Report Contents

Conclusions and recommendations

Review of the Fixed-term Parliaments Act 2011

1.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. (Paragraph 5)

Consideration of the Government’s repeal proposals

2.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. (Paragraph 8)

3.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. (Paragraph 12)

Whether the 2011 Act met its aims

4.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. (Paragraph 29)

5.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. (Paragraph 35)

6.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. (Paragraph 49)

7.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 replace the legislation, it should not contain super majority provisions. (Paragraph 50)

8.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 matter of political judgment Parliament itself must make if a future administration brings forward another piece of legislation to fix parliamentary terms. (Paragraph 60)

Impact of the 2011 Act on confidence conventions

9.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 one 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. (Paragraph 71)

10.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. (Paragraph 76)

11.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. (Paragraph 77)

12.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. (Paragraph 78)

Whether the House of Commons should retain a say over dissolution

13.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. (Paragraph 86)

The Government’s draft legislation

14.The Government should adopt a title—and in particular a short title—that more fully encapsulates the subject matter and future function of the legislation. We recommend the Bill should be entitled the Dissolution and Summoning of Parliament Act. The draft legislation would not, after all, simply repeal the Fixed-term Parliaments Act (that is achieved by clause 1 alone), but replace its provisions. (Paragraph 101)

15.Although the relevant prerogative powers of the Monarch are not expressly stated in the Government’s draft Bill, their legal nature and scope are widely accepted and straightforward to explain. As long as there is clarity about what these rules are, and how the exercise of prerogative powers is governed by constitutional conventions to do with dissolution, calling of Parliaments, confidence, and government formation, this statutory approach is likely to be effective. We accept that, if the Government wants to return to the status quo ante, doing so by historical reference may aid certainty as to its legal intentions. (Paragraph 118)

16.The evidence we have heard suggests that the drafting of clause 2 of the draft Bill is sufficiently clear to give effect to the Government’s intention of returning to the constitutional position, in substance if not necessarily in form, before the passing of the Fixed-term Parliaments Act 2011. The potential legal uncertainty created by passing the Bill as currently drafted, as to the source of the power to dissolve parliament, would only become relevant for practical purposes if the question of dissolution was considered by the courts. (Paragraph 119)

17.The Government’s draft Bill transfers the power to determine whether or not there should be an early election from the House of Commons to the Crown. The Prime Minister will choose the time at which he or she will request a dissolution and the Monarch will decide whether to grant that request. But ultimately elections ensure the electorate—the ultimate authority in a democratic system—has the opportunity to exercise its judgment. (Paragraph 123)

The role of the Monarch under a revived prerogative system

18.The Dissolution Principles document describes both the powers to dissolve and to summon a Parliament as “personal” prerogatives. We understand the Government’s position to be that the Monarch’s power to refuse a dissolution would be a real one. If this is the case we believe that although it is unlikely that a Prime Minister’s request for a dissolution would be refused, the powers of the Prime Minister to fix the time of an election should not be unlimited and there would be some check on Executive power. If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to “advice” on dissolution with “requests” for dissolution since the Monarch must accept Prime Ministerial advice. (Paragraph 142)

19.In almost every case, a Prime Minister’s request for a dissolution would be granted. It is after all a request to put the matter in the hands of the electorate. Nevertheless, it is conceivable that there are some extreme circumstances in which such a request would be inappropriate. One such instance might be where a Prime Minister, having lost a majority in the Commons in a general election, sought a further election before an alternative government could be formed. If the Monarch’s role in dissolution is indeed to be more than purely ceremonial, there should be clarity about at least some of the circumstances where exercising a veto would, or at least could, be constitutionally appropriate. Although some uncertainty is inevitable, because of the very nature of a prerogative system and our constitutional monarchy, Parliament and the public should have a clear sense of why a Prime Minister cannot always expect to be granted a dissolution. Any situation in which the Monarch feels it is necessary to refuse a dissolution would place both the person and institution of the Monarch at the centre of an issue of political controversy. This is a serious and central responsibility of the Monarch that should not be lightly used or shied away from. (Paragraph 144)

