I am pleased to submit written evidence to the Committee on its inquiry into the Fixed-term Parliaments Act 2011 and Motions of No Confidence under it.
The Committee will appreciate that this is a complex subject which involves a mixture of statute and long-standing constitutional convention.
Underlying constitutional principle
Established Convention on Confidence
(a) the Government acceded to a demand from the Leader of the Opposition for a No Confidence Motion on the basis that the Official Opposition was an alternative Government. Such a Motion was taken in Government time.
(b) Government itself could make a matter of policy a Confidence issue.
(c) Defeat on a Motion of No Confidence led to resignation of the Prime Minister and Dissolution under prerogative power (1924) (1979).
(d) It should be noted that this system is still operating in Canada/Australia at federal level, within fixed terms, as the Prime Minister can seek dissolution from the Governor-General.
Provisions of Section 2 and 3 of 2011 Act
(b) the passing of a No Confidence Motion but with a provision that a Confidence Motion is not passed within 14 days reversing that resolution.
Disadvantages of the Act
a) Changing from a system based on convention to a statutory system means that parliamentary proceedings could be subject to interpretation in the courts. For example there could be a dispute about whether a No Confidence Motion had or had not been properly agreed to. That could happen in a fraught situation where Government had a small majority.
b) The provision in Section 2 (3) & (5)for a Confidence Motion to be passed within 14 days of the passing of a No Confidence Motion considerably strengthens the hand of Government. In 1979 the Government of the day was forced to resign when a No Confidence Motion was passed by a majority of one, something that could certainly have been overturned in a 14 days period.
c) The provision of a 14 day period raises considerable complications including the likelihood of the Crown being drawn into the matter.
d) It is open, under Section 2 (4) for the Government to move a Motion of No Confidence in itself to avert the need for a two-thirds majority needed in Section 2 (1) of the Act to force Dissolution.
Censure outside the Act
Royal Prerogative of Dissolution
Conclusion: Options for Committee to recommend
(a) particularly by deleting the provision in Section 2 (3) & (5) for a successful No Confidence Motion to be reversed within a fourteen day period by the House agreeing to a Confidence Motion. Such an amendment would remove most of the disadvantages set out in paragraph 8 above;
(b) in Section 1 (3) so as to set a four, instead of a five, year term. Four years has been argued as a more reasonable length for a term and matches provisions in most Commonwealth parliaments; and
(c) in Section 2 (1) reducing the 2/3 needed in favour of an early general election to a simple majority.