The Coalition’s constitutional legacy could last a little longer yet

The classic interpretation is wrong. Britain’s constitution is not unusual because it is uncodified (or unwritten, to use the inaccurate but more frequently-used description). It is, of course, uncodified – it cannot be found in a single source – and it is, in some important aspects of convention, unwritten; and while the former is unusual, to focus there misses the crucial point and places the stress on the wrong thing.

Even if all current constitutional statute were amalgamated into a Constitution Act, the United Kingdom’s constitution would still be internationally exceptional for this reason: it sits on the same level as all other primary legislation. Procedurally, it’s as easy to amend the Parliament Act (for example) as any other Act; and there is no higher Basic Law against which statutes can be measured and, if necessary, annulled. The constitution’s sovereignty resides in the crown-in-parliament, not the other way round.

There are many critically important consequences that flow from that fact but those are not for this discussion. Let’s look here instead at a lesser one, albeit one of some practical significance: that nature of the UK constitution is one of the main reasons why the Fixed-term Parliaments Act 2011 doesn’t work.

The essence of the Act was to remove the PM’s discretion in calling general elections by ensuring that Westminster parliaments last for 5 years. Casual observers of politics over the last three years will have seen that this has not been entirely effective. Closer observers will have noted the two reasons, both of which have been used for practical effect.

Firstly, the Act included a provision that parliament could dissolve itself and so create an early election on a two-thirds vote. In normal circumstances, it will always be very difficult for an opposition to refuse to go along with such a motion; if they don’t, they will appear scared of the voters – which would probably contradict their public statements. As in 2017, they will therefore support the motion, trigger the early election and reconfirm for practical purposes the PM’s power to dissolve at will.

Indeed, the 2017 experience, when Labour recovered from a hopeless situation to nearly deprive the Tories of power (and to actually deprive them of a majority), will reinforce the willingness of opposition parties to support dissolution motions: if Corbyn could do it then, why not them too?

And secondly, even if an opposition won’t play ball, the fact that the FtPA is only the same as any other Act means that parliament can simply pass another Bill to amend or override it, and trigger an immediate election – which is what happened prior to the 2019 poll.

Only in exceptional circumstances, such as earlier in 2019 when the government had no majority but parliament wasn’t willing to No Confidence it, and when circumstances meant that an election might be used as a procedural device to implement a policy by default that parliament opposed – Brexit, either on the government’s terms or without a deal at all – will the Commons reject the option to call an early poll. For most purposes, the FtPA has no ability to ensure its primary aim: that of fixing the terms of parliaments – and it has no such ability because its rules have no special status above ordinary law.

There are plenty of other criticisms we could make of the FtPA, from the constitutional innovation of post-appointment Votes of Confidence (which alters the previous implied assumption that all governments enjoy the Commons’ confidence unless demonstrated otherwise), to the two-week period of uncertainty following a successful Vote of No Confidence, which may well have been a factor in parliament not No Confidencing the 2017-9 Tory government, despite it clearly actually having no confidence in it, to the government not resigning (the other side of the same stalemate) following these defeats. This, however, is not the place to explore them, partly for reasons of space but mainly because it should be an academic argument: the Act should be on the way out.

The Tory 2019 manifesto committed the government to repealing the FtPA. Granted, the 2017 one did the same but that manifesto was so disliked by so many Tory MPs it might as well have not existed after the election. Besides, the FtPA is very useful to an opposition in a hung parliament; the repeal was never a practical option, even without the magnifying effect of Brexit. Boris Johnson has no such worries. If he wants to repeal it, he can.

Except it’s not quite that easy. The government needs to think carefully about how it goes about such a repeal and what it puts in its place.

There have been attempts before to repeal it. Alan Duncan tried to do so via a very short private members bill. Had he been successful (highly unlikely, given that this was during the 2010-15 parliament), he might inadvertently have created parliaments that last indefinitely. It’s precisely this sort of bear-trap that ministers and parliament need to be aware of, and avoid.

The problem with a bare repeal, as Duncan attempted, is that it removes the existing Act without putting anything in its place. Prior to the FtPA, the general election schedule was governed by the Septennial Act 1716, which originally set the duration of a parliament at seven years and, after the Parliament Act 1911, reduced it to five years. However, the FtPA repealed the Septennial Act and repealing the FtPA in turn does not restore that former legislation. Instead, it would leave a vacuum where the term of a parliament was not defined at all.

Worse, the FtPA also means that the Sovereign is no longer able to dissolve parliament: previously not just a prerogative power but one of the reserve powers that the monarch still exercised at her own discretion (albeit under constitutional conventions and subject to political pressures). Again, a bare repeal would not restore that power – so not only would parliament not dissolve at a pre-ordained point but nor could the PM (or, technically, the monarch at the PM’s request), generate an election at a time of his or her choosing.

In fact, there’s some debate about whether a prerogative can be so revived once statute has overridden it i.e. whether the Act that replaces the former prerogative discretion places that power into abeyance, from which it could be recalled, or whether it abrogates it entirely for all time. The Miller 2017 Supreme Court judgement touched on this point, and implied that such powers could be recalled, but frustratingly also hedged that general assertion with the word “sometimes”, without defining what might or might not allow such a reinstatement (this was a tangential point to the main ruling but, you might think, quite an important one).

If the government decides that it’s too risky to assume that a prerogative can be reinstated and that the Sovereign’s powers should instead be based on statutorily defined powers, that also brings problems: firstly, that on the face of it, the Queen’s powers would have to be defined as hugely broad in scope, which will look strange to the public; and secondly, that simply writing them down changes their nature. (The risk of their misuse being litigated is a lesser risk, given the Queen’s immunity – though that of itself is not a defence the Palace will be too keen to rely on in controversial circumstances).

Is it even worth doing? Robert Craig, in an article for Modern Law Review (see the p.s.), argues not; that the power to dissolve parliament – presumably subject to a legislated maximum term of, say, five years – should be vested in the PM, subject to a vote in the Commons. There are dangers in that, for example that the 2019 situation where a government was maintained in power and required to implement policy against its will, could be repeated in hung parliaments. Indeed, as with the FtPA, the danger with being too specific is that stated rules can often be gamed much more readily than unstated ones. I’d also argue that even if the PM is vested with that power to request, it’d still be useful for the Sovereign to retain a final backstop dissolution power, which might, in extreme circumstances, be preferable to either dismissing a government or vetoing an intolerable Bill.

Even so, much as though the FtPA had a worthy objective – to eliminate the ability of the PM to fire the starting gun in his own race, and so to establish a greater fairness within the system – it doesn’t work. Restoring the status quo ante will, however, not be a simple matter. Partly that’s a consequence of the technical reasons already mentioned, of needing to reinstate former powers. But the FtPA itself, while never gaining wide consensus as a constitutional set of rules, nonetheless introduced constitutional innovations such as Votes of Confidence and delays between VoNC’s and dissolutions, that might impact on expectations of conduct and permissible actions in the future.

Disliked though it may be, and committed to its repeal though the government is, I wouldn’t be at all surprised to see it still in place come 2024 due to a mixture of its own limited applicability (especially when you have a majority of 80), the other pressing issues the government has, and the awkward issues surrounding the Act’s repeal.

David Herdson

p.s. I am extremely grateful to Robert Craig for offering to send me a copy of his excellent and very thorough article for Modern Law Review (May 2018), “Restoring Confidence: Replacing the Fixed-Term Parliaments Act 2011”, and then doing so. His analysis, comment and ideas in that were very helpful to me in writing this piece.