Yuan Yi Zhu: Good riddance to the Fixed-term Parliaments Act

14 Dec

Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange’s Judicial Power Project and a researcher based at Nuffield College, Oxford.

When the Fixed-term Parliaments Act 2011 Act (FTPA) was first introduced, all three major parties backed its principle. Within the decade, both the Conservative and Labour parties committed to its repeal as part of their 2019 election manifestos.

The Fixed-term Parliaments Act 2011 (Repeal) Bill, published recently, seeks to carry this commitment into British law, restoring the prerogative power to dissolve Parliament and protecting it from judicial interference, reforms for which Policy Exchange’s Judicial Power Project has argued in successive reports and articles.

What changed in the meantime? As it turned out, the evil the FTPA ostensibly sought to remedy – the Prime Minister’s ability to time elections for political advantage – was far outweighed by the new ones it created, as the antics of some members of the “dead Parliament” of 2017-2019, desperate to avoid taking their case to the people in a general election, made clear.

The FTPA did empower backbenchers – another one of its oft-touted virtues – but at the expense of the electorate, who for months were deprived from having their say on one of the most momentous constitutional developments in recent history. Worse yet, it was not even effective at what it purported to do. Of the three Parliaments elected since its enactment, only one ran the full statutory five years.

Nor has it provided the political stability it promised, quite the contrary. Hence, there is now a sizeable cross-party parliamentary majority for the repeal of that short-sighted and ill-conceived piece of opportunistic constitutional tinkering.

The new bill is a simple one. Section 1 repeals the Fixed-term Parliaments Act 2011. Section 2 revives Her Majesty The Queen’s prerogative power to dissolve a Parliament and to call a new one.

There has been some public discussion about whether the power of dissolution should not be given to the Prime Minister directly, or to require a simple majority of the House of Commons to vote for dissolution. In the end, the Government has decided to propose a return to the pre-2011 status quo, which has the advantage of intelligibility and of being rooted in the United Kingdom’s history.

Section 3, which forbids the courts from questioning The Queen’s exercise of those powers, as well as any decision leading to the exercise of them, has predictably provoked overheated criticism, including accusations of authoritarianism.

In fact, it has long been settled, at least until the Supreme Court’s prorogation judgment, that the courts should not be tempted to enter into certain areas, and the life and death of parliaments ranks high among them. Indeed, in his famous judgment in the GCHQ case, Lord Roskill specifically listed dissolution as one of the prerogative powers not “susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process”.

Under the United Kingdom’s political constitution, it is impossible to imagine a circumstance where it would be appropriate for the courts to decide on the proper timing of elections. This is a decision which involves a potent mix of high policy and low politics which is the very essence of democratic politics. There exist no legal standards against which to judge the legitimacy of a decision to go to the polls, and any attempt at judicial intervention will inevitably drag the judiciary into partisan political controversy. And the repeal of the FTPA will make it harder for parliamentarians to delay facing the people in a general election, which can only be a gain for democracy and accountability.

But in the aftermath of the Cherry/Miller (No 2) judgment – in which another related prerogative power, long thought as being immune from judicial review, was improperly brought under the courts’ control – there is a real possibility that parliamentarians, unwilling to face an early election, will try to litigate the issue in the courts. Indeed, given the courts’ proclivity to expand their dominion in recent decades, the risk was not entirely absent even before Cherry/Miller II. When the FTPA was making its way through Parliament in 2011, several constitutional authorities called for the Bill to be modified to minimise the risk of judicial intervention, but the Coalition government took the view that “the risk of the courts straying into or getting involved with them was very small”.

The risk has grown since then, and it is surely right for the Government to address the point squarely by precluding judicial review of dissolution. Not only does it protect our democracy, but it also insulates the judges from accusations of political interference, which undermines the very source of their legitimacy.

