The government has been crushed like no government in a century—and yet somehow it limps on. A confidence vote now follows, but the odds are that this will fail: the Democratic Unionists and Conservatives of every stripe have vowed to rally to keep Theresa May in office, even as they strip her of power.
This is not how British governance is supposed to work. As the scholar turned Tory MSP, Adam Tomkins, has written the “core” of our constitution since the 17th Century has been “a simple—and beautiful—rule… It is that the government of the day may continue in office for only so long as it continues to enjoy majority support in the House of Commons. The moment this support is withdrawn is the moment the government is required to resign. By this one rule, is democracy in Britain secured.”
Today, however—with the Brexit clock ticking down—Britain remains in the hands of an undead government, whose defining policy MPs reject by a more than two-to-one margin.
So how is it that Britain—a polity always known for strong government—is seized by sclerosis in the face of a diplomatic crisis? Many things have compromised Westminster’s traditional ability to exert control—deep splits in both political parties, and the mangled mixing of parliamentary and plebiscitary mandates. But the entrenchment of a defunct administration and premier owes even more to two sets of political rules that were, ironically enough, written with the purported aim of providing stability.
First, there is the peculiar protocol of Tory leadership elections. Never previously tested in government, the modern rules bear post-traumatic testimony to Margaret Thatcher’s divisive defenestration in 1990. Because May saw off a personal vote of confidence in December, they preclude any fresh challenge to her leadership until the very end of this young year, many months beyond the date when Brexit is supposed to be done and dusted. That is so even though the process revealed her to have lost the support of 117 of her MPs, which would be an awful lot even if she weren’t starting out as a minority prime minister.
And then there is the 2011 Fixed-term Parliaments Act, which—in theory—pegs elections at five year intervals. Only in theory, because in practice the Act was short-circuited in one of the only two elections staged since it was passed, a short-circuit May herself engineered in misguided pursuit of a crushing majority. (She needed the blessing of her MPs for that, which they were happy to give when her party was streets ahead in 2017; today they could and would veto a straightforward appeal for dissolution under the act).
Terms really can be fixed in the US, where government and legislature are separate entities. But if you want stable leadership in a parliamentary system, get-out clauses are needed. In Germany, the need to wriggle around fixed terms has led to contortions, such as governments constructively voting no confidence in themselves. And the British version of fixing is especially shonky. It gets rid of the instant trip wire between a no-confidence vote and an election, specifying a two-week spell in which people can have a go at putting alternative administrations together, but it is dangerously silent on who gets that chance, and whether a vanquished prime minister could rearrange things and have another go. It was so rushed that a requirement to review the law in 2020 ended up being written on to the face of the statute.
But this flawed law is exerting real power. Most importantly, by insisting that only a confidence motion in the precisely specified wording can trigger an early election, it closes off a traditional escape route from crises, which was to recast a contentious motion about something else into a confidence question. If May had that option, she could make her deal a confidence question—and then defy her MPs to vote against it. Either they would fall into line, and the deal would be done, or they wouldn’t, and the government would fall. In circumstances where something plainly has to give, something would.
That, however, is sadly not where we are. If it was ever hoped that fixing terms, and removing the imminent threat of the ballot box, would encourage creative cross-party working, the briefing from Downing Street last night put paid to that. May had talked about reaching out and listening, but her spokesman pointedly declined to say whether she would be reconsidering any of her red lines or pick up the phone to the opposition leader. Nothing, in other words, had changed. It doesn’t have to when a leader feels they cannot be dislodged.
So will an election really have to await the scheduled 2022, a political age away in current circumstances? Not necessarily. Because while the detail of the Fixed-term Parliaments Act might look devilishly hard to wriggle round, its existence could be easily dispensed with. Indeed, one forgotten pledge from May’s star-crossed manifesto reads: “We will repeal the Fixed-term Parliaments Act.”
So what if the opposition parties now were to instigate that repeal? There is an obvious appeal for Labour, in that it could bolster their slim hopes of an election.
The Lords wouldn’t stand in the way—convention dictates they nod manifesto pledges through. But what about May? Could she really whip 100 per cent of her MPs against a pledge every one of them was elected on? Perhaps, but from the opposition perspective that would still make for some amusing political theatre. How much better it would be, however, if she were to seize the initiative, honour her own pledge and thereby free herself to force Brexit to the resolution that is urgently required.
Bringing back the option of forcing things to a crunch or an election doesn’t guarantee that a resolution would be possible. Until and unless either party can come up with a coherent policy with enough support to pass the House, a new referendum will provide the only route away from the cliff edge. But how useful it would be to be able to turn the calling of that into a confidence question.
And whatever happens with Brexit, it is surely worthwhile in itself to fix the British constitution and reinstate the beautiful idea that used to be at its core.
