Report Contents

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2Review of the Fixed-term Parliaments Act 2011

13.The Fixed-term Parliaments Act (FtPA) may have been introduced as a response to the coalition, but reform of the prerogative system of dissolution and calling of Parliaments had been considered well in advance of the 2010 General Election. Our operational review of the 2011 Act itself accordingly considers four distinct but related questions:

a)The arguments made for a semi-fixed term system;

b)Why the Act was introduced;

c)Did the Act achieve its aims;

d)Did the Act have unintended and/or undesirable constitutional or political consequences?

The arguments made for a semi-fixed term system

14.Proposals for fixed term parliaments have been made by various commissions, and set out in private members bill since the 1990s.7 Several observers have identified a clear direction of travel to bring prerogative powers under greater democratic control, usually through greater Parliamentary scrutiny or approval, or by giving statutory force to rules that previously relied on prerogative powers, executive discretion and constitutional conventions.8 The Constitutional Reform and Governance Act 2010 is a clear example of establishing greater statutory and parliamentary control over hitherto unregulated prerogatives: giving a statutory underpinning to (a) Parliament’s role in treaty ratification and (b) the Civil Service, Diplomatic Service and Special Advisers’ Codes.9

15.The move to reduce executive dominance in key parts of the UK constitutional arrangements by making powers more accountable to Parliament was accompanied by a desire to clarify and make public the understanding of constitutional conventions. In 2007 the White Paper on the Governance of Britain proposed a range of reforms to the use of prerogative powers.10 One of the proposals was to establish a new constitutional practice to give the House of Commons a vote on whether Parliament should be dissolved before its maximum term had expired, although this was not implemented.11 During this period the Government also started to draw up a draft of the Cabinet Manual, with the purpose of making publicly clear the laws, conventions and rules on the operation of Government. As part of this process, draft chapters from the manual were shared with the relevant select committees for consultation in advance of the 2010 election. This move to greater formalisation and transparency on conventions was continued when the Coalition Government published the Cabinet Manual.

16.At the 2010 General Election, the Labour, Liberal Democrat, Plaid Cymru and Green Party manifestos all committed to change the law and practice on general election cycle by introducing or supporting fixed-term legislation.12 The Conservative Party’s manifesto at that general election contained no specific commitment to do with the dissolution and calling of Parliaments, but did include a general commitment to “greater democratic control” of the Royal Prerogative “so that Parliament is properly involved in all big national decisions.”13

17.The need to sustain the coalition explains why the Conservative Party was prepared, in 2010, to commit to introducing semi-fixed term Parliaments despite there being no specific commitment in the Conservative manifesto. However, it does not explain why other parties in that election had manifesto commitments to introduce fixed or semi-fixed term legislation. The “principled” rationale for fixed-terms legislation, as made in 2010 and advocates of it since, can broadly be summarised as follows:14

a)that a prerogative or executive power to dissolve Parliament provides an unjustified incumbency advantage, as the precise timing of an election can be chosen to coincide with periods of relatively greater popularity or strength or to pre-empt anticipated negative events;15

b)that a prerogative system of dissolution confers disproportionate power and influence on the Executive over the existing Parliament, especially but not exclusively in the context of minority governments;16

c)that fixed-term Parliaments make coalition governments and those with confidence and supply arrangements more viable, lessening the risk of unnecessarily frequent or opportunistic elections;17

d)that a more fixed election cycle is better for both civil service and electoral administration planning and encourages more long-term thinking in Government;18

e)that a more fixed election cycle is also better for political parties and prospective parliamentary candidates, as selection processes and regulated election spending periods are able to operate on a more predictable timeline;19

f)that speculation about an early election may unnecessarily unsettle commercial and economic decisions; and

g)that Parliamentary business, including the work of Select Committees, can be planned and carried through with less risk of interruption.20

18.While witnesses drew attention to each of these potential advantages, the proposal for fixed-term Parliaments gained traction in the UK context as a way of reducing the incumbency advantage and the power of the executive, so we spent some time exploring this in depth.

Incumbency advantage?

19.One of the main arguments against a prerogative system of dissolution and calling of Parliaments was that of perceived incumbency advantage: that a Prime Minister could choose the point in the electoral calendar in which they felt most likely to be able to win the ensuing general election. Although this did not always mean that incumbents would win general elections, the ability to calibrate the election cycle unilaterally was perceived to aid incumbents, even when most of those following politics closely could (roughly) anticipate when an election would most likely take place. As Lord O’Donnell put it in evidence to PACAC:

From a constitutional point of view, people could see that [fixed-terms] created a fairer system: it removed the bias towards incumbents being able to choose [the timing of an election].21

20.To give a concrete example of this sort of advantage, we note the new system for establishing constituency boundaries, in which the parliamentary boundaries will be reviewed every eight years (rather than every five at present). The first review will be completed in mid 2023. The Order in Council containing recommendations of the Boundary Commission is sent directly to the Privy Council, without Parliamentary debate, and must be submitted within four months of the complete set of reports being laid before Parliament.22 This will potentially, in some circumstances, give Governments the opportunity to call an election early to avoid boundary changes.

