Written evidence from Robert Craig1 (FTP10)

 

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

 

 

  1. I give this evidence in my personal capacity as an expert in Constitutional Law having taught the subject for over 20 years variously at LSE, KCL, Bristol University and elsewhere.2 I originally trained as a barrister. I have been published in a number of leading journals. I have had two articles cited in the Supreme Court. One was by Lord Reed in the first Miller litigation.3 The second was by Lord Carnwath in the more recent Privacy International litigation.4 I am currently a doctoral student at the University of Bristol.

 

  1. Readers who cannot read the full submission are invited to read the Executive Summary and/or the text highlighted in bold contained within the submission.

 

 

EXECUTIVE SUMMARY

 

  1. The FtPA imposed a rigid straitjacket on to essentially political processes and caused considerable damage to the uncodified constitution in the process. It had a ripple effect on the crucial doctrine of confidence and arguably played a major role in extending the Brexit crisis by months. Theresa May’s Government would likely have fallen months earlier but for the Act. The FtPA should be repealed and replaced.

 

  1. Instead of a 2/3 vote in the House of Commons, a statutory power to call an election should be conferred on the Prime Minister, subject to a straightforward vote by the Commons in favour of an election.

 

  1. The prerogative of dissolving parliament could be revived, if the new statute was worded with sufficient care. However, it would perhaps be better for a statutory power to call an election to be conferred on the Prime Minister in order to ensure that the Queen cannot be dragged into politics under any circumstances. Under the old prerogative system, the Queen could be forced to get involved in some extreme circumstances and this possibility must be avoided.

 

  1. If the Committee is minded to support the revival the dissolution prerogative, a draft using the wording below could be a useful starting point:

 

 


1 The author would like the thank Sir Stephen Laws QC, Fergal Davis and Craig Prescott for their helpful comments on a previous draft. Responsibility remains with the author.

2 http://www.lse.ac.uk/law/people/academic-staff/robert-craig.

3 R (Miller) v Secretary of State for Exiting the European Union [2017] 2 W.L.R. 583, at [201].

4 R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, at [39-40].

 


 

1.      Revival of Royal prerogative power to dissolve Parliament for election.

 

a.      The Royal prerogative power of dissolving Parliament for the purpose of holding a parliamentary election, as that power existed before the coming into force of the Fixed Term Parliaments Act 2011, is revived and has effect.

 

b.      The Fixed Term Parliaments Act 2011 is repealed.

 

  1. The prorogation prerogative should be restored to the position before the Miller decision in the Supreme Court so that it is not justiciable as a matter of ‘high policy’ in line with the High Court decision a few weeks before the Supreme Court. Further encroachment of legal constitutionalism into the realm of democratic politics should be discouraged.

 

 

INTRODUCTION

 

  1. In my submission, the Fixed-term Parliaments Act 2011 (‘FtPA’) has had a significant negative effect on the constitution. This paper explores some of those negative ripple effects making some use of the Brexit process as an illustrative example. In my view, the FtPA has had damaging real-world effects on political outcomes during the Brexit process. This paper also explores whether the prerogative of dissolving parliament can be revived, concluding that it can. Finally, it also addresses whether the prorogation prerogative should be placed on a statutory basis, concluding that it should not.

 

  1. This evidence should be considered as a précis of an article of mine published in the Modern Law Review in 2018 on the FtPA combined with recent shorter contributions entitled ‘What happens after a vote of no confidence in the PM’ and ‘What could happen next if the government resigns rather than send the letter?’ for which links can be located in Footnote 4 below.5 In this note, I address some of the questions raised in PACAC’s ‘Call for evidence’.

 

What were the purposes of the Fixed-term Parliaments Act 2011 and to what extent have these purposes been met?

 

  1. The primary purpose of the FtPA was to prevent either the Conservative or Liberal Democrat MPs in the 2010 Parliament from precipitating an early general election. As David Laws reveals in his book (22 Days in May) this goal was to be achieved by requiring 55% of MPs to vote in favour of an early general election, which even allowed for some byelection losses for the Coalition. This slightly grubby compromise was later amended and the 55% figure was replaced with a 2/3 requirement. In addition, a procedure was inserted


5              https://blogs.lse.ac.uk/brexit/2019/08/28/what-happens-after-a-vote-of-no-confidence-in-the-pm-a-route- map/; https://ukconstitutionallaw.org/2019/09/11/robert-craig-what-could-happen-next-if-the-government- resigns-rather-than-send-the-letter-to-the-eu/

 


 

to allow for an early election in the event of a vote of no confidence in the form specified in the Act.

 

  1. Outside parliament, the FtPA was greeted by a number of prominent constitutional reform lobbyists as a significant reform that could be seen as the first step in a potentially wider package of constitutional reforms including changing the voting system and other wholesale changes. Those of us more sceptical about the wisdom of such wholesale changes were more concerned about the potential negative impacts of the FtPA on the doctrine of confidence, for example, which is the beating heart of the political constitution. The FtPA is more reminiscent of a legal, codified constitution where typically far more power is wielded by lawyers, and less by politicians.

 

  1.               The doctrine of confidence is defined very simply as the requirement that the Prime Minister and their Government must retain the confidence of the House of Commons. In a flexible, fluid and political constitution, this is the touchstone upon which all executive authority ultimately rests. One of the ancillary purposes of the FtPA was to try to leave the doctrine of confidence unaffected. That is why the conventions and procedures in parliament as to whether a particular vote was to be treated as a matter of confidence were not codified in the Act, save for the formal statutory ‘vote of no confidence’ procedure itself. The FtPA was only supposed to affect parliaments, not governments.

 

  1. In a political constitution where government and parliament are so inextricable fused, the pious hope that the FtPA would have such a limited effect was always doomed to be disappointed. The ripple effect of the FtPA on the normal workings of the system were revealed during the Brexit process. Some defenders of the Act claim that it was effective in preventing the government from cynically calling an election in the period immediately preceding departure day, in order to prevent backbench MPs securing a further delay by passing a delaying Act. This argument fundamentally misunderstands the FtPA’s malign influence over the proceedings at that time.

 

  1. Theresa May lost three votes on her Brexit deal, by gigantic margins. In a pre-FtPA world, it is difficult to see how May could have avoided any of those votes being an issue of confidence for her Government. The inability of the Prime Minister to make those votes an issue of confidence robbed the Prime Minister of the threat that had worked so effectively before, for example in 1992 under John Major. Pre-FtPA, May would have either got her deal through, or the government would have fallen resulting in a new government or an election. Instead, a zombie government staggered on and the chaos was so extreme that a wildcat quasi-executive was formed that took control of the order paper and indeed successfully passed Bills through parliament mandating delays to the exit date which simply extended the chaos.

 

  1. In my submission, it was the FtPA that allowed for a mortally wounded government to stagger on for months, unwilling to resign and without the power to resolve the crisis by calling an election and with a legislature unwilling to deliver the fatal blow by a formal, statutory vote of no confidence in the government. This ‘formalisation’ of the confidence

 


 

question, in statute, had an enormously damaging impact because it split the issue of confidence, as a political doctrine, from what was undoubtedly the main political question of the day, and reduced it to a dry formal legalistic matter regulated by statute. Rigid legal regulation of political questions, in a flexible, political constitution, is a bad idea. The experience of the Brexit crisis should be the final nail in the FtPA coffin.

 

  1. In summary, the FtPA did untold damage to the historically flexible, uncodified constitution. This was because it prevented the normal outcome when the government loses the confidence of the Houseon the central questionof the day, which is an election or a new government. This led to a ruinous limbo period that lasted for months. It was during that period that machinations such as suspending the order paper resulted in the Cooper Act and the Benn-Burt Act which did such harm to the reputation of parliament both domestically and internationally. In my view, the vast majority of this damage can be laid at the door of the FtPA. In my submission, it is no coincidence that the extreme constitutional ructions that blighted the last parliament were framed by the rigid straitjacket of the FtPA.

 

  1. Some have sought to justify the FtPA because it supposedly reduces the power of the Prime Minister and increases the power of the Commons. This fails to account for the fact that the FtPA increased the power of a seriously damaged Prime Minister to avoid resignation or the ballot box, for many months. Ironically, and despite the best intentions, the FtPA may be seen to have passed more power to the then Prime Minister, in the particular circumstances of Brexit, because of the rigid and formalistic statutory rules now surrounding a formal vote of no confidence. We all know what road is commonly paved with good intentions.

 

  1. More generally, there is one common argument that is regularly wheeled out in favour of the FtPA with which this author strongly disagrees. It is frequently suggested that determining the date of a general election is an unfair political advantage for the Prime Minister. It is sometimes described as handing the starting pistol to one of the competitors. This argument is seriously misconceived, in my submission. To continue the analogy, even if the pistol is in the hands of the Prime Minister, there is every chance he or she will shoot themselves in the foot with it, thereby hobbling themselves in the race. Examples include Theresa May in 2017, Ted Heath in 1974 and Gordon Brown's change of heart in 2007 which was arguably grounded in precisely his fear of such a decision going wrong.

 

  1. General elections cause inconvenience to millions of people, famously including Brenda from Bristol. The idea that the power to call an election is somehow a 'party political' advantage is extremely questionable. Indeed, such a view arguably suggests a suspicion of politicians, normal politics and the political constitution itself from those who would prefer a more rigid and legalistic approach. It is slightly odd to criticise the power to call an election for being 'political' in nature. Of course it is political. Everything the PM and the government do by way of policy decisions, proposing legislation and authorising expenditure is political in precisely the same sense.

 


 

  1. In a political constitution, calling an election is therefore, by definition, political. It is puzzling that critics appear to think that calling an election for political reasons in a political constitution is in some sense too political.  It could even be argued that calling an election is one of the least controversial exercises of political power by the Government because it is subjected to immediate direct democratic accountability at the hands of the electorate.

 

  1. This connects directly to the doctrine of confidence because that doctrine operates at two levels. At one level, the government must retain the confidence of the Commons to continue in government. But at a second and alternative level, the government is, or was before the FtPA, entitled to seek the confidence of the electorate as a whole, directly, and the FtPA prevents that unless two thirds of the Commons consents. The very calling of an election is an important aspect of the doctrine of confidence that has been detrimentally affected by the advent of the FtPA.

 

  1. Furthermore, the FtPA upsets the delicate balance between government and parliament. The Commons has the power to bring down a government and secure an election by a vote of no confidence. The pre-FtPA power of the government to call an election was an essential foil to that power because the power of the executive to seek a further mandate from the electorate was removed.

 

  1. A vote in a general election is bifurcated. We elect both legislature and executive in our fused system. The existing executive stands on its record, and the alternative executive stands on its manifesto for government. MPs stand as party members and on their voting record and their local standing. The pre-FtPA ability of both the executive and the legislature to bring about an election serves to ensure that both institutions work hard to respect the political currents and tides that affect the views of the electorate. During the Brexit process, and due to the FtPA, a number of MPs were able to make political moves without fear of immediate electoral consequences. It was the FtPA that allowed this to happen.

 

  1. Overall, the rigid and legalistic effects of the FtPA arguably exacerbated the chaos during the Brexit process and unfortunately led to the outer limits of the uncodified constitution being tested. This was in large part, in my submission, caused by the FtPA and the commitment of both major parties to repeal of the FtPA is to be welcomed.

 

If the Fixed-term Parliaments Act 2011 is amended or repealed, what arrangements should be put in place?

 

 

Can the prerogative powers be restored or created anew?

 


 

 

  1. The possibility of reviving prerogative powers is a contested legal question on which reasonable people disagree, depending on how they conceptualise the nature of prerogative and its relationship with statute. I address the issue in depth at pp 492-499 of my Modern Law Review article cited above at [9]. The view that I expressed in that paper was that it would be perfectly possible to revive the prerogative power but that it would be better for the Prime Minister to have a formal statutory power to call an election that would in essence replicate the pre-FtPA situation.

 

Conferring the power to call an election on the Prime Minister

 

  1. The author suggests conferring a general statutory power on the Prime Minister to advise the Queen (‘HMQ’) to dissolve Parliament and provide for fresh elections to the House of Commons, subject to a straightforward motion of approval in the Commons. The Prime Minister would set the date of the general election. HMQ would have no discretion over any aspect of the process.

 

  1. The chaos over Brexit has given the author some pause over my previous suggestion that there should be a motion to approve a Prime Minister’s decision to ask HMQ for a dissolution of parliament in the Commons. I suggested the requirement for such a vote in order to prevent a Prime Minister from calling another election immediately after a close defeat in order to try to get a better result. It is tempting to leave it to the electorate to punish such behaviour.

 

  1. On reflection, however, the author continues to defend the idea of a requirement for the government to win a simple majority of the Commons vote in order to have an election. This reason for this is that in 2019, the gridlock in parliament was ended because a short Bill to bring forward an election was passed, thus circumventing the necessity for a 2/3 vote or a vote of no confidence under the FtPA.

 

  1. It is important to note, therefore, that even in the biggest political  gridlock  in generations, a simple majority in favour of a general election successfully broke the logjam. Although the executive has its own mandate from the approval of its manifesto by the electorate, it must also retain the confidence of the Commons. There must be considerable doubt whether a government that cannot secure a straightforward vote for a general election continues to possess that confidence or whether there may in fact be an alternative administration in the wings that could command the confidence of the Commons. What happens after the loss of any vote to have a general election should remain a political matter for parliament.

 

Reviving the prerogative

 


 

  1. The short version of why it is possible, in my view, to revive the prerogative is that otherwise the 2011 Parliament will have successfully bound future parliaments. Unless a later parliament can completely unwind an earlier Act and restore the status quo ante, there is a sense that the ‘continuing’ theory of parliamentary sovereignty would be breached. Famously promulgated by HLA Hart, the continuing theory requires that later parliaments cannot be constrained by earlier parliaments and that must logically include a later parliament wishing to unwind entirely what an earlier parliament tried to do.

 

  1. Furthermore, it is important to mention that a bare repeal of the FtPA would not automatically revive the prerogative. This is because s 16 Interpretation Act 1978 specifically precludes the revival or pre-existing common law and other legal rules without express words to that effect which illustrate ‘a contrary intention’ by Parliament.

 

  1. If the Committee is interested in a straightforward revival of the prerogative, the author commends the following draft Bill submitted by a parliamentary draftsperson (anonymously) on social media as follows:

 

1.      Revival of Royal prerogative power to dissolve Parliament for election.

 

(1)   The Royal prerogative power of dissolving Parliament for the purpose of holding a parliamentary election, as that power existed before the coming into force of the Fixed Term Parliaments Act 2011, is revived and has effect.

 

(2)   the Fixed Term Parliaments Act 2011 is repealed.

 

  1. A repealing Act would not be sufficient as drafted above. There would need to be further provision for the maximum term limits of four or five years (the author expresses no view on that issue), as well as other matters.

 

  1. In summary, the author recommends that should the FtPA be repealed and replaced, the best solution would be to replicate as far as possible the status quo ante but with the proviso that HMQ can no longer be directly involved under any circumstances because that would be inappropriate in a modern democracy. It is suggested, therefore, that a statutory power be conferred on the PM to ask HMQ to dissolve parliament as long as a simple motion to that effect had been passed by the Commons. The statutory power to dissolve would be technically held by HMQ, purely for reasons of tradition, sentiment and history, but the monarch would have no discretion to refuse under any circumstances.

 

Should the prerogative powers to prorogue parliament also be abolished by setting out arrangements in statute?

 


 

 

  1. If there is one lesson that can be learned from the FtPA debacle, it is that an attempt to place prerogative powers onto statute can easily backfire. That is not to say that Parliament should never do so, but caution is necessary, especially when there may be unforeseen consequences. In particular, the FtPA has shown that there can be a problem of participants starting to try to ‘game’ the legal rules, once they are laid down in a rigid way. This can be seen most clearly in the doubts expressed by some, in evidence to this very committee, as to the effect of losing a vote of confidence that was not in the strict statutory form. By contrast, where the rules are fluid and somewhat vague, participants tend to err on the side of caution when approaching the boundaries of prerogative power.

