Report Contents

3The Government’s Draft Bill

Publication of the Government’s proposals

96.The Government published its proposals for what should replace the Fixed-term Parliaments Act 2011, the Draft Fixed-term Parliaments Act 2011 (Repeal) Bill on 1 December 2020. This took the form of:

a)a draft Bill with associated draft Explanatory Notes; and

b)a document entitled “Dissolution Principles”.

The draft Bill is dealt with in this chapter and the Dissolution Principles are addressed in chapter 5.

Summary of the draft Bill’s proposals

97.In short, the Government’s main proposals are:

a)to repeal the Fixed-term Parliaments Act 2011;

b)to restore (what were, prior to the FtPA) the Monarch’s formal powers to dissolve Parliament, to call a new Parliament, and powers exercised incidentally in connection with them, such as the preparing and issuing of election writs;

c)to prevent the courts from exercising oversight over decisions to do with both dissolution and the calling of Parliaments by way of an ouster clause;

d)to return to a maximum Parliamentary term of five years, calculated from the point when that Parliament first met; and

e)to give the Government the ability to delay polling day by as little as 7 days, or as much as 21 days, following the demise of the Monarch (currently the delay is simply 14 days).

The short title of the draft Bill

98.A common criticism of the Fixed-term Parliaments Act 2011 was that it was “misleadingly named” because it did not in fact seek to introduce wholly “fixed-terms” for Parliament.86 The possibility of an early election was expressly contemplated and even provided for, and the system is more accurately described as one with semi-fixed terms, as events since 2015 have illustrated.

99.Some observers, similarly, have been critical of the proposed short-title for the Government’s repeal legislation: the “Fixed-term Parliaments Act 2011 (Repeal) Act 2021”.87 Paul Evans, a former House of Commons Clerk, said of it:

It was a mildly amusing treat to be able to tell students before 2011 that the maximum duration of a Parliament of five years was set out in something called the “Septennial Act”. It seems unwise to carry the joke on into the future—especially since it would no longer be funny.88

100.Professor Robert Hazell and Lord Hennessy also considered the title undesirable for “what will be a fundamental constitutional statute”, suggesting respectively, a title like the “Dissolution and Duration of Parliament Bill” or “the Confidence Act.”89

101.The Government should adopt a title—and in particular a short title—that more fully encapsulates the subject matter and future function of the legislation. We recommend the Bill should be entitled the Dissolution and Summoning of Parliament Act. The draft legislation would not, after all, simply repeal the Fixed-term Parliaments Act (that is achieved by clause 1 alone), but replace its provisions.

Clauses 1 and 2: repeal of the FtPA and provision about the prerogative

102.The first two clauses of the Bill work together: Clause 1 simply repeals the Fixed-term Parliaments Act, Clause 2 makes provision 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 Act2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.

(2) For the purposes of subsection (1), the powers relating to the calling of a new Parliament include powers to order the issue of—

(a) writs of summons to attend the House of Lords, and

(b) writs for parliamentary elections (see rule 3 in Schedule 1 to the Representation of the People Act 1983).

The legal debate on reviving prerogatives

103.It is clear that it would be impossible to simply repeal the Fixed-term Parliaments Act, as to do so would cause legal uncertainty. Instead, the Government has instructed the courts to act as if it had never been passed.

104.This is a novel approach. While governments have frequently legislated to supersede prerogative powers in the past, this is the first statute intended to revive prerogative powers. The unique nature of this legislation has prompted a debate about whether it is, in fact, legally possible to legislate for a return to prerogative powers.

105.A central difficulty is uncertainty over whether the FtPA abolished the prerogative power of dissolution or simply put it into abeyance so that it could be revived. Both the Constitution Committee and PACAC considered this issue in their respective inquiries and set out the arguments in detail in their reports on the Act.90 Professor Gavin Phillipson, Professor of Law at Bristol University, argued that a fundamental tenet of the UK Constitution, that Parliament is sovereign, meant that “a sovereign parliament must be able actually to abolish–to ‘unmake’ —prerogative powers, not merely place them into temporary suspension.”91 Powers which were abolished could not be restored.92 We also heard the contrary, that the sovereignty of Parliament requires that Parliament, in fact, be able to revive the prerogative otherwise the House of Commons that passed the FtPA would have effectively bound its successors. Robert Craig, Law Lecturer at Bristol University, told us that: “The fundamental and orthodox principle that a current parliament can completely unmake a previous Act of Parliament is therefore directly at stake.”93

106.Philippe Lagassé argued that the abolition model would mean there would be a legal vacuum if legislation that had replaced the prerogative power was repealed without a substitute law—citing as an example that repeal of the FtPA without further legislation would mean there was no mechanism to dissolve Parliament.94

