Fixed-term Parliaments Act 2011


The Fixed-term Parliaments Act 2011 (c. 14) (FTPA) is an Act of the Parliament of the United Kingdom that for the first time sets in legislation a default fixed election date for a general election to the Westminster parliament. Before the passage of the act, elections were required by law to be held at least once every five years, but could be called earlier if the prime minister advised the monarch to exercise their royal prerogative to do so. Prime ministers often employed this mechanism to call an election before the end of the five-year term, sometimes fairly early in it; this was seen as unfairly advantaging an incumbent prime minister. An election could also take place following a vote of no confidence in the government: such a motion would pass with an ordinary simple majority of those voting in the House of Commons and would, according to constitutional convention, force the government to resign, at which point the prime minister would generally advise the monarch to call for a new election.

Fixed-term Parliaments Act 2011
Act of Parliament
Long titleAn Act to make provision about the dissolution of Parliament and the determination of polling days for parliamentary general elections; and for connected purposes.
Citation2011 c. 14
Introduced byNick Clegg, Deputy Prime Minister (Commons)
Lord Wallace of Tankerness, Advocate General for Scotland (Lords)
Territorial extentUnited Kingdom
(England and Wales, Scotland, Northern Ireland)
Dates
Royal assent15 September 2011
Commencement15 September 2011 (Whole Act)
Other legislation
RepealsSeptennial Act 1716
Relates toEarly Parliamentary General Election Act 2019
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted

Under the FTPA, the next general election is automatically scheduled for the first Thursday in May of the fifth year after the previous general electionor the fourth year if the date of the previous election was before the first Thursday in May. However, the FTPA provides two ways to hold an early election: one is a Commons vote of no confidence in the government, which still requires only a simple majority of those voting; the other is a vote for an early election, which requires a qualified majoritytwo thirds of the total membership of the Commons.[1]

The first election under the FTPA was held, as provided in it, on 7 May 2015. An early election was held in 2017, after Prime Minister Theresa May received approval by a two-thirds majority as provided in the Act.[2] The Act then automatically scheduled the next general election for 2022.

However, the Early Parliamentary General Election Act 2019, passed with Opposition support, circumvented the FTPA, providing for an election on 12 December 2019 while otherwise leaving the FTPA in place. The date for the next election is now scheduled by the FTPA for the fifth year after that election, in May 2024subject to the possibility of an early election as provided in the FTPA.

The governing Conservative Party is committed to repealing the Act.[3] A private member's bill to repeal and replace the Act, substantially restoring the position before the Act, was introduced in the House of Lords by a Conservative peer on 3 February 2020.[4]

Background


Before the passage of the Act, Parliament could be dissolved by royal proclamation by virtue of the royal prerogative. This originally meant that the English, and later British, monarch decided when to dissolve Parliament. Over time, the monarch increasingly acted only on the advice of the prime minister; by the 19th century, prime ministers had a great deal of de facto control over the timing of general elections.

The Septennial Act 1715 provided that a parliament expired seven years after it had been summoned; this period was reduced to five years by the Parliament Act 1911.

Apart from special legislation enacted during both World Wars to extend the life of the then-current parliaments, Parliament was never allowed to reach its maximum statutory length, as the monarch, acting on the advice of the prime minister of the day, always dissolved it before its expiry.[5] The longest parliament preceding the Fixed-term Parliaments Act not exceptional in this way, 51st parliament of John Major (1992–1997) lasted 4 years, 11 months and 2 days.[6]

The five-year maximum duration referred to the lifetime of the parliament and not to the interval between general elections. For example, while John Major's government lasted 4 years, 11 months and 2 days; the period between the 1992 and 1997 elections was 5 years and 22 days.

