DPRR/10-11/39

FIXED-TERM PARLIAMENTS BILL (LORDS INTRODUCTION VERSION) Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee

A. INTRODUCTION

1. This memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Fixed-term Parliaments Bill (“the Bill”). The Bill was introduced in the House of Commons on 22 July 2010 and brought to the House of Lords on 19 January 2011. This memorandum identifies the provisions of the Bill that confer powers to make delegated legislation. It explains in each case why the power has been taken and explains the nature of, and the reason for, the procedure selected. This version of the memorandum is in substance the same as the version produced prior to the introduction of the Bill in the House of Commons. None of the amendments to the Bill made in the Commons added to or amended the delegated powers in the Bill.

B. PURPOSE AND EFFECT OF THE BILL

2. The coalition programme for government made a commitment to bring forward legislation to establish five-year fixed-term parliaments. This Bill delivers that commitment and provides for other matters consequential on that change.

3. In outline, the Bill provides for a fixed day for polls for parliamentary general elections. The polling day for elections would ordinarily be the first Thursday in May every five years. The first such polling day for elections to the House of Commons under the new arrangements will take place on Thursday 7 May 2015. The Prime Minister will be able to alter the polling day for parliamentary general elections to a day not more than two months earlier or later than the scheduled day of poll for that general election.

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4. The Bill also makes provisions to enable the holding of early parliamentary general elections. The trigger for such general elections would be either where at least two-thirds of all MPs resolve in favour of dissolution, or where a vote of no- confidence in the existing Government has been passed and no alternative Government has been able secure the confidence of Parliament within 14 days after the day of the no-confidence motion. Where such an election occurs, the next scheduled election after that will be five years from the first Thursday in May immediately prior to that election date.

5. The Queen would not retain any residual prerogative power to dissolve Parliament, which will occur automatically under the provisions in the Bill. She would however retain the powers to prorogue and to summon Parliament and, in the event of an early election, to set the date of that election on the advice of the Prime Minister.

C. DELEGATED POWERS

Clause 1(5): Power to vary the polling day for a parliamentary general election

Power conferred on: the Prime Minister Power exercised by: order made by statutory instrument Parliamentary procedure: affirmative procedure

6. This clause would provide the Prime Minister with a power to vary, by order made by statutory instrument, the polling day for a parliamentary general election by two months earlier or later than the day determined by clause 1. It is intended that this power would be used to vary the date of an election where it would be inappropriate to hold the election on the specified date due to a short- term crisis. Such a scenario occurred in 2001 when an outbreak of Foot and Mouth disease meant that it was necessary to delay the date of local elections in England and Wales and Northern Ireland.1 Provisions to alter the date of an

1 See the Elections Act 2001.

2 otherwise fixed election exist in the legislation establishing the devolved legislatures in Northern Ireland, Scotland and Wales.

7. The power to vary the polling day for a parliamentary general election would be vested in the Prime Minister and is limited to varying the date by two months earlier or later than the prescribed day. This power does not allow for elections to be delayed beyond two months and as such new primary legislation would be needed to extend the life a Parliament beyond this permissible period. Equally, this power is not intended to be used where the Prime Minister wishes to call an early election for political reasons and the affirmative procedure guards against this.

8. Where the Prime Minister alters the date of an ordinary general election by statutory instrument this does not alter the date of the next scheduled general election which will occur on the first Thursday in May in the fifth calendar year after the year in which the election takes place.

9. An instrument made under this clause is subject to the affirmative procedure. As such any instrument varying the date of an ordinary election cannot come into force unless it had been approved by both Houses of Parliament. This means that the approval of the House of Lords would be required to make this instrument. We consider this to be an appropriate safeguard on the exercise of this power.

Paragraph 15 of the Schedule: Power to make provision about elections in Northern Ireland

Power conferred on: the Secretary of State Power exercised by: regulations made by statutory instrument Parliamentary procedure: affirmative procedure

10. Powers exist in the Representation of the People Act 1985 to make provision in regulations about combination of polls where the polling day for parliamentary elections is to occur on the same day as polling day for local and European Parliamentary elections. Powers also exist in the Scotland Act 1998 and the

3 Governance of Wales Act 2006 to combine elections to the respective devolved legislatures with other elections. However, no such power currently exists to combine elections to the House of Commons and those for the Northern Ireland Assembly.

