Boris Johnson may soon have the power to call elections whenever he wants – a legal view on why that’s not a good idea

If anything, the past few years have shown us why it should be difficult for a prime minister to call an election at will

Legislation is currently making its way through the UK parliament to repeal the controversial fixed-term parliaments act, which sets the period between general elections at five years and limits the prime minister’s power to trigger an election earlier.

An earlier election is possible if two thirds of MPs vote for it or if the government loses a vote of confidence among MPs.

The 2011 act was passed under the Conservative/Liberal Democrat coalition government of 2010-2015. Its immediate aim was maintaining the coalition’s stability but it also had a more principled long-term objective of ending the governing party’s ability to call an election for its own advantage. Then deputy prime minister Nick Clegg said the act would “remove the right of a Prime Minister to seek the Dissolution of Parliament for pure political gain … for the first time … the timing of general elections will not be a plaything of governments”.

Protestors speak out against the government’s decision to prorogue parliament in 2019. Keith Morris /Alamy

Before the fixed-term parliaments act, prime ministers could set the date of the next general election as long as it was within five years of the last. This gave the incumbent government a political advantage. The prime minister could call a general election timed to take advantage of favourable opinion polls, or may even delay an election as long as possible in the hope that unfavourable polls may improve.

By the 2019 election, both main parties were pledging to get rid of the system brought in by the coalition. The Conservative government claimed the act had “led to paralysis at a time the country needed decisive action”. This referred to Boris Johnson’s failure to secure enough support from MPs to hold an early election on three occasions in 2019.

It’s questionable, though, whether this failure provides adequate grounds for repeal. The act merely fulfilled its purpose in 2019. It prevented Johnson from calling an election simply for political advantage. Any paralysis was as much due to a minority government lacking sufficient support for its Brexit plans as it was the 2011 act.

It should also be noted that an early election was eventually held in 2019, despite the fixed-term parliaments act. Johnson could not convince enough MPs to support an early election but he was able to secure enough votes to pass temporary legislation that would allow him to bypass the fixed-term parliaments act.

So, the story of 2019 is one of the fixed terms system working. It blocked the prime minister’s dissolution power while allowing early elections when there was sufficient support among MPs or parliament as a whole.

A key clause

Now, should the proposed changes go ahead, the prime minister will once again have the power to hold an election at will.

There is also a proposed clause protecting the prime minister’s power from legal challenge. Such clauses – known as ouster clauses – attempt to freeze the courts out of a particular matter. In this instance, the clause would prevent the courts hearing a claim that the power of dissolution has been exercised unlawfully. Courts are, however, adept as side-stepping ouster clauses leading to tension between the courts, parliament and government.

It’s reported that this attempt to oust the courts is a response to the Supreme Court’s ruling that the government acted unlawfully in 2019 when it tried to prorogue parliament for several weeks. Yet, that attempted prorogation, and the judgment that it was unlawful, is clear evidence of the important role courts play.

It’s widely believed that the real but unacknowledged reason for trying to prorogue parliament for so long in 2019 was to avoid parliamentary scrutiny at a crucial stage in the UK’s exit from the EU. That is, the government’s willingness to ignore constitutional, political and legal restraints for short-term political gain does not demonstrate the problem of courts ruling on the legality of government actions. It instead shows the necessity of the courts as a safeguard against abuse of governmental power.

Of course, the legal challenge in 2019 was not in response to an election being called. But the judgment in that case illustrated the courts’ willingness to intervene to keep the government in check. This explains the ouster clause – it’s an attempt to give the prime minister as much freedom as possible to call an election without interference by the courts.

The ouster clause is also part of a worrying pattern by the present government to insulate itself from political, media and judicial scrutiny. It has recently even launched a review of judicial review, the process by which the courts ensure that governmental power is exercised lawfully.

There should, then, be serious doubts about reinstating the prime minister’s dissolution power. The current government’s willingness to act in ways unprecedented in modern times for short-term gain suggests it is not a good idea. For mature democracies, it’s surely preferable for elections to be at set intervals with early elections permitted if directly elected MPs, rather than the indirectly elected prime minister, decide.

John McGarry
Senior Lecturer in Law,
Department of Law / Centre for Crime,
Justice and Security,
Staffordshire University

* Published in print edition on 23 February 2021