I wrote yesterday about the Fixed-term Parliaments Act 2011, responding to what I consider to be errors in an analysis of the same legislation published by Professor Colin Talbot. Talbot has now responded. Such to-and-fro academic exchanges can be profitable, but it is unfortunate when they become personal. I will not therefore dignify with a response Talbot’s characterisation of me (and of people who take the same view) as a “dinosaur”. Instead, I will make four brief substantive points by way of a (final) response.
First, Talbot writes:
Mark Elliott points to the Cabinet Manual as an authoritative source to back up his claims about ‘conventions’.
I did not say that the Manual was an “authoritative source”. In fact, I very carefully said that “the Cabinet Secretary’s understanding of the relevant conventions is recorded in chapter 2 of the Cabinet Manual“. The nature of constitutional conventions is that there is no single authoritative source to which one can turn in order to ascertain their content. They are organic in nature, and any attempt — such as the Cabinet Manual — to reduce them to written form is no more than a snapshot: someone’s best understanding at a particular point in time of what the conventions are.
Second, Talbot goes on to say that a Prime Minister who lost on what I referred to as a non-statutory no-confidence motion “should resign … but he does not legally have to”. I agree: the “should” derives from convention, not law. This reflects the argument advanced in my earlier post that an accurate understanding of how things work in this area requires the distinction between law and convention to be acknowledged. It is no part of my argument that a non-statutory no-confidence motion has any legal effect.
Third, Talbot says:
The main critique of my analysis seems to be that somehow ‘conventions’ trump ‘law’ (in this case the Fixed term Parliament Act). This is just silly.
It certainly would be silly. But it is not what I said. I argued that the Act applies and must be respected in relation to those matters to which it pertains. I also argued that those matters left unregulated by the Act continue to be governed by constitutional conventions.
Fourth, Talbot says that “a very senior and authoritative Parliamentary source” has told him that:
The Fixed Term Parliament Act [sic] has absolved all the players from any duty to respect constitutional conventions rather than the letter of the law.
Talbot’s reliance on this statement is troubling. Conventions reflect broadly shared understandings of fundamental constitutional principles and of practices to which they give rise. It is a basic constitutional principle in the UK that the Government must command the confidence of the House of Commons. There is nothing in the Act to suggest that either that principle or the convention that institutionalises it has been swept away. And it is not for a “Parliamentary source”, however “authoritative”, to determine that the Act has had such an effect.
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