11. The ability to make provision about combination of polls occurring on the same day enables certain administrative functions in relation to each election to be combined. For example, the powers can be used to enable postal ballot papers for each poll to be issued as part of the same process. Without such provision, the election processes for each poll would run in parallel with potential for duplication of functions. Combination therefore enables the overall costs of the elections to be reduced.

12. The amendments to section 15 of the Representation of the People Act 1985 (“the 1985 Act”) made by paragraph 15 will allow the Chief Electoral Officer for Northern Ireland to direct that where polls at an election of the Northern Ireland Assembly occur on the same day as a parliamentary general election, a European Parliamentary general election or a local election in Northern Ireland, the polls may be taken together. This provision is necessary because elections to the House of Commons, the Northern Ireland Assembly and local government in Northern Ireland are all scheduled to occur on the 7 May 2015. The Chief Electoral Officer will have discretion as to whether the polls at the election of the Assembly and the other election or elections should be combined.

13. As a result of providing in section 15 of the 1985 Act that such elections may be taken together, the Secretary of State will be able to make in regulations such provision as is thought fit concerning the combination of polls at such elections, see subsection (5). This power includes the power to modify the Representation of the People Acts. The Representation of the People Acts include the Representation of the People Act 1983, the 1985 Act, the Representation of the People Act 2000 and certain provisions in the Electoral Administration Act 2006. This power is exercisable by statutory instrument, subject to the affirmative

4 procedure.2 There is an associated power to make incidental, supplemental, saving or transitional provision.3 Before making an instrument, the Secretary of State must consult the Electoral Commission.4

14. Paragraph 15 of the Schedule expands the power under section 15(5) in certain respects. It provides that the power includes power to modify:

 Part 2 or 3 of the Schedule to the Elections Act 2001 (in addition to the power conferred by paragraph 32 of that Schedule): This enables the regulations to modify existing provision made concerning the combining of polls for parliamentary elections and local elections in Northern Ireland.

 Any provision made under section 34(4) or 84(1) of the Northern Ireland Act 1998: Section 34(4) is the power of the Secretary of State to make provision about elections of members of the Northern Ireland Assembly. The Northern Ireland Assembly (Elections) Order 2001 is made under these provisions. Section 84(1) is the power of Her Majesty to make provision by Order in Council concerning local elections in Northern Ireland. This means that any necessary modifications can be made to such secondary legislation for the purpose of combination.

 Any provision made under section 38(1)(a) of the Northern Ireland Constitution Act 1973: Section 38(1)(a) is the predecessor to section 84(1) of the Northern Ireland Act 1998. Section 38 has been repealed. However, Orders in Council made under section 38 are saved by section 95(1)(c) of the Northern Ireland Act 1998. There is legislation under section 38 which may require modification on account of combination.

 Any provision made by or under Northern Ireland legislation relating to local elections: “Northern Ireland legislation” means certain legislation made concerning Northern Ireland including Acts of Parliament of Northern

2 See section 201(1) and (2) of the Representation of the People Act 1983, as applied by section 27(1) of the Representation of the People Act 1985. 3 See section 201(3) of the Representation of the People Act 1983. 4 See section 7(2)(e) of the Political Parties, Elections and Referendums Act 2000.

5 Ireland and Acts of the Northern Ireland Assembly, see section 24(5) of the Interpretation Act 1978. There is Northern Ireland legislation in relation to local elections in Northern Ireland which may require modification on account of combination.

15. It is necessary to provide for combination in secondary legislation. This is because the provision that is required needs to modify a wide range of elections legislation both for parliamentary general elections and for elections in Northern Ireland. Combination is generally dealt with as a matter of secondary legislation. The expansion of the power in section 15(5) of the 1985 Act is necessary to ensure that modifications can be made to all relevant elections law to enable, in particular, the various elections rules to operate together. The power will continue to be subject to the affirmative procedure with a requirement for consultation of the Electoral Commission. These are appropriate safeguards on the exercise of this power, which includes power to modify primary legislation. The power is appropriately conferred on the Secretary of State as responsibility for the elections in Northern Ireland to be combined is vested in the Secretary of State for Northern Ireland.

Cabinet Office

19 January 2011

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