Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

The basics of the Fixed-term Parliaments Act

Before turning to possible counterfactuals, it is first useful to recap on the details of the Act. Despite its title, implying that parliamentary terms will be fixed, the FTPA’s provisions include two clear mechanisms through which an early general election can be held. One is that the House of Commons votes explicitly, by at least a two-thirds majority, in favour of such an election. It was this provision that Theresa May successfully used in 2017 to trigger the election which resulted in minority government. The second route is for a general election to follow the government’s loss of a specifically-worded vote of no confidence in the House of Commons. But the election is not then automatic, as the Act allows a 14-day period in which an alternative government (or potentially the existing government) could demonstrate that it enjoys the confidence of MPs. Overall, the Act’s essential feature, rather than literally fixing terms, was to remove the Prime Minister’s personal power to ask the monarch for dissolution – instead requiring authorisation from the House of Commons via one or other of these two routes.

May’s Brexit troubles

It is also worth briefly recapping how things developed during the 2017-19 parliament. May’s Brexit deal was secured in November 2018, and on 15 January 2019 became subject to the biggest defeat in parliamentary history, by 432 votes to 202, with 118 Conservative MPs opposing the government. The following day, May survived a formal vote of no confidence tabled by the opposition, by 325 votes to 306, with no rebel Conservative votes. There were then two subsequent attempts to get MPs to support the deal, but it was voted down by 391 to 242 (with 75 rebels) on 12 March and by 344 votes to 286 (with 34 rebels) on 29 March. Theresa May finally announced on 24 May that she would step down as Conservative leader, and was replaced as Prime Minister on 24 July by Boris Johnson.

Could May have turned the vote on her Brexit deal into a vote of confidence?

A common assumption is that the FTPA prevented Theresa May from turning the votes on her Brexit deal into matters of confidence. The parallel has often been made with John Major’s troubles over the Maastricht Treaty, when backbench rebels were pulled into line in this way. On 23 July 1993, Major was defeated by eight votes, when 23 Conservative MPs rebelled against the government. The next day, by turning the issue into one of confidence, and threatening to resign as Prime Minister and call an election, he won the vote by 339 to 299.

This precise manoeuvre was not available to Theresa May. Nonetheless she could have made voting on her deal a confidence matter. As the Public Administration and Constitutional Affairs Committee (PACAC) pointed out in 2018, other routes to a vote of no confidence continued to exist; so the Prime Minister could have announced that she (or even the whole government) would resign if the Brexit deal was defeated. This would not in itself have forced a general election, but would have led to the fall of the government, which would have either required a new government to form, or if none could command confidence, led to a no-confidence motion under the FTPA.

What if May had been able to threaten an election?

To some readers this might illustrate the problem – that the Prime Minister was not able directly to wield an election threat as a means of frightening her backbenchers into line. In the few cases where commentators have pointed to a relatively specific problem caused by the FTPA, it is this. For example, Professor Vernon Bogdanor suggested to the Constitution Committee that:

Had the Act not been on the statute book, Theresa May might have been able to resolve the parliamentary deadlock in 2019. She could have made the Withdrawal Agreement a matter of confidence. Then, either the rebels would have come to heel, or she would have sought a dissolution. As it was, the Commons refused to endorse the deal and it also refused to vote no confidence in the government.

So this seems to be the key counterfactual. But what actually would have happened had the Prime Minister been able to wield this power? And when in the process might this have occurred?

As Bogdanor suggests, there would have been two possible outcomes. First, as happened with John Major, theoretically the Brexit rebels might have backed down. However, Major faced 23 rebels; Theresa May initially faced 118. She also needed at least some DUP votes to secure a majority, as Labour’s handful of Brexit rebels would almost certainly not have supported her in a confidence vote. But this logic suggests that some of those who have complained most bitterly about the problems caused by the FTPA – not least the Prime Minister himself – believe that outcomes would have been better had Theresa May been able to force them to change position. Of course, some of the rebels (including Johnson) did do so during the course of the three votes, and the number of rebels on the third occasion was only 34. There are hence various scenarios here in terms of timing – but none are convincing. At one extreme the Prime Minister might have deployed the election threat immediately, when the number of rebels was too large to be overcome; at the other extreme she might have deployed it on the third vote, when the rebels remained a substantial block, and most of her authority had drained away.

