The Fixed-term Parliaments Act has failed

Theresa May announces she will seek a mandate with a general election

Theresa May announces she will seek a mandate with a general election  © Getty Images

On Tuesday, the prime minister Theresa May said there will be a UK general election on 8 June 2017. In technical legal terms this should not be for her to decide. It is a decision for parliament. But in reality the decision is that of the prime minister even though the law says otherwise.

Before 2011, the power to dissolve parliament was one of the prerogative powers that the prime minister could exercise on behalf of the crown. It was perhaps the prime minister’s greatest power: it would be used rarely but the possibility of it being exercised was enough.

Then in 2011, as part of the coalition government’s programme, a Fixed-term Parliaments Act was passed. The intention was to take the politics out of the dissolution of parliament. There would no longer be the risk of a snap general election.

The FTPA provided for five-year parliaments as a norm. The only exception would be an “early election” under section 2 of the act. The exception would apply in two cases. The first would be if the House of Commons passed a motion that “there shall be an early parliamentary general election” with a vote of at least two-thirds of MPs. The other would be a straight vote of no confidence by MPs that was not reversed in 14 days.

(These are the two exceptions within the FTPA. An alternative, outside the provisions of the legislation, would be for the FTPA itself to be repealed or amended but that would require approval by parliament. This could be done but could not be guaranteed within a short period.)

Mrs May’s intention appears to be to commence the process on Wednesday with a simple motion that “There shall be an early parliamentary general election” and seek to obtain support from sufficient opposition MPs. The early indications are that the requisite two-thirds majority is perfectly possible.

The FTPA was never an absolute barrier to early elections. It a mere hindrance that could easily be circumscribed. In reality, a prime minister with a good majority in the House of Commons can still call a snap election, with the only objective of making that majority bigger. As an exercise in constitutional tinkering, the check and balance of fixed parliamentary terms has failed.

This post originally appeared on Financial Times

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