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The constitutional position

The Fixed Term Parliaments Act established the timing of general elections in law. Under the Act, they are only supposed to take place at the end of a five-year period. Legally, the next general election is not scheduled until 2022. However, the Act contains two mechanisms for calling an early election:

  1. If two-thirds of the whole House (i.e. 429 MPs) vote for one; or
  2. If a motion of no confidence is passed by a simple majority and no alternative government is confirmed by the Commons within 14 days.

Even if the government was to declare that a vote on a substantive matter, such as the Brexit deal, amounted to a matter of confidence – and threatened to resign if that vote was lost – legally the House would still need to pass one of the motions above to pave the way for an election.

Political hurdles

Those are the bare constitutional requirements. But on top of these we need to overlay some wider political considerations.

First, an election is only viable (outside the chaos of a no deal Brexit) if a long extension to article 50 has been agreed with the EU. The Prime Minister meets EU leaders on 10 April to propose a way forward and avoid the UK crashing out without a deal on 12 April. By now, the EU is only willing to offer a longer extension for the UK to have an election or referendum, or to unlock a softer Brexit majority to ratify the withdrawal agreement. A requirement for any extension past 12 April will be that the UK holds European Parliament elections in late May.

Assuming that an extension is forthcoming, what are the partisan political concerns that would then impact on the decision?

In practice, option 1 for immediate dissolution needs to be an active choice of government policy, requiring Cabinet approval and substantial Conservative party support. It therefore involves a political calculation about the governing party’s ability to fight an election. Recent polling has undermined Conservative confidence and the party chairman has warned of a lack of funds. Much of that relates to widespread unhappiness about Theresa May’s leadership.

This raises the key question: are there any circumstances in which the Conservative Cabinet and wider parliamentary party would agree to Theresa May leading them into a snap election?

If there are, they are well hidden. She is widely regarded as an electoral liability and has lost trust on all sides of the party. Tory MPs sitting on small majorities do not want to risk following her into another poll, while leadership contenders jockeying to replace her do not want to risk any chance that she might regain political strength.

More likely is a scenario where the UK obtains an extension to article 50, after which the Conservatives hold a leadership contest to replace May and gain strength before tabling a motion for immediate dissolution. Party rules do not specify the timetable for a leadership election but if a postal ballot of members is required then it is hard to see the process being completed before the end of May, even if it began next week. That suggests July would be the earliest that a new leader could be in position to trigger and fight an election under this process.

Option 2 ostensibly involves fewer political hurdles. In theory a government could table a motion of no confidence in itself (especially if it had threatened such a move ahead of a Brexit vote). More likely, the opposition would seek to bring the government down in a confidence vote.

That throws up a number of political calculations. To be successful the opposition parties would need to be united and they would need the support of at least some DUP and/or Conservative MPs. As the government’s majority (with the DUP) now stands at just six MPs, that cannot be ruled out. Tellingly, some senior ERG Conservatives have threatened to no confidence in their own government.

But it is important to remember that a motion of no confidence does not automatically trigger an election. Rather, it creates a 14-day window in which a new governing arrangement could be manufactured in the House. The DUP would continue to hold the balance of power and if the Conservatives were in a position to unite around a new leader – even a temporary leader – they may be able to resurrect that alliance and recover the confidence of the House. So even if a no confidence motion were passed, an election would still be a number of political steps away.

Conclusions

The variety of constitutional and political hurdles in the way of an early election – certainly a snap election in which Theresa May is still leader of the Conservative party – makes it difficult to envisage in practice.

Yet the continued parliamentary deadlock over Brexit means that it cannot be dismissed as a possibility. Even if the Commons is able to agree a Brexit deal of some variety in the coming days, it will have to pass legislation to bring it into effect. That will take time, so an extension to the article 50 process is now almost inevitable if the UK is to avoid a no deal crash out. Such an extension, assuming the EU agrees to it, would create the space for a Conservative leadership contest.

That would likely produce a harder Brexit-inclined leader, even more at odds with a Remain-inclined Parliament. A general election may offer the only means to reset the political dial. This would be a difficult and dangerous path for the Conservatives, but it may be more preferable to a party-splitting compromise on a softer Brexit, or a no deal exit, both of which could trigger government meltdown.

Overall, while a sudden general election at the instigation of Theresa May is a remote prospect, an election later this year with a new leader at the Tory helm looks much more viable.

By Lexington’s Senior Counsel Paul McGrade and Director Declan McHugh
For more information about how Lexington’s experts can support you please contact: Declan.McHugh@lexcomm.co.uk

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