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Now the Conservative Party leadership election has come to an abrupt halt with the withdrawal of Andrea Leadsom, Theresa May will become Prime Minister on Wednesday. Calls to hold a ‘snap’ general election, which have been heard ever since the referendum will intensify on the basis that May lacks a mandate to govern. Already, senior figures from the Labour, Liberal Democrat and Green Parties have called for a general election. This also chimes with arguments of a more constitutional nature advanced by Michael Gordon (amongst others) that a general election would be the appropriate democratic response to the outcome of the referendum.
However, holding a ‘snap’ general election is not as straightforward as it has been portrayed, particularly by politicians and the media. Not only is it against historical precedent, but it is no longer solely the Prime Minister’s decision and may require legislation. For a ‘snap’ general election to be held these issues must be considered.
(1) There Is Little Precedent for One
Some of the speculation over an early general election is predicated on the proposition that because there will be a new Prime Minister without a general election they lack legitimacy, or a mandate from the electorate. Consequently, there should be a general election to grant democratic legitimacy to the new Prime Minister. This is a misreading of the constitution. The Prime Minister is the leader of the party who enjoys a majority in the House of Commons. They then form a government drawn from their party. This is because they can command the confidence of that House. Should the Prime Minister resign at any time, it is up to the party in government to choose a successor according their leadership rules. This is what has happened with the Conservatives selecting Theresa May and reflects the parliamentary rather than presidential nature of the UK constitution.
This is shown in the six instances since 1945 of a Prime Minister resigning and handing over to their successor without a general election. The most recent example is in 2007 when Tony Blair announced his intention to resign, triggering the process within the Labour Party for a leadership contest, which resulted in Gordon Brown being unopposed for the leadership. Famously, Brown declined to hold a early general election. Similarly, Harold MacMillan and Alec Douglas-Home both became Prime Minister in 1957 and 1963 respectively, and neither held a ‘snap’ general election. It must be noted that Eden held a general election on becoming Prime Minister in 1955, but it had already been four years since the election in 1951 and an election was due in 1956 in any event. In short, there is no constitutional need for a general election solely because the Prime Minister has changed. The argument for an early general election needs to be made on a different basis.
That different basis may be that we live in unprecedented times, and that the basis of Brexit requires the democratic legitimacy that can be acquired through an election. Even if that is accepted and an early general election is desirable, holding an early general election is no longer solely within the Prime Minister’s gift. It used to be the case that within the maximum period of five years between elections the Prime Minister could at any time, under the royal prerogative call a general election before those five years elapsed. During periods of relative political stability, it was common for Prime Ministers to call a general election around four years following the previous one. For example, Blair called elections in 2001 and 2005 respectively.
However, under the Fixed-term Parliaments Act 2011, this power has been abolished. It is now the law that we have fixed-terms of five years, with the effect that the next general election is scheduled to be held on 7th May 2020. The Act provides that an election can only be held prior to this if one of two circumstances occur. At present, both of these appear unlikely.
A more likely method is to look at the villain of the piece itself, the Fixed-term Parliaments Act 2011. As an Act of Parliament like any other, it is liable to amendment or repeal. Legislation would have the advantage of requiring an ordinary majority in each House, rather than the 66% vote as required by one limb of the Act, or the strange spectacle of Conservatives voting against their own government as required by the other.
New legislation could be introduced that repealed the 2011 Act. However, any legislation would have make some provision for the timing and holding of general elections. As explained by Alexander Horne and Richard Kelly, the repealing legislation could expressly provide for the old rules under the prerogative to be revived (although this would give them a statutory rather than common law basis).
Alternatively, a new scheme could be enacted by replacing the 2011 Act entirely. However, the introduction of the 2011 Act was itself controversial and reaching agreement over a new scheme might be difficult to achieve. In any event, any repealing legislation would have to go through the normal process for an Act of Parliament. This means that the approval of the House of Lords is needed, where the Government lacks a majority and has experienced difficulties in getting its legislation through (see the Tax Credits fiasco last autumn). Further, the House of Lords could attempt to block the passage of the legislation as the Salisbury Convention would not to apply, as the government would not be implementing a manifesto commitment. In sum, it cannot be simply assumed that any legislation would easily pass the House of Lords. Yet, as Lord Norton states, there is a paradox here, because if there was an agreement between the parties, then a bill would be unnecessary as the provisions under the bill (especially the 66% point) as discussed above could be used.
To achieve an early general election, a better approach would be to amend section 1 of the Act, setting a date for the next general election, meaning that from that point the five-year fixed period as provided for by the Act is effectively re-set. This would retain the principle of fixed-term parliaments, and not require require a wholesale reconsideration of the mechanisms of the Act. Consequently, it would be a simpler piece of legislation than a full-scale replacement would be and if the argument for an early general election is persuasively made, it would be likely to get through both Houses more quickly than a full replacement of the 2011 Act.
Changing the rules governing the holding of elections is a fundamental constitutional change for any democratic system, which requires serious consideration. When the 2011 Act was passed, it was criticised for being rushed to satisfy a need for the Conservatives and the Liberal Democrats to bind each other into the coalition government for the full five-year period. It would be unwise to repeat that mistake and rush into changing the rules once again, as arguably the last thing the country needs is another major constitutional issue to resolve. In present circumstances, the best way to achieve an early general election is to go with the grain of the Fixed-term Parliaments Act and harness the existing structure rather than to dismantle it. This may be unsatisfactory, as longstanding concerns about the Act remain (see amongst others, Carl Gardner’s book What a Fix-Up!), but these need to be considered in less fraught times. The obvious time to consider these concerns is when the Prime Minister appoints a committee to consider the future of the Act in 2020 as required under section 7 of the Act.
Overall, it remains incumbent on those arguing for an early general election to explain how they propose that one can be held and how the difficulties discussed in this piece could be overcome. Merely asserting that one should be held is only discussing half of the issue.
Dr Craig Prescott, University of Winchester (@craigprescott)
(Suggested citation: C. Prescott, ‘A “Snap” General Election? It’s Far from a Certainty’, U.K. Const. L. Blog (13th Jul 2016) (available at https://ukconstitutionallaw.org/))