Is The Fixed-Term Parliaments Act 2011 Fatally Flawed?

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:

  1. The incumbent Government loses vote of confidence and starts the two-week period for negotiations.
  2. Other parties see if they can form an alternative administration.
  3. 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.
  4. 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.

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4 Responses to Is The Fixed-Term Parliaments Act 2011 Fatally Flawed?

  1. Laurence Cox says:

    I agree that the Act is not very well drafted, but I think that the situation is actually more complicated too. While, conventionally we assume that a Government that has had a vote of no confidence passed against it does not attempt to form a new Government, there is nothing in the Act ( ) that actually says that it cannot.

    For example, assume that the Labour Party + SNP has a majority of seats and a minority Labour Government is formed (supported on a vote-by-vote basis by the SNP). The SNP, for reasons of their own, subsequently brings down this Government in a vote of no confidence. In your version, the Labour party would be barred from forming a new Government, but I would argue that if they could get sufficient support from other parties (say a Labour+SDLP+LD+DUP agreement) then they could put forward a vote of confidence in the new Government (even though the PM and all ministers might be exactly the same as the old Government).

    The other possibility relates to the question of whether the Queen could dismiss a Government that did not resign. One could conceive of a situation in which no two parties (or possibly more) could form a majority and both major parties could legitimately use the whole of the 14 day period to attempt to form a Government. If the Prime Minister went to the Queen at, say, 11:59pm on the 14th day then there would not be time for the Queen to invite someone else to become Prime Minister and for their Government to win a vote of confidence in the Commons. The FTPA does not provide any mechanism for ‘stopping the clock’ in this situation and some minor parties might see the time pressure as a useful tool for extracting further concessions from a major party.

    • jasonloch says:

      Sorry, I didn’t mean to imply that a vote of no confidence would *always* result in a “new” Government. You’re quite right that a defeated Government could ultimately remain in office if they were able to find support from other sources.

  2. I think it would be as well to assume politicians at this level understand both the law and the constitutional conventions sufficiently well to think through the implications of a no-confidence vote in advance. It is a convention, not law, that a government which loses a vote of confidence, or a vote which is seen as a vote of confidence, has to give up office. In the past that has usually been by calling an election, as in 1979. But alternatively, a new government can be formed without an election, as in 1940. The FTPA requires a process to examine both options and I think Laurence is right to conclude that at the end of the two-week period the government does not have to be new in any sense.

    The key effect of the FTPA, to my mind, is to take away the tactical advantage that a Prime Minister had to call an election whenever he or she thought it most advantageous and to give the advantage to the Leader of the Opposition. A PM cannot call an election but the Leader of the Opposition can choose when to call for a vote of no confidence. We don’t know what kind of arrangement will be created after another inconclusive General Election but it will either survive, as the Coalition has, to the surprise of many, or it will gradually collapse. It won’t collapse overnight so party leaders will be able to plan. The Opposition will seek a vote of no confidence only when it knows either that it is very likely to be able to form a stable alternative government or that it is very likely to win a General Election. If the former, convention will dictate that the incumbent PM must resign and advise the Queen to send for the Leader of the Opposition; if the latter the government will limp on for two weeks and there will then be an election because either the House of Commons will have rejected the vote of confidence motion or the government won’t have bothered to put it forward. Either way there is no dilemma for the Queen. The strongest convention of all is that politics is conducted without impairing the Queen’s non-involvement.

    But there is a scenario which does have some intriguing possibilities – and possibilities for intrigue! Suppose there is a minority Labour government supported by the SNP. In a year’s time the SNP are focused on winning the Scottish Parliament election, and are ahead in the polls for that election but their association with the Labour government is a disadvantage in Scotland. At the same time Labour is ahead in the polls across Britain as a whole. The SNP withdraw their support in order to strengthen their position at Holyrood and Labour is only too willing to have a General Election, but the Tories refuse to oblige with a vote of no confidence…I think what might happen in those circumstances is that Labour would force the Tories’ hand by accusing them of allowing a weak government to continue because for purely party reasons they are afraid of an election. Tories and Labour would join together to obtain a two-thirds majority for dissolution.

    • jasonloch says:

      Your point about the transfer of power from the Prime Minister to the Leader of the Opposition was quite interesting. That hadn’t occurred to me, and I thank you for bringing it up.

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