The Prime Minister’s authority is important to these scenarios, as the general election threat would clearly have needed to be credible. What is obvious in this case, including from my interviews with senior figures, is that a second election bid by Theresa May, following her 2017 campaign – widely viewed in the party as disastrous – would have been unsustainable. As a senior Number 10 insider that I interviewed put it:

I can’t imagine the Conservative Party would have let her go into another general election… I just think in that scenario, you would have had 200 Tory MPs say “the Prime Minister needs to go, we can’t do this”.

In other words, had May retained the pre-FTPA prerogative power, and chosen to use it, she would have either thrown her party into an election campaign fronted by a leader it didn’t want, or forced it into a leadership contest after an election campaign had begun. If anything, this seems a good indication of why Prime Ministers should not have an individual power to dissolve without the support of parliament (and by association their own parliamentary party).

The Johnson coda

From today’s perspective, it is easy to muddle the arguments about the impasse under Theresa May and the battles under Boris Johnson later in 2019. In Johnson’s case it is incontrovertible that the FTPA initially prevented him from achieving the election that he desired. But again, these events seem strongly to support arguments in favour of a Commons veto over dissolution. Even under the FTPA, the Prime Minister (rather than parliament) remains responsible for proposing the precise election date to the monarch. This is, as many experts discussed with the parliamentary committees, a definite flaw in the Act. On three occasions, the Commons denied Johnson the two-thirds majority that he needed under the FTPA to trigger an election, because Brexit day was looming, and there were fears that this would facilitate a no deal exit, potentially in the midst of an election campaign. Only after Johnson had requested an extension to the end of January, and the election date had been written into the Early Parliamentary General Election Bill, did MPs give their consent. But this seems to have been an entirely reasonable precaution to avoid a chaotic outcome. Again, it is difficult to suggest that the better solution would have been for the Prime Minister to have an unconstrained prerogative power.

Conclusion

On examination, then, it seems impossible to find a scenario in which the absence of the FTPA would have resulted in improved outcomes during the troubled parliamentary year of 2019. Instead, there are serious questions regarding whether a Prime Minister leading a minority government should have untrammelled power to trigger an election without needing Commons approval. It was this minority government situation, coupled with the internal Conservative Party divisions, and the ticking Brexit clock, which caused the repeated deadlock.

Michael Gove, introducing the second reading of the Dissolution and Calling of Parliament Bill, suggested that in ‘the paralysed parliament… of 2017 to 2019 — parliamentarians were actually frustrating the will of the people, in attempting to overturn Brexit and in attempting to sustain in power a government who needed to seek confidence from the electorate’. But among those ‘frustrating’ Theresa May’s deal were the current Prime Minister, and several others in his Cabinet. It is not at all clear that May could have conquered these obstacles if she had had the prerogative power to dissolve.

While there are definitely flaws in the FTPA that need fixing, it would be a retrograde step for MPs to hand an unchecked dissolution power back to the Prime Minister. With respect to Brexit, as Jackie Doyle-Price, Conservative member of both PACAC and the Joint Committee on the Fixed-Term Parliaments Act, suggested it at the second reading debate, ‘It was not parliament’s finest hour, but it was the fault not of the Fixed-term Parliaments Act but of the outcome of the 2017 general election’ – and, it might be added, the behaviour of certain Conservative MPs.

About the author

Professor Meg Russell FBA is Director of the Constitution Unit, a Senior Fellow at The UK in a Changing Europe studying ‘Brexit, Parliament and the Constitution’ and co-author of Taking Back Control: Why the House of Commons Should Govern its Own Time.