Thoughts On The Judge Amendment

Yesterday, the House of Lords made a major change to the Dissolution and Calling of Parliament Bill. Lord Judge successfully moved an amendment that would give the House of Commons a veto over the dissolution of Parliament.

I’ve discussed the Bill in more detail elsewhere, but the gist is that it would repeal the Fixed-term Parliaments Act 2011 and restore the Sovereign’s power to dissolve Parliament under the prerogative. Unlike most other royal powers (which must be exercised in accordance with ministerial advice), the Monarch traditionally had an element of discretion when dealing with a Prime Minister’s request for a dissolution.[1]

Because the Bill would make dissolution non-justiciable,[2] the Sovereign would be the only one who could police the power. That has the potential to put the Palace in an awkward position. Convention dictates that the Monarch must remain above the political fray, but refusing a Prime Minister’s request for a dissolution could drag the Crown into partisan controversy.

Lord Judge alluded to this difficulty when moving his amendment:

Whatever the position was in 1950,[3] the idea that the sovereign can, in response to the Prime Minister who advises or requests—what a wonderful argument that has been—a Dissolution, refuse it, is completely inconceivable; it is beyond the fairies. We cannot have the monarch turning down the elected Prime Minister’s request for Dissolution without becoming utterly enmeshed in party politics.[4]

In the past, the Sovereign was protected by a strong ethos of deference that discouraged ministers from doing anything that might embarrass the Crown.[5] But in a hyper-partisan age where the ends increasingly seem to justify the means, future monarchs might feel that they have no choice but to grant every request for a dissolution, no matter how problematic.[6] The 2019 prorogation controversy shows how the Monarchy could easily find itself in a no-win situation. Keeping dissolution disputes away from the Palace might well be the safest course of action.

Of course, it’s debatable whether Lord Judge’s amendment itself constitutes a meaningful check on the Prime Minister’s power. Under the FTPA, an early dissolution generally required the support of 2/3 of MPs.[7] By requiring cross-party support, it was supposed to discourage Prime Ministers from opportunistically seeking early elections.[8] However, if dissolution only requires a simple majority, Prime Ministers will likely be able to have elections whenever they want.[9] But Lord Judge’s amendment also arguably serves a symbolic purpose as well. As Lord Lansley put it:

[W]e should give an opportunity not to restore the prerogative in the form in which it existed in the past but to qualify it by reference to what is the reality of our constitution—that sovereignty rests in the sovereign in Parliament, that that must be reflected by a majority in the House of Commons.[10]

In other words, it’s a classic British constitutional fudge.[11]

Ultimately, Lord Judge’s amendment probably won’t make it onto the statute book. The Government will likely be able to overturn it when the Bill returns to the Commons. Peers will then need to decide whether to insist on their amendment or give way. Since this is a manifesto bill, the Upper House will likely yield in the end, though it may take a few rounds of ‘ping pong’ before the matter is settled.

[1] As is often the case with the British constitution, the precise scope of that discretion was and is contested.

[2] Clause 3 of the Bill states that: “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.”

[3] In 1950, King George VI’s Private Secretary wrote a pseudonymous letter to The Times setting out the principles that guided the Sovereign’s response to a request for a dissolution.

[4] HL Debates, 9 February 2022, col. 1585.

[5] For example, William Gladstone was frequently at loggerheads with Queen Victoria, yet he never aired his grievances publicly.

[6] It’s worth remembering that not every monarch will have the auctoritas of Elizabeth II.

[7] Section 2(1)(b). However, votes of no confidence could also trigger an early election in certain circumstances, and they only required a simple majority.

[8] In 2017, MPs overwhelmingly supported Theresa May’s request for an early election even though it was nakedly opportunistic. Of course, it didn’t quite work out the way she’d planned…

[9] During the debate on Lord Judge’s amendment, some peers argued that this amendment was a recipe for the kind of paralysis that marked the latter part of 2019. But the issue there was the need for a 2/3 majority. Had a simple majority been sufficient, the Government would have prevailed a lot sooner.

[10] HL Debates, 9 February 2022, col. 1588.

[11] I’ve long thought that the FTPA went too far by entirely removing the Sovereign from the process of ending a Parliament.

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2 Responses to Thoughts On The Judge Amendment

  1. Froghole says:

    Many thanks. The amendment strikes me as being an attempt to negate the essence of the bill. The argument being made is that the prime minister could game the system and that this would be a Bad Thing because we are living in a ‘hyper-partisan’ epoch (although is it any really more partisan than 1628-34, 1639-42, 1678-89, 1710-14, 1760-84, 1827-35, 1909-14 or 1974-79, when the executive exercised its discretion over dissolutions with varying degrees of competence?). However, that is probably not the real rationale of this amendment.

    Lord Judge was one of the judicial figures who was notably critical of the government’s tactics during the Brexit impasse of 2016-19. The government is attempting to avoid a recurrence of the situation it was in during that period when its bargaining power with the EU was compromised both by its lack of an effective majority and its inability to go back to the people owing to the FTPA. The scarring is still there. As I see it, this ‘debate’ is part of the ongoing ‘Brexit wars’. The government (for whom I hold no candle) will argue that the amendment is a recipe for paralysis (as well as being, in some senses, futile). Lord Judge and his supporters will argue that this is about restoring a measure of balance between the executive and legislature.

    As you note Lord Judge is unlikely to win this debate. Since the late thirteenth century parliament has, on occasion, gained the upper hand over the executive, or has attempted to compromise the executive’s ability to ‘manage’ parliament (the various Place Acts, 1693, 1741, etc., were instances of this, and were whittled away until 1919/1926), but the executive has usually been able to gain and retain the upper hand, chiefly because of its patronage powers. This is unlikely to be different.

    In your excellent previous post of 14 January about the duke of York you referred to the Titles Deprivation Act 1917, and you might have mentioned there being four peerages ‘cancelled’. I had thought there were only three: Albany (D.), Cumberland & Teviotdale (D.), and Taaffe (V.), whilst the heirs to the present holders could petition for the restoration of the titles, although they have not done so (although the Taaffe viscounty in the Irish peerage is extinct). I appreciate that Prince Ernest Augustus, heir to the dukedom of Brunswick (and earl of Armagh by courtesy) was also affected, but I suppose he was not a peer. The Act does seem to be a good model for depriving delinquent peers of their titles (Lord Ahmed of Rotherham has just been imprisoned for offences against minors in the 1970s, and there are other examples, such as Lords Kagan, Archer of Weston-super-Mare, Hanningfield, Taylor of Warwick and St Davids). It is a short statute and could be amended quite simply. Deprived peers or their heirs could still have the right to petition the crown for restoration to the peerage roll under Section 2, subject to an assessment by a committee of the privy council. Perhaps it could also be applied to those titles affected by past attainders, notably those of 1745-46. I also note that in 1915 George V stripped Albany and Cumberland, amongst other ‘enemy’ royals, of their supernumerary or ‘extra’ Garters, a sanction which has not yet been applied to the duke of York, who still enjoys his KG (2006) and GCVO (2011).

    • jasonloch says:

      It might be better to pass an entirely new statute rather than try to breathe new life into the Titles Deprivation Act 1917. As Ann Lyon noted in her article on the subject, the procedures established by the 1917 Act are problematic from a modern standpoint.

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