Is the Fixed-term Parliaments Act a dead letter?

The ease with which Theresa May was able to secure an early dissolution last week has led to suggestions that the Fixed-term Parliaments Act 2011 serves no useful purpose and should be scrapped. Drawing on wider evidence of how fixed-term parliaments legislation works in other countries, Robert Hazell argues that there is a danger that it is being judged prematurely, on the basis of a single episode. Future circumstances in which a Prime Minister seeks a dissolution may be different, and in these cases the Fixed-term Parliaments Act may serve as more of a constraint.

On 19 April the House of Commons voted by 533 votes to 13 to support the Prime Minister’s motion for an early general election, easily surpassing the two-thirds threshold required for dissolution under the Fixed-term Parliaments Act 2011. In the preceding debate Conservative MPs such as Sir Edward Leigh and Jacob Rees-Mogg argued that the Fixed Term Parliaments Act served no useful purpose, and should be scrapped; while others such as Peter Bone said that it demonstrated the Act was working. Which of them is right? Was this a vindication of the Fixed-term Parliaments Act, in allowing a degree of flexibility, with the formal decision to hold an early election now being made by parliament, and not the executive? Or did it show that the Act is an emperor without clothes, as Sir Edward Leigh put it, because no opposition party can ever be seen to vote against the prospect of an early election?

There is a risk of the Fixed-term Parliaments Act being judged prematurely, on the basis of a single episode. This blog draws on a wider evidence base of how fixed term parliaments legislation works in other countries, set out in our 2010 report on fixed-term parliaments.  Almost all European countries have fixed terms, and in the Westminster world fixed-terms have recently been introduced in Canada, as well as most of the Canadian provinces, and most of the Australian states; only the Australian federal parliament, New Zealand and Ireland have no fixed-term laws, but in Australia and New Zealand the maximum term is three years. These countries show varying degrees of flexibility, with differing safety valves for extraordinary dissolution.

Mid-term dissolution is the most crucial aspect of any fixed term parliament law, balancing the need for government stability against democratic accountability. Key considerations are how and by whom dissolution may be initiated, what threshold must be reached, and any limitations on the process. The coalition government in 2010 initially proposed a 55 per cent threshold for dissolution, but that proposal was widely misunderstood to apply to no confidence motions as well. In introducing the Fixed-term Parliaments Bill, Nick Clegg set the record straight, explaining that no confidence motions would still require a simple majority; but raised the bar for government initiated dissolutions to two thirds of all MPs, based on the two thirds requirement in the devolution legislation. The justification for a higher threshold for government-initiated dissolution is that it should make it impossible for governments to call an early election without significant cross-party support.

But such a dual threshold is rare in other parliaments. Figure 1 sets out the threshold requirements for dissolution and confidence motions elsewhere in Europe.  In all cases the threshold for a no confidence motion is a simple or absolute majority (an absolute majority being of the total number of MPs, rather than of those voting). In those cases where dissolution can be triggered by a parliamentary vote, the threshold is the same

Figure 1. Source: K. Strøm et al, Delegation and Accountability in Parliamentary Democracy (Oxford: Oxford University Press, 2006), Table 4.12.

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The Fixed-term Parliaments Act and the snap election

The Fixed-term Parliaments Act was supposed to have stopped Prime Ministers from calling snap general elections. But that is exactly what Theresa May seems to have done. Alan Renwick here explains what the rules say and why they have proved so weak.

We have become accustomed to a familiar choreography when general elections are called. Cabinet ministers gather to hear the Prime Minister’s decision. The Prime Minister drives to Buckingham Palace to request the dissolution of parliament from the Queen. Finally, the Prime Minister returns to Downing Street and announces the news to the world.

This time, the process is a little different. Cabinet ministers gathered. But Theresa May did not go to the Palace (we are told she spoke to the Queen by telephone yesterday, but there was no strict requirement for her to do so). Rather, following her announcement of what – interestingly – she described as the government’s intention to hold an election, Theresa May now has to seek parliamentary approval for the decision.

