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The General Election: Creating a Constitutional Crisis? (Part II)

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About The Author

Alex Hitchcock (Former Writer)

Alex is a graduate of the Universities of Sussex and Cambridge. He attained a first-class degree in History from the former before graduating with an MPhil in Modern European History with Distinction from the latter in 2014. He is currently undertaking a full-time internship in the Westminster Office of a Member of Parliament.

This is the second part of a series. For the first part, see 'The General Election: Creating a Constitutional Crisis? (Part I)'.

This article focuses on the potential constitutional problems engendered by the controversial Fixed-term Parliaments Act 2011 (‘the Act’). Leading on from Part I of the article, three specific constitutional issues will be analysed. I will then take the opportunity appraise the wider pros and cons of the Act following its recent enforcement before suggesting a number of reforms to address its shortcomings.

Explaining the Fixed-term Parliaments Act

The Act commits a government to a term of five years of power. The Act received royal assent on 15 September 2011 and set the date of the next election as 7 May 2015 and on the first Thursday in May every fifth year thereafter.

The Act allows early general elections to be held under two circumstances:

  1. if two-thirds of the House, or the House without division, agree to a motion calling for an early general election; or
  2. if a motion of no confidence in the government is passed by the House and a new government is not formed within 14 days.

Section 2 of the Act therefore removed the power of the Queen (at the request of the Prime Minister) to dissolve parliament at will.

The Act contains provisions to enable its review in 2020. Hence, unlike the Cabinet Manual discussed in Part I, the Act may be around for a while before it can be reformed.

Nevertheless, debate about the Act’s worth has raged since its introduction. Three specific constitutional problems will first be considered, before I focus on wider issues.

1. A more complicated hung parliament

The Act makes a hung parliament more likely in at least three ways.

First, it prevents incumbent Prime Ministers calling elections at the most auspicious moment for them. Disabling this opportunity increases the chances of a hung parliament: the ability to call an election has resulted in UK Prime Ministers gaining an average 12 percent seat-share bonus, often enough to make the difference between a hung parliament and an outright victory. Prime Ministers called elections at their own behest in 44% of UK general elections between 1945 and 2011.

Coalition negotiations are further complicated by the spectre of having to form an administration capable of governing for five years, causing negotiators to think twice before committing to a coalition. Ken Clarke, for example, has argued that ‘[i]f we do have a hung parliament we now have a rather silly, really, complex process that . . . would be slightly out of control.’

The Act also undermines the ability to govern with a minority. The usual thinking would be that a party could run a minority government and call an election as soon as polls look favourable. This happened when Harold Wilson called a snap election in 1974, six months after forming a minority administration. The inability to follow in Wilson’s footsteps will also ensure that party leaders seriously consider the feasibility of governing with a minority for five years. 

These complications are problematic because, as I argued in Part I, hung parliaments elongate the precarious caretaker period of government, which is currently not adequately governed.

2. The precarious position of the Prime Minister

Two concerns persist regarding the position of a Prime Minister under the Act in two specific (but not implausible) situations.

The first is that the Act does not stipulate what a Prime Minister should do following a loss of a vote on the Queen’s Speech. The Queen's Speech sets the government’s legislative agenda for the course of a Parliament and the following vote is often seen as the ‘ultimate test of whether a government can remain in office.’ There is currently no formal guidance. For example, should the Prime Minister remain in power (and possibly attempt to pass another Queen’s Speech) until a vote of no confidence is levelled? Or should they resign immediately to allow for another party to attempt to pass a legislative agenda?

Experts diverge. Professor Robert Hazell, has argued for the former, while the Institute for Government (IfG) has favoured the latter, citing Stanley Baldwin’s 1924 resignation after the Conservative’s defeated Queen’s Speech as precedent. Both outcomes, would ‘be ugly and controversial,’ according to Dr Catherine Haddon of the IfG.

A logical solution would be to enforce a vote of no confidence following the failure to pass a Queen’s Speech. However, a two-thirds majority might be tricky to find as it would involve members of one party voting against their leader in the knowledge it would lead to their rivals taking power.

Yet, another constitutional problem arises here: there is no provision in the Act for who should be Prime Minister during the 14 days between a successful vote of no confidence and successful installation of a new government.

Furthermore, there is no guarantee that an Opposition would be able to pass a legislative agenda. If the Prime Minister resigns before the Opposition attempt to pass their agenda, the country would return to a purdah period with no clear leader.

