Parliamentary Affairs (2013) 66, 540–556
Advance Access Publication 28 February 2012
doi:10.1093/pa/gss001
The Problem of the ‘Lame Duck’ Government:
A Critique of the Fixed-term Parliaments Act
1
2
Kingston University, UK;
St. Edmund Hall, Oxford University, UK
*
Correspondence: [email protected]
Under the UK Fixed-term Parliaments Act, apart from a motion of no confidence,
the only way to obtain a dissolution is by an absolute majority of at least twothirds of the House of Commons. However, it might be possible for a motion
of no confidence to be engineered by the government against itself. This
would seem to defeat the purpose of the Act, and ought only to be permitted
if the government is no longer capable of acting because of lack of support in
the House of Commons. Control on the exercise of this power should therefore
lie with the courts. The Canadian Constitution is insufficiently similar here, but the
German Constitution offers a possible model for judicial control. It allows for governments feeling themselves unable to act to ask for a vote of confidence, intending to suffer a defeat leading to dissolution of the Bundestag; and this can be
challenged in court proceedings.
One of the features of the coalition agreement between the Conservative and
Liberal Democrat parties to form a new government for the UK in May 2010
was that there should be a fixed five-year term for current and subsequent parliaments. The Fixed-term Parliaments Act giving effect to this proposal became law
on the 15 September 2011.
The ability of the UK Prime Minister to ask for and obtain a dissolution of
parliament and a general election at any time of his or her choosing (because
by convention the monarch cannot refuse) has become a controversial feature
of the UK Constitution. The Prime Minister would select a point in time when
the governing party is riding high in the opinion polls and hold a snap election.
The power to call an election is a very useful one and a Prime Minister can use it
to make capital out of short-term successes, to forestall the prospect of future
unpopularity or to wrong-foot the opposition.
# The Author [2012]. Published by Oxford University Press on behalf of the Hansard Society; all rights reserved.
For permissions, please e-mail: [email protected]
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Raymond Youngs1,* and Nicklaus Thomas-Symonds2
The Problem of the ‘Lame Duck’ Government
541
1
See an account of this period in Thomas-Symonds (2010) pp. 234– 235. The Prime Minister’s notice
to the press and correspondence between G.M. Young and Sir Alan Lascelles is to be found in the
Prime Minister’s office papers in the Public Records Office, PREM 8/963.
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Why then in the interests of discouraging government opportunism and
promoting equal treatment of government and opposition parties, should parliaments not be elected for fixed rather than maximum terms? Difficulties with the
concept of maximum term parliaments first surfaced in UK politics with a very
British concern for putting the Crown in a difficult position. Since the coming
of mass democracy in 1918, no exclusively peacetime parliament had gone its
full five-year term when, in the fifth year of the 1945 Labour government,
Prime Minister Clement Attlee on 13 October 1949 ended speculation of a
1949 election by telling the press that he had decided to advise the King not to
dissolve parliament that year. The famous historian G.M. Young criticised
Attlee in a letter to the Sunday Times for verging on unconstitutional behaviour
and entered into correspondence on the matter with the King’s principal private
secretary Sir Alan Lascelles arguing that parliament could not simply be ‘allowed’
to expire.1 In the event, the King was spared any difficulty when Attlee called an
election for 23 February 1950 some months before the ‘expiration’ of the 1945
parliament under the Parliament Act of 1911.
Yet Attlee’s successors as Prime Minister in post-war British politics have taken
advantage of the flexibility offered to them in calling elections. Attlee himself,
winning a tiny majority of five seats in 1950, and facing a situation of ill MPs
being forced to attend parliamentary votes to keep the government afloat,
called a further election on 25 October 1951. On taking over as Prime Minister
Anthony Eden sought his own mandate with the general election held on 26
May 1955; Harold Wilson, Margaret Thatcher and Tony Blair all went to the electorate after four years, not five, at times of their own choosing and twice—on 31
March 1966 and 10 October 1974—Harold Wilson sought a greater mandate
than recent general elections—15 October 1964 and 28 February 1974—had provided. Indeed, even Edward Heath on 28 February 1974 was able to ask the British
electorate the question ‘Who Governs Britain?’
The example of Harold Wilson illustrates the advantages of the flexible,
maximum-term Parliament. For sometimes a government needs to force an
early election. There can be times in history when a government becomes paralysed due to, for example, a wafer-thin majority, a divided government party or
disloyal MPs and there is therefore a prospect of the government remaining
incapable of decisive action until the end of parliament’s lifetime, which may
be several years ahead. Of course, in such cases, the opposition party or parties
may force the issue by proposing a vote of no confidence in the government.
