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: should it be amended or repealed?

A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.

On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:

The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once more Parliament will be dissolved by the Sovereign, on the advice of the Prime Minister. This will enable Governments, within the life of a Parliament, to call a general election at the time of their choosing.

The bill also contains an ouster clause to make sure that the exercise of the power of dissolution, and any decision relating to that power is non-justiciable and therefore not open to challenge in the courts. Alison Young and Mark Elliott have published detailed legal critiques of the bill which analyse the effectiveness of the ouster clause, and whether the power of dissolution that has been revived is now a statutory power, or a prerogative power. This blog does not go into the legal complexities, but focuses on the politics, and the possible outcomes from the review of the bill by the joint parliamentary committee established in November.

The joint parliamentary committee, and previous committees

The FTPA has all along contained a built-in mechanism for its own review, in a final section added during its parliamentary passage in 2011. Section 7 provides that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established last month, with 14 MPs and six members of the House of Lords. The Committee held its first sitting on 26 November, when it elected former Conservative Chief Whip Lord (Patrick) McLoughlin as its chair, and set a deadline of 4 January for the submission of evidence. The Committee held its first oral evidence session on 10 December, with Stephen Laws and Professor Alison Young; the next session is on 17 December, with former Commons clerks Lord Lisvane and Malcolm Jack.

But two parliamentary committees have already recently reviewed the operation of the FTPA: the Lords Constitution Committee, and the Commons Public Administration and Constitutional Affairs Committee (PACAC). The Lords Committee held two evidence sessions, in autumn 2019 (including evidence from me); but it was a further year before the Committee published its report in September 2020, as summarised here by its chair Baroness (Ann) Taylor. The long delay suggested the Committee had difficulty agreeing its recommendations, and the report instead raised a series of basic questions about any legislation to replace the FTPA. 

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The role of monarchy in modern democracy

In the 21st century, monarchies remain pivotal parts of several democratic countries across Europe, including the UK. In a new book, edited by Unit founder Robert Hazell and Bob Morris, contributors from across Europe consider the constitutional and political role of monarchy, its powers and functions, how it is defined and regulated, the laws of succession and royal finances, relations with the media, its popularity, and why it endures.

Monarchy has a long history in Europe, being the predominant form of government from the Middle Ages until the First World War. At the turn of the twentieth century every country in Europe was a monarchy with just three exceptions: France, Switzerland and San Marino. But by the start of the twenty-first century, most European countries had ceased to be monarchies, and three quarters of the member states of the European Union are now republics. That has led to a teleological assumption that in time most advanced democracies will become republics, as the highest form of democratic government. 

But there is a stubborn group of countries in Western Europe which defy that assumption, and they include some of the most advanced democracies in the world. In the most recent Democracy Index compiled by the Economist Intelligence Unit, six out of the top ten democracies – and nine of the top 15 – in the world were monarchies. They include six European monarchies: Norway, Sweden, Denmark, the Netherlands, Luxembourg and the UK.

This paradox of an ancient hereditary institution surviving as a central part of modern democracies prompted the comparative study which led to our latest book, The Role of Monarchy in Modern Democracy: European Monarchies Compared. Our study, written by 20 academic experts, includes the six countries listed above, plus Belgium and Spain. 

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Choosing a Prime Minister: their exits and their entrances

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Seventeen of the Prime Ministers to take office since 1900 left office for reasons other than defeat at a general election. In this blogpost, Rodney Brazier, author of the recently published Choosing a Prime Minister, reflects on how those Prime Ministers have secured and surrendered the keys to Number 10, and the Queen’s role in their appointment.

It’s unlikely that Boris Johnson spends much time thinking about the next election. Thanks largely to him the government obtained an 80-seat Commons majority at the polls just over six months ago, and each member of his Cabinet gave pledges of personal loyalty before getting their jobs. What could possibly go wrong? But if any of his close advisers were to read my book Choosing a Prime Minister then brows might furrow. The book notes that 17 of the two-dozen individuals who have occupied Number 10 since 1900 were forced to leave without any push from the voters. Illness or old age, revolts in the governing party, loss of the confidence of the House of Commons, or personal political blunders all contributed to that high total. Indeed, three of Johnson’s four immediate predecessors (Tony Blair, David Cameron and Theresa May) quit without the electorate’s help. Ill health and party coups were the main, but not at all the only, causes of all those 17 exits. Johnson himself had a brush with death in March. I would bet good money against the present Prime Minister leading the Conservatives into the next general election.  Continue reading

Coronavirus: how Europe’s monarchs stepped up as their nations faced the crisis

bob_morris_163x122.jpgprofessor_hazell_2000x2500_1.jpgLast Sunday, the Queen spoke to the nation in a rare televised address. The speech was widely praised, and several other European monarchs have made similar attempts to connect with the public. Bob Morris and Robert Hazell argue that her intervention demonstrates the value of an apolitical head of state that remains compatible with modern democracy. 

The British Queen’s address to the nation on Sunday, April 5 evoked huge interest, respect and widespread appreciation. Nearly 24 million people in the UK watched her deliver the four-minute speech, which paid tribute to National Health Service and other key workers, thanked people for following government rules to stay at home and promised ‘we’ll meet again’.

Her words were greeted with almost universal praise from politicians, press and the public alike. But what made it so special? Who advises the Queen on such occasions? And what does it tell us about the monarchy – what can monarchs do that political leaders cannot?

It was special because of its rarity – this was only the fourth occasion on which Elizabeth II has addressed the nation other than in her annual Christmas message. All have marked particular national moments: war in Iraq, the deaths of Princess Diana and the Queen Mother, her thanks for the celebrations for her diamond jubilee. In different ways they bring the nation together – her heartfelt address before Diana’s funeral was especially effective in bringing her people to understand why she had prioritised consoling her bereaved young grandchildren.

The coronavirus speech – a little over 500 words – came invested with the authority of someone able to draw on long personal experience of the country’s trials. Instancing her own message as a 14 year-old to child evacuees wrenched from their families in 1940 was but one way of giving the speech a depth of field to which no politician could aspire. Continue reading