Elections, Prime Ministers and their Causes – Part 3

The 2015 General Election is one of uncertainties. Who will be the largest Party? Who will work with whom? Who will be Prime Minister? Will anyone be able to get enough support to pass that magic number of 326 (half the seat in the House of Commons +1) and form a Government? What does it mean if they can’t?
With all this uncertainty, the possibility of a SECOND General Election this year has been mooted.

This week, I want to look at these questions in a bit of detail, combining the Legal Framework with the Political Reality of #GE15. Over the course of three posts this week, I will examine “What causes a General Election”, “What ends a Prime Minister” and “What Creates a new one”, all through a #GE15 lens.

In part 2 we reached a situation where David Cameron could no longer stay Prime Minister, but now we have to face a governmental vacuum. So, “What Creates a New Prime Minister”?


Who, then, could replace Cameron once he resigns? The country cannot be left Prime Minister-less. The Queen (for it is at her pleasure the PM serves) would have to invite someone else to fill the role. According to the definitive guide to such things, the Cabinet Office Manual, that person would be the person “best placed” to command the confidence of the House of Commons. That person, in the current election, is Ed Miliband.
It is important to note that it is not incumbent on Miliband to prove he can command the confidence of the House, merely that he is best placed to do so. In practice, this will be tested when Prime Minister Miliband presents his Queen’s Speech. If that fails to pass (which is a possibility), it will then be clear than he doesn’t command the confidence of the House of Commons and the duty then falls on him to resign as Prime Minister. Who would replace him…it’s hard to tell. It would, theoretically be the (new) leader of the Conservatives – whose Queen’s speech would fail and would have to resign to be replaced by the (new) leader of the Labour party – whose Queen’s Speech would fail…and so on.

All of this is going on without another general election happening, since while the Queen’s Speech is a test of the Prime Minister’s ability to command the Confidence of the House of Commons, as we discussed in Part 1 it is not one of the statutorily defined triggers set-out in the FTPA2011. It then becomes a political calculation for the smaller parties (since the 2 main parties will never support the government of another in peace-time), to decide which side of the fence they come down on.
It would take an MP to table one of the motions quoted above to cause an election and see if the mess sorts itself out – or the House could vote to repeal/amend the FTPA 2011 and we go back Prime Ministers being able to call an election at a time of their choice (though even whether that would happen is a controversial legal proposition).

Bringing all this Together

Attempting to tie all this together then, it is entirely possible that we are in for a confusing and rocky few months after this election. Unlike in 2010, its clear going into the election who’s most likely to side with whom, so when the results come in, the blocs should be easier to make up.
If there are more ‘Anti-Tory’ MP’s (LAB+SNP+GRN+SDLP+RESPECT) on May 8th than ‘Coalition Friendly MPs’ (CON+LD+DUP/UUP) then Cameron’s days as Prime Minister are numbered, and Ed Miliband will eventually be invited to replace him.
However, that could well prove to be the simplest part of the process. Ed would then need to demonstrate that he commanded the confidence of the House of Commons by passing his first Queen’s Speech. He doesn’t need MP’s to just be ‘Anti-Tory’ – he needs them to be ‘Pro-Labour’ as-well. It’s possible that LAB+SNP alone will have enough votes to get Ed into Number 10 – but if the SNP abstain from voting in the Queen’s Speech (which is entirely possible), then it could still fail, meaning Ed might not have enough confidence after all. The SNP’s line that they will “lock out the Tories” isn’t enough in the longer-term; they need to be willing to keep Miliband in for there not to be another General Election.
If they don’t  though, we wouldn’t be bracing ourselves for #GE15.2 quite yet, because there are only 2 ways to hold an early General Election under the Fixed Terms Parliament Act 2011:

  • 434 MP’s vote to hold one.
  • 1/2 of MP’s voting support the motion, “That this House has no confidence in her Majesty’s Government.” and that MP’s do not pass the motion, “That this House has confidence in her Majesty’s Government.” within 14 days of doing so.

Analysing the SNP’s position in all this then, the following is entirely possible:

  • they count AGAINST David Cameron, and therefore would lead to his resignation as PM.
  • ABSTAIN from Miliband’s Queen’s Speech (not wanting to vote against it because of the perception; but not wanting to vote for it because they haven’t got any concessions – which is what Miliband seemed to signal in the TV Debates last week).