The opposition is unlikely to do so, however, if the opinion polls indicate that
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it cannot win an election at the moment, or that its position will become stronger
in time. It may be better for it to wait for the government to incur further public
disapproval by continuing to act indecisively.
The 1964 General Election had yielded a majority of just four for Wilson and
the need for Labour MPs to attend parliament in full force to ensure vital votes
were won was taking its toll. On the other hand, the government’s popularity in
the country appeared to have increased, so the Conservative opposition had no
motivation to table a motion of no confidence at that point in time. Nevertheless,
it was arguably not in the interests of the country that the government should
remain indefinitely limited in its capacity to act. In fact Wilson called an election
and won it with a substantial majority. A similar situation arose in 1974, when
Wilson became Prime Minister of a minority government following the first election of that year, and then won a small majority in the second.
However, it was during the long-standing Conservative government of 1979 to
1997 that there was the greatest interest in introducing fixed-term parliaments,
particularly from opposition parties. In March 1983 Labour MP Austin Mitchell
introduced a Ten Minute Rule bill on four-year fixed parliaments (Hansard—
House of Commons, 1983, vol. 38, cols 841 – 844). In February 1987 another
Labour MP Tony Banks used a Ten Minute Rule bill to introduce a fixed five-year
parliament (Hansard—House of Commons, 1987, vol. 109, cols 1003 –1004).
The Liberal Democrat Lord Holme of Cheltenham also called attention to the
case of fixed-term parliaments in the House of Lords in May 1991 (Hansard—
House of Lords, 1991, vol. 529, cols 244 – 262; Norton, 2000). Later in March
1992 Tony Banks introduced a second bill providing for fixed-term parliaments
(Hansard—House of Commons, 1992, vol. 205, col. 744). A further Labour
MP Jeff Rooker introduced another bill in February 1994 (Hansard—House of
Commons, 1994, vol. 238, col. 658).
By this time Rooker was not a lone MP seeking to bring the matter to Parliament’s attention. His Parliamentary Elections (Number 2) Bill received its first
reading on 20 May 1994 and sought to implement the report of the Working
Party on Electoral Systems led by Professor Raymond Plant and commissioned
by the Labour Party. This included the introduction of a four-year fixed parliament. This reflected support for the concept in Labour’s policy review under
Neil Kinnock Meet the Challenge Make the Change and was supported by the
Labour and Liberal Democrat manifestos of 1992 (and the Liberal Democrat
manifesto of 1997). Under the Labour governments of 1997 – 2010, this issue continued to surface periodically: another Ten Minute Rule bill was introduced by
the Labour MP Tony Wright on 1 March 2001, and the Liberal Democrat MP
David Howarth introduced a fixed-term parliaments bill in 2008 (Hansard—
House of Commons, 16 May 2008, cols 1703 – 1706).
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This increasing interest in fixed-term parliaments by politicians was reflected
in the academic debate. In 1995, Professor Robert Blackburn set out the unfair
advantage that the governing party has as its Prime Minister is able to call an election at the time of his or her own choosing: since this is a prime ministerial power
it not only gives an advantage to the party in government but also to the Prime
Minister over his or her colleagues (Blackburn, 1998). In fact the question of the
tactics of election timing spawned a debate of its own, and was considered by
Alistair Smith (Smith, 2004). Vernon Bogdanor predicted in 2009 that tactical
manoeuvrings would lead to any coalition agreement between parties after the
2010 General Election containing a term setting a minimum duration, which
could be the length of a parliament (Bogdanor, 2009, pp. 132– 133). Concern
for the preservation of the monarchy remained a factor: in 1998, Blackburn
argued that removing the personal discretion of the monarch would protect
the Crown in the future (Blackburn, 1994, p. 61).
The certainty offered by a fixed-term parliament is often set against the loss of
flexibility which it brings. Yet comparative experience illustrates that the debate is
more complex than a certain versus an uncertain position. The devolved legislatures of Scotland, Wales and Northern Ireland created respectively by the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland
Act 1998 all introduced fixed legislative terms with provisions for an extraordinary dissolution if at least two-thirds of members voted in favour of the said
dissolution or if the legislature failed to nominate a first minister within 28
days of an election. Further afield Robert Hazell has classified international
experience into four categories (Hazell, 2010, p. 21) with a variation from the
completely fixed-term parliament as in Norway to the semi-fixed-term parliament such as in Germany where confidence votes can be used tactically to
engineer an early dissolution. There are then the nominally fixed parliaments
such as in Canada, where fixed-term parliaments were introduced at the
federal level in 2006 but preserving the discretionary power of the Governor
General to dissolve parliament. Fourthly, there is the completely flexible
example of the UK prior to the proposals of the Conservative/Liberal Democrat
coalition government.
