Two of the most prominent cabinet ministers, and those most heavily implicated in Brexit negotiations, have resigned from Prime Minister Theresa May’s cabinet, and her ministry could fall.
However, the Fixed-Term Parliaments Act complicates matters and could even offer the beleaguered May a reprieve, or at least keep the Conservative Party in government. This act has put the British Crown’s prerogative authority over dissolving parliament into abeyance. In other words, the Queen no longer dissolves Parliament on the advice of the Prime Minister. Instead, Parliament can now only be dissolved pursuant to the statutory authority contained within the Fixed-Term Parliaments Act itself.
As I describe in my journal article “When the Bell Tolls for Parliament: Dissolution by Efflux of Time” in the Journal of Parliamentary and Political Law last year, the Westminster Parliament can now only be dissolved in one of three ways, under one standard procedure and two exceptional procedures.
1. Under section 3(1) of the Fixed-Term Parliaments Act, parliament dissolves automatically by efflux of time in the normal course of events. This first happened in March 2015.
The Parliament then in existence dissolves at the beginning of the 17th working day before the polling day for the next parliamentary general election as determined under section 1 or appointed under section 2(7).
Section 2 of the said Act outlines the two procedures for early dissolution.
2 Early parliamentary general elections
(1) An early parliamentary general election is to take place if—
(a) the House of Commons passes a motion in the form set out in
subsection (2), and
(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).
(2) The form of motion for the purposes of subsection (1)(a) is—
“That there shall be an early parliamentary general election.”
(3) An early parliamentary general election is also to take place if—
(a) the House of Commons passes a motion in the form set out in
subsection (4), and
(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).
(4) The form of motion for the purposes of subsection (3)(a) is—
“That this House has no confidence in Her Majesty’s Government.”
(5) The form of motion for the purposes of subsection (3)(b) is—
“That this House has confidence in Her Majesty’s Government.”
2. In one case, parliament may be dissolved early if two-thirds of MPs pass a motion “That there shall be an early parliamentary general election.” Prime Minister May herself triggered this procedure in April 2017; in the resulting election, she led the Conservatives to losing their parliamentary majority – which is why she now finds herself in 2018 in such desperate circumstances.
3. In the other case, if the Commons votes non-confidence in Her Majesty’s Government by simple majority (“That this House has no confidence in Her Majesty’s Government”) but subsequently fails to pass a confirmation vote for a new government (“That this House has confidence in Her Majesty’s Government”) within 14 days, then Parliament shall automatically dissolve in order to break the deadlock. The defeated government would remain in a caretaker capacity during the ensuing election. Thus far, this method has not been used, but it could come into play this week.
Logically, these two exceptional procedures have replaced the old confidence convention, which means that the House of Commons can no longer withdraw its confidence from Her Majesty’s Government by implication, like by voting down the Queen’s Speech, a supply bill, or a major policy bill. Likewise, the Prime Minister no longer has the authority to deem that the government has lost the confidence of the Commons and call an early election. (I’ve written in greater detail on this question of confidence under the Fixed-Term Parliaments Act here and here).
It is unlikely that the government or opposition would opt for the direct early dissolution procedure like last year. The Guardian reports that “Theresa May Would Fight Any No-Confidence Vote.”
As such, the Fixed-Term Parliaments Act will effectively insulate the governing Conservatives from the consequences of the May government’s implosion. Even if the not-so-loyal leader of the Labour Party and Her Majesty’s Loyal Opposition, Jeremy Corbyn, presses his advantage amidst the chaos and introduces a non-confidence motion under section 2 of the Fixed-Term Parliaments Act and it passes, the Conservatives would still have 14 days in which to nominate a new party leader whom the Queen would appoint as Prime Minister, and then work with the DUP so that the a ministry can win an affirmative vote of confidence under the Fixed-Term Parliaments Act.
Another potential option presents itself for Prime Minister May. The Fixed-Term Parliaments Act, 2011 put the prerogative over dissolution into abeyance, which means that the Queen no longer dissolves parliament on the advice of the prime minister or under any circumstances whatever. However, the Fixed-Term Parliaments Act deliberately preserved the prerogative authority over prorogation – which means that Theresa May could conceivably pull a Stephen Harper or Dalton McGuinty and advise the Queen to prorogue this session of 57th Parliament, let the situation cool down, and then reconvene with an affirmative motion of confidence at the beginning of the new session.
6 Supplementary provisions
(1) This Act does not affect Her Majesty’s power to prorogue Parliament.
During the legislative debates on the Fixed-Term Parliaments Bill, Labour MP Chris Bryant argued that the bill should put the prerogative authority over prorogation into abeyance as well in order to prevent any British Prime Minister from engaging in a tactical prorogation (column 738). Bryant even cited Harper unfavourably.
Time will tell. And I shall nerdily watch with great interest!
- What the Conservative-DUP Agreement Says About Votes of Confidence of the Fixed-Term Parliaments Act
- The Cabinet Manual and Votes of Confidence Under the Fixed-Term Parliaments Act
- Prime Minister May’s Bane: The Fixed-Term Parliaments Act and the Perils of Early Dissolution
- Prime Minister May’s Presidential Style
- How the General Election of 2017 Will Occur in Practice
- Jacob Rees-Mogg and Jeremy Corbyn Expose the Futility of the Fixed-Term Parliaments Act
- Theresa May Calls For An Early Election Under the Fixed-Term Parliaments Act