Next week MPs debate the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act (FTPA) and revive the former prerogative power of dissolution. Meg Russell, Gavin Phillipson and Petra Schleiter, all of whom gave evidence to the parliamentary committees considering FTPA repeal, argue that the government’s bill is flawed. It seeks to keep the courts out of dissolution decisions, but risks drawing them in, and risks politicising the role of the monarch. Removing the House of Commons power over when a general election is held, and returning it to the Prime Minister, would be a retrograde step.
On 13 September, MPs debate the remaining stages of the government’s Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA) and revive the former prerogative power of dissolution. Three parliamentary committees have considered FTPA repeal, to which all of us have submitted evidence. This post summarises key flaws in the government’s approach identified by the committees, and areas where expert evidence suggested solutions to address these flaws.
The post does not argue for retention of the FTPA. Instead it proposes a solution to the problems with the bill that would leave parliament at the heart of decision-making. It makes three key points:
- While aiming to exclude the courts from the question of dissolution, the government’s bill instead potentially draws them in.
- Placing sole reliance on the monarch as a check generates uncertainty, and risks politicising their role.
- The solution to both of these problems is to retain a requirement for the House of Commons to vote on the Prime Minister’s request for a general election by simple majority. Concerns that this could recreate the 2019 Brexit deadlock are groundless.
Our core argument is that maintaining the Commons’ ultimate control over dissolution, while fixing the defects of the 2011 Act, would be a better solution.
The bill seeks to exclude the courts from dissolution but risks drawing them
The bill’s central objective is to return the power to dissolve parliament to the monarch, to be granted on the Prime Minister’s request – that is, to restore the pre-FTPA status quo. Clause 3 (‘Non-justiciability of revived prerogative powers’, commonly referred to as the ‘ouster clause’) seeks to exclude the courts from considering cases relating to dissolution. The courts have never intervened in dissolution decisions (the 2019 Supreme Court case was on prorogation, which is different). But inclusion of the clause suggests that the government perceives some risk of judicial intervention if it attempts to revive the prerogative.
Ironically, the government’s chosen approach of reviving the prerogative may increase such a risk, notwithstanding the ouster clause. As numerous experts have pointed out, there is no certainty that a prerogative power, which is by its very nature non-statutory, can be revived by statute. So this is uncharted territory, and the resultant legal uncertainty could only ultimately be resolved in the courts. Both PACAC (para. 50) and the Constitution Committee (para. 39) advised the government against seeking to restore the prerogative for precisely this reason.
It is also far from certain that the ouster clause would be effective. The courts would likely ‘read it down’, in order to uphold the fundamental rule of law principle that government may only act through legal powers with defined limits. Thus, they could well permit judicial review at least of the scope of the ‘revived’ prerogative. Having heard evidence on this (including from the authors) the Joint Committee concluded that the government should consider a ‘clearer and more limited approach’ (para.175). PACAC similarly concluded that the ouster clause could have ‘unforeseen and unintended consequences for our long-established constitutional arrangements’, and called it ‘constitutionally unwise’. At worst, it risks pitting parliamentary sovereignty against the rule of law.
The bill risks politicising the role of the monarch
If the courts are excluded from interfering in a prerogative power of dissolution, then the only potential constitutional check on a rogue Prime Minister under the bill is the monarch. But unless the circumstances allowing a dissolution to be refused are transparent and clear, this risks drawing the monarch into political controversy.
Before the FTPA, dissolution had historically been informally governed by the ‘Lascelles principles’, which articulated circumstances in which the monarch might refuse a dissolution. The Joint Committee explored this (paras. 129-35), indicating that refusal might be appropriate in circumstances such as when there had only very recently been a general election, or where an alternative Prime Minister could command the confidence of the Commons. The government proposed ‘draft dissolution principles’ alongside its previous draft bill, which the Joint Committee found ‘inadequate’. Both it (paras. 144-45, and 231-32) and PACAC called for ministers to set out the dissolution criteria more clearly, arguing that MPs could not adequately scrutinise the bill without also considering the principles which will govern its operation.
But the government has still not provided the detail that the committees called for. As a matter of principle, it should not be for any government unilaterally to define the conventions that limit its own powers. But even if it tried, Cabinet Office Minister Chloe Smith admitted in her evidence to PACAC on 23 June (Q31) that ‘It is simply not going to be possible to articulate all those circumstances’ in which the monarch might refuse a request. Even if a comprehensive, agreed list could be drawn up, applying it in a politically-charged situation would inevitably require some interpretation, meaning the monarch could be dragged into political controversy. Indeed some experts doubt the continuing applicability of Lascelles and argue that the Queen no longer has discretion to refuse a dissolution request.
The solution is to retain the principle of Commons control
Clearly, as the Joint Committee argued, ‘the powers of the Prime Minister to fix the time of an election should not be unlimited’ (para.142). It is appropriate and necessary for there to be some check on executive power. If the courts are not to provide this, and the monarch is in practice constrained from doing so, it is right that the House of Commons should serve as the ultimate authority.