20.The Government should consider further how best to articulate the role of the Monarch in this process, to build trust in the prerogative system they wish to implement. At the least, any revision of the Cabinet Manual should, unlike the initial Dissolution Principles document, address much more directly how the Monarch’s veto operates in practice. (Paragraph 145)

The ouster clause (clause 3) and the role of the courts

21.The Committee recognises that views differ as to whether the Government’s approach on justiciability is the best one. A minority of Members on the Committee, for example, believe that a House of Commons vote on dissolution would be a protection against impeaching and questioning by the courts because of Article 9 of the Bill of Rights 1688. Such a vote would, in their view, give a better guarantee than an ouster clause against unwarranted judicial involvement and would avoid setting a precedent for ouster clauses in future legislation. (Paragraph 160)

22.Some on the Committee have expressed doubts as to whether the “belt-and-braces” or “sledgehammer” approach of an ouster clause is really necessary if the courts will not, in practice, entertain legal challenges to dissolution. Provided it is clear that dissolution and calling of Parliaments are personal prerogatives, and that the Monarch’s veto over requests is real (rather than ceremonial) they are satisfied that the courts would never, or almost never, grant an application for judicial review of a decision to dissolve Parliament. (Paragraph 161)

23.The majority of the Committee accepts that the general presumption is that Parliament does not intend to oust the jurisdiction of the courts. The Executive should be accountable to both the courts and Parliament. Nonetheless, in principle, the majority believes Parliament should be able to designate certain matters as ones which are to be resolved in the political rather than the judicial sphere, and Parliament should accordingly be able to restrict, and in rare cases, entirely to exclude, the jurisdiction of the courts. This position is not inherently incompatible with the rule of law, even if ousting the courts’ jurisdiction will often be at tension with it so that a complete ouster will rarely be appropriate. In this case, when the power in question is to enable the electorate to determine who should hold power, they consider the ouster is acceptable. (Paragraph 162)

24.When Parliament legislates to restrict or oust the jurisdiction of the courts, it should use clear words, and be as explicit as possible about its intentions and the extent of the jurisdiction which it wishes to oust. In the light of previous judgments on other ouster clauses, we understand the Government’s approach to drafting. It is clear that the Government wishes to ensure the decision to dissolve one Parliament and summon another, any request for such a dissolution and the advice which may have underpinned the requests or the decision are not justiciable. To do this, it has considered it was necessary to take an expansive approach to drafting. We invite it to consider whether a clearer and more limited approach might be as likely—or even more likely—to be effective. (Paragraph 175)

Maximum term of a Parliament

25.The Committee sees no obvious reason why the gap between elections should be greater than five years. The maximum term of a Parliament should be five years from the date of dissolution of the previous Parliament, rather than from when the current Parliament first met. This would prevent the election cycle from “drifting” if successive Parliaments reached, or very nearly reached, their maximum terms. (Paragraph 179)

Ensuring an election period starts immediately following dissolution

26.Under the Government’s proposals, the dissolution of Parliament does not automatically trigger the statutory election period. It would be possible, legally, at least, for Parliament to be dissolved, and for the Government to delay the proclamation summoning a new Parliament. The Government should legislate to ensure that a proclamation summoning a new Parliament must be made at the same time as, or immediately after, the dissolution of Parliament. This means repealing and replacing section 2 of the Meeting of Parliament Act 1694. (Paragraph 188)

Polling day flexibility in the event of the demise of the Crown

27.The draft Bill allows limited discretion to change the date of the polling day in the event of a demise of the Crown, rather than fixing the delay at fourteen days, as is done now. Even with the Fixed-term Parliaments Act, polling day at general elections could fall close to major public holidays. We agree that it is appropriate for there to be a limited degree of extra flexibility in polling dates if the Monarch dies during an election period, and that it should be exercised by Proclamation, on the advice of the Privy Council. It would be sensible for a Prime Minister to consult the Leader of the Opposition and the leaders of other parties in Parliament before seeking to exercise this flexibility. (Paragraph 192)

