The Fixed-term Parliaments Act 2011 made major changes to the way that general elections are called in the United Kingdom. It took away the prime minister’s ability to call early elections at a time of their choosing, and handed this power instead to parliament. This has proved controversial. The Act is about to be reviewed by a joint committee of parliament. This review was required by the original legislation, and is scheduled to report by the end of February 2021. This post considers how the Act has worked to date and how it might be improved. We argue that its central provisions have been successful, and should be retained. However, given the experience with the Act, legislators ought to consider giving parliament greater control over the timing of early elections, and of regulating prorogation. Has the Fixed-term Parliaments Act achieved its main objectives? Before the Fixed-term Parliaments Act, prime ministers could dissolve parliament and call early general elections at a time of their choosing. This gave them an unfair electoral advantage over opposition parties, by allowing prime ministers to schedule elections when they expected to win. When it came to election timing, the incumbent prime minister was firmly in control and able to exploit positive public opinion shocks, favourable economic conditions and opposition unpreparedness. The Act aimed to limit this unfair advantage by transferring the power to call early elections from the government to parliament. An early election can now only occur if two-thirds of MPs vote for one (as occurred in 2017), if MPs pass a motion of no confidence in the government and don’t approve an alternative, or if parliament passes legislation circumventing the Act (as it did in December 2019). The Act has been largely successful in its aims. Of course, the UK has had two recent early general elections. But the Act was intended to ensure that early elections required the approval of parliament, not to make them impossible. This has clearly been achieved. Both Theresa May and Boris Johnson had to seek MPs’ approval in some form before calling early general elections. Indeed, Boris Johnson’s initial attempts to do so were thwarted by a lack of parliamentary support. Given that the Act has largely achieved its main goals, its central provisions should be retained. As a matter of procedural fairness, election-calling should remain a matter for parliament, not government. Just like no athlete gets to trigger the start gun for their race, no prime minister should be able to trigger an electoral race by calling an early election. Should parliament be able to set the date of early elections? Although the authority to call early elections now lies with parliament, the Act still enables the prime minister to exercise discretion in scheduling the date of early elections. They might propose a date when seeking parliament’s support for an early election – as Theresa May did in 2017 – but that proposal is not binding on them. Prime ministers’ discretion in choosing polling day is limited. But it can still be consequential when parliament faces other hard deadlines. For instance, in 2019, the opposition feared that calling an election in October would allow Boris Johnson to delay the date past 31 October (the formal Brexit deadline at the time) and engineer a ‘No Deal’ Brexit. The Fixed-term Parliaments Act currently gives MPs no way to guarantee that an early election takes place on a specific date. The only way to do so is by passing legislation that circumvents the Act, calls an early election, and names an election date in law. This is exactly what occurred in 2019. The current situation is undesirable for two reasons. First, it leaves some scope for the executive to manipulate the date of early elections for partisan advantage. Second, the fear of such manipulation might limit MPs’ willingness to vote for elections that they would otherwise support. The Fixed-term Parliaments Act could be updated to address this problem, by allowing MPs to specify the date on which early elections should be held. The exact process for ensuring this would depend on the route by which the early election was called. Section 2(2) of the Act allows MPs to call an election by passing a simple motion “That there shall be an early parliamentary general election”. This might be amended to ensure that the motion names the precise date of the election, and that this is legally binding. This process is more complicated when early elections are triggered by a no-confidence vote under Section 2(3) of the Act. In such cases, an election is automatically triggered if MPs do not support a motion of confidence in a government within 14 days. This gives no obvious opportunity for MPs to specify the date on which such elections should be held. The Act might therefore be updated to mandate a fixed period between when such elections are triggered, and when they take place. Should parliament control prorogation? The Fixed-term Parliaments Act removed the prime minister’s power to dissolve parliament, but not their power to prorogue parliament. In fact, Section 6 of the Act specifically clarifies that it does not affect prorogation. Prorogation ends a