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Cross-posted from the Constitution Unit blog.
The ease with which Theresa May was able to secure an early dissolution last week has led to suggestions that the Fixed-term Parliaments Act 2011 serves no useful purpose and should be scrapped. Drawing on wider evidence of how fixed-term parliaments legislation works in other countries, Robert Hazell argues that there is a danger that it is being judged prematurely, on the basis of a single episode. Future circumstances in which a Prime Minister seeks a dissolution may be different, and in these cases the Fixed-term Parliaments Act may serve as more of a constraint.
On 19 April the House of Commons voted by 533 votes to 13 to support the Prime Minister’s motion for an early general election, easily surpassing the two-thirds threshold required for dissolution under the Fixed-term Parliaments Act 2011. In the preceding debate Conservative MPs such as Sir Edward Leigh and Jacob Rees-Mogg argued that the Fixed Term Parliaments Act served no useful purpose, and should be scrapped; while others such as Peter Bone said that it demonstrated the Act was working. Which of them is right? Was this a vindication of the Fixed-term Parliaments Act, in allowing a degree of flexibility, with the formal decision to hold an early election now being made by parliament, and not the executive? Or did it show that the Act is an emperor without clothes, as Sir Edward Leigh put it, because no opposition party can ever be seen to vote against the prospect of an early election?
There is a risk of the Fixed-term Parliaments Act being judged prematurely, on the basis of a single episode. This blog draws on a wider evidence base of how fixed term parliaments legislation works in other countries, set out in our 2010 report on fixed-term parliaments. Almost all European countries have fixed terms, and in the Westminster world fixed-terms have recently been introduced in Canada, as well as most of the Canadian provinces, and most of the Australian states; only the Australian federal parliament, New Zealand and Ireland have no fixed-term laws, but in Australia and New Zealand the maximum term is three years. These countries show varying degrees of flexibility, with differing safety valves for extraordinary dissolution.
Mid-term dissolution is the most crucial aspect of any fixed term parliament law, balancing the need for government stability against democratic accountability. Key considerations are how and by whom dissolution may be initiated, what threshold must be reached, and any limitations on the process. The coalition government in 2010 initially proposed a 55 per cent threshold for dissolution, but that proposal was widely misunderstood to apply to no confidence motions as well. In introducing the Fixed-term Parliaments Bill, Nick Clegg set the record straight, explaining that no confidence motions would still require a simple majority; but raised the bar for government initiated dissolutions to two thirds of all MPs, based on the two thirds requirement in the devolution legislation. The justification for a higher threshold for government-initiated dissolution is that it should make it impossible for governments to call an early election without significant cross-party support.
But such a dual threshold is rare in other parliaments. Figure 1 sets out the threshold requirements for dissolution and confidence motions elsewhere in Europe. In all cases the threshold for a no confidence motion is a simple or absolute majority (an absolute majority being of the total number of MPs, rather than of those voting). In those cases where dissolution can be triggered by a parliamentary vote, the threshold is the same
There are other ways in which the use of dissolution motions may be restricted:
It is also quite common to limit or prohibit dissolution towards the beginning or the end of a parliamentary term. The French Constitution (Art. 12) prohibits dissolution in the twelve months following a general election, as does the Spanish Constitution (s. 115). Other legislatures only allow dissolution in the final year of their four year term, while the South African lower house cannot move to dissolve itself in the first three years of its five-year term (South African Constitution, Art. 50). At such times, there can of course still be the possibility of confidence motions.
A strong disincentive to a government inclined to call an early election is whether a parliament elected mid-term merely serves out the remainder of that term, or whether dissolution restarts the clock and it serves a full new term. Here there is a big difference between the fixed-term regime for Westminster and for the devolved legislatures. In Scotland, Wales and Northern Ireland only the remainder of the term is served, unless the dissolution takes place within six months of the next scheduled election. (In that event, the next scheduled election is not held; but the one after that is, to get back on schedule). If Theresa May had been faced with the prospect of the next general election after 2017 still being held in 2020 rather than being shifted back to 2022, she might have made a different calculation.
Some may feel, after last week’s vote, that we need additional restrictions, to make it harder for a government to call an early election simply to increase its majority. That is why this blog has set out some of the different mechanisms employed in other countries which make it difficult to obtain an early dissolution. Of these, the most restrictive are a prohibition on dissolution near the beginning or end of a parliament; and a rule that the newly elected parliament serves only the remainder of the previous term.
But it is too early to consider tightening our rules on the basis of a single vote; let alone dismissing the Fixed-term Parliaments Act as a dead letter. As we saw last week, political incentives are as important in guiding behaviour as the legal rules. On future occasions, the political incentives may be very different. The political context will not always be that of a government seeking to increase its majority. In analysing the pathology of almost 70 mid-term dissolutions in six countries during the twentieth century, we found that a government seeking an increased majority accounted for only one third of early dissolutions. Other reasons were a constitutional or political crisis, major policy change, loss of a confidence motion, resignation of the Prime Minister, the collapse of a coalition or a government split.
The main question for the parties in any mid-term crisis will not be whether dissolution is too easy or too difficult, but whether they stand to gain or lose by forcing a dissolution. And much of the time, the political incentives in themselves may prove a further force for stability. Political parties do not like excessively frequent elections: they are expensive for the parties, who are chronically short of money, and exhausting for the participants. And whatever the polls may say, the outcome is always at least slightly uncertain. In particular, a party which forces an unnecessary election risks being punished by the electorate, who also dislike frequent elections.
Robert Hazell is Professor of Government and the Constitution at the Constitution Unit.
(Suggested citation: R. Hazell, ‘Is the Fixed-term Parliaments Act a Dead Letter?’, U.K. Const. L. Blog (26th Apr 2017) (available at https://ukconstitutionallaw.org/))
This post originally appeared on the Constitution Unit blog, and is reposted here with thanks.