Tuesday, 8 June 2021

Dissolution and Calling of Parliament Bill - No.1 Background


Following the State Opening of Parliament on 11 May, the government introduced a new bill to repeal the Fixed-term Parliaments Act 2011 - Dissolution and Calling of Parliament Bill - and see Explanatory notes

This post summarises the not entirely straightforward background to this bill. A further post will look at the bill in more detail.

Prerogative power to prorogue Parliament:

Prorogation marks the end of a Parliamentary session. The next session begins, usually a short time later, with the Queen's Speech.

The Crown

- in practice, Her Majesty the Queen - has the legal power to prorogue Parliament.

The power to prorogue is exercised "on the advice" of the Privy Council. 

In practice, this means that the government of the day advises the Crown to prorogue Parliament and the request is accepted. 

Prerogative power to dissolve Parliament:

Until the Fixed-Term Parliaments Act 2011, the Crown had a power to dissolve Parliament. 

Dissolution is the official term for the end of a Parliament. A dissolution is followed by a general election to elect a new House of Commons. The government remains in office during a dissolution but, by convention, there are some constraints on what it may do during that period.

Fixed-term Parliaments Act 2011:

The Fixed-term Parliaments Act provides for general elections to be held every 5 years and for an earlier general election to be held in only two situations - (1) the House of Commons votes by a two-thirds majority to hold an early election or (2) the House of Commons votes no confidence in Her Majesty's government and there is no-one able to form a government in which the House does have confidence within 14 days. 

Parliament may not be dissolved in any other way - section 3(2).

The Act provides expressly that the power to prorogue Parliament is not affected - section 6(1).

In September 2020, the 2011 Act was the subject of a report by the Public Administration and Constitutional Affairs Committee (6th report of session 2019-21) - see  The Fixed-term Parliaments Act 2011 (HC 167) - and see the government's response of December 2020.

Before the 2011 Act:

Prior to the Fixed-term Parliaments Act, the Prime Minister was able to secure a general election at a time of his or her own choosing. Basically, all that was necessary was that the Prime Minister "advised" the Queen to dissolve Parliament.

The Queen could, as a matter of strict law, have refused a dissolution but it was never fully clear in what situations that would have been a proper course for the monarch to take. 

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".

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.

Political events: 

The coalition government - The Fixed-Term Parliaments Act 2011 was enacted during the time of the Conservative-Liberal Democrat Coalition government (2010-15).  The two parties agreed, as part of their coalition agreement, to legislate for fixed-term Parliaments.

2017 - The 2017 General Election, held on 8 June 2017, resulted in a House of Commons made up of 318 Conservatives MPs, 262 Labour, 35 Scottish Nationalists and 35 others. Even with the support of the 10 Democratic Ulster Unionist (DUP) MPs this was bound to be a difficult result for any government wishing to push forward with its "Brexit means Brexit" agenda.

2019 - In July 2019, Boris Johnson replaced Theresa May as Prime Minister. Suffice to say that Johnson had positioned himself as a leading Brexiteer (or, as some prefer, Brexiter). A key problem for him, and other Brexiteers, was his party's situation in the House of Commons. Three attempts to bring about an early general election using the Fixed-term Parliaments Act 2011 were unsuccessful - (4 September 2019; 9 September 2019; and 28 October 2019). The government failed to secure the required two thirds majority to trigger an early election.

On 28 August 2019, at a Privy Council meeting held at Balmoral, the Queen was advised to prorogue parliament from a date between 9 to 12 September until 14 October - (House of Commons - The Prorogation Dispute of 2019: a year on), 

This was presented by the government as a routine event closing down one parliamentary session and starting the next even though the surrounding circumstances were far from routine given that, as things then stood, UK membership of the EU was to end on 31 October with the distinct possibility that there might have been no withdrawal agreement - (previous post 29 August 2019).  

On 4 September 2019, MPs passed the EU Withdrawal (No.2) Act (previous post), known as the ‘Benn Act’, which forced the government to act to stop a no-deal Brexit on 31 October. The Bill passed the House of Lords on 6 September and received Royal Assent on 9 September - see this explainer published by the  Institute for Government.

Judicial review:

The August 2019 use of the prerogative power of the Crown to prorogue parliament was challenged by judicial review in both Scotland and England. In Scotland, the Court of Session Inner House ruled that the matter was justiciable and that it was motivated by the improper purpose of stymying parliamentary scrutiny of the executive. It was therefore unlawful. In England, the High Court ruled that the matter was non-justiciable - see the judgment. Both the Court of Session and High Court judgments were appealed to the Supreme Court.

On 24 September, the Supreme Court ruled unanimously that this purported prorogation was justiciable but was also unlawful - Supreme Court judgment.  The Supreme Court maintained that this long prorogation significantly interfered with the constitutional principles of parliamentary sovereignty and parliamentary accountability. Such an interference required a “reasonable justification”. On the facts, the Court concluded the Government had not offered any justification for the prorogation’s length, let alone a “reasonable” one, and accordingly the decision to prorogue was unlawful.  See the judgment at paras 58-61.

2019 Election:

The Government subsequently secured the support of Parliament for the Early Parliamentary General Election Act 2019.  The Act received Royal Assent on 31 October 2019. 

The 2019 general election was held on 12 December 2019  with the result that the Conservatives won 365 seats, Labour 203, Scottish Nationalist Party 48, and others 34. This gave the Conservative Party a large majority of 80 seats in the House of Commons. 

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."

Since the 2019 election the electoral position of the Conservative Party appears to be very strong in England though not in Wales, Scotland or Northern Ireland. This is despite matters such as the problematic handling of the coronavirus pandemic (including around 128,000 deaths) and continuing difficulties associated with Brexit.

Fixed-term Parliaments Act 2011 (Repeal) Bill:

A draft Bill to repeal the 2011 Act was presented for pre-legislative scrutiny - the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill (pdf) and previous post 1 December 2020

This Bill was the subject of a report issued on 24 March 2021 by a Joint Committee of both Houses of Parliament - see HERE for links to the report. This Bill lapsed at the end of the 2019-21 session of Parliament.

The Dissolution and Calling of Parliament Bill:

The government has now introduced a new bill to repeal the Fixed-term Parliaments Act 2011 - Dissolution and Calling of Parliament Bill - and see Explanatory notes

See the government statement ate the time of introducing the new bill - Statement 12 May 2021.

This Bill provides that the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament, will be exercisable again, as if the 2011 Act had never been enacted. This means that, as was the case prior to the 2011 Act, Parliament will be dissolved by the Sovereign, exercising the revived prerogative power, on the request of the Prime Minister.

..... No. 2 ~ What is in the Bill .....

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