Should Parliament be able to extend its life without debate?
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Something very unusual — indeed , unprecedented outside of wartime — happened yesterday, Thursday 24 March, 2022. The potential life of this current Parliament was extended, by over eight months. The next General Election was until yesterday due to be held on 2 May 2024, with Parliament dissolving on the 29 March, twenty-five working days before the election. It now need not be held until 23 January 2025, with this Parliament automatically dissolving, if not previously dissolved, on 17 December 2024, the fifth anniversary of its first meeting in 2019.
The Dissolution and Calling of Parliament Act has now received Royal Assent. This Act repeals the unlamented Fixed Term Parliaments Act, passed by the Coalition Government in 2011 as a mechanism to stop either the Conservatives or Liberal Democrats suddenly welching on their deal when it might be to one of the parties’ political advantage. Fixed term parliaments were widely welcomed at the time as a modernising measure. Unlike the United Kingdom, most countries already had fixed dates for elections, with early elections only occurring under exceptional circumstances.
Brexit is what broke the measure. The Fixed Term Parliaments Act was blamed by both Remainers and Leavers for the interminable impasse around getting Brexit legislation through the Commons. In addition, the Act failed in its primary function of building certainty into the political timetable; both the 2017 and 2019 general elections occurred ahead of schedule. In their 2019 manifestos both Conservatives and Labour pledged to repeal the Act and it has now been consigned to history.
There has been much comment about how yesterday’s repeal restores one of the Crown’s prerogative powers and how this has only ever happened before on one previous occasion. Once the Crown — whose powers are in reality exercised by the Prime Minister of the day — loses a power, it is virtually never restored. What has elicited virtually no comment is how the repeal extends the potential life of this Parliament.
The Parliament Act of 1911 is the measure that, besides reducing the maximum life of a parliament from seven to five years, legally conferred on the House of Commons its preeminence over the House of Lords. The Commons had in practice been preeminent certainly for most of the nineteenth century, but legally it had equal powers with the Lords until the Parliament Act. The latter’s enactment meant that the upper chamber could only delay Bills for two years, subsequently reduced to one in 1949.
There was, however, one important exception to this. The House of Lords retained an absolute veto on a parliament extending its life beyond five years. This was not changed by the 1949 Parliament Act and remains the case today. The life of the wartime Commons, first elected in 1935, was only extended due to the approval of the Lords. If the Lords had said no, a general election would have had to be held during World War Two. The less flexible US system meant that there was indeed a presidential election in 1944 and even Midterms in 1942 , soon after America had entered the war.
This provision of the Parliament Act applies when a parliament is extended beyond five years. The new Dissolution and Calling of Parliament Act 2022 does not do this: it merely extends the potential life of this Parliament to five years. My point is rather that delaying elections is a very unusual move and something that the British constitution takes very seriously. Yet it has happened now with virtually no debate.
Nearly all the commentary on what scrapping fixed-term parliaments means for the timing of the next general election concerns whether it means there will be an early election. That may well be the case — but it may also not be. The former Tory Cabinet Minster Peter (now Lord) Lilley has frequently commented that even before fixed-term parliaments were introduced, in practice the UK had a fixed time for when an election would be called: the first Thursday four years after the last election on which the governing party felt confident of winning a general election.
Such a Thursday might never arise, as was the case with the Conservatives in the run-up to the 1997 general election and Labour in the run-up to 2010 one, in which case a parliament will continue for its full term. One cannot know what is politically around the corner, and the growing cost of living crisis could well mean that things will not be rosy for the Conservatives even in 2023. It is far from inconceivable that this Parliament will continue for its full five years.
I am not suggesting that there is anything sinister about this Parliament extending its own life. What I am suggesting is that it is, in British constitutional terms, a significant departure from the norm and one that has received virtually no comment.
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