24th March 2022
So farewell then, the Fixed-term Parliaments Act 2011.
You will be remembered, if at all, for two things.
First, that nobody could ever remember exactly the arrangement of lower-case letters, or the hyphen, or whether ‘term’ was plural, or whether ‘Parliaments’ was singular, in your title – at least without checking.
Second, that you were a singularly useless piece of legislation.
You were to ‘enshrine’ fixed-term parliaments ‘in law’.
Ho ho.
But you were circumvented in 2016, when it suited politicians.
And you were circumvented in 2019, when it suited politicians.
And you were going to be circumvented again and again whenever it suited politicians.
Yes, there may have been an indirect effect in that any circumvention of the Act was not that simple.
But circumventions were not that difficult either.
In the end, you turned out to be more of an ornament than an instrument.
And today you were repealed.
Dissolution and calling of Parliament act 2022 has gained Royal Assent
— PARLY (@PARLYapp) March 24, 2022
You have now gone the same way of so many other things that were once ‘enshrined in law’.
Ho ho.
Another exercise in fundamental constitutional reform that was not thought-through.
And now we are back – legally literally – to the legal and constitutional position we would have been in had you never been passed.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
It is an extinct provision. It has ceased to be.
This Act is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace!
I’m not sure it was such a bad idea. Its unintended consequence was to transfer the power to call an election from the Executive (in the person of the Prime Minister) to the Commons. In my opinion its finest hour came in 2019 when the Tory government was prevented from calling an early election. If only opposition MPs could have used that time to win support for a second referendum, though.)
But, ultimately, the opposition parties did enable the December 2019 election by supporting a vote giving the necessary two-thirds majority for a general election before 5 years had elapsed since that in 2017. Had they not so voted, we might have had a government of national unity during the Covid-19 pandemic (without the grandstanding of Boris Johnson) and the prospect of an unpredictable election this summer.
This reply was at 19.41 BST, not 18.41.
Re-instating a Royal prerogative? Parliament giving powers back to the Crown? Is this a first?
I wonder, is there any difference in practice, compared to 2011, in how this prerogative can be used, given the supreme court ruling on the prorogation in 2019?
Does the prime minister now have more limits in practice on his ability to misuse this power for personal political reasons? In nicer times, such a question might not be necessary to deal with, but with the present prime minister it must be an active consideration.
I am intrigued by Section 3 that states that no court can question the exercise of the revived prerogative powers. Though Miller ([2019] UKSC 41) was about prorogation rather than dissolution, neverthless the question of the use of the prerogative power was amendable to being reviewed by a court. Does it mean anything if a law states that no court can question any part of it?
Can someone explain the basis on which parliaments have a maximum 5 year term?
This seems to be “enshrined in law” under the Parliament Act 1911, but that seems as flawed a concept as the Fixed-term Parliaments Act was. Is there any other legal reason why it would always have to be 5 years maximum?
If that’s right, what really protects the (apparently rather passive) UK electorate from never being offered another election again, because it’s “the will of the people”? Are we back to the good chaps theory?
It’s happened before. During both world wars, the sitting parliaments kept extending themselves, ultimately for 8 and 10 years respectively. (See eg https://en.wikipedia.org/wiki/Septennial_Act_1716#Prolongation_of_Parliament_during_the_First_World_War_and_Second_World_War )
Those were extreme situations, and the extensions were clearly justified and carefully limited, but the mechanism evidently exists and there’s no obvious limit to it in general, or way to prevent it being abused except parliament itself.
I would have to agree that a nation’s participation in a war – or at least one in which the nation’s homeland was being subject to direct martial attack from another nation, might be a reasonable justification for developing another mechanism for voting in the next government – other than asking the electorate to physically present themselves at a polling station.
I would also add that a widespread pandemic with high rates of transmission – e.g. Covid-19 and variations – might also prompt a nation to consider alternatives to in-person voting (as was handled in a highly partisan manner in the United States in 2020).
