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 Fixed-term Parliaments Act did not cause the Brexit impasse

Next week MPs debate the government’s bill to repeal the Fixed-term Parliaments Act 2011. One argument frequently deployed for scrapping the Act is that it generated gridlock over Brexit. But, Meg Russell argues, no clear counterfactual to support this claim has ever been presented. In fact, when considering the possible scenarios, it seems likely that the situation would have been made worse, not better, had the Prime Minister retained an untrammelled prerogative power to dissolve parliament in 2017–19.

Next week MPs debate the remaining stages of the Dissolution and Calling of Parliament Bill, which seeks to repeal the Fixed-term Parliaments Act 2011 (FTPA). It proposes to reinstate the pre-FTPA position, whereby the Prime Minister would effectively control general election timing using prerogative power. A key argument deployed by those seeking repeal of the FTPA is that it helped to cause the Brexit deadlock of 2019: that the FTPA, as the Conservative manifesto put it, ‘led to paralysis at a time the country needed decisive action’. But to what extent is this really true?

While suggestions that the FTPA created the Brexit deadlock are commonplace, most experts who contributed to the three parliamentary committees that have considered FTPA repeal (the Commons Public Administration and Constitutional Affairs Committee, Lords Constitution Committee and Joint Committee on the Fixed-term Parliaments Act) argued that the deadlock resulted from other factors. Most obvious were the post-2017 combination of a minority government, the need to deliver on a contested referendum result, and deep divisions within the governing party. These problems were clearly serious, and it is very far from clear that the FTPA could have resolved them.

A careful reading of the evidence presented to the three parliamentary committees, and of the Commons second reading debate on the bill, finds that most claims against the FTPA over Brexit are distinctly vague. No clear counterfactual is offered. This particularly applies to events during Theresa May’s premiership, when the most intractable problems arose. The situation did change in the autumn of 2019 under Boris Johnson (as discussed below), but the FTPA’s targeting as a causal factor dates back far earlier than this. Likewise, during interviews with a series of senior figures for a current book project on parliament and the Brexit process, I have asked several critics of the FTPA how, if Theresa May had been able to trigger an early general election without parliament’s consent, things would have turned out differently. I have yet to receive a convincing reply.

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