A proposal that has been floated in Israel is requiring the vote of 70 (out of 120) members of the Knneset (MKs) in order to dissolve parliament. Currently 61 votes, an absolute majority, are required for the Knesset to dissolve itself.
Just as I was contemplating how unusual such a provision might be in practice, I remembered that the new UK coalition agreement contains a clause stating that the government will seek to pass a bill requiring a 55% vote of the House of Commons for dissolution.
My immediate reaction to the Israeli proposal was the same as what some Tory backbenchers are saying–that it undermines a key aspect of parliamentary democracy. For instance, Charles Walker, MP for Broxbourne, said:
It is not the duty of parliament to prop up this coalition. That is the duty of the coalition partners, and if they can’t make it work, and if they lose the confidence of parliament, then we must have a general election. …he told the BBC News channel. [...]
“But if parliament and the nation lose confidence in this coalition government there should be a general election, whether that is in two years or three years or four years. This is about the primacy of parliament. (Quoted in The Guardian Live Blog of 14 May, at the 1:15 p.m. entry.)
Quite apart from any extraordinary majority requirements, is it common for parliaments to vote to dissolve themselves? A majority vote to dissolve is the common way that an early election is called in Israel. However, I would think that dissolution in parliamentary systems is far more commonly ordered by the Prime Minister (where, as in Japan, the PM has such authority) or by the Head of State (acting, typically, on “advice” of the PM, and with varying but usually limited degrees of discretion).
A common defense in the UK has been that the requirement to dissolve the Scottish parliament and Welsh assembly is also a super-majority, and it’s much higher — 2/3rds.
Only other data point I have is Italy, where the President of the Republic may dissolve one or both chambers on the advice of the Presidents of those chambers.
Seed planted by Chris Hanretty — 16 May 2010 @ 13:36
It is actually fairly standard for Westminster parliaments not to be dissolved on a vote of no confidence.
I guess the most extreme example was in Australia in 1941 where two independent MPs transferred their support from government to opposition. The new government remained in office, winning general elections in 1943 and 1946, until 1949.
The principle has been stated as that parliament should not be dissolved if an alternative government can be formed that commands the confidence of the house. A Westminster PM who loses a vote of confidence is in more or less the same position, in terms of tendering the head of state advice, as a prime minister who loses a general election. the explanatory memo to the NSW Constitution (Fixed Term Parliaments) Special Provisions Bill 1991 reads:
Just as parties with a plurality almost invariably claim that entitles them to form a government, so minority governments almost invariably claim that a vote of no confidence means a general election.
The coalition proposal has been discussed as if it required 55% for a vote of no confidence, which is not the case. Even less discussed has been the constitutional point that the UK’s unwritten constitution lets parliament repeal anything anyway, including super-majority requirements.
Scotland requires a 2/3 vote for an early dissolution, although failing to elect a new first minister within 28 days has the same effect. Germany requires the farce of a government ensuring its own defeat to secure an election.
The sound and fury about the 55% rule has so far not shed a lot of light.
Seed planted by Alan — 16 May 2010 @ 14:08
I agree with the above comment. This is a solution in search of a problem.
In parliamentary systems, the length of the parliament is not important, its whether the government can get a majority for key legislation. Either it can or it can’t. There might be an alternative government who can command or majority in the existing parliament or their might not. Right now, the people who judge this are the existing head of government and the existing head of state. I’m really missing where the problem is.
The no confidence vote is just a cue that the government doesn’t have a parliamentary majority. Technically, its posisble for a government to continue in office after a no confidence vote (though it would be pointless)! I think Lord North was the first Prime Minister to resign because he lost his majority. On the other hand, Balfour in 1905 resigned without a no confidence vote, and despite having a majority on paper.
Seed planted by Ed — 17 May 2010 @ 16:25
In theory Ed is right but long practice has probably changed the rule. The sanction available to parliament is to refuse pass supply to force the government to resign.
A governor-general would probably dismiss a government that lost confidence and refused to resign, except possibly in Canada. The Queen might be more reticent, although a prime minister would probably be more reluctant to embarrass Elizabeth II by trying to hang on.
This is all a really good argument for a written constitution and investiture votes.
Seed planted by Alan — 17 May 2010 @ 21:33
Afterthought, the logic of parliamentary government is that the executive originates in the legislature, not the electorate. The claim that a vote of no confidence should lead automatically to a general election makes the legislature into a sort of standing electoral college rather than a body can hold the executive accountable.
