Further to my earlier post on dispelling myths, I thought I would add a further two – although one encompasses a subject that will doubtless come as no surprise to regular readers.
Keeping the European Communities Act 1972 on the statute book will not keep the UK in the EU. Some commentators appear to believe that by not repealing the 1972 Act this will keep us in the EU. There is a e-petition to Parliament asking it not to repeal the Act, apparently in the belief that it will have this effect. It won’t. Technically, the UK could withdraw from the EU, but the 1972 Act could remain on the statute book. As I pointed out in my speech when we debated the consequences of the referendum, the Act was not a measure to ratify the treaty, but to provide the legal basis for membership in UK law. In practice, it would be perverse to maintain the Act as it is consequent to withdrawal from membership, hence the proposal for a bill to repeal the Act and provide that existing EU law should remain in place until Parliament decides whether it should be removed, modified or retained, but that does not affect the formal position.
A government resignation will not trigger a general election. Yes, back to the Fixed- term Parliaments Act. As readers will now be only too well aware (even if some journalists are not), it is no longer in the gift of a Prime Minister to ‘call’ a general election. The PM can ask the House of Commons to trigger an election under section 2(2) of the Act – or seek to engineer a vote of no confidence in his/her own government (s2(4)) – but cannot unilaterally trigger an election. I have been asked if losing a vote of confidence would count. As I pointed out in an early post, it would not count (it would have counted under the bill as it was originally drafted, but not as it was enacted). The PM could say confidence attaches to a particular vote. Prior to the 2011 Act, the loss of a vote made one of confidence by the PM led either to the resignation of the government or (as in 1979) the calling of an election. Now the option of calling an election has gone. A government could resign, but that would not engage any provision of the Fixed-term Parliaments Act. (On this see my January article in Parliamentary Affairs.) The House could subsequently vote for an early election or pass an explicit motion of no confidence (in the terms stipulated by the Act), but the resignation by itself would not trigger any provision of the Act. If a government did resign, and there was no requisite majority in the House to trigger an early election, we could have endless negotiations and no new government prior to the scheduled general election.