Before the Fixed Term Parliaments Act 2011 was introduced, the UK had pretty much the perfect system for determining when general elections should be called. The prime minister would request a dissolution from the monarch.
If the circumstances met a set of circumstances established in precedent for granting an election, one was granted. If they didn’t, then sometimes the monarch would say no (as in 1931, and as might have happened in 2007 if Brown had tried to call one), sometimes the circumstances would constitute a new precedent, and sometimes, although there might not strictly be enough of any one precedent in place, there was enough of various precedents that it was pragmatically sensible to grant one (as in 1955).
The standard reasons for granting a dissolution, developed over many decades, were as follows:
- If the Parliament were nearing its end, typically interpreted as being from about four years after the previous General Election (this applied to the vast majority of dissolutions);
- If the government did not have a working majority but a new General Election offered a reasonable prospect that it might secure one (1924, 1951, 1966 and October 1974);
- If the central policy of the government were going to be reversed (1924 and 1931).
I want to focus on the last of these cases, because it is particularly relevant to our current situation. As matters stand, the central policy of the UK Government – continued membership of the European Union – has been overturned.
It was overturned by the voters in a referendum against the advice of the considerable majority of the UK’s governing establishment: the prime minister, the leaders of all the other main political parties in parliament, the vast majority of MPs, the Bank of England, almost all the main financial institutions, the trade bodies representing large businesses, the vast majority of lawyers, the vast majority of economists, and so on and so on.
Voting to overturn the policy favoured by all these institutions and professionals does not remove them from their role. We are still governed by the same people and system. But we have rejected the main thing they wanted to do.
This rejection has created a series of profound problems, the most obvious of which is that the no-longer-mandated system now has to implement the practicalities of leaving the EU and interpret what form that should take. But why should voters regard any of its views as legitimate? They’ve already said they disagree with it at the most profound level of policy.
Admittedly, we do now have a different Prime Minister and a largely new Cabinet, along with some new Cabinet positions. Nor is there any real doubt that the Government intends to pursue Brexit. But that is not enough. The majority of those scrutinising our departure from the EU, and holding the Government to account for it, do not have legitimacy in the public mind on this central issue.
This is a fundamental reason why there was such concern over the ruling in the Article 50 case. That case, in my opinion, will not have any material bearing on whether we leave the EU or when.
If anything, it makes a more chaotic early Brexit marginally more likely, and is thus deeply against the interests of those pursuing the case. I also think the judgement is wrong for reasons that are nothing to do with Brexit per se. But both these points are by the by…
It is of interest, however, to ponder what the reaction of the press and public and Eurosceptic parties would have been to the Article 50 case had the situation had been slightly different. Suppose that we still had David Cameron’s government and that three quarters of MPs had supported leaving the EU. I think that the headlines in certain Eurosceptic papers would have been along the lines of “Victory! Government’s Brexit choices to be scrutinised by Parliament”.
The reason for the concern about the judgement isn’t actually much to do with “interfering judges” or “giving away the Government’s negotiating hand”. It’s that there is a widespread view that MPs, the majority of whom argued against leaving the EU, cannot be trusted with any material role whatsoever in defining it.
Now that’s a problem, because even setting aside the arcane question of the Article 50 triggering process, we need our MPs to take a detailed role in debating and scrutinising what is done in the Brexit process – just as we do for many other Treaties and matters of foreign policy, as well as matters that affect regulation or business or workers’ rights.
The problem here isn’t “MPs” having a role. It’s these MPs having a role when they have no legitimacy to do it.
Worse still, the Government still appears to consider itself bound by Conservative Party manifesto commitments at the 2015 General Election, such as getting immigration down to the tens of thousands. And since among those commitments was one to stay in the Single Market, the House of Lords might take the view, in any scrutiny it does of Brexit, that it is legitimate to hold the Government to that manifesto commitment.
For the public to trust Parliament to oversee Brexit, they need to vote for the MPs again. I have no doubt that the vast majority of Remain MPs would once again be elected – at least assuming that they undertake, during the campaign, to implement Brexit rather than to thwart it.
Getting such a commitment from MPs during an election would be an important way to restore trust. For the point is not that we need to cleanse the Augean stables of our current crop of MPs; it is simply that they need a new mandate.
That should have happened, in my view, immediately following the EU referendum result. Indeeed, before that terrible piece of mindless constitutional vandalism, the Fixed Term Parliament Act, I suspect that is precisely what would have happened.
Merely repealing the Fixed Term Parliament Act 2011 may not be enough to restore our system to what it was before, but it would be a good start.
We need a General Election. We need it now. If that means repealing the Fixed Term Parliament Act, let’s get on with that today.