parliamentary session, beginning a period when neither House can sit. This is normally a routine and uncontroversial process. However, the executive currently decides the timing and length of prorogation without any formal involvement of parliament. There are major downsides to the current rules. In particular, the government can use its control of prorogation to suspend parliament and deliberately limit parliamentary accountability and scrutiny. This was exactly the accusation levelled at the Johnson government in 2019, when the Supreme Court overturned the government’s attempted five-week prorogation. The UK’s current constitutional rules thus allow the executive to suspend the parliament to which it is supposed to be accountable. As well as being normatively undesirable, the UK’s current prorogation rules are also unusual. Most comparable European parliaments have a constitutional right to determine when they sit. This prevents them from being suspended by the executive against their wishes. Most of these countries even make it possible for opposition parties to insist on parliament sitting. The British government therefore has significantly more power to suspend parliament than its European counterparts. These issues might be addressed by placing explicit statutory limits on prorogation. These limits might let parliament itself decide the scheduling of prorogation, allow parliament to veto or reverse prorogation, or simply place explicit limits on the purpose, length, and timing of prorogation. Any of these changes would limit government’s ability to use prorogation for inappropriate political purposes, so would strengthen parliament. Providing a clearer legal basis for prorogation might also help to avoid future conflicts between the judiciary and executive of the kind seen in autumn 2019. An updated Fixed-term Parliaments Act would be an appropriate place for regulating prorogation in statute. The original Act took the prerogative power of dissolution and placed it on a statutory footing. In doing so, it moved power from the government to parliament. An updated Act might do exactly the same with the closely-related prerogative power of prorogation. The Fixed-term Parliaments Act 2011 has largely achieved its intended goals. However, recent events have highlighted that it could be improved further. In particular, an updated Act might give parliament more say over the timing of early elections and prorogation. Doing so would move power from the government to parliament, and would be wholly consistent with the original goals of the Act. The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society. Petra Schleiter is Professor of Comparative Politics and Joint Head of the Department of Politics and International Relations at the University of Oxford. Dr Thomas Fleming is a Lecturer in Politics at the University of York. We use some essential cookies to make this website work. We’d like to set additional cookies to understand how you use GOV.UK, remember your settings and improve government services. We also use cookies set by other sites to help us deliver content from their services. 2011 CHAPTER 141.These Explanatory Notes relate to the Fixed-term Parliaments Act 2011 which received Royal Assent on 15 September 2011. They have been prepared by the Cabinet Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2.The Notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. 3.The Fixed-term Parliaments Act 2011 has 7 sections and 1 Schedule. A background summary of the Act as a whole is provided below. Commentary is then provided on individual sections and the Schedule. 4.The Fixed-term Parliaments Act 2011 provides for fixed days for polls for parliamentary general elections. The polling day for elections will ordinarily be the first Thursday in May every five years. The first such polling day will be on 7 May 2015. The Prime Minister will be able to defer, by statutory instrument, the polling day for such parliamentary general elections to a day not more than two months later than the scheduled polling day. 5.The Act also makes provision to enable the holding of early parliamentary general elections. The trigger for such general elections would be either a vote of no confidence in the Government, following which the House of Commons did not pass a motion of confidence in a Government within 14 days, or a vote by at least two-thirds of all MPs in favour of an early election. 6.The Queen does not retain any residual power to dissolve Parliament, which will occur automatically under the provisions in the Act. 7.The provisions contained within the Fixed-term Parliaments Act 2011 stem from the Government’s publication The Coalition: our programme for government, which included the following commitment:
8.This document can be found on the Cabinet Office’s website:
9.The Fixed-term Parliaments Bill was introduced to the House of Commons on 22nd July 2010 and received Royal Assent on 15th September 2011. 10.The Bill was the subject of a report by the Political and Constitutional Reform Committee, published on 16th September 2010 (2nd Report of Session 2010-11) a copy of which can be found at: 11.The Government response to this Report was published as a command paper (Cm 7951) on 8th November 2010. This is available at:
