Archive for the 'Fixed Term Parliament Act' Category

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Getting rid of the FTPA won’t be that easy

Saturday, April 25th, 2020

The Coalition’s constitutional legacy could last a little longer yet

The classic interpretation is wrong. Britain’s constitution is not unusual because it is uncodified (or unwritten, to use the inaccurate but more frequently-used description). It is, of course, uncodified – it cannot be found in a single source – and it is, in some important aspects of convention, unwritten; and while the former is unusual, to focus there misses the crucial point and places the stress on the wrong thing.

Even if all current constitutional statute were amalgamated into a Constitution Act, the United Kingdom’s constitution would still be internationally exceptional for this reason: it sits on the same level as all other primary legislation. Procedurally, it’s as easy to amend the Parliament Act (for example) as any other Act; and there is no higher Basic Law against which statutes can be measured and, if necessary, annulled. The constitution’s sovereignty resides in the crown-in-parliament, not the other way round.

There are many critically important consequences that flow from that fact but those are not for this discussion. Let’s look here instead at a lesser one, albeit one of some practical significance: that nature of the UK constitution is one of the main reasons why the Fixed-term Parliaments Act 2011 doesn’t work.

The essence of the Act was to remove the PM’s discretion in calling general elections by ensuring that Westminster parliaments last for 5 years. Casual observers of politics over the last three years will have seen that this has not been entirely effective. Closer observers will have noted the two reasons, both of which have been used for practical effect.

Firstly, the Act included a provision that parliament could dissolve itself and so create an early election on a two-thirds vote. In normal circumstances, it will always be very difficult for an opposition to refuse to go along with such a motion; if they don’t, they will appear scared of the voters – which would probably contradict their public statements. As in 2017, they will therefore support the motion, trigger the early election and reconfirm for practical purposes the PM’s power to dissolve at will.

Indeed, the 2017 experience, when Labour recovered from a hopeless situation to nearly deprive the Tories of power (and to actually deprive them of a majority), will reinforce the willingness of opposition parties to support dissolution motions: if Corbyn could do it then, why not them too?

And secondly, even if an opposition won’t play ball, the fact that the FtPA is only the same as any other Act means that parliament can simply pass another Bill to amend or override it, and trigger an immediate election – which is what happened prior to the 2019 poll.

Only in exceptional circumstances, such as earlier in 2019 when the government had no majority but parliament wasn’t willing to No Confidence it, and when circumstances meant that an election might be used as a procedural device to implement a policy by default that parliament opposed – Brexit, either on the government’s terms or without a deal at all – will the Commons reject the option to call an early poll. For most purposes, the FtPA has no ability to ensure its primary aim: that of fixing the terms of parliaments – and it has no such ability because its rules have no special status above ordinary law.

There are plenty of other criticisms we could make of the FtPA, from the constitutional innovation of post-appointment Votes of Confidence (which alters the previous implied assumption that all governments enjoy the Commons’ confidence unless demonstrated otherwise), to the two-week period of uncertainty following a successful Vote of No Confidence, which may well have been a factor in parliament not No Confidencing the 2017-9 Tory government, despite it clearly actually having no confidence in it, to the government not resigning (the other side of the same stalemate) following these defeats. This, however, is not the place to explore them, partly for reasons of space but mainly because it should be an academic argument: the Act should be on the way out.

The Tory 2019 manifesto committed the government to repealing the FtPA. Granted, the 2017 one did the same but that manifesto was so disliked by so many Tory MPs it might as well have not existed after the election. Besides, the FtPA is very useful to an opposition in a hung parliament; the repeal was never a practical option, even without the magnifying effect of Brexit. Boris Johnson has no such worries. If he wants to repeal it, he can.

Except it’s not quite that easy. The government needs to think carefully about how it goes about such a repeal and what it puts in its place.

There have been attempts before to repeal it. Alan Duncan tried to do so via a very short private members bill. Had he been successful (highly unlikely, given that this was during the 2010-15 parliament), he might inadvertently have created parliaments that last indefinitely. It’s precisely this sort of bear-trap that ministers and parliament need to be aware of, and avoid.

The problem with a bare repeal, as Duncan attempted, is that it removes the existing Act without putting anything in its place. Prior to the FtPA, the general election schedule was governed by the Septennial Act 1716, which originally set the duration of a parliament at seven years and, after the Parliament Act 1911, reduced it to five years. However, the FtPA repealed the Septennial Act and repealing the FtPA in turn does not restore that former legislation. Instead, it would leave a vacuum where the term of a parliament was not defined at all.

Worse, the FtPA also means that the Sovereign is no longer able to dissolve parliament: previously not just a prerogative power but one of the reserve powers that the monarch still exercised at her own discretion (albeit under constitutional conventions and subject to political pressures). Again, a bare repeal would not restore that power – so not only would parliament not dissolve at a pre-ordained point but nor could the PM (or, technically, the monarch at the PM’s request), generate an election at a time of his or her choosing.

