The Joint Committee on the Fixed-term Parliaments Act, which met for the first time on 26 November 2020, has now finished its oral evidence sessions. This blog will attempt to give a brief overview of some the issues that have been investigated by the committee in these sessions, and the key points of contention on these issues amongst the various witnesses. But first some background will be instructive.
The Fixed-term Parliaments Act 2011 required the establishment of a committee to review its operation before the end of November 2020. The Joint Committee on the Fixed-term Parliaments Act was duly appointed to (a) review the Act’s operation and (b) consider any draft government bill on the repeal of the Act.
Prior to 2011, the power to dissolve Parliament for a general election was a royal prerogative, exercised by the Queen at the request of the Prime Minister. The Act removed this power and created statutory conditions for the calling of early general elections. Unless the Commons agreed otherwise by a two-thirds majority, or a motion of no confidence in the government was passed, and a different government could not be formed, then a full five years would be expected to pass between general elections.
On 1 December 2020, the government published the draft Fixed-term Parliaments Act 2011 (Repeal) Bill. The draft bill seeks to return to the pre-2011 system when dissolution was a royal prerogative, ensuring that the PM is able to call an early election without parliamentary approval.
The 2011 Act set out the terms of reference for the committee as: ‘to review of the operation of this Act and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of this Act’. However, in publishing the draft repeal bill at the outset of the committee’s work, the government have in essence taken a decision before the committee has had the opportunity to consider the issue as required by the statute. Perhaps inevitably, attention has been focused largely on scrutiny of the draft legislation, rather than whether the Act should be repealed, amended or maintained. It has also narrowed the opportunity for the committee to thoroughly examine some of the more fundamental constitutional questions at play.
Abeyance or abolished?
One of the questions being pursued by the committee off the back of the government’s draft bill is whether the source of the power to dissolve parliament, as set out in the draft legislation, would be the royal prerogative or statute. This debate has divided opinion on a number of levels.
Professor Alison Young first argued that it is not clear whether, if passed, the new Act would revive the power as a prerogative power, with its origin in common law, or whether it would have the same content as the previous prerogative power, but would, in form, actually be a statutory power. Professor Anne Twomey came out clearly in saying that she did not believe Parliament could revive the power as prerogative, “because by definition a prerogative is a non-statutory Executive power.”
Lady Hale and Lord Sumption agreed with Professor Young and Professor Twomey that whether the power had its source in common law or statute could make a difference to how it is approached by the courts. Nevertheless, they both felt (Lord Sumption more strongly than Lady Hale) that the draft bill revived the common law prerogative.
Sir Stephen Laws, however, said that the debate was irrelevant, as the practical outcome should be the same either way: if Parliament wants the power to be the same as it was before 2011, then it is the duty of the courts to see it as such.
This brings us to the controversial ouster clause contained in the draft bill. Clause 3 ‘ousts’ the jurisdiction of the courts not only from the exercise of the power of dissolution, but also its purported exercise and ‘the limits or extent of those powers.’
Again, unsurprisingly, there have been a number of points of contention here. Firstly, if it came down to it, would it actually succeed? Lord Lisvane and Sir Malcom Jack were clear that they did not believe the clause would necessarily prevent the courts from looking at the power of dissolution. Professor Young was also sceptical that the clause would work. Lord Sumption said that the courts could usually find a way out of ouster clauses if they are “sufficiently desperate”. However, he shared Professor Philippe Lagassé’s position that the clause should “discourage any intervention on the question of the Dissolution.”
Be this as it may, a more fundamental question was raised in the form of whether Parliament should be comfortable with excluding the courts in such a way at all. This point was made most forcefully by Sir Oliver Letwin, who argued that, “if you have a prerogative power and the courts cannot question the scope of its implementation, you have in effect created an unlimited power.” Lady Hale echoed these concerns: “can a Parliament be happy about giving the Executive the power to do something that is not within its powers?” Whilst there were others, including Lord Sumption, who agreed with this in principle, they argued that the nature of this power made it different – the Prime Minister should always be able to go to the electorate without being stopped by the courts.
