Some Thoughts On The Dissolution And Calling Of Parliament Bill

The House of Lords is now considering the Dissolution and Calling of Parliament Bill that was passed by the Commons back in September. It would repeal the Fixed-term Parliaments Act 2011 and restore the pre-2011 status quo whereby the Sovereign dissolved Parliament at the request of the Prime Minister. Regular readers of my blog will know that I’m no fan of the FTPA, but I still have misgivings about its repeal.

The FTPA hasn’t exactly been a roaring success. Although it declared that a Parliament should last for five years, only one Parliament since then has actually run the statutory course. Both Theresa May and Boris Johnson were able to obtain early General Elections, though they went about it in different ways.

The 2017 election is particularly illuminating. After opinion polls showed the Conservatives with a convincing lead over Labour, May saw an opportunity to obtain an enhanced majority that would strengthen her hand in the Brexit negotiations.[1] Even though the FTPA was supposed to prevent this sort of opportunistic behavior, most Opposition MPs voted for an early election under section 2(1) of the FTPA (the final vote was 522 to 13).

MPs were less compliant in 2019 and repeatedly thwarted Johnson’s attempts to secure an early election under the FTPA. However, this was an unusual situation colored by fear of a no-deal Brexit. If it hadn’t been for that, the 2017 precedent suggests Johnson would’ve had less difficulty securing an early poll. In the end, the lack of a 2/3 majority didn’t prevent an early election since the Government was able to secure the passage of special legislation to circumvent the FTPA.[2]

A fixed-term Parliament regime that isn’t part of a codified constitution requires politicians to show a degree of self-restraint. It can only work if they’re willing to respect those restrictions even when it’s disadvantageous to do so, yet both the Tories and Labour made manifesto commitments to repeal the FTPA at the last General Election. This suggests that, whatever the virtues of fixed-term Parliaments, they are unlikely to be workable in Westminster without a shift in political culture.[3]

All that being said, the Dissolution and Calling of Parliament Bill is not without issues of its own. The bill assumes that the royal prerogative power of dissolution can be revived by repealing the FTPA, but this assumption is debatable. The royal prerogative is a creature of common law rather than statute, and while it’s agreed that statutes may supersede prerogative powers,[4] it’s not clear what happens if those statutes are subsequently repealed. Does the old prerogative power spring back as if nothing happened, or can it only be recreated as a statutory power? This isn’t just an academic question: the nature of the revived dissolution power could potentially affect how the courts interact with it in the future. Although clause 3 of the bill purports to make the revived prerogative power non-justiciable, there’s no guarantee the courts will interpret it in the way the Government intends.[5]

If the courts can’t police the power of dissolution, that leaves the Monarch as the only safeguard. Traditionally, dissolution was an area where the Sovereign retained an element of discretion. This was reflected in the terminology: the Prime Minister couldn’t advise a dissolution; he could only request one. In 1950, King George VI’s Private Secretary, Sir Alan Lascelles, wrote a pseudonymous letter to The Times in which he set out the circumstances in which the Monarch might refuse a dissolution:

In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.[6] 

In practice, it’s difficult to say how modern monarchs wielded their discretion under the old system. It’s been claimed that Elizabeth II has never refused a dissolution, but Anne Twomey has suggested this might not be the case:

In relation to monarchs and exercising reserve powers, nearly always it happens without ever being formally done. There is no formal rejection of a Dissolution, because it is all done informally by hints, suggestions and queries. “Is that wise, Prime Minister? Would it really be appropriate to do this now?” That is how the reserve powers work in practice. We really cannot say whether that has been exercised during Her Majesty’s reign, so I would not be suggesting at all that the power had in any way disappeared.[7]

The Government’s initial set of ‘Dissolution Principles’ suggested that the Monarch should dissolve Parliament on the advice of the Prime Minister, but this approach was criticized by the Joint Committee on the Fixed-term Parliaments Act. The Government accepted the criticism and acknowledged that the Sovereign will retain an element of discretion once the FTPA is repealed.

