The Fixed-term Parliaments Act 2011 Contents

4The prerogative of dissolution

36.Prior to the FtPA, the legal power to dissolve Parliament rested with the Sovereign who, by modern convention, would do so at the request of the Prime Minister.54 Section 3 of the Act replaced the royal prerogative power of dissolution, and the commitment to repeal the FtPA has raised the question of whether the royal prerogative power of dissolution can be revived.

37.The evidence received by this Committee demonstrates that this is a complex and contested legal question. One point, however, where there was clear consensus was that a simple repeal—such as a one-line Bill saying “the Fixed-term Parliaments Act 2011 is repealed”—would not revive the prerogative. This is because, as Sir Stephen Laws explained, the Interpretation Act 1978 provides that repealing an Act does not automatically reinstate any provisions that the Act itself might have repealed.55 Indeed, as Professor Young pointed out, not only would repealing the FtPA fail to revive the prerogative, it would also not deal with the fact that the FtPA repealed previous legislation for maximum terms.56 Because of this, Professor Phillipson told us that the most immediate result of a simple repeal would be that the current Parliament, as things stand, would last forever.57 It is worth noting that simple repeal legislation would require the explicit agreement by the House of Lords as the powers in the Parliament Act 1911 cannot be used to extend the maximum duration of a Parliament beyond five years. Professor Young was also clear that a simple repeal would be “highly problematic and would obviously trigger all sorts of potential confusion and potential legal action in the future”.58 Both Sir Stephen and Professor Phillipson were clear any new legislation to replace the 2011 Act will have to state what will replace it.59

Abolished or in abeyance?

38.The question of what should replace the FtPA leads to consideration of whether the revival of royal prerogative of dissolution is an option. There is considerable disagreement on this point.60 Professor Philippe Lagassé told us that “statute can have two effects on the royal prerogative: acts of Parliament can either abolish prerogative powers outright or they can displace prerogative, placing them in abeyance”.61 Professor Phillipson also set out that whether or not a prerogative can be revived depends “partly on what happened to the old one”, that is whether it was put into abeyance or abolished.62 There are, he said, three situations to be considered here. The first is where the prerogative is clearly displaced or put into abeyance. Professor Phillipson explained this with reference to the De Keyser’s case.

What happens there is that something was previously governed by the prerogative and you then have a new statute that governs the same area, so the two areas of law overlap. The very clear finding by the courts was that, in those situations, the Government can only act under the statute, and the prerogative, as it were, goes into abeyance. In other words, it sits underneath the statute, but if the statute was removed the prerogative would still be there.63

Professor Lagassé similarly set out that:

When an Act displaces a prerogative, either expressly or by necessary implication, the executive can only exercise the authority granted by statute. Since statute is not always precise or wide ranging, however, prerogative may still provide the executive with authority where the Act is silent. In effect, the prerogative can be used to address gaps that statute failed to address.64

39.The second situation is where there is clear intention to abolish the royal prerogative power. Professor Phillipson said that the clearest example of this is an express abolition, although he could not think of a direct example.65 Professor Lagassé similarly describes this situation:

When an Act of Parliament abolishes a royal prerogative, the prerogative ceases to exist altogether as a source of legal authority. In the event that the statute that abolished the prerogative is repealed, the prerogative remains a nullity. If the abolishing Act replaces the prerogative with a statutory authority, a new Act will be required to fill the legal gap that the combined prerogative abolishment and statutory repeal creates. If Parliament wishes to replicate or recreate the authority of an abolished prerogative, it will need to do so on a statutory basis.66

40.The third situation Professor Phillipson set out is where an Act abolishes the prerogative by necessary implication. This is where an Act does not contain the explicit wording that the prerogative is abolished, but contains provisions that have the same effect, and so abolishes the prerogative by necessary implication. It is this situation that Professor Phillipson suggests applies to the FtPA, as it says Parliament cannot otherwise be dissolved.67 Here, however, Professor Lagassé appears to take a different view, arguing:

When statute clearly occupies the same ground as the prerogative, but does not expressly abolish it, the prerogative authority remains but is placed in abeyance. Put differently, the prerogative authority continues to exist at common law, yet it is inaccessible to the executive as long as the government can act through statute. In the event that the displacing statute is repealed, the prerogative authority would, in theory, be revived and exercisable by the executive.68

