Advocates of parliamentary reform in Canada often look to the United Kingdom for inspiration. The British Parliament features greater backbench independence, more insightful committees, and a revamped upper house. When it comes to reforming the power to dissolve Parliament and how governments hold the confidence of the lower house, however, the United Kingdom is arguably a cautionary tale.
In 2011, the British Parliament passed the Fixed-term Parliaments Act (FTPA). The FTPA curtailed the Prime Minister’s authority to call an election when she or he pleased, using the Crown’s prerogative. Under the FTPA, Parliament will be dissolved for a general election at a set date every five years. Early elections can only occur if two-thirds of MPs agree to hold one, or if a majority of MPs explicitly withdraws confidence in the government and the Commons cannot explicitly express confidence in a government within fourteen days.
On the surface, the legislation seems fairly straight-forward. Yet it’s caused so much confusion that one has to wonder if British parliamentarians understood what they voted for.
It’s unclear, for instance, whether the FTPA has completely abolished the Crown’s prerogative to dissolve Parliament or if the prerogative has merely been put into abeyance. While the legislation ensures that the Crown’s prerogative can no longer be used to dissolve Parliament, it is unknown if that power can spring back to life if the FTPA is repealed or amended, as some British MPs are seeking. Things would be much simpler if the prerogative is merely in abeyance and Parliament decides to ditch the FTPA, but the law may have amended the British constitution in a more significant way than is realized.
More problematically, the FTPA has sowed confusion about how and when a government loses confidence. On the one hand, the law suggests that governments have only lost confidence if a motion stating « That this House has no confidence in Her Majesty’s Government » is passed. On the other hand, the United Kingdom’s Cabinet Manual states that the « Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence. » This suggests that losses of confidence are still governed by convention, and that the provisions outlined in the FTPA only apply to losses of confidence that allow for an early election.
Disagreement about how confidence is lost (or not) has sparked debate about whether governments will be able to remain in power even if they cannot get budgets through, get positive votes on the Queen’s Speech or pass significant legislation. In turn, this raises concerns that governments will either be able to keep power when they shouldn’t, or that they can be held hostage by the opposition, being denied the ability to pursue their legislative agenda, hold an early election, or perhaps most strangely, being forced to resign, then being asked to form the government again because no other party can, yet still face a House that blocks their ability to pass budgets and laws.
Of course, this is quite far fetched and unlikely to happen. The parties in the House will surely find a way to pass budgets and laws, and they’ll avoid situations where governments hold confidence but are blocked from getting their major initiatives through. But the very fact that FTPA is raising these questions and possibilities highlights that the statute is confusing, was not been properly explained, and may stir trouble as parties exploit the confusion to their own ends.
Whatever the benefits of the FTPA (which are critiqued here and which I’ll cast doubt on in a future post), it’s an example of why reforms shouldn’t be rushed or be unnecessarily convoluted.