While returning the dissolution power to the Sovereign is in accordance with constitutional tradition, it has the potential to make life difficult for the Palace. In modern times, the Crown is expected to remain above the political fray.[8] The rationale for this approach is understandable. A purely ceremonial role is arguably the least controversial one for a hereditary head of state in a 21st century parliamentary democracy (though, as Professor Twomey has noted, that approach carries risks of its own[9]). But if the Crown is going to police the dissolution power, the Monarch must be prepared to make a potentially controversial foray into the political arena.

It was arguably easier for the Sovereign to police the constitution when the culture of deference was even stronger than it is today. The prevailing norms meant that they could discourage problematic requests for dissolution without the need for a formal confrontation, and they didn’t need to worry about ministers publicly attacking them for their decision.[10] But in a less-deferential age where the ends increasingly seem to justify the means, a modern government might not be so chary. Boris Johnson’s willingness to ask the Queen to grant a controversial prorogation in 2019 suggests that modern politicians are less reticent about dragging the Crown into controversy if it suits their aims.[11] The vitriolic reaction to the Brexit-related court decisions[12] provides a glimpse of what the Monarch might encounter if they refused a dissolution request from a popular Prime Minister.[13] If the Sovereign can’t effectively police the dissolution of Parliament, that’s a problem.

At this point, it seems all but certain that the Dissolution and Calling of Parliament Bill will become law. One only hopes that the UK isn’t storing up problems for the future.

[1] May’s gambit ultimately backfired. She lost her majority and had to enter into a confidence and supply agreement with the Democratic Unionist Party to stay in power.

[2] The Early Parliamentary General Election Act 2019. While an early election under the FTPA required a supermajority, legislation only requires a majority.

[3] I suspect nothing short of constitutional codification would make fixed-term Parliaments viable at Westminster.  

[4] See, for example, Attorney-General v De Keyser’s Royal Hotel Ltd [1920] UKHL 1, [1920] AC 508, 526-528.

[5] Despite the wording, academic commentary is divided over whether the clause will achieve its objectives. Lord Lisvane and Sir Malcom Jack (both former Clerks of the House of Commons) both thought that it wouldn’t necessarily prevent judicial review of the power of dissolution, while Professor Philippe Legassé of Carleton University and Lord Sumption (a former Justice of the UK Supreme Court) thought it would probably be enough to dissuade the courts.

[6] [Sir Alan Lascelles], “Dissolution of Parliament: Factors in the Crown’s Choice,” The Times (London), May 2, 1950.

[7] Her comments are in her response to Q184.

[8] The truth of the matter might be more complicated. Even if the Queen isn’t a political actor in the conventional sense of the term, she still wields considerable influence. However, the exercise of this influence is difficult to document thanks to a strong culture of deference that’s underpinned by statute (e.g., section 37 of the Freedom of Information Act 2000 prevents the disclosure of “communications” with the Sovereign and other royal figures). We likely won’t know the full story of her influence until well after her death.

[9] “But if you say that the Queen is simply an automaton—just a rubber stamp who acts on advice and nothing else—that makes her very vulnerable in your political system, because it leaves her as a tourist attraction. One day, you will find another tourist attraction is more attractive and cheaper, and the monarchy can be tossed out with that. It is actually in the interests of the monarchy and its survival in the United Kingdom that it is seen as having this non-partisan role of protecting the constitution—being the last stopgap to do that. That is what preserves the monarchy in your system.” This comes from her evidence to the Joint Committee on the FTPA (Q185).

[10] For example, Queen Victoria had a very turbulent relationship with William Gladstone and pushed the envelope of constitutional propriety on a number of occasions, yet he did not publicize their clashes.   

[11] The fact that the Queen was still criticized for granting Johnson’s request even though there was a constitutional argument for doing so shows how scenarios like these could become no-win situations for the Palace.

[12] The Daily Mail infamously denounced the High Court judges as ‘enemies of the people’ after they ruled against the Government in R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

[13] A long-serving and popular monarch like Elizabeth II might have enough clout to withstand such attacks, but not every sovereign will have that level of public esteem.

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