Written evidence from Professor Anne Twomey1 (FTP 03)

 

Public Administration and Constitutional Affairs Committee Fixed-term Parliaments Act 2011 inquiry

 

 

Below I raise three issues about the potential amendment of the Fixed-term Parliaments Act and conclude with a discussion of the repeal of the Act and what might replace it.

 

No confidence - power of Government to prevent Parliament from sitting in the 14 day period

 

Section 2(3) of the Fixed-term Parliaments Act provides that an early election is to take place if the House of Commons passes a motion 'That this House has no confidence in Her Majesty's Government' and the period of 14 days after the day on which that motion is passed ends without the House passing a motion 'That this House has confidence in Her Majesty's Government'. The intention was to allow a period of time for the Government to regain confidence (eg by altering policies, as the Harper Government did in Canada, or changing its leadership, or making commitments acceptable to a majority of the House) or for an alternative Government to be formed.

 

As recent times have shown, there may be circumstances in which there is good reason not to dissolve Parliament and hold a general election (eg there is a pandemic, or a war, or a critical timing issue, such as a date upon which the UK would exit the European Union if no further action were taken). For example, during a serious emergency it may be the case that a change of Government is needed (eg because the Government has failed in handling the emergency) but it is critical that Parliament continues to operate, rather than being dissolved for a period, or that because of the emergency the holding of an election is not feasible or appropriate. Hence, there needs to be functional way of changing the Government, against the Government's wishes, without an election being held.

 

Under the Fixed-term Parliaments Act, such an outcome can be achieved by the formation of a new Government, in which the House of Commons expresses its confidence by way of a vote in the 14 days following the vote of no confidence in the prior Government. However, there is no provision in the Act that requires the House of Commons to sit during that 14 day period so that it may: (a) indicate that someone else should form a Government, allowing the


1 I am a Professor of Constitutional Law at the University of Sydney and have particular expertise in both parliamentary law and practice and executive power, including the personal prerogatives of the Sovereign. I previously worked for The Cabinet Office of New South Wales, where I was responsible for the administration of the New South Wales Constitution, including its fixed-term Parliament provisions. My book, The Constitution of New South Wales (Federation Press, 2004) contains an analysis of those fixed-term Parliament provisions, and my book, The Veiled Sceptre - Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) contains an analysis of the Sovereign's powers with respect to dissolution and prorogation, as well as a discussion of fixed-term Parliament provisions in a number of countries.


 

Queen to be confident in the appropriateness of commissioning that person to form a Government; and (b) pass a motion that it has confidence in the new Government. This is a major flaw in the Act.

 

At the very least it should include a provision that prevents the prorogation of the House during that 14 day period. But it should also, ideally, require that the House continue to sit for at least some of that period, so that the Government cannot use procedural tactics2 to prevent the House from sitting so that it can indicate confidence in the formation of another Government.

 

For example, in New South Wales, s 24B of the Constitution Act 1902 (NSW) provides for a period of 8 days after the Legislative Assembly has passed a vote of no confidence in the Government during which confidence can be restored or a new Government formed. It further provides that after the motion of no confidence in the Government has been passed, 'the Legislative Assembly may not be prorogued before the end of that 8-day period and may not be adjourned for a period extending beyond that 8-day period, unless the motion of confidence has been passed'.

 

While I don't think this formulation is ideal, because it would permit the House to be adjourned for much of the 8 day period, potentially leaving little time to deal with the formation of a new Government and a vote of confidence in it, it does provide a starting point for what might be done. Some kind of condition should be included in the Act that requires the House to sit according to its usual schedule during this period until either there is a vote of confidence in a Government or the 14 day period has expired.

 

No confidence - power of Prime Minister to control date of election

 

Another flaw in the Fixed-term Parliaments Act is the requirement ins 2(7) that the date for the polling day is determined by the Queen upon the recommendation of the Prime Minister. Parliament is dissolved at the beginning of the 25th working day before the polling day as appointed under s 2(7).

