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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FTPA Joint Committee lays down marker for the future

The Fixed-term Parliaments Act 2011 placed a legal obligation on the Prime Minister to make arrangements for a committee to review the legislation before the end of 2020. That committee was duly created, and published its report last month. Robert Hazell and Meg Russell offer a summary of the committee’s report, which was rightly critical of the government’s draft repeal bill, but argue that the committee ‘ignored’ the weight of the evidence in some key areas.

On 24 March the parliamentary Joint Committee to review the Fixed-term Parliaments Act 2011 (FTPA) published its report. The committee was established last November under section 7 of the FTPA, which required the Prime Minister in 2020 to make arrangements for a committee to review the operation of the Act, and if appropriate to make recommendations for its amendment or repeal. The review was carried out by a Joint Committee composed of 14 MPs and six members of the House of Lords, and chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin.

The government pre-empted the review by publishing a draft FTPA (Repeal) Bill a week after the committee was established. The Conservative and Labour manifestos in 2019 had both contained a commitment to get rid of the FTPA. As a result the committee focused a lot of attention on the government’s draft repeal bill. But the report devotes almost equal space to the FTPA and how it might be amended, in case parliament prefers to go down that route, now or in the future.

There was clear interest in the committee for retaining but improving the FTPA. The government had a bare partisan majority (11 out of 20 members), and not all Conservative members supported the government line. But the committee managed to avoid any formal votes, instead referring in parts of the report to the majority or minority view. On some key issues the majority view went against the weight of evidence received.

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Should we codify the royal prerogative?

com.google.Chrome.vxw6lk.jpgThe recent controversy about the unlawful attempt to prorogue parliament and the judicial review that followed has given rise to renewed calls for the codification of the royal prerogative or the enactment of a written constitution. Anne Twomey argues that there are benefits to a looser prerogative power, and that experience in other countries has shown that codification should be undertaken with caution.

The recent controversy about the prorogation of parliament and the judicial review of its exercise in Miller No 2 (also known as Cherry/Miller) has again given rise to calls for the codification of the prerogative or the enactment of a written constitution.

A written constitution is not necessarily an antidote for ambiguity or interpretative discretion. The same issues that arose in Miller No 2 could also arise under a written constitution. For example, section 5 of the Australian Constitution confers upon the Governor-General of Australia the power to prorogue the federal parliament. In doing so, however, it does not delineate the scope of the power to prorogue and whether there are any internal limits on it. The term ‘prorogue’ would have to be interpreted in its historical context, as a prerogative power, and in a manner that is consistent with the principles that are derived from the constitution, including the principles of responsible and representative government

So what would happen if an Australian government requested the Governor-General to prorogue parliament for a significant period, in circumstances where it appeared to have lost confidence and to be seeking to frustrate the ability of parliament to fulfil is legislative and accountability functions? It is likely that Australian courts would face exactly the same issues as the UK Supreme Court did in Miller No 2, regarding justiciability, the scope of the power to prorogue and the application of fundamental constitutional principles. Simply setting out the existing power in legislation or a written constitution does not, of itself, resolve all questions as to its application.

While most prerogative powers have now been abrogated by legislation, there is usually a good reason while those that have survived as prerogative do so. It may be because of the need to exercise them in a quick and decisive fashion. Sometimes, codifying prerogatives in legislation, particularly where prescriptive conditions are included, can exacerbate problems about their use. Disputes are likely to arise about the interpretation of the application of the conditions, courts are likely to become involved in enforcing them, and the delay involved in litigation is likely to exacerbate any political crisis. Continue reading

Can Boris Johnson ignore parliament and force a no deal Brexit?

meg_russell_2000x2500.jpgprofessor_hazell_2000x2500_1.jpgControversy is swirling over the extent to which Boris Johnson’s government must be bound by parliament, particularly regarding a ‘no deal’ Brexit. Some have even suggested that Johnson could flout a Commons vote of no confidence and pursue this outcome contrary to parliamentary support. Meg Russell and Robert Hazell explore such questions, concluding that both convention and parliamentary logic mean Johnson cannot ultimately force a ‘no deal’. But to prevent this MPs must be organised and determined.

