4 December 2020

Binning the awful Fixed-term Parliaments Act is a victory for voters

By

The Fixed-term Parliaments Act, which the Government has finally published its plans to repeal, should never have been passed in the first place.

It was conjured up by David Cameron and Nick Clegg to offer the latter some reassurance that the Conservatives were committed to taking the Coalition government through a full term – a task that could have been much better served by a simple bill fixing the length of a single Parliament, without damaging the underlying constitutional superstructure.

But the Liberal Democrats are always enthusiasts for constitutional overhauls that owe more to tidy-minded theorising than practical experience, and Cameron was never shy about suborning the long-term health of the constitution to his immediate political convenience, so here we are.

As I have written elsewhere, the Government has chosen the purist’s route to repeal. Not only does the draft bill seek to place the power to call elections de facto in the Prime Minister’s hands, but it aims to do so by reviving the Royal Prerogative which governed the exercise of such powers prior to the FTPA.

Clause Three of the Bill also seeks to shield exercise of this power from judicial challenge, and sympathetic experts have suggested to me that it could yet be amended to restore such protections to the dissolution of Parliament – a just and necessary rolling back of ‘Miller II’.

But whilst those struggles will be fascinating for some (and if you’re a regular reader of mine, probably you), there is a bigger question about repealing the FTPA: will it be good for British democracy?

Supporters of fixed-term parliaments claim that giving the Prime Minister discretion over when to call elections gives the government of the day an unfair advantage. The man or woman sitting in Downing Street can time a poll for a moment of maximum advantage.

There is no doubt that politicians on all sides did this. But the extent to which it could really be considered to undermine British democracy is dubious. Generally speaking, we had general elections every four years or so, and no party – with the possible exception of the Conservatives between 1979 and 1997 – managed to secure a hegemonic grip on power.

Indeed, the practical authority to call an election (the power was officially vested in the Queen) proved itself a double-edged sword. It is not difficult to think of examples of politicians cutting themselves with it, be that Jim Callaghan failing to call an election before the Winter of Discontent, Ted Heath misjudging the mood of the country in 1974, or Gordon Brown bringing down the curtain on his own honeymoon by ‘bottling it’ in 2007.

By contrast, the damage wrought to our democratic system by the FTPA itself has been great.

This was most obvious during Theresa May’s agonising and eventually abortive attempts to pass her Withdrawal Agreement. Before then, as Stephen Bush notes, MPs had not really internalised the extent to which the Act had shifted the balance of power between the legislature and the executive.

Once those scales fell from their eyes, however, the results were catastrophic. Mutinous MPs were able to inflict unprecedented defeats on the Government one day – on the central plank of its platform, no less – and declare full confidence in it the next. Party discipline, especially on the Tory benches, disintegrated.

Bush laments the relative backbench quiescence of the Coalition era, but it served a democratic purpose. Whilst voters do cast their ballots for individual politicians, the great majority of them are voting for a party identification and a national programme. As the last stands of David Gauke and his fellow exiles at the last election showed, even well-entrenched and hard-working local MPs seldom command the personal vote to win outwith their party.

That makes the ability of a Government to carry out its agenda democratically important. In the era of the universal franchise, that’s what most people have voted for.

A striking feature of the 2017-19 Parliament was the way we seemed to have been transported back into a different political epoch. It was a world of coffee-house scheming, floor-crossings, and caucuses. Fascinating for keen students of the game, but surely utterly impenetrable for so-called ‘low-information voters’. The 18th-century style suited the 18th-century electorate, not the current one.

This pre-modern mode was possible because MPs had worked out that the Act allowed them to lock the public out of the picture. They had finally deprived the Cabinet of what Walter Bagehot described in The English Constitution as “a power which no assembly would – unless for historical accidents, and after happy experience – have been persuaded to entrust to any committee”, namely the ability to “annihilate the legislature” and entrust its fate to the electorate.

For the theoreticians and purists, who have no time for historical accidents, happy experience, or any other processes in which they play so small a role, this was all to the good. But not for nothing did Bagehot describe the old arrangement as “the latent essence and effectual secret” of the constitution.

Once its absence was finally noted, the misfires were immediate and unrelenting. A country not literally engaged in civil war was reduced to sending separate delegations, from the official Government and a guerrilla insurgency, to negotiate with Brussels.

Yet over-mighty backbenchers weren’t the worst of it. An order of magnitude more serious was the attempt by Oliver Letwin and his confederates to usurp the Government’s executive functions.

I explored the many reasons this proposal was offensive at the time, but the short version is this. If the Cooper/Boles rebels commanded a majority in the Commons for a new Brexit policy, they could and should have dismissed the Cabinet and appointed another – it is, after all, in essence just a parliamentary executive committee.

Instead, they sought to pin an unwilling Government in place and then impose an entire legislative agenda on it, a plan which bypassed pretty much every check and balance in our system. No mechanism existed by which MPs could summon the officers of this shadow executive to answer questions. Nor, even more importantly from the democratic perspective and as Nikki da Costa explained, through which the public could pass judgement on its programme.

So noxious was this – far worse than any constitutional ‘outrage’ that Boris Johnson has attempted – that I suggested at the time that the Prime Minister should have tried to restore the proper balance of the constitution by reviving older, long-unneeded executive prerogatives, such as refusing assent to the Benn Bill.

Unfortunately, he shrank from that challenge. But this muscular approach to repealing the FTPA suggests that there are at least others in the Government who grasp the importance of defending the proper role of the Executive in our system.

Much as it might bore or displease enthusiasts, there is great democratic merit to a system which limits the diffusion of power. With clear authority comes clear accountability. With dispersal comes gridlock, opacity, and endless blame-shifting (as devolution has taught us). 

Repealing the FTPA gives the Prime Minister no new power, save recourse to the electorate. It is they, at least as much as the he, who will be the real winners.

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Henry Hill is News Editor of ConservativeHome.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.