"The bill is a missed opportunity to place the role of the Crown in relation to Parliament on a modern footing ....."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
An earlier post summarised the background to the bill. This post looks at the bill in greater detail.
: The Clauses in the Bill :
Clause 1 - The Fixed-term Parliaments Act 2011 is repealed.
Clause 2 is headed - Revival of prerogative powers to dissolve Parliament and to call a new Parliament.
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.
Clause 2(2) provides that - For the purposes of subsection (1), 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).
Clause 3 - Non-justiciability of revived prerogative powers.
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, or (c) the limits or extent of those powers.
Clause 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.
Clause 5 - Minor and consequential amendments and savings
Clause 6 - Extent, commencement and short title (1)
Schedule - Minor and consequential amendments.
: Discussion :
Clause 1 is a straightforward provision to repeal the 2011 Act.
If the 2011 Act were to be simply repealed without any further provision then the interesting question would arise as to whether the previous prerogative powers would automatically return. It may be that they would do so since (a) the 2011 Act did not expressly abolish the former prerogative powers, and (b) there are judicial dicta to the effect that, where a statute covers a matter which had previously been dealt with under prerogative powers, the statute has put the prerogative into abeyance whilst the legislation is in force - e.g. Lord Atkinson in Attorney General v De Keyser’s Royal Hotel Ltd  AC 508, 539–40 and R (Miller) v Secretary of State for Exiting the EU  UKSC 5 at para 112 - "If prerogative powers are curtailed by legislation, they may sometimes be reinstated by the repeal of that legislation, depending on the construction of the statutes in question."
This conundrum will not arise with the bill because Clause 2 specifies that 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 2011 Act will be exercisable again, as if the 2011 Act had never been enacted.
This looks like a revival (or restoration) of the former prerogative powers but, for the future, those powers will be exercisable only because of Clause 2 and not because they are prerogative powers. Whether this point will matter much in practice is debatable - (see the briefing issued by the Law Society of Scotland),
A further issue is that Clause 2 provides for the former prerogative powers to be exercisable again but nothing is said about the constitutional conventions that previously related to the exercise of those powers. The government has issued a statement of principles concerning the exercise of the powers but the bill does not give this statement any statutory force.
According to this statement, the UK would be returning to a position where the Prime Minister can advise the Sovereign to dissolve Parliament at a time of the Prime Minister's choosing. Unlike the 2011 Act, there is no provision in the bill to require the House of Commons to have any involvement in this process.
The Explanatory Notes acknowledge that the Sovereign could, in exceptional circumstances, refuse a dissolution but neither the Explanatory Notes nor the Statement of Principles discuss this further. Between 1950 and 2011 the "Lascelles Principles" were said to apply to this possibility. Of course, as set out in the Statement of Principles, it is incumbent on the political actors to avoid drawing the Monarch into politics.
Clause 3 - plainly seeks to ensure that the courts cannot get involved in (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 those powers.
This is an "ouster clause" since it seeks to prevent any judicial review of the matters stated and it may be that the courts will ultimately have to rule upon the effect of this provision.
Suppose, for example, that a government wished to legislate for some utterly abhorrent policy which Parliament was opposed to. Would a dissolution be proper in such circumstances? Could a legal challenge be brought? There is a view - expressed by Lord Carnwath in Privacy International  UKSC 22 - to the effect that it is for the courts, and not the legislature, to decide the limits set by the rule of law to any power to exclude judicial review. This difficult topic is discussed in greater detail by Professor Mark Elliott on his Public Law for Everyone blog - Repealing the Fixed-term Parliaments Act – Public Law for Everyone
Clause 4 - provides for automatic dissolution at the beginning of the day that is the fifth anniversary of the day on which it first met. The present Parliament first met on 19 December 2019 following the 2019 general election.
As things currently stand, under the terms of section 1 of the Fixed-term Parliaments Act 2011, the next general election is scheduled for 2 May 2024. (The 2011 Act gives the Prime Minister the power to hold the election up to 2 months later but that is subject to approval by resolution of each House of Parliament). This election date will disappear with the repeal of the 2011 Act.
The bill therefore gives the present parliament an extension from May 2023 to December 2023 though it is entirely possible that an election will be "called" before that.
Politically, 5 year terms seem to be the preference but, from 1945 to the present, there have been 21 general elections and only 9 Parliaments have actually lasted for 4 years or more.
The approach adopted by the bill is, I submit, open to several objections.
1) No vote in the House of Commons -
The 2011 Act requires a House of Commons vote to bring about an early election but this requirement will disappear. The bill could have required a vote in the House of Commons on a binding resolution for an early election with a simple majority to make the decision. That would would signify that Parliament was not there merely at the grace and favour of the executive and it would enable elected representatives to have a say in whether there should be an election and, if so, on what date.
A binding House of Commons resolution would also be a proceeding in Parliament and, as such, could not be impeached or questioned in any court or place outside Parliament - Bill of Rights 1689 Article 9.
It is a pity that the bill has not adopted such an approach which would have put the House of Commons and the representatives of the people at the heart of the decision about an early election.
2) An unchallengeable power -
Not only will there be a return to dissolution being at the behest of the Prime Minister but, in addition, the bill seeks to prevent any legal challenge to anything to do with a dissolution or purported dissolution. The proposed ouster clause (Clause 3) is controversial and may eventually have to be interpreted by the courts.
The requirement, currently in the 2011 Act, for a vote in the House of Commons will be removed.
Further, the bill and the non-statutory statement of principles seek to dodge the details of any long-stop power held by the Monarch to refuse a dissolution. The circumstances in which the Monarch may refuse a request for dissolution will remain an open question and it is unclear whether previous constitutional conventions will return.
3) A missed opportunity -
The bill is a missed opportunity to place the role of the Crown in relation to Parliament on a modern footing and to do so without reference to concepts such as Royal Prerogative powers. A modern bill addressing both Dissolution, Prorogation and the Calling of Parliament would have been a holistic approach to this important topic which is central to the political life of the UK.
At the time of writing, the bill is at an early stage of its parliamentary progress and is liable to amendment as part of that process.
9 June 2021.