They would then have to decide whether to support an election-causing confidence motion. Do they Support the motion, bringing down a Labour government and creating echos of 1979, which they have tried to escape? Do they oppose it, rendering their opposition to the Queen’s Speech a little weaker, and making them look a little uncertain of what they actually want? Or, do they abstain, and risk being made to look missing in action – and risk abetting the collapse of a Labour government, if not abetting it?
The Lib Dems would also have to look at the lay of the land, depending on their numbers. I’ve talked about them being ‘Tory-friendly’, but it’s more the current leadership than the party itself. Whether Nick Clegg is still an MP after May (let alone Lib Dem leader) is still up for discussion – so it’s entirely possible the party my shift to be more pro-Labour, and that may well be enough to see Miliband securely in No.10 until 2020. But even then, that depend on a Lib Dem MP who is sympathetic to Labour – many of whom are unlikely to survive this election – becoming the new leader.

The only thing that’s certain is that the 2015 General Election will not finish when voting does.


See Part 1, “What Causes a General Election”;
And Part 2, “What Ends a Prime Minister”.

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Elections, Prime Ministers and their Causes – Part 2

The 2015 General Election is one of uncertainties. Who will be the largest Party? Who will work with whom? Who will be Prime Minister? Will anyone be able to get enough support to pass that magic number of 326 (half the seat in the House of Commons +1) and form a Government? What does it mean if they can’t?
With all this uncertainty, the possibility of a SECOND General Election this year has been mooted.

This week, I want to look at these questions in a bit of detail, combining the Legal Framework with the Political Reality of #GE15. Over the course of three posts this week, I will examine “What causes a General Election”, “What ends a Prime Minister” and “What Creates a new one”, all through a #GE15 lens.

Having looked at Planned and early General Elections, I want to move on to look at “What Ends a Prime Minister” after an election is over.


I’ve looked at how the Fixed Term Parliaments Act 2011 has changed the way Votes of Confidence effect Parliament and elections. Now, instead of looking at Parliament, attention turns to Government, and what it takes, not so much to create a new government, but to end the old one.

Government and Parliament

What is key here is clearly separating “The Government” and “The Parliament” in our minds. The Parliament is the 650 MPs elected at elections who legislate. The Government is, while drawn from the Parliament, a separate body who govern the country. The fates of both are not intertwined.
It is possible for there to be a new Parliament, but not a new Government. Blair’s Government continued from 1997 – 2008 with 2 elections in-between, each time changing the Parliament. It is also possible for there to be a new Government, but not a new Parliament. There are two ways this can happen. The first way is a ‘change of personnel’, such as the Blair/Brown switch that happened in 2008 – where the people in government change, but the same party holds power. these are simple and (generally) uncontroversial. The second is a much more drastic, and involves a change of party in government mid-way through a Parliament.
When the coalition formed in 2010, it wasn’t expected to last. It wasn’t expected that the Tories would be so dominant and the Liberal Democrats so subservient. It was entirely possible the coalition would collapse. It was conceivable that, had the arithmetic been right, a LAB+LD+OTH coalition could have ousted the Tories – without an election. The government would have changed, but the Parliament wouldn’t have. This is, perhaps, best called a ‘change of control’ transition.

As I discussed, under FTPA, there can only be an election held every 5 years, using the Parliamentary method or the Governmental Method. The Act regulates Parliament, not Government. It does not state when a new government can or cannot be formed. And this could be key in the Post-#GE15 negotiations.
Labour has ruled out a coalition with the SNP – but the SNP has said they will work to keep the Tories out of Government. UKIP’s condition of an EU Referendum in 2015/16 would be too far a policy shift for Labour to manage and keep face (plus the politics of a Labour/UKIP alliance would be disastrous), but is only 1 year earlier than the Tories’ proposed referendum date of Summer 2017. In reality, therefore, it appears this is a Labour+(SNP)+SDLP v Conservative+UKIP dividing line, with the Lib Dems jumping either side of it as they deem fit.
I say “it appears” because, in all the excitement of coalitions and Fixed-Term Parliaments, a basic constitutional principle seems to have fallen by the wayside: How we get a government. I know asking how we get a new government seems an odd question to ask when discussing how to end a Prime Minister (and therefore a government) – but there is a logic here.

Prime Ministers

A Prime Minister is the MP who command the confidence of the House of Commons. This is the Constitutional Law 101 definition of the Prime Minister. In almost every Parliament, that person has been the leader of the party that had a majority after a General Election (or resignation of the previous leader of that party) by virtue of that majority.
It follows from this that when a Prime Minister demonstrably no longer commands the confidence of the House of Commons, they must resign. This condition is one sided – it does not require anybody else to demonstrate that they command the confidence of the House (but we’ll get back to this soon). Therefore, it is for the Prime Minister returning from an election to show that they still have the confidence of the House; not for someone else to show that they have it instead.

