Repealing the Fixed-term Parliaments Act?

20161008_174622Some commentators, as I have previously noted, still appear to be unaware of the Fixed-term Parliaments Act and think that the PM can call a ‘snap’ election.  It is no longer in the gift of the PM to ask the Queen for a dissolution of Parliament.  The Queen has now no prerogative power of dissolution.  If the PM wants an early election, she has to go to the House of Commons to get a 2/3 majority of all MPs for such an election.  The only other route is through the House passing a motion of no confidence (and it has to be a motion of no confidence – not a vote of confidence that is lost); if within 14 days a new government is not formed and gets a vote of confidence, an election takes place.  An early election is thus possible, but it is not for the PM alone to determine.

Some journalists are now alert to the fact that the Fixed-term Parliaments Act exists and a few appreciate precisely what it entails.   However, it is not unusual for reference to the Act to be almost in passing – it can be ‘fixed’ or ‘simply repealed’.  The latest example is Peter Oborne in The Daily Mail.  It is not clear that those who cover it in this way are cognisant of the provisions of section 2 of the Act.  My principal point, though, is in respect of calls for its repeal.  The Act cannot be simply repealed or set aside by a vote of the House of Commons.  It can only be repealed by another Act of Parliament.  This, contrary to the views of Peter Oborne and others, is not that simple.   An Act that repealed the 2011 Act and did no more than that would mean that Parliament could potentially continue in perpetuity.  Repeal of the 2011 Act does not entail the previous provisions governing elections coming back into force.  The Septennial Act 1715 was repealed by the 2011 Act. Section 7 of the Parliament Act 1911 was removed by the 2011 Act.  Repealing the 2011 Act does not bring these provisions back into effect.  They have gone.  There is a dispute about whether the prerogative resumes, but if it does all that means is that Parliament would continue until such time as the Queen agreed to a dissolution.  A PM could leave it for some years before requesting a dissolution.

In short, a simple repeal is not politically feasible.  The measure would have to stipulate the provisions for future elections.  One could put the position back to what it was before September 2011, but that has to be provided for in the Bill.  Not everyone may agree to reverting precisely to what existed before.  Why not stipulate that the maximum life of a Parliament should be four years rather than five?  Why not introduce some limits of the power of the Prime Minister to request a dissolution?  This does not mean that one could not get the measure through, but it does mean that it would generate debate and likely attempts to amend it.  In short, possible, but not necessarily simple.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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16 Responses to Repealing the Fixed-term Parliaments Act?

  1. William MacDougall says:

    How about a vote of confidence that is legally a vote of no confidence? “This House has full faith in the significant talents and abilities of the Prime Minister, and her team, but regrets that getting her proposed legislation passed without fresh elections appears to be difficult or impossible. Consequently, this House has no confidence in Her Majesty’s Government. and we regret that new elections should be held.” Would meet the legal requirement, wouldn’t it? You are permitted additional words to be added to the required “no confidence phrase”, correct? And might be enough to ensure that the voters treat it as “calling an election”, just as they ignore the rigmarole about the Chiltern Hundreds…

    • Lord Norton says:

      As Gerrard Francomb points out, the wording is stipulated in the Act. What you suggest may have been possible under the imprecise wording of the Bill as originally introduced, but it was amended to provide that the motion has to be ‘That this House has no confidence in Her Majesty’s Government’ (s 2(4)). Any deviation from that and it does not count.

  2. Section 2 of the Act provides for two ways in which a general election can be held before the end of the five-year period:

    1:- If the House of Commons resolves “That this House has no confidence in Her Majesty’s Government”, an early general election is held, unless the House of Commons subsequently resolves “That this House has confidence in Her Majesty’s Government”. This second resolution must be made within fourteen days of the first.

    2:- If the House of Commons, with the support of two-thirds of its total membership (including vacant seats), resolves “That there shall be an early parliamentary general election”.

    So it is not a question of a vote of no confidence or a particular Bill being considered a matter of confidence, the very specific words need to be used. If you had a minority Government the Opposition could spend its time winding up the Governing Party by passing motions of no confidence that do not use the specified wording, thereby saying what they think but not triggering a General Election.

  3. I wonder if not being British is an insurmountable obstacle to guessing the answer to this question so I will ask it. Would it or wouldn’t it be a great political handicap for a Prime Minister to raise support for a vote of no confidence in his or her own administration of Her Majesty’s Government simply in order to trigger an election?

