The unseemly haste to introduce fixed term parliaments

Authors:

[First Published on Thursday 16th September 2010]

This archive item is a window onto issues as they appeared at the time. It contains facts and opinions which may have been superseded by subsequent events.

Following five hours of debate, the Coalition’s Fixed-term Parliaments Bill received its second reading on Monday 13th September and was passed with a government majority of 288.  A long-standing policy of the Liberal Democrats, fixed-term parliaments have become a central plank of the Coalition’s plans for constitutional reform.

How it works at present:

  • The UK does not have fixed term Parliaments and the only requirement is that Parliament must be dissolved after five years.
  • In reality, it is the Prime Minister who decides when to dissolve Parliament and call a general election. (Constitutionally, the dissolution of Parliament is a prerogative power of the Queen who exercises that power on the advice of the Prime Minister. Theoretically the monarch has a discretion as to whether or not to grant a request for dissolution by the Prime Minister.)
  • Current constitutional practice requires a  government to resign or to seek a dissolution if it loses a vote of no confidence

Considerable discretion is allowed because there are no clearly defined parameters as to what constitutes a vote of no confidence.  Even the inability to pass statement legislation could be construed as such.

What the Bill does:

  • Provides for fixed days for parliamentary general elections every five years, ordinarily the first Thursday of May – so the next general election would be  held on 7th May 2015.
  • The Queen would lose the prerogative power to dissolve Parliament and dissolution would occur automatically (intended to curtail the ability of the Prime Minister to call a snap general election).
  • Earlier dissolution of Parliament and therefore the triggering of a general election would occur in the event of:
    • (a) a vote of no confidence in the incumbent Government (passed by a simple majority), followed by a fourteen day period during which no other Government receives a vote of confidence from the House.
    • (b) a vote for immediate dissolution passed by a two-thirds majority of all MPS, including vacant seats – 434/650 or 400/600. (The two thirds majority replaced an original proposal for a vote of 55%, which caused a furore amongst politicians and commentators alike).
  • A mid term dissolution would reset the clock, so that the next election would follow five years later (unless dissolution occurred within one year of a general election).

What the Bill doesn’t do:

  • Make clear what constitutes a vote of no confidence.  Determining whether there had been a vote of no confidence would fall to the Speaker, who would issue a conclusive certificate as to whether a no confidence vote has been carried or not.
  • State whether there will be a change in the current relatively flexible method for determining which votes will trigger a change of Government.

According to Jack Straw these uncertainties risk “opening up the possibility of a lame-duck Administration and constitutional limbo”.

Constitution making on the hoof?

During the debate in the second reading, the Coalition faced accusations by Bernard Jenkin of “constitution making on the hoof”.  The legislation has received no pre-legislative scrutiny and, like its sister bill on Alternative Voting and boundary changes, it is being rushed through Parliament.

The nature of its introduction contrasts the Better Government Initiative recommendation (Jan 2010) that:

the … Committee which considers a proposal for new legislation should satisfy itself that legislation is genuinely needed and …meets the required standards of preparation and explanation and satisfies the principles of good legislation

despite the welcoming of this recommendation by both the Liberal Democrats and the Conservatives at the time.

Commentary and debate on the bill to date sheds no light as to the reasons for curtailing the necessary scrutiny of a bill which makes profound changes to our constitution:

April 2010

In their manifesto the Liberal Democrats pledged to “introduce fixed-term parliaments to ensure that the Prime Minister of the day cannot change the date of an election to suit themselves”. The Conservative manifesto contained nothing specifically on fixed-term parliaments, but did contain a pledge to make “the Royal Prerogative subject to greater democratic control so that Parliament is properly involved”

The emphasis, therefore, appeared to be on a desire to limit the power of an incumbent Government to trigger an election on a date to suit itself.

Start May 2010  

The move to fixed-term parliaments appeared as the ConLib Coalition’s first pledge for ‘political reform’ in their post-election Coalition Agreement, which promised to provide for the  “dissolution [of Parliament] if 55% or more of the House votes in favour”, apparently meaning that votes of no confidence would require a 55% majority of the House rather than the existing simple majority.  This sparked a media frenzy. Critics feared that the Coalition sought to entrench their position in the Executive by linking fixed-term parliaments to a higher threshold of support necessary to cause dissolution.

14th May 2010

Sir George Young MP (Con, Leader of the House) explained that the higher threshold for votes of no confidence makes it harder for the prime minister to call a snap election for his partisan interest and instead ensures that the decision is in the hands of MPs

David Cameron said I’m the first Prime Minister in British history to give up the right unilaterally to ask the Queen for a dissolution of Parliament. This is a huge change in our system, it is a big giving up of power…..but I believe that it is a good arrangement to give us strong and stable government

25th May 2010

In a Commons debate Christopher Chope alluded to the subtle change in background to the Bill, saying the Prime Minister is giving up his constitutional right to request a Dissolution, and I can understand that that is very important-a matter of honour between himself and the Deputy Prime Minister. It means that the Prime Minister cannot pull the rug from under the coalition, but why do we need legislation or, indeed, a motion to achieve that? Surely the Prime Minister’s word is sufficient.

