Although it has become a commonplace that the outcome of the general election on 7 May is less predictable than almost any in living memory, the consequences of a result that does not provide a majority government are only now beginning to be grasped. General elections are the agents of our democracy. They are supposed to ensure some relationship – however imperfect – between the will of the people and the composition of the executive that governs the United Kingdom. However, this was not strictly the case after the election in May 2010. No party won it. Once the Conservatives decided not to try to govern as a minority administration – it was never an option for Labour, with almost 50 fewer seats than their rivals – the outcome was a coalition for which, as with all coalitions formed after an election, nobody had explicitly voted. That coalition government has since then implemented a programme for which the electorate supplied no mandate, for the obvious reason that that specific programme had not been put before it at the general election.
Now it is quite feasible that what we call our democracy could be even more compromised in May. If there is a clear winner of the election, we can all continue smugly to congratulate and delude ourselves that our constitution is a model for the rest of the free world. But if there is not – as most opinion polls now suggest – the full consequences of the cocktail of constitutional changes made by the Conservatives and Liberal Democrats since 2010, and by Labour after 1997, will suddenly become apparent. And it is far from impossible that they could provoke the greatest constitutional crisis in Britain since before the Great War.
Suppose no party wins outright, and the one with the largest number of seats is asked to form the government. Suppose also, for the sake of argument, that that is the Conservative Party. David Cameron, as the incumbent Prime Minister, meets parliament and offers a Queen’s Speech. His parliamentary party has made it clear it prefers minority government to more compromises with the Lib Dems; yet there may well be too few Lib Dems to give the two parties an overall majority. Even with support for him from the Democratic Unionists and Ukip MPs, he cannot carry the vote.
Labour, in this scenario, may have fewer seats than the Conservatives – thanks, perhaps, to the slump in the party’s standing in Scotland, and Ukip eating into its vote in English constituencies it hoped to win from the Tories – but with the help of the surviving Lib Dems, a much-expanded parliamentary SNP and Plaid Cymru, it can, and does, vote down a Queen’s Speech promising stringent further cuts. Cameron then resigns: and the leader of the Labour Party, for whom even fewer people voted than for the Tories, becomes prime minister. This is because the Fixed-Term Parliaments Act of 2011 allows for no dissolution when a prime minister has been defeated in the Commons on his legislative programme. If, after 14 days, Labour were to find that it could not get a Queen’s Speech through, either, there would be another election. More probably, either a rainbow coalition of the same left-leaning parties which voted down the Tory Queen’s Speech would then become the government of the United Kingdom, or Labour would run a minority government, having negotiated a confidence-and-supply arrangement with those minor parties.
However, given what has been promised to Scotland in the shape of tax-raising powers, even a confidence-and-supply arrangement could prove controversial: and this is where another constitutional change, that of devolution, could start to have profound constitutional consequences in the United Kingdom parliament and in England. Passing a Budget would almost certainly entail Scottish MPs, whether SNP, Labour or Liberal, voting for some tax-raising powers that would not affect their own constituents. And when Labour began to seek to pass measures that affected only England – say on health or education – it would, as things stand, be perfectly within its rights to do so using the votes of Scottish MPs. It would, however, remain to be seen whether the English electorate would be any happier about that than their Scottish equivalents would be for English MPs to renew their control over domestic Scottish matters. There are 533 seats for English MPs, so Labour would need to have at least 267 of them to be sure to pass any measure that affected only England using English votes alone. As it currently has 190, and even the most optimistic polls suggest Labour would pick up at most 50 to 60 English seats if the election in May goes well for it, a majority of English seats may still elude it.
Early this month William Hague set out a strange plan to deal with the democratic deficit suffered by England after devolution. It specified that the committee and report stages of any legislation that affected England alone, or England and Wales alone, would be dealt with solely by English, or English and Welsh, MPs. However, in order not to do something called “compromising the integrity of parliament”, Scottish members would be allowed to vote on the third reading.
Hague seems not to have understood that this would mean the routine vetoing of legislation proposed by a Labour government, because by third reading the shape that the legislation would be in would most likely be offensive to that government. Such bills would have been butchered by an English grand committee that would most likely be dominated by English MPs, to a point where they would have had any Labour policy hacked out of them, thereby defeating the government’s original purpose for the legislation. For example, it is quite likely that a bill on the NHS proposing to undo the Lansley reforms could have the attempt to overturn those reforms completely removed from it, making it almost pointless to pass it on third reading. However, such a ludicrous system will not be put in place before the next election because the Lib Dems would not vote for it; and whatever the outcome in May, it is unlikely to happen at all, such is the widespread dissatisfaction with it.