But how can we apply this principle to coalitions, especially when Gordon Brown didn’t immediately resign as Prime Minister after the 2010 election and tried to form a government? The reason Brown didn’t immediately resign is because it wasn’t clear he had lost the confidence of the House for some time. It was entirely possible – and indeed for a day or so seemed more likely – that the LibDems were going to come to some agreement with Labour which would have meant that (along with the SDLP, Green and, possibly, SNP seats) would have given them enough seats to command the confidence of the House, allowing Brown (or whoever led the Labour Party after the election) to pass the Prime Ministerial application test and remain in (very wobbly) power.
When it was clear the Labour/LibDem wasn’t going to happen, Brown didn’t have to wait until the coalition we have now turned up. He could not command the confidence of the House of Commons, and so had to resign. Whether or not what we now know as ‘The Coalition’ had emerged, Brown could not remain Prime Minister. It is clear in a #GE15 context, therefore, that if it emerges that Cameron cannot command the confidence of the House, he has a constitutional duty upon him to resign. It would not be like 2010 where Brown (and the country) couldn’t tell which way the wind was blowing; We know who’s teaming up with whom, so it should be easier than before to see the blocs as they form and how strong they are.

It’s the extent to which the parties will work together which could make the life of a post-#GE15 Government difficult – but that’s for Part 3…

Elections, Prime Ministers and their Causes – Part 1

The 2015 General Election is one of uncertainties. Who will be the largest Party? Who will work with whom? Who will be Prime Minister? Will anyone be able to get enough support to pass that magic number of 326 (half the seat in the House of Commons +1) and form a Government? What does it mean if they can’t?
With all this uncertainty, the possibility of a SECOND General Election this year has been mooted.

This week, I want to look at these questions in a bit of detail, combining the Legal Framework with the Political Reality of #GE15. Over the course of three posts this week, I will examine “What causes a General Election”, “What ends a Prime Minister” and “What Creates a new one”, all through a #GE15 lens.

Today, I want to look at the first, and possibly simplest of these questions – What Causes a General Election.


Regular General Elections

This is the simplest point to discuss. Section 1(2) of the Fixed Term Parliaments Act 2011 [FTPA 2011] appoints the date for the first General Election after the act comes in as 7th May 2015. This is the simple.
Section 1(3) goes on to state that the polling day for each election thereafter will be “the first Thursday in May in the fifth Calendar year” after the last one. So, the next general election is 7th May 2015; the next 7th May 2020; the next 1st May 2025 and so on. Section 1(5) lets the Prime Minister, under Statutory Instrument approved by Parliament, delay the election for up to 2 months, but that doesn’t really mess with things. The next election would still be the 1st Thursday in May five years later.

This is the Best case scenario. Everything goes as it should; there are no disastrous governments; no mass defections; no wafer thin majorities coupled with rebellious backbenchers. This is the mode of almost every government since WW2. But the drafters were no naive to assume there would never be a repeat of the Vote of Confidence in 1979.
There are two ways to hold early general elections.

Early General Elections

The first is best described as the Parliamentary Method.
Section 2(1) compels an early General Election take place if the following motion, laid out in Section 2(2), is passed by a 2/3s majority of the whole House of Commons (i.e. at current seat numbers, 434 MP’s):

That there shall be an early parliamentary general election.

This way of calling an election is unlikely to ever be a possibility in reality. At the 2010 General Election, the Conservatives alone won 310 seats, keeping them safe form this kind of early election. In most cases, the largest party (if they are the ones attempting to form a government) or the party of the sitting Prime Minister (if they are attempting to keep hold of power) would need to have fewer than 227 seats to be unable to stop a motion passing. This has never been anywhere near a possibility since World War 2. eve allowing for a large rebellion, this would be very unlikely to pass if the largest party didn’t want it to.
Of course, there may be situations where a fresh election might be in the largest party’s interests. Two such situations could be:

  1. Where the 2nd Largest Party has had a major mess up since the last election. Perhaps there has been a damning revelation about a leading figure. Maybe coalition negotiations take an unexpected turn?
  2. Where a’worst case scenario has come to pass. Voting SNP really did get Tories. Voting Labour really did get UKIP. Now that the hitherto vague threat has become a reality, people might vote differently and be able to push the largest party over the line, giving it an overall majority – however slim.

These situations are possible – but unlikely. If anything were to happen, it is most likely to be the second method of calling an early general election. This can be called the Governmental method and is more of a two-stage process.

