Report Contents

---

1The remit of the Committee

Background

1.This Committee has been established to fulfil two functions: to carry out the statutory review of the Fixed-term Parliaments Act 2011 itself, and to review the Government’s draft bill repealing that Act.

2.Subsection 7(4) of the Fixed-term Parliaments Act 2011 provides:

The Prime Minister must make arrangements—

(a) for a committee to carry out a review of the operation of this Act and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act, and

(b) for the publication of the committee’s findings and recommendations (if any).

3.Although the Act does not require the Committee to be a Joint Committee, subsection 7(5) provides that a majority of its membership are to be members of the House of Commons. In putting forward the compromise in place of amendments proposed by the House of Lords, the Parliamentary Secretary to the Cabinet Office, Mark Harper MP indicated the review was to be timed to be reviewed after the first full fixed term.1 The statutory review was seen as a better alternative to a sunset clause, which would have repealed the Act after a given amount of time and (potentially) left some uncertainty as to what rules there were on dissolution thereafter.

4.Section 7 of the 2011 Act envisaged that after the first complete cycle of the Fixed-term Parliaments Act2 the review body would make recommendations about whether, and if so how, the Act should be amended or repealed in light of that experience. It would be for the Government to respond to the review, and bring forward (if desired) legislation either to amend or to repeal and replace the Act which would be subject to normal scrutiny including, if they so wished, scrutiny by the relevant Lords and Commons select committees.

5.This review is taking place in very different circumstances from those envisaged by the Act. Since the Act was passed only one Parliament has reached its full term. At the 2019 General Election the Conservative and the Labour Parties included in their manifestos a commitment to “get rid of” and to “repeal” (respectively) the Fixed-term Parliaments Act. The Rt. Hon. Mark Harper, who was the Minister responsible for the Fixed-term Parliaments Bill, noted in evidence to PACAC’s inquiry that, whereas the 2017 Conservative Manifesto proposed a “repeal” of the Act, the commitment in the 2019 Manifesto used “a rather less specific form of words.”3 Although there are subtle differences in their respective positions, the manifestos of the two major parties provide the democratic context for this Committee: while mindful of the need to conduct the statutory review, we have focussed more on how the Act should be replaced than how it might be amended. It is also clear that mere repeal of the Act, without any form of replacement, would create legislative uncertainty and a constitutional lacuna, as the only statutory provision regarding the holding of parliaments would then be the remaining elements of the Meeting of Parliament Act 1694. This would clearly be unacceptable.

6.It is a widely expressed criticism of the Fixed-term Parliaments Act 2011 that, as it was a first session Bill, even though a major constitutional change was proposed, a draft Bill was not produced for pre-legislative scrutiny. In its report on the Act, PACAC welcomed 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 prelegislative scrutiny.4

7.In response to PACAC the Government rejected the proposal that the review of the Act should take place in advance of the production of a draft bill, citing the manifesto commitment to repeal the FtPA:

to ensure this draft Bill receives adequate parliamentary scrutiny, it is appropriate that this Joint Committee of both Houses is, alongside its consideration of the FtPA, given the opportunity to scrutinise the Government’s draft Bill. The FtPA was rushed and what replaces the FtPA must be subject to greater scrutiny so that we do not repeat this mistake with a core part of our constitution.5

8.It is welcome that the Government has brought forward draft legislative proposals; it was profoundly unsatisfactory that the timing meant the major constitutional changes brought about by the original Act could not have pre-legislative scrutiny. We have accordingly taken both parts of our remit very seriously. The Committee has consciously sought to carry out its statutory duty to review the 2011 Act in its own right, and has not confined itself to the Government’s specific proposals for its repeal and replacement. We have considered a range of ways the 2011 Act could plausibly be replaced in addition to the Government’s own proposal, in order to inform the debates on legislation that are expected to follow in the next Parliamentary session.

Timing

9.The 2011 Act required the Government to establish a Committee at some point between 1 June and 30 November 2020. The Committee was set up in late November 2020, meeting only for the first time on Thursday 26 November. It was initially given until Friday 26 February 2021 by which to report, though this was later extended to Wednesday 31 March 2021. The next election is not currently scheduled to take place until Thursday 2 May 2024.6

10.The Committee notes that both PACAC and the Lords Constitution Committee were able to consider these matters for considerably longer than it has been able to, and that the Government could have set-up this Committee up to six months earlier than it did. Against a tight reporting timescale, which included the Christmas recess, the Committee has been fortunate to be able to draw upon the existing evidence and analysis provided by both of those Committees in their respective reports.

11.The Committee has also been greatly assisted by those who submitted written evidence to this inquiry, and appeared as witnesses. We received 24 written submissions and held 8 oral evidence sessions. We were able to draw on the experience of distinguished academics with both UK and Commonwealth perspectives, former Supreme Court judges, those who had held high office in the Civil Service and in Parliament, expert lawyers and experienced political practitioners. This range of theoretical and practical experience has enriched our Report, indeed, has been essential, and we are very grateful to all those who took time to participate in the inquiry.

12.We strongly urge the Government not to repeat the mistakes made in not sufficiently scrutinising the Fixed-term Parliaments Act 2011. This means allowing sufficient time for Parliament (including its Select Committees) to explore the full implications of the legislation when it is introduced. It is important that such constitutional legislation secures as wide a degree of cross-party agreement as possible, so that it can stand a chance of lasting more than a single parliament.