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.
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But.
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.
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So far, so welcome.
But.
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.
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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.)
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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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