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Theresa May has deftly launched a gambit to get around the core purpose of the Fixed Term Parliaments Act 2011 – and all signs are that it will succeed without delay. The purpose of that Act (for a tidy summary of resources see here) was to stop prime ministers from calling an election at a time that suited the Government’s rather than the country’s political future. The Coalition Government formed between the Conservatives and Liberal Democrats in 2010 gave effect to the insistence by the Liberal Democrats that legislation put an end to the Prime Minister’s power to call an election at will. The Act prescribes five year periods between elections, alterable only by (1) the passing by the House of Commons of a motion of non-confidence without subsequent withdrawal, or (2) the passing by the House of Commons of a motion calling for an early election by a majority of two-thirds. The election that follows an early election will occur in May of the fifth calendar year following the early election.
On currently laid plans, Prime Minister May would hold an election on 8 June 2017 and will seek a two-thirds majority support for a motion to authorize it. If successful, the new Parliament – and hence Government – will remain in place until May 2022. The leaders of both the Liberal Democrats and the Labour Party almost immediately pledged support.
In my view, the move is constitutionally problematic, and support for it by the Liberal Democrats and Labour Party is surprising.
The reasons given by Prime Minister May in her public statement is that an election is needed in the interests of stability. She outlines several sources of instability: a Labour Party statement that it might refuse to support withdrawal agreement that the executive would strike with the European Union within two years from giving article 50 notice of intent to leave the EU; that the Liberal Democrats (who hold nine seats in the Commons) want to ‘grind the business of Government to a standstill’; that the Scottish National Party (who hold fifty-four seats) will vote against the Great Repeal Bill; and that the unelected Lords (who will remain unaffected by this election, and who backed down after its own divisive attempt to seek the most anodyne amendments to the European Union (Notification of Withdrawal) Bill was rejected by the Commons) ‘vowed to fight us every step of the way.’ All these reasons seem transparently weak. The Lords has made clear that it will not block Brexit. There is no need for another manifesto commitment to implement the referendum result (hence engage the Salisbury-Addison Convention). And the Commons can anyway override any obstruction under the Parliament Act 1949. The Labour Party – the only credible threat in the Commons – has already committed firmly to Brexit, and is bound to keep that commitment because its political survival in the heartlands depends on it.
So why call the election? The simple reason is that it would do either or both of two things for the benefit of the Conservative Party. First, it would increase its majority and allow it to better manage backbench revolts on points of procedure during the Brexit process, and make parliamentary approval of the withdrawal agreement a foregone conclusion. Second, and much more importantly, it would give the Government an additional two years in power at a crucial point in Brexit negotiations. There is no other political reason for calling an election now.
My view is that the gambit is constitutionally suspect in three ways.
There are three arguments for an early election that might at first seem plausible, but which in my view crumble on close inspection. One is that that the Labour Party has laid a credible threat to vote against the withdrawal agreement agreed by the UK Government and European Council for the wrong reasons. The Government committed in its Brexit White Paper (1.12) to putting the agreement to a vote in both Houses of Parliament. The withdrawal agreement would very likely be a signed treaty, and would thus be subject to approval by the European Parliament and UK Parliament (under the Constitutional Reform and Governance Act 2010) respectively, before it would become binding. But as I just said, this type of motive fits with neither the stated position nor interests of the Labour Party. At any rate, were Labour to derail the withdrawal agreement for political gain rather than legitimate opposition to its content, that would be the time to call an early general election. It would make Labour accountable for the action, and would have the bonus of giving the public an election at a time when the options for the future have come into much sharper focus.
A second argument is that the Government would have a stronger hand in negotiations by encouraging EU confidence in the Prime Minister’s capacity to deliver on her bargaining commitments. On this rationale, her Government would have enhanced ‘unanimity, strength and despatch’ to conduct foreign negotiations. But it already has all that insofar as Parliament has no control whatsoever on its bargaining strategy. The only real control is downstream approval of the final agreement, take it or leave it. But if May’s gambit is to ensure that Parliament cannot obstruct ratification or approval of the withdrawal agreement then here too the objective is to circumvent the core purpose of another constitutional instrument, the Constitutional Reform and Governance Act 2010, Part II of which seeks to affirm Parliament’s real control over treaty ratification (previously embodied in the constitutional convention known as the Ponsonby Rule).
Perhaps, there is one last reason that has an air of plausibility: that the Prime Minister’s Government requires a fresh mandate and a full five year run to make the hard choices without having to face a looming general election. This is not the precise argument offered by the Prime Minister, but it overlaps with some of the claims in her speech, especially her closing invitation to ‘let everybody put forward their proposals for Brexit and their programmes for government.’ That would be a good reason to hold an early election, if the positions of the parties were not already about as clear as they will be at this stage of negotiations, and standing in reasonably clear relation to the views of their membership and voter-base. And the Government does not need any stronger a general mandate to get on with bargaining than that provided by the overwhelming support for the European Union (notice of Intent to Withdraw) Act 2017. If taking the political temperature and seeking a renewed mandate are viewed as desirable, then May 2020 (the existing election schedule) would be a much better time to check in. At that point, the basic terms of the divorce should be reasonably clear and the minutiae of the future relationship would need to be negotiated.
Ultimately, the Prime Minister repeatedly emphasized the need for ‘strong leadership’ in her statement. But the absence of strong leadership is hardly the main problem of the British constitution. What is in fact needed is a stronger Parliament, one that evinces a measure of political pluralism and which takes evidence, listens and reports on a broad range of related issues. Only then can the multifaceted nature of the many problems Brexit will engender both nationally (with respect to the devolved governments for a start) and internationally get a proper inspection. What the Prime Minister refers to as ‘instability’ is in fact how a parliamentary democracy is meant to function.
Jeff King is a Professor of Law at the Faculty of Laws, University College London. The author thanks Nick Barber, Tom Hickman, Gavin Phillipson and Stephen Tierney for comments.
(Suggested citation: J. King, ‘May’s Gambit’ U.K. Const. L. Blog (19th Apr 2017) (available at https://ukconstitutionallaw.org/)).