At the end of this month, almost four years after that now infamous referendum, the United Kingdom will almost certainly leave the European Union.
However, beyond the small matters of Brexit and the country’s future relationship with the EU, 2020 is likely to be a year of significant constitutional change for the UK in other respects - in particular, the moving forward with the repeal of the Fixed-term Parliaments Act 2011, as promised by the Conservatives (and Labour) in their 2019 general election manifesto, and further trailed in the second Queen’s Speech of last year.
The popular view is that the Fixed-term Parliaments Act is bad legislation - monstrous and Kafkaesque even - which should be purged from the UK statute book at the earliest opportunity. In the most simplistic version of this school of thought, we would simply return to the status quo ante, where prime ministers could call elections on a whim for naked partisan advantage - the great British traditional way (though there is some debate about how precisely this could be achieved).
But are fixed terms for legislatures an inherently bad thing? If so, why did the UK parliament legislate for the devolved legislatures in Cardiff Bay, Holyrood and Stormont to have them? If fixed-length legislative terms are so ‘un-British’ (as some suggest), why is it OK for some parts of the British kingdom to toil under their tyranny?
The problem with the Fixed-term Parliaments Act is not in fact that it goes too far - but that it doesn’t go far enough. It is incomplete. It is unfinished constitutional business.
Taking Scotland’s devolution settlement - and in particular the Scotland Act 1998, which, two decades on, has shown itself to be a remarkably well-written piece of constitutional law - as an example for the purpose of comparison, the Fixed-term Parliaments Act (FTPA) - or, more precisely, UK constitutional law as a whole - has three significant defects.
Firstly, under the Scotland Act (sections 45, 47, 48 and 49 specifically), if the Scottish parliament resolves that the Scottish government no longer enjoys the confidence of the parliament, the entire government from the first minister down must resign. Unlike under FTPA section 2(4), no particular form of words is mandated by the Scotland Act - the Scottish parliament can express its lack of confidence in whatever way it chooses. This approach aligns with how the Public Administration Select Committee in the 2010-2015 UK parliament thought things should be in the House of Commons). It said:
Secondly, which is the flip side of the coin of the previous point, the Scotland Act - unlike the UK’s unwritten constitutional conventions - expressly permits and foresees the possibility of the office of first minister being vacant for a period. In such a scenario, the presiding officer of the Scottish parliament can (under section 45(4) of the Scotland Act) designate a temporary replacement.
At Westminster, though there is no technical legal bar to the office of prime minister becoming vacant, the political establishment goes to great lengths to avoid this happening - and the related eventuality of requiring the monarch to get involved in politics by having to select a new prime minister from an unclear field.
Though the monarch also appoints the Scottish first minister (albeit following a nomination vote in the Scottish parliament), she is not required to arbitrate when an incumbent first minister and government resigns. The presiding officer of the Scottish parliament is clearly in the driving seat here, and the House of Commons speaker could fulfil the same role at Westminster.
Thirdly, if no new first minister is chosen within 28 days of the resignation of the previous occupant of the office, a Scottish general election must be held. This is analogous to FTPA's requirement for a confidence motion to be passed within 14 days of a successful no-confidence motion if an early UK general election is to be avoided.
What differs at Holyrood compared to the situation at Westminster is that the date of the extraordinary general election is chosen by the presiding officer of the parliament, not by the first minister. Setting aside the practical point that there may not even be a first minister proper in post at this point, this approach makes sense, since, if we are taking the view that it is not OK for the executive to have the power to decide that there should be an early election in principle, the logical conclusion is that it shouldn’t have the power to select the precise date of that election either. Indeed, we saw during the 2017-2019 UK parliament that many people didn’t trust the prime minister not to select a date for the election so as to achieve a particular political purpose (namely, a no-deal Brexit) - which ultimately led to the passing of the Early Parliamentary General Election Act 2019, and the circumvention of the scheme for the holding of early elections set out in FTPA.
In summary, the UK parliament should draw valuable lessons from the Scottish and other UK devolution settlements which it itself legislated for by (a) defining a clear statutory no-confidence test, separate from the matter of early elections, with explicit legal consequences when the executive fails this test, (b) expressly permitting a temporary vacancy in the office of prime minister and allowing the speaker of the House of Commons to designate a person to temporarily exercise the functions of this office, and (c) allowing the speaker to set the date of early elections.
Such an adjustment to the UK constitution would make it easier to understand and operate, and be based on nothing more foreign than a 'Made in Britain' constitutional scheme which the UK parliament itself enacted.
However, beyond the small matters of Brexit and the country’s future relationship with the EU, 2020 is likely to be a year of significant constitutional change for the UK in other respects - in particular, the moving forward with the repeal of the Fixed-term Parliaments Act 2011, as promised by the Conservatives (and Labour) in their 2019 general election manifesto, and further trailed in the second Queen’s Speech of last year.
