Was the Fixed-Term Parliaments Act (2011) always doomed to be a failed constitutional reform?

The law surrounding the calling of General Elections has changed significantly in recent years.

When the Fixed-Term Parliaments Act received Royal Assent in September 2011 it was sold as a significant constitutional reform that would modernise the UK constitution and give more democratic legitimacy to the House of Commons. However, on the 24th March 2022 the Act died an unceremoniously when it was repealed through the passage of the Dissolution and Calling of Parliament Act. So, was the demise of the Fixed-Term Parliaments Act always inevitable and was it a failed constitutional reform?

What is the historical background as to when elections could be called?

The Bill of Rights (1689) established in statute the convention that General Elections should be both regular and free but the regularity of these elections took a little while to solidify. The Triennial Act (1694) put into statute that an election should be held at least every three years. However, this was quickly adjudged to be too often (primarily on the basis of cost) and in 1716 the Septennial Act mandated that a General Election had to be called at least every seven years. This seven year stipulation remained until 1911 when Section 7 of the Parliament Act reduced the period to five years.

The Lascelles Principles were named after the Private Secretary to George VI.

Despite constraints of the length of parliaments, when to call a General Election remained a Royal Prerogative power – something which gave political power to the Prime Minister as they could call a ‘snap election’ at a strategically suitable time. There were few limits on the Prime Minister in this instance. However, one limit was a set of conventions that emerged called the Lascelles Principles, named after Sir Alan Lascelles, the Private Secretary to George VI. The principles outlined three narrow parameters in which a monarch could refuse the request of a Prime Minister to hold an early election:

  1. If the current Parliament was still “vital, viable, and capable of doing its job”.
  2. If a General Election would be clearly detrimental to the economy.
  3. If the Monarch could find another Prime Minister who was able to win the confidence of the House of Commons.
James Callaghan was the last Prime Minister to lose a motion of no confidence.

A further convention existed around the calling of a General Election if the government lost a Motion of No Confidence in the House of Commons. The convention dictated that if the Government lost a motion of no confidence the Prime Minister would be required to advise the monarch to dissolve Parliament and call a General Election. In 1979 James Callaghan lost a motion of no confidence by 311-310 votes and subsequently Callaghan announced he would ask the Queen for a dissolution of Parliament:

Callaghan: “Mr. Speaker, now that the House of Commons has declared itself, we shall take our case to the country. Tomorrow I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up, and I shall then announce as soon as may be—and that will be as soon as possible—the date of Dissolution, the date of the election and the date of meeting of the new Parliament.”

Thatcher: “As the Government no longer have authority to carry on business without the agreement of the Opposition, I make it quite that we shall facilitate of the Opposition so that the Dissolution can take place at the very earliest opportunity and the uncertainty ended.”

Why was the Fixed-Term Parliaments Act passed?

The Fixed-Term Parliaments Act repealed the previous legislation and make the former convention obsolete. It was agreed following its inclusion in the Coalition Agreement between the Conservatives and Liberal Democrats:

Nick Clegg needed the FTPA (2011) to ensure Cameron would not ‘cut and run’ from the Coalition.

” We will establish five-year fixed-term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed-term Parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour “

The Coalition: Our Programme for Government (2010)

The call for a Fixed-Term Parliament was the Liberal Democrat manifesto but not in that of the Conservatives. As a third-party the Liberal Democrats were frustrated at the ability of the Government to manipulate the electoral cycle to their own ends. For a Prime Minister to give up this power was a signfiicant thing. However, it was clear that the Liberal Democrats would not enter the Coalition without it. This was because traditionally new administrations get a boost in the first 6 months in office. The Liberal Democrats were scared that after 6-12 months in Government the Conservatives would call a snap election and win a comfortable majority without the support of the Liberal Democrats. David Cameron believe that this was a price worth paying for entering coalition with the Liberal Democrats.

What did the Fixed-Term Parliaments Act do?

The Fixed-Term Parliament Act mandated that an election must take place at least every five years. This means that following a General Election the maximum end date of the newly formed Parliament is already set. It is also removed the Prime Minister’s Royal Prerogative power to call a Snap Election at a time that was beneficial for them. Instead, the Fixed-Term Parliaments Act created two scenarios under which an early General Election could be held:

  • If a sitting government lost a motion of no confidence and was not able to subsequently prove its confidence within a 14 day period.
  • If two-thirds of the total membership of the House of Commons voted in favour of an early election.

Why might the Fixed-Term Parliaments Act have been fundamentally limited?

