On Monday 22 May the Constitution Unit hosted a debate on the Fixed-term Parliaments Act. Against the backdrop of an early general election and a Conservative manifesto promise to scrap the Act, Carl Gardner and Professor Gavin Phillipson (Durham) argued the merits of the Act and the potential legal implications of its repeal. Kasim Khorasanee reports.
The Fixed-term Parliaments Act 2011 was enacted under the Conservative-Liberal Democrat coalition government to regulate when general elections were held. Previously general elections were required at least every five years but their exact timing was a matter of royal prerogative, in practice exercised by the Prime Minister. The Act fixed the length of each session of the House of Commons, unless an early general election could be called. The Act set out two mechanisms to call an early general election. The first – which was relied upon to call the 2017 general election – required at least two thirds of the Commons (434 MPs) to vote in favour of an early general election. The second was triggered if a no confidence motion was passed by the Commons and not reversed within 14 days.
Carl Gardner, a former government lawyer, led the defence of the status quo ante. He began by highlighting the risks in allowing politicians the freedom to redraw constitutional rules – both in terms of unintended consequences and selfish intent. The Act was a key case in point. Nick Clegg, as Deputy Prime Minister, had made the case for the Act by suggesting fixed terms would bring greater stability to the political system and allow politicians to focus on governing by removing the distracting uncertainty around election timings. In practice the intense speculation over whether Theresa May would call a general election in late 2016, followed by her surprise announcement to do so in mid-2017, had demonstrated the flaws in Clegg’s arguments. Gardner drew attention to David Laws’ book 22 Days in May which underlined the fact that the Act had been drawn up as a calculated political compromise designed to stabilise the coalition government in power.
Gardner went on to argue that the British constitution’s complexity and nuance had been underestimated by reformists. He noted that the Prime Minister had never been able to call elections ‘on demand’, they had always required the monarch’s explicit authorisation to do so. Furthermore there had never been popular discontent at the calling of elections or any suggestion of Prime Ministers ‘abusing’ their powers in doing so. The Act had also introduced uncertainty with respect to no confidence motions. Firstly, it was unclear whether in the 14 days after a statutory no-confidence motion the Prime Minister would be under a duty to resign, or whether they would be free to work to reverse the motion. Secondly, votes which previously might have been understood as matters of confidence – budgets, the Queen’s speech, going to war – appeared to have been stripped of this effect. Whereas Tony Blair understood losing the 2003 Iraq War vote would have meant resigning, David Cameron happily carried on after losing the 2013 Syria intervention vote. Gardner suggested that the duty for Prime Ministers to resign once they had lost the confidence of the Commons had been eroded by the Act.
Finally, on the legality of repealing the Act, Gardner asserted that where common law or prerogative powers were overridden by statute, revoking the statute would have the effect of ‘reviving’ the previous common law or prerogative. In support of this he cited the High Court decision in the famous GCHQ Case (R v The Secretary of State for Foreign and Commonwealth Affairs ex parte Council of Civil Service Unions and another  IRLR 309 ). Although legislation such as Section 16(1) of the Interpretation Act 1978 appeared designed to prevent this reviving effect, it could be overridden by a clear expression of parliament’s will.
Professor Gavin Phillipson responded in defence of the Act by clarifying that – notwithstanding its misleading title and Nick Clegg’s arguments – it was not about fixing the length of parliaments. Instead the central impact of the Act had been to move the power to call a general election from the monarch’s royal prerogative to parliament. The coalition government’s motives in bringing forth the Act were less important than the change they had produced – one fit for a modern democracy. Although Theresa May had had little trouble in calling the 2017 general election, Phillipson noted that it was too premature to judge the Act on this one example. In the future, looking back on the 2017 general election, an opposition might be more reluctant to satisfy a Prime Minister’s request.
Phillipson went on to respond to Gardner’s arguments regarding the Act’s effect on previous conventions and the uncertainty of its operation. It was a strength of the UK constitution that its conventions were adaptable over time. The Act had introduced changes, but any attendant uncertainty over – for example – the resigning convention was better than the previous uncertainty over whether a monarch might actually refuse to authorise a general election requested by the Prime Minister.
With respect to the legal arguments, Phillipson noted that there was uncertainty over whether a prerogative could be ‘revived’ after it had been replaced by statute. However, he felt that there was good reason to doubt whether this was possible, in particular given there was no precedent for it having occurred; the High Court GCHQ decision cited by Gardner having been overruled as the case went up to the House of Lords. Logically the doctrine of parliamentary sovereignty meant that statute took precedence over both prerogative and common law. As parliament could effectively abolish statute it stood to reason that, if it intended to, it could do the same to prerogatives. The Act’s explanatory notes (paragraph 16) make clear that the Act abolished the prerogative. If this was true, any abolition of the Act would require a further act of parliament to set out fresh conditions for parliament’s term lengths and procedures for calling early elections. Without this further act parliament would have no end-date, effectively extending it indefinitely!
The fascinating debate between the two speakers and lively Q&A which followed raised a number of points. Despite some bemusement from the crowd, Gardner asserted that the monarch’s role in responding to a Prime Minister’s request for a general election was a real one. This was supported by a member of the audience who cited Ken Clarke’s recent memoir Kind of Blue, describing how the Queen had ‘hinted’ through her private secretary that she would refuse a request by John Major for a general election.
Another member of the audience pointed out that by preventing key decisions from being matters of confidence in the government parliament had gained the flexibility to oppose or amend important policies without unintentionally triggering the downfall of the government. Any change had thus enhanced parliament’s power. Nonetheless Gardner contended that this was an unintended effect of the Act, which threatened to undermine the principle of parliamentary government – whereby the government must have the confidence of the Commons.
Finally there remains the hypothetical question of whether an opposition could ever credibly refuse to accept a Prime Minister’s motion to call an early general election under the Act. While an opposition could try and stand on constitutional principle in refusing the motion, such action might make it hard for them to sustain the argument that they were a believable ‘government-in-waiting’.
A recording of this event has been broadcast on BBC Parliament and is available until 24 June 2017 on the BBC iPlayer.
For how the Act compares to other fixed-term parliaments around the world please see a previous post by Robert Hazell.
About the speakers
Carl Gardner is a former government lawyer and author of both the book What a Fix-Up! and the blog Head of Legal.
Professor Gavin Phillipson is a qualified solicitor and professor at Durham Law School specialising in public and constitutional law.
About the author
Kasim Khorasanee is a Research Volunteer at The Constitution Unit.