In fact, there’s some debate about whether a prerogative can be so revived once statute has overridden it i.e. whether the Act that replaces the former prerogative discretion places that power into abeyance, from which it could be recalled, or whether it abrogates it entirely for all time. The Miller 2017 Supreme Court judgement touched on this point, and implied that such powers could be recalled, but frustratingly also hedged that general assertion with the word “sometimes”, without defining what might or might not allow such a reinstatement (this was a tangential point to the main ruling but, you might think, quite an important one).

If the government decides that it’s too risky to assume that a prerogative can be reinstated and that the Sovereign’s powers should instead be based on statutorily defined powers, that also brings problems: firstly, that on the face of it, the Queen’s powers would have to be defined as hugely broad in scope, which will look strange to the public; and secondly, that simply writing them down changes their nature. (The risk of their misuse being litigated is a lesser risk, given the Queen’s immunity – though that of itself is not a defence the Palace will be too keen to rely on in controversial circumstances).

Is it even worth doing? Robert Craig, in an article for Modern Law Review (see the p.s.), argues not; that the power to dissolve parliament – presumably subject to a legislated maximum term of, say, five years – should be vested in the PM, subject to a vote in the Commons. There are dangers in that, for example that the 2019 situation where a government was maintained in power and required to implement policy against its will, could be repeated in hung parliaments. Indeed, as with the FtPA, the danger with being too specific is that stated rules can often be gamed much more readily than unstated ones. I’d also argue that even if the PM is vested with that power to request, it’d still be useful for the Sovereign to retain a final backstop dissolution power, which might, in extreme circumstances, be preferable to either dismissing a government or vetoing an intolerable Bill.

Even so, much as though the FtPA had a worthy objective – to eliminate the ability of the PM to fire the starting gun in his own race, and so to establish a greater fairness within the system – it doesn’t work. Restoring the status quo ante will, however, not be a simple matter. Partly that’s a consequence of the technical reasons already mentioned, of needing to reinstate former powers. But the FtPA itself, while never gaining wide consensus as a constitutional set of rules, nonetheless introduced constitutional innovations such as Votes of Confidence and delays between VoNC’s and dissolutions, that might impact on expectations of conduct and permissible actions in the future.

Disliked though it may be, and committed to its repeal though the government is, I wouldn’t be at all surprised to see it still in place come 2024 due to a mixture of its own limited applicability (especially when you have a majority of 80), the other pressing issues the government has, and the awkward issues surrounding the Act’s repeal.

David Herdson

p.s. I am extremely grateful to Robert Craig for offering to send me a copy of his excellent and very thorough article for Modern Law Review (May 2018), “Restoring Confidence: Replacing the Fixed-Term Parliaments Act 2011”, and then doing so. His analysis, comment and ideas in that were very helpful to me in writing this piece.



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The booby trap. Prime Ministers under the Fixed Term Parliaments Act 2011

Sunday, September 29th, 2019

We are used to American presidents dominating their country’s politics.  “Commander in chief” can be understood in more than one way, given how the role has developed. It was not always thus. For most of the nineteenth century, American presidents were chiefly distinctive for their lack of distinction. In the sixty year period between Andrew Jackson to Teddy Roosevelt, only Abraham Lincoln really stood out for his achievements. Taken as a group, they were strikingly anonymous.  

Taking the very broadest view, the USA did surprisingly well from this sustained mediocrity. Yes, it had a bloody civil war and yes, its treatment of its indigenous peoples in this period was atrocious, but it transformed into a major world power in that time. It seems that strong leaders are not prerequisites for a successful country. This does not seem to be a popular view at the moment.

The British commentariat has pretty much unanimously agreed that the nation is groaning for a new Parliament to enable us all to benefit from the smack of firm government but the Fixed Term Parliaments Act has left it unable to escape its shackles.

As with many consensus views, it’s absolute rot. There is nothing wrong with the system under the Fixed Term Parliaments Act. The problem is with the politicians who haven’t figured out how to work with it.

The Fixed Term Parliaments Act has changed both more and less than seems to be understood. Let’s look first at the stuff it hasn’t changed. To get things done, a government needs to command a majority in the House of Commons. When one party has an overall majority, that’s straightforward enough. Then, the main constraint of the Fixed Term Parliaments Act is to prevent early elections without the House of Commons’ blessing.

There isn’t a problem in a hung Parliament either when a majority is formed by a stable coalition. The government did just fine between 2010 and 2015.

For the last two years, however, we have had governments that have decided to dispense with seeking to form any stable majority and instead have sought to use their executive authority to get their way. In a system of Parliamentary sovereignty, this is not so much adventurous as reckless.  

