Friday, December 05, 2008

A Zero-Day Class Break!

Well I didn't expect that - it looks like the Canadians have found a rather serious exploit in Westminster 2. And as far as I can tell, it probably affects Westminster 1 through 3 as well. Yes, we've got a class break on our hands!

Now, to understand this we need to realise that a very important part of the constitution exists only as a letter to the editor of The Times. Seriously. An anonymous letter to the editor of The Times. I am not joking. The procedure I described in the last post rests on the so-called Lascelles principles, which were laid down in the early 1950s by the King's private secretary, Sir Alan "Tommy" Lascelles. Here is the text.

To the Editor of The Times

Sir,—It is surely indisputable (and common sense) that a Prime Minister may ask—not demand—that his Sovereign will grant him a dissolution of Parliament; and that the Sovereign, if he so chooses, may refuse to grant this request. The problem of such a choice is entirely personal to the Sovereign, though he is, of course, free to seek informal advice from anybody whom he thinks fit to consult.

In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons. When Sir Patrick Duncan refused a dissolution to his Prime Minister in South Africa in 1939, all these conditions were satisfied: when Lord Byng did the same in Canada in 1926, they appeared to be, but in the event the third proved illusory.

I am, &c.,


April 29.
It should be clear enough that a Prime Minister who loses his or her majority and can't immediately restore it doesn't automatically get another chance at the polls. This is necessary, in order to observe the principle that the will of the people is expressed in a Parliament they elect.

Now, it's also clear that this is a weird kind of constitutional text. Some of its features are obviously bound by context; the bit about the national economy would seem to give the monarch a bizarrely large role in Treasury policy, but this is very much a document of its time, a time of menacing war debts, a fixed and overvalued exchange rate, the Sterling balances, and whatnot. According to Peter Hennessy, this principle has been dropped from the Cabinet Office file some 30 or more years ago.

And of course, it's weird that Lascelles should choose to express himself in this way, rather than issuing a statement, getting a legal opinion, or asking the Government to put the matter before Parliament. Perhaps he found it so obvious that it didn't need a more formal statement? Or so controversial that he didn't want to go on the record? But then, why did he go public at all?

I don't see any reason to think that the Canadian parliament is unable to do its job, or that it no longer represents the electorate. Further, it evidently has another candidate, and written assurances to that effect. And although the Lascelles principles are a British document, they are based on Canadian precedent, so you can hardly deny they have standing. It seems there has been a grave LDQN error - can they really have allowed a prime minister just to get rid of parliament because he doesn't want to lose?

But ha. Harper didn't ask for a dissolution, but only prorogation, and Lascelles doesn't make any mention of prorogation. Here's the bug. Is there any way to stop a PM from proroguing again, and again? Is there, in effect, a way of getting root access to the executive?

This is especially interesting for a number of reasons. There have been various Acts of Parliament recently that strengthen the ability of the executive to govern by itself, notably the Civil Contingencies Act, which contains powers which almost amount to rule by decree. If it's possible to kill confidence votes by proroguing for any or no reason, a malicious PM (or actually almost any other cabinet minister, having first invoked the CCA) could declare an indefinite state of emergency with the help of a weak LDQN. And, at some point in the near future, we're going to replace ours. I'm fairly confident in the current one, but the likely replacement is both flaky and given to statements a lot of people consider unsuitably partisan.

It's high time to legislate for the whole mess.

Alternatively, if a letter to The Times can be part of the constitution, surely so can a blog post? Perhaps I'd better get in there first - it's the only way to be safe. Let's just say that prorogation exists to do two or maybe three things. The first is to send the MPs on their summer holiday. The second is to start the dissolution process. The third is to stop Parliament if for some reason it's utterly impossible for it to meet.

The first we can surely leave to the Speaker. The second we could simply roll up into dissolution - it doesn't do anything useful. The third, well. In 1941 the German air force wrecked the Commons chamber, but the Commons reconvened over the road in Church House. Obviously we need some contingency planning, but we don't need a way to get rid of Parliament altogether.


Anonymous said...

Well said, this is exactly right. It sets an awful precedent.
In the case of Canada, the GG is almost purely symbolic and is pretty much expected to do as the PM asks, so the LDQN is just a stub.
I dread to think the sort of screaming fit Harper would have had if the GG did otherwise.

Tim Roll-Pickering said...

The biggest advantage of the prorogation is that it has allowed time to pause and think, for the proposed coalition unity to demonstrate itself (and given the rumblings emerging from the caucuses it's clear that just the assertion of two leaders and one outgoing isn't enough) and also allow the Liberals to get a permanent leader in place.

One relevant precedent that a lot of people have forgotten lately is Ireland in early 1982. The previous summer general election had resulted in an ultra tight Dail - the Fine Gael/Labour coalition had about one more seat than Fianna Fail, with various micro parties and hunger strikers holding the balance - and was defeated on the budget in early 1982. Garret Fitzgerald immediately went to the President, Patrick Hillery, to request a dissolution and Fianna Fail leader Charles Haughey and other senior FFers started trying to ring the President to put pressure on him to deny Fitzgerald a dissolution but instead ask the Dail to nominate an alternative Taioseach (i.e. Haughey). Hillery would have none of this and gave Fitzgerald the dissolution requested. There was also a case in 1994 when the government changed mid Dail - Labour walked out of a coalition with Fianna Fail over a scandal than engulfed Taioseach Albert Reynolds, and then when the minority administration proposed Bertie Ahern in the Dail he was defeated by a new coalition of Fine Gael, Labour and the Democratic Left, led by John Bruton.

It's true that the Irish have added a formal vote in the Dail to nominate the Taioseach, but it's a clear Westminster system, just one that has a clear cut test for whether a new government has the support of the Dail before it's installed.

"Is there any way to stop a PM from proroguing again, and again?" The answer is yes - there are various powers, most notably the budget ("supply") that can only be secured from Parliament and the Governor General can quite easily draw a line between an initial "breathing space" prorogation and further prorogations to keep deferring the testing of Commons opinion.

As for anonymous letters to The Times, it was quite common in that period for senior civil servants and politicians to use that channel to transmit an opinion to the world without being seen to publicly wade in to what might be a contentious issue.

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