December 2014
  • From Flexible to Semi-Fixed: The Fixed-Term Parliaments Act

    Philip Norton

The Fixed-term Parliaments Act 2011 provides for semi-fixed term parliaments in the United Kingdom, replacing the previously flexible terms within a statutory maximum limit. The genesis of the Act was political and the transition from proposal to Act was marked by significant changes. The Act translates, albeit imperfectly, a constitutional convention into legislative form and has significant constitutional consequences. It removes not only the power of the Prime Minister to seek an opportunistic election, but also the power to designate a vote as one of confidence in the government. Its provisions are not engaged if a government elects to resign without losing an explicitly worded vote of no confidence.

Constitutional conventions; dissolution of Parliament; elections; fixed-term elections; Fixed-term Parliaments Act 2011; Parliament Act 1911; royal prerogative; UK Parliament; votes of confidence.
Click here to read extracts of the article

Prior to 2011, the determination as to when the UK Parliament should be dissolved and writs issued for the election of member of the House of Commons fell within the royal prerogative, that is, powers traditionally held by the Crown and not displaced by statute. The prerogative was limited inasmuch the maximum life of a parliament was determined by statute. The Meeting of Parliament Act 1694 stipulated that a general election must be held every three years. The Septennial Act 1715 extended the length of a parliament to a maximum of seven years. The Parliament Act 1911 (s.7) reduced the maximum period to five years. The decision as to when to call an election within that period was governed by convention. The sovereign acted on the advice of ministers. Prior to 1918, the advice as to when to hold an election was tendered by the Cabinet and thereafter by the Prime Minister. In practice, Prime Ministers tended to request the dissolution of parliament after about four years in power, usually if the opinion polls indicated a favourable outcome for their party. If the polls were not propitious, premiers tended to let the parliament run a full five years.

On occasion, a Prime Minister would request an early dissolution if the government was having problems governing, usually because of a small or nonexistent majority. The Labour government of Clement Attlee re-elected in 1950 with an overall majority of five called fresh elections after 18 months in power. A similar gap was witnessed following the return of a Labour government in 1964 with a majority of four. The Labour government formed after the general election of February 1974 commanded only 301 seats in a 635-member House and lasted only just over six months before the Prime Minister requested fresh elections.

Elections that were the consequence of the Prime Minister seeking a fresh mandate at the time of his choosing were dubbed as opportunistic elections. However, it was possible for elections to be held consequent to another convention of the constitution. By convention, the government rested on the confidence of the House of Commons. If it lost the confidence of the House, then by convention it resigned or requested the dissolution of parliament. The precedent was set in 1841 and was maintained thereafter.

What constituted a vote of confidence took different forms. There were three distinct categories. One was an explicit motion of confidence, declaring that the House had or had no confidence in the government. A second was a motion made a vote of confidence by declaration of the government. A government may decide that a measure was so central to its programme that there would be little point in continuing in office if defeated on it. The Prime Minister would, therefore, make clear that, if defeated, this would trigger resignation or a general election. On Second Reading of the European Communities Bill in 1972, giving effect to the UK’s membership of the European Communities, Prime Minister Edward Heath told the House that “if this House will not agree to the Second Reading of the Bill. ... my colleagues and I are unanimous that in these circumstances this parliament cannot sensibly continue”. The third category comprised what were considered to be implicit votes of confidence, notably votes on the Queen’s Speech and the Budget. The measures falling in this third category were small in number. In the 20th century, defeat on a particular aspect of supply would not necessarily be treated as a vote of confidence. (Prime Minister Arthur Balfour refused to treat such a defeat in 1905 as a vote of censure.) The same applied to amendments to the Queen’s Speech. Lord Rosebery’s government was defeated on an amendment to the Address in 1894 and did not treat it as a censure vote.

The 20th century witnessed three occasions when the government lost votes of confidence. The first was when the government of Stanley Baldwin, having lost the election of 1923, nonetheless followed the tradition of remaining in office and facing the new House of Commons. When it did so, it was defeated on a vote of confidence and resigned. The new government that was formed — the first Labour government in UK history — was defeated in October 1924 on two votes that it deemed to constitute confidence votes and consequently requested the dissolution of parliament. The third and last occasion was on 28 March 1979 when an explicitly worded motion of no confidence, moved by opposition leader Margaret Thatcher, was carried by one vote against the Labour government of James Callaghan.

All other elections have been opportunistic elections. Given the discretion accorded to the Prime Minister, and which could be used for political advantage, there was some doubt as to whether a monarch would necessarily accede to the Prime Minister’s advice in all circumstances. In a letter to The Timesin 1950, the King’s private secretary, Sir Alan Lascelles, writing under the pseudonym “Senex”, identified three conditions where the Crown may refuse a request for dissolution. These comprised where parliament was still viable and capable of doing its job, an election would be detrimental to the national economy, and an alternative Prime Minister was available who could command a working majority in the House of Commons. Vernon Bogdanor argued that a monarch was not necessarily bound to grant dissolution where the Prime Minister lacked the support of his party or when a new government had not received the endorsement of the House of Commons and an alternative government could be formed. The claim that the monarch was not bound to accede to a request for dissolution in all circumstances was also made in Chapter 6 of the Draft Cabinet Manual, published in February 2010 ahead of the 2010 general election.

Though the monarch retained the power to decline the Prime Minister’s request for dissolution, it was never exercised. King George V in 1924 did check that neither of the Conservative and Liberal leaders was prepared to form a government following MacDonald’s decision to make a vote on an opposition motion one of confidence. “Neither Mr Asquith nor Mr Baldwin showed any desire either to assume office or to enter a coalition”. When the government was defeated in the vote, the King acceded, albeit reluctantly, to the Prime Minister’s request for dissolution. Throughout the era of modern British politics (ie, post-1832) the request for dissolution was never refused.