Controversy remains over the length of the fixed-term parliament. The
Conservative/Liberal Democrat coalition has chosen a five-year term. The
Labour Party in parliament argued for a four-year fixed-term, as did Blackburn
(1998). This is in line with the expectation of the length of a parliament under
the Parliament Act 1911 as the then Liberal Prime Minister Henry Herbert
Asquith said ‘ . . . we propose to shorten the legal duration of parliament from
7 years to 5 years which will probably amount in practice to an actual legislative
working term of 4 years’ (Hansard—House of Commons, 21 February 1911, col.
1749).
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1.
The Act
The Fixed-term Parliaments Act provides that the next general election will be
held on the 7 May 2015, and subsequent parliamentary elections on the first
Thursday in May in the fifth year after the last general election (ss 1(2) and
(3)). The Prime Minister’s power would be limited to moving the date forwards
by no more than two months by statutory instrument (ss 1(5), which allows for
the effects of a short-term crisis—such as the outbreak of foot and mouth
disease—to be avoided). But this statutory instrument would have to be made
by affirmative procedure: both Houses would need to approve it (s. 1(6)).
The only ways in which an earlier general election could be called are (1) a
House of Commons motion supported by a number of members equal to at
least two-thirds (in place of the original proposal of 55%) of all the seats in the
House of Commons (s. 2(1)) or (2) a motion of no confidence in the government
2
Bogdanor quotes Ramsay MacDonald’s diary from David Marquand, Ramsay MacDonald (London:
Jonathan Cape Ltd, 1977), pp. 377 –378. King George V said that ‘ . . . no other party could form a
Government that could last. He would protect himself by sending me a memorandum saying that
he granted the election with great reluctance, and hinted that I might say so’.
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The most recent academic assessment of fixed-term parliaments in British
politics has been provided by Vernon Bogdanor (Bogdanor, 2011, pp. 107–
122). Bogdanor argues that the Fixed-Term Parliaments Act ‘ . . . is misnamed.
It does not provide for fixed-term parliaments on the Norwegian model.
Instead it seeks to make dissolution more difficult and no longer at the discretion
of the government of the day’ (Bogdanor, 2011, p. 109). Bogdanor explores the
argument that the Fixed-term Parliaments Act may make less difference than
its supporters anticipate. He is sceptical that the Act will strengthen parliament
against the executive, since backbench MPs can be whipped by their parties: ‘
. . . the supposed power of “parliament” to dissolve itself is the power of the
party leaders to decide to dissolve parliament and whip their followers accordingly’ (Bogdanor, 2011, p. 119). Bogdanor also finds the events following the
fall of Ramsay MacDonald’s first Labour government after losing two House of
Commons votes on the 8 October 1924 instructive. MacDonald had treated
these as confidence votes, and saw the King the next day to ask for a dissolution.
However, King George V only granted a dissolution since he was satisfied no other
party leader—either Asquith or Stanley Baldwin—could form a government
(Bogdanor, 2011, p. 120).2 Thus, the concept of seeking an alternative government within Parliament without a further election is hardly new. Indeed, this
example illustrates that the focus of debate is now on the potential effects of
the Fixed-term Parliaments Act.
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545
1.1
Critique of the Act
Neither of these options provides a solution for the situation in which Harold
Wilson found himself in 1965 and 1974. Nor do either of them allow for the
loss of support for the government in its own party or parties. Loss of support
is a special issue in relation to the coalition. Jack Straw MP claimed in the
debate on the second reading that the Bill’s primary purpose was ‘to serve as a
form of constitutional handcuffs to prevent either of the coalition parties from
assassinating the other’ (Hansard—House of Commons, 13 September 2010,
col. 641). Professor Blackburn points out that the Liberal Democrats need this
guarantee, as without it the Conservative Prime Minister could at any time
‘favourable to his party in the opinion polls (and unfavourable to the Liberal
Democrats) cut and run with a second general election’. But he says that the
Conservative interest in a fixed-term parliament is different. A long period in
office in which responsibility is shared with the Liberal Democrats for public
expenditure cuts and tax rises ‘was the safest political route forward’ (Blackburn,
2010, p. 53). However, there ought to be a default option to cope with irreconcilable difficulties. The impasse cannot be resolved by the Queen, because s.
