Is the Fixed-term Parliaments Act about to be stress-tested?

Posted On: 
20th June 2016

How should Parliament proceed in the event of a vote to leave the EU? The former Clerk of the Commons, Lord Lisvane, examines the implications of a victory for the Brexit campaign – and the hazards of trying to regulate parliamentary proceedings in statute

Are David Cameron’s days as prime minister numbered?

In the last few weeks there has been a welter of advocacy and accusation on both sides of the referendum debate. One of the few things on which the pundits seem agreed is that, whatever the result of the vote on 23 June, the political situation thereafter will be highly volatile.

Something little mentioned (so far) is the Fixed-term Parliaments Act 2011, and the part it might play – or the inhibitions it might impose.

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The Fixed-term Parliaments Bill was introduced into the Commons on 22 July 2010. Moving the Second Reading on 13 September 2010, the then Deputy Prime Minister Nick Clegg emphasised that the bill would remove the unfettered right of the Prime Minister of the day to seek a Dissolution of Parliament and so trigger a General Election, as he said, “for pure political gain”. He saw the measure as bringing greater stability to the political system, preventing elections being “a plaything of government”.

However, it was widely thought at the time that, in the largely uncharted waters of a peacetime Coalition Government, the bill would make it harder for one Coalition partner to dump the other, because of the new conditions that would have to be met if Parliament were to be dissolved. These conditions were at the heart of the bill.

The bill as introduced contained the provision that a motion “that there should be an early parliamentary general election” needed to have two-thirds of the membership of the House voting in favour. But on the issue of motions of confidence, the bill provided that a general election should take place if the Speaker were to certify that the House had passed a motion of no confidence in the Government, and that no countervailing motion of confidence had been passed in the next 14 days.

This approach was seen by many as wrong-headed. If the Speaker were to issue a certificate, the question of whether or not a particular motion were really one of confidence would arise. What if the motion of no confidence contained a condition which the government might (or might not) be able to fulfil? And what about the second motion? Might that, too, make “confidence” subject to conditions? If the Speaker’s certificate were challenged, only the courts could resolve the matter. True, the bill provided that the Speaker’s certificate should be “conclusive for all purposes”, but the courts are generally not that keen on conclusive certificates; if it were alleged that the Speaker of the day had not been justified in issuing his certificate, then the future of the government and whether or not there should be a General Election could be the subject of lengthy legal argument – a perfect illustration of the hazards of trying to regulate parliamentary proceedings in statute.

Pressure behind the scenes secured an important change to the bill; the exact wording of motions of no confidence (and of confidence within 14 days) were spelled out, and the requirement for a Speaker’s certificate was removed.

This was an improvement, but the real mischief went uncured. The Act specifies that, for there to be a Dissolution of Parliament, one of two things must happen:

Either the number voting in the majority for the motion “that there shall be an early parliamentary general election” is at least two-thirds of the number of seats in the House (including vacant seats) (so 434, although the actual number is 433.3 recurring);

Or the House agrees (by a simple majority) to a motion in the form “That this House has no confidence in Her Majesty’s Government” and not later than 14 days thereafter there is no agreement of a countervailing motion “That this House has confidence in Her Majesty’s Government”.

All straightforward, you might think. But the Act contains unexploded ordnance, which its passage through Parliament failed to make safe.

Under the Act, a Dissolution can occur only under one of the two scenarios spelled out in section 2. Events which would normally have been matters of confidence, such as losing Second Reading of a Finance Bill, the Estimates, or even the vote on the Queen’s Speech, are not covered. It may be said, of course, that a government in that position would need to seek the endorsement of the Commons in a vote of confidence. But there is no requirement to do so and, if the Opposition of the day did not want to deliver the coup de grâce (or could not do so) then a government could limp on – in theory, for the remainder of its term.

So what might be the effect of the Fixed-term Parliaments Act were there to be a vote on 23 June to leave the EU? Here the crystal ball clouds over very rapidly. 

A narrow result (say 51-49) on a low turnout (say less than 50%) might fuel demands for a second referendum. This would not be a popular course, to say the least; but a complicating factor is the substantial Remain majority in the present House of Commons. There might be no shortage of Remainers who might want to throw the “sovereignty of Parliament” argument back at the Leavers.

But it is at least possible that a case could be made for a second referendum: not a replay to get a different result – although such things are not unknown in EU affairs – but to approve an exit package. Both the holding of a referendum, and the nature of an exit package, might be seen as matters of confidence – but of course would not be covered by the Act.

Another factor might be a differential result in two or more parts of the United Kingdom – for example, a vote to leave in England, but to remain in Scotland, which would complicate the Parliamentary arithmetic. And if a substantial victory for Brexit resulted in the formation of a new administration, and Parliamentary approval were needed at various stages of withdrawal, the denial of that approval would be seen by many as a matter of confidence, but again would not be covered by the Act.

Perversely, though, the operation (or non-operation) of the Act might reflect the will of the House of Commons, because of the wholly unpredictable effect that a Brexit General Election might have on the political map of the United Kingdom. As I say, the crystal ball clouds over. 

Lord Lisvane is a crossbench peer and a former Clerk of the Commons