What a Fix-Up!
By Carl Gardner
()
About this ebook
The Fixed-term Parliaments Act 2011 is the most important yet most misunderstood constitutional reform of recent years. Has it, as some claim "changed everything" about the way British governments form and fall? What does it say about no confidence motions? How does it affect traditional constitutional conventions? And how might it be used and abused by politicians? Barrister and former government lawyer Carl Gardner explains the constitutional context, what the Act says and the different ways it can be read. "What a Fix-Up!" is an-depth analysis of the Act, an alarming description of the risks it creates, and a passionate argument for its repeal.
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What a Fix-Up! - Carl Gardner
WHAT A FIX-UP!
The Fixed-term Parliaments Act 2011
Carl Gardner
First edition. Published at Smashwords May 7, 2015. ©2015 Carl Gardner
The right of Carl Gardner to be identified as the author of this work has been asserted in accordance with section 78(2)(b) of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this work may be resold or reproduced in any form or by any means without the author’s written permission.
Smashwords edition license notes
This ebook is licensed for your personal enjoyment only. It may not be resold or given away to other people. If you would like to share the book with others, please buy an additional
copy for each recipient. If you’re reading this book and did not buy it, or it was not bought for your use only, then please go to your favourite ebook retailer and buy your own copy. Thank you for respecting the author’s work.
To Mum and Dad. Thanks for all the love and support.
And to Cheska for the love, encouragement and help.
Thanks to my parents, who lent me their house while I was in full writing frenzy, and to Cheska Polderman who encouraged me to publish my thoughts as an e-book and gave me advice. She didn’t edit the text (any typos are entirely my fault), but she is a great editor.
Thanks also to those who’ve discussed the Act with me on the internet, as well as constitutional conventions relating to the appointment of Prime Ministers. I’m confident I’ve benefited from all those discussions, but any rate I ought to have done.
Those I’ve had discussions and interactions with in various forms include David Boothroyd, Simon Carne, Professor James Chalmers, Chris Connolly, Graeme Cowie, Ellie Cumbo, Allan Draycott, Nigel Duncan, Dr Mark Elliot, Martin George, David Allen Green, Rich Greenhill, Catherine Haddon, Alexander Horne, Sunny Hundal, Robert Kaye, Richard Kirkham, @lacuna1, Philippe Lagassé, Ern Malley
(@loveandgarbage), Dr Chris McCorkindale, Professor Aileen McHarg, Stephe Meloy, Richard Nicholl, Professor Lord Norton of Louth, Akash Paun, Professor Gavin Phillipson, John Rentoul, The Reverend Pam Smith, @spinninghugo, Kiran Stacey, Dr Findlay Stark, Juliet Swann, Professor Colin Talbot, Professor Adam Tomkins, @Uncivil_S and Toby Young.
To anyone I’ve left out, I’m sorry.
THE FIXED-TERM PARLIAMENTS ACT 2011 attracted little attention when it was passed. Anything to do with the constitution is pretty boring to most people, and fixed-term Parliaments are normally quite boring even to constitutional nerds. Only some lawyers, academics and people in think-tanks were interested in it along with a few bloggers. And politicians.
But the prospect of a hung Parliament after the 2015 general election has dramatically raised the Act’s profile. In particular what’s changed things is the realisation that political frenemies
, the Labour party and the SNP, might be brought into a strange confrontation with neither being the biggest party in Parliament but with a majority between them; and with a broadly similar policy offering but different goals, and a deep mutual hostility. Most of all, Scottish Nationalist politicians, not just the party leader and First Minister of Scotland Nicola Sturgeon but also her predecessor Alex Salmond, have spoken openly about the way they see the Act, and how it might enable them to influence a Labour minority government.
All this has meant that the media and the broader public have realised the potential importance of this constitutional innovation, whose most important features are to deny the Prime Minister any right to ask the Queen for a general election; and to establish new fixed rules for when general elections can, and must, happen. I’ve noticed how often journalists have written about it recently. And a few days ago as I was writing one of these chapters, two men next to me in a cafe were arguing about it.
So having thought about this Act for a long time, and having a background of working with and drafting legislation and of advising ministers on it, I decided now was the time to share my thoughts and my concerns about it. I’m a blogger, and might simply have blogged about all this. But it felt like a longer project, and so it turned out.
