The Fixed-term Parliaments Act has come in for a lot of criticism of late, but is it as badly designed and drafted as some commentators would have us believe? The House of Lords Constitution Committee recently commenced an inquiry into the effectiveness of the Act to seek answers to this question. Robert Hazell was one of the first witnesses to give oral evidence to the Committee, and in this blog , written with Nabila Roukhamieh-McKinna, he explains the background to the inquiry, and some of the key issues being addressed.

Background

With perfect timing, the House of Lords Constitution Committee announced on 25 July, the day after Boris Johnson became Prime Minister, that they planned to conduct an inquiry into the Fixed-term Parliaments Act 2011 (FTPA). With even more exquisite timing, the Committee held their first evidence session on 4 September, the day that Johnson tried but failed to persuade the House of Commons to vote for an early general election under section 2(1) of the Act. Robert Hazell gave evidence in that first session on 4 September, supported by Nabila Roukhamieh-McKinna.

The FTPA attracted some controversy when it was passed, and contains a provision for a statutory review after ten years. Section 7 requires the Prime Minister to arrange next year for a committee to carry out a review, with a majority of its members being from the House of Commons. The current inquiry can be seen as the Lords gearing up for the statutory review.

The FTPA has been strongly criticised, and blamed for the deadlock in parliament, where the government remains in office but cannot deliver on its flagship policy. This is largely due to the Act’s stipulation that the support of two-thirds of MPs is required for an early dissolution. Formerly, the Prime Minister could make an issue a matter of confidence, such that its defeat would automatically trigger a general election. Professor Vernon Bogdanor laments this undermining of prime ministerial power, arguing that Theresa May was unable to threaten the Commons with dissolution, unlike Edward Heath in 1972 with the European Communities Bill.

Conversely, Sir Bernard Jenkin MP has accused the drafters of the FTPA of strengthening the Prime Minister. He refers specifically to the ambiguity about the 14-day period after the government loses a vote of no confidence, during which there is no requirement for the Prime Minister to resign. Similarly, Catherine Haddon writes that the Act has ‘done little but to frustrate and confuse,’ given its silence on what should happen during the 14 day period. Such criticisms are not new. In a debate in 2014 Sir Edward Leigh MP argued for its repeal, and Lord Grocott and Lord Desai have both introduced bills providing for such an outcome.

This rush to judgement seems premature, with only limited experience so far of the FTPA. It is also insular. Fixed terms tend to be the norm, in Europe and the Westminster world, and there are lessons to be learned from their experience. Robert Hazell’s written submission to the Lords Constitution Committee summarised the main lessons to be learned from overseas, drawing on the Constitution Unit’s detailed report on Fixed Term Parliaments published in 2010. This blog starts with a summary of the arguments for and against fixed terms, before addressing the main concerns raised about the FTPA.

Advantages of fixed terms

Essentially there are five main arguments in favour, with the most important being the first:

Electoral fairness

Allowing the incumbent government to call the election when it chooses can give it a tremendous tactical advantage; it has been famously compared to an athlete being allowed to fire the starting pistol. Research by Schleiter and Belu has shown the advantage to be significant: ‘In the United Kingdom, nearly 60% of all elections between 1945 and 2015 were timed by the incumbent government for partisan advantage … the average vote share and seat share bonuses realized by governments in these elections amounted to 3.5% and 11.3%, respectively’.

Reduction of prime ministerial power

The power to determine the date of the election is a source of additional power for the Prime Minister over his colleagues. If they threaten to rebel he can in turn threaten them with an early election, as John Major did with the Maastricht rebels. With fixed term parliaments it is harder for a Prime Minister to threaten a snap election in this way.

Better electoral administration

The Electoral Commission has long had an interest in fixed term parliaments, which enable electoral administrators to be better prepared because the election date is potentially known long in advance.

Better government planning

Fixed term parliaments create an expectation that the parliament will run for the whole term, allowing governments reasonable time to develop and implement their political agenda, legislative programme, and spending plans.

Protection of the Crown

By minimising the discretionary use of prerogative powers, constitutional crises can be avoided.  It must be a relief for the Crown at the present time that the decision whether to grant an early dissolution no longer rests with the Palace, but with the House of Commons.

Disadvantages of fixed terms

Against this, there are two arguments against fixed terms:

Loss of flexibility

Fixed terms might limit the capacity of a new Prime Minister appointed mid-term to seek a fresh mandate (as Eden did in 1955). And rigidity could lead to lame duck governments, lacking the capacity to govern but not capable of being brought down, as we have seen with Theresa May’s government in 2017–19.

Ineffective legislation

Experience in other jurisdictions shows that governments have been able to circumvent the fixed term requirement and call elections at their convenience: as happened in Canada in 2008, and in Germany in 1982 and 2005.

The initial British experience suggested the FTPA might also be ineffective: when Theresa May decided to call for an early election in April 2017, she had no difficulty in getting the necessary two-thirds support in the Commons, which voted for early dissolution by 533 to 13. But we questioned at the time whether that showed the Act was a dead letter. And as Boris Johnson found on 4 September, the Prime Minister can no longer threaten MPs with an early election: it is now at the discretion of the House of Commons to deny one. The power is ultimately in their hands, not the Prime Minister’s.

Mechanisms for early dissolution

Section 2 of the FTPA envisages two routes to early dissolution:

• A motion ‘that there shall be an early parliamentary general election’ (s 2(2))
• A motion ‘that this House has no confidence in Her Majesty’s Government’ (s 2(4)).

