Could we see a second election this year? Photo: Getty
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Stalemate? The legal mechanics of having two general elections this year

What are the legal and constitutional impediments on there being, as some commentators have suggested, two general elections this year?

The general election campaign kicked off in earnest this week, yet the likelihood of an inconclusive outcome refuses to recede. As a result, commentators are turning their minds more seriously to what happens if, as seems possible, both main parties are stuck on 290-odd MPs and no one minority party has enough MPs to produce a coalition with a working majority.

To pre-empt any potential impatience in May, Gus O’Donnell, the former Cabinet Secretary, has been at pains to point out that coalition formation could take a lot longer this time than in 2010: he even went on to suggest that the next Prime Minister might not come from the party with the most seats in a repeat of the 1923 election.

Writers in the Guardian and the FT have gone further and suggested that a Tory-Labour National Government might be the only viable answer. Other reports indicate that the Tories are fundraising on the basis of needing to fight a second general election in 2015 after a short period of minority government. However, the idea of a second general election has a major stumbling block: the Fixed Terms Parliaments Act 2011.

The Act abrogated the prerogative power of the monarch (as exercised by the Prime Minister of the day) to dissolve parliament and call an early election. Instead, parliamentary terms are now fixed at five years, and, under Section 2 of the Act, parliament can only be dissolved early in two scenarios:

First, if two-thirds of MPs pass a motion, “That there shall be an early parliamentary general election”, then there will be a dissolution.

Second, a simple majority of MPs may pass a motion, “That this House has no confidence in Her Majesty’s Government”. If within 14 days of the no-confidence motion being passed the Commons does not pass a motion, “That this House has confidence in Her Majesty’s Government”, then there will also be a dissolution and an election.

As a starting point then, it will not be in the power of any head of a minority administration to pick when it might suit them to go back to the country to seek a majority.

The possibility for instability following an inconclusive general election outcome in May has led to Fraser Nelson calling for the repeal of the Fixed Terms Parliament Act, citing the example of Sweden – where the threat of a fresh election was enough to bring a recalcitrant opposition into line and pass a minority government’s budget – as demonstrating the efficacy of allowing a Prime Minister the power to choose the time of a general election.

But this argument seems to neglect two points.

First, there is the political (un)desirability of favouring prerogative powers over ones created and regulated by statute laid before, and debated by, parliament. As a general point, circumscribing the power of the executive to act under the remnants of monarchical power has been a discernible trend within modern political history to: it is unclear how placing an unregulated power back into the hands of the Prime Minister is consistent with this.

Second, there is a constitutional/legal problem. In short, it is not clear what happens to prerogative powers where they have been superseded by statute. The House of Commons Public Administration Select Committee considered this point ten years ago, stating that:

[w]here the Crown is empowered by statute to do something that it could previously do under the prerogative, it can no longer act under the prerogative but must act within the statutory scheme.

While the statute can “expressly preserve the prerogative” this is not the case with the Fixed Terms Parliaments Act: Section 6 merely preserved the powers to prorogue and make proclamations to summon, but not the power to dissolve parliament. The Public Administration Select Committee went on to consider what might happen where a prerogative power has been superseded by statute and the statutory provision is later repealed, noting that it was unclear what would happen but that:

 . . . it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect. And in practical terms, it seems virtually unthinkable that the Government would seek to rely on the prerogative to replace an Act of Parliament, except perhaps in a grave national emergency.

Not all constitutional scholars would agree with the Public Administration Select Committee on this point. Indeed, if an Act were to make specific provision to "revive" a power, then it is surely a statutory power and not a prerogative. Further, the Courts (here and here) take the view that prerogative powers are not abolished by statute but are instead placed into abeyance during the life of the statute, something that might suggest a repeal would return us to the status quo ante.

However, that the point is contentious does not add to the argument that repealing the Fixed Term Parliaments Act would add to stability. While it might be possible to revive the prerogative via repeal, to do so in circumstances where there would be intense jockeying for position after (possibly multiple) attempts to form a government had failed, and where the power to dissolve parliament itself may be subject to judicial challenge, seems like a recipe not a remedy for chaos.

While it is not “virtually unthinkable” that a continuity administration may attempt repeal in such circumstances, quite why this is favourable over the tabling of a simple no-confidence motion as allowed under Section 2 of the Act is not apparent (specifically, if there were a majority for a repeal, there would surely be a majority for an engineered no-confidence vote). That there are flaws with the Fixed Term Parliaments Act – notably setting the term at five instead of four years – is certainly true, but reform must be preferable to repeal in circumstances where repeal represents handing an unregulated power back to the executive.

Nelson finishes his Telegraph piece by stating that, “the British constitution is anachronistic, unwritten and illogical – but it is one of those wonderful things that works in practice, even if it does not work in theory”. Unfortunately, while that may have once been true, we are now reaching the limits of what constitutional historian Peter Hennessy referred to as Muddling Through.

Britain has survived on a back-of-an-envelope approach to constitutional change for generations, but the problem is that, as the fall-out from the Scottish referendum has shown, each successive quick fix has very little space left for any other scrawlings. Various attempts to tidy up or otherwise reform the constitution have left us with an edifice resembling a gigantic tottering Jenga tower and no one knows for sure how many more reforms, repeals or referendums the structure can take before it collapses under the weight of its illogicality.  

In short, if there is stalemate in May, it is not clear that the British constitution will continue to work in practice, but this won’t be a result of the Fixed Term Parliaments Act. Structural changes in British politics – the erosion of class identity and the increased fluidity of party loyalty set against a largely uncontested liberal economic settlement – have contributed to the death of two-party politics and are more responsible for instability than depriving a Prime Minister of the power to call elections whenever he or she likes.

