The Fixed-term Parliaments Act was supposed to have stopped Prime Ministers from calling snap general elections. But that is exactly what Theresa May seems to have done. Alan Renwick here explains what the rules say and why they have proved so weak.

We have become accustomed to a familiar choreography when general elections are called. Cabinet ministers gather to hear the Prime Minister’s decision. The Prime Minister drives to Buckingham Palace to request the dissolution of parliament from the Queen. Finally, the Prime Minister returns to Downing Street and announces the news to the world.

This time, the process is a little different. Cabinet ministers gathered. But Theresa May did not go to the Palace (we are told she spoke to the Queen by telephone yesterday, but there was no strict requirement for her to do so). Rather, following her announcement of what – interestingly – she described as the government’s intention to hold an election, Theresa May now has to seek parliamentary approval for the decision.

This is the consequence of the Fixed-term Parliaments Act, which was passed under the Conservative–Lib Dem coalition government in 2011. Previously, the Prime Minister could request an election whenever she wanted and the general expectation was that it would take exceptional circumstances for the Queen to refuse. Now, there are only two circumstances in which an early election can take place:

• either two thirds of all MPs must vote for the election;
• or the government must lose a vote of confidence and fourteen days must pass without the successful creation of a new government.

It is the first of these paths that Theresa May has chosen. On paper, the barrier looks high: the requirement is not just a two-thirds majority of the MPs who take part in the vote; rather, it is a two-thirds majority of all 650 Commons seats, including vacant seats (of which, at present, there is one). So at least 434 MPs must vote for the motion. Many have speculated in the past that the Act thus significantly constrains the Prime Minister. Labour has slightly more than a third of the seats in the Commons at the moment, so it could block the motion on its own.

But this power of the Fixed-term Parliaments Act seems to have disappeared in a puff of smoke. Opposition party leaders have looked at their options and rapidly concluded that, whatever their preferences, opposing the early election would make them look scared. They might think the damage to their reputations would be great enough even if they succeed in blocking the election. Or they might fear that they would not manage to block the election: that if they defeated the government’s motion, Theresa May would respond by engineering a loss in a confidence vote and blame her opponents for the two-week period of disorder thereby created. In that calculation, it seems safe to say that they are right.

So has the Fixed-term Parliaments Act in fact changed nothing? Now is not the time to say whether there are no circumstances in which sufficient MPs might be ready to block the Prime Minister’s will – perhaps there are. In the current case, however, it seems that the Act really has changed only the choreography, not the underlying pattern of power. We see yet again – as so often – that the UK has a fundamentally political constitution: one in which the politics, rather than the law, matters most.

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About the author

Dr Alan Renwick is the Deputy Director of the Constitution Unit.