How could the Fixed-term Parliaments Act 2011 be improved?

By: Thomas Fleming and Petra Schleiter

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.