 

This means that if a Prime Minister and his or her Government has been the subject of a successful vote of no confidence, and the 14 days has passed without the restoration of confidence in the Government, the Prime Minister could choose to advise the Queen to set a polling date 6 months in the future, or later, or could delay giving any advice on the subject to the Queen at all. The Government could then keep governing, without confidence, and no election could be held until the Prime Minister decided the time was propitious. This would place the Queen into an unfortunate position, with pressure on her to dismiss the Prime Minister and appoint someone else to form a Government.


2 See, eg, the suggestion that a 'Sittings of the House Motion' could be moved to prevent the House from sitting during the 14 days: Emilio Casalicchio, 'Former UK Parliament Adviser Wams Legal Loophole Could Lead to No-Deal Brexit', Politico, 11/8/19: htt ps://www.politico.eu/article/legal-loophole-no-deal-brexit-lord-lisvane/ .


 

 

As is well known, there was a deal of discussion about this issue in the context of Brexit in 2019. One of the reasons why the House, despite having lost confidence in the Government (as evidenced by the Government's defeat on numerous votes) refused to support an early election under s 2(1) or pass a motion 'That this House has no confidence in Her Majesty's Government' under ss 2(3) and (4) of the Act, was that the Prime Minister would control the election date and could have arranged it so that the Parliament would be dissolved through the critical period leading up to 31 October and an election would only happen after 31 October, causing a 'no-deal Brex it'.3

 

It is not appropriate that a Prime Minister who has lost the confidence of the House is the one who determines the polling date and, as a consequence, the date for the dissolution of the House. In New South Wales, it is left to the Governor to decide when (and if) to dissolve the House in such circumstances. Section 74 of the Electoral Act 2017 (NSW) provides that the writs for a general election must be issued within 4 clear days after the day the proclamation dissolving the Legislative Assembly was published in the Gazette. Section 24A of the Constitution Act 1902 (NSW) then provides that the writs for the ensuing general election must name as the polling date a 'day that is not later than the fortieth day from the date of the issue of the writs'. Accordingly, the general election could not be inordinately delayed, as there is a legal obligation that it be held within 44 days of the dissolution of the Legislative Assembly by the Governor.

 

In the United Kingdom, if there were a preference to keep any discretion from the Queen, the Fixed-Term Parliament Acts could be amended to require that the polling day be held within 40 days of the expiry of the 14 day period following the vote of no confidence (if confidence was not voted in Her Majesty's Government during that period). An exception could be included to accommodate extreme circumstances, such as a pandemic or natural disaster, that would affect the timing of holding an election.

 

An alternative would be to require the House, in its no confidence motion, to specify the date for the holding of the general election if no vote of confidence were passed in Her Majesty's Government during the next 14 days.

 

No confidence - role of Queen in appointing an alternative government

 

One of the serious problems with the Fixed-term Parliaments Act that was exposed by the Brexit controversy in 2019 was its lack of an explanation as to how a new Government could be formed in the 14 days after a vote of no confidence. This is particularly problematic if the defeated Prime Minister refuses to resign. The Act is silent on this, and its silence leads to doubt as to how it should operate.


3 See, eg: Charlie Cooper, 'The Queen's big Brexit moment?', Politico, 8 June 2019: https://www.politico.eu/article/the- uk-british-queen-elizabeth-ii-big-brexit-moment-boris-johnson-no­ confidence-vote-parliament/.


 

 

In August 2019, an adviser to the Prime Minister, Mr Cummings, was reported as having told colleagues that the Prime Minister would not resign if he was the subject of a successful vote of no confidence. He would stay on as Prime Minister, even if another Government was capable of being formed. 4 This would have resulted in enormous pressure being placed on the Queen to dismiss the Prime Minister so that someone else could have been commissioned to form a Government within the 14 days and secure a vote of confidence.

