The curious quirks of the Fixed-Term Parliament Act 2011

In the debate on what happens after tomorrow’s General Election, if there is no self-evident majority produced (whether single party or easy-fit coalition), not enough attention has been given to the impact of the Fixed-term Parliaments Act 2011.  This Act was hastily agreed as a means of cementing the Coalition government to hold for a 5 year term.  The Act has indeed some very strange quirks to note and in some cases avoid.

The Act provides for two, and only two, ways for there to be a General Election to take place other than at the end of the 5 year term, i.e. May 2020.

The first is in effect the voluntary route.  Under Section 2, if the House of Commons passes the following (but no other) motion, by a two-thirds majority of the whole House (including any vacant seats), the early election is triggered:

“That there shall be an early parliamentary general election.”

This does not demand further consideration here.

The second is the compulsory route to an early election, via a motion of no confidence.  This has two stages.  If the House of Commons passes the following no confidence motion – requiring only a simple majority – and this is not followed within 14 days by a “confidence” motion”, an early election is triggered:

“That this House has no confidence in Her Majesty’s Government.”

If such a motion passes, then a General Election “is to be held”, i.e. it is compulsory to hold it, unless within the 14 days, the following motion is passed (again, a simple majority suffices):

“That this House has confidence in Her Majesty’s Government.”

This could theoretically – and maybe in practice – lead to some bizarre results.

Assume that a motion is passed saying “This House has no confidence in Her Majesty’s Government and considers that there should be an early Parliamentary election”, then there can be no early Parliamentary election as the precise wording has not been followed – the rider is self-destroying!

Even stranger, if there were a successful vote of no confidence in the prescribed form, but a motion was passed within 14 days saying “This House has complete confidence in Her Majesty’s Government”, this would not stop the early General Election taking place as the addition of the word “complete” takes it outside the Act’s required motion!

This may all look a bit abstract or absurd – but it could have real life consequences, depending on the Parliamentary arithmetic and political follow-up.

Let us hypothesize that the Conservatives are the largest party, but without being very close to an overall majority (even, let us surmise, with the support of the Lib Dems).  The Prime Minister may have the constitutional ability to seek to put together a government which he hopes would win a majority for its proposed Queen’s Speech.

Let us further hypothesize that the Queen’s Speech programme is agreed by a single vote, but that the next week, a small party decides to change sides and cease to support the government.  The Labour Party believes it could command a new Commons majority in this situation.  

If it then puts forward the motion “That this House has no confidence in Her Majesty’s Government”, and this is passed, it automatically triggers a new General Election – which by definition Labour might not want!  This could only be stopped by passing the vote of confidence in the government – an even worse solution in such a circumstance!

The only obvious way out of the dilemma is to put forward a motion of no confidence which includes some wording additional to, or different from, the Act’s prescribed wording!  For example, maybe by adding just one new word:

“That this House has no confidence whatsoever in Her Majesty’s Government”

Next (and here I enter the world of political fantasy, perhaps, but fun and even instructive to do so), assume that the Conservative government has suffered losing the no confidence vote in the prescribed form, but feels it can now – within 14 days – win back a confidence vote, and puts forward the motion of confidence in its prescribed form under the Act, the Opposition could succeed in triggering an early election if an amendment to insert the word “full” before “confidence” were carried!

Thus, in such a case, if the motion “That this House has confidence in Her Majesty’s Government” is passed, the early General Election would be avoided – whereas a motion “That this House has full confidence in Her Majesty’s Government” would lead to an obligatory early General Election!

The serious and wider point about all this surmising is that – depending on the arithmetic and politics – there could be cases where an Opposition thinks it could now win a majority in the Commons and wishes to replace and become the government within an existing Parliament, but without triggering a new early election.  If so, it has to be very careful about the wording it uses in its motion(s) to unseat the incumbent government.  This results from the very rigid prescribed wording of the 2011 Act.  

A final matter to note – if a motion of no confidence in HMG is passed in the prescribed form, triggering an early election, the date of the new election is entirely at the discretion of the outgoing Prime Minister (who by definition has lost the confidence of the House but can keep it waiting…).

Section 2(7) says that 

“…the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister…”

It would be an interesting question whether a decision, without strong objective grounds (e.g. impending war), to defer the election for an unduly long period would be susceptible to judicial review.

But in any event, it is a strangely – dangerously – broad discretion to hand to a Prime Minister who has just lost the House’s confidence, leaving the monarch with no apparent legal alternative but to follow the “recommendation” of the Prime Minister.

The Act is due to be reviewed in 2020.  Given its quirks, that is surely far too late.