The SNP, which could well find itself with more than 40 seats after 7 May and therefore with the sort of clout the Irish Nationalists had while keeping Asquith in power after 1910, currently does not vote on solely English matters at Westminster. It has tried to argue that it could vote on the English National Health Service, giving the argument that funding shortages in England could drive people over the border to seek treatment in Scotland. But that is too far-fetched for many English MPs and, more to the point, for many English voters. For English MPs now to demand a say in the running of the Scottish NHS would be regarded as an outrageous and reactionary act of effrontery; it is surprising that some Scots do not see that this argument cuts both ways.
The SNP’s own credibility would be at stake if it suddenly started to vote on matters that for Scots are settled at Holyrood and in which the English have no say. The widespread assumption among Tory MPs is, however, that it would start to vote on solely English measures, however hypocritical that was. Otherwise, Labour could use its own, probably diminished, numbers of Scottish and Welsh MPs to pass measures that do not affect Scotland and Wales; but that would sit oddly with the party’s supercharged commitment to devolution and the removal of English influence from Welsh and Scottish affairs. And if the SNP realises the impropriety, given its principles, of voting on solely English issues, it would confine itself to helping Labour win votes of confidence and passing measures affecting defence, foreign affairs and the National Lottery; nonetheless a Labour administration might prove unable, without SNP support, or the support of non-English Labour MPs, to pass measures essential to the government of England.
Tory MPs are preparing to make an outcry if English laws are passed with Scottish votes, and it would be unwise to underestimate the effect such a campaign might have on the government’s standing. Since last September’s referendum, attitudes to this in England have changed. It might seem to be a quick fix for Labour in enabling it to gain power, but the resentment it could well create among an English electorate that is not stupid, and certainly smart enough to notice what the Tory press would daily call the interference of Scots in important matters that do not concern them, could cause Labour profound long-term damage. Some Labour MPs are aware of the democratically contradictory nature of this possible strategy, and deeply uneasy about it.
With Labour perhaps divided on other matters – such as the extent of the implementation of spending cuts, as recently suggested by Lord Liddle, and the general continuing criticism of the party leadership by Blairites – the government might quickly lose support during such a controversy. The SNP might also not enjoy the negative publicity, conscious of the great damage done to the Lib Dems by their participation in government. The Labour government might then find itself unable to get important measures through that would affect 85 per cent of the population of the UK, and feel it has no option but to resign. And that might in turn propel into office another minority Conservative government, quite possibly under a leader other than David Cameron, again because of the difficulty under the Fixed-Term Parliaments Act of securing a dissolution. As before, if the Conservatives cannot form a government after 14 days, then there can be an election; or it would require a vote of two-thirds of the House of Commons, something unlikely to happen because it would entail large numbers of turkeys voting for Christmas. It would be much better for the country just to have another election, as was the practice previously, but the Fixed-Term Parliaments Act forbids such a simple solution. And while such a crisis plays out Britain would be at the mercy of financial speculators, and contempt among the electorate for the political process, which is already at an unhealthy level, would balloon.
Even before the ill-considered Fixed-Term Act, which senior politicians of all parties now wish to repeal, and the focus on democracy in England in the aftermath of the Scottish referendum, our electoral arrangements were far from ideal or equitable. Sometimes the party with the largest popular vote comes second in terms of numbers of seats: Labour did in 1951 and the Tories in February 1974. What has been called a “postcode lottery” means that a single vote carries far more weight in some constituencies than it does in others, in terms of the ease with which one party or another can be elected. The first-past-the-post system has long enabled the Tories and Labour to win most of the seats, while the Lib Dems, with over half the number of the main parties’ votes, have nothing like half their number of MPs. Now, it is quite possible that at the May election Ukip could register many more votes than the Lib Dems, yet end up with a small fraction of the Lib Dems’ parliamentary seats. Only the introduction of a system of proportional representation, such as is used in the European parliamentary elections, could obviate this injustice.