21.There are two distinct questions:

a)Did the prerogative system provide an unfair incumbency advantage when compared to a fixed or semi-fixed term alternative?

b)If indeed there is an incumbency advantage associated with the ability to choose the timing of an election, is that constitutionally or democratically justified?

22.Professor Petra Schleiter of St Hilda’s College, Oxford and others have examined the existence and extent of incumbency advantage under systems where the Government controls the election date.23 In a study of UK elections since 1945 and a comparative study of 27 European countries it was argued that there is a statistically significant incumbency advantage (whether measured by vote share or by seats) in systems where the Executive, rather than the Legislature, decides when elections are to take place, even when early elections were widely expected.24 PACAC also concluded that the old system enabled “the incumbent party of government to time an election to gain an advantage over its opponents.”25

23.The Government does not accept that the old system provides an inherent advantage to the incumbent party. The Rt Hon Michael Gove, the Chancellor of the Duchy of Lancaster told the Committee:

There are numerous examples that I mentioned in my evidence where a snap election has been called, and the incumbent Government has been unsuccessful at the polls. Of course, the historical record has shown that a Prime Minister who seeks to call an election have taken advantage of favourable poll ratings. It has generally been the case since 1945 that Prime Ministers enjoying a significant lead in the opinion polls have called an election four years into a five-year Parliament. However, there is no evidence that requiring them to wait a further year would have significantly impacted on the subsequent election results.26

24.The Chancellor of the Duchy went on to assert that incumbency advantage, if it existed, was only part of the picture, in effect asserting a democratic justification for early elections:

We do not believe that this has any bearing on the conduct of a free and fair election. All political parties and candidates are subject to the same election rules, including the prevailing limits on spending. It is not undemocratic to hold an (earlier) election: rather, it is an expression of democracy.27

25.We note that this argument could equally be advanced in favour of annual or more frequent general elections although the Government prefers to stick with five year terms. We accept that the right to determine the date of an early election may give the government an incumbency advantage. After all, no government chooses to hold an early election unless it thinks it is going to win. However, this might be outweighed by other factors and no one can predict the course of an election campaign. Professor Bogdanor, Professor of Government, Kings College London, considered “The fundamental purpose behind the Fixed-term Parliaments Act was to take away the alleged advantage held by an incumbent Prime Minister to choose the date of dissolution.” He identified many respectable reasons for an early dissolution: a new prime minister seeking a new mandate, for example, a new mandate for a new policy; an existing Parliament becoming unviable or, although it had not occurred in the UK, the change of coalition partner in a coalition. In his view “Voters are perfectly capable of making up their own minds on whether the reasons given by a government for an early dissolution are satisfactory.”28

Enabling coalition or minority government

26.Hung parliaments have been relatively rare in the UK in the last fifty years, in part because the House of Commons is elected under a First Past the Post electoral system, in which typically 80–95% of the seats have been won by the two largest parties. However, there have been periods, including in relatively recent political history, when hung Parliaments have been returned by the electorate.29 There are also examples of Governments with small majorities or confidence and supply arrangements subsequently losing a working majority, without necessarily and immediately losing the confidence of the House of Commons.30 Moreover on a number of occasions between 1906 and 1945 the UK had a Minority Government, a Coalition or a National Government incorporating several parties. There is no guarantee that the future will not see more frequent minority and coalition governments.

27.The conditions in 2010, although unusual in UK politics, were not unique. Coalitions and confidence and supply arrangements, by their very nature, are agreements between political adversaries to cooperate, in order that a government can be formed or preserved. The electoral incentives of a Prime Minister need not always align with those of other parties involved in that bargain or pact. It is therefore unsurprising that smaller parties would want specific assurances about the rules on dissolution, so that an early election would not disadvantage them in order to favour the larger, but still minority, party. Rt Hon Sir Oliver Letwin, who had been Minister for Government Policy and Chancellor of the Duchy of Lancaster in the Coalition Government, suggested that:

[ … ] if, as is not at all impossible, a coalition has to be formed after the next election to provide a stable Government, it is very likely—this is one of the central ironies of our history—that a new Fixed-term Parliaments Act will have to be enacted.31

28.In contrast, Lord Butler of Brockwell, who had been Cabinet Secretary from 1988 to 1998, considered the Fixed-term Parliaments Act as “a solution that didn’t work to a problem that didn’t exist.” In his view, “There is no doubt that if, in 2010, the Government had decided to ditch the Lib Dems and call a general election, it could have got the necessary majority in Parliament to do that, because Labour would have agreed to calling a general election.”32

29.It is possible that concerns over incumbency advantage will increase. There are likely to be hung Parliaments or confidence and supply arrangements in future. No Parliament can bind its successor, but an important aim of any constitutional arrangement, and therefore for this legislation, must be that it will be equally suitable for whatever the parliamentary arithmetic provided by the electorate.

