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