Is it possible to call an early General Election?

An early General Election is not unthinkable and indeed perfectly acceptable within the British Constitution, argues Nick Harris.

Given Theresa May’s slim parliamentary majority of 12 and the controversial nature of the Brexit legislation soon to come through the Commons, many commentators and some MPs have speculated that an early election may be necessary for Theresa May’s government to continue. It is estimated that there are around 30 anti-Brexit Conservative MPs and therefore, even with the support of other right of centre parties like the Democratic Unionist Party, a small group of Tory europhiles could scupper the entire Brexit process by holding up or even blocking Brexit legislation. The argument goes therefore, that it is reasonable for Theresa May to go to the polls in order to see if voters expand her majority and so signal that they approve of the nature of the Brexit legislation which she is setting out.

‘It is not that simple’, cry the errant columnists of the Guardian

‘But it is not that simple’, cry the errant columnists of the Guardian. They point to the Fixed-term Parliaments Act 2011 which was enacted by the Coalition government. This law states that ‘the polling day for each…general election is to be the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell’, meaning essentially that elections were to take place in May every five years with counting beginning from the 2010 election. No early general election, case closed.

However, the bill does also include clauses which allow for an early general election. It states that an early general election may be called if a two thirds majority of the House of Commons vote in favour of a motion calling for one, or there is a vote of no confidence in the government. Therefore, if she is sticking to the rules, Mrs May does have two ways of going about calling for an early election. Either introduce a motion for one and hope that enough of the Labour party support it to give a two thirds majority, or have her government vote for no confidence in itself (stranger things have happened). Given that a vote of confidence only requires a majority as opposed to the two thirds majority of a motion for an early election, this might make more sense.

It’s reasonable to argue that Brexit is controversial enough to demand a second look at the polls

All of this assumes working under the Fixed-term Parliaments Act 2011, and this was in retrospect a most unworkable bill both practically and constitutionally. First off, the dismissing of a parliament earlier than planned for the purposes of a general election makes sense if the government needs to seek a specific mandate for an issue that arises during the course of a parliament (like withdrawal from the European Union, which was not provided for in the Conservative manifesto of 2015). This happened twice in 1910 in order to confirm that the people approved of the ‘People’s Budget’ which was at the time being blocked by the House of Lords and Prime Minister Herbert Asquith called an election in order to secure a specific mandate for its passing. Again in 1923, with the issue of protectionism threatening to engulf the Conservative Party, Stanley Baldwin was forced to go to the country over that question in this case losing out and resulting in a minority Labour government. Most recently, in 1974, Ted Heath called an election under the slogan ‘who governs Britain’, asking voters to decide on a conciliatory or aggressive stance to the industrial action of the time (they chose Harold Wilson and conciliatory). Therefore, it has been necessary for Prime Ministers of the past to request specific mandates for specific issues, and it is reasonable to argue that Brexit is both big enough, and controversial enough to demand a second look at the polls.

However, beyond this, the idea of fixed term parliaments as part of the mystical British Constitution is somewhat called into question. Cast your eye back to the Coalition negotiations of 2010 and it becomes evident why fixed term parliaments exist; it is only for the short term needs of the coalition rather than any great reforming agenda. The morning after the election the markets were anxious and a speedy government which exhibited signs of stability (such as lasting for at least five years) were necessary in order to quell the turmoil developing. The Liberal Democrats were also concerned that if the conditions for elections stayed as they were, the Tories would just wait until they had a confident lead in the polls and then call a snap election. Therefore, they legislated to tie the two parties together for as long as possible, unaware of the constitutional damage it would have. It always had been the case that elections were called by the government of the day and it was the Opposition’s job to be ready for one. Although this may seem opportunistic, if one looks back at the polling before the last five general elections, it becomes clear that the election was won by the party that had a sustained lead anyway. Elections by royal proclamation (i.e when the prime minister calls one within a five year limit) make far more sense both pragmatically and as part of the age old constitution by which parliament is governed.