The Fixed-term Parliaments Act is again centre stage. As regular readers know, this is an Act that has been the subject of several posts, usually for the purpose of correcting misunderstandings about its provisions.
I gave evidence to the House of Lords Constitution Committee on the Act on Wednesday. You can watch the session here.
It may be helpful to remind readers of the provisions of the Act. It stipulates that an election will take place on the first Thursday in May every five years, but provides, under section 2, that there may an early general election if either
(1) two-thirds of all MPs vote for the motion ‘That there shall be an early parliamentary general election’; or
(2) the motion ‘That this House has no confidence in Her Majesty’s Government’ is passed and if, within 14 days, the motion ‘That this House has confidence in Her Majesty’s Government’ is not passed.
The first provision thus introduces a super-majority, whereas the second requires a simple majority to pass. The super-majority is a high one in that it requires two-thirds of all MPs, and not simply two-thirds of those voting, for it to be carried. The effect is to make the Opposition, and backbenchers, veto players in that they could vote against or simply abstain to prevent the two-thirds hurdle being achieved. This point was developed in my 2016 article in Parliamentary Affairs on the Act and votes of confidence. Theresa May was able to get a two-thirds majority in 2017 for an early election (MPs voted by 522 votes to 13 in favour), but Boris Johnson failed last Wednesday to clear the hurdle, when the vote was 298 votes to 56, almost 150 votes short.
The alternative in order to achieve an early election would be to engineer a vote of no confidence in one’s own government, or to pass a bill setting a date for a general election, the provisions of the Fixed-term Parliaments Act notwithstanding. The problem with the first is political in that it would require government MPs voting no confidence in their own government. The problem with the second is that the bill would need to go through all the bill stages in each House, which can take time, with the House of Lords being able to delay it. There is also the added problem in that, to achieve passage of a bill, it requires a majority. Having withdrawn the whip from 21 Conservative MPs, the government no longer has a majority.
A few other points worth noting about the Act:
The Queen has no residual powers in relation to dissolution. However – a point of contemporary relevance – the Act does provide that the power to prorogue Parliament is unaffected: ‘This Act does not affect Her Majesty’s power to prorogue Parliament’ (section 6(1)).
If an early election is triggered under either of the conditions listed above, ‘the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister’ (section 2(7)).
If a motion of no confidence is carried, the Act is silent as to who should form a government for the purpose of achieving, within 14 days, a motion of confidence. There has to be a government in place in which the House can express confidence. There is no requirement that such a motion is put, only that it has to be put and carried to prevent an election taking place. Parliament could be prorogued during this period.
The Act is not the most popular Act on the statute book and various politicians want to repeal it. As I have pointed out in an earlier post, repealing the Act – one peer introduced a Private Members’ Bill simply stating that the Act is repealed – would not result in the previous conditions coming back into being. Even if the prerogative power of dissolution resumes, the legislation limiting the life of the Parliament (the Septennial Act 1715 as amended by section 7 of the Parliament Act 1911) does not. A simple repeal would thus mean that Parliament continues indefinitely until the Queen is advised to dissolve it. One would therefore need a measure embodying specific provisions, as on when and under what conditions an election takes place, to replace those in the Act. Finding a consensus on what should replace it may not be that easy.