The House of Lords amendment to the Dissolution and Calling of Parliament Bill returns appropriate power to MPs: they should accept it

The House of Lords has amended the government’s Dissolution and Calling of Parliament Bill to require House of Commons approval for early general elections. Tom Fleming and Meg Russell explore what MPs should consider when the bill returns to the Commons. They argue that the Lords amendment deserves support, as it provides an important limit on Prime Ministers’ power to call early elections, and avoids drawing either the monarch or the courts into political controversy.

Background

The Dissolution and Calling of Parliament Bill seeks to change how early general elections are called in the UK. Specifically, it aims to restore the Prime Minister’s control of election timing, by repealing the Fixed-term Parliaments Act 2011 (FTPA).

Before 2011, general elections were required at least every five years. However, the Prime Minister could ask the monarch to dissolve parliament during that period, resulting in an earlier election. The FTPA removed this personalised power, and instead handed control to the House of Commons. Under its provisions, early elections would occur only if two-thirds of all MPs voted to support one, or if the Commons expressed ‘no confidence’ in the government and no government could regain confidence within two weeks. Subsequently, in 2019, the two-thirds majority was shown to be unenforceable, when Boris Johnson presented the Early Parliamentary General Election Bill. This temporarily overrode the FTPA requirement in order to stage the December general election, and both the Commons and the Lords supported it.

The government is now seeking to permanently reverse the FTPA with the Dissolution and Calling of Parliament Bill. This bill passed through its Commons committee and remaining stages in little over two hours last autumn, with limited opportunity for detailed consideration, and was approved without amendment. However, it has since faced more extended scrutiny in the House of Lords.

What happened in the House of Lords?

On 9 February, the Lords passed an amendment – proposed by Crossbench convener and former Lord Chief Justice Lord (Igor) Judge, and others including senior Conservative Lord (Andrew) Lansley – which retains a role for parliament in calling early elections. Specifically, the amendment provides that the Prime Minister can only request a dissolution if MPs pass a motion ‘that this present Parliament will be dissolved’.

The amended bill thus now offers something of a middle way between the FTPA and the government’s original proposals, by retaining but simplifying parliament’s role in calling early elections. It avoids the FTPA’s ambiguous provisions around no-confidence motions, which were never tested in practice. More importantly, it removes the need for two-thirds of MPs to support an early election, instead requiring only a simple majority vote.

What happens next?

The bill received its final Lords consideration on 24 February, and will now return to the Commons. MPs must therefore choose either to accept or reject the Lords amendment. The government will almost certainly ask them to do the latter, and if they comply, the bill will be sent back to the Lords. At that point, the Lords is unlikely to press its case further – Lord Judge has described the amendment as a way of seeing if the Commons ‘may have second thoughts’. The amendment’s fate will thus depend on MPs’ actions; so it is important that they carefully consider the issues raised by this bill.

What questions should MPs consider when deciding how to respond?

There are three particularly important questions for MPs to consider.

1. Should the Prime Minister be able to call elections unilaterally?

First, MPs should ask themselves whether there ought to be any checks on a Prime Minister’s ability to call an early general election. There seems to be widespread agreement in parliament that some form of checks should exist. Indeed, this appears to have been accepted by the government itself, given that its previously-published ‘dissolution principles’ (see below) implied that the monarch might refuse a Prime Minister’s request for dissolution. Beyond parliament, a large-scale survey by the Constitution Unit found that just 12% of the British public thought that the Prime Minister alone should decide when a general election is called. Its Citizens’ Assembly on Democracy in the UK (comprising a representative sample of UK citizens) meanwhile concluded in December that ‘The Prime Minister should only be able to call an early general election if it is supported by a vote in the House of Commons’.

There are two key principled arguments for placing some check on the Prime Minister’s ability to call early general elections.

First, Prime Ministers have no independent democratic mandate. They hold office thanks to commanding the confidence of the House of Commons. MPs might therefore question the democratic basis of allowing an unelected Prime Minister to unilaterally dissolve an elected parliament.

Second, some check is needed to prevent a ‘rogue’ Prime Minister abusing the power to call an election for their own personal reasons, over the heads of MPs in their party. With no restrictions on that power, a Prime Minister might for example lose a general election but then call another immediately to avoid losing office, or call an election if threatened with removal as leader of their party, in an attempt to appeal directly to the public.

