Tag Archives: parliamentary confidence

The Fixed-term Parliaments Act did not cause the Brexit impasse

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Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

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Can Boris Johnson ignore parliament and force a no deal Brexit?

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meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

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Six constitutional questions raised by the election of the new Conservative leader

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professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgIn less than one month, Conservative Party members will elect a new leader from a two-man shortlist. Under normal circumstances, what happens next would be obvious – Theresa May would resign and the winner would be called on by the Queen to form a government and take office as Prime Minister. However, with the Conservatives lacking a parliamentary majority and normal party loyalties skewed by Brexit, the current scenario is far from normal. Robert Hazell and Meg Russell identify six key constitutional questions that the Conservative leadership election raises for the winner, his party, the Palace and parliament.

With the Conservative Party leadership contest in full swing, the expectation is that Britain will soon have a new Prime Minister. But the process has opened up some significant constitutional controversies. This is the first time that party members will potentially directly elect a new Prime Minister, and this innovation is happening at a time not only of minority government, but with the governing party severely divided. Some senior Conservatives have signalled that they might go so far as to vote no confidence in a new leader who sought to deliver a ‘no deal’ Brexit, while some candidates in the race suggested a possibility of proroguing parliament to avoid MPs blocking a ‘no deal’. In this post we address six of the most burning constitutional questions raised by these controversies.

1. Will the new leader of the Conservative Party be appointed Prime Minister?

Not necessarily. The key test is whether the Conservatives’ new leader is able to command the confidence of the House of Commons. This is how it is expressed in the key paragraphs of the Cabinet Manual:

2.8    If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

2.9    … In modern times the convention has been that the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine and communicate clearly to the Sovereign who is best placed to be able to command the confidence of the House of Commons. As the Crown’s principal adviser this responsibility falls especially on the incumbent Prime Minister …

2.18    Where a Prime Minister chooses to resign from his or her individual position at a time when his or her administration has an overall majority in the House of Commons, it is for the party or parties in government to identify who can be chosen as the successor.

Clearly none of these paragraphs quite covers the present unusual circumstances: Prime Minister Theresa May is on course to resign as an individual (2.18), rather than on behalf of the government (2.8), but the governing party does not have an overall Commons majority. Two things however are clear in either case. First, that the new Prime Minister must be the person most likely to be able to command the confidence of the House of Commons, and second, that it is the responsibility of the politicians to determine who that person is, in order to protect the Queen from the political fray.

Whether the new Conservative Party leader can command parliamentary confidence is clearly in some doubt given comments from Conservative MPs that they may not be able to support the new government. The government only has a majority of three (including the DUP), so only a very few rebels is enough for it to lose its majority. The parliamentary arithmetic is not necessarily that simple, because some pro-Brexit Labour rebels could conceivably decide to support the government. But the number of Conservative rebels is potentially large enough. Continue reading →