Seed planted by Alan — 18 May 2010 @ 21:19
A couple of articles from last week referring to difficulties on both sides of the House with this proposal:
Seed planted by MSS — 21 May 2010 @ 07:03
Little attention has been paid yet to what might happen if the Coalition founders, a new Labour leader reassembles the rainbow alliance (with 3 SDLP, 6 Scots Nats, 3 Plaid Cymru, 1 Alliance Party, 1 Green, and Lady Sylvia Hermon, Labour + Lib Dems would have 330 MPs out of 645 voting, 7 to spare), Labour trumps the Conservatives by offering a real PR system, and the Lib Dems agree. The 55% rule sends a message to the Queen: refuse dissolution after the non-confidence vote, and call on the new Labour leader. Nick Clegg continues as Deputy Prime Minister. Exactly what Labour did in Ireland in 1993.
Seed planted by Wilf Day — 22 May 2010 @ 18:49
Living under the boot heels of a parliamentary regime with absolute fixed terms, I find it weird that so many appear to have trouble separating the concepts of dissolution and no confidence. In any case, I think it is very unlikely that a House of Commons unable to provide for a government would long refuse to dissolve itself, no matter what the polls said (well, an impending MRLP sweep perhaps). A question for Australians/others: Regardless of the language of the law, could the Queen in a hopeless case where supply was threatened still be said to maintain a reserve power to dissolve the House, underwritten of course by a PM willing to bear the risk?
The 55% vote is obviously meant to reassure the Lib Dems that the PM would not have the unilateral power to upend current arrangements while the Lib Dems were doing badly in the polls, and to reassure the Conservatives that the Lib Dems could not run off to form an alternative coalition and then force another election while the Conservatives were doing poorly. Thus it removes one of the two main factors that make coalitions and minority governments inherently unstable under traditional Westminster rules*.
Another issue is that the present coalition itself might not have the needed 55% for long. There will certainly be some by-election losses during this difficult term, and perhaps there will be a few defections (on the Lib Dem left, or on a Tory right sidelined by their leader). Of course, the law could at any time be changed by an ordinary majority, but only with the consent of the House of Lords.
* It does not remove the other, namely an electoral system that gives the two main parties an expectation of majority governments around the corner, that leaves the third party barely hanging on to most of its seats, and that pits the two coalition partners against each other as the main competitors in most of those constituencies. But with a fixed term, judgement day can at least be better planned. For their sake, the Lib Dems had better get through some electoral or at least Lords reforms, so that they can be assured of some relevance beyond this term. Their level of support is likely to shrink now, but unless they were content to stay irrelevant, they eventually had to join up with one of the big two in order to get constitutional changes through. Labour may have been a better fit, but realistically that opportunity did not arise (reforms could have been toppled by a few traditionalist rebels).
Seed planted by Espen Bjerke — 24 May 2010 @ 16:05
@Espen
Recent events in Tasmania and the UK suggest strongly that the the powers of governors-general and the Queen, who they theoretically represent, are moving in different directions. A governor would almost certainly dismiss a government that tried to remain in office without supply. Np-one’s ever contested that part of the Kerr statement in 1975, although there is argument about whether the Whitlam government, as Kerr claimed, had reached that point. The new government would have to give assurances that they could get supply.
Elizabeth II probably has the same powers but would, I suspect be a lot more reluctant to use them.
Seed planted by Alan — 24 May 2010 @ 17:16
Espen, you must be in Norway then?
Alan: It seems to me that – ironically – while the UK Monarch’s individual tenure is much more secure than those of the Governors [General] in the colonies, the offices of the latter are much more entrenched as institutions. Thus in Australia, Canada, Jamaica, et al, the PM can remove (and probably replace) the GG with a phone call to Buckingham Palace, but can’t abolish the office of GG without some special procedure – referendum and/or super-majority and/or assent of States. Whereas in the UK, both “abdicating” the Queen and changing to a republic would require an Act of Parliament but nothing more (and no, the preamble to the Statute of Westminster 1931 wouldn’t bind a later Parliament legally).
Seed planted by Tom Round — 24 May 2010 @ 20:56
PS: Not sure about NZ but even if abolishing the Crown requires only an ordinary Act, that’s still several orders of entrenchment upwards from emailing the Queen.
There is an article waiting to be written on entrenchment in NZ const law and titled “Hide the Key?”
