I have previously written about the Fixed-term Parliaments Act 2011. What is notable is the extent to which its provisions were not that well appreciated at the time and still are not fully understood. Even one academic article on the subject believed that the Queen retained some discretionary powers in respect of dissolution. The Evening Standard this week carried an article conflating the two distinct provisions under which an early election may be triggered. There are stories reporting that, if a minority Conservative government is formed next May, there may be a second election in the autumn. These stories appear not to consider the conditions under which an early election may now be called. Prime Ministerial discretion is not involved. The prerogative power in respect of calling an election is gone. The Queen retains no discretionary powers.
There are only three conditions under which a second election could take place next year or indeed at any point within the five-year term stipulated by the Act:
(1) If the House of Commons passes the motion ‘That this House has no confidence in Her Majesty’s Government’ and, if within 14 days, no government has been formed and gained a motion of confidence from the House. The motion of no confidence requires only a simple majority to be carried.
(2) The House votes, by a two-thirds majority of all MPs (not simply a two-thirds of those voting), that there shall be an early election.
(3) The Act itself is amended or replaced. (A simple repeal, not stipulating new conditions, would mean that Parliament would continue in perpetuity!) The new Act could add prime ministerial discretion to or in place of the existing two condition and could confer on the Crown the power to decline the Prime Minister’s request.
Under the Act, the provisions are to be reviewed in 2020. However, given the criticisms now being directed at the measure (not least a five, rather than four, year term), pressure for some change may become such as to prompt some change.
The Norton View 
Would there be any mechanism to restore the previous arrangements in law without having to explicitly define them – ie. state that the previous arrangements before the Fixed-term Parliaments Act 2011 would be used, but not codify or entrenched in black and white?
Reblogged this on nearlydead.
Alex M: No, the Act repealed the Septennial Act and omitted s7 of the Parliament Act. They are no more, and do not come back into being if the repealing Act is itself repealed. There is some dispute as to whether the prerogative would again be live, given that it was not explicitly repealed by the Act, but I am of the school that believes that once displaced by statute it cannot be restored. Giving the Crown discretion in a new Act would make it a statutory power.
“The Queen retains no discretionary powers.”
Since the act gives specific powers to the crown – which she could refuse to exercise and the courts nor parliament can compel her to I’m not sure that your point is true – albeit its a nuclear option.
“They are no more, and do not come back into being if the repealing Act is itself repealed. ”
Nothing to stop a one line addition in the repeal bill stating that all things are restored to the status quo ante
” There is some dispute as to whether the prerogative would again be live, given that it was not explicitly repealed by the Act, but I am of the school that believes that once displaced by statute it cannot be restored. ”
Not sure I buy that – I know the lawyers break out in a cold sweat if they can’t codify everything…
Croft: My point remains that the Queen retains no discretionary powers. That is the crucial point and is not contradicted by what you write. A one-line addition to a repeal bill along the lines you claim would lack legislative certainty and would come up against the claim that the prerogative, once displaced by statute, cannot be restored. Given the dispute over the nature of the prerogative, the most sensible and secure course would be to stipulate in terms the provisions that are to apply.
I can imagine a new statutory regime encouraging some partisan nutcase to try to obtain an injunction against the Queen to stop a general election. Unlikely; but more likely than it was.
Croft’s approach would be better, I think. But really the best thing would have been never to have mucked about with this at all.
Really LN – I struggle to believe a form of form of words can’t be constructed to give affect to the intent. If parliament states ‘all matters of law relating to the length and dissolution of parliament and the royal prerogative are restored to that which existed prior to the passage of the act, as though the act had never been passed’ even the courts can’t surely be that wilfully obstructive as to fail to apply the plain meaning.
Carl: Constitutionally the Queen can’t be sued or injuncted. (Although I suppose one can never underestimate the Judiciarys ability to drive a coach and horses though established law)
Croft: Except that I don’t see the point of that, given that specifying the conditions would not occupy much more space and would avoid uncertainty.
You may want to formalize the prerogative. That’s fine, but pretending that has to happen for some legal reason is silly.
A one-liner like: “The effects of the Fixed Term Parliaments Act 2011 are reversed.” is clear and unambiguous.
A one-liner of that sort wouldn’t work, since it would not bring back into existence the Septennial Act as amended by the Parliament Act.
You’re right about the importance of the FTPA.
The Act is a prime example of politicians using constitutional reform to achieve their own narrow partisan objectives. It was conceived purely to protect this coalition, and is likely to be unhelpful if there’s another hung Parliament next year.
We really must not allow these people to hold any “constitutional convention” or impose on us any constitution.
So, the act that was supposed to give the people the government they wanted for 5 years, will not prevent multiple elections in any one year, in the case of a minority government. Surely this should have been addressed in the Act, or alternatively, outlaw minority governments. They WILL prove to be a burden to the taxpayer if funding 3 or 4 elections a year, the results of which only maintain a status quo. Will we them bcome an electoral basket case, such as Italy?
Inch by inch these legislators are removing the democracy of this island. However, if what I’m reading says anything at all, it is saying that politicians we elect can cry ‘no confidence’ as long as it is a sizeable majority. Does it not? If so, then the answer is for the people to demand their politician does just that. It worked with the Syrian war call didn’t it? The citizens of this country have far more power than they give themselves credit for, if only they used their numbers as cleverly as the Indians did with the Gandhi leadership.
And to take democracy one step further, the Queen should have no recourse to either retain or otherwise any government of the people. It is absurd to suggest otherwise. And, as we know the Monarchy is simply a group of elite individuals looking out for their own welfare and nothing to do with the what is best for the citizens, then it is right this privilege has been removed from that office.
So, all in all, it does strike me as a more democratic situation than previously set. As, in reality, if the Queen had any real clout over our government at all how would we be in the mess we are? Or, is Monarchy really to blame for it? I notice in the ‘austerity’ we all suffer the wealth of the top percentile grows beyond the realms of incredulity. So, why would any of them want change from the present status quo? That would be shooting themselves in the foot.
The spread of true socialism looks to be ready to take a firm stand in Europe in a month or two and I have no doubt it will spread like wildfire once the idea is deemed a reality. And once it does, the right wing Tory party will be as meaningless as the LibDems at the next election. Similar to the situation it finds itself in in Scotland.
Fixed term Parliaments improve rather than remove democracy.
Ending the ability of a Prime Minister to pick the time of a general election purely on the basis of what date is most likely to benefit their own party was always an abuse of democracy (imagine the outrage if, say, the PM could unilaterally choose how old you have to be to vote and varied it each time to suit their own party’s then current political standing).
Fixed term Parliaments given us a better democracy because they remove that ability to pick the rules to suit yourself.
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Re method 1, I’ve heard it suggested that the PM could use the Royal Prerogative to prorogue Parliament for two and a bit weeks, thus preventing a confidence vote in a proposed new Government and forcing an election. Is that correct? And couldn’t and shouldn’t the Queen in such a situation refuse to prorogue, as the clear intention of Parliament is that there should be an opportunity for a second vote?
The prerogative power to prorogue Parliament is retained under the FTPA. It would thus be possible for the PM to advise that Parliament be prorogued for at least 14 days following the loss of a no confidence vote. The Queen would be expected to act on her Prime Minister’s advice. To exercise independent judgment would be to draw the monarchy into political controversy. The judgment on the Prime Minister’s action could be made by the electorate.
Thanks for your reply. Just read section 6 of the FTPA, which keeps the power to prorogue. Amazing. What in the world were the drafters intending by explicitly keeping it? That it’s not a fixed term act after all? Or did they not intend that it should be used in the event of a vote of no confidence, and just forgot to say so?
So the upshot is that a Prime Minister with a small majority can still threaten a group of obstructive backbenchers with an early general election if they don’t fall into line and vote through a Bill, as Major did over the Bill to approve the Maastricht Treaty, albeit that he would have to adopt a more circuitous procedure than just heading off to the Palace to recommend the dissolution of Parliament. Correct?
Denis Cooper: Not quite, in that the PM would be needing the recalcitrant backbenchers to vote for a motion of no confidence. They could vote against the measure they dislike – and make clear they would not vote for a no confidence vote. If they are greater in number than the Government’s majority, not much the PM can threaten them with.
Let’s assume that in one way or another, overtly or covertly, the Prime Minister could always arrange for an MP to table a motion of no confidence in his government. Then it would be quite extraordinary if the opposition did not officially support that motion, even if they weren’t in fact overly keen on having an election at that time, for whatever reasons – in effect that would be announcing to the world that despite everything they said day after day they were happy with the present government and had no ambition to take the reins of power into their own hands. And let’s also assume that one way or another, overtly or covertly, the Prime Minister could then try to lose that motion, arranging for some of the more co-operative MPs of his own party to be unavoidably absent for the vote without any pairs having been agreed. That would be rolling the dice, with the possibility that through their recalcitrance the rebel backbenchers had kicked off a process which led to an early general election which they, and the rest of their party, really did not want. That would seem a credible enough threat to me, even if it would require the Prime Minister to be more devious than under the previous system.
The simplest amendment would be to remove the ‘super majority’ of seats required to call an early election. This requires 434 votes in favour to pass – an almost impossible condition to achieve. An alternative would be a simple majority of seats – requiring 326 to pass, or a two thirds majority of votes cast (that would depend on numbers voting).
From Sky News, 9:50pm, 30 March, a discussion between Adam Boulton and Vernon Bogdanor:
VB:..[Parliament isn’t going to meet…until 18 May] and the Queen’s Speech won’t be until the 27 May, that’s the vote of confidence on the new Government. Now, some people, including Graham Allen, the chairman of the select committee on Constitutional & Political Reform [sic] has said that’s too big a gap and that MPs should be back earlier so that if there is no clear result they should be involved in any discussions and negotiations…
VB:…and then you have the State Opening and the Queen’s Speech, which is a vote of confidence – that’s normally a formality but if there’s a hung Parliament, as many think, it may not be a formality, it may be a very serious vote.
AB: I hear from the Palace that it’s possible, if that’s the case, if they can’t be sure the Queen’s Speech is going to get through, she won’t necessarily even read it out in the first place.
VB: Oh, I haven’t heard that myself. Someone has to present a Queen’s Speech which has to be voted on.
AB: Doesn’t have to be the monarch though, does it?
VB No, but generally the Queen does read it out but it would be a sign of disapproval in those circumstances, I think, if she didn’t.But it’s not for her to decide whether the Government has a majority, it’s for the House of Commons.
…
AB Can you see circumstances where [the Queen would take a more proactive role in discussions than in 2010]?
VB: No, I can’t really. As you say, she kept out of it in 2010, she spent the five days of the coalition negotiations in Windsor, so no-one could accuse her of favouring one side rather than another, and this is what will happen this time. Our system is parliamentary… it’s up to Parliament to decide which Government it wants and if a Prime Minister can’t get a vote of confidence he then goes to the Queen and resigns, and she then appoints the leader of the next largest party and see if he can have a go.
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Er…