The Government today unveiled a draft bill to repeal the Fixed-term Parliaments Act 2011. If the Fixed-term Parliaments Act 2011 (Repeal) Bill becomes law, the UK will go back to the pre-2011 arrangement where the Queen dissolves Parliament at the request of the Prime Minister.
There is some debate in legal circles as to whether or not a straight-up repeal of the Act would be enough to bring back the old prerogative power. The relevant provision in the bill reads as follows:
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.
Although the section heading refers to “revival of prerogative powers to dissolve Parliament,” it’s debatable whether this actually constitutes revival. As a technical matter, I suspect it actually recreates the older power in statutory form. Nothing much hinges on that distinction, however. It’s just an interesting philosophical question for folks like me.
The draft bill also contains an ouster clause declaring that the new power of dissolution is not justiciable. This is a response to the controversy over last year’s prorogation decision when the Supreme Court unexpectedly decided that prorogation was justiciable. While there is a constitutional case to be made for the ouster clause, it may prove to be one of the most controversial parts of the bill.
Overall, this draft bill makes a lot of sense. The FTPA has always been problematic (this post looks at some of its issues), and the fact that two of the three General Elections held since the FTPA became law have been early General Elections highlights its pointlessness. Talk of “giving more power to Parliament” can make for a good soundbite, but it’s not always a perfect remedy. The FTPA can only work if MPs are prepared to act as a meaningful check on the executive, but recent history shows that’s unlikely to be the case. Theresa May’s bid for an early General Election in 2017 was a nakedly partisan maneuver, yet Labour backed it. That’s not entirely surprising: in ordinary circumstances, it’s likely to be difficult for the Opposition to block an early election since they don’t want to appear scared of the government.
Last year’s never-ending Brexit drama also demonstrated the danger of the FTPA’s approach to confidence. MPs defeated the Government on a number of Brexit-related issues over the course of 2019. By traditional standards, the Government had lost the confidence of the Commons. The normal remedy would be a snap General Election, but MPs repeatedly refused to vote for one. Whether this was because of distrust of Boris Johnson, fear of the electorate, or some combination thereof is immaterial. Whatever their rationale, MPs created a highly undesirable situation where the Government was in office but not in power. In the end, they eventually gave Johnson an early election, but Brexit might well have been sorted out sooner if it weren’t for the FTPA’s restrictive approach to confidence.
It will be interesting to see what happens with the repeal bill. Since it’s a draft, it hasn’t even begun its parliamentary journey yet (draft bills are bills that have been unveiled early to allow consultation and discussion ahead of their introduction in Parliament). In theory, it should have a fairly easy journey through the Commons since both Labour and the Conservatives pledged to repeal the FTPA in their most recent manifestos. The fact that the bill arises from a manifesto commitment may also ease its passage through the House of Lords (the Liberal Democrats have a strong presence in the Upper House, and they’d be the ones most likely to fight the FTPA’s repeal). That being said, if the bill is portrayed as a simple power-grab by the Government, it could have a harder time getting onto the statute book. That would be a shame. The old prerogative power of dissolution wasn’t perfect, but it was arguably far less imperfect than the system that succeeded it.
 Granting a dissolution was an area where the Sovereign traditionally still had some discretion, and it was generally agreed that there were circumstances in which the Monarch could legitimately refuse a request for a dissolution. Consequently, the Prime Minister was said to ‘request’ a dissolution rather than ‘advise’ one.