There has been much recent controversy about whether Boris Johnson’s new government can press ahead with a ‘no deal’ Brexit against the express wishes of the House of Commons. This was kicked off in part by a front-page story in Tuesday’s Times headed ‘Johnson to defy any vote of no confidence’ – suggesting that even if MPs went so far as to withdraw their support from the government, the Prime Minister could stay on and force a ‘no deal’ Brexit, perhaps in the middle of a general election campaign. Various commentators have subsequently expressed their views. Many questions raised are close to those that we addressed in an earlier post on this blog reflecting on constitutional questions surrounding the (then still awaited) appointment of the new Prime Minister. Here we return to some of these questions, and our conclusions are twofold. First, despite disparate commentators’ voices, there is a high degree of agreement on the key issues. Second, the essential answer to the question posed in our title is ‘no’. But this depends on strong political will and organisation by the forces in parliament opposed to ‘no deal’.

The options available to MPs

Much energy has been spent in recent months, including prior to the Johnson premiership, reflecting on what MPs’ options are if they want to block a ‘no deal’ Brexit. The general view – for example from the Institute for Government, and from Jack Simson Caird on this blog – is that such options are limited, but do exist. MPs’ continued determination to prevent a ‘no deal’ outcome was demonstrated by the heavy defeat inflicted on Theresa May’s government over the Northern Ireland (Executive Formation) Bill – which in effect blocked the threat of an autumn prorogation. On a previous occasion, ‘no deal’ was defeated by 400 votes to 160. Now, following the departure of many ministers from the government, the forces against ‘no deal’ on the Conservative backbenches are even stronger.

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Pressures to recall parliament over Brexit during the summer seem likely – what if they occur?

meg_russell_2000x2500.jpgIMG_20190723_020219.jpg (1)A new Prime Minister is expected to be appointed tomorrow, the day before MPs break up for the summer recess. With just 14 weeks remaining before the current Article 50 deadline, the Commons is then not due to meet for almost six weeks. This creates some very obvious scrutiny gaps. Meg Russell and Daniel Gover suggest that pressures for a Commons ‘recall’ during the summer recess seem likely, but that this will revive difficult questions about who can, and should be able to, recall MPs.

On Thursday, MPs are due to leave Westminster for the summer recess. Yet, barring mishaps, a new Prime Minister is expected to be installed in Downing Street only the preceding day, making immediate parliamentary scrutiny of the new government’s key decisions all but impossible. An added pressure, of course, comes from the Brexit context. The current Article 50 deadline for the UK to depart the EU is 31 October, but parliament is due to remain closed for around half that time – for almost six weeks initially, until 3 September, followed by another break for the party conferences. During this period, calls for parliamentary scrutiny of the new government – most obviously over Brexit – seem very likely to grow. 

In this post we examine the pressures that may build for a recall of parliament during the summer, and what mechanisms exist for MPs if they do. Crucially, a formal Commons recall can only be initiated by the government – which may push parliamentarians towards innovative solutions. In the longer term, pressures for reform of the recall process may well be revived. 

Why there may be pressures for recall 

Demands for the Commons to be recalled from a recess are not unusual, as discussed below. However, they seem especially probable this year. MPs are set to break up just one day after the new Prime Minister takes office, while the tensions over Brexit and how he intends to handle this (particularly if the winner is Boris Johnson) are running high.

An initial challenge, raised in another recent post on this blog, is whether it will even be possible to know that the new Prime Minister and his government enjoy the confidence of parliament. The first action of a new premier is to appoint a cabinet, followed by junior ministers. Within the 24 hours available to the House of Commons, this process may not be complete. As the Commons’ confidence depends not only on the personality of the Prime Minister, but the personalities and balance of the whole government, this could well be brought into doubt. Additionally, there will be very little time under current plans for parliament to quiz the Prime Minister on his Brexit strategy. A statement on Wednesday afternoon or Thursday is possible, but not assured – and if MPs are dissatisfied there will be very little time to respond. The immediate start to the recess hence already looks problematic, and MPs may depart amidst claims that the new Prime Minister is dodging scrutiny. Continue reading