Fixed-term Parliaments Bill - Constitution Committee Contents

CHAPTER 5: The process of scrutiny

160.  We have repeatedly emphasised the importance of proper process with regard to constitutional reform.[218] Process is critical in terms of upholding, and being seen to uphold, constitutional values: particularly those of democratic involvement and transparency in the policy-making process. Moreover, we believe that a proper process is the foundation upon which successful policy is built: the lack of a proper process makes an ineffective outcome more likely.

161.  There is strong evidence to suggest that the Government's proposals have not been properly thought through. Of three commitments made in the Coalition's programme for government in relation to fixed-term Parliaments, two were quickly dropped. The Government's original proposal that dissolution should occur when 55 per cent of MPs voted in favour created much debate and controversy on the ground that it would have allowed only the current coalition Government to dissolve Parliament.[219] The proposal was subsequently changed to a two-thirds majority, as set out in the Bill.[220]

162.  Dr Fox, Director of the Hansard Society's Parliament & Government Programme, summarised the flaws of the process:

    "If you chart from the summer the way in which [the Government] have brought forward various announcements on how things have changed about this legislation, that reflects the fact that it is ad hoc and ill thought-out and goes to the point that there ought to have been pre-legislative scrutiny. There ought to have been a much more extended timetable given the implications and consequences that would arise."[221]

163.  In his evidence to us, the Deputy Prime Minister claimed that "there is an emphasis in everything that we are proposing on greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people, and breaking up excessive concentrations of power and secrecy."[222] We assess in this chapter whether these principles have been demonstrated in the manner in which the policies contained in the Fixed-term Parliaments Bill have been brought forward.

The development of the Government's policies

164.  The Government's original intention was for a binding motion to be put before the House of Commons stating that the next general election would be held in May 2015, and that legislation to make a permanent change to fixed terms would be introduced at a later date.[223] In the event, the binding motion proposal was dropped, and the Government proceeded straight to introducing the Bill.

165.  The Deputy Prime Minister told the Commons Political and Constitutional Reform Committee that a binding motion had been proposed "on the assumption that the legislation would then come much further down the track ... Initially, we thought we needed the motion to show the political commitment to a fixed-term Parliament and then, on a more leisurely timetable, produce the legislation."[224] The withdrawal of the binding motion proposal therefore meant that the Bill was brought forward much more quickly than was originally envisaged.

166.  The Deputy Prime Minister justified this change on the grounds that "we were given the strong advice that this would create a limbo situation with, in effect, a non-binding, non-statutory commitment to the 2015 date and that it was better to proceed towards legislation straight off."[225] Indeed he admitted to us that there had been flaws in the process:

    "We did not entirely appreciate the knock-on effects on different parts of our constitutional arrangements, which created understandable nervousness that one is then consigning everybody, not just this Government and this Prime Minister, but everyone else involved, into a slightly ambiguous territory, which made people feel uncomfortable."[226]

167.  We accept that constitutional reform proposals will rarely, if ever, be wholly apolitical and may not always proceed by consensus. It is therefore necessary to ensure that, in relation to such proposals, constitutional principles should be constantly borne in mind and clear for all to see.

Interrelationship with other reform proposals

168.  The Deputy Prime Minister, in a speech given on 16 November 2010, said that the Government "have set out a sweeping programme of political reform, a programme that we can set against a single test: do these measures, together, help ... [give] people the choice and control they—rightly—now expect."[227] As one of the Government's key political reforms, do fixed-term Parliaments fit with the other parts of the political reform programme?

169.  The other part of that programme to be introduced into Parliament quickly was the Parliamentary Voting System and Constituencies Bill. As we noted in our recent report on that Bill, the Government have not determined how the cycle of five year Parliaments which would be set by this Bill would be synchronised with the five year boundary reviews to be established under that Bill, especially if an early election changed the cycle.[228] Nor have the Government explained why they have chosen to hold a referendum on the voting system, but not on the key principle of fixed-term Parliaments nor on the question of the length of the parliamentary term.

170.  The Bill could also impact on proposals for reform of the House of Lords. It is expected that the forthcoming draft Bill on Lords reform will provide for at least a part-elected House.[229] The Government have not yet stated whether they consider that the election cycle for this House should be timed to coincide with general elections, nor how the House might be affected by early dissolutions.

171.  The Government have also announced that there will be a third bill on political and constitutional reform to be introduced in 2011. That bill will include a new power of recall of MPs and provisions relating to individual voter registration.[230] The bill may well be consistent with the provisions of the Fixed-term Parliaments Bill, but it is not possible for us to assess how early dissolutions, for example, might impact on the recall of MPs or on the timetable which might be introduced relating to voter registration.

172.  We are concerned that the constitutional relationship between the provisions of this Bill and the Government's other proposals for constitutional reform have not been adequately thought through.

Pre-legislative scrutiny and consultation

173.  In our recent report on the Parliamentary Voting System and Constituencies Bill, we reiterated our view that it is a matter of principle that proposals for major constitutional reform should be subject to prior consultation and pre-legislative scrutiny, unless there are good reasons for departing from this principle.[231]

174.  The Minister for Political and Constitutional Reform told us that "if you look at public opinion, as expressed in opinion polls and things, they are broadly welcoming of the view that we should move to fixed-term Parliaments."[232] However, the detailed policies of the Bill were not subjected to any form of consultation. Indeed, we were told that in 2007 there was some public support for the contradictory principle that an early election should be held in the event of a mid-term change in Prime Minister.[233]

175.  Nor was the Fixed-term Parliaments Bill subject to pre-legislative scrutiny. The Deputy Prime Minister justified this on the ground that "the closer we looked at it given its constitutional importance we thought it better and more proper to move to legislation on a quicker timetable."[234] Yet he conceded that "the principle should be to time these things in a way that allows for proper pre-legislative scrutiny."[235] He also "unambiguously" agreed that such reform proposals should be brought forward in a more measured way in future.[236]

176.  The need for pre-legislative scrutiny on this Bill is demonstrated by the serious concerns about the content of the Bill which we discuss in this report, and by the late consideration given to avoiding clashes with elections to the devolved institutions.[237] Pre-legislative scrutiny would have ensured that these issues were considered in a thorough and more measured way than is possible with a Bill already introduced and part-way through its Parliamentary passage.

177.  The Minister for Political and Constitutional Reform argued that pre-legislative scrutiny was less appropriate in the first term since, "if the whole programme was subject to pre-legislative scrutiny ... you would not get on and do very much."[238] The Deputy Prime Minister also sought to justify the Bill's early introduction on the basis that:

    "the principle of fixed-term Parliaments has been argued and made over a very long period. ... If we were to say that we were going to informally commit to having a fixed-term Parliament but not introduce it in a belt-and-braces fashion until later, I would probably be sitting here answering questions such as, 'Well, hang on a minute, aren't you going to end up breaking the very rules that you are piously declaring lie behind the Fixed-term Parliaments Bill?'."[239]

178.  The Deputy Prime Minister told us that "what matters now is the degree of scrutiny that it is subject to as the legislation passes through both Houses. On that we are very clear. We want to make sure that it is subject to the greatest possible scrutiny, which it rightly deserves."[240]

179.  Save where there are justifiable reasons for acting more quickly, the proper way to introduce a constitutional reform proposal is to publish a green or white paper or a draft bill, and to take the comments and concerns raised in the process of consultation and pre-legislative scrutiny into account in the legislation that follows.

The Parliament Acts

180.  Clause 1(5) of the Bill provides that the Prime Minister may by order move the polling date two months earlier or later than the first Thursday in May. The Explanatory Notes state that the reason for this is to deal with sudden crises such as the outbreak of foot and mouth disease in 2001 which caused the local elections to be postponed.[241] The Notes also state that "parliaments, under this Bill, may extend a short period beyond five years".[242] This is a result of the date of an ordinary dissolution being dependent on the polling date. The Bill as introduced also repeals the Septennial Act 1715 which provides for the current five year maximum.[243]

181.  The procedure contained in the Parliament Act 1911 which enables Parliament to pass a bill without the consent of the Lords does not apply to any bill passed by the Commons which contains "any provision to extend the maximum duration of Parliament beyond five years".[244]

182.  The Clerk of the Parliaments stated that:

    "It is ... clear that the [Fixed-term Parliaments] Bill does contain provision to extend the maximum duration of a Parliament beyond five years, and that it cannot, therefore, be passed under the Parliament Acts procedure unless, before it leaves the Commons, the [relevant] provisions ... are amended."[245]

Professors Bradley and Oliver agreed that this was the case,[246] as do we.

218   See, for example, Constitution Committee, 15th Report (2008-2009): Fast-track Legislation: Constitutional Implications and Safeguards (HL Paper 116); 17th Report (2008-2009): Parliamentary Standards Bill (HL Paper 130); 11th Report (2009-2010): Constitutional Reform and Governance Bill (HL Paper 98); 6th Report (2010-2011): Public Bodies Bill [HL] (HL Paper 51); and 7th Report (2010-11) Parliamentary Voting Systems and Constituencies Bill (HL Paper 58). Back

219   See, for example, HC Deb 25 May 2010 cols 135-154.  Back

220   See Chapter Four.  Back

221   Q 95 (Dr Fox). Back

222   Constitution Committee, 5th report (2010-2011), op. cit. Q 53. Back

223   QQ 116-117, 124-129 (Minister for Political and Constitutional Reform). Back

224   Evidence taken on15 July 2010; see also Q 65. Back

225   Constitution Committee, 5th report (2010-2011), op. cit., Q 59. Back

226   Ibid., Q 62. Back

227   The Deputy Prime Minister, Political Studies Association/Hansard Society Annual Lecture, 16 November 2010. Back

228   Constitution Committee, 7th Report (2010-2011): Parliamentary Voting System and Constituencies Bill (HL Paper 58).  Back

229   Constitution Committee, 5th report (2010-2011), op. cit. Q 82 (Deputy Prime Minister). Back

230   The Deputy Prime Minister, Political Studies Association/Hansard Society Annual Lecture, 16 November 2010. Back

231   Constitution Committee, 7th Report (2010-2011): Parliamentary Voting System and Constituencies Bill (HL Paper 58), para 12.  Back

232   Q 126; FTP 44.  Back

233   Q 105 (Professor Bogdanor). Back

234   Constitution Committee, 5th report (2010-2011), op. cit. Q 69. Back

235   Ibid., Q 69.  Back

236   Ibid.Back

237   See Chapter Three, paras 75-81. Back

238   Q 116. Back

239   Constitution Committee, 5th report (2010-2011), op. cit. Q 60. Back

240   Ibid., QQ 59, 62. Back

241   Para 11.  Back

242   Para 32.  Back

243   The Schedule, para 2.  Back

244   Section 2(1).  Back

245   FTP 43, para 5.  Back

246   Q 36. Back

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