12.The House of Lords Constitution Committee published their Report on the Bill on 16th December 2010 (8th Report HL Paper 69) a copy of which can be found at: 13.The Government response to this report was published as a Command Paper (Cm 8011) on 28th February 2011. This is available at:
14.The Delegated Powers and Regulatory Reform Committee published its recommendations on the Bill on 10th February 2011 (10th Report of Session 2010-2011). This is available at: 15.The Government replied to the Committee’s findings on 8th March 2011 and a copy can be found here:
16.Prior to the commencement of this Act, the maximum duration of a UK Parliament was five years, as dictated by the Septennial Act 1715 (as amended by the Parliament Act 1911). Under that Act if a Parliament was not dissolved in the period up to five years after the day on which it was summoned to meet, it automatically expired. The prerogative power to dissolve Parliament before the maximum five-year period was exercised by Her Majesty, conventionally on the advice of the Prime Minister. This prerogative power was abolished by this Act. 17.A new Parliament was summoned by proclamation issued by the Queen on the advice of the Privy Council. That proclamation ordered the issuing of the writs for parliamentary elections and appointed a day and place for the meeting of the new Parliament. In practice, the proclamation dissolving the previous Parliament summoned the new one, triggering a general election. 18.The law governing the proceedings at a parliamentary election is set out principally in the Representation of the People Act 1983. In particular, section 23(1) of that Act provides that such proceedings are to be conducted in accordance with Schedule 1 to the Act which sets out the Parliamentary Elections Rules. 19.Rule 1 of the Parliamentary Elections Rules provides that the proceedings at an election must occur on the basis of the timetable set out there. In particular:
20.Rule 2 provides that the following days are disregarded in computing any time period in the timetable: Saturday, Sunday, Christmas Eve, Christmas Day, Good Friday, bank holidays and any day appointed for public thanksgiving or mourning. 21.The Government wrote to the Presiding Officers of the Scottish Parliament and the National Assembly for Wales on 17th February 2011 proposing that if the Scottish Parliament and the National Assembly for Wales passed resolutions, with the support of at least two-thirds of all members, agreeing that the 2015 Scottish Parliamentary and the National Assembly general elections should be moved a year later or earlier, the Government would then be willing to table an amendment to the Fixed-term Parliaments Bill which would, if accepted, make this change. A copy of this letter can be found at:
22.A motion was passed in the Scottish Parliament on 3rd March 2011 calling on the UK Government to bring forward provision to defer the 2015 Scottish Parliamentary general elections until 5th May 2016 in order to avoid the two sets of elections coinciding. See section 4. 23.A similar motion was passed in the National Assembly for Wales on 16th March 2011. See section 5. 24.The Fixed-term Parliaments Act 2011 generally extends to the United Kingdom, except that any amendments or repeals made by the Act have the same extent as the provision which is being amended or repealed. Because the subject matter of this Act is reserved for the purpose of the Scotland Act 1998, non-devolved for the purpose of the Government of Wales Act 2006 and excepted for the purpose of the Northern Ireland Act 1998. 25.Section 1 states that the polling day for the next parliamentary general election is to be 7 May 2015. Subsection (3) sets out that the polling day for every subsequent general election is to be held on the first Thursday in May five years from the date of the last election. Subsection (4) provides that where an early general election takes place under section 2 of the Act, the next general election will generally take place on the first Thursday in May in the fifth year from the date of the last election. However, if the early election is held before the first Thursday in May in an election year, the next general election will be held on the first Thursday in May in the fourth year from the previous election. The effect being when an early general election is held, the election day of the first Thursday in May is restored at the next election, and the duration of the Parliament resulting from the early election will normally be no more than five years in length. 