Fixed-term parliaments mean very little, and here’s why

'Scottish Parliament' / Andrew Cowan / CC
'Scottish Parliament' / Andrew Cowan / CC

With the upcoming general election looking as though it will be the closest, and the most bitterly fought, for many a long year there will be a lot of chatter over the next few months about whether or not – in this era of fixed-term parliaments – there could be an election between the first Thursday in May 2015 and the first Thursday in May five years later.

The simple answer to this question is yes, there could be another election.

There are three conditions under which a second election could take place at any point within the five-year term stipulated by the Fixed-term Parliaments Act (2011). Whatever some people will say: there is no room for Prime Ministerial discretion, the resignation of a government is irrelevant, and there is no discretionary power for the Monarch. I’m a great believer in Prime Ministerial power – and think the country has largely been served well by a system where the PM is largely governed by convention, history and precedent (and his or her own personality) – but that ship has sailed. The PM still has discretion in other areas, of course, but the right to call an election has gone.

Anyway, away from thoughts on Norton’s typology of Prime Ministerial power, and back to the succulent fillet that is the Fixed-term Parliaments Act. The three conditions are:

Firstly, and perhaps most obviously, the government could amend or replace the Fixed Term Parliaments Act. A simple repeal, not working in or stipulating any new conditions, would mean that Parliament would continue in perpetuity. I’d suggest this was sensible (perhaps adding in a condition about Prime Ministerial discretion). The Fixed-term Parliament Act repealed the 1716 Septennial Act that extended the length of a parliament from three to seven years, amended and lowered to five with 1911 Parliament Act. This is, therefore, Norwegian Blue and will not be resuscitated by repealing FTPA. There is some interesting constitutional debate about whether or not royal prerogative would again be live – given it isn’t explicitly repealed by FTPA – but generally once something is displaced by statute it cannot be restored. Therefore giving the Crown discretion in a new Act would make it a statutory power.

Secondly, and this is the one people think they understand, if the House of Commons passes the motion ‘That this House has no confidence in Her Majesty’s Government’, such a vote would not, in and of itself, trigger an new election. If such a motion was passed, and if within a fortnight, no new government had been formed and successfully gained a motion of confidence from the House then an election would be triggered. The motion of no confidence (or, in due course, confidence) requires only a simple majority of the House for it to carry.

I saw one leading writer claim that if a Cameron-led Government lost the vote on the Queen’s Speech and subsequently resigned Mr Miliband would have 14 days in which to pass a Queen’s Speech motion. This is nonsense from start to finish. Cameron’s Government would have to be defeated on the motion above (and that exact wording. No other wording cuts the mustard).

If, say, Cameron decided that the he cannot govern and resigns his government this would not trigger the 14-day provision. All it would do is open up potential negotiations for a new government to which, wonderfully, there is no time limit. Under such a situation we could see ourselves turning into Belgium – no government, just a civil service running things whilst the Cameron or Miliband decides who exactly they can jump into bed with whilst those already in the bed suddenly raise their price substantially.
Thirdly, the House of Commons could vote that there should be an early election (again, the wording of this is specified in the act). Such a vote, however, unlike the No Confidence vote requires a two-thirds majority of all MPs – it can be by unanimity or division.

So there you are. There can be another election.

It is possible, of course, that now you know this you will consider the ramifications. Are there scenarios where a big enough bulk of MPs simply wouldn’t turn up to vote for an early election (meaning that a two-thirds majority could not be met)? Are there scenarios where a Government could not pass the legislation it wants to pass but could, somehow, gain the confidence of the House?

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