107.In contrast, Professor Twomey noted the likelihood of unintended consequences if the abeyance model was adopted, particularly in terms of returning power to the Executive. If repealing statutory powers meant that long forgotten prerogatives were restored. Governments might be able to claim “‘Look, I suddenly have a prerogative to pressgang people’ or to do any of those sorts of things that we all thought had disappeared a long time ago.”95

108.Lady Hale, former President of the Supreme Court, agreed with Professor Young that the language of the FtPA “reads as if it abolishes the [prerogative] power to dissolve Parliament” but noted that there was some ambiguity “on the calling of a new Parliament; it [the FtPA] simply fixes the time for general elections” and therefore did not feel in a position to come to a conclusion on the question.96 Lord Sumption, former member of the Supreme Court, however, thought it was “pretty clear that the Fixed-term Parliaments Act abolished the old common law prerogative”97 as “if Parliament… put[s] what used to be a common law power on a statutory basis, the effect is that the common law power no longer exists; it is subsumed in the statute. I do not think you can have the two sources running by side.”98 Similarly Sir Stephen Laws said that “ Section 3(2) says: “Parliament cannot otherwise be dissolved”. That comes as close as I can see to abolishing it”.99

Does the abolition/abeyance distinction matter? Can the prerogative be revived regardless?

109.Some of our witnesses were of the view that the unresolved question of what happens to the prerogative when the statute got rid of it is repealed meant it would be unclear whether the powers in the draft Bill were based in statute or in the common law of the prerogative, leading to legal uncertainty. Professor Anne Twomey described the problem as she saw it: “Parliament may, by enacting a statute, abolish the prerogative. If it does so, it cannot create a new prerogative, or revive it as prerogative, because by definition a prerogative is a non-statutory Executive power. But if the source of this power is now statute—if it is statute that does … the revival—then it is, of its nature a statutory power.”100 Similarly Daniel Greenberg, Counsel for Domestic Legislation, Office of Speaker’s Counsel, House of Commons, told the Committee;

The reality is that the restored prerogative powers of dissolution of Parliament will now owe their continued life to a statute, namely section 2(1) of the Draft Bill. That Bill if enacted will direct the courts to behave as if the prerogative power were not converted into a statutory one but had never been diminished. But as a matter of incontrovertible historical fact the continued power of dissolution vested in the Crown will now be owed to statute, simply because it was previously diminished, and then restored, by statute.101

110.Professor Young summarised the importance of the source of a law [legal power] as follows:

… even if the content is the same, the courts will deal with statutory powers and prerogative powers in slightly different ways [ … ] when the courts are dealing with a statutory power, they often have legislation setting out the way in which a particular power is meant to be exercised. By definition, that legislation is not there when you are dealing with a prerogative power, because the prerogative’s source is in the common law. That means that, for example, the principle of legality may apply slightly differently. There is also case law suggesting that judicial review, when looking at fettering of discretion, for example, applies differently, because there is no legislation setting out a discretionary power when we are looking at a prerogative.102

Revival of the prerogative: the Government’s approach

111.The Government has clearly accepted that there is the potential for uncertainty in this area because the draft Bill both repeals the FtPA and replaces it, rather than opting for bare repeal.103 Its position, therefore, is that it does not, for practical purposes, matter whether the prerogative is capable of revival as any legal uncertainty is resolved because the legislation is clear that revival of the pre-2011 constitutional arrangements is the statutory intention.104 This position received strong support from Sir Stephen Laws, who described the revival debate as an “interesting academic question” but fundamentally a “red herring because for practical purposes, it is perfectly plain that the intention of the Act is to restore the situation to what it was before the 2011 Act, and therefore the law will then be indistinguishable from what it was before.”105

112.Lord Sumption, a former member of the Supreme Court, supported the Government’s position due to the drafting of clause 2:

“clause 2 requires the courts to act as if the Fixed-term Parliaments Act had never been enacted. This is a deeming provision: they are required to pretend that it never happened, and if it had never happened, the prerogative would still be there.”106

Lord Sumption qualified his support by noting that the question of abolition of the prerogative “might matter if it enabled one to say that the power to dissolve had become a statutory power instead of a prerogative power [ … ] but I do not think that that is the case because of the way clause 2 is formulated.”107

113.This Committee, unlike PACAC and the Constitution Committee, has had the benefit of seeing the draft Bill before reaching its conclusions on this issue. This has allowed us to assess, in a less abstract context, whether the Government’s form of repeal and replacement has the effect of reviving or otherwise reinstating prerogative powers to do with dissolving and calling Parliaments.