Reasons for change


The previous system had existed for a long time. Reasons for changing the system included:

  1. The previous system allowed the prime minister of the day to choose a date for a general election which was the most advantageous for them.[7]
  2. The previous system could result in a period of political uncertainty before the possible calling of an early election if such an election was widely anticipated.[7]
  3. Under the previous system it was easier to cut short a parliament and hold an early election in order to resolve political difficulties or remove instability. However, the outcome of the early election would not necessarily make those objectives easier to achieve.[citation needed]

Main parties' views


Prior to the 2010 general election, the Conservative Party manifesto made no mention of fixed-term parliaments. The Labour Party manifesto said it would introduce fixed-term parliaments, but did not say how long they would be. The Liberal Democrat manifesto included a pledge to introduce four-year fixed-term parliaments. The 2010 election resulted in a hung parliament, with the Conservatives having 306 MPs and the Liberal Democrats 57 MPs. The two parties negotiated a coalition agreement to form a government, with a commitment to legislate for fixed-term parliaments included in the coalition deal.[7] Journalist John Rentoul has suggested that one of the subsequent coalition government's motives for passing the legislation was a concern about its own potential instability. In this view the legislation was intended to make it difficult for either coalition partner to force an early election and bring the government down.[8]

Provisions


Section 3(1)[9] of the Act originally stated[10] that Parliament should be automatically dissolved 17 working days before a polling day of a general election. This was subsequently amended by the Electoral Registration and Administration Act 2013 to 25 working days. Section 1 of the Act provides for such polling days to occur on the first Thursday in May of the fifth year after the previous general election, starting with 7 May 2015.

The Prime Minister is given the power to postpone this date by up to two months by laying a draft statutory instrument before the House proposing that polling day is held up to two months later than that date. If the use of such a statutory instrument is approved by each House of Parliament, the Prime Minister has the power, by order made by statutory instrument under section 1(5), to provide that polling day is held accordingly.

Section 2 of the Act also provides for two ways in which a general election can be held before the end of this five-year period:[11]

  • If the House of Commons resolves "That this House has no confidence in Her Majesty's Government" (a motion of no confidence), an early general election is held, unless the House of Commons subsequently resolves "That this House has confidence in Her Majesty's Government". This second resolution must be made within fourteen days of the first. This provision recognises that in a hung parliament it might be possible for a new government to be formed, commanding a majority.
  • If the House of Commons, with the support of two-thirds of its total membership (including vacant seats), resolves "That there shall be an early parliamentary general election".

In either of these two cases, the Monarch (on the recommendation of the prime minister) appoints the date of the new election by proclamation. Parliament is then dissolved 25 working days before that date.

Apart from the automatic dissolution in anticipation of a general election (whether held early or not), section 3(2) provides that "Parliament cannot otherwise be dissolved". The Act thus removes the traditional royal prerogative to dissolve Parliament,[12] and repeals the Septennial Act 1715 as well as references in other Acts to the royal prerogative. The royal prerogative to prorogue parliament – that is, to end a parliamentary session – is not affected by the Act.[13]

Review

Under section 7(4)–(6), the prime minister is obliged to establish a committee to review the operation of the Act and to make recommendations for its amendment or repeal, if appropriate. The committee must be established between 1 June and 30 November 2020, and the majority of its members must be members of the House of Commons.

Debate


When introducing the bill to the House of Commons, Deputy Prime Minister and leader of the Liberal Democrats Nick Clegg, said that "by setting the date that parliament will dissolve, our prime minister is giving up the right to pick and choose the date of the next general election—that's a true first in British politics."[14]

The government initially indicated that an "enhanced majority" of 55 percent of MPs would be needed to trigger a dissolution, but this did not become part of the Act, being replaced by the two-thirds requirement.[15]

Proposed amendments that would have limited the fixed terms to four years, backed by Labour, Plaid Cymru and the SNP were defeated.[16] This was in the Liberal Democrats' manifesto but superseded by the coalition agreement.

Section 4 of the act postponed the Scottish Parliament election that would have been held on 7 May 2015, moving the election day to 5 May 2016 to avoid it coinciding with the general election in the United Kingdom.[17]

Critiques


According to political scientist Colin Talbot, the Act makes minority governments more stable than in the past: events that previously might have forced a government out of powersuch as defeat of a Queen's Speech or other important legislation, loss of supply, or a vote of no confidence in the Prime Minister rather than the government as a wholecannot formally do so.[18]

Professor of constitutional law Robert Blackburn QC stated, however, that "the status and effect of a no confidence motion remains largely as it was prior to the Act".[19]

Lawyer Alastair Meeks, writing on the PoliticalBetting.com website, has argued that, as well as removing the Prime Minister's ability to set an election date at a time of her or his choosing, the Act has significantly affected the British constitution. It has removed the ability of the PM to make a vote on a policy a matter of confidence in the government, a tool which minority governments and governments with small majorities have used in the past to ensure that legislation is passed in the House of Commons. This puts such governments at risk of remaining in power without an adequate ability to legislate, increasing the necessity of coalition government.[1]

