The Fixed-term Parliaments Act 2011 has been a failure – but the decision for an early general election should not be in the hands of the prime minister

7th December 2020

The Fixed-term Parliaments Act 2011 is an odd and unloved piece of legislation.

And it has not been a successful piece of legislation – in that the parliament elected in 2015, which should have lasted until 2020, did not run its full course, and neither did the parliament after that.

Indeed, instead of no general elections between 2015 and 2020, we had two – in 2017 and 2019 – instead.

No general election held since the Act was passed has resulted (so far) in a parliament of a fixed term.

In this key sense, the Act has been a failure.



Is it an entirely useless piece of legislation?

No, as there is one important thing the statute gets right.

Before 2011 the decision for a parliament to dissolve and for there to a fresh general election was, in effect, in the hands of the prime minister – subject to a statutory long-stop of five years.

Nominally the source of this power was the the royal prerogative, for the crown had the ability to dissolve one parliament and to then issue a proclamation for a general election.

But in practice, it was ‘on the advice of’ the prime minister, and it was a powerful political weapon.

The 2011 Act took this power out of the hands of the prime minister.

Now, again subject to a five year long-stop, there cannot be an ‘early’ general election just at the whim of a prime minister.


So far, so welcome.


Where the statute goes wrong is in respect of how there can still be an ‘early’ general election.

On the face of the Act there are two ways, both of which are problematic.

The first is that there is a ‘super majority’ of MPs – and this is how the then prime minister Theresa May got her general election in 2017.

The second is if an elaborate scheme of two successive ‘confidence’ motions – one of ‘no confidence’ and, if there is not then a ‘confidence’ motion soon after passed by MPs, there is a general election.

This second route has not been used, not least as it is not clear what should happen in the period between the two confidence motions.

And in any case, it does not really matter what the Act provides on the face of it, for parliament can just pass a ‘notwithstanding’ statute for there to be an early general election anyway.

This does not need a ‘super majority’ or elaborate succession of confidence motions.

It just needs a bare majority in the house of commons and a lack of opposition in the house of lords (and the house of lords will tend not to deny the commons its way on questions of appeals to the electorate).

And this is how the current prime minister got his general election a year ago.

The Early Parliamentary General Election Act 2019 was passed in a matter of days.

It was as if the early election provisions in the Fixed-term Parliaments Act 2011 made almost no real difference at all.


There is now a review of the 2011 Act.

The government has published a draft bill repealing the Act and seeking to revive the royal prerogative of dissolution.

Clever constitutional lawyers will argue about (a) whether the prerogative was abolished with the 2011 Act and (b) whether it can be revived.

(My own view only goes so far as (a) the 2011 Act did not expressly abolish the prerogative power and (b) a new statute can purport to say that the 2011 Act had no effect on that prerogative power – but I do not know which way a court would go if the point was ever litigated.)


Repealing the Act outright would, in my opinion, be a mistake.

Instead, the two mechanisms for an early general election should be replaced by the need for a majority of MPs (including vacant seats) to pass a motion for an early general election.

Given that, as in 2019, the early election mechanisms in the 2011 Act can be side-stepped anyway, this would be an affirmation of what the real practical position.

A prime minister unable to command a majority in the Commons should not be able to use the threat of an early general election against opponents and their own party.

It should be a matter for the elected representatives themselves to make that significant decision.

The 2011 Act may be odd and unloved and, in practice, not that successful.

But it did get one thing right.

Early general elections should be possible, but the decision should not be in the hands of the prime minister of the day.


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17 thoughts on “The Fixed-term Parliaments Act 2011 has been a failure – but the decision for an early general election should not be in the hands of the prime minister”

  1. If memory serves me correctly, few Parliaments in recent times have lasted more than four years under the preceding arrangements.

    Of those Governments that did in recent years, Labour between 1974, a year of two General Elections, and 1979 and Conservative between 1992 and 1997, they ended their time with their authority shattered.

    Major’s Government may be said to have bled to death.

    One might argue that events, dear boy, events encouraged Gordon Brown to go the full five years rather than cut and run when the polls were in his favour.

    Long engrained fixed term arrangements do not, as we see in the USA, guarantee Presidents governing to the bitter end with power and credibility undimmed.

    I gather that the House of Representatives and the Senate are now in a lame duck session. The outgoing legislators know some of them will not be returning and of them some may feel they have no moral authority to pass legislation, especially if it is deemed controversial. The electorate, the bastards as one losing US politician once called them, having spoken.

    As an aside, I do feel I know more about US politics than perhaps I should. I put it down to repeat viewings of the West Wing. I am hopeful that I am not turning into Owen Jones.

    The one appeal that Fixed Term Parliaments have for party activists, like myself, is that knowing the date of a General Election one may plan for it, in the same way one plans for local authority elections. Although I doubt the wisdom of holding more than one election on the same day.

    Notwithstanding that, I accept that elections should not be solely run in a manner designed to convenience party activists, I am inclined to agree that early “general elections should be possible, but the decision should not be in the hands of the prime minister of the day.”

    1. Regarding the usual length of parliaments — When the FTPA was first passed I remember being affronted that the ‘usual’ four-year term was lengthened to a five-year term. On the most recent episode of the Oh God What Now? podcast, Ian Dunt made the same point — that the FTPA sneakily extends the normal life of a parliament from four to five years.

      However, if we look at the actual lengths of parliaments, we find that its more of a mixed bag. Without doing a rudimentary analysis (I have limited time this morning) it seems that four years is the ‘mode’ but there are plenty of shorter parliaments, and many occasions of a parliament going to the full five years (during wartime, even longer).