114.Sir Stephen Laws argued that the Government’s approach was the best way of returning to the status quo ante:

I think what the Government is trying to do, as we have discussed, is reproduce the position before the 2011 Act was passed, and the securest way to do that is not to try to do something else that might be neater but would be different. The provision says exactly what it wants: to go back to where we started. Setting out expressly what that is thought to be only creates the room for somebody to argue that what the new Act says is different in some way from what the position was before. I have always thought the best way to draft anything is to say exactly what you mean, and that is what this clause does. It says, “The position is to be the same as it was before,” as if it had never been changed.108

115.Lord Butler considered the position before the FtPA was clear:

the Prime Minister could ask the Queen to dissolve Parliament either at the end of the five-year term, or at such earlier time as seemed necessary because the Government had lost the support of Parliament or needed a mandate from the electorate for some other reason.109

116.Dame Margaret Beckett was also comfortable with the Government’s approach:

I gather that there are people who say that you can’t just go back—you can’t restore a convention—but I don’t know why not. We have an unwritten constitution. In my view, you can do almost anything if there is the parliamentary support for it. The system seemed to me relatively simple and straightforward. It is not as if it was complicated. Explaining the Fixed-term Parliaments Act is complicated and difficult, but the status quo ante was not complicated and difficult; it was relatively straightforward.110

117.The legal powers under the prerogative of dissolution and calling of Parliaments were legally uncomplicated prior to the FtPA.

a)The Monarch could dissolve Parliament by proclamation at any time before the expiry of its maximum term;

b)The Monarch had discretion as to when to summon111 a new Parliament by proclamation, provided that they did so within three years of the dissolution of the last Parliament; and

c)Election writs could be and were prepared and issued immediately following a proclamation summoning the new Parliament.

118.Although the relevant prerogative powers of the Monarch are not expressly stated in the Government’s draft Bill, their legal nature and scope are widely accepted and straightforward to explain. As long as there is clarity about what these rules are, and how the exercise of prerogative powers is governed by constitutional conventions to do with dissolution, calling of Parliaments, confidence, and government formation, this statutory approach is likely to be effective. We accept that, if the Government wants to return to the status quo ante, doing so by historical reference may aid certainty as to its legal intentions.

119.The evidence we have heard suggests that the drafting of clause 2 of the draft Bill is sufficiently clear to give effect to the Government’s intention of returning to the constitutional position, in substance if not necessarily in form, before the passing of the Fixed-term Parliaments Act 2011. The potential legal uncertainty created by passing the Bill as currently drafted, as to the source of the power to dissolve parliament, would only become relevant for practical purposes if the question of dissolution was considered by the courts. We consider this issue at paragraphs 146 to 175 below.

Implications of returning to a prerogative system- transfer of power from the House of Commons to the Government

120.The Fixed-term Parliaments Act 2011 gave the House of Commons statutory control over early general elections. The draft Bill would remove this. This is a reversal of a recent trend across all the main political parties which has seen varying promises to enhance the control of MPs over the use of the prerogative power to dissolve Parliament. As set out in Chapter 2, the Fixed-term Parliaments Act, by removing the Monarch’s prerogative to dissolve parliament and making the House of Commons the primary decision maker in triggering an early election, transferred a significant amount of power from the Monarch and Government to Parliament. This was recognised in the 2015 Conservative Party manifesto which listed as one the Party’s achievements that the Act was “an unprecedented transfer of Executive power”.112

121.Lord Butler was in favour of increasing parliamentary control over the prerogative, but thought the prerogative power to dissolve was the “one exception. In this case, the way that things work with the prerogative, with the politicians having to work this out and with the Queen as a last resort that never has to be invoked, creates a more flexible situation, and I think that works.”113

122.Michael Gove, the Chancellor of the Duchy of Lancaster, accepted that the draft Bill would mean a transfer of power from the House of Commons to the Executive, but described the (potentially) greater frequency of elections as “a transfer of power back to the people.”114 Mr Gove went on:

I think that the recent experience of the 2017 to 2019 Parliament shows what can happen when Parliament, for a period, withdraws the ability of the Prime Minister to seek a Dissolution, but at the same time resolves to block the Prime Minister when she is trying to bring forward appropriate legislation. In that sense, for democracy to work, we need to recognise the absolute supremacy of the Crown in Parliament, but we also need to recognise the way in which appropriate checks and balances ultimately depend on the people being the court of final resolution. That is why Governments should be able to request a dissolution when they are not able to get their business [ … ] ultimately, what I think we are talking about here is the effectiveness and responsiveness of our democratic system overall.115

123.The Government’s draft Bill transfers the power to determine whether or not there should be an early election from the House of Commons to the Crown. The Prime Minister will choose the time at which he or she will request a dissolution and the Monarch will decide whether to grant that request. But ultimately elections ensure the electorate—the ultimate authority in a democratic system—has the opportunity to exercise its judgment.

The role of the Monarch

124.By reverting to a prerogative system, the Government proposes to restore, at least formally, legal powers to the Monarch. Any legally binding decision to dissolve Parliament and/or to summon a new one would be taken by the Monarch. She would issue a proclamation to that effect. The decision would not, as such, be taken by the Prime Minister.

