The Perplexities Of The Royal Prerogative

Yesterday’s reveal of a draft bill to repeal the Fixed-term Parliaments Act 2011 has led to quite a bit of academic debate about the nature of the power set out in clause 2(1). Is it a revived prerogative power? A new prerogative power? A statutory power masquerading as a revived prerogative power? The answer is…it’s complicated.

Before 2011, the Sovereign dissolved Parliament under the royal prerogative. The FTPA replaced the prerogative power of dissolution with a statutory provision whereby Parliament automatically dissolves without the Monarch’s involvement once certain conditions are met (the Sovereign still formally calls a new Parliament, however).

The courts have long accepted that a statute can displace prerogative powers. In Attorney General v. De Keyser’s Royal Hotel Ltd. [1920] AC 508, Lord Atkinson stated that:

[W]hen such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance…after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

Although Lord Atkinson spoke of abeyance, there is some uncertainty as to what happens to a prerogative power once it has been replaced by a statutory provision. As Professor Gavin Phillipson of Bristol University has noted on Twitter, one of the issues with the abeyance theory is that it suggests that Parliament can never abolish a prerogative power, which is difficult to square with the doctrine of parliamentary sovereignty.  

With the prerogative power of dissolution, there is also the question of the effect of section 3(2) of the FTPA, which states that “Parliament cannot otherwise be dissolved” (i.e., Parliament can only be dissolved in accordance with the FTPA). Does this provision simply affirm that the prerogative power went into abeyance, or did it extinguish it entirely?

The drafters of the Fixed-Term Parliaments Act 2011 (Repeal) Bill seem to take the view that the prerogative power of dissolution was merely put into abeyance. Clause 2(1) states:

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 heading for clause 2 also refers to the “revival of prerogative powers” (though clause headings are technically not part of the bill itself).

But if the FTPA abolished the prerogative power of dissolution, then repeal bill would actually be recreating it in statutory form. The royal prerogative is a creature of common law rather than statute law, so it seems unlikely that Parliament can make a new prerogative power. Then again, Parliament is sovereign…

The precise nature of the dissolution power conferred by the repeal bill may well have practical ramifications. Under the prerogative, the Monarch traditionally had some discretion to refuse a Prime Minister’s request for a dissolution in certain circumstances (e.g., the Lascelles Principles). Presumably, that discretion would carry over if the prerogative power is simply being revived (though a statement of ‘Dissolution Principles’ released by the Government is silent on the Queen’s discretion). But if the power is statutory in nature, the question becomes far murkier.[1] If the Lascelles Principles no longer apply and the courts can’t review the power of dissolution (clause 3 purports to make the revived power non-justiciable[2]), then the Prime Minister’s ability to seek a dissolution will be effectively unfettered.

It’s good that the Government has unveiled the repeal bill in draft form before they introduce it into Parliament. Getting rid of the FTPA is more complicated than it might seem at first, and it needs to be done with care. Hopefully, the Government will listen to the feedback it receives and come back with a refined version of the bill.

[1] Parliament could, of course, legislate to preserve the Sovereign’s discretion, but that would be a problematic course of action to say the least.

[2] For a good discussion of the effect of this clause, see this post by Professor Mark Elliott of the University of Cambridge.

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