Theresa May, the Prime Minister of the UK, announced yesterday, in a dramatic U-turn, that she will be calling for a snap general election on June 8, 2017.

Can the legality of this action be questioned, however, bearing in mind that the Fixed Term Parliament Act 2011 (FTPA) has codified fixed term parliaments and the calling of an election to be held once in every five years?

Since the last general election was held in May 2015, this means that the next one should rightly be in May 2020.

The PM has said that the call for a snap election was necessary as the opposition parties were apparently divided and blocking Brexit.

Ever since the UK Brexit referendum result of June 24, 2016, the UK political scene has not been short of drama.

In the persistent call to give effect to the democratic will of the people in choosing to leave the European Union (EU), Theresa May must herself be aware of the supreme irony of her situation.

For it is hardly democratic in that she herself is PM purely by default; and not by the popular vote. She is there simply because she won the Conservative leadership campaign.

When the EU Referendum result was announced last year, David Cameron, the then PM, who had campaigned on the “Remain” side, stepped down in a show of ministerial responsibility, acceding defeat.

No one at that time, in June 2016 expected Theresa May, Home Secretary under the Cameron government, to readily assume the mantle of leadership. But that is exactly what she did.

When one by one, the other contenders fled the scene (think Boris Johnson, Michael Gove, Andrea Leadsom), she stayed on, resolute. And ultimately won despite the fact that she had never even been on the EU “Leave” side.

But does that mean she can exercise her prerogative power however she wants to? Prerogative powers must surely be constrained within demarcated boundaries for the rule of law to be preserved.

The Supreme Court in the recent decision of R (Miller) v Secretary of State for Exiting the EU (2017) UKSC 5 decided that the prime minister could not use her prerogative powers (relating to the conduct of foreign relations – including entry into and withdrawal from treaties) to invoke Article 50 of the EU Treaty to exit the EU.

The issue had to go back to the UK parliament, the court ruled. It was the UK parliament which had enacted the European Communities Act 1972 which incorporated EU law into the domestic law of the UK; and it was the UK parliament alone that could repeal the Act. Parliament is supreme, and not the PM, seemed to be what the court was saying.

Prerogative powers have now come under the spotlight again, for the power of the PM to call for an election is a prerogative one. Though this is up to the discretion of the PM; general elections have usually occurred once in every five years, by convention.

The question is whether this is merely a political convention or has there been codification of this rule? The Fixed Term Parliament Act 2011 (FTPA) passed by the Cameron-Clegg Coalition government of the time tells us the answer. This Act was passed to prevent governments from tactically calling for elections when it suited their convenience.

Before the FTPA, the PM could simply call an election as this was effectively the PM exercising the royal prerogative: no parliamentary vote was needed. It was the PM’s decision. Under the FTPA, the power has been transferred to parliament.

But from a technical point of view, Theresa May can call an election, despite parliaments now having a fixed term of five years under the FTPA.

The FTPA scheduled elections for the first Thursday in May in every fifth year from 2010. According to this rule, the next election will take place on May 7, 2020.

Under the FTPA, however, there are two situations where early elections can be held:

(i) if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division; or

(ii) if a motion of no confidence is passed and no alternative government is confirmed by the Commons within 14 days.

So what will happen next? The UK parliament will vote on the matter soon; and if a two-thirds majority in the House of Commons supports the motion for an early election; then it will be approved by Parliament and Theresa May can go ahead with the election on June 8.

Getting this two-thirds majority would mean, however, that Labour would have to support it too.

She will certainly be taking a calculated risk, but if she wins, her position will be strengthened with the democratic mandate of the electorate. And then the hard stuff – the passing of Brexit legislation and the gruelling task of conversion of thousands of EU laws into UK laws; will begin. Not to mention taking on her formidable opponent, Nicola Sturgeon, the leader of the SNP in Scotland, in the latter’s call for a second independence referendum for Scotland.

And if she loses? A vote of no confidence in her own government would require a simple 50%+1 majority in the House of Commons. If such a motion is passed; and no alternative government is confirmed by the House of Commons within 14 days; then an early general election can also be called.

Of course, there is another option. parliament could choose to repeal the FTPA if it wished to do so. And parliamentary supremacy would save the day again, just as it did in the R (Miller) v Secretary of State for Exiting the EU (2017) UKSC 5 decision.

Meera Badmanaban is a senior lecturer in Constitutional Law.

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