New Rules. Britain’s changing constitution
Sometimes it only takes a small change to alter the shape of things radically. In Backroom Boys by Francis Spufford, the developers of the 80s computer game Elite explained that the introduction of a scoop for a tiny dollop of memory transformed the possibilities, allowing players to become pirates as well as traders.
The Fixed Term Parliaments Act 2011 is a similarly small change and similarly it allows MPs to play as pirates as well as traders. The Act transferred the power to determine whether a general election should be held early from the Prime Minister to Parliament. In doing so, it took away from the Prime Minister one of her predecessors’ most potent weapons: the ability to make a vote on a policy a matter of confidence in the government.
This simple change has changed Britain’s constitution fundamentally. The government now is in place at the pleasure of Parliament, not the other way around.
Compare and contrast two weak Conservative governments, both seeking to get difficult EU-related legislation through, both with militant anti-EU factions, both facing Oppositions seeing their first duty as being to oppose.
In the early 1990s, John Major’s government, with a small majority, was harried through Parliament during the passage of the Maastricht Treaty into British law. When the government was defeated over the Social Chapter, John Major brought the provision back before Parliament as a vote of confidence, which he duly won.
That government had a dismal lingering half-life from that point on, but with the benefit of hindsight it suffered less from crisis than from exhaustion.
Theresa May’s government is nowhere near as well-placed. It can call a vote of confidence but it cannot call a vote of confidence on a particular policy. So, for example, it cannot call a vote of confidence on whether the country should sign up to the withdrawal agreement that Theresa May negotiated with the EU.
This inability to link a decision on policy to the continuance of the government is central to the government’s current problems. The government can and has won a vote of confidence. When it comes to policy, however, every MP feels the need to put his or her own preferences first.
Moreover, the government’s inability to secure its own policy agenda on Brexit has encouraged MPs to take back control from the executive and allow the legislature to seek to put a policy agenda together.
So Parliament forced the government to let MPs have a meaningful vote on the withdrawal agreement and then, when the government’s withdrawal agreement was meaningfully voted down, tied the government’s hands so as to seek to rule out no deal and took the opportunity to set up indicative votes as to what the way forward should be. On this central area of policy, the legislature is becoming the executive.
Theresa May can do nothing about that. She commands the confidence of Parliament in a limited sense but does not command the machinery to make it bend to her will. There is no end in sight to her misery and no one has any incentive to help her.
When the executive is a government with a healthy overall majority in Parliament, it can prevail by keeping its own Parliamentary supporters (many of whom are or hope to form part of the executive) in line. When the government cannot exercise effective control over a stable majority, it is prey to the wishes of Parliament.
It is nine years since any party had a substantial overall majority. The implications of the Fixed Term Parliaments Act 2011 were masked until 2015 by the size of the coalition’s majority. Since then, Parliament has grown steadily bolder in taking back control, with Conservative hardline Brexiters operating a guerrilla war against David Cameron and George Osborne, even opposing parts of the budget, and then Remain-voting MPs seeking to ensure that Theresa May’s Brexit meant a version of Brexit that they were comfortable with.
Now you might well argue that this is not how it should work. The classical model of government is that the executive runs the administration and drives the policy agenda, while the legislature merely scrutinises that policy agenda.
You will occasionally hear people declaim about the sovereignty of the Crown in Parliament, a fiction that disregards the fact that the monarch has had only a backstop role for at least 200 years, that treats the executive as a surrogate monarch and that overlooks the small technical objection that this is not the way that things work in practice. It’s quite a theoretical model that not only has no grounding in present day realities but can simply be demonstrated to be incorrect. Yet it continues to hold considerable sway.
If we look at things how they are, and not how we might wish them to be, the story is simple, if disconcerting. The executive controls such part of the administration that Parliament has not removed from it, and those parts are presently diminishing. It is a God of the gaps: sweet science reigns.
As I note above, this only really matters when the government does not reliably control the House of Commons. Hung Parliaments and small majorities, however, have become the new normal. What this means is that parties aspiring to power should now be very wary of forming unstable minority governments, which can easily get trapped in office, and look instead to form stable coalitions.
And what it means right now is that the Conservative is going to be left on the rack, with no way out of its torment. Don’t expect either a Brexit deal on terms that the government can accept or a general election in the near term. The ship of state is drifting to the sea bed.