Much ado about the Fixed-term Parliaments Act

It would be remiss of me to not comment on the growing worry over the UK’s Fixed-term Parliaments Act (FPTA) and its possible consequences should the May 2015 election result in another hung parliament, as most pundits expect will be the case.

While I wrote a fair bit about the FTPA when it was going through the legislative process back in 2010-11, I will briefly outline its main features. Unlike Canadian legislation fixing election dates, the FTPA is binding. The duration of a parliament is set to five (5) years, and the Prime Minister cannot unilaterally call for an earlier election. The royal prerogative of dissolution has been removed.

That said, an early election is still possible, by one of two means. First, the House of Commons can vote in favour of the motion “That there be an early parliamentary election”. The only catch is that this motion must pass by a two-thirds majority of all seats in the House – even vacant ones. That means, with 650 seats, at least 434 MPs would have to vote in favour of the motion.

The other possible way an early election can be held is if the government is defeated on the motion “That this House has no confidence in Her Majesty’s Government” and, 14 days later, the House has not passed the motion “That this House has confidence in Her Majesty’s Government”. In other words, the government must be defeated via that specific motion of no confidence. This then starts the clock on a 14-day period during which the recently-defeated government can attempt to regain the confidence of the House, or the House can explore if a new government can be formed that would have the confidence of the House. If, after 14 days, the House has not been able to pass a motion of confidence in a new government or in the old government, then an early election would be triggered.

This all seems rather straightforward, does it not? However, in the UK, many columnists and constitutional experts are quite worried about the FTPA, and evoking all sorts of nightmare scenarios which might arise.

One recent one is this article by Prof. Catherine Haddon. Prof. Haddon writes:

If a government loses that confidence vote, we then hit a big ambiguity at the heart of the legislation. Previously, a PM 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. However, the 14-day clock only stops when a government is approved by the House – and this requires any new government to already be in place: the wording specifically says that the motion must be “confidence in Her Majesty’s Government”. 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 amongst other party leaders, despite having lost a vote of confidence?

I will concede that the FTPA is absolutely silent on what happens during that 14-day government formation period between a non-confidence vote and potential confidence vote. However, the Cabinet Manual does address this matter:

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.

2.20 Where a range of different administrations could be formed, discussions may take place between political parties on who should form the next government. In these circumstances the processes and considerations described in paragraphs 2.12-2.17 would apply.

And what are the processes and considerations described in paragraphs 2.12-2.17? Government formation following an election where no party wins an outright majority of seats – a hung parliament. In other words, under the FTPA, should a government be defeated on the motion “this House has no confidence in Her Majesty’s Government’, the 14-day period would be treated the same as the period following the election that resulted in a government. The incumbent government would remain in place in a “caretaker” capacity, the various parties would negotiate amongst themselves, and once a government had emerged which could command the confidence of the House, the incumbent PM would resign and the Queen would ask the new PM to form a government. Or, the incumbent government might be able to regain the confidence of the House itself. Either way, the rules and processes that apply following an election would apply here as well. These are paragraphs 2.12-2.17:

2.12 Where an election does not result in an overall majority for a single party, the incumbent government remains in office unless and until the Prime Minister tenders his or her resignation and the Government’s resignation to the Sovereign. An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.

2.13 Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government. The Sovereign would not expect to become involved in any negotiations, although there are responsibilities on those involved in the process to keep the Palace informed. This could be done by political parties or the Cabinet Secretary. The Principal Private Secretary to the Prime Minister may also have a role, for example, in communicating with the Palace.

2.14 If the leaders of the political parties involved in any negotiations seek the support of the Civil Service, this support may only be organised by the Cabinet Secretary with the authorisation of the Prime Minister. If the Prime Minister authorises any support it would be focused and provided on an equal basis to all the parties involved, including the party that was currently in government. The Civil Service would continue to advise the incumbent government in the usual way.

2.15 Following the election in May 2010, the Prime Minister authorised the Civil Service to provide such support to negotiations between political parties.

2.16 As long as there is significant doubt following an election over the Government’s ability to command the confidence of the House of Commons, certain restrictions on government activity apply; see paragraphs 2.27–2.34.

2.17 The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

  • single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
  • formal inter-party agreement, for example the Liberal–Labour pact from 1977 to 1978; or
  • formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons.

Granted, the Cabinet Manual is guidance only; in the Preface we read: “It is not intended to be legally binding or to set issues in stone. The Cabinet Manual records rules and practices, but is not intended to be the source of any rule.” But while not the source of any rule, it is based on the long-standing conventions, rules and practices of Westminster parliamentary democracy, and thus is still quite authoritative.

The sub-title or byline of Dr. Haddon’s article, which I grant she may not have written herself — it might be an editorial addition — bothers me: “The law passed to keep the Coalition together could end up with whole new governments forming and ruling without an electoral mandate”. Dr. Haddon does not actually say this in her article, but it is implied:

But let’s assume the Act works as intended, and a new government is formed without holding an election. This would represent quite a shock to the political system. FTPA could mean, to take one possible scenario, a Tory minority government being replaced by a Labour-led administration with the ambition and potential to govern right through till 2020. Indeed, this second government could itself be replaced without an election. Nothing in the Act restricts the number of times we go through the merry-go-round of governments falling and being replaced.

Not since the 19th century has it been common for new governments to be formed without holding an election – and even then, most sought a new mandate in order to boost their legitimacy and parliamentary strength.

Why this bothers me is because it overlooks, or downplays, the fact that we don’t elect governments. Governments do not get their mandate from the electorate, they get it from the House of Commons. When we vote, we vote to elect our MP. All of those MPs form a new parliament and it is that parliament which will determine who will form the government. A government will last only as long as it commands the confidence of the House. It is the House of Commons that has the electoral mandate to both choose and defeat a government, and it is important that we remember that.


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