Section 4 provides for the automatic dissolution of Parliament after five years of its first meeting. By a constitutional quirk, this would mean that the life of the present Parliament would be extended by seven months, as the FtPA provides for elections to be held on the first Thursday in May every five years. However, modern parliaments almost never run for the theoretical maximum of five years – the 2015 election was the first time this ever happened in British history – so the provision is unlikely to have any impact on the date of the next election. Sections 5 and 6, as well as a schedule, deal with ancillary matters.

The Government has also published a statement on the constitutional principles governing dissolution. They are a powerful reminder of the simple axiom at the core of the British constitution: apart from in exceptional circumstances, the Sovereign acts on the advice of the Prime Minister so long as the Government he leads command the confidence of the House of Commons.

All in all, this is a simple, elegant and overdue enactment, which sets out to do exactly what it says it will do – to return the UK political constitution to its state before the Fixed-term Parliaments Act ever graced our statute books. It is to be hoped that the Government will continue to restore politics to its rightful place – at the core of the United Kingdom’s constitution.

The Government publishes its plan to repeal the Fixed-term Parliaments Act

1 Dec

A couple of weeks ago, we looked at the question of repealing the Fixed-term Parliaments Act and suggested it might be an important litmus test for how much Dominic Cumming’s departure affected the Government’s willingness to pick important, but arcane, constitutional battles.

I then raised the issue with Jacob Rees-Mogg in the Moggcast, and was assured that progress on the issue was being made and that returning to discretionary elections was on the agenda (it was, after all, a manifesto commitment).

And lo! This morning’s Times reports that the Government is indeed publishing today a bill to repeal the FTPA. According to the ‘senior Government sources’ quoted by the paper it does sound as though Ministers have elected to take the purist option I outlined in my piece: “seeking to restore the power to go to the country conferred by royal prerogative”.

According to the paper, Boris Johnson sees this as part of a wider battle to reassert traditional parts of the political constitution against outside encroachment – and as of a piece with his conflict with the Supreme Court.

The draft Bill is now available online, and the truth of these claims is plain to see in the first three clauses:

1 Repeal of the Fixed-term Parliaments Act 2011

The Fixed-term Parliaments Act 2011 is repealed.

2 Revival of prerogative powers to dissolve Parliament and to call a new Parliament

(1) The powers relating to the dissolution of Parliament and the calling of a new
Parliament that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-term Parliaments Act 2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.

(2) For the purposes of subsection (1), the powers relating to the calling of a new Parliament include powers to order the issue of—

   (a) writs of summons to attend the House of Lords, and

  (b) writs for parliamentary elections (see rule 3 in Schedule 1 to the Representation of the People Act 1983).

3 Non-justiciability of revived prerogative powers

A court of law may not question—

  (a) the exercise or purported exercise of the powers referred to in section 2,

  (b) any decision or purported decision relating to those powers, or

  (c) the limits or extent of those powers.”

If successful, passing this Bill would mean that no future coalition of opposition and backbench MPs could ever hope to usurp the Executive and bypass the checks and balances of our parliamentary system the way Oliver Letwin and his confederates attempted to do.

Whether or not Clause 3 will be protection enough against the Supreme Court, in light of their evident willingness to innovate, remains to be seen. The Government has clearly learned from the defeat of previous ‘ouster clauses’ by making sure it encompasses “purported” decisions – thus aiming to shoot the fox of judges who have circumvented previous such attempts by claiming that the decisions they quashed fell outside ouster clause laid down by Parliament.

Even as we speak, the Lords anew constitutional reality conjured up in Miller II. Might this Bill be amended to shield future prorogations behind Article IX and restore their status as proceedings in Parliament?

Repealing the Fixed-term Parliaments Act: an arcane but important battle Johnson must win

14 Nov

Yesterday morning, when Dominic Cumming’s departure was imminent but had not yet suddenly happened, we worried about what it might mean for the future course of the Government:

“But this site fears that if (or when) Cummings goes, and other Vote Leavers go with him, the winning Tory march into the north and midlands that he has done so much to craft will fade, and the Conservatives will drift back towards their southern comfort zone, more by habit than on purpose.”