This book was written more or less in a frenzy in late April and early May 2015. I thought it was important to publish my thoughts before the results of the general election were known, partly because it may help a few people understand the immediate aftermath, and partly because I think not knowing the result actually helps see the Act clearly. Particular understandings of the Act may settle on us soon, and may seem permanent and obvious. But they may merely be temporary and contingent on the very specific political conditions of the 2015 (or first 2015) Parliament. They may also be wrong-headed and dangerous. I hope writing this without actual knowledge of those conditions helps readers, too, to take a broader view of the Act. Plus, the election helpfully gave me a deadline.
My aim is to help readers understand the Act, how it might conceivably be used and abused, and whether and how it can be repealed. I only actually get to the Act itself in Chapter 4, which may seem an odd Tristram Shandy sort of approach – but there’s a very good reason for that. It may be tempting simply to read the Act and think you’ve understood it. And in a surface sense, you have – sort of. But there’s a huge, invisible risk lying beneath the surface if you just do that. It really helps to understand what went before, and how that old system and the Act each fit in to the texture of the constitution. If you don’t try doing that, you’re likely to reach deeply flawed conclusions.
So we begin with a very basic guide to the constitution, before looking at how dissolutions of Parliament and no confidence motions worked until 2011. Then we look at the genesis of the Act: specifically the constitutional reform thinking behind it, the specific political reasons that led to it and how it fared when it was debated in Parliament. Then we turn to the Act itself, what it says, and the various theories of it that can plausibly be advanced. After that, it’s time to consider how the Act might be used and abused in three imaginary 2015 Parliaments. Finally we look at the complex, disputed but important question of whether and how the Act can be repealed.
It’ll soon be obvious that I’m not a fan of the Act. My firm belief is that the traditional British constitutional is sound, and that one of the oddest and saddest illusions of our time is that it’s in need of radical restructuring. The Act, I think, is the work of cowboy builders who’ve knocked down walls without thinking too hard about whether the house will be left standing. I do not blame the Parliamentary counsel who drafted it: I’ve worked with them enough to know their quality, and I’ve worked with enough legislation to know the Act is well enough drafted. The responsibility lies not with them, but with the ill-thought-out, reckless and self-serving ministers who came up with this policy and sold it as reform
. I’m sure Nick Clegg is a good man, but he got this badly wrong. David Cameron was equally wrong to let it happen.
Which brings me to politics. This Act may become politically contentious. Indeed it already seems to be. Views of the Act may divide on partisan lines – which is another good reason to publish this before that happens. People may well wonder if my view on the Act are coloured by my politics. To respond to that, I must be open with you about what those politics are. I expect to vote Labour in the 2015 general election. I am not a tribal Labour supporter, and have voted for other candidates in the past, several times. Labour’s manifesto plans for the constitution fill me with utter dread (they promise a constitutional convention
to consider the future of the UK, and an elected Senate
to replace the House of Lords). Those plans have given me, and do give me, very serious pause about voting Labour. But given what else is on offer, not only in terms of social and economic policy but in terms of possibly leaving the EU and the European Convention on Human Rights, Labour is probably the only way I can vote. I’ll never be a Liberal Democrat (as long as they stick to their constitutional reform
ideas) or a Green, and I live in England. Of course I admit that, as with any writing on a political subject by anyone, my own political leanings may influence me without my knowing.
But I must say something more to anyone who suspects my views on the Act are the product of any conscious political bias. I have more intellectual and professional pride than that, and another torch to hold. Political ideas are important to me, as they are to many people. But be my political interests ne’er so high, to adapt a famous legal saying, the law is above them. Nothing surpasses my interest in law, and nothing would induce me to compromise my legal views for a propagandist purpose.
Finally, my fears may be mad, pessimistic imaginings. They have to be, or seem, exaggerated in a sense, because addressing hypothetical after hypothetical drives you to those sorts of places. I may look silly at some point for having written this, if politicians and civil servants manage to make this Act work reasonably. In a way I hope so. But whenever I ask myself what if?
about this Act, my thoughts turn to serious concern. Either I’m a madman shouting at the wind, or I have a point about this Act.
1
A VERY BASIC GUIDE TO THE CONSTITUTION
IF WE WANT TO UNDERSTAND the Fixed-term Parliaments Act,¹ we need to begin by making sure we understand some fundamental concepts of constitutional law. Specifically, we need to know about constitutional conventions and prerogative powers; about how those two types of thing relate to Acts of Parliament; and a little bit about where the courts do or don’t come in. It’s also useful to remind ourselves how elections and Parliamentary government work, and how governments are formed (or rather, how Prime Ministers are appointed). So this chapter is a very basic guide to the constitution.
A country’s constitution is its basic