Fixed-Term Parliaments Act – on the chopping block ?

One or two eagle-eyed observers on social media noted a development in the House of Lords which has apparently escaped the notice of the media – a new bill which, if enacted, would abolish the Fixed-Term Parliaments Act.

It’s worth a quick recap on the background. Until 2011, the power to dissolve Parliament was by the Queen’s prerogative, exercised on the advice of the Prime Minister. It has always been significant as it is, in effect, the power to choose a strategically optimal time to hold an election. Since exercising it is a risky strategy, which has backfired almost as often as it has been successful, speculation about the possible exercise of the power has been seen to run high at various times within political circles and the media, to the extent that can hamper progress on more mundane, day to day matters. We have recent experience of this; Gordon Brown’s first period as Prime Minister was dogged by speculation that he might call an election to consolidate his mandate. Brown’s decision not to go to the country proved to be a fatal error; the economic crash trashed what authority he had, leaving him to spend the best part of two years as a lame duck until he left office in 2010.

When the coalition was being finalized in 2010, the nascent Government was keen to revisit reform of the prerogative dissolution power. Abolition was already a manifesto commitment of both the Lib Dems and Labour, while the Conservatives had a more ambiguous reform commitment; but Coalition politics added a new dimension. The Tories were keen to stop the “will he, won’t he” speculation that would inevitably surround any crisis that could come up during the term; while their partners were anxious to protect themselves against a Conservative Prime Minister arbitrarily dissolving Parliament for selfish party political reasons, and were keen to signal to the country that the coalition would remain in power for the duration, come what may.

The 2011 Fixed Term Parliaments Act, therefore, abolished the prerogative power and added a time delay to the existing Parliamentary procedure of the no-confidence motion (last successfully used to bring down Jim Callaghan in 1979), which now grants a government 14 days within which to obtain support for the re-instatement of Parliament’s confidence. In addition, a new dissolution procedure was created, allowing Parliament to dissolve itself by passing a motion to that effect with a two-thirds majority. The Act fixed the date of the 2015 general election, and included provision for a review to allow its proper functioning to be monitored.

This all seems very reasonable on paper but, in hindsight, it sits rather awkwardly next to the traditions of the British constitution, where, among other things, Ministers are entrusted with sweeping powers alongside the expectation that they are used responsibly when a genuine crisis arises. One such crisis has now arisen, in the form of the UK public’s decision to leave the European Union, which, in establishing a view within the public mind substantially at odds with that of most MPs, has undermined Parliament’s authority. The Government is having to grapple with circumstances that were not anticipated by anyone during the last election. While, in simple terms, the UK public has indisputably voted to leave the EU, there has been no serious debate about what form the UK’s future relationship with the EU should take, and consequently the Government has no authority to determine what this should be. A general election is the effective remedy to these concerns.

There are a few things that are interesting about the new Bill. The first is that it is being proposed in the House of Lords, by a Labour peer – Lord Desai. This makes it unclear if the Government have had any hand or influence in the Bill. They may be attempting to progress the matter in an arms-length fashion by persuading an opposition peer to bring the Bill forward, although it seems more likely at this stage that Lord Desai is on a solo run.

The more significant problem is that the Bill, in its initial form, leaves a number of constitutional loose ends untied, as the 2011 Act made some critical revisions to the existing body of law in this area. Chief among these was the repeal of the Septennial Act 1715, which automatically dissolved Parliament after seven years, and Section 7 of the Parliament Act 1911, which reduced this period to the more familiar five years. Under Section 15 of the Interpretation Act 1978, any repeal of an Act which itself repealed previous Acts “does not revive any enactment previously repealed unless words are added reviving it“. As things stand, the Bill in its present form would allow parliaments to continue to exist indefinitely, clearly not a desirable scenario in any democracy.

Deficiencies aside, the die has now been cast for a public debate about the effectiveness of Fixed Term Parliaments, and it will be interesting to see how the Government approaches the Bill when it eventually reaches the House of Commons, which it is sure to do if passed by the Lords during the course of the next few months. It seems very unlikely that Theresa May will attempt to get Parliament dissolved before she invokes Article 50. However, a snap election campaign conducted prior to the commencement of negotiations could grant the Government with the authority and the mandate needed to progress the negotiations and deliver the outcome. In the circumstances, repealing the Fixed Term Parliaments Act is academic, as all of the parties have committed to supporting a dissolution of Parliament if the Government supports a motion to do so. But repeal would grant Theresa May fine-grained control over the timing, an advantage she may find difficult to resist.

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