Monday, 7 September 2020

Fixed-term Parliaments ~ the Act is due for review

The controversial Fixed-term Parliaments Act 2011 (FTPA) is due for a review.

Under section 7 of the Act - The Prime Minister must make arrangements for a committee to carry out a review of the operation of the Act and, if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of the Act. The PM must also make arrangements for the publication of the committee's findings and recommendations (if any).

A majority of the members of the committee are to be members of the House of Commons.

Arrangements to set up the committee have to be made no earlier than 1 June 2020 and no later than 30 November 2020.

Few observers of the British political scene will forget
the "shenanigans" in 2019 when attempts were made in Parliament to use the Act to secure an early parliamentary election. The attempts were rejected and then legislation was enacted to bypass the FTPA and to allow an early election !  The 2019 election was won by the Conservative Party which was undoubtedly aided by the first past the post electoral system. (Turnout across UK was 67.3% and the Conservative Party secured 43.6% of the vote).

The FTPA section 7 specifes that a majority of the committee's membership must be members of the House of Commons. Beyond that there are no stipulations as to the size of the committee or who its chair might be. Those matters appear to be left to the Prime Minister.

Given that the committee must be set up within the next 12 weeks the publication by the House of Lords Constitution Committee of its report on the FTPA is welcome.  Here are links to the report -
The report is a useful analysis of the reasons for the Act and how it has operated and its conclusions may be seen HERE. The report concludes that simple repeal of the FTPA is NOT a viable option because it would leave no mechanism in place to dissolve parliament and trigger an election. Further, any attempt to restore the prerogative power of the Queen to dissolve parliament would raise the possibility of legal challenge to either the Prime Minister's advice to the Monarch or to the Monarch's decision to dissolve parliament. That must be avoided to avoid inadvertently politicising the role of the Monarch.

To determine the future of the Fixed-term Parliaments Act 2011 a series of linked questions must be answered. These are:
  • Should the length of parliaments be fixed absolutely or should mechanisms allow for early general elections?
  • What should be the maximum length of a parliament?
  • Should the calling of an early general election require the consent of the House of Commons?
  • If the consent of the Commons is required for an early general election, what threshold, if any, should be set for approving the motion?
  • If the consent of the Commons is required for an early general election, should the Commons be asked to approve the date for the election?
These questions are ultimately ones that Parliament must determine. 

In making those determinations, Parliament may also wish to consider the separate question of whether it should be asked to approve the prorogation of Parliament. 

In making these decisions, parliamentarians must be mindful that constitutional change should not be undertaken lightly or with the short term in mind. Constitutional change needs to be able to stand the test of time.

Developments are awaited .....

7 September 2020

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