The popular view is that the Fixed-term Parliaments Act is bad legislation - monstrous and Kafkaesque even - which should be purged from the UK statute book at the earliest opportunity. In the most simplistic version of this school of thought, we would simply return to the status quo ante, where prime ministers could call elections on a whim for naked partisan advantage - the great British traditional way (though there is some debate about how precisely this could be achieved).
But are fixed terms for legislatures an inherently bad thing? If so, why did the UK parliament legislate for the devolved legislatures in Cardiff Bay, Holyrood and Stormont to have them? If fixed-length legislative terms are so ‘un-British’ (as some suggest), why is it OK for some parts of the British kingdom to toil under their tyranny?
The problem with the Fixed-term Parliaments Act is not in fact that it goes too far - but that it doesn’t go far enough. It is incomplete. It is unfinished constitutional business.
Taking Scotland’s devolution settlement - and in particular the Scotland Act 1998, which, two decades on, has shown itself to be a remarkably well-written piece of constitutional law - as an example for the purpose of comparison, the Fixed-term Parliaments Act (FTPA) - or, more precisely, UK constitutional law as a whole - has three significant defects.
Firstly, under the Scotland Act (sections 45, 47, 48 and 49 specifically), if the Scottish parliament resolves that the Scottish government no longer enjoys the confidence of the parliament, the entire government from the first minister down must resign. Unlike under FTPA section 2(4), no particular form of words is mandated by the Scotland Act - the Scottish parliament can express its lack of confidence in whatever way it chooses. This approach aligns with how the Public Administration Select Committee in the 2010-2015 UK parliament thought things should be in the House of Commons). It said:
If the House of Commons resolves, by whatever means, that it has no confidence in Her Majesty’s Government, this removes the incumbent administration’s authority to govern. It is for Parliament, not the Government, to assert the terms under which this confidence (or lack thereof) is expressed. This can be through the Fixed-term Parliaments Act 2011 statutory motion, or through a non-statutory motion of no confidence, or through a vote to which the matter of confidence has been clearly attached by the Government. Any expression of no confidence by the House in the government, removes the authority to govern.So if the Scottish parliament resolves that the Scottish government no longer enjoy’s that parliament’s confidence (using whatever specific form of words or mechanism it chooses), there is a clear and unambiguous legal consequence: the government must go. And, by the same token, since the no-confidence process is so clearly set out in law, there is no need for extrastatutory, ‘deemed’ motions of confidence (such as motions on budget bills).
Secondly, which is the flip side of the coin of the previous point, the Scotland Act - unlike the UK’s unwritten constitutional conventions - expressly permits and foresees the possibility of the office of first minister being vacant for a period. In such a scenario, the presiding officer of the Scottish parliament can (under section 45(4) of the Scotland Act) designate a temporary replacement.
At Westminster, though there is no technical legal bar to the office of prime minister becoming vacant, the political establishment goes to great lengths to avoid this happening - and the related eventuality of requiring the monarch to get involved in politics by having to select a new prime minister from an unclear field.
Though the monarch also appoints the Scottish first minister (albeit following a nomination vote in the Scottish parliament), she is not required to arbitrate when an incumbent first minister and government resigns. The presiding officer of the Scottish parliament is clearly in the driving seat here, and the House of Commons speaker could fulfil the same role at Westminster.
Thirdly, if no new first minister is chosen within 28 days of the resignation of the previous occupant of the office, a Scottish general election must be held. This is analogous to FTPA's requirement for a confidence motion to be passed within 14 days of a successful no-confidence motion if an early UK general election is to be avoided.
What differs at Holyrood compared to the situation at Westminster is that the date of the extraordinary general election is chosen by the presiding officer of the parliament, not by the first minister. Setting aside the practical point that there may not even be a first minister proper in post at this point, this approach makes sense, since, if we are taking the view that it is not OK for the executive to have the power to decide that there should be an early election in principle, the logical conclusion is that it shouldn’t have the power to select the precise date of that election either. Indeed, we saw during the 2017-2019 UK parliament that many people didn’t trust the prime minister not to select a date for the election so as to achieve a particular political purpose (namely, a no-deal Brexit) - which ultimately led to the passing of the Early Parliamentary General Election Act 2019, and the circumvention of the scheme for the holding of early elections set out in FTPA.
In summary, the UK parliament should draw valuable lessons from the Scottish and other UK devolution settlements which it itself legislated for by (a) defining a clear statutory no-confidence test, separate from the matter of early elections, with explicit legal consequences when the executive fails this test, (b) expressly permitting a temporary vacancy in the office of prime minister and allowing the speaker of the House of Commons to designate a person to temporarily exercise the functions of this office, and (c) allowing the speaker to set the date of early elections.
Such an adjustment to the UK constitution would make it easier to understand and operate, and be based on nothing more foreign than a 'Made in Britain' constitutional scheme which the UK parliament itself enacted.
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