This Committee had two tasks: to undertake the review of the operation of the Fixed-term Parliaments Act (FtPA) provided for in the Act itself, and to examine the Government’s proposals for the repeal of the Act, contained in its draft bill. Although both the Conservative and Labour Party manifestos committed, in different ways, to replace the FtPA it remained important to fulfil our statutory mandate to review that Act, not least because measures introduced by this Parliament cannot bind subsequent ones. It remains possible that the question of fixed-term legislation will be revisited in future.
Our review was meant to take place after the first full Parliament had run its course under the terms of the Act. There have, of course, been two further elections in that time. Proponents of fixed term parliaments consider that such arrangements have practical and principled advantages. In their view a reasonably foreseeable election timetable allows all concerned to plan; incumbency advantage is reduced; a system in which the vote of the elected House is required for an election reduces executive dominance; and such a system makes it easier to form coalition governments. Nonetheless, the reason for the introduction of the FtPA in 2011 was to enable the formation of the Conservative-Lib Dem coalition with confidence it would continue for the full Parliament As a first term Bill it had no opportunity for pre-legislative scrutiny. We considered it undesirable that any major constitutional change is brought about without careful consideration.
The Act is flawed in several respects. First, its supermajority requirement risks parliamentary gridlock, and lacks credibility given that, in 2019, it was overridden by bespoke primary legislation. Second, the existence of a statutory no-confidence motion has meant that a Government has felt able to refuse to put motions of no confidence in other terms to the House, even though they had been tabled by the Leader of the Official Opposition. Moreover, Governments have at times found it more difficult to get their business through Parliament and could no longer see an advantage in declaring a vote a matter of “confidence” because a defeat could not lead directly to a general election. Fourthly, the statutory 14 day period after a vote of no confidence was unsatisfactory. While it was clearly the intention and expectation that pre 2011 conventions would be adapted to the 14 day period, speculation on what could legally be done in this period has meant that the situation is unclear. While the current Government accepts that such actions would be inappropriate, there remains a distinct possibility that a future defeated government would seek to wait out the time and force an election, even though an alternative administration could otherwise be formed, adding to political uncertainty. Any review of the Act would have recommended major changes to remedy these flaws, even if it was considered the transfer of power from the Executive to the House of Commons had been desirable.
The Committee then turns to the Government’s proposals. While there has been a great deal of argument over how the FtPA had affected previous prerogative powers, the Committee is satisfied that the Government’s approach to its repeal and replacement is clear, and properly encapsulates its intentions.
The Committee notes that the intention is to revive the prerogative powers of dissolution and calling of parliaments. We consider that it is important there is some check on executive power. Under a prerogative system, that safeguard comes from the Monarch: it is understood that dissolutions are “requested” not “advised” by Prime Ministers and may, in exceptional cases, be refused. Any exercise of the Monarch’s veto will be extremely rare, and would come with a very serious risk of constitutional crisis. It is instead intended that the mere existence of the reserve power puts pressure on political actors to exercise greater restraint and to keep the Monarch above party politics. The Government should make it clear that this is its intention in reviving a prerogative system. It should avoid referring to “advice” in this context, given that such language wrongly implies the Monarch is bound to follow it.
The draft Bill contains an ouster clause of unprecedented width. The Committee understands the reasons why this drafting approach was taken. The intention was to make it clear that the decision to grant a dissolution, the request for a dissolution and any related advice given by the Prime Minister to the Monarch should not be justiciable.
Nonetheless there are concerns about this approach. While in suitable cases Parliament should be capable of ousting the jurisdiction of the courts, it should be very reluctant to do so. The extraordinary breadth of the ouster might lead to it being “read down” by the courts, rendering it less effective than a narrower alternative. Some consider that the same effect could have been achieved without such an ouster. Some consider that simply being clear that the decision dissolution was a personal prerogative of the Monarch would mean that the judiciary would not intervene. Others consider the same effect (non-justiciability) could be produced by requiring a vote of the House of Commons for an early dissolution. Nonetheless, the majority are satisfied with the Government’s approach. It is legitimate for Parliament to make clear where it believes constitutional boundaries should lie. An early dissolution puts power in the hands of the electorate so, if an ouster is ever appropriate, it is appropriate in this case. Nonetheless the Committee recommends that the Government considers whether a clearer and more limited approach to drafting the ouster might be as effective.
The Committee considered the minor changes to legislation required by the Bill. Since the Fixed-term Parliaments Act was passed subsequent legislation has increased the statutory period for an election from 17 to 25 working days. The Committee recognises the need to balance the requirement for ensuring that elections are fairly and properly administered with the public interest in doing without Parliament for a short a time as possible. It recommends that the Government should establish a cross-party working party to examine how the General Election campaign period can be shortened from 25 days without compromising voter participation, including through the increased use of technology and increased focus on year round voter registration. The working party should report its recommendations to Government as quickly as possible and in time to ensure any legislative requirements can be put forward in legislation for consideration before the expected date of the next General Election.
The Committee considers that the Government’s Dissolution Principles document is inadequate. It therefore sets out its own views of the constitutional framework around dissolution, confidence and government formation. A Government must command the confidence of the House of Commons. If it does not do so, then either the Prime Minister or the Government must resign to enable another administration to be formed, or a dissolution must be requested. It would be wrong to request a dissolution if a Parliament had a significant time to run, and it was clear another administration would be likely to command the confidence of the House of Commons. After the election, if there is a hung Parliament the incumbent Prime Minister should remain in place until it is clear who is best placed to form a Government. Throughout this process, all political actors should be careful not to draw the Monarch into party political controversy.