Yet in 2011, when at the insistence of the Lib Dems a plebiscite was held on introducing the Alternative Vote, it was roundly defeated by 68 to 32 per cent. Therefore we must assume that the public, or at least the 42 per cent who cared enough about the future of our electoral system to vote, are quite happy for the present system to continue.
What we cannot assume is public support for the Fixed-Term Act. The Lib Dems had a commitment to fixed terms in their 2010 manifesto; but the dominant partner in the eventual coalition, the Conservatives, did not. Fixed terms may work in presidential systems such as the US or France, where the head of government is elected separately from the representative assembly, and where therefore the political culture is fundamentally different. Here, the act limits the democratic option, as previously existed, of a failed government going to the country as soon as it has lost the confidence of parliament – as with the Callaghan administration in 1979; or of a government so weakened by events that it decides to seek a new mandate from the electorate, as Edward Heath unsuccessfully did in February 1974. It also prevents a government calling an election at a time of its choosing, although, as John Major found in 1997 and Gordon Brown in 2010, prime ministers do not always call correctly.
When Nick Clegg introduced the Fixed-Term Parliaments Bill in the Commons on 13 September 2010, the government front bench – as a Labour MP pointed out – was devoid of any Conservative ministers to support him. He claimed the measure was designed “to remove the right of a prime minister to seek the dissolution of parliament for pure political gain”. That was not quite true. Removing that right was indeed one of the reasons for the Lib Dems’ devotion to the idea of fixed terms. But the real reason why the promise was made immediately upon the conclusion of the coalition talks the previous May was an intervention by Sir Gus O’Donnell, the then cabinet secretary.
There are two categories of senior civil servant: those who act as true mandarins in tendering advice and implementing ministerial decisions with strict objectivity, whether they conform with that advice or not, and those who take a robust interest and keen delight in politics and the political process itself. Anyone who has come across Lord O’Donnell – as he has since become – will be aware that he belongs more to the second than to the first category. He was especially effective in Whitehall in dealing with ministers who were either inexperienced or not very bright. Cameron, whose first office of state was that of prime minister, and Clegg, whom few would expect to win Mastermind, were putty in his hands. O’Donnell correctly identified that the international markets were waiting to see how serious the new government was likely to be in tackling the economic difficulties of the time, notably a deficit excessive both historically and by comparison with those of economies in the eurozone. He argued that announcing in the summer of 2010 that the next general election would not be held until 7 May 2015, barring exceptional circumstances, would constitute a promise of stability that the markets would love.
Whatever Cameron’s doubts about this – and in that way that he seems to lack conviction about almost everything, it is hard to discern whether he had strong feelings either way – he could see this might be a deal-breaker with the Lib Dems: and so, despite what he must have known would be deep hostility from many in his party, he signed up to the idea. So when Clegg, in his vapid and shallow speech on the second reading, said that the result of passing the bill would be “no more feverish speculation”, once a parliament entered its latter phase, “distracting politicians from getting on with running the country”, he told less than half the story. And those who should be running the country seem to have found plenty of distraction elsewhere to compensate for not having the date of a general election to speculate about.
One of the many points Nick Clegg seemed incapable of grasping, in choosing largely to ignore or not being able to notice that there might be other consequences of this measure, was that some displacement would occur. “The political parties end up in perpetual campaign mode,” he told MPs, “making it very difficult for parliament to function effectively.” Parliament is scarcely functioning effectively now, more than three months before an election. MPs of all parties are mostly in their constituencies, attempting to secure their re-election. Fixed term or not, that was always going to happen. The arguments to which Clegg devoted his speech in September 2010 in supporting his case for this fundamental change to the constitution have turned out mostly to be hollow.
But then he gave himself away on the day in response to an intervention by Sir Peter Tapsell, the Father of the House and widely respected on both sides of it, who first sat in the Commons in 1959, nearly eight years before Clegg was born. “Why,” asked Sir Peter, questioning the change, “do the Rt Hon Gentleman and our Prime Minister think that they are wiser than their 40 predecessors?” In a response sublimely fatuous even by the Deputy Prime Minister’s standards, he replied: “It is not a question of wisdom; it is a question of the weight of history.”