3(2) of the Act says that parliament cannot be dissolved in any other way than
the two methods under the Act. The Deputy Prime Minister explained at the
commencement of the second reading of the Bill that the Queen had consented
to place her prerogative, so far as it was affected by the Bill, at the disposal of
Parliament for the purposes of the Bill (Hansard—House of Commons, 13
September 2010, col. 621). The other alternative would be for the government
to introduce legislation repealing the Fixed-term Parliaments Act. If (as is quite
likely) the House of Lords is not prepared to pass such legislation, it seems
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(unless within 14 days the House passes a motion expressing confidence in the
government (s. 2(2)), which allows for the possibility of an alternative government being formed without an election). Apart from the 14 day provision,
option (2) is supposed to be a formalisation of the existing position, but it
does resolve an ambiguity. The Deputy Prime Minister stated at the second
reading of the Bill in the House of Commons that where the House of
Commons voted by a simple majority that it had lost confidence in the government ‘there is a wide expectation that this will result in a dissolution’, and this
convention would be strengthened by the bill; however, he later said it had
been ‘widely accepted that a no-confidence vote would require a Prime Minister
either to resign or (italics ours) to call an early election’ (Hansard—House of
Commons 13 September 2010, col. 627). If an early election is held under
either option (1) or option (2), the new Parliament will run for between four
and five years, depending on the date the early election is held (s. 1(4)).
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2.
Control by the courts
Supposing a government were to engineer a vote of no confidence in itself. The
Queen would then have to dissolve parliament, unless she took the position
that (1) the Act should not be interpreted so as to allow such a course of
action or (2) the Act could be so interpreted, but should not be in the circumstances as it would amount to an abuse of power. But these are the sort of questions which should normally be answered by the courts. Issue (2) does have a
political angle, but so do many questions determined by the courts, whereas
the Queen cannot enter the political arena without destroying a carefully nurtured policy and practice of neutrality.
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that it could be enacted under the Parliament Acts 1911 and 1949 without House
of Lords consent (unlike the Fixed-term Parliaments Act itself which curiously—
since it could have the effect of authorising the extension of the life of parliament
slightly beyond five years by virtue of s. 1(5)—may in the view of Robert Hazell
have needed (and in the end obtained) House of Lords approval because of the
exception in the first parenthesis in s. 2(1) of the Parliament Act 1911;
Hansard—House of Commons—Political and Constitutional Reform
Committee (PCRC), 2010, Ev. 44, para 9.2). This would, however, mean a
delay of approximately a year, which would deprive such a move of its purpose.
A government may therefore find itself largely incapable of action, but neither
option in the Act for an early general election is available to it. However, the Act
does not appear, according to Dawn Oliver, to rule out the possibility of a government engineering a vote of no confidence in itself (Hansard—House of
Commons—PCRC, 2010, Ev. 23, para 5). When the bill was debated in the
House of Lords, Lord Falconer thought that under its wording Edward Heath
in early 1974, Harold Wilson in October 1974, and Tony Blair in 2000 or 2005
could still have sought a vote of no confidence with a view to an early general election (Hansard—House of Lords, 1 March 2011, col. 942 –943). Lord Wallace
thought it would not be possible to prevent this happening, although it would
be identified as an abuse (Hansard—House of Lords, 1 March 2011, col. 1046).
Lord Norton acknowledged that under the wording of the bill as amended by
the House of Lords there was no restriction on who could table a motion of
no confidence: it could be done by ‘a government back bencher, possibly at the
behest of the Prime Minister’ (Hansard—House of Lords, 16 May 2011, col.
1159).
It ought still to be possible to make an exception to fixed-term parliaments to
enable effective government. But how can it be ensured that such an exception is
not abused?
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3.
The Canadian constitution
The Canadian Constitution does not provide a good model for comparison in
view of the provisions of s. 56.1 of the Canada Elections Act 2000, as amended
in 2007. Sub-section (2) of this section admittedly provides for elections every
four years, but this is subject to sub-section (1) which says that nothing in the
section affects the powers of the Governor General, including the power to
dissolve parliament at the Governor General’s discretion. In Duff Conacher v P
M of Canada, a challenge was made to a decision by the Canadian Prime Minister
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The question of whether the courts could have any role to play in the implementation of the Act has already been a controversial issue in the parliamentary
proceedings. There was concern among MPs that the provision in the original Bill
(now removed) for certificates issued by the Speaker on the passing of motions
for an early general election or expressing confidence or no confidence in the
government for the purposes of s. 2 could lead to the challenge of those certificates in the courts. A role for the courts was not, however, universally regarded
with horror. Nick Boles MP said ‘ . . . I am not sure whether the courts are any
more capricious than Members of this House. Is that a terrible thing to say?’
