Some Notions About Motions

The Daily Telegraph’s Gordon Rayner included a real howler in his article about the DUP’s rebellion in the Commons last week:

“Because the motions have been tabled by the Opposition they are not legally binding…”

Rayner was referring to the fact that the motions were part of an Opposition Day, which meant Jeremy Corbyn got to set the agenda for the debate. While it’s true that Corbyn’s motions weren’t legally binding, it’s not because he tabled them. Most motions are like greeting cards—they express sentiment without actually doing anything.

Corbyn’s pay cap motion “call[ed] on the Government to end the public sector pay cap in the NHS and give NHS workers a fair pay rise.” Ultimately, this is simply advice, and ministers are free to ignore it. The tuition-fees motion, on the other hand, looked like something that would bind the Government since it purported to revoke the Higher Education (Higher Amount) (England) Regulations 2016 and the Higher Education (Basic Amount) (England) Regulations 2016.

Statutory instruments made under the Higher Education Act 2004 are indeed subject to ‘negative procedure,’ which means MPs can strike them down. But section 5 of the Statutory Instruments Act 1946 states that these votes must take place within 40 days of the instrument being laid before Parliament, and the instruments Corbyn wants to revoke were both laid before Parliament in December of last year. That’s not all: a negative procedure motion must take the form of an address to the Queen asking her to annul the instrument(s) in question, but Corbyn’s motion simply declared that the instruments were revoked. Since it didn’t comply with the provisions of the Statutory Instruments Act, the tuition-fee motion is also nothing more than a statement of opinion. Labour has threatened to sue the Government if they don’t revoke the statutory instruments increasing tuition fees, but it’s hard to see how they could possibly prevail in court, so they’d be better off saving their money.

While these motions aren’t legally binding, they still represent a headache for the Government. Ministers allowed them to pass on a voice vote in order to avoid a potentially embarrassing rebellion by the DUP. This stratagem may have allowed them to save face in the short-term, but it also highlights the inherent weakness of the Government’s position and lends credence to the notion that Theresa May is in office but not in power. And in the long run, that is far more dangerous than a defeat on policy.

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Fact-Checking Today I Found Out’s Video On The Queen’s Powers

Some of you may be familiar with Today I Found Out, a popular YouTube channel that makes explanatory videos on a wide range of topics. Today’s video featured a subject near and dear to my heart: the Queen’s powers. I’ve generally been impressed with their work, so I had high hopes for the video. But as it turned out, my optimism was misplaced. While the video got a lot of things right, it made some truly egregious mistakes.

The biggest howler concerns the power to dissolve Parliament. According to the video, if Her Majesty doesn’t like the outcome of an election, she could call for more elections until she got the Parliament she wanted. This simply isn’t true. While it used to be that the Sovereign could dissolve Parliament and call for new elections at any time by virtue of the royal prerogative, the Fixed-term Parliaments Act 2011 put the kibosh on that. Since then, the Monarch has had no say in the dissolution of Parliament (not even a formal one). Now, a Parliament automatically dissolves after five years. The Fixed-term Parliaments Act does allow early dissolutions and elections in certain circumstances, but MPs make that call, not the Queen.

Another of the video’s dodgy claims is that Her Majesty can have anyone arrested and seize their property for the Crown. This was certainly the case in the past, but these powers were curtailed as far back as the Middle Ages. For example, a celebrated clause in Magna Carta declares that:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This same principle would be restated over a century later in the statute 28 Edw. 3 c. 3. Although later monarchs (e.g., the Stuarts) tried to circumvent it, Parliament fought back. In 1640, Parliament passed the Habeas Corpus Act, which declared that the Monarch and the Privy Council could not arbitrarily dispose of people’s property. Furthermore, people who had been imprisoned by order of the Sovereign or the Privy Council were allowed to challenge their detention through the writ of habeas corpus. These provisions remain the law of the land to this day, and they act as a bulwark against the sort of royal despotism that the video envisions.

My final quibble is admittedly rather nitpicky. The video claims that the Queen refused Crown Consent to prevent Parliament from debating a bill that would have required parliamentary authorization for military action in Iraq (it should be noted that Queen’s Consent is not the same as Royal Assent; for a more detailed discussion, see this post). While it’s true that the bill didn’t proceed because Queen’s Consent wasn’t signified, it’s misleading to imply that this was the Queen’s doing.

