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GuyBarry
1245135.  Wed Aug 09, 2017 8:07 am Reply with quote

suze wrote:

If it were abundantly clear that no one was able to form a government - as in practice it would be if both the Conservative and Labour leaders had said that they couldn't do it - the Queen's Speech would in effect be blank. All it would say is "My government will call a vote to dissolve Parliament and hold a general election", and the Queen would probably delegate the task of delivering it.


I'm really sorry, but that's simply not possible any more. Section 2 of the FTPA lays down explicit conditions under which an early general election can be held, and section 3(2) says quite clearly "Parliament cannot otherwise be dissolved". It doesn't matter what motions get passed in Parliament. They can't vote to do something illegal.

If no one could form a government after a general election, then the previous PM would continue in office by default. It would then, presumably, be up to the leader of the other main party to table a vote of no confidence. Assuming it was passed, the other lot would then get 14 days to try to form a government, and not until those 14 days had passed would Parliament be dissolved and fresh elections be held.

At least, that's my understanding of the legislation. We won't know until it happens - which might be sooner than anyone thinks!

 
suze
1245138.  Wed Aug 09, 2017 9:00 am Reply with quote

I'm not seeing the problem here.

Immediately after a general election, the leader of the largest party is invited to see the Queen, and in the normal way informs Her Majesty that she intends to form a government.

But let us suppose that after this year's election, Mrs May had informed the Queen that she would not be able to form a government, and therefore tendered her resignation as Prime Minister. That resignation is not effective until someone else has been appointed PM, so for the time being she was still PM.

The Queen had then asked to see Mr Corbyn, who had also told Her Majesty that he would not be able to form a government. At this stage, Parliament had not met since the election.

Let us suppose that these two things have happened, and then switch to the present tense because it's easier to write in.

Parliament still has to meet on the appointed day - 650 MPs have been elected, and the Queen has commanded that Parliament shall meet. Mrs May is still PM since Mr Corbyn has declined the opportunity to replace her, and Cabinet ministers from the old government are still notionally in post.

But there is in no real sense a government, since no one has accepted the opportunity to lead it and nothing that it tries to do is likely to pass through Parliament. Meanwhile, Mrs May has had a txt from a slightly peeved Queen. "Hi T, rly need to no wots in my speech nxt wk. Come round at 5, bring Jez if u must. Liz x"

Mrs May now has two options. She might try to lead a minority government which would hang on for a few weeks until it was brought down by a confidence vote. The procedure governing that is set down in 2(3) of the FTPA.

But if she really considers the situation hopeless, she'll ask Mr Corbyn to visit the Queen with her. Together they will inform Her Majesty that no effective government can be formed, and that they are minded to proceed in the way that I outlined above. That would come under 2(1) of the FTPA, and I see no reason why it couldn't be done that way if the two largest parties were in agreement.

 
GuyBarry
1245140.  Wed Aug 09, 2017 10:04 am Reply with quote

suze wrote:
I'm not seeing the problem here.


Oh, I can foresee loads of problems. Very real ones as well.

Quote:
Immediately after a general election, the leader of the largest party is invited to see the Queen, and in the normal way informs Her Majesty that she intends to form a government.


No, that's not right. The leader of the largest party doesn't get the automatic right to form a Government. If they command an overall majority, then the conventions are clear. But if there's no overall majority, then the previous PM gets to stay on until it's clear that someone can command an overall majority. That may be the Leader of the Opposition (as in 2010), or the incumbent PM (as in 2017).

The reason why David Cameron was called to form a government in 2010 wasn't that he won more seats than Gordon Brown. It was that he succeeded in putting together a deal with the Lib Dems that would give him an overall majority. At one point the Lib Dems were in negotiations with Labour about forming a government, but they broke down (and they wouldn't have had an overall majority anyway).

Quote:
But let us suppose that after this year's election, Mrs May had informed the Queen that she would not be able to form a government, and therefore tendered her resignation as Prime Minister. That resignation is not effective until someone else has been appointed PM, so for the time being she was still PM.


OK.

Quote:
The Queen had then asked to see Mr Corbyn, who had also told Her Majesty that he would not be able to form a government. At this stage, Parliament had not met since the election.


