The Fixed Term Parliament (sic) Act and Professor Colin Talbot

Many rules of the Constitution are not found in posited laws, such as statutes. Our Constitution makes use of Conventions: rules that the sovereign, government and Parliamentary officials know they must follow, but which are not set down in the positive law. An example, and one that may become important after the 2015 General Election, is the Salisbury Convention that the House of Lords will not oppose any government legislation on a second reading concerning a matter in an election manifesto.

That there are rules of conduct that are not posited by those in legal authority may seem odd but we are familiar with them in our daily lives: men don’t wear a hat in church.

What conventions require is a matter of consensus. If we collectively decided over time that hats were fine in church, the convention would change. The Constitutional Conventions governing the freedom of choice of the sovereign have changed dramatically over time.  The existence and content of Constitutional Conventions cannot be ruled upon by courts as they are not matters of positive law. A statute can overturn a Convention, but a court can only rule on what the law now requires. It cannot authoritatively determine the impact of the new law upon the old Convention.

This means that the people in authority to say what Conventions require are ‘constitutional experts’, people such as Vernon Bogdanor. If then a senior academic with authority in the area states that a Convention has been overruled by legislation it is more important than the expression of an opinion in an area where a court can definitively rule.

This post concerns the Fixed Term Parliaments Act 2011 and its impact on the Convention governing when a Prime Minister must resign. I shall set out the correct position, and then explain Professor Talbot’s mistakes.

The Position Before the Act

Under the UK system, government and Parliament are not coextensive. The ending of a Parliament, by dissolution, does not lead to the ending of a government, and vice versa. So, Gordon Brown’s government ran from 27 June 2007 (when the Queen appointed him) until 11 May 2010 (when he resigned four days after the election for a new Parliament). Margaret Thatcher’s government ran from 4 May 1979 – 28 November 1990, during which there were three separate Parliaments elected.

Every single government starts with the appointment of a Prime Minister by the sovereign, and  ends with the Prime Minister’s resignation. At the time of writing David Cameron is still the Prime Minister, although Parliament is dissolved for a General Election. When Harold Wilson resigned, and James Callaghan replaced him, the government changed, although its members were drawn from the same Parliament and the same party.

One Convention concerns when a Prime Minister must resign. After the 2010 General Election, it became clear that Gordon Brown could not command a majority in the House of Commons. He resigned, advising the sovereign to call on Cameron. If the Prime Minister does not command the confidence of the House of Commons, and another does, he or she must resign, recommending to the sovereign to call on the person who now possesses such confidence. No statute or posited law says that this is what had to happen. Indeed, as recently as the 1920s the Convention had been that the Prime Minister who lost the ability to command a majority in the Commons after a General Election did not immediately resign, but instead faced a vote of no confidence first.

Another Convention concerned the dissolution of Parliament, something which was in the power of the sovereign. At one time the monarch had a personal choice in this regard. The Convention became that the sovereign would grant a dissolution of Parliament whenever the Prime Minister requested it. This gave the government of the day an advantage as it meant that they could cut a Parliament short when the time looked propitious (eg Tony Blair in 2001, or 2005) or hold on to the maximum length of Parliament’s term in the hope something would turn up (eg Major 1997).

The latter power of the Prime Minister meant that when he or she no longer commanded a majority of the House, they had a choice, Either they immediately resigned, or they asked for a dissolution, with consequent general election. In 1979 Callaghan asked for a dissolution after losing an opposition confidence vote. In 1940 Chamberlain resigned after the Norway debate revealed he had lost the confidence of the House, and advised the Queen to call on Churchill . (This was not a clear cut case: Chamberlain actually won the vote.)

The Fixed Term Parliaments Act

The Act, as its name states, fixes the terms of Parliaments, not governments.

I would advise anyone who wants to form their own view as to whether my reading of the words of the Act is correct to read it

http://www.legislation.gov.uk/ukpga/2011/14/contents/enacted

The Act provides for an election every 5 years (section 1). An early election may only be called if the terms in section 2 are fulfilled. These are either (a) if the House of Commons votes by a majority that includes two-thirds of all MPs in favour of an early election, or (b) if a motion (passed on a simple majority) that “this House has no confidence in Her Majesty’s Government” is not followed within 14 days by a further motion (passed on a simple majority) that “this House has confidence in Her Majesty’s Government”.

The Act therefore abolishes the Convention that the sovereign will grant a dissolution, with consequent election, at the Prime Minister’s request, because the sovereign no longer has this power. The position of the Prime Minister (and his or her government) is therefore made weaker.

What of the Convention governing when the Prime Minister must resign, if no longer able to command a majority of the Commons? What has happened to that?

What happens if, come May 8th, Labour has secured a large majority. What does the Act say Cameron must do?

It says nothing at all about this question. Wholly unsurprisingly as the Act concerns Parliament, not the government.

