Fixed-term Parliaments Bill – update

(Note: this post was written back in May 2011. The Fixed-term Parliaments Bill received Royal Assent on 15 September 2011. When looking for the status of a bill before Parliament please always consult the Bills before Parliament page of the UK Parliament website for the most up-to-date information about any bill.)

The Coalition government’s Fixed-Term Parliaments Bill suffered a defeat of sorts in the Lords yesterday during report stage consideration.

The bill proposed that elections be held every five years, arguing that this would be more democratic since it removed power from the Prime Minister to call an election whenever he or she wanted. I’ve blogged about the UK proposal in detail here.

The reason why the Lords voted to amend the bill was that they argued that the coalition didn’t have a mandate to bind future parliaments:

“The government have a perfect right to commit themselves to a fixed-term for the current parliament provided they continue to maintain the confidence of the House of Commons,” Lord Butler said.

“Certainly they do not have the right to make a permanent change to our constitution to meet the convenience of a temporary coalition.”

They passed an amendment which would require future parliaments to pass a resolution indicating whether they wished to continue with the fixed-term law.

This strikes me as rather strange reasoning. As I wrote in my earlier post on the bill, the Fixed-Term Parliaments Bill does two things. It sets the duration of a parliament at five years (which is the constitutional limit for any Parliament to sit), and it also set out a formula to allow for the earlier dissolution of the House should the government lose the confidence of the House before the five-year term is up.

It is certainly true that this last part – the new rules for dissolving the House and forcing an election before the end of the five year mandate – was a direct result of the “temporary coalition” as it was aimed specifically at making it difficult for either party in the coalition to back out of the coalition, which would inevitably lead to the defeat of the government. However, under “normal” Westminster parliamentary circumstances, in the event that one party should form a majority government, these conditions would not come into play since only a full-on revolt by its own members would likely bring down a party that holds a majority of the seats in the House. I know UK backbenchers are less whipped than their Canadian counterparts, still nonetheless, the odds of a majority government falling before the five-year term expires are pretty slim.

That said, I don’t really see how fixed terms can be viewed as something arising solely from the fact that there is a “temporary coalition” forming the government. Any government elected is already bound, in a way, to respecting the five-year term limit since that is the conventional maximum length of time that a government can sit. To quote myself from that earlier blog post:

the current maximum duration of a UK Parliament is five years. This was set by the Septennial Act 1715 (as amended by the Parliament Act 1911). Under this Act, if a Parliament is not dissolved in the period up to five years after the day on which it was summoned to meet, it automatically expires. Consequently, setting the fixed-term at five years isn’t a deviation from actual practice; what is different is that normally, parliaments do not sit for the full five years. There currently exists nothing regulating how early a new election can be called – that has always been a prerogative power exercised by the Queen – by convention on the advice of the prime minister. What this bill seeks to do is end a prime minister’s ability to call an election at any time of his or her choosing during the course of a parliament.

As I’ve also previously written, eight of the thirteen Canadian provinces and territories and the federal government now have fixed-term election legislation in place. Unlike the UK bill however, none of these bills proposed tougher conditions for dissolving parliament earlier. Indeed, as the Lords point out, when theses bills were passed by their respective legislatures, there was nothing in the bills that would bind any future parliament to respect them – other than the fact that such a law had been enacted. To date, every provincial and territorial government faced with a fixed-term for the next election has respected or is in the process of respecting that date (some will be holding their first election under the fixed-term legislation this year). I am certain that in some cases, the government of the day may well have preferred to pick a different time to call an election. Yet they’ve all respected the legislation, at least, thus far, and I would argue that the more this happens, the less likely it will be that a future government would risk not respecting the legislation, though they certainly could do so. The Canadian bills were all written in such a way as to explicitly retain the prerogative powers of the Governor General or Lieutenant Governor to prorogue or dissolve parliament at his or her discretion. This means that in fact, if a provincial premier or the Prime Minister wants an earlier election, he or she can ask the province’s Lieutenant Governor or the Governor General to dissolve parliament. This is what Prime Minister Stephen Harper did in 2008, and it is this example that illustrates why the Coalition was, in my view, right to outline clearer rules for an early dissolution of parliament.

The federal government introduced fixed-term elections legislation in 2006, which set elections for the third Monday in October of the fourth calendar year after the previous poll, starting with 19 October 2009. However, in September 2008, Prime Minister Harper requested a dissolution from the Governor General on the grounds that Parliament was becoming, in his words, “dysfunctional”. This request was granted, as the bill allowed for. The problem for many was that Parliament had become “dysfunctional” largely because it was a minority government situation, and, because the Opposition was holding up much of the government’s legislation, the government  made virtually every bill a confidence bill, which caused some members of the Opposition to abstain from voting rather than risk defeating the government since they weren’t in a position to face the electorate at that time.  As Professor Robert Hazell from the Constitution Unit, University College London notes in a paper on Fixed Term Parliaments:

This episode shows that simply fixing election dates through legislation is not enough if the prerogative power of dissolution remains unaffected. But if the prerogative power of dissolution is retained as a safety valve, it needs to be protected from manipulation. The Governor General was put on the spot by Harper’s request for an early dissolution, and the Crown drawn into political controversy.

However, it appears that the main issue the Lords have with the bill is not that it sets forth tougher requirements for an early dissolution, but that the Coalition has no mandate to force future parliaments to serve a five-year term. The Lords, however, did pass the Bill that would see the number of seats in the House of Commons reduced from the current 650 to 600. Did the Coalition have a mandate to force future parliaments to have fewer Members? Apparently they did.

I shall reiterate that I personally am not convinced that fixed-term parliaments are a good idea or necessary, but the Lords’ reasoning for defeating the bill do strike me as somewhat questionable. The Bill itself is not dead. MPs will have a chance to reconsider it and overturn the amendment (and any others the Lords make)  once it returns to the House of Commons, probably later this month.

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