 

In New South Wales, the Governor has been given discretion, but this is to be guided by the wishes of the House. Section 24B(6) of the Constitution Act 1902 (NSW) provides:

 

When deciding whether the Legislative Assembly should be dissolved in accordance with this section, the Governor is to consider whether a viable alternative Government can be formed without a dissolution and, in so doing, is to have regard to any motion passed by the Legislative Assembly expressing confidence in an alternative Government in which a named person would be Premier.

 

In Australia, the view is taken that it is appropriate for the Governor to exercise discretion in such a case, because Governors are chosen on account of their good judgment and trustworthiness and are expected to be able to exercise such powers in an impartial and considered manner. It seems that a different view is now taken in the United Kingdom, with efforts having being made to strip the Queen and her successors of discretionary powers. Accordingly, if it were desired to prevent the Queen from exercising any discretion, one could instead legislate to require that the House, in expressing no confidence in the Government for the purposes of ss 2(3) and (4) of the Act, must resolve either:

 

(a)   That this House has no confidence in Her Majesty's Government and advises Her Majesty to dissolve Parliament and appoint X date as the polling day for holding a general election; or

(b)   That this House has no confidence in Her Majesty's Government and advises Her Majesty to commission Y to form a new Government that would command the confidence of the House.

 

While the Queen ordinarily acts upon the advice of her responsible Ministers, she is not obliged to act upon the advice of a Prime Minister who has ceased to be responsible. In such circumstances, the House, which determines confidence in the Government, is an appropriate forum to advise the Queen. The Houses already advise Her Majesty with respect to the grant of royal assent to legislation.5   It would therefore be constitutionally appropriate


4 Steven Swinford, 'Johnson to defy any vote of no confidence: Refusal to quit risks drawing Queen into politics'

The Times (London), 6 August 2019, p 1.

5 Note that the House of Commons, alone, advises the Queen in relation to bills passed in accordance with the procedure in the Parliament Acts 1911 and 1949 (UK). The enacting words are: 'Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by authority of the same, as follows:'.


 

for a majority of the House of Commons to advise Her Majesty either to dissolve Parliament and appoint the day for the holding of a general election, or to commission a new Prime Minister.

 

If the incumbent Prime Minister did not resign, the issue of a new commission, as advised by the House, could be phrased so as to replace any prior commission. This is the method commonly used for disposing of inconvenient Governors-General or Governors without formally 'dismissing' them. A new commission is granted to the new vice-regal representative, which automatically terminates the previous commission.

 

This approach would avoid all ambiguity and uncertainty. The House would have to decide what it wanted before passing a no confidence motion, and if it couldn't decide between an election or a fresh government, then no motion triggering the application of the Act would be passed. The power would be appropriately vested in the representatives of the people (consistent with the principle of representative government) and would reflect where confidence lies in the House (consistent with the principle of responsible government). The Queen would have a constitutional role, in giving effect to the expressed wishes of the House, but no discretion, avoiding any appearance of partisanship. A Prime Minister who had lost the confidence of the House could not hang onto government by engaging in procedural manoeuvres or exploiting uncertainty.

 

No confidence - Operation of conventions outside Fixed-term Parliaments Act

 

A further problem that has arisen in relation to the Fixed-term Parliaments Act is ascertaining how it affects the pre-existing constitutional conventions that give effect to the principle of responsible government. Prior to the Fixed-term Parliaments Act, the convention was that a Prime Minister who had lost the confidence of the House of Commons, including by defeat on a major bill, loss of control of the business of the House or a direct motion of no confidence, must either secure a dissolution or resign. If he or she could not secure a dissolution (eg the Queen refused a request for a dissolution), then resignation was required.

