The Constitution Unit Blog

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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A question of confidence? The Constitution Committee’s view on the Fixed-term Parliaments Act 2011

Nine years after the passage of the Fixed-term Parliaments Act, both government and opposition have expressed a desire to repeal it, following two general elections: one brought about about using the provisions of the Act and another by circumventing them. The Constitution Committee has produced a report setting out what any replacement legislation needs to address. Its Chair, Baroness Taylor, discusses the Committee’s conclusions below.

On its introduction in 2011, the Fixed-term Parliaments Act (FTPA) was heralded by the then Deputy Prime Minister, Nick Clegg, as a ‘constitutional innovation’ that would no longer allow the timing of general elections to be a ‘plaything of Governments’. Nine years on, it is safe to say that the FTPA has not had the effect that he and others envisaged. The FTPA has been stress-tested and found wanting by political parties and commentators alike. 

The FTPA sets the length of parliaments at five years and requires the approval of the House of Commons for an early general election. It removed the longstanding prerogative power of the monarch to dissolve parliament at the request of the Prime Minister and instead vested this authority in Members of Parliament. In 2017, Prime Minister Theresa May proved that a government that wanted an election could secure one using the provisions of the FTPA. In 2019, at the helm of a minority government that was thrice denied an early general election under the FTPA, Prime Minister Boris Johnson sidestepped its requirements with the Early Parliamentary General Election Act.

These events prompted proposals from both the Conservative and Labour parties to repeal the FTPA. The current government has reiterated that commitment since taking office. However, repealing the FTPA is not straightforward, given its constitutional and legal implications. It is in this context that the House of Lords Constitution Committee published its report on the FTPA on 4 September, exploring its effects and the questions that need to be addressed for any future reform.

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Should the government be able to suspend parliament?

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Petra Schleiter and Thomas Fleming examine the power to prorogue parliament. They outline the legal basis of prorogation, survey how it is used in the UK and other Westminster systems, and discuss how the UK could reform its prorogation process.  

The UK government has the power to suspend parliament, in a process known as prorogation. Prorogation is usually a routine measure, used to schedule gaps between sessions of parliament. But it became highly controversial in 2019, when the government tried to prorogue parliament for five weeks shortly before the scheduled Brexit date of 31 October. This decision caused uproar, and was ultimately quashed by the Supreme Court.

This controversy prompted discussion of whether the UK’s prorogation rules should be reformed. In particular, some have asked whether this power should be considered as part of the forthcoming review of the Fixed-term Parliaments Act 2011, which is legally required to take place this year. Here we outline the consequences of the current rules, showing that they are unusual, and suggesting possible ways for them to be reformed. Fuller versions of our arguments can be found in our recent articles in Political Quarterly and Parliamentary Affairs (forthcoming).

What are the consequences of the current prorogation rules?

Prorogation ends a parliamentary session. It means that neither House of Parliament may sit, and parliamentary business is almost entirely suspended. Though prorogation is formally a prerogative power of the monarch, she acts on the advice of the Prime Minister. In practice, therefore, the timing and length of prorogation are decided by the government. Parliament has no power to insist on sitting once it has been prorogued: only the government can shorten or prolong a prorogation. This situation makes it possible for the government to use prorogation for political purposes when its interests conflict with those of parliament.

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Can Dominic Cummings defy the political laws of gravity?

meg_russell_2000x2500.jpgRecent news has been dominated by Dominic Cummings’ lockdown trip to Durham. As a serial rule-breaker, he seems intent on flouting the maxim that ‘when the adviser becomes the story, the adviser must go’. But with MPs returning today, other fundamental political rules may not be so easily broken, writes Meg Russell. All Prime Ministers depend on their backbenchers for support and, with Conservative MPs in open revolt over Cummings, Johnson’s backing for him may yet become untenable. In the Westminster system MPs are ultimately in charge, and there are ways in which they could assert their position.

The Prime Minister’s adviser Dominic Cummings doesn’t like to follow the rules. That’s not necessarily a statement on his lockdown-breaking trip to Durham – disdain for established rules, and specifically for conventional wisdom that can’t be directly enforced, is what Cummings has long been known for. For some, it’s seen as part of his ‘genius’. From flying a giant inflatable white elephant over the north-east during a referendum that destroyed Labour’s plans for English regional devolution, to the audacious ‘£350 million a week’ for the NHS on the Vote Leave battlebus, to the long-planned ‘people versus parliament’ election of 2019, his boundary-stretching has often proved a winning formula, and delivered for Boris Johnson.

Cummings has long shown particular disdain for traditional political institutions, and their old ways of doing things. He’s well-known for wanting to pursue radical reform of the civil service. Conservative Brexiteer MP Steve Baker, who was among the first to call for him to quit, credits Cummings with Johnson’s attempt to prorogue parliament for five weeks, which was overturned in the Supreme Court. That move, like several others associated with Cummings, indicated his view that conventions, or the ‘accepted way of doing things’ count for nothing, while all that matters is the letter of the law. Other examples include suggestions to ‘pack’ the House of Lords with hundreds more Brexit-supporting peers, or to advise the Queen not to sign a rebel bill into law. Indeed ‘Downing Street sources’ went even further late last year, suggesting that Johnson might refuse to abide by a law passed by parliament. Continue reading

Parliament and Brexit: what do the public think?

IMG_20181213_223144Almost four years have passed since the 2016 EU referendum delivered a mandate for Brexit. However, as John Curtice explains in the latest extract from our joint report on Parliament and Brexit, the views of the public on the role of referendums in the Brexit process is heavily influenced by their views on whether Britain should leave the European Union or remain a member.

Though they have been used various times on constitutional matters in the UK, referendums are often thought to challenge traditional notions of representative parliamentary democracy. In the UK’s version of such a democracy, MPs are sent to Westminster to deliberate and exercise their judgement on their constituents’ behalf. Referendums seemingly usurp this traditional role, in an attempt to ascertain ‘the will of the people’.

Nonetheless, survey research has long suggested that referendums are popular with voters – as indeed was the June 2016 EU referendum. A fortnight beforehand, 52% told YouGov that David Cameron was right to hold a referendum on Britain’s EU membership, and only 32% said he was wrong. On the very eve of polling, Ipsos MORI reported that 66% of voters felt the Prime Minister was right to hold a ballot, while only 24% reckoned he was wrong.

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Yet, underneath the surface there were already important differences of opinion. As the first chart shows, Leave and Remain backers had rather different views. According to YouGov, 83% of Leave supporters supported Cameron’s decision, and only 9% thought it wrong. In contrast, 60% of likely Remain voters disliked the decision and only 26% approved. Of course, in calling the referendum Cameron had opened up the possibility that the UK might indeed leave the EU, a prospect that Leave voters were more likely to
embrace. Continue reading