Back to the future: conventions and the Queen
With the courts ousted from the picture, it would fall solely to the monarch to act as a constitutional check on the power of the Prime Minister to call an election. Does this not risk bringing the monarch into the political fray? The monarch has the Lascelles Principles, originally set out in an anonymous letter to The Times in 1950, and her Principle Private Secretary to guide when it would be appropriate to decline a PM’s request for dissolution. Is this sufficient? Many think not. Sir Oliver Letwin argued that it would be better to codify the power as Prime Ministerial than risk dragging the Queen into politics. On the other hand, Lord Butler expressed the view that the desire to avoid putting the monarch in such a position was a valuable deterrent against impropriety.
Alongside the draft repeal bill, the government has published a statement of non-legislative principles relevant to dissolution. On this the witnesses were in agreement – the statement is not fit for purpose. Whilst the draft bill seeks to go back to the pre-2011 situation, the principles document does not outline what that situation was in any great detail, failing to mention, or in some cases misstating, some of the relevant principles and conventions around dissolution.
Many argue that the Fixed-term Parliaments Act muddied the waters around what constitutes a vote of confidence in the government; by stipulating under what circumstances a confidence vote could lead to dissolution, the Act narrowed what the government perceived to be matters of confidence. The draft bill seeks to return to arrangements as they were before the Act was passed, which were based primarily on shared assumptions and conventions. The broader question here that the committee put to the witnesses was whether it was possible to return to a set-up largely based on conventions, when those conventions had since been superseded by statute. As Sir Malcom Jack observed, conventions by their nature change over time; yet, they are also, as he quoted from a recent Constitution Society pamphlet, ‘long-standing and accepted practices’. Many members of the current Parliament have no experience of these prior practices. A much more detailed, comprehensive and accurate statement of the principles is needed – perhaps, as Lord Hennessy and others suggested, contained within the legislation itself.
The preoccupations of the joint committee, as briefly summarised here, might appear impenetrable and highly academic to many readers. The deliberations held so far give rise to two more general observations about the process of constitutional change in the UK.
Firstly, as we have seen, the particularities of the government’s proposed approach are ambiguous enough to generate both confusion and considerable differences of opinion amongst highly-learned and experienced witnesses. As both Professor Young and Lord Hennessy mentioned, this is not conducive to good constitutional reform. In order for institutions and political actors to be trusted by the electorate, it is important that where power lies and the conditions under which it is exercised are comprehensible and understood. As Minister for the Cabinet Office, Michael Gove, himself told the committee, ‘one thing about constitutions and political arrangements is that the better understood they are, the better the public can use them to get what they want in a democracy’. Yet it seems clear that the system which the draft legislation seeks to create does not pass this test.
Secondly, as previously mentioned, in publishing the draft legislation at the beginning of the committee’s deliberations, the government have set the parameters of the debate, leading it to be largely orientated around the detail of its approach, rather than the more fundamental constitutional question of the appropriate limits of executive power. This is not a fact that that has escaped the witnesses. As Professor Lagassé observed, “It is less about whether this is a prerogative or not a prerogative, or returning to some past as it existed; it is more a question of, within the current British constitutional construct, what should be the balance of power between the Government and the House of Commons.” When asked why the government did not wait to hear the committee’s recommendations before bringing forward its bill, Gove said, “we wanted to crack on.” Given that the outcome of this process will have far-reaching constitutional implications, haste is surely not a sufficient or appropriate justification.
Professor Petra Schleiter and Dr Thomas Fleming have previously argued on this blog that, as ‘a matter of procedural fairness, election-calling should remain a matter for parliament, not government.’ In one of the later evidence sessions, Professor Robert Hazell steered the committee in this direction, citing evidence from Professor Schleiter’s research that allowing the PM the power to choose the timing of the election confers a significant advantage. This evidence was put to Gove by the committee, whose response indicated this was, unsurprisingly, not of particular concern to the government. It is therefore doubly important the committee take it into full consideration when making their recommendations.
As is typical with constitutional change in the UK, the executive has ensured that this process is taking place on its terms. This may well be to the detriment of the durability and legitimacy of whatever settlement is in the end reached.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
Alex Walker is The Constitution Society’s Communications Manager. He manages, edits and contributes to the blog.