The Platinum Jubilee and future of the monarchy

Queen Elizabeth II this year celebrates her Platinum Jubilee, commemorating 70 years as monarch. UCL recently hosted an event to discuss why we have jubilees, what they say about monarchies, what the process of starting the next reign will look like, the future of the monarchy at home and abroad, and what lessons can be learned from other European monarchies. A summary of the discussion is below.

On Thursday 17 March 2022, UCL hosted a webinar entitled The Platinum Jubilee and the Future of the Monarchy, chaired by Professor Robert Hazell, founder of the Constitution Unit. Robert was joined by four panellists: Dr Bob Morris, an Honorary Senior Research Associate at the Unit, Dr Craig Prescott, Lecturer in Law at Bangor University, Dr Carolyn Harris, a royal historian at the University of Toronto, and Professor Helle Krunke, Head of the Centre for European and Comparative Legal Studies at the University of Copenhagen. The webinar looked to the future in two respects; starting with the Accession of the new King after the Queen dies, and then looking further ahead to address the practicalities of the Prince of Wales’ vision for a smaller Royal Family, the impact of the accession on the Commonwealth Realms, and the continuation of the monarchy itself. This post is a summary of some of the key points made during the session.

Demise of the Crown

On Demise – the legal term for the transfer of the Crown upon the death of the monarch – the Accession Council – a ceremonial body formed following the death of one monarch to proclaim the new one – recognises the seamless transfer of executive power from one monarch to the next; and the coronation celebrates and legitimises the accession of the new monarch. Bob Morris suggested the process is likely to be much the same as it was when the Queen acceded in 1952: the Privy Counsellors will meet at an Accession Council along with the High Commissioners of the Commonwealth Realms, the Lord Mayor of London, and the Court of Aldermen, to make a proclamation declaring Prince Charles, the Prince of Wales, to be King and to receive his oath. The new King will address the nation on the day after Demise, and visit Cardiff, Edinburgh, and Belfast in the days following to present a united vision for his Kingdom. The funeral for the Queen will be held at Westminster Abbey (the first since 1760), before an interment in St Georges’ Chapel, Windsor. Questions remain as to whether any part of the Accession Council will be televised, whether the oath will change, and how over 700 Privy Counsellors will be enabled to attend and sign the Proclamation.

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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.

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The Dissolution and Calling of Parliament Bill: why the House of Commons should retain control over dissolution

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:

  1. While aiming to exclude the courts from the question of dissolution, the government’s bill instead potentially draws them in.
  2. Placing sole reliance on the monarch as a check generates uncertainty, and risks politicising their role.
  3. 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.

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The Dissolution and Calling of Parliament Bill – a return to constitutional normality?

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.

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