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

Chapter 2: Fixing the length of parliaments

Transferring power

24.Nick Clegg said that the Fixed-term Parliaments Bill had a “single, clear purpose … to remove the right of a Prime Minister to seek the Dissolution of Parliament for pure political gain.”23 Assessed narrowly, it is indisputable that this objective was achieved: before the Act dissolution was a prerogative power; following enactment, Parliament can be dissolved only at the end of the five-year period set out in section 1 of the Act, or if the House of Commons votes in favour of an early general election.

25.The Act transferred power to dissolve Parliament from the Prime Minister to Parliament. While this unarguably was a transfer of legal power,24 there was disagreement among our witnesses about the extent to which it had transferred meaningful political power. Professor David Howarth, Professor of Law and Public Policy at the University of Cambridge,25 said:

“Conventional wisdom had it that the Fixed-term Parliaments Act had produced no meaningful transfer of power from the Prime Minister to the House of Commons because no Opposition would ever turn down the opportunity to call a general election. Conventional wisdom was decisively refuted by the events of 4 and 9 September 2019, when the Commons twice refused to pass an early election motion by the required two-thirds majority.”26

26.Professor Gavin Phillipson, Professor of Law at the University of Bristol, agreed that “there has been a meaningful transfer of power, and it is a major and welcome one … the Commons will, at times, choose to refuse a general election”, which has “prevented the Prime Minister from being able to call an election.”27

27.Other witnesses argued the Act had the opposite effect and that in some situations the executive may have greater powers than previously.28 Sir Malcolm Jack suggested that “The Fixed-term Parliaments Act 2011 was heralded as a transfer of power from the Executive to Parliament. In fact its provisions allow the Government as much control and, in the area of no confidence motions, more control than previously in settling the length of any parliamentary term.”29

28.Some witnesses thought the Act had sought to solve a problem that did not exist. Robert Craig, from the Department of Law at the London School of Economics, said:

“It is frequently suggested that determining the date of a general election is an unfair political advantage for the Prime Minister. It is sometimes described as handing the starting pistol to one of the competitors. This argument is seriously misconceived … even if the pistol is in the hands of the Prime Minister, there is every chance he or she will shoot themselves in the foot with it, thereby hobbling themselves in the race. Examples include Theresa May in 2017, Ted Heath in [February] 1974 and Gordon Brown’s change of heart in 2007 which was arguably grounded in precisely his fear of such a decision going wrong.”30

29.Dr Ruth Fox, Director at the Hansard Society, thought that the power to call an election at a politically opportune moment was rarely abused and that it was not the “biggest problem facing the democratic system that we had. It was a pretty minor issue. If the Government have a majority for what they want, they will continue and if they have not, the best thing is to go to the electorate.”31

30.The events of the early autumn of 2019 demonstrated that the Coalition Government’s objective “to remove the right of a Prime Minister to seek the dissolution of Parliament for pure political gain” has been achieved. Even if the Early General Election Act 2019 circumvented the requirements of the Fixed-term Parliaments Act 2011, it demonstrated that the consent of the House of Commons—irrespective of the legislative mechanism used—was necessary for the Government to dissolve Parliament.

31.That the consent of the House of Commons is needed does not mean that the power of the Prime Minister has been markedly reduced. A Prime Minister with a majority, or who can muster one in favour of an early election, is not encumbered by the Fixed-term Parliaments Act 2011.

Legalities of returning power to the Prime Minister

32.Some witnesses favoured repealing the FTPA and reverting to the power to dissolve Parliament resting with the Monarch, following advice from the Prime Minister.32 This raised the question of whether, if the Act was repealed, the prerogative power could be revived, or whether a replacement statutory power for the Prime Minister would be needed.