A fundamental change brought about by the FTPA was to require House of Commons approval for dissolution. This was celebrated in the 2015 Conservative manifesto, as ‘an unprecedented transfer of Executive power’. The change was in line with the gradual growth of parliament’s influence over other areas of prerogative power, such as treaty-making and the decision to deploy military force. It was also in line with international practice; it is now extremely rare in comparable developed democracies for the executive’s power of dissolution to be completely unchecked by other democratic institutions – such as the legislature, an elected head of state, or the courts.
The committees which considered FTPA repeal received substantial evidence in favour of maintaining Commons control over dissolution. Though they stopped short of recommending it, there was clear support for retaining an effective check. PACAC (para. 18) emphasised that ‘there should not be a return to the Executive dominance of election calling’, while the Joint Committee made clear that some of its members wanted to retain the principle of Commons control (para. 86).
The two-thirds Commons majority required in the FTPA for an early dissolution has in practice proven unenforceable, as was shown by passing the Early Parliamentary General Election Act 2019. In contrast, requiring a simple majority for dissolution would protect against inappropriate action by a rogue Prime Minister, while presenting no serious obstacle to one with Commons support. A motion agreeing an election would, incontrovertibly, be a ‘proceeding in parliament’, making it immune from legal challenge under Article IX of the Bill of Rights 1689. The ouster clause would thus become unnecessary.
Even in the tense circumstances of 2019, a Commons majority for an election was readily achieved once a mechanism existed to fix its date. A motion for an election should therefore also be required to specify the date. All three parliamentary committees noted the problems under the current system of prime ministerial control in this area (PACAC para. 69, Constitution Committee para 130-31, Joint Committee para. 49). Requiring Commons approval for the election date would, again, avoid drawing the monarch into controversy about this question, while offering certainty to MPs.
It has commonly been argued that the need for a Commons vote on dissolution under the FTPA contributed to the 2019 Brexit deadlock. As emphasised by most witnesses to the three committees, the deadlock resulted from other factors, and the FTPA’s role has been much overstated. In any case, the deadlock was ultimately resolved via the Early Parliamentary General Election Act. The solution proposed here would create a similar approval mechanism, but without the need for legislation.
It is fundamental to the UK’s constitutional order and to the rule of law that there must be some check upon executive power. The Dissolution and Calling of Parliament Bill as drafted removes formal parliamentary controls and seeks to prevent the courts from exercising any check. But the attempted restoration of the prerogative would create legal uncertainty, and could unintentionally drag the courts into dissolution disputes. The only backstop left in the bill is the monarch, but without clear guidance on when a dissolution could be refused, this generates uncertainty that could draw the monarchy into political controversy. Replacing a check provided by the House of Commons with the decisions of a hereditary monarch guided by highly uncertain and contested conventions would be a retrograde step.
A core constitutional principle is that the executive is accountable to parliament, as the sovereign political institution. The far more desirable and effective solution to that set out in the government’s bill would therefore be to maintain the House of Commons’ ultimate control over dissolution, by requiring a simple majority vote for an early general election on a specified date. This is consistent with the foundational principle of parliamentary sovereignty, and with international practice in comparable democracies. Retaining Commons control would provide a clear check on executive power, while providing appropriate protection against the courts’ involvement in dissolution. It would also allow removal of the controversial ouster clause.
About the authors
Meg Russell is Professor of British and Comparative Politics and Director of the Constitution Unit at University College London. She is currently a Senior Fellow at the UK in a Changing Europe, working on ‘Brexit, Parliament and the Constitution’. She submitted written evidence to the Joint Committee on the FTPA, and to PACAC’s inquiry into the FTPA.
Gavin Phillipson is Professor of Public Law, University of Bristol. He was an Academic Parliamentary Fellow in the Parliament and Constitution Unit of the House of Commons Library, 2018-19. He submitted written evidence to the Joint Committee on the FTPA, and gave oral evidence to PACAC’s inquiry into the FTPA. .
Petra Schleiter is a Professor of Comparative Politics and Joint Head of the Department of Politics and International Relations at the University of Oxford. She is also a Fellow of the UCL Constitution Unit. She submitted written evidence to the Joint Committee on the FTPA and gave oral evidence to PACAC’s inquiry into the FTPA.
Pingback: The Queen’s speech, the Johnson government, and the constitution – lessons from the 2021-22 session - The Constitution Society
Pingback: The Queen’s speech, the Johnson government, and the constitution – lessons from the 2021-22 session | The Constitution Unit Blog
Pingback: The House of Lords amendment to the Dissolution and Calling of Parliament Bill returns appropriate power to MPs: they should accept it | The Constitution Unit Blog
Pingback: Monitor 79: Is this what democratic backsliding feels like? Constitutional developments under the Johnson government. | The Constitution Unit Blog
Pingback: The Fixed-term Parliaments Act did not cause the Brexit impasse | The Constitution Unit Blog