A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.
On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:
The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once more Parliament will be dissolved by the Sovereign, on the advice of the Prime Minister. This will enable Governments, within the life of a Parliament, to call a general election at the time of their choosing.
The bill also contains an ouster clause to make sure that the exercise of the power of dissolution, and any decision relating to that power is non-justiciable and therefore not open to challenge in the courts. Alison Young and Mark Elliott have published detailed legal critiques of the bill which analyse the effectiveness of the ouster clause, and whether the power of dissolution that has been revived is now a statutory power, or a prerogative power. This blog does not go into the legal complexities, but focuses on the politics, and the possible outcomes from the review of the bill by the joint parliamentary committee established in November.
The joint parliamentary committee, and previous committees
The FTPA has all along contained a built-in mechanism for its own review, in a final section added during its parliamentary passage in 2011. Section 7 provides that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established last month, with 14 MPs and six members of the House of Lords. The Committee held its first sitting on 26 November, when it elected former Conservative Chief Whip Lord (Patrick) McLoughlin as its chair, and set a deadline of 4 January for the submission of evidence. The Committee held its first oral evidence session on 10 December, with Stephen Laws and Professor Alison Young; the next session is on 17 December, with former Commons clerks Lord Lisvane and Malcolm Jack.
But two parliamentary committees have already recently reviewed the operation of the FTPA: the Lords Constitution Committee, and the Commons Public Administration and Constitutional Affairs Committee (PACAC). The Lords Committee held two evidence sessions, in autumn 2019 (including evidence from me); but it was a further year before the Committee published its report in September 2020, as summarised here by its chair Baroness (Ann) Taylor. The long delay suggested the Committee had difficulty agreeing its recommendations, and the report instead raised a series of basic questions about any legislation to replace the FTPA.
The PACAC inquiry went considerably further. There were three evidence sessions (plus written evidence including from Meg Russell and myself), before the committee’s report, also published in September 2020. This laid down some clear markers for the statutory review committee:
- It would be unfair to restore an incumbent Prime Minister’s right to time an election for electoral advantage
- Parliaments should normally run for a full term, with elections at scheduled times
- The statutory review committee should have time to carry out its work properly; following its report, the government should produce proposals, and allow time for pre-legislative scrutiny
- If there is a desire to revive the old system, the arrangements should be set out in statute rather than reviving the prerogative power of dissolution
- Attempting to entrench a supermajority for an early general election would be difficult, unnecessary and potentially damaging
- The House of Commons could be given the power to set the date of an early general election
- Allowing the government to designate a vote a matter of confidence, that if lost would trigger an election, could be a retrograde step, empowering the government and weakening parliament
- Setting out the power of prorogation in statute should be considered by the review committee.
The PACAC report will have made uncomfortable reading for the government, which was already pretty clearly intent on repealing the FTPA and restoring the status quo ante: see evidence by the Minister for the Constitution Chloe Smith to PACAC on 21 July. So it is perhaps no surprise that of the 16 MPs selected by the whips to serve on the joint parliamentary committee, there is only one member of PACAC, the Conservative Jackie Doyle-Price MP, and one member from the Lords Constitution Committee, the Lib Dem Lord (Alan) Beith. What is a surprise is that the government has run ahead of parliament in already producing its draft bill. PACAC clearly anticipated that the statutory review committee would carry out its work and report first, after which the government would come forward with its proposals. Indeed, that is the sequencing implied in section 7(4) of the FTPA:
(4) The Prime Minister must make arrangements—
1. for a committee to carry out a review of the operation of this Act and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act
But the government seems anxious not to lose control of the agenda, and so has got its conclusions in first. The joint committee must not allow itself to be bounced in this way: it should fulfil its statutory duty and carry out a fair-minded review of the operation of the FTPA, before deciding whether the Act should be repealed, or merely amended.
The choices facing the joint parliamentary committee
The joint committee can consider all the evidence submitted to the Constitution Committee and to PACAC. It will find lots of detailed criticism of the operation of the FTPA, but before it gets into detail the fundamental issues it must decide are the following:
- Should the power to dissolve parliament rest with the executive, or with parliament?
- If the power is restored to the executive, does that confer an electoral advantage on the incumbent Prime Minister?
- If the prerogative power of dissolution is revived, does that risk placing the monarch in an awkward position?
- Is the FTPA inherently flawed, or were the government’s difficulties in the 2017-19 parliament caused by its minority status and the travails of Brexit?
And depending on the committee’s answers to these initial questions:
- Does the FTPA need to be repealed; or could it instead be amended?
