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We need to talk about the Fixed-term Parliaments Act 2011 to understand Theresa May's election plans
It was already a busy day in Westminster today with Treasury Questions and government statements on Syria and North Korea, but this was overshadowed by Theresa May’s announcement that she would like to call a general election. Although some of the press reported this as though a general election had indeed just been called (and speculation has already begun on everything from leaders’ debates during the campaign to the expected outcome) this was not exactly true. The Prime Minister can no longer call for a general election unilaterally. To understand what will happen over the next few days we need to understand the detail of the Fixed Term Parliaments Act of 2011.
The Septennial Act 1715, as amended by section 7 of the Parliament Act 1911, provided that the maximum life of a Parliament was to be five years. Within that period, the Prime Minister, as the monarch’s principal adviser, could go to go to Buckingham Palace to request the dissolution of Parliament and a general election. This meant that, in normal circumstances, the PM could decide unilaterally when to hold an election within the five-year limit. There were sometimes Parliaments that lasted a full five sessions and others that proved very short lived, most notably that returned in February 1974.
Since September 2011, that situation no longer applies. The Fixed-term Parliaments Act 2011 creates a fixed-term of five years. Under section 2 of the Act, an election takes place on the first Thursday in May every five years, starting with May 2015, unless the House of Commons triggers an early election by either:
- Passing, by a two-thirds majority of all MPs, the motion ‘That there shall be an early parliamentary general election’ (section 2(2)); or
- Passing, by a simple majority, the motion ‘That this House has no confidence in the Her Majesty’s Government’ (section 2(4)).
Under the first of these, an election is automatic. Under the second, an election only takes place if, within 14 days after the vote of no confidence, a new government cannot be formed and obtain a motion of confidence from the House of Commons.
The first is the cleanest way of triggering an election, but it makes the Opposition a veto player. It could prevent an election by simply abstaining in the vote. The second could be pursued by the government, using its majority (assuming it has one), if the Opposition is not prepared to support an election, but is potentially messy and – if Opposition MPs decline to vote for the motion – could entail ministers voting no confidence in themselves.
The new situation therefore means that the Prime Minister cannot ‘call a snap election’. The monarch retains no residual powers in respect of dissolution. What the Prime Minister can do is ask the House of Commons to vote for the motion ‘That there shall be an early parliamentary general election’. (The Act stipulates the wording. Any other wording would not trigger the provisions of the Act.) That is what Theresa May has announced she is doing. Utilising section 2(2) does not, as the BBC has claimed, override the provisions of the Act: she is acting in accordance with the Act.
In making her announcement, the PM has been assisted by the Leader of the Opposition, Jeremy Corbyn, having made clear some time ago that he would support an early election, a position he has reaffirmed following the PM’s announcement. Had he not made any prior commitment, the PM may have been wary of making such a statement. An astute Opposition could keep a PM guessing as to whether it would support a motion for an early election. It does not have to oppose such a motion for it to fail: mass absenteeism on the part of its MPs would suffice.
If an early election is held, the election clock is reset. If the early election takes place after the first Thursday in May in the calendar year in which it is held, the next election takes place on the first Thursday in May in the fifth calendar year following that in which it is held (in this case, May 2022, if an election is held on 8 June). If it takes place before the first Thursday in May, then it is held in the fourth calendar year after that in which it is held. That prevents a Parliament lasting for more than five years.
Various critics have argued that the Act should be repealed. Under section 7 of the Act, the measure has to be reviewed by a committee (a majority of its members being MPs) in 2020. Changing its provisions would require new legislation. A Bill simply to repeal the Act would have the potential for Parliament to continue in perpetuity. The provisions that existed before September 2011 would not apply as they have been repealed. There is a debate as to whether the prerogative would come back into play, but even if it did that would mean that a Prime Minister could wait for years and years until inviting the monarch to dissolve Parliament. The new Act would need to stipulate what the new arrangements would be. They could be the same as those that existed from 1911 to 2011. The provisions could be relatively straightforward, but that would not necessarily mean passage of such a Bill would be straightforward. Parliamentarians may favour getting rid of the FTPA, but may not necessarily agree that the maximum life of a Parliament should be five years (four years?) and may wish to constrict the PM’s power to call an election at any time considered opportune by the premier.
Some commentators appear to think the House of Lords may be a problem in getting a Bill passed to replace the FTPA. This rather neglects the fact that peers were highly critical of the 2011 Bill and it was pressure from the House that led to the provision for its review in 2020. This was to stave off having a sunset clause. With the benefit of hindsight…
Lord Norton of Louth is Professor of Government at the University of Hull. He tweets @LordNortonLouth
Image: UK Parliament CC BY-NC-ND