It may seem unlikely that a Prime Minister would behave in this way. But recent events – from the illegal 2019 prorogation to Downing Street’s busy social calendar during lockdown – suggest that conventions and norms alone may no longer prevent inappropriate behaviour. As a general principle, constitutional rules should be robust in a range of circumstances, however unlikely.

2. Does the bill provide sufficient protection to the monarch?

The original bill envisaged just one formal check on the Prime Minister’s ability to call early elections: the power of the monarch to refuse the Prime Minister’s request for a dissolution. However, the bill provides no clear guidelines for when it might be appropriate for the monarch to do so. The government published a set of dissolution principles alongside an earlier draft version of the bill, but these were criticised for their vagueness by both the Commons Public Administration and Constitutional Affairs Committee and the Joint Committee on the Fixed-Term Parliaments Act. Their status is now unclear, as the government did not publish a revised version alongside the bill’s formal introduction to parliament.

Even with clearer rules, asking the monarch to play this role risks drawing them into highly sensitive political decision-making. This is troubling for both defenders and critics of the monarchy. Crucially, the risk of controversy is in practice likely to deter the monarch from ever refusing a Prime Minister’s request. Such a check thus risks being both controversial and ineffective.

The courts could potentially have provided a further check on the Prime Minister. But the bill currently includes a so-called ‘ouster clause’, which aims to prevent them reviewing cases related to dissolution. Some have argued, including on this blog, that judges might ‘read down’ this clause, ensuring some scope for judicial review. But this risks politicising the courts, and the bill’s intention is for them to be kept out of the Prime Minister’s ability to call elections. This leaves the monarch very exposed.

3. Would requiring a Commons vote provide the necessary check on the Prime Minister?

MPs may thus view the government’s original bill as having provided insufficient checks on the Prime Minister’s ability to call an early general election. The Lords amendment offers a simple solution to these concerns, by preventing the Prime Minister requesting a dissolution unless the House of Commons has voted to support this course of action. The constraint would rest on the important constitutional principle that the Prime Minister’s mandate stems solely from their commanding the confidence of the House of Commons.

This solution avoids the risk of the monarch being drawn into political controversy about the calling of early general elections. The amended bill retains a role for the monarch, in granting a dissolution on the Prime Minister’s request. But the need for a prior Commons vote would provide essential political cover. This would greatly reduce the prospect of the monarch as the ultimate (and on the government’s proposals, the sole) guardian of the constitution needing to assess the appropriateness or otherwise of a dissolution request.

Requiring a Commons vote before dissolution would also reduce the risk of the courts being drawn into political controversy, given that Article IX of the Bill of Rights prevents legal challenges to ‘proceedings in parliament’. This would be far more effective than the government’s ‘ouster clause’ in limiting the role of the courts.

Opponents of this amendment might fear it causing ‘gridlock’ if a Prime Minister were ever unable to secure parliamentary support for an early election. However, the amendment makes this outcome considerably less likely than under the FTPA, by replacing its two-thirds requirement with a simple Commons majority. The amendment is not designed to prevent governments from seeking early general elections. It would solely prevent a Prime Minister from calling an early election without the support of MPs.

Conclusion

The Dissolution and Calling of Parliament Bill represents a significant constitutional reform, altering how early general elections are called in the UK. It previously received little scrutiny in the Commons. There is widespread agreement that there should be at least some checks on Prime Ministers’ ability to call early elections. However, the checks envisaged in the bill as introduced were very limited, and risked drawing the monarch into political controversy.

The Lords amendment offers a simple and workable solution to these problems. Requiring prior Commons approval for an early general election places some check on the executive, while reducing the likelihood of either the monarch or the courts being embroiled in damaging political disputes.

Crucially, this change would not prevent Prime Ministers from securing an early general election, provided they obtained the support of the House of Commons. Ultimately, MPs should consider whether a Prime Minister should be able unilaterally to dissolve an elected parliament against its wishes. The Conservative sponsor of the Lords amendment has urged his Commons colleagues in writing to accept it, and we are inclined to agree.

About the authors

Tom Fleming is Lecturer in British and Comparative Politics at UCL.

Meg Russell FBA is Professor of British and Comparative Politics and Director of the Constitution Unit. She is currently a Senior Fellow at the UK in a Changing Europe, working on ‘Brexit, Parliament and the Constitution’. 

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