125.In practice it would only be in very extreme circumstances that a request would be refused. There are no known examples in the 20th century of a UK Prime Minister’s dissolution request actually being refused by the Monarch.116 As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.117

126.Even so, Lady Hale told us that “classically, the Monarch has had discretion in the matter” at the very least where the Prime Minister lacks the confidence of the House of Commons and where the Monarch can rely on being able to ask someone else to form a Government.118

The operation of the prerogative

127.One of the reasons, as Professor Anne Twomey pointed out, for the uncertainty about the operation of a prerogative system of dissolution, is that most of the actions and representations made by the Monarch take place in private:

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.119

128.Both Professor Alison Young and Sir Malcolm Jack also made similar observations about the inherent lack of transparency underpinning a prerogative system.120

When might a dissolution be refused?

129.There was some indication of the circumstances in which the Monarch might refuse a request to dissolve Parliament. The Lascelles Principles used to be taken to be a reliable guide as to the nature of the Monarch’s veto over dissolution from 1950 to at least the 1990s.121 Sir Alan Lascelles, the then King’s private secretary, posited pseudonymously in The Times that a wise Sovereign would only refuse a dissolution request if he or she were satisfied that:

a)The existing Parliament was “vital, viable and capable of doing its job”;

b)A general election would be “detrimental to the national economy”; and

c)He or she could “rely on finding another prime minister who could govern for a reasonable period with a working majority in the House of Commons.”122

130.Lord Hennessy, Attlee Professor of Contemporary British History, Queen Mary University of London,123 has said that, the 1990s onwards it was sufficient to say that a Monarch could refuse a dissolution if the Parliament remained vital, viable and capable and that an alternative government could carry on for a reasonable period of time with a working majority in the Commons.124

131.In February 2010 the then Government published the draft Cabinet Manual Chapter for consultation. This said that before granting a dissolution request in a hung Parliament (especially one made early on in a five-year Parliamentary term):

the Monarch would normally wish the parties to ascertain that there was no potential government that could command the confidence of the House of Commons before granting a dissolution.125

132.We also explored the circumstances in which such a request for dissolution might be refused by the Monarch’s representative in Commonwealth countries. Professor Twomey identified three main situations where a Monarch might credibly refuse a dissolution request, based on the experiences of both the UK and of other Commonwealth countries where the decision to dissolve Parliament formally rests with the Monarch or a vice-regal officer. The first of those was that:

If an election has been held very recently and another Government can be formed, a defeated Prime Minister does not have the right to keep on having new elections until the voters give him or her a win. Parliament has to be allowed to be able to operate, and the vote of the people in the election has to be taken seriously.126

133.Lord Hennessy similarly observed that, had Edward Heath sought to carry on governing after the February 1974 election, and had then lost a vote on an amendment to the Queen’s Speech, the expectation would have been that he would resign rather than that he would make a further dissolution request.127

134.Professor Twomey also considered a dissolution request might be refused if the Government would run out of supply between dissolution and the State Opening of the new Parliament, the Monarch might refuse the request, (or delay agreeing to it until Parliament had provided adequate money cover). Professor Twomey noted:

This is primarily a problem in other countries where you have an upper House that can block supply, so it has been an issue in Australia.128

135.Professor Twomey’s third example of when a dissolution might be refused was where there has been “a shift of majority” and because of some emergency an election might be damaging for reasons such as a pandemic, war or economic crisis:

The Monarch is far more likely to grant a Dissolution, because it is almost always better to ask the people to choose who the Government is. It would only be in those circumstances where, for one reason or another, holding an election at that time would be damaging. This goes back to the Lascelles principles, whereby it is likely that a shift in a majority would result in a baton change without an actual election.129

Drawing the Monarch into political matters

136.Personal prerogative powers present an inherent challenge for constitutional monarchies. For the Monarch to be an effective safeguard against the abuse of prerogative powers by the Executive, the Monarch must actually feel able to exercise, or indeed refuse to exercise, those powers. Even if he or she does not then actually use those powers, the possibility that he or she might, can shape and influence the behaviour of others. The dilemma is that, in exercising or refusing to exercise personal prerogative powers and doing so contrary to the wishes of the Government of the day, a Monarch would inevitably be drawn into matters of party-political controversy.

