Would it be legal for the PM to delay a general election following a Parliamentary vote of no confidence?

I noted with interest that unspecified “constitutional experts” have been reported this week as advising that there is nothing in the Fixed Term Parliaments Act 2011 which would prevent the Prime Minister, in the aftermath of a vote of no confidence in the Government, from delaying the date of an ensuing general election until after a no-deal Brexit has taken effect by default on 31^st October. An alternative analysis would be along the following lines:

1. It is an uncontroversial constitutional principle that the Government cannot exercise powers under a statute in a manner that is contrary to the intention of that statute.
2. The “single, clear purpose” of the 2011 Act, as described by the Government at the time (Cm 7951, para. 3), and as is anyway obvious from the terms of the legislation itself, is “to remove the right of a Prime Minister to seek the dissolution of Parliament for pure political gain, at a time of his or her choosing”.
3. An early general election cannot take place other than pursuant to the 2011 Act.
4. Section 2(3) of the 2011 Act requires an early general election where there is a vote of no confidence in the Government and 14 days then pass without a (most likely alternative) Government winning a vote of confidence.
5. Section 2(7) provides that the date of that election will be the day appointed by Her Majesty “on the recommendation of the Prime Minister”.
6. Whilst there is no express constraint on the Prime Minister’s discretion as to what date to recommend, it would be contrary to the purpose of the 2011 Act (and thus contrary to the constitutional principle summarised above) for him to eschew the soonest administratively practicable date in favour of a delayed date “of his or her choosing”, selected ostensibly “for pure political gain”.
7. Deliberately deferring such an election until after a no-deal Brexit takes place by default, in order to tee up a “People versus Parliament” campaign following a Parliamentary vote of no confidence in the Government precisely to stop a no-deal Brexit, would be a paradigm example of such a case.
8. The Courts would not be forbidden from considering this issue by Article 9 of the Bill of Rights (which at the time of the 2011 Act was considered to limit the risk of legal challenges relating to the Act) since, far from “impeaching or questioning” any “proceedings in Parliament”, a claim founded on this analysis would be attacking the actions (or rather inactions) of the executive outside Parliament, contrary to the will of Parliament.

In short: the legislation that governs early elections doesn’t let the PM play politics with the timing, and the assumption that this isn’t a matter for the courts is wrong.

Charles Banner QC

Landmark Chambers

7th August 2019