Could the leader of the opposition use the Fixed Term Parliaments Act to remove Cameron if (implausibly) he refused to resign, in defiance of the Constitutional Convention? The answer is no. All that can be done under the Act itself would be to pass a motion of no confidence in the requisite form, which triggers a new election in 14 days. If the result remained the same what then? Do we just keep on having elections under section 2 of the Act forever?

The answer is, of course, no. The Act is silent as to the duty of the Prime Minister to resign. It has done nothing to the Convention governing this matter. The Prime Minister must resign if he no longer commands the confidence of a majority of the House of Commons and another does.

What if a Prime Minister commands the confidence of a majority of the House at the start of a Parliament, but loses it? Say party A has 300 seats, party B 300 seats, and party C 50 seats. If the leader of party A secures the backing of party C, he commands the confidence of the Commons and so is called on by the sovereign to be PM. What if party C swaps its allegiance to party B half way through a 5 year term? In those circumstances the PM must resign, and advise the sovereign to call  on the whoever can command a commons majority (usually the leader of party B). An early election is only triggered if a motion under section 2 is passed. Similarly if the composition of the Commons changes overtime through byelections, who it is who can command a majority may change.

How do we test in a finely balanced House (eg March 1979 or possibly after the 2015 election) whether a Prime Minister does command the confidence of the House? Easy: have a vote. If the result of the election is close Cameron will call a vote to determine this matter. Perfectly possible that the leader of the opposition may call, and win, a subsequent vote of confidence: “This House Calls on the Prime Minister to Resign.”

One ambiguity arises from the fact that, unless expressly worded, it may be unclear whether a particular vote means that a Prime Minister has lost the confidence of the House. The Norway vote revealed that Chamberlain had, even though he technically won the vote itself. This problem of ambiguity is easily solved by having a second vote on an expressly worded motion. There are recent precedents for doing exactly that.

The Act has done nothing to change when governments begin and end, because it is silent about this.

Professor Talbot

In a number of posts Professor Colin Talbot, Professor of Government, has expressed a different view from the one above

https://colinrtalbot.wordpress.com/2015/04/26/who-governs-britain-after-may-7th/

https://colinrtalbot.wordpress.com/2015/04/27/the-fixed-term-parliament-act-was-designed-to-protect-the-coalition-government-dont-be-surprised-when-it-protects-a-labour-one-too/

https://colinrtalbot.wordpress.com/2015/04/29/the-fixed-term-parliament-act-has-absolved-all-the-players-from-any-duty-to-respect-constitutional-conventions-rather-than-the-letter-of-the-law-senior-officer-of-parliament/

There are exemplary replies from Dr Mark Elliott, Reader in Law, who writes in support of the position taken in the Cabinet Manual (which is the same as the one I have tried to set out above).

http://publiclawforeveryone.com/2015/04/28/the-fixed-term-parliaments-act-a-reply-to-colin-talbot/

http://publiclawforeveryone.com/2015/04/29/a-short-follow-up-post-on-the-fixed-term-parliaments-act/

There are, I think, three errors in Professor Talbot’s reasoning.

First, he takes the view that the Fixed Term Parliaments Act determines when governments fall, indeed he claims that the Act is misnamed.

Second, he claims that not only has the Convention as to the Prime Minister’s ability to seek a dissolution of Parliament been abolished, but also the Convention as to when a Prime Minister must resign.

Third, he claims that the Act specifies what a motion of no confidence is, so that if one is not passed in the requisite form a Prime Minister has no obligation to resign.

In one way these are difficult claims to refute, as the answers require the proof of a negative: the wording of the Act says none of these things. However, the Act is short and clear.

First, at no point does the Act say anything at all about when a government begins and ends. Unsurprisingly as it is about Parliament. Parliaments only end with dissolution. Governments only end with the Prime Minister’s resignation (or death).

Second, by fixing the term of Parliament, the Act has necessarily abolished the Convention that the sovereign grants a dissolution on the request of the Prime Minister. This is because the sovereign no longer has the power to dissolve because of the Act. It is incumbent on those who would claim that the Convention requiring a Prime Minister who no longer commands the confidence of the House to resign has also been abolished to identify the words stating or necessitating that. The idea that there is no longer any Constitutional Convention binding a Prime Minister after election defeat requiring their resignation is not plausible.

Could a modern day Chamberlain refuse to resign? Where does the Act say that?

Third, section 2 of the Act does not provide an exhaustive definition of a confidence motion. It does what it says on its face: it sets out the motion required for an early election. That is it.

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11 thoughts on “The Fixed Term Parliament (sic) Act and Professor Colin Talbot

  1. Glad to see you’ve gone into the blogging business Hugo, and I trust this will not be your last post.

    The position laid out in the first section of what you’ve written here seems, to my unlearned eye, uncontroversial: the act decides the term of parliaments, not governments. It has not changed the convention that the PM should resign following a vote of no confidence in him/her in favour of another who does enjoy the confidence of a majority of the house since it is silent on that issue.

    It is entirely correct that this issue be discussed as widely as possible now, to avoid confusion later. The worst possible thing would be a hung parliament in which people instantly arrive, without having previously discussed the issue, at differing interpretations of what should happen, and the controversy is then fought out at the same time as the political battle.