Even if a Prime Minister remains in place, both the 14 day period of attempting to form a new government and the possible second election period would result in caretaker government. This, as I pointed out in Part I, would mean that the Prime Minister is not bound to remain in position and could resign. Such a scenario adds weight to the need for legislation to state when a government or Prime Minister can resign to ensure that the UK cannot be without a functioning government. The form this legislation could take will be considered below.

3. Creation of a mid-Parliament caretaker period

Yet there’s more. While the Act states a Prime Minister cannot send the country to the polls, there is little stopping a government from resigning in the event of legislative deadlock.

The problem is that resignation would not trigger a dissolution. Instead, either parliament would have to vote to dissolve itself, or a vote of no confidence would be passed and another government would have 14 days to form a new administration via the passing of a motion of confidence. Neither of these events are guaranteed.

A third possibility is a government resigning and then negotiating its own reformation, within a caretaker period. This period could be a long one, with it ending only with an election (following one of the two conditions of the Act are fulfilled) or a new government formed out of the ashes of the old one. Once again, this throws up the same constitutional problems explained in Part I:

  1. a lack of duty for an incumbent government to remain in office and therefore the possibility that there may be no functioning government;
  2. no clear definition of when a caretaker government ends and therefore possible confusion over who is in control of financial and other commitments; and
  3. ambiguities over who can make what government decisions creating the possibility that a caretaker minister may sanction far-reaching implications for a future government.

The Act itself is silent on these problems and the Cabinet Manual, with all its shortcomings, would provide the most thorough guidance. As I made clear before, this is a cause for concern.

Furthermore, this is not an implausible eventuality: governments have been forced to call early elections before in the UK. Edward Heath did so in 1974 and James Callaghan in 1979. What’s more, research of European fixed-term parliaments has shown that 58% of 206 fixed-term parliaments ended in failure elections and replacements. Hence, the UK public law must be prepared for such an eventuality.

Given these problems, it might seem simpler to scrap the Fixed-term Parliaments Act and allow a Prime Minister to dissolve parliament at will, as many have argued.

However, as we have now dissolved the UK’s first fixed-term government, we should be careful to appraise the Act in full before reaching a premature conclusion.

Appraising the Fixed-term Parliaments Act

1. Arguments against the Fixed-term Parliaments Act

1.1 The Act is inflexible

The first argument against the Act is that it is inflexible: there is no ability to call an election when it may be deemed appropriate or opportune to do so. This disallows the possibility of asking the electorate to vote on fundamental issues if they arise. For example, in 1910, the Liberal Prime Minister H. H. Asquith ran an election to get the backing of the people to remove the House of Lord’s absolute veto on legislation. Nevertheless, a referendum would allow any government to refer a decision to the people.

Furthermore, as Fraser Nelson points out, the ability to use an election as an iron rod to beat a Parliament into acting diligently has been removed. Nelson argues a fragile Swedish government used this to great effect when the legislature would not pass a Budget and warns that Britain may face a similar impasse with an unruly coalition post-May 2015. However, one should always err on the side of caution holding an Opposition to ransom with an election; calling an election should not, as Nelson puts it, ‘be a tool for political stability.’ Instead politicians should aim to pass legislation suitable for a Parliament that represents the wishes of the people.

Phillip Norton, Lord Norton of Louth, also believes the Act ‘limit[s] voter choice’. One reason is because ‘[t]he outcome of one election cannot be undone until the end of the stipulated term.’ The implication is that fixed-term parliaments do not allow voters to choose a new Parliament if the incumbent one is stagnant or unpopular. However, since the Prime Minister was the person who launched elections they would be unlikely to shoot themselves in the foot by calling an ill-timed election (with the disastrous exception of Gordon Brown). John Major, for example, hung in until the end in the hope his Conservative Party would gain support in the run up to the 1992 election, which it did. Hence the Act does little to limit voter choice in this respect.

1.2. It creates a zombie Parliament

It has also been argued that the Act creates a ‘zombie’ Parliament: a Parliament committed to 5 years of legislation but without enough legislation to fill those five years. Former Members of Parliament, including the former Commons Speaker, Betty Boothroyd, have blamed the Act for doing exactly that. However, in May 2014, the then Leader of the House of Commons, William Hague, denied this, arguing that ‘in [the last] session we are considering, including the bill to be introduced today, 23 government bills, compared with 13 main programme bills under the Labour party in the last session of the last parliament.’