41.For Professor Lagassé, the criteria for determining whether a prerogative has been abolished or put into abeyance is based on whether there is an express statement of abolition. While he sets out arguments on both sides, he concludes that “the case that the FtPA has put this royal authority in abeyance is stronger”.69

42.Conversely, the evidence taken from those involved in drawing up the Act and its passage through Parliament was that the intention of the Government at the time was to abolish the royal prerogative. When asked, Lord O’Donnell said, “the simple answer to that is yes”.70 Sir Stephen Laws agreed that the intention was to abolish the prerogative saying, “Section 3(2) says: ‘Parliament cannot otherwise be dissolved’. That comes as close as I can see to abolishing it”.71 Mark Harper was clear in his view that:

…it was the intention to abolish the prerogative…In my view, and I think this is supported by many eminent lawyers, the Bill did abolish that prerogative power and the Queen does not have any residual power to dissolve Parliament. That power can only be exercised by statute.72

43.However, Sir Stephen Laws suggested that the question of abolition is a” red herring”, as for him the sovereignty of Parliament means that:

If Parliament wants to say the law from 2020 is to be the same as it was before 2011, as if we had never had the Fixed-term Parliaments Act, that is within the power of Parliament to say. Whether that revised something that has been abolished or starts it up again is more or less irrelevant, because the practical effect is that you have got to where we were before.73

44.Robert Craig, University of Bristol, also advocated this view because no Parliament can bind its successor.74 He believes that it is not within the power of Parliament to abolish a prerogative. He argues that it is therefore possible to revive the dissolution prerogative, otherwise the 2010 Parliament will have successfully bound future parliaments.75 Even here though there remains ambiguity as while Parliament, as Dicey put it “has the right to make or unmake any law whatever”, it cannot of necessity undo every effect of a law.76 For example, if Parliament were to pass a statute to demolish the Palace of Westminster and move to another location, it could subsequently pass a further statute undoing the move, and order the rebuilding of the Palace, however, it could not undo the demolition. Similarly, it is clear from the evidence there is no doubt that Parliament could create a statutory power that could recreate or at least approximate the previous arrangements for dissolution, but this would be a statutory and not a prerogative power. Professor Phillipson and Professor Young both stated they did not know of “an example of Parliament ever reviving a prerogative, so we just do not know whether it can be done”.77

The potential role of the Courts

45.If the prerogative could be revived, it is clear that, due to the Interpretation Act, it would need to be done so expressly. Professor Young told us such legislation would have to specifically say “that the prerogative power of dissolution is now revived.”78 However, she felt that this would raise two questions: first what exactly are you reviving?

Would you be reviving just the aspect of the Monarch being requested by the Prime Minister and then dissolving, or would there also be arguments as to whether you were potentially reviving an ability of the Monarch to force a dissolution in order to resolve a constitutional crisis? Again, that is an aspect of uncertainty that I do not think you really want to open.79

And secondly how the courts would interpret such an act?

Would they see it as a valid way of saying we have returned the prerogative, or would the courts turn around and say, as we know very clearly from the recent prorogation case, it is their job to determine the scope of the common law and that prerogative powers are common law powers that also interact with the backdrop of legislation? It becomes a very arguable point before the Supreme Court as to whether putting in a piece of legislation, “The prerogative power of dissolution is now revived,” would suffice or not.80

46.The concern about the involvement of the courts and uncertainty about how they would view any attempt to revive a prerogative, was shared throughout the evidence to the inquiry, and by those on both sides on the debate as to whether it could be revived. For example, Sir Stephen raised the concern that:

…as a result of the prorogation case, an important feature of the previous law on dissolving Parliament (the non-justiciability of political decisions about a dissolution) could no longer safely be relied on, unless expressly addressed. Just as that case has cast doubt on the future non-justiciability of the provisions of the 2011 Act, so it has also cast a similar doubt on whether restoring the pre-2011 law (under which prorogation was an invariable feature of every dissolution) would restore the non- justiciability of dissolution itself.81

47.Professor Young set out the two aspects of the prerogative that could come into play in the court if Parliament attempted to revive the prerogative. The scope of the prerogative and how you exercise a particular prerogative power. The key element, she suggested, was whether it exists and its scope, and, reflecting on the Supreme Court’s decision in [2019] UKSC 41, known as the Miller-Cherry prorogation case, said “the courts will use background constitutional principles to limit the scope of a prerogative power regardless of the prerogative power”.82 Professor Young was clear that reviving the prerogative would introduce an “element of uncertainty” and that “ it is much better to put it on a statutory basis, which can achieve exactly the same purposes.”83 Professor Phillipson also said that if the prerogative was revived, it would:

