6   +   10   =  

With parliament, the Conservative Party and even the Cabinet deeply divided over what Brexit should involve, some backbench MPs have reportedly begun planning for an October general election. Absent a significant redistribution of parliamentary power, the May government might struggle to secure sufficient support for whatever version of Brexit it negotiates. Yet the Fixed-term Parliaments Act (FTPA) of 2011 complicates things considerably.

FTPA constrains the Royal Prerogative power to dissolve parliament and call a general election, conventionally exercised on the prime minister’s advice at a politically opportune juncture. As its name implies, FTPA fixes the period between general elections at five years. It allows snap elections in two circumstances: either two-thirds of all MPs agree to permit an early vote, or the government loses the confidence of the House of Commons.

The requirement to seek MPs’ approval before calling an early election makes the government less able to put controversial questions directly to the voters. When Theresa May announced the government’s decision to “call” the 2017 election, she overstated its power. Governments can no longer call elections. They can only ask the House of Commons to approve its own early dissolution, and must win supermajority support in order to go ahead.

Labour could have blocked the 2017 vote, and could block a 2018 repeat, without even having to oppose it actively. Since FTPA requires that two-thirds of MPs actively vote in favour of early dissolution, abstention would suffice.

Labour seems unlikely to oppose a further vote, given its better-than-expected performance against worse opinion poll figures in 2017, and voters’ apparent willingness to punish governments that trigger unnecessary elections. But it clearly could. So, too, could Conservative backbenchers, if enough of them disagreed with the government. May’s flexibility is limited.

FTPA’s no-confidence provisions, meanwhile, reduce the government’s ability to discipline backbench rebels. Before 2011, governments could identify controversial divisions as confidence votes. Defeat on such a “designated” confidence measure meant the government’s resignation and an early election. Government backbenchers considering rebellion faced a choice; swallow their doubts and support the government, or face the voters.

Ted Heath and John Major used designated confidence votes to corral recalcitrant Conservative MPs into supporting EEC accession and the Maastricht Treaty. Theresa May cannot follow suit. FTPA defines the precise wording a no-confidence vote must follow to permit parliament’s dissolution. May can threaten to resign if her MPs fail to support her over Brexit, but she cannot call an election if defeated. That makes rebellion inherently less risky, and explains why Eurosceptic backbenchers feel free to challenge the Prime Minister.

FTPA also introduces a fourteen-day cooling-off period after a government loses a no-confidence vote before an election can be called. A lot can happen in fourteen days. Backbench rebels can reverse course. Party leaders can change. New coalition and confidence agreements can be reached. Opposition parties can try to take over.

Conservative rebels (or the DUP) could use the fourteen day cooling-off period to play a high-stakes game of chicken with the Prime Minister. They could call a no-confidence vote, join with opposition parties to defeat the government, then offer May a choice: adopt their preferred policy approach; resign in favour of their preferred alternative leader; resign and hand power to an inevitably short-lived minority Labour government; or risk the verdict of the ballot box.

They alone would have the votes to avert a fresh election by supporting the government in a fresh confidence vote. Their price would be theirs to determine, and whether May chose to pay it would be entirely up to her.

May would have two defensive options in this scenario. She could offer the opposition something to side with her against the rebels. That might, for example, be a ‘soft’ version of Brexit acceptable to most Conservative and Labour MPs but anathema to hard-line Eurosceptics. This is Jacob Rees-Mogg’s nightmare scenario, the one he referred to in comparing May to Lord Peel, who passed the Corn Laws against his own party’s wishes by relying on opposition votes.

She could, alternatively, call the rebels’ bluff – refusing to budge and daring them to take their standoff to the voters. She could even threaten to ask the Queen to prorogue parliament immediately, making averting an election with a fresh confidence vote impossible. FTPA leaves the prorogation prerogative (sorry…) untouched.

Given the poor predictive record of recent opinion polls, and Labour’s better position now relative to April 2017, a snap election seems unlikely to deliver the resounding parliamentary majority May would need to force her Brexit plans through. Given her inability to coerce Eurosceptic rebels with a designated confidence motion, May’s most viable route to securing ratification of her final Brexit deal may be emulating Peel, ignoring the rebels and the DUP, passing Brexit with opposition support, then facing the fallout.

This post draws the author’s recent analysis of the Fixed-term Parliaments Act in the Political Quarterly.
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