Firstly, the nature of First Past the Post and the two-party system it creates makes it very unlikely that the required threshold of a two-thirds membership of the House of Commons would not be reached if a Prime Minister wanted to hold an early General Election. This is because the role of the Opposition is to appear to be ready for election and to present themselves to the public as a ‘government-in-waiting’. It would (under normal circumstances) be politically untenable for any opposition to refuse an offer of an early election from the Government as it would appear they did not have confidence in themselves to win an election and form a government.

This was proven out in April 2017 under the Government of Theresa May. When May first became Prime Minister in July 2016 she consistently said that she would not seek an early election:

However, as she moved into 2017 the polls clearly indicated that if she were to be able to call an early General Election she could increase the small majority she inherited from David Cameron significantly, thereby making her chances of a successful Brexit much stronger:

Opinion Polls before Theresa May’s announcement. The Conservatives are the first % and Labour are the second %.

Therefore, in April 2017 Theresa May announced her intention to try to hold an early General Election under the Fixed-Term Parliaments Act (2011):

Realistically Jeremy Corbyn had to whip his MPs to vote for the early general election.

Notably, Theresa May spoke as if she was simply calling a ‘snap election’, as she would have before the Fixed-Term Parliaments (2011). This was because she knew that it was particularly unfeasible for Jeremy Corbyn’s Labour MPs to turn down the chance to take on the Government in a General Election. This was borne out in Jeremy Corbyn’s speech to Parliament during the vote on an early election:

“To the 6 million people working in jobs that pay less than the living wage, I simply say this: it does not have to be like this. Labour believes that every job should pay a wage people can live on, and that every worker should have decent rights at work. To the millions of people who cannot afford a home of their own, or who have spent years waiting for a council home, I say that this is their chance to vote for the home their family deserves. Labour Members believe that a housing policy should provide homes for all, and not investment opportunities for a few. To the millions of small businesses fed up with the red tape of quarterly reporting, hikes in business rates and broken promises on national insurance, I say that this is their chance to vote for a Government who invest and who support wealth creators, not just the wealth extractors.”

When the vote on holding an early general election was held the result was 522-13, significantly above the two-thirds thresholds required and with only 9 Labour MPs voting against.

Secondly, parliament is sovereign. This means that if a Government wanted to ignore the Fixed-Term Parliaments Act (2011) they could. This was seen in October 2019 in the case of Boris Johnson. #

Boris Johnson unsuccessfully tried three times to hold an early election under the Act.

During October 2019 Parliament was deadlocked over Brexit. In September 2019 the Prime Minister had lost control of the parliamentary agenda and had been forced to seek an extension to Article 50 from the European Union. As such, he wanted to hold an early General Election to break the deadlock. As such, he tried three times under the Fixed-Term Parliaments Act to hold an early general election. Under the unique circumstances surrounding Brexit, the opposition could get away with voting against an early election, something they did on three separate occasions on the basis that the Government had not taken a ‘no-deal’ Brexit off the table:

3rd September – 298 voted for the motion, 56 against.

9th September – 293 voted for the motion, 46 against.

24th October – 299 voted for the motion, 70 against.

The failure of the House of Commons to accept an early general election led to a remarkable and memorable outburst by the Attorney-General, Geoffrey Cox:

However, in response to this, the Government simply skirted around the Fixed-Term Parliaments Act by passing a separate piece of legislation called the Early Parliamentary General Election Act (2019) which passed by 437-20. This Act simply stipulated that a one-off early election would take place on the 12th December 2019 and would not effect the continuing existence of the Fixed-Term Parliaments Act:

The Early Parliamentary General Election Act (2019) is one of the shortest pieces of legislation in history.

Parliament could do this because Parliament is sovereign and, in the words of A.V Dicey, “can make or unmake any law”. Importantly, this bill removed the requirement of a supermajority to hold an early election and, facing the inevitability that the bill would pass, most Labour MPs decided to support it.

What attempts were made to repeal the Fixed-Term Parliaments Act?

Interestingly, the passage of the Fixed-Term Parliament Act was followed relatively quickly by calls for its repeal. Indeed, after its introduction, there have been five tabling ‘s of such bills, four of which were Private Members Bills (Grocott, Mancroft, Desai and True).

Lord Grocott consistently called for a repeal of the FTPA (2011).

One of the most vehement critics of the Act has been the Labour Peer, Lord Grocott. He has made a number of points about the Act in the Lords, including this intervention, commenting on the danger of UK election campaigns becoming long and drawn out, similar to that of the US:

“I wonder whether the Minister shared the nation’s palpable sense of gloom this morning when the broadcasters and the newspapers united in reminding us that there are 100 days of campaigning left until the general election. Do fixed-term Parliaments not inevitably lead to inordinately long election campaigns, as many of us predicted, and, I am afraid, to the past its sell-by date House of Commons that we have at present, with very little to do in either House? Does the Minister at least acknowledge that there is a growing view, on both sides of this House and in the Commons, that the passing of the Fixed-term Parliaments Act was a serious mistake?”

