J.G.Harston
Lib Dem
Leave-voting Brexit-supporting Liberal Democrat
Posts: 14,771 
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Post by J.G.Harston on Sept 7, 2019 11:25:29 GMT
There is various opinion on the Fixed-Term Parliament Act, from "keep it" all the way to "get rid of it".
In our legal system, we cannot simply abolish the FTPA and go back to the previous system, as the previous system was a perogative power within a Common Law legal system. When Common Law or perogative powers are replaced by legislation they irrevocably fall out of Common Law. To get rid of the FTPA the only option now is to replace it with something else.
So, what options would people recommend or like to see to replace the FTPA. Note that to return to some semblance of the previous system you have to explicitly legislate for something. You cannot legislate to give somebody perogative powers.
I've mentioned earlier that an amendment I would see as useful is a single additional clause that any incoming Prime Minister must move and win a vote of confidence of the House. After an election this would naturally be something of a formality, but it would give explicit authority to a Brown, May or Johnson.
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mboy
Liberal
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Posts: 23,709
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Post by mboy on Sept 7, 2019 11:44:26 GMT
This week has shown that the FTPA works brilliantly  |
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Post by No Offence Alan on Sept 7, 2019 12:13:53 GMT
There is various opinion on the Fixed-Term Parliament Act, from "keep it" all the way to "get rid of it". In our legal system, we cannot simply abolish the FTPA and go back to the previous system, as the previous system was a perogative power within a Common Law legal system. When Common Law or perogative powers are replaced by legislation they irrevocably fall out of Common Law. To get rid of the FTPA the only option now is to replace it with something else. So, what options would people recommend or like to see to replace the FTPA. Note that to return to some semblance of the previous system you have to explicitly legislate for something. You cannot legislate to give somebody perogative powers. I've mentioned earlier that an amendment I would see as useful is a single additional clause that any incoming Prime Minister must move and win a vote of confidence of the House. After an election this would naturally be something of a formality, but it would give explicit authority to a Brown, May or Johnson. In the case of an incoming PM, there is nothing to stop the opposition from moving a VONC. |
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mboy
Liberal
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Post by mboy on Sept 7, 2019 12:50:56 GMT
In our timeline, it was Jeremy “General Election now!” Corbyn who stopped the opposition from moving a VONC...
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J.G.Harston
Lib Dem
Leave-voting Brexit-supporting Liberal Democrat
Posts: 14,771
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Post by J.G.Harston on Sept 7, 2019 13:42:53 GMT
In our timeline, it was Jeremy “General Election now!” Corbyn who stopped the opposition from moving a VONC... Which is (one reason) why I would like see it compulsary for an incoming PM. |
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Post by 🏴☠️ Neath West 🏴☠️ on Sept 7, 2019 14:35:09 GMT
In our legal system, we cannot simply abolish the FTPA and go back to the previous system, as the previous system was a perogative power within a Common Law legal system. When Common Law or perogative powers are replaced by legislation they irrevocably fall out of Common Law. To get rid of the FTPA the only option now is to replace it with something else. So, what options would people recommend or like to see to replace the FTPA. Note that to return to some semblance of the previous system you have to explicitly legislate for something. You cannot legislate to give somebody perogative powers. You can legislate for whatever you like. I don't see why an act restoring the common law cannot operate like the 1660 Act of Oblivion. |
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Post by Davıd Boothroyd on Sept 7, 2019 14:55:18 GMT
In our legal system, we cannot simply abolish the FTPA and go back to the previous system, as the previous system was a perogative power within a Common Law legal system. When Common Law or perogative powers are replaced by legislation they irrevocably fall out of Common Law. To get rid of the FTPA the only option now is to replace it with something else. So, what options would people recommend or like to see to replace the FTPA. Note that to return to some semblance of the previous system you have to explicitly legislate for something. You cannot legislate to give somebody perogative powers. You can legislate for whatever you like. I don't see why an act restoring the common law cannot operate like the 1660 Act of Oblivion. It is not the common law. It is a prerogative power. Once a prerogative power is replaced by statute law, the prerogrative power is gone and cannot be reinstated. |
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Post by Peter Wilkinson on Sept 7, 2019 15:42:07 GMT
You can legislate for whatever you like. I don't see why an act restoring the common law cannot operate like the 1660 Act of Oblivion. It is not the common law. It is a prerogative power. Once a prerogative power is replaced by statute law, the prerogrative power is gone and cannot be reinstated. Actually, the Act of Oblivion itself acted to reinstate several prerogative powers that Parliament had abolished during the Civil Wars. However, I don't think that the way in which it did so is available here - what it did was to establish a legal principle that essentially all Parliamentary business from 1642 up until the start of the Convention Parliament (of which it was one of the first legislative acts) was null and void. A few Acts of Parliament from the Civil War period do occasionally get mentioned as if they were applicable later - but I think that, in each case, these had been re-enacted from scratch in 1660 or very soon after. I can very much see the attractions of nullifying all Parliamentary business since 2011 - but I doubt that it is practicable to do so. |