Why the Fixed-term Parliaments Act was introduced

30.As Sir Oliver Letwin told the Committee, while the old prerogative system “had always seemed, to many of us, a slightly bizarre arrangement that favours incumbency”, the commitment in the Conservative manifesto was not a reference to fixing the term of Parliaments but “was intended more as a reference to things such as going to war.”33 The pragmatic rationale for fixed-term legislation in 2010 was to secure the Conservative-Liberal Democrat coalition, and legislation to introduce semi-fixed terms was a core provision of the Coalition Agreement .34

31.In evidence to PACAC’s inquiry, Lord O’Donnell, the Cabinet Secretary in 2010, explained:

Right at the start of the coalition, you have to understand, there probably wasn’t that much trust, if I’m perfectly blunt about it, so [the Liberal Democrats] wanted an absolutely clear commitment that there would be no snap election, and the way to do that was to legislate for a fixed-term Parliaments Act.35

32.Sir Oliver Letwin, who had been part of the Conservative negotiating team in the coalition talks, confirmed that:

The purpose [of the Fixed-term Parliaments Act] was to enable the coalition to be formed. One of the principal demands of the Liberal Democrat side of the coalition, when we came to discuss the whole proposition, was that there should be no ability for the larger of the two parties—the Conservative party—within a coalition Government to spot the moment when it would be convenient to ditch the coalition by seeking a dissolution.36

33.Sir Oliver considered that the coalition “would probably not have worked as well” without the reassurance a fixed-term gave to both of its participant political parties.37

34.The consensus view of those involved at the time seems to be that forming a Conservative-Lib Dem Government in May 2010 would have been much more difficult, and perhaps impossible, without some sort of legislative obstacle to a Conservative Prime Minister being able unilaterally to call an election without some significant level of Parliamentary approval.38

Did the FtPA achieve its aims?

35.The FtPA achieved its immediate aim. The 2010–15 Parliament was the first one in modern history to expire by operation of law at the end of its maximum term. Even those which have run close to the limit in the past have still been dissolved “early” by the Monarch, even if only by a few days. The Fixed-term Parliaments Act very clearly fulfilled its immediate political purpose. Not only did the Parliament last the full term, so did the Coalition Government that was formed at the beginning of it.

36.It is less clear, however, that it achieved its stated aims thereafter, or that it fulfilled the more general aspirations for a system designed to at least encourage the assumption Parliaments should run their full term. Theresa May replaced David Cameron as Prime Minister on 13 July 2016. A general election was held some 11 months later, on 8 June 2017.

37.Mrs May’s replacement by Mr Johnson on 24 July 2019 was not followed by an election, but on three occasions, 4 September, 9 September and 28 October 2019, the Johnson Government sought Commons approval for an early General Election. On all three occasions, the statutory motion was approved by a simple majority of MPs, but by an insufficient level of support to trigger a General Election under the Act.39

38.On the first two occasions in September, the Government’s proposal appeared, in essence, to be that there should be a General Election immediately before a European Council summit on 17–18 October 2019.40 If the Government won the election, it would seek to negotiate and ratify a Brexit deal in the remaining fortnight before the (then) Article 50 deadline of 31 October 2019, or failing that leave the EU without a withdrawal agreement. If it lost the election, it would be for a new Government to decide what to do instead. Labour Party MPs mostly abstained on or voted against the early election motions. Its stated reason at the time for not endorsing the motions was that backbench legislation (the EU (Withdrawal) (No. 6) Bill), should first be given Royal Assent and take effect.41

39.By the time the third early general election motion was debated on 28 October, the Government had reached agreement in principle with the European Union on a withdrawal agreement, Article 50 had been extended by three months to 31 January 2020, and the European Union (Withdrawal Agreement) Bill had received its Commons second reading. However, the Government was unable to progress with the Bill: the House of Commons had rejected the Bill’s programme motion.42 For a third time, a majority of MPs either opposed or abstained on the Government’s early election motion. Just three days later, however, Royal Assent was granted for the Early Parliamentary General Election Act 2019. That Act overrode the FtPA, providing for an early election notwithstanding the fact that neither of the Act’s “triggers” had been deployed. The 2019 Act passed with the support of 440 MPs (six more than would have been required to meet the two-thirds threshold under an FtPA motion). The only substantive difference between the statutory motion rejected on 28 October and the Bill was that the former did not specify polling day whereas the latter did, removing the Prime Minister’s discretion to recommend the date.

