[This post has been modified to remove some comments which colleagues found unnecessarily combative. I have apologised and removed them. I have also taken the opportunity to clarify one or two small points].
I have posted three blogs that have attracted a lot of attention from the media and other commentators – see for example this from Mark Elliott. You can find mine here, here and here (in chronological order of posting). And here’s another contribution from Canada.
I have been criticized for conflating issues of Government and Parliament and law and convention. This is not the case.
Firstly, the distinction between Government and Parliament and law and convention are of course important and I do recognise, despite what some seem to think. These are blog posts, not academic monographs and it’s not always possible to spell out every nuance.
Secondly, in the Westminster system Government and Parliament are inevitably and closely tied – we don’t have a clear ‘separation of powers’ because the executive is semi-integrated with the legislature. So any reform of one inevitably affects the other. Accusations of conflating the two rather miss the point – they are, partially at least, conflated in reality. That is why the FTP Act contains provisions about how to change a Government without having an Election – it is not just about the duration of Parliament.
Conventions versus Law
The main critique of my analysis seems to be that somehow ‘conventions’ trump ‘law’ (in this case the Fixed term Parliament Act). By which I mean that ‘the conventions’ (whatever they are, and that is usually open to wide interpretation) remain essentially unchanged by the FTP Act.
Conventions are just what the name suggests – conventions. They exist for as long as the main players accept them, and no longer. They are ‘fuzzy’ and subject to ‘interpretation’.
Some conventions are clearly more important than others. The convention that Black Rod thumps on the door of the Commons three times when summoning them to the House of Lords for the Queen’s Speech is trivial. The Monarch delivering the Queen’s Speech is a bit of theatre – so much so that if there is uncertainty about the Government commanding a majority the Queen is unlikely to deliver it in person. [I have been told by no lesser authority than Lord Norton that these are not really ‘conventions’, just customs. It seems that only ‘constitutional conventions’ matter. I am not so sure things are as clear cut as Lord Norton asserts.]
The convention that the Monarch must give assent to Bills duly passed by Parliament is just that – a convention. If she (or he) refused all Parliament could do would be to rush through some emergency legislation removing the Monarch’s right to assent, which would need the Monarch’s assent. That would be fun.
Before the FTP Act there were all sorts of fuzzy conventions about what constituted a ‘no confidence’ vote in Government, or an implied ‘no confidence’ vote, was. Some thought any defeat in a ‘ways and means’, ‘finance (tax) or supply motion constituted a vote of ‘no confidence’ but 20 or so such defeats over the past 100 years proved it did not. Other suggested a defeat on a ‘war or peace’ motion would be a confidence issue, but the Syria vote proved it wasn’t.
What the FTP Act did was to specify exactly what constituted a vote of no confidence in a Government – and as this was the expressed will of Parliament, passed by both houses and subject to Royal Assent, it over-rides any so-called ‘conventions’.
Mark Elliott points to the Cabinet Manual as an authoritative source to back up his claims about ‘conventions’. But the Cabinet Manual is a document of the executive – specifically it is now re-issued, and amended, by every incoming Prime Minister. It has no legal or constitutional standing. If you don’t believe me, here are the words of Sir Gus (now Lord) O’Donnell in a speech in 2011 on the launch of the new Cabinet Manual:
“Finally on its purpose: the Cabinet Manual is intended to be exactly what it says in the front cover, that is: “A guide to laws, conventions and rules on the operation of government”. It is to guide but not to direct. It will have no formal legal status and it is not meant to be legally binding” (emphasis added).
(And Gus O’Donnell should know – he cheerfully ignored several parts of the Manual during his tenure as Cabinet Secretary, including supposed ‘conventions’ about the Civil Service role in forming a government. So much so that the new Cabinet Secretary has issued a different set of rules about how the Civil service should behave after May 7th – but that’s another story).
