Joshua Rozenberg QC on Brexit


Joshua Rozenberg QC Facebook reference

THE GENERAL ELECTION: A LAWYER WRITES

The motion that Theresa May will put to the House of Commons tomorrow will be “that there shall be an early parliamentary general election”. Under section 2 of the Fixed-term Parliaments Act 2011, the election will take place before 2020 if that motion is passed by the House of Commons. The House of Lords is not involved.

A motion may be passed by the Commons with or without a vote (known as a “division”). If there is a division, the motion calling for an early parliamentary election will pass only if “the number of members who vote in favour of the motion is a number equal to or greater than two-thirds of the number of seats in the House (including vacant seats)”. That means it needs at least 434 votes in favour.

In that event, says the act, “polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister”. We know that Theresa May will recommend 8 June.

Parliament will not be dissolved tomorrow. A few days will be needed for MPs and peers to pass essential business, such the Finance Bill. That can’t be done until the House of Lords returns from its recess next week. The Finance (No. 2) Bill is being debated in the Commons this afternoon.

Some other bills will be rushed through. But they will not include the Prisons and Courts Bill, which is nowhere near ready. It was always intended that it would be carried over to the next parliamentary session. If the Conservatives win the general election, they would be expected to reintroduce the bill.

There is no reason why they should not, since it has the support of the prime minister. A delay of two or three months should make no difference to the plans for online courts.

And who will be the bill’s sponsoring minister? I would not put any money on Elizabeth Truss keeping her job as Lord Chancellor. We can expect a Cabinet reshuffle even if the Conservatives win. It would be an ideal time to bring in a Secretary of State for Justice with more political experience. Michael Gove is sounding much more supportive of Theresa May today than she ever was of him.

Like all ministers, Truss will remain in post until a new government is formed shortly after June 8. But she will not be a MP after parliament is dissolved.

A Conservative government with a new five-year term would presumably be in a stronger position to negotiate Brexit. Not only will have more time at its disposal, it will have an electoral mandate for leaving the EU. And, if May’s calculations are correct, it will be less vulnerable to backbench rebellions over Brexit.

Another argument in favour of an early election has received rather less attention today. Last month, the Conservative Party was fined £70,000 after an investigation by the Electoral Commission into the party’s campaign spending. Some Conservative MPs may be personally vulnerable to legal challenge. A new election limits that risk — provided the party obeys the rules this time.

One unintended consequence of the early election may be to delay the introduction of the Unified Patent Court across most of the EU. The government said last year that it wanted to remain part of the court and had promised to introduce the necessary secondary legislation “in the spring”. If that’s delayed, the court may have to postpone its planned start date of December 2017.

And what about human rights? The prime minister deferred a policy decision on a “British” bill of rights to the next Conservative manifesto. That will come three years sooner than expected. I’m sure there will be some sort of pledge but I still detect no appetite at all for reform. I certainly don’t expect a commitment to leave the human rights convention.

UPDATE: I should have pointed out that, under section 3 of the 2011 act, parliament will be dissolved at the beginning of the 25th day before the date appointed for the election (excluding weekends and holidays). So the last day on which this parliament may sit is Tuesday 2 May. But it may be prorogued sooner.

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