The mysterious case of the 55% solution

"But Holmes," I ejaculated. "The 55% rule hidden in the coalition agreement. Surely it’s the end of democratic accountability as we know it."

Holmes turned.

"Hah!" he cried. "You see Watson, you see but you do not observe. The hysteria of people who ought to know better about the 55% rule is an attempt to disguise their real concern about fixed term parliaments."

I found this hard to follow. Holmes observed my confusion.

"Watson – fixed term parliaments were supported by Labour and Liberal Democrats at the election. They have been introduced for the devolved parliaments and assemblies – but some people are concerned that they do not work. They may encourage artificial manipulation of economies, and deals mid-parliament to change governments. But those in favour believe that taking the power to determine election dates out of the hands of the Prime Minister prevents possible abuses of the political system."

I nodded – my mind addled.

"If people do suppoert fixed term parliaments then you need a mechanism to deal with issues where the government may change during the term (for example, through by-election defeats, or because a coalition breaks down). In those cases where there is a fixed term parliament there needs to be a mechanism to change the government without necessarily requiring an election."

"but how would you change the government?" I enquired exasperatedly.

"Watson, under our current rules (where there are no fixed terms) a vote of confidence brings down the government, AND it is argued forces a general election (although to be honest Watson it is not clear that there is a rule to that effect for the resignation of a government if satisfied that a new leader would have the confidence of the Commons would mean the Queen need not grant a dissolution)."
 
I cast my mind forward to Mr Callaghan. Could Michael Foot really have formed a government if Mr Callaghan had resigned? I shook my head.

"In a fixed term parliament, the rationale for the fixed term is that it cannot be used for political advantage. Thus fixed term parliaments need to distinguish between the vote of confidence (which forces down the government and gives the opportunity for the creation of a new government) – and the vote to dissolve the parliament and hold a general election."

Two distinct ideas? I might as well be back in Afghanistan. What was the alchemy of which Holmes spoke? Two distinct concepts? I was confident that a Glasgow Member of Parliament would be wilfully unable to pick up the nuance.

"But the two can’t be separated, Holmes," I protested.

Holmes dismissed me peremptorily. "That distinction between the confidence vote and the vote for dissolution is embodied within the british constitution already my dear Watson. In Scotland. In the Scotland Act 1998. Under those rules a first minister can be dismissed and appointed by a simple majority in the parliament (50% plus 1 of those who vote). If the first minister is dismissed then section 46 provides that a new first minister (and government) has to be appointed within 28 days. If there is not, then section 3 provides that a new election must take place."
 
"So a confidence vote can force an election?"

"Yes. If no new government can be formed."

"So what about Parliament forcing a new election?"

"Well, Watson in addition section 3 of the Scotland Act provides that the usual fixed terms for elections can be displaced by a 2/3 majority of votes in the Parliament."
 
I started to see that confidence and dissolution could be separated. But surely this was beyond the wherewithal of the Glasgow Labour MP. But perhaps he was attempting to use this for political advantage? I dismissed the thought. Surely not even a West of Scotland Member would do that.

"So, Holmes," I asked, "What is the 55% rule?"
 
"My dear Watson it is found in the coalition agreement and the wording there is quite clear that it only applies to dissolution. It therefore does not affect a vote of confidence, although the detail has not yet been expressed. I deduce though from the general position of fixed parliaments elsewhere in the United Kingdom, and elsewhere around the world."

"So, " I asked, "a vote of confidence can still remove the government?" 

"Yes."

"But what then?"

"A palpable hit Watson. For we do not have the details as to what happens then."
 
Holmes paused and clasped his fingers together.

"The general approach in other systems with fixed term parliaments would be to have something like the Scottish model and provide that a government would need to be formed within a fixed time period ( 28 days, or perhaps fewer) otherwise there would be an election."

I had almost grasped it.

"Do you understand Watson?"

I sat impassive. Then clasped my hand and pushed it into the arm of my easy chair. "No, Holmes. I don’t."

Holmes grinned, and picked up some buttons Mrs Hudson had left lying loose.

