How much does the Fixed-Term Parliaments Act matter as far as the ability to dislodge a government goes? The opposition parties and Downing Street both think the answer is “quite a lot”, and that has been true for successive leaders since the act’s passage in 2011.
Now that consensus has been called into doubt by the Public Administration and Constitutional Affairs Committee (PACAC), the select committee that scrutinises and analyses the state of the United Kingdom’s largely unwritten constitution. It takes the view that, while the Fixed-Term Parliaments Act does sharply limit the ways that a new election can be called, it does not limit when the government must fall. Confused?
Essentially, thanks to the Fixed-Term Parliaments Act, there are only two routes to an election before 2022. Either two-thirds of MPs can vote for an early election, as happened in 2017; or a majority of MPs can pass a motion of no confidence in the government and if, after 14 days, no fresh motion of confidence has been passed, an election is triggered. If the government fails to pass a budget – it does not trigger an election. If the government is defeated on its set piece domestic or foreign policy legislation – it does not trigger an election.
But a new government and a new parliament aren’t synonymous. There were two different governments in the 2015-17 parliament: the one led by David Cameron and the one led by Theresa May. The select committee argues that, while the range of actions that cause an election has been limited, the range of what triggers a prime ministerial resignation hasn’t. While losing a budget vote wouldn’t force a general election, it should still force May to resign her office. That means that an alternative prime minister – whether from inside or outside the Tory party – would have to emerge and take office thanks to the support of a parliamentary majority within this parliament.
Are they right? Well, they probably should be. It’s bad for both good governance and accountability that a government that cannot govern, that has been defeated on the major planks of its platform and so on, could continue on in office. But the major lesson of Theresa May’s government and her governing style is that she has no real time for convention and that any constitutional norm that is not codified in binding statute she will ignore. She kept Esther McVey in post after she misled parliament, and wanted to keep Amber Rudd in place after she did the same. (The only difference is that McVey was willing to go along with it, while Rudd wasn’t.)
So while, in theory, the Fixed-Term Parliaments Act ought not to change how governments treat issues of confidence, in practice, any government, at least one led by May, will ignore any constitutional convention it doesn’t like unless it is forced to obey it. While that pattern may come to an end when May eventually leaves office, it may not.
That the taboo on following these norms has been broken so decisively and visibly during this parliament may mean that appeals to convention have ceased to have any force, not just for the moment but for the foreseeable future.