Dissolution Powers in Westminster-Derived Constitutions.

by Elias Blum

Introduction

For centuries, the dissolution of Parliament in the United Kingdom was a matter of Royal Prerogative and its use was governed solely by convention. By the second half of the nineteenth century it was clear that the right to request a dissolution lay with the Prime Minister alone, and the major constitutional works of that period – including Bagehot’s ‘English Constitution‘ and J. S. Mill’s ‘Considerations on Representative Government‘ were adamant that such a power, concentrated in the hands of the Prime Minister, was essential to the stability and effectiveness of the British system of government. It meant that no Prime Minister could be thrown out of office by a parliamentary vote of no-confidence without first having an opportunity to appeal directly to the people in a general election. That made the Prime Minister far more primus than inter pares and contributed to the emergence in the UK of a top-down, ‘prime ministerial’, democracy.

The Fixed Term Parliaments Act 2011 brought that to an end. Although introduced to shore up the Conservative-Liberal Democrat coalition, this change had long been on the agenda of democratic reformers, who sought thereby to reduce prime ministerial domination over Parliament and increase the ability of Parliament to hold Governments to account. The Scottish national movement provides a fascinating insight into such critiques. A draft Constitution for an independent proposed in 1964 provided that Parliament could not be dissolved without the consent of a majority of its members. Another draft, published by the Scottish National Party in 2002, provided that early dissolution would be possible only in a situation where a government could not be formed. The Scotland Act 1998, much of the substance of which was negotiated in the Scottish Constitutional Convention, adopted a formula very similar to that of the UK’s Fixed Terms Parliament Act: early dissolution of the Scottish Parliament is possible only if assented to by a two-thirds majority, or if a First Minister is not nominated within 28 days.

The failure of the Conservative Party to win an overall majority in the United Kingdom’s 2017 general election probably means that the Fixed Term Parliaments Act 2011, which the Conservatives had threatened to repeal, is safe for now. Yet if it were to be replaced, or if a future written Constitution either for a federal UK (or an independent England, or England and Wales) were to be developed, some attention to the comparative practice of other Westminster-derived Constitutions may be beneficial.

Dissolution Powers in Westminister-derived Constitutions

The first generation of Westminster derived constitutions (those of Canada, Australia, New Zealand and South Africa) followed traditional British practice, relying on polite fictions and unwritten conventions to regulate the power of dissolution. Two situations arising in the Commonwealth helped give shape to these conventions. In Canada in 1926, the Governor-General, Lord Byng, refused Liberal Prime Minister Mackenzie King’s request for a dissolution, as it appeared (although this turned out not to be the base) that an alternative government led by the Conservative party could be formed. In South Africa in 1939, Prime Minister Herzog, having been defeated in the House of Assembly, asked Governor-General Sir Patrick Duncan to dissolve Parliament; the Governor-General refused, and instead invited the then Leader of the Opposition, Jan Smuts, to form a government – which continued in office, with a small majority, until 1943.

These two situations were relied upon by Sir Alan Lascelles, the private secretary to King George VI, in his 1950 formulation of what were to become known as the ‘Lascelles principles’. These allowed the head of state to refuse a request for dissolution only where three conditions were met: that (1) ‘the existing Parliament was still vital, viable, and capable of doing its job’; (2) that an election would be ‘detrimental to the national economy’; and (3) that the head of state could ‘rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority’.

The second generation of Westminster-derived constitutions sought increasingly to shift away from reliance upon merely conventional rules, in favour of explicit legal provisions in the constitution. This trend was evident in the republican constitutions of Ireland (1937) and India (1950), and was extended to the constitutions of the Commonwealth realms in the Caribbean, the South Pacific, and elsewhere, in the 1960s and 1970s.

In converting what were once merely conventional rules into explicit constitutional provisions, the authors of these later Westminster-derived constitutions were able to place different limitations and exceptions upon the right of the Prime Minister to dissolve Parliament.

The Constitution of Ireland (Art. 13) notably provides that ‘Dáil Éireann (Lower House) shall be summoned and dissolved by the President on the advice of the Taoiseach (Prime Minister)’ and that ‘The President may in his absolute discretion refuse to dissolve Dáil Éireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Éireann.’ In other words, as long as the Prime Minister commands the confidence of the House, the President has no discretion, and must grant a dissolution if requested. There is, therefore, nothing to prevent snap elections, called at the timing and convenience of the Government. However, if the Prime Minister has lost the confidence of the House, the President may refuse a dissolution. This potentially enables a change of Government, by the realignment of party politics, during the lifetime of a Parliament.

In some post-colonial Constitutions, the power of dissolution ceased to be a royal (or Prime Ministerial) prerogative. The Constitution of the Solomon Islands (1978) provides, for example, for a fixed term of four years, unless ‘Parliament decides by resolution supported by the votes of an absolute majority of the members of Parliament that Parliament should be prorogued or dissolved’ (Constitution of the Solomon Islands, section 73).

In others, all traces of a discretionary reserve power to refuse a dissolution have been eliminated. The Constitution of Jamaica, for instance, provides (section 64(5)) that the Governor-General ‘shall act in accordance with the advice of the Prime Minister’ in the exercise of the power of dissolution. This is subject to only one proviso, that ‘if the House of Representatives by a resolution which has received the affirmative vote of a majority of all the members thereof has resolved that it has no confidence in the Government, the Governor-General shall […] dissolve Parliament. In other words, there is no limitation on the ability of the Prime Minister to dissolve Parliament at will.

Jamaica in unusual, however, in that alongside a vote of no-confidence in the Government, which will automatically lead to a dissolution, the Constitution also makes provision for a ‘resolution to revoke the appointment of the Prime Minister’ (Section 71(3)). If such a resolution is adopted, then the Prime Minister is removed from office by the Governor-General after three days, unless within that time the Prime Minister advises the dissolution of Parliament. This provision still leaves all the initiative and freedom of action with the Prime Minister, but at least it offers a little flexibility: to resign or to dissolve. Assuming that this is a deliberate design choice and not a slight inconsistency of drafting, the only plausible explanation I can discern for the difference between Section 64(5) and Section 71(3) is that a vote of no-confidence in the Government implies fault or failing by the Government, whereas a vote to revoke the Prime Minister is more morally neutral – and was perhaps intended as a way of allowing the governing majority party to change its leader, and thereby replace the Prime Minister, without necessarily forcing a general election. 

In allowing the Governor-General no discretion to refuse a dissolution, the Constitution of Jamaica is an outlier. Other Westminster-derived constitutions of similar vintage seem to handle this differently. In many, the influence of the Lascelles principles can be clearly seen – although the ‘detrimental to the national economy’ requirement has been quietly dropped, or has been broadened to encompass the concept of a dissolution not being ‘in the public interest’.

For example, Art. 76 of the Constitution of Malta (1964) states that Parliament is dissolved by the President on the advice of the Prime Minister, but that in the following circumstances the President is relieved from having to act on the Prime Minister’s advice, and can act in accordance with his or her own discretion:

  • (a) if the House of Representatives passes a resolution, supported by the votes of a majority of all the members thereof, that it has no confidence in the Government, and the Prime Minister does not within three days either resign from his office or advise a dissolution, the President may dissolve Parliament;
  • (b) if the office of Prime Minister is vacant and the President considers that there is no prospect of his being able within a reasonable time to appoint to that office a person who can command the support of a majority of the members of the House of Representatives, the President may dissolve Parliament; and
  • (c) if the Prime Minister recommends a dissolution and the President considers that the Government of Malta can be carried on without a dissolution and that a dissolution would not be in the interests of Malta, the President may refuse to dissolve Parliament.

The essence of these provisions is that the Government must have the confidence of Parliament (para. a), that a Parliament which cannot support a Government must be dissolved, to allow the people to elect a new Parliament (para. b), and that a Government which has lost the confidence of Parliament cannot insist upon a dissolution without the head of state (or governor-general) at least having the possibility to explore the formation of a new government without a dissolution (para. c).

In other words, in the event of a vote of no-confidence in Malta, the President can take a personal appraisal of the political situation. The Prime Minister may choose, in the first place, to resign or to advise a dissolution. If the Prime Minister advises dissolution, the President may accept that advice. However, if the President considers that ‘the Government of Malta can be carried on without a dissolution and that a dissolution would not be in the interests of Malta’ – i.e. that an alternative Government could be formed without a dissolution, then the President would be within his or her rights to refuse a dissolution, and – under Art. 80 of the Constitution of Malta – to ‘appoint as Prime Minister the member of the House of Representatives who, in his judgment, is best able to command the support of a majority of the members of that House’.

The Maltese formulation also provides a limited protection against snap elections, at least against snap elections being called frivolously or vexatiously. Although it must be imagined that a refusal on such grounds would be more open to political criticism, it might be acceptable if invoked, for example, to prevent a Prime Minister whose party has lost an election and who has not yet resigned or faced a vote of no-confidence from calling another sudden election in an attempt to reverse the result.

Another neat solution appears in the 1947 Constitution of Burma, which states:

“The Chamber of Deputies shall be summoned, prorogued or dissolved by the President on the advice of the Prime Minister:

Provided that, when the Prime Minister has ceased to retain the support of a majority in the Chamber, the President may refuse to prorogue or dissolve the Chamber on his advice and shall in that event forthwith call upon the Chamber to nominate a new Prime Minister:

Provided further that, if the Chamber fails to nominate a new Prime Minister within fifteen days, it shall be dissolved.”

 

Dissolution Powers in Practice

Votes of no-confidence and dissolutions of Parliament are the two ‘nuclear options’ of parliamentary democracy, by which the deadlocks inherent in a presidential system are avoided, and a harmonious and constructive working relationship between Government and Parliament are maintained. The basic dynamic is that the Government arises from, leads, and directs, the parliamentary majority, and thus have overall responsibility for the conduct of public affairs (except for such matters as are constitutionally insulated from the Government, such as the operation of the courts, ombudsmen, independent commissions etc). However, the Government only has this ability so long as it maintains parliamentary confidence – if that confidence is withdrawn, the Government must either (according to the specific constitutional rules in place and the circumstances of the case) resign or dissolve Parliament.

In most Westminster-derived democracies, it is very difficult for a vote of no-confidence to pass, especially in those with plurality electoral systems (tending to produce two-party politics) and small very Parliaments (and hence a small ratio of Ministers to backbench MPs). It requires a sufficient number of the governing party’s own MPs to break ranks and to vote with the Opposition on a matter of confidence or supply to bring down the Government. This is unlikely to occur except in the very gravest of circumstances, and in those circumstances it is perhaps necessary that there should be a dissolution to allow the people to express their ultimate verdict. However, since the effect of a dissolution is almost always going to be electorally suicidal for MPs of the governing party, including for those who trigger the vote of no-confidence, its most practical consequence must be to place the Government in an almost unassailable position of immunity from parliamentary accountability (which, indeed, appears to be the case in much of the Commonwealth Caribbean).

Recommendations for Constitutional Designers

Given these political realities, the difference between a constitution provision such as that of Jamaica, which gives the Governor-General no discretion, and that of Malta or Ireland which does allow the Head of State to play a balancing role, might be merely academic. Although Malta’s unicameral Parliament is elected by a form of proportional representation (and despite the fact that there is now one MP from a third party), Malta remains for the most part a stubbornly two-party system, with tight party discipline. In consequence, although Governments have fallen at the hands of rebellious backbenchers, no situation has yet arisen in which Malta’s Head of State has had to refuse a dissolution.  Even in Ireland, where multi-party politics and coalition Governments have been the norm, the President has never used the power to refuse a dissolution – although on at least one occasion the President did intimate that the power might be used, should the Prime Minister request a dissolution rather than resigning.

Yet the fact that these provisions are seldom used does not mean they can be ignored by constitutional designers. The fact that dissolution is a such a drastic procedure, not to be used lightly and likely to be invoked only in times of crisis, means that the rules governing and restricting its use must be clear, sensible and legitimate.

Moreover, since the power of dissolution is intimately related in a parliamentary democracy to the process of government formation and dismissal, the nature of the dissolution power may have important consequences for the nature of the relationship between the Prime Minister, Cabinet, Head of State (or Governor-General), and the voters. A Parliament that cannot remove a Government except by risking its own life will be in a weaker position, vis-a-vis the Government, than a Parliament that can remove a Government from office and at least attempt to form an alternative Government without facing a dissolution.

As a common complaint against Westminster Model is that it concentrates too much power in the Prime Minister, and fails to provide sufficient checks, balances, and accountability, those seeking to improve the quality of democracy in countries with Westminster derived Constitution should consider their options carefully. Procedures such as those of the Maltese Constitution, and to a lesser extent that of Ireland, allow the Head of State some personal discretion in refusing a dissolution following a vote of no confidence. That might be the best option in a Republic. In a monarchy, however, even this limited discretion may be too much to entrust to a hereditary head of state, and in that case provisions such as those outlined in the Fixed Terms Parliament Act and the Scotland Act, which require Parliament to authorise its own premature dissolution (with or without the 2/3rds majority requirement, which gives the Opposition a veto on snap elections) ought to be considered.

 

 

 

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