Lawyer and journalist David Allen Green and legal academic Andrew Blick have argued that the Act changed little in practice, since the PM could still, so long as at least a portion of the Opposition agrees, schedule an election at his or her pleasure.[20][21]

Blick also argues that the Act's use of a supermajority requirement for the House of Commons, rare in UK law, represents a move towards entrenched clauses in the UK Constitution.[22]

In 2017, Blick argued alongside Graham Allen, who chaired the House of Commons Select Committee on Political and Constitutional Reform during passage of the Act, that the Act had failed "to deliver on one of its main stated purposes ... to reduce the discretion possessed by the Prime Minister in being able to determine the date of general elections".[23] Allen and Blick argued, however, that this was an "admirable objective" and proposed that instead of repealing the Act it should be amended to have additional safeguards. During passage of the Act, Allen stated on second reading that his committee had not received ample notice for adequate scrutiny of the Bill and that there were "so many flaws in the Bill’s drafting".[24] It was also reported that Allen was critical that the committee had not had sufficient time to consider whether a four-year term would have been more appropriate than the five-year term stipulated in the Act.[25]

While still chairman of the Select Committee on Political and Constitutional Reform,[26] Allen wrote an essay in favour of codification of all prerogative powers and referring to his own experience in challenging the prerogative powers of war.[27]

However, in September 2019, after judgement in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, Junade Ali advised in written evidence to the House of Lords Constitution Committee that repeal of the Act should be pursued on the basis that, as A. V. Dicey noted, dissolution allows for the executive to appeal to the nation if it feels the House of Commons is no longer supported by the electors allowing for the resolution of unforeseen constitutional crises by the electorate.[28] Ali argued: "The very legislative chamber subject to dissolution being, in all circumstances, required to consent to such dissolution removes essential oversight in a sovereign Parliament that can make or unmake any law whatsoever".[29] Ali reiterated his argument that even if the Act had codified prorogation powers, the executive could instead seek refusal of Royal Assent until an early election was called, which Ali argues "would likely cause far greater constitutional outrage" and as such codification would "threaten to transform political into constitutional crises"[30] This view was supported in a submission by Robert Craig, who stated: "The main justification for the Act appears to reside in an erroneous view that the political power to call an election is inappropriate in a political constitution."[31]

However, political scientist Lord Norton has argued that the FTPA significantly limits the prime minister's ability to obtain an early election, since the Opposition can prevent an election by voting against it.[32] This was borne out in 2019, as the Opposition blocked Prime Minister Boris Johnson's attempt to hold early elections on several occasions.[33] Nevertheless, an Act of Parliament for an early election (the Early Parliamentary General Election Act 2019) was then passed, with Opposition support, by a simple majority.

Implementation


Election held after a full five-year term on date fixed by Section 1 of the Act

The 2015 general election was held on 7 May 2015, the first, and so far only, use of the Act to dictate the date of the election.

Election held after a two-thirds Commons majority for dissolution by Section 2.1(b) of the Act

On 18 April 2017, Prime Minister Theresa May announced her intention to call a general election for 8 June 2017, bringing the United Kingdom's 56th parliament to an end after two years and 32 days. The Act permits this but requires two-thirds of the Commons (at least 434 MPs) to support the motion to allow it to pass.[34] Jeremy Corbyn, the Leader of the Opposition and the Labour Party indicated he was in support of an election. The motion was passed the following day by 522 votes to 13 votes.[35]

As the Act requires scheduled elections to take place on the first Thursday in May, the date of the next general election after the 2017 election (assuming no earlier election were called) would have been 5 May 2022, meaning that the term would have been one month short of five years.

Motions that did not result in an election

2018 proposed motion of no confidence in the Prime Minister

On 17 December 2018, the Labour Party tabled a motion of no confidence in the Prime Minister, Theresa May. As this was not a motion of no confidence in Her Majesty's Government in the form set out in the Fixed-term Parliaments Act, its passing would not have resulted in a general election being called. Arguing that this would have no effect because of the Fixed-term Parliaments Act Theresa May was able to call it a stunt and deny it any time for debate.[36]

The SNP, Liberal Democrats, Plaid Cymru, and the Green Party submitted an amendment to the motion which, if passed, would have changed the motion to meet the requirements of the act. The government subsequently announced that the motion would not be given parliamentary time.

