The Fixed-term Parliaments Act: should it be amended or repealed?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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Moving Westminster into a multi-parliament world: the Commons takes a fresh look at devolution

The UK’s devolved institutions in Northern Ireland, Scotland and Wales celebrated their twenty-first anniversary this year. Their powers have changed several times since their creation, but much of this has occurred in an ad hoc way, without deep consideration at UK level of the overall devolution framework. Paul Evans explains how a new Procedure Committee inquiry into how the House of Commons should adapt to the ‘territorial constitution’ presents an opportunity to give some key devolution issues the attention they deserve.

Devolution in the UK turned 21 this year, and watching it grow has been a fascinating study in making up the constitution as you go along. The Scotland Act 2016 and the Wales Act 2017 (each of them the third major reworkings of the statutory basis of devolution in those nations in less than 20 years) declared the devolved legislatures there, along with their governments, to be a permanent part of the UK’s constitutional arrangements, which could be abolished only with the consent of the people in a referendum. 

In both those nations 16- and 17-year olds have been newly enfranchised and will participate in the elections of their parliaments next year. The Northern Ireland Assembly restarted (once more) in January after a three-year absence, and in May the Welsh Assembly renamed itself the Welsh Parliament (or Senedd Cymru if you prefer to use the UK’s – so far – only other official language). 

All in all, the journey towards a pragmatic form of de facto federalism in the UK has been a remarkably peaceful and generally good-natured velvet revolution. So perhaps it’s not so surprising that the House of Commons Procedure Committee has not felt the need to have a major review of the implications of devolution for the workings of the Commons since 1999.

Watching its progeny develop their own values and make their own decisions has, nonetheless, been a challenging learning experience for Westminster. The assertions of devolution’s permanency and its implication of equality of esteem between the four legislatures of the UK has often appeared more rhetorical than real. Whitehall seems never to have fully come to terms with the loss of centralised control which devolution necessarily entails. But, collectively, the elected members of the four legislatures have done little better in opening up and sustaining channels of communication – though some good work has been done at the margins. 

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A question of confidence? The Constitution Committee’s view on the Fixed-term Parliaments Act 2011

Nine years after the passage of the Fixed-term Parliaments Act, both government and opposition have expressed a desire to repeal it, following two general elections: one brought about about using the provisions of the Act and another by circumventing them. The Constitution Committee has produced a report setting out what any replacement legislation needs to address. Its Chair, Baroness Taylor, discusses the Committee’s conclusions below.

On its introduction in 2011, the Fixed-term Parliaments Act (FTPA) was heralded by the then Deputy Prime Minister, Nick Clegg, as a ‘constitutional innovation’ that would no longer allow the timing of general elections to be a ‘plaything of Governments’. Nine years on, it is safe to say that the FTPA has not had the effect that he and others envisaged. The FTPA has been stress-tested and found wanting by political parties and commentators alike. 

The FTPA sets the length of parliaments at five years and requires the approval of the House of Commons for an early general election. It removed the longstanding prerogative power of the monarch to dissolve parliament at the request of the Prime Minister and instead vested this authority in Members of Parliament. In 2017, Prime Minister Theresa May proved that a government that wanted an election could secure one using the provisions of the FTPA. In 2019, at the helm of a minority government that was thrice denied an early general election under the FTPA, Prime Minister Boris Johnson sidestepped its requirements with the Early Parliamentary General Election Act.

These events prompted proposals from both the Conservative and Labour parties to repeal the FTPA. The current government has reiterated that commitment since taking office. However, repealing the FTPA is not straightforward, given its constitutional and legal implications. It is in this context that the House of Lords Constitution Committee published its report on the FTPA on 4 September, exploring its effects and the questions that need to be addressed for any future reform.

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Brexit and parliament: treaties beyond the EU

In the latest extract from our joint report on Parliament and Brexit, Jill Barrett argues that the need for effective scrutiny of post-Brexit trade deals is high, and that parliament needs to develop mechanisms to better scrutinise the deals made by the government.

Leaving the EU means the UK is not only leaving the EU trading bloc and negotiating a new future relationship with the EU, but also leaving its global network of trade treaties – which consists of 41 trade agreements covering 72 countries. All of these will cease to apply to the UK at the end of the transition period (31 December 2020, unless extended by agreement). The UK’s trade with other World Trade Organization (WTO) member countries will then take place on WTO terms, except where there is a new trade agreement in place.

The UK government is seeking to ‘roll over’ the 41 existing EU agreements, by negotiating similar new agreements with the third states concerned. So far, only 19 replacement agreements have been signed and a further 16 are ‘still in discussion’. In some cases, notably Japan, the other state is not willing simply to replicate the terms that it has with the EU, but is seeking further concessions from the UK. Achieving a deal in all cases by the end of 2020 will be extremely challenging, and some may well take considerably longer.

Now the UK has an independent trade policy it can also seek new trade relationships with states that are outside of the EU’s treaty network. The government has announced that its priority is to negotiate bilateral trade treaties with the USA, Australia and New Zealand, and one may expect the next phase to include negotiations with major emerging economies such as China and India. All of these will raise matters of intense interest to parliament and the public.

What is parliament’s role in relation to the making of treaties? Treaties are negotiated, adopted, signed and ratified by the government using royal prerogative (executive) powers. In legal terms, parliament has two distinct roles. First, the government is obliged to lay a new treaty before parliament for 21 sitting days prior to ratification, under the Constitutional Reform and Governance Act 2010 (CRAG). In theory, this gives parliament the opportunity to scrutinise the treaty and object to ratification, by passing a resolution. An objection by the House of Commons (but not by the Lords) would block ratification. Secondly, if implementation of the treaty requires new legislation, parliament has the power to pass or defeat that legislation (or amend it, if it is a statute). If essential implementing legislation is blocked, this would normally stop the government ratifying the treaty. Continue reading

The Johnson government’s constitutional reform agenda: prospects and challenges

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading