As regular readers will know, I have variously taken issue with claims that are incorrect, but which have continued to be recycled by commentators. I suspect the problem is exacerbated nowadays by the fact that commercial pressures and a 24-hours news cycle means that news outlets do not have time to check and so simply regurgitate what someone else has said. I thought it may be helpful to draw together some previously identified in posts on the blog. (Click on the italicised title to see the relevant blog post.) As the more avid readers will recall:
1. A Prime Minister can no longer call a ‘snap’ election. The Fixed-term Parliaments Act 2011 has removed the monarch’s residual power of dissolution. Some commentators, I am pleased to say, do now recognise the implications of the Act. Others are aware the Act exists, so work in reference to it, but along the lines of ‘The Fixed-term Parliaments Act is a problem, but it can be fixed’. They do not say how it can be fixed. To me, that suggests that awareness of the Act’s existence does not extend to knowing its provisions. Some still seem to think that the PM can go to the Palace to request an election.
2. Magna Carta 1215 did not establish our liberties. David Cameron when PM made grand claims for the Charter as the basis of our democracy and our rights and liberties. It was not the first charter to concede rights and the rights it was protecting were essentially those of the barons. ‘Freemen’ at the time comprised a rather small body. It was not the basis of jury trials. Insofar as Magna Carta merits celebration in this country, it is the Magna Carta of 1216 (or that of 1225) and not that of 1215.
3. Mhairi Black is not the youngest MP since 1667. This appears to derive from a well-known broadcaster on election night Googling to find the name of the youngest MP in history and assuming that a 20-year old elected in 2015 must be the youngest since that time. Prior to 1832 it was far from unusual for an MP to be returned under age and for the House to accept the election, despite minors being prohibited from sitting. Charles James Fox was elected at the age of 19. One Member was elected in 1832 having just turned 18. Mhairi Black is the youngest MP since 1832. Given that MPs before 1832 who were allowed to sit under age did so despite minors being prohibited from sitting, Ms Black can point out that she is the youngest MP in history lawfully to take her seat.
4. The Conservative 1922 Committee was not formed in 1922. The Committee came into existence in April 1923. Its name derives from the fact that it was formed by a number of Conservative MPs first elected in the general election of 1922. They formed what amounted to a self-help group which they called the Conservative Private Members’ (1922) Committee. It later expanded to encompass all Conservative Private Members.
5. It is more appropriate to say referendums than to say referenda. Some people insist on ‘referenda’ without realising that as a Latin gerund referendum has no plural. That it is more appropriate to use referendums is recognised by Parliament, which is why all parliamentary reports on the subject use ‘referendums’.
I am sure readers can suggest others to add to the list….
The Norton View 
Is it true that the European Communities Act 1972 would need to be repealed before we leave the European Union? My belief is no but I would like your judgement.
Dean B: You are correct: the Act does not need to be repealed before we leave and indeed technically could remain on the statute book even after we withdraw from the EU.
I can’t quite decide if journalists are astonishingly lazy, ie don’t keep up with the law or deliberately dishonest about the FTPA because the ‘snap election’ is just too good a story/discussion point to b spoilt by the truth….
On your point about the European Communities Act 1972 I agree but having heard a law professor bafflingly claim the Act joined us to the EEC (it did not) I can’t entirely put out of my mind that the courts might give us one of those ‘what the ****’ decisions….
Another is that Prime ministers are not ‘elected’. They are appointed (by the Monarch of the day). There is no election of a Government of the UK. You can say ‘indirectly elected’ at most. It is a principle of parliamentary government that the government is NOT elected, but formed after a majority or coalition is formed after a General Election in he House of Commons. Whereas in US-style republics is IS a principle that the government be directly elected.
And of course there is always the old favourite, “Westminster is not the mother of parliaments”.
I believe that your phrase is correct but it is often wrongly described as the “…mother of all parliaments”
Indeed. John Bright described England as the mother of Parliaments. I variously point out that we still do not know who the father is.