      Looking at the majorities, it seems that stronger Prime Ministers go for an election around the four-year mark; weaker ones either have to hold an election much earlier or else string it out for the full five years. It might even be the case that staying in power for an extra year is detrimental to one’s chances of re-election.

      1. OK, I just did a quick calculation on 20th/21st Century elections.

        13 of the 30 parliaments went significantly over four years; and 7 went five years or more., including the two wartime parliaments.

        The average length of a parliament — including the two wartime parliaments — is a few days shy of four years. The average length of a peace-time parliament is 3 years and 7 months.

  2. “not least as it is not clear what should happen in the period between the two confidence motions.”

    In the case where you have a coalition government it gives time for an alternate coalition to be formed and pass the confidence motion.

  3. I’d say that the FTPA served its purpose – the make the coalition government of 2010 stable, by removing the threat the senior partner could dump the coalition at the time of its choosing.

  4. Dear Sir, whilst not being an expert on Parliamentary laws and procedures, I feel I must make a point, and would
    Dearly love it if this could be addressed in a future blog.
    My understanding is that “the people” elect a government via a GE or other election. However, once that election is completed and a government established, “the people” have no recourse to change either individuals or governments until such times as the government (ie Parliament) themselves make that decision.
    So no matter how bad the government is doing there is no way to change it other than through long and drawn out means such as General Strikes etc.
    The individual changes don’t fare any better in that the attempt to de-select an MP must have sufficient signatures of their party in that constituency and they would be loath to do that if it meant an opposition candidate was to succeed, so once again, stalemate.
    I would love to be proved wrong in my assumptions above and would appreciate it if you could perhaps explain where my assumptions are incorrect.
    Many thanks and I do enjoy reading your blogs.

  5. Among the interesting questions raised by the proposed repeal, and purported reinstatement of the prerogative, is the extent to which the Queen could reject the urging of a prime minster for a dissolution, and instead invite the opposition to form a government. Are the Lascelles principles resurrected?

    For what it is worth, I also agree with David – the House of Commons should control when elections are held, not the prime minster and not the Queen. The existing mechanisms – two third majority and confidence motion – do not really work, and it should be replaced by a straight majority, so a party with a working majority could still call a general election when it wants, and in most other cases an opposition is unlikely to decline the opportunity to go to the nation.

  6. If an election can be called by a simple majority in the HoC, it is effectively in the gift of the Prime Minister.

    The Fixed Term Parliaments Act was passed as part of the coalition agreement, and it served its purpose there. It might as well simply be abolished (no court will want to get involved with whether the Royal Prorogative still exists, if Parliament appears to have intended it to, the court will assume it does).

  7. If you leave it to a majority of MPs to decide then how do you handle the nightmare situation of an utterly dysfunctional House of Commons that will not get anything done nor put the country out of its misery?

    1. The Prime Minister does not have the power to advise the monarch to dissolve. The PM may only recommend because there may be an alternative government in the sitting parliament or legislature.
      (Eugene Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth, Oxford University Press, New Edition, 1968)

      In 2017, in British Columbia, the Liberal government led by Christy Clark lost its majority in the general election that year. The NDP with the Greens had a majority albeit tiny. The liberal premier did not resign but waited for the opening of the legislature (as she could), her government was defeated on the throne speech. She went to see the Judith Guichon saying she intended to ask for a dissolution since there would only be a one seat majority and an unstable situation. We don’t know what happened in the room where it happened. She either resigned or she asked for a dissolution in which case she was refused and with or without it being offered, the accepted her resignation.

      In 1979, in Canada, the very short lived Tory minority government led by Joe Clark was defeated on the budget. He went to the G-G asking for a dissolution. The G-G, Ed Schreyer, had him wait in one room while he summoned Pierre Trudeau (Liberal) and Ed Broadbent (NDP) to another asking if they could form a government, they refused and so he went back to Mr. Clark and dropped the writ.

      It is taken as given (cf the works of Eugene Forsey) that a request for dissolution may be refused if there is an alternative government in the sitting parliament.
      In the case of the 1975 Australian crisis, Senator Forsey (Canada) supported the action of Sir John Kerr. In the pages of the Globe and Mail I disagreed because the Australian constitution is a curious amalgam of the UK and the US constitutions. In the 1975 the situation was very much a US constitutional mechanism known as the game of chicken or who blinks first.

    2. You’ll need to more clearly define your terms. In what circumstances would there be a government that couldn’t command the majority of the house and where it wouldn’t suit the opposition parties to vote in favour of a general election?

      What does “not get anything done” mean and why would that be a nightmare? Even without a working majority the government still functions.

      1. In what circumstances would there be a government that couldn’t command the majority of the house and where it wouldn’t suit the opposition parties to vote in favour of a general election?

        For a time in the autumn of 2019 these exact circumstances existed. It suited rebellious MPs from the two main parties, and the minority parties, to keep the existing, weakened government in place. And with hindsight, we can see that although Jeremy Corbyn’s Labour Party thought it was in their interests to vote for a General Election in December 2019, it actually wasn’t!

        1. I had thought of last Autumn; however, we did get an election in relatively short order – despite the current arrangements. Given that, I think that getting a bare majority of the commons would have been straightforward. Indeed it suited the Tories to have a period of stalemate on Brexit before the election was called so they could go to the country on an anti-Parliament message.

      2. The BC 2017 example I gave above is a perfect case in point. The opposition majority had agreed to support an NDP government. The just twice defeated Liberals thought a second election might give them a majority

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