The prime minister's powers over the date of an early election

Who decides the date of an early general election? 

If Parliament decides to call an early general election under the Fixed-term Parliaments Act, then the date of that general election is set by a Royal Proclamation issued by the Queen, on the advice of her prime minister.  

In practice, this means that the date of an early election is up to the prime minister. 

Though it may be possible in theory for the Queen to reject her prime minister’s advice, it ought to be inconceivable in practice. The Queen acts on the advice of her ministers.  

But didn’t the Fixed-term Parliaments Act remove the PM’s ability to call an early election? 

Yes. The Fixed-term Parliaments Act removed the prime minister’s power to call an election. It also states that , ordinarily, elections must be held every five years, on a date determined by provisions in the Act.

However, the Act also sets out two routes for calling an early general election:

  • Two thirds of MPs vote for an early general election, or
  • The House of Commons votes no confidence in the government and fails to pass a motion of confidence in any government within 14 calendar days. 

If an early election is triggered through either of these routes, the prime minister has discretion over when that election should take place. Section 2(7) of the Act says that, when an election is called, “the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the prime minister”. 

In practice, if a prime minister asks MPs to vote for an early election, they are likely to tell MPs when they plan to hold it before they asking them to vote. Theresa May did this ahead of the early election in 2017.

Could the prime minister change his mind about the date of an early election after setting one? 

In theory, the prime minister probably could change his mind about the date of the early election after persuading Parliament to call one. He could advise the Queen to proclaim an election date that is different from the one he promised to Parliament. Or, he could advise the Queen to proclaim one election date, and then later advise her to issue a second proclamation changing the date. 

The only caveat is that there may be an attempt in court to challenge any such decision about the date of an election. If the court considered that the prime minister had abused his powers over an election date, or exercised those powers for improper purpose, then it might be persuaded to intervene. However, the bar for any judicial review would be high, and it is not clear whether these decisions are even justiciable.  

Can Parliament influence the date of the election? 

Yes. MPs can influence the date of the election in two ways.

First, they could demand a political commitment from the prime minister that the election will be on a certain date, before voting for any motion for an election. 

Second, if they were worried about the prime minister changing his mind or breaking his promise, then they could instead try to bind him to a particular date with legislation. This would have to pass both Houses of Parliament and receive Royal Assent in order to become law.  

If the government cannot get a two-thirds majority to vote for an early election, then it might introduce legislation anyway, to override the two-thirds majority requirement in the Fixed-term Parliaments Act. Such legislation could be passed by a simple majority of MPs.

However, if the government prefers to keep control of the election date and does not want to secure an election through legislation, then backbench MPs would have to try to take (or maintain) control of the order paper in order to get such a bill through. 

How could the date of the election affect Brexit?  

At the moment, the UK is set to leave the EU on 31 October. If Parliament votes before then for an early general election, but the prime minister sets an election date for after 31 October, then the UK would leave the EU before polling day. That would be extremely controversial, not least because it would mean that opposition parties could not stand on a platform of changing the UK’s Brexit policy. By the time the next government were in place, Brexit would have happened. 

Update date: 
Tuesday, September 3, 2019
Authors: Raphael Hogarth