Very interesting analysis as always. Re an early election, as you say it’s complex, but surely what May could do would be to arrange to lose a vote of confidence. For example she could propose a bill to permit academic selection and say it was a confidence measure. It would be too important for Labour and the Lib Dems to abstain, so if 10 or 20 Tory MPs abstained confidence would be lost, and if Labour could not form a government in 14 days an election would be held. For that election the Tory manifesto could call for academic selection, so if as is likely the Tories won, with an increased majority, the Lords would be unable to resist academic selection.
William MacDougall: No, that would not work. Losing a vote of confidence does not trigger the provisions of the Fixed-term Parliaments Act. Section 2 only applies if the motion ‘That this House has no confidence in Her Majesty’s Government’ is carried.
Hmmm. But what if the Government says if you don’t pass this motion then we will conclude we lack the Confidence of Parliament and resign, and then no other group can form a majority, can win a confidence motion. Then there would be no Government, wouldn’t that trigger an election? Can you really require a positive vote that there is no confidence?
No, I am afraid that would not work either. A Government resignation in itself would not trigger any provisions of the Act.
The parties could, of course, agree that there should be an early election and by a 2/3 majority of all MPs (if there is a division) pass the motion that there shall be an early general election. Alternatively, the Government could engineer a vote of no confidence in itself (which requires only a simple majority). That exhausts the possibilities under s2 of the Act. If neither situation occurs, then the Act is silent and it is a case of negotiations taking place to form a new government; otherwise, we could have no government until the next general election.
Wow. Thank you for your reply here and below clarifying just how powerful the Act is. I suppose that if the Government resigned the Queen would still have the power to appoint someone, any MP or Lord, Prime Minister, and then Parliament could vote “No Confidence”, but that would be risky as she might appoint Mr. Corbyn who might then be PM for at least 39 days; anyway it’s really just a roundabout way of the Government voting no confidence in itself. The untried question is what would the public reaction to such a vote against itself be? Perhaps they would just treat it and the subsequent 14 day wait for someone else to try to gain Parliament’s confidence as “calling an election” just as they ignore and mostly are ignorant of all the malarkey about the “Chiltern Hundreds”…
William MacDougall: Yes, that is where politics dictates how to utilise what is provided by statute. A Government may try to engineer a vote of no confidence in itself if it was confident of winning an election, with voters not being put off by the method by which it was triggered. Utilising this route would suggest that the other route under s2 of FTPA was not possible, presumably because the Opposition was not prepared to support it, suggesting they do not want to face an election.
“The Queen can not vote.” She can though it is said she chooses not to, but how would one check?
I am interested in the practicalities of a referendum on Brexit terms. The EU will not negotiate formally until the Article 50 notice is given. Let us assume that terms could be agreed within 18 months, giving time to hold another referendum before the end of the two year notice period. If there was another referendum it would have to be on the acceptability of the terms as the commitment to leave would already have been made and Article 50 contains no provision for the withdrawal of the notice. If the referendum was lost, would not the Government be in a position that it either had to sign the terms, using its prerogative, regardless of the outcome or exit the EU without any agreed terms or get the agreement of every single member State to extend the deadline at whatever cost they each chose to impose. Does this not make the suggestion of a referendum on the terms totally impracticable?
Further to your question, I’ve heard it suggested that Article 50 is not in fact final, that it only declares an intention to leave but that it is possible to withdraw that intention, see:
http://uk.businessinsider.com/brexit-how-does-article-50-work-2016-7
I’d be interested to know if Lord Norton agrees.
@ William MacDougall:
It would indeed be interesting to hear what LN has to say on this process you site.
However, my understanding of the Article 50 process is, the government only has to seek consent from the other EU members States in the event it doesn’t invoke Article 50 before a six month date is reached. And that is what seems to be the plan we are watching taking place before our and the world’s eyes. What a humiliation for us all.
