It’s been blamed for a multitude of sins, but has done more good than harm during the Brexit process
Constitutional conservatives often say that obsessing about how we’re governed changes no lives. As a reformer myself, I think this underplays how much the rules which govern who holds power and how they can wield it matter. But I accept you can get too fixated upon the abstract and forget that politics isn’t just about its rules.
Oddly, constitutional conservatives’ obsession with the Fixed-term Parliaments Act (FTPA) reverses the stereotypes. The FTPA removed the Prime Minister’s power to advise the Queen to dissolve Parliament and call an election. Instead, it offers two ways to trigger an early election. Two thirds of MPs can vote in favour of one. Or a simple majority can pass a specific motion of no confidence and not pass a specific motion of confidence within 14 calendar days.
The poor old FTPA has been blamed for a vast array of Brexit obstacles. It gets blamed for May’s early election, sinking her deal and general political paralysis. All manner of ministerial and parliamentary chicanery is laid at its door by its critics. And I find it hard to think of a more poorly-evidenced charge sheet.
Empowering the executive?
In 2017, the FTPA was mocked for strengthening, not weakening, Prime Ministers against Parliament. Theresa May vaulted over its provisions with ease — 522 MPs voted to hold an early general election in 2017. Scores feared for their seats, but feared being seen to reject an early election too. It was undoubtedly called for political reasons, and far earlier than we would normally expect in the UK.
But in the end, MPs had the right to reject an early election and decided not to exercise it in their own interests. Had the FTPA never existed, Theresa May would simply have advised the Queen to dissolve Parliament. There is no question that the Queen would have accepted that advice. I’ve seen some argue a sense of propriety might have dissuaded May from asking for a dissolution. I’m far from convinced that any self-denying ordinance applied, and nothing since 2016 suggests one would have been honoured.
And more than that, Theresa May had a decent case for seeking an election in 2017 — one I appreciate more now than I did then. No government can choose a Brexit outcome without a large enough majority to have some rebels and ignore them. The failure of the Withdrawal Agreement on three occasions makes that painfully clear. So there was a reasonable case for an election, the FTPA makes provision for early elections in some cases, and the House of Commons agreed to one. No one can blame it for how the parties campaigned or how the votes fell.
More recently, the FTPA’s critics have blamed it from freeing MPs from responsibility — decoupling the government’s survival from that of its programme. In the past, a government could have made a particular policy choice a matter of confidence. Its MPs would then have been, the argument runs, under pressure to back the Government or face the voters.
I see the theory. But it places far too much weight on constitutional fixes for political problems. The Government lost its meaningful votes by 230 and 149. Even a vote solely on the Withdrawal Agreement fell by 58. When John Major resorted to making his policy on the Social Chapter a matter of confidence — which he did by choice, not constraint — he had only lost by one. I concede that even some of the three-time rebels might back the Government in some circumstances. I think it’s inconceivable that every single one would have done if it hadn’t been for one Act.
So in reality, the ‘vote of confidence’ as a device to resolve Brexit would have fallen apart in any Prime Minister’s hands. She would have known her MPs would vote her deal down anyway, read the runes when it came to facing the voters and backed off. The logjam of a Prime Minister and House of Commons would have remained unbroken.
Self-evidently, the FTPA blocks some elections which a Prime Minister would otherwise hold. We are now in exactly that position. Boris Johnson would prefer to fight an election in time to make good on his pledge to leave the EU, with or without a deal, on 31 October. Parliament wants him to try to take No Deal on 31 October off the table and has legislated to force him to do so.
Clearly, our current MPs cannot find a majority for any positive Brexit policy. Without the FTPA, Johnson would probably have advised the Queen to dissolve Parliament by now. As it stands, he has to wait — seemingly until we either have, or definitively will not get, an Article 50 extension. No Deal wouldn’t be ruled out in a November or December general election. Nothing but revoking Article 50 or ratifying a Withdrawal Agreement can do that. But the prospect of a mid-October election with days to go has been ruled out.
I can see a democratic case for putting ‘31 October, do or die’ to the people. But the case that 31 October and 31 January are so different that all other considerations must go by the wayside is weak. With an election on 15 October, the UK would have had to try to make full-on crisis preparations for No Deal in the middle of the campaign. Whether any real application of purdah or any real attempt to manage the crisis would have given way I don’t know. I do know it’s not a sensible choice to make. More importantly for these purposes, I think my MPs should be able to decline to force that choice.
So if we only hold an election once an Article 50 extension is secured, in my view the FTPA will have done its job. It will have strengthened the House of Commons against a Prime Minister which wanted to pre-empt it. It will have allowed MPs to prevent Boris Johnson’s congenital irresponsibility from badly damaging any hope of mitigating the damage of No Deal, triggering an election where the normal democratic conventions would have been shredded by No Deal preparations, or both.
Find another alibi, politicians
So in short, the FTPA didn’t stop the 2017 election — but probably for good reason. Any theoretical tool it denied Theresa May before she fell from power would have broken in her hands anyway. And at the moment it’s playing exactly the role it should: stopping an irresponsible Prime Minister from abusing his position to manipulate the electoral calendar.
To blame the FTPA for our current crisis, in whole or even in part, is to make the exact mistake constitutional conservatives usually mock. It ignores political failings — of both MPs and governments — and blames them on the rules. It is a neat irony, if nothing else. But it remains misconceived.
This post was originally published on Medium.com on 14 September 2019.