14 April 2015

As the SNP pointed out last week, the Fixed-term Parliaments Act could have major implications for British politics. As Dr Catherine Haddon explains, those implications remain little understood – particularly given ambiguities in the Act which could raise big constitutional questions at just the wrong moment.

On 24 March, the SNP’s Alex Salmond told New Statesman that the Fixed-term Parliaments Act (FTPA) could give his party great power in the next Parliament, pointing out that “nobody seems to have read” this 2011 law. Whether his first point is correct will, of course, depend on how many seats his party wins; but on the second point, he’s on to something. For as we enter a first full Parliament under this new piece of law, only two things are absolutely clear: that the Act substantially changes the rules of politics; and that nobody can yet tell exactly how these new rules will change the game.

For many decades, prime ministers have used Royal Prerogative to call an election at a time of their choosing; and the collapse of an administration has led promptly to a general election. But the FTPA changes some of the basic principles of how governments can be defeated in Parliament, and how a change of government occurs if that happens. As we face the likelihood of another hung parliament, it’s becoming clear that crucial aspects of the Act have not been thought through and may raise big constitutional questions in the midst of a major political drama.

Under the FTPA, Parliament’s fixed five-year term can only be truncated in two ways. First, if more than two thirds of the House of Commons vote to call an election – and that means 434 of the 650 MPs, not just two thirds of those in the chamber. The second is more complicated. If a motion of no confidence is passed or there is a failed vote of confidence, there is a 14-day period in which to pass an act of confidence in a new government. If no such vote is passed, a new election must be held, probably a mere 17 working days later.

So far, so clear. But from there we start to get into uncharted territory on two fronts. One is that some of the crucial mechanisms are not set out; the other is how the operation of the Act could affect political dynamics and party bargaining.

Let’s start with the mechanisms. The 14-day period only begins if the government loses a vote of confidence; and under the Act, this has been defined narrowly to exclude budgets and Queen’s Speeches – two key votes that have long been considered an effective vote of confidence. The Commons must now pass a motion using very specific wording to trigger FTPA.

A government that lost a Queen’s Speech vote could forestall that vote of confidence by resigning and recommending that the Queen offer the PM’s role to the Opposition – in which case a new government could be formed, and attempt to govern for the remainder of the five-year term.

There is an alternative: in the past, governments which have lost major votes have sometimes used the procedures of the House to delay a vote of confidence. In 1977, this allowed Labour to forge a new pact with the Liberals, regaining a majority and continuing in government. However, following a Queen’s Speech defeat this would be highly questionable, raising big questions of legitimacy. Constitutional authorities, and the parties, have different opinions on whether a PM should resign after losing a Queen’s Speech vote.

Let’s assume the government loses a vote of confidence, triggering the 14-day grace period. Here we hit a big ambiguity at the heart of the legislation: who governs during the next 14 days? Previously, an incumbent Prime Minister losing a vote of confidence would either resign immediately, handing power to a successor; or stay in as a sort of caretaker government while a second election was held – James Callaghan did the latter when we last saw a defeat on confidence in 1979. However, the 14-day clock only stops when a new government is approved by the House – and this requires a new government to already be in place: the wording specifically says that the motion must be “confidence in Her Majesty’s Government”. And at the point when the previous government has lost a vote of confidence, it may not be obvious that their opponents could themselves win one. So must the outgoing PM immediately resign and pass the reins to the leader of the Opposition, even if their chances of assembling a parliamentary majority look slender? Or should they hang on and await the outcome of negotiations, despite having lost a vote of confidence? Both solutions would be ugly and controversial.

A PM put in this position might be tempted to make it difficult for their rival to hold a new vote of confidence, and thus to form a government. And such blocking tactics would not be without precedent: in 2008, Canadian premier Stephen Harper secured a prorogation (suspension) of Parliament in order to forestall a vote of confidence. However, prorogation would require the Sovereign to exercise this remaining Royal Prerogative in support of a government which had clearly lost confidence. This drags the Queen into political manoeuvring in a way that Buckingham Palace has been keen to avoid.

