Monday, 24 November 2014

The First Labour Government Shows Us That Fixed Terms Can Be Less Stable

In just a few months, we will see the first general election held under the Fixed Term Parliaments Act 2011 - the scheduled date is 7 May, but it could be postponed via Statutory Instrument (which would need to be passed by both the House of Commons and the House of Lords) to as late as 2 July, with the Explanatory Notes giving a 2001-style outbreak of foot and mouth as an example of a scenario that could lead to this.

One thing that is often said is that this leads to more stability - a Government takes office, knowing it has the full 5 years. Rather than manically legislate, it can pace itself. Opposition parties can plan, knowing when the next election date is and sure that the Prime Minister isn't going to call a snap poll.

But is this actually the case? Could the Act make general elections more frequent, rather than the intended less frequent?

On 6 December 1923 there was a general election which produced the following result:

  • Conservative - 258 (including 14 Scottish Unionist and 10 Ulster Unionist)
  • Labour - 191
  • Liberal - 158
  • Irish Nationalist - 3
  • Independent - 2
  • Christian Pacifist - 1
  • Scottish Prohibition Party - 1
  • Independent Liberal - 1

The new Parliament did not meet until 8 January, with the Conservative Stanley Baldwin still Prime Minister - a post he had held for the previous 8 months.

On 21 January, there was the debate on the King's Speech, with John Clynes - at the time the deputy leader of the Labour party - moving an amendment:

But it is our duty respectfully to submit to your Majesty that Your Majesty's present advisers have not the confidence of this House

The Commons voted by 328 to 256 to accept Clynes's amendment (i.e. to turn the motion on the King's Speech into a No Confidence Motion) and then voted by 328 to 251 on the revised motion (i.e. on what was now a No Confidence Motion).

Note that the Government didn't fall immediately - the following day when Parliament met, the Conservative Harry Barnston, of the Whips' Office, was answering questions about the Humber. Later that day, Baldwin informed the Commons that George V had accepted the Government's resignation. The Labour leader Ramsay MacDonald about to become Prime Minister.

Now consider how this would have worked under the 2011 Act. If the Commons passes a No Confidence motion, then there is to be an early general election - unless within 14 days the Commons passes a Confidence motion. It doesn't specify whether this is in the same or a different Government, although the Explanatory Notes give the intentionas :

The intention is to provide an opportunity for an alternative Government to be formed without an election.

Explanatory Notes do not have any legal force. As the Act stands, there is nothing to stop a Government defeated on a No Confidence motion from seeking to overturn it via a new Confidence motion.

Now suppose this Act had been in force in 1924. The passing of the No Confidence motion on 21 January would have meant that Parliament would have to have been dissolved, unless by 4 February the Commons passed a Confidence motion in a Government. But Baldwin's resignation announcement also included postponing the next sitting of the Commons until 12 February (it might seem odd these days for a Prime Minister to make an announcement like that, but until Stafford Cripps was appointed Leader of the Commons in February 1942 by Winston Churchill, if the Prime Minister were an MP then he would also be Leader of the Commons).

The Act places no requirement on the Queen to invite someone else - for example, the Leader of the Opposition - to attempt to form a Government. In theory, a Government that has been defeated at the general election (whatever that means in the era of hung Parliaments and coalition Governments) could still be in office in when Parliament meets after the election and introduces its own Queen's Speech. And then, when defeated in a No Confidence motion is still technically the Government and so the Leader of the House of Commons announces a postponement of all business until a date more than a fortnight in the future. Hence, it would be perfectly possible for a defeated Government to prevent the Confidence vote on any Government taking place that Parliament, and hence trigger a general election.

It is possible to consider a situation where this might happen. A coalition Government exists at the time of a general election, and when the votes are counted, the leading party has increased its share of the vote and number of seats. Its junior partner has lost over half its seats (and with its leader having lost his Sheffield seat and deputy leader retiring from his Aberdeenshire seat, is left leaderless) and teams up with the Opposition party and minor parties to decide that the Commons has no confidence in the minority Government (which is more-or-less a continuation of the outgoing one, but with the junior coalition partner gone). The sitting Prime Minister could make the case that his party has improved on the previous performance, and the verdict of the people was a positive one - they wanted his party to remain in power but without being constrained its then partner. He could argue that the electoral momentum is with his party, and note the example of Labour's Harold Wilson having Parliament dissolved in September 1974 with the aim of winning those extra few seats to turn a minority Labour Government into a majority one.

Such a Prime Minister could suggest he wants to do in a matter of weeks what took Wilson months, and so instruct the new Leader of the Commons to draw up a parliamentary timetable which means the Commons does not meet in that crucial fortnight, and is unable to hold a Confidence motion. Under the 2011 Act, Parliament must be dissolved and a new general election held a matter of weeks after the last one.