40.The Government has argued that the fact early elections in 2017 and 2019 took place means the FtPA has failed in its core objectives; the Act has not made the electoral cycle more predictable. As Rt. Hon. Jacob Rees-Mogg, the Leader of the House of Commons, said to the Procedure Committee on 1 February 2021: “the Fixed-term Parliaments Act turned out to be anything but a Fixed-term Parliaments Act.43

41.Despite its short title, the FtPA was not designed to fix the term of a Parliament regardless of the political context. The long title better explains the intentions of the legislation, namely: “to make provision about the dissolution of Parliament and the determination of polling days for parliamentary general elections; and for connected purposes.” It intended only to create, as Sir Stephen Laws, Senior Fellow at Policy Exchange and former First Parliamentary Counsel, put it, a “default expectation” that a Parliament would last its full term, rather than being dissolved four years after the election.44

42.The FtPA did not create a fully fixed system as exists for the Norwegian Parliament, or for election to Congress or President in the USA. The Act recognises explicitly, with the early election triggers in section 2, that;

a)there will sometimes be a broad consensus that an early election is needed (for whatever reason); or

b)in some cases, an early election must happen because no viable government can retain the confidence of the House of Commons and therefore govern both legitimately and effectively.

43.The 2011 Act’s triggers for early elections were a vote of no confidence, expressed in terms prescribed in the Act or a motion for an early general election supported by two-thirds of the membership of the House. (A two-thirds majority was the threshold set out in legislation for triggering early elections to the Scottish Parliament or the then National Assembly for Wales.) The original proposal in the Coalition Agreement, for a 55% threshold for an early general election was slightly less than the combined seat total of the Conservative and Lib Dem Parliamentary parties. The absolute two-thirds majority subsequently contained in the Fixed-term Parliaments Bill could not have been achieved without at least some support from the Official Opposition, given the Commons arithmetic in the Parliament at that time.

To what extent did the Act transfer power from the Executive to Parliament?

44.The 2015 Conservative Party manifesto described the FtPA as “an unprecedented transfer of Executive power.”45 There was a clear recognition that the changes made in 2011 were significant, in that they located the primary decision-making power with the House of Commons rather than with the Monarch or the Executive. However, in a parliamentary system of government, the difference in practice is less pronounced. The Executive normally commands a majority in the House of Commons, and the circumstances in which an Official Opposition would withhold support for a General Election are relatively rare. As Lord Butler put it:

If the Prime Minister with the agreement of the Opposition decides to shorten Parliament and have a general election, as happened in 2017, that is not difficult to do and, indeed, would normally be the case because the Opposition would not usually pass off the opportunity to get the Government out.46

45.It is reasonable to expect that, if a majority Government sought an early election, in the vast majority of cases the House of Commons would grant that request by the requisite statutory supermajority or, failing that, by a simple majority in an override Bill, as happened in 2019.

46.Professor Bogdanor suggested there was a tension in the aims of the Act:

The debate about the Fixed-term Parliaments Act indicates a conflict between two fundamental principles, the principle of parliamentary government and the principle of democratic government. The former principle provides that parliament shall choose the government, which is accountable to it, the second that the people should choose the government, and that government should be accountable to them. Normally, of course, under single-party majority government, [ … ] the two principles coincide.47

The supermajority requirement and the Implications of bespoke legislation in 2019

47.The Government has suggested that the requirement for bespoke legislation to trigger a general election in 2019 proves that the Act failed to provide a coherent system of rules for the holding of elections.48 Sir Stephen Laws, who was the First Parliamentary Counsel when the Fixed-term Parliaments Bill was being drafted, has said that the possibility of an override Act was always contemplated.49 Lord O’Donnell similarly described the possibility of an override Act as a “safeguard” against gridlock that might otherwise be caused by the supermajority requirement.50

48.The Early Parliamentary General Election Act 2019 illustrates an important wider point. It is impossible under the UK’s current constitutional framework—where Parliament remains legally sovereign—to entrench a supermajority requirement for early UK General Elections. Professor Alison Young, Professor of Public Law at the University of Cambridge, explained such modifications would require changes to the fundamental constitutional principles effectively agreed upon by Parliament and the Courts.51

49.Unlike a statutory early election motion, the Early Parliamentary General Election Bill 2019 was able to, and did, propose a specific date for the early election. Moreover, it then received the support, at Commons Third Reading, of more than two-thirds of MPs, even though it could have passed with only a simple majority. It was then unanimously approved by the House of Lords with no substantive debate. PACAC suggested that had the FtPA required an early election motion to set polling day, it is doubtful whether a bespoke Act would have been needed at all in 2019, given the eventual levels of support for an early election to be held on Thursday 12 December 2019.52 If there is to be a future replacement for the Fixed-term Parliaments Act consideration should be given to allowing the date of any early election to be stipulated in the motion triggering that election.

50.The Early Parliamentary General Election Act 2019 demonstrated the fundamental limits on statutes that seek to regulate the holding of general elections. It is doubtful whether a supermajority requirement can, under our current constitutional arrangements, be enforced unless the House of Lords actively resists an early election Bill. So far as it can be said the Fixed-term Parliaments Act attempted to enforce a supermajority constraint, in practice it did not do so. Moreover, the requirement for an Act of Parliament to override the super majority meant the decision making power no longer rested solely with the elected House. If there is ever a desire to reintroduce fixed-term parliaments the relevant legislation should not contain supermajority provisions.