…almost certainly end up in litigation and probably have to go to the Supreme Court because it is an open point of law. Therefore, the more sensible course of action would appear to be to deal with it by replacement legislation rather than by a simple repeal.84

48.Sir Stephen Laws was also clear that whatever arrangements replace the FtPA will need to be set out in an Act, and he suggested “adding a rule to exclude the courts from considering either Dissolution or Prorogation”.85 Professor Phillipson suggested that if the concern of Parliament is to keep the courts out of decisions over dissolution, the simplest way was to give Parliament a role. He told us:

If you make it a parliamentary motion that triggers a general election, no one doubts that that is squarely protected by Article 9 of the Bill of Rights, which means that the courts cannot rule on it. Whereas on the other hand, if it remains a pure Executive power, like prorogation or dissolution, there is now a chance the courts can rule on it.86

Political concerns with reviving a prerogative

49.There were also broader political concerns with the idea of reviving the prerogative. Professor Russell and Professor Hazell described the idea of restoring the prerogative as “a retrograde step in terms both of international norms and the direction of travel in the UK constitution, which has tended towards greater regulation of prerogative powers”.87

Professor Cowley observed:

I don’t think it is a particularly republican position to say that it feels quite weird to be discussing restoring prerogative powers. If you look at the development of British democracy over the last 400 to 500 years, it has been a gradual erosion of the power of the Monarch and then the Executive. It is a curious discussion to be having, to reverse, to take powers away from the legislature in this way.88

Building on this point Professor Schleiter expressed her view that:

Politically, I think it would be a very difficult step at this point in time for a democratically elected Parliament, because restoring prerogative power would make it clear that, when faced with this complex issue, Parliament prefers to hand power back to the Monarch rather than rising to the challenge, working through the issues and regulating it adequately by statute. I think that would be an admission of failure in some way. Secondly, I think it would set a really troubling precedent. If this crucial prerogative can be restored, giving the Executive wide discretion to call early elections, what other parliamentary checks can the Government disable by restoring discretionary powers to act under the royal prerogative?89

50.The question of whether or not the dissolution prerogative can be restored is a complex one, which involves fundamental constitutional principles. It clearly was the intention of the Government in 2011 to abolish the prerogative, but the wording of the Act is less conclusive on this point. Some also hold the view that the fact of abolition does not even matter. As all the evidence to this inquiry makes clear, this is a highly contested issue. There are also questions as to what exactly would be revived and for example what the legitimate expectations of the Sovereign as a constitutional backstop would be. This is of particular concern in light of the Supreme Court’s recent decision about the prerogative power of Prorogation. It is clear that attempting to revive the prerogative would invite the courts to make the final decision on these issues. These are core political and constitutional questions that neither Parliament nor government should abrogate to the courts. Even if there is a desire to return to the old system for dissolution and calling elections, it would be better setting these arrangements in statute rather than engaging in an unnecessary attempt to revive a prerogative which could have considerable unintended consequences and implications.

51.While not all members of the Committee would oppose such a move, it is also cognisant that reviving the prerogative would mean taking a power that is set out in statute and regulated by Parliament and handing it back to the Crown. Whether or not adequate consideration was given to the full implications of removing the prerogative in 2011, Parliament now has responsibility for this area of the UK political system. The Government should not simply rely on reviving the prerogative, but look to establish a new, robust system for dissolution and calling of elections in the UK.

59 Q16; Q75; Stephen Laws, The Future for Constitutional Reform, Policy Exchange, para 37

60 Q75; Q76; Robert Craig (FTP0010); Meg Russell and Robert Hazell (FTP0011); Professor Anne Twomey (FTP0003)

61 Professor Philippe Lagassé (FTP0004)

64 Professor Philippe Lagassé (FTP0004)

66 Professor Philippe Lagassé (FTP0004)

67 Section 3(2); Q76

68 Professor Philippe Lagassé (FTP0004)

69 Professor Philippe Lagassé (FTP0004)

74 Robert Craig (FTP0010)

75 Robert Craig (FTP0010)

76 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Liberty Fund (1915), 5

81 Stephen Laws, The Future for Constitutional Reform, Policy Exchange, para 37

82 Q79; R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41

85 Q16 ; Q41

87 Meg Russell and Robert Hazell (FTP0011)

Published: 15 September 2020