To prevent such a sequence of events happening, there needs to be one or both of these solutions:

  1. The quickest and simplest is for a change in House of Commons Standing Orders to give the Government less control over the timetable, and for a Timetable Committee to be set up - with the Government in a minority on it. Such a committee would decide on recess dates and non-sitting days.
  2. Last week saw the Scottish Parliament elect Nicola Sturgeon as First Minister. As I have looked at before, it would be possible for a change in law so that Westminster follows the Holyrood lead and one of its first acts after a general election is electing a Prime Minister, and for the passing of a No Confidence motion to set in process a new election of a Prime Minister by the Commons (which might simply be the sitting one re-elected), with dissolution only happening if no Prime Minister is elected in the timescale set down.

Although it is commonly assumed that MacDonald's government in turn fell on a No Confidence motion, the reality is slightly different. On 8 October 1924, Conservative former Chancellor of the Exchequer, Robert Horne, introduced a censure motion:

That the conduct of His Majesty's Government in relation to the institution and subsequent withdrawal of criminal proceedings against the editor of the Workers' Weekly is deserving of the censure of this House.

The censure motion was passed and the following day, MacDonald announced that Parliament would be dissolved.

It is important to notice that MacDonald's government did not face a Confidence or No Confidence motion during its brief existence. When George asked him to form a Government, it was taken as read that he could form one. The confidence of the Commons was implicit.

The 2011 Act, however, requires confidence to be explicit in these circumstances, creating a hurdle for a modern day Prime Minister that MacDonald never had to leap over. The question is whether MacDonald would have won a Confidence motion in February 1924, or whether the people would have to trudge back to the polling booths?

In the debate on the King's Speech, the Conservative Austen Chamberlain - a former (twice) Chancellor of the Exchequer who would go on to become Foreign Secretary - noted:

It is not so very long since I was pleading with my friends of the Unionist party, at the famous meeting in the Carlton Club, not to break up the Coalition which had then existed for many years between a large and powerful section of the Liberal party and our own party. I ventured to point out to my friends before that election—the last election but one—and I repeated it after- wards when the results were known, that we who defended the old principles and the old freedom, were not so strong that in the face of a common menace we could afford to indulge in mock quarrels. I was answered by Mr. Bonar Law [who would become Prime Minister following the break up of the Coalition in October 1922] in a passage not quoted by my right hon. and learned Friend, but parallel to it. He said that if you teach the country that there are but two parties capable of Government, one comprising all that is most liberal in the Liberal party and all that exists in the Unionist party, and the other comprising the Socialist party, then is it not certain that sooner or later, some day, the Socialist party will come into power. Yes, "some day," if we had continued the Coalition. But barely a year has passed, and to-morrow a Socialist Government enters into office. The Coalition is dead. At this moment nobody can revive it—nobody would revive it if they could. But the Coalition being dead, co-operation is a necessity, and the only question is, who shall co-operate with whom. Between whom shall new alliances exist? I cannot help thinking that a great deal of nonsense has been talked on this subject by a great many I hope not otherwise than sensible men. The late Mr. John Bright once observed that the trouble with great thinkers was that they usually thought wrong.

The hon. Gentleman the Member for Aberavon (Mr. MacDonald), in advance, denounced any "wangling" that should dash the cup from his lips, and the right hon. Gentleman the Member for Paisley [former Liberal Prime Minister Henry Asquith] and the right hon. and learned Gentleman the Member for Spen Valley [the Liberals' John Simon, who had been Home Secretary and would go on to become Foreign Secretary and Chancellor of the Exchequer, and finally Lord Chancellor] lent countenance to this doctrine. But what is going to happen? Two parties have got to "wangle," if that be the word, into the same Lobby to get this Government out. Two parties have got to "wangle" into the same Lobby to keep any Government in. Oh, yes, Sir, my right hon. Friend the Member for Paisley talks easily at the National Liberal Club about the limits of his acquiescence. We are to turn out my right hon. Friend to-day, and put in the hon. Member for Aberavon to-morrow, and, the day after, if we are in any difficulty, we are to turn to the right hon. Gentleman the Member for Paisley. No, Sir; men must be deemed to intend the natural consequences of their acts. The King's Government has to be carried on. If you put a Socialist Government into office, day after day you will walk into the Lobby to keep them there. The assistance must be active or passive. It must be passive by abstention—if the right hon. Gentleman and his friends chose to abstain, the result to-night would be different—or it must be active by their intervention; and they have chosen the course which requires constant activity on behalf of a policy in which they do not believe, in support of a Government which they profess to mistrust, rather than the middle course that might give the country what the country wants.

To summarise what Chamberlain is saying - the Liberals have ganged up with Labour to force out a Conservative government, and they need to accept there are consequences. They can assist Labour passively or actively. Under the current rules, they would have had no choice but to support Labour actively on a Confidence motion - to abstain would trigger a new election.

