Restoring Confidence: Replacing the Fixed‐term Parliaments Act 2011

Publication Date01 May 2018
DOIhttp://doi.org/10.1111/1468-2230.12342
AuthorRobert Craig
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LEGISLATION
Restoring Confidence: Replacing the Fixed-term
Parliaments Act 2011
Robert Craig
This article considers both the Fixed-term Parliaments Act 2011 (FTPA) and the political
constitution, to place the former in its political and constitutional context. It begins by setting
out the background to the FTPA – which was a part of a Coalition agreement – and considers
difficulties with the most commonly-made arguments in favour of fixed-term parliaments. The
second part of the article considers the impact and potential practical legal consequences if the
FTPA is repealed without any replacement, arguing that it will only be possible to revive the
‘dissolution’ prerogative by express words in a new Act. The final part of the article addresses
the question of whether the prerogative should be revived, before arguing both that it should
not and that a statutory power to call an election should be conferred on the Prime Minister
subject to a vote by simple majority in the House of Commons.
The Conservative Party’s manifesto for the June 2017 ‘snap’ general election
stated: ‘We will repeal the Fixed-term Parliaments Act’.1This commitment
was the culmination of considerable backbench disquiet over the Fixed-term
Parliaments Act 2011 (FTPA) as evidenced by the multiple attempts to repeal
the Act in the 2010 Parliament. This disquiet was shared by some Labour MPs,
such as Austin Mitchell.2The unpopularity of the FTPA therefore means that
there is every chance that a cross-party consensus to repeal the Act may be
achieved at some point in the forthcoming Parliament.
This article explores both the normative arguments surrounding, and the
legal implications of, any potential repeal of the FTPA. It begins by placing
the Act in its political and constitutional context. In particular, it explores the
concept of the ‘vote of no confidence in the government’ that is central to
the political constitution (the confidence doctrine). It also examines the most
common argument cited in favour of the FTPA before contemplating some
hypothetical problems that could occur under the FTPA regime.
The second part of the article goes on to address the potential legal conse-
quences if the FTPA is repealed without any replacement. It then argues that
it will be possible to revive the ‘dissolution’ prerogative – but that this would
Durham Law School. An earlier version of this paper was presented at the Oxford Public Law
Discussion Group on 30 October 2017. I am grateful to the attendees for their helpful and constructive
comments and to Ewan Smith for inviting me to present to the Group. The author would like to
thank Gavin Phillipson, Rodney Brazier, Robert Blackburn, H´
el`
ene Tyrrell, Carl Gardner, Stephen
Laws and the anonymous reviewers for their helpful comments on earlier drafts. The usual disclaimer
applies. All websites last accessed 2 February 2018.
1 https://www.conservatives.com/manifesto, 43.
2 HC Deb 23 October 2014 c1089, c1091.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(3) MLR 480–508
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Robert Craig
require express words in a new Act. The final part of the article addresses the
question of whether the prerogative should be revived, before arguing that it
should not. The conclusion is that a statutory power to call an election should
be conferred on the Prime Minister subject to approval by a simple majority
in the House of Commons in a Motion.
POLITICAL BACKGROUND AND INITIAL CRITICISMS
Before the FTPA, the monarch could exercise her Royal Prerogative to dissolve
parliament. This power was famously one of the residual prerogatives retained
by the Crown. By convention, the prerogative was exercised on the advice of
the Prime Minister. This advice was always followed. The previous system was
flexible, with the maximum term for parliament being five years. The FTPA
instituted a new system whereby future elections would take place exactly five
years apart, unless parliament decided by a two thirds majority to have an early
election or if there was a statutory vote of no confidence in the government
that was not followed by a vote of confidence within 14 days. The 2015 general
election was triggered by the expiry of the fixed five year term of the 2010
Parliament.
The idea of a fixed term (as opposed to a ‘maximum-term’) parliament for
the United Kingdom legislature is a recent innovation. The standard triennial
parliament mandated in the Meeting of Parliament Act 1694 was extended
by the Septennial Act 1715 to a maximum of seven years. As is well known,
this was limited to a maximum of five years by the Parliament Act 1911. It is
commonly assumed that parliaments do not use their full term, even though
three of the last seven parliaments have done so.3
The narrative of how the detailed threshold requirements and other rules
laid down in the FTPA were determined does not reflect well on the par-
ticipants. David Laws, a Liberal Democrat minister in the Coalition, frankly
documented the horse-trading and other machinations of the two parties dur-
ing their negotiations.4After adding up the total number of Conservative and
Liberal Democrat MPs, it was calculated that 55 per cent would prevent the
Tories on their own, or the Liberal Democrats combined with Labour, from
calling a general election at an opportune moment to the detriment of the
other partner in the Coalition.5On the other hand, 55 per cent would allow
the Coalition as a whole to call a general election. The percentage chosen even
allowed for some by-election losses, deliberately, because the combined total
would still exceed 55 per cent even on the assumption that a series of Coalition
seats would fall to the opposition in the course of the parliament.6
3 Normally, however, parliament is actually prorogued just before the actual, technical expiry date.
4D.Laws,22 Days in May (London: Biteback, 2010) 183-184.
5ibid.
6ibid.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(3) MLR 480–508 481

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