However, on another legal website the claim is, we do not have to invoke Article 50 at all as it is in the power of the Crown to declare separation at any time. Which would make more sense when signing a treaty of this kind in the first place.
However, the mess makes it so apparent our lawyers don’t know what the hell they are doing when either scrutinising a legal document of such sweeping nooses around our necks, or, a serious care to what it is they are taking on, on behalf of our nation.
Re Maude Elwes note below,
I think leaving by a simple act of Parliament would be a breach of treaties, and therefore not wise. It would also fail in the Lords.
Re Article 50, I’ve heard both views, hence my wanting to know LN’s view.
@ William MacDougall
Frankly, breaching of treaties will do what exactly? Why do you feel that would not be wise? Treaties are breached all the time one way or another. As we have seen repeatedly over how many decades? When countries who believe they have some kind of treaty only to find allies troops suddenly on their doorstep or a change of plan they hadn’t expected. Turkey comes to mind. Then, of course the coups instigated and backed by said allies, and so on. So, please, put me straight, what is the difference in this situation with the EU? So far they have no army, so what is the great fear. They have more than us to lose, don’t they?
The Lords, we are told, have no power in decision making, as they are unelected and simply used to scrutinise legislation. Therefore, although they may not enjoy the will of the people, and try to impose their views on a public they are totally out of touch with, what can they do in reality? Anyone want to fill me in?
Just as you, I too, would very much like to hear from Lord Norton on all these matters and look forward to his response.
Re your post of 2.32; if you use a procedure in a Treaty to end it, then no one can object. If you break a treaty, others might feel free to break treaties with you, or simply be nasty in return, so in general it is not a good idea except in extreme necessity. And in any case it would not be faster than the two years of Article 50 (which apparently does not require Lords approval); if you could get it through the Commons, which I doubt, you could not get it through the Lords (which would be required for a Law repealing EU membership), and forcing it through using the Parliament Act would take more than two years.
@ William MacDougall:
I feel you may find, if you dig deep enough, the EU movers and shakers have been playing Mr Nasty for a very long time. And that same ‘nasty’ was well introduced long before we voted Brexit. They, unlike our out of touch brigade, knew full well the vote would be ‘exit.’ They have an extremely active Debating Forum and they could smell it hot and rampant. They did not refuse to listen.
So, if the UK is smart it will move quickly on every level and make sure it takes the will of the people as very serious as well as irate. The Owen’s as well as the Clarke’s of this world are dreamers, and Corbyn should have the courage to admit his preference, as his supporters are the ones who understand the appalling grip this club has on our well being.
http://www.euractiv.com/section/future-eu/news/top-secret-commission-doc-outs-enemies-before-pro-eu-offensive/
Any Treaty by future traders would make sure they didn’t fall into the trap of thinking the British are ready to be vanquished.
Its 1 year for the parliament Act
“The UK does not have a written constitution.”
There’s the obvious, and perhaps an opportunity: given the change with the rule of primogeniture coupled with Brexit, could we not slip in a sentence or two that began “The United Queendom…”, or we could go for a twofer and simply abandon the whole United thing.
First of all, LN, this government along with their back room boys, must know, without any doubt that should they find a way to call a no confidence vote in this PM, and subsequently call a GE, the Conservatives would win by a large majority. Or, at very least, a decisive one. Labour is in a mess and neither Smith or Corbyn are prepared to be up front and lead with honesty of policy.
More importantly, is the pressing need to reassess the manifesto of both parties, so much has changed since the last election and this PM needs the backing of the nation. Any fool can see that.
However, if the Conservatives want to really win an election, carrying with it, UKIP voters and the working class who voted for Brexit, they must include the wishes of the public in the round.
Suggestions. Get on with Brexit, declare Article 50, or, do what has to be done in law to get that ball rolling. This game playing will lose votes and leave the financial sector guessing for too long, which creates chaos rather than brings stability.