Is that a realistic proposition? Labour said quite clearly after the last election that they would put their own Queen's Speech before Parliament if the Tories weren't able to pass theirs.

There's a precedent for this, in February 1974. Heath was the incumbent PM, but lost his Parliamentary majority. Labour had four more seats than the Tories. (The Tories had slightly more votes, but that's irrelevant in our system.) Heath stayed on for a few days to try to put together a deal with the Liberals and the Ulster Unionists, but it didn't work out.

Wilson was then invited to form a minority government, and put his Queen's Speech before Parliament. The Tories abstained, not wishing to be seen to bring about another unnecessary election after the one they'd just called. Wilson stayed on as PM and called another election a few months later where he just scraped a majority.

Now, the last bit would be impossible under the current legislation. If Corbyn found himself as leader of a minority Government, he'd just have to hang on in there unless two-thirds of MPs voted for an early election (unlikely) or he lost a vote of no confidence (entirely possible). Which could see us having elections every few months and no stable government whatsoever.

Quote:
But if she really considers the situation hopeless, she'll ask Mr Corbyn to visit the Queen with her. Together they will inform Her Majesty that no effective government can be formed, and that they are minded to proceed in the way that I outlined above. That would come under 2(1) of the FTPA, and I see no reason why it couldn't be done that way if the two largest parties were in agreement.


If the two largest parties agreed to cooperate, then we could have a "grand coalition" like they sometimes have in Germany - and indeed as Britain had during the Second World War, though for reasons of national unity rather than electoral purposes. But I can't see it realistically happening in this country in peacetime. The two main parties are far too hostile to each other.

 
dr.bob
1245142.  Wed Aug 09, 2017 10:18 am Reply with quote

GuyBarry wrote:
No, that's not the case. All MPs (including Ministers) stop being MPs as soon as Parliament is dissolved, but Ministers remain in Ministerial office. Theresa May was still Prime Minister during the recent election campaign, and indeed had to act in that capacity in response to the terrorist attacks in Manchester and London.


Interesting. Not just a quirk of the Scottish system, then.

I quite like the idea of having a PM who's said "sod this" and buggered off to the Bahamas or something, but who is still the PM because constitutional ineptitude leads to a replacement being impossible to find :)

 
GuyBarry
1245153.  Wed Aug 09, 2017 10:56 am Reply with quote

dr.bob wrote:

I quite like the idea of having a PM who's said "sod this" and buggered off to the Bahamas or something, but who is still the PM because constitutional ineptitude leads to a replacement being impossible to find :)


Well, after the 1997 election John Major famously said "I'm off to watch the cricket", and promptly decamped to the Oval.

Now, he'd just suffered a heavy election defeat, so it didn't matter. But what would have happened if there had been a hung Parliament after that election? Can an incumbent PM be forced to stay in office if they don't want to? I really don't know the answer to that, and I doubt whether anyone else does.

 
suze
1245155.  Wed Aug 09, 2017 11:30 am Reply with quote

GuyBarry wrote:
If the two largest parties agreed to cooperate, then we could have a "grand coalition" like they sometimes have in Germany - and indeed as Britain had during the Second World War, though for reasons of national unity rather than electoral purposes. But I can't see it realistically happening in this country in peacetime. The two main parties are far too hostile to each other.


It has happened in Britain in peacetime, but not since the 1930s.

But I would agree that under no circumstances could it happen now. I can't really see this happening, but even if Mrs May and Mr Corbyn did announce their intention to form such a coalition, fully half of the MPs in both parties would immediately resign the party whip and that would probably leave the grand coalition without a majority.

It is perhaps unfortunate, but it is the convention in Britain that the opposition votes against the government even when in fact it agrees with the government proposes. This convention is very occasionally suspended. The Tories voted with Labour to go to war in Iraq, even though they are now very happy to blame Tony Blair for that, and Labour voted with the Tories to permit the unexpected general election this year. It would be suspended once again to facilitate the calling of a new election if no one had any prospect of forming a viable government, but that's about as far as it's ever going to go.

 
suze
1245158.  Wed Aug 09, 2017 11:41 am Reply with quote

GuyBarry wrote:
Can an incumbent PM be forced to stay in office if they don't want to? I really don't know the answer to that, and I doubt whether anyone else does.


