The Fixed Term Act was a rushed and frankly poor piece of legislation. It is bad enough that it has given us this seemingly unending election campaign, but it also contains within it some incredibly shortsighted changes. The most obvious is the removal from the Queen’s Speech and Budget of the status of a “Confidence Vote”.
Convention previously dictated that a vote on the Government’s Programme or its Budget constituted a Confidence Vote, meaning that if it could not pass its Programme or Budget, it would fall (requiring an election).
This was removed in the frenzy of securing permanent five-year terms (I never understood why this was so important, by the way), so that the only way a Government can be brought down is specifically by a Motion of No Confidence (as happened in 1979; unlike in 1979, however, an election would not be required if an alternative government could be formed within 14 days).
This raises, immediately, the potential for a government to be in office but not in power. Most obviously, a minority Labour administration after this election could be left in power by the SNP, but be unable to pass a Programme without scrapping Trident or pass a Budget without mass borrowing. Its only option would be to do as the SNP bid or, somewhat bizarrely, to call a vote of No Confidence against itself and abstain (causing it to pass and, after 14 days, force another election) – an odd move, but one used twice in Germany (by Helmut Kohl upon a change in coalition preferences resulting in his coming to office in 1982, and Gerhard Schröder to force an early election in 2005).
The fundamental problem of a Government being unable to pass a Budget had previously been avoided by the convention that Budget Bills need pass only the Commons. Notably, this is not typically the case elsewhere and has led to constitutional trouble.
Another option which remains, astonishingly, is that the Queen could sack (ahem, “dismiss”) her Prime Minister due to his inability to pass a Budget. This would cause an unbelievable constitutional crisis, surely? Well, it has actually happened. In 1975, the Queen (through Governor-General Sir John Kerr) dismissed the Prime Minister of Australia, Gough Whitlam, who was unable to get his Budget past the Upper House. It caused a lot of anger, but in fact very few constitutional changes came of it – not least because the “Whitlam Dismissal” was judged to be correct by the people, who returned previously Opposition Leader Malcolm Fraser to power by a landslide at the subsequent election.
One careless piece of legislation could end up in Nationalists managing the Budget of the whole UK, a Government in office but not in power, and the Queen having sack the Prime Minister… sometimes it is best to leave well enough alone!
For all that, clearly it is time for a comprehensive, federal constitutional settlement.