(Hansard—House of Commons, 13 September 2010, col. 692).
It is easy to understand parliamentary anxiety about interference by the courts
in the internal proceedings of the House of Commons. But the issue here is a
different one. Whether a power to dissolve parliament is being properly or
improperly exercised is an issue not of the internal workings of the House of
Commons but of the balance of power between the executive and the legislature.
In the end, the only way that a dispute on this issue can be resolved is by the judiciary. Dr Jack, Clerk of the House of Commons, told the House of Commons
Political and Constitutional Reform Committee that he thought that if the
government abused its power it was a matter for Parliament to sort out its
affairs with the government without the interference of the judiciary
(Hansard—House of Commons—PCRC, 2010, Ev. 1). But in practice, even if
the government is endeavouring to initiate dissolution of parliament in inappropriate circumstances, the government is likely to get its own way through the
whip system. The Committee’s Report refers to Dr Jack’s concern that the bill
would infringe the exclusive cognisance of the House of Commons over its
own proceedings. It said that it was ‘not a debate for this Report’ how valid
this theory of exclusive cognisance was in an age when the executive dominates
parliament (Hansard—House of Commons—PCRC, 2010, p. 10, para 28). But
such a debate is necessary when the issue is whether the executive might abuse
its power in compelling parliament to dissolve itself. Court challenges on this
issue have been permitted in Canada and Germany.
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4.
The German constitution
A better model for the treatment of the problem is provided by the German
Constitution, because under it parliaments are not merely nominally fixed
term as in Canada, nor are they completely rigidly fixed term as in Norway. It provides for fixed terms for the Bundestag and no specific power is given to the
Chancellor to override this. Nor can the Bundestag dissolve itself. The German
Basic Law (Grundgesetz) states:
Art 39 (1) The Bundestag is elected for four years subject to the following provisions. Its electoral life ends with the meeting of a new Bundestag. The new elections must take place 46 months at the earliest and 48
months at the latest after the beginning of its electoral life. In the case of
a dissolution of the Bundestag, the new election must take place within
60 days . . .
Votes of no confidence in the Chancellor can have the effect of interrupting the
four-year term.
Art 67 (1) The Bundestag can only express absence of confidence in the
Chancellor by choosing a successor by a majority of its members and
asking the President to dismiss the Chancellor. The President must
comply with the request and appoint the person chosen . . .
The Chancellor could also resign (as could the UK Prime Minister, despite the
Fixed-term Parliaments Act (Hansard—House of Lords, 16 May 2011, col. 1159),
in which case a new Chancellor would have to be chosen in accordance with the
complicated provisions of art. 63 which allow for several alternatives. However,
there is a further possibility:
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to advise the Governor General to dissolve parliament early and set a date for a
general election. The applicants tried to argue that s. 56.1 (1) was subject to two
unwritten rules: that the Prime Minster was bound by s. 56.1 (2), but also
(presumably because that proposition on its own would lack credibility) that
he could still advise dissolution following a vote of ‘non-confidence’. The court
preferred to assume that s. 56.1 (2) was not binding on the Prime Minister.
Nor could it accept that there was a constitutional convention corresponding
to the ‘two unwritten rules’. The court did, however, accept that the Prime Minister’s power was a prerogative power which should be exercised according to law,
and that could authorise the court to consider if s. 56.1 had been violated. A
prerogative power was justiciable if its exercise affected individual rights or legitimate expectations.
The Problem of the ‘Lame Duck’ Government
549
Art 68 (1) If an application by the Chancellor for an expression of confidence in himself does not obtain the agreement of a majority of the
members of the Bundestag, the President can dissolve the Bundestag
on the proposal of the Chancellor within 21 days. The right of dissolution ceases as soon as the Bundestag chooses another Chancellor by a
majority of its members . . .
5.
The Schröder case
The decision by the Federal Constitutional Court in 2005 in the Schröder case is
worth careful examination as it represents the most recent and most controversial
use of art. 68. Chancellor Schröder, who led a coalition of Social Democrats and
Alliance 90/Greens, which had a narrow majority in the Bundestag, used art. 68
in 2005. He had suffered a series of election defeats at a regional level. Prior to the
vote he made it clear that his purpose was the dissolution of the Bundestag and
the ordering of fresh elections, which he hoped to win with an increased majority,
3
BVerfGE 62, 1.
