Written evidence from Meg Russell and Robert Hazell1 (FTPll)
Public Administration and Constitutional Affairs Committee Fixed-term Parliaments Act 2011 inquiry
1. The Constitution Unit, housed in the Political Science Department at University College London, conducts timely, rigorous, independent research into constitutional change and the reform of political institutions.
2. This submission makes the following key points:
It is a mistake to view the FTPA simply as a political manoeuvre under the 2010 coalition, or as focussed primarily on fixing the length of parliamentary terms. Various actors of different political persuasions had called for a similar measure for some years pre-2010.
The central underlying principle of the Act, to shift power from the Prime Minister to parliament, is correct. The UK's system of government holds parliament as sovereign, therefore, parliament alone should have the power to call an early general election. In that regard, despite other perceived problems, the Act has served its purpose.
It is correct that the Act should allow for an early election under certain circumstances, as occurred without difficulty in 2017.
The circumstances of the 2019 election highlighted that a requirement for a parliamentary supermajority cannot hold. In the absence of an entrenched written constitution, parliament will always have the power to legislate to circumvent such a provision.
The process by which an early election is called therefore requires review, as does the operation of the 14-day period in the event of a parliamentary no-confidence vote.
Under section 2.7 of the Act the Prime Minister retains the power to decide the date of an early election. This power should be passed to parliament.
Parliamentary terms should preferably be reduced from five years to four years.
The passage of the 2010-11 Bill provided insufficient consultation and parliamentary scrutiny on the key provisions, which helped contribute to some of the problems that surfaced later. In devising any replacement for the Act, this mistake should not be repeated.
QI. What were the purposes of the Fixed-term Parliaments Act 2011 and to what extent have these purposes been met?
1 Meg Russell, Professor of British and Comparative Politics and Director.
Robert Hazell, Professor of Government and the Constitution and former Director Constitution Unit, University College London
3. As background, it is important to note that the idea of fixed-term parliaments did not emerge only as a result of the 2010 coalition. The proposal had been made for decades previously. It was recommended by the Labour Party's Plant Commission in 1993, proposed in private members' bills by Jeff Rooker (1994), former chair of PACAC's predecessor committee Tony Wright (2001), and David Howarth (2008); it had also been mentioned by the Electoral Commission. 2 The proposal appeared in both the Labour and Liberal Democrat election manifestos of 2010. The 2010 Conservative manifesto included a more general pledge to make "the use of the Royal Prerogative subject to greater democratic control so that Parliament is properly involved in all big national decisions"3.
4. A review of the arguments presented by ministers when introducing the Fixed-term Parliaments Bill shows that emphasis was placed on three explicit objectives:
To limit the power of the executive, which was argued to be too dominant in relation to
the legislature (discussed below).
To remove the right of a Prime Minister to choose the date of the next election for partisan advantage (Petra Schleiter and Thomas Fleming's written submission to the committee provides useful comparative evidence on this point).
To increase certainty, and end debilitating speculation about the date of the next election. (This explains the Electoral Commission's previous interest, on behalf of electoral administrators. It was also a benefit welcomed by the Political and Constitutional Reform Committee in terms of government and civil service planning.4
5. We view the first of these objectives as particularly central.Notably, the Conservative Party manifesto of 2015 celebrated this as an achievement of the FTPA, in stating that "We also passed the Fixed Term Parliament Act, an unprecedented transfer of Executive power".5 The move away from prime ministerial prerogative power was in line with various other changes made in the UK over a sustained period, for example with respect to public appointments, governance of the civil service, approval of treaties and military action. In several areas powers were moved into statute, or transferred to parliament either as a matter of law or of convention. Such changes enhance government accountability, and reinforce the UK's central constitutional principle of parliamentary sovereignty. Your predecessor committee (PASC) was among those that pushed for these kinds of greater
2 For further detail of these initiatives see Robert Hazell, Fixed Term Parliaments (Constitution Unit, 2010). Available from: https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/150.pdf [accessed 27 April 2020 - NB. All other links referenced below were accessed on this same date].
3 The Conservative Party (2010), The Conservative Manifesto 2010, p.67. Available from: https:/Iconservativehome.blogs.com/files/conservative- manifesto-2010.pdf.
4 Political and Constitutional Reform Committee, Fixed-term Parliaments: the final year of a Parliament, 7 May 2014, HC 976 2013-14. Available from:
5 The Conservative Party (2014), The Conservative Party Manifesto 2015, p.49. Available from: https://issuu.com/conservativeparty/docs/ge manifesto low res bdecb3a47a0faf/75.
regulation of executive power.6 Parliamentary oversight over the prerogative has also decreased in other countries whose systems are influenced by Westminster.7
6. As well as respecting parliamentary sovereignty, the removal of prime ministerial discretion over the calling of general elections offers protection to the Crown. If the Crown is left as the only check on improper or untimely requests for dissolution, it will inevitably be drawn into controversy on the rare occasions when such requests are refused. This is what happened in the King-Byng affair in Canada in 1926, and with Gough Whitlam in Australia in 1975: in both cases the Governor-General's refusal of the Prime Minister's request for dissolution triggered a major constitutional crisis.
7. If the Act is judged against the yardstick of fixing the length of parliamentary terms (as the name might imply), it could be considered to have failed. However, its aim was clearly never wholly to do this, as section 2 deliberately provides for early elections - with section 2(2) successfully used to trigger the 2017 general election.
8. Judged against the stated objective of creating greater certainty, the Act might also be considered to have underperformed. However, that certainty would only ever apply in the absence of recourse to section 2 of the Act. The fact that two early general elections have been called in close succession (in 2017 and 2019) was in large part a product of the unique circumstances surrounding the politics of Brexit. In 'normal' political times, greater certainty might well have been achieved.
9. In terms of the most fundamental objective, of limiting executive discretion and passing decision-making over early general elections to the House of Commons, the Act has succeeded in its aims. The 2017 election was called following support by more than 2/3 of members of the House of Commons, as required by section 2(1). In 2019 the Prime Minister was repeatedly denied this support, but ultimately achieved a House of Commons majority in favour of the Early Parliamentary General Election Bill. This shows up a problem with the operation of section 2(2), as discussed below, rather than the overall principle of the Act.
10. Clearly various aspects of the FTPA came to be seen as problematic during the course of 2019. It is worthwhile pointing out that the means by which the Act was planned for and prepared almost certainly contributed to these difficulties. No green or white paper was published ahead of the legislation, and no draft bill. There was no automatic evidence taking on the bill in the House of Commons, because as a bill of major constitutional
6 E.g. Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, 16 March 2004, HC 422 2003-04. Available from:
7 Philippe Lagasse (2019), Prerogative Reform Project Summary. Available from: https://lagassep.files.wordpress.com/2019/04/prerogative-reform-project-summary-1.pdf .
importance its committee stage was taken on the floor. (This highlights a generalised flaw in the parliamentary treatment of such bills - which should if anything be subject to more rigorous interrogation of other bills, not less.) The House of Lords Constitution Committee was highly critical of the process by which the bill had been introduced, and of aspects of its conten t.8 Partly as a consequence, significant changes were made during its passage through the Lords. This included replacement of the entirety of clause 2 at report stage by a government-sponsored amendment - allowing little opportunity for parliamentary or external scrutiny of these crucial aspects of the Act in their final form.
11. The central point here is that process matters: ill-considered and rushed proposals may lead to difficulties later. It is important that these mistakes are not repeated in considering any changes to the FTPA.
Q2. If the Fixed-term Parliaments Act 2011 is amended or repealed, what arrangements should be put in place?
What provisions should there be for early general elections?
12. In line with the key principle above, the calling of an early general election should continue to be at the discretion of parliament. However, as already indicated, there are problems with the existing provision. Firstly, the supermajority requirement in section 2(1) has been shown to be unenforceable in the UK system of government - because parliament, by a simple majority, can override any such provision with a new statute, as it did via the Early Parliamentary General Election Act 2019. It would be possible to entrench a supermajority in a system (typical of other countries) based on a written constitution which has status as higher law, but in one such as ours based on parliamentary sovereignty it is clearly not. The two thirds provision should hence be amended to a simple majority to prevent the need for legislation to circumvent the FTPA.
13. The provision in section 2(3), that an election should occur if a 14-day period elapses following a parliamentary vote of no confidence in the government, is also problematic for various reasons - as was demonstrated by debates during 2019:
The basic principle that there should be a breathing space to install an alternative
government following a vote of no confidence is correct, and reflects UK traditions. But there is uncertainty what should happen during the 14-day period in terms of parliament's ability to demonstrate confidence in an alternative government. It would be proper for the parliamentary aspects to be left to standing orders, but no such standing order yet exists. In addition, section 2(5) implies that a vote of confidence during the 14-day period should take place in a government (as already appointed by the monarch) rather than a putative government (as recommended by MPs). This creates ambiguity.