"Let’s say the Purple party is in power in Utopia with 43% of the seats." Holmes scattered purple buttons. "The Brown party has 40%." He scattered brown buttons. "And 17% of the representatives are from the Black party." More buttons were placed on the table. "The Purples sit as a minority government with a confidence and supply arrangement with the Blacks." He gathered the purple and black buttons together. They created a larger pile than the browns. "The Browns then change their leader in the second year of Utopia’s four year fixed term parliament." Holmes threw a brlown button into the hearth, and picked up a large brown button from Mrs Hudson’s box. "The new leader introduces new policies. Let us say, Watson that the Browns are in favour of jam today." Holmes laughed. "The Blacks are a fickle bunch. They like this. So, the Blacks and Browns then pass a no confidence motion against the Purples who only promise jam tomorrow." Holmes rearranged the buttons. The combined pile of black and brown buttons appreciably outnumbered the purple buttons. "The effect of this is that the government of the Purples will be forced out. But the key point in fixed term parliaments is that the confidence vote impacts on the government, but it does not force the calling of an election."
 
I looked bemused.

Holmes sighed. "This is because, unless two of the parties get together to vote for dissolution then the parliament will not be dissolved as there is a threshold in the fixed term parliament that prevents a majority government abusing its power and calling an election.
 
"But what happens to the government?" I asked. "They have been defeated.

"Well, Watson, now the Blacks pledge that they will support the Browns in government on a confidence and supply basis."

Slowly I realised, "The Browns become the government?" Holmes nodded. "They barter (as their predecessors had) in passing legislation. They rely on the support of the Blacks in issues of confidence."

And Holmes exclaimed, "On expiry of the fixed term of 4 years the election is held."

"But why 55%?"

Holmes thought. "I think this is cynical opportunism. The figure is just beneath the percentage of the coalition parties and would allow them to force an election contrary to the spirit of the fixed term rules."

"So what would you do Holmes/" I asked.
 

"If the purpose of fixed term parliaments is to stop prime Ministers taking political advantage and call elections and taking account the reality of politics at Westminster and the fact that many parliamentary majorities in recent years have exceeded that 55% threshold the threshold is potentially too low allowing a majority party to use the power to dissolve parliament whenever it liked – ignoring the fixed term."

I sat bemused, wondering why has no-one from the coalition been able to present what seemed from Holmes a perfectly presentable case. And why had they struggled when interviewed by journalists?

Holmes ended, "If people are against fixed term parliaments – let that lie at the centre of their argument. Some are in favour of them, others are against. I, Watson, remain unsure. But the 55% rule (or some higher variant of it) is an inevitable consequence of fixed term parliaments.  Let people argue about the real point of principle – the fixed term parliament – and consider its advantages and disadvantages – rather than focusing on a red herring."

Holmes lay down, his arm theatrically raised to his face.

"Leave me now Watson."

I prepared to retire, but urged Holmes, "Please ensure that if you are taking that stuff this evening you avoid the 55% solution."
 

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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18 Responses to The mysterious case of the 55% solution

  1. elmyra says:

    Having spent two days getting my head around this and finally reached the same conclusion, I think this is an awesome explanation! Thanks!

  2. Anonymous says:

    Thank goodness…
    …a sign of sanity in a world (OK, Country) that seems to have gone mad. Not helped by some inaccurate news reporting at the start of the day, but even now people won’t let it go πŸ™‚

  3. hoiho says:

    Oh, bravo, sir, an excellent catch!

  4. Anonymous says:

    Hold on!
    I don’t think this makes your case at all.
    In the Purple, Brown and Black scenario you paint, the no confidence motion could eject the government without causing a dissolution if you simply removed the PM’s right to ask for a dissolution.
    In your scenario, no threshold ever came into operation, did it? It wasn’t necessary.

    • Re: Hold on!
      My post is a jeu d’esprit. Forgive me. And I am aware it does not deal with all of the issues, but was intended to illustrate the distinction betweent he 2 types of vote (which some people have missed – in some cases (not looking at any MPs in particular) wilfully).
      A vote for dissolution based on 50% plus one allows any government with a majority even of 1 seat to then dissolve parliament at whim – to their electoral advantages even within a fixed term system. A threshold (which I would have at 2/3 not 55%) is a means of preventing that if you have fixed term parliaments.
      The focus has been on the opposition and confidence votes and in that case I think the Scottish 28 day rule (which could be shortened to 1 days happily) gives the power if no new govt can be formed. That seems reasonable in that it allows the possibility of creating a new government but there can be no excessive impasse.
      However, if fixed terms are to be supported (and as I have indicated I am agnostic on this) a threshold of appreciably above 50% (for me 2/3) for a dissolution vote prevents potential abuse by the majority party – while allowing the opposition to force down a government and force a new election (provided the time limit following a confidence vote is there) .
      Best wishes
      Scott

      • Re: Hold on!
        by 1 days I meant 14 or 10 in the second line of 3rd para.