It is not only difficult to tell whether a ‘zombie’ Parliament existed, but also (assuming it did) whether it was caused by the Act. Throughout the last Parliament, for example, the Conservatives never polled high enough to win an outright victory and so would not have gone to the polls to attempt to win an outright majority. Hence a ‘zombie’ Parliament could have existed with or without the Act. 

1.3. The Act is ineffective

Another argument against the Act is that it is may be ineffective. Other nations with fixed-term parliaments have circumvented the fixed-term stipulation. In Germany, for example, Chancellor Gerhard Schroeder manipulated a vote of no confidence to dissolve parliament.

This is certainly a threat. However, in the UK, the more pressing question is whether the Act will be revoked following an inauspicious election result. Many are unhappy with the Act and Tory rebels tabled a Backbench Business Debate calling for its repeal in October 2014 before Sir Alan Duncan brought forward symbolic legislation this year to repeal the Act—backed by over 100 MPs across the Conservative and Labour parties.

One of whom, Ken Clarke, has also said there have been ‘tea room chats’ about how to create a second election post-May if necessary. Widespread criticism suggests it is possible the Act could be revoked in the next Parliament.

2. Arguments in favour of the Fixed-term Parliaments Act

Yet, I want to argue that politicians should not be so hasty. Certainly the Act has its shortcomings. But it also comes with benefits. 

2.1. Reduction of Prime Ministerial power

The most important argument in favour of the Act is that it removes the executive power of the Prime Minister to call an election at a whim. The stated purpose of the Bill when introduced was to discourage ‘short-termism, and [prevent] the manipulation of election dates for political advantage.’ Any power left to the discretion of one individual should be strongly discouraged. It has been a principle of British democracy since the execution of Charles I that power should be disseminated into the hands of the nation, not an individual.

An election is an important event in our political calendar; it is perhaps one of the only times the British people are able to truly exercise political freedom, as the Genevan philosopher Jean-Jacques Rousseau sardonically noted in The Social Contract, 253 years ago. The conditions of exerting this freedom should therefore not be hijacked for opportunistic political reasons or at short notice.

Indeed, such a capability provides serious electoral advantaged. Dr Petra Schleiter highlights that opportunistic elections provide an average seat-share bonus of 12 percent and double the ‘probability that the Prime Minister survives in office (.80 versus .40).’ This is a remarkable advantage, which Lord Holme famously compared to ‘a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other.'

This principle is of fundamental importance and fulfils a historic drive to checking the power of one individual.

2.2. Better government planning and administration

The knowledge that a government will last for a predetermined amount of time allows administrations to prepare their legislative agendas safe in the knowledge parliament will exist long enough for them to implement them.

For example, a report by the Political and Constitutional Reform Committee shows that Departments feel ‘there is a greater certainty that the fourth and fifth sessions of a Parliament will run their full length, and less risk of bills being lost in the process known as the 'wash-up', which is the period between the announcement of a general election and dissolution of Parliament’. This was the bane of Departments who had to decide whether to risk attempting to enact primary legislation in the latter days of a Parliament, with the constant risk of an election being called at very short notice and scuppering their ability to pass the legislation.

Furthermore, fixed-term parliaments allow for better organised elections. The Electoral Commission has argued that electoral administrators are better prepared since they have more time to prepare postal votes, voters have more time to register to vote and that the general election timetable can last for 25 days, in line with local elections. In addition, the Political and Constitutional Reform Committee highlighted that fixed terms have ‘removed a layer of speculation and political pressure, as the political parties, the general public and the media now have greater certainty about the timetable for the next general election’.

2.3. It avoids multiple elections.

The existence of a fixed-term parliament also stops the undemocratic event of running multiple elections for one party to gain a majority. This would only benefit the richer Conservative and Labour parties who would be the only parties to afford several elections—thereby limiting voter choice over the course of elections.

Reform of the Act

I have argued that the Act embodies an important constitutional principle that should be defended: the power of Parliament, not an individual to call an election. The enshrinement in law of this means any government should work to improve the Fixed-term Parliaments Act, instead of thoughtlessly scrapping it. This can be achieved in the following ways:

1. Legislate to ensure a government is in place at all times

This was a key conclusion of Part I. It has been shown above that the Act creates the possibilities of a government resigning without a replacement able to step in. The Act should be amended to state that if an incumbent government loses a vote on the Queen’s Speech it must remain in place until a Speech is passed or another government is formed following a vote of no confidence. Again, in the interim 14 days, the incumbent government should be legally obliged to remain in power.

