Fixed-term Parliaments Act 2011

Under section 7(4)–(6) of the FTPA the Prime Minister was obliged to establish a committee to review the operation of the FTPA and to make recommendations for its amendment or repeal, if appropriate. The committee was required to be established between 1 June and 30 November 2020, and the majority of its members must be members of the House of Commons. On 10 November 2020, the House of Commons ordered the establishment of a Joint Committee pursurant to the FTPA and appointed the Commons members of the Committee.[19]

Robert Blackburn QC, a professor of constitutional law, stated that "the status and effect of a no-confidence motion remains largely as it was prior to the Act".[24] Alastair Meeks, however, a lawyer writing on the PoliticalBetting.com website, argued that, as well as removing the Prime Minister's ability to set an election date at a time of their choosing, the FTPA significantly affected the British constitution. It removed the ability of the Prime Minister to make a vote on a policy a matter of confidence in the government, a tool that minority governments and governments with small majorities have used to ensure that legislation is passed in the House of Commons. This put such governments at risk of remaining in power without an adequate ability to legislate, increasing the necessity of coalition government.[3]

David Allen Green, a lawyer and journalist, and Andrew Blick, a legal academic, argued that the FTPA changed little in practice, since the Prime Minister could still, so long as at least a portion of the Opposition agrees, schedule an election at their pleasure.[25][26] Blick also argued that the use of a supermajority requirement for the House of Commons, which is very rare in UK law, represented a move towards entrenched clauses in the UK Constitution.[27]

In 2017 Blick argued alongside Graham Allen, who chaired the House of Commons Select Committee on Political and Constitutional Reform during passage of the FTPA, that the FTPA had failed "to deliver on one of its main stated purposes ... to reduce the discretion possessed by the Prime Minister in being able to determine the date of general elections". Allen and Blick argued, however, that this was an "admirable objective" and proposed that instead of being repealed the FTPA should be amended to provide additional safeguards.[28]

During the passage of the FTPA, Graham Allen stated on second reading that his committee had not received ample notice for adequate scrutiny of the Bill and that there were "so many flaws in the Bill's drafting".[29] It was also reported that Allen was critical that the committee had not had sufficient time to consider whether a four-year term would have been more appropriate than the five-year term stipulated in the FTPA.[30] While he was still Chair of the Select Committee on Political and Constitutional Reform[31] Allen wrote an essay in favour of codifying all the prerogative powers, and referred to his experience in challenging the prerogative powers of war.[32]

According to one political scientist, Colin Talbot, the FTPA made minority governments more stable than in the past, since events that previously might have forced a government out of power—such as defeat of a Queen's Speech or other important legislation, loss of supply, or a vote of no confidence in the Prime Minister rather than the government as a whole—cannot formally do so.[33]

Lord Norton, a Conservative political scientist, argued that the FTPA significantly limited the Prime Minister's ability to obtain an early election, since the Opposition could prevent an election by voting against it.[34] This was borne out in 2019, as the Opposition blocked Prime Minister Boris Johnson's attempt to hold early elections on several occasions.[35] An Act of Parliament for an early election (the Early Parliamentary General Election Act 2019) was then passed, with Opposition support, by a simple majority.

In September 2019 Junade Ali advised in written evidence to the House of Lords Constitution Committee that repeal of the FTPA should be pursued on the basis that, as A. V. Dicey noted, dissolution allows for the executive to appeal to the nation if it feels the House of Commons is no longer supported by the electors, allowing for the resolution of unforeseen constitutional crises by the electorate.[36] Ali argued that "The very legislative chamber subject to dissolution being, in all circumstances, required to consent to such dissolution removes essential oversight in a sovereign Parliament that can make or unmake any law whatsoever".[37] Ali reiterated his argument that even if the FTPA had codified prorogation powers, the executive could instead seek refusal of Royal Assent until an early election was called, which, Ali argues, "would likely cause far greater constitutional outrage" and codification would "threaten to transform political into constitutional crises"[38] This view was supported in a submission by Robert Craig, who stated: "The main justification for the Act appears to reside in an erroneous view that the political power to call an election is inappropriate in a political constitution."[39]