 

  1. One example of the caution that can be exhibited by participants is the recent prorogation decision itself. The executive was keen to stress that the length of the prorogation was not extreme, once the normal recess for party conference season was taken into account. Secondly, the prorogation was announced a number of sitting days in advance of the date of prorogation, to give the Commons every opportunity to stop the prorogation  by passing a vote of no confidence in the Government, which is the traditional political method of holding the government to account, ultimately.

 

  1. Finally, it must be remembered that these seemingly entirely voluntary restrictions (subject to section 2, Northern Ireland (Executive Formation) Act 2019) on the appropriate length of any prorogation were self-imposed by the Government at a time when it was regarded as inconceivable that there would be judicial interference on a matter of such intense political controversy concerning a matter of high policy. It cannot therefore be argued that a prorogation for a few weeks was done with one eye on the infamous ‘judge over your shoulder’.

 

  1. The length of the prorogation was thus purely a function of the political norms that constrained the decision-maker as a matter of constitutional appropriateness, rather than legal limits. If the power to prorogue is placed onto a statutory footing, then the risk of highly legalistic, cynical and self-serving interpretations of the statutory rules increase considerably. What is generally accepted to be politically acceptable in an uncodified, flexible constitution, where some doubt and uncertainty is in fact a virtue not a vice, would disappear. This ephemeral sense of what is and is not appropriate in a political constitution is a delicate phenomenon that is easily lost and it is not obvious that a cold-eyed legalistic and semantic approach as part of a more ‘legal’ constitution would necessarily be an improvement.

 

  1. On the issue of ‘abolition’ of the prorogation prerogative, it is not possible to ‘abolish’ prerogatives in my view because that would be to bind a future parliament from reviving such a prerogative if it chose to do so, as discussed above. Binding future parliaments is the one thing that parliaments cannot do. This has no effect on the sovereignty of parliament because parliament can still achieve any policy goal it desires because its law supersedes any

 


 

prerogative as long as it is in force. ‘Supersedes’ is the appropriate word because in my submission the best way to understand the relationship between statute and prerogative is that where statute covers the same ground, the statute ‘sits on top of’ the prerogative like a building sitting on top of the earth.

 

  1. The decision by the Supreme Court in Miller to declare that parliament had not been prorogued was a bold and surprising entry into the political domain by the Supreme Court. On one view, the express statement by the court that the case was a ‘one-off’ might be thought to limit its importance, particularly on the previously settled test for judicial supervision which was that it did not stretch to matters of ‘high policy’. This may, however, be somewhat wishful thinking.

 

  1.               In reality, the Miller decision significantly increases the possibility that there may be increased future judicial interference in the exercise of prerogatives that had previously been regarded as non-justiciable as matters of ‘high policy’. It is submitted that within any new statute repealing and replacing the FtPA, it might be useful to make clear that the decision of the Supreme Court was mistaken and that the prorogation prerogative is indeed non-justiciable because it is a matter of ‘high policy’.

 

  1. The Divisional Court decision, handed down unanimously by the Lord Chief Justice, the Master of the Rolls (who is the head of the Court of Appeal) and the President of the Queen’s Bench Division provides the appropriate model and their judgment is a crystal clear exposition of what the law had long been understood to be. I am not expert enough to know how such a goal can be translated into proper statutory drafting, but that would be a matter for discussion with the parliamentary drafters.

 

  1. If statutory regulation is deemed to be unavoidable, I would suggest that it is made clear that prorogation must be announced sufficiently in advance to allow the Opposition to bring forward a vote of no confidence if it wishes, perhaps 3-5 sitting days. Secondly, there should probably be a maximum length of prorogation laid down. Thirdly, a clear ouster clause should be attached to ensure that the consequences of a political decision, made be democratically elected politicians is held to account by other democratically elected politicians rather than unelected judges.

 

  1. In summary, in my submission the prerogative power to prorogue parliament should be restored to its previous status as a matter of high policy for which the executive is held to account in the political domain in a political constitution. The recent Miller judgment of the Supreme Court should be reversed via statute and further attempts to make the political constitution more rigid, legalistic and codified, at the expense of democratically elected politicians, should be firmly resisted.

 

 

April 2020