A motion for voluntary dissolution requires a two-thirds majority of all MPs; while a no confidence motion can be passed by a simple majority. No confidence leads to dissolution only if confidence cannot be restored within 14 days, by the incumbent or an alternative government.

The main incentives against early dissolution are political, as explained below. But there are other ways in which the use of dissolution motions may formally be restricted:

• A minimum number of MPs to be signatories of the motion. In the parliaments of Sweden, Spain and Italy such a motion must be signed by 10% of the members.
• A requirement that the motion be signed by the Prime Minister and Leader of the Opposition, or the leaders of the three largest parties, in order to ensure that the motion has cross-party support.

It is also quite common to limit or prohibit dissolution towards the beginning or the end of a parliamentary term, as in the French and Spanish constitutions, and in South Africa. At such times, there can of course still be the possibility of confidence motions.

A strong disincentive to a government inclined to call an early election is whether a parliament elected mid-term merely serves out the remainder of that term, or whether dissolution restarts the clock and it serves a full new term. Here there is a big difference between the fixed term regime for Westminster and for the devolved legislatures. In Scotland, Wales and Northern Ireland only the remainder of the term is served, unless the dissolution takes place within six months of the next scheduled election.

Political incentives are as important in guiding behaviour as legal rules. The main question for political parties in any mid-term crisis will not be whether dissolution is too easy or too difficult, but whether they stand to gain or lose by forcing one. And much of the time, the political incentives in themselves may prove a further force for stability. Political parties do not like excessively frequent elections: they are expensive for the parties, and exhausting for the participants. And whatever the polls say, the outcome is always slightly uncertain. A party which forces an unnecessary election risks being punished by the electorate, who also dislike frequent elections.

Forming an alternative government within 14 days

The FTPA provides that parliament is dissolved, leading to an election, unless during the 14 days an affirmative confidence motion is passed, ‘that this House has confidence in HM Government’. That could be confidence in the incumbent government, if the Prime Minister is willing to change policy or personnel in order to restore confidence. Or it could be confidence in an alternative government. The difficulty is that the FTPA is silent on how that alternative government might be appointed before testing whether it can command confidence. If there was support for an alternative government, the House of Commons would have to demonstrate that by passing a resolution to that effect, or an Early Day Motion, or a motion on a humble address inviting the Queen to appoint an alternative Prime Minister. That would enable the incumbent Prime Minister to resign, and recommend that the Queen appoint the alternative nominated by parliament.

One way of formalising this, and filling the silence in the FTPA on how to nominate an alternative Prime Minister, would be to adopt the procedure for appointing a First Minister in Scotland. Under section 46 of the Scotland Act 1998, the Scottish Parliament must nominate one of its members to be appointed as First Minister, and the Presiding Officer then recommends that person for appointment by the Queen. The procedure for electing the First Minister is set out in Rule 11.10 of the Standing Orders. Similarly at Westminster, the silence in the FTPA on how to nominate an alternative Prime Minister could be filled by providing for a new procedure in the Standing Orders of the House of Commons.

Confidence issues

One common criticism of the FTPA is that it is no longer possible for a government to declare a matter to be a confidence issue, to bring its MPs to heel. But as the Commons Public Administration and Constitutional Affairs Committee has explained, this is a misapprehension. The government can still make any issue a matter of confidence; as can the Opposition. Boris Johnson clearly made the vote on 3 September a confidence issue, and withdrew the whip from 21 Conservative MPs who rebelled. But the only motions now which are formal confidence motions are those in the statutory wording required by section 2 of the FTPA. That happened in January 2019. On 15 January the government lost a vote seeking parliamentary support for Theresa May’s Brexit deal by 230 votes (432:202), the largest defeat for a sitting government in modern history. Jeremy Corbyn immediately tabled a no confidence motion, but on 16 January the Commons rejected it by 325 votes to 306.

The government became a zombie government, formally maintaining confidence, but unable to progress the key policy issue of the May administration. But that was more to do with the politics of Brexit, the breakdown of discipline in the governing party, and the weakness of the Opposition, than the requirements of the FTPA. Had the FTPA not been in force the result would have been the same. Theresa May, having survived a confidence motion, was entitled to remain in office; but equally, having failed to deliver a key policy, she was entitled to resign – as subsequently she did.

The Queen’s Speech and the Finance Bill are still to be regarded as matters of confidence; as would any matter which the government declares to be a confidence issue. What the FTPA does is create an intermediate step. Instead of defeat on the Queen’s Speech or the Finance Bill being seen as requiring the Prime Minister to offer their resignation, it would now lead to a formal no confidence motion tabled by the Opposition. Or – as can happen during the 14 days triggered by a successful no confidence motion under the FTPA – it could lead to the government changing course, in order to restore confidence.

Prorogation

Section 6(1) of the FTPA says ‘This Act does not affect Her Majesty’s power to prorogue Parliament’. The power of prorogation remains a prerogative power, exercised on the advice of the Prime Minister. Its exercise has normally been uncontroversial, to end a parliamentary session. But given the risk of possible abuse, it would seem wise to ensure that parliament cannot be prorogued against its will. One way to do this would be to put prorogation on the same footing as the power of adjournment, and to enable parliament to be prorogued when the House of Commons passes a motion to that effect.

Robert Hazell’s written submission and his oral evidence can be viewed on the website of the Lords Constitution Committee.

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About the authors

Professor Robert Hazell was the first Director of the Constitution Unit, and closely involved with helping the Cabinet Office draft the Cabinet Manual. He is currently working on a comparative study of European monarchies, due to be published next year.

Nabila Roukhamieh-McKinna is a Research Volunteer at the Constitution Unit.