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This enables the Chancellor to seek positive endorsement of his position from
the Bundestag (the ‘pure’ confidence vote). But it also enables a Chancellor to
engineer an early election before the fixed-term expires (the ‘artificial’ confidence
vote). There have been five instances of Chancellors using art. 68: two ‘pure’
confidence votes (Helmut Schmidt in 1982 in which he failed and Gerhard
Schröder in 2001 in which he succeeded) and three to open up the way for
fresh elections (Willy Brandt in 1972 when a narrow majority expressed confidence in the Chancellor; Helmut Kohl in 1982 when a vote of no confidence
was upheld by the President and the Federal Constitutional Court (Kohl case;
see Irving and Paterson, 1983, p. 417);3 and Schröder in 2005 with a similar
result). Art 68 does not specify when artificial confidence votes are possible,
but, as we shall see, the Federal Constitutional Court has developed a definition.
There is a parallel between art. 68 and the idea of a UK government engineering a motion of no confidence in itself. The procedure is not being used for
its natural purpose, and it is only being used because the proper procedure for
a government to secure a dissolution is not in practice available. In the UK
under the Act it will normally only be possible for the government to obtain
an early election by using s. 2(1) which requires a two-thirds majority. The
only way in which a German government could obtain an early election
without the use of art. 68 would be by a constitutional amendment which
would require a two-thirds majority in the Bundestag and in the Bundesrat
(the other house of the German parliament).
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so that he could pursue his policy of reform, rather than continuing for the
remainder of his term as a ‘lame duck’ Chancellor. When the confidence vote
was held, 151 members of the coalition parties voted expressing confidence in
the Chancellor, 148 members of these parties abstained, and 296 opposition
MPs voted against. The motion of confidence in the Chancellor was therefore
lost by 145 votes. The Chancellor then proposed to the President that the
Bundestag should be dissolved. The President complied, after consulting with
the politicians responsible and legal experts. He ordered fresh elections, fixing
the date for about two months later. In the event, Schröder failed to win the election and was replaced by Chancellor Merckel and a different coalition government. Before the election, however, the President’s decisions to dissolve the
Bundestag and to call an election were unsuccessfully challenged by two MPs
in the Federal Constitutional Court (Schröder case). Submissions to the Court
were made by the applicant MPs, the President and the government.
Firstly, the Federal Constitutional Court considered that the requirement for
four-year elections to the Bundestag not only ensured regular democratic legitimation; it also facilitated the effective and continuous fulfilment of the task of the
Bundestag. Shortening the period interfered with this and with the status of individual MPs which was part of it.
The court believed that the dissolution had to correspond with the purpose as
well as the formal requirements of art. 68. The purpose of art. 68 (together with
arts. 67 and 63) was to achieve a government which was capable of action. This
meant not only that the Chancellor determined policy but also that he knew he
had a majority of members of the Bundestag behind him. Whether this was so
could only partially be assessed from the outside. The Basic Law gave escape
routes to restore a stable majority situation in the Bundestag, and a confidence
vote aimed at dissolution was justified if it restored this. The court’s role was confined to examining whether art. 68 was being applied consistently with its
purpose. Art. 68 could not be used by a Chancellor with a reliable parliamentary
majority to obtain unconditionally such new term as seemed appropriate to him.
A Chancellor with a doubtful majority in the Bundestag did not have to resign
(which might still not lead under art. 63 to an election of a Chancellor with a
stable majority) nor did he have to take measures which would reveal political
dissent within his majority. He could take the art. 68 route at a point in time
when the dispute within his party was not irreparable. It would unreasonably
limit the government’s freedom of action to expect the court to make definite
findings about the loss of a parliamentary majority by the methods of proof available in the court. This kind of evaluation might be a prognosis rather than a fact.
The Chancellor’s evaluation that there was an erosion of confidence in him could
not be unambiguously and perfectly examined in the court. It could not be
proved in the usual way without damaging the political system. The Basic Law
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intended that there should be a balance between effective subjection of public
authority to law and effective political freedom of action. If the Chancellor
wanted endorsement by the electorate to deprive the Bundesrat (the house of
the German Parliament which is supposed to represent regional interests) of
the political legitimacy to oppose him, this would not be permissible under
art. 68, as the required unstable relationship between the Chancellor and the
Bundestag would not be present, but opposition in the Bundesrat was only a
factor in the Chancellor’s decision here. This point is particularly relevant to
the UK Constitution. If the government’s capacity to act were to become
limited by the reconstituted House of Lords, there are good reasons for saying
that an appeal on this ground alone to the electorate for democratic legitimation
ought not to be allowed. It would disturb the balance of power between the two
houses on which some consensus has at last been achieved.
