The Government and the Opposition have committed to repealing the Fixed-term Parliaments Act 2011 (FtPA), respectively saying it has led to “paralysis” and “stifled democracy”. A statutory review of the Act is also due to start this year. In light of this, the Committee has identified and considered the key concerns and issues with the Act and its replacement to inform the review committee’s and Government’s considerations and proposals.
The FtPA is poorly named as while it purports to fix parliamentary terms, it actually moved the UK from a flexible to a semi-fixed system by creating an expectation that a Parliament will last a full term, with mechanisms for early elections to be called. It was introduced to serve the dual purposes of delivering a permanent constitutional reform—transferring the power to call an early general election from the Prime Minister to the House of Commons—and to provide an additional measure of stability to the Coalition Government. While the changes may need to be made to the current arrangements, whatever replaces the FtPA should not alter the expectation that a parliament will run its full term, and ‘fairness’ should be maintained.
The FtPA includes a provision to establish a review committee between June and November 2020. The Committee is glad the Government has recognised the importance of appointing this review committee and not rushing through replacement legislation. The review committee should be a joint select committee subject to parliamentary approval and not an executive-appointed committee.
The commitment to repeal the FtPA raised the question of whether the prerogative can be revived, a question which is highly complex and contested. It is clear that a simple repeal would not bring back the prerogative and that whatever comes next would have to be clearly set out in statute.
It was clear that much of the concern with the FtPA, which led to the commitments to repeal the Act, come from the perceived inability for an early general election to be triggered earlier in 2019. Early elections can have a role in breaking parliamentary deadlock. There were several unsuccessful attempts to use the early election provisions and a situation was created where the Government was defeated on several key votes, but the House was unwilling to trigger a general election. Ultimately this deadlock was broken by the passage of the Early Parliamentary General Election Act 2019, which circumvented the requirement for a two-thirds majority in the House of Commons.
The FtPA left the power to set the date of an early election to the Queen on the advice of the Prime Minister. It also removed the Prime Minister’s ability to attach confidence to a substantive vote, with the direct threat of triggering an election. The Committee heard from some witnesses that this should be included in any new arrangements, and the Government indicated it is considering this. We also heard, however, that reinstating this power would strengthen the executive, and in particular the Government Whips office.
As was clearly set out by our predecessor Committee, confidence remains central to the UK’s system of parliamentary democracy, while the FtPA clearly established the route by which a no confidence vote could directly trigger an election, this did not replace the pre-existing conventions regarding confidence. A mix of statute and convention remains the best way for this area to be governed, but requires the actors involved to act in ways which engender trust. While the FtPA does not, as the Government has asserted, divorce confidence from dissolution, it did enable the situation that occurred last year where the Government lost the confidence of the House, but the House was not prepared to trigger an election. Providing the House of Commons with the power to set the date of an election could provide a route to avoid unnecessary paralysis, and the review committee should include this in its terms of reference.
Published: 15 September 2020