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

Summary of conclusions and recommendations

Introduction

1.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. (Paragraph 21)

Fixing the length of parliaments

2.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. (Paragraph 30)

3.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. (Paragraph 31)

4.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. (Paragraph 39)

5.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. (Paragraph 44)

6.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. (Paragraph 49)

7.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. (Paragraph 50)

8.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. (Paragraph 54)

9.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. (Paragraph 55)

10.The Fixed-term Parliaments Act was not revolutionary in its provision for the length of parliaments. (Paragraph 60)

11.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. (Paragraph 61)

Early general elections

12.It is difficult to draw conclusions from the unusual circumstances of autumn 2019. In this period the House of Commons rejected holding a general election on three separate occasions before consenting to one through a different route. While the two-thirds threshold can, in certain circumstances, be a meaningful constraint, it can also perpetuate political instability. (Paragraph 73)

13.It is for Parliament to decide whether, if the House of Commons maintains a role in the approval of early general elections, a threshold beyond a simple majority should apply to those decisions. (Paragraph 74)

14.A government’s authority derives from possessing the confidence of the House of Commons. The Fixed-term Parliaments Act did not change this constitutional principle, but it has clouded the situation. It is now possible for the Government to retain the confidence of the House of Commons in a statutory sense—winning a vote on a motion of no confidence—while having lost it in the political sense of lacking support for a key part of its policy agenda. (Paragraph 87)

15.It is for Parliament to decide whether the Fixed-term Parliaments Act—or any replacement legislation—should continue to make provision for confidence motions. (Paragraph 88)

16.It is an important constitutional convention that if a Leader of the Opposition tables a vote of no confidence in the Government time is quickly made available to debate it. (Paragraph 91)

17.In some situations a government could manipulate the no-confidence process to enable an early general election. This would be against the spirit of the Fixed-term Parliaments Act, but perversely the Act makes such a scenario possible. (Paragraph 95)

18.We do not envisage many circumstances where a successful vote of no confidence would result in a change of party in government. It is more likely that there would be a dissolution or a reshaping of the existing Government such that it can regain the confidence of MPs. (Paragraph 100)

19.It is unknown what might happen in the 14 days following a government losing confidence in the House of Commons. But, for the avoidance of doubt, the Cabinet Manual should state that the existing Government remains in office until the Monarch invites a new Government to be formed. This remains the case even if the Government has lost a vote of confidence in the House of Commons. The Prime Minister would not be “squatting” in Number 10 in such circumstances; rather, they would be doing their duty in maintaining Her Majesty’s Government until such time a replacement was appointed. (Paragraph 106)

20.The Fixed-term Parliaments Act is silent on the process for finding an alternative administration during the 14 days after a vote of no confidence, save for the provision for a vote of confidence. The Act may create a circular situation whereby an alternative administration would need to demonstrate a majority in support in the House of Commons, but may not be able to demonstrate said support until it is in office. (Paragraph 112)

21.It is a cardinal principle that the Monarch should not be drawn into the political debate regarding who should govern. There should therefore be a process for MPs to demonstrate who is best placed to command a majority in the House of Commons in order to signal to the Monarch who should be invited to form a government. It is for the House of Commons to decide what process would be appropriate. (Paragraph 114)

22.Under the current system a Prime Minister opposed to any alternative administration could block its formation by preventing any effort to command a majority and waiting out the 14 days until an election was triggered. Such behaviour would be deprecated, but it underlines the need for greater certainty on this matter. (Paragraph 115)

23.After losing a vote of no confidence a Prime Minister must continue to follow constitutional practice. If an alternative Government can be formed during the 14 days prescribed by the Fixed-term Parliaments Act, the incumbent has a duty to resign. A Prime Minister who did not do so would be behaving unconstitutionally. (Paragraph 117)

24.No parliament can bind its successors. Therefore any legislation setting a threshold greater than a simple majority of MPs will be vulnerable to a bill bypassing that threshold. (Paragraph 122)

The Act and other prime ministerial powers

25.The Fixed-term Parliaments Act transferred power to the House of Commons to decide whether there should be an early general election, but it did not give MPs control over the date of the election. (Paragraph 130)

26.When the Fixed-term Parliaments Bill was being considered it was widely believed the risk of a Prime Minister misusing the power to set the date of a general election was small. However, Parliament may wish to consider whether the House of Commons should be required to approve the date on which an early election is to be held. (Paragraph 131)

27.While there may be circumstances in which a Prime Minister could seek to misuse the power to delay a scheduled election for political purposes, the requirement for an affirmative instrument provides Parliament with an appropriate level of control. (Paragraph 132)

28.Any Government advising the Monarch on prorogation in the future will need to take into account the experience of the September 2019 prorogation and Supreme Court judgment in Miller/Cherry. (Paragraph 143)

29.As part of the statutory review of the Fixed-term Parliaments Act 2011, Parliament may wish to consider whether the prorogation of Parliament should require its approval in the same way the Commons approves its recess dates. (Paragraph 144)

Future of the Fixed-term Parliaments Act

30.The Fixed-term Parliaments Act 2011 was not the cause of the political deadlock in the 2017–19 parliament, but without the Act the deadlock would not have lasted as long. (Paragraph 149)

31.A straight repeal of the Fixed-term Parliaments Act 2011 is not feasible. The Act repealed the Septennial Act 1715, which set the maximum length of a parliament. Repealing the FTPA without any replacement would mean that the current parliament could never end. (Paragraph 152)

32.To determine the future of the Fixed-term Parliaments Act 2011 a series of linked questions must be answered. These are:

These questions are ultimately ones that Parliament must determine. (Paragraph 153)

33.In making those determinations, Parliament may also wish to consider the separate question of whether it should be asked to approve the prorogation of Parliament. (Paragraph 154)

34.In making these decisions, parliamentarians must be mindful that constitutional change should not be undertaken lightly or with the short term in mind. Constitutional change needs to be able to stand the test of time. (Paragraph 155)





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