This is the consequence of the Fixed-term Parliaments Act, which was passed under the Conservative–Lib Dem coalition government in 2011. Previously, the Prime Minister could request an election whenever she wanted and the general expectation was that it would take exceptional circumstances for the Queen to refuse. Now, there are only two circumstances in which an early election can take place:

  • either two thirds of all MPs must vote for the election;
  • or the government must lose a vote of confidence and fourteen days must pass without the successful creation of a new government.

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Will Theresa May call an early General Election? And would it resolve things if she did?

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Theresa May has ruled out an early general election, but that has not stopped predictable calls for her to trigger one on the grounds that her elevation to the premiership without a general election is undemocratic. Robert Hazell suggests that in saying that an early general election is not necessary she is entirely correct: the idea that Prime Ministers need a personal mandate is a misunderstanding of our parliamentary system. Were she to want to hold an election it would not be impossible for her to do so, but the Fixed-term Parliaments Act makes this more complicated than it has historically been and, in the context of Brexit, it is unclear what an early election would resolve in any case.

Does a new Prime Minister need a democratic mandate?

As soon as it was announced that Theresa May would be elected unopposed in the second stage of the Tory leadership race, and so would become Prime Minister, the predictable cries went up that this was undemocratic. No one had voted for her, it was said, other than the 35,000 electors in Maidenhead who voted for her at the 2015 general election, and the 199 MPs who voted for her in the final ballot amongst Tory MPs. The 150,000 members of the Conservative party had been deprived of any choice in the matter, let alone the 46 million electors in the country at large.

Theresa May has herself ruled out the need for an early election. Constitutionally she is entirely correct: the idea that prime ministers need a personal mandate is based upon a fundamental misunderstanding of our parliamentary system. Only in presidential systems is the head of the government directly elected. In parliamentary systems we elect a parliament, not a government. Parliamentary elections are a two stage process: after we have elected a parliament, the new parliament then determines who forms the government. And it is not uncommon for the head of government to change part way through a parliament, and not to call a general election.That has happened five times since the Second World War: when Harold Macmillan succeeded Eden in 1957, when he in turn was replaced by Alec Douglas-Home in 1963, when James Callaghan succeeded Harold Wilson in 1975, when John Major followed Margaret Thatcher in 1990, and when Gordon Brown succeeded Tony Blair in 2007. So far as I can recall, only in the last case was it suggested that the new Prime Minister needed to call a second election.

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The Queen at 90: the changing role of the monarchy, and future challenges

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To mark the celebrations of the Queen’s 90th birthday the Constitution Unit has published a new report that discusses the formal powers of the monarchy, and its wider role and functions. The report concludes by looking ahead to what further changes can be expected in the coming decades. It is summarised here by its authors, Robert Hazell and Bob Morris.

This week the Constitution Unit has published a report to mark the celebrations for the Queen’s 90th birthday, which discusses the formal powers of the monarchy, and its wider role and functions. The report also helps to set the scene for two new projects on the monarchy: the first, led by Bob Morris, is on the next accession and coronation, and the second, led by Robert Hazell, is to be a comparative study of the other monarchies of western Europe.

The changing role of the monarchy

0806161The report records how much the constitutional powers of the monarch have changed during the Queen’s reign, and her lifetime. All the important prerogative powers remaining in the hands of the monarch have been removed or severely restricted. The most important of the personal prerogatives are the power to appoint the Prime Minister; to summon and dissolve parliament; and to give royal assent to bills. We found that in exercising each of these powers, the monarch no longer has any effective discretion:

  • The constitutional conventions about the appointment of the Prime Minister have been codified in the Cabinet Manual, which explains that it is for the parties in parliament to determine who is best placed to command the confidence of the House of Commons, and communicate that clearly to the sovereign.
  • The prerogative power of dissolution was abolished by the Fixed-term Parliaments Act 2011. Parliament is now dissolved automatically after five years, or earlier if two thirds of MPs vote for an early election, or the government loses a no confidence motion. The power for the Prime Minister to ask the Queen for an early election has gone.
  • Royal assent to a bill has not been refused since 1707. It would only be withheld now (as then) on the advice of ministers.  That might happen with a minority government which could not otherwise prevent the passage of legislation against its wishes.

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