The bill in question was introduced by a backbench MP, veteran left-winger Tam Dalyell, and therefore it was his responsibility to obtain the Queen’s Consent. However, it seems that Dalyell, a longtime republican, refused to do so on principle. A BBC article from the time quotes him as saying, “I am not going crawling to the Queen. This has nothing to do with her.” The Queen can hardly be held responsible if Dalyell didn’t follow the rules.

Even if the Queen’s Consent were formally refused, it would still be wrong to describe it as a personal act of Her Majesty. Like the vast majority of the Sovereign’s powers, the power to grant Consent is exercised on the advice of the Prime Minister. If Consent were refused, it was Tony Blair’s doing, not the Queen’s.

I like Today I Found Out, but I think they came up short on this one. Looking through their sources for the video, I couldn’t help but notice that they relied heavily on media reports. This was arguably a mistake–even reputable outlets like the BBC, The Guardian often make mistakes when covering constitutional matters. The British constitution is incredibly complex, and it’s riddled with caveats and exceptions. A superficial glance can easily produce misleading generalizations.

Incidentally, if you’d like to read more about the Queen’s powers, you might want to check out this post I wrote a while back. And if you have any questions, feel free to ask!

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Voting Down The Queen’s Speech

With the Conservatives still short of a deal that will guarantee their majority, there is a real chance that Theresa May’s government could be defeated on the Queen’s Speech. A reader named Nathan recently wrote to ask if any examples of governments losing this crucial vote.

First, we need to understand how the Speech from the Throne can bring down a government. It’s customary for MPs to thank the Queen for the speech by presenting her with a ‘Humble Address.’ Invariably, the Opposition tries to amend the address by inserting language that deprecates the government and its policies. Usually, this is nothing more than political theatre, as a government with a majority can easily vote down these amendments. But a minority government without a confidence and supply agreement could be vulnerable to defeat. If the address is amended in such a way that it condemns the incumbent government, that would be tantamount to a vote of no confidence.

The last Prime Minister to suffer the indignity of losing the vote on the Speech from the Throne was Stanley Baldwin in 1924, and there are some striking similarities between his situation and the one facing Theresa May. Baldwin also became Prime Minister following the unexpected resignation of his predecessor, and although he had a majority, he called a snap election in December 1923 in order to win a stronger mandate for his approach to a controversial issue (in his case, it was tariff reform).

Like May, Baldwin ended up losing his majority, though the Tories were still the largest party in the Commons. This prompted him to try to carry on as a minority government. He went to Parliament in January 1924 with a King’s Speech, but Labour tabled an amendment stating that the House had no confidence in the King’s present advisers, and the Liberals helped ensure its adoption. Baldwin promptly resigned, and Labour’s Ramsay MacDonald was allowed to form his own minority government with the support of the Liberals, though it only lasted eleven months and a further election returned Baldwin to Downing Street before the year’s end.

Although an amendment to the Humble Address has traditionally been enough to bring down a government, the Fixed-term Parliaments Act 2011 has muddied the waters somewhat. Section 2(4) of the Act specifies the form of a motion of no confidence (“That this House has no confidence in Her Majesty’s Government”), and amending the Humble Address might not comply with that provision. In theory, that means that any vote on the Queen’s Speech would be purely symbolic, and if Labour actually wanted to bring down the Government, they would have to table another motion using the words found in the Fixed-term Parliaments Act.

However, if Labour successfully amended the address, it would be very hard for Theresa May to continue in office. At that point, I suspect she would probably resign and advise the Queen to ask Jeremy Corbyn to form a government. She could also ask the House to authorize another snap election, though she would need the support of a substantial number of non-Tory MPs to get it passed.

If Corbyn did form a government, he would not need to present a Queen’s Speech of his own. Constitutionally speaking, it would be redundant. The Queen has opened Parliament; as long as it isn’t prorogued, there is no need for a further speech. When Ramsay MacDonald took over in 1924, he simply made his own statement outlining the new government’s priorities, and Corbyn would probably follow his precedent. He isn’t exactly a fervent monarchist, so I can’t see him wanting any more royal pomp and circumstance than is absolutely necessary.

Corbyn’s government would almost certainly face a vote of confidence–he might even table it himself in a bid to establish his right to govern. If he were defeated, MPs would have little choice but to vote for an early election. While the Fixed-term Parliaments Act establishes a 14-day window after a no confidence vote in which others can try to form a government, this would be pointless if both the Tories and Labour have already lost the confidence of the Commons.

