Tuesday, 1 December 2020

Proposed Repeal of Fixed-term Parliaments Act 2011

The Bill referred to in this post was replaced by a new Bill introduced in May 2021.


The Conservative Party 2019 manifesto included their plan to - "Get rid of the Fixed-Term Parliaments Act" 2011 which, it was claimed, "had led to paralysis at a time the country needed decisive action."

The 2011 Act:

The 2011 Act provided for Parliaments with a maximum term of 5 years. Under section 1 of the Act, the next general election would have to be in May 2024 - see section 1(3). 

The Act section 2 provided for the mechanism by

which an early election could be called and section 3 made this the only way in which parliament could be dissolved. Section 3 also provides that - "once Parliament dissolves, Her Majesty may issue the proclamation summoning the new Parliament which may - (a) appoint the day for the first meeting of the new Parliament; ..."

Interestingly, and it may prove to be important, there is legal disagreement over the effect of section 3. Did the 2011 Act actually abolish the prerogative power of dissolution or did it place it into abeyance?

Section 7 provided for a committee to be appointed no later than 30 November 2020 to review the operation of the Act and to make recommedations for repeal or amendment of the Act.

Draft Bill:

On 1 December 2020, the government published a draft Bill which will undergo pre-legislative scrutiny - see the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill (pdf). Explanatory notes are also within the document.

The Bill has 6 clauses and a Schedule.

Clause 1 simply repeals the 2011 Act.

Clause 2 seeks to revive Royal Prerogative powers relating to the dissolution of Parliament and the calling of a new Parliament. The powers to be revived are those that were exercisable immediately before the commencement of the 2011 Act. Those powers become exercisable again as if the 2011 Act had never been enacted.

Clause 3 seeks to prevent judicial review . 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 these powers. 

Clause 4 - provides that " 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."

Clause 5 and the Schedule address minor consequential amendments and savings.

Clause 6 deals with the extent, commencement and the short title.

After an election, when must Parliament meet?

After a general election, when must the new Parliament meet?

On 8 November 2019, HM The Queen issued a proclamation requiring Parliament to meet on 17 December 2019. The General Election was held on 12 December and Parliament duly met on the 17th.

Interestingly, as the Hansard Society pointed out, there is no legal minimum or maximum period after a general election before the new Parliament first meets.

House of Commons Library data show that since 1922 the number of days from a general election to the new Parliament’s first meeting has ranged from five to 34.

In 2007, the then-Modernisation Committee of the House of Commons recommended that the period between an election and the new Parliament’s first meeting should be around 12 days

The repeal of the 2011 Act provides an opportunity to set a limit to the gap which could exist between a general election and the first meeting of Parliament. It seems unsatisfactory that the date for first meeting is a discretionary matter exercisable (technically) by HM The Queen but, in practice, by the Prime Minister.

An election in 2024:

As already noted, the effect of the 2011 Act is that a general election has to be held no later than May 2024. 

The Bill makes makes no such provision and so the net election could be delayed until 5 years after the previous election - that is to December 2024.

The Bill ought to contain a provision to require the next general election to be no later that May 2024 rather than have the result that the present government gets an extension. There is no objectively good reason to permit such an extension even though it may suit the incumbent government.

The old prerogative:

In law, the power to dissolve Parliament rests with the Crown - a prerogative power. 

See the government's Statement of Dissolution Principles

In modern times, by CONVENTION, the power was exercisable on the "advice" of the Prime Minister.

This gave the incumbent Prime Minister the ability to "call" an election at a time of his or her choosing and was likely to do so when party advantage was perceived to exist. Concern by the Liberal Democrats that the Conservative Prime Minister might have called an election during the 2010-15 coalition was a key reason for the enactment of the 2011 Act.

Again by CONVENTION, the Crown did not refuse a request for a dissolution. 

Between 1950 and 2011 the "Lascelles Principles" were said to apply. Under those principles the Queen could refuse a dissolution if three conditions applied -

  1. if the existing Parliament was still "vital, viable, and capable of doing its job",
  2. if a general election would be "detrimental to the national economy", and
  3. if the Sovereign could "rely on finding another prime minister who could govern for a reasonable period with a working majority in the House of Commons".

It does not require a lot of thought to see that any attempt to apply principles such as these would place the monarch in an invidious position. In any event, how is the Queen to assess whether a general election would be detrimental to the national economy?