Theresa May at least vaguely saw the problem. She cobbled together a supply and confidence arrangement with the DUP and, despite knowing that her party was divided and that she might have future differences with her new chums, hoped that would prove sufficient. It didn’t.

Boris Johnson didn’t even try. So far from conserving and building it, he has burned through his voting support. He has built a reliable majority against himself and in the process demonstrated his noisy impotence.

It turns out that if you want to get your way in the House of Commons, you need to have more votes than the other side. Who knew?

What the Fixed Term Parliaments Act has changed is how a Prime Minister who has lost his or her majority then leaves office. Defeats even on a central plank of policy do not evict the tenant of Number 10. A Prime Minister declaring that a matter is a vote of confidence does not do the trick – Boris Johnson tried that, but on losing declined to resign.

A Prime Minister leaves office alive only in one of three ways: he or she resigns; he or she loses a vote of no confidence and does not win a vote of confidence within 14 days; or a general election is called (whether by effluxion of time or in accordance with the provisions of the Fixed Term Parliaments Act).

This means that a Prime Minister who has lost his or her authority in the Commons rapidly loses their dignity too. They are trapped in office until their opponents decide to stop toying with them. Political opponents have a strong interest in destroying your reputation. Theresa May discovered, as Boris Johnson is discovering, that they are ready to take it.

How can would-be Prime Ministers in a hung Parliament avoid this fate? Here are a few simple tips.

  1. Construct a stable majority

This worked well for David Cameron between 2010 and 2015. It would work well again. Aim for full coalition rather than confidence and supply. That way the rascals have less scope to cause trouble.

Of course, that entails serious compromise up front. That’s the bit that most people find hard. Is that such a terrible thing in a Parliament where opinion is evenly balanced though?

  1. Don’t try to do too much

If your coalition spans a wide range of opinion or is fragile, keep your agenda focussed. Do less but do it.  

That is also a problem for politicians who want to launch eye-catching initiatives. That’s probably no bad thing either.

  1. Let someone else do the hard work

The most influential politician in a hung Parliament is very often pulling the strings rather than being the marionette. So often in life, you can either be the one who solves the problem or the one who is the problem. In my experience, being the problem is a lot more fun.

So if you’re influential and smart, always consider sticking someone else in the top job.  Let them wrestle with the challenges while you pose them. If they don’t oblige you, you can probably torture them until they accept your control. “Uneasy lies the head that wears the crown” has a new meaning now.

Alastair Meeks




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Small minds and Brexit. Jeremy Corbyn’s latest gambit

Thursday, August 15th, 2019

His letter’s a strategic mistake

The real fight starts here. Jeremy Corbyn has written to other opposition party leaders suggesting that if he calls a vote of no confidence in the government, he stands ready to lead a temporary government to obtain an extension to the Article 50 notice and then call a general election.

Perplexingly, this ecumenical offer has met with a cool reception. The Lib Dems have given him the thumbs down on the ground that he would lack the necessary support. The Greens are willing to vote for him but have asked him whether he would support someone else if he failed to gather the necessary support. The remnants of Change UK, who still comprise 5 MPs, have described this as a stunt (given they weren’t copied in on the letter, you can understand why they were miffed).

Jeremy Corbyn stakes his claim to lead such a government on the basis that he leads the second largest party in Parliament. It is his only claim to that role.  

He has shown all the leadership on Brexit of a damp dishcloth. He has dismayed his party with his reluctance to entertain the idea of revisiting the referendum result. The Labour leadership’s policy contortions have led them to the position that they would renegotiate the withdrawal agreement and put that to a referendum, while reserving the right to support or oppose it. The EU might see a negotiation where you are maintaining the right to oppose it in a referendum as bad faith, but that is evidently a secondary consideration to the perceived need to triangulate on Brexit.

He has already lost control of his Parliamentary party, especially on Brexit.  Tom Watson is already working with the Lib Dems. He no doubt does so with the backing of many of his fellow Labour MPs.

He is catastrophically unpopular with the public. If Boris Johnson wanted a poster child for the opponents of Brexit, Jeremy Corbyn would be that man.  Leavers are prepared to countenance the break-up of the union, the destruction of the Conservative party and the slaughter of the first-born in order to secure Brexit. The one thing they are not prepared to countenance is Jeremy Corbyn as Prime Minister. He would be delighted to go into a general election after such a temporary coalition. His opponents would be shackling themselves to a corpse.

So even the most ardent Corbynite is going to struggle to keep a straight face when arguing that the only conceivable leader of a government to extend the Article 50 notice is Jeremy Corbyn.  

The whole debate is in any case misconceived. The small minds are discussing people. Let’s get back to the idea, which is what great minds should be discussing. The idea is to stop a no deal Brexit taking place without a mandate. If all those arguing are serious about stopping a no deal Brexit without mandate, the person to get the top job should be the person most capable of ensuring that.