The following day (18 December 2018), the SNP, Liberal Democrats, Plaid Cymru, and the Green Party tabled a new motion of no confidence in the Government in the form set down in the act. This was the first such motion to be tabled under the terms of the Fixed-term Parliaments Act.[37]

2019 motion of no confidence in the government

Jeremy Corbyn, the Leader of the Opposition, tabled a motion of no confidence in Her Majesty's Government on 15 January 2019, after the House of Commons rejected Theresa May's draft agreement on Brexit.[38] Ian Blackford, the Westminster leader of the SNP supported the decision.[39] The motion failed, the ayes having 306 and the noes 325.[40] Nigel Dodds, Westminster leader of the DUP which had a confidence and supply agreement with the government, expressed the opinion that it was in the national interest for his party to support the government in the motion.[41]

2019 motions for a general election

The Johnson government attempted three times to call an early general election by means of Section 2(2) of the Act; each time the motions achieved a simple majority but did not meet the two-thirds requirements due to opposition parties abstaining. This was eventually circumvented by passing the Early Parliamentary General Election Act 2019; utilising the principle of Parliamentary sovereignty to call an election by passing a new Act of Parliament (using a simple majority in both Houses of Parliament) instead of the two-thirds requirement set by the Fixed-term Parliaments Act.[42]

First motion

On 3 September 2019, the Johnson government tabled a motion under the Act to trigger an early general election, requiring the votes of two thirds of MPs. However, the Labour Party leadership said that they would not support the motion until legislation to delay a no-deal Brexit was passed.[43] On 4 September there were 298 votes for the motion and 56 against, but this was well short of the two-thirds supermajority required due to mass abstention by the opposition.[33] On 6 September four opposition parties – Labour, Liberal Democrats, SNP and Plaid Cymru – agreed not to support any parliamentary vote for a general election until the next European Council meeting which was scheduled for 17–18 October 2019.[44]

Second motion

On 9 September, another motion for an early election was tabled by the government; it failed 293–46 with 303 abstentions; again well short of the two-thirds supermajority required due to mass abstention by the opposition. On a Point of Order after the question in the motion was agreed to without the majority required under the Fixed-term Parliaments Act 2011, Boris Johnson stated:[45][46][47][48]

We will not allow the emphatic verdict of the referendum to be slowly suffocated by further calculated drift and paralysis. While the Opposition run from their duty to answer to those who put us here, they cannot hide forever. The moment will come when the people will finally get the chance to deliver their verdict on how faithfully this House executed their wishes, and I am determined that they will see that it was this Government who were on their side.

Boris Johnson (Prime Minister of the United Kingdom), Hansard (Columns 639 - 640)[49]

Parliament was prorogued on the same day until 14 October,[50] but the prorogation was later deemed unlawful by the Supreme Court, which announced that the order in council to which the prorogation led was also "unlawful, void and of no effect" and "should be quashed". Proceedings resumed on 25 September.[51][52][53]

Third motion

On 24 October 2019, prime minister Boris Johnson announced his intention to call a general election, to be tabled under the Fixed-term Parliaments Act on 28 October.[54] Labour Party and Opposition leader Jeremy Corbyn indicated he would only support an election if Johnson pledged to take a no-deal Brexit off the table.[55] On 28 October, the motion failed despite a vote of 299 to 70 in favour, once more falling short of the two-thirds supermajority of all MPs required, due to mass abstention by the opposition.[56][57]

No further motions under the Fixed Term Parliaments Act were attempted in the 2017-19 Parliament, as Boris Johnson (Prime Minister) introduced the Early Parliamentary General Election Act 2019 to the House of Commons on the same day which triggered an election.

