Is This The End Of The Road For The Fixed-Term Parliaments Act 2011?

Regular readers of my blog will know that I’m not a fan of the Fixed-term Parliaments Act 2011. I think it was a cynical ploy to stabilize David Cameron’s coalition government, and it has done far more harm than good. Interestingly, it seems that both Boris Johnson and Jeremy Corbyn now share that view, as they have pledged to repeal the Act in their respective manifestos. But what would a post FTPA-regime look like?

The simplest option would be to revert to the pre-2011 status quo. However, it’s not clear how that would work. The FTPA replaced the royal prerogative power to dissolve Parliament with a statutory mechanism, but legal commentators have expressed doubts that simply repealing the Act would be enough to revive the old prerogative power.  The prospect of once again giving the Crown (i.e., the Prime Minister) unfettered control over the timing of a dissolution might also be hard for MPs to stomach.[1]  

Another option might be to keep the principle of fixed-term Parliaments but simply lower the threshold for calling an early election—say a simple majority of MPs rather than the 2/3 majority required under the FTPA. Of course, since governments usually enjoy a majority in the Commons, it’s debatable whether this would represent a meaningful check on the Prime Minister’s power. And if the Prime Minister can effectively end a Parliament whenever they choose, the whole idea of a fixed-term Parliament would likely continue to be a political fiction.  

There’s also the question of confidence to consider. Before the FTPA, the government could lose the confidence of the House of Commons a number of different ways (e.g., defeat on key proposals or the Address in Reply to the Queen’s Speech) beyond formal votes of no confidence. After the FTPA, everyone acted as if a government could only lose confidence if it lost a vote under section 2(4) of the Act. This wasn’t actually true–as the House of Commons Public Administration Committee noted in 2018:

If the House of Commons resolves, by whatever means, that it has no confidence in Her Majesty’s Government, this removes the incumbent administration’s authority to govern. It is for Parliament, not the Government, to assert the terms under which this confidence (or lack thereof) is expressed. This can be through the Fixed-term Parliaments Act 2011 statutory motion, or through a non-statutory motion of no confidence, or through a vote to which the matter of confidence has been clearly attached by the Government. Any expression of no confidence by the House in the government, removes the authority to govern. 

Still, over-emphasis of section 2(4) of the FTPA meant that both Theresa May and Boris Johnson were able to carry on in government even after they had arguably lost the confidence of the House. If it weren’t for the FTPA, May would probably have called an election after Parliament’s initial rejection of her Brexit deal, which might have precipitated a speedier resolution of the Brexit quagmire. If a Johnson or Corbyn government wishes to keep the principle of fixed-term Parliaments, they will need to consider how to clarify issues of confidence.

Ultimately, a return to the pre-2011 status quo is probably the least problematic option. If the prerogative power of dissolution can’t be revived, then it could be replaced with an analogous statutory power. This may not be a perfect solution, but it’s preferable to the constitutional mess caused by the FTPA.

[1] While the Sovereign traditionally had the leeway to disregard a Prime Minister’s request for a dissolution in certain circumstances (e.g., the Lascelles Principles), they were generally expected to accede to their premier’s request.  

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1 Response to Is This The End Of The Road For The Fixed-Term Parliaments Act 2011?

  1. Pingback: Government Unveils Bill To Repeal The Fixed-term Parliaments Act 2011 | A Venerable Puzzle

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