Tuesday, 22 October 2013

Electing The Prime Minister

Yesterday, I had a letter published in the local paper challenging the idea the the President of the European Commission was an unelected position, having already outlined the process by which the President is chosen.

The paper published under the heading More democracy in European presidential choices, which could be take more than one way. On one hand it could be a call for more democracy involved, or it could be interpreted as saying the system is more democratic than the way the Prime Minister is chosen.

There are sometimes calls for the Prime Minister to be elected by the people. There has been this curious trend of referring to someone having been "elected Prime Minister", with the whole idea that it has become a bit Presidential. But this is counterbalanced by the fact that the House of Commons is becoming more diverse in terms of the parties represented. Very odd that general elections becoming more focussed on the potential Prime Ministers has not been accompanied by the House of Commons returning to the 1950s model of just Conservatives (and allies), Labour, and a taxi-load of Liberals.

The problem here is that we are a parliamentary system, not a presidential-congressional system. In the latter, the Head of Government owes their legitimacy to the people without any legislative body in between. So, for example, the American President Barack Obama was re-elected in November 2012, while the elections to Congress were totally separate, and have no bearing - except if the Electoral College is unable to select a President - on who becomes President.

A Prime Minister owes their legitimacy indirectly via the House of Commons. But here's the thing - the House of Commons doesn't actually decide on the Prime Minister. In November 1990 and June 2007 there were changes of Prime Minister, without the House of Commons - beyond the relevant party's MPs - getting involved. Indeed, it is strange to think that if David Cameron were to resign as Prime Minister, a grassroots Conservative member would have more of a say in who was to replace him than a Labour MP would have.

It used to be said that the Queen had just two "personal prerogatives" - appointing the Prime Minister and dissolving Parliament. But, thanks to the Fixed Term Parliaments Act 2011, she no longer dissolves Parliament on the advice of the Prime Minister. This Act allows for early dissolution though, if a motion of No Confidence is passed against the Government. So, the House of Commons can effectively sack a Prime Minister and dismiss a Government.

But there is an action which the House of Commons can take within a fortnight which prevents early dissolution - and that is to pass a motion of Confidence in a Government.

Now, it doesn't specify which Government the motion of Confidence can be in. It could be the sitting Government seeking to overturn a defeat. Something similar (although not identical) has happened before. In February 1992, the member states of the European Communities (i.e. the European Coal & Steel Community, European Atomic Energy Community, and the European Economic Community) signed the Maastricht Treaty to create the European Union, and attached to the Treaty were a set of Protocols. The important one here is the Protocol on Social Policy, often referred to as the Social Chapter, and it begins by stating:

NOTING that eleven Member States, that is to say the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Portuguese Republic, wish to continue along the path laid down in the 1989 Social Charter; that they have adopted among themselves an Agreement to this end; that this Agreement is annexed to this Protocol; that this Protocol and the said Agreement are without prejudice to the provisions of this Treaty, particularly those relating to social policy which constitute an integral part of the acquis communautaire:

1. Agree to authorize those eleven Member States to have recourse to the institutions, procedures and mechanisms of the Treaty for the purposes of taking among themselves and applying as far as they are concerned the acts and decisions required for giving effect to the above-mentioned Agreement.

2. The United Kingdom of Great Britain and Northern Ireland shall not take part in the deliberations and the adoption by the Council of Commission proposals made on the basis of this Protocol and the above-mentioned Agreement.

Basically, this Protocol granted the EU powers over employment and social security issues, but exempted the United Kingdom from its provisions.

The European Communities (Amendment) Act 1993 was the piece of legislation that brought the Treaty into British law, with Section 7 stating when it would come into force:

This Act shall come into force only when each House of Parliament has come to a Resolution on a motion tabled by a Minister of the Crown considering the question of adopting the Protocol on Social Policy.

And on Thursday, 22 July 1993, the then Prime Minister, John Major introduced the relevant motion in the House of Commons:

That this House, in compliance with the requirements of section 7 of the European Communities (Amendment) Act 1993, notes the policy of Her Majesty's Government on the adoption of the Protocol on Social Policy.

However, John Smith, at the time the leader of the Labour Party, and hence Leader of the Opposition, proposed to amend this to:

That in the opinion of this House, Her Majesty's Government should not deposit the Articles of Ratification of the Treaty of European Union with the Government of the Italian Republic until such time as it has given notification to the European Community that it intends to adopt the Agreement attached to the Protocol on Social Policy.

Basically, Smith was saying that the Maastricht Treaty should not be ratified by the United Kingdom without the Social Chapter.

The vote on the amendment was a dead heat, with 317 for and 317 against, and hence Major announced a motion of Confidence in the Government's policy on the Social Chapter, which was the following day and the House did indeed have confidence in the policy of Her Majesty's Government on the adoption of the Protocol on Social Policy.

