52.Early elections, as Professor Cowley described to the Committee, perform an important function in “circumstances where things have broken down completely, or where new issues have emerged that require a mandate to resolve”.90 As Professor Schleiter further explained, early elections serve the purpose of gridlock resolution in most parliamentary systems, offering “democratic means to resolve situations in which Parliament cannot agree to form a Government or cannot agree to lend it the support to govern”.91 With the exception of Norway, every European parliamentary democracy has a mechanism for an early election. The UK under the FtPA is no different; section 2 of the Act contains two routes: a direct vote for an election, and an election following a resolution of no confidence in the Government. Despite the presence of these provisions, many, including the Government and the Opposition, viewed the FtPA as inhibiting the political process, either by “causing paralysis” when decisive action was needed, or by stymieing democracy and propping up a weak government.
53.As the Minister made clear giving evidence to the Committee, it was the inability for an early election to be called at an earlier point in 2019 that led the Government to view the FtPA as causing paralysis. The Minister expressed the Government view that:
What this Act does is divorce, if you like, the issues of confidence from the issues of dissolution or the process of confidence and the process of dissolution and we saw the problems that that caused. We absolutely had the practical example of why that was problematic. It certainly is a key point that needs to be considered in the replacement arrangements, that there ought to be a restored link because of confidence in the Government of the day and the triggering of an election. That may include making it possible once again for the Government to designate certain issues as matters of confidence that, if they were lost, could then trigger dissolution.92
54.In this inquiry, the Committee sought to consider how the early elections of the FtPA have operated, and what were the causes of the concern with the early election provisions.
55.Section 2 of the FtPA established two means by which an early general election and dissolution of Parliament can be triggered. Both routes require resolutions of the House of Commons:
56.The early election provision has only be used successfully once, when in 2017 Theresa May’s Government moved the section 2(1) Early General Election motion, securing over the two thirds majority and triggered the 2017 Election.94 As Mark Harper observed, on this occasion it appears the Act operated as intended and expected.95
57.In 2019, several unsuccessful attempts to use the early election provisions of the Act were made, in the context of debates around how the UK would leave the EU. First, following a Government defeat of 202–432 on its Withdrawal Agreement, the Opposition put down a motion of no confidence, which was then defeated the following day 306–325.96 Before FtPA was passed in 2011, the Prime Minister could have attached confidence to the first vote on the EU Withdrawal Agreement with the threat of triggering an election if the Government was defeated. Under the FtPA, the Prime Minister could have threatened to follow this with a motion for an early general election, but she did not choose to do that.
58.In September 2019, however, Prime Minister Boris Johnson appears to have treated a vote on a Standing Order 24 debate to allow “MPs [to take] control of the Order Paper” as an effective vote of confidence, as following the Government’s defeat he made clear that the Government and the House of Commons were at odds and so put down an Early General Election motion for debate the following day.97 While the Government won that motion, the Opposition abstained and so the threshold of two-thirds majority for an election was not met.98 The Prime Minister subsequently moved the Early General Election motion twice more on September 9 and October 28, and on both occasions could not reach the two-thirds majority.99 The day after the last of these Early General Election motions, the Government introduced the Early Parliamentary General Election Bill which was passed two days later, triggering a dissolution. The Early Parliamentary General Election Act 2019 did this by specifying the date for the Election and stating that it should be treated as if it had been set under section 2(7) of the FtPA. By doing this, the requirement for a two thirds majority vote in the House of Commons was circumvented.
59.Sir Stephen Laws told the Committee that, when writing the Act, Parliamentary Counsel was aware that circumventing the two-thirds provision through passing an Act for an election was going to be an option. But he said this possibility fit with the purpose of the Act to change the default assumption to one that a Parliament would normally run a full term, as a government choosing to circumvent the procedures of the Act, would have to take whatever political heat came from such actions. Lord O’Donnell agreed with this analysis telling us the presumption of the Act was “‘Let’s try and do five years if at all possible,’ but clearly you don’t want to override the sovereignty of Parliament”.100 He said he thought that “some people underestimate the strength of the system that we’ve got with the Fixed-term Parliaments Act”, and added that the Act “actually did find a way through”.101
60.The idea of circumventing the two-thirds provision through an Act was also contemplated in 2017. As Professor Cowley pointed out, the Prime Minister was not sure whether the Opposition would back the election and “her team prepared a draft Bill, very similar to the one that passed in 2019, ready to implement to try to bypass the Act”.102
61.Professor Schleiter said if you wanted to impose a binding higher bar such as a two-thirds majority in the UK “you would somehow have to move to a system of entrenched constitutional laws”, but concluded “I do not think that is the world we are in”.103
62.Professor Young told us that the Early Parliamentary General Election Act 2019 was a very clever way round the two-thirds majority requirement, but still in line with the principle of parliamentary sovereignty.104 Addressing the question of whether the two-thirds majority could be “entrenched” to prevent future circumvention, she said trying to do this would cause all sorts of deeper issues in constitutional theory.105 She speculated that it could be possible to entrench a super majority, but
to do so you have to modify what I would call the fundamental constitutional principles that are effectively agreed upon by Parliament and the courts. That would be very complex and could not necessarily be done by legislation alone.106
63.The two-thirds ‘super majority’ required to trigger an early election under the Act can, like any statutory provision, be circumvented by passing an Act of Parliament to set an election date. As was made clear to the Committee the option of such a circumvention was clearly always contemplated as a possibility in certain circumstances, such as occurred in Autumn 2019. The principle of parliamentary sovereignty means this will always remain a possibility. Attempting to entrench a ‘super majority’ would be a difficult, unnecessary and potentially damaging move; the Committee advises against this being included in any proposals to replace the FtPA.
