Reforming elections: assessing the government’s proposals

In September, the Constitution Unit hosted a distinguished panel of experts to discuss the government’s plans for reforming election law, as set out in the Elections Bill and draft Online Safety Bill. Tom Fieldhouse summarises the discussion.

The Elections Bill, and the draft Online Safety Bill are two important parts of the government’s reform agenda which, in their current form, stand to significantly alter the UK’s constitutional landscape.

With the Elections Bill making its way through parliament, and the draft Online Safety Bill undergoing pre-legislative scrutiny, the Constitution Unit hosted a webinar on 23 September entitled Reforming elections: assessing the government’s proposals. The event was chaired by the Unit’s Deputy Director, Professor Alan Renwick, and heard from four expert speakers: Louise Edwards, Deputy Director of Regulation at the Electoral Commission; Laura Lock, Deputy Chief Executive of the Association of Electoral Administrators; Justin Fisher, Professor of Political Science and Director of the Policy Unit at Brunel University; and, Baroness (Nicky) Morgan of Cotes, former Secretary of State for Digital, Culture, Media and Sport (2019–20) – now a Conservative peer and Vice Chair of the APPG on Digital Regulation and Responsibility.

The summaries below are presented in the order of the speakers’ contributions. The full event, including the Q&A, is available on our YouTube page.

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The Dissolution and Calling of Parliament Bill: why the House of Commons should retain control over dissolution

Next week MPs debate the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act (FTPA) and revive the former prerogative power of dissolution. Meg Russell, Gavin Phillipson and Petra Schleiter, all of whom gave evidence to the parliamentary committees considering FTPA repeal, argue that the government’s bill is flawed. It seeks to keep the courts out of dissolution decisions, but risks drawing them in, and risks politicising the role of the monarch. Removing the House of Commons power over when a general election is held, and returning it to the Prime Minister, would be a retrograde step.

On 13 September, MPs debate the remaining stages of the government’s Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA) and revive the former prerogative power of dissolution. Three parliamentary committees have considered FTPA repeal, to which all of us have submitted evidence. This post summarises key flaws in the government’s approach identified by the committees, and areas where expert evidence suggested solutions to address these flaws.

The post does not argue for retention of the FTPA. Instead it proposes a solution to the problems with the bill that would leave parliament at the heart of decision-making. It makes three key points:

  1. While aiming to exclude the courts from the question of dissolution, the government’s bill instead potentially draws them in.
  2. Placing sole reliance on the monarch as a check generates uncertainty, and risks politicising their role.
  3. The solution to both of these problems is to retain a requirement for the House of Commons to vote on the Prime Minister’s request for a general election by simple majority. Concerns that this could recreate the 2019 Brexit deadlock are groundless.

Our core argument is that maintaining the Commons’ ultimate control over dissolution, while fixing the defects of the 2011 Act, would be a better solution.

The bill seeks to exclude the courts from dissolution but risks drawing them

The bill’s central objective is to return the power to dissolve parliament to the monarch, to be granted on the Prime Minister’s request – that is, to restore the pre-FTPA status quo. Clause 3 (‘Non-justiciability of revived prerogative powers’, commonly referred to as the ‘ouster clause’) seeks to exclude the courts from considering cases relating to dissolution. The courts have never intervened in dissolution decisions (the 2019 Supreme Court case was on prorogation, which is different). But inclusion of the clause suggests that the government perceives some risk of judicial intervention if it attempts to revive the prerogative.

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The Dissolution and Calling of Parliament Bill – a return to constitutional normality?

Alison Young argues that the Dissolution and Calling of Parliament Bill transfers power from parliament to the government, and not to the people, and that it is wrong to place the blame for the extraordinary events of 2019 on the provisions of the Fixed-term Parliaments Act.