137.Sir Malcolm Jack was keen to draw a distinction between keeping the Monarch out of all political controversy, and, more narrowly, keeping her out of matters of party-political controversy:

the Monarch is not drawn into party politics, but the Monarch is certainly drawn into politics. These decisions, under the Lascelles principles, are matters of politics, and so the Monarch is drawn into politics but not into party politics.130

138.In the case of dissolution, Dame Margaret Beckett reached the view that the Monarch’s veto is worth having even if its use appears extremely unlikely:

To be honest, I think it is really hard to envisage circumstances in which the Queen would be wise to refuse a Dissolution. Consequently, that is probably how she would be advised and how she would behave. Now, you could say that means that the personal prerogative is consequently useless, but there could be an extreme circumstance—it would certainly be a political earthquake if the Queen were to refuse such a Dissolution—so I do not think it pointless to have it.131

Effect of Monarchical powers on political behaviour

139.The perceived value of a Monarch’s veto seems less to be in the prospect that it will be exercised, and rather more that it discourages certain behaviour before a contentious decision ever has to be taken. This has sometimes been referred to as the “good chaps” theory of the constitution.132 One of the clear arms of the “good chaps” theory is that Prime Ministers, Ministers, Governments and Parliamentarians will conduct themselves in such a way as not to expose the Monarch to matters of political controversy, or to perceptions of partial decision-making. By giving the Monarch a formal role, and sometimes even discretionary decision-making power, those subject matters ought then to become ones where politicians behave more cautiously, having regard to constitutional principle. This implies, for example, that a Prime Minister should not make a dissolution request if it is made simply to avoid forthcoming changes in electoral boundaries.

140.Some have expressed doubts about the sustainability of the “good chaps” theory of Government, especially in light of the September 2019 Prorogation dispute.133 In late August 2019, while Parliament was in recess, the Monarch acceded to a draft Order in Council prepared by the Government which purported to prorogue Parliament for five weeks: the longest proposed period of prorogation since the early 1930s. The Order in Council, and the advice underpinning it, were later found to be unlawful by the UK Supreme Court.134 Lord Hennessy said to us:

I was horrified by the Prorogation story of August 2019; I really did feel the Queen should not have been put in that position.135

141.Dame Margaret Beckett suggested to us that the Palace might be less willing to go along with a controversial prorogation proposal in future, having been through that experience in 2019.136

142.The Dissolution Principles document describes both the powers to dissolve and to summon a Parliament as “personal” prerogatives. We understand the Government’s position to be that the Monarch’s power to refuse a dissolution would be a real one. If this is the case we believe that although it is unlikely that a Prime Minister’s request for a dissolution would be refused, the powers of the Prime Minister to fix the time of an election should not be unlimited and there would be some check on Executive power. If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to “advice” on dissolution with “requests” for dissolution since the Monarch must accept Prime Ministerial advice.

Should the draft Bill seek to capture constitutional conventions on dissolution?

143.It was suggested to us by Professor Alison Young and Lord Hennessy that the Monarch’s role might be clarified by including references to the Lascelles principles, or related constitutional conventions, in statute.137 Comparisons were drawn with the Scotland Act and the Government of Wales Act, both of which contain a statutory recognition of the Sewel or legislative consent convention. The statutory recognition emphasises the importance of the conventions in making the constitutional arrangements work, without going so far as to turn the conventions into enforceable legal rules for the courts to interpret and apply. Both acknowledged there are difficulties in practice articulating conventions in this way.

144.In almost every case, a Prime Minister’s request for a dissolution would be granted. It is after all a request to put the matter in the hands of the electorate. Nevertheless, it is conceivable that there are some extreme circumstances in which such a request would be inappropriate. One such instance might be where a Prime Minister, having lost a majority in the Commons in a general election, sought a further election before an alternative government could be formed. If the Monarch’s role in dissolution is indeed to be more than purely ceremonial, there should be clarity about at least some of the circumstances where exercising a veto would, or at least could, be constitutionally appropriate. Although some uncertainty is inevitable, because of the very nature of a prerogative system and our constitutional monarchy, Parliament and the public should have a clear sense of why a Prime Minister cannot always expect to be granted a dissolution. Any situation in which the Monarch feels it is necessary to refuse a dissolution would place both the person and institution of the Monarch at the centre of an issue of political controversy. This is a serious and central responsibility of the Monarch that should not be lightly used or shied away from.

145.The Government should consider further how best to articulate the role of the Monarch in this process, to build trust in the prerogative system they wish to implement. At the least, any revision of the Cabinet Manual should, unlike the initial Dissolution Principles document, address much more directly how the Monarch’s veto operates in practice.

Clause 3: The ouster clause

146.An ouster clause is a provision in statute that puts any exercise of the powers contained in the legislation beyond the jurisdiction of the courts, regardless of whether it is lawful or unlawful. Ouster clauses have rarely been used by governments and have not previously been successfully upheld in the courts.138 The courts recognise, however, the doctrine of non-justiciability, where an issue is inherently political in nature and there are no legal standards against which to judge its legitimacy, but non-justiciability is determined by the courts themselves, not imposed by statute.139

147.Clause 3 of the draft Bill sets out the following:

Non-justiciability of revived prerogative powers

A court of law 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.

