Much has been made of Rishi Sunak’s decision to call an ‘early’ general election. But 4 July is only ‘early’ relative to the latest date an election could legally be held, in January 2025, and we shouldn’t be surprised that the Prime Minister hasn’t waited until then. Speed limits are a useful analogy – stick with me on this. The maximum on a country lane is 60mph, but it’s dangerous to aim for that speed, and you’re not expected to do so. It’s a limit rather than a target. It would be similarly reckless for any PM to push against the parliamentary deadline and risk getting boxed in to holding an election on the last possible date. So, we really shouldn’t label it ‘early’ when a PM takes the obvious course and merely uses their recently-restored legal power to choose when we vote.
The salient point is that the Prime Minister has this power at all.
It was resurrected only two years ago, having been the historical norm until 2010. Since then, the traditional stability of the legal and constitutional position has been cast aside. In just eleven years, two substantive acts of Parliament were passed, each changing the rules governing the timing of general elections. In addition, Parliament twice voted to sideline the overarching legislation and hold an election anyway. After such upheaval, have we now returned to the historic status quo, and what were the constitutional merits, or otherwise, of each legislative change?
Fixed-term Parliaments Act 2011
When the Liberal Democrats entered coalition with the Conservatives after the 2010 general election, several constitutional issues formed part of the agreement, formally or otherwise. One such was an early referendum aimed at changing the voting system for UK general elections; a LibDem shibboleth, which was ultimately to fail. Another proposal, which did come to pass, was the introduction of five-year, fixed-term parliaments, which swept away the long tradition of prime ministerial choice.
Whether this was really about furthering democracy and the creation of stable government, or merely the result of political horse-trading to enable the rose garden announcement, is a matter for debate. It actually suited both parties. A guarantee of five years in government would have been highly attractive to the Liberal Democrats, for whom this was a rare opportunity to wield power at a national level. Similarly, it provided reassurance for the Conservatives that the coalition was less likely to fall apart in the wake of some existential disagreement, causing an election and potentially cutting short their return to government. Whatever the motivation – political expediency or more lofty aims – the deal was done.
The measure was enacted a year later, via the Fixed-term Parliaments Act 2011 (FTPA). The main provision was that general elections would, by default, be held on the first Thursday in May of the fifth year after the previous election. In other words, barring any calendar-based oddities, each parliament would last five years; the historic right of a PM to call an election at the time of their choosing was removed. This was a big moment.
Well, almost. Prime Ministers do not give away their powers quite so easily, and Parliament always conspires to retain some measure of control. Thus, the FTPA had some significant ‘buts’ baked into its otherwise unequivocal provisos. General elections could, indeed, be held ‘early’ – before the five years are up – via two means. The first was a vote of no confidence in the Commons against the government, which required only a simple majority. The second was a vote by the Commons specifically in favour of an early election, which needed a qualified majority of two-thirds of all MPs to pass.
In the event, neither route was taken during the 2010 Parliament, and accordingly the next general election was held on the date laid down by the FTPA – 7 May 2015. But that was to be the one and only time the Act actually gave rise to a five-year term. Just two years later, Theresa May achieved the necessary two-thirds majority in the Commons to call the 2017 general election. Then in 2019, Boris Johnson tried the same thing. He failed, three times, to reach the necessary qualified majority threshold, and so eventually circumvented the FTPA using an entirely new device – the so-called Early Parliamentary General Election Act. This required only a simple majority, and allowed an early election to take place whilst technically leaving the FTPA in place. But by now the original Act had been rendered virtually meaningless and was fatally wounded. It was only a matter of time before it was to be put out of its misery altogether.
Dissolution and Calling of Parliament Act 2022
The Conservative Party manifesto of 2019 pledged to repeal the Fixed-term Parliaments Act, and the measure was duly included in the Queen’s Speech following Boris Johnson’s election victory. Repeal, however, was not as straightforward as it seemed. The problem, as the eminent constitutional expert Lord Norton of Louth had pointed out, was that an entirely new Act would be required. Merely repealing the FTPA would not work, since it had itself repealed all pre-existing legislation determining the maximum lengths of parliaments and arrangements for calling elections. Getting rid of it without putting something in its place would create a massive constitutional black hole.
And so, in 2020, the government published the draft Fixed-term Parliaments Act (Repeal) Bill, which morphed into the Dissolution and Calling of Parliament Act 2022. It repealed the FTPA and revived the traditional powers of the Prime Minister to advise the monarch to exercise the royal prerogative and call an election at any time. It reinstated five-year terms of Parliament as a maximum; indeed, Parliament is automatically dissolved on the fifth anniversary of it first convening, immediately triggering a general election. However, no parliamentary permission of any kind has to be sought or granted for the Prime Minister to call an election at any time before this five-year deadline. As such, the situation had returned to its historic norm, and the traditional position that existed prior to 2010 has been restored.
It’s under these arrangements that Rishi Sunak stood in the pouring rain in Downing Street on 22 May and called the general election. It was a full seven months before the current Parliament was due to be automatically dissolved, but it would be surprising if any Prime Minister, given the choice, ever allows that to happen. The new Act has restored one of the hitherto jealously-guarded electoral weapons in a PM’s armoury: the element of surprise when it comes to the timing of an election. The PM can go to the country on a date which seems most politically advantageous, and wrong-foot the opposition – as well as many of their own MPs, it would seem.
Apart from the well-rehearsed arguments over whether elections should be timed for the benefit of the government rather than the country, there’s another difficulty with the restored system: the longer a parliament runs, the more speculation mounts as to when the election might be called. Westminster becomes obsessed with the guessing game, and the ‘zombie parliament’ effect takes hold. Nothing gets done because everyone – MPs, officials and Whitehall – are all anticipating a short-notice election. You wouldn’t have that with a fixed-term parliament, the argument goes. Maybe not, but instead of a zombie, you risk getting a lame duck. If everyone knows Parliament will end at a specified date in the future, the election campaign starts two years in advance and nothing substantive gets done. It’s like the second term of a US president.
Constitutionally and legally, we’ve been on a rollercoaster. After a long period of settled arrangements, we’ve had a frenetic eleven years of legislative change and parliamentary chicanery. Laws have come and gone and have even been circumvented altogether when it suited the government or parliament of the day. Finally, we’re back to square one.
It’s hard to imagine any future Prime Minister voluntarily giving up the power to decide the date of a general election. Political expediency forced the move in 2010, but it was to prove unsustainable, undesirable and ultimately unworkable. We really shouldn’t be surprised that the status quo has been restored, or that the current PM has exercised his resurrected constitutional right and is sending us to the polls on 4 July.
Just don’t call it an ‘early’ election.
Peter Heaton-Jones.
Peter Heaton-Jones served as an MP for two terms from 2015, standing down in 2019. He was parliamentary private secretary to the lord chancellor and the secretary of state at the Department for Work & Pensions.
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.