The 2022 Act repeals the Fixed-term Parliaments Act 2011 (legislation.gov.uk).- (in force 15 September 2011 to 24 March 2022).
The result is that the Prime Minister is able to go to HM The Queen and request a dissolution of parliament which, by convention, will not be refused - (at least not normally refused - see below).
The government has presented the 2022 Act as returning to "tried and tested arrangements."
The 2022 Act -
The 2022 Act comprises just 6 sections and one Schedule - as follows:
Section 1 - repeals the 2011 Act.
Section 2 - "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 powers relating to the calling of a new Parliament include powers to order the issue of - (a) writs of summons to attend the House of Lords, and (b) writs for parliamentary elections (see rule 3 in Schedule 1 to the Representation of the People Act 1983).
The 2011 Act came into force on 15 September 2011. The former prerogative dissolution / calling powers - as they were before that date - are therefore revived.
Section 3 - Non-justiciability -
The prerogative power to dissolve Parliament was generally considered to be "non justiciable". That view was supported by an obiter dictum of Lord Roskill in the "GCHQ case decided by the House of Lords in 1984. His Lordship said that. "as at present advised" certain prerogative powers could not properly be made the subject of judicial review. A list was then set out including dissolution of parliament. The powers in Lord Roskill's (non-inclusive) list were such that their nature and subject matter did not make them amenable to judicial review.
Section 3 provides that a court or tribunal 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, (c) the limits of extent of those powers.
Whether this will "bomb-proof" the powers in section 2 from any legal challenge remains to be seen. At least to me, it seems particularly problematic that even the limits of the powers cannot be challenged. Section 2 refers us back to the former prerogative powers and it has been long-established that the courts are entitled to adjudicate on the extent of such powers rather than the extent of the powers being left entirely to those who exercise them.
Section 4 - Automatic dissolution of Parliament after five years -
"If it has not been dissolved earlier, a Parliament dissolves at the beginning of the day that is the fifth anniversary of the day on which it first met."
The date on which a new Parliament meets for the first time is crucial. The date is set out before a general election in a proclamation issued by the Queen who acts on the advice of the government. The present Parliament first met on 17 December 2019 - (see Proclamation).
Section 5 is Minor and consequential amendments and savings.
Section 6 is Extent, commencement and short title.
Votes of Confidence -
The 2011 Act contained two ways by which an early election could come about - (1) a vote was passed by a majority of at least two-thirds of the number of seats in the House of Commons or (2) a Vote of No confidence in Her Majesty's government was passed. The 2011 Act provided that a dissolution could come about only in those ways. However, there was always the possibility of enactment of a special Act of Parliament to bring about an election and it was by that method that the December 2019 election came about.
The 2022 Act says nothing about Votes of No Confidence and a government unable to command the confidence of the Commons would have to call a general election - Confidence motions and Parliament | The Institute for Government.
Refusal of Dissolution -
A significant feature of the 2011 Act was that, by providing only two ways by which an early election could occur, the Queen was protected from political controversy.
Before the 2011 Act it was undoubted law that the Queen could refuse a dissolution but, as a constitutional monarch, it was questionable under what circumstances a refusal would be proper.
It appears that there was a convention - (not a law) - known as the Lascelles Convention which addressed the situations in which the Queen could refuse a dissolution. Details of the Convention are in a previous post but the convention did not necessarily protect the constitutional monarchy from political controversy - Law and Lawyers: Search results for Lascelles Convention (obiterj.blogspot.com).
The 2022 Act states nothing about the circumstances in which a dissolution could be refused. Interestingly, In the unlikely event that a monarch were to refuse dissolution, section 3 would operate to prevent the matter being subject to legal challenge.
Gap between Parliaments ?
Once an election is called it is the practice to set the date for the next Parliament to meet. This is done by a Royal Proclamation. The 2022 Act does not alter this process.
But what gap is legally permitted between the dissolution of one Parliament and the first meeting of the next? This point is not addressed by the 2022 Act and was not addressed by the 2011 Act.
In modern times, the government plainly needs Parliament to meet frequently in order to enact its legislative programme. The government also depends on Parliament for SUPPLY - e.g. Supply and Appropriation (Main Estimates) Act 2021 - Parliamentary Bills - UK Parliament.
The Bill of Rights [1688] (legislation.gov.uk) requires "that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently." The Bill also prevents "levying money" unless authorised by Parliament and further prevents "raising and keeping a standing army in time of peace" without the consent of Parliament.
The Meeting of Parliament Act 1694 (legislation.gov.uk) which provides for the frequent meeting and calling of Parliaments. The Preamble to the Act states -
"whereas by the ancient Laws and Statutes of this Kingdome frequent Parliaments ought to bee held And whereas frequent and new Parliaments tend very much to the happy union and good agreement of the King and People".
The 1694 Act then provides that - "From henceforth a Parliament shall bee holden once in Three years att the least."
An election advantage?
For some the 2022 Act marks a welcome return to the old arrangements which were generally thought to give the governing political party a significant advantage since it held the starting pistol for the election race. The extent to which it actually did gain an advantage is debatable. For instance, Edward Heath called an election in 1974 on the ticket of "Who Governs Britain" but the electorate gave him a brusque response - February 1974 United Kingdom general election - Wikipedia
Commons vote
Others point to the fact that the 2011 Act required a vote in the House of Commons. There was a late attempt to include in the 2022 Act a requirement for a vote to be held but the House of Commons rejected this thereby appearing to be content for Parliament to be left entirely to the mercy of the Prime Minister !
See the House of Lords amendment to Clause 2 and the Commons reply - HL Bill 129.fm (parliament.uk) - stating that "the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons." The debates on this point are instructive - Commons debate on the Lords amendment 14 March 2022 - Dissolution and Calling of Parliament Bill - Hansard - UK Parliament and the House of Lords debate on 22 March 2022 - Dissolution and Calling of Parliament Bill - Hansard - UK Parliament
Non-justiciability
Some will regret the non-justiciability provision and ask just why is the government worried about a legal challenge to its activities. A ministerial desire to increase executive powers appears to play a part and the Johnson government is undoubtedly still smarting over the 2019 case concerning prorogation of Parliament - R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) - The Supreme Court
The Crown and politics
The 2022 Act also has the potential to place the Queen in a difficult position if a question ever arises about whether dissolution ought to be refused. Perhaps that is unlikely but who can be sure? Under the 2011 Act the Crown was protected from such controversy.
5 years - too long?
Yet another point is that few Parliaments have ever gone the full 5 year term. Maybe an opportunity has been missed to reduce the term to 4 years and to replace the Meeting of Parliament Act 1694 with new legislation governing the frequent meeting of Parliament. A four year term would have had the benefit of increasing involvement of the voter in national politics.
Next election -
Parliament must be dissolved no later than 17 December 2024 but dissolution is now likely to occur sooner when the present government considers that it is likely to win. A general election in 2023 seems to be a distinct possibility. Mind how you vote ....!
29 March 2022
Links:
To be added
No comments:
Post a Comment