The UK House of Lords Select Committee on Constitution has been conducting an inquiry on The Constitutional Implications of Coalition Government. For anyone interested in parliamentary conventions, government formation and other related issues, this is absolutely fascinating stuff.
On 9 October 2013, Professor Lord Norton of Louth and Lord Donoughue appeared as witnesses before the committee. It was quite interesting, enlivened somewhat by Lord Donoughue’s staunch dislike of the very idea of coalition government. In fact, he repeatedly urged the Committee to stress in their final report the many advantages of alternatives to coalition since, as he put it, “I fear that a younger generation will begin to assume that if they do not get a majority, they must have a coalition.” (page 2 of the uncorrected transcript)
Some interesting points were raised during the course of the hearing. Lord Norton discussed some of the major departures from “normal” constitutional practice brought about by coalition government, particularly those that affect the Prime Minister’s prerogative powers. He identified four such departures, which he grouped under two headings. The first is the existence, under coalition, of a dual executive. This affects the Prime Minister’s traditional prerogative powers in two ways. The first concerns ministerial appointments, which are no longer purely the prerogative of the PM as the sovereign’s adviser. Normally, in the case of single-party government, the Prime Minister has the power to the power to appoint, reshuffle or dismiss cabinet ministers. With the current coalition, it was agreed that the Liberal Democrats would have five cabinet positions, and number of ministerial spots. It is the leader of the Liberal Democrats and Deputy Prime Minister, Nick Clegg, who decides which of his party’s MPs will be appointed to those spots. The Prime Minister, Conservative David Cameron, can still shuffle his cabinet, but he cannot dismiss or appoint any Liberal Democrats on his own. The second change brought about by the dual executive concerns the convention of collective responsibility. Traditionally, decisions are arrived at collectively in Cabinet, and Cabinet is bound to support those decisions plublicly and in the House (by voting for them, for example). There have been departures from this with the Coalition government.
The other changes which impede the PM’s prerogative powers have come about because of the Fixed-Term Parliaments Act, 2011. The first concerns maintaining the confidence of the House. As we know, the PM and Cabinet are responsible to, and must answer to, the House of Commons and must maintain the confidence and support of a majority of the House. If the government is defeated in the House on a matter of confidence, then the government is expected to resign or seek the dissolution of Parliament so that an election can be held. What are matters of confidence? That can vary, but it is generally acknowledged that confidence motions can be:
- explicitly worded motions, usually moved by the Opposition, which state that the House has, or has not, confidence in the government;
- any motion that the government expressly declares to be questions of confidence; and
- implicit motions of confidence, that is, motions traditionally deemed to be questions of confidence, such as motions for the granting of supply, motions concerning the budgetary policy of the government and motions respecting the Address in Reply to the Speech from the Throne.
Under the Fixed-term Parliaments Act, 2011, the Prime Minister can no longer declare a certain vote to be a matter of confidence. Or rather, as Lord Norton explains, a Prime Minister could say that a particular motion was one of confidence, if defeated, the only thing the government could do is resign. The option of requesting a dissolution is no longer available. This ties in with the second change – previously, the Prime Minister could seek to dissolve the House and call a new election when he or she so desired. The Act now establishes a fixed date, and unlike similar Canadian and provincial Acts, there is a very specific process in place that must be followed in order to dissolve a parliament before the date fixed by law for the next election. As explained in the Cabinet Manual:
2.19 Under the Fixed-term Parliaments Act 2011, if a government is defeated on a motion that ‘this House has no confidence in Her Majesty’s Government’, there is then a 14-day period during which an alternative government can be formed from the House of Commons as presently constituted, or the incumbent government can seek to regain the confidence of the House.
If no government can secure the confidence of the House of Commons during that period, through the approval of a motion that ‘this House has confidence in Her Majesty’s Government’, a general election will take place. Other decisions of the House of Commons which have previously been regarded as expressing ‘no confidence’ in the government no longer enable or require the Prime Minister to hold a general election. The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.
As Lord Norton concludes, those are the main changes to the Prime Minister’s prerogative powers, and the last two won’t end with a return to single-party government. They will have “ongoing consequences because they are statutory changes.”