Constitutional flaw in British Fixed-term Parliaments Bill

Legislation passed by the British government, which laid down that future governments should last five years, is posing significant constitutional fears.

The fixed-term parliaments Bill was part of the Liberal Democrats’ price for power because it wanted to ensure that the Conservatives would not cut and run if opinion polls suggested they could win a majority on their own.

An early election can be triggered in two ways: two-thirds of MPs vote to hold a general election, or a motion of no confidence is passed on the government with the Opposition then given 14 days to see if it can form an alternative.

The government that has just lost the confidence of the Commons would remain in place as a caretaker administration while their opponents try to form an administration.

The problem

And that is where the problem arises. The legislation carefully details the wording of the confidence motion that must be passed before a new administration takes up office. It reads: “That this House has confidence in Her Majesty’s Government”.

The difficulty is this: because of a flaw in drafting the legislation, the passage of such a motion would ensure the survival of the administration that had previously lost the confidence of a majority of MPs, not the coalition that was seeking to replace it

"But what is the process after a government loses a vote of confidence? Who takes over? And when? The new government is not confirmed as the government until a vote of confidence is passed," Catherine Haddon of the London-based Institute for Government told The Irish Times.

“But it has to be the government to pass it. The wording of the legislation refers to the House having confidence in “Her Majesty’s Government ”, so any new government would have to already have taken over,” she went on.

The questions over the motion's wording were raised after former Scottish first minister Alex Salmond said it was now "almost impossible" to hold elections before a five-year term is up.

The authors of the fixed-term legislation appear not to have read it, Mr Salmond said, and focused only on parliaments ending by a two-thirds Commons majority, not by the failure of another group of parties to form a replacement.

A rushed election would never suit the Tories and Labour's interests simultaneously, he said: "If somebody's up and wants an election, it means the other lot are down and don't. "So it's difficult always to get a majority in a no-majority situation for another election," he told the Spectator magazine.

Hung parliament

In 2010, Labour’s

Gordon Brown

endured a storm of abuse when he was accused of “squatting in No 10” in the days after the election when it was unclear who would form the new government.

Yesterday the cross-party Commons’ political and constitutional reform committee said Mr Cameron should stay on in No 10 if there is a hung parliament, even if there was little prospect that he would be able to form an administration.