The first step is contained in s.2(3)(a), which compels an early General Election to take place if the following motion, laid out in Section 2(4), is passed by the House of Commons (i.e. more MPs vote for it than don’t):

That this House has no confidence in her Majesty’s Government.

The second step, contained in s.2(3)(b), is that the following motion is not passed by the House of Commons within 14 days of the above motion:

That this House has confidence in Her Majesty’s Government.

Provided that there is no counter-motion within those 14 days, then an Early General election is called. This is a much more likely scenario if the Parliamentary arithmetic adds up. In a #GE15 context, it could be that there are more “Anti-Tory MP’s” who, while not wanting to enter into formal coalition, want to end a Tory Government.
All this is much closer to the traditional “Vote of Confidence” we’re used to. But it’s vital to note that nothing in this Act replaces the law regarding confidence in the government.

That’s what we’ll be discussing next in Part 2, “What Ends A Prime Minister?“…

Meanings and Maps…

There are some cases that you read and know, “This is important. This case fundamentally redefines how we understand the law.” This is not one of those cases. This is a case that you read and think to yourself, “How on earth did this end up at the Supreme Court”. It is, quite literally, about map scales.

R (on the application of Trail Riders Fellowship and another) v Dorset County Council [2015] UKSC 18

Full Judgement and Press Summary (18th March 2015)

This case is an appeal from the Court of Appeal in England and Wales.

In England, s.67(1)(a) of The Natural Environment and Rural Communities Act 2006 provides that, “An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement was not shown in a definitive map and statement” which the Local Council is under a duty to maintain.
Under s.67(3) of the law, a right of way could be preserved if before if an application to have the right recorded on the definitive map (called a “modification order”) was made before 20th January 2005 and included along with it a map. “…of a scale of not less than 1:25,000”. In June 2004 the trail raiders fellowship did just that in an attempt to maintain a vehicular right of access across a stretch of land. They filled out the appropriate ambiguously numbered application forms and enclosed the maps. The maps were created on the computer [shock] which was based on OS maps drawn to a scale of 1:50,000. However, they were printed at a 1:25,000. What this meant that while the original map had the detail present in a 1:50,000 scale map; 1cm on the application map represented 250m in real life.
The Council accepted the application and so preserved the right of way in their special map. But in 2010, on the basis of an objection being raised, the council retroactively rejected the applications on the basis that the maps were not drawn to a scale of 1:25,000, merely presented at that scale. The judge at first instance ruled in favour of the Council, stating that (i) the maps didn’t meet that statutory requirements; and (ii) the extent of the non-compliance was de minimus (i.e small enough to be overlooked). The Court of Appeal overturned this decision, stating that the maps did conform with the law – but if that was not the case, the extent of any non-compliance could not be descriped as de minimus. The Council appealed the the UKSC and the court agreed to consider both points.

(i) Did the maps presented to a 1:25,000, but derived from a 1:50,000 scale meet the statutory requirements?

On this point the UKSC held 3-2 that the maps did comply with the requirements. Lord Clarke said that the question that fell to be answered was “Whether each of the maps was drawn to a scale of not less than 1:25,000” [19]. This was done through an game of “What they really said was…” which went something like:

Most of judging is just connecting the dots anyway...

He reasoned that since it was accepted that 1cm on the map represented 250m in real life, the maps were drawn to a 1:25,000 scale [20]. While the Council had suggested that the application map had to have the detail of a 1:25,000 OS Map, and since it was based on a 1:50,000 scale map, it failed to meet the requirement. Lords Clare, Toulson and Carnwarth agreed, stating that, not only was there no reference in the statues to the level of detail required, however helpful it would be to the Council [23-25]; it wasn’t even a requirement that an OS Map was used, and since many other statues explicitly required the use of an OS Map, it’s absence could be taken to mean that this was not a requirement in this case.
Finally, it was noted that “drawn” didn’t refer to the original creation, but more broadly to the application map itself. The technological advances since the Regulations were made mean that courts have to grapple with whether new methods fit into old categorisations, but that, in the present case at least, the issue was clear cut. Using a computer to print the map was not a new process, merely a modernised method of carrying out an old one [29-30]. On this basis, he rejected the Council’s appeal.