8 Constitution Committee, Eighth Report, Fixed-term Parliaments Bill, 1 December 2010. Available at: https://publications.parliament.uk/pa/ld201011/ldselect/ldconst/69I6903.htm#al .
In addition, the 14-dayperiod could encompass a period when the House of Commons is not sitting, with perverse effects - including the possibility that a general election could happen against the wishes of MPs. This could occur if a vote of no confidence took place shortly before a planned recess, or potentially if the Prime Minister sought to prorogue parliament during the 14 days. This difficulty could be resolved through, for example, amending the provision to a period of 10 sitting days. Notably amendments to similar effect were proposed to the Fixed-term Parliaments Bill - including by members of the Political and Constitutional Reform Committee on a cross-party basis9 - but did not succeed.
How should the date for such elections be set?
14. Section 2(7) of the FTPA provides that following a mid-term dissolution, "the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister". Given the controversy in September 2019 over the discretion that this might confer on the Prime Minister to choose a distant polling day (in this case a date after 31 October) had he been defeated on a no-confidence motion, it would be preferable to provide that the polling day should be approved by the House of Commons, before the Prime Minister recommends a date to the Queen.
15. The process to set a date for an election explicitly approved by parliament is also currently a two-step process, which is unnecessarily complex. Section 2(2) could be amended to require a motion stating that "That there shall be an early parliamentary held on [X date]". In the event of an early election following a no-confidence vote and the elapse of the 14- day period, the Act could specify a limited period within which an election should be held.
How should the current mix of statute and conventions surrounding the confidence of the House of Commons be dealt with in future?
16. As PACAC itself has noted, the FTPA does not preclude passage of other forms of confidence votes aside from those set out in the Act, and the government can still attach confidence to a policy question.10 Resignation is always an option open to a minister, Prime Minister or government (for example there were strong rumours that Tony Blair would resign as Prime Minister had the House of Commons voted against his proposed military
9 House of Commons (2010) Fixed-term Parliaments Bill: Committee of the Whole House Amendments as at 16 November. House of Commons. Available from:
10 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 2019, 11 December 2018, HC 1813 2017-19. Available from:
action in Iraq in 200311 A Prime Minister would also remain free to bring forward a
motion for an early general election under section 2(2) of the Act.
Q3. Should parliamentary terms be fixed?
How can fixed terms be assured?
17. While parliamentary terms can be fixed in principle, the FTPA explicitly allowed for early elections and this is appropriate. Hence terms will never be wholly fixed, nor should they be.
What should be the length of parliamentary terms?
18. Most politicians and academics who have addressed this question have supported four year terms. During the debates on the Parliament Act 1911, which reduced the maximum term from seven to five years, Prime Minister Asquith said that this "will probably amount in practice to an actual legislative working term of four years".12 This prediction proved to be largely correct: in the post-war period the average length of terms was approximately four years, and only a handful of parliaments ran to five years.13 Four-year terms are also the norm across most of Europe, and apply in Canada, while in Australia and New Zealand the maximum term is three years.14 The various proposals for fixed term parliaments referred to in paragraph 3 above, which preceded the FTPA, all provided for four-year terms. In written evidence submissions to the Lords Constitution Committee inquiry into the Fixed-term Parliaments Act, Professor Robert Blackburn, Professor Petra Schleiter and Sir Malcolm Jack were among those arguing that parliamentary terms should be set at four years.15
Should scheduled elections be fixed to a certain point in the year?
19. Elections will never be wholly fixed for reasons outlined above. Under the Act, scheduled general election dates are in May, and an early election is by default followed by one which reverts to this timetable (hence following the December 2019 general election, the next scheduled general election date is May 2024, not December 2024). This seems appropriate.
20. An additional question is how and whether Westminster elections should be scheduled to align with elections to devolved parliaments and assemblies (which used to have four-year terms but switched to five-year terms following the FTPA). However, whatever new
11 Patrick Wintour (2003), When Blair stood on the brink, The Guardian. Available from: https://www.theguardian.com/politics/2003/apr/26/uk.iraq.
12 Robert Hazell (2010), Fixed Term Parliaments , pl3 (above at note 2).
14 Ibid. pl2.
15 Constitution Committee (2019), Fixed-term Parliaments Act 2011 publications. Available from: https://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution committee/inquiries/parliament-2017/fixed-term-parliaments-act/publications/ .
arrangements are established such attempts may well prove futile, assuming that the ability to hold early elections remains.
Q4. Can the prerogative powers be restored or created anew? Would there be any potential consequences of such actions?
21. Reinstating a prerogative power would be a retrograde step in terms both of international norms and the direction of travel in the UK constitution, which has (as indicated above) tended towards greater regulation of prerogative powers.
22. Constitutional lawyers are not confident that the prerogative power of dissolution would be automatically revived if the FTPA were repealed. If the monarch's power to dissolve parliament were to be restored, it would have to be re-created in statute, as Sir Stephen Laws indicated in his oral evidence on 24 April.16
23. The prerogative power of dissolution is one of the most controversial prerogative powers, as shown in the 1975 dismissal of Gough Whitlam in Australia, and more recently the request in 2008 for an early dissolution by Stephen Harper in Canada. That is a strong argument against reviving it, in order to avoid exposing the monarch to that kind of controversy. But if the prerogative power is to be restored, this should be done in a way to minimise the risk of legal challenge: the disincentives against early dissolution are primarily political, not legal. A Prime Minister who is seen to be calling an unnecessary early election should be held to account by the electorate and not in the courts.
Q5. Should the prerogative powers to prorogue parliament also be abolished by setting out arrangements in statute?
24. The prorogation power caused huge and problematic controversy in 2019, culminating in the Supreme Court case. As one of us said in oral evidence to PACAC immediately following that case, the "preferred approach would be... that, like the power to dissolve for a general election or the power to adjourn for a recess, assuming that you want to keep Prorogation at all, you give the decision whether to prorogue to Parliament".17 Others on the same panel, Lord Sumption and Professor Anne Twomey, tended to agree that some parliamentary restraint on the power of prorogation was now required.
25. It is notable that there were attempts during the passage of the Fixed-term Parliaments Bill to constrain the prerogative power of prorogation; amendments were proposed in the House of Commons to bring prorogation under parliamentary control, but rejected by the
16 Sir Stephen Laws, QlO, Public Administration and Constitutional Affairs Committee, Oral evidence: The Fixed term Parliaments Act 2011, HC 167, 24 April 2020. Available at: https://committees.parliament.uk/work/79/the fixedterm-par liaments-a ct-2011/publications/.
17 Meg Russell, Q46, Public Administration and Constitutional Affairs Committee, Oral Evidence: Prorogation and
implications of the Supreme Court judgment, HC 2666, 8 October 2019 Available at: https://bit.ly/3bISXFT.
government.18 The question of prorogation was also considered by the House of Lords Constitution Committee, which concluded that "the risk of abuse of the power of prorogation is very small. We therefore conclude that Her Majesty's power to prorogue Parliament should remain".19 In the light of recent events, this conclusion should be revisited.
Q6. If a committee is appointed to review the Act, how should this committee be constituted?
26. There is a statutory duty under section 7 of the FTPA on the Prime Minister to make arrangements for a committee to review the operation of the Act, and to do so between June and November 2020. The section also provides that a majority of members of that committee must be MPs. There are several possible options for how the Prime Minister might choose to constitute the committee. He could:
invite PACAC to conduct the review;
invite PACAC and the Lords Constitution Committee to conduct the review jointly, with a majority of the joint committee being from PACAC;
propose a motion to the House of Commons (or to both chambers) setting out membership of a bespoke parliamentary committee, with all members (or the majority) being MPs;
appoint a committee directly, comprising a mix of politicians and independent experts,
again where a majority are MPs.
27. Under the first three options the review would be led by parliament, via a select committee or committees operating in the usual way, supported by parliamentary staff. The final option would be more like a Whitehall review, supported by an independent secretariat, or by the Constitution Directorate of the Cabinet Office. If the Prime Minister wishes to influence the outcome he may incline towards the last two options; existing parliamentary committees would be more independent and uncertain in terms of what they might recommend. But in either case the Prime Minister is not obliged to accept their recommendations; the only obligation is that the committee's report must be published.
18 House of Commons Hansard, 18 January 2011, column 733. Available at: https://bit.ly/2yz1Tdg..
19 Constitution Committee, Fixed-term Parliaments Bill, paragraph 149 (above at note 8).