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Post by johnloony on Sept 7, 2019 16:06:05 GMT
You can legislate for whatever you like. I don't see why an act restoring the common law cannot operate like the 1660 Act of Oblivion. It is not the common law. It is a prerogative power. Once a prerogative power is replaced by statute law, the prerogrative power is gone and cannot be reinstated. Why not just enact a law which states that the prerogative power be reinstated as if it had never been abolished in the first place? |
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Post by Davıd Boothroyd on Sept 7, 2019 16:14:48 GMT
It is not the common law. It is a prerogative power. Once a prerogative power is replaced by statute law, the prerogrative power is gone and cannot be reinstated. Why not just enact a law which states that the prerogative power be reinstated as if it had never been abolished in the first place? You'd have to ask a constitutional lawyer but I don't think that would be effective. |
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Post by 🏴☠️ Neath West 🏴☠️ on Sept 7, 2019 17:48:43 GMT
I can very much see the attractions of nullifying all Parliamentary business since 2011 - but I doubt that it is practicable to do so. 2011? 1966 at least, so we can once again arraign Mrs Miller for being a common barrator... |
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Post by greenchristian on Sept 7, 2019 23:00:27 GMT
Why not just enact a law which states that the prerogative power be reinstated as if it had never been abolished in the first place? You'd have to ask a constitutional lawyer but I don't think that would be effective. If that is the case, then presumably passing a law delegating the power from the House to the office of Prime Minister (in the same way that powers were delegated to the Scottish Parliament) would enable a de facto restoration of the prerogative power. |
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peterl
Green
Congratulations President Trump
Posts: 8,473
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Post by peterl on Sept 8, 2019 18:25:38 GMT
An Act of Parliament can do anything, except bind Parliament by passing laws that can not be repealed or amended. A law could certainly be passed providing powers to Her Majesty, and this has been done on many occasions (in the case of Orders in Council for instance).
As to FTPA, personally I would favour a default election day in law (every 4 not 5 years, 5 is just too long between elections), but allow this to be departed from on a majority vote of the Commons.
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Post by johnloony on Sept 10, 2019 1:27:51 GMT
The FTPA could be amended so that the burden is the other way round: a motion for an early general election could be brought by the government at any time , and is assumed to be passed UNLESS it is blocked by 434 MPs voting AGAINST it. The motion would have to be proposed in the name of the Prime Minister, in order to prevent the Act from being abused by an eager opposition at any time.
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Post by johnloony on Sept 10, 2019 14:30:51 GMT
The FTPA could be amended so that the burden is the other way round: a motion for an early general election could be brought by the government at any time , and is assumed to be passed UNLESS it is blocked by 434 MPs voting AGAINST it. The motion would have to be proposed in the name of the Prime Minister, in order to prevent the Act from being abused by an eager opposition at any time. So a Prime Minister could get an election on a third of MPs and the Opposition could not? Totally unfair and undemocratic My idea was to have a compromise to restore a situation similar to the status quo ante, whereby the PM alone could choose the date of a general election. If it is not constitutionally possible to restore a royal prerogative after it has been replaced by a statute law, then have a law which makes it easy for the PM to decide. You can't have an opposition deciding to have an election with only a third of the votes, because it would just do it any time. |
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Post by johnloony on Sept 11, 2019 0:58:38 GMT
I note with interest you only quoted part of my reply. Of course I did. It is normal practice to quote the relevant part of whatever one is responding to. |
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Post by Davıd Boothroyd on Dec 1, 2020 12:21:58 GMT
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mboy
Liberal
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Post by mboy on Dec 1, 2020 12:28:23 GMT
Dreadful. The Foreword is garbage, and I can’t bear to read any further - anyone have a Tl;dr? |
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Post by Davıd Boothroyd on Dec 1, 2020 12:33:17 GMT
It's a simple attempt to undo the FTPA and roll back to the situation before it was passed. Rather than try to set up a wholly new procedure. Admirably simple and has my strong support in principle - with two points of clarity:
1) Does reviving the prerogative also revive the Lascelles Principles under which the Monarch would be justified in refusing a dissolution?
2) Does it also revive the concept of a non-statutory vote of confidence?
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Harry Hayfield
Green
Cavalier Gentleman (as in 17th century Cavalier)
Posts: 2,922
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Post by Harry Hayfield on Dec 1, 2020 12:41:01 GMT
This piqued my interest: "If it has not been dissolved earlier, a Parliament dissolves at the beginning of the day that is the fifth anniversary of the day on which it first met" meaning that as this Parliament met on December 17th 2019, then if it has not been already Parliament would be dissolved on that day and the next election held in the middle of January 2025 (as opposed to May 2024 under the existing laws)
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