Public Law Update #1: The 2017 election, fixed-term Parliaments and ‘confidence and supply’ arrangements

The third edition of Public Law was published by Oxford University Press in May 2017. This is the first in a series of posts by the authors, Mark Elliott and Robert Thomas, taking the 2017 election and Brexit as reference points and updating readers on recent developments in the field. These posts are based on updates first published by Oxford University Press in the book’s Online Resource Centre.

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Screen Shot 2017-07-20 at 16.58.20The major event in British politics in 2017 was the general election held on 8 June. Given that the previous general election had only been held in 2015, the next general election was due to take place in 2020. However, the Prime Minister, Theresa May, decided to call a general election in order to increase her majority in the House of Commons and thereby strengthen her hand in the Brexit negotiations. Indeed, the decision to call a general election was criticised by some on the basis that it had been taken by the Prime Minister principally for politically motivated reasons, in particular to take advantage of the perceived weakness of the leader of the Labour party, Jeremy Corbyn, to increase the size of the Conservatives’ majority in the Commons.

The principal constitutional issue that arose was whether or not the Government would be able to secure an early general election under the Fixed-term Parliaments Act 2011. Before that Act, the decision to call an early general election had been entirely within the hands of the Prime Minister of the day, subject to the acceptance of her advice by the monarch. The Fixed-term Parliaments Act 2011 fundamentally changed the position. Under that Act, an early general election can take place if two-thirds or more of MPs in the House of Commons approve a motion to that effect. The rationale of this requirement was to place a constraint upon the power of the Government and to transfer responsibility for determining the date of elections from the Government to Parliament. Following the Prime Minister’s announcement that she intended to have an early general election, the matter was debated in the House of Commons on Wednesday 19 April 2017. MPs voted by 522 to 13 to allow an early general election. This was the first occasion in which the Government had invoked the Fixed-term Parliaments Act 2011 in order to have an early general election.

Fixed-term Parliaments

The outcome of the vote prompted some to argue that the constraint imposed upon the Government by the Fixed-term Parliaments Act 2011 — the need to secure a two-thirds majority in the Commons — had turned out to be of very little value. This is because the effectiveness of the constraint imposed depends largely upon the response of the opposition parties in the House of Commons. Opposition parties are highly likely to be just as motivated by matters of political expediency rather than constitutional constraint as the Government. When faced with a motion to have an early election, opposition parties are likely to calculate that their refusal to support the motion might well be seen by the electorate as running scared and lacking confidence and thereby damage their reputations and standing. It has therefore been argued that the Fixed-term Parliaments Act 2011 ought to be scrapped as it serves little useful purpose. Indeed, the Conservative party election manifesto contained a commitment to repeal the Act. On the other hand, it has been argued that it is not possible to judge the success of the Act on the basis of a single episode. There might be different future situations in which the Fixed-term Parliaments Act 2011 operates as more of a constraint upon a Prime Minister than occurred in 2017. For the present, the Fixed-term Parliament Act 2011 remains law.

The general election took place on 8 June 2017. The outcome was that the Conservative Party obtained the largest number of seats in the Commons (318 MPs), but it did not obtain an overall Commons majority. (For a detailed breakdown of the results, see here.) In other words, rather than increasing her majority in the Commons, Theresa May saw her majority reduced and her position and authority weakened. By contrast, under Jeremy Corbyn’s leadership, the Labour party won more seats than expected (262 MPs), but not enough to form a government.

There were several reasons for this result. First, while the Prime Minister started off in a strong position, a poor campaign and a weak and much-criticised election manifesto turned off some voters. Conversely, Jeremy Corbyn performed well in the election campaign. Second, while the Conservative campaign focused largely upon the Prime Minister’s leadership capabilities to negotiate Brexit, many voters were more interested in other topics such as the economy and better funded public services. The Labour party also attracted many young voters by promising to reform university tuition fees. Third, there was the Brexit effect. The strong perception that the Conservative party would pursue a ‘hard’ rather than a ‘soft’ Brexit prompted many voters who had voted to remain in the European Union in the 2016 referendum not to vote Conservative.

