Although we have heard no more about the constitutional committee due this month, the Conservative government is about to make good on another manifesto promise. A bill published yesterday will repeal the Fixed-Term Parliaments Act (FTPA), seeking to restore the prime minister’s right to call an election through the royal prerogative.
While it tilted towards broader constitutional reform, the act’s narrower aim was to guarantee a five-year lifespan for the coalition government. This is about the only thing that its critics agree it achieved, scepticism abounding even before the parliamentary shenanigans of 2019. Even so, this reform looks retrograde.
It has been widely noted that prime ministers who can set their own election date for political gain have an incumbency advantage. While the FTPA didn’t make it impossible to replicate this, as was seen in Theresa May’s general election call in 2017, the act made it harder. As the Public Administration and Constitutional Affairs Committee (PACAC) said in a report, “Whatever legislation replaces the FTPA it is important that this fairness is maintained.”
Ignoring this, Boris Johnson wants to take back full control of setting elections. As the constitutional minister Chloe Smith put it, “The Fixed-Term Parliaments Act caused constitutional chaos last year which, when combined with total gridlock in Parliament, meant the previous government couldn’t deliver what it was asked to do.” The government touts the old system as “tried-and-tested”.
Gavin Phillipson, public law professor at the University of Bristol noted to PACAC that an important ingredient in this “chaos” was distrust of Johnson to set an election date that would allow Parliament further influence over Brexit. While parliamentarians’ attempts to scupper Brexit were frequently undemocratic, Parliament needs the ability to check malign prime ministers.
Whether the government was delivering “what it was asked to do” last year is also, frankly, dubious. A majority of voters were for Brexit and four-fifths of them voted for parties committed to implementing it in a subsequent general election, but the minority government’s specific approach was rightly being vetted by Parliament.
Ultimately if the prime minister cannot convince a majority of the House of Commons that an election is due then they do not deserve one. Despite the increasingly presidential campaigns that we’ve seen, Britons do not vote for prime ministers; we vote for the composition of the Commons, which should therefore be setting election dates.
This will open up the possibility that a sitting prime minister will neither be able to pass major legislation or call a general election, as was seen amid the “constitutional chaos” Smith referred to above. “Gridlock” is a bad word in politics, but is also often a sign that some contentious legislation is being blocked. Parliament should have this ability when the prime minister cannot command a majority.
The reversion to royal prerogative remains troubling even if you think prime ministers should set election dates. Both PACAC and the House of Lords’ Constitution Committee’s report have warned against this, believing that it will bring legal uncertainty to the mechanism for calling elections.
The fear is that royal prerogatives have not previously been restored after the powers have been moved onto a statutory footing. Academics debate whether repealing the law can successfully restore a prerogative without explicit statutory underpinning, as well as whether the result would be open to legal challenge. As PACAC puts it:
It is clear that attempting to revive the prerogative would invite the courts to make the final decision on these issues. […] Even if there is a desire to return to the old system for dissolution and calling elections, it would be better setting these arrangements in statute rather than engaging in an unnecessary attempt to revive a prerogative which could have considerable unintended consequences and implications.
The government’s solution to these concerns has been to put the prerogative powers on a statutory footing – or at least to try to do so. As the second section of the draft bill would enact:
The powers relating to the dissolution of Parliament and the calling of a new Parliament that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-Term Parliaments Act 2011 are exercisable again, as if the Fixed-Term Parliaments Act 2011 had never been enacted.
To prevent the opportunity for legal challenge, the third section continues:
A court of law may not question – (a) the exercise or purported exercise of the powers referred to in section 2, (b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.
I am not a lawyer, but this strikes me as begging the question, legally speaking. Would this stop the Supreme Court from trying any case that tested these powers, as with the prorogation case last year? Only a test case would prove it one way or the other, and there are clearly people in Britain who are willing to pursue such cases.
Critics have warned that the government is in the process of unchaining the executive in Britain’s constitution, already infamously described as an “elective dictatorship”. Allowing Parliament to retain its power to set elections would not change that much, but it’s better than the alternative.