 

This has been complicated by two factors. First, the ability of the Prime Minister to secure a dissolution is now severely constrained. If a Prime Minister has lost the confidence of the House, the only three options to obtain a dissolution are to secure: (a) a vote of the House of Commons 'That there shall be an early parliamentary election', on the voices or, if there is a division, by a two-thirds majority; (b) a vote by the House of Commons, by simple majority of those voting, 'That this House has no confidence in Her Majesty's Government' and hope that no alternative government is formed and secures a vote of confidence within 14 days; or

(c)  enactment of a statute that expressly or impliedly amends the Fixed-term Parliaments Act by providing for the dissolution of Parliament and an election.6

 


6 See Early Parliamentary General Election Act 2019 (UK).


 

 

 

This has left uncertain whether the existing convention has been affected. Must a Prime Minister, who has lost the confidence of the lower House, resign if he or she cannot secure an election in one of the ways mentioned above within a reasonable time? On the one hand, it can be argued that a Prime Minister who has lost the confidence of the House has no right to continue governing, as he or she is no longer a 'responsible' Minister. He or she must resign and give someone else the opportunity either to form a government that holds the confidence of the House or to secure a dissolution.

 

On the other hand, it can be argued that if a majority of the House chooses not to pass the kind of vote of no confidence that triggers the Fixed-term Parliaments Act and causes an election to be held, then the Prime Minister is entitled to continue to govern. But there may be good reasons why the House has not voted to trigger an election. This could be because the House has not had sufficient opportunity, as it has been adjourned, prorogued, or  not been given sufficient sitting time to pass such a resolution, or because procedural tactics have been used to prevent or delay such a vote from being held.7 It could also be because the House accepts that holding an election at that particular time is inappropriate (eg because of a war, pandemic, natural disaster or other timing issues).

 

Accordingly, in my view the convention should be that when a Prime Minister has lost the confidence of the House and has not either regained confidence or secured an election within a reasonable period (eg 3 weeks), the Prime Minister must resign. The existence of such a convention might also cause the House to pause and reconsider before acting in a way that evinces a loss of confidence in the Government, particularly if it was neither prepared to vote for an election nor had collective confidence in anyone else to form a Government.

 

But this then raises the second factor which is the difficulty in ascertaining whether a loss of confidence has occurred. Previously, loss of confidence could be determined in a number of ways: (a) defeat on the budget (including a symbolic defeat by the reduction of a budget bill by £1);8 (b) defeat on a bill or resolution of major importance9 (such as a major part of the Government's manifesto) or a bill or resolution identified by the Government as a matter of

 

 

 


7 See examples where this has occurred in countries such as Tuvalu, Papua New Guinea and St Kitts: A Twomey, The Veiled Sceptre, pp 288-301.

8 In Australia, see the resignation of the Fadden Government in 1941 after the Budget estimates were reduced by the sum of £1; and in Victoria the Dunstan Government was defeated in 1945 by a motion for the reduction of the budget by £1, resulting in a change in government and then a dissolution. In Canada, the Pawley Government in Manitoba in 1988 was defeated on its budget, resulting in an election and the resignation of Pawley as leader.

9 In Australia, see the resignation of the Deakin Government in 1904 and the Bruce- Page Government in 1929 after the Opposition successfully amended bills of importance. In Canada see the resignation of the Norris Government in Manitoba in 1922 upon defeat on a major bill.


 

confidence;10 (c) loss of control of Government business in the House (including loss of control over procedural measures and the order of business,11 and the passage of significant legislation against the wishes of the Government); (d) defeat upon the address in reply to the Queen;12 (e) a formal vote of no confidence in the Governrnent; 13 or (f) defeat upon a motion moved by the Government expressing confidence in the Government, when confidence was in doubt.14 Not all government defeats indicate a loss of confidence,15 but it was certainly the case that the lower House of a Westminster-style Parliament could indicate a loss of confidence in the Government by means other than a direct vote of no confidence in the Government.

 

Was it intended that upon the Fixed-term Parliaments Act corning into force, only (e) would indicate a loss of confidence and that the others would no longer do so? Was it intended that the only way of dealing with a loss of confidence was through the mechanism in the Fixed­ term Parliaments Act and that the alternative of resignation and replacement by a person who holds the confidence of the House is no longer applicable?

