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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Many referendums on constitutional change on the horizon for Ireland

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If Ireland’s new government can stay in power, its term looks set to be dominated by one referendum after another. Five referendums have been promised, with the possibility of even more. David Kenny discusses the issues that Irish voters are set to be consulted on over the next few years. He writes that recent experience suggests that referendum fatigue is likely: whilst high-profile issues will continue to generate significant interest, many of the proposed referendums are unlikely to be greeted with enthusiasm by the electorate.

Any change to the 1937 Constitution of Ireland (Bunreacht na hÉireann) – however minor – requires ratification by a majority of voters in a referendum. In the term of the previous government, the Irish people voted on six such referendums, on issues as diverse as the abolition of the upper house of parliament; the provision of same-sex marriage; and reduction in the pay of judges in line with other public servants.

This has not sated the desire for constitutional reform; Ireland’s new government has promised five referendums within its lifetime, with the possibly of several more besides.

In early May, after months of negotiations, a deal was formed to return Fine Gael – the major party in the previous coalition government – to power as a minority government. The result of these negotiations for the support of several independent TDs (MPs) and the acquiescence of main opposition party Fianna Fáil was a detailed Programme for Government, as well as memorandums of understanding between the major parties. These are designed to avoid political conflicts that would threaten the stability of the government. Only time will tell if they will succeed; recent disagreement between Fine Gael and independent cabinet ministers over a Private Members’ Bill on abortion raised doubts as to the lifespan of the government.

If the government lasts, however, we will see many constitutional referendums. The Programme for Government pledged referendums on four discrete subjects, to be held at some point during the government’s term: the constitutional crime of Blasphemy; the ‘women’s place in the home’ clause; the Unified Patent Court; and the constitutional standing of the Ceann Comhairle (the chairperson of the lower house of parliament).

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