      • Anonymous says:

        Re: Hold on!
        Okay, Scott. I know it’s a fun imaginative scenario.
        I was interested because it didn’t deal with today’s main point of contention at all, because the Browns and Blacks actually have more than 55%; the fact that there was no election was not because of any such threshold, but simply because you removed the right of the PM to seek a dissolution. I though it especially telling, after my having suggested all day that that is the only change needed, that your scenario actually proved the point.
        On Scotland – if you’re happy with the 28 day rule, then we’re closer than it might appear (although I’m an atheist on fixed terms, not an agnostic; I don’t believe in them). The 28 day rule is just a delayed right for a majority to force an election. If you like it, you’re veering towards atheism too, I think. And if you’re happy for it to be 10 days, great. I can wait ten days for a dissolution. I don’t think there’s any point whetever in such legislation, but I could live with it.

        • Re: Hold on!
          I’ve been marking exams for much of yesterday so wasn’t following the toing and froing of all of the blog posts and comments. The post was originally addressing the concerne xpressed by one MP (and others) which (in an odd way) did not distinguish between confidence and dissolution votes.
          My impression of the 55% proposal plus fixed term is to remove the right of the PM to seek dissolution and in the Westminster context a rainbow coalition could – in that case – be established as the new government until the fixed term ended.
          I would be astonished if the final bill did not provide for a time limit to establish a new government in the event of a confidence vote being lost. The model in s3 and s 46 of the scotland Act is pretty good I think, and to avoid the problem of a majority party abusing the power to call an election at a perceived time of maximum popularity, I would seek a 2/3 majority rule. To that extent I am against the 55% rule which cynically allows the coalition to call an election if they both agree, contrary to the fixed term promise.
          As you indicate I don’t think we’re that far apart – and I hope you take the original post in the manner in which it was intended, to try to clarify some of the issues, but in a comprehensible way. I intend to do a proper legal post on this in due course (if marking permits πŸ˜‰ )
          Best wishes
          Scott
          PS I think this is stage 1 of the move to voting reform where more hung parliaments, with possible mid term changes of government becoming the norm

  5. Anonymous says:

    Good explanation, an interesting way of putting it. I think the time has surely now moved to us really ignoring what is the side show of the 55% enigma, and in to properly deciding whether fixed term parliaments are what this country needs or not. If we think they are, we have to accept that, apparent (but falsely) “undemocratic” measures have to come part and parcel with that new way of things. If we think they aren’t we have a supplementary question of whether it is still worth trying to take the power of dissolution out of the hands of the PM, and into the hands of the house.
    @niaccurshi

  6. lonemagpie says:

    “Watson – fixed term parliaments were supported by Labour and Liberal Democrats at the election.

    Though of course Lord Adonis (and presumably Mandy) has already forgotten this and is complaining that it’s a constitutional mockery.
    The twat(s).

  7. Anonymous says:

    Truely awesome
    Perfect summary of the situation. Fantastic

  8. Anonymous says:

    Red herring? Hardly.
    “Holmes ended, ‘If people are against fixed term parliaments – let that lie at the centre of their argument… the 55% rule (or some higher variant of it) is an inevitable consequence of fixed term parliaments. Let people argue about the real point of principle – the fixed term parliament… rather than focusing on a red herring.”
    What makes anyone think that those repelled by the 55% rule are against fixed terms, when the proposal is itself contrary to fixed terms? And why should those of us who prefer regular elections remain silent about a provision that Mr Holmes himself considers an act of “cynical opportunism”?
    Permitting a majority – whether 55%, 67% or any other figure – to vote dissolution is not an inevitable consequence of fixed terms. Nor is it desirable. Premature elections should surely be a last resort in the event of chronic parliamentary deadlock that prevents the governance of the country, rather then the privilege of a government with a healthy majority. And it’s in such a stalemate that a majority for dissolution is least likely to be found.
    Let dissolution occur only after the Opposition (and perhaps others) have had a chance to form a government and it is clear that no viable majority can be assembled. That means taking the choice from MPs, and specifying the circumstances (as in Scotland’s 28-day clause) under which the regular electoral cycle can be interrupted (and only interrupted, with an “unscheduled” Parliament to serve only whatever remains of the full term of its last regularly-elected predecessor, and the next election to follow as originally scheduled regardless of intervening polls).
    This is no red herring: as the proposal stands (and it’s indeed shocking that ministers have yet to clarify a fundamental and dangerous alteration of the rules under which this Parliament was elected), it threatens to paralyse future government while uniquely favouring one likely combination of parties in the present Commons. It’s a bad proposal, and it should be dropped.
    – Dave Parker