    • Lord Norton says:

      franksummers3ba: It would obviously be open to criticism, but it is not beyond the bounds of possibility that a PM may try to go down that route.

      • David Barry says:

        Actually I think, from memory that this sort of thing may have happened in West Germany, once.

        Both sides wanted an early election, but the Federal President could only dissolve if a no confidence vote passed by the Bundestag. So the opposition put one down, it was debated, opposed in debate by the governing parties, and then when the vote was held the opposition voted for, but the Government members all abstained. Result.

  4. Guy says:

    I would think the simplest way to go about it would be for Parliament to pass an Act stating that, notwithstanding any provision of law to the contrary (including the Fixed Terms Act) this Parliament may be dissolved by the Queen at any time upon the advice of the Prime Minister (or similar words to that effect – I am not from the UK, much less an expert in its Constitutional law).

    It could be framed as having no long term legal effects – merely Parliament agreeing to dissolve itself. “Sovereign Parliament” and all that!

  5. maude elwes says:

    What a dreadful mess this is. Imagine the idiocy of a government being completely maniacal, or, as an example, having a Trump or Clinton madness in place, and being unable to throw them and their policies out before a five year term was complete. Who brought this ill thought out notion up? And why? Was this something to do with being part of the Globalist mantra? Even an EU regulation? For aren’t the remaining States in that club being advised to march to this tune?

    This conscious change to uproot or disturb an entire government procedure has led to embarking on ‘irresponsible government.’ When you uproot part of procedural design you automatically disconnect or destroy the entwined system that worked as a symbiotic approach to sensible or logical government.

    The best bet is to follow a path that somehow sidesteps madness with a Royal Prerogative. I am at last understanding the need to keep a Monarch.

    This is the best solution I found on the net so far. Other than the Cromwell approach that is.

    XXXXXX

    Two Procedures for Early Dissolution Pursuant to the Fixed-Term Parliaments Act

    There is now only one method by which the British House of Commons can withdraw its confidence from the government: it must pass an explicit motion of non-confidence. This means that if the House of Commons votes against an Address in Reply to the Queen’s Speech, a major government bill, or a supply bill, it no longer automatically withdraws its confidence from the government. There is no longer any such concept in the British House of Commons. In addition, the government can no longer declare its bills matters of confidence. Furthermore, the government can no longer interpret losing a vote or losing the ability to control the conduct of business an automatic withdrawal of confidence. In the Westminster Parliament, it is no longer possible for the Commons to withdraw its confidence from the government automatically by voting against key legislation – that’s how radical the Fixed-Term Parliaments Act, 2011 truly is.

    Section 2 of the Fixed-Term Parliaments Act, 2011 also sets out two procedures by which Parliament may dissolve itself before the scheduled elections. The first procedure, set out in section 2(1), does not touch upon whether the Government still commands the confidence of the Commons, and the second procedure, contained in section 2(3), sets out a form of constructive non-confidence.

    First, Parliament could pass a motion with a two-thirds super-majority in the form, “That there shall be an early parliamentary general election.” While the dissolution itself would occur pursuant to the vote and without the involvement of the Crown, the Prime Minister would then have to advise the Queen to issue proclamations for the return of writs and the summoning of the next parliament.

    Second, the Commons could withdraw its confidence from the Government through a simple majority and properly worded motion, “That this House has no confidence in Her Majesty’s Government.” If an alternative Government cannot gain the support of the Commons within fourteen days through a confirmation vote on the motion, “That this House has confidence in Her Majesty’s Government,” then the Parliament dissolves automatically in order to break the impasse.[3] The defeated government would remain in office but exercise restraint under the caretaker convention during the writ.[4]

  6. Rob Lawson says:

    Slightly off-topic, but I would very much like to hear your opinion on Theresa May’s position that no vote will take place on the outcome of the Brexit negotiations. In particular, how does this work when there will surely be a need to reverse the enabling legislation that enacted the treaties of Rome, Maastricht and Lisbon in the first place?

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  8. Robin Stanley Taylor says:

    If a Fixed-Term Parliaments Act 2011 Repeal Act 2016 (perhaps it could be called The Quinquennial Act) were to be deployed, could it not simply have a clause to the effect of “The Septennial Act 1715 is reinstated” and similarly list the amendments made to other legislation with the effect of restoring them to their pre-2011 state? Might not the new act even just repeat the text of the old legislation verbatim?

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