The ideal situation, as stated in Part I, would be to follow the Scottish nomination vote and elect the Prime Minister immediately following an election to ensure that the government is swiftly installed and removes the period of uncertainty leading up to a Queen’s Speech.

2. Ensure clarity if a government resigns

It has been shown that it is plausible a government may resign mid-term. A power vacuum must be avoided; but it would make no sense to ban a government (incapable of passing legislation, for example) from resigning.

This specific point has not received much attention. The latest House of Commons Political and Constitutional Reform Committee, for example, failed to examine the issue. However, guidelines should be considered.

A starting point might be to continue in the same vain as the current Act: provide a 14 day period in which a new government (in the case of a collapsed government) must be installed via a vote of confidence in Parliament. The installation of a Prime Minister (in the event of a Prime Minister’s resignation) should not be a statutory requirement as a government may still function, but the Cabinet Manual could be updated to suggest the election by the governing party of a new Prime Minister within a similar timeframe. If a government cannot be installed within the statutory timeframe, then the Act should allow 14 days for the Opposition to form a government (again tested by a vote of confidence). Failing this, the nation should return to the polls.

The aim of any amendment should be to limit the time the UK has without a functioning government to avoid the problems highlighted in Part I. This should be considered in depth by constitutional experts.

3. Reduce Parliament to four years

Several problems have been engendered by the Act’s five year length, including the spectre haunting coalition negotiations and the so-called zombie parliament.

The solution to these problems is to reduce the Act to four years. This will align it with almost all other fixed-term parliaments in Europe, including Germany, Netherlands, and Spain. And moreover, it will put the Act in line with the UK’s recent experience: the average term since 1945 has been 3.7 years.

Four years would allow a government enough time to pass significant legislation and the fixed time period would ensure that departments benefit from the stability afforded by the Act. In addition, four years would ensure that people can vote as frequently as they hitherto have in practice, as Robert Blackburn, Professor of Constitutional Law at King’s College London, has argued.

4. Put an amended Act to the people

This is perhaps a tad more idealistic: constitutional reform should not be enacted by a simple majority in Parliament. As Rory Stewart argues:

Britain is the only advanced democracy left in the world . . . that does not formally distinguish between constitutional law and normal law, and tries to introduce constitutional change by means of simple majorities in Parliament. That cannot be right. Every other country recognises that the constitution exists to protect the people from the Parliament: to protect them from us. We cannot, with shifting single majorities, set about changing the thing that protects the people, which is why every country from America to Italy to Greece to Spain demands super-majorities, constitutional assemblies or referenda.

The Act—which has been described as a ‘major constitutional change in the UK’—has been an archetypal example of playing politics with our constitution. The constitutional law governing when to call an election threatens the freedom of UK voters and should be decided in a referendum, much like the question of Scottish independence. This is a policy the UK has failed to consistently follow for a long time and we are the only state in Europe to combine a fixed-term government with the ability to change or repeal the Act with a simple legislative majority.

Any changes to constitutional procedures should at least not be at the behest of a Parliament motivated by political gain. Many countries, including the USA (in Article V of its Constitution) require at least a supermajority.

Conclusion

This article has revealed fundamental flaws in the Fixed-term Parliaments Act when it is subjected to a stress test. However, this does not mean the act is beyond salvaging: on the contrary, it embodies a key constitutional principle as well as positive practical effects that must be kept.

These advantages can remain with a little reform of the law. Unfortunately, and in spite of all the debate surrounding the Act, reforms are unlikely to be made until 2020. Moreover, with much talk of the Act being repealed (particularly in the case of a minority government post May), it may not survive until this date. (Incidentally, this will lead to an interesting legal debate over whether we would return to the royal prerogative).

The current Act should therefore be analysed by constitutional experts since it has not received adequate research and attention. Ideally, any amendments should be put to the people. The latter point is a tad idealistic, but one can dream.

This is the second part of a series. For the first part, see 'The General Election: Creating a Constitutional Crisis? (Part I)'.

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Tagged: Constitution, Parliamentary & Elections

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