    • Re: Red herring? Hardly.
      Mr Parker,
      Very many thanks for the comment – which is a good one. I don’t think I disagree with you and any confusion may arise from the reason the blog post was originally written. I personally am equivocal on fixed term parliaments – they work well in Scotland and I can see advantages and disadvantages.
      The blog post was, as I mention in the comment to Carl Gardner above, a jeu d’esprit partly inspired by the confusion around the distinction between a confidence and dissolution vote. It was partly intended to demonstrate that there were examples of the two being distinct and to show how that worked.
      If we are to have fixed term parliaments I am against the 55% rule because I think it is too low and as I say in the piece it strikes me as cynical opportunism to allow the coalition to dissolve but no other combination of parties.
      But I believe that if we have fixed term parliaments that carries with it an implication that a government can be changed mid-term without an election; and therefore implied a separation of dissolution and confidence. A confidence vote though needs to allow a change of government but also to make provision where a new government cannot be found (as with a time limit which I would prefer at 14 days given that a post-election coalition can be tied up in 7).
      I think that there has been a conflation of the arguments with many of those agin 55% really being against fixed term parliaments. The 55% rule is a problem – for the reason I note above. If the two are separated and the principle that a confidence vote and dissolution vote are distinct and embed the concept of mid-term changes of government (allowing a so-called unelected Prime Minister (an odd concept in a parliamentary democracy like the UK, but never mind)) then attention can focus on the scandalous aspect of the 55% rule – and additionally attention can focus on the consequences of a successful confidence vote in a fixed term parliament where no new government can be found.
      If we are to have a fixed term parliament thereby removing the power to dissolve parliament from the control of the Prime Minister I would be loath to support a 50% plus one rule for dissolution because that runs counter to the concept of removing the power from the PM. While notionally moved to Parliament the whipping system would give a 50% plus 1 majority to most governments in the British context. An enhanced majority of 2/3 accompanied by a time limit for formation of a new government would address the problems.

      • Anonymous says:

        re: Red herring? Hardly.
        I agree very strongly that the issues of confidence and dissolution should be constitutionally “de-coupled”: a government that co longer commands confidence should have no right unilaterally to seek a fresh term when its opponents may be capable of governing in its place. No confidence should entail loss of office, and just that, with the outgoing government remaining in post only in a caretaker capacity until a successor is appointed. Only when such a successor can’t be found should dissolution be considered.
        I tend toward the longer rather than shorter time limit – Continental countries can go for months with only a caretaker government while a new coalition is put together, and I think it’s important that the premiership isn’t merely limited to the two biggest party leaders (or for that matter to the two biggest parties or to party leaders at all). It’s only when all efforts have been exhausted and failed that early dissolution becomes necessary, and that should be the effect of any new legislation. I agree that the 55%’s a diversion to the extent that I don’t think any unnecessary dissolution should be permitted: let fixed terms be truly fixed except when government is otherwise impossible.
        – Dave P

  9. Anonymous says:

    Brilliant
    Excellent explanation, a largely true point, and wittily written to boot.
    Bookmarked accordingly.
    Morus

  10. Anonymous says:

    Power to the monarchy!
    You fail to recognise that the Scottish Parliament selects the first minister and that the first minister must secure the support of a simple majority of MSPs. If it fails to select a first minister within 28 days it is dissolved.
    The UK prime minister is appointed by the monarch. The prime minister does not resign on a no confidence vote, but the government does. Callaghan did not resign on a no confidence vote, he asked the Queen to dissolve parliament.
    Under this proposal, if the government lost a confidence vote, like the budget or Queen’s speech, Cameron would be obliged to remain as PM until the Queen was able to appoint someone who she felt was able to command the confidence of parliament. Cameron would get first go at forming a new government and would be free to have a go at governing alone.
    There is a significant risk that the monarch would be politicised. Taking away the PM’s ability to call elections to suit himself is a good thing, but politicising the monarchy is worse.
    Fixed term parliaments have their merits, but are difficult to implement democratically without making other significant constitutional reforms. It may be that an elected head of state needs to come first.

  11. casiguapa says:

    My only issue is this
    should a government fall under the 55% rule, having had all the hoopla about “unelected members of government“, I don’t see how a new government could have a mandate in the eyes of the electorate if they didn’t have a say in matters. That’s effectively where the shouts of undemocratic are coming from.
    Essentially the 55% rule is enabling what the Labour party did with Blair/Brown and look how well that went down with the public!

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