Robert Hazell outlines how the Fixed Term Parliaments Act restricts the new government from calling a second election. He writes that if Cameron wanted to take a gamble to boost his slender majority, he would have to work within the confines of the Act given the likely complexities of any attempt to repeal it.

This is the third in a series of posts based on the Unit’s latest report, Devolution and the Future of the Union, published here.

Now that David Cameron has won, but only with a slender majority, speculation will turn to whether his government will last a full five years; and whether he could improve his numbers by calling a second election. In the run up to the election there was talk of the new government calling a second election after a year or so, as Harold Wilson did in 1966 and again in 1974. This kind of speculation is wild. It is no longer possible for the Prime Minister to seek an early dissolution, because the prerogative power to dissolve Parliament was abolished by the Fixed Term Parliaments Act 2011. It is now up to Parliament to decide whether there should be an early election. Under the Act there are only two ways in which Parliament can be dissolved early:

• By a motion ‘that there shall be an early parliamentary general election’ passed by at least two thirds of the House of Commons (s 2(1))
• By a formal no confidence motion, in the statutory form prescribed in the Act (that ‘this House has no confidence in Her Majesty’s Government’), passed by a simple majority of those voting (s 2(3)). If no alternative government can be formed within 14 days which can command confidence, Parliament is dissolved and an early election held.

Better informed speculation then turns to whether it might be possible to hold an early election under one of the two routes prescribed by the Act. The first route, which requires a two thirds majority of the whole House, sets a very high threshold: in practice that could probably be achieved only if both major parties agreed on the need for early elections.   So more attention has focused on the second route, and whether a government which wanted early elections could somehow engineer a vote of no confidence in itself. Academic opinion is divided on the feasibility of this. Those who think it would be possible are essentially saying, where there is a will there is a way, but they are less clear about where exactly that way is to be found.

The difficulties are formidable. First, someone has to table a formal no confidence motion in the form prescribed by the Act. If this is done by the government or a government supporter they will open themselves to ridicule.   Second, the motion has to be passed. If the government wants early elections because it is doing better in the polls, then the opposition will be doing worse, and may not support the motion; so the government may struggle to get such a motion passed. Third, if the no confidence motion is passed, the Act provides for a cooling off period of 14 days within which an alternative government can be formed. So the government would face the possible risk of being displaced by an alternative government without fresh elections being held.

Those are just the parliamentary obstacles. But there are further disincentives outside Parliament. The parties have no money for a second election, having spent all their resources in May. Only the Conservatives are rumoured to have a second war chest. The electorate may not love them for forcing a second election on the public, and may punish the party for calling a second election simply to try to increase their numbers. And finally, the election may return much the same result, as happened in 1910.

Repeal or amendment of the Fixed Term Parliaments Act

There is also brave talk about repealing the Fixed Term Parliaments Act: for example, in the backbench debate last October. But this is wishful thinking, because repeal would be far from straightforward. It would require legislation, which would have to pass both Houses, with particular difficulties in the Lords. The legislation would face technical and political difficulties. The political difficulty is that reverting to the status quo ante would confer on the Prime Minister the advantage of choosing the date of the next election. Research by Valerie Belu and Petra Schleiter has shown that advantage to be significant: ‘strategically timed opportunistic elections have allowed governing parties to realize an average vote-share bonus of just under 6 percent and seat-share bonuses of 12 percent, doubling the probability that the Prime Minister survives in office’. It would take a bold Prime Minister to explain to Parliament and to the electorate why he wanted to regain that partisan advantage.

The technical difficulty is that repeal would not simply restore the status quo ante, because the prerogative power of dissolution has been abolished. Constitutional lawyers believe that it would not magically revive, like some mushroom left in the dark. If the Monarch’s power to dissolve Parliament were to be restored, it would have to be re-created in statute; and it might be difficult to define the circumstances in which a Prime Minister could properly request a dissolution. The prerogative power of dissolution is one of the most controversial prerogative powers, as shown in the 1975 dismissal of Gough Whitlam in Australia, and more recently the request in 2008 for an early dissolution by Stephen Harper in Canada. The statute might simply have to side step the issue, by saying that ‘the Prime Minister may request a dissolution of Parliament, which may be granted by the Sovereign’; but that would not avert a lot of discussion in Parliament about when a dissolution could or could not properly be granted.

This is not to say that the Fixed Term Parliaments Act is perfect. It has been widely criticised for introducing a five rather than four year term. It may be that it is too restrictive, with only the two routes to dissolution laid down in section 2. But it is too early to say confidently that it should be repealed; and wishful thinking to suggest that it could be repealed easily. It would be better to wait for the statutory review which is provided for at the end of the Act. This requires the Prime Minister to establish a committee ‘to carry out a review of the operation of [the] Act’ and ‘if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of [the] Act.’ The committee is required to report at some point between 1 June 2020 and 30 November 2020.

About the Author

Robert Hazell is Professor of Government and the Constitution & Director of the Constitution Unit.