Repealing the Fixed-term Parliaments Act is about revenge not reform
Being not just a believer in, but a vigorous defender of, Parliament’s sovereignty and scrutiny as a centerpiece of our representative democracy, the power to call an election should, I believe, rest with Parliament, writes Gina Miller. | PA Images
Boris Johnson is undertaking legislative reform that looks worryingly like a consolidation of power in his own hands, rather than a thoughtful and rational reform of our electoral system and constitution.
Who can honestly say they are surprised to see the repeal of the Fixed-term Parliaments Act? It was a cornerstone of the Conservatives’ 2019 manifesto constitutional reforms to voters.
Whilst the Fixed-term Parliaments Act (FTPA) may have had its origins in the horse-trading that brought us a Conservative-Liberal Democrat coalition government in 2010, there is no doubt that it achieved a number of welcomed, positive outcomes. In particular, the Act created certainty, transparency and Parliamentary accountability and engagement.
It also eliminated at a stroke the discretion a Prime Minister going to the country at a time that suited them – as shivering voters learned to their cost as they queued outside polling stations last December. By removing a Prime Minister’s discretionary/prerogative power to fight an election at a time of their choosing, the FTPA created a much more level playing field between governments and oppositions and gave business and voters a greater sense of confidence in the predictability of the workings of our parliamentary democracy.
Those who oppose the FTPA say it creates ‘lame duck Parliaments’ in circumstances where a Prime Minister and government cannot get their business agenda through the House. I appreciate that no Prime Minister will, in normal circumstances, opt for an early election in unfavourable circumstances – and it is equally difficult for an Opposition to turn down a credible opportunity for a general election. But being not just a believer in, but a vigorous defender of, Parliament’s sovereignty and scrutiny as a centrepiece of our representative democracy, the power to call an election should, I believe, rest with Parliament, and not just a Prime Minister.
MPs should consider the political difficulties they could be storing up by voting for the repeal of the FTPA
Of course, there’s always room for revisiting and improving policies and legislation against a contemporary backdrop and it is no different with this legislation. The FTPA could easily be tidied up. For example, the two-thirds majority currently required to trigger a dissolution could be replaced by a simple majority, ensuring a more representative electoral system.
The new Bill also offers an opportunity to reform prorogation law by putting it on a statutory footing. It should not have to be up to an individual, me and the courts to decide whether a prorogation is legal or not.
In Miller II/Cherry just over a year ago, 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 the 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.
Our case established common law restriction on prorogation over and above those established by statutory restrictions. For example, under the Bill of Rights 1688 and the Civil Contingencies Act 2004. But such a crucial constitutional power should not be exercised unless and until a proposal to prorogue has been approved by Parliament; transferring the constitutional decision on prorogation from the executive to the legislature. A suggestion that has been endorsed by Lord Sumption.
However, the provision in the draft legislation published by the government that the prerogative powers cannot be reviewed by the courts simply cannot be overlooked. It is inimical to parliamentary democracy – and, even, borderline autocratic.
This Bill goes beyond restoring powers to the Prime Minister. Pre-FTPA, there were the age-old Lascelles Principles, a constitutional convention under which the Monarch might decline to dissolve Parliament in certain circumstances. But the Statement of Principles published with the new Bill on 1 December, appears to presume The Queen will dissolve Parliament as a matter of course whenever requested to do by her Prime Minister. This, if enacted, would have the effect of dramatically broadening the scope of the prerogative powers when compared with the arrangements that had prevailed until 2011.
You could be forgiven for thinking a five-year parliamentary term would be enough for any Prime Minister to deliver the changes he and his Party had a mandate from voters to deliver. But, apparently, that is not the case and I suspect part of this Bill is about revenge not reform.
Mr Johnson, a Prime Minister who loves to be loved especially by his party and backbenchers is undertaking legislative reform that looks worryingly like a consolidation of power in his own hands, rather than a thoughtful and rational reform of our electoral system and constitution. My evidence is that the draft reform Bill seeks to prevent government decisions taken by royal prerogative from being referred for review to the courts.
If the Fixed-term Parliaments Act 2011 (Repeal) Bill is enacted in its current form, Mr Johnson - or any successor - would be able to postpone the date of the next General Election, due in May 2024, to December 2024. Not only that, but if the Prime Minister feels that too many backbenchers or Cabinet members were not supporting him or his agenda, he could threaten them with an election.
MPs should consider the political difficulties they could be storing up by voting for the repeal of the FTPA. In the immortal words of a wise former Home Secretary, Roy Jenkins, this rather looks like the equivalent of deciding “to give the pistol in a race to one of the competitors and encourage him to fire it whenever he thinks that the others are least ready.”
Gina Miller is the Founder of SCM Direct and transparency campaigner. She initiated the Miller court case against the government over its authority to implement Brexit without approval from Parliament.