64.One explanation given to us for the “paralysis” or reticence of the House of Commons to call a General Election earlier in Autumn 2019 was that, under section 2(7) of the Act, the power to specify the date of an election is left to the Prime Minister and there was a lack of trust that he would not use this power to achieve a political end. Professor Phillipson described this as “a problem in the drafting of the Act” and observed that:
What we found out in the autumn was that, in some circumstances, the Commons may be so reluctant to allow the Prime Minister to set the date of the general election—obviously, the fear in that case was that it would be after the UK had left the European Union—that it is not willing to allow a general election to take place. In fact, if the Commons had been able to fix the date of the next general election, I think the problems with the Act would not have arisen in September and October last year.107
65.The Early Parliamentary General Election Act 2019 not only circumvented the two thirds majority, but also allowed Parliament to set the date of the election. The fact that the Act was passed by 438–20 votes, over two thirds of all MPs, indicates that the election date was an important factor in calling the election. Professor Twomey, University of Sydney, said that section 2(7) was a “flaw” in the Act, in particular she expressed concern that a Prime Minster could continue in Government for some time following a vote of no confidence under the Act.
The Prime Minister could choose to advise the Queen to set a polling date 6 months in the future, or later, or could delay giving any advice on the subject to the Queen at all. The Government could then keep governing, without confidence, and no election could be held until the Prime Minister decided the time was propitious.108
66.There was considerable support in evidence received by the Committee for the House of Commons being able to set or have a role in approving the date of an early election.109 For example, Professor Russell and Professor Hazell suggested that existing provisions of the Act could be adapted to achieve this and simplify the process.
The process to set a date for an election explicitly approved by Parliament is also currently a two-step process, which is unnecessarily complex. Section 2(2) could be amended to require a motion stating that “That there shall be an early parliamentary general election held on [X date]”. In the event of an early election following a no-confidence vote and the elapse of the 14- day period, the Act could specify a limited period within which an election should be held.110
67.Professor Twomey similarly suggested that an election following a no confidence vote could be required to take place either within a 40-day period, or be specified in the no confidence motion.111
68.When asked about the idea of the House of Commons having a role in setting the date for the election the Minister told us:
On balance, probably it would be detrimental to the nature of the prerogative to say that the Commons ought to set that date, because the entire idea of the prerogative is that it exercised by the Queen on the advice of her Ministers. That does suggest that such a power would stay with the Executive rather than necessarily the legislature. But to return to why you ask that question, I do recognise that that was a specific issue thrown up by the events of last autumn.
69.It is clear that the inability for the House of Commons to set the date combined with an apparent lack of trust in the Prime Minister, contributed to the paralysis last autumn. There was support in our evidence for the view that allowing the Queen to set the date on the advice of a Prime Minister was a deficiency in the drafting of the Act. Given the Government’s stated reasons for seeking to repeal the Fixed-term Parliaments Act, it is important that consideration is given to mechanisms providing the House of Commons with the power to set the date of an early general election. The Committee recommends that the review committee consider this issue and the advantages and disadvantages of the power to call an early election and to set the date for that election being held by different institutions or whether the election state should be set in statute with a limited power of delay, as is presently the case in regards to the scheduled election date.
70.The issue of confidence is central to the UK’s system of parliamentary democracy. The FtPA has not changed this fact, as our predecessor committee clearly set out in its report The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011.112 In this report, PACAC clearly established that the FtPA included a route (section 2(3)) by which a no confidence vote could directly trigger a general election, but this did not replace the pre-existing conventions regarding confidence.
71.This previous conclusion was endorsed by Professor Twomey in her evidence to this inquiry, stating “it [is] clear the conventions regarding confidence were not dispensed with as a consequence of the application of the Fixed-term Parliaments Act”.113
72.Sir Stephen Laws, who oversaw the drafting of the Act, was clear that “the law only deals with what the law deals with, and the rest you have to work out for yourself”.114 He went on to explain that the Act did nothing to change the precedents surrounding confidence.
73.There are two interlinked problems with the understanding of the Act and how it relates to the confidence conventions. The first problem, as Professor Phillipson set out, was that it was assumed because there was a statute “that it should deal with everything, whereas, in fact, the statute only dealt with the circumstances in which Parliament should be dissolved early.”115 The second problem, as Sir Stephen Laws set out, was that “lots of people were taking statements of convention and setting them out in words, saying, “if the Government is defeated on a vote of confidence, it must resign or submit itself to an election,” and then trying to construe those words as if they were set out in a statute and it was law.”116
74.One of the areas that has caused the most confusion has been what happens during the 14-day period following a vote of no confidence under the Act.