Did the FtPA have unintended and/or undesirable constitutional or political consequences?

51.Two distinct but related criticisms have been made about the way the FtPA has operated in practice: especially during the period of minority government after the 2017 General Election. Firstly, the Government and others have argued that:

a)there was undesirable political gridlock or “paralysis” during that Parliament and especially so in 2019;

b)the FtPA either caused, or was a contributory factor; and

c)a prerogative system of dissolution would not have caused or exacerbated gridlock or paralysis in the same way.

Secondly, it has been argued that the FtPA’s “no-confidence” mechanism for triggering early elections is flawed in its design and has “muddied the waters” on the operation of conventions to do with confidence and government formation.53

Causes of political gridlock or “paralysis” in the 2017–19 Parliament

52.Under the prerogative system, Prime Ministers would sometimes seek to resolve political gridlock by declaring certain Parliamentary decisions a matter of confidence in the Government rather than by making further political concessions to members of the House of Commons. This was expected to lead to one of three outcomes:

a)The Government successfully getting its business through Parliament;54

b)The Government being defeated and the Prime Minister requesting a dissolution; or

c)The Government being defeated and the Prime Minister offering his or her resignation to enable a viable alternative government to be formed.55

53.The Government and others have argued that, by removing the second of those three options, the FtPA makes political gridlock more likely. A minority government, or one with only a small notional majority, might struggle to get its business through Parliament, but there could be no viable alternative government. If the House of Commons then also will not sanction an early General Election, what is left is constitutional gridlock. This risk is exacerbated where the House of Commons must approve an election by a supermajority, rather than by a simple majority. PACAC suggested this could leave “the UK without a government that has the legitimate authority to govern.”56

54.The 2017–19 Parliament was characterised by a combination of highly unusual political conditions, including:

a)a minority government;

b)fundamental Brexit policy disagreements

i)within the governing Conservative Party

ii)between the Conservative Party and its confidence and supply partners, the DUP; and

iii)within the Official Opposition, the Labour Party;

c)backbenchers forming alliances within and across parties to challenge Government policy on the Article 50 process;

d)a key Brexit deadline being set by EU law (under Article 50) over which neither the Government nor Parliament had direct control.

55.Sir Stephen Laws considered that the FtPA was a major contributor to the instability of the 2019 Parliament:

Giving the House of Commons the opportunity to withdraw confidence from the Government but to keep them in office and not submit itself and the Government to an election produces the situation we had at the end of last year—a Parliament that is unable to operate, that is paralysed.57

56.Rt Hon Dame Margaret Beckett MP also considered, even if the FtPA did not itself cause the gridlock of 2019, it was at best of little help in resolving it:

I think the FtPA muddied the waters. It meant people didn’t really know quite where they stood. We were in unprecedented circumstances anyway, so it was just another factor that added to the mess.58

57.In contrast, Sir Oliver Letwin doubted whether the FtPA was the driver of Parliamentary gridlock in 2019:

I do not believe the present Government’s view that [the Act] was the cause of crisis, stasis, inflexibility or whatever. What happened was that there were some very unusual circumstances—much more unusual than coalition. For the first time in modern British history—in fact, the first time in what is effectively parliamentary British history—the Government of the day had a majority and the confidence of the House for everything except for its flagship legislation, or flagship policy. [ … ] Apart from those circumstances, it worked pretty well. For example, when both Mrs May and Mr Corbyn wanted to have an election in 2017, there was one.59

58.Professor Robert Hazell, Professor of Government and the Constitution, University College London, also argued the FtPA contributed little, if anything, to the paralysis:

Even without that Act, we would have had a zombie Government unable to deliver their flagship policy, with a very weak Opposition unable to put the Government out of their misery. [ … ] it is a travesty to blame its dysfunction on the Fixed-term Parliaments Act.60

59.In contrast, Lord Butler suggested that, under a prerogative system, key Brexit votes, such as on the withdrawal agreement and on the EU (Withdrawal Agreement) Bill, would have been designated as matters of confidence. Defeat on those matters, especially by the large margins seen in January and March 2019, he suggested, would have led in short order to a dissolution request, the Monarch granting it, and a General Election being held.61

60.We acknowledge the political events of 2019 were extreme, and the Fixed-term Parliaments Act was not the sole source of difficulty. There is a risk of gridlock in any system which does not guarantee that a Government can either get its business through or can be sure of securing an election. The extent to which the risk of gridlock is a price worth paying for the benefits of fixed-term Parliaments is a political judgment Parliament itself must make if a future administration brings forward another piece of legislation to fix parliamentary terms.

