If May Loses on Tuesday: Is This Her Route to a General Election?

Last Tuesday, the government lost three votes in the House of Commons. These defeats show how they have lost control of the House as the DUP increasingly withdraws their support. This loss of control is likely to be confirmed on Tuesday 11th, with the government losing the ‘meaningful vote’ on the deal reached with the EU. Prime Ministers of the past could have made similarly crucial votes a vote a matter of confidence, meaning that if the government lost, the Prime Minister would ‘call’ a general election. The Fixed-term Parliaments Act 2011 now prevents this. Theresa May is the first Prime Minister who, in their hour of need, finds this weapon missing from their armoury. It is something else for which she can thank David Cameron.

Jeremy Corbyn has indicated that should the government lose the ‘meaningful vote’, he will seek a general election. This can only be achieved through tabling a vote of no confidence, as required under the Fixed-term Parliaments Act. The DUP has indicated that they will support the government in any no confidence vote, as a Corbyn government generally holds little attraction for them. However, unprecedented events seem to be happening with alarming regularity at the moment.

A government defeat would trigger a 14 day period, within which the political parties could seek to negotiate and determine who could form a government that enjoys the confidence of the House of Commons. If no viable government emerges within those 14 days, a general election is held. Given that Labour is over 60 seats short of a majority, it is difficult to see how Labour could form a government. In any event, Labour fancy their chances at a general election, and Corbyn prefers it ahead of a second referendum.

The attention then focuses on Theresa May. Having lost the ‘meaningful vote’, and losing a vote of no confidence, how does she respond? Some have suggested that she would be required to resign immediately; others (including myself) suggest, that if there is no viable alternative government, then May should remain in office. Clearly, May’s position as party leader would also be in doubt. Conservative opposition to the deal could easily spill over into triggering a confidence vote in May as party leader and succeed, so triggering a leadership contest. It would be difficult, but perhaps not impossible, to conclude this within, or around, the 14 day period before an election. Theresa May became party leader (and Prime Minister) 18 days after Cameron announced his resignation.

However, a desperate Prime Minister may have one option left.

The no confidence vote procedure is one way to hold an early general election. Usually, this is presented as separate from the alternative method, which is for 66% of MPs vote in favour of the motion, ‘That there shall be an early parliamentary general election’. This second method was used by May to hold the 2017 election.

On the terms of the Fixed-term Parliaments Act, these two methods do not have to be entirely separate. On the face of the Act, it seems entirely possible for 66% of MPs to vote for a general election during the 14 day period triggered by the no confidence procedure. In principle, if all possibilities have been exhausted and no new, viable government has emerged, then it seems rather futile to wait out the 14 days to hold the general election. It would be difficult for the opposition to vote against an immediate general election after having won a no confidence vote against the government.

If May loses a vote of no confidence, then it could be to her advantage to attempt to hold a general election more immediately, dispensing with as much of the 14 day period as possible. It would stop any speculation regarding her position as Prime Minister, as this would become a matter for the electorate; and it could prevent a leadership contest in her party, as it is inconceivable to go into an election campaign believing that, ‘no leader is better than a bad leader’ (to coin a phrase). Conservative MPs, who would not vote for a general election of their own volition, may consider that if a general election is likely, that there is similarly little lost in voting to dispense with the 14 day period, and would, at least, enter the election in government, which may prove beneficial if the election results in another hung parliament. 

Politically, instead of passively allowing the election to happen, May could be presented as wresting the initiative back from Corbyn, taking her case to the country, making the election on her deal. It would not be a ‘second referendum’, but would be a rather traditional type of election. AV Dicey (who was one of the first to propose the use of the referendum in the UK), said that a ‘general election is an appeal to the people, and may under peculiar circumstances be made to serve, through an awkward and imperfect manner, the purpose of a referendum’. In this vein, Dicey suggests the 1831 election carried the Great Reform Bill and that the 1868 election approved the disestablishment of the Irish church. It is safe to say that we are in peculiar circumstances.

Some indications show that the deal is gaining some popularity with the electorate, although nowhere nearly quickly enough for it to affect Tuesday’s vote. If (and, this is an enormous if), the election delivers success for May, it could clear the log-jam of the existing Parliament that seemingly lacks a majority for anything.

A general election, particularly following a truncated 14-day period, would disrupt the broader Brexit process far less than a referendum. The indications are that the EU would be willing to extend the Article 50 timetable for a ‘democratic event’. In a legal and practical sense, elections can be held relatively quickly. They require no new legislation as the rules already in place. The date of the election would be the 17th working day following the dissolution of Parliament. In theory, dissolution could take place next week. If we continue with the practice of holding elections on a Thursday, then (again in theory) an election could be held as soon as 10th January. It used to be the case that the new parliament would meet as soon as six days after the election, but the recent practice is for this to be extended to 12 days. Although there would still be a Queen’s speech and members need to be sworn in, given that the Commons is due to be in recess from the 20th December to 7th January, relatively little parliamentary time would be lost by a January election – far less time than any election held at any other time before 29th March.

The amount of parliamentary time lost by an election (or the delay a second referendum would cause) is an important factor because under European Union (Withdrawal) Act 2018, section 13, legislation needs to be passed which incorporates any deal into UK law before the government can ratify any withdrawal agreement with the EU. Any extension to the Article 50 period would be short, and may not need interfere with the forthcoming European Parliament elections or the creation of new Commission.

To put it mildly, for May the political risks are extreme. An election could irreversibly fracture the Conservative Party, with some candidates running on a “no deal” ticket, splitting the Brexit vote, and pave the way for a Labour government led by Jeremy Corbyn. This might mean none of this will happen, but if pushed into this corner, Theresa May has few other options.

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