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Can the Fixed-term Parliaments Act simply be repealed?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. Continue reading

In defence of the Fixed-term Parliaments Act

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. Continue reading

Can David Cameron call a second election? How does that fit with the Fixed Term Parliaments Act?

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Robert Hazell outlines how the Fixed Term Parliaments Act restricts the new government from calling a second election. He writes that if Cameron wanted to take a gamble to boost his slender majority, he would have to work within the confines of the Act given the likely complexities of any attempt to repeal it.

This is the third in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

Now that David Cameron has won, but only with a slender majority, speculation will turn to whether his government will last a full five years; and whether he could improve his numbers by calling a second election. In the run up to the election there was talk of the new government calling a second election after a year or so, as Harold Wilson did in 1966 and again in 1974. This kind of speculation is wild. It is no longer possible for the Prime Minister to seek an early dissolution, because the prerogative power to dissolve Parliament was abolished by the Fixed Term Parliaments Act 2011. It is now up to Parliament to decide whether there should be an early election. Under the Act there are only two ways in which Parliament can be dissolved early:

  • By a motion ‘that there shall be an early parliamentary general election’ passed by at least two thirds of the House of Commons (s 2(1))
  • By a formal no confidence motion, in the statutory form prescribed in the Act (that ‘this House has no confidence in Her Majesty’s Government’), passed by a simple majority of those voting (s 2(3)). If no alternative government can be formed within 14 days which can command confidence, Parliament is dissolved and an early election held.

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The new government’s constitutional reform agenda – and its challenges

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Following the surprise election of a Conservative government with a small majority, Meg Russell and Robert Hazell offer an overview of the constitutional reforms which are likely to be prioritised and the associated difficulties that may arise.

Now that the election result is clear, it’s possible to start thinking through the likely constitutional reforms on the new Conservative government’s agenda. Some of these items are obvious, and others less so. Many of them are very challenging, as we explain below – and will expand in more detail on this blog in the coming days and weeks.

Scottish and Welsh devolution

The biggest story in this election, including as the results came in, has been Scotland. The challenge for Prime Minister Cameron is to hold the UK together, at the very moment when the SNP has almost swept the board in terms of Scottish seats. The Conservative manifesto, like those of the other UK-wide parties, committed to implementing the recommendations of the Smith Commission to devolve further fiscal and welfare powers to Scotland. The Scottish people have been led to believe that will happen easily and early in the new parliament. But this may be difficult. The Smith proposals were strongly criticised by two parliamentary committees – in both Commons and Lords. The SNP will press for more, in pursuit of full fiscal autonomy; while devo-sceptic Conservative backbenchers may argue for less. The sensible thing may be to introduce proposals via a draft bill, to see whether middle ground can be found.

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We need clearer reporting on the 2015 election

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The 2015 election is one of the most unpredictable in decades. But last Monday’s dissolution of parliament was the most predictable event of the year and still large parts of the media got it wrong. This does not bode well for how the post-election period will be reported, writes Akash Paun.

Under the Fixed-term Parliaments Act (FTPA), passed in 2011 and amended in 2013, Parliament was automatically dissolved last Monday, 25 working days before the first Thursday in May, when the country goes to the polls. Nonetheless, several major news outlets managed to confuse their readers and viewers by reporting that David Cameron had to request a dissolution from the Queen (as was the case before the FTPA was passed).

There are more important parts of our constitution than the precise mechanism used to dissolve parliament. But this is just one of a number of misconceptions likely to confuse voters in the run-up to and days following the election, particularly if there is another hung parliament. Even the Government’s Cabinet Manual, created expressly to clear up confusion about such matters, has not been kept up to date and incorrectly states that the election occurs 17 (rather than 25) days after dissolution (at page 96).

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