5th July 2010

In a Commons debate Nick Clegg informs the house that the 55% first suggested will be changed to a two thirds majority. The proposals for a vote of no confidence and dissolution “should make it absolutely clear to the House that votes of no confidence and votes for early Dissolution are entirely separate, and that we are putting in place safeguards against a lame-duck Government being left in limbo if the House passes a vote of no confidence but does not vote for early Dissolution.” 

15th July 2010

Nick Clegg tells the Select Committee on Political and Constitutional Reform “The closer we looked at it (the Fixed Term Parliaments Bill) given its constitutional importance we thought it better and more proper to move to legislation on a quicker timetable”.  The logic of curtailing scrutiny because of constitutional importance is unclear.

22nd July 2010

Fixed Term Parliaments Bill published and first reading. The 55% threshold had been withdrawn and the new provisions, summarised above had been introduced; there was no debate on the first reading of the Bill and the explanatory note does not explain the reasons for the changes from the proposals as set out in the Coalition Agreement.

13th September 2010

Second Reading of the Bill passed with a government majority of 288 despite serious criticism from both Labour and Tory MPs.  Chris Bryant, amongst others, argued against the 5-year term, Chope criticised the move away from a new PM necessitating a new election and Bernard Jenkin complained that the power to dissolve Parliament by a simple majority was being taken away from MPs.  Clegg defended the Bill against claims that the courts could intervene in dissolutions and insisted that it is “not about the internal dynamics of this coalition”.

What difference could the legislation make?

Several other jurisdictions (including the USA, New Zealand, Australia and Scotland) successfully employ fixed term parliaments, although the fixed term is often four years, rather than five.

Potential advantages:

  • It could remove the allegedly unfair advantage currently held by the incumbent Prime Minister of choosing a favorable date;
  • It could prevent a period of uncertainty which can impact the government and the economy in the months preceding an anticipated general election when the precise timing is not known;

Potential disadvantages

  • It may lead to more coalition governments, since an administration losing a vote of no confidence would prefer to find a partner rather than call a general election;
  • The Prime Minister could try to circumvent the rules by engineering a vote of no confidence in his own government to force an election;

What Needs further debate?

  • Whether the term should be four or five years. Professor Hazell has pointed out that a five year term is long by comparison with most other parliamentary systems and is not reflective of the length of UK Parliaments since the second world war, most of which have lasted less than 4 years.
  • How the five year programme will interact with other electoral cycles in the UK.
  • The implications of a dual threshold for the early dissolution of Parliament – an ordinary majority and the super majority.  This could give the incumbent government a latent advantage (the current Tories would only need to muster less than 4% further support to be able to change Government without an election.)
  • The definition of a confidence motion and the possibility of the Speaker being involved in controversy.
  • The new ‘super’ two-thirds majority vote for immediate dissolution is easily capable of being blocked by any party holding more than 33% of the votes in the House.  In no general election since 1900 has the party forming the government or the principle party in a coalition achieved less than 41% of the total number of MPs.
  • The abolition of the Queen’s prerogative power will make the new system less flexible than the existing system, with the potential for unforeseen consequences.
  • The immediate impact on the current Parliamentary session.  The Coalition has announced the cancellation of the next Queen’s speech, and therefore a two-year Session running until May 2012, without providing for debate of this issue.

Why the hurry?

Unless the Coalition partners are secretly expecting their pact to fall apart in the near future, it would seem that this Bill relates to matters which are unlikely to come to a head within the next year or two, so it might have been assumed that there was ample time for consideration and debate.

In response to questioning on the day of the Bill’s publication, the Leader of the Commons argued that an absence of pre-legislative scrutiny was inevitable, a natural consequence of the amount of legislation introduced in quick succession in the first term of a new Parliament with a new Government.

In contrast, the Chairman of the Commons’ Political and Constitutional Reform Select Committee, wrote to the Deputy PM condemning the Government’s legislative timetable, which denied them “any adequate opportunity to conduct this scrutiny”.  Unlike the Voting Systems Bill, which has an intended date for referendum looming, Graham Allen complained that “it remains unclear at present why this [Fixed Term Parliaments] legislation is regarded as so urgent.”

Mark Harper, Minister for Political and Constitutional Reform, committed the Bill to the House for its second reading with the promise that at Committee stage “any Member will be able to raise their concerns on the Floor of the House”, indicative of the continued controversy surrounding the provisions of a Bill whose principle enjoys cross-party support.  Indeed Jack Straw has put “absolutely on the record” that Labour will reconsider their support of the legislation at its Third Reading if their concerns with the provisions of the Bill are not addressed.

Put simply by the Shadow Deputy PM, there is yet to be any serious explanation as to “why the Government are bolting it”.

This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.