What follows the abolition of fixed-term parliaments?
Will the Supreme Court seize the power to adjudicate on the calling of general elections?
Traditionally-minded Tories may reflect on 2020’s vast expansion of the state’s remit and wonder what became of their Conservative government. But they should take some small comfort at the prospect of 2021 being the year that the constitutional clock was turned back. The draft for the cumbersomely named Fixed-term Parliaments Act 2011 (Repeal) Act 2021 has been published. Whilst it may not rank as a counter-revolutionary triumph to compare with King Charles II acknowledging the cheering crowds at Dover, it does seek a restoration. The royal prerogative power in which the sovereign, on the advice of his or her prime minister, dissolves parliament for a fresh general election is to be brought back.
The Fixed-term Parliaments Act (FTPA) met the immediate political expediency for which it was invented (appeasing the Liberal Democrats and keeping the Cameron-Clegg coalition together). But since 2015 it has failed even in its primary objective of preventing an early dissolution.
Theresa May proved able to call a snap election in 2017 by getting (as the Act permitted) two-thirds of the Commons to agree to one; Boris Johnson in 2019 finally got around the Act by other means. A law that fails in its aims (and had it succeeded would have prolonged the stalemate torture of the Bercow parliament until 2022) is ripe for repeal. Abolishing the FTPA was one of the few causes common to both the Conservative and Labour manifestos last December. That is quite an achievement.
The draft bill is explicit that what will succeed the FTPA is not a new statutory arrangement but a simple reversion to the status quo ante 2011. It states (section 2.1), “the powers relating to the dissolution of Parliament and the calling of a new Parliament that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-term Parliaments Act 2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.”
The government’s intent is to remove any scope for a legal challenge to this or any future prime minister exercising the prerogative when dissolving parliament. To ensure this, section 3 states: “A court of law may not question— (a) the exercise or purported exercise of the powers referred to in section 2, (b) any decision or purported decision relating to those powers, or (c) the limits or extent of those powers.”
The government’s intent is to remove any scope for a legal challenge
Wise or not, the intent of these clauses is clear. If the sovereign approves a prime minister’s request to dissolve parliament then the dissolution is legal and therefore not subject to an appeal to judges to stop it.
But is that how our most senior constitutional lawyers will choose to interpret it? After all, in August 2019 the Queen exercised her prerogative to approve the prime minister’s prorogation of parliament only for the Supreme Court to declare the matter judiciable and, in its finding, illegal. Can we be certain that if appealed to adjudicate, the Supreme Court would conclude that if it has the power to stop a parliamentary prorogation then why not a dissolution? Temptation is a powerful force, even for judges.
One question the judges would surely consider is whether the FTPA abolished the prerogative power or merely took precedence over it. Here, recent history is not as helpful as might be imagined because Theresa May secured her dissolution through statue authority (the FTPA clause allowing an early dissolution if there was a two-thirds Commons majority for it) as did Boris Johnson (through a one-off statute, the Early Parliamentary General Election Act 2019). Common sense would suggest that if the FTPA repeal Act states the prerogative power is restored then that is the end of the matter. Whether it had ceased to exist between 2011 and 2021 or was merely taking a nap during that decade is for academics to ponder, but irrelevant to the facts on the ground. That is, however, exactly the sort of abstraction that the judges may decide overrules a clearly expressed statement in the legislation.
Proponents of judicial activism could argue that the 2011 innovation abolished a prerogative that cannot be restored. The repeal bill would thus have to create a new prerogative and codify clearly its extent and limitations.
There are practical objections to this. Are some things better left a bit vague with only historical precedent to guide but not bind? Specifically, is it helpful to reduce the flexibility of a prime minister and sovereign trying to navigate through a unique set of circumstances? If they resolve to address a political paralysis or crisis by putting the matter to the electorate then that is the reasonable decision of the head of government and the head of state. Of course it can be contested – and the forum of politics is the place to do so, not the courts. Might a political crisis only be exacerbated by judges stepped-in to halt the process of resolution on the grounds the circumstances were not expressly foreseen and addressed in the Fixed-term Parliaments Act 2011 (Repeal) Act 2021?
In seeking to restore the prerogative, this new bill certainly swims against a current. The Constitutional Reform and Governance Act 2010 subjected wide-ranging international treaty-signing powers to parliamentary ratification. Recent precedents (for example the votes on going to war with Saddam Hussein’s Iraq in 2003 and bombing Isis in 2015) have made parliamentary approval the effective prerequisite for overseas military action. Indeed, in 2013 MPs prevented intervention in Syria’s civil war.
In seeking to restore the prerogative, this new bill certainly swims against a current
Since then, Gina Miller’s victory in the Supreme Court in 2017 (Miller I) meant that the triggering of the EU withdrawal process required parliamentary approval. Some MPs may seek to amend the FTPA repeal bill to make the appeal for dissolution a matter for them, rather than the prime minister.
There are some doubtful claims made about divisions of power. But sometimes the case for such a division is clear. Giving MPs the right to determine (within the maximum five year limit, which will remain unaltered) the length of their service is not necessarily in the national interest. The potential for MPs in vulnerable seats using that power to thwart an election until the last possible month to draw their salary is not beyond the powers of imagination.
But it remains the potential for judicial interference (or deliverance) against the clearly-expressed drafting of the legislation that should be the focus of the coming months of parliamentary deliberation, starting with that of the select committee entrusted with doing so.
In an insightful contribution by the Professor of Public Law at Cambridge, which analyses many of the potential legal queries, Professor Alison L Young references the clearest precedent for the monarch’s role (as set out in the so-called Lascelles principles), and asks “is it really preferable to rely on the Monarch as opposed to the courts to check such potential abuses of the constitution?” Those of us who value precedent might say it has worked pretty well these last three years. It is a response doubtless widely held. But there will be dissenters. Might a disproportionate number of them turn out to be members of the supreme court?
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