The Fixed-term Parliaments Act 2011 Contents

Conclusions and recommendations

The purpose and effect of the Act

1.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. (Paragraph 17)

2.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. (Paragraph 18)

3.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. (Paragraph 19)

4.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. (Paragraph 23)

Review committee

5.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. (Paragraph 34)

6.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. (Paragraph 35)

The prerogative of dissolution

7.The question of whether or not the dissolution prerogative can be restored is a complex one, which involves fundamental constitutional principles. It clearly was the intention of the Government in 2011 to abolish the prerogative, but the wording of the Act is less conclusive on this point. Some also hold the view that the fact of abolition does not even matter. As all the evidence to this inquiry makes clear, this is a highly contested issue. There are also questions as to what exactly would be revived and for example what the legitimate expectations of the Sovereign as a constitutional backstop would be. This is of particular concern in light of the Supreme Court’s recent decision about the prerogative power of Prorogation. It is clear that attempting to revive the prerogative would invite the courts to make the final decision on these issues. These are core political and constitutional questions that neither Parliament nor government should abrogate to the courts. Even if there is a desire to return to the old system for dissolution and calling elections, it would be better setting these arrangements in statute rather than engaging in an unnecessary attempt to revive a prerogative which could have considerable unintended consequences and implications. (Paragraph 50)

8.While not all members of the Committee would oppose such a move, it is also cognisant that reviving the prerogative would mean taking a power that is set out in statute and regulated by Parliament and handing it back to the Crown. Whether or not adequate consideration was given to the full implications of removing the prerogative in 2011, Parliament now has responsibility for this area of the UK political system. The Government should not simply rely on reviving the prerogative, but look to establish a new, robust system for dissolution and calling of elections in the UK. (Paragraph 51)

Early elections: avoiding paralysis and propping up of weak governments

9.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. (Paragraph 63)

10.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. (Paragraph 69)

11.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. (Paragraph 79)

12. 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. (Paragraph 80)

13. 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. (Paragraph 81)

14.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.
(Paragraph 82)

15.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. (Paragraph 83)

Prorogation

16.The Supreme Court’s decision in the Miller-Cherry case highlights that at the heart of the UK’s constitutional arrangements is a fine but constantly-shifting balance of convention, principle and law, that provides clear guidance, but also flexibility. These arrangements, when working successfully, rely as much on self-regulation and collective approbation as they do on the hard edge of the law. This is not a constitutional system in which the courts are intended be the ultimate arbiter. In areas of prerogative power, the Sovereign remains the constitutional backstop. However, the prorogation case raised questions over the extent to which the Sovereign is now able to perform this role, especially if the convention that the Sovereign should not be drawn into politically-objectionable matters is not adhered to. A range of options of how to prevent this have been suggested to the Committee, including setting out the power of prorogation in statue. The Committee recommends this is included in the review committee’s terms of reference. (Paragraph 94)





Published: 15 September 2020