‘Confidence and supply’

Having won the largest number of seats in the Commons, but having lost its majority, the Conservative Government had to secure other votes in the Commons in order to govern and avoid losing a vote of no confidence. The other option in such circumstances is to attempt to govern as a minority government, a highly unstable arrangement. Accordingly, the Conservative party reached a confidence and supply agreement with the Democratic Unionist Party (DUP), a unionist party from Northern Ireland with 10 MPs in the House of Commons.

A confidence and supply agreement is an agreement between the larger governing party (in this case the Conservatives) and a smaller party (in this case the DUP) to the effect that the smaller party will support the larger party on issues of confidence and public spending, or supply. Such an agreement is not the same as a coalition in which two political parties reach an agreement on policy issues and join together in government, such as occurred in the Conservative-Liberal Democrat Coalition Government of 2010–15. In a confidence and supply agreement, the smaller party — such as the Democratic Unionist Party — will support the larger governing party by voting with the Government on motions of confidence and on appropriation votes (measures that approve government spending or ‘supply’) in return for some political benefit. These two aspects — securing the confidence of the House of Commons and securing support for the supply of public funds — are two essential requirements needed by any government in order to govern. On all other measures, such as votes on ordinary government Bills, the smaller party retains its right to vote as it pleases.

There is a second key difference between a coalition between two political parties and a confidence and supply agreement. By contrast with a coalition, with a confidence and supply agreement members of the smaller party do not become members of the Government. They will not, for instance, assume public office as a government minister. A confidence and supply agreement is then a looser form of arrangement in which the smaller political party has little direct involvement in the business of government. Nonetheless, because of the need for any government in the UK to have a workable Commons majority, the smaller party in a confidence and supply agreement will be able to exert substantial leverage — principally by securing some political benefit in return for supporting the Government on issues of confidence and supply and thereby sustaining it in office.

The Confidence and Supply Agreement between the Conservative and Unionist Party and the Democratic Unionist Party was agreed in June 2017. Under the agreement, the DUP will support the Government on all motions of confidence and supply. It has also agreed to support the Government on legislation concerning the United Kingdom’s exit from the European Union; and legislation pertaining to national security. In return, the Government committed itself to allocating an additional £1 billion on public spending for Northern Ireland. In terms of working arrangements for the agreement, the Government and the DUP will work together by means of a co-ordination committee. The agreement is intended to remain in place for the length of the Parliament, and can be reviewed by the mutual consent of both parties. The agreement will also be reviewed by both parties at the end of each Parliamentary session.

The agreement was controversial and has been criticised. For instance, Carwyn Jones, the First Minister of Wales, described the £1billion investment cash for Northern Ireland as a ‘straight bung to keep a weak prime minister and a faltering government in office’. This issue is very much one of perspective. From a different point of view, the realities of political life require deals and compromises to be undertaken. If the Conservative party had not secured the confidence and supply agreement with the Democratic Unionist Party, the most likely consequence, whether sooner or later, would have been the collapse of the government on a vote on no-confidence and then another general election. Given the issues facing the UK, which include but are not limited to Brexit, it is unsurprising that the Conservative party reached the deal with the DUP.

The current position is then that the Government has a majority for confidence and supply votes as well as for Brexit and terrorism legislation — provided of course that there is no backbench Conservative rebellion. However, a legal challenge has been prepared against the agreement on the ground that it breaches the 1998 Good Friday Agreement. This peace agreement provides the basis for ending terrorism and violence in Northern Ireland and for power-sharing between its political parties. Under the Good Friday Agreement, the UK Government undertook to exercise its power in Northern Ireland ‘with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions’. The legal challenge argues that by making the confidence and supply motion the UK Government has acted in breach of this duty upon the Government to act with rigorous impartiality with respect to the peoples of Northern Ireland. It remains to be seen what, if any, prospects this legal challenge has.

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