But I think these two examples – perhaps there may be a limited number of others we’ve collectively failed to identify – fall well within the scope of a “legal carve-out” in a piece of legislation.
Legislation – and UK Acts are no different from other nations – almost always feature exceptions, conditions and qualifications.
For example, the “Privacy in Electronic Communications Regulation makes it illegal for someone to intercept the communication between two parties. But there is a carve-out that allows an employer to monitor the on-line activity of employees whilst those individuals are using company equipment and on company time.
So I do think it is both possible and reasonable to have a “fixed term parliament act”… *and* have exceptions for war, pandemic and the like.
Indeed. In my A level politics class your example was given as one of the few benefits to having an unwritten constitution. The USA had no option other that to hold a presidential election in 1944.
Both the Septennial Act 1715 and section 7 (Duration of Parliament) of the Parliament Act 1911 were repealed by the Fixed-term Parliaments Act 2011. They have not been revived.
Instead, section 4 of the Dissolution and Calling of Parliament Act 2022 says “If it has not been dissolved earlier, a Parliament dissolves at the beginning of the day that is the fifth anniversary of the day on which it first met.”
See https://bills.parliament.uk/publications/45205/documents/1396
If so minded, Parliament could amend that of course. Such is the nature of absolute Diceyan Parliamentary sovereignty and its right to make or unmake any law.
Parliament can amend it, but the Commons by themselves cannot. The Parliament Acts of 1911 and 1949 allow the Commons to override a Lords veto (after waiting for a year) on any legislation, except for a Bill “containing any provision to extend the maximum duration of Parliament beyond five years”. So the Lords could block such a move indefinitely.
A good point, thanks. But which party has an inbuilt majority in the Lords, and who selects new peers?
So why would a government with an 80 seat majority ever submit itself for re-election? The election of this government in 2019 was clearly construed as the ‘Will of the People’ and it has passed laws that enable it to rule by decree and stifle protest and dissent. What constitutional means exist to force an election on a government that is so happily ensconced? A gentleman’s agreement doesn’t seem to cut it any longer.
The FTPA was circumvented in 2019, but not in 2017 (which I think you meant to say rather than 2016). The FTPA was never intended to prevent early elections in all circumstances, but to prevent them without the consent of 2/3 of MPs, which was sought and obtained, and so the 2017 election was held by the normal operation of the FTPA.
Date corrected, thank you.
I am not clear that we are back in the status quo ante. At the time, if I recall, this act was in a parcel with others, including a measure of Lords reform and a change to a proportional (and therefore more representative, overall) voting system. The process killed the latter two off. It’s almost like a deliberate feint, when seen from a distance.
There never was a proposal for a proportional voting system. The choice was FPTP or AV. The Tories consider the issue of PR was settled by that referendum, when that was never on the ballot paper.
As has been proved recently, especially in 2019, politicians appear as hounds to the horn when it comes to general elections. One can reasonable argue that getting elected is the main thing at which they excel. Notwithstanding those in competitive seats, or the significant demands of being shortlisted, and then campaigning, political leaders like nothing more.
In 2019 the opposition had a weak government on the hook, and yet succumbed to temptation.
I don’t agree it was pointless and I believe it is a backward step to repeal it. Even though Parliament can circumvent the effect of it, given sufficient support, the Act was still worth having in place. It removed the power of the PM to call an election at the time most politically convenient time for the government. Should the opposition effectively agree to an election then so be it as it is in all parties interests. That mechanism was written into the law presumably because there could be circumstances where an election was viewed as essential or highly desirable by all parties. It was also probably the only way the Conservatives would have agreed to the Lib-Dem reform.
Had there been no opposition support for an election, the 2017 Election would not have happened, May would not have lost her majority and Johnson would not have come to power (at least not yet). Brexit would have turned out differently but it would probably have still happened.
