“The Fixed Term Parliament Act has absolved all the players from any duty to respect constitutional conventions rather than the letter of the law.” Senior Officer of Parliament

[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.

18 thoughts on ““The Fixed Term Parliament Act has absolved all the players from any duty to respect constitutional conventions rather than the letter of the law.” Senior Officer of Parliament

  1. 1. “The main critique of my analysis seems to be that somehow ‘conventions’ trump ‘law’ ”

    Nobody has said anything remotely resembling such a ridiculous claim.

    2. “The convention that Black Rod thumps the door”

    That is not a Convention in the relevant sense. A Constitutional Convention in the relevant sense concerns how the sovereign or government or Parliament must behave. So, the House of Lords must not, by Convention, oppose legislation that was in a government manifesto on the second reading.

    If Black Rod thumped no door, no Convention would be broken in the relevant sense, any more than someone wearing a hat in the chapel in Parliament does.

    3.

    “What the FTP Act did was to specify exactly what constituted a vote of no confidence”

    You have repeatedly made this claim, and it is central to your argument.

    Which section of the Act says that?

    Where are the words saying “a vote of confidence means, and means only.”

    Section 2 certainly says no such thing

    http://www.legislation.gov.uk/ukpga/2011/14/contents/enacted

    and that is the only one using the language of confidence.

    It concerns the motion that must be passed to trigger an early general election, nothing else.

    4. Your source’s quote is, on its face, ridiculous. All Conventions are abolished?

    No, clearly not.

    In which case which ones?

    The entire question is whether the Convention that has been abolished is

    (a) the Convention that a PM without the confidence of the Commons must resign

    or

    (b) the Convention that the Queen always grants a dissolution of Parliament on the PM’s request

    or

    (c) both

    The answer, on the plain words of the Act is (b).

    5.

    “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.”

    Ok, right, and what does that do?

    Does it

    (a) compel Cameron to resign

    or

    (b) trigger a general election after 14 days?

    The answer is (b). The Act says nothing about when the PM must resign.

    Do we just carry on having no elections forever, the Convention on reisignation having been abolished?

    6.” 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?”

    The sovereign asks Miliband to be PM. A government is formed *from that point*.

    Again, which words in the Act do you think say when the PM must resign?

    There are none.

    It is a matter of Constitutional Convention.

    7. ““Perhaps more worryingly, no-one really knows what happens during the 14 days following an FTPA motion being agreed. Who is the Government?”

    Which shows your source’s confusion.

    The answer is the government does not change unless and until the PM resigns. If he does the sovereign calls on the person the PM says can command a majority in the House.

    Your ‘source’ has confused the end of the government (by the PM’s resignation) and the end of the Parliament (by dissolution).

  2. “Conventions are just what the name suggests – conventions. They exist for as long as the main players accept them, and no longer.”

    Exactly – and the conventions around when a PM must resign are not directly contradicted by the 2011 Act. So what matters is whether the players continue to accept them. That is about to be put to the test.

    All the Act did was create a formal mechanism for expressing that the House has lost confidence in the PM. That does not prevent the PM from acknowledging some other signal that the House has lost confidence in him, eg a defeat on the Queen’s Speech, or a simple bit of arithmetic before the House even meets suggesting there is an anti-Tory majority of MPs in a newly-elected Commons (if that’s what happens).

    Will Cameron really plunge us into any of those nightmare scenarios, if the numbers in the new Commons don’t go his way? Or will we find that actually he and other key players continue to respect some of the old conventions? The latter remains possible, and in my view likely.

    • You may be right but this ignores the political intent behind FTPA – which should probably have been called the “Fixed Term Government and Parliament” Act. It was to narrow down and limit as far as possible the ways of getting them out of power before the five years was up. It gave away one bit of executive power (setting the date for an election) in exchange for trying to make it much more difficult to turf out a (the Coalition) Government between elections. I don’t think they realised it could also be used to protect, say, a minority Labour administration in the same way.

      • Was not the political intent purely and simply to protect the junior partner in the coalition from a general election at a time of the senior partner’s choosing?

      • That was part of it. But it seems that both parties wanted to commit to a five year deal and protect it through the FTPA. What I don’t think they thought through was what happens after 2015? Having put in place legislation that helped protect this government, they didn’t realise it might protect, for example, a minority Labour government.