Lord Grocott – 27th January 2015

However, all of these bills fell at the Second Reading.

Why was the Act finally repealed?

In the Conservative Party’s 2019 General Election manifesto the Conservative Party promised to repeal the Fixed-Term Parliaments Act:

“We will get rid of the Fixed Term Parliaments Act – it has led to paralysis at a time the country needed decisive action”

However, in addition, the Labour manifesto also called for a repeal of the Act:

” A Labour government will repeal the Fixed-term Parliaments Act 2011, which
has stifled democracy and propped up weak governments”

The statutory vehicle for repealing the Fixed-Term Parliaments Act came with the Dissolution of Parliaments Act that received royal assent in March 2022. This Act fully repeals the Fixed-Term Parliaments Act and returns the power over calling a General Election to the Prime Minister, as long as it happens within five years of the last General Election. The bill passed easily, with a result of 312-55 in its Third Reading in the Commons, with the Labour Party abstaining.

However, in addition to this return of powers to the Prime Minister, Section 3 of the new Act removes the justiciability of the courts (including the Supreme Court) to make judgements on the use of the Royal Prerogative powers as regards calling of elections.

At first appearance it would appear that the Early Parliamentary General Election Act (2019) was the death-knell for the Fixed-Term Parliaments Act. In reality, because of both the political and legislative obstacles it faced, it never had much life it it anyway.

Article Summary

On the face of it the Fixed-Term Parliaments Act (2011) appeared to be a significant constitutional reform. However, beyond the surface, it was clear there were significant political and structural weaknesses. It was clear that should a Prime Minister want to hold an election, the Fixed-Term Parliaments Act was not a significant bar to doing so and it could lead to a government that lacked the ability to effectively govern. As such, when it was removed, it was removed without signfiicant fanfare.

Key Terms

Article 50 – The Article of the Lisbon Treaty that allows a country to give
notice that it seeks to withdraw from the European Union.

Bill of Rights (1689) – A significant statute law which codified a number of
rights of Parliament and parliamentarians, including parliamentary privilege.

Coalition Agreement – The agreement signed between the Conservatives and
Liberal Democrats in 2010 to enable a programme for Government.

Convention – A rule that is followed, but is not legally binding. In
Britain’s uncodified constitution conventions are extremely important.

Dissolution and Calling of Parliament Act (2022) – An Act of Parliament
passed in 2022 which repealed the Fixed-Term Parliaments Act and returned the
power of the calling of general elections to the Prime Minister.

Dissolution of Parliament – The formal term for the end of a Parliament
before a general election when a new Parliament will be formed.

Early Parliamentary General Election Act (2019) – The Act passed by the
Conservative Government in December 2019 that allowed them to circumvent the
Fixed-Term Parliaments Act.

Fixed-Term Parliaments Act (2011) – A now repealed constitutional reform
that set General Elections for a set date in five years, under which an early
election could be held only if two-thirds of MPs voted for it or if a
government lost a vote of no confidence.

Government-in-Waiting – The notion that the Official Opposition is ready to
step into government following a General Election. A good opposition will
clearly represent a ‘government in waiting’. This was the case under Blair in
1997.

Justiciability – The term for whether an issue can be ruled on by the
judiciary.

Lascelles Principles – A set of principles that formed the conventions under
which the monarch could refuse a Prime Ministers request to hold an early
general election.

Manifesto – The promises that a Government makes during a General Election
campaign.

Motion of No Confidence – A vote in the House of Commons to establish
whether the Government has the confidence of the House.

No-Deal Brexit – A Brexit that would have seen Britain withdraw from the
European Union without signing a deal with the European Union. Many
commentators believed that such a Brexit would have been disastrous.

Parliament Act (1911) – A significant statute law that removed the power of
the House of Lords to block a bill and instead only allowed it delay a bill for
two years. It also stipulated that a General Election had to be held every five
years.

Parliamentary Sovereignty – A central principle of the UK constitution under
which no body can overrule parliament and parliament can ‘make and unmake any
law’.

Repeal – The term for when a piece of legislation is removed from the
statute book and is therefore no longer a law.

Royal Prerogative – Powers that although technically belong to the
monarch in reality belong to members of the Government and most significantly the
Prime Ministers. These powers included the ordering of military action.

Snap Election – An election called earlier that the date required. This is a
power held by Prime Ministers under the Dissolution and Calling of Parliament
Act (2022).

Supermajority – A majority that is above a simple majority (50% of any
vote).

Third Reading – The final stage of the legislative process within each
individual house. It is the Third Reading that a bill must pass in order to be
passed to the other House or in order to go on to receive Royal Assent.

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