 

It seems clear that there was no such intention. While it was certainly the case that only a vote of no confidence in the terms stipulated in the Fixed-term Parliaments Act could have the statutory effect of triggering an early election, it was accepted that other forms of indication of a lack of confidence would still have a political effect - i.e. that the conventions concerning resignation would still apply.16 For example, as noted in the Cabinet Manual at para [2.19], if it is clear that a Prime Minister does not hold the confidence of the House and an alternative government does have confidence, the Prime Minister is 'expected to resign'. This probably overstates the position in terms of the level of clarity required, but it does make it clear that the conventions regarding confidence were not dispensed with as a consequence of the application of the Fixed-term Parliaments Act.


10 In Australia, see the resignation of the Hughes Government in 1918 following the defeat of a plebiscite on conscription, but Hughes was recommissioned to form a Government because no one else held the confidence of the House.

11 In Australia, see the resignation of the Deakin Government in 1908 after a defeat on a motion re the hour of next meeting of the House; the resignation of the Fisher Government in 1909 after a defeat on adjournment; and the holding of an election in 1931 after the Scullin Government was defeated on an adjournment motion.

12 In Australia, see the resignation of the Reid Government in Australia in 1905 after an amendment was passed

to the address in reply to the Governor-General's speech. In the United Kingdom see the resignation of the Baldwin Government after an amendment was made to the address in reply to the King's speech in 1924.

13 In the United Kingdom, Margaret Thatcher's successful motion of no confidence in the Callaghan

Government resulted in an election in 1979. Compare Jeremy Corbyn's unsuccessful vote of no confidence in the May Government in 2019.

14 See in the United Kingdom, the vote of confidence initiated by Prime Minister John Major in his Government to reassert confidence in the wake of defeat over the Social Protocol of the Maastricht Treaty. The vote was successful, so resignation was not required.

15 See, eg, the list of Government defeats on the Floor of the House of Commons, most of which did not result in resignation or dissolution: http://www.election.demon.co.uk/defeats.htm l.

16 UK, House of Commons, Public Administration and Constitutional Affairs Committee, 'The Role of

Parliament in the UK Constitution Interim Report - The Status and Effect of Confidence Motions and the Fixed-term Parliaments Act 2011' (HC 1813, 11 December 2018) [43]-[50].


 

In my view, this Committee was correct in making the following findings in its 2018 report:

 

[58] ... It is clear that the [Fixed-term Parliaments Act 2011] was not intended to supersede other means by which the House could express its confidence in the Government. The House is free to express its confidence in the Government, or not, in any manner it chooses. It is a misconception that the mechanism  for bringing about an early general election provided by Section 2(3) of the Fixed-term Parliaments Act 2011 has superseded the pre-existing conventions around the confidence of the House in the Government. It is correct that only a motion in the terms of the Act could invoke the statutory provisions leading to a general election. However, the Act in no way affects the fundamental principle that the Government's authority to govern rests on the confidence of the House, however it chooses to express it.

 

[59] ... Any expression of no confidence by the House in the government, removes the authority to govern.

 

Nonetheless, during the 2019 Brexit controversy, there appeared to be a significant lack of understanding of the constitutional conventions requiring confidence and whether or how they continued to operate in the context of the Fixed-term Parliaments Act. This indicates that if any action is to be taken to repeal or amend the Fixed-term Parliaments Act, it should be accompanied by direct consideration of the impact that this may have on any constitutional conventions and an attempt to gain consensus, before any crisis arises, as to how the conventions are to operate in the future.

 

While it has sometimes been claimed that conventions can only arise out of practice and precedent, this is not always true. New conventions may need to be established to deal with changed statutory and constitutional circumstances. Sometimes this is done by the  agreement of the relevant participants who will be called upon to give effect to the conventions, formalised in a letter or agreement, or recognised in a second reading speech17 or the preamble to a statute18  or in the text of a statute itself.19   It would be wise to take action of some kind to clarify the continuing operation of conventions concerning confidence, to ensure that the principle of responsible government is not thwarted by an irresponsible government that refuses to resign in circumstances where it would not be appropriate to hold an early election.

