Un-reforming Parliament?

BBC Parliamentary correspondent Mark D’Arcy’s (@DArcyTiP) latest column discusses the possibility that should the May 2015 general election result in a single-party majority government, either Conservative or Labour, the Fixed-Term Parliaments Act is likely to be repealed.

I fully understand why the major parties in the UK would be inclined to repeal this Act. Unlike similar legislation here in Canada, the UK Act fixed the duration of the parliament at five years, rather than the more usual four year duration of a majority parliament. The five-year term was the subject of much puzzlement and a fair bit of disagreement during the various hearings on the bill. However, some have come to appreciate the five-year fixed-term as it allows politicians and parliament itself to take a more long-term view, as we heard from some witnesses during more recent committee inquiries.

That said, the Fixed-term Parliaments Act was brought in by the Coalition government largely due to political necessity; both parties in the Coalition wanted to ensure that neither party would be able to easily abandon the coalition in order to take advantage of favourable polls.

Readers of this blog will remember that I am not entirely sold on the need for fixed-term parliaments, however, there is one thing about the UK legislation that I did like. Unlike fixed-term parliaments legislation in Canada (federal and provincial) the UK Act is binding, meaning it overrides the Prime Minister’s (and Crown’s) prerogative to dissolve parliament when he or she so wishes. The Canadian fixed-term Acts work on the honour system, so to speak. None of these Acts adopted in Canada infringe on the the Constitutional and conventional powers of the Crown to dissolve parliament (on the advice of the PM or premier, of course). For the most part, the Acts have been respected, and elections called on the dates proscribed by the legislation; however, there have been a couple of examples of elections being called early, one at the federal level (2008) and one in Quebec (2014). In both instances, it was a minority parliament situation, but in both cases, the government of the day had not lost the confidence of the House.

In the UK, under the Fixed-term Parliaments Act, this would not be possible. The only way an early election could be called is if two-thirds of MPs voted to end the Parliament before the scheduled fixed date.

The other aspect of the UK Act that I really like is that the confidence convention has been greatly modified following the adoption of the Fixed-term Parliaments Act, 2011. The Act has had the effect of not only significantly impinging on the Prime Minister’s prerogative to dissolve the House should his or her government lose a confidence vote, but has also removed the confidence component from many traditional implicit decisions of the House. As explained in the Cabinet Manual (italics added):

2.19 Under the Fixed-term Parliaments Act 2011, if a government is defeated on a motion that ‘this House has no confidence in Her Majesty’s Government’, there is then a 14-day period during which an alternative government can be formed from the House of Commons as presently constituted, or the incumbent government can seek to regain the confidence of the House.

If no government can secure the confidence of the House of Commons during that period, through the approval of a motion that ‘this House has confidence in Her Majesty’s Government’, a general election will take place. Other decisions of the House of Commons which have previously been regarded as expressing ‘no confidence’ in the government no longer enable or require the Prime Minister to hold a general election. The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.

In other words, as a result of the Fixed-term Parliaments Act, a successful amendment to traditional implicit matters of confidence, such as the Queen’s Speech, is no longer regarded as a vote of no confidence in the government. This is because, for the first time, the bill offered a legal definition of a no confidence vote –a motion stating that “That this House has no confidence in Her Majesty’s Government.” – meaning that defeats on matters such as the Queen’s Speech or the Budget are no longer regarded as votes of no confidence in the government. Prior to the Act, it was a motion of no confidence if everyone agreed that it was a motion of no confidence.

Because of this, I would prefer it if the Fixed-term Parliaments Act were simply amended to change the term duration to the more traditional four years rather than see the Act repealed.

What is more disturbing to me, however, is D’Arcy’s suggestions that other recently-adopted procedural reforms might be significantly altered, and not in a good way. Chief among those is the election of Committee chairs. Applied for the first time in the current parliament, the chairs of select committees are currently elected by all MPs. By all accounts, this has contributed greatly to making the House of Commons select committees far more independent, and for the most part, this new independence has been very favourably viewed by both parliamentary observers, researchers and MPs themselves. It has been less favourably viewed by the Government, however, as D’Arcy explains:

Chairs of select committees are elected – Conservative party managers were irked at the way the recent all-MP elections for chairs of the Health and Foreign Affairs Committees installed mavericks Sarah Wollaston and Rory Stewart.

Those committee chairs are reserved for Conservatives under a share-out agreed at the start of the Parliament and the complaint was that Labour MPs consciously opted for the candidates who would make life most difficult for the government.

The alternative would be to restrict the electorate to the party to which the committee chair was allocated – which would make the elections a very different game, and probably give the party leaderships much more control.

I think this would be a very unfortunate step backwards for the House of Commons should it come to pass. The question is, would it be that easy for a single-party majority government to get such a change adopted? As I’ve stated, the new-found independence of the committees has proved to be quite popular for the most part. There are efforts underway to reform the legislative committees – the committees which are struck to review bills – in the same way in order to make the scrutiny of bills a less partisan process. Unlike here in Canada, party leaders cannot guarantee that their backbench MPs will vote the way the party leadership would want them to on certain measures. Many backbench MPs know they will never end up in cabinet (and many don’t want to be in cabinet), and the thought of being a committee chair (or even a member of a strong, independent committee) will appeal to them. It may be difficult to get such a change adopted. At least, I hope it will be and that such a change won’t be adopted. It would be a step backwards.

D’Arcy writes that there is also discontentment with the debates held under the aegis of the Backbench Business Committee. Many of the debates held, which have included votes, have been on issues which the Government would have preferred that no debate take place. These votes are not binding on the Government but they can and have been somewhat embarrassing, Because of that, D’Arcy speculates that a future single-party government may try to change the standing orders so that Backbench Business debates are non-voteable. Such a move would also displease a fair number of backbenchers, I would think, since many of them love a good opportunity to embarrass the Government.

All of these “un-reforms” would be quite unfortunate if they were to proceed.

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  • JD Mussel

    Personally, I’m sympathetic to the idea of having longer terms, if they indeed do promote more long-term thinking among politicians. Of course, even if there’s enough evidence to suggest that is the case, there’s a limit – but five-year terms are not out of the ordinary around the world; France, Austria, Italy, India and South Africa all (normally) have five-year legislative terms, among others, with even more cases of five-year executive terms.

    What do you see as the advantage in having only explicit motions of non-confidence, as defined by the fized-term parliaments act?

    • Constitutionally-speaking, both in the UK and Canada, a parliament cannot last longer than 5 years – it automatically dissolves. But normally, only governments that know they will be soundly defeated at the polls try to hang on beyond the more usual 4 years.

      The problem with the traditional measures that are considered implicit votes of confidence is that it is entirely political – if a government decides it wasn’t a vote of confidence, it will ignore the fact that it was defeated on a supply measure, for example and keep going as if nothing happened, while the opposition will be going bad saying the gov’t doesn’t have the confidence of the House. It’s not a procedural thing, so it can get very messy as you can’t appeal to the Speaker to decide one way or the other. Excellent example of that in this article by Andrew Heard, if you can get your hands on a copy: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1038852

      Also in Canada, we do not have any tradition of governments just resigning so a new gov’t could maybe be formed — they just request a dissolution and a new election.

      • JD Mussel

        The maximum duration was actually 7 years from 1716 to 1911.