Responsibility for dissolution of the Bundestag rested with three constitutional organs, whose decisions were subject to control by the court. The Chancellor made the decision to apply under art. 68. The Bundestag then might or
might not vote in the way he wanted; Helmut Schmidt’s attempt in 1982 to
obtain new elections via art. 68 was prevented by a vote of no confidence
under art. 67 nominating Helmut Kohl as Chancellor. The President then assessed
the legal situation and exercised his political judgement as a neutral authority.
The court had to respect the political judgement of these three organs; its opportunity for examination was more limited than where it was establishing law or
implementing norms.
The issue was whether the Government’s freedom of action was no longer
ensured. The Chancellor should not be using an unstable situation as a pretext
to obtain a fresh election. His assessment that he has lost majority parliamentary
support should be plausible, even though not necessarily inevitable. The court
considered that this was so. The Chancellor had explained that his reform
programme ‘Agenda 2010’ had led to conflict within his own party which had
lost votes in all the regional parliament elections and the European elections
since. Although he gave no names for political reasons, he referred to almost
daily media reports of a volte face in his party, and the imminent founding of
a new party competing with the Social Democrats. There were indications that
Schröder’s resignation as party chairman at the start of 2004 and the choice of
Münterfering as his replacement were due to pressure in the party. There were
no facts clearly refuting the Chancellor’s assessment. Continued support for
the Chancellor as chancellor was not inconsistent with an unstable parliamentary
situation.
There were two dissenting judgements in the case, and it is significant that they
were at opposite ends of the spectrum of possible opinions about the case. Judge
Jentsch considered that there was no evidence of political instability in the
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relationship between the Chancellor and the Bundestag, and therefore no justification for using the mechanism of art. 68. Only matters relating to events in the
Bundestag were relevant. The government had not lost any votes in the last legislative term of the Bundestag, nor was there any indication of parliamentary projects lacking reliable support or being set back. In any case, inability to implement
individual proposals did not mean a government was incapable of acting. To
allow a dissolution here would suggest that only formal and not substantive
criteria were necessary. This came close to a Chancellor’s right to dissolution,
which was alien to the Constitution. If the Chancellor’s assessment of the position
was the sole criterion, it was difficult to see how the President and the Federal
Constitutional Court could review the situation. Inward reservations by
members of the Bundestag were not important. In the case involving Chancellor
Kohl, there had been a change of government following the break-up of a coalition, and Free Democrat Party members of the Bundestag had clearly indicated
that they would not support the new government after a certain date. A
narrow majority was not necessarily indicative of instability as it might cement
support for the government. For the government to appeal directly to the electorate for support for reform measures was not compatible with the concept of a
representative democracy. Merely to seek further legitimisation devalued or
undermined constitutional procedures, and interfered with the concept of free
elections and the free mandate of members of the Bundestag who, under art.
38(1) of the Basic Law, are only bound by their consciences. The problem
about this approach by Jentsch is that it is inconsistent with the light touch attitude by the majority of the Federal Constitutional Court. It would require much
more concrete evidence such as defeats in the Bundestag and names of and
private statements by potential rebels. This is inconsistent with the confidential
nature of politics.
Judge Lübbe-Wolff, however, considered that there was no justification for
introducing an unwritten element into art. 68, limiting its use according to its
perceived purpose. If a Chancellor chose to use it and this resulted in a vote of
no confidence in the Chancellor, it was not for the President and the Federal
Constitutional Court to review those decisions. This false conclusion was
reached by concentrating on the Chancellor’s application, with the implication
that if this was flawed the Bundestag became a victim of it and unable to act
constitutionally. The vote of confidence was not about the knowledge, but
about the intention of the Bundestag, and should not therefore be reviewed by
another person or body. The use in art. 68 of the words ‘application’ and ‘confidence’ did not mean that the Chancellor could only act with the intention of
obtaining a positive decision; nor did the system of the Basic Law, the history
of art. 68, and its purpose require a restrictive interpretation of it. Dr Katz had
stated in the Principal Committee of the Parliamentary Council, when the
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553
6.
Conclusion
The case therefore provides a practical example of the circumstances in which and
the way in which it may be appropriate for a government to secure an earlier election. In Germany, and (as it would seem) in the UK, the door was left ajar, but
perhaps unintentionally.
The first striking feature about the case is that the court considered that it was
necessary not only to assess whether the formal requirements of art. 68 were
fulfilled but also its purpose, i.e. that there was a government capable of
action; and therefore the use of the article to secure dissolution would only be
justified if the government had lost the capability to act. The problems about
incorporating such an unwritten element in art. 68 are mentioned by LübbeWolff and the same argument applies to the Fixed-term Parliaments Act. It is,
however, a widely held principle of public law that power should not be
abused. Professor Blackburn seems to envisage this at a very informal level in
his evidence to the House of Commons Political and Constitutional Reform
Committee (Hansard—House of Commons—PCRC, 2010, Ev. 16) when
(recommending a simple majority for a dissolution) he said ‘I would hope that
would be accompanied by some new culture or some expectation that a Prime
Minister won’t call snap elections for no good reason’. Such a reason exists
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draft Basic Law was being discussed, that the provision gave the government a
right of dissolution if it was in a serious political conflict, or it wanted to have
an important political question decided by the people (Parliamentary Council,
1949, p. 44); and the purpose of the provision was to give the government the
opportunity for new elections if it considered them necessary (Parliamentary
Council, 1949, p. 415).
The difficulty about this approach by Lübbe-Wolff is that it makes the requirement for fixed-term parliaments nearly as meaningless as in Canada; the Chancellor has a virtually untrammelled right to new elections when he or she
wants them. Even if, as suggested by Dr Katz, serious political conflict was
taken as sufficient to justify a dissolution of the Bundestag, the alternative of
wanting an important political question decided by the people gives a very free
hand to a government. It could easily devise such a question, as Edward Heath
did in 1974 when he called for elections on ‘Who governs Britain?’ The further
problem about this approach is that it is inconsistent with the concept of a representative democracy where the will of the people is expressed through Parliament.
Allowing a government to select a question to put to the people over the head of
Parliament encourages manipulation of the democratic process, a point made by
Judge Jentsch.
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where the government is seriously limited in its capability to act because of the
instability of its support in the House of Commons.
The second striking feature is the Court’s restraint on political issues. It did not
insist on conclusive evidence of the government’s inability to act and it accepted
the decisions of the Chancellor, the Bundestag and the President as indications
that the Basic Law requirements had been fulfilled. This is a pattern which
could certainly be usefully followed by the UK courts. If it was, there seems no
reason why a court challenge should not be permissible. It seems nonsensical
to argue that the courts could have intervened if the Speaker had been given
powers to issue certificates about House of Commons votes which were conclusive for all purposes, but could not intervene now that those provisions have been
removed. The challenge could be way of judicial review, with any political party
or individual MP being recognised as having locus standi. The CCSU decision
(CCSU v Minister for the Civil Service) opened up certain prerogative decisions
to judicial review, and prerogative decisions which were still thought to be
immune from judicial challenge like mercy (R v Home Secretary ex p Bentley)
and issue of passports (R v Foreign Secretary, ex p Everett) have since become
susceptible to it. Moreover, the decision about dissolution is now to be a statutory
rather than a prerogative power, so the case for review is stronger. Professor
Robert Hazell acknowledges in his written evidence to the Political and Constitutional Reform Committee (Hansard—House of Commons—PCRC, 2010, Ev.
43 and 44, para 9.2) that ‘[t]he most likely context for a legal challenge [under
the Fixed-Term Parliaments Bill] would be an attempt by a government to seek
an early dissolution’ and refers to the decisions in Canada (Duff Conacher v P
M of Canada) and Germany (Kohl case; Schröder case). The alternatives are
for the Speaker to prevent government-inspired votes of no confidence being
held or for the Queen to refuse to dissolve Parliament as a result of them, and
neither of these solutions seem as satisfactory as a decision by a court of senior
judges with the opportunity for dissenting judgements. Malleson points out
that the House of Lords in its judicial capacity became increasingly involved in
key social and political issues, and the new Supreme Court will have a role to
play in the division of power not only between the European Union and the
UK, but also now between the UK and Scotland, Northern Ireland and Wales,
and therefore in the political process. She also refers to the ongoing conversation
between top courts internationally about e.g. the relationship between the
political and judicial branches of government (Malleson, 2011, pp. 761– 762,
766, 771).
There is no reason to think that such a challenge could not be dealt with
expeditiously, and with the same sort of sensitivity that the Federal Constitutional
Court have shown to political issues: deference to the executive and the legislature
except where there is clear evidence of bad faith. The case for challenge in the
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555
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