 

Repeal of the Fixed-term Parliaments Act

 


17 A convention about how an Australian State may advise the Queen to act when present in the State was established by agreement and recorded in the 2nd reading speeches of each State in enacting legislation that requested the enactment of the Australia Act 1986 (Cth). See, eg, NSW, Parliamentary Debates, Legislative Assembly, 24 September 1985, p 6976.

18 See the preamble to the Statute of Westminster 1931.

19 See, eg, the Sewel Convention, which was recognised, but not given the force of law, in Scotland Act 1998

(UK), ss 28(7) and (8).


 

Having fixed-terms for a Parliament, if regulated by a statute containing appropriate exceptions (without the flaws noted above), has significant advantages. It is fairer, as it does not give the incumbent Government the advantage of timing an election to suit its political prospects. It is also fairer because it allows all parties and candidates to plan their finances and organise their campaigns with relative certainty about when an election will be held. It permits better governance, as the Civil Service can plan to ensure that significant decisions do not need to be taken during the period before and after the election. The Civil Service can also make longer term plans for implementing policy with relative certainty that they will not be disrupted by an early election and a change of government. It is better for the economy, as it removes the market jitters and business uncertainty that may arise because of constant speculation about a snap election being held. It is also less costly, as it results in fewer elections being held, and elections are very expensive to run.

 

It should also be taken into account that the Brexit controversy and the political disruption that it caused fell within the exceptional, rather than the normal. Yes, it exposed faults in the Fixed-term Parliaments Act (being faults which had been pointed out by me, amongst others, before the Bill was passed without sufficient consideration in 2011). But that is reason to fix the faults, rather than destroy the Act and revert to a system that was unfair, costly and inefficient.

 

If, however, the Act is to be repealed, then it needs to be replaced by something. There is real uncertainty about whether the effect of the Fixed-term Parliaments Act was to terminate the Queen's prerogative to dissolve Parliament, or whether it placed it in abeyance so that it could spring back into effect if the Act were repealed. Relying on the latter would entail risk.20 Lord Neuberger, on behalf of a majority of the UK Supreme Court, observed that if 'prerogative powers are curtailed by legislation, they may sometimes be reinstated by the repeal of that legislation, depending upon the construction of the statutes in question.'21 In New Zealand, when the prerogative power to summon Parliament was replaced by a statutory power in an Act that was later repealed, and no such power was included in the new statute, doubt arose about whether the prerogative had revived. This legal uncertainty was ultimately resolved by the enactment of an express legislative power to summon Parliament.

 

Accordingly, the preferable approach would be to enact legislation to confer the equivalent power on the Queen. It could be conferred by statute, with reference to the prerogative as it existed before the Act commenced and the conventions that relate to it. Alternatively, statute could simply confer upon the Queen the power to dissolve Parliament,22 and leave to inference that the scope of the power is the same as the prerogative and that its exercise is

 

 


20 See the discussion of the arguments in: A Twomey, The Veiled Sceptre, pp 8-10 and 378-9.

21 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [112].

22 See, eg, s 5 of the Australian Constitution which confers on the Governor-General the power to prorogue Parliament and dissolve the House of Representatives. While this power is conferred by statute, the scope of the power would be determined by reference to its historical exercise as a prerogative power.


 

governed by the conventions arising from the principles of representative and responsible government and parliamentary supremacy.

 

Regardless of whether the power to dissolve Parliament finds its source in statute or the prerogative, we know from the Supreme Court's judgment in R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41, that the advice of a Prime Minister to the Sovereign with respect to prorogation (or dissolution) may be challenged if it falls outside the scope of the power conferred. Careful consideration should therefore be given to the scope of the power and how it fits with fundamental constitutional principles.

 

 

April 2020