Has the Fixed-Term Parliaments Act (2011) been a failed constitutional reform?

When the Fixed-Term Parliaments Act was passed in 2011 it was sold as a significant constitutional reform that would modernise the UK constitution and give more democratic legitimacy to the House of Commons. Prior to this, the calling of General Elections was governed by both statute and convention:

Septennial Act 1716 – This Act mandated that a General Election had to be called at least every seven years. In 1911, the Parliament Act reduced the maximum length of each Parliament to five years.

The Lascelles Principles were named after the Private Secretary to George VI.

Lascelles Principles – Despite the maximum length of each parliament being seven years, there were few limits on when in each Parliament a Prime Minister could use their Royal Prerogative power to call an early election (known as a ‘snap election’). However, there were a set of conventions known as the Lascelles Principles, named after Sir Alan Lascelles, the Private Secretary to George VI. The principles outlined three narrow parameters in which a monarch could refuse the request of a Prime Minister to hold an early election:

  1. If the current Parliament was still “vital, viable, and capable of doing its job”.
  2. If a General Election would be clearly detrimental to the economy.
  3. If the Monarch could find another Prime Minister who was able to win the confidence of the House of Commons.
Nick Clegg needed the FTPA (2011) to ensure Cameron would not ‘cut and run’ from the Coalition.

The Fixed-Term Parliaments Act, which would repeal the previous legislation and make the Lascelles Principles obsolete, was agreed following its inclusion in the Coalition Agreement between the Conservatives and Liberal Democrats:

” We will establish five-year fixed-term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed-term Parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour “

The Coalition: Our Programme for Government (2010)

It was clear that the Liberal Democrats would gain from this in the short-term. They were scared that after 6-12 months in Government, the Conservatives would call a snap election and win a majority without the support of the Liberal Democrats.

The Fixed-Term Parliaments Act mandates that an election must take place at least every five years. It also removes the Prime Minister’s Royal Prerogative power to call a Snap Election. Snap Elections were extremely beneficial to Prime Ministers as they could call an election at a time that was electorally beneficial for them. However, perhaps the most famous Snap Election was the one that Gordon Brown failed to call in 2007 which led to David Cameron branding him a ‘bottler’:

Instead, the Fixed-Term Parliaments Act outlines only two circumstances in which an early election can be held:

  • If a sitting government loses a motion of no confidence and is not able to subsequently prove its confidence within a 14 day period.
  • If two-thirds of the total membership of the House of Commons votes in favour of an early election.
Lord Grocott has consistently called for a repeal of the FTPA (2011).

Interestingly, the passage of the Fixed-Term Parliament Act was followed relatively quickly by calls for its repeal. Indeed, since its introduction, there have been five tablings of such bills. Four of these attempts have been Private Members Bills ( Grocott, Duncan, Desai and True). One of the most vehement critics of the Act has been the Labour Peer, Lord Grocott. He has made a number of points about the Act in the Lords, including this intervention, commenting on the danger of UK election campaigns becoming long and drawn out, similar to that of the US:

“I wonder whether the Minister shared the nation’s palpable sense of gloom this morning when the broadcasters and the newspapers united in reminding us that there are 100 days of campaigning left until the general election. Do fixed-term Parliaments not inevitably lead to inordinately long election campaigns, as many of us predicted, and, I am afraid, to the past its sell-by date House of Commons that we have at present, with very little to do in either House? Does the Minister at least acknowledge that there is a growing view, on both sides of this House and in the Commons, that the passing of the Fixed-term Parliaments Act was a serious mistake?”

Lord Grocott – 27th January 2015

The Conservative Government have now pledged to repeal the Fixed-Term Parliaments Act, a pledge that appeared in their 2019 General Election manifesto:

We will get rid of the Fixed Term Parliaments Act – it has led to paralysis at a time the country needed decisive action.

The Conservative Manifesto – 2019

A bill introduced by Lord Mancroft is currently awaiting Second Reading in the House of Lords. This pledge was a direct reaction to Boris Johnson’s failed attempts to persuade Parliament to call an early election in the Autumn of 2019. The Prime Minister called for an early election in order to overcome the ‘Brexit paralysis’ that Parliament was experiencing. However, the Opposition three times refused to accede to this request until a ‘no-deal’ Brexit was taken off the table:

3rd September – 298 voted for the motion, 56 against.

9th September – 293 voted for the motion, 46 against.

24th October – 299 voted for the motion, 70 against.

The failure of the House of Commons to accept an early general election led to a remarkable and memorable outburst by the Attorney-General, Geoffrey Cox:

However, the unique Brexit-led circumstances that existed in the Autumn of 2019 have made the Fixed-Term Parliaments Act appear stronger than it is. In reality, whilst the Act theoretically removed the power of the executive to call an early general election, there have been both political and legislative obstacles to its effective functioning.

Theresa May called an early election under the FTPA in 2017, though she now wishes she had not.

Firstly, it is politically difficult for HM Opposition to turn down the offer of an early election. One of the key roles of the Opposition is to offer an alternative to the Government. Backing down from an offer of an early election would fundamentally weaken them in the eyes of the electorate and damage their credibility. For example, in April 2017, Theresa May announced that she planned to try to invoke the Fixed-Term Parliaments Act. She was aiming to strengthen her majority and gain a clear mandate for her Brexit position. At this point, Labour were significantly behind in the opinion polls (ICM by 18%, Comres and YouGov by 21%) and it appeared the Conservatives would comfortably win the election. However, despite this, the motion passed by 522 to 13, with only 9 Labour MPs voting against.

The legislative obstacles to the successful operation of the Act were shown following the three rejections of Boris Johnson’s call for an early election. In response to this, the government simply passed a separate bill called the Early Parliamentary General Election Act (2019) which passed by 437-20. This Act simply stipulated that a one-off early election would take place on the 12th December 2019 and would not effect the continuing existence of the Fixed-Term Parliaments Act:

The Early Parliamentary General Election Act (2019) is one of the shortest pieces of legislation in history.

Parliament could do this because Parliament is sovereign and, in the words of A.V Dicey, “can make or unmake any law”. Importantly, this bill removed the requirement of a supermajority to hold an early election and, facing the inevitability that the bill would pass, most Labour MPs decided to support it.

At first appearance it would appear that the Early Parliamentary General Election Act (2019) was the death-knell for the Fixed-Term Parliaments Act. In reality, because of both the political and legislative obstacles it faced, it never had much life it it anyway.

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