What is the Fixed-term Parliaments Act?

The Fixed-term Parliaments Act (FTPA), introduced by the Tory-Lib Dem coalition in 2011, changed the way general elections happen in this country. Since 1911, parliaments had been limited to a maximum five year term, but the prime minister could ask the Queen for a dissolution of parliament at any convenient time. This was the most common way a government with a strong majority – for instance, under Tony Blair or Margaret Thatcher – would seek an election.

A government could also be brought down, and the PM forced to choose between resigning and seeking new elections, by a confidence motion in the House of Commons. This was, famously, the tactic used by Thatcher to bring down the Callaghan government in 1979 and force a general election.

The FTPA changed all that – making it harder for the PM to seek a general election and pegging UK parliaments to a standard five year term.

Why did it happen?

On entering the coalition in 2010, the Lib Dems were faced with a conundrum: what was to prevent David Cameron, if he proved popular, seeking an election a couple of years into their term? The FTPA acted as constitutional glue, making it harder to exit the coalition’s nest of vipers, while also achieving a long-held Lib Dem policy goal: fixing parliamentary term length and removing from the PM the ability to time an election when his party looked to be doing well in the polls.

Lest we think of the Lib Dems as particularly high-minded here, it’s worth noting the bill they initially introduced to parliament put the threshold for an early election at 55% – the number of Tory and Lib Dem seats together, keeping power close to the government’s hand.

What does it do?

Under the FTPA, general elections can happen in one of three ways:

1. Parliament runs its normal five year term, and a general election takes place at its end.

2. The House of Commons passes a motion for an early general election with a two-thirds majority.

3. A specifically-worded motion of no confidence (given in section 2(4)) is passed in the House of Commons with a simple majority (50%+1). This starts a 14 day period where a new government can attempt to gain the confidence of the House. If no new government can pass a confidence motion in that period, a new general election is held.

The 2015 election was an example of option one, the 2017 election of option two. Option three has never been tested in practice.

Why is it important?

While much comment has been made on the difficulty of seeking new elections to break the Brexit impasse, the current political situation also demonstrates how much power the Act leaves in government hands. The 2017 election made clear it would be very difficult for any opposition to oppose a government move for an early election – after all, it would mean effectively saying ‘we don’t think we’re ready to take power yet.’ But the reverse isn’t true: it would take a significant rebellion for any party in power to be brought to an election it didn’t want.

Historically, however, a government could be brought down by a motion of no confidence – with the PM expected either to resign or immediately seek fresh elections. The FTPA removes the option to dissolve parliament – it is silent on the PM’s duty to resign – and replaces it with a two week period in which a new government can be formed.

That period of 14 days is novel. The intention of the bill, when it was introduced, was for the period to allow for the formation of a new government without an election, an attempt to codify the two historic practices – government resignation or election – which used to follow loss of confidence. The government’s intention was that the speaker should designate matters of confidence – however, parliamentarians objected that this would politicise the speaker’s office, and thus the government introduced the specifically worded confidence motion in the Act.

Nonetheless, the 14 day period seemed to many a vague and dangerous provision. Dominic Raab, then a backbencher, saw in it an opportunity for political expediency “sidestepping the democratic process” to change the political character of a government mid-term. Others rightly saw it as potentially providing a failing incumbent government an unprecedented opportunity to shore up support and continue despite losing the confidence of the house. Bill Cash foresaw “shenanigans worthy of Lord Voldemort and the servants of the Dark Lord”. Lord Norton, a Conservative peer and professor of government at Hull, put it succinctly:

“In the present situation, if a government lose a vote of confidence, the prime minister has the option either of calling an election or of resigning. The government go. Under the phrasing of this bill, the government do not have to go; they can be reformulated. In that sense, the provision protects the government as the present situation does not.”

Opposition like this was strong, and across party lines, with a former speaker witheringly suggesting it ought to be called the ‘elections avoidance Act’. Defences made of the 14 day period included a bizarre suggestion that the Queen would ultimately ensure everything was alright, or that the voters would probably punish a nefarious prime minister eventually, and that ought to be enough to keep them in line.

