27 November 2019

While there are good reasons to repeal the Fixed-term Parliaments Act 2011, Raphael Hogarth says the next government must approach this project with care to avoid further problems.

Labour and the Conservatives have both pledged to repeal the Fixed-term Parliaments Act (FTPA) if they win the election.

The FTPA provides that general elections are held every five years, unless Parliament calls an early election. Under the Act, an early general election can take place in two ways: if two-thirds of MPs vote for one or if the government loses a vote of no confidence and neither that government, nor any alternative, can win a vote of confidence within a fortnight.

The Labour and Conservative manifesto pledges make it likely that the FTPA will be repealed by the end of the next Parliament. But what system will Parliament put in its place?

There are big problems with the Fixed-term Parliaments Act

The first is the problem of the messy fortnight. It is not clear who should govern in the two-week period that follows a vote of no confidence under the FTPA. Maybe the prime minister is under a duty to resign immediately. Maybe he need only resign if MPs indicate that they prefer an alternative (though the Act specifies no mechanism for them to do so). Maybe the prime minister does not have to resign, but can wait out the fortnight and get an election.

Second, the FTPA has created a problem of disputed confidence. There is no longer a consensus in Westminster on what counts as a “vote of no confidence”. Only a motion with the wording specified in the Act – “that this House has no confidence in Her Majesty’s government” – will trigger the 14-day period. Experts agree that other matters traditionally seen as “confidence” issues, like the budget and the Queen’s Speech, are still confidence issues, meaning that previously governments would resign if defeated on them. But this does not appear to be understood by all politicians.

Third, the FTPA has created a problem of paralysis. If Parliament refuses to vote for either the government’s business or an election, then the process of government grinds to a halt.

No wonder, then, that there are calls for reform.

It is not clear whether repealing the Fixed-term Parliaments Act altogether is possible or desirable

Before the FTPA existed, dissolving Parliament and calling an election was a prerogative power: the prime minister sought a dissolution from the monarch, who (normally) said yes. If the prime minister lost a confidence vote, they could either seek a dissolution or resign and let someone else try to form a government.

Attempting to restore that position would get round the big problems with the FTPA: the messy fortnight would no longer exist, there would be no special statutory confidence votes to muddy confidence conventions, and legislative paralysis could be avoided by the prime minister going to the country and trying to secure a fresh mandate.

However, there are also potential drawbacks to this approach.

For one, some lawyers think it is impossible. Prerogative powers, such as the old powers to seek and grant dissolution, are the last vestiges of authority enjoyed by the monarch. As a matter of logic, a historical artefact, once destroyed, cannot be built from scratch.

Parliament could try to get round that by making it clear in legislation that its intention is to restore the pre-FTPA law. That would, however, mean letting go of what is good in the FTPA.

The age before the Fixed-term Parliaments Act was far from perfect

First, for all its faults, the FTPA does stop an incumbent government from timing an election for maximum partisan advantage, resulting in a fairer contest. Research has found that, on average, a prime minister gets a vote share bonus of 6% in the UK when they pick the election date, doubling the chances that they stay in office.

Second, going back to a prerogative power would mean involving the Queen in dissolution again. That increases the risk of dragging her into politics.

Third, in light of the recent court case on prorogation, returning to a prerogative power could see dissolution subject to legal challenge. The FTPA avoids this as it makes dissolution a parliamentary process, and the courts are not allowed to question proceedings in Parliament.

The next government could try to keep the Fixed-term Parliaments Act's benefits and ditch the drawbacks

Neither keeping the FTPA nor trying to restore the old system is without risk. A possible middle way might be to modify the Act, trying to preserve what is good and amend away what is bad.

If the power of dissolution is kept in Parliament, rather than with the prime minister, then the problem of paralysis inevitably remains. But Parliament could try to solve the problem of the messy fortnight by legislating to clarify what happens in the infamous 14-day period. For instance, Parliament could clarify whether the incumbent government has the right to wait out this fortnight without resigning. In addition, Parliament could provide that the government must table an amendable confidence motion at a certain point during the 14 days, to give MPs a clear opportunity to express a view about who, if anyone, they want in Number 10.

There are also efforts underway to solve the problem of disputed confidence. The Public Administration and Constitutional Affairs Committee released a report in December 2018 saying that nothing in the Act affects pre-existing conventions on confidence. A section to this effect could even be added to the FTPA.

No solution is perfect. The situation pre-FTPA was a mess in some ways; the FTPA is a mess in others. If the next government is going change the system again, it needs to make sure it doesn’t mess up the constitution further still. A one-line bill to repeal the FTPA is no panacea.

Comments

The FTPA has its origins in the 2010-15 coalition, and was designed to reassure the Lib Dems that the Tories wouldn't ditch the coalition as soon as they thought they didn't need it. We don't know that the country won't need it for some future Parliament in the same situation. So repeal might make it more difficult to form coalitions in future.
The Act does, however, signal a constitutional position that the electorate can have confidence that, at a general election, the default position is that they are choosing their representatives for a five year period, not just for as long as the government (or Parliament) decides they should serve. The sections of the Act dealing with early dissolution ought to be used as a last resort; the recent attempts to use them otherwise do not show that the Act is intrinsically flawed. That said, I agree that they might be improved, and I certainly agree that a one-line Bill is no panacea.