Professor Vernon Bognador, Kings College London – written evidence, (FPA0004)
- The Fixed Term Parliament Act has three crucial weaknesses.
- The first is that it requires a vote of no confidence to be a specific vote.
- The second is that it lacks clarity as to what is to happen during the 14 days after a successful no confidence vote.
- The third is that the 2/3 threshold for an early election is too high. It could mean that a House of Commons in which the majority seek a dissolution is unable to secure it.
- The unintended consequence of the requirement that the vote of confidence must be a specific one is to restrict a Prime Minister’s options for dealing with a political crisis. In my book, The Coalition and the Constitution, published in 2011, I failed to give full consideration to the fact that in future a vote on a substantive issue could no longer be made a matter of confidence by the government. In 1972, Edward Heath had declared the Second Reading of the European Communities bill to be a matter of confidence and told MPs that if it were defeated, he would seek a dissolution. Second Reading was passed by eight votes. This possibility no longer exists.
- Had the Act not been on the statute book, it might have proved possible to resolve the parliamentary deadlock in 2019. Theresa May could have made the Withdrawal Agreement a matter of confidence. Then, either the rebels would have come to heel, or she would have sought a dissolution. As it was, the Commons refused to endorse the deal; it also refused to vote no confidence in the government. This led to a situation predicted in my book whereby a government was able to continue in office but without being able to secure its major policy.
- The second serious weakness of, the Act is that it is left unclear what is to happen in the 14 days after a successful no confidence vote. Three possibilities suggest themselves.
- The Prime Minister could resign, and the leadership process could be concertinaed so as to yield a new leader within 14 days. The Prime Minister then recommends to the Palace the new leader of his or her party, as leader of the largest party in the Commons. In the circumstances of 2019, a new Conservative Prime Minister might perhaps have secured passage of the Withdrawal Agreement or of a modified version.
- The Prime Minister could resign and recommend to the Queen as her next Prime Minister, the Leader of the Opposition, as mover of the no confidence motion. If, as is likely, the former Leader of the Opposition, now the Prime Minsiter, could not survive a no confidence vote, he would lead the country into an election as Prime Minister.
- The Cabinet Manual declares –para. 14 – that, after a successful no confidence vote, `a Government or Prime Minister --- is required by constitutional convention to resign’, and in para. 16, the Prime Minister `is expected to tender the Government’s resignation immediately’. But suppose the Prime Minister were to ignore the convention and seek to play out time by remaining in office for 14 days after which an election would be due. Or, perhaps he or she might seek to circumvent the 14 days by seeking an immediate election through the two-thirds mechanism, assuming that the official opposition would support this. The position is very unclear.
- Whichever of these three possibilities occurred, the Queen could easily be put in an embarrassing position.
- These considerations confirm my view that the Fixed Term Parliaments Act should be radically modified.
- The provision in relation to a no confidence vote should be repealed so as to restore the status quo ante.
- The provision relating to the two-thirds majority should be amended so that a majority government can in normal circumstances secure a dissolution, while a minority government should be entitled to a dissolution unless there is clear and specific evidence that an alternative government can be formed from the existing House of Commons. In other words, the requirement for an early election should be reduced from two/thirds to 50%+1. Such an amendment would have protected the Liberal Democrats in the coalition government of 2010-2015 from a dissolution decided upon by a Conservative Prime Minister against Liberal Democrat wishes. It would, therefore, have met the prime purpose of the Act.
- It would then follow that a government defeated in a no confidence vote would be able to secure an immediate dissolution, without a 14 day interval, unless there wereclear and specific evidence that an alternative government could be formed from the existing House of Commons.