  3. I have little to add to what John Kell has said, who has put what I was going to say. It remains a convention of the constitution that a government rests on the confidence of the House of Commons. The 2011 Act modifies it, but itself is based on the very principle of the convention. Confusion that may arise from a FTPA motion of no confidence does not negate the convention. The confusion is how to give effect to it. Of course, David Cameron would not legally have to resign if a motion, other than a FTPA motion, was passed expressing a lack of confidence in the Government. That’s the whole point of a convention. It is not legally enforceable. ‘He would surely have to’ resign voluntarily – in other words, comply with the convention. The fact he may seek to delay doing so does not negate the convention (Callaghan could have taken his time in 1979) and the fact that the Opposition could table a FTPA motion underpins it, rather in the way that previously a Government that lost a vote of confidence would go because of the likelihood of constant defeats thereafter.

    Black Rod knocking on the door of the Commons and the Queen’s Speech constitute rituals, of some symbolic relevance, but they are not conventions of the constitution.

  4. The Canadian critique seems to centre on the fact that a ‘case by case’ government may be unable to pass bills, but I would like to ask if that is such a bad thing? Is it not the case that there is far too much law made these days, and that like all mass production, much of it is shoddy and ill made? Might it not be better to limit new laws to those that all parties accept need to be passed in the national interest and leave aside all those ideologically motivated partisan bills? Let’s leave the parliamentary draftsmen the time to craft bills properly, so they can be implemented without numerous changes having to be made. Let us again understand that less is more, and let us produce statutes like the Partnership Act 1890, still in force after more than a century, rather than the modern rubbish that has to be amended three or four times before it can be implemented because it was passed in such haste, it is full or errors.

  5. To what extent does the FTP Act really deny a government a dissolution at the time of its choosing? If, some respectable time into the life of the last Parliament, the Tories had proposed a motion for a dissolution, would Labour have risked looking scared of the electorate by not supporting it? (Tories and Labour voting together providing the requisite two-thirds vote)

  6. Forgive me for my ignorance in such learned company, but here’s something I have never understood about the FTPA: under Schedule 2, surely a government majority can always game the system (to produce an early election) by twice voting through a motion of no-confidence? First in itself, then, if necessary, in any replacement administration formed thereafter? I accept this is an unlikely set of circumstances, as few modern governments would want to risk handing over power (as per eg Balfour in 1905), however briefly, but it is feasible, isn’t it? If a party (or combination of parties) possesses a simple majority in the Commons, it can, via two successive motions of no-confidence produce an early election, can’t it? Or am I missing something very legally obvious?

    • You are correct, a majority givernment that wanted to go early could do. FTPA was in part designed to stop Cameron doing this in Coalition, using PMs powre as was to set date. As he didn’t have majority wouldn’t be able to do that anymore.

  7. Question:
    As the fixed-term Parliaments Act stipulates that there is an election to be held every five years in May, does that mean that if we have another election, say in October, there would still be an election held in May 2020? Or does the new Parliament “re-set” the election date five years to October 2020?

    • If there is an early general election (e.g. this November) then Section (1) Subsection (4) of the Act provides that the next election will be on the first Thursday of May in the fifth year from that election, except where an election was held between 1 Jan and first Thursday of the year in which an election was due. In that case it is shortened by a year.

  8. Did your source have anything to say about the interaction or otherwise of FTPA with existing conventions as expressed in Erskine May?

    May, for example, sets out the circumstances (pre-FTPA) in which a government, having suffered a defeat on a confidence issue, would be expected to make early provision for a debate on a motion of confidence.

    Does FTPA make this convention a dead letter, or can the convention be interpreted to back up FTPA so as to require a government defeated on a confidence issue to brimng forward a confidence motion in the terms of the Act (thereby establishing the conditions to trigger the process which may lead to dissolution)?

    • That is the nub of the debate between what I would call “coventionalists” – those that think FTPA has no or little effect on pre-existing conventions, and people like me who think once yiu have a law hoverning what is a confidence motion it displaces the conventions – let’s call us “legal institutionalists” (my old friend Geoffrey Hodgson has a good book coming out with that title – available for pre-order).

      My Parliamentary friend seems to be of the “legal institutionalist” persuasion – his quote that I used in the title suggests FTPA trumps the old conventions. But the thing about conventions is they exist if, and only if, people want them to and everyone agrees. If someone, especially someone in power, decides they go, they are gone and no amount of nostalgia will bring them back.

      Can I just add my view is not determined by I think ought to be, but by what is. I think FTPA is deeply flawed in a number of ways, but it is there and we have to live with it until it is changed.

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