All this would be merely academic – vaguely interesting history of an awkward piece of legislation – were we not faced with a weak Tory government stuck in legislative impasse. The 14 day period did become law: so what would happen if the Labour party were to table a motion of no confidence, as worded in the FTPA, intending to force the government’s resignation and – hopefully – proceed to a general election?

Should she stay or should she go?

Experts disagree whether the prime minister can still be said to have a duty to resign during the 14 day period – and if she does, at what point it kicks in. Constitutional precedent would certainly suggest that the PM should resign, and the understanding of many experts is that the FTPA then intends for the leader of the opposition to form a government. Whether the opposition – in this case the Labour party – could or should wait out the period and force an election, whether May would be able to pass the reins to a chosen Tory successor, and who should govern in the interim, are all questions left deliberately vague by the Act. Some have even envisioned the use of byzantine parliamentary procedures – say, prorogation – by the government to prevent a successor taking their place.

It’s worth noting here that nothing in the Act prevents a nightmare carousel of recurrent confidence votes without recourse to an election. Some suggest fear of voters’ wrath makes such a circus unlikely – but, then, these are extraordinary times. Further political questions arise for Labour, who would rightly feel that taking power without recourse to democratic process rubs strongly against some of their dearest-held principles. Anyone who baulked at the Tory bribe to the DUP after the last election ought to steel themselves for far worse and more cynical horse-trading in that period.

Certainly, however, the no confidence option provides two potential routes to an election: either the 14-day period expires without any government able to sustain a confidence vote, or a new Labour government, having sustained a confidence vote, immediately moves for an early election as in option two above. It would be a brave Tory who would vote against it.

Are there other options?

The FTPA is primarily a law governing elections, not matters of confidence. In the government’s response to the bill’s report stage, it made clear it was not their intention “to interfere with the conventions which govern the position where the government loses the confidence of the House.” Nor does the Act claim the form of no confidence motion given in Section 2(3)(a) is the only possible motion of confidence, merely that the motion, as worded, is the only trigger for the 14 day period.

This has two effects. Previously a prime minister could declare a particular bill a matter of confidence, with the consequence that if the bill failed to pass the government would either resign or dissolve parliament. This was a device frequently used to corral unruly backbenchers: Ted Heath did so with the European Communities Bill in 1972, John Major similarly in 1993. The option for the PM to seek dissolution is no longer available, and with it the threat that a backbencher may lose their seat in a snap election. But that does not mean a government cannot attach confidence to a bill – merely that their only threat can be that they would resign were it not to pass. This would be a high-wire act for Theresa May.

The second effect is that it raises the possibility of a ‘non-statutory confidence motion’ – that is, a motion of no confidence worded differently to the form given in the FTPA. This might be a motion moved and passed on an opposition day, or, as David Howarth recently speculated, another use for Labour’s recently rediscovered tactic of the ‘humble address’. Regardless of the precise mechanics, it would put the government in an awkward position – either choosing to ignore the motion and claim the only legitimate method is via the FTPA, despite evidently losing the confidence of the house, or resigning and passing the reins to Jeremy Corbyn, avoiding the 14 day horse-trading period.

In that situation, an incoming Corbyn government may choose to honour both its democratic sensibilities and constitutional spirit by seeking an early election under the FTPA: it would recall the situation in 1905, where a collapsing Tory government under Arthur Balfour resigned, and the Liberal leader Campbell-Bannerman formed a government and immediately sought elections.

In any future manifesto, a Labour government should commit to ending the FTPA: while recognising the problem of a PM seeking an election based on party advantage, the slapdash nature of the Act, and especially its 14 day ‘fix-up’ period, effectively offers novel respite to fracturing governments. Changes to the system of government need a wider eye – and ought to be part of Labour’s much invoked but little fleshed-out proposal for a constitutional convention. But until that point, Corbyn’s Labour ought to press its advantage where it can.