Readers would probably feel there was a gap in their Yuletide celebrations if I failed to post another missive on the Fixed-term Parliaments Act. Events before Christmas – indeed during Christmas – could have been especially difficult had Jeremy Corbyn moved a motion of no confidence in the Government, as some pressed him to do.
As it is, on Monday 17 December, he tabled a motion of no confidence in the Prime Minister, a novel move and one which did not have the same status as a motion of no confidence in the Government. First, it fell outside the convention for finding time for an early debate (the Government finds time for motions of no confidence in HMG), and, second, if carried, it would not have engaged any provision of the Fixed-term Parliaments Act. The Government declined to find time to debate the motion before the House rose for the Christmas recess.
Had the Leader of the Opposition tabled the motion ‘That this House has no confidence in Her Majesty’s Government’ (the wording as stipulated in section 2(4) of the FTPA), and it had been carried, then, under section 2(3), if a ‘period of 14 days’ passes without a new or reconstituted Government being formed (the Act is silent on what form it may take) and achieving a motion of confidence from the House, an early general election is held.
The key point to note is the period of ’14 days’ – not 14 sitting days or fourteen working days. In other words, the 14-day clock starts ticking without interruption from the day the motion of no confidence is passed. If it was passed on, say, Wednesday 19 December, the statutory 14-day period would thus straddle Christmas week and New Year. It would be difficult to recall Parliament on Bank Holidays (not least because of transport difficulties) – thus ruling out 25 and 26 December as well as 1 and 2 January (the latter is a holiday in Scotland) – leaving only Christmas Eve, 27 or 28 December or, exceptionally, a weekend sitting (there are precedents for Saturday, and indeed Sunday, sittings). In short, it would be rushed, and potentially chaotic, at a busy time of year.
There would, though, be no statutory requirement for the House to meet to consider such a motion. Whatever Government was formed, it need not necessarily seek a motion of confidence. (And there would need to be a Government in existence for the House to vote on a motion of confidence.) There is only a requirement for one to be passed to avoid an early general election. The Government could decide not to recall the Commons, with the result that under section 2(3) an early election would be triggered.
There is a certain irony that, if an early election was triggered under section 2 of the Act, Parliament would be dissolved at the beginning of the 17th ‘working day’ before the polling day for the election. Section 3(5) and 3(6) stipulate what constitutes ‘working days’ (excluding weekends and Bank Holidays primarily). Had a similar provision applied to the 14-days under section 2, there would be more time available to get a Government together and face the House of Commons.
This illustrates some of the problems to which the Fixed-term Parliaments Act may give rise. The glimmer of light on the horizon is that, under pressure from the House of Lords, the Government agreed to a provision in the Act requiring it to be reviewed. It is one of the rare Acts that includes provision for post-legislative scrutiny. Under section 7(4), the Prime Minister must make arrangements for a committee to review the operation of the Act ‘and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act’, and for the committee’s findings to be published. Section 7(6) stipulates that the arrangements for the review must be made no earlier than 1 June 2020 and no later than 30 November 2020. Well, 2019 is almost upon us….