The law currently works in the Tories' favour—but there might be something Corbyn can doby Tom Clark / July 3, 2017 / Leave a comment
Politicians shouldn’t need to be told that the timing of elections matters. The Fixed-Term Parliament Act, however, has been met with a curious lack of curiosity. In the run-up to the 2015 election Labour failed to grapple with it, even though it could have shaped the fate of the minority government they then expected to run. In the months before Theresa May called her snap poll this year, there was—again—a striking lack of interest, this time from the Tories. MPs who would chatter freely about whether an early election was a good idea seemed weirdly uninterested in whether or not May could actually call one.
There is now, it seems, even less interest in the 2011 law that fixes Parliamentary terms at five years—but this is more understandable. Because when May took her disastrous plunge this Spring, the statute didn’t hold her back. She just announced she “had decided” to go to the country, and soon enough she did: the FTPA suddenly looked to be worth less than the paper it was written on. Indeed, the Tory manifesto committed to repeal what was coming to seem like a forgotten relic of the coalition era.
And yet. The law is still on the statute book, and the fact that it didn’t have any bite in the last Parliament doesn’t mean it will not do so in this one. Indeed, it could very well be decisive in settling who governs Britain—and it could very likely work to the advantage of the incumbents.
How so? The government is, of course, a minority one, shored up—for the moment—by the Tory deal with the DUP, which affords a very modest majority on questions of “confidence and supply” and little else. There is no majority on most things, and that makes governing fraught. It would only take a bust up with the Northern Irish party, or a handful of by-election losses (or defections), for the government to cease to command the confidence of the Commons. Parliamentary defeats are inevitable, and—as under John Major—some may have to be reversed by being turned into life-or-death confidence votes.
Without fixed terms, a miscalculation or a whipping cock-up could all too easily force the general election which Jeremy Corbyn is so keen on, and the Tories are terrified of.
The FTPA, however, at least as I read it (and that isn’t hard to do; it is a very short statute), greatly strengthens the hand of governments bent on muddling through. Conversely, it is an enormous obstacle to the whiskered hopeful who reportedly whispered into the ear of Michael Eavis following the former’s appearance at Glastonbury that he’d be in Downing Street within 6 months.
There are only two ways to short-circuit the statutory timetable for the next general election, which is set for 5 May 2022—a political age away in these times. The first, and the one which made dissolution look easy this spring, is to get two-thirds of MPs to endorse an early vote.
May was able to use this route to swipe the Act out of her way this Spring, but that was only possible because Corbyn—with a confidence which looked reckless then, but proved to be justified—led his Labour troops through the lobby to back the dissolution. There is no way this option can be activated again until the Tories (or at least enough of them) want an election. And, after May was diminished by the “saboteurs” she was convinced she’d crush, that simply won’t happen until, and unless, the Conservatives are streets ahead—and maybe not even then.
That leaves option two, which involves the House passing a no confidence motion in the government, followed by a two week period during which alternative governments have the chance to win a confidence vote. The Act narrows down the circumstances in which this clock is set ticking. Losing a vote on the Budget, the Queen’s Speech or indeed anything else might spell the end for May, but it will not precipitate an election unless the Commons expressly voted that it had “no confidence in Her Majesty’s government”—in those exact words.
Hope for May
The gap between a big defeat on the floor, and the opposition laying down this specific no-confidence motion, gives the government side a crucial window in which to haggle with any rebel MPs, strike new deals with other parties, and—who knows—perhaps even install a new PM.
Even then, if the real crunch vote is lost, there are 14 days to play with, and two weeks is a long time in politics. The immediate question becomes who gets the chance to form a government and then table a confidence vote. There is no precedent at all to settle this under this Act, and very little useful precedent at all.
Corbyn would surely expect his chance, but he is a distant second place in terms of seats. The last time the Sovereign asked an opposition leader who was clearly behind in seats to form a government was after the 1923 election. Stanley Baldwin lost his majority but his Tory party retained the most seats; he remained in post for a while, but when the Commons reassembled he soon lost a confidence vote.
He failed, resigned and—on his advice—George V duly summoned Ramsay MacDonald, who only had 191 MPs, but nonetheless formed the first Labour government which lasted for the best part of a year.
The available options
But would the Queen do the same in 2017-18 as her grandfather did in 1923-24? It is hard to say. Corbyn has more MPs than MacDonald had back then, but the latter got his chance to govern, in effect, because the large Liberal party (158 MPs) agreed to let him do so.
As long as the Tories and the DUP remained set on blocking Corbyn it would, by contrast, be obvious that he could never secure the confidence of the House. Labour, the Lib Dems, the Scottish and Welsh nationalist, and the sole Green total 314 MPs—less than the 322 which would get you over the line. Her Majesty (or, in effect her Private Secretary in conversation with the Cabinet Secretary) would have to call on Corbyn knowing he couldn’t succeed.
An alternative Tory leader, with a different line on Brexit for example, might argue that they would have a better chance, and demand to be given their go. Is this conceivable? You can’t tell from reading the Act. There would be understandable outrage if another Tory were summoned, but the Palace would have to choose between facing that down and calling on Corbyn in the full knowledge he could not succeed without the forcing election which the law is designed to avoid.
What Labour should do next
The Tories, then, may not have paid any attention to this law, but they should be very grateful for it. It provides by far their best chance of clinging on, maybe for a very long while.
Labour, by contrast, should resent it. But is there anything it can do?
In fact, the opposition does have a trick up its sleeve, involving the kind of Parliamentary maneourvering that is more John Smith than Jeremy Corbyn.
Labour has in the past sometimes favoured fixed terms, as have some constitutional reformers. Others, however, including the noted scholar Vernon Bogdanor, have always warned they don’t make sense in the British context, and recent experience is bearing the sceptics out. And the Tories, recall, put the repeal of the Act in their 2017 manifesto.
A cunning Labour party—something it’s still not clear we have got—could table precisely that, and then defy the Conservatives to vote against. They have, after all, only just short-circuited this legislation, and then vowed to do away with it.
Is every one of them now going to vote to maintain it? Perhaps, but if so that is a ludicrous and embarrassing position. It is one the Labour party would be well advised to flush out.