Uncharted constitutional waters

The outcome of the 2017 General Election is not actually as rare as all that. But the Fixed Term Parliaments Act (FTPA) has muddied the water and the constitution – as well as the nation's patience - could well be tested again in the weeks and days ahead. The short blog below looks at the uncertainties ahead and how likely it is, at the beginning of a new Parliament, that it will last the full five years.

In the 24hrs after the results, the Hansard Society issued an excellent guide to the history and constitutional nuances of the territory we are now in - hung Parliament. It is well worth a read - I spent four years looking at constitutional issues with my then boss, an ex-Liberal MP who spent his career campaigning for democratic reform of the House of Lords and now specialises making constitutional mischief from the red benches. So in addition to being a political nerd, I have always had an interest in – and some exposure to - the politics of our unwritten constitution.

What is clear is that as far the result is concerned we've been here before. The great sages at the Hansard Society point to 39 years of coalition or 'confidence and supply' arrangements since 1900. Some of the coalition arrangements were war time (1915 and 1941) - and some of those were following seismic financial shocks (1931 and 2010). Confidence and Supply arrangements, literally giving confidence to the Government with your party's votes (presumably in return for a favourable deal) are traditionally a lot less stable than coalition arrangements. This doesn't necessarily mean they are short-lived – hung parliaments were a dominant feature of Government in the inter-way years. How effective really is the first past the post system at delivering stable Government? A more proportional system at least would lend itself to a new culture of policy horse-trading post elections, commonplace on Continental Europe. Such a change might in turn impact the way political parties campaign overall.

What's different this time is the law of the land. The FTPA says the only ways in which a Government can be forced to leave office are: 1) lose a vote of 'no confidence' on a simple majority vote 2) win a vote - with 2/3 of the House - on a motion 'to dissolve Parliament', repeal the FTPA.

Historically, following a general election, if the Prime Minister - attempting to win the confidence of the House (and this is more about ensuring there isn't a majority against rather than a majority for) - lost one or all of the votes on the Queen's Speech, constitutional convention meant that said PM resigned and the Leader of the Opposition was invited to have a go at securing that confidence.

But now, should such an eventuality come about - and all eyes on June 28th when those votes take place - there still has to be a further vote of no confidence. And even then there is a 14 day cooling off period in which an alternative Government can be formed and attempt to win 'a vote of confidence' before it can continue - if the ‘vote of confidence’ is lost then we are looking at another election.

But in such a scenario there are a couple of things that remain unclear - who forms the alternative Government? The natural assumption would be the leader of the next biggest party. But If the PM were to lose the Queen's Speech, it's only convention that dictates she resign, albeit given the recent run of luck this is the probable outcome. Whether the Conservative Party (and its leadership election rules) could then bring itself to impose a caretaker leader to for a second attempt at a Queen’s Speech is unclear, unclearer still is whether public opinion would brook this or whether the Conservative Party would be resigned to handing the baton to Leader of the Opposition.

So should the Government lose significant votes on the Queen's Speech we could - although perhaps unlikely - see a situation where Jeremy Corbyn becomes Prime Minister for a fortnight - whether he made it past the cooling off period, would come largely down to the state of the Conservative Party at that point.

Given the pace of politics in recent times, chances are that by the time you are reading this a Conservative-DUP deal will have been announced and the threat of embarrassing Her Majesty will have receded.

Two things are certain. First, even if the Government wins the votes on the Queen’s Speech, pretty much every vote in this Parliament has the potential to remain a confidence vote: the Budget (and we won't see that until November) and the Queen's Speech are the big ones but a significant loss on something else (e.g. Brexit) could effectively tip the Government into crisis. Second, expect to see much more of ministers in Parliament – every vote will count like never before, and the risks of ministers being away on business at key votes will need to be carefully managed.