The Fixed-term Parliaments Act 2011 placed a legal obligation on the Prime Minister to make arrangements for a committee to review the legislation before the end of 2020. That committee was duly created, and published its report last month. Robert Hazell and Meg Russell offer a summary of the committee’s report, which was rightly critical of the government’s draft repeal bill, but argue that the committee ‘ignored’ the weight of the evidence in some key areas.
On 24 March the parliamentary Joint Committee to review the Fixed-term Parliaments Act 2011 (FTPA) published its report. The committee was established last November under section 7 of the FTPA, which required the Prime Minister in 2020 to make arrangements for a committee to review the operation of the Act, and if appropriate to make recommendations for its amendment or repeal. The review was carried out by a Joint Committee composed of 14 MPs and six members of the House of Lords, and chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin.
The government pre-empted the review by publishing a draft FTPA (Repeal) Bill a week after the committee was established. The Conservative and Labour manifestos in 2019 had both contained a commitment to get rid of the FTPA. As a result the committee focused a lot of attention on the government’s draft repeal bill. But the report devotes almost equal space to the FTPA and how it might be amended, in case parliament prefers to go down that route, now or in the future.
There was clear interest in the committee for retaining but improving the FTPA. The government had a bare partisan majority (11 out of 20 members), and not all Conservative members supported the government line. But the committee managed to avoid any formal votes, instead referring in parts of the report to the majority or minority view. On some key issues the majority view went against the weight of evidence received.
The committee had to work at great speed, being required to deliver its report by the end of February, later extended to the end of March. It received 24 written submissions (including a joint submission from ourselves), and held eight oral evidence sessions (including one with Robert Hazell and Peter Hennessy).
Review of the FTPA
The committee’s review opens with a reminder of the principled rationale for fixed terms (paragraph 17):
- Allowing the government to decide the timing of elections gives it an unfair advantage;
- It also confers disproportionate power on the executive over parliament;
- A fixed election cycle is better for civil service planning and long term thinking;
- Fixed terms are also better for political parties, and for regulating election spending;
- Speculation about an early election may unsettle commercial and economic decision making;
- Parliamentary business can be planned and carried through with less risk of interruption.
The FTPA legislation had been rushed, because of the Liberal Democrats’ concern to shore up the coalition. The committee found serious flaws:
- The two thirds requirement for an early dissolution in s 2(1) of the FTPA risked parliamentary gridlock. It had also now lost credibility given that, in 2019, it was overridden by the Early Parliamentary General Election Act;
- Governments could no longer see an advantage in declaring a vote to be a matter of confidence, because defeat could not lead directly to a general election;
- The statutory 14-day period after a vote of no confidence in FTPA s2(3) was unsatisfactory: it was unclear what could legally be done in this period.
The committee suggested that giving statutory effects to some confidence motions, but not others, had the effect of undermining a shared understanding of the conventions on confidence, and the consequences of a loss of confidence. It was particularly critical of the statutory 14-day period in the FTPA, for introducing confusion and rigidity, arguing that this ‘serves no useful purpose and should not form part of any future arrangements for dissolving Parliament and calling elections’.
The committee concluded that any replacement or amendment of the FTPA should:
- replace the Commons supermajority threshold for triggering an early general election with a simple Commons majority;
- require any early election motion to stipulate when polling day would take place;
- remove the ‘no-confidence’ mechanism by which a general election could be triggered from the statute in order to retain greater flexibility, leaving this perhaps to be expressed in standing orders instead.
The government’s draft repeal bill
The committee was equally critical of the government’s draft bill. The bill would repeal the FTPA, and restore the monarch’s prerogative powers of dissolution and summoning parliament. But it would go beyond simple restoration of the previous system, by adding an ouster clause explicitly to prevent any judicial oversight of those powers, and a statement of dissolution principles enabling the Prime Minister to ‘advise’ rather than ‘request’ a dissolution. One difficulty which emerged in the evidence sessions was that there was a lot of ambiguity around what the ‘status quo ante’ actually was.
The committee recommended that:
- There should be some check on executive power, with the Prime Minister able only to request a dissolution, which the monarch could exceptionally refuse (this would be in line with pre-2011 conventions).
- The government should consider a clearer and more limited ouster clause.
- The bill should be renamed the Dissolution and Summoning of Parliament Act.
One issue sidestepped by the committee was whether the restored prerogative was restoration of a prerogative or creation of a new statutory power. Most legal experts argued that it would be statutory, making it susceptible to more searching judicial review. The committee concluded that the potential legal uncertainty about the source of the power would only become relevant if the question of dissolution ended up being considered by the courts (paragraph 119).
The government intended to prevent that through its ouster clause, but witnesses suggested the ouster was unnecessary, and undesirable:
- its extraordinary breadth might lead to it being ‘read down’ (i.e. interpreted narrowly – and perhaps more narrowly than the government intended) by the courts;
- if it was made clear that dissolution was a personal prerogative of the monarch (i.e. the monarch retained discretion in its use) the judiciary would not intervene;
- non-justiciability could also be achieved straightforwardly by requiring a vote of the House of Commons for early dissolution, engaging Art IX of the Bill of Rights (as further discussed below).
This issue was clearly a source of disagreement on the committee. Nonetheless, the majority were satisfied with the inclusion of an ouster clause, arguing: ‘An early dissolution puts power in the hands of the electorate so, if an ouster is ever appropriate, it is appropriate in this case’. However the committee invited the government ‘to consider whether a clearer and more limited approach might be as likely—or even more likely—to be effective’ (paragraph 175).
The government’s Statement of Dissolution Principles was deemed to be seriously inadequate:
‘If the Monarch’s role in dissolution is indeed to be more than purely ceremonial, there should be clarity about at least some of the circumstances where exercising a veto would, or at least could, be constitutionally appropriate … Parliament and the public should have a clear sense of why a Prime Minister cannot always expect to be granted a dissolution (paragraph 144).
Prior to the FTPA, it was understood that the monarchy did have discretion in this area. The circumstances in which such discretion might be exercised were expressed in the ‘Lascelles principles’ – summarised in paragraph 58 of the pre-FTPA draft of the Cabinet Manual, published in 2010. In line with these traditions, witnesses suggested that it should be possible for the monarch to refuse a dissolution for example if a Prime Minister, having lost his or her majority in an election, requested another election, when there was an alternative government which could be formed; or if an election might be damaging in the midst of an emergency such as a pandemic, war or economic crisis. The committee recommended that any revision of the Cabinet Manual should, unlike the initial Dissolution Principles document, address much more directly how the Monarch’s veto operates in practice (paragraph 145). The final chapter of the report summarises the committee’s understanding of the conventions, and ends with a detailed codification of these in 20 paragraphs, to assist the government when it comes to revising the Cabinet Manual.
The penultimate chapter of the report is concerned with electoral law and the length of time between parliaments. The committee was concerned to ensure that the country should be without parliament for as short a time as possible around elections. To that end it recommended establishment of a cross-party working party to examine whether the election timetable could be reduced from the current statutory requirement of 25 days without compromising voter participation. But this followed powerful evidence from the Electoral Commission and Association of Electoral Administrators on how tight the timetable already is, with the introduction of individual voter registration, increase in postal voting, and overseas voting. This was not the only one of the committee’s recommendations which flew in the face of the expert evidence that had been received. But the committee did at least accept the views expressed by several witnesses that defining the five-year term from the date of the meeting of parliament was problematic, and recommended that it should be measured from preceding dissolution (paragraph 179).
The main recommendation where the committee ignored the weight of the evidence was on the central issue of whether dissolution should be decided by the executive or by parliament. As the committee acknowledged, ‘Retaining a role for the House of Commons commanded a great deal of support in evidence to this Committee as well as PACAC [the Public Administration and Constitutional Affairs Committee] and the Constitution Committee’ (paragraph 84). The committee also acknowledged that retaining a vote for the House of Commons would resolve two central concerns: it would protect the monarch from controversy; and it would ensure that the decision to dissolve was non-justiciable, obviating the need for any ouster clause. But the government majority on the committee, overly influenced by the battles over Brexit – which were very likely unique, concluded that retaining a vote in parliament ‘could mean denying an election to a government which was unable to function’ (paragraph 86).
It is disappointing that a parliamentary committee was not braver in asserting the role of the legislature. But there is plenty of ammunition in the committee’s report for those who wish to argue that the FTPA should be replaced but improved, rather than reverting to the prerogative. The committee’s support for the government’s proposals is lukewarm at best, and this does not suggest an easy passage for the government’s repeal bill. At a minimum, the arguments over parliament’s role in the dissolution process (and potentially also in prorogation) seem likely to feature strongly in the debates. Tucked away in an early footnote is a tiny hint that the Lords might even block the bill: in pleading with the government not to rush subsequent stages, the committee notes that ‘A draft Bill could be introduced as late as early 2023 and receive Royal Assent under the Parliament Acts 1911 and 1949 before May 2024 even if the House of Lords were to withhold its consent for the Bill’.
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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 the co-editor of The Role of Monarchy in Modern Democracy.
Professor Meg Russell FBA is Director of the Constitution Unit, a Senior Fellow at The UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’ and co-author of Taking Back Control: Why the House of Commons Should Govern its Own Time.