Assuming our hard-pressed PM dismisses this option, they would have one further way out. Because under our constitution the powers of government are vested in the Prime Minister, they could simply hand over the leadership to a party colleague – creating a new government that could have another go at winning a vote of confidence. This would technically meet the Act’s requirements; and our political history is full of different PMs of the same party forming new governments of slightly different composition. Ultimately, it would be up to the House to decide by voting their confidence. But again, the Sovereign would be put in a difficult position, as the Queen would have to appoint the new PM before they could put forward a new confidence motion.

Of course, all of this depends on whether party leaders use the Act in these ways. The Act has been understood as a means to allow for a new government to be formed and replace the incumbent, and there would be massive political pressures in anyone being seen to abuse its provisions. If used as intended, it would bring in a government led by the former Opposition. Yet even this would be challenging in our political culture: how many changes of government could we see without an election?

If the incumbent government does resign, FTPA could mean, to take one possible scenario, a Tory minority government is replaced by a Labour-led administration with the ambition and potential to govern right through till 2020. And this second government could itself be displaced without an election if a further vote of no confidence is won. There is nothing in the Act that restricts the number of times we go through the merry-go-round of a government falling and a further government being formed.

This would mean successive administrations without recourse to the polls, and much turmoil in government. Our political culture would find this a shock, as would the money markets. Since the Second World War the UK has had plenty of examples of the governing party changing the Prime Minister whilst in power, but we’re not used to the party of government changing without the need for a general election. In the 18th and 19th century it was more common for governments to fall and a new party or combination of parties take over; but most sought a new mandate – if only to improve their power in Parliament. So in this situation the pressure for a new election would be massive, and an opposition party might decide not to form a government in the 14 days – precipitating a new election.

The FTPA might, of course, be repealed by the next government. But here there are also difficulties. If the big parties do indeed lack a majority, would the smaller parties – who will not benefit from the substantial political advantage of choosing when to call an election – want to hand back that power? Labour and the Conservative could unite to force the change through. But, the FTPA took away a Royal Prerogative, continuing a centuries-long flow of powers from the monarch to the legislature. Reversing this flow, or asking Parliament to put that power in the executive’s hands, might be possible in legal terms, yet would be a tricky argument to make. It is not something the UK’s constitution has had to attempt. It might be easier to amend the current Act, moving to a simple majority, rather than the two-thirds, in order to call an early election.

Those planning for any post-election hung parliament negotiations will have to think hard about the FTPA’s significance. Gavin Kelly, a former Number 10 Deputy Chief of Staff, called it a “game-changer” at a recent Institute for Government event. Whilst MPs might be less enamoured with the idea of another coalition, he argued that minority governments are now rather more risky – for if they fell after a year or so, the prospect would not necessarily be of another election, but of handing power straight to their main rivals. This, said Kelly, creates a new incentive for people to build solid coalitions.

For smaller parties, too, the levers and risks look different now. Before FTPA, if the Lib Dems or SNP brought down a minority government, they’d have to explain themselves to the voters in an election; nowadays, they might end up kingmakers to a new government of a different hue, postponing that difficult conversation until they have a chance to deliver something for their supporters. Alex Salmond is already attempting such risky cat and mouse games.

Governments can and do navigate minority quite successfully, and for some it is preferable to coalition. Any minority government only dies by the ability of the other parties to form an opposition majority – something that’s not as easy as it sounds. But the FTPA still has big implications for our parliamentarians and party leaderships; and we’ll only learn their exact nature as the Act is tested in anger. The Fixed-term Parliaments Act was introduced to level the political playing field and strengthen the chances that the Conservative-Lib Dem coalition would survive for a full term. But its significance for British politics could go much, much further than that.

Comments

Another curious question is what happens if the government wants to call a new election (perhaps because it thinks its support has increased), and can get 50% support for this but not the required 2/3 supermajority. In theory at least, it has various options. It could (with only a simple majority) pass an act repealing the 2/3 requirement of the FTPA. Or it could call a vote of confidence in itself and whip its own members to vote against it! After all, it is only the wording of the confidence motion that gives it the magic power to dissolve parliament, not its intention, just as an adjournment motion is literally just a motion to adjourn but may be understood as being about something quite different.

It seems to be the case that the legislation which goes through on the nod and with little discussion in the media provides the knottiest problems in latest years.

Does anyone remember this Act being discussed while going through Parliament?

Did the Institute for Government make public the doubts expressed in this article?

How can it be that fundamental changes to long standing parts of our constitution could have been altered without anyone noticing until now?

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