Seed planted by Tom Round — 24 May 2010 @ 20:58
Tom
I don’t know of any attempt to sack a governor by calling the palace. I suspect the palace would find ways not to receive the advice or to delay acting on it until any crisis had passed. I’m also not at all sure the Crown can be abolished, even in the UK, by Act. But that’s just another example of why all of the constitution needs to be written.
Seed planted by Alan — 24 May 2010 @ 21:32
Espen makes really excellent points about both why the 55% dissolution was put into the coalition agreement, and its likely (non-)effect in the event of a real stalemate in the Commons between the two main parties.
Has Norway, where early dissolution is not allowed, had such stalemates? If so, how have they been resolved?
Seed planted by MSS — 25 May 2010 @ 04:22
Alan,
1. George Winterton and/or Tony Abbott, in their books on the Aust Republic debate, have noted that PNG and one of the Caribbean dominions (Grenada, perhaps?) in the past 2-3 decades either removed their GG or persuaded their GG to resign by the PM sending a letter of request to the Queen. That said, Abbott has also suggested elsewhere that perhaps the Queen’s phone might be “engaged” if the PM rang.
2. The Crown has in fact been abolished in the UK, during the Cromwellian Commonwealth era. Okay, that didn’t last, but it’s not as if English (then) judges refused to accept Parliament’s abolition of Lords and Crown at that time.
Seed planted by Tom Round — 25 May 2010 @ 06:02
1. The clever Papua-New Guineans have a constitutional procedure (Ss 93 and 94) for removing the governor-general that involves rather more than a quick call to the place.
2. I am not entirely sure another Cromwell is likely to dismiss parliament and then appoint one of his own or that many constitutional scholars would argue for the validity of removing royalist MPs by force and then having the Rump that remains declare a republic. The Rump Parliament’s laws were never accepted by one side of the Civil War and declared absolutely null and void by the Restoration Parliament.
3. The PNG case cannot be as described because they could have simply invoked the relevant provisions of the constitution. Without knowing more about happened in Grenada or elsewhere I can’t really comment.
Seed planted by Alan — 25 May 2010 @ 08:20
Alan, I stand corrected on PNG but do not accept the Cromwellian example as evidence for “British judges will not accept the abolition of the Monarchy” as distinct from “British judges will, like the Vicar of Bray, accept either Republic or Monarchy as the Parliament may decree.” Also, removing the Crown in today’s Britain would not require a civil war, Pride’s purge, etc.
Seed planted by Tom Round — 25 May 2010 @ 09:28
Thanks for replies everyone, and Tom, let no one say that constitutional trivia are useless because you are quite correct.
MSS, on Norwegian stalemates: These have been handled quite pragmatically over the years. The king simply has to call on somebody to be PM and to constitute a council of state. Weight does not necessarily have to be put on whether that someone definitely will be able to survive or to provide supply, though the former is certainly the usual yardstick by which the king would judge any competing alternatives, and the latter has not to my knowledge been an immediate issue. Almost always, even though minority governments without guaranteed support have been commonplace, the situation has been clear enough to point to an obvious choice, sometimes on a perceived next-in-line basis. The lack of dissolution may remove some aspects of the gaming, but on the other hand there is no failsafe option.
The formal position of the king did resemble that of a standard 19th century constitutional monarch. After a protracted constitutional crisis, the constitution was deemed amended in 1884 so that ministers were granted access to parliamentary debates. More or less since that time and definitively since 1905 convention mandated that a PM had to resign when s/he was defeated in explicit or implicit confidence votes. This negatively defined form of parliamentary rule was only written into the constitution in 2007.
If a government is defeated it continues in a caretaker capacity, so there will always be a kind of government in place. If the political situation is unclear, the formal negotiation will go through the king and he may receive advice from party leaders, members of the presidency of the Storting, or others. Ultimately it remains the responsibility of the king to make the choice. The most well known case of a modern king personally playing a decisive role was when, after having achieved a plurality in the election, the Labour party was called upon in 1928 to form its first government, against the advice of leaders representing a disunited majority in parliament. The new government was promptly defeated and another was called in its place. The king may have had a dynastic interest in trying to defuse the republicanism of a Labour party that had only recently quit the Comintern, but the stunt also had the effect of prodding a workable alternative to emerge from the other side.
Seed planted by Espen Bjerke — 26 May 2010 @ 00:20