Scrap The F T P A?

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ToraToraTora | 11:48 Wed 02nd Dec 2020 | News
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it was only a sop to the Lib non dems anyway.


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Cant see a problem with it being put back as it was to be honest.
13:08 Wed 02nd Dec 2020
Excellent news.

Yes it was only a sop to ensure Cleggy kept the spare keys to No 10 for five years.
It was introduced to prevent MPs bringing down the minority government.
So a relatively knee-jerk policy.
But of course then we had the Brexit impasse when the goverment actually WANTED an election, so now we get this, which is also a knee-jerk policy.
There are arguments on both sides. Parliament can now more easily force the government to call an election, and given the scale of the revolt last night ... :-)
Or "could" I should say.
I quite liked the FTPA but the point of it was to stop PMs timing elections whenever they felt it was advantageous to them and Theresa May killed that advantage off by doing it anyway. So its a bit pointless now.
Better to strengthen it than to return the power to the PM to declare an election whenever they like. I'm also not a fan of the idea that any power the Crown claims should be non-reviewable. It smacks of Divine Right.
Cant see a problem with it being put back as it was to be honest.
Nor I. No reason a government shouldn't choose the moment . If they've been awful it won't help them, and otherwise it produces more consistency over a longer period.
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ich: "It was introduced to prevent MPs bringing down the minority government. " - err no, and it didn't, they caould always have a VONC, even before the FTPA. I was to take the power from the PM, a bauble for cleggy along with the AV referendum.
I wouldn't necessarily fight against the repeal of the FTPA in its current form that strongly. For me, it's more about everything that is being attached to this version of repeal.

For example, the foreword to the draft legislation states that "the overriding principle of our constitution should be that the Government of the day has the confidence of the House of Commons." (emphasis added). I don't think it's too much a stretch to say that, if this is an overriding principle, then it's not clear why an election need take place within five years at all, or indeed with any particular timescale. A Government could, under that principle, point to enjoying a continued majority indefinitely, as long as that majority existed. Meanwhile, the four or five-year cycle is more a matter of convention. For a while, a few hundred years ago, there were seven years between elections (six being a fairly common choice in the 19th Century). Only in 1911 was the period reduced to five years. It's not clear to me that there are any protections afforded to this timescale in our current constitutional arrangements, and it seems clear that those protections are even less evident if the "overriding principle" is only that Government enjoys the Confidence of the House.

Clearly, this legislation is not intended to be a backdoor to a perpetual Government, free of the inconvenience of election. Convention presumably would also imply that "confidence of the House" ought to be refreshed. But my point is that the 2011 Act at least had one major advantage, in that it took power away from the leader to set the rules surrounding their leadership. Those rules should be set independently.

Secondly, the draft legislation makes clear that "A court of law may not question the exercise of [the power of the Crown to dissolve, summon, prorogue, and just generally control Parliament]", nor "the limits" of these powers, nor "any decision" at all related to them. This is the other part I cannot support. Again, the rules of the game should not be subject to the whims of the player; or, rather, the extent of powers of the Prime Minister should not be up to the PM to determine. Parliament, in our present system, is free to set its own rules, but that is (in practice) because it's elected, and therefore is recognised as the Representative of the People's settled will. The PM is not.

The problem with the old system was that the government could call an election whenever they liked (so long as it was within five years). So they could just choose a point when their popularity was high and cash in the votes (Thatcher in 1983 is a good example but not the only one).

Some people like that though because it gives the ruling party a significant advantage and they want us to be ruled over by their "team" forever.
I think Charles I would approve.

It's worth stating, of course, that I may simply be completely wrong about the legal consequences of this Bill (if enacted as drafted). The other sad part of all of this is that there are no special protections of the repeal bill, either -- presumably, a further Parliament would be free to restore the FTPA and set the precedent for a stupid dance as to whether we have enforced, or de facto, five-year fixed terms.

In itself, that's enough to suggest that the entire system of Government needs a better codification of rules, and the means by which they can be rewritten. Neither the FTPA nor its repeal bill achieves this.
// Again, the rules of the game should not be subject to the whims of the player; //

nor should it be the role of the courts to intervene if the government does something Gina Miller doesn't like.
Only that's not what has happened at any point. Whether or not Gina Miller didn't "like" what the Government was doing is irrelevant to the fact that it was unlawful, both to try to override Primary legislation (the 2016 case, R (Miller) v SSExEU), and to unreasonably frustrate Parliament from being able to carry out its functions (the 2019 case). In both cases, the Courts simply reasserted the principle of Parliamentary Supremacy, and outlined their logical consequences.
JIM, when I read the Bill, I was also concerned about the Courts being telt to keep their noses out.

I thought that if if had been in p

force earlier, the fiasco of last year's prorogation would have been outwith the scope of the Courts.

However, the Bill speaks of the "calling of a new
Parliament" and that is after a dissolution not a prorogation.

I am not aware of any legal challenges surrounding dissolution s prior to the FTPA so I'm wondering if I'm missing something.
It's a non-expert reading so I might just have misunderstood. But the impression I got, including the reference to the SC ruling, is that this is intended to be a power-grab. There is otherwise no need for the clause.
JIM, if you have a look at the commentary section on Clause 3, it explains the reasons. I tried to copy and paste but not able to do so on this 'phone.
As you mentioned the SC ruling, you must have seen the bit I was meaning.
I did see them, copied below:

Clause 3 confirms that the exercise (or purported exercise) [brackets corrected from the original] of powers relating to the dissolution of Parliament, and the calling of a new Parliament, is non-justiciable. The long-standing position is that the exercise of the prerogative power to dissolve Parliament is not justiciable ... This provision is included for the avoidance of any doubt that may arise.

Clause 3 also covers the preliminary steps and any decisions (or purported decisions) leading to dissolution of Parliament. This would include advice from the Prime Minister to the Queen, as well as the exercise of the power itself.

Clause 3 further provides that the courts cannot consider the limits or extent of those powers. This is to address the distinction drawn by the Supreme Court in [2019] as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise. It seeks to clarify that neither is justiciable in the context of decisions relating to dissolution. //

I suppose, to be blunt, that I am reading this as a "would say that, wouldn't they" defence. If the explanatory notes state that this merely confirms an already-accepted position, then there is no need for them (and, in any case, since any clause in any piece of legislation can be repealed by any future Parliament at any time, it's not even clear that there is any benefit). At the very least, the motivation for including the clause is questionable at best, and the implied precedent that a Government can decide what is, or is not, up to the Courts is a dangerous one.

As far as I can tell, then, there is no need for this clause except to "punish" the Courts for daring to exercise their constitutional powers in recent years. Legislation shouldn't be used that way.
From the Bill of Rights 1689:

-Nothing said or done in parliament shall be questioned in a court of law-

Surely clause 3 merely confirms that position.

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