We now are back to the situation where the PM holds all the cards regarding election timing and that is neither democratic nor desirable. Sadly the failure of this experiment in improving democracy, which only arose because of the Lib-Dems being in Coalition, will result in it never being repeated under our Parliament elected by the “winner take all” FPTP method.
Good points. I don’t know why anyone would celebrate the Executive having the power to manipulate election dates at will!
I am certainly not celebrating
Your post has the words “Ho, Ho” in the title – I assumed that meant you were happy!
Sardonic laughter
I have to agree Kevin.
IIRC there was a LOT of noise regarding whether or not Corbyn would “agree” to an election being held.
Which seems to be the more democratic way of doing things.
Now? It’s at the behest of the PM.
And we all know this particular PM seems to care not one jot for scruples, morals or democracy.
Rather than celebrating its repeal, it’s worth investigating and pondering WHY did this particular government decide to do this?
By itself not earth-shattering, but combine it with:
*changes to electoral legislation (switching to FPTP for Mayoral elections).
*Boundary review
*controversy of the powers of Electoral Commission
*voter ID legislation
and more, and you can build up a different picture of what this government’s intentions may be.
No legislation is ever enacted in a vacuum.
Good points.
One problem with it was what happened if there was a minority government. It would be typical of Cameron’s casual insouciance not to have thought of this.
The mechanisms written into the FTPA for curtailing the fixed term required a majority vote in the Commons. So a majority opposition which for some reason wanted to hold a minority government impotently in office for anything up to the full five years could do so.
Fear that the opposition might prolong the 2017 parliament so as to disrupt Brexit explains Attorney General Cox’s furious rant in September 2019, when he declared that parliament “dead”, with no “moral right to sit”, and called MPs “cowardly” for not agreeing to an early election.
But shortly afterwards, for better or worse, they did just that.
That isn’t a problem with it. That is what it was supposed to do. Ensure a parliament lasted 5 years. Not allow a minority PM to call another election and try and get a majority.
“So a majority opposition which for some reason wanted to hold a minority government impotently in office for anything up to the full five years could do so.”
That was indeed entirely the objective Nigel. There was a minority government and the smaller party (the Lib Dems) wanted to stop the Prime Minister from ending the Parliament at his/her will.
Hmm, interesting not because of what it does, that’s pretty simple, but because of the timing – talk before Ukraine of Johnson having something of a Presidential mandate, if he goes there has to be a general election, parliament has to be dissolved – under the Fixed-term Parliaments Act it would have been much harder to convince renegade Tories that if he went, parliament went. Much less difficult now, it is for the PM and Her Maj and her advisors and who knows. Not me for sure.
What if the public could have a referendum on whether to have an election?
Like e-petitions, get 10,000 signatures and the government would have to reply. Get 100,000 signatures and a referendum is set.
Alas, maybe the referendum result would only advisory? But that shouldn’t matter, right?
Never mind. As you were.
If one thought that fixed term parliaments were a good idea (which I do) how would one change our unwritten constitution to make them happen? Does this issue expose the weakness of the case against a written constitution?
Surely it achieved what it was brought in for – protecting the coalition in 2010, by assuring the LibDems the Tories couldn’t call an election when things looked better for them?
The wording above seems to suggest that the FTPA remains but in addition the pre-existing prerogative powers are reinstated. How’s that work?
Interesting but I’m befuddled. The topic of possible repeal of the FTPA was being discussed in the media well in the months before the Dec 2019 UK GE when Johnson was leading a minority government and most unhappy that the opposition would not allow him to call a new election.
At the time it was pointed out that one sticking point of repeal was restoring the full prerogative of the Monarch’s consent being essential to calling an (early) election this having been removed in the FTPA and posited in Parliament as long as there was a two-third majority for doing so.
My recollection of the debate was that Johnson did not want that requirement for Royal consent (which could theoretically be refused) reinstated and instead wanted the power to reside solely in the office of the PM.
Is this the case now?