Whether the “confidence” provisions in the Act are fit for purpose

61.A great deal of the working of Parliament and government is governed not by statute but by constitutional conventions. The 2011 Act enables a dissolution to take place following a statutory “no confidence” process. If the House of Commons adopts a resolution that states “That this House has no confidence in Her Majesty’s Government” the default position is that an early election will be triggered fourteen days later. It is only if the House of Commons adopts a resolution “That this House has confidence in Her Majesty’s Government” within that statutory window that an early election is averted. The second resolution might plausibly come about by reason of a change of:

a)Prime Minister;

b)party or parties in Government; or

c)policy or political circumstances

62.The operation of this fourteen-day process was not directly tested at any point as the one statutory confidence motion moved was defeated.62

63.The expectation that the Government must command the confidence of the House of Commons is at the heart of the UK’s constitutional arrangements: it is what makes Governments democratic and legitimate. However, this is not a legal requirement; it operates as a conventional constraint on the Monarch’s absolute power to appoint and dismiss a Government. The way that the House of Commons articulates the presence, or absence, of confidence in the Government, historically, was also governed exclusively by convention. In addition to explicit motions of confidence or no confidence, certain regular items of Parliamentary business were regarded as tests of confidence (such as votes on amendments to a Queen’s Speech and votes on Second and Third Reading of a Finance Bill) and Governments could (as mentioned above) designate key policy votes as matters of confidence. The Fixed-term Parliaments Act represented a partial departure from this approach, because it recognised in statute, and gave certain legal effects to, motions of confidence that took a particular form of words.

64.At the time of passing the Act the then Government clearly stated that:

The aim of the Bill is not otherwise to interfere with the conventions which govern the position where the Government loses the confidence of the House. The Government considers that such matters are better left to convention.63

65.As PACAC pointed out in a 2018 report, there is nothing in the Fixed-term Parliaments Act that prevents a Government from designating a policy vote a matter of confidence.64 What has changed is that defeat on that policy vote would no longer—directly—lead to a dissolution request that a Prime Minister could be nearly certain would be granted.

66.Professor Phillippe Lagassé, Barton Chair at the Norman Paterson School of International Affairs at Carleton University, Canada, argued that the FtPA altered fundamentally the political dynamics associated with designating or recognising a policy vote as being one of confidence:

When you remove the Government’s ability to request a Dissolution on a vote of confidence, that drastically changes the Government’s willingness to consider certain matters of convention or matters of confidence. When you then add as well the provision that a change in Government occurs through an explicit motion of no confidence, as the legislation did, that further reinforces the argument that was made, and that currently still exists, that matters of confidence that require a change in Government are only those that fall under section 2 of the existing legislation … .65

67.Despite the Government’s assurance that the FtPA would not change the conventions around confidence, it appears to have done so. Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney, argued that confidence would have operated differently under a prerogative system at key moments in 2019:

The May Government and the Johnson Government faced votes that in any ordinary circumstances would have been regarded as votes of no confidence—they were defeated on absolutely major policies. In the case of the Johnson Government, they were defeated on every single Division from 3 September to 15 October—if that is not losing control of the House, I don’t know what is—but in those circumstances they did not resign. [ … ] the Fixed-term Parliaments Act was used as some kind of a fig leaf to protect their position.66

68.Sir Malcolm Jack and Lord Lisvane, both former Clerks of the House of Commons, told us that it was a convention that, if the Official Opposition seeks to put down a motion testing the confidence of the Government, time is made for the motion.67 In December 2018 the Leader of Official Opposition put down a motion of no confidence “in the Prime Minister” for which the Government did not allot any time for debate.68 A month later, following the loss of a motion on Government’s deal to leave the EU, the Prime Minister Theresa May said in the House that:

… if the official Opposition table a confidence motion this evening in the form required by the Fixed-term Parliaments Act 2011, the Government will make time to debate that motion tomorrow. If, as happened before Christmas, the Official Opposition decline to do so, we will on this occasion consider making time tomorrow to debate any motion in the form required from the other Opposition parties should they put one forward.69

69.The statement that the Government would give preference to a motion from other opposition parties over the Official Opposition was unprecedented. In its response to PACAC’s 2018 report the Government took the view that the Act had “codified how motions of no-confidence operate, thereby changing constitutional practice and previous conventions.”70 The FtPA, the Government said, provided a clear statutory route to test confidence, and it was its view that this is the route that should be used.71

70.Sir Malcolm said that the Government’s position on allotting time in late 2018 and on prioritising statutory motions in the name of minor party leaders over non-statutory motions in the name of the Leader of the Opposition “certainly breaks” the convention on motions of no confidence tabled by the Official Opposition.72 Dame Margaret Beckett said that she thought the Prime Minister’s comment about precedence for statutory motions was “one of the most outrageous things I had ever heard.”73

71.Nothing in the Fixed-term Parliaments Act prevented the House of Commons from debating and voting on a motion of no confidence otherwise than in the terms provided for by the Act. Such a motion may even be more appropriate if it is the House’s intention to change the Government rather than to trigger a General Election. But despite the Government’s assertion that the Fixed-term Parliaments Act would not change the conventions on confidence, the events of 2019 show that it clearly did so, since confidence motions in the name of the Leader of the Official Opposition were not given time for debate. This removed the previously understood power wielded by the Official Opposition to bring to the floor of the House a motion of no confidence when it is judged necessary to test the will of the House. In addition, the Government was not able to define votes on any of its key policies as confidence votes.