2019 general election


The Early Parliamentary General Election Act 2019 was introduced on 29 October 2019 by Boris Johnson[58] following failure to secure an election by a two-thirds majority the previous day. The Bill was fast-tracked through the House of Commons on the same day it was introduced,[59] the following day Baroness Evans of Bowes Park (Leader of the House of Lords) introduced the Bill in the House of Lords and received First Reading. The Bill completed all stages the following day (30 October) without amendment and was presented to Her Majesty Elizabeth II for Royal Assent. In accordance with the Royal Assent Act 1967, at 4:27 PM on 31 October, Royal Assent was notified to the House of Lords and notified in the House of Commons at 4:35 PM.[60] The Bill took three days from introduction to Royal Assent.[61][62]

The Act circumvented the FTPA to provide for a general election on 12 December:

1 Early parliamentary general election
(1) An early parliamentary general election is to take place on 12 December 2019 in consequence of the passing of this Act.
(2) That day is to be treated as a polling day appointed under section 2(7) of the Fixed-term Parliaments Act 2011.[63]

At 00.01 AM on Wednesday 6 November 2019, Parliament was dissolved, as the FTPA requires that dissolution must happen 25 days before a general election with all seats in the House of Commons becoming vacant.[64]

The 2019 act refers to the FTPA but does not amend it. The FTPA has remained in force unaltered; the effect of the 2019 act was only to interrupt its operation. The two acts do not legally conflict, owing to the British constitutional principle of Parliamentary sovereignty, that Parliament has "the right to make or unmake any law whatever", and constitutional laws are of no different status.[65][66]

The FTPA now determines that the next scheduled election after the 2019 election is to be in May 2024. However, following the 2019 election and the formation of a Conservative majority government, the 2019 Queen's Speech announced the government's intention to repeal the FTPA in early 2020.[67]

Other effects


In 2016, in the wake of the Panama Papers scandal, a petition was created on the Parliament petitions website that called for a general election after former British Prime Minister David Cameron revealed that he had had investments in an offshore trust.[68] After the petition had passed the threshold of 100,000 signatures, the government response cited the Fixed-term Parliaments Act in its reply, and stated that "no Government can call an early general election any more anyway".[69]

In 2017 the journalist John Rentoul writing in The Independent newspaper argued that the Fixed-term Parliaments Act indirectly caused the election loss of Theresa May's majority in the 2017 election. Technicalities made her choose an election campaign of seven weeks, 2–3 weeks longer than usual, which, Rentoul argued, lost her the majority.[8]

Losing the parliamentary vote that follows a Queen's speech has traditionally been seen as having the same consequences for a government as losing a vote of no confidence. Although this is no longer the case under the Act, the consequences of losing a vote on the Queen's speech are still considered significant. Theresa May delayed the Queen's speech that was expected in Spring 2019, partly as a result of concerns about the prospects for winning a parliamentary vote on it.[70]

Proposed changes


Repeal

The Conservative Party manifesto at the 2017 general election proposed repealing the Fixed-term Parliaments Act 2011.[71] However, Theresa May's government failed to win a House of Commons majority at that election and did not attempt to repeal the act.[72]

The Conservative Party repeated the commitment to repealing the act in its manifesto for the December 2019 election, at which it won a majority. The manifesto stated that the Act "has led to paralysis at a time the country needed decisive action".[3][73] The first Queen's Speech following the election confirmed that "work will be taken forward to repeal the Fixed-term Parliaments Act".[74]

Repealing the Act would require a new Act of Parliament. If the duration of parliaments is to be limited, arrangements for this would need to be included in the new Act because the Fixed-term Parliaments Act 2011 repealed pre-existing legislation governing the duration of parliaments.[12]

Reform

Since the Act has abolished the old prerogative powers, for example the royal power of dissolution, it may not be possible simply to revive them even if that were desired. The Act might instead be reformed, in particular to specify what steps should occur during what is now the "messy fortnight" after a motion under the Act is passed and to clarify whether pre-existing types of vote amounting to no-confidence, such as rejection of the Budget, continue to require a government's resignation.[75]

Replacement

After the December 2019 election, on 3 February 2020, a private member's bill to repeal and replace the FTPA was introduced in the House of Lords by Conservative peer Lord Mancroft.[4] The bill would establish five-year parliaments, the next election to be on 2 May 2024, unless an early election is called by royal proclamation dissolving Parliament. This would substantially restore the position before the FTPA. The bill would confirm that the monarch has power to prorogue Parliament until a time of the monarch's choosing. Under the bill, the monarch's actions, and government advice to the monarch about those actions, would not be justiciable. As of 11 February 2020, a second reading for the bill has yet to be scheduled.

See also


References


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Further reading