The Fixed-term Parliaments Act 2011 (FTPA) has not had a good press. So much so, that a promise to repeal the Act was included in the 2019 manifestos of both the Labour Party and the current Conservative government. However, as the second reading of its replacement, the Dissolution and Calling of Parliament Bill demonstrates, the apparent consensus ends there. There appeared to be two strong themes to the debate. First, how far does the FTPA’s replacement transfer power from parliament back to the government, or from parliament back to the people? Second, to what extent did the FTPA cause the difficulties – however defined – for the then Conservative minority government in 2019?

Turning back the clock

The FTPA placed the prerogative power of the dissolution of parliament on a statutory basis. It fixed the terms of the Westminster parliament to five years, setting the dates for general elections. It provided two ways in which parliament could be dissolved earlier. First, it was possible for two-thirds of the members of the House of Commons to vote in favour of an early parliamentary general election. Second, dissolution could occur following a vote of no confidence, if, within a two week period, it proved impossible to form a government which had received the backing of a vote of confidence from the House of Commons.

The Dissolution and Calling of Parliament Bill aims to return the Westminster parliament to the position prior to 2011. It repeals the FTPA (section 1) and ‘revives’ the prerogative power to dissolve parliament and to call a new parliament (section 2). However this is interpreted, it is clear that the bill’s intention is to ensure that parliament can be dissolved and recalled ‘as if the Fixed-term Parliaments Act 2011 had never been enacted’ (section 2). Fixed terms of five years are now replaced with a maximum five-year term (section 4). Moreover, the bill seeks to make the dissolution and calling of parliament non-justiciable (section 3) – arguably making the prerogative powers even less subject to judicial review than was the case prior to 2011.

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The Fixed-term Parliaments Act: should it be amended or repealed?

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. 

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The Parliamentary Constituencies Bill: how to ensure a level playing field

alan.jfif (1)professor_hazell_2000x2500_1.jpgLegislation now before parliament will reform how parliamentary constituencies are drawn up. Most controversial is a proposal that the recommendations of the independent boundary commissions should be implemented automatically. Alan Renwick and Robert Hazell argue that the principle of automatic implementation is right, but it should be combined with stronger safeguards on the commissions’ independence. 

The government’s Parliamentary Constituencies Bill was debated in the House of Commons for the first time earlier this week. The bill, if passed, will keep the number of MPs at 650, cancelling a cut to 600 that was legislated for in 2011 but has not yet been implemented. It will also alter the procedures for drawing up Westminster constituency boundaries, in four main ways. First, it will reduce the frequency with which boundaries are reviewed, from five- to eight-year intervals. Second, it will slightly shorten the duration of the next review (but only the next one), from 34 to 31 months, to ensure its conclusions can be implemented in good time for a 2024 election. Third, it will adjust the sequence of the review process, so that public hearings on proposed boundaries take place after an initial round of written submissions. Finally, and most importantly, it will make the implementation of new boundaries automatic: parliament will lose its current power to block the proposed changes.

Cancelling the cut in the number of MPs is no longer controversial. That reduction was introduced in 2011 in the wake of the MPs’ expenses scandal, when public scepticism about the value of MPs’ work was at a peak. It was designed to show that ministers understood people’s anger about perceived waste at the heart of politics. Since then, however, parliament has done much to reassert its value. MPs have become more independent-minded in holding government to account. Following reforms implemented in 2010 – some of which were strongly based in earlier Constitution Unit research – select committees have risen greatly in prominence, and are now widely seen as doing much important work. Furthermore, many constituents were discomfited when they saw that cutting the number of MPs would reduce their own local representation at Westminster. The cross-party support that exists for retaining 650 MPs is therefore welcome.

Some of the changes to review procedures have, however, proved more contentious. In particular, opposition parties have argued against the introduction of automatic review implementation. Speaking in the Commons on Tuesday, both the Shadow Minister for Voter Engagement, Cat Smith, and SNP Spokesperson David Linden called it ‘a power grab’ by the executive over the legislature. Labour’s Stephen Kinnock described it as ‘nothing short of a constitutional outrage’. Continue reading