I don't either, but I suspect that the answer is "Yes" since - in theory at least - the Queen has the power not to accept the PM's resignation.

Discussions between the sovereign and the PM are never made public, but it is often suggested that King George V refused a request for a dissolution and a general election in 1910. (But granted it a few days later, after reading what The Times had to say about the political situation.)

The protocols are slightly different in Canada, but the Gov-Gen refused a PM's request for a dissolution and general election in 1926.

 
GuyBarry
1245163.  Wed Aug 09, 2017 12:15 pm Reply with quote

suze wrote:
GuyBarry wrote:
Can an incumbent PM be forced to stay in office if they don't want to? I really don't know the answer to that, and I doubt whether anyone else does.


I don't either, but I suspect that the answer is "Yes" since - in theory at least - the Queen has the power not to accept the PM's resignation.


OK, so what happens in this scenario? There's an indecisive General Election, and both main parties end up with (say) 285 seats. None of the smaller parties have the political will, or the strength, to give either party an overall majority.

The incumbent PM then says "I'm not prepared to put up with this", and tenders her (or his) resignation to the Queen. But the leader of the other main party isn't able to put together a majority either.

The Queen cannot, by law, order a dissolution of Parliament, for reasons that I've explained above. So there's no Prime Minister, but Parliament has to continue sitting.

I suppose the Queen could appoint a Prime Minister who doesn't have the confidence of Parliament - but then the Queen's role would immediately be thrown into question, because she's unelected and supposed to be above politics. And I expect that Parliament would throw that person out anyway.

Quote:
Discussions between the sovereign and the PM are never made public, but it is often suggested that King George V refused a request for a dissolution and a general election in 1910. (But granted it a few days later, after reading what The Times had to say about the political situation.)

The protocols are slightly different in Canada, but the Gov-Gen refused a PM's request for a dissolution and general election in 1926.


OK, but none of this is relevant any more because the PM can no longer request a dissolution.

Dissolution of Parliament, and the resignation of a Prime Minister, are two entirely different things. In theory, we could have Parliament sitting with no PM in office.

 
suze
1245174.  Wed Aug 09, 2017 1:25 pm Reply with quote

GuyBarry wrote:
OK, so what happens in this scenario?


It would get very messy very quickly, and in practice it's almost inconceivable that the Queen would completely refuse to accept the resignation of a Prime Minister.

But then Her Majesty has quite a number of theoretical powers that will almost certainly never be exercised. For instance, she can refuse to assent to an Act of Parliament. It hasn't been done since 1708 and it's procedurally harder for her to do it now than it was then, but it happened three times in Canada in 1937. Or - in theory - she could take back the Royal Prerogative to declare war, which as it stands is delegated to Parliament, and declare war on France herself.

If she ever did either of these things, it would lead to constitutional chaos and public uproar, but that does not mean that she absolutely can't. If she actually did, there's every chance that Parliament would fire her and declare someone else to be Queen - a power that it does, in theory, have, Again, it's almost unconceivable but not completely impossible.


Quote:
OK, but none of this is relevant any more because the PM can no longer request a dissolution.


No indeed, but the very fact that past sovereigns are believed to have refused such requests suggests to me that the sovereign can - but probably won't - refuse to do pretty much anything.

 
GuyBarry
1245182.  Wed Aug 09, 2017 2:23 pm Reply with quote

suze wrote:
If she actually did, there's every chance that Parliament would fire her and declare someone else to be Queen - a power that it does, in theory, have, Again, it's almost unconceivable but not completely impossible.


You're forgetting something. Our Queen isn't just head of state in the UK. She's head of state in 15 other Commonwealth countries - including Canada, where I believe you come from. And if there are to be any changes to the laws of succession in the UK, they have to be passed into law by all 16 countries, independently, according to the constitutions of those countries.

This is what happened when David Cameron changed the laws of succession to end the disqualification of those married to Roman Catholics, and to end the rules under which male descendants take precedence over females in the line of succession. It was all laid down in the Perth Agreement of 2011:

https://en.wikipedia.org/wiki/Perth_Agreement

The changes didn't come into law until 2015, one of the reasons being a judicial appeal in Canada which I believe has not yet been resolved. (Seems a little ironic that all this should have arisen from a discussion about sexism.)

