Can Boris Johnson simply repeal the Fixed-term Parliaments Act?

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The Conservative manifesto pledged to repeal the Fixed-term Parliaments Act, but was silent about what, if anything, would replace it. Robert Hazell argues that it is not enough to simply repeal the Act; new legislation will have to be drafted, parliamentary scrutiny will have to take place, and the options for reform should be properly considered.

Can the Fixed-term Parliaments Act simply be repealed? The short answer is: no. As always, it is more complicated than that. But the commitment in the Conservative manifesto was unambiguous: ‘We will get rid of the Fixed Term Parliaments Act [sic] – it has led to paralysis at a time the country needed decisive action’ (page 48). And decisive action is what the government hopes to display through early repeal of the FTPA. It does not seem to be one of the issues to be referred to the new Constitution, Democracy and Rights Commission, since they were mentioned separately in the Queen’s Speech. So — unless the government has second thoughts — we can expect early legislation to be introduced to repeal the FTPA.

The government may feel that it can press ahead with little opposition, since the Labour manifesto contained an equally unambiguous commitment to repeal: ‘A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments’ (page 81). But there is no need for urgent legislation: this is not a pressing issue, and with a government majority of 87, we are not going to see motions for early dissolution or ‘no confidence’ any time soon. And there are good reasons for taking it more slowly: not least, that there is provision for a statutory review of the FTPA in section 7 of the Act, due to be initiated in 2020. In anticipation of that review, the Lords Constitution Committee is already conducting an inquiry into the operation of the Act, due to conclude in around March.

The evidence submitted last year to the Constitution Committee (in 14 written submissions, and four sessions of oral evidence) has brought out many of the difficulties involved. These are both political and technical. The main political difficulty is that repeal of the Act would return us to the situation where the incumbent Prime Minister can choose the date of the next election. No one disputes the potential advantage that confers: in Roy Jenkins’s famous phrase, uttered during a Lords debate on 11 March 1992, it is equivalent to deciding ‘to give the pistol in a race to one of the competitors and encourage him to fire it whenever he thinks that the others are least ready’. It also enables the government to time the election when they are doing well in the opinion polls, and to stoke up their support through good news announcements and giveaway budgets. Petra Schleiter’s research shows that this confers a significant electoral advantage: in the UK since 1945, the average vote share bonus realised on calling an early election was around 6%, and it doubled the likelihood that the incumbent PM survived in office.

Electoral fairness is the main argument for fixed terms, but not the only one. Other reasons include better planning in Whitehall because of greater certainty, less risk of losing legislation to a snap election, more clarity for the Electoral Commission and electoral administrators, and for the political parties. It is true that electoral certainty has not been much in evidence in recent years, with two early elections in 2017 and 2019. But it would be wrong to judge the FTPA solely on the basis of the extraordinary Brexit parliaments of 2015 and 2017. It is too early to rush to judgement, and it is too insular: most of the Westminster world, and almost all European parliaments have fixed terms, so there is plenty of wider experience to draw upon. A more balanced approach would ask – as the Lords Constitution Committee has done – whether the FTPA needs fine tuning, and if so what amendments are required, rather than rushing straight to repeal.

Straight repeal is in any event not possible, because of a couple of technical difficulties. The first relates to defining the maximum duration of a parliament. Section 1 of the FTPA provides that general elections shall be held at five yearly intervals. So if the FTPA is repealed, there needs to be a new provision defining the maximum length of a parliament, similar to the Septennial Act 1715 (as amended by the Parliament Act 1911), which set the previous maximum at five years.

The second issue is more complicated, on whether to restore the status quo ante we would need to revive the prerogative power of dissolution, and if so how. Lawyers are divided on whether the FTPA abolished the prerogative power, or merely put it into abeyance. The safer course would be expressly to revive the power, in simple terms such as ‘The prerogative power of dissolution is hereby restored’; but to say no more about the circumstances in which the power will be exercised. There will be pressure to be more explicit about when a request for early dissolution might properly be granted, or refused: given the controversy over Johnson’s unlawful advice about prorogation, this will be coupled with concern not to put the monarch into an awkward position, where her exercise of a prerogative power might be challenged in the courts. It is a discretionary power, which the monarch is entitled to refuse: in 1950 Sir Alan Lascelles, Private Secretary to King George VI, explained in a letter to The Times (under the pseudonym Senex) that the monarch might justifiably refuse dissolution if the existing parliament was still ‘vital, viable and capable of doing its job’; if a general election would be ‘detrimental to the national economy’; and if the monarch could ‘rely on another Prime Minister who could govern for a reasonable period with a working majority in the House of Commons’.

There is thus a precedent for publishing the criteria in the Lascelles principles; but the government would be wise to resist any attempt to codify them. At most the government might offer to sketch out the criteria in the Cabinet Manual, as the Cameron government did in the (pre-FTPA) draft chapter 6 of the Cabinet Manual in 2010:

  1. A Prime Minister may request that the Monarch dissolves Parliament so that an election takes place. The Monarch is not bound to accept such a request, although in practice it would only be in very limited circumstances that consideration is likely to be given to the exercise of the reserve power to refuse it, including when such a request is made very soon after a previous dissolution. In those circumstances, the Monarch would normally wish to know before granting dissolution that those involved in the political process had ascertained that there was no potential government that would be likely to command the confidence of the House of Commons.

Keen-eyed readers will notice the similarity between this last consideration and the process prescribed in section 2 of the FTPA, whereby parliament is only dissolved following a formal vote of ‘no confidence’ if no government can be formed within 14 days which can command confidence. It also raises the fundamental question of who should decide to hold an early election: is it just the Prime Minister advising the Queen, or should parliament also have a role? In recent times the trend has been for parliament to have a greater say in the exercise of prerogative powers, such as the power to make treaties, or to go to war: it might be seen as a retrograde step to reduce parliament’s role, and hand the power of dissolution back to the Prime Minister.

These are just some of the issues which ministers will need to consider before introducing their bill to repeal the FTPA. Chloe Smith MP is the Parliamentary Secretary in the Cabinet Office and Minister for the Constitution; Oliver Dowden MP is the Minister for the Cabinet Office. They will be submitting their proposals to the Domestic Affairs Committee of the Cabinet (chaired by the PM) for approval of the policy, and the bill will need to be signed off by the Parliamentary Business and Legislation Committee before it can be introduced. Officials will warn that the bill will receive particular scrutiny in the Lords, not least because of the inquiry conducted by the Constitution Committee. The Lords backed down over their amendments to the EU (Withdrawal Agreement) Bill; they may be much less compliant over a rushed bill to repeal the FTPA. So don’t be too surprised if instead of an early bill, there is instead a muted announcement that the government wishes to wait for the recommendations of the Lords committee, or to refer this issue to the new Constitution, Democracy and Rights Commission; wiser counsels may yet prevail.

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About the author

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 the co-editor of The Role of Monarchy in Modern Democracy, which will be published in July.