Repealing the Fixed Term Parliament Act: Restoring Constitutional Rights or Political Revenge?

By Emily Fielder

Within the context of the current Covid-19 pandemic, you might be forgiven for thinking that constitutional reform would be the last thing on Boris Johnson’s mind. However, this is demonstrably untrue; in early December, the government introduced the Fixed Term Parliament Act (FTPA) Repeal Bill. Constitutionally speaking, the FTPA was a deviation from the norm that the British government relies on, namely shared practices, agreements and conventions, but its repeal is equally significant.

What is the Fixed Term Parliament Act?

The FTPA was introduced in 2011 by the coalition government, ostensibly, in Clegg’s own words ‘to introduce a fixed-term Parliament to the United Kingdom to remove the right of a Prime Minister to seek the dissolution of Parliament for pure political gain,’ but, on a more practical and short-term level, to ensure that neither the Conservatives or the Lib Dems could collapse the coalition before the end of its five-year term. Under the Act, the Prime Minister can only call an election before the end of the term under two circumstances, either if two-thirds (a supermajority) of the Commons vote to hold one, or if the government loses a statutory vote of no confidence and, in the following fourteen days, the Commons does not pass a motion of confidence.

What’s Included in the Repeal Bill?

Fundamentally, the Act restores a personal prerogative power, that is, a power that is exercised solely by the sovereign on the advice of her ministers, to call an election to the Crown. The Bill also automatically dissolves Parliament on the fifth anniversary of its meeting to prevent a non-use of its power to prolong Parliament beyond five years. More notably, the Bill includes an ouster clause, which stipulates the non-justiciability of the power; essentially stating that a court of law can’t question the exercise of the powers, the limit or extent of them or the purported decision related to them.

Why has Johnson Repealed the FTPA?

There are, then, three reasons why Johnson and the Conservatives have been so keen to repeal the FTPA. First, for the very good reason that it is fundamentally a poor Act. During the latter part of 2019 it led to the extraordinary situation in which the Commons did not have any real confidence in the government, yet was unwilling to withdraw confidence or to allow the Prime Minister to call an early election. The Act might render Parliament more durable, but it reduces the stability of government. Moreover, if the point of the Act is to prevent the Prime Minister from calling elections whenever they so wish, then it failed in 2019 when the government voted through the Early Parliamentary General Election Act, circumventing any requirement for a super-majority.

Second, it’s possible that Johnson wishes to regain the power to call elections in order to be able to threaten rebels in his own party over Brexit, or, indeed, any other future pressing issues, much as Major did with the Conservative rebels in 1993 who refused to support the government in a series of votes on the issue of implementation of the Maastricht Treaty into British Law. Although Johnson’s current majority is significantly higher than Major’s was in 1993, considering the divisive nature of Brexit, Johnson is likely to want any weapon against potential rebels.

Third, one might cynically suggest that Johnson’s repeal of the FTPA and, more specifically, the inclusion of the ouster clause is a form of revenge upon the courts who frustrated his attempts to prorogue Parliament in 2019. In Miller II vs The Prime Minister and Cherry vs Advocate General for Scotland, the Supreme Court ruled that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as a body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. The FTPA Repeal Bill’s stipulation that the Supreme Court will have no power to question the prerogative power to call an election, nor the decision-making behind it, certainly seems to counter the Court’s decision that, under certain circumstances, the use of a prerogative power on advice by ministers is unlawful. However, this sceptical approach dismisses the existence of the Lascelles Principles, a constitutional convention under which the sovereign can refuse a request to dissolve parliament under three circumstances; if Parliament was still considered able to carry out its legislative functions; if calling an election would be detrimental to the economy; and if another Prime Minister could be found to govern for a reasonable period with a working majority. Under this convention, then, the Prime Minister does not have unilateral power to call an election. The question now remains as to whether the courts will accept the non-justiciability clause under any and all circumstances.