    • Thanks. I set this up ages ago but only now felt the need to post something. As you said to me, I can’t say something like this on twitter.

      My hope is that some academics look at this and comment elsewhere. Dr Mark Elliott did (and what he says is exactly right). This could become very important indeed, and as a result mistaken views need to be nipped in the bud quickly. I don’t have anything against Talbot personally, but his reading of the Act is very loose.

  2. For me, the important point about Talbot is not whether he’s right or wrong about the Fixed-term Parliaments Act (FTPA) but that he is claiming that his line is the “official” one (strictly, that his opinions are based on what a “senior parliamentary official” has told him). His claim is given credence by this article from 2013 which reports the Commons Information Office giving essentially the same line as Talbot’s “senior official”.

    http://www.newstatesman.com/politics/2013/05/if-queen%E2%80%99s-speech-amended-prime-minister-must-resign

    Yesterday (May 4th) Talbot upped the ante somewhat by claiming it was now questionable whether the Speaker would allow a confidence motion to be debated unless it was in the form prescribed by the FTPA.

    Either he is sticking his neck out or he also has this on good authority from his “senior official” (incidentally it is beyond doubt that the Speaker has the power to do this and the only remedy would be for the House to elect a different Speaker who would allow non-FTPA confidence motions). But it’s certainly in line with New Statesman piece.

    If Talbot and the New Statesman have indeed reported the official position correctly then a lot of the constitutional theorising over the last few days might need to be revisited, starting with the piece just published in the FT by Vernon Bogdanor which assumes that a Queen’s Speech can be amended to make it a vote of confidence.

    Whatever the case it certainly makes me see the attempted (but unsuccessful) “coup” against Mr Speaker Bercow just before Parliament dissolved in a new light….

    • Why Talbot thinks that a motion other than than that in the terms of section 2 could be ruled out by the Speaker is wholly unclear to me. Which words he thinks justify that is obscure.

      • This really is not about Talbot. This is about what the official view is at the Commons. In fact the New Statesman piece is more relevant than anything Talbot’s said.

        Keep rubbishing Talbot if it makes you happy. But you might just be shooting the messenger.

      • One of the issues I have with one of Professor Talbot’s follow ups is why he thinks this is a matter for a ‘senior parliamentary official’ at all.

        The Conventions on resignation and appointment are to do with how the sovereign and Prime minister are bound to behave. that are nothing to do with Parliament. Sir Jeremey Heywood is the person to ask for the opinion that will be given to the PM, not that of a ‘senior Paliamentary official’. So why does he think a ‘senior Parliamentary official’ has an opinion worth listening to?

        The tweet above may explain this, as you say. But, I am still at a loss as to why he would think the Act would required the Speaker to behave like this.

        We may soon find out. If Parliament is hung, and Cameron goes for a Queen’s Speech with the outome uncertain, we’ll have a vote of no confidence tabled (as in 1924). So, we’ll see if Professor Talbot’s prediction is correct.

  3. Thanks for highlighting all this SH — fascinating discussion.

    One thing I’m not clear on (actually, there may be many points I’m not clear on)..

    You say re the FtPA: ‘An early election may only be called if the terms in section 2 are fulfilled. These are either (a) if the House of Commons votes by a majority that includes two-thirds of all MPs in favour of an early election, or (b) if a motion (passed on a simple majority) that “this House has no confidence in Her Majesty’s Government” is not followed within 14 days by a further motion (passed on a simple majority) that “this House has confidence in Her Majesty’s Government”.’

    I have no legal training and I don’t have any experience of such legislation but I can’t see where section 2 of the FtPA says that an early election “may only” be called if a) or b). It says an election is to take place if a) or b) but it doesn’t seem to preclude any other reason. The FtPA doesn’t say, as far as I can see, that early general election cannot otherwise take place, I understand that that is what it is supposed to say (I think). Am I missing something?

    In legal language does “if” mean “if and only if”?

    • Simon Reynolds
      You can’t get that out of section 2 alone. It comes from a combination of section 1 and 2. Section 1 fixes Parliament at 5 years. Section 2 provides the only exception. Hence “if and only if”.

  4. (sorry don’t seem to be able to reply directly to Hugo’s post of 6th May 2:04pm)

    The tabling of confidence motions is entirely within the Speaker’s power (and the Speaker is advised by his “senior parliamentary officials”). The PM has no say over it. The Cabinet Secretary has no say over it.

    The tabling of motions is nothing to do with conventions on resignations, just as the FTPA is nothing to do with the conventions on resignations. But the FTPA might (and I stress, might) have something to do with the tabling of confidence motions.

    As you say, we may soon find out whether or not the Speaker will permit a no confidence amendment to the Queen’s Speech. But if he does it will be George Eaton/New Statesman/Commons information Office who have got it wrong as much as Talbot.

    And I will gladly take my share of the blame for highlighting their views 🙂

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