The fourteen-day period under the FtPA

72.The FtPA does not set out what should happen, politically, if a statutory motion of no-confidence is passed in the Government. It only provides that an early general election should take place if the fourteen-day period expires without a statutory motion of confidence having being passed.

73.The intention of the Coalition Government was that this fourteen-day process should be used to establish whether an alternative government could be formed.74 Whereas previously the Monarch would consider whether (a) the existing Parliament was vital, viable and capable of doing its job and (b) another Prime Minister could be found to govern for a reasonable period with a working majority in the House of Commons, that responsibility would instead rest with the House of Commons.

74.Several witnesses raised concerns about the implications of the statutory period, and the political uncertainty it might create.75 In particular, the novel reference in the Cabinet Manual to the possibility of a Government “regaining” the confidence of the House has, as Dame Margaret Beckett put it, “muddied the waters” on the conventions to do with Government formation.

75.Commentators have noted the provisions about the fourteen day period in the Fixed-term Parliament Act raise the possibility that a Prime Minister could refuse to resign during the 14-day statutory process even where it was clear an alternative government could be formed.76

76.Although the confidence provisions of the Fixed-term Parliaments Act were never fully tested, they are clearly deficient. Giving statutory effects to some confidence motions, but not others, had the effect of undermining a shared understanding of the conventions on confidence and what the consequences of a loss of confidence should be.

77.A decision by the House of Commons to withdraw its confidence in the Government is one of major constitutional significance. A system which allows a Government formally to regain the confidence of the House after it has been lost diminishes the significance of that decision and fosters further uncertainty. The statutory fourteen day period in the FtPA serves no useful purpose and should not form part of any future arrangements for dissolving Parliament and calling elections.

78.Parliament should in future avoid putting any confidence motions on a statutory footing, or giving them direct legal effects. Doing so is unnecessary and risks disrupting important conventions on the formation and resignation of governments under our wider constitutional arrangements. Those conventions otherwise benefit from flexibility and being able to respond to unusual or unexpected political circumstances. Nonetheless, we recommend that the Procedure Committee of the House of Commons review whether some conventions on this matter would benefit from being expressed in Standing Orders.

Alternative approaches for replacement of the Act

79.Although both the Conservative and Labour manifestos in 2019 committed, respectively, to “get rid of” and to “repeal” the FtPA, neither party set out the nature of the system with which they proposed to replace it. It was open to the Government, while honouring its manifesto commitment, to replace the FtPA with a statutory scheme for the dissolution and calling of Parliaments. Given our statutory remit, we considered it sensible to explore other approaches.

A Continued role for the House of Commons

Amending the FtPA?

80.If the Committee had simply been asked to conduct the statutory review, without a clear democratic steer that the 2011 Act should be repealed it would have recommended, at the least, significant changes to the Act, including:

a)replacing the Commons supermajority threshold for triggering an early general election with a simple Commons majority;

b)requiring any early election motion to stipulate when polling day would take place; and

c)removing the “no-confidence” mechanism by which a general election could be triggered from the statute.

81.This would have had four advantages:

a)it would have simplified the dissolution rules while retaining a role for the House of Commons;

b)there would have been no need in future for bespoke legislation to trigger an early general election, restoring confidence in the statutory scheme;

c)it would have significantly mitigated the risk of political gridlock or “paralysis”, so far as the FtPA had been shown to contribute to it during the events of 2019; and

d)it would have enabled questions of confidence and government formation to be governed exclusively by constitutional convention, benefiting from the flexibility that comes with such an approach.

A new statutory dissolution power for the House of Commons

82.An amended Fixed-term Parliaments Act would have retained the current position, namely that an early general election can only be held if the House of Commons votes for it. An alternative approach would have been to repeal and replace the Fixed-term Parliaments Act. This would have the benefit of clarity, and would have made it easier to focus scrutiny on the proposals as a whole. There are several ways in which this might have been approached. The FtPA could have been repealed and replaced with a prerogative power, or statutory proclamation power (see below), exercisable subject to a simple majority House of Commons vote. But the key would be that dissolution would be in the hands of the Commons.

A new convention that the Commons be consulted

83.A final option to retain a formal role for the House of Commons in requests for an early dissolution would be to establish a convention that the Prime Minister would not seek an early dissolution without a resolution supporting a request in the House of Commons. This was the proposal recommended in the Governance of Britain white Paper in 2008.

