do what they want.

Elected House of Lords

The government will 'establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation' '“ thus radically changing both the composition and how the second chamber is appointed and arguably giving it more democratic legitimacy. Currently the House of Lords is comprised of 92 hereditary peers, 26 Anglican bishops, and appointed life peers (211 Labour, 186 Conservative, 72 Liberal Democrat and 186 cross-benchers). The proposed election by PR is another radical change made by the coalition.

This committee 'will come forward with a draft motion by December 2010' and the Bill will 'advocate single long terms of office'. There will be a 'grandfathering' system for current peers. Again, time will tell what this grandfathering system entails.

Finally: 'In the interim, lords appointments will be made with the objective of creating a second chamber reflective of the share of the vote secured by the political parties in the last general election.' Interestingly, The Times, on 17 May 2010, reported that the coalition wished to create 'more than 100 peers to ensure that controversial legislation gets through Parliament', and that the House of Lords is reshaped and rebalanced and generally more 'reflective of the vote'.

West Lothian question and further devolution?

The coalition 'agreed to establish a commission to consider the 'West Lothian question''. The West Lothian question, raised by the late MP Tam Dalyell, was why should Scottish MPs, for example, who have their own separate Scottish Parliament which has exclusive jurisdiction to pass primary legislation on health, be able to vote on health issues in Westminster that only affect the English?

That is unfair and iniquitous. With the three devolved assemblies now all embedded in our constitutional structure for nearly 12 years, and given the calls of these assemblies for even more law-making powers, set against the UK's huge deficit, this question has become more pressing.

The government 'agree to the implementation of the Calman Commission proposals and the offer of a referendum on further devolution'. This is in keeping with the clear demands of the devolved administrations for more law-making powers, and paradoxically could assuage the demands of some for full legislative independence and copper-fasten the Union.

Reform House of Commons business

The coalition 'will bring forward the proposals of the Wright Committee for reform to the House of Commons in full '“ starting with the proposed committee for management of programmed business and including government business within its scope by the third year of the Parliament'. Again, transforming the Commons into a 21st century modern legislature run on a functioning and effective basis can only be a good development.

Reduce electoral fraud

'The parties agree to reduce electoral fraud by speeding up the implementation of individual voter registration.' This surely is in keeping with creating a fairer electoral system.

Lobbyists, party donations and funding

'The parties will tackle lobbying through introducing a statutory register of lobbyists. We also agree to pursue a detailed agreement on limiting donations and reforming party funding in order to remove big money from politics.' These measures are designed to 'clean up' politics and to avoid the perception that money can influence policy not necessarily for the good of the country.

Decentralisation of power

'The parties will promote the radical devolution of power and greater financial autonomy to local government and community groups. This will include a full review of local government finance.' This is in keeping with the Conservative's vision of a 'Big Society' and the devolving of power locally to lower echelons of government closer to the community and with the Liberal Democrats' similar commitment. Some of the levers of power need to be closer to those affected by it.

Relations with EU

Given the sharp and distinct differences between the two coalition parties on our relationship with the EU, this was going to be a very problematic area.

The agreement emphasises that the British government 'will be a positive participant' in the EU, 'playing a strong and positive role with our partners' (the Europhile/Liberal component) but then proceeds to add: 'We agree that there will be no further transfer of sovereignty or powers over the course of the next Parliament,' (i.e. until 2015 at the earliest) and that: 'We will examine the balance of the EU's existing competencies and will, in particular, work to limit the application of the Working Time Directive' in the UK, thus signalling limiting the scope of this particular EU law in the UK.

Rather than claw back UK law-making powers transferred to the EU (the original Conservative policy), the agreement states 'that we will amend the 1972 European Communities Act so that any proposed future treaty' '“ e.g. a Lisbon Treaty Mark II '“ 'that transferred areas of power, or competences, would be subject to a referendum on that treaty '“ a 'referendum lock''. This addresses the concerns of those who felt cheated by parties who promised a referendum on the EU Constitution, but then refused to hold one on the Lisbon Treaty.

The agreement adds: 'We will amend' the ECA 1972, 'so that the use of any passerelle would require primary legislation.'

The coalition also state they will examine 'the case for a United Kingdom Sovereignty Bill to make it clear that ultimate authority remains with Parliament' (thus reinforcing the Diceyean theory of parliamentary supremacy).

Significantly too, the coalition 'agree that Britain will not join or prepare to join the Euro in this Parliament' '“ so joining the euro is still put on a very long finger. Retaining the pound seemingly goes hand in hand with restating parliamentary supremacy.

Civil liberties

The final huge and arguably seismic feature of the agreement is a specific section of the historic coalition agreement devoted to upholding a variety of civil liberties.

The agreement states the coalition will 'implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour government and roll back state intrusion'.

Included in this ambitious package of measures designed at restoring civil liberties snatched by the leviathan state are:

 A freedom or Great Repeal Bill '“ which promises much and hopefully will deliver much.

 Scrapping of the proposed national ID card scheme, the national identity register, the next generation of biometric passports and the contact point database '“ arguably halting the incremental 'Big Brother' state.

 Outlawing the finger-printing of children at school without parental permission.

 The extension of the Freedom of Information Act to provide greater transparency '“ transparency is frequently a wonderful device as was apparent with the MPs expenses debacle.

 Adopting the protections of the Scottish model for the DNA database '“ will this signal the end of the retention of innocent people's DNA on the database?

 The protection of historic freedoms through the defence of trial by jury '“ protecting the 'lamp that shows that freedom lives'.

 The restoration of rights to non-violent protest '“ the argument being the constitutional balance has tilted too much in favour of upholding public order at the expense of freedoms/rights to protest.

 The review of libel laws to protect freedom of speech.

 Safeguards against the misuse of anti-terrorism legislation '“ the threat of terrorist outrages is very real, but so equally are the dangers of draconian, knee-jerk, reactive legislation.

 Further regulation of CCTV '“ emphasising the need to balance public safety with a surveillance society.

 Ending of storage of internet and email records without good reason '“ retention requires justification, no bad thing!

 A new mechanism to prevent the proliferation of unnecessary new criminal offences '“ passing superfluous criminal legislation should not be viewed as some virility test in the 'war' against crime.

The citizens of the UK may neither have voted positively for the new coalition government, nor for a single party majority government, but they arguably did vote for a hung parliament. The fact that there are five Liberal Democrat members of the new cabinet, and 15 more government ministers, may pose future problems for upholding the convention of collective responsibility and who sacks/replaces these members of the executive constitutionally.

The new experiment in coalition government at Westminster (not new in all three devolved assemblies or many other countries) has unquestionably put constitutional reform and protection of civil liberties right at the heart of government, which is hopefully no bad thing for lawyers and citizens alike.