Seeking to reduce the 25 working day statutory election period

28.UK General Elections have become more complex because of changes to voter registration and relaxation of the rules to do with postal vote eligibility. Other policy initiatives, such as extending the rights of overseas voters and the introduction of voter ID initiatives seem likely to place additional pressures on electoral administrators. The current legislative framework, set out in the Representation of the People Act 1983, is nearly forty years old. The Committee appreciates the difficulties that electoral administrators might face in reducing the election timetable from its current 25 working days. However, the lengthening of the election period has meant that the time between the dissolution of Parliament and its return is also lengthened. While we consider the country should be without Parliament for as short a time as possible, this must be balanced with the need to ensure that as many citizens as possible can register to vote and exercise their democratic right to vote in elections. (Paragraph 214)

29.We would like to see a significant reduction in the election timetable, insofar as this is compatible with ensuring the register is up to date and proxy and postal votes are possible, including for overseas voters. A cross party working party should be established by Government 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 soon 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. (Paragraph 215)

Minimising the periods before dissolution and after polling day

30.In recent years concern has been focussed on the delay to the meeting of Parliament and the reestablishment of its scrutiny mechanisms rather than on the need for a new Parliament to prepare itself. This is particularly acute in the Commons, where committees need to be constituted afresh each Parliament. The Committee considers that it is desirable for the periods in which Parliament is not functioning, or a House is not yet able to scrutinise effectively, should be as short as possible. The election timetable is only one part of this. The Committee believes that both the period between the last sitting of Parliament and dissolution and the period between polling day and the first meeting of Parliament should, wherever possible, be less than a week. While we would be concerned about legislation which dictated Parliamentary procedure, we recommend that the Government consider whether there should be statutory provision setting a shorter limit on the period in which the country can be without a functioning Parliament. (Paragraph 220)

The Dissolution Principles document and the operation of conventions

31.The “Dissolution Principles” document is inadequate. It does not reflect the nature of Monarch’s personal prerogatives to do with dissolving Parliament prior to 2011. Further by not considering and setting out the interrelated matters to do with other aspects of the election cycle, confidence of the House of Commons and government formation, it cannot provide a proper guide as to how dissolution should operate under a prerogative. The document cannot form the basis of a “shared understanding” of political practice and conventions which will be needed in future. (Paragraph 231)

32.This Report sets out the Committee’s views on the conventions on dissolution, Government formation and confidence. We expect the Government to respond to it before any legislation is introduced. In that response the Government must address these conventions in detail, explaining where it agrees with the Committee and where it does not. Most importantly, it must give a full explanation in a statement to Parliament for its position. Consideration should also be given to enshrining some conventions relating to confidence in the House of Commons Standing Orders. (Paragraph 232)

33.We recommend that the principles and conventions set out by the Committee are adopted as the basis for creating a new shared understanding of conventions and practices. (Paragraph 233)

Ensuring confidence in a Government can be tested

34.In the past the requirement that a motion of no confidence in the name of the Leader of the Opposition should be debated as quickly as possible has rested on convention. The time taken to arrange such debates has ranged from one to seven days. We consider that motions of no confidence tabled by the Leader of the Official Opposition, whether directed at the Prime Minister or in the Government as a whole, should be debated as soon as possible and preferably on the next sitting day. (Paragraph 236)

35.Given the refusal to find time for a debate on a motion of confidence in the name of the Leader of the Opposition in 2019, it may no longer be sufficient to rely on convention to enforce this. We consider there should be a Standing Order requirement that such a motion of confidence tabled by the Leader of the Opposition should be debated no later than the third sitting day (not being a Friday) after the day on which it is tabled. (Paragraph 237)

Published: 24 March 2021 Site information    Accessibility statement