Yesterday I wrote about the many-fronted war being waged against the royal prerogative. The prompt for that piece was the High Court’s Article 50 judgement, but the ramifications are much broader.
One of the (many) issues posed by the reluctance of many to defend or bolster superficially (and only superficially) monarchical powers was the difficulties posed to repealing the Fixed-term Parliaments Act. Yet current events show just why it needs to go.
It’s not necessarily that Theresa May will hold an early general election, although events are certainly conspiring to make her wriggling out of her previous cast-iron commitment not to have one more plausible.
Rather the relentless bombardment of Harold Macmillan’s “events” illustrates why the flexible position traditionally offered by the British constitution was so superior to the rigid American alternative – and can be again.
By setting a limit on the maximum length of a Parliament rather than a mandatory lifespan, the pre-FTPA system forced governments to seek a mandate on a regular basis whilst leaving it the leeway to respond to events. As a result British elections followed the organic tempo of political and national life.
The discretion granted to the Government over the timing of the election may occasionally have shifted a result – most obviously when Jim Callaghan chose to wait until 1979 – but seldom foisted on the country a Government wildly out of keeping with the public mood.
Fixed terms, on the other hand, are much more likely to do that. The barriers the Act raises to dissolving Parliament mean that a Government can be practically imprisoned in office, even when changed circumstances mean the country would be better served by an election.
Nor is this only a problem during periods of uncertainty and upheaval. Even during the remarkably stable lifespan of the Coalition the Act created months of what amounted to legislative dead time. The Government reached the end of its natural lifespan long before we were able to elect a new one.
As a bulwark for the Coalition, a fixed-term Parliament was a necessary compromise. But such a substantial change to our constitution ought never to have been permanently introduced as part of such a deal. That it was highlights once again how badly we need to introduce the sunset clause into normal legislative practice.
The FTPA represents a triumph of form over function, and of a preoccupation with tidiness over the smooth operation of Government, whilst the best argument that can be mustered against repealing it is that doing so returns power to the executive – that is, the ‘Crown’ – which is no argument at all.
Whether or not she attempts an early election, the Prime Minister should repeal it.