148.The Explanatory Notes state:

Clause 3: Non-justiciability of revived prerogative powers of law

15 Clause 3 confirms that the exercise (or purported) exercise of powers relating to the dissolution of Parliament, and the calling of a new Parliament, is non-justiciable. The long standing position is that the exercise of the prerogative power to dissolve Parliament is not justiciable (see Council of Civil Service Unions v Minister of State for Civil Service [1985] AC 374, per Lord Roskill). This provision is included for the avoidance of any doubt that may arise.

16 Clause 3 also covers the preliminary steps and any decisions (or purported decisions) leading to dissolution of Parliament. This would include advice from the Prime Minister to the Monarch, as well as the exercise of the power itself.

17 Clause 3 further provides that the courts cannot consider the limits or extent of those powers. This is to address the distinction drawn by the Supreme Court in Miller v The Prime Minister, Cherry and Others v The Advocate General for Scotland [2019] UKSC 41 as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise. It seeks to clarify that neither is justiciable in the context of decisions relating to dissolution.

149.From this it is clear the Government asserts that the Bill states the commonly held legal position, and is merely for avoidance of doubt, and also takes into account recent judgments. In fact, this attempt to ensure that matters relating to the exercise of the prerogative are not justiciable is controversial and it provoked discussion among our witnesses. There were questions raised as to whether such a clause would be proper, whether it was desirable, and whether, if such a clause were desirable, the drafting was appropriate.

150.Some of our witnesses argued that to oust the courts’ jurisdiction in this way the Government and Parliament would be seeking to shackle the development of administrative and constitutional law, as Tom Hickman QC put it:

“if [ … ] the courts do ever need to assert [‘ … ] jurisdiction it could well be in circumstances in which democracy is under great stress, and I reiterate these would be circumstances in which Parliament itself has been dissolved and thus provides no check. The courts would be stepping into protect Parliament.”140

151.John McGarry, Senior Lecturer in Law, considered

the courts would only be likely to rule on the most egregious cases involving an abuse of the dissolution power and these are surely the very cases from which they should not be excluded;

such clauses put the relationship between the judiciary, the executive and the legislature under unnecessary strain and are contrary to the rule of law.141

152.Lord Butler also had reservations about the ouster clause, since “to have in legislation something that says we are not going to allow the courts under any circumstances to be involved is undesirable. It is something that should not happen. For the reasons I have given, I don’t think it is necessary, because, except in the limited example of Prorogation that we had before the last election, I don’t think the courts are ever likely to get involved.”142

153.He also told us:

I am not worried about the ouster clause in the Government’s repeal Bill, because the only circumstances that have been suggested as needing the courts to come in is if the Government used Prorogation repeatedly to try to stop Parliament sitting, but there is a safeguard against that: Governments cannot operate without Parliament, for the simple reason that they run out of money. [ … ] The Government, if it is going to govern, needs there to be a Parliament, and it is Parliament that will control Government.143

154.Sir Stephen Laws, formerly first Parliamentary Counsel, considered the ouster appropriate:

Ultimately, the House of Commons can vote for an absence of confidence in the Government, and the Government must then either resign or submit the issue to the electorate. It is right that Parliament and Government should conduct their relationship as equals and should not put the Supreme Court or any other judicial body above that relationship in order to decide between them. On that basis, this clause is appropriate and does what it intends to do.144

155.Sir Stephen noted “In this specific context, what does giving the court some jurisdiction over these matters mean? It means giving the Supreme Court the power to stop an election being held.”145 His view that “in the light of the Prorogation judgment, it is obvious why something needs to be said”146 was shared by Robert Craig who called the ouster “not only wise, but essential.”147

Alternatives to the ouster

156.The Law Society of Scotland noted the Government’s stated intention of returning to the status quo ante was belied by the inclusion of the ouster clause and highlighted the Government’s acceptance of this by the acknowledgement in the Explanatory Notes that the ouster clause was a response to the Miller and Cherry cases.148 Tom Hickman QC told us that by including the unprecedented ouster clause the Government ran the risk of unintended consequences that would not arise if the Bill simply returned to the status quo ante-2011.149 It was argued that there were other ways to exclude matters relating to dissolution and the summoning of Parliament from the courts’ jurisdiction, which did not involve such radical exclusion of the courts. The first would be to base the request for a dissolution on a vote of the House of Commons. In this case, it was argued, Article 9 of the Bill of Rights would exclude any questioning of that decision.

