20 April, 2017
Paul Reid: How Fixed Is a Fixed-term Parliament?
However unexpected the Prime Minister’s call for a general election may be, and however appropriate it may, or may not, be (see Jeff King’s discussion here), it invites the Fixed-Term Parliaments Act 2011 to operate as it was designed: if two-thirds of the House of Commons resolves that there should be an early general election (for whatever reason) then there shall be an early general election. Whether MP’s should vote for such a motion is a question of politics; but the law is operating as it should do. And if an election does take place on 8 June, the next again UK general election will be on 5 May 2022 (and the five-year cycle continues thereafter). But holding a UK general election in June 2017 raises two interesting points when set in the context of the fixed-term parliament arrangements in Scotland. First is the date of the next UK general election (which will be 5 May 2022). Under the 2011 Act, where an early general election is called, the 5-year clock is more or less reset: hold the election before first Thursday in May and the next election is on the first Thursday in May in the fourth calendar year after the election; hold it after and it is the fifth calendar year following the election (s.1(4) of 2011 Act). In other words, holding an “early” general election breaks the planned cycle of general elections. Contrast that to what happens where there is an early election under the Scotland Act: unless that “extraordinary” general election takes place within six months of a planned “ordinary” general election it has no effect on the four-year cycle of elections (s.3(3) of the 1998 Act). Even then, the four-year cycle continues as planned. For example, if an extraordinary general election was held in the February before a planned ordinary general election, the next general election would still take place on the first Thursday in May four years after the election (just that parliamentary session would be 4 years and 3 months long). But the fixed cycle more or less continues. It is not clear why the Westminster model resets the clock whereas the Holyrood model does not. It appears to be just another one of those anomalies that arises from the piecemeal way in which the constitution has been changed. But from what was said by the Prime Minister, it seems very unlikely that she would have sought an election in June 2017 if, as would be the case under the Scottish system, it would not have reset the five-year period and the May 2020 election would have proceeded as planned. Second is the date of the next Scottish Parliamentary election. It was due to be held on 7 May 2020 (four years after the previous election: Scotland Act 1998, s.2(2)). That clashed with the scheduled UK general election with the result that the Scottish Parliament was given the power to vary the date (Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015). That power has been exercised by the Scottish Parliament: Scottish Elections (Dates) Act 2016. Under that Act, the next Scottish Parliamentary election will take place on 6 May 2021 (s.1(2)). That is, for the second successive session, the Scottish Parliament’s four-year “fixed” term will be extended to a fifth year. And that, obviously, only deferred the problem until 2025 when both polls would have again been scheduled for the first Thursday in May. Of course, the 2016 Act is now entirely unnecessary because there will be no clash in 2020 and the Scottish election could have taken place as “planned”. But it is on the statute book and it must be extremely unlikely that it will be repealed now the clash will be avoided. So, the next Scottish general election will take place on 6 May 2021 (even if a snap election were to be called in Scotland at any time before 6 November 2020, 6-months before the planned election). The previous extension of the Scottish Parliament’s four-year “fixed” term was made by the s.4(2) of the Fixed-Term Parliaments Act 2011 so as to avoid the 2016 clash of dates (which simply gave rise to the anticipated 2020 clash of dates). Assuming things return to normal, and Westminster and Holyrood revert to their five and four-year cycles, respectively, the next clash should not take place until May 2037. Although that is some time off, it may be that there is now a convention that where the dates clash, the life of the Scottish Parliament is extended by a year. That, of course, simply delays the problem for one parliamentary cycle rather than solving it: delay the 2037 Scottish election until 2038 and then there is a clash in 2042 (and so on and so on…). But all of that assumes there are no further early UK general elections. And the term fixed by the Fixed-Term Parliaments Act looks rather more flexible than it did a week ago.
The fixed-term regime that is in place for both Westminster and Holyrood could only ever be a holding position, with date clashes being inevitable. So far, that has seen the Scottish Parliament slowly moving to a five-year term as clash-after-clash with Westminster elections was deferred for another few years (incidentally, it was never clear why a five-year term was picked: it was the maximum under the Parliament Act 1911 and it is longer than many other European legislatures). One consequence of this snap election is that the cycle of repeated clashes has been deferred for 20 years. In that time, hopefully, a longer-term solution can be found. Such a solution would seem to require the parliamentary cycles of Westminster and Holyrood to be aligned and the rules on the consequence of an “early” or “extraordinary” general election to be harmonised. But with everything else that is going on, I rather expect this particular wrinkle of the constitution will be left un-ironed until it next raises its head, which should be some time in the mid-2030’s. Or, of course, perhaps what we have just witnessed is the (de facto) revival of the Prime Minister’s prerogative as to the timing of elections (who else would be likely to credibly propose a motion for an early general election?) and the result of the Fixed Term Parliaments Act 2011 will not be so much to fix the term of Parliament but simply to require the Prime Minister to get endorsement of her decision from the House of Commons. And if that is so, it is a reminder that the UK constitution remains very much a political constitution. Paul Reid, Advocate. Paul Reid is a member of Ampersand Stable and part-time tutor of Public Law at the University of Edinburgh. – See more at: http://www.ampersandstable.com/evoke/news/668/view#sthash.mpfwtD1W.dpuf
The fixed-term regime that is in place for both Westminster and Holyrood could only ever be a holding position, with date clashes being inevitable