Push the social housing snippet, every one sold will be doubled and so on. Insure the return to grammar school opportunities to the less well off, rather than forcing them to pay for a lesser house in a decent school catchment area. Deal with the NHS. You all know as well as I do the biggest reason for the mess that organisation is in is due to ten million more people, either entering the UK, or, the high breeding of those who do enter. You cannot run a health service funded for 54 million people when there is really at least 65 million to date. We also know the yanks are sitting, breathing heavily, at the prospect of it being fully privatised and the billions they will fiddle from that. So cut that idiotic nonsense and shut off foreign aid to get it right. It will be a vote winner. The only supporters that will lose are those who should not have a vote, or, more, will not use it. Stop giving immigrants, no matter where they come from, benefits of any kind. Do not house people who come here from Cameroon, via Paris, with eight children in social housing property. Do not give them funding for further education whilst refusing our own people the same right. Do not put them up in hotels at our cost. Send them back to Paris and have the French put them up in hotels at their cost.
End political correct nonsense and make it illegal to use it in any debate or political programme on any channel unless they have proven facts that they site during that programme. The only political programmes I can stand now, are on RT. The propaganda is hidden with far more interesting and intelligent discussion than any of our equivalents that make no sense. In fact our outlets and journalists are sounding more like madmen than David Eyck.
Attack production of insecure jobs by thwarting globalisation, It is a loser and will only reduce our wealth horrendously. Get rid of Mark Carney, Rees-Mogg is so right on this one, listen to him.
And be serious about a leader for goodness sake. We need a powerful voice of fearless conviction, not a whimsical here with an idea today and there with another tomorrow, kind of person. We also need the sense of moral conviction coming from the mouth of any leader.
What has shocked me more than any other talk from Parliament in this last week or so, is the backing of an MP who is into the notion of ‘human trafficking’ without even realising this is what has been carried out. Any using of a go between to produce a man of woman for sexual rent is not prostitution based on a one to one business deal. Approaching a trafficker, to find a vulnerable person from the Eastern Block, meaning cheap and probably coerced, is just what the Pope is trying to put a stop to. Yet, this man who feels he is fit to Chair such an investigation, continues as an MP in our House of Commons, shows an incredible lack of even the basic sense of decency. Especially when other MP’s and Lords, ask us to feel compassion for his predicament of being outed. Please wills omeone give me air.
A pertinent letter from Lord Lexden to The Times:
Sir, It is true, as Baroness Stowell says (letter, Sep.5), that more peers were entitled to sit in the Lords before 1998 than now. Average daily attendance, however, was much lower—some 250 as compared with nearly 500 now.
Previous generations would have been astonished by this dramatic change. Lord Samuel, Liberal leader in the late 1930s, said: “The efficiency of the Lords depends on the persistent absenteeism of most of its members.”
Lord Lexden
House of Lords
https://www.alistairlexden.org.uk/news/absentee-peers
The current size of the Lords is indeed ridiculous. The best solution would be an elected senate, but the second best would be to reduce the current Lords in some way. I suggest doing it by lot, removing 3/4 of the current members at random to make it a practical size.
I must admit I was rather caught by Lord Lexden’s subtle reflection based on his intimate knowledge of the HoL. It would be a great pity if he were to be randomly extinguished.
Re the size of the Lords, there is a simple procedure that has its roots in precedent (and hence more likely to be acceptable to both the Commons and Lords); restrict the creation of new peerages to one for every three (or four or five) exits from the Lords. It was a provision applied to the Irish peerage since 1801.
Any new creation could alternate between a prime ministerial recommendation and one from the House of Lords Appointment Commission (i.e. People Peer).
Good idea, but surely it would take too long to reduce the Lords to a manageable size?
If anything it will go up; and up significantly…Since its perfectly clear a majority of peers are prepared at best to obstruct and at worst sabotage brexit I can’t see any circumstances bar major curtailment of the Lord powers or election that won’t necessitate large number of brexit peers..
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