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Repealing the Fixed-term Parliaments Act: Major constitutional change needs careful scrutiny, says Joint Committee

24 March 2021

A joint committee of MPs and Peers has concluded that the 2011 Fixed-term Parliaments Act is flawed and would require major amendment even if it were to be retained.

Major constitutional change requires careful consideration and legislation on constitutional matters should have time for scrutiny.

The Government's intention to return to the system in place before the 2011 Act is clearly stated and should be effective. However, parts of the constitutional plans advanced by Government to replace it should be refined, concludes today’s report from the Joint Committee on the Fixed-term Parliaments Act.

In December 2020, the Government confirmed plans to repeal the Fixed-term Parliaments Act and published a short draft bill with proposals to reinstate the pre-2011 system. A draft set of principles designed to underpin the legal framework for dissolving Parliament was also published. The Joint Committee was established to carry out a Statutory Review of the Act; and to consider and report on the Government’s draft Bill.

Despite some concerns, the Committee says the Government's legislative approach is a clear one. If the proposed changes go ahead, the Prime Minister will once again have the power to trigger a general election at any point within five years of the previous one. However, under this system, dissolutions are "requested" not "advised" by Prime Ministers. The Government should make it clear that the power to grant or refuse a dissolution returns to the Monarch, who in exceptional cases, may refuse the request.

While the principle of repealing the 2011 Act is straightforward, the Committee considers the Government’s Dissolution Principles document to be inadequate. Given the central role of constitutional conventions in the Government’s approach, the Committee says it is essential that a clear consensus on their use is established.

A key proposal in the Bill relates to an ouster clause, which seeks to protect decisions to do with dissolution and early elections from review by the courts. In this instance, it would include the Monarch’s decision to grant a dissolution, the Prime Minister’s request for a dissolution and any related advice given by the Prime Minister to the Monarch. The majority of the committee is satisfied with the Government’s approach, concluding that it is legitimate for Parliament to make clear where it believes constitutional boundaries should lie. An early dissolution puts power in the hands of the electorate so, if an ouster is ever acceptable, it is acceptable in this case. 

Finally, since the Fixed-term Parliaments Act was passed, subsequent legislation has increased the statutory election period for an election from 17 to 25 working days. The Committee recommends that a cross party working party should be established to examine how the General Election campaign period can be shortened without compromising voter participation, including through the increased use of technology and increased focus on year-round voter registration. The working party should report its recommendations to Government as quickly as possible and in time to ensure any legislative requirements can be included in consideration of this Bill.

The Chair of the Joint Committee, Lord McLoughlin, said:

"This draft Bill means the Monarch may grant a general election on the request of the Prime Minister of the day. Our Joint Committee – with members drawn from both Houses and across all parties - was tasked with the scrutiny of the draft Bill and the related dissolution principles.

The Joint Committee agreed that the 2011 Act contains major flaws and even if it were to be retained, it would require substantial work. Major constitutional change like this requires careful consideration and it is welcome that the bill to repeal the Fixed-term Parliaments Act was published in draft.

We consider the Government’s proposals could be improved. To start with, this will be a major piece of the UK’s constitutional framework. The Fixed-term Parliaments Act looks unlikely to last, and whatever replaces it should ideally form an enduring part of our constitutional settlement. The new legislation will replace the current arrangements for the dissolution and summoning of Parliament. Its name should reflect this, rather than referring to what appears likely to be a short-lived constitutional experiment.

The Committee considered the Government’s approach to restoring the status quo would be effective, but far more was needed to ensure constitutional conventions were clearly articulated and broadly understood. We have made our recommendations and look forward to hearing how the Government will take them forward."

Further information

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