157.Lord Hennessy told us that a vote in the House of Commons would more effectively exclude the court’s jurisdiction from any challenges to a request for dissolution than the ouster clause because:

If ever there is classic territory for article 9 of the Bill of Rights 1689, it is this. I dug out the wording the other day: “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” I think that, in this instance, Article 9 would rise and ride across the scene in full armour if the courts tried to get involved. I can’t imagine that the Supreme Court would want to touch this.150

158.Professor Robert Hazell agreed saying “if the decision is made by Parliament then, under the Bill of Rights, it is beyond any kind of challenge in the courts.”151 Dr Craig Prescott explained the importance the courts place on Article 9 of the Bill of Rights, and noted that “the very justification for Article IX, and related aspects of parliamentary privilege, is that they buttress representative democracy, by ensuring that the political process remains a matter of politics and not law.” This gives Article 9 a democratic legitimacy that less obviously applies to ouster clauses enacted by Parliament. Dr Prescott had serious doubts that the ouster clause would be effective and concluded that a vote in the House of Commons was a “safer” way of ensuring no judicial intervention.152

159.The other way proposed to avoid the ouster would be to make it absolutely clear that the decision on whether or not to grant a dissolution was a personal prerogative of the monarch. We note the Miller 2 judgment153 was based on assessment of the adequacy of the Prime Minister’s reasons for advising prorogation and that in theory the court might examine the grounds for a request for dissolution. Nonetheless, Professor Bogdanor thought:

Because dissolution is a decision by the Queen and not a matter of advice, I doubt if it is justiciable. Therefore the status quo ante offers a better protection for a government anxious to avoid any involvement by the courts than the ouster clause proposed in the bill, since the courts are unwilling to allow any unfettered executive discretion and are perfectly capable of ignoring an ouster clause.154

Ousting the jurisdiction of the courts

160.The Committee recognises that views differ as to whether the Government’s approach on justiciability is the best one. A minority of Members on the Committee, for example, believe that a House of Commons vote on dissolution would be a protection against impeaching and questioning by the courts because of Article 9 of the Bill of Rights 1688. Such a vote would, in their view, give a better guarantee than an ouster clause against unwarranted judicial involvement and would avoid setting a precedent for ouster clauses in future legislation.

161.Some on the Committee have expressed doubts as to whether the “belt-and-braces” or “sledgehammer” approach of an ouster clause is really necessary if the courts will not, in practice, entertain legal challenges to dissolution. Provided it is clear that dissolution and calling of Parliaments are personal prerogatives, and that the Monarch’s veto over requests is real (rather than ceremonial) they are satisfied that the courts would never, or almost never, grant an application for judicial review of a decision to dissolve Parliament.

162.The majority of the Committee accepts that the general presumption is that Parliament does not intend to oust the jurisdiction of the courts. The Executive should be accountable to both the courts and Parliament. Nonetheless, in principle, the majority believes Parliament should be able to designate certain matters as ones which are to be resolved in the political rather than the judicial sphere, and Parliament should accordingly be able to restrict, and in rare cases, entirely to exclude, the jurisdiction of the courts. This position is not inherently incompatible with the rule of law, even if ousting the courts’ jurisdiction will often be at tension with it so that a complete ouster will rarely be appropriate. In this case, when the power in question is to enable the electorate to determine who should hold power, they consider the ouster is acceptable.

163.Those members of the Committee who accept the ouster acknowledge the concerns that an Executive might attempt to use the prerogative powers inappropriately. There are two safeguards against that. The first is that, as we recommend, the Prime Minister should only have the power to request a dissolution; the Monarch should have the power to decline to grant that request and the confidence to do so if it is manifestly unreasonable. The second is that no Government can continue without supply—the authorisation of the Commons to spend money—or legislative authority to levy taxes. The legislation allowing collection of income and corporation tax is passed on an annual basis. While Charles I could manage without money voted by Parliament for eleven years, a modern administration could manage months at best. A Government which sought to prevent Parliament from meeting through strategic dissolutions would face extreme difficulties when the Commons reconvened. And a Government which tried to dissolve Parliament repeatedly would face difficulties in securing both the supply it needed over an election period and authorisation for the taxation necessary to run a modern Government. In cases like this, it is important that judges should not, as Dame Margaret Beckett said, second guess what Parliament ought to do, as “Parliament is sovereign, not the courts.”155

164.The majority of the Committee agrees it is unlikely the courts would intervene in cases related to the prerogative of dissolving and summoning Parliament, but it is clear that decisions which would formerly have been considered non-justiciable are now being questioned in the courts. There has been a change in the constitutional landscape since Lord Roskill made his observations in the GCHQ case.156 We consider there are many reasons for this, including the changed position of the Lord Chancellor as a source of advice to the Government and the creation of the Supreme Court. But that being so, it is appropriate for Parliament to make clear where it thinks the constitutional boundaries lie.

The way the ouster was drafted

165.Whether or not the ouster was accepted in principle, many witnesses were concerned about the width of the ouster clause, and particularly, the potential misuse of the term “or purported” to enable the Government to do something not within its powers.

166.Baroness Hale explained the particular concern about the word “purported”:

I completely understand his [Lord Sumption’s]view that the use of the words “or purported” rather look as if it is saying, “Well, even if what we did was not within the power that you have been given by the statute, the courts can’t do anything about it.”