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No, Jeremy Corbyn Didn’t Need To Bow To The Queen

Several readers have asked me about Jeremy Corbyn’s failure to bow to the Queen during the State Opening of Parliament. Some on social media have accused him of showing a lack of respect for Her Majesty, while others have lauded him for taking a stand against the monarchy.

The truth is much less exciting. Corbyn was simply following protocol. Traditionally, the Speaker, the Clerk, and the Serjeant-at-Arms are the only people from the Commons who bow. I suspect this is because they are in the front row and therefore more visible to the Queen–if Her Majesty can’t see you bow, the gesture becomes rather pointless. Similarly, the judges are usually the only ones in the House of Lords who bow since they’re sitting right in front of the Throne. Now it’s not unheard of for MPs to get caught up in the moment and bow even though it’s not necessary (e.g., Theresa May). But Corbyn can hardly be faulted for following protocol.

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Why Did Theresa May Cancel The 2018 Queen’s Speech?

The Queen’s diary just got a bit lighter. The Leader of the Commons, Andrea Leadsom, has announced that there will be no Speech from the Throne next year.

A Parliament is traditionally divided into several sessions, each of which begins with a Queen’s Speech and ends with prorogation. For many years, sessions have typically lasted for a year, but since the timing is decided by the Crown, they can run longer or shorter. For example, the first session of the 2010-15 Parliament ran from 2010 until 2012, with no Queen’s Speech in 2011. While unusual, it’s not constitutionally improper. The Sovereign is only required to address Parliament at the beginning of a session.

Leadsom claims that a longer session will give Parliament more time to deal with the mountain of legislation that Brexit is likely to create. When Parliament is prorogued at the end of a session, any bills that have not yet received Royal Assent lapse. While they can be reintroduced in the following session, they must start over at the beginning of the parliamentary process. In recent years, Parliament has allowed certain bills to be ‘carried over’ from one session to another, but this process is not automatic, and carry-over must be agreed on a case-by-case basis. By delaying prorogation, they avoid a slew of potentially difficult votes.

But the Government could be motivated by another factor. The vote on the Address-in-Reply to the Queen’s Speech has traditionally been tantamount to a vote of confidence in the Government. With no guaranteed majority and an emboldened Opposition, the Queen’s Speeches will be a major headache for the Government, so it’s not hard to see why they’d be keen to put it off. They could even extend the session for the full five years of the Parliament, in which case there wouldn’t be another Queen’s Speech until after the next election. But that would probably be a step too far. Brexit should be settled by 2019, so the Government should find it easier to proceed with a Queen’s Speech.

Of course, all this assumes that the Conservatives are still in power in 2018. If there were to be another election next year, the Queen would have to open the next Parliament. Given Theresa May’s tenuous grip on power, the Queen might have to address Parliament in 2018 after all.


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Queen’s Speech To Be Delayed…Maybe

Conflicting reports in the media have suggested that the Queen’s Speech might not take place on June 19 as originally planned (while the Daily Telegraph made the delay seem like a certainty, the BBC suggests that the issue is still undecided). Bizarrely, a Downing Street spokesperson has claimed that the delay is necessary in part because it will take several days for the ink to dry on the special goatskin parchment that is used for the speech.

This excuse is, quite frankly, laughable. Due to the unexpected nature of this election, it’s already been established that the forthcoming State Opening of Parliament will be a less formal affair: The Queen will travel to the Palace of Westminster by car rather than carriage, and she’ll wear ordinary day dress with a hat instead of the Imperial State Crown and her parliamentary robe. Those are both highly visible elements of the ceremony, yet they have been dispensed with for the moment out of necessity. Surely something as obscure as the use of parchment for the Gracious Speech could be set aside as well. The idea might even find favor with Her Majesty, given that a delayed State Opening would likely clash with Royal Ascot!

I suspect the real reason for the delay is that the Government has no idea what to put in the Queen’s Speech. The Conservative manifesto won’t be much help, as rumor has it they’re planning to jettison large portions of it. They’re also not helped by the fact that the promised deal with the Democratic Unionist Party has yet to materialize. To top it off, they’ll need to particularly sensitive to the feelings of the backbenches–with such a tiny majority, they can’t afford any rebellions.

There’s nothing wrong with delaying the Queen’s Speech. But it would have been far better for the Government to admit that they need more time and leave it at that instead of nattering on about parchment. That makes them seem laughably hidebound, and it also feeds the narrative that Theresa May is in office but not in power. No Prime Minister wants to be perceived that way, but it’s particularly bad when you’ve burned up most of your political capital on a disastrous election. If May is going to survive, she can’t afford these kind of self-inflicted wounds.



