Wednesday, 6 May 2015

A constitutional imbroglio ?

The question of what will happen in the event of a further "hung" Parliament continues to be asked.  Writing in the Law Society Gazette 4th May,  Joshua Rozenberg looks at the possibilities - A constitutional imbroglio.  The article also considers the possibility of there having to be an election before the date set by the Fixed-Term Parliaments Act 2011 (i.e. the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell - 7th May 2020).

The Fixed-term Parliaments Act (FTPA) ensured that the opposition and the incumbent Government face the electorate on a set day whatever way the opinions polls are pointing at the time. The Bill makes provision for elections to be called earlier under only two exceptional circumstances. Parliament can be dissolved early if: (1) at least two thirds of MPs vote for dissolution or (2) a Government is unable to secure the confidence of the House of Commons within 14 days of a no-confidence vote.

Repeal of the FTPA:

Of course, as Mr Rozenberg points out, the FTPA could be repealed.  Before the FTPA, the dissolution of Parliament depended on the exercise of "Royal Prerogative" powers.  In practice, these were exercised in accordance with constitutional conventions and Her Majesty acted on the advice of the Prime Minister.  The right of a Prime Minister to ask the Queen for a dissolution - (which was invariably granted) - was a powerful political weapon.  This was particularly so if there was reason to believe that opposition parties would lose seats in the event of an election.  Prime Ministers did not always request a dissolution even when, perhaps, they might have done.  For example, when Gordon Brown succeeded Tony Blair, Brown could have requested a dissolution and hoped to win a general election.  He did not do so, with the result that the parliament elected in 2005 continued until 2010.  Blair resigned as Prime Minister in 2007.

Royal Prerogative to Dissolve Parliament - Abolished or in abeyance:

If the FTPA were simply repealed, a somewhat tricky question arises:  Would the previous Royal Prerogative powers come back to life?  This is discussed in more detail on the UK Constitutional Law blog - Royal Prerogative powers and the Fixed-Term Parliaments Act *

It could be argued that the FTPA had abolished the prerogative power to dissolve parliament and that would mean that it could not be restored.  However, it could also be argued that the prerogative power had been held in “abeyance” and that it could be capable of being exercised once again.  In evidence to the Public Administration Select Committee’s inquiry on Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, the Treasury Solicitor’s Department wrote that:

It is not altogether clear what happens where a prerogative power has been superseded by statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

Clearly, IF the FTPA is to be repealed, the safer legal course would be for the repealing legislation to clearly enact how a dissolution of parliament is to occur.  Failure to deal with this could well lead to  serious difficulties which the courts might have to resolve.

The FTPA contains two routes by which parliament could be dissolved and it might be that a third way could be added - "Her Majesty may, on the request of the Prime Minister, dissolve parliament." That would give the Monarch a statutory power and not a prerogative power. Alternatively, the third way might be achievable by enacting that Royal Prerogative relating to the dissolution of parliament is revived.  

Review of the FTPA:

The FTPA requires the Prime Minister to put in place a review of the Act - see section 7.  However, the review cannot take place before 1st June 2020 and no later than 30th November 2020.  If that review recommends repealing the FTPA then the Prime Minister is required by section 7 'to make recommendations for the repeal or amendment of' the Act.  It is a further moot point whether that would actually lead to repeal.

Interesting questions to mull over as we await the outcome of the 2015 General Election.

Please also see the earlier post -What if, as seems likely, it is a hung Parliament.

* A. Horne and R. Kelly, ‘Prerogative Powers and the Fixed-term Parliaments Act’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org)


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