75.Lord O’Donnell told us that, as Cabinet Secretary at the time of passing the Act, he thought “everyone knew what the new rules of the game were”.117 When asked how the confidence principle should be dealt with in future he said that whether it is in convention or law, comes down to “whether you trust people to behave properly or not”.118 The issue of trust in the Government and the Prime Minister was clearly in question last Autumn, as the concern over the setting of the election debate set out above demonstrated. Further concern over how the Prime Minister would act if a no confidence vote was passed was also expressed in the evidence received.119 In August 2019, it was reported that the Prime Minister would not resign even if a no confidence vote was passed and another person could command the confidence of the House.120
76.The ambiguity and uncertainty as to how conventions were followed and enforced is not new to the FtPA. The Institute for Government reflected:
There was ambiguity over confidence conventions in the old system just as in the new—in particular, over whether a Prime Minister was obliged to resign following a vote of no confidence. There was also some ambiguity over the circumstances in which the Monarch could, and should, refuse a Prime Minister’s request for a dissolution. In our view, any attempt to remove those ambiguities in the repealing legislation is likely to end in tears.121
77.The final issue raised in concern as to the operation of the FtPA and confidence was as set out above that the Act removed the ability of the Prime Minister to attach confidence to a substantive vote. That is for the Prime Minister to be able to tell the House that voting against the Government would directly lead to a general election. As Sir Stephen Laws explained, this was one of the changes made during the passage of the Bill. The Bill’s original clause relating to confidence would have used a Speaker’s Certificate to certify that a motion passed was a no-confidence motion. This, Sir Stephen explained, would have “allowed the Speaker to say that something else was a vote of confidence.”122 He felt that “back me or sack me is an essential part of any new system” replacing the FtPA. In evidence to the Committee, the Minister indicated that the Government is considering making it possible for a vote to be designated as one of confidence, which if lost would trigger an election.123
78.Both Professor Schleiter and Professor Cowley were clear that re-establishing the practice of a Prime Minister being able to attach confidence to substantive vote is an issue of political judgement. They argued that the removal of the Prime Minister’s ability to do this was in line with the purposes of the FtPA in removing the power of the Prime Minister to dissolve Parliament against the will of the House of Commons, and giving the House of Commons the power to decide the next steps. As such including the ability of the Prime Minister to attach the direct threat of an election to a vote on an issue, would strengthen the executive, in particular the Whips office, and weaken Parliament.124
79.The principle that the Government must have, and retain, the confidence of the elected House of Commons is fundamental to our system of Parliamentary democracy. The Committee fully endorses the findings of our predecessor Committee on the operation of confidence since the establishment of the Fixed-term Parliaments Act, and recommends it to the review committee and the Government as an authoritative account of the issue.
80.It is clear that some mix of statue and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.
81.The Fixed-term Parliaments Act is compatible with the confidence principle and has not divorced confidence from dissolution. If the House of Commons wanted to trigger dissolution by removing confidence from the Government, it has that power under the Act. However, as was seen last year, the Act has created a situation where the Government can lose the confidence of the House, but the House is not prepared to trigger an election or support an alternative government. This is an unacceptable situation as it leaves the UK without a government that has the legitimate authority to govern. The ultimate responsibility for this situation under the Fixed term Parliaments Act rests with the House of Commons.
82.Providing the House of Commons with the power to set the date of an election could provide one route to avoid unnecessary paralysis at times of deadlock.
83.Changing the current arrangements to allow the Government to designate a vote a matter of confidence that if lost would trigger a general election—an established practice under the old arrangements—could be a retrograde step. If it were included in any future arrangements, it would clearly empower the Executive (via the Government Whips) and weaken the House of Commons, in particular Government backbenchers. This would be a matter of political judgment and the Committee does not advocate one way or the other at this point. The Committee recommends that proposals to include the ability for the Government to designate a vote of confidence are included in the review committee’s terms of reference, and if this is to be taken forward, it is given proper consideration by the House.
93 If a motion is pressed to a division in the House.
94 HC Deb, 19 April 2017, col 681–712
96 HC Deb, 15 January, col 1122–1125; HC Deb, 16 January 2019, col 1171- 1275;
97 Graeme Cowie, The Benn-Burt Bill: Another Article 50 extension?, House of Commons Library insight, September 4 2019; HC Deb, 3 September 2019, col 140
98 HC Deb, 4 September 2019, col 291–316;
99 HC Deb, 09 September 2019, col 616–645; HC Deb, 28 October 2019, col 54–80
109 Q95; Q121; Thomas Fleming (FTP0006); Professor Meg Russell and Robert Hazell (FTP0011); Professor Anne Twomey (FTP0003)
112 Public Administration and Constitutional Affairs Committee, Fourteenth Report of Session 2017–19, The Role of Parliament in the UK Constitution Interim Report The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011, HC1813
120 Steven Swinford, ‘Johnson to defy any vote of no confidence: Refusal to quit risks drawing Queen into politics’ The Times, 6 August 2019
Published: 15 September 2020