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Will Theresa May’s Deal With The DUP Work?

(UPDATE [6/12/17]: It looks like talk of a firm deal between the Tories and the DUP was premature. Downing Street now says that talks are still ongoing.)

Theresa May will indeed be staying in Downing Street, for now at least. According to the Daily Telegraph, the Conservatives and the Democratic Unionist Party from Northern Ireland have agreed to a ‘confidence and supply agreement’ that will allow the Tories to govern as a minority government.

This means that the DUP will support the Government on matters of confidence as well as appropriations votes. On all other matters, the Tories will need to obtain the DUP’s support on a case-by-case basis. It’s basically the bare minimum to keep the Government in power.

The alternative would have been a formal coalition agreement like the one that united the Tories and the Liberal Democrats from 2010-15. But in this case, a coalition would have been problematic. Under the terms of the Good Friday Agreement, Westminster needs to be able to mediate between Unionists and Republicans, and it would have been extremely difficult for them to perform that role if the DUP were part of the British Government. Also, the fate of the Lib Dems may have been a cautionary tale for the DUP–after faithfully sticking with the coalition for five years, they lost almost all of their MPs in the 2015 election.

The vote on the Queen’s Speech is the first test of a government’s viability, and the DUP’s support means that the Tories are likely to overcome that hurdle. But the Government’s long-term stability is far from certain. The DUP have the Tories over a barrel, and they could easily use their advantage to wring concessions from the Government at every opportunity. And if history is any indicator, they will do just that (it’s worth remembering that James Callaghan’s government fell in part because he balked at the Ulster Unionists’ request for a gas pipeline to Northern Ireland). But any concessions to the DUP run the risk of alienating Tory MPs from English constituencies.

During the election, May said she could be counted on to provide strong, stable government. Those words are likely to come back to haunt her. Even with the DUP’s support, the Government’s majority is only three, so it will be excruciatingly difficult for the whips to secure the passage of anything even remotely controversial. In the absence of a viable alternative administration, another early election seems all but inevitable.

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How Will The Hung Parliament Play Out?

Theresa May’s decision to call a snap election looks like it has backfired spectacularly. The Conservatives have lost their majority, and Britain will have a hung Parliament.

In a hung Parliament, no party has an overall majority in the Commons. These are relatively rare occurrences. There have been five hung Parliaments since 1900, with the most recent being in 2010.

However, a hung Parliament will not necessarily force Theresa May out of Downing Street. The Crown must always have advisers, so the incumbent Prime Minister will remain in office until it is clear that they no longer have the confidence of the Commons. Traditionally, this was decided by a vote on the Speech from the Throne. For example, Stanley Baldwin sought to lead a minority government after the Tories lost their majority in the December 1923 General Election, but he was defeated on the King’s Speech within a matter of days. Conversely, in 2010 Gordon Brown left Downing Street before Parliament met since the Tories had become the biggest party.

Looking at the projected composition of the Commons, it looks like neither the Tories nor Labour would find it easy to govern. A formal coalition would offer the most stability, but both Theresa May and Jeremy Corbyn are likely to struggle to assemble an alliance.

The Tories could probably negotiate an alliance with Northern Ireland’s Democratic Unionist Party with relative ease, but that would only net them nine seats or so. It could give them a majority, but it would be wafer-thin. They may pick up additional votes from miscellaneous independents, but even with their support, Theresa May’s position is likely to be gravely weakened.

Coalition-building would likely be even more difficult for Corbyn. There’s been talk of a ‘progressive coalition’ between Labour, the Scottish National Party, Plaid Cymru, and the Greens (early indications from the Liberal Democrats suggest that they won’t enter into formal alliances with anyone). But any alliance between Labour and the SNP would be complicated by the fact that Labour is a unionist party while the SNP seeks the breakup of the Union. The West Lothian question would muddy the waters further. And even if Labour could strike a grand bargain, it seems unlikely to give him a workable majority, which would force Labour to eke out additional support from independent MPs.

Another option would be for May or Corbyn to lead a minority government. They would probably try to secure some breathing room by entering into confidence and supply agreements with other parties. In these agreements, a party pledges to support the government on matters of confidence as well as the budget, but they are not bound to support the government on a day-to-day basis. While this can prop up a government, it often goes on to die a death by a thousand cuts.

Even if the Tories manage to stay in government, it’s hard to see how Theresa May can remain in office. This election will become an albatross around her neck, and I doubt she can shed it.

At this point, the only thing that’s certain is that British politics is about to get a lot more chaotic. To (mis)quote Bette Davis, “Fasten your seatbelts, it’s going to be a bumpy ride.”

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What’s Next For The Fixed Term Parliaments Act?

The 56th Parliament of the United Kingdom came to an end yesterday after just two years. It was supposed to last until 2020, but the British will be going to the polls early after MPs backed Theresa May’s call for an early election.

Section 2(1) of the Fixed-term Parliaments Act 2011 allows for an early election if 2/3 of MPs vote in favor of a motion to that effect. The outcome was never really in doubt, as Labour announced that they would back May’s motion for an early election. In the end, she won by a landslide (the final tally was 522 to 13).

It’s not hard to see why May wants an early election. With Labour stuck in the doldrums, the Conservatives appear poised to gain a sizable majority. But this is a blatant violation of the spirit of the Fixed-term Parliaments Act. Before it became law, the Queen dissolved Parliament at the request of the Prime Minister, and nothing prevented a Prime Minister from calling a snap election whenever it looked like their party might pick up seats.[1] Many thought was unfair. When the Fixed-term Parliaments Act was going through the Commons, the Deputy Prime Minister, Nick Clegg, argued that “no Government should be able to dissolve Parliament for their own political advantage.[2]

Nevertheless, it’s striking how easily Theresa May got her wish. She announced her desire for an early election on 18 April, and within hours, Jeremy Corbyn had made it clear that Labour would support the Government. When MPs debated the matter on 19 April, only a handful spoke against an early election, and the overwhelming majority of MPs ultimately joined the Government in the Aye lobby.

May’s decision to call an election was nakedly opportunistic, yet MPs supported it. This raises questions about the viability of the Fixed-term Parliaments Act. Section 2(1) of the Act is supposed to check the Prime Minister’s power, but it will be rendered moot if MPs keep deferring to the Executive. While it’s tempting to dismiss this election as an aberration caused by Brexit, the fact that May prevailed without any real difficulty could encourage future Prime Ministers to call for early elections whenever they think the country needs ‘strong, stable leadership.’ And the Opposition may have little choice but to go along with it. As Jacob Rees-Mogg pointed out during the debate on the early election, “[n]o Opposition can sensibly say that they would prefer a Government they oppose to continue in office, rather than having a chance to defeat them.[3]” Saying no to an early election could easily make the Leader of the Opposition look weak and scared, and that is likely to be a strong inducement to cooperate with the Government. If that turns out to be the case, the Fixed-term Parliaments Act won’t be worth the vellum it’s printed on.


[1] However, dissolutions were not automatic. The Sovereign could refuse a Prime Minister’s request in exceptional circumstances.

[2] HC Debates, 13 September 2010, col. 628.

[3] HC Debates, 19 April 2017, col. 697

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What’s Next For The Brexit Bill?

After 44 hours of debate, the European Union (Notification of Withdrawal) Bill finished its marathon journey through the House of Lords today. There was some last-minute drama as the Liberal Democrats mounted a quixotic effort to scupper the bill by blocking final passage. Although their stratagem was overwhelmingly rejected by a vote of 95 to 340, the bill faces additional hurdles on its path to the statute book.

Despite the Government’s best efforts, peers made two amendments to the bill (one aims to protect the rights of EU citizens living the UK post-Brexit, while the other requires a parliamentary vote on the final terms of the Brexit agreement). As a result, the bill must go back to the Commons, where MPs will have a chance to accept, reject, or amend the Lords’ amendments (they can also propose their own alternative amendments).

Ministers will almost certainly try to remove the amendments from the bill. Although the Government has a slender majority, they will likely get their way without too much difficulty. Conservative MPs were remarkably united when the bill was going through the Commons, and Ken Clarke (a longstanding Europhile) was the only rebel.

If MPs delete the amendments or offer alternatives, the bill will go back to the Lords. Peers will then have to decide whether they wish to stick to their guns or yield to the Commons. In most cases, the Lords choose the latter route, but in this case, it may take them a while to reach that point.

If the two Houses can’t come to an agreement, the bill will be lost. But I can’t see Labour pushing things that far since they support the bill as a whole. More than likely, they will ask peers to insist on the amendments once, then throw in the towel. At that point, I suspect a lot of the Crossbenchers will follow their lead (the LibDems may decide to hold out until the bitter end, but they need significant support from Labour and the Crossbenches to prevail). Once that happens, the bill will finally be ready for Royal Assent.

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