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13 September 2019updated 30 Jul 2021 6:56am

The Fixed-term Parliaments Act has served its purpose by thwarting Boris Johnson

Without the existence of the much-maligned law, MPs would have been helpless against the Prime Minister. 

By Freddie Hayward

Following the government’s unsuccessful attempt to trigger a general election, James Cleverly, the Conservative Party chairman, tweeted: “Opposition parties refusing the Government’s calls for a General Election…The Fixed Term Parliament Act really is an abomination.”

Many have been quick to blame the constitutional reform — introduced by the Conservative-Liberal Democrat coalition government in 2011 — for the current deadlock and crisis in parliament. The law takes away the prime minister’s power to call a general election at a date of their choosing. Instead, the act states that a parliament will last for five years, unless a no confidence motion is passed and, over the ensuing 14 days, no government can command the confidence of the House, or two-thirds of MPs vote for an early election (the current official date of the next election is 5 May 2022). 

It was through the latter mechanism that parliament was dissolved by Theresa May in 2017. At the time, critics proclaimed that the early election signified the failure of the Fixed-term Parliaments Act (FTPA). David Allen Green wrote in the Financial Times that the FTPA “is a mere hindrance that could easily be circumscribed … As an exercise in constitutional tinkering, the check and balance of fixed parliamentary terms has failed”.

It was thought that the opposition would never refuse the chance to unseat the government and, therefore, that the act would not prevent early elections. Owen Jones commented in 2016: “It’s politically almost impossible for an opposition to turn down a general election anyway … Basically the Act isn’t worth the paper it’s written on.”

However, the motion to trigger an early election in 2017 was still approved by parliament, rather than No 10 alone. Parliament may have acquiesced to the prime minister’s wishes but its consent was still required.

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Until recently, this may have seemed unimportant — the opposition had supported the motion in 2017 and were expected to do the same in the future. But recent weeks have proved that when enough is at stake — such as the threat of a no-deal Brexit — the act can be used to thwart the government. In this case, the motive was to stop Boris Johnson’s plan to set up a “parliament vs the people” election, or move the election date to after 31 October in order to force through a no-deal Brexit.

The rejection of an October general election was no easy decision for the opposition parties. On the one hand, they would face ridicule for seemingly lacking the courage to face the people as well as accusations of hypocrisy having previously demanded Johnson face an election. On the other, they wanted to guard against the possibility of No 10 unilaterally moving the date of the election. Most importantly, however, without the FTPA, MPs would not have had the opportunity to consider these pros and cons — the executive could have called an election through mere fiat.

Of course, the FTPA is not an infallible piece of legislation. Its existence is largely owed to the coalition government’s wish to bind both parties into the agreement — to prevent the Conservatives calling an early election to secure their own majority. It was passed in haste and does not account for all scenarios (such as the government calling a vote of no confidence in itself to bring about an election).

Nevertheless, it manages to combine two constitutional virtues: flexibility and limited executive power. The flexibility to hold early elections to break political deadlock and renew a mandate (the intention behind the 2017 general election). And the limiting of the prime minister’s power to call an election (as recent weeks illustrate). The FTPA allows parliament to call a general election when it deems one necessary, while preventing the government from using elections to pursue its own partisan ends.

If James Cleverly wants to get exercised about a constitutional mechanism, perhaps he should look elsewhere.

Freddie Hayward is an intern at the New Statesman. 

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