Implications of the FTPA
I have asked a very senior and authoritative Parliamentary source[i] about this and their response is as above in the title of this post:
“The Fixed Term Parliament Act has absolved all the players from any duty to respect constitutional conventions rather than the letter of the law.”
You can’t get much clearer than that. No duty to respect ‘the conventions’, just the terms of the FTP Act. Let me be clear here – I don’t support the FTPA, nor do I like it’s consequences – but it is no good behaving or thinking as if it hasn’t been passed and things are just as they always were.
My source goes much further, offering (unprompted) an illustration of what might happen after May 7th.
Assuming, as I did in my previous blog, that the Tories emerge as the largest but not majority Party this is what might happen:
“Let us suppose that Mr. Cameron hangs on and brings forward a Queen’s Speech. Let us further suppose that the Labour Party tables an amendment which “regrets that Her Majesty’s Ministers do not enjoy the confidence of the House of Commons” and that this amendment is passed and the motion of thanks passed in the amended form. That does not trigger the FTPA, for sure.”
Politically, you would expect Cameron to resign, but legally and constitutionally he doesn’t have to.
“Cameron can voluntarily resign and ask HMQ to invite Mr. Miliband to form a Government. He would surely have to, but if he incomprehensibly refused to step aside, the Opposition would table an FTPA motion which must logically be passed, triggering the 14 day hiatus.”
Read this carefully – Cameron should resign after a defeat on the Queen’s Speech but he does not legally have to. He could hang on until a motion under the terms of the FTP Act is moved and passed.
Even if he said he was going to resign, as Mark Elliott and others seem to think he has to, and someone else needed to put together a coalition what would happen then? Without the 14 day limit of the FTP Act we could potentially end up like Belgium did, with almost endless negotiations as to who would form a government. Which is why the Opposition would almost certainly move FTP Act ‘no confidence’ motion immediately.
My informant even offered the further almost nightmarish scenario:
“If the Government tried to keep it [the FTP Act no confidence motion] off the Order Paper in a last, desperate and hopeless attempt to cling to power, the Speaker would allow it as an emergency debate under S.O. No. 24. By which time the Government would have lost all political credibility.”
Assuming the FTP Act ‘no confidence’ motion was put and passed by the Commons the situation could get even worse.
“Perhaps more worryingly, no-one really knows what happens during the 14 days following an FTPA motion being agreed. Who is the Government? What happens if (suppose it is he) Mr. Cameron says he doesn’t believe there is a credible alternative government which he can in all conscience advise the Queen to invite someone to form, so he is just going to adjourn the House for 14 days until a dissolution automatically occurs? I’m not sure anyone can stop him.”
Were this outlandish, but perfectly possible, eventuality to occur we would of course be straight back into another General Election.
‘Constitutional crisis’ doesn’t even begin to capture the problem – my informant continues:
“You could envisage a situation where the Cabinet Secretary goes to the Queen to say that the constitution is being flouted, and that she should invite Mr. Miliband, without her PM’s advice, to form a government. Somehow, Parliament would have to be reassembled to try and pass an FTPA confidence motion. But would the Cabinet Secretary and HMQ feel able to do this?”
The fact that a senior official of Parliament should even be thinking about such things shows just how far we are into uncharted territory. Those who pretend nothing much has changed under the FTP Act are living in the past – the legislation affects both the term of a parliament and, much more importantly, how governments can and cannot be changed between elections. To pretend otherwise is clinging to ‘conventions’ that were, like it or not, largely superseded in 2011.
[I would add that of course not all conventions were modified or superseded, but where before there was a great deal of confusion about what constituted a motion of no confidence which obliged a Government to stand aside and potentially start the process of calling fresh elections it is now clearly spelt out in the FTP Act and logically nothing else now counts. A Government could perfectly legitimately reject any other ‘confidence’ motion as having no legal effect. this a very substantial change.]
[i] They for obvious reasons wish to remain anonymous but were happy for me to quote them directly.