Prof Richard Parry
Honorary Fellow in the Centre on Constitutional Change at the University of Edinburgh and was previously Reader in Social Policy.
Section 1: Context
The 2017 general election was an attempt by Theresa May to overturn the imposition of a regular electoral cycle on UK politics. The Fixed Term Parliaments Act 2011 was meant to prevent prime ministers exploiting a favourable political conjunction in order to extend their mandate and increase their majority. May was happy to say ‘I called the election…’ in her stump speech though she did require a Commons motion backed by two-thirds of the total membership. And she planned never to be troubled about it again. The Conservative manifesto said (p43) ‘we will repeal the Fixed-Term Parliaments Act’, feeling no need to give any justification or explanation for this constitutional change. Any repeal cannot in fact be totally simple as the statutory basis for a maximum five-year term now rests on the 2011 Act. There would be political, and possibly legal, controversy about replacing a parliamentary framework for early dissolution with a reversion to the previous exercise of royal prerogative under ministerial advice. The Conservatives may now need the lifeline of the 2011 Act to sustain their fragile hold on the newly elected House of Commons.
May took a risk in assuming – correctly – that a politician’s natural response to the whiff of grapeshot would bring most MPs on board. Labour did have a blocking one-third of members but declined to use it (and did suffer a minor rebellion the other way). The 2011 two-thirds mechanism is actually derived from the Scottish Parliament, with the difference that there the extraordinary election does not replace the normally-scheduled election unless it is within six months of it. With the 2011 Westminster act, the five-year clock starts again after an election, a further temptation to premature dissolution.
The shock election outcome traps May as both winner and loser, and constrains her scope for significant action on the constitution
May had challenged the early 21st century trend to codify and structure the UK constitution and its electoral arrangements. Devolution law was one example of this. In terms of a second Scottish independence referendum, legislation is precise on granting additional powers to the Scottish Parliament (as was done in 2013 to remove temporarily any doubt about its ability to pass a legal referendum act) and managing any UK override of potentially illegal devolved action (by a referral to the Supreme Court within four weeks of passage). The Conservative manifesto declined to take a position on either of these, taking refuge in the formulation ‘in order for a referendum to be fair, legal and decisive, it cannot take place until the Brexit process has played out and should not take place unless there is public consent for it to happen’ (p32). This could mean almost anything.
In Scotland, the early election was a particular disruption to the electoral cycle. The SNP was looking for five years of benefit from its 2015 near-sweep in Scotland (56 out of 59 seats and a tantalizing 49.97% of the popular vote) and a near-majority in Holyrood in 2016 (63 seats out of 129, with six pro-independence Green members available). These mandates were on the line politically and have now been attenuated. In the campaign the SNP had to face premature scrutiny of their ten-year record in devolved government, and were forced into a yet higher level of caution on a second independence referendum. Their manifesto text was ‘at the end of the Brexit process, when the final terms of the deal are known, it is right that Scotland should have a real choice about our future’ (p29). The date of that choice now seems set to be postponed indefinitely.
The Conservative manifesto also promised to bring in first-past-the-post voting for mayoral and police commissioner elections and put on hold any further House of Lords reform. May tried to reinstate a nostalgic, pragmatic UK tradition in which sovereignty and flexibility are prized, there is no fixed electoral cycle, and the ruling UK party takes strong control. The shock election outcome traps May as both winner and loser, and constrains her scope for significant action on the constitution and everything else.