By Joanna George
Research Associate, University of Cambridge
When we think of Parliament we tend to imagine a large and historical building located in Westminster, London, with its famous and imposing clock tower (ideally against the backdrop of a bright blue sky!). Yet when we speak of ‘a Parliament’ this refers to the period of time MPs and Lords spend in Parliament between one general election and the next, which is currently set at five years. A ‘session’ of Parliament refers to a particular year, so the current session is 2021-2022, which commenced with the State Opening of Parliament on 11 May 2021. Each session usually begins in the Spring thanks to the Fixed-term Parliaments Act 2011 (‘FTPA’), although this is expected to change with the Dissolution and Calling of Parliament Bill (‘DCPB’). Why is this important and what are the new rules?
FTPA – the Act which ‘turned out to be anything but a Fixed-term Parliaments Act’ (Jacob Rees-Mogg)
Before we get into the nitty-gritty details of the FTPA, we must first consider why it was implemented and whether it was actually necessary. The 2010 UK general election was unusual as no single political party gained a majority of the seats in the House of Commons. This is called a hung Parliament. In response to this, the Conservative Party (which won the most seats but no overall majority) and the Liberal Democrats formed a coalition government which meant that the Cabinet was made up of both political parties. Coalition governments in the UK are rare, with only seven in the country’s history. When it was agreed that a Conservative-Liberal Democrat coalition was on the cards, this is where the FTPA came in.
The main reason for the FTPA was to give the minority Liberal Democrat politicians in the coalition government confidence that the coalition would last in a stable five year fixed-term Parliament. The key objective of the FTPA was to set a five-year interval between general elections. (Before the FTPA, the Prime Minister could essentially choose the timing of general elections by requesting the Queen exercise her power to dissolve Parliament. The maximum term was five years.) The FTPA was not mentioned in the Conservative Party manifesto but fixed-term legislation for general elections was put forward in the Liberal Democrat manifesto. The implementation of the FTPA was motivated by political, not constitutional, reasons, with Sir Oliver Letwin (a member of the Conservative team that negotiated the coalition agreement with the Liberal Democrats) declaring that the coalition ’would probably not have worked as well’ without the reassurance of the FTPA. In this respect, the FTPA was politically necessary.
Yet the process of its enactment and constitutional impact has been much criticised. In their 2019 UK general election manifestos, the Conservatives claimed that the FTPA had ‘led to paralysis’ whilst the Labour Party argued that it ‘stifled democracy and propped up weak governments’. These criticisms arise from the following concerns:
- The FTPA did not make general elections more predictable as it enabled a super-majority motion for an early general election in 2017.
- The FTPA has a flawed, no-confidence mechanism for triggering early general elections.
- Another Act, the Early Parliamentary General Election Act 2019, bypassed the FTPA in 2019, leading to another general election. This undermined the whole objective of the FTPA.
- The FTPA was one of the contributory factors to the 2019 Brexit gridlock in Parliament.
DCPB – the Bill which proposes to ‘give power to the people’ (Michael Gove)
The 2019 Conservative Party manifesto promise to ‘get rid’ of the FTPA has finally been put into motion this year, with the DCPB currently making its way through the House of Lords.
The DCPB aims to do the following:
- Get rid of (repeal) the FTPA.
- Set the maximum term of Parliament at five years in the event that a general election is not called earlier. This is in contrast to the FTPA which sets a fixed five-year period between elections.
- Enable future Parliaments to be dissolved (ended) by the Queen on the request of the Prime Minister, just as was possible before the enactment of the FTPA.
- Provide that the timetable for the election of a new Parliament is triggered by the dissolution of the old Parliament.
- Prevent the dissolution of Parliament (and any decisions relating to the dissolution of Parliament) being reviewed by the courts.
So, whilst the DCPB will give back powers to the Prime Minister to determine the timing of a general election, will it give the current Prime Minister and his government an excessive degree of power? This can be disputed. But it is undeniable that it gives the government a degree of power that allows it to manoeuvre around electorally unpopular issues (such as tax increases, ramifications of Brexit and the Covid-19 pandemic) and plan for a general election when such issues aren’t directly impacting or being felt by the electorate. This would amount to prioritising political party interests over the public interest.
There is also the issue of excluding the checking function of the courts from the dissolution of Parliament. At first glance this does not appear to be problematic; after all, the courts have never intervened in dissolution decisions. Yet this means that the only constitutional check on the Prime Minister is the Queen – a role that is ‘strictly neutral with respect to political matters’. Bearing in mind that the Supreme Court ruled in 2019 that the current Prime Minister’s advice to the Queen that Parliament should be prorogued (this is when Parliament is suspended, ending a specific session of Parliament) for five weeks during the Brexit gridlock was unlawful, what’s to say that the Prime Minister won’t draw the Queen into a political storm again? Progressing with the Bill on this basis (which includes unclear guidance on when dissolution could be refused, the role of non-legal constitutional conventions and shared political understandings) is constitutionally dubious, legally discourteous and politically risky territory.