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5 January 2015updated 09 Sep 2021 1:50pm

Stalemate? The legal mechanics of having two general elections this year

What are the legal and constitutional impediments on there being, as some commentators have suggested, two general elections this year?

By Andrew Lomas Andrew Lomas

The general election campaign kicked off in earnest this week, yet the likelihood of an inconclusive outcome refuses to recede. As a result, commentators are turning their minds more seriously to what happens if, as seems possible, both main parties are stuck on 290-odd MPs and no one minority party has enough MPs to produce a coalition with a working majority.

To pre-empt any potential impatience in May, Gus O’Donnell, the former Cabinet Secretary, has been at pains to point out that coalition formation could take a lot longer this time than in 2010: he even went on to suggest that the next Prime Minister might not come from the party with the most seats in a repeat of the 1923 election.

Writers in the Guardian and the FT have gone further and suggested that a Tory-Labour National Government might be the only viable answer. Other reports indicate that the Tories are fundraising on the basis of needing to fight a second general election in 2015 after a short period of minority government. However, the idea of a second general election has a major stumbling block: the Fixed Terms Parliaments Act 2011.

The Act abrogated the prerogative power of the monarch (as exercised by the Prime Minister of the day) to dissolve parliament and call an early election. Instead, parliamentary terms are now fixed at five years, and, under Section 2 of the Act, parliament can only be dissolved early in two scenarios:

First, if two-thirds of MPs pass a motion, “That there shall be an early parliamentary general election”, then there will be a dissolution.

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Second, a simple majority of MPs may pass a motion, “That this House has no confidence in Her Majesty’s Government”. If within 14 days of the no-confidence motion being passed the Commons does not pass a motion, “That this House has confidence in Her Majesty’s Government”, then there will also be a dissolution and an election.

As a starting point then, it will not be in the power of any head of a minority administration to pick when it might suit them to go back to the country to seek a majority.

The possibility for instability following an inconclusive general election outcome in May has led to Fraser Nelson calling for the repeal of the Fixed Terms Parliament Act, citing the example of Sweden – where the threat of a fresh election was enough to bring a recalcitrant opposition into line and pass a minority government’s budget – as demonstrating the efficacy of allowing a Prime Minister the power to choose the time of a general election.

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But this argument seems to neglect two points.

First, there is the political (un)desirability of favouring prerogative powers over ones created and regulated by statute laid before, and debated by, parliament. As a general point, circumscribing the power of the executive to act under the remnants of monarchical power has been a discernible trend within modern political history to: it is unclear how placing an unregulated power back into the hands of the Prime Minister is consistent with this.

Second, there is a constitutional/legal problem. In short, it is not clear what happens to prerogative powers where they have been superseded by statute. The House of Commons Public Administration Select Committee considered this point ten years ago, stating that:

[w]here the Crown is empowered by statute to do something that it could previously do under the prerogative, it can no longer act under the prerogative but must act within the statutory scheme.

While the statute can “expressly preserve the prerogative” this is not the case with the Fixed Terms Parliaments Act: Section 6 merely preserved the powers to prorogue and make proclamations to summon, but not the power to dissolve parliament. The Public Administration Select Committee went on to consider what might happen where a prerogative power has been superseded by statute and the statutory provision is later repealed, noting that it was unclear what would happen but that:

 . . . it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect. And in practical terms, it seems virtually unthinkable that the Government would seek to rely on the prerogative to replace an Act of Parliament, except perhaps in a grave national emergency.

Not all constitutional scholars would agree with the Public Administration Select Committee on this point. Indeed, if an Act were to make specific provision to “revive” a power, then it is surely a statutory power and not a prerogative. Further, the Courts (here and here) take the view that prerogative powers are not abolished by statute but are instead placed into abeyance during the life of the statute, something that might suggest a repeal would return us to the status quo ante.

However, that the point is contentious does not add to the argument that repealing the Fixed Term Parliaments Act would add to stability. While it might be possible to revive the prerogative via repeal, to do so in circumstances where there would be intense jockeying for position after (possibly multiple) attempts to form a government had failed, and where the power to dissolve parliament itself may be subject to judicial challenge, seems like a recipe not a remedy for chaos.

While it is not “virtually unthinkable” that a continuity administration may attempt repeal in such circumstances, quite why this is favourable over the tabling of a simple no-confidence motion as allowed under Section 2 of the Act is not apparent (specifically, if there were a majority for a repeal, there would surely be a majority for an engineered no-confidence vote). That there are flaws with the Fixed Term Parliaments Act – notably setting the term at five instead of four years – is certainly true, but reform must be preferable to repeal in circumstances where repeal represents handing an unregulated power back to the executive.

Nelson finishes his Telegraph piece by stating that, “the British constitution is anachronistic, unwritten and illogical – but it is one of those wonderful things that works in practice, even if it does not work in theory”. Unfortunately, while that may have once been true, we are now reaching the limits of what constitutional historian Peter Hennessy referred to as Muddling Through.

Britain has survived on a back-of-an-envelope approach to constitutional change for generations, but the problem is that, as the fall-out from the Scottish referendum has shown, each successive quick fix has very little space left for any other scrawlings. Various attempts to tidy up or otherwise reform the constitution have left us with an edifice resembling a gigantic tottering Jenga tower and no one knows for sure how many more reforms, repeals or referendums the structure can take before it collapses under the weight of its illogicality.  

In short, if there is stalemate in May, it is not clear that the British constitution will continue to work in practice, but this won’t be a result of the Fixed Term Parliaments Act. Structural changes in British politics – the erosion of class identity and the increased fluidity of party loyalty set against a largely uncontested liberal economic settlement – have contributed to the death of two-party politics and are more responsible for instability than depriving a Prime Minister of the power to call elections whenever he or she likes.

In an era where no party can apparently command the support of more than 35 per cent of the electorate, attention should perhaps be paid to adopting electoral processes that produce more representative outcomes and parliamentary structures that are better able to accommodate the kaleidoscope that British politics is becoming instead of harking back to a by-gone age of prerogative powers.

Andrew Lomas is a pupil barrister and a Labour councillor for Kensington and Chelsea (Colville Ward). He tweets @andrewlomas. Read his Notting Hill Notebook here.