With that out of the way, there is different Government that the motion of Confidence could be in. And that is a new one. Now we are in the era of hung Parliaments and coalition Governments, it is possible that there could be a mid-term change in Government. So it is possible that a Government loses a motion of No Confidence, and decides to resign, with the Queen inviting the Leader of the Opposition to form a Government, which then faces a motion of Confidence.

The thing to note here is that the House of Commons would not be electing a Prime Minister - more a case of confirming or rejecting the Queen's choice of Prime Minister. And the new Prime Minister remains Prime Minister regardless of how the House of Commons votes. Either the motion of Confidence is passed, in which case the new Government can carry on until the normal dissolution date, or else it isn't, in which case there is an early general election, but the new Government is the Government. An incoming Prime Minister defeated this way does not have to resign - they simply face an early general election.

So, at the moment, all the House of Commons can do is oust a Prime Minister. Why should it be able to remove, but not choose, one?

There is a different situation in the Scottish Parliament, thanks to the mechanics of the Scotland Act 1998 covering the election of the First Minister, with a short guide being published. The Parliament needs to elect a First Minister within 28 days of one of these happening:

  • An election of the Scottish Parliament
  • The office of First Minister falling vacant; e.g. by death (Donald Dewar in October 2000) or resignation (Henry McLeish in November 2001)
  • The First Minister ceasing to be a Member of the Scottish Parliament other than dissolution - clearly either by writing to the Presiding Officer to resign as an MSP or by becoming disqualified (notice that one of the reasons for disqualification was becoming a "Lord of Appeal in Ordinary", i.e. a Law Lord - a post abolished by the Constitutional Reform Act 2005)

If the Parliament fails to elect within 28 days, then it is dissolved, and a fresh election is held. But there are two different types of election:

  • If it is held less than 6 months before the next election was due, then it replaces that election
  • If, however, it is held more than 6 months before the next election was due, it is an extraordinary general election rather than an ordinary general election and is effectively a super-by-election, with the next election occuring when was due

The May 2011 election to the Scottish Parliament saw the Scottish National Party obtain an overall majority, and Alex Salmond, the SNP leader and MSP for Aberdeenshire East was re-elected.

Could something similar apply to electing the Prime Minister? I see no reason why not. After a general election, the House of Commons votes on who should be Prime Minister, then the Speaker of the House of Commons informs the Queen of the identity of the Prime Minister-nominate, who is then invited to Buckingham Palace and asked to form a Government.

But what about mid-term changes? If it is - as in 2007 - a Prime Minister having declared their intention to resign, then the relevant party can proceed with its normal election process at a leisurely pace, and all that is needed is that once a winner is declared, the Prime Minister can resign and the House of Commons will elect the winner as the new Prime Minister.

A slightly different situation is that of 1990, with Margaret Thatcher being challenged as Conservative party leader, and then withdrawing after failing to win the first round. A quick process, taking about a week. These days, the Conservative leadership process is different, as a sitting leader can only be removed by losing a confidence motion (one of the Conservative MPs, not of the whole House of Commons), and then there is an election for a successor. A sitting Prime Minister could be encouraged to remain in office, albeit as a lame duck, while the election process is followed.

There is a third situation - a Prime Minister dies in office, or resigns suddenly before their party has elected a successor. In the Scottish system, if the post of First Minister falls vacant, then the Presiding Officer appoints an MSP to be Acting First Minister. On the two occasions this has happened, it has been during a Labour/Liberal Democrat coalition, with Jim Wallace - now the Advocate-General and Deputy Leader of the House of Lords - being Deputy First Minister, and therefore chosen to be Acting First Minister.

One benefit of this is that the new First Minister would be a Labour MSP, and hence Wallace, as a Liberal Democrat, would be ineligible to be chosen as leader of Labour's MSPs.

Currently we have a coalition Government, and in these instances it would be logical to choose an Acting Prime Minister from among the Liberal Democrats (presumably, Liberal Democrat leader, Nick Clegg, as Lord President of the Council) as none of them could become Conservative leader. Alternatively, no mainstream party allows a peer to become its leader, so in a single-party Government, the obvious choice for Acting Prime Minister would be the Leader of the House of Lords. If an MP from the sole or main governing party were chosen, then there is the possibility of them standing for leader and having the trump card of the incumbency factor.

A mid-term change could, of course, be caused by a change in Government. So why not replace the fortnight in the Fixed Term Parliaments Act with a fortnight in which to hold a Prime Ministerial election? The sitting Prime Minister could be re-elected, or the Leader of the Opposition could be elected Prime Minister and simply take over.

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