A Question of Confidence? The Fixed-term Parliaments Act 2011 Contents

Chapter 1: Introduction

Introduction

1.Parliamentary sovereignty is the beating heart of the constitution. Parliament is the supreme legal authority in the UK and has the power to create or end any law, preventing any one Parliament from binding a successor. In most instances, the Government is only able to exercise its executive functions when authorised to do so by Parliament.

2.Parliamentary sovereignty also has a political context—the government is formed from Parliament, is accountable to Parliament and can be overridden by Parliament. The ability to dissolve Parliament therefore runs right through the heart of constitutional arrangements.

3.Prerogative powers are an exception to the sovereignty of Parliament. These are powers held by the Monarch or the Government that do not require the consent of Parliament. Until 2011, the dissolution of Parliament was a personal prerogative power exercised by the Monarch, at the request of the Prime Minister. The only legal constraint on this power was that the maximum term for a parliament was five years.1 The passing of the Fixed-term Parliaments Act 2011 (FTPA or “the Act”) made new provision for dissolving Parliament and by extension the calling of general elections.

4.The Act touches upon several complex and interlinked constitutional issues: parliamentary sovereignty, the notion of confidence in a government, the power to call, and the timing of, general elections, and the length of parliaments. Changes to the fundamentals of the constitution should be based on widespread support and designed to last, but in the nine years since its passage the Act has proved sufficiently contentious that both main parties promised to repeal it in their manifestos for the 2019 general election. Few support the retention of the FTPA in its current form and the Government has subsequently confirmed its intention to repeal the Act.

5.In view of the disquiet about the FTPA in July 2019 we began an inquiry into it. Following the instigation of the Miller/Cherry legal actions, we expanded our work to consider the issue of proroguing, as well as dissolving, Parliament. In this report we explore the genesis of the Act, the effects of its provisions and ideas for reform. We are grateful to all those who assisted our work by providing oral or written evidence.

Genesis and provisions of the Fixed-term Parliaments Act 2011

6.Prior to the FTPA, the dissolution of Parliament and the calling of elections operated on the basis of conventions, practices and understandings. While there were critiques of the power of the prime minister to call elections at a time of his or her choosing, the system largely operated smoothly and with a degree of consensus between the two largest political parties.

7.The Fixed-term Parliaments Bill was introduced into the House of Commons by the Coalition Government on 22 July 2010 and received Royal Assent on 15 September 2011. Fixing the lengths of parliaments was a priority for the Coalition—both for the 2010–15 parliament and the longer term—with the importance of this commitment demonstrated by it featuring in the second paragraph of the Coalition Agreement:

“The Government will put a motion before the House of Commons in the first days of the Government stating its intention that, subject to Her Majesty The Queen’s consent, the next General Election will be held on 7 May 2015, to be followed by legislation for fixed term Parliaments of five years. The passage of the legislation will be subject to a whip in the Parliamentary Parties in both Houses.”2

8.During the second reading of the Bill in the House of Commons, the then Deputy Prime Minister, Rt Hon Nick Clegg MP, explained the Government’s justification for this reform:

“The Bill has a single, clear purpose: to introduce fixed-term Parliaments to the United Kingdom to remove the right of a Prime Minister to seek the Dissolution of Parliament for pure political gain. This simple constitutional innovation will none the less have a profound effect because for the first time in our history the timing of general elections will not be a plaything of Governments. There will be no more feverish speculation over the date of the next election, distracting politicians from getting on with running the country. Instead everyone will know how long a Parliament can be expected to last, bringing much greater stability to our political system. Crucially, if, for some reason, there is a need for Parliament to dissolve early, that will be up to the House of Commons to decide.”3

9.Once enacted, section 1(2) of the FTPA set the date for the next general election as 7 May 2015. For each subsequent general election, “the polling day … is to be the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell.”4

10.The FTPA therefore moved the UK from a position of executive flexibility regarding the calling of elections, to a semi-fixed-term arrangement. We noted the range of possible systems in our report on the Fixed-term Parliaments Bill in 2010:

“There is a spectrum between rigidly fixed terms, of which Norway is the prime example, and flexible systems such as in the UK, Australia, New Zealand and Ireland where the Prime Minister broadly retains the flexibility to call an election at any point before the expiry of a maximum term. In between, there are semi-fixed arrangements under which a fixed term is the norm, but where there are safety valve provisions which enable an early election to be called. Such arrangements operate in Germany, Sweden and the devolved institutions in Scotland, Wales and Northern Ireland. Such arrangements are generally referred to as fixed-term arrangements, though the terms of these Parliaments are not fixed in length in the pure sense.”5

11.Beyond the stated aims of stability and the principle of transferring power to Parliament, the Act was also perceived by some as a measure of political expediency, as it strengthened the prospects of the Coalition Government lasting for a full five-year parliament. Sir Malcolm Jack, Clerk of the House of Commons from 2006 to 2011, suggested that the Act was “drafted in a hurry to bolster the coalition of Conservatives/Liberal Democrats.”6 The then Prime Minister, Rt Hon David Cameron MP, acknowledged this reasoning, suggesting that there was a “fear” from the Liberal Democrats “that the Conservatives might wait for an opportune moment, then collapse the Coalition and seek a general election. The move made the Coalition more stable.”7 Lord Norton of Louth, Professor of Government at the University of Hull, concluded the FTPA was introduced “to deal with a particular circumstance but the solution was made an enduring one.”8

12.However, the issue of fixed-term parliaments did not suddenly materialise in May 2010. As Lord Young of Cookham, who was Leader of the House of Commons during the passage of the legislation, observed:

“The Fixed-term Parliaments Act has had a bad press and has itself come to the end of its term. It was not, as some have claimed, a knee-jerk reaction to the formation of the coalition Government, preventing its unilateral dissolution by David Cameron at a time inconvenient to our partners. It was actually a manifesto commitment by both the Labour Party and the Liberal Democrats before the 2010 election that was generously, but perhaps ill-advisedly, adopted by my party.”9

13.The FTPA does not definitively fix parliaments on a five-yearly schedule. Section 2 provides two mechanisms to dissolve Parliament prematurely and bring about a general election. These mechanisms require either:

14.Mr Clegg suggested at the time that such mechanisms were required because of the “possibility of exceptional circumstances that would make it appropriate for Parliament to dissolve before completing its full term.”12

15.Since the Act came into force the UK has had three general elections, each coming about through a different route. The 2015 election took place on 7 May, as set out in the Act. The 2015 parliament lasted for two, rather than five years, with 522 MPs supporting an early general motion tabled by the then Prime Minister, Rt Hon Theresa May MP, leading to an election on 8 June 2017. Following three failed attempts in 2019 to secure an early general election through this route,13 the Government led by Rt Hon Boris Johnson MP introduced a short bill that set aside the provisions of the FTPA to enable an early general election.14 The Early Parliamentary General Election Act 2019 was fast-tracked through both Houses of Parliament and led to the election on 12 December 2019.

16.In addition to the FTPA’s provisions regulating the length of parliaments, section 6(1) stated “This Act does not affect Her Majesty’s power to prorogue Parliament.”15 The prerogative power to prorogue Parliament therefore remained, in practical terms, in the hands of the Prime Minister. The exercise of this power became the subject of controversy following the Government’s decision to prorogue Parliament on 9 September 2019 for five weeks and the successful legal challenge to this use of the power.

Constitution Committee scrutiny of the Fixed-term Parliaments Bill

17.Given the constitutional significance of the Fixed-term Parliaments Bill, we conducted an inquiry during its passage through Parliament. Our key conclusions and recommendations were:

We revisit these conclusions and recommendations throughout this report.

Review and possible repeal

18.During the Bill’s passage, members of the House of Lords added a sunset clause to the Bill to allow “the next Parliament and subsequent Parliaments the opportunity to decide whether the provisions of this Bill, subjecting them to a fixed term, should apply to them.”17 The Government did not agree, suggesting the

“purpose is that the fixed-term Parliament is not for this Parliament only but, subject of course to the fact that any legislation can be repealed by a future Parliament, it should nevertheless apply to future Parliaments. Further, the purpose is to make fixed terms for the United Kingdom Parliament the norm, just as they are for local government, the devolved legislatures set up by this Parliament, and the European Parliament. This will deny the Executive the ability to choose a date for a general election to suit its own political ends. It will create certainty as to how long a Parliament should last.”18

19.After ping-pong between the Houses, this impasse was resolved by a Government amendment, supported by a majority of members in the House of Lords, committing to a review of the Act in 2020. Consequently, section 7 of the Act stipulates that “no earlier than 1 June 2020 and no later than 30 November 2020” the Prime Minister “must make arrangements 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 that a majority of the committee must be MPs.19

20.The Conservatives’ manifesto for the 2019 general election committed to “get rid of the Fixed Term Parliaments Act–it has led to paralysis at a time the country needed decisive action.”20 This commitment was echoed in the Queen’s Speech, which said “Work will be taken forward to repeal the Fixed-term Parliaments Act.”21 The Labour election manifesto also committed to “repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments.”22 However, repeal of the Act on its own is insufficient—replacement provisions will be required to, at the very least, set the maximum term for a parliament.

21.The Fixed-term Parliaments Act 2011 changed core aspects of the UK constitution. It has proved controversial. Given the Government’s commitment to repeal the Act, for which it has support in principle from the Official Opposition, a review of it is timely.

22.In this report we examine the issues raised by the Act and its amendment or repeal. In particular, we consider the series of linked questions that any proposals for change must address:

23.In addition, we explore the provisions of the FTPA relating to confidence motions and the question of whether the House of Commons should be required to approve any prorogation of Parliament.


1 The maximum length of a parliament was set at seven years by the Septennial Act 1715. This was reduced to five years by the Parliament Act 1911.

3 HC Deb, 13 September 2010, col 621

4 Fixed-term Parliaments Act 2011, section 1

5 Constitution Committee, Fixed-term Parliaments Bill (8th Report, Session 2010–12, HL Paper 69)

6 Written evidence from Sir Malcolm Jack (FPA0002)

7 David Cameron, For The Record, 2019 (London: William Collins), p 289

8 Q 8 (Lord Norton of Louth)

9 HL Deb, 8 January 2020, col 216

10 Fixed-term Parliaments Act 2011, section 2(1)–(2)

12 HC Deb, 13 September 2010, col 268

13 See Commons Hansard on 4 September 2019, 9 September 2019 and 28 October 2019.

14 This bill was widely referred to as a ‘notwithstanding’ bill, as it provided for an early election notwithstanding the provisions of the FTPA.

15 Fixed-term Parliaments Act 2011, section 6(1)

16 Constitution Committee, Fixed-term Parliaments Bill (8th Report, Session 2010–12, HL Paper 69)

17 HL Deb, 18 July 2011, col 1078 (Lord Butler of Brockwell)

18 Ibid., col 1076 (Lord Wallace of Tankerness)

19 Fixed-term Parliaments Act 2011, section 7

21 HL Deb, 19 December 2019, col 8

22 Labour Party, 2019 Election Manifesto, p 82: https://labour.org.uk/wp-content/uploads/2019/11/Real-Change-Labour-Manifesto-2019.pdf [accessed 30 July 2020]




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