Bernard Jenkin, another Tory MP, accused the government of “gerrymandering the constitution in favour of a particular coalition” and of making up the constitution “on the hoof”. He called for a constitutional convention to weigh up the pros and cons properly. Chris Bryant, the Labour MP and historian of parliament, took issue with the five-year fixed term, pointing out that since the Reform Act 1832 parliaments, on average, had lasted three years and eight months. This was a more remarkable statistic than Bryant disclosed, because until the Parliament Act 1911 an act of 1716 required general elections to be held only every seven years. Jack Straw took up Jenkin’s point and accused the government of rushing through the bill without proper pre-legislative scrutiny. His colleague George Howarth came more directly to the point, describing the measure as “squalid in intent”.
The bill passed, but it is important to recall the extent of the doubts and fears expressed at the time by both Labour and Tory MPs, for it means that if we have a constitutional crisis caused by the act nobody can claim to have been unwarned. That 1911 act that established five-year parliaments as a maximum, and whose purpose was principally to end the veto of the House of Lords, was the result of precisely the extensive pre-legislative scrutiny and consultation that Jenkin and Straw (and many others) called for in 2010, but which in an act of scandalous dereliction, given the gravity of the measure, was entirely absent. The consequences of removing the peers’ veto – a necessary step in a country close to achieving full manhood suffrage, and which within 20 years would have extended the vote to all men and women over the age of 21 – were so completely discussed in the Commons, in the Lords, on public platforms, in the press and (most significantly) at two general elections within 11 months that very few were unaware of what they would be. And the widespread acceptance of this change to centuries of constitutional practice, as well as the absence of unpleasant surprises afterwards, were a tribute to the effectiveness of an exhaustive debate before it occurred.
The possible constitutional crisis of 2015 could be the gravest since that of 1909-11, which was occasioned by the peers’ rejection of Lloyd George’s “People’s Budget” and, once the fight over their right to throw out money bills was lost, their persistent refusal to contemplate surrendering their veto on all other measures. It was only when A J Balfour, the Unionist leader, was told in July 1911 that George V had promised Asquith, his prime minister, that he would create hundreds of Liberal peers to force the Parliament Bill through that the Unionists gave in and let the bill pass. The Lords were persuaded to surrender their veto on money bills by the Unionists’ defeat in the general election of January 1910, which forced them to pass the People’s Budget. When the peers would not agree to surrender their other veto powers Asquith requested another dissolution, and in an election in December 1910 the Unionists lost again.
Most MPs realised the game was up: many peers didn’t, hence the need for Asquith to extract the promise from the king to agree to use his prerogative to create enough peers to defeat the forces of conservatism in the upper house. But in the two years while this conflict continued, the matter was, at least, robustly discussed and extensively dissected.
Because such a debate did not precede the Fixed-Term Parliaments Act, and the coalition was able to drive the measure through parliament without needing to pay attention to points of serious dissent, we stand at risk of a profoundly anti-democratic outcome from the forthcoming electoral process. This is recognised across parliament. Senior politicians from both the Conservative and Labour Parties, including Alan Duncan, Peter Tapsell, Jack Straw, Gerald Kaufman and Kenneth Clarke, have all called in recent weeks for the act to be repealed. Given that the present parliament has so little to do, it is a wonder that the Conservative Party – which has never liked the act – does not make common cause with the substantial number of Labour objectors and seek to repeal the bill now, before the election. It would hardly matter if that broke the coalition, which has but a few weeks to live in any case.
If that should mean that 2015 was a year of two elections, so be it. At least the second election would give the public the opportunity to reflect upon the indecisive outcome of the first, and to choose whether they wished to cast their votes differently. This is important not least because of the position with Scotland, and the growing controversy over the exercise of votes on English issues by Scottish MPs. If that question, raised by Tam Dalyell 40 years ago, is to be settled in a way that inspires the confidence of all concerned, it has to be settled by a government with proper democratic legitimacy. But if the British are to have a democracy in which they can properly believe, they cannot tolerate governments that come about contrary to the will of the people, and then are allowed to rule indefinitely because the mechanism to remove them has been abolished. The one lesson that should, above all, have been learned from the past 20 years or so, is that if a government decides to unpick parts of the British constitution, it should not begin to do so until all the consequences have been exhaustively considered, and – in keeping with the best ideas of a democracy – until the public has signalled its approval at a general election.
Simon Heffer writes for the Daily Mail