Updated 25th May 2017
The Conservative Party manifesto commits to repealing the Fixed-term Parliaments Act 2011.
The Act was passed to underpin the Conservative - Liberal Democrat
coalition established after the 2010 General Election. It sought to
prevent the Prime Minister - (then David Cameron) - from "calling an
election" at a time of his choosing.
As we have seen
recently, the Act did not prevent Prime Minister Theresa May from
getting the general election she wanted but she had first to secure a
favourable vote from the House of Commons.
The required vote was
secured with minimal opposition and this made the Act look like a
troublesome procedural hurdle even though the outcome
could have been different had there been a vote against. The government
would then have had to either accept the result or seek a Vote of No
Confidence in itself.
As a matter of law, the Prime
Minister has never held a power to "call an election." Before the Act,
the Crown - i.e. HM The Queen - had a legally unrestricted prerogative
power to dissolve Parliament but this power was never exercised in
recent times except at the request of the Prime Minister. By convention,
requests were not refused. Historically, Charles I dissolved Parliament in 1629 and ruled himself until 1640.
The 2011 Act replaced the previous system by specifying the requirements for the holding of an early parliamentary election (section 2) and stipulating when Parliament will be dissolved if there is to be an early election (section 3). There is no other way that Parliament may be dissolved - section 3(2). The Explanatory notes to the Act state that - "The Queen does not retain any residual power to dissolve Parliament, which will occur automatically under the provisions in the Act."
It is a moot point whether the Act abolished the prerogative power or just placed it in abeyance. This argument can be, and ought to be, avoided if any Act repealing the 2011 Act specifies the new arrangements for general elections.
Section 3(1) specifies when a Parliament is dissolved and section 3(2) states - "Parliament cannot otherwise be dissolved."
It could be argued that section 3(2) abolished the prerogative in this area but it might also be arguable that the prerogative is in abeyance because section 3(2) is intended to apply provided that the arrangements for dissolution in the legislation are being applied. The fact that section 7 requires a review of the Act in 2020 might be thought to support the latter view.
It is to be hoped that when the 2011 Act is repealed the question of future dissolutions of Parliament is properly addressed in the repealing legislation. For further discussion see this article by
Alexander Horne and Richard Kelly - UK Constitutional Law Association -
Prerogative powers and the Fixed-term Parliaments Act.
Update 25th May 2017 - Robert Craig writing on the Constitutional Law Group - Zombie prerogatives should remain decently buried: Replacing the Fixed-term Parliaments Act 2011 (part1) and also Part 2.
Human rights protection in the UK:
The Liberal Democrat manifesto commits
to voting against any attempt to scrap the Human Rights Act or to
withdraw from the Convention. The Labour Party will retain the Human
Rights Act - see their manifesto.
The ever present question of what a Conservative government will do about protection of human rights in the UK is partially answered by the manifesto. The UK will remain a signatory to the European Convention on Human Rights "for the duration of the next parliament." While the process of Brexit is underway, the Human Rights Act 1998 will remain in place but the human rights legal framework will be considered when the process of leaving the EU concludes. That could be as early as 2019 - i.e. 2 years after the UK's Article 50 notification.
Under a future Conservative government, "British troops will be subject to the Law of Armed Conflict which includes the Geneva Convention and UK Service, not the European Court of Human Rights." No further detail is given as to how this might be legally achieved. Perhaps they envisage a derogation in the event that troops are committed to action abroad. Derogations are permitted by Article 15 of the Convention which refers to time of war or other public emergency threatening the life of the nation. Derogation is not permissible in respect of certain Articles - i.e. Article 2 (except in respect of deaths resulting from lawful acts of war), Articles 3, 4(1) and 7.
The manifesto also states that legal services regulation will be strengthened and legal aid restricted for "unscrupulous law firms that issue vexatious legal claims against the armed forces." There will be "better compensation for injured armed forces personnel and the families of those killed in combat." The manifesto does not give further details. See BBC 21st September 2016.
See also Open Democracy UK - Civil Liberties and Human Rights - What's at stake in the UK's 2017 General Election?