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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The Constitution Unit blog in 2020: the year in review

As was the case last year, 2020 has been a fascinating time to be writing about the UK constitution, its institutions and those involved in working within them (more so than anyone could have predicted in January). As the year draws to a close, blog editor Dave Busfield-Birch offers a roundup of the blog year just gone, as well as a look at the reach of the blog through the lens of its readership statistics. 

2019 was a year of constitutional flux and tension, with a new Prime Minister, a new Brexit deal and a new parliament. As challenging as 2019 was, however, 2020 has proved no less of a test for the constitution, its institutions and actors. It was always likely that the Brexit talks would not prove easy, and that the government’s Commons majority would not mean the Johnson government would automatically be able to bend parliament to its will. The pandemic has, of course, magnified the complexity of the government’s pre-existing challenges and raised a whole new number of policy problems, creating constitutional flashpoints aplenty. 

Below are our most popular blogs from the past year, preceded by a personal selection by me, at the end of my third year as blog editor.

Editor’s picks

The 2019 election campaign shows that abuse, harassment and intimidation of candidates is getting worse, especially for women, by Sofia Collignon.

It’s difficult to call this one of my ‘favourite’ blogs, but it’s definitely one of the most important that we produced this year. Women candidates continue to disproportionately experience intimidation and harassment during general election campaigns, and Sofia Collignon eloquently describes the specific problems they face. I have advised victims of harassment, discrimination and gender-based violence for most of my adult life, so this is a topic very close to my heart: sadly we still have a very long way to go.

The role of monarchy in modern democracy, by Robert Hazell and Bob Morris.

I studied history as an undergraduate and I always tended to focus on periods when the monarchy itself was in crisis and being challenged by other institutions. I therefore always enjoy editing Robert and Bob’s blogs on the subject. At the end of a busy year for the monarchy, which has had to adapt to both ‘Megxit’ and the pandemic, this blog stands out, summarising as it does the main conclusions of their new book, The Role of Monarchy in Modern Democracy: European Monarchies Compared. The book is fascinating, and I would also recommend viewing the launch event (chaired by Jonathan Dimbleby) on our YouTube page, where you can find video recordings of all our 2020 events. 

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Braking the law: is there, and should there be, an executive veto over laws made by parliament?

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, Paul Evans explores this question in detail. He summarises his conclusions here.

What do executive vetoes look like? 

Many constitutional democracies include mechanisms whereby a head of state can veto a law made by the legislature, but few of these are absolute vetoes. Most are suspensory, inviting the legislature to think again, but giving it the last word. The US Constitution is the most obvious example of such an arrangement. France has a broadly similar system but, as with many if not most such vetoes, it isn’t used. Some states (for example Iceland) enable the president to put a law to a referendum. Others (such as Ireland) leave the last word with a constitutional court, but only on matters of constitutionality, not on grounds of political disagreement.

In the UK (and most of the old dominions which retain the Queen as head of state) such an arrangement looks impossible. The executive and the legislature are fused – they can’t have different views. The executive as a lawmaker in the UK only exists as an element of the sovereign parliament (the somewhat misleadingly titled ‘Crown-in-Parliament’). The sovereign has no personal stake in the making of law. They must do as parliament decides. As long ago as 1867, Walter Bagehot expressed this constitutional fact with typical rhetorical brio:

The popular theory of the English Constitution involves two errors as to the Sovereign. First, in its oldest form at least, it considers him as an ‘Estate of the Realm’, a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the Sovereign once was, but this he is no longer. That authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.

Withholding of royal assent

Nonetheless, when the first stirrings of what was to become the Cooper-Letwin Act (the European Union (Withdrawal) Act 2019) began in the Commons in early 2019, it was suggested in some quarters that ministers could advise the sovereign to refuse royal assent to an Act agreed upon by parliament. The same argument re-emerged six months later in relation to the Benn-Burt Act (the European Union (Withdrawal) Act (No. 2) 2019), which Boris Johnson insisted on referring to repeatedly as the ‘Surrender Act’. But, despite these theoretical arguments, subsequent events appear to have confirmed that this concept of a royal veto is definitely a dead letter. Queen Anne was the last sovereign to decline the royal assent to an Act passed by parliament – in 1707 (or 1708 if you prefer to apply retrospectively the change of the new year from 25 March to 1 January in 1752). 

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