Anyway, no, we can't just appoint someone else as monarch as we did in 1936 (and even then we had to consult the five Dominion prime ministers). Everything has to proceed in consultation with our Commonwealth partners, and that takes forever.

Of course, we could declare a republic - but that would require the consent of the people and huge constitutional upheaval. Can't see us going down that road any time soon. (Although given the resistance to Prince Charles as monarch in certain quarters, maybe it'll happen sooner than expected.)

Maybe the only answer is a revolution!

 
PDR
1245184.  Wed Aug 09, 2017 2:34 pm Reply with quote

Theoretically the Queen could abdicate the UK throne (or even just the English throne) whilst remaining the head of state of the other dominions. Her roles as HoS of Australia, Canada etc are constitutionally things in their own right are are not linked to her role as British Sovereign by anything other than history.

In theory if the Westminster parliament decided to remove or change a sovereign (which they could probably do de facto if not de jure) it would be up to the other dominions as to whether they each chose to follow suit or not - it would not be something the UK could impose.

PDR

 
suze
1245207.  Wed Aug 09, 2017 4:53 pm Reply with quote

It is generally believed in Canada that the laws governing succession to the throne are incompatible with the Canadian constitution. There have been a couple of attempts to have the Canadian courts actually declare them so, but each time the matter has been fudged rather than dealt with.

So I think PDR is about right. If Parliament in Westminster chose to declare Bradley Walsh to be King of the United Kingdom, then he would be so.

The way that the Statute of Westminster is worded suggests that there is then a democratic process involving the seventeen Commonwealth realms. Jamaica has the power to say "Actually, we'd rather that Usain Bolt were the new King", and send that back to Westminster for consideration.

But it wouldn't work like that in reality. Britain says "King Bradley, take it or leave it", and the others either accept this or withdraw themselves from the Statute of Westminster (as South Africa did when it became a republic).

So if Canada decided that it really couldn't be doing with King Bradley, it would then have to do one of two things. It would either proclaim King Justin of Canada (I'll let you decide which Justin I meant), or it would become a republic. I think the latter would require a referendum, but the former wouldn't.

 
ali
1245216.  Wed Aug 09, 2017 6:25 pm Reply with quote

Hmm. Justin Chatwin, probably.

 
dr.bob
1245235.  Thu Aug 10, 2017 4:23 am Reply with quote

GuyBarry wrote:
Can an incumbent PM be forced to stay in office if they don't want to? I really don't know the answer to that, and I doubt whether anyone else does.


I don't think anyone can be forced to do a job they don't want to, still less the PM. All he'd have to do is start proposing insane laws and causing diplomatic incidents before people realise it's a good idea to just get rid of them.

Hmmm, maybe The Donald really doesn't want to be President :)

 
PDR
1245241.  Thu Aug 10, 2017 5:00 am Reply with quote

It depends what you mean by "forced", of course. I don't think anyone would be getting out the whips & thumbscrews, but from a legal standpoint it could be argued that a PM (or indeed any other minister) can't leave office until released from the oaths they swore when they accepted the post. There's the Official Oath:

"I, (name), do swear that I will well and truly serve Her Majesty Queen Elizabeth in the office of (office). So help me God."


...and then their oath as a privvy counsellor (where appropriate)

"You do swear by Almighty God to be a true and faithful Servant unto the Queen's Majesty, as one of Her Majesty's Privy Council. You will not know or understand of any manner of thing to be attempted, done, or spoken against Her Majesty's Person, Honour, Crown, or Dignity Royal, but you will lett and withstand the same to the uttermost of your Power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will, in all things to be moved, treated, and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and will keep secret all Matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Counsels shall touch any of the Counsellors, you will not reveal it unto him, but will keep the same until such time as, by the Consent of Her Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the Queen's Majesty; and will assist and defend all Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty, and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates. And generally in all things you will do as a faithful and true Servant ought to do to Her Majesty.

So help you God."


[affirmation versions of both are available for those who would prefer them to the religious ones]

In fact you can't resign from the privvy council at all - appointments are for life unless you are expelled by the monarch. But you can stop going to the meetings if you aren't explicitly summoned by name.

PDR

 

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