Writing in the Irish Times, Mark Hennessy has argued that the Fixed-term Parliaments Act 2011 has a fatal constitutional flaw.
Section 2(3) of the Act states that an early General Election may be held if the House of Commons passes a motion of no confidence in the incumbent Government. Once this happens, there is a fourteen-day window in which to form an alternative administration. The new Government would have to be endorsed by a vote of confidence. If this doesn’t happen, Parliament will be dissolved early.
Hennessy argues that these provisions are fundamentally flawed. He notes that the defeated Government would remain in office as a caretaker administration, and he argues that this means that any subsequent vote of confidence could only affect the incumbent ministry and not its putative successor.
While I suppose the parliamentary draftsmen could have worded section 2(3) a bit better, I think Hennesy’s fears are overstated. I suspect the proceedings would go something like this:
- The incumbent Government loses vote of confidence and starts the two-week period for negotiations.
- Other parties see if they can form an alternative administration.
- If a viable alternative is found, the incumbent Prime Minister tenders his resignation to the Queen and advises her to send for the person who is to head the new Government.
- The new ministry takes office and seeks a vote of confidence from the Commons pursuant to the Fixed-term Parliaments Act.
If a defeated Government failed to resign even though there was a clear alternative waiting in the wings, the Queen would arguably have a right and a duty to dismiss them. I find it very hard to believe that a modern Government would be foolish enough to put Her Majesty in such a position, though.