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

Might Boris Johnson try to call an election sooner than people think?

professor_hazell_2000x2500_1.jpgmeg_russell_2000x2500.jpgWhile there has been much talk about a possible vote of no confidence when parliament returns in the autumn, speculation about the possibility of the Prime Minister himself seeking to trigger an immediate election in September has been much more limited. In this post, Robert Hazell and Meg Russell suggest that an October election could hold some attractions for Johnson, but it would also hold significant risks. Crucially, under the Fixed-term Parliaments Act Labour could readily block him from pursuing it.

Since Boris Johnson became Prime Minister on 24 July there has been a daily blizzard of announcements from No 10 trumpeting more spending on the police, the NHS, schools, and other public services. This has led some commentators to conclude that he is gearing up for an autumn election. The context has largely been speculation, on the one hand, about a possible parliamentary vote of no confidence triggering such an election either shortly before or after Brexit day on 31 October, or on the other hand, over whether Johnson could successfully proceed with a ‘no deal’ Brexit, pulling the rug from under the Brexit Party, and hold an election in November.

Much energy has gone into debating how parliament might prevent ‘no deal’, considering possible legislation, votes of no confidence, governments of national unity, the caretaker convention, and the the Prime Minister’s ability to advise the Queen when polling day will be. On this blog, we have contributed our share (see here). But amidst the speculation about a vote of no confidence under the Fixed-term Parliaments Act, there has been far less focus on the possible use of the other route to an early election provided in the Act, which is to invite the Commons to agree to an early dissolution. One exception was a piece in last week’s Spectator, suggesting that when parliament returns on 3 September Boris Johnson could immediately trigger such a vote, potentially leading to a general election on 10 October. Theresa May, after all, surprised everyone by triggering an early election in 2017. Could Boris Johnson do the same?

This post considers the reasons why the Prime Minister might be tempted to pursue such a route, and the very significant obstacles that he would face.

Why Boris Johnson might favour a snap election

The potential scenario is this: Boris Johnson returns on 3 September announcing that he wants to call an early election, to seek a mandate to bolster his tough negotiating position that the EU must drop the Irish backstop – or that failing that, the UK would pursue a ‘no deal’ Brexit. He might claim that this was necessary to appeal over the heads of intransigent MPs to the public at large. Continue reading

Mandatory reselection: lessons from Labour’s past

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At the Labour Party conference in September, a union-backed compromise led to changes in the way parliamentary candidates are selected by their constituencies. Eric Shaw explains how the debate is reminiscent of the internal party struggles of the 1980s, and how the current struggles over this issue differ from the discord of the past.

At the recent Labour Party conference two issues appeared to provoke the most heated debate: Brexit and the issue of the ‘mandatory reselection’ of MPs. The former was predictable and understandable. But mandatory reselection? It is an issue about which the vast majority of the population knows little and cares even less, a matter so arcane and abstruse that even the small number who follow party conferences could be forgiven for feeling baffled.

Yet selection rules do matter. In recent years the capacity of the rank and file in political parties to directly influence policy, always rather restricted, has tended to shrink further with influence over candidate selection surviving as one of the few effective ways in which members can assert some measure of control over their party. Because many seats do not change hands, those who select candidates within a party are often in effect choosing their constituency’s MPs, hence influencing the composition and ideological direction of the governing elite. Many years ago, Eric Schattschneider, a notable American scholar, contended that ‘The nature of the nominating procedure determines the nature of the party; he who can make the nominations is the owner of the party. This is therefore one of the best points at which to observe the distribution of power within the party’. Candidate selection is about power.

It is for this reason that clashes over selection rules have been, at least since the 1970s, a flashpoint of controversy within the Labour Party. In 1973 the Campaign for Labour Party Democracy (CLPD) was established to press for the introduction of what was called mandatory reselection, the principle that before each election an MP must seek and gain the nomination of his or her constituency party. Why was this deemed so important?

Events during both the 1964–70 and the 1974–79 Labour government had shown that, whatever the formal position, in practice party members who lacked a seat in parliament or a role in the government lacked any effective mechanism by which it could compel a Labour cabinet to implement a manifesto on which it had campaigned and been elected. No means existed by which the PLP could be held collectively responsible to the wider party but, if a procedure for ‘mandatory reselection’ was instituted MPs could be made individually answerable to their local parties. If an MP had to compete before each election for the right to stand as the party’s candidate, they would have to be more receptive to constituency opinion or risk losing their seat. Continue reading

The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

image_previewJeremy Corbyn recently used a speech on what a Labour government would seek to change in the media sector to confirm that the party will seek to abolish the ministerial power to veto decisions to release government papers under the Freedom of Information Act. Ben Worthy argues that the idea is neither new, or the best means of increasing transparency.

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading