Alison Young argues that the Dissolution and Calling of Parliament Bill transfers power from parliament to the government, and not to the people, and that it is wrong to place the blame for the extraordinary events of 2019 on the provisions of the Fixed-term Parliaments Act.
The Fixed-term Parliaments Act 2011 (FTPA) has not had a good press. So much so, that a promise to repeal the Act was included in the 2019 manifestos of both the Labour Party and the current Conservative government. However, as the second reading of its replacement, the Dissolution and Calling of Parliament Bill demonstrates, the apparent consensus ends there. There appeared to be two strong themes to the debate. First, how far does the FTPA’s replacement transfer power from parliament back to the government, or from parliament back to the people? Second, to what extent did the FTPA cause the difficulties – however defined – for the then Conservative minority government in 2019?
Turning back the clock
The FTPA placed the prerogative power of the dissolution of parliament on a statutory basis. It fixed the terms of the Westminster parliament to five years, setting the dates for general elections. It provided two ways in which parliament could be dissolved earlier. First, it was possible for two-thirds of the members of the House of Commons to vote in favour of an early parliamentary general election. Second, dissolution could occur following a vote of no confidence, if, within a two week period, it proved impossible to form a government which had received the backing of a vote of confidence from the House of Commons.
The Dissolution and Calling of Parliament Bill aims to return the Westminster parliament to the position prior to 2011. It repeals the FTPA (section 1) and ‘revives’ the prerogative power to dissolve parliament and to call a new parliament (section 2). However this is interpreted, it is clear that the bill’s intention is to ensure that parliament can be dissolved and recalled ‘as if the Fixed-term Parliaments Act 2011 had never been enacted’ (section 2). Fixed terms of five years are now replaced with a maximum five-year term (section 4). Moreover, the bill seeks to make the dissolution and calling of parliament non-justiciable (section 3) – arguably making the prerogative powers even less subject to judicial review than was the case prior to 2011.
Power to the people?
When challenged as to the democratic credentials of the bill, Chancellor of the Duchy of Lancaster Michael Gove replied: ‘Well, it gives power to the people’. A dissolution of parliament gives rise to a general election. So, it would appear, that calling a general election empowers the electorate, allowing them the opportunity to vote directly for their constituency MP and, thus, indirectly for the government.
However, when assessing this claim, it’s important to remember precisely what power is being returned. The bill does not concern the creation of a new power to hold general elections. It is about the allocation of the power to choose the timing of a general election. Under the terms of the FTPA, general elections are, normally, to be held every five years as determined by parliament in legislation. Exceptionally, general elections could be held earlier, but both required either a vote in favour of a general election by two thirds of the House of Commons, or a vote of no confidence by the Commons. Even more exceptionally, legislation can be enacted to provide for an early parliamentary general election, with parliament approving a specific polling date (as was seen in the Early Parliamentary General Election Act 2019). In other words, parliament set the norm, with at least the House of Commons, if not parliament as a whole, being required to approve the exceptions.
The current bill reallocates the power to choose the timing of a general election to the government, subject to the fall-back provision of a maximum five-year term. This is because the prerogative power which existed prior to the FTPA, which is revived in the current bill, belonged to the monarch, exercisable at the request of the Prime Minister. Such a request was normally granted, subject to exceptions as set out in the Lascelles principles which guided the monarch when considering the Prime Minister’s request prior to the FTPA. The bill may even transfer more power to the government than it possessed prior to the FTPA. The government’s dissolution principles, which were published alongside the Bill, make no mention of the Lascelles principles. Instead, the dissolution principles focus on the need to ensure that the monarch is kept away from politics and that dissolution is guided by the principle that any government only holds power to the extent that it enjoys the confidence of the House of Commons. Should the bill become law in its current form, it may be harder for the monarch to refuse a request for dissolution, even if a refusal were needed to ensure the maintenance of good constitutional government.
The choice of when to hold a general election may seem an insignificant power. However, an ability to control the timing of a general election empowers an incumbent government of whatever political persuasion to choose a date they believe most favourable to their re-election. Professor Petra Schleiter’s comparative research argues that, on average, the ability to choose the date of a general election provides a 5% boost in that election, suggesting that even if the government gets its predictions wrong, it may be a gamble worth taking. It may also be possible to ensure that a general election occurs before a potentially unfavourable report on the performance of the incumbent government, or immediately after a favourable report. The electorate may have the power to choose. But the incumbent government may have a say in what information is available at the time the electorate exercises that choice.
Blame the Fixed-term Parliaments Act
According to the new bill’s proponents, the FTPA failed to do its job. It failed to provide certainty as it failed to ensure fixed parliamentary terms, its 10-year tenure giving rise to two early parliamentary general elections, in 2017 and 2019. More damningly, its existence was claimed to be, at least partially, responsible for the ‘paralysed parliament’; where ‘parliamentarians were actually frustrating the will of the people’ and preventing the government from seeking confidence from the electorate.
However, it is not clear how far the existence of the FTPA added anything to the complex mix of factors which all played a role in the events of 2019. The FTPA does not operate in a vacuum, and in 2019 it was combined with: a minority government; an inability of the government or parliament to unilaterally modify the Article 50 timetable and its accompanying default policy outcome; and novel uses and interpretations of Commons Standing Orders. All of this was played against a backdrop of the 2016 referendum on an issue that cut across and within party lines, which was deemed of such importance that it could potentially override the normal political constraints on behaviour.
To see this, we just need to carry out the thought experiment of what the government might have been able to do if it still enjoyed the prerogative powers of dissolution in place prior to 2011. Rather than proposing and failing to obtain the requisite supermajority in favour of an early general election on 4 September, 9 September and 29 October 2019, the government could have dissolved parliament and triggered a general election. To do so would have given the government the chance to face the electorate. However, given the logistics of Article 50 and the timing of the election, it might also have enabled the government to achieve a policy objective that had been rejected by parliament – either to leave the EU on 31 October 2019 without a deal, or to enact legislation to implement the renegotiated Withdrawal Agreement with little time set aside for parliamentary deliberation. Should we see this as the 2011 Act creating an encumbered parliament, or as preventing an executive from overriding the wishes of the legislature?
A move in the right direction?
The FTPA may not be perfect. But neither is its replacement. The bill transfers power from parliament to the executive. It does so under normal conditions, providing the executive with the ability to time a general election – hopefully – to occur when it is most favourable for the incumbent government.
The bill also places its trust in the monarch and not the courts to provide a check on the executive in exceptional circumstances. To see this, we need to return to our thought experiment: what if the government had dissolved parliament before 31 October 2019, triggering a general election that would have taken place after the Article 50 deadline? The incumbent government may well have had to face the electorate, but would have done so after a default policy choice was set that would have been difficult to reverse in the immediate future.
If the proposed bill had been in force, the only control over the government’s exercise of this power would have been if the monarch had refused the request to dissolve parliament. If the Lascelles principles still applied, it might have been possible for the monarch to refuse a dissolution due to this being detrimental to the national economy. However, to do so would have been controversial and may well have drawn the monarch into politics, trying to ascertain whether a no-deal Brexit was detrimental to the national economy. This accusation would have been even more valid under the proposed new dissolution criteria.
The government’s bill also purports to remove jurisdiction of the courts over the power of dissolution. Prior to 2011, it might have been possible for the courts to have argued, analogously with the second Miller decision, that the prerogative power of dissolution was also limited by parliamentary sovereignty and accountability. These principles would be undermined if the government were able to dissolve parliament in order to force through a policy outcome that MPs had rejected. Arguably, the ouster clause in the bill, which prevents courts determining ‘the limits or extent’ of a prerogative power, removes this potential legal check. Even if the courts were able to interpret this clause so as not to remove all of their jurisdiction over the existence of a prerogative power, it is hard to see how the judiciary could check the dissolution of parliament in this manner without being criticised by whatever government holds power at the time for usurping its proper role.
It may be argued that this scenario is far-fetched. Exceptional scenarios should not be used to interfere with a distribution of powers that may normally work well. That may be true. But it is equally true of using the exceptional circumstances of 2017-19 to justify the repeal of the FTPA. More importantly, consideration of how a law might operate in exceptional circumstances is important when enacting legislation. This is even more true of legislation designed to distribute powers between governmental institutions, where there is a greater need for checks and balances in exceptional circumstances.
This post is one of a series of posts by speakers at the Unit’s conference on the government’s constitutional reform agenda. Professor Young spoke as part of a panel discussing the Fixed-term Parliaments Act, alongside Lord (Patrick) McLoughlin, Chair of the Parliamentary Joint Committee on Review of the FTPA; Chris Bryant MP, member of the Joint Committee on Review of FTPA, and Professor Petra Schleiter. The panel is available to watch on YouTube, and to listen to in podcast form.
About the author
Alison Young is the Sir David Williams Professor of Public Law at the University of Cambridge and was recently appointed as a legal advisor to the House of Lords Constitution Committee. This post was written in a personal capacity before taking up that position.