A cross-party parliamentary Joint Committee on the Fixed-Term Parliaments Act, including 14 members of the Commons and 6 peers, was established on 27 November 2020 to review the operation of the Act and make recommendations as to its repeal or amendment.[40] Its report, published on 24 March 2021, concluded that the Act was flawed in several respects: the supermajority requirement imposed by the Act, the committee argued, risks "parliamentary gridlock" and "lacks credibility", as shown by the special legislation passed to circumvent the Act in 2019; the Act unduly circumscribed the powers of the Leader of the Opposition to bring forward motions of no confidence and of the government to declare issues to be matters of confidence; finally, the Act's definition of the 14-day period following successful motions of no confidence was unsatisfactory and may have allowed a government to force an election even in cases where an alternative government could be formed from the existing Parliament.[41] The chair of the committee, Conservative Lord McLoughlin, described the FTPA as "likely to be a short-lived constitutional experiment".[42]

The 2015 general election held on 7 May 2015 was the only use of the FTPA to dictate the date of a general election.[43]

On 18 April 2017, Prime Minister Theresa May announced her intention to call a general election for 8 June 2017, bringing the United Kingdom's 56th Parliament to an end after two years and 32 days. The FTPA permitted this, but required two-thirds of the Commons (at least 434 MPs) to support the motion to allow it to be passed.[44] Jeremy Corbyn, then the Leader of the Opposition and the Labour Party indicated that he was in support of an election. The motion was passed the following day by 522 votes to 13 votes.[45]

As the FTPA required that general elections take place on the first Thursday in May, the date of the next general election after the 2017 election (assuming that no earlier elections were called) would have been 5 May 2022, meaning that the term would have been one month short of five years.

On 17 December 2018, the Labour Party tabled a motion of no confidence in the Prime Minister, Theresa May. As this was not a motion of no confidence in Her Majesty's Government in the form set out in the FTPA, its passing would not have resulted in a general election being called. Arguing that this would have no effect because of the FTPA, May was able to call it a stunt and deny it any time for debate.[46]

The SNP, the Liberal Democrats, Plaid Cymru and the Green Party submitted an amendment to the motion that, if passed, would have changed the motion to meet the requirements of the FTPA. The government subsequently announced that the motion would not be given parliamentary time.

The following day, 18 December 2018, the SNP, the Liberal Democrats, Plaid Cymru and the Green Party tabled a new motion of no confidence in the Government in the form set down in the FTPA. This was the first such motion to be tabled under the terms of the FTPA.[47]

Jeremy Corbyn, then the Leader of the Opposition, tabled a motion of no confidence in Her Majesty's Government on 15 January 2019, after the House of Commons rejected Theresa May's draft agreement on Brexit.[48] Ian Blackford, the Westminster leader of the SNP supported the decision.[49] The motion failed, the ayes having 306 and the noes 325.[50] Nigel Dodds, Westminster leader of the DUP, which had a confidence and supply agreement with the government, expressed the opinion that it was in the national interest for his party to support the government in the motion.[51]

Boris Johnson's government attempted three times to call an early general election by means of section 2(2) of the FTPA. Each motion achieved a simple majority, but did not meet the two-thirds requirement because opposition parties abstained. Eventually Parliament passed the Early Parliamentary General Election Act 2019.

On 3 September 2019, the government tabled a motion under the FTPA to trigger an early general election, requiring the votes of two-thirds of MPs. However, Labour refused to support the motion until legislation to delay a no-deal Brexit had been passed.[52] On 4 September, there were 298 votes for the motion and 56 against, with 288 abstentions, well short of the two-thirds supermajority required.[35] On 6 September, four opposition parties – Labour, the Liberal Democrats, the SNP and Plaid Cymru – agreed not to support any parliamentary vote for a general election until after the next meeting of the European Council, which was scheduled for 17–18 October 2019.[53]

On 9 September, another motion for an early election was tabled by the government. It failed by 293 votes to 46, with 303 abstentions[54][55][56][57]

Parliament was prorogued on the same day, until 14 October.[58] The prorogation was later deemed unlawful by the Supreme Court and proceedings were resumed on 25 September.[59][60][61]

On 24 October 2019, Prime Minister Boris Johnson announced his intention to call a general election via a motion under the FTPA to be tabled on 28 October.[62] Jeremy Corbyn, then Leader of the Opposition, indicated that he would support an election only if Johnson pledged to take a no-deal Brexit off the table.[63] On 28 October, the motion failed despite a vote of 299 to 70 because mass abstentions by the opposition prevented the forming of the two-thirds majority required under the FTPA.[64][65]

No further motions under the FTPA were attempted in the 2017–19 Parliament, as Prime Minister Boris Johnson introduced the Early Parliamentary General Election Act 2019 to the House of Commons on the same day, which triggered an election after it was passed.

The Conservative Party manifesto at the 2017 general election proposed repealing the Fixed-term Parliaments Act 2011.[78] However, Theresa May's government failed to win a House of Commons majority at that election and did not attempt to repeal the act.[79] The Conservative Party reiterated the commitment to repeal the act in its manifesto for the December 2019 election, at which it won a majority. The manifesto stated that the Act "has led to paralysis at a time the country needed decisive action".[5][80] The first Queen's Speech following the election confirmed that "work will be taken forward to repeal the Fixed-term Parliaments Act".[81]

Lord Norton of Louth had commented in 2016 that repealing the Act would require a new Act of Parliament, and that if the duration of parliaments was to be limited, arrangements for this would need to be included in the new Act because the Fixed-term Parliaments Act 2011 had repealed pre-existing legislation governing the duration of parliaments.[17]

After the December 2019 election, on 3 February 2020, a private member's bill to repeal and replace the FTPA was introduced in the House of Lords by Conservative peer Lord Mancroft. The bill would have established five-year parliaments, the next election to be on 2 May 2024, unless an early election is called by royal proclamation dissolving Parliament. This would have substantially restored the position before the FTPA. Additionally, the bill would have confirmed that the monarch has power to prorogue Parliament until a time of the monarch's choosing. Under the bill, the monarch's actions, and government advice to the monarch about those actions, would not have been justiciable. A second reading was not scheduled for the bill, which failed with the prorogation of Parliament on 29 April 2021.[82]

Since the Act abolished the old prerogative powers, for example the royal power of dissolution, some legal experts such as Raphael Hogarth argued that it would not be possible simply to revive them even if that were desired. The Act might instead have been reformed, in particular to specify what steps should occur during what has been called the "messy fortnight" after a motion under the Act is passed and to clarify whether pre-existing types of vote amounting to no confidence, such as rejection of the Budget, continued to require a government's resignation.[83]

This position was rejected in 2020 by the government, which opted to explicitly revive the royal prerogative in its draft legislation repealing the Act.[84] Whether this would in fact constitute a restoration of the prerogative or the creation of a new statutory power is debated by legal experts, with former Supreme Court judges Baroness Hale and Lord Sumption arguing that the prerogative could be revived, constitutional law professor Anne Twomey that it could not, and Stephen Laws, a former First Parliamentary Counsel, stating that "if Parliament wants the power to be the same as it was before 2011, then it is the duty of the courts to see it as such".[85]

The government published on 1 December 2020, for consideration by the parliamentary Joint Committee on the FTPA, a draft Fixed-term Parliaments Act 2011 (Repeal) Bill which would repeal and replace the FTPA.[6] The draft, accompanied by a statement of the underlying principles, provides for revival of the royal prerogative powers as to dissolution of parliament and summoning of a new parliament "as if the Fixed-term Parliaments Act 2011 had never been enacted", with the effect of restoring maximum five-year parliaments. It adds (which is new) that a court "may not question" (a) the "exercise or purported exercise" of those powers, (b) "any decision or purported decision relating to those powers" or (c) "the limits or extent of those powers".[84] Retitled the Dissolution and Calling of Parliament Bill, it was announced formally in the Queen's Speech of 11 May 2021 and introduced to Parliament the following day.[86][87] The Dissolution and Calling of Parliament Act was granted royal assent on 24 March 2022, repealing the Fixed Term Parliaments Act and the Early Parliamentary General Election Act 2019 as part of the act's provisions.[7]