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The Prime Minister, Theresa May MP, has surprised Westminster and the country at large by calling for an early general election. The Prime Minister intends that the election will take place on 8 June 2017. She has called for it in order to, in part, overcome the ‘division’ at Westminster in respect of Brexit. It is a risky political gamble that might disrupt the UK’s exit from the EU.
Firstly, it is important to remember that the Prime Minister cannot herself call the election. Following the coming into force of the Fixed-term Parliaments Act 2011 (“the 2011 Act”), the Prime Minister no longer enjoys the benefit of the Crown’s prerogative powers to dissolve Parliament and call a new general election. Instead, the process is now governed primarily by section 2 of the 2011 Act. In essence, Theresa May will require a two-thirds majority of all MPs to secure the early election. Her only other option would be through the House of Commons passing a motion of no confidence in the government. If within 14 days a new government is not formed and gets a vote of confidence, an election would take place. Theresa May would appear to be opting for the former method: a vote is scheduled in the Commons for 19 April 2017. If this motion is carried, the next general election would take place in May 2022 (see section 1(3) of the 2011 Act), which could be later than not just a negotiated deal but also any transitional period. Thus, when the two year notice period comes to an end in 2019, the Government would (in principle) not need to have an eye on a forthcoming election (subject to there not being a motion of no confidence in the government).
Assuming Theresa May secures the necessary majority (this seems likely since Jeremy Corbyn MP has confirmed that the parliamentary Labour Party will be voting in favour of the motion calling), the outcome of the general election has the potential to derail the Brexit process. As noted above, the Prime Minister is calling for the election to in part secure unity at Westminster on Brexit. If she fails to secure a majority, it is not clear what will happen to the next Government’s mandate to continue with the Brexit negotiations. This would be problematic, not least because most commentators agree that the Article 50 process is irreversible.
Individuals (such as EU nationals living in the UK) and corporates need certainty regarding Brexit process. Until 8 June 2017, it seems unlikely (if not impossible given the rules on ‘purdah’) that any further certainty will be provided by the Government. Indeed, matters could be even more complicated once the outcome of the election is known.
Conversely, it is possible (perhaps likely given the current state of opinion polls) that the Prime Minister will secure a large majority in Parliament in support of her Brexit position. This could conceivably diminish the possibility that the final Brexit deal is rejected by Parliament. A substantial parliamentary majority could also give Theresa May greater authority to negotiate with her EU counterparts on the terms of Brexit. This of course assumes that her EU counterparts are prepared to give additional weight to the outcome of what will be a domestic UK election. In any event, all will now depend on the next few weeks of political campaigning.
Other lawyers from Kingsley Napley are regularly blogging about the impact of Brexit, so follow our Brexit blog for the latest commentary.
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