UK Constitutional Law Association

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Jeff King: May’s Gambit

Theresa May has deftly launched a gambit to get around the core purpose of the Fixed Term Parliaments Act 2011 – and all signs are that it will succeed without delay. 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.

On currently laid plans, Prime Minister May would hold an election on 8 June 2017 and will seek a two-thirds majority support for a motion to authorize it. If successful, 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 reasons given by Prime Minister 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 would do either or both of two things for the benefit of the Conservative Party. First, it would 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 Prime Minister 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 emphasized 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.

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.

(Suggested citation: J. King, ‘May’s Gambit’ U.K. Const. L. Blog (19th Apr 2017)  (available at https://ukconstitutionallaw.org/)).

8 comments on “Jeff King: May’s Gambit

  1. Dyson Headbang
    April 19, 2017

    It would seem, with respect, that the author’s main problem with the Prime Minister’s decision to seek a s 2 FTPA 2011 resolution is the Conservative supermajority that will inevitably follow.

    If Prof King does indeed want a “stronger parliament”, then why is he reticent to put that to the will of the people: after all, the general election will almost certainly result in a thumping Conservative majority.

    Prof King’s efforts would be better spent lobbying for repeal of s 2: and not lambasting the vast majority of our parliamentarians who will, presumably, vote for dissolution.

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  3. Mr. Wayne Ramwell
    April 19, 2017

    Another possible reason for calling the “snap” General Election to take place on 8 June could be related to the upcoming decisions by the Crown Prosecution Service (CPS) with respect to electoral fraud. The Prime Minister and others may have been tipped-off that the numbers involved would likely trigger by-elections and result in the Government losing its narrow majority. See here: https://twitter.com/michaellcrick/status/854393996625543168

    • John
      April 19, 2017

      You are right. The prosecutions would be publicly and politically embarrassing, and any losses in subsequent by-election defeats would also be embarrassing and would undermine her already slender majority in the House of Commons, possibly to the point where she no longer commands an overall majority.
      This is why she has “cut and run” for a general election now.
      Not for the reasons she gave out yesterday.
      How can she be trusted to ever tell the truth?

  4. Raphael Hogarth
    April 19, 2017

    Professor King says the move is “constitutionally problematic”. I disagree.

    He supplies three reasons for his claim.

    First, that Mrs May’s decision “seeks to plainly evade the purpose of a constitutional instrument”. As he implicitly acknowledges: in fact, it doesn’t. The purpose of the constitutional instrument is to enable the prime minister to go to the country only if she can get the numbers in Parliament set out by that instrument.

    She can. Its purpose is fulfilled. Professor King then suggests that, in that case, we redirect his analysis to the Labour and Liberal Democrat parties, who ought to vote against Mrs May as a result of the constitutional impropriety of her decision.

    This seems strange. By Professor King’s lights, the move is constitutionally improper if it evades the purpose of the Act. We have just established that, if the prime minister can satisfy the conditions in the act, she is not evading its purpose. Whether she can satisfy its conditions depends on whether she can get the numbers. That depends, in the first instance, therefore, on whether Labour and the Liberal Democrats will vote with her. So the constitutional propriety of the move, on Professor King’s terms, depend on the voting intentions of Labour and the Liberal Democrats. How on earth could they, in that case, form their voting intentions on the basis of the constitutional propriety of the move? We must conclude that his argument, if directed at them, relies not on the first reason he supplies, which mires us in circular reasoning, but on the others.

    His second is that “if the Prime Minister May increases the Conservative Party’s majority, it will undermine the power of Parliament to hold the Government to account on matters of detail”, particularly via select committees. This seems to be an argument against the electoral system, rather than an argument against the Prime Minister’s decision to use it. Parties frequently win big majorities in Parliament. When they do so, the veto power of scrutineers is diminished. In this way, the ability of a Government to carry out its programme is in some way linked to the amount of support that programme has in the country.

    Professor King may disagree with the nature of that link. He may believe that in no scenario ought a party to be able to return a majority of 100, such that they can effectively ignore select committees. He may believe in a more proportional electoral system. That is not, however, the situation in which Mrs May finds herself – nor is it the situation in which any prime minister has found himself for the last century. For that reason, I find this part of the argument misdirected.

    Professor King’s third ground for the charge of constitutional impropriety is that “the Government seeks to strengthen its majority with the explicit aim of silencing [Parliament]”, as evidenced by the tone of Mrs May’s statement. Of course Mrs May, like any prime minister, can never actually silence Parliament, as she can only pass laws in Parliament. She can silence MPs who disagree with her, by inviting the electorate to fill the house with more MPs who agree with her. Again, this seems very much like the system at work. And again, Professor King may think the system improper. But that does not make Mrs May’s move improper.

    For these reasons, I think Professor King’s claim of constitutional impropriety is wrong.

    Moreover, I think that his post ignores the most compelling reason to call an election.

    In total he identifies six reasons. Some, the prime minister’s stated reasons, he dubs “transparently weak”. In my view he is broadly right. They are

    (1) Liberal Democrat obstructionism in general
    (2) SNP obstructionism with respect to the Great Repeal Bill
    (3) Lords obstructionism in general.

    Some seem plausible at first but, says Professor King, crumble on closer inspection:

    (4) Labour threats to vote against the ratification of the withdrawal agreement
    (5) A stronger hand in negotiations
    (6) A fresh mandate for “hard choices”.

    I disagree with him on the strength of (5) and (6), but my main reason for laying these out is to point out Professor King omits the most compelling argument for an early general election. That is the need to insure against the risk that some Conservative backbenchers will vote against ratification of the withdrawal agreement because it is not a clean enough break.

    There is a cabal of 30-50 MPs, depending on which media reports one reads, who think that any constraints on the UK’s regulatory sovereignty, any whisper of a continuation of freedom of movement of people, any tangential involvement of the Court of Justice of the European Union would be grounds to vote against the treaty.

    It may be the case that, even if they did, the prime minister would get it through anyway, on the strength of opposition votes in the division lobbies. It is a political and historical reality, however, that prime ministers do not survive long if they only survive on the strength of opposition votes. That means that Mrs May will need to secure a “deal” she believes is acceptable to most of her MPs – enough to make the majority in the Commons a majority of Conservatives only, if necessary. So she asks the country for some more MPs and, if the country obliges, she is able to negotiate a better deal with a broader base of support. This seems reasonable enough. It is not about the strength of her hand in negotiations – it is about how she opts to play the hand she has, given her constraints at home.

    I believe this is the best argument for an election. I also believe it is Mrs May’s reason for trying to call an election. If I am right on the second count, then Mrs May is open to the charge of dishonesty, as it is not the reason she has given. This, though, is the closest she has got to constitutional impropriety.

  5. daveyone1
    April 19, 2017
  6. Pingback: The general election – salisburycompass.org

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