In our own evidence to PACAC, Meg Russell and I strongly supported the central principle of the FTPA, to shift power from the executive to parliament. It is a myth that the FTPA came into being simply to shore up the Lib Dem-Conservative coalition. The proposal had been made for decades previously, in several private members’ bills, before appearing in the 2010 Labour and Liberal Democrat election manifestos. The Conservatives meanwhile included a more general pledge to make ‘the use of the Royal Prerogative subject to greater democratic control so that Parliament is properly involved in all big national decisions’.
When originally introducing the Fixed-term Parliaments Bill ministers emphasised three explicit objectives:
- To limit the power of the executive, which was too dominant in relation to the legislature
- To remove the right of a Prime Minister to choose the date of the next election for partisan advantage
- To increase certainty, and end debilitating speculation about the date of the next election.
The Conservative manifesto of 2015 celebrated the first objective as an achievement of the FTPA, stating that ‘We also passed the Fixed Term Parliament Act, an unprecedented transfer of Executive power’. It was in line with other changes to regulate prerogative power, with respect to public appointments, governance of the civil service, approval of treaties and military action. Parliamentary oversight over the prerogative has also been strengthened in other countries whose systems are influenced by Westminster.
Petra Schleiter’s research has shown the advantage conferred on the incumbent Prime Minister by being able to choose the date of the next election. The advantage is significant: she has calculated that in the UK since 1945, the average vote share bonus realised on calling an early election was around 6%, and doubled the likelihood that the PM survived in office. In her latest blog, she concludes, ‘As a matter of procedural fairness, election-calling should remain a matter for parliament, not government. Just like no athlete gets to trigger the start gun for their race, no prime minister should be able to trigger an electoral race by calling an early election’.
As for the risks to the monarchy, the government has sought to minimise those by publishing alongside the draft bill a non-legislative statement of dissolution principles. These include that:
The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.
This will arouse a hollow laugh from those still smarting from the controversy over the PM’s bungled attempt to prorogue parliament, resulting in the Queen’s order of prorogation being declared unlawful by the Supreme Court. Under the government’s proposals, in the event of a dodgy request for dissolution the Queen would be on her own: because of the ouster clause, she would lack the protection of the courts. The government justifies this in the Foreword to the draft bill by stating:
The long standing position is that dissolution is not reviewable by the Courts and judgement on the Government’s actions in such matters should be left to the electorate at the polling booth or, in extremely exceptional circumstances, to the Sovereign.
This will come as cold comfort to the Palace. If the Crown is left as the only check on improper or untimely requests for dissolution, it would inevitably be drawn into controversy if such requests are refused. This happened in the King-Byng affair in Canada in 1926, and with Gough Whitlam in Australia in 1975: in both cases the Governor-General’s refusal of the Prime Minister’s request for dissolution triggered major constitutional crises.
What happens next
The Joint Committee may feel obliged, given the Conservative manifesto, to take the government’s draft bill as its starting point, as the government can claim a democratic mandate for a clear commitment to repeal the FTPA. But if the Committee follows PACAC’s advice, it could recommend a more minimalist intervention: amendment of the FTPA rather than outright repeal. To avoid the deadlock experienced in autumn 2019, and allay the fears of MPs concerned about possible abuse of prime ministerial power, the fine tuning could include:
- Amending the high threshold for a motion for an early general election in section 2(2) from two thirds to a simple majority
- Clarifying the process whereby an alternative government could be formed within 14 days after the House of Commons has passed a formal no confidence motion under section 2(4)
- Enabling the House of Commons to determine the date of any early general election, rather than giving that power to the Prime Minister, as currently happens under section 2(7).
Both the previous committees also considered the power of prorogation. If the Joint Committee feels that dissolution should remain in the hands of parliament, not the executive, it would make sense to include a similar recommendation about prorogation:
- Amending the prerogative power of prorogation, so that in future prorogation requires the consent of the House of Commons, and is not simply triggered by the executive.
With or without an extra charge about prorogation, the stage is set for a classic tussle about the balance of power between the executive and parliament. Page 48 of the Conservative manifesto, the government’s actions since, and now the draft bill, all indicate Boris Johnson’s strong belief that the balance needs to shift in favour of the executive. But many in parliament clearly disagree, with growing rebellions over coronavirus legislation, removal of Part 5 of the Internal Market Bill, and frequent defeats in the Lords. Will the Joint Committee’s report form yet another example of executive overreach being followed by parliamentary pushback, and executive climbdown?
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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.