The 2011 Act was written for a new era of politics - one where hung Parliaments and coalitions were the norm, but where either the Conservatives or Labour could get enough support from other parties to form a Government. But events of the past few months have shown that the era it was written for is already passing into history.

One election in the Victorian era was that of November/December 1885:

  • Liberal - 319
  • Conservative - 249
  • Irish Nationalist - 86
  • Independent Liberal - 11
  • Independent Liberal/Crofter - 4
  • Independent Liberal/Labour - 1

No party had the 336 MPs required for an overall majority, and in the following February, the Conservative Prime Minister, Robert Gascoyne-Cecil, resigned, and the Liberals' William Gladstone returned as Prime Minister with Irish Nationalist support - but split the Liberals over Irish devolution and the Government collapsed, with the July 1886 general election seeing the Conservatives and Liberal Unionists form the new Government.

And the one thing that has changed this year is the rise of the UK Independence Party (in England, and to some extent in Wales and Scotland) and the Scottish National Party. And if they both have breakthroughs, then we could be looking at an 1885-style result, with the Conservatives or Labour having to rely on both for support if they want to form a Government.

There are a couple of sayings - nothing succeeds like success and strike while the iron is hot. If you look at the seats that changed hands at general elections, you see the SNP picking up 6 seats in February 1974, and then in the October 1974 general election going on to win a further 4. Momentum was with them.

Why did the Liberal Democrats not see significant electoral breakthroughs until May 1997? Until then, voting for them was seen as a "wasted vote". And the June 2001 and May 2005 elections both saw increases in seats for them.

Suppose in May 2015 we do elect a hung Parliament where neither a Conservative/Liberal Democrat or Labour/Liberal Democrat majority is possible, and there are significant numbers of SNP and UKIP MPs. Both these parties would see an iron that is white-hot. The SNP would have shown it can win seats in Labour heartlands of central Scotland, while UKIP would have shown that a vote for it is not a "wasted vote". A second election would be in both their interests.

There are then two scenarios that could play out. The first is:

  • Prime Minister David Cameron chooses not to resign after the election and introduces a Queen's Speech
  • The Commons votes down the Queen's Speech, leading to a No Confidence motion
  • The Government is defeated on this, and Cameron resigns
  • The Queen asks Ted Miliband, the Leader of the Opposition, to form a Government
  • Thanks to the 2011 Act, the Labour Government has to face a Confidence motion
  • The SNP and UKIP ensure that the Confidence motion is not passed
  • 2015 becomes a year with a second general election

The second is:

  • Seeing the election results, Cameron resigns
  • The Queen asks Ted to form a Government
  • The Labour Government introduces the Queen's Speech
  • The Government is defeated on this, and Ted resigns after a very short ministry
  • Given that Cameron has not attempted to form a Government after the election, the Queen asks him to form a Government
  • Thanks to the 2011 Act, the Conservative Government has to face a Confidence motion
  • The SNP and UKIP ensure that the Confidence motion is not passed
  • 2015 becomes a year with a second general election

The second scenario would see the Government flip quickly from Conservative/Liberal Democrat, to Labour-led for a brief period, and back to Conservative-led, with the possibility of another Labour-led one depending on the outcome of the second general election.

What sort of timetable are we looking at here? The last election was Thursday, 6 May 2010. The Commons met on Tuesday, 18 May. The Queen's Speech was Tuesday, 25 May. So, if this timetable is followed, we should expect the Queen's Speech on Tuesday, 26 May 2015.

If there is a vote of No Confidence, then there is a fortnight for a Confidence motion to be passed, or else there is a dissolution. This is not an automatic one (unlike the one that will happen in March) - instead this is a more traditional one, with the Queen dissolving Parliament on the advice of the Prime Minister. It doesn't happen straight-away either. In 1979, the Labour Government lost a No Confidence motion on 28 March, but dissolution was not until 7 April - 10 days later. This is to allow essential business to be cleared before dissolution.

So, if there were a vote of No Confidence on the day of the Queen's Speech, the fortnight deadline for a Confidence motion would run out on Tuesday, 9 June. The earliest date for dissolution would be Thursday, 11 June, which would trigger a general election on Thursday, 16 July - just 10 weeks after the last one. And, it would be possible for the whole process to be repeated with the next Parliament and for us to be going to vote yet again on Thursday, 24 September, with Returning Officers pencilling Thursday, 3 December in their diaries.

I know that this would lead to cries of the Unionists ganging up with Project Fear, or of LibLabCon, but if we do traipse off to the polling booths in July, then the Conservatives and Labour would have to come to a deal whereby whoever loses will abstain on any Confidence or No Confidence motion in the winner, which would at least ensure that there was a minority Government that could last more than a couple of months.

Any constitutional innovation is a work-in-progress, and the next step has to be Scottish-style election of the Prime Minister by the Commons, to provide stability that the 2011 Act cannot provide.

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