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Yesterday morning, when Dominic Cumming’s departure was imminent but had not yet suddenly happened, we worried about what it might mean for the future course of the Government:

“But this site fears that if (or when) Cummings goes, and other Vote Leavers go with him, the winning Tory march into the north and midlands that he has done so much to craft will fade, and the Conservatives will drift back towards their southern comfort zone, more by habit than on purpose.”

Certainly the tone of the media coverage surrounding the move is that it is an opportunity for Boris Johnson to ‘reset’, and that there will be a shift in focus towards a less ‘adversarial’ approach. Cummings’ focus on deep issues such as the structure of the state also seems unlikely to continue under the new order of things.

And what of the constitutional agenda? This was already in flux – back in July, we reported that the original plan for a comprehensive Constitution, Democracy and Rights Commission from the manifesto had been shelved. Will this shift away from confrontation see a watering down of the Prime Minister’s ambitions to overhaul the Supreme Court, or the Fixed-term Parliaments Act?

The last will make an interesting test case. The FTPA is dear to the hearts of a noisy but electorally insignificant caucus of constitutional progressives. If the new-look Downing Street is unwilling to tough it out against such opposition then it augurs very badly indeed for the rest of the Conservative programme.

Although the issue has been driven completely off the radar by the pandemic, all the signs were that to date the Government has been intending to take a robust approach to repealing the FTPA, with the ultimate ambition being not just to iron out kinks in the legislation but to restore, as much as possible, the status quo ante of Prime Ministerial discretion rooted in the Royal Prerogative.

Of course, one lesson from Cummings is that it is possible – and may indeed be wiser – to practise radicalism without shouting about it. On one level a comprehensive repeal of this sort can actually be spun as a tidying-up exercise. As this piece on the LSE blog notes:

“Repealing the Act will be a tidying-up exercise removing ineffective legislation, not a major constitutional change. It will merely bring the de jure situation back into alignment with the de facto. Supporters of fixed-term parliaments may regret the Act’s demise. But in truth, it has proved largely toothless, containing the means by which it could readily be circumvented.”

The Government’s response to the report by the Public Administration and Constitutional Affairs Committee (PACAC) can be read in a similar vein. Whilst noting the shortcomings of the legislation, the MPs (led by Will Wragg, a Conservative) come out quite strongly against restoring to the Prime Minister the discretionary power to call elections. The official reply is a four paragraph letter thanking the Committee for highlighting the issues and letting them know that: “Announcements about the Government’s policy intentions will be made in due course.”

All this suggests – and various sources back this up – that the plan is to revive that discretionary power, rather than adopting a measure to leave it formally, if not always effectively, in the hands of the House. That will be a battle deliberately sought.

Beyond the question of whether or not to restore these powers to the Prime Minister is the question of how this is done. The least controversial way would simply be to set the power to dissolve Parliament (subject to a five-year maximum) in the Prime Minister’s hands via a fresh statute. But another way would be to try and revive the original prerogative power – and there were signals that this was indeed what the authors of the Government’s strategy hoped to do.

Such an approach opens two cans of worms a statute-led strategy does not. First, it means technically re-creating the monarch’s discretionary role in dissolution. Second, it forces the question of whether or not the Royal Prerogative can actually be revived. Each would be welcomed by sections of the conservative constitutional movement, certainly – but does that mean the Government will pick these extra battles?

(Those interested in this second point can get a useful overview of the debate from Section 4 of the above-linked PACAC report. The two schools are essentially that statute law either somehow destroys the prerogative power, which cannot therefore be revived, or either displaces or channels it, with the original ‘raw’ power flowing back into the space created by repeal.)

On the one hand, such a maximalist approach may not be in keeping with a new, less ‘adversarial’ overall approach to governing. But on the other, there are surely few areas where the opposition is more adrift from the electorate. The handful of potential Tory voters who might forsake the Party because it angers progressive constitutional scholars must, if they exist at all, count those scholars as personal friends.

And so we – and the parliamentary joint committee being set up to review the FTPA – await the Government’s promised repeal bill with bated breath. It will be a useful indicator of how much fight this Government still has in it.

185 comments for: Repealing the Fixed-term Parliaments Act: an arcane but important battle Johnson must win

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