24.The FtPA includes a provision that the Prime Minister must make arrangements for a committee to be established to review the operation of the Act, and for that committee to make recommendations for the repeal or amendment of the Act. It also requires the Prime Minister to make arrangements for the publications of the committee’s findings and recommendations. This committee should be established no earlier than 1 June 2020 and no later than 30 November 2020.
25.The FtPA provides that the majority of the committee should be Members of the House of Commons. Therefore, other members could be from the House of Lords or from other sectors, such as academia, the law, relevant bodies, or the general public.
26.The then Cabinet Secretary, Sir Mark Sedwill, told the Committee in March 2020 that the Government was currently weighing up options in regards to the FtPA and that one of these options is not to proceed with the review committee. However, the Cabinet Office Minister, Chloe Smith, subsequently made clear that the Government intends to set out the arrangements for the committee before the end of November 2020 in accordance with the Act.
27.The provision for a review committee was an amendment made at the end of the legislative process, in part as a response to the attempt by the Lords to insert a ‘sunset clause’. During the debate, Mark Harper said that it would provide a “categorical reassurance that the Bill will be given full post-legislative scrutiny”. In oral evidence, Mr Harper confirmed this intention, saying that the scheduling of the review was intended to have allowed the committee to review the operation of the Act over two full election cycles. The review committee would be able to make recommendations for amendment or even repeal, but any changes would be subject to the “full normal legislative process, with its checks and balances”. He went on to set out that the committee would review the operation of the Act in general, that it would not be an overly constrained review and so it “would be able to look at the effects in the round and make appropriate recommendations that this House and the other place could then consider.”
28.Mr Harper said that the Government of the time had envisaged a joint committee, with a larger number of Commons members to reflect it was about elections and therefore about the democratic House. He suggested that the review could be carried out by a joint select committee, possibly comprised of members of existing committees of the two Houses with an interest in the area.
29.There was very strong support for the review committee in the evidence to this inquiry, and for far greater pre-legislative scrutiny of whatever is proposed to replace the FtPA. Lord O’Donnell said he thought:
the review is a very good idea. This is a difficult constitutional issue and my experience suggests to me that constitutional issues need to be very carefully considered, because they can have unexpected consequences.
30.Sir Stephen Laws suggested that given the Government’s commitment to repeal the FtPA, the review committee might best perform pre-legislative scrutiny.
31.Professor Alison Young said:
…it is very unwise to modify constitutional provisions without having a committee that looks at those particular provisions. We have seen from the discussions today that there were some elements of lack of clarity, that there were some consequences of the Fixed-term Parliaments Act that might not necessarily have been fully considered at the time. We have also discussed how changing one particular piece of the constitution can have knock-on consequences in all sorts of other areas. I think it is very wise in those circumstances to ensure that you do have a committee, be it a review committee of the Act or a pre-legislative scrutiny committee.
32.Professor Petra Schleiter highlighted three reasons for the review committee: first, to get it right; second, to create the bandwidth to give this reform the attention it requires; and third, to make rules that have a chance of lasting and that have cross-party support.
33.The Minister gave us assurance that the Government would not rush through the process of reforming or replacing the FtPA, telling us “it is very important that this issue is carefully scrutinised”. She added that it is the Government’s “wish to be able to give this proper scrutiny and invite views upon it so that it results in the strongest possible arrangements”. On the issue of building cross party consensus, the Minister told us that she saw it as her role as the minster responsible for the policy area and the Bill, “to forge that consensus”. The Minster said that the review committee would be set up in accordance with the Act before the end of November 2020 and accepted that the “Committee would require a period of time to do its work”.
34.The Committee welcomes the Government’s commitment not to rush through replacement legislation and to provide adequate time for full scrutiny. We also appreciate the Minister’s commitment to forging cross-party support for whatever replaces the Fixed-term Parliaments Act. The first step, as the Minister recognised, is for the review committee to be set up. It is important that the review committee is given time to carry out its work to its full satisfaction. Following the reporting of the review committee the Government should produce its proposals and allow time for full pre-legislative scrutiny.
35.The Committee does not recommend a particular composition for the review committee beyond that set out in the Act. But the Committee believes that the review committee should be a Joint Select Committee, subject to parliamentary approval and not an executive-appointed committee. The Joint Committee could require additional provisions to include experts to be included as Committee members.
39 Oral Evidence taken on 10 March 2020, HC118,
41 HC Deb, 8 September 2011,
43 HC Deb, 8 September 2011,
44 HC Deb, 8 September 2011,
Published: 15 September 2020