Certainly the tone of the media coverage surrounding the move is that it is an opportunity for Boris Johnson to ‘reset’, and that there will be a shift in focus towards a less ‘adversarial’ approach. Cummings’ focus on deep issues such as the structure of the state also seems unlikely to continue under the new order of things.

And what of the constitutional agenda? This was already in flux – back in July, we reported that the original plan for a comprehensive Constitution, Democracy and Rights Commission from the manifesto had been shelved. Will this shift away from confrontation see a watering down of the Prime Minister’s ambitions to overhaul the Supreme Court, or the Fixed-term Parliaments Act?

The last will make an interesting test case. The FTPA is dear to the hearts of a noisy but electorally insignificant caucus of constitutional progressives. If the new-look Downing Street is unwilling to tough it out against such opposition then it augurs very badly indeed for the rest of the Conservative programme.

Although the issue has been driven completely off the radar by the pandemic, all the signs were that to date the Government has been intending to take a robust approach to repealing the FTPA, with the ultimate ambition being not just to iron out kinks in the legislation but to restore, as much as possible, the status quo ante of Prime Ministerial discretion rooted in the Royal Prerogative.

Of course, one lesson from Cummings is that it is possible – and may indeed be wiser – to practice radicalism without shouting about it. On one level a comprehensive repeal of this sort can actually be spun as a tidying-up exercise. As this piece on the LSE blog notes:

“Repealing the Act will be a tidying-up exercise removing ineffective legislation, not a major constitutional change. It will merely bring the de jure situation back into alignment with the de facto. Supporters of fixed-term parliaments may regret the Act’s demise. But in truth, it has proved largely toothless, containing the means by which it could readily be circumvented.”

The Government’s response to the report by the Public Administration and Constitutional Affairs Committee (PACAC) can be read in a similar vein. Whilst noting the shortcomings of the legislation, the MPs (led by Will Wragg, a Conservative) come out quite strongly against restoring to the Prime Minister the discretionary power to call elections. The official reply is a four paragraph letter thanking the Committee for highlighting the issues and letting them know that: “Announcements about the Government’s policy intentions will be made in due course.”

All this suggests – and various sources back this up – that the plan is to revive that discretionary power, rather than adopting a measure to leave it formally, if not always effectively, in the hands of the House. That will be a battle deliberately sought.

Beyond the question of whether or not to restore these powers to the Prime Minister is the question of how this is done. The least controversial way would simply be to set the power to dissolve Parliament (subject to a five-year maximum) in the Prime Minister’s hands via a fresh statute. But another way would be to try and revive the original prerogative power – and there were signals that this was indeed what the authors of the Government’s strategy hoped to do.

Such an approach opens two cans of worms a statute-led strategy does not. First, it means technically re-creating the monarch’s discretionary role in dissolution. Second, it forces the question of whether or not the Royal Prerogative can actually be revived. Each would be welcomed by sections of the conservative constitutional movement, certainly – but does that mean the Government will pick these extra battles?

(Those interested in this second point can get a useful overview of the debate from Section 4 of the above-linked PACAC report. The two schools are essentially that statute law either somehow destroys the prerogative power, which cannot therefore be revived, or either displaces or channels it, with the original ‘raw’ power flowing back into the space created by repeal.)

On the one hand, such a maximalist approach may not be in keeping with a new, less ‘adversarial’ overall approach to governing. But on the other, there are surely few areas where the opposition is more adrift from the electorate. The handful of potential Tory voters who might forsake the Party because it angers progressive constitutional scholars must, if they exist at all, count those scholars as personal friends.

And so we – and the parliamentary joint committee being set up to review the FTPA – await the Government’s promised repeal bill with baited breath. It will be a useful indicator of how much fight this Government still has in it.