This article is taken from the January/February 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.

Can parliament revive a prerogative power? And can it prevent the courts from questioning a dissolution of parliament? These seemingly arcane questions lie at the heart of the government’s latest attempt to rebalance the British constitution in its favour.

Before the Fixed-term Parliaments Act was passed in 2011, the prime minister could normally call a general election at any time by simply advising the sovereign to dissolve parliament. Under a convention named after Sir Alan “Tommy” Lascelles, private secretary to George VI, the monarch could refuse if another MP could command the confidence of the Commons. 

But this was still a valuable weapon in the prime minister’s armoury — until David Cameron surrendered it to the House of Commons as part of his coalition agreement with the Liberal Democrats.

Despite its name, the 2011 act does not fix the term of a parliament at five years — because MPs can vote for an early general election. Theresa May achieved the required two-thirds majority in 2017 but her successor failed on three occasions in 2019. Boris Johnson eventually secured legislation to by-pass the requirement, leading to an election at the end of that year.

There has been some doubt over whether it is possible to restore the vestige of a monarchical power

“If parliament is paralysed, so is democracy,” said Chloe Smith, a Cabinet Office minister, last month. Describing the 2011 act as a “shoddy law” even though she had voted for it, Smith said the legislation made it harder to hold a general election when the government needed a new mandate.

Her draft bill, if enacted, would repeal most of the 2011 act. As before, a parliament would sit for five years unless the prime minister sought an earlier dissolution — which could be granted by the sovereign under the royal prerogative. Clause 2 of the draft bill says that the prerogative powers that were exercisable before the law was changed “are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted”.

This is a curious thing to do. Parliament often replaces broad common law powers, developed and enforced by judges over the centuries, with precise statutory provisions. But doing it the other way round is unprecedented — not least because it’s seen as undemocratic to give anyone a power that is ill-defined and effectively unconstrained. It’s not clear, for example, whether the prerogative allows the sovereign to insist on a dissolution to resolve a constitutional crisis.

Indeed, there has been some doubt over whether it is possible to restore the vestige of a monarchical power. Some academics argue that, once abolished, the prerogative is lost for ever: it does not revive if the legislation that abolished it is itself repealed. Others say that a prerogative power that has been superseded by statute merely lies dormant. 

Can parliament can give it the kiss of life — even if some of its features may be a little out-of-focus? As a matter of legal logic, legislators cannot create a new prerogative power. Can they revive an old one? If you take the view that parliament can do anything, the answer must be yes. But two parliamentary committees advised the government last September that a new statutory power would be less vulnerable to legal challenge.

Judges have a habit of getting round so-called “ouster clauses” if they think a decision-maker has acted unlawfully

That’s something the draft bill seeks to avoid. Clause 3 says “a court of law may not question the exercise or purported exercise” of the powers relating to the dissolution of parliament. Nor can a court question “any decision or purported decision relating to those powers, or the limits or extent of those powers”.

In explanatory notes, the government says the “long-standing position is that the exercise of the prerogative power to dissolve parliament is not justiciable”. It cites the well-known GCHQ case, decided in 1984.

But things have moved on. In 2019, the prime minister advised the Queen to prorogue parliament for five weeks. That advice was challenged by Gina Miller, among others. Their claims were about suspending parliament, of course, not dissolving it. But the Supreme Court decided “firmly” that prorogation was justiciable — in the sense that the courts could decide on its limits or extent.

That’s exactly what the courts would be prevented from considering by the last phrase in clause 3, the government says. But will this be sufficient to protect a prime minister against another legal challenge? I wouldn’t count on it. Judges have a habit of getting round so-called “ouster clauses” if they think a decision-maker has acted unlawfully. And the government has muddied the waters by publishing a new set of principles that appear to override those summarised by Lascelles in 1950.

To endorse the new principles and scrutinise the draft bill, the government has set up a joint committee of MPs and peers. Lord McLoughlin, a Conservative peer and former minister, was elected chairman just two weeks after making his maiden speech in the upper house. His committee will report by the end of February and legislation is expected to follow.

That will allow Downing Street to choose the date of the next general election — a considerable advantage. Unless, like Theresa May in 2017 and others before her, the prime minister picks the wrong time to go to the country.