33.Former Government lawyer Carl Gardner suggested that the prerogative power could be revived:

“Repeal would not create a new prerogative power, or extend one. All it would do is remove the statutory ‘rug’ to uncover the common law floor underneath it … So long as the repealing legislation clearly disclosed Parliament’s intention to disapply section 16(1)(a) of the Interpretation Act 197833, the result of repeal would be to ‘revive’ the Queen’s prerogative power to dissolve Parliament.”34

34.This view was shared by Robert Craig:

“otherwise the 2011 Parliament will have successfully bound future parliaments. Unless a later parliament can completely unwind an earlier Act and restore the status quo ante, there is a sense that the ‘continuing’ theory of parliamentary sovereignty would be breached. Famously promulgated by HLA Hart, the continuing theory requires that later parliaments cannot be constrained by earlier parliaments and that must logically include a later parliament wishing to unwind entirely what an earlier parliament tried to do.”35

35.Professor Phillipson did not agree:

“In my view, the prerogative probably cannot be revived. I accept that this is an issue on which lawyers take different good-faith positions. However, the very legal uncertainty as to whether the prerogative can be revived means that it would be irresponsible simply to legislate to repeal the Act and try to revive the prerogative without being sure that you could. As far as I know, there is no instance of statute successfully reviving the prerogative, so it is an open matter of law.”36

36.A similar argument was advanced by Philippe Lagassé, Associate Professor of International Affairs, Carleton University:

“In the event that the Act were repealed, there would be no mechanism to dissolve Parliament to hold a general election. While this might suggest that the prerogative of dissolution would be revived to compensate and ensure democratic representation, Parliament would retain the option of dissolving itself with new legislation. Indeed, even if this new legislation only dealt with the dissolution of the existing Parliament, it would still mitigate against the necessity of reviving the prerogative. Accordingly, the availability of other means to dissolve Parliament weighs in favour of permanent abeyance, and thus abolishment for all intents and purposes.”37

37.The balance of legal opinion, as we understand it, is that the prerogative power to dissolve Parliament would not be revived if the Fixed-term Parliaments Act was simply repealed with no further provision made. This view holds that prerogative powers are the vestiges of monarchical power and when put into statute they are extinguished permanently. Regardless of which view is correct, there is certainly doubt and dispute as to whether a prerogative power can be revived.

38.That there is doubt about whether prerogative powers can be revived opens the possibility of legal challenge. If the FTPA was repealed without specifying replacement arrangements for dissolution, and subsequently the prime minister advised the Monarch to dissolve Parliament, the decision to dissolve might be contested in the courts. A litigant might argue that the prerogative power had been extinguished, that the prime minister was not in a position to advise the Monarch to dissolve Parliament, and that therefore the general election that resulted should be cancelled. Even if such a case did not succeed, it would be an unwelcome distraction during an election campaign.

39.The possibility of legal challenge to the prime minister’s advice to the Monarch, or the Monarch’s decision to dissolve Parliament, must be avoided. If the power to dissolve Parliament were to be returned to the Prime Minister, it must be done in such a way that a legal challenge to its use is put beyond doubt. We suggest that this is more likely to be achieved by creating a new statutory power rather than attempting to revive the prerogative.

Effects of fixing the 2010–15 parliament

Parliamentary business

40.Beyond the headline benefits of the FTPA for its proponents—certainty of the date of the next general election and transferring power from the Monarch and Prime Minister to the House of Commons—there were other potentially positive effects of fixed-term parliaments. Mark Ryan, Senior Lecturer in Law at Coventry University, said:

“It undoubtedly helps the legislative process which can be more structured and organised, particularly in relation to the planning of pre-legislative scrutiny and draft Bills. Moreover, it should (theoretically) remove the legislative anomaly of the ‘wash-up’ process which undermines the integrity of legislative scrutiny. It also enables select committees to plan projects more coherently.”38

41.Another benefit of certainty on the end of the final session of a five-year parliament is for the management of business in the House of Commons. Dr Fox observed that knowing the final session will run its full course can prevent the Government manipulating the allocation of time in the Commons for business such as Backbench Business debates and Opposition Day Debates: “they could be manipulated in that final Session in the run-up to an election if a Government know when it is going or is planning.”39

42.It is also the case that general elections create a period of several months in which scrutiny of government by select committees does not operate; this absence of scrutiny is more limited if Parliaments last for all or most of the five-year term.

43.Other witnesses were more sceptical of these benefits. After observing proceedings in the 2010–15 parliament Lord Lisvane, Clerk of the House of Commons 2011–14, told us: “I saw no sign in the 2010 Parliament that the expectation of five years was making a substantial difference to legislative planning, because it is a natural phenomenon that business managers look at the current session or the one just about to approach.”40 Lord Norton of Louth added: “If you go into a fifth [session] it might help for planning with select committees, but it may not benefit the Chamber because Members are basically treading water if they are looking towards the election, and quite often not a lot of serious business is done during that fifth session … in 2014 I was checking what got through and it was not a very full session.”41 However, we note that 38 Bills were enacted during the 2014–15 session, including the Modern Slavery Act 2015 and the Wales Act 2014.

44.Fixing the length of parliaments could have practical benefits for Parliament. However, there is insufficient evidence from the 2010–15 parliament to draw a firm conclusion.

Electoral administration

45.A further argument in support of fixing the lengths of parliaments is that it gives a greater certainty to those administering elections, principally the Electoral Commission, returning officers and local authorities. Robert Hazell, Professor of Government and the Constitution, University College London, said: “The Electoral Commission has long had an interest in fixed term parliaments, which enable electoral administrators to be better prepared because the election date is potentially known long in advance.”42

46.Peter Stanyon, Chief Executive of the Association of Electoral Administrators, explained that there could be significant challenges for electoral administrators if a fixed term is truncated leading to an early general election:

“With the extremely short timetable electoral administrators are often left explaining to the electorate as to why they were unable to vote, for example overseas postal votes not being returned in time, or limited time to register to vote as a result of an unexpected election with the minimum statutory timetable and no lead in time. As demonstrated only this year the late notification of the European Parliamentary elections introduced significant pressures to already stretched electoral administrators … There remains an unrealistic expectation that elections will always be delivered regardless of the landscape, timing, funding or capacity of the professionals administering them.”43

47.Furthermore, the time of year at which an unexpected general election is held can create difficulties for electoral administration. While elections have most commonly taken place in May, and the Act provides that the five-yearly elections happen on the first Thursday of that month,44 they may take place at other times in the year which can cause additional challenges. Responding to a letter from the Secretary of State for Education on the use of schools as polling centres for an election in December 2019 and the speculation that Christmas events may have to be cancelled, Mr Stanyon wrote:

“We recognise the inconvenience that this election will cause, none of it the fault of Returning Officers and their employing local authorities, and every effort is being made by the electoral community to work with schools and other public premises to mitigate those difficulties. However, the simple truth of the matter is that when Parliament decided to hold the poll in December, at short notice, significant and unintended consequences followed.”45

48.There are other implications when there is an unexpected general election, particularly in winter. Ahead of the 2019 general election, the Electoral Commission drew up contingency plans to deal with winter weather, while pointing out that changes to the electoral register take place in winter because elections are not usually scheduled then. It was not anticipated that this would prevent anyone from voting, but voters would have different polling card numbers from those the electoral administrators were checking off.46 The Lords Committee on the Electoral Registration and Administration Act 2013 explored these and related issues in greater depth in its recent report.47

49.The dissolution of Parliament ahead of its fixed-term at an untypical time of year may pose a challenge for electoral administrators. In such instances the Government must ensure that individuals and organisations overseeing and administering elections are appropriately resourced and that any risks to free and fair elections are mitigated.

50.We congratulate electoral administrators for overcoming the logistical challenges posed by the early general election in December 2019 and the smooth running of the poll they oversaw.

The civil service

51.The length of parliaments and the timing of elections also affect the civil service and the preparations they can make for any new government. The Cabinet Manual sets out the process for how the main opposition parties can engage with the civil service in advance of an election:

“At an appropriate time towards the end of any Parliament, as the next general election approaches, the Prime Minister writes to the leaders of the main opposition parties to authorise pre-election contacts with the Civil Service. The meetings take place on a confidential basis, without ministers being present or receiving a report of discussions. The Cabinet Secretary has overall responsibility for co-ordinating this process once a request has been made and authorised by the Prime Minister. These discussions are designed to allow the Opposition’s shadow ministers to ask questions about departmental organisation and to inform civil servants of any organisational changes likely to take place in the event of a change of government. Senior civil servants may ask questions about the implications of opposition parties’ policy statements, although they would not normally comment on or give advice about policies.”48

52.There has been controversy over how far in advance of an election the incumbent Prime Minister has allowed contact between opposition parties and the civil service. David Cameron allowed the opposition Labour Party to engage with the civil service in October 2014, more than six months before the general election in May 2015.49 In contrast, the early general election of 2017 meant that the Opposition had access to the civil service for only 51 days.50 In 2019 the Opposition had just two months in which they could talk to the civil service.51

53.Dr Catherine Haddon, Senior Fellow at the Institute for Government, outlined the value in greater dialogue between the civil service and the Opposition:

“we woefully underestimate what a huge challenge it is for the Civil Service to have an electoral campaign which might be of very short duration and then to engage with the Opposition parties to understand what policies they might bring in. This has an effect on the quality of policies and the ability of a new Government to get them up and running … for opposition parties it is also valuable to have a chance to prepare for going into government.”52

54.It is an important constitutional convention that the main opposition parties have access to the civil service in the period before a general election. It is essential that this continues, as it helps to ensure a smooth transition when there is a change of party in government following a general election.

55.The Fixed-term Parliaments Act was intended to provide greater certainty about the timings of general elections, but this has not been the case since 2015. A consequence of an early general election is that the main opposition parties do not have as much time to engage with the civil service. This may hamper the ability of the civil service to support an incoming administration.

The length of parliaments

56.In our 2010 report on the Fixed-term Parliaments Bill, we said a

“majority of the Committee consider that a four year term should be adopted for any fixed-term parliamentary arrangement at Westminster. In the view of the majority, the shift from a five year maximum to a five year norm would be inconsistent with the Government’s stated aim of making the legislature more accountable, inconsistent with existing constitutional practice and inconsistent with the practice of the devolved institutions and the clear majority of international legislatures.”53

57.In our current inquiry, Petra Schleiter, Professor of Comparative Politics at the University of Oxford, said: “In continental Europe, the average maximum length of parliamentary terms is 4 years. In Australia and New Zealand it is 3 years. The devolved parliaments in the UK in Scotland, Wales and Northern Ireland have 4 year fixed terms.”54

58.Many witnesses said that four years was the appropriate length of a parliament. Professor Schleiter said that this “gives governments enough time to legislate and achieve key goals while ensuring electoral accountability at appropriate intervals.”55 Mark Ryan said:

“Five years is too long for a parliamentary term and four years is instead preferable … this period [is] more democratic by ensuring more regular electoral and political accountability … it is contended that—historically—a Government having to make use of a full five year term was no doubt perceived as a failure owing to the lack of confidence to call an early election.”56

59.Dr Craig Prescott, Senior Lecturer in Law at the University of Winchester, observed that before the Fixed-term Parliaments Act a popular Prime Minister “might call a general election around four years into a parliament against the backdrop of favourable opinion polls. For example, Margaret Thatcher called general elections in 1983 (following the 1979 election) and 1987, while Tony Blair called elections in 2001 (following the 1997 election) and in 2005.” On the other hand, “Prime Ministers in weaker political positions, such as John Major and Gordon Brown, tended to let Parliament run its full course, as happened prior to the 1997 and 2010 general elections.”57

60.During the passage of the Fixed-term Parliaments Bill there may have been an expectation that parliaments would usually last for the full five years and that the early election mechanisms would not frequently be used. This has not proved to be the case. Indeed, the Act has not markedly changed the status quo, in that parliaments last for a maximum of five years but may end sooner if a Prime Minister desires an early election. The main difference is the need for the consent of the House of Commons to the decision to dissolve Parliament early. The Fixed-term Parliaments Act was not revolutionary in its provision for the length of parliaments.

61.It is for Parliament to determine, whether in the Fixed-term Parliament Act, or any replacement, what the maximum length of a parliament should be and the mechanisms to bring about an early general election.

23 HC Deb, 13 September 2010, col 621

24 Written evidence from Dr Craig Prescott, University of Winchester (FPA0001)

25 Professor Howarth was the MP for Cambridge between 2005–10. During this time he introduced the Fixed Term Parliaments Bill 2007 to: fix the date of the next general election and all subsequent general elections; forbid the dissolution of Parliament otherwise than in accordance with the Act’s provisions; and to allow the House of Commons to change the day of the week on which a general election is held. The bill did not proceed beyond its first reading.

26 Written evidence from Professor David Howarth, University of Cambridge (FPA0007). After the submission of this evidence the Government tried for a third time to secure an early general election under the two-thirds provision but was unsuccessful.

27 31 (Professor Gavin Phillipson)

28 Written evidence from Carl Gardner, BPP University of Law (FPA0006)

29 Written evidence from Sir Malcolm Jack (FPA0002)

30 Written evidence from Robert Craig, London School of Economics (FPA0013)

31 Q 8 (Dr Ruth Fox)

32 Ibid.

33 This concerns when a new Act repeals existing statute. Unless the contrary intention appears, the repeal does not “revive anything not in force or existing at the time at which the repeal takes effect.” Interpretation Act 1978, section 16.

34 Written evidence from Carl Gardner, BPP University of Law (FPA0006)

35 Written evidence from Robert Craig, London School of Economics (FPA0013)

36 Q 33 (Professor Gavin Phillipson)

37 Written evidence from Philippe Lagassé, Carleton University (FPA0012)

38 Written evidence from Mark Ryan, Coventry University (FPA0005)

39 Q 1 (Dr Ruth Fox)

40 Q 22 (Lord Lisvane)

41 Q 1 (Lord Norton of Louth)

42 Written evidence from Professor Robert Hazell, University College London (FPA0003)

43 Written evidence from Peter Stanyon, Association of Electoral Administrators (FPA0009)

44 Fixed-term Parliaments Act 2011, section 1(3)

45 Letter from Peter Stanyon, Association of Electoral Administrators, to the Secretary of State for Education: https://www.aea-elections.co.uk/wp-content/uploads/2019/11/aea-letter-to-sos-education-061119.pdf [accessed 30 July 2020]

46 Oliver Wright, ‘December election could bring curtain down on nativity plays’, The Times, 24 October 2019: https://www.thetimes.co.uk/article/december-election-could-bring-curtain-down-on-nativity-plays-bgm55hd3h [accessed 30 July 2020]

47 Select Committee on the Electoral Registration and Administration Act 2013, An electoral system fit for today? More to be done (Session 2019–21, HL Paper 83)

48 Cabinet Office, The Cabinet Manual, October 2011, para 2.21: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdf [accessed 30 July 2020]

49 Oliver Wright, ‘Exclusive: Labour will be given only six months to plan policies in Whitehall before the general election in 2015’, The Independent, 30 March 2014: https://www.independent.co.uk/news/uk/politics/exclusive-labour-will-be-given-only-six-months-to-plan-policies-in-whitehall-before-the-general-9223706.html [accessed 30 July 2020]

50 Institute for Government, Access talks with the civil service, 10 October 2019: https://www.instituteforgovernment.org.uk/explainers/access-talks-civil-service [accessed 30 July 2020]

51 Becky Smith, ‘No. 10 gives Labour the go-ahead for pre-election talks with civil servants’, Civil Service World, 10 October 2019: https://www.civilserviceworld.com/articles/news/no10-gives-labour-go-ahead-pre-election-talks-civil-servants [accessed 30 July 2020]

52 Q 9 (Dr Catherine Haddon)

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

54 Written evidence from Professor Petra Schleiter, University of Oxford (FPA0008). Following the passage of the FTPA in 2011, elections to the UK Parliament and the devolved legislatures in Scotland and Wales were all due to take place in 2020. To avoid these elections coinciding, the terms of the Scottish Parliament and National Assembly for Wales (now the Welsh Parliament) commencing in 2016 were extended from four to five years.

55 Written evidence from Professor Petra Schleiter, University of Oxford (FPA0008)

56 Written evidence from Mark Ryan, Coventry University (FPA0005)

57 Written evidence from Dr Craig Prescott, University of Winchester (FPA0001)

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