Bush v. Gore, the UK Edition

May 10, 2010

In the United States we learned all too well about the complexities, pitfalls, and possibilities of our own election process in 2000.   It seems this most recent election in the UK could mirror some of those problems.  Allegations that people were turned away at the polling stations and growing concern over disparities between the number of votes a party receives compared to the actual number of seats won in an election are taking center stage in this controversy.

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In an interesting twist, election reform was a central issue to the Liberal Democrats  during their election campaign. Should negotiations for a majority of seats  fail between the Conservatives and the Liberal Democrats, the current Prime Minister, Gordon Brown, will have an opportunity to attempt to negotiate a deal with the Liberal Democrats to create a majority.  However, what I find most intriguing is what happens after that process has concluded.  This was an interesting article explaining the possible outcomes.

The only rule, according to the House of Commons, is that the monarch should offer the keys to 10 Downing Street — the seat of prime ministerial power — to the leader of the party that has “the confidence of the House of Commons.”
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In the convoluted calculations emerging from a hung Parliament, that could mean that Mr. Brown — currently tipped to lose — might seek a second chance to cling to power by asking for a second ballot to overcome a stalemate. And the Queen — to the probable delight of her campaigned-out subjects — could simply say: “No.”

Since 1950, senior civil servants have concluded that the Queen is not constitutionally bound to accept an incumbent Prime Minister’s request for a dissolution of Parliament very soon after an election providing she can see an alternative way forward.

Having received several Westlaw UK calls this week, I decided to run a few searches to see what electoral provisions have been discussed in the UK journals.  In the UK-JLR database, I ran the following search: “MONARCH! & CONFIDENCE /S (PARLIAMENT) & DISSOL!”

Fairly regularly we receive calls from customers looking for English law or international materials and have no idea where to locate them.  I usually advise these callers to try out our tabs.  We have a huge international contingent which is growing by the day.  By clicking the “Add a Tab” link in the upper right-hand corner of your screen and selecting Add Westlaw Tabs, you can scroll to the bottom to find some of our international offerings.

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These election concerns and processes are neither new or unique. Robert Blackburn, a Professor of Constitutional Law at King’s College London, has written several articles on this subject located here, here and here in our Westlaw UK materials.   Several of his articles came up in the search I ran.

Above all, the country and Parliament need clarity on the constitutional rules on dissolution under a hung Parliament. In today’s less class-dominated society, the public and media are generally less deferential and less inclined to leave important matters of state to the ruling and political class, and therefore wish to know and understand the rules and processes by which they are governed. Under a hung Parliament (as in 1923, 1929, and February 1974) or in situations where there is a precarious or tiny majority (as in 1950, 1964, or October 1974) likely to disappear altogether after a succession of by-election defeats, rival and disputed claims on whether an early dissolution can take place and/or who has the authority to advise the monarch on dissolution affairs may easily arise, as indeed they have in the past.  So too, the monarchy’s position today as head of state could easily be destabilised through lack of clarity on what its role and duties are in exercising the royal prerogative, particularly if it is presented with conflicting advice from party leaders anxious to recruit the monarch to their way of thinking on whether a general election should be called or not.

I have set up a Westclip to follow any news developments of election reform efforts from the UK election from the Westlaw UK databases.  The Westclip I have running in the UKNEWS, UKNP databases is:  election /2 reform! & parliament

I’m interested to see how this drama unfolds in the coming days of negotiation and uncertainty in the UK.  The UK can be thankful they are not recounting hanging chads or this story may never end.   Regardless of the outcome, this election could turn out to be better for the loser than the winner. With the current financial crisis, election reform debate, the UK debt, international security issues, etc. there are a lot of pressing issues on the back porch for the occupant of 10 Downing Street.