26.Subsection (5) provides a power for the Prime Minister to defer the date of a scheduled parliamentary general election under section 1 by a period of no more than two months. This is to accommodate short term crises or other conditions which might make it inappropriate to hold the election on the scheduled date, for example, a repeat of the foot and mouth crisis which led to the postponement of the local elections in 2001. The power to defer by up to two months would be exercisable by statutory instrument subject to the affirmative procedure. This means that the order could not be made until it had been approved by both Houses of Parliament. Subsection (7) provides that any such draft order must be accompanied by a statement from the Prime Minister setting out his reasons for proposing a change to the polling day. 27.Section 2 provides for the circumstances in which an early parliamentary general election can be held, that is, an election with a date of poll which must be earlier than the date of poll for an election under section 1. Subsection (1) provides for an early election if the House of Commons passes a motion that there should be such an election. It also states that where such a motion is passed on a division of the House of Commons, the number of members who voted in favour must be at least two thirds of the number of seats in the House, including any vacant seats. 28.Subsection (3) provides the second trigger for an early election. Where the House of Commons passes a motion of no confidence in the Government, an election must be held, unless within the period of 14 days, the House passes a motion expressing confidence in a Government. The intention is to provide an opportunity for an alternative Government to be formed without an election. 29.Subsections (2), (4) and (5) set out the exact form of motions for early election, votes of no confidence and of confidence in the Government respectively, which can be passed by the House of Commons in order to generate an early general election. 30.Subsection (7) provides that the Queen sets the date for an early election by proclamation on the recommendation of the Prime Minister. This means that, taken in conjunction with the rules in section 3, a suitable date for an election can be set. Dissolution does not follow immediately on the triggering event, but can be timed so that, for example, essential business can be completed or the date of the election can be set to fall on a Thursday. 31.Section 3 makes the key necessary changes to elections law and the law concerning the meeting of Parliament in light of fixed days for elections. It:
32.Subsection (5) sets out the definition of “working day” for the purposes of calculating the period between dissolution and the date of the poll. This definition is the same as the definition in rule 2 of the Parliamentary Elections Rules. The definition includes as days which are not working days, bank holidays and days appointed for public thanksgiving or mourning. It is possible for such days to be fixed or appointed from time to time thereby bringing forward the day for dissolution. The effect of subsection (6) is that the fixing or appointment of a bank holiday or day for public thanksgiving or mourning is to be disregarded if it would bring forward dissolution to a day which is earlier than 30 days after the day on which the fixing or appointment occurs. The purpose of this provision is so that there is no uncertainty about the date of dissolution at a certain point in advance of dissolution. 33.Section 4 provides that the general elections for the Scottish Parliament which were scheduled to take place on 7 May 2015 will instead be scheduled to take place on 5 May 2016. Subsequent ordinary general elections will be scheduled to be held on the first Thursday in May in the fourth calendar year after the May 2016 general elections. 34.The provisions under the Scotland Act 1998 which relate to setting and varying the date of ordinary and extraordinary general elections still apply. 35.Section 5 provides that the general elections for the National Assembly for Wales which are scheduled to take place on 7 May 2015 will instead take place on 5 May 2016. Subsequent ordinary general elections will be scheduled to be held on the first Thursday in May in the fourth calendar year after the May 2016 general elections. 36.The provisions under the Government of Wales Act 2006 which relate to setting and varying the date of ordinary and extraordinary general elections still apply. 37.Subsection (1) preserves the Queen’s power to prorogue Parliament. Subsection (2) preserves the traditional way in which the sealing of a proclamation summoning a new Parliament under the Great Seal of the Realm is authorised, which is by Order in Council rather than a warrant under the Royal Sign Manual. Subsection (3) introduces the Schedule of consequential amendments etc. 38.Subsection (1) contains the short title of the Act, and subsection (2) provides that the Act comes into force on Royal Assent. 39.Subsections (4)-(6) provide that the Prime Minister is to make arrangements in 2020 for a committee to carry out a review of the operation of the Act. If appropriate, the committee is to make recommendations for the repeal or amendment of the Act, and the Prime Minister must make arrangements for the publication of the committee’s findings and recommendations. A majority of the members of the committee are to be MPs. 40.The Schedule contains amendments of Acts of Parliament. The key amendments are:
41.The Act came into force upon Royal Assent. 42.The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament. |
Which of the following is the best description of Great Britains fixed term Parliaments Act of 2011?
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