If that is the case, the courts would be very worried about that, because it would mean that the Government—the Prime Minister—had done something that was, at least arguably, not within its powers. Can a Parliament be happy about giving the Executive the power to do something that is not within its powers? The courts are not primarily the people who should be worried about this. Parliament, as the representatives of the people and the law, should be worried about it.157

167.Sir Oliver Letwin was concerned that the ouster would allow an Executive to do things which were not contemplated by the Act, such as continually dissolving Parliament.158

168.Professor Gavin Phillipson gave a clear history of the judgments which had led draftsman to respond by adopting such a broad ouster, by reading previous ousters as narrowly as possible:

Since the late 1960s, the courts and parliamentary drafters have been engaged in a kind of constitutional arms-race. When Parliament in 1969 legislated that ‘determinations’ by the Foreign Compensation Commissioners ‘shall not be called in question in any court of law’, the then House of Lords [in the ‘Anisminic’ case] found that, by misconstruing the statute that governed their powers, the Commissioners had asked themselves a question they were not authorised to and hence exceeded their jurisdiction. This rendered their decision not a ‘determination’ under the Act at all, but a mere ‘purported determination’, or nullity; hence the ouster clause did not protect it from challenge by way of judicial review.

When Parliament wished to prevent judicial review of decisions of the Investigatory Powers Tribunal (which hears legal challenges to actions of the security and intelligence services) the drafters responded directly to the Anisminic decision by providing that:

‘ … determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’.

The Supreme Court, however struck back, in their decision in Privacy International. The majority held that: ‘a decision which is vitiated by error of law, whether “as to jurisdiction” or otherwise, is no decision at all.’159

169.Sir Stephen Laws explained the drafting approach:

The drafter of this is obviously confronted with the reluctance of the courts to accept ouster clauses. [ … ] It would be nice to have neatly focused ouster clauses that you could justify in relation to what they actually apply to. But that is not a thing that is possible any more, because if you try and draw some distinction as to where the ouster clause will or will not apply, you will end up with the courts using that distinction in order to circumvent the ouster you are intending to create.160

Would the ouster work?

170.Others considered that the ouster would be ineffective. First, it would be for the courts to decide precisely what the prerogatives revived by the Bill were, and secondly, it would be for the courts to interpret the ouster itself. As Professor Twomey said:

To determine what the powers that you can’t question are, you have to go back to section 2, because it says that they are the powers referred to in section 2. Then, you have got to decide, in section 2, what those powers are in order to work out what it is that you are ousted from questioning.

If you happen to decide that whatever those powers were in 2011 did not actually include the particular power in the way that it had been exercised here—the extent and the scope of the power—just as they did in relation to Prorogation, where they said, “Well, the extent and scope of the power of Prorogation doesn’t allow you to do something that shuts down Parliament in these circumstances,” you could potentially do the same thing here and say, “The extent and scope of the prerogative power of Dissolution in 2011 did not allow you to do this sort of a Dissolution, therefore what you are doing does not fall within the scope of section 2, and therefore the ouster clause in section 3 doesn’t work.”161

171.Lord Lisvane and Sir Malcolm Jack were in agreement that “the courts will themselves interpret clause 3 of the draft Bill. They will not be stopped doing that.”162 Gavin Phillipson considered “The trouble with this extraordinary ouster is that the way it goes about responding directly to recent judicial decisions makes courts more, not less likely to read it down so as to allow judicial review after all.”163 He further explained:

since a literal reading would be a nonsense in a country committed to limited government and the rule of law, it could not be adopted by the courts. And once a literal reading becomes impossible then the courts must find a non-literal one. And that may well be one that neither Parliament nor the Government likes. Hence passing statutes whose literal meaning is an absurdity hands the courts the tools to unpick Parliament’s intent. The very extremity of the wording of the clause invites its judicial undoing.164

172.Baroness Hale identified two questions for a court considering whether an ouster is effective—has Parliament made its intention clear enough and secondly, assuming it has, is it capable of ousting the jurisdiction of the courts. Her view on the second question was “yes if it expresses its view sufficiently clearly”, although she noted that there were judges who took a different view. Baroness Hale declined to comment on whether the drafting of clause 3 itself effectively ousted the courts’ jurisdiction.165

173.While there were doubts expressed about the detail of the ouster, no witness was certain it would not work. Many witnesses considered the ouster clause was clear it intended to oust the jurisdiction of the court, and was likely to be respected.

174.The Committee recognises the concerns that have been raised about the breadth and efficacy of the ouster. Some Members are particularly concerned by the attempt not simply to oust jurisdiction over the exercise of the powers relating to the dissolution of Parliament and the calling of a new Parliament, but to the purported exercise of those powers, which opens a potential for abuse and may set a dangerous precedent. Others shared some witnesses’ concern that the very breadