Category Archives: UK Executive

What is meant by the Elective Dictatorship and why does it exist?

In 1976 Lord Hailsham coined the term ‘elective dictatorship’ to describe the extent to which the Government controls the Parliament of the day. Essentially, the term implies that in the UK political system, when elected, a government can essentially take whatever actions it wants without effective scrutiny.

Lord Hailsham held a number of senior government posts during his life.

There is no doubt that, generally, the elective dictatorship does exist. However, depending on the make-up of Parliament and the circumstances of the day, it can subside in certain circumstances. For example, Theresa May’s premiership, in which she lost two votes on her Withdrawal Agreement, can certainly not be described as ‘elective dictatorship’. Equally, until the General Election of December 2019, her successor was not in control of Parliament. As Prime Minister Boris Johnson lost his first four divisions (parliamentary votes) and became the first Prime Minister since 1894 to lose their very first parliamentary division. 

Parliament was able to continue to frustrate Boris Johnson in his first months in office.


So, given Elective Dictatorship normally exists, what factors lead to it?

  1. The UK Electoral System tends towards firm majorities

The First Past the Post system has the effect of creating a clear two-party system. First Past the Post is also a ‘winner takes all system’, this means that minor parties find it incredibly difficult to establish a presence in Parliament. This is because votes cast for smaller parties in most constituencies are unlikely to topple one of the two major parties. For example, in the 2019 General Election the Conservatives won 365 seats and the Greens won 1 seat. Nationally, it took an average of 38,264 votes for each seat the Conservatives won, but 865, 707 votes led to the Greens winning just one seat. 

Caroline Lucas (MP for Brighton Pavilion) remains the only Green MP despite her party winning 2.7% of the UK vote.

The fact that minor parties find it difficult to make an electoral impact means that power swings between the two major parties and the swing between them is usually enough to ensure a majority in Parliament. The average majority in Parliament since 1945 is 58.4 seats with only three hung parliaments in this time. Added to this is the fact that landslide victories are not uncommon in the U.K. system. Some of the biggest are:

Clement Attlee (Labour) – Majority of 147 Seats in 1945

Margaret Thatcher (Conservative) – Majority of 144 in 1983

Tony Blair (Labour) – Majority of 178 in 1997

In cases such as these, it is clear that the government will be almost impossible to control.

2. The Government controls the parliamentary agenda

The agenda and activities of the House of Commons are largely controlled by the Government as dictated by Standing Orders (the rules of Parliament). It is Standing Order 14 (1) that outlines that the government usually have control of the parliamentary agenda:

“Save as provided in this order, government business shall have precedence at every sitting.”

Other time allocated in Parliament that is not controlled by the government is limited to:

  • 20 Days for Opposition Business 
  • 35 Days for Backbench Business
  • 13 Fridays for Backbench Private Members Bill

3. The House of Commons dominates the House of Lords

Further to the fact that the Government largely controls the House of Commons, the House of Commons is dominant over the House of Lords. There are a number of reasons for this:


Parliament Acts (1911 & 1949) – The Parliament Acts mean that the House of Lords can no longer block legislation, but merely delay it for one year. If the House of Lords blocks a bill they the House of Commons wants to pass, it can invoke the Parliament Act. This means that if the same bill were passed by the Commons in the subsequent year, it could be forced into law. The Parliament Act has only been invoked four times since 1949 (most recently for the Hunting Act 2005) but the very fact that it exists makes the Lords more reticent to challenge the Commons.

The House of Lords voted against the Hunting Act in 2004, but the Parliament Act saw it bought into force in 2005.

Salisbury Convention – Since the 1940s it has become a well established convention that the House of Lords does not vote against a bill that was clearly a part of the Government’s election manifesto. The reasoning behind this is that if an issue was in the manifesto of the winning party in the election it is fair to infer that the policy has a mandate from the people. As an example of this, the 2019 Conservative Manifesto said that their government would bring in “An Australian-style points-based system to control immigration”. This means that if this policy appears in a bill, the Lords will assent to it under the Salisbury Convention.


Financial Privilege – By long-standing Convention the House of Lords does not vote against any bill that is raising money, for example a bill to raise taxes or the Government’s Yearly Budget.

When the Chancellor o the Exchequer delivers his budget, they do so safe in the knowledge it won’t be blocked by the House of Lords.

4. Party Loyalty

One of the most important factors that create the impact of ‘elective dictatorship’ is party loyalty. In the UK political system it is exceptionally difficult to become an MP without standing as part of a political party. Currently, there is only independent MP in the House of Commons, however, Neale Hanvey was on the Ballot Paper as an SNP member, but was suspended just before the election. The last true independent in the U.K. was Sylvia Hermon who was elected as an Independent MP for North Down between 2010 and 2019.

Sylvia Hermon (North Down 2010-2019) was the last MP elected whilst standing as an independent.

Not only do MPs rely on their parties to be elected, they also rely on their party for their career development. Most MPs want to advance their career, either becoming a Select Committee Member or a Minister or Shadow Minister. To become a Minister or Shadow Minister they have to keep their party onside, whilst becoming a Select Committee Member will be much easier with the support of their parties.

As a result of this, rebellions in the House of Commons are rare. Although there are naturally rebellious MPs (Jeremy Corbyn famously voted against his own party 428 times when he was a backbencher) most MPs ‘toe the party line’ and vote the way that their party whips want them to, enhancing the power of political parties and contributing to the elective dictatorship.

The fact that Britain has a fusion of powers means that if the executive can keep their own party onside, they will normally be able to carry out most of their agenda. This is different from the United States, where there is a separation of powers. Often, in the United States there is a ‘divided government’ meaning that the party of the President does not control the Senate and House of Representatives. This makes it very hard for the President to carry out any agenda they may have, as President Trump has found. 

Donald Trump was impeached when the Democrat Controlled House of Representatives voted by 230-197. Not a single Republican voted to impeach him, but it was enough to pass the issue onto the Senate to hold a trial into his conduct.

There can be no doubt that the elective dictatorship is a concept that fits the U.K. political system. Between 1945 and 2019 there have been 19,919 divisions (votes) in the House of Commons. Of these, only 148 have been lost by the Government. This means that 99.2% of all divisions have been won by the Government – a clear indication of the power of the executive. The effects of the ‘elective dictatorship’ depend on a variety of factors, particularly the size of a parliamentary majority and the cohesiveness of the governing party. Following a period under Theresa May when she had no majority and struggled to reconcile her own party on Brexit, with Boris Johnson’s majority of 80 it is likely the elective dictatorship is back.

Boris shows why the ‘big beasts’ are kept inside of the Cabinet

Boris and Theresa

Boris Johnson and Theresa May have never been political allies.

When Theresa May named her first Cabinet in July 2016 it included Boris Johnson as Foreign Secretary. May did not do this because she wanted to. Her dislike of Johnson and his bombastic style was well-known. However, by choosing to include him in her Cabinet she had the chance to keep him under control – at least that was the theory!

When appointed to the Cabinet, Government Ministers are expected to abide by a doctrine of Collective Responsibility. This doctrine dictates that even if they disagree with Government policy in private, in public they support it – giving at least the impression, therefore, that the Government is a united force. Whilst in the Cabinet Boris tested the doctrine on a number of occasions including saying that the UK should spend more on the NHS, even though was no part of his ministerial brief and publishing an article that appeared critical of Theresa May’s Brexit Plans.

 

Chequers

The Chequers Plan is named after the Prime Minister’s country retreat and has divided her party.

On July 9th 2018 Boris Johnson resigned from the Cabinet. He did so citing the fact that he could not agree with Theresa May’s Chequers Plan, the latest plan of the Government for the negotiation of Brexit.

 

Since resigning, Boris has been able to take broadsides at the Government’s policy, particularly over Brexit. He has also managed to keep himself firmly on the news agenda, notably by stating in an article that women wearing the Burka looked like a letterbox. However, on Monday he launched his biggest attack yet on the Government. In the Daily Telegraph Johnson took a huge swipe at the Government’s Brexit policy. In particular he claimed that:

  • That the Chequers Plan means “disaster” for Britain
  • The UK will get “diddly squat” from Theresa May’s plans
  • The EU had been using trickery in their negotiations

Although Boris Johnson was clearly a divisive figure in Cabinet, the adage of ‘keep your

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Influential backbencher and Brexiteer, Jacob Rees-Mogg, is someone who is known to believe a Boris Johnson premiership is desirable.

friends close and your enemies closer’ comes to mind. Whilst in the Cabinet there were limits on what he could say. Outside of Cabinet, there are not. There are many in the Conservative Party who would rather see Boris sitting in Number 10 Downing Street than Theresa May. There is no doubt that Boris Johnson is setting himself up as an alternative to Theresa May when she, seemingly inevitably, falls from power.

 

This is far from the first time that such a situation has arisen. Another example occurred in the Government of Margaret Thatcher. Michael Heseltine was flamboyant and dynamic, he was a very different character from Maragaret Thatcher and represented a different, a more liberal, faction of the party.

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Margaret Thatcher and Michael Heseltine represented different wings within the Conservative Party in the 1980s.

Heseltine joined the Cabinet in 1983 as Secretary of State for Defence. He was seen as a rising star in the party, but was forced to resign over the Westland Affair in 1986 when it emerged that he has sought to undermine the decision of the Cabinet by continuing to negotiate a new buyer for British Helicopter firm, Westland, despite an agreement already being reached with an American consortium.

Poll Tax

The Poll Tax saw some of the worst riots Britain has ever seen.

Heseltine returned to the Conservative backbenches and, where he saw it necessary, spoke out against Government policy. In particular, he was a vocal critic of the Poll Tax, an issue that would be extremely damaging to Margaret Thatcher. There is no doubt, that Heseltine could have returned to the Cabinet in a more junior capacity if the Prime Minister wished to offer him a role, however, she decided against it.

 

In 1990 Heseltine was urged to challenge Thatcher for the leadership of the party. On the 14th November Heseltine claimed that he had the support of up to 100 Conservative MPs and announced he would stand in a leadership election against Thatcher. The result of the election was 54.8% for Thatcher and 40.9% for Heseltine. However, despite Thatcher winning, she did not reach the 15% gap needed under Conservative Party rules. The contest therefore went onto a Second Ballot.

At this stage, Thatcher’s Cabinet stepped in. A number of members met with her and urged her not to stand, and as a result, Thatcher withdrew from the contest and left Downing Street after 11 years as Prime Minister.

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This image of Margaret Thatcher leaving Downing Street after 11 years is one of the most iconic in British political history.

John Major went on to defeat Michael Heseltine in the Second Ballot and was Prime Minister from 1992-1997. Yet, it is worth considering that all of this may have been avoided, or at least delayed, had Margaret Thatcher looked to keep Heseltine on the inside, within the Cabinet, rather than outside, on the backbenches. Only time will tell if Boris Johnson will have the same effect on Theresa May.

How did the June 2017 General Election take place given the passing of the Fixed-Term Parliaments Act (2011)?

Bill of Rights

The Bill of Rights protected the political class. This included guaranteeing frequent elections.

Despite Britain having an uncodified constitution, which is reliant on a variety of sources, it cannot really be doubted that Statute Law is the dominant source of the UK constitution. This is because it is the source on which constitutional change is primarily bought about. This has been true since the Glorious Revolution of 1688, which cemented the notion of a limited monarchy. Indeed, the Bill of Rights of 1689 recorded in Statute the requirement for parliamentary Freedom of Speech and Frequent Elections.
But what does the term ‘frequent’ elections mean? In the United States, the Constitution clearly outlines that a Presidential Election will take place every four years and Congressional Elections take place every two years. However, in Britain, Parliament could only be dissolved by the monarch (although, this was increasingly on the advice of the Prime Minister). In 1715, Parliament passed the Septennial Act. This said that Parliament would automatically be dissolved if seven years had passed since it was assembled. The Parliament Act of 1911 reduced this period to five years. However, although these pieces of legislation set a maximum amount of time before elections, they did not indicate when the next election would be. This is because Prime Ministers could dissolve Parliament before this point as one of their Royal Prerogative Powers.
This gave enormous power to Prime Ministers, who could plan for an election before the
opposition, as only they knew when it would be called. When a Prime Minister called an election suddenly it was called a ‘snap election’. This could give a Prime Minister a huge electoral advantage, although not all used it particularly well. A notable example of this is the case of Gordon Brown. Tony Blair resigned after 10 years as Prime Minister in 2007. His Chancellor, Gordon Brown, replaced him.

GB

Gordon Brown became Prime Minister in June 2007, after ten years as Tony Blair’s Chancellor of the Exchequer

Although he had become PM, he had not faced a leadership challenge within the Labour Party. Some people believe that this lack of a mandate limited him. He also had a surge in the polls upon becoming leader. People expected Brown to call a ‘snap election’. Had he done so he would almost certainly of won a slim majority. Instead, he dithered and failed to call an election. This is despite opinion polls suggesting Labour would win. Gordon Brown’s image of a decisive leader was shattered, starting with a particular session of PMQ’s on 10th October 2007:
This was one of the most one one-sided Prime Minister’s Questions of all time. It was a humiliating episode for Gordon Brown and, looking back, may have been the beginning of the end of his premiership. In May 2010, when the election was called, the Conservatives were the largest party, albeit without an outright majority.After the 2010 election, with no clear majority for any party, the Conservatives and Liberal Democrats formed a coalition.  To do this, they agreed to the Coalition Agreement.

Clegg and Cameron

The Coalition Agreement was reached between David Cameron and Nick Clegg in May 2010

 

Essentially, this was a compromise on the policies of the two parties. There were numerous elements of constitutional reform proposed–including the Fixed Term Parliaments Act. The Fixed-Term Parliaments Act was passed in 2011. It was a relatively simple piece of legislation. It guaranteed that an election would be held every five years, beginning in 2015.
However, there were two provisions that allowed for an early election to be held:
  • A Vote of No-Confidence in the Government could still trigger a General Election.
  • A General Election could be called if a two-thirds majority of the House of Commons called one.
To many, the Fixed Term Parliaments Act was a cynical piece of electioneering. Some suggested the Lib Dems were simply ensuring that they could not be kicked out of the election by the time the Parliament finished in 2015. On the face of it, the Fixed-Term Parliaments Act is a major piece of constitutional reform. However, events in 2017 showed how limited it is. After becoming Prime Minister in 2016, Theresa May promised there would be no early election. She consistently said that there next election would be in May 2020. However, looking at polling numbers that suggested a significant majority would be won if an election was held, she was persuaded to call one.

Snap Election

Theresa May was persuaded by her advisors to call an early election for June 2017, which she did despite the Fixed-Term Parliaments Act (2011)

In reality, it was quite simple to do. Despite the Fixed Term Parliaments Act, the Prime Minister could use her authority to ensure that Conservative MPs voted for an early election. Although a two-thirds majority was required, and therefore Labour also needed to vote in favour, in reality what could they do? If they voted against, they would look weak, look as if they were running scared and therefore lose credibility. In the end, the House of Commons voted for the election by 522 to 13 votes! However, the subsequent election did not go as the Prime Minister had planned.
So, in summary, the Fixed-Term Parliaments Act may appear to be a major constitutional change which limited the Royal Prerogative, but in reality, it is still easy for a incumbent government to call a General Election when they want to hold it.

What are the so-called ‘Henry VIII Powers’ and why are they a controversial part of the Brexit Debate?

As part of her accession to the European Economic Community (now the European Union) on 1st of January 1973, Britain agreed to accept the supremacy of European Community Law over UK Law. This was later further confirmed by the Factortame Case of 1989.

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The Law Lords, then making up the supreme court of the United Kingdom, confirmed the precedence of EU Law over UK Law in the Factortame Case of 1989.

