2The purpose and effect of the Act
What the Act Does
5.The Fixed-term Parliaments Act 2011 was introduced by the Conservative/Liberal Democrat Coalition Government established following the May 2010 election. The Act is, as Professor Gavin Phillipson, Professor of Law University of Bristol, suggested, misleadingly named, as it does not fix parliamentary terms, in the way, for example of congressional and presidential terms in the United States of America, are fixed and essentially unchangeable.4 The Act is better understood as moving the UK from a flexible to a semi-fixed system, as the expectation under the Act is that a Parliament will run a full term, although there is provision for early dissolution and election.5
6.The Act provides for Parliamentary general elections to take place on the first Thursday in May every fifth year. An early general election may be called if the House of Commons passes a Motion in a prescribed form by a majority of two-thirds, or if the House passes a Motion of no confidence in Her Majesty’s Government and does not then pass a Motion to the contrary within a period of 14 days.
Purposes of the Act
7.The evidence makes clear that the Act was intended both to deliver 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.6
The Constitutional purposes
8.Addressing the motivation for the constitutional changes the Act made, Lord O’Donnell, Cabinet Secretary 2005–11, told the Committee that the Coalition Government felt that the previous system under the prerogative “was unfair”, as it was “biased towards the incumbent Government, because they could choose, whenever they were ahead, to have a snap election”.7 Lord O’Donnell explained arguments for replacing the arrangements predated the Coalition Government, as it had been part of the previous Labour Government Governance of Britain agenda, but had not been implemented due to a change in priorities following the 2008 global financial crisis.8 Professor Meg Russell and Professor Robert Hazell of the Constitution Unit, University College London, provided further context, explaining that a range of proposals to set the power of dissolution in statute had been put forward over the previous three decades.9 At the 2010 General Election, the Labour and Liberal Democrat manifestoes explicitly committed to introducing fixed-term parliaments and the Conservative manifesto included a commitment for “making the use of the Royal Prerogative subject to greater democratic control so that Parliament is properly involved in all big national decisions”.10 Professor Philip Cowley, Professor of Politics Queen Mary University of London, explained that the Act addressed the principled question of who should control the point at which an election is called: should it be the Prime Minister, acting as then through the royal prerogative, or should it be the elected House of Commons.11
9.The evidence to this inquiry identified three aspects of the constitutional purpose of the Act:
- Removing the Prime Minister’s ability to unilaterally choose the date of an election for partisan advantage.
- Moving the power from the executive to legislature by giving the Commons the power to make the decision over an early dissolution.
- Creating an expectation that a Parliament will run for a full five-year term.
10.When introducing the Fixed-term Parliaments Bill, the then Deputy Prime Minister Nick Clegg set out that the single clear purpose of the Bill was to “remove the right of a Prime Minister to seek the Dissolution of Parliament for pure political gain”.12 Lord O’Donnell reiterated that this was one of the main concerns of the Coalition Government when bringing forward the legislation. He said that from a constitutional point of view, the Act “created a fairer system: it removed the bias towards incumbents being able to choose”.13 Professor Petra Schleiter, Professor of Comparative Politics St Hilda’s College Oxford, took the view that the previous arrangements “concentrated tremendous power in the hands of the Executive”, which could be “employed for partisan advantage”.14 As Professor Cowley explained, the Prime Minister’s Party had the “advantage that they knew they were working towards a particular date for an election while the Opposition did not, so there was definitely this issue of the level playing field”.15 Professor Schleiter set out that a comparative study of 27 European Countries found that the ability of leaders to dissolve Parliament and call elections at the most advantageous time, generates an average vote share bonus for the incumbent of about five percentage points.16 In addition to this, Professor Schleiter said such arrangements potentially enable “incumbent governments to avoid electoral accountability for poor policy choices, for instance, by calling elections before the full adverse consequences of their interventions unfold”.17
11.The Minister of State, Chloe Smith, said that she thought if the public felt that there was something “nefarious” in the Government’s timing of an election, the Government would be punished for this.18 She suggested to us that the five percentage point advantage highlighted by Professor Schleiter seemed “like a correlation rather than necessarily a causation” and that “there are lots of ingredients in what a public uses to make its choice”.19 However, Professor Schleiter’s research controls for potential confounding variables including the previous vote share or seat share of the Prime Minister’s party and economic performance, suggesting that the vote share advantage through opportunistic election timing cannot be described as simply a correlation rather than causation.20
12.In removing the Prime Minister’s discretion to dissolve Parliament at a time of their choosing, the FtPA gave the power to call an early general election to the House of Commons. This was the second purpose of the Act and, as the Deputy Prime Minister set out at the time, this represented “a major transfer of power away from the Executive and a major strengthening of Parliament’s authority over its own lifetime”.21 Dr Mark Ryan, Assistant Professor of Constitutional and Administrative Law at Coventry University, said that “the purpose of the Act, at least from a purely constitutional perspective, was to reduce Executive power within the British constitution”.22 Professor Alison Young, Professor of Public Law at Cambridge University, and Professor Schleiter both told the Committee that the Act purposefully sought to alter the balance of power between the Executive and legislature, by taking the power of early dissolution, predominantly in the hands of the Government and moving to the House of Commons.23 Professor Russell and Professor Hazell, explained that this move of power was in line with other constitutional changes in legislation, common law and conventions, which when read together “can then be perceived as a change in the nature of the UK constitution”.24 Citing the examples of public appointments, governance of the civil service, approval of treaties and military action, they told us:
In several areas, powers were moved into statute or transferred to Parliament either as a matter of law or of convention. Such changes enhance government accountability, and reinforce the UK’s central constitutional principle of parliamentary sovereignty.25
13.Sir Stephen Laws, First Parliamentary Counsel from 2006–12, described the third constitutional purpose of the Act as to change the default expectation in regards to when election will occur. The default expectation had been that a Parliament would not run its full course, and an early election would be called often in its fourth year. The practical effect of this he said was that …
…from the end of two and a half years—you would have a long first Session and a year as a second Session—you would start planning the fourth Session, and the fourth Session you would normally plan as a short one, running up to an election. So Government had a very short period to get going.26
Sir Stephen said that the Act “did change the default expectation. Obviously, events have shown that it has not guaranteed five-year Parliaments, but I think it did change the expectation”.27 Lord O’Donnell also set out his view that one of the main purposes of the Act was to create a fairer system that “would provide for better government by having a longer fixed term, namely five years, so that you could do serious planning”.28 Mark Harper, the Minister in charge of the Fixed-term Parliaments Bill in the House of Commons, was also clear on this purpose of the Act. He said that “one of the arguments for a Fixed-term Parliaments Act was to have Governments that could think a little bit more long term”.29 Under the previous system, he highlighted the tendency of calling an early election after four years resulted with “truncating a five-year Parliament into three years of getting stuff done and a year when everybody is focused on the next election”.30 Reflecting on whether the Act was needed, Mr Harper said:
the impetus to having Parliaments that in usual circumstances run their term and therefore moving to, on average, a Parliament sitting for its full five years I think personally is a good thing. I do not think, if you look at all the history of British politics, there has ever been an argument that we think too long term. There is a very strong argument that on many issues we think too short term, driven by the electoral timetable.31
14.Evidence from both the Association of Electoral Administrators and the Electoral Commission argued that the certainty over electoral dates that the Act was intended to establish had major benefits for electoral administration.32
15.The Minister made clear that the Government’s position was that any future legislation would “entail repealing the concept of the fixed term”, continuing:
We do not think that a fixed term per se is in itself an ideal part of the design here. Principally that is driven by the fact that the events of the last few years showed that at times it is necessary to be able to dissolve Parliament in order to move the country on and a fixed term was shown to be undesirable in that context. I think it is a prima facie case that fixed terms are not always desirable.33
16.The Minister added that, while the Government was committed to getting rid of fixed terms, it was not opposed to maximum terms.34
17.The Fixed-term Parliaments Act clearly achieved the purpose of removing the discretion of the Prime Minister to call an election at a time of his or her choosing. It removed the ability of the incumbent party of government to time an election to gain an advantage over its opponents. Whatever legislation replaces the FtPA it is important that this fairness is maintained.
18.It is clear that the Act has shifted the balance of power from the executive to the legislature. It is less clear if the right balance of power has yet been struck. While there should not be a return to the Executive dominance of election calling, careful consideration needs to be given for how the power of early election calling is balanced between the Executive and the Legislature.
19.The Act has clearly also altered the default expectation with regards to the timing of elections. The expectation is now that, where the Government has a working majority, a Parliament will normally last a full five-year term. Given that there are mechanisms for an early election included in the Act, the length of a Parliament is never truly a fixed term and, in this regard, the Act was misnamed. While changes may need to be made to the current arrangements, the Committee can see no good reason for altering the default expectation that parliaments should run their full term and elections will occur at scheduled times, thereby providing certainty for those administering elections and for the public who vote in them. The only exceptions should be in circumstances where an early general election is the only means of resolving political deadlock, or if the House of Commons expresses no confidence in the Government.
The political purpose
20.It is clear from the evidence to the inquiry that a significant reason for bringing forward the original Bill was the hung Parliament following the 2010 Election. The purpose of the Act in this regard was to maintain the Coalition Agreement between the majority Conservative and minority Liberal Democrats. Lord O’Donnell told the Committee that there was “obviously a political element” to the Act.
We were talking about putting together the first full coalition Government and, not surprisingly, the Liberal Democrats were worried that, without some kind of commitment, they would go into full coalition, the Conservative party would decide to go for a snap election whenever it happened to be ahead, and that that would be a real problem for them, so they were quite keen politically that this go through.”.35
He further explained that at the start of the Coalition “there probably wasn’t that much trust” so the Liberal Democrats wanted “an absolutely clear commitment that there would be no snap election, and the way to do that was to legislate for a fixed-term Parliaments Act”.36
21.While setting out that there was a strong intellectual heritage for what the Act did constitutionally, Professor Cowley was clear about the political need for legislation:
The Act itself was about the political convenience of the time...It happened when it happened because the Liberal Democrats needed to be given some assurance that they were not going to be dumped by the Prime Minister whenever it became electorally convenient to do so, and that is why they got the measure through.37
22.When asked what the purpose of the Act was, Mark Harper was clear that, along with the constitutional purposes, it was part of the Coalition Agreement. He went on to say that “there were many people at the beginning of the 2010 Parliament who did not think the Coalition Government would last. Of course, that Parliament did run its full term, so you could say in the narrow terms of the Act it fulfilled its objective”.38
23.It is clear that one of the main purposes of the Fixed-term Parliaments Act 2011 was to provide assurance to the Coalition partners that an early election would not be called. The fact that the Coalition Government was maintained for the full 2010–15 Parliament, makes it evident that the Act achieved this narrow purpose. Whatever system replaces the Act needs to be able to accommodate the formation of future coalition governments without further changes to the law for dissolving Parliament and calling elections. The Government and review committee in considering what should replace the Fixed-term Parliaments Act must establish a system that will support majority, coalition and minority governments to be formed, and for them to govern for a full term, notwithstanding circumstances in which an early general election is the only means of resolving political deadlock, or if the House of Commons expresses no confidence in the Government.
8 Ministry of Justice, The Governance of Britain Review of the Executive Royal Prerogative Powers: Final Report, October 2009, para 39
10 Liberal Democrat party, Liberal Democrat Party Manifesto 2010: Change that works for you building a fairer Britain, p88; Labour Party, Labour party Manifesto 2010: A Future Fair for All, Section 9; Conservative party, The Conservative Manifesto 2010: Invitation to Join the Government of Great Britain, p 67
16 Q107; Petra Schleiter and Thomas Fleming (FTP0006); Petra Schleiter and Margit Tavits, “The Electoral Benefits of Opportunistic Election Timing”, Journal of Politics, Vol 78 no 3 (2016), pp836–850
20 Petra Schleiter and Margit Tavits, “The Electoral Benefits of Opportunistic Election Timing”, Journal of Politics, Vol 78 no 3 (2016), pp836–850; Petra Schleiter and Valerie Belu, ‘Electoral incumbency advantages and the introduction of fixed parliamentary terms in the United Kingdom’, The British Journal of Politics and International Relations, Vol 20(2) (2018)
Published: 15 September 2020