If that is accepted, the question should then be who that person would be.  The reaction to Jeremy Corbyn’s kite-flying has shown that it is not him.  

Jeremy Corbyn has made a strategic mistake writing his letter now. He must have been aware that he would struggle to put together a rainbow coalition behind him. He has made his gambit too early and as such he has made it too easy for others to move onto alternative candidates and ask Labour figures why they would be unable to support them. If he had written his letter on the return of Parliament, he may have been alternativeless.

So who might act as a suitable placeholder for temporary Prime Minister? The critical point to note is that if it is not going to be Jeremy Corbyn, any candidate who is going to succeed in commanding a majority in the House of Commons is going to have to be someone who is acceptable to him. He is going to have a lot of agency. We can immediately on that basis exclude Jo Swinson (a dangerous political rival) and any leading Labour figure who might eclipse him in the role. You can safely lay her on Betfair at anything like current prices.

The possibilities are therefore unthreatening leaders of minor parties or clapped-out grandees. Jeremy Corbyn has good relations with Caroline Lucas and there would be the collateral advantage that if the Greens did well it would be at least partly at the Lib Dems’ expense. You can back her at 66/1 with Ladbrokes for next Prime Minister (I previously backed her at 100/1).

You can get 200/1 on Liz Saville-Roberts, leader of Plaid Cymru at Westminster. Ladbrokes haven’t yet listed Ian Blackford, leader of the SNP at Westminster, but you might take a punt on either of these if you can at suitable odds – both might represent experienced politicians who seem lacking in danger for those they need to corral. The truly adventurous might consider Lady Sylvia Hermon at 200/1, who doesn’t even have a party. She is not, however, a fan of Jeremy Corbyn and since he is a man to bear grudges, this is one long shot bet I don’t fancy.

More likely, it is going to be a grandee. Jo Swinson suggested Ken Clarke, which is almost certainly the kiss of death for his chances.  I wouldn’t touch him at the current odds of 25/1 (and have laid him on Betfair). It’s hard to imagine Jeremy Corbyn supporting any Conservative.

So look to senior Labour figures.  Margaret Beckett or Ed Miliband (both so far unlisted by Ladbrokes, though you can back Margaret Beckett on Betfair at 55 at the time of writing) are both possibilities. Much will depend on personal affection, I suspect. Insiders are at a definite advantage here.

In truth, such a government remains unlikely. If it is going to happen, it needs Labour support and some flexibility from them. So plan your betting accordingly.

Alastair Meeks




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Can we end this “snap election” speculation – TMay, like Dave before, simply does not have the power to call one

Thursday, March 30th, 2017

Everybody seems to be ignoring the Fixed Term Parliament Act

In the latest PB polling matters podcast we hear that polling has been going on asking the public what they think of the idea of having an early General Election. The responses are interesting but they ignore one pertinent fact:

    The prime minister, unlike all those before Cameron, does not have the personal power to go to the monarch and seek the dissolution of Parliament. The Fixed Term Parliament Act has changed that.

This legislation came about as part of the 2010 coalition deal between the Conservatives and the Liberal Democrats. It was pressed for by the yellow team because they didn’t want to get into a situation where the Tories could just govern for a year or so and then go straight to the country when circumstances appeared most right ditching them.

The Act remains in force and will do so until such time as it is repealed. But that process of itself might not necessarily return the discretion to the prime minister. In any case a repeal act would have to go to both houses of parliament and it is highly possible that the measure could run into trouble in House of Lords which could delay it.

There are two provisions in the act for early elections and both present enormous hurdles. Firstly there can be one if two-thirds of the entire House of Commons votes for one. The proportion is based on the total legal number of MPs and would including vacancies, abstentions and, of course, the Sinn Fein representatives who do not take their seats.

    In the current Parliament 434 MPs would have to back the measure. That would mean getting Labour agreement so the choice would be in Mr. Corbyn’s hands.

The the other way a snap election can be held is if there is a vote of no confidence in the government which is not rescinded within 2 weeks.

So the Tories could have a contrived vote of no confidence in themselves which if passed would mean Mrs May would have to go to the palace and tell the Queen that the Commons had no longer any confidence in her government and she would have to resign.

In this case the sovereign would probably call the alternative Prime Minister in waiting, the leader of the opposition, to see if he could form a government.

Clearly that would be very difficult but there is just a possibility that Mr Corbyn could become Prime Minister for a very short period even if he lost a confidence vote himself a few days later.

    A reason why Labour MPs might not back a Commons motion calling for an early election is that it is so much better for them if they force the government to go through the vote of confidence process.

No doubt Mrs May has taken her own legal advice on this issue. One of the reasons why she has steadfastly ruled out an early election is that she knows the difficulty.

If you don’t mind locking money up for three years bet on a 2020 general election.

Mike Smithson