In an era where no party can apparently command the support of more than 35 per cent of the electorate, attention should perhaps be paid to adopting electoral processes that produce more representative outcomes and parliamentary structures that are better able to accommodate the kaleidoscope that British politics is becoming instead of harking back to a by-gone age of prerogative powers.

Andrew Lomas is a pupil barrister and a Labour councillor for Kensington and Chelsea (Colville Ward). He tweets @andrewlomas. Read his Notting Hill Notebook here.

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The decline of the north's sporting powerhouse

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Now, things are different.

On a drive between Sheffield and Barnsley, I spotted a striking painting of the Kes poster. Billy Casper’s two-fingered salute covered the wall of a once-popular pub that is now boarded up.

It is almost 50 years since the late Barry Hines wrote A Kestrel for a Knave, the novel that inspired Ken Loach’s 1969 film, and it seems that the defiant, us-against-the-world, stick-it-to-the-man Yorkshireness he commemorated still resonates here. Almost two-thirds of the people of south Yorkshire voted to leave the EU, flicking two fingers up at what they saw as a London-based establishment, detached from life beyond the capital.

But whatever happened to Billy the unlikely lad, and the myriad other northern characters who were once the stars of stage and screen? Like the pitheads that dominated Casper’s tightly knit neighbourhood, they have disappeared from the landscape. The rot set in during the 1980s, when industries were destroyed and communities collapsed, a point eloquently made in Melvyn Bragg’s excellent radio series The Matter of the North.

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Yet today, we rarely get to hear the voices of Barnsley, Sheffield, Doncaster and Rotherham. And the Yorkshire sporting powerhouse is no more – at least, not as we once knew it.

This should be a matter of national concern. The White Rose county is, after all, the home of the world’s oldest registered football club – Sheffield FC, formed in 1857 – and the first English team to win three successive League titles, Huddersfield Town, in the mid-1920s. Hull City are now Yorkshire’s lone representative in the Premier League.

Howard Wilkinson, the manager of Leeds United when they were crowned champions in 1992, the season before the Premier League was founded, lamented the passing of a less money-obsessed era. “My dad worked at Orgreave,” he said, “the scene of Mrs Thatcher’s greatest hour, bless her. You paid for putting an axe through what is a very strong culture of community and joint responsibility.”

The best-known scene in Loach’s film shows a football match in which Mr Sugden, the PE teacher, played by Brian Glover, comically assumes the role of Bobby Charlton. It was played out on the muddy school fields of Barnsley’s run-down Athersley estate. On a visit to his alma mater a few years ago, David Bradley, who played the scrawny 15-year-old Billy, showed me the goalposts that he had swung from as a reluctant goalkeeper. “You can still see the dint in the crossbar,” he said. When I spoke to him recently, Bradley enthused about his lifelong support for Barnsley FC. “But I’ve not been to the ground over the last season and a half,” he said. “I can’t afford it.”

Bradley is not alone. Many long-standing fans have been priced out. Barnsley is only a Championship side, but for their home encounter with Newcastle last October, their fans had to pay £30 for a ticket.

The English game is rooted in the northern, working-class communities that have borne the brunt of austerity over the past six years. The top leagues – like the EU – are perceived to be out of touch and skewed in favour of the moneyed elites.

Bradley, an ardent Remainer, despaired after the Brexit vote. “They did not know what they were doing. But I can understand why. There’s still a lot of neglect, a lot of deprivation in parts of Barnsley. They feel left behind because they have been left behind.”

It is true that there has been a feel-good factor in Yorkshire following the Rio Olympics; if the county were a country, it would have finished 17th in the international medals table. Yet while millions have been invested in “podium-level athletes”, in the team games that are most relevant to the lives of most Yorkshire folk – football, cricket and rugby league – there is a clear division between sport’s elites and its grass roots. While lucrative TV deals have enriched ruling bodies and top clubs, there has been a large decrease in the number of adults playing any sport in the four years since London staged the Games.

According to figures from Sport England, there are now 67,000 fewer people in Yorkshire involved in sport than there were in 2012. In Doncaster, to take a typical post-industrial White Rose town, there has been a 13 per cent drop in participation – compared with a 0.4 per cent decline nationally.

Attendances at rugby league, the region’s “national sport”, are falling. But cricket, in theory, is thriving, with Yorkshire winning the County Championship in 2014 and 2015. Yet Joe Root, the batsman and poster boy for this renaissance, plays far more games for his country than for his county and was rested from Yorkshire’s 2016 title decider against Middlesex.

“Root’s almost not a Yorkshire player nowadays,” said Stuart Rayner, whose book The War of the White Roses chronicles the club’s fortunes between 1968 and 1986. As a fan back then, I frequently watched Geoffrey Boycott and other local stars at Headingley. My favourite was the England bowler Chris Old, a gritty, defiant, unsung anti-hero in the Billy Casper mould.

When Old made his debut, 13 of the 17-strong Yorkshire squad were registered as working-class professionals. Half a century later, three of the five Yorkshiremen selec­ted for the last Ashes series – Root, Jonny Bairstow and Gary Ballance – were privately educated. “The game of cricket now is played in public schools,” Old told me. “Top players are getting huge amounts of money, but the grass-roots game doesn’t seem to have benefited in any way.”

“In ten years’ time you won’t get a Joe Root,” Rayner said. “If you haven’t seen these top Yorkshire cricketers playing in your backyard and you haven’t got Sky, it will be difficult to get the whole cricket bug. So where is the next generation of Roots going to come from?” Or the next generation of Jessica Ennis-Hills? Three years ago, the Sheffield stadium where she trained and first discovered athletics was closed after cuts to local services.

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era