Month: November 2019

End of an Experiment: The Death of the Fixed-date Parliaments Act

Boris Johnson tried three times to obtain the necessary two-thirds vote under the Fixed-date Parliaments Act to dissolve Parliament. Three times he failed. Then, for a fourth try, he determined that all that was required was a simple Act of Parliament, passed by a simple majority of those voting, to achieve dissolution and election. With this manoeuvre, the Fixed-date Parliaments Act essentially died.

 

Although a Bill would take a somewhat longer process (about a week) involving the House of Lords, a mere majority in both Houses will suffice. In the present hung (i.e., minority) Parliament some support from the opposition in the House of Commons will be required, but not the degree of support required under the Fixed-date Parliaments Act.  And in any future majority Parliament, the same result can be achieved without any support from the opposition.

 

It is somewhat odd that such a step would be required in a minority Parliament, when only a simple majority of a motion of non-confidence, and a delay of fifteen days, is needed for a dissolution. But the Brexit deadlock could not (or would not) be broken using this route, despite the House of Commons defeating the government on its major Brexit initiative numerous times. The Early Parliamentary Election Bill, 2019, was not only a means to get around the two-thirds vote requirement but also dispensed with the requirement for a successful non-confidence motion.

 

The effect of the Early Parliamentary Election Act, 2019, is to gut the Fixed-date Parliaments Act.  The 2019 Act eliminates, or by-passes, the two mechanisms that the Fixed-date Parliaments Act included, and which were believed to address both the circumstances of a minority Parliament, the non-confidence requirement, and that of a majority, the two-thirds vote requirement.  The 2019 Act once again allows a simple majority to determine when elections will be held, handing a Prime Minister with a majority in the House the weapon that the Fixed-date Parliaments Act was intended to remove from his arsenal. This was the precise mischief that the Fixed-date Parliaments Act was intended to avoid.

 

While one may be tempted to say that there were extraordinary circumstances, which is arguable, there is no reason to suggest that a future majority government will not use the 2019 process to obtain an election if they consider the time ripe for one.  Those who believe that there will be public political retribution visited on the government for calling a an early election need only look to the Canadian examples of the federal and two provincial governments that called early elections in the face of fixed date election acts, and subsequently won renewed parliamentary majorities.

 

In the present Brexit deadlock circumstances, it is not clear that the UK election will definitively resolve the Brexit issue.  There remains the possibility of another hung Parliament that will leave the issue unresolved, with much needed time lost.

What some will argue is an attempt to resolve the Brexit issue might better be seen as a mere attempt to avoid, or get around, the benefits argued for by the promoters of the Fixed-date Parliaments Act; an Act that would require the government to work with the opposition to achieve its goals.  Instead of manoeuvring for an election [and a majority government] the government would otherwise have been required to compromise with a Parliament that had been elected for a five-year period.   This is what was intended by the Fixed-date Parliaments Act with its “super-majority” requirement, and which has been easily undone by a two section Bill.  The manoeuvre will be such a temptation for future governments that it may well become a settled practice.   Partisan politics has triumphed, and potentially triumph, over the parliamentary interests that the Fixed-date Parliaments Act  was designed to protect  .

 

I am not a fan of Fixed-date Parliaments Act-type Acts within a Westminster system, unless accompanied by a commitment to change political attitudes so that compromise is not seen as a weakness and parliamentary co-operation not seen as capitulation (or victory by the opposition pointing to a “weak” or “wrong-headed” government).  Otherwise, every time there is an impasse or deadlock each side blames the other—or worse the government blames a democratically elected parliament in which they do not hold a majority. Brexit is merely a case in point.

 

The Fixed-date Parliaments Act is now effectively dead. Its death is not only the result of failed co-operation, although that is the symptom. It is primarily the result of an attempt to change an essential part of the way we govern ourselves, through a parliamentary system of opposition and confidence.  This has resulted in confrontational partisan parliamentary politics with entrenched party discipline.  Introducing a fundamental change, such as the Fixed-date Parliaments Act, to the system without the necessary changes in attitude or thought of the possible consequences, intended or unintended, that would accompany such an “innovation”.  It is not that the Fixed-date Parliaments Act may not be beneficial, or required for stability, if there is a move to some form of proportional representation, it is just that such changes must be accompanied by the necessary attitude and procedural changes and a commitment to stick with it to make it work. It is clear that Westminster systems of government might not yet be ready this change.

 

A similar debate can and should be had about the place of referenda and proportional representation, but that discussion will have to await another day.