This snap election will weaken Parliament just when it needs to scrutinise Brexit
In the event, the Fixed Term Parliaments Act proved no impediment to Theresa May when she decided to call a snap election. Jeff King argues that Labour and the Lib Dems should not have accepted a ploy that is constitutionally problematic. May’s reasons for calling the vote are flimsy, and Parliament will be weakened as a result – at just the time when the government should be heeding its warnings about Brexit.
A snap election for May’s benefit … Photo: Hallenser via a CC-BY 2.0 licence
Theresa May has deftly launched a gambit to get around the core purpose of the Fixed Term Parliaments Act 2011 – and it succeeded. The purpose of that Act (for a tidy summary of resources see here) was to stop prime ministers from calling an election at a time that suited the government’s rather than the country’s political future. The Coalition government formed between the Conservatives and Liberal Democrats in 2010 gave effect to the insistence by the Liberal Democrats that legislation put an end to the Prime Minister’s power to call an election at will. The Act prescribes five year periods between elections, alterable only by (1) the passing by the House of Commons of a motion of non-confidence without subsequent withdrawal, or (2) the passing by the House of Commons of a motion calling for an early election by a majority of two-thirds. The election that follows an early election will occur in May of the fifth calendar year following the early election.
May has obtained the majority support for the motion to authorise it. The new Parliament – and hence government – will remain in place until May 2022. The leaders of both the Liberal Democrats and the Labour Party almost immediately pledged support.
In my view, the move is constitutionally problematic, and support for it by the Liberal Democrats and Labour Party is surprising.
The reason given by May in her public statement is that an election is needed in the interests of stability. She outlines several sources of instability: a Labour Party statement that it might refuse to support withdrawal agreement that the executive would strike with the European Union within two years from giving article 50 notice of intent to leave the EU; that the Liberal Democrats (who hold nine seats in the Commons) want to ‘grind the business of Government to a standstill’; that the Scottish National Party (who hold fifty-four seats) will vote against the Great Repeal Bill; and that the unelected Lords (who will remain unaffected by this election, and who backed down after its own divisive attempt to seek the most anodyne amendments to the European Union (Notification of Withdrawal) Bill was rejected by the Commons) ‘vowed to fight us every step of the way.’
All these reasons seem transparently weak. The Lords has made clear that it will not block Brexit. There is no need for another manifesto commitment to implement the referendum result (hence engage the Salisbury-Addison Convention). And the Commons can anyway override any obstruction under the Parliament Act 1949. The Labour Party – the only credible threat in the Commons – has already committed firmly to Brexit, and is bound to keep that commitment because its political survival in the heartlands depends on it.
So why call the election? The simple reason is that it will do either or both of two things for the benefit of the Conservative Party. First, it will increase its majority and allow it to better manage backbench revolts on points of procedure during the Brexit process, and make parliamentary approval of the withdrawal agreement a foregone conclusion. Second, and much more importantly, it would give the government an additional two years in power at a crucial point in Brexit negotiations. There is no other political reason for calling an election now.
My view is that the gambit is constitutionally suspect in three ways.
- First, it seeks to plainly evade the purpose of a constitutional instrument – the Fixed Term Parliaments act 2011 – which is to circumscribe the power to call early elections for pure political gain. One might say that the requirement of the two-thirds majority attends to any allegation of constitutional impropriety. Perhaps – if so, this is an argument for why it should be regarded as such by the Liberal Democrats and Labour Party. The Liberal Democrats are vastly less likely to increase their parliamentary leverage than they are to witness the attainment by the Conservatives of a stronger majority and extended timeframe that will enable the latter to ignore any opposition. And the Labour Party is in a position of historic weakness, struggling for a single voice on the main issue in particular. Both parties should see the gambit for what it is.
- Second, if the gambit pays off, and May increases the Conservative Party’s majority, it will undermine the power of Parliament to hold the government to account on matters of detail. A plethora of committee reports can be expected in the coming years on matters of high and low policy, as well as constitutional form and substance. The government’s power to bat aside committee reports will be strengthened, just as will be the parliamentary Conservative Party’s power to dilute the independence of those committees.
- Third, and related, the Prime Minister’s statement treats the possibility of parliamentary control like an impediment to good governance, rather than a valued aspect of constitutional government. Just at the moment in recent British political history that we see the actual prospect of Parliament reasserting itself as a genuine political force, the government seeks to strengthen its majority with the explicit aim of silencing it.
There are three arguments for an early election that might at first seem plausible, but which in my view crumble on close inspection. One is that that the Labour Party has laid a credible threat to vote against the withdrawal agreement agreed by the UK Government and European Council for the wrong reasons. The government committed in its Brexit White Paper (1.12) to putting the agreement to a vote in both Houses of Parliament. The withdrawal agreement would very likely be a signed treaty, and would thus be subject to approval by the European Parliament and UK Parliament (under the Constitutional Reform and Governance Act 2010) respectively, before it would become binding. But as I just said, this type of motive fits with neither the stated position nor interests of the Labour Party. At any rate, were Labour to derail the withdrawal agreement for political gain rather than legitimate opposition to its content, that would be the time to call an early general election. It would make Labour accountable for the action, and would have the bonus of giving the public an election at a time when the options for the future have come into much sharper focus.
A second argument is that the government would have a stronger hand in negotiations by encouraging EU confidence in the Prime Minister’s capacity to deliver on her bargaining commitments. On this rationale, her government would have enhanced ‘unanimity, strength and despatch’ to conduct foreign negotiations. But it already has all that insofar as Parliament has no control whatsoever on its bargaining strategy. The only real control is downstream approval of the final agreement, take it or leave it. But if May’s gambit is to ensure that Parliament cannot obstruct ratification or approval of the withdrawal agreement then here too the objective is to circumvent the core purpose of another constitutional instrument, the Constitutional Reform and Governance Act 2010, Part II of which seeks to affirm Parliament’s real control over treaty ratification (previously embodied in the constitutional convention known as the Ponsonby Rule).
Perhaps, there is one last reason that has an air of plausibility: that the Prime Minister’s government requires a fresh mandate and a full five year run to make the hard choices without having to face a looming general election. This is not the precise argument offered by the Prime Minister, but it overlaps with some of the claims in her speech, especially her closing invitation to ‘let everybody put forward their proposals for Brexit and their programmes for government.’ That would be a good reason to hold an early election, if the positions of the parties were not already about as clear as they will be at this stage of negotiations, and standing in reasonably clear relation to the views of their membership and voter-base. And the government does not need any stronger a general mandate to get on with bargaining than that provided by the overwhelming support for the European Union (notice of Intent to Withdraw) Act 2017. If taking the political temperature and seeking a renewed mandate are viewed as desirable, then May 2020 (the existing election schedule) would be a much better time to check in. At that point, the basic terms of the divorce should be reasonably clear and the minutiae of the future relationship would need to be negotiated.
Ultimately, the Prime Minister repeatedly emphasised the need for ‘strong leadership’ in her statement. But the absence of strong leadership is hardly the main problem of the British constitution. What is in fact needed is a stronger Parliament, one that evinces a measure of political pluralism and which takes evidence, listens and reports on a broad range of related issues. Only then can the multifaceted nature of the many problems Brexit will engender both nationally (with respect to the devolved governments for a start) and internationally get a proper inspection. What the Prime Minister refers to as ‘instability’ is in fact how a parliamentary democracy is meant to function.
This post represents the views of the author and not those of Democratic Audit. It first appeared in a slightly different form at the UK Constitutional Law Association blog.
Jeff King is a Professor of Law at the Faculty of Laws, University College London. The author thanks Nick Barber, Tom Hickman, Gavin Phillipson and Stephen Tierney for comments.
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Quite so, but of course it has to be simply taken as read that all governments regard parliamentary oversight as an ‘impediment to good governance’ and have sought the ever greater use of devices like enabling orders and deep centralisation of ever more power in the hands of the executive. Indeed membership of the EU and that body’s own acquisition of ever more power at the centre has demanded this – what has been ‘devolved upwards’ cannot be ‘devolved down’ so in a way the executive keeps iron control on behalf of its real masters above in many areas of power and governance. With limited or non-existent oversight of whole rafts of government by Parliament.
A stronger parliament is indeed needed and quitting the EU still leaves the same lot who got us into the mess in power, presumably anxious to keep it that way via patronage and bribery and threats of the type which I saw the Major government use against its own MPs, ones I worked with 25 years ago. The most unpleasant use of threats, smears about private lives, quiet release to journalists of supposed ‘medical records’ and a lot lot worse. All in the name of creation of the holy grail a European state which had to be rammed through at any cost by a Parliament with a majority not large enough to handle it easily.
So this corruption though is systemic, not just a result of a large majority – an inadequate majority for Major turned his government into a very very nasty totalitarian force against its own MPs because it did not have the numbers, demanding that they not carry out proper scrutiny or comment on, for example, the failure of the state to even provide a copy of ‘Maastricht’ in English before it was signed. There’s a commitment to oversight for you.
Legislation like the Fixed Term Act are simply what they say they are – get the right majority and there can be an election. No moral code is stated in the legislation and whatever claims might have been made at the time for it publicly (all and always suspect anyway…much moral high ground and puff and wind), the situation changes. May is taking the risk over a month and a half campaign when anything can happen on the calculation that she will be in a better position at the end of it to deliver the requirement of a process that is anyway going to bog everything down for years.
Let us face it, the parliamentary ‘scrutiny’ we have had so far has been absurd, partisan, based upon Remainer howls of ‘not fair’ and that the people are incapable of making such a decision (so presumably it should be endlessly re-run until the ‘correct’ result is achieved). Parliament has been so emasculated anyway by lack of planning and time devoted to EU matters for half a century (on purpose, and lied to from the start whether about fishing in the 70s or exactly what the ‘Union’ meant, hiding behind treaties not published in English and demanding that they be waved through) that it has nothing meaningful to contribute to judge by the ‘debates’ (on either side of the argument).
Those lining up to give us their opinion often have no grasp of the complexities of departure, they confuse the various agencies and Courts and their powers, they have no grasp of the essence of EU legislation, where it often comes from (the application of international standards as a middle man) and therefore all and any oversight now will be done in a simplistic way that reinforces party positions with limited understanding of detail. It will be all about the howls of the Remainers, trying to frustrate the process, with the subtext of sabre rattling on the other side from those who fear the revival of UKIP and their seats next time. 5 years and a bigger majority to deal with this process seems on reflection sensible, and the public appear to agree. Even a very large percentage of remainers, who are not mostly frothing at the mouth and crying bitter tears in their tents. They just want her to get on with it. But having said that, I do take your points.