84.Retaining a role for the House of Commons commanded a great deal of support in evidence to this Committee as well as PACAC and the Constitution Committee. A number of reasons were given for preferring a Commons vote of some form. These include the principled constitutional arguments made for the FtPA in when it was passed such as that it at least reduces the incumbency advantage compared to a system where the Prime Minister can choose the time of an early election (see paras 14–29).77 The argument was also made by a number of witnesses that a Commons vote would ensure that a decision to dissolve for an early general election would be non-justiciable. Robert Hazell and Meg Russell considered that “if the power of dissolution were left in the hands of Parliament, there would be no possibility of any intervention by the courts, and no need for any ouster clause.”78 In a similar vein Lord Sumption told us:

… section 9 of the Bill of Rights forbids the courts to question proceedings in Parliament … The courts have advanced in many ways the scope of judicial review, but they have always respected section 9.79

Dr Andrew Blick suggested such a vote would also insulate the Monarch from being placed in a position of choosing between refusing an inappropriate dissolution request and refusing the advice of a Prime Minister.80

85.Requiring a House of Commons vote for dissolution does, however, raise the possibility that situations could arise under a minority government or coalition government, where a Prime Minister wished to call an election but did not receive the backing of a majority of the House of Commons. Dame Margaret Beckett MP noted a vote on dissolution “will certainly be very embarrassing for a lot of MPs who know that they ought to vote for an election but don’t want to, because they fear the personal consequences.”81 In her view “it could cause complications. That is probably an argument against having a parliamentary vote on whether to have a Dissolution, and leaving it in the hands of the Prime Minister of the day.”82 When asked if she was in favour of a Commons vote, Dame Margaret said, “I am not opposed to the idea of a vote in Parliament, but I doubt whether, in the end, it will make all that much practical difference.”83

86.It would be possible to replace the Fixed-term Parliaments Act with a provision requiring a vote in the Commons before Parliament was dissolved. A minority of the Committee argues this would be the simplest and most obvious way of protecting the Monarch from being dragged into party political debate. The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.

New statutory powers

87.Repeal of the Fixed-term Parliaments Act could involve the creation of new statutory powers exercisable by the Monarch or even directly by the Prime Minister. This approach would have been similar in form to that adopted by other Westminster-derived constitutional systems, notably including Australia, South Africa and Ireland, where the role of the Heads of State in dissolving all, or part of, the legislature is set out in the Constitution, although of course each set of powers must be seen in the context of its wider constitutional settlement.84

88.Professor Alison Young suggested that a statutory scheme would be more accessible and readily understandable for non-lawyers than reverting, by historical reference, to the prerogative:

This is an important constitutional piece of legislation. It is important [ … ] to understand how these provisions work. To set that out very clearly on the legislation would make it very clear to the general public what the powers for the Dissolution of Parliament are and how they operate, which is not as clear when you say, “The powers as they were, exercised under a prerogative power that you may or may not know about in 2010, are to be revived.”85

Many of the questions arising from the Government’s approach, which are discussed in detail in Chapters 3 to 5 of this Report, are relevant to these powers, so we simply mention alternative approaches here: to consider each in detail would duplicate our work, and it seems best to focus on the draft Bill. Nonetheless, we wished to record other possible approaches.

A statutory proclamation power

89.A statutory scheme could but need not have, in substance, replicated exactly the legal rules underpinning the prerogative system of dissolution. For example, a statute could have said something as straightforward as:

Her Majesty may, by proclamation, dissolve Parliament before the expiry of its maximum term.

90.It would be possible to provide that the power (a) can only or (b) must be exercised on the recommendation of the Prime Minister, and to place limits on the circumstances in which the Prime Minister might make such a request.

91.This approach would raise questions about the extent to which the Monarch could legitimately refuse to exercise her power to dissolve Parliament which would be similar to those discussed in more detail below.

Statutory power of the Prime Minister

92.Alternatively, an Act would confer a statutory power on the Prime Minister to dissolve Parliament, whether by a form of written declaration or by way of a statutory instrument. The Monarch would not be involved even formally. Acts of Parliament have specifically empowered the Prime Minister to take a particular course of action before (e.g. the EU (Notification of Withdrawal) Act 2017).

93.This would have the advantage of making it clear where power lay, but would rely on convention to ensure that the power was exercised responsibly. It might be felt that there should at least be some judicial oversight of such explicit executive power.

The return to the status quo ante

94.The Government has chosen to legislate to return what it calls the “tried and tested” system that existed before 2011. However, its draft repeal Bill selectively preserves, and in other cases even develops further, arrangements that have been introduced by the 2011 Act or subsequent legislation. These include (for example):

a)maintaining the 25 working day statutory election period (which replaced the 17 working day election period from 2013);

b)making more flexible rules for polling day in the event of the demise of the Crown;

c)removing some legal uncertainty about the timing of when election writs are taken to have been received; and

d)ousting, via statute, the possibility of relevant prerogative powers being judicially reviewed.

95.Given that the Government has proposed not simply to revert to the status quo ante, but in some respects to develop or refine it, we have also considered whether or not there are other improvements to the law around elections which should be included in the legislation, or considered more widely.