A briefing paper on the legal issues surrounding a Scottish independence referendum
Documents to download
Fixed-term Parliaments Act 2011 (2 MB , PDF)
A bill to repeal the Fixed-term Parliaments Act 2011 is currently going through Parliament. The Government has said that the Dissolution and Calling of Parliament Bill 2021-22 will repeal the 2011 Act and enable Parliament to be dissolved and called as if the 2011 Act had never been passed.
Overview of the Act
The Fixed-term Parliaments Act 2011 set a five-year interval between ordinary general elections. General elections are scheduled to take place on the first Thursday in May in every fifth year. The next general election is scheduled to take place on 2 May 2024.
The Act includes two mechanisms that could lead to early general elections. The Act specifies that early elections can be held only:
- if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division; or
- if a motion of no confidence is passed and no alternative government is confirmed by the Commons within 14 days.
The Act put dissolution on a statutory footing. Previously Parliament was dissolved by the Queen, on the advice of the Prime Minister. Now Parliament can only be dissolved in accordance with the Act. However, the Act did not alter the prerogative power to prorogue Parliament.
The House of Commons has considered five motions under the Act. On 19 April 2017, the House agreed to an early general election that took place in June 2017. It rejected a motion of no confidence on 19 January 2019. Before the 2019 general election, the Government failed on three occasions to secure the necessary two thirds majority to trigger an early election under the Act (4 September 2019; 9 September 2019; and 28 October 2019).
The Government subsequently secured the support of Parliament for the Early Parliamentary General Election Act 2019. This Act set the date of the 2019 general election and treated it as if it were a day appointed by the 2011 Act.
In their manifestos for the 2019 General Election, both the Conservative Party and the Labour Party called for the Act to be repealed:
- “We will get rid of the Fixed Term Parliaments Act – it has led to paralysis at a time the country needed decisive action” – Conservative Party Manifesto 2019;
- “A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments” (4.7MB, PDF) – Labour Party Manifesto, 2019.
Statutory review of the Act and Government plans to repeal the Act
The Act has to be reviewed. It required the Prime Minister to make arrangements for a committee to carry out a review of the Act and to publish the committee’s findings and recommendations, which can include repealing or amending the Act. A majority of the members of the committee have to be MPs. The Prime Minister had to make arrangements for the committee between 1 June and 30 November 2020.
On 10 November 2020, the House of Commons agreed to the Prime Minister’s proposal to appoint a joint committee to undertake the statutory review of the Act. Fourteen MPs were appointed to serve on the joint committee. The joint committee will also be asked to report on the Government’s plans to repeal the Act, which will be set out in a draft bill. The joint committee has to report by Friday 26 February 2021.
On 24 November 2020, the House of Lords agreed that a joint committee should be appointed to review the Act and nominated six members to serve on it.
On 26 November 2020, Lord McLoughlin was chosen by the joint committee to be its chair.
The Government’s Draft Fixed-term Parliaments Act 2011 (Repeal) Bill (1.2MB, PDF) was published on 1 December 2020. The draft bill provides for the repeal of the 2011 Act; confirms that the maximum term of a Parliament (rather than the period between general elections) shall be five years; and contains an express provision to restore the prerogative power to dissolve Parliament.
Alongside the draft bill, the Government published a single-page “draft statement of the non-legislative constitutional principles that apply to dissolution” (48KB, PDF).
On the same day, Chloe Smith issued a written statement, which outlined the provisions of the draft bill and announced the publication of the summary of dissolution principles.
At its meeting on 26 November 2020, the joint committee issued a call for written evidence on either the operation of the Act or the draft bill; and said that it would take into account evidence that had been submitted to the inquiries undertaken by parliamentary committees recently.
The Joint Committee’s report (1.1MB, PDF) was published on 24 March 2021. In accordance with its remit, it undertook both the statutory review of the 2011 Act and a review of the Government’s draft bill.
In its scrutiny of the draft bill, the Committee considered that “It is clear that it would be impossible to simply repeal the Fixed-term Parliaments Act, as to do so would cause legal uncertainty”. The Committee agreed with the Government that it was possible to revive the prerogative in the way it proposed in the draft bill, although it described the Government’s approach to instruct the courts to act as if the Fixed-term Parliaments Act 2011 had never been passed as “novel”. It noted the importance of a clear understanding of the process that the Government intended to be revived.
The Committee also reviewed the Government’s Dissolution Principles, a document published alongside the draft bill to set out the Government’s view of the “non-legislative constitutional principles that apply to dissolution”. The Joint Committee considered that the Government’s document was inadequate. It set out its own understanding of the conventions on elections and government formation under a prerogative system.
Dissolution and Calling of Parliament Bill 2021-22
The Government has taken forward its plans to repeal the Fixed-term Parliaments Act 2011.
The Dissolution and Calling of Parliament Bill (359KB, PDF) [Bill 8 of 2021-22] was introduced on 12 May 2021.
The Bill would repeal of the Fixed-term Parliaments Act 2011 and provides that the maximum term of a Parliament (rather than the period between general elections) shall be five years.
The Bill’s Explanatory Notes (341KB, PDF) confirm that its effect is to “enable Governments, within the life of a Parliament, to call a general election at the time of their choosing”. It does not envisage that there will be a role for Parliament in deciding when general elections are held.
The Bill provides that the timetable for the election of a new Parliament is triggered by the dissolution of the old Parliament.
The Bill includes an ‘ouster clause’ that states that questions relating to the use of the powers, preliminary work on dissolution and the extent of the powers cannot be questioned by the courts.
The Bill has completed its passage through the House of Commons and the second reading debate in the House of Lords is expected to take place on 24 November 2021.
The Bill is not discussed further in this briefing. Further information can be found in the following Library briefing papers:
- The Dissolution and Calling of Parliament Bill 2021-22 describes the Bill and its background;
- Dissolution and Calling of Parliament Bill 2021-22: progress of the Bill outlines the passage of the Bill through Parliament.
Documents to download
Fixed-term Parliaments Act 2011 (2 MB , PDF)
This list notes when a Member has changed allegiance from one political party to another or decided to sit as an independent MP. Instances of Members losing or resigning a party whip are also noted.
This briefing outlines the remit and powers of the Committee of Privileges. It also provides brief details of matters referred to the Committee since 1979.