Sir Stephen Laws KCB, QC (Hon) was First Parliamentary Counsel from 2006-2012 and is Senior Research Fellow at Policy Exchange.
If the Government loses a vote of no-confidence in the autumn, it will be the first occasion on which the provisions of the Fixed-term Parliaments Act 2011 have been tested. The constitutional conventions that govern the situation have not developed and are unclear.
It is already too late for such a vote to trigger a general election on or before 24th October – the last Thursday before the UK is scheduled to leave the EU, on 31st October – even if the earliest legally possible date for an election were recommended by the Prime Minister.
But if the Government were to lose a vote of no confidence, some argue, the Prime Minister would be constitutionally obliged to give up office to allow someone else to take over. A new “caretaker” government might then apply to the EU27 for an Article 50 extension and set in motion an early election before that extension expires.
The 2011 Act does not say anything about any of this. In a new paper for Policy Exchange, published today, I argue that there is a plausibly legitimate case to be made, politically and constitutionally, for the Prime Minister not to resign, which would bring forward an early election.
Before the 2011 Act, a Prime Minister defeated on a vote of confidence had a choice of asking the Queen for a dissolution of Parliament and an election or of resigning to allow someone else to take over. It was assumed a Prime Minister would always take the first option.
It was also widely accepted that the second option would be practicable only if the existing Parliament was “still vital, viable and capable of doing its job” and another candidate for Prime Minister was available who could “govern for a reasonable period with a working majority” in the Commons – the so-called “Lascelles principles”.
The 2011 Act’s purpose was to secure, so far as practicable, that elections only happen at regular five-year intervals. It changed the way in which the first option could be exercised, but it did not remove the option of a dissolution and election altogether.
It would be legitimate for a Prime Minister losing a vote of no-confidence to argue that it is still open to him to use the available mechanisms of the constitution to secure a dissolution and an election. All the 2011 Act did was to create a window of 14 days as an “opportunity” for a workable alternative to be negotiated. The assumption was that if there was an available alternative during the 14 days that might create a political imperative for the Prime Minister to give up office and so avoid the early election that it was the purpose of the 2011 Act to discourage. It did not turn that imperative into a rule.
It seems inevitable that any alternative government that would be proposed in current circumstances would fail to satisfy either of the Lascelles principles. Neither a government formed by Jeremy Corbyn nor one formed by anyone else would have a programme for governing the country “for a reasonable period” in a way that would command the support of a majority in the House of Commons.
Each would be offering no more than to apply for and negotiate an Article 50 extension while an early election is held anyway. A government to hold a second referendum, rather than an election, would not be plausible because it would involve having a workable programme for government for the many months that a referendum would take to arrange.
It was never thought in the past that a Prime Minister who had lost a vote of confidence triggering a general election – as James Callaghan did in 1979 – should give up office to his opponents to caretake government through the election period. There is nothing about the 2011 Act that suggests things have changed for the case where, one way or another, an election is going to happen anyway.
Some commentators have argued that the “purdah convention” requires the Prime Minister to apply to the EU for an Article 50 extension if an election is triggered. This is a contestable understanding of the convention. Others argue that when an election is triggered, the legal status quo should not be changed – and the only outcome for which Parliament has already legislated is that the UK leaves the EU on 31st October.
It would not be unreasonable for the Prime Minister to adopt the second view. The contestability of this issue means that it is legitimate for the PM to argue that he has no obligation to resign to make way for a new government the sole purpose of which would be to do something he believes would be a breach of convention if he did it himself.
Nothing in the 2011 Act suggests that it is impossible for any of the 14 days to be used by the Government as an opportunity to restore its majority. Indeed, the context of the Act suggests that was a scenario that must have been contemplated.
In current circumstances, if the Prime Minister remained in office he might well think he had an opportunity to win a vote of confidence during the 14-day period once it became clear that the only alternative would be a general election with a no-deal exit in the middle of the campaign.
The view on all sides when the 2011 Act was being passed was that the courts should not be involved in what happens after a vote of no-confidence. The courts should not involve themselves in the political question of whether the Prime Minister should or shouldn’t resign or the related “purdah question”. These are not justiciable issues.
Those who are seeking to thrust a role on the courts or indeed on the Crown in this matter cannot escape responsibility for drawing the courts and the Crown into political controversy. Ultimately, all these questions are intensely political questions on which only the electorate can make a judgement – and now probably only in retrospect.
The questions only arise because those who are opposed to the Government’s policies have allowed time to run out on their opposition. They now want more time to give it another chance to succeed.
It would be open to the Government to make the case that as time has run out its policy on Brexit should now be implemented in accordance with the legislation and timetable already in place – it would then have to answer to the electorate in the election that would duly follow.