Whatever their status prior to 2011, the Lascelles principles are no longer applicable because the 2011 Act alone governs dissolution.

The Bill contains no provision for whether the Sovereign might refuse a dissolution request and, if so, on what basis. It is a moot point whether anything like the Lascelles principles will reappear but it is to be hoped that the pre-legislative scrutiny will consider this matter carefully and determine whether provision ought to be included in the bill.

Commonwealth:

The Commonwealth provides some historical examples of Governors-General refusing requests for dissolution - e.g. the King-Byng affair in Canada and, for Australia, see Reserve powers of the Governor-General

Can the prerogative power be resurrected?

Legal opinion varies on whether the prerogative power could be resurrected in the way suggested by the draft Bill.  The matter is discussed in a report by the Public Administration and Constitutional Affairs Committee published in September 2020 -  Report on Fixed-term Parliaments Act

The committee was of the view that reform should not be in the way put forward by the Bill. The committee concluded -

50.The question of whether or not the dissolution prerogative can be restored is a complex one, which involves fundamental constitutional principles. It clearly was the intention of the Government in 2011 to abolish the prerogative, but the wording of the Act is less conclusive on this point. Some also hold the view that the fact of abolition does not even matter. As all the evidence to this inquiry makes clear, this is a highly contested issue. There are also questions as to what exactly would be revived and for example what the legitimate expectations of the Sovereign as a constitutional backstop would be. This is of particular concern in light of the Supreme Court’s recent decision about the prerogative power of Prorogation. It is clear that attempting to revive the prerogative would invite the courts to make the final decision on these issues. These are core political and constitutional questions that neither Parliament nor government should abrogate to the courts. Even if there is a desire to return to the old system for dissolution and calling elections, it would be better setting these arrangements in statute rather than engaging in an unnecessary attempt to revive a prerogative which could have considerable unintended consequences and implications.

51.While not all members of the Committee would oppose such a move, it is also cognisant that reviving the prerogative would mean taking a power that is set out in statute and regulated by Parliament and handing it back to the Crown. Whether or not adequate consideration was given to the full implications of removing the prerogative in 2011, Parliament now has responsibility for this area of the UK political system. The Government should not simply rely on reviving the prerogative, but look to establish a new, robust system for dissolution and calling of elections in the UK.

If you wish to comment:

Those who wish to provide written evidence about the Bill - please see Joint Committee on the Fixed-term Parliaments Act established: Lord McLoughlin elected as Chair, written evidence deadline Monday 4 January

Further reading:

Parliament - House of Lords Constitution Committee 4 September 2020 - Question of Confidence? The Fixed-term Parliaments Act.

Professor Mark Elliott - Public Law for Everyone - Repealing the Fixed-term Parliaments Act - this post discusses in detail Clause 3 and its impact on judicial review.  

Alison L. Young - UK Constitutional Law Association Blog - The Draft Fixed-term Parliaments Act 2011 (Repeal) Bill: Turning back the clock?

Note:

Viewers of "The Crown" will know that Sir Alan "Tommy" Lascelles (1887-1981) was HM The Queen's first Private Secretary. He retired at the end of 1953.

1 December 2020

Addendum 7 January 2021 - Joint Committee on the Fixed-term Parliaments Act - evidence by Lady Hale and Lord Sumption.

2 comments:

  1. Surely a prerogative power can be restored by Act of Parliament in the same way it can be removed by Act of Parliament.

    If not the 2010 Parliament will have bound it’s successors which is against constitutional principles.

    ReplyDelete
    Replies
    1. Thank you for your comment. It is an interesting topic.

      A first question is whether the 2011 Act actually abolished the former prerogative power. That is legally debatable.

      If the power was not abolished then the position appears to be that the prerogative power was put into abeyance whilst the 2011 Act is in force.

      If the power was abolished then a new Act could create a power similar to or identical to the old prerogative power BUT the new power would actually be a statutory power because its legal foundation would be the new Act.

      The published Bill appears (at least to me) to be an attempt to create a statutory power which operates in similar vein to the old prerogative power BUT also gives the executive a right to exercise that power without any possibility of judicial review or ability for HM The Queen to refuse a dissolution.

      Whether the Bill would successfully prevent judicial review under any circumstances is also debatable. On that I recommend the articles by Professor Elliott and Alison Young. Links in the post itself.

      Delete