Since Britain joined the European Union thousands of EU Directives and Regulations have been implemented into UK Law. Indeed, since the EEC was formed in 1958 it is estimated that there have been over 80,000 items of EU Law, most of which has had to be incorporated into the legal system of the Member States. In Britain, some of this implementation has been done by Primary Legislation (Statute Law). However, most has been done by Secondary Legislation (Statutory Instruments). The statistics below illustrate this:

  • Between 1993 and 2014, 231 Acts of Parliament were passed that implemented EU obligations.
  • Between 1993 and 2014, 4,263 Statutory Instruments were enacted that implemented EU obligations

Source: House of Commons Library

These are both significant figures, especially when it is considered that they only run back to 1993, many Acts of Parliament and Statutory Instruments relating to the EU will predate these. EU Directives and Regulations may be wide-ranging, dealing with issues as diverse as food packaging standards and privacy standards.

What this means is that whilst the question of the ballot paper the June 2016 Referendum was quite straightforward, the complexity of putting into practice its results is hard to comprehend and is also very controversial, due to the Government’s plans to use so-called “Henry VIII Powers”.

Hen 8.jpg

The English King of 1509-1547 has been mentioned in debates over Brexit more than most would have imagined!

The Henry VIII powers are named after the English King who reigned from 1509-1547. In 1539 the Proclamation of the Crown Act was passed. This gave any proclamation by the King the full force of law. In the post-reformation period, Henry VIII wanted to ensure he could quickly quell any Catholic rebellion in England.

Contrary to popular belief, laws are not passed by Parliament alone and never have been. A Law is simply an accepted action that regulates the Government. Therefore, in the UK Law is passed in a variety of ways:

Statute Law – This is law passed by Parliament. As Britain accepts the doctrine of parliamentary sovereignty, this is the supreme form of Law in the UK.

Common Law – This is also known as ‘Judge Made’ Law. These are legal decisions made in court cases that are then used in future cases, thereby forming legal precedents.

Royal Prerogative – The Prime Minister retains the power to act without the direct consent of Parliament through her use of the Royal Prerogative. These are powers that traditionally belonged to the monarch but are now exercised by Ministers. These are a legacy of absolutist monarchs, like Henry VIII.

Statutory Instruments – Government business is far too complex for every single decision that needs to be made going through the legislative stages of the House of Commons and House of Lords. Therefore, the Government has the power to implement legislation through Statutory Instruments that have been pre-authorised by Parliament.

As outlined previously, Britain’s membership of the European Union is made up of thousands of pieces of legislation, some of it Primary (Statute Law) and some of it Secondary (Statutory Instruments). The job of the Government and Parliament post-Brexit is to decide which of these thousands of pieces of law need integrating into UK Law, which need to be amended to fit into UK law and which should be repealed entirely from UK Law.

JH

Whilst Ministers make the policy decisions on what to include, it is Senior Civil Servants like Cabinet Secretary, Jeremy Heywood, who have the unenviable task of transposing EU Law into UK Law.

To do all of this via Statute Law would be a mammoth task and would tie up Parliament for years to come. The Government therefore propose making many of these changes using the so-called Henry VIII Powers – via Statutory Instrument – not via full parliamentary procedures. This would enable it to be done efficiently and quickly. However, it would also mean it could done without the level of parliamentary scrutiny that many think is necessary. Currently, the Conservatives do not have a majority in Parliament and rely on the support of the DUP in a ‘confidence and supply deal’. Any attempt to circumvent Parliament in implementing Brexit is unlikely to be easily accepted – especially as one of the prime selling points for Brexit was bringing sovereignty back to the UK Parliament.

The issue of the Henry VIII Powers, is a good example of the arguments over the reality of where sovereignty lies in the British political system. Is Parliament truly sovereign, or is there, as Lord Hailsham said, an elective dictatorship?

 

Types of Government and Confidence and Supply

A Government is formed in the UK when the Queen invites a member of the House of Commons to form a Government. It is by convention that a Prime Minister comes from the House of Commons and is the leader of the largest party in the House. This is because as Prime Minister they need to be directly accountable to the people’s elected representatives. As such, the last Prime Minister to govern from the House of Lords was the Marquess of Salisbury in 1902.

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