Replacing or updating the FTPA

[Davıd Boothroyd]

That wording comes from the old five year limit. Twice it meant two consecutive general elections taking place more than five years apart (1959-64 and 1992-97).

[minionofmidas]

Sept 7, 2019 11:25:29 GMT J.G.Harston said:

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.

so what would happen if you repealed the Act without replacement? This Parliament lasts forever?

[johnloony]

Sept 7, 2019 16:06:05 GMT johnloony said:

Sept 7, 2019 14:55:18 GMT Davıd Boothroyd said:

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?

Hooray! The proposed new act does exactly what I wanted and suggested, despite the attempts of some stuffy lawyers and constitutional historians to say that it's not possible. Whatever is in the best interests of the people is *always* possible... as someone once said.

[manchesterman]

Dec 1, 2020 13:18:47 GMT minionofmidas said:

Sept 7, 2019 11:25:29 GMT J.G.Harston said:

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.

so what would happen if you repealed the Act without replacement? This Parliament lasts forever?

Dont even give them ideas!!!

[J.G.Harston]

Dec 1, 2020 13:48:25 GMT johnloony said:

Sept 7, 2019 16:06:05 GMT johnloony said:

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?

Hooray! The proposed new act does exactly what I wanted and suggested, despite the attempts of some stuffy lawyers and constitutional historians to say that it's not possible. Whatever is in the best interests of the people is *always* possible... as someone once said.

I haven't had the chance to read the proposal yet, but I suspect that previously it was a Royal Prerogative because there was no law that said anything, so it devolved to the Monarch in the absence of any law; the new law would legislate that it is a Royal Prerogative. So not quite a Royal Prerogative, we may need to start inventing some new terms. It's a prerogative function when it falls outside any legislation, this is legislating that it is a function of the Monarch, so it's not a prerogative function even if it appears and functions as one.

[Wisconsin]

A separate ‘dissolution principles’ statement was published with the WMS and Draft Bill:

qna.files.parliament.uk/ws-attachments/1256935/original/2020.12.01%20-%20Dissolution%20Principles.pdf

[Wisconsin]

Reinstating a prerogative power feels like such a backwards step.

[Khunanup]

Dec 1, 2020 17:06:54 GMT Wisconsin said:

Reinstating a prerogative power feels like such a backwards step.

Yeah, we need to be getting rid of leftovers from absolute monarchy, not bringing them back... 🙄

[Wisconsin]

Dec 1, 2020 12:33:17 GMT Davıd Boothroyd said:

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?

Good questions. There is some of this in the ‘principles’ document (which Parliament has been invited by Government to scrutinise) but not very much.

[Wisconsin]

Dissolution Principles

Background:
Prerogative powers are exercised by the Sovereign on the advice of his or her ministers, or by ministers on the Sovereign’s behalf. The powers that still can be exercised solely by the Sovereign are usually referred to as the ‘personal Prerogative powers’. These include the power to appoint and dismiss the Prime Minister and, prior to the Fixed-term Parliaments Act 2011, included dissolution.

Since 2011, dissolution has been covered by the mechanics of the 2011 Act with only a residual set of conventions governing matters such as restrictions on government activity and the finalisation of Parliamentary business.

The Government is now proposing to repeal the 2011 Act and return to the pre-2011 status quo ante. Given the importance of the non-legislative principles that operate under the Prerogative powers, alongside the draft Fixed-term Parliaments Act 2011 (Repeal) Bill, the Government is publishing this draft statement of the non-legislative constitutional principles that apply to dissolution. The Government would welcome Parliament’s careful scrutiny of these principles.

The effect of repeal of the 2011 Act on the principles surrounding dissolution:
In restoring the pre-2011 Act position, the United Kingdom is returning to a position where the Prime Minister (by virtue of commanding the confidence of the House of Commons), can advise the Sovereign to dissolve Parliament at a time of their choosing.

The circumstances in which a Prime Minister might seek a dissolution are underpinned by two core constitutional principles:

- The Prime Minister holds that position by virtue of their ability to command the confidence of the House of Commons and will normally be the accepted leader of the political party that commands the majority of the House of Commons.

- The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.

A return to the pre-2011 status quo ante will also restore the position whereby the Prime Minister, h​aving lost a designated or explicit vote of confidence, can either resign or seek a dissolution, which would usually be granted and lead to an election.

The Sovereign, by convention, is informed by and acts upon the advice of the Prime Minister so long as the Government appears to have the confidence of the House, and the Prime Minister maintains support as the leader of that Government.

[Wisconsin]

What would JRM make of a gender-neutral ‘their’ and the colons at the end of subtitles?

[mboy]

Dec 1, 2020 17:06:54 GMT Wisconsin said:

Reinstating a prerogative power feels like such a backwards step.

It's worth remembering what the UK says about other nations when their leader takes the power to dissolve the legislature at a whim. It ain't nice...

[mboy]

Dec 1, 2020 17:13:32 GMT Wisconsin said:

Dissolution Principles
A return to the pre-2011 status quo ante will also restore the position whereby the Prime Minister, h​aving lost a designated or explicit vote of confidence, can either resign or seek a dissolution, which would usually be granted and lead to an election.

The Sovereign, by convention, is informed by and acts upon the advice of the Prime Minister so long as the Government appears to have the confidence of the House, and the Prime Minister maintains support as the leader of that Government.

Note the inherent contradiction here (it's so obvious I'd go so far as to call it a lie). The Sovereign does what the PM wants "so long as the Government appears to have the confidence of the House". But when the PM loses the confidence of the House, the Sovereign continues to do what the PM wants by granting an immediate election if the PM asks for it. Utter bunk.

[islington]

Dec 1, 2020 12:42:32 GMT Davıd Boothroyd said:

That wording comes from the old five year limit. Twice it meant two consecutive general elections taking place more than five years apart (1959-64 and 1992-97).

It's interesting that the Bill retains 2 May 2024 as the default date for the next GE (unless called earlier). This is the date on which the next GE is currently due under the FTPA, and sticking to it avoids any charge that Parliament is legislating to extend its own term. It does, however, limit the maximum term of the current Parliament to less than 4 years 5 months.

I also note that clause 5 roundly assets the control of the executive over prorogation and effectively overturns last year's Supreme Court ruling.

[islington]

Dec 1, 2020 17:27:59 GMT mboy said:

Dec 1, 2020 17:13:32 GMT Wisconsin said:

Note the inherent contradiction here (it's so obvious I'd go so far as to call it a lie). The Sovereign does what the PM wants "so long as the Government appears to have the confidence of the House". But when the PM loses the confidence of the House, the Sovereign continues to do what the PM wants by granting an immediate election if the PM asks for it. Utter bunk.

I disagree.

What it means, in effect, is that a Government that has been rejected by one HoC has a right of appeal to the next.

In other words, the electorate decides.

[islington]

Dec 1, 2020 17:10:26 GMT Wisconsin said:

Dec 1, 2020 12:33:17 GMT Davıd Boothroyd said:

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?

Good questions. There is some of this in the ‘principles’ document (which Parliament has been invited by Government to scrutinise) but not very much.

Excellent questions indeed. My take would be:

1) Probably. The 'Lascelles Principles' never had any official standing; it's simply a statement of how a prudent monarch might respond to a dissolution request. I'd suggest that if the prerogative is effectively restored, Lascelles's basic logic remains sound.

2) I think it must. So we shall return to a situation in which a Government can declare before any vote that it will be regarded as a matter of confidence. This is, however, a two-edged sword from Govt's point of view. On the one hand, it wonderfully concentrates the minds of your backbenchers; but on the other, if you lose, you must either resign or call a GE. And what the new Bill also definitely does is get rid of the no-confidence process under the FPTA, which was not well thought out and would probably have proved unworkable if it had been put seriously to the test.

[nodealbrexiteer]

Dec 1, 2020 17:37:46 GMT islington said:

Dec 1, 2020 12:42:32 GMT Davıd Boothroyd said:

That wording comes from the old five year limit. Twice it meant two consecutive general elections taking place more than five years apart (1959-64 and 1992-97).

It's interesting that the Bill retains 2 May 2024 as the default date for the next GE (unless called earlier). This is the date on which the next GE is currently due under the FTPA, and sticking to it avoids any charge that Parliament is legislating to extend its own term. It does, however, limit the maximum term of the current Parliament to less than 4 years 5 months.

I also note that clause 5 roundly assets the control of the executive over prorogation and effectively overturns last year's Supreme Court ruling.

May have missed this but which part of the bill retains the 2nd May 2024 date please?

[Davıd Boothroyd]

Dec 1, 2020 17:37:46 GMT islington said:

I also note that clause 5 roundly assets the control of the executive over prorogation and effectively overturns last year's Supreme Court ruling.

I would have no problem with that, provided HMG was clear that prorogation could not be misused - as attempted last September - by a government seeking to shut down Parliament for a lengthy period of time and prevent a Parliamentary majority from imposing itself on the government. (Which would also rule out the Canadian style use of prorogation to avoid defeat on a confidence vote)

[Foggy]

Dec 1, 2020 17:43:41 GMT islington said:

Dec 1, 2020 17:27:59 GMT mboy said:

Note the inherent contradiction here (it's so obvious I'd go so far as to call it a lie). The Sovereign does what the PM wants "so long as the Government appears to have the confidence of the House". But when the PM loses the confidence of the House, the Sovereign continues to do what the PM wants by granting an immediate election if the PM asks for it. Utter bunk.

I disagree.

What it means, in effect, is that a Government that has been rejected by one HoC has a right of appeal to the next.

In other words, the electorate decides.

Thank goodness you weren't the Lieutenant-Governor of British Columbia three and a half years ago. 

[islington]

Dec 1, 2020 19:21:03 GMT nodealbrexiteer said:

Dec 1, 2020 17:37:46 GMT islington said:

It's interesting that the Bill retains 2 May 2024 as the default date for the next GE (unless called earlier). This is the date on which the next GE is currently due under the FTPA, and sticking to it avoids any charge that Parliament is legislating to extend its own term. It does, however, limit the maximum term of the current Parliament to less than 4 years 5 months.

I also note that clause 5 roundly assets the control of the executive over prorogation and effectively overturns last year's Supreme Court ruling.

May have missed this but which part of the bill retains the 2nd May 2024 date please?

Oh, well, it's very clear if, like me, you look at this -

publications.parliament.uk/pa/bills/lbill/58-01/086/5801086.pdf

But unfortunately, I should have been looking at this -

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/940027/Draft-Fixed-term-Parliaments-Act-Repeal-Bill.pdf

Many apologies (and attempts, vainly, to wipe egg from face).