The dissent is notable, if only for the fact the President of the court, Lord Neuberger, and Lord Sumption are the two dissenters. They took the view that it was obvious that it was intended that the definitive OS 1:25,000 map was to be used. The fact that there was a scaling requirement in the first place suggested the level of detail required, and, given the ready and wide availability of the OS Maps for England, it must have been the intention of the regulations [88-89].
Further the ordinary meaning of the words of the law didn’t make a distinction between drawing a map and preparing a map and that it would go against the “natural use of language” to describe an enlarged map to be “drawn” on the larger scale. It may be described as “being on” that scale…but not “drawn to it” [90]. Finally, Lord Sumption added that it is so obvious that a 1:25,000 would have more detail than a 1:50,000 map, that it must be part of the reasoning behind the requirement [107-108].  As Sumption himself put it:

“I decline to construe them on the assumption that applicants could be expected to complete their applications in the most obtuse and unhelpful manner consistent with the language.” #Sumptionism

This is, essentially, a tension between two different approaches to Statutory interpretation. The Majority applied a Literal approach:

  • The law requires a map drawn to a scale of not less than 1:25,000.
  • This means the 1cm on the map must represent no more than 250m in real life.
  • The map in the application does so.
  • The statue and regulations make no reference to the level of detail or kind of Map required.
  • Other statues explicitly set out more exacting requirements.
  • Therefore the map technically meets the criteria.
  • Therefore the application is valid.

The Minority, however, applied a more Purposive approach:

  • The law requires a map drawn to a scale of not less than 1:25,000.
  • The map in the map technically meets this criteria.
  • There must be a reason that that scale is required.
  • It is inherent that a map prepared on a 1:25,000 scale has more detail than one prepared on a 1:50,000 scale.
  • It is a natural reading that something drawn at size ‘A’, even when enlarged, is still “drawn at” size A.
  • These conclusions are so obvious that the drafters must have had them in mind when writing the legislation.
  • Therefore the maps cannot truly meet the criteria based on obvious legislative intention.

Personally, I’m inclined to agree with the Majority in this case. Unless an suggestion is so obvious it must be taken, the court should stick as close to the words of the text as is reasonable. In this case, it is to look at the scale, and not the detail of the map sent in with the application – and so the application should stand.

(ii) If the map didn’t meet the required scale, would that alone mean the application was invalid?

This question is now purely academical, given the majority decision of the UKSC. but is still worth considering. Here there was a 3-1 (1 abstention) decision that, if the maps didn’t meet the statutory scale, the size of the deviation meant that the applucations must be held as invalid, and so the right or way would cease to exist. Lors Neuberger, Sumption and Toulson were of the view that, while previously it was open to the Council to accept a dodgy application, or remedy it themselves, s.67 of the 2006 Act spells out very clearly that:

“…an application under section 53(5) of the 1981 Act is made when it is made in accordance with paragraph 1 of Schedule 14 to that Act [requiring a map of a 1:25,000 scale to be attached…]”

meaning that an application cannot be made outwith those terms. If there is no acceptable map with an application, there is no application made at all. Using an inappropriate scale is not a de minimus error, but a fundamental one in terms of the Act [99].

Lord Carnwath takes an entirely different approach. He begins from the (established) premise that a failure to follow technical rules is not always a fatal flaw [67]. If the error could be amended without “…having the effect of altering the whole character of the application, so as to amount in substance to a new application” then an amendment (either by the applicant or the Council) should be considered competent [70]. In this case, the application would still be to protect the same right of way even if the map was changed, so it can be said that it is not fundamental to the application, so a reasonable degree flexibility should be allowed.

The abstainer Lord Clarke said that, “Since it is not necessary to do so, I prefer to express no view upon the second question unless and until it arises on the facts of a particular case”. This is, of course, Judge code for “[shrugs] Dunno. I’ll get back to it”.

Conclusion

So – what does this case tell us? It’s authority for the proposition that a 1:50,000 doubled in size is the same at a 1:25,000 map. Beyond that, why the Supreme Court waded into this I have no idea. The preservation of 5 Dorset byways is not, to my mind at least, a matter of national importance – but I don’t live in Dorest. I suspect that the fact question (ii) didn’t fall to be addressed on the facts is perhaps the reason for the unimportant nature. On a purely jurisprudential basis, the case is uninteresting.
But if you approach the case as an example of statutory interpretation, the ‘law of reading law’, the case maybe has an point. On the substantive point of whether the maps were acceptable, there was a clash between a literal approach, sticking as close to the words of the legislation as possible, leading, perhaps, to a more rigid conclusion – and the more purpose-driven approach, where the reason why the words were put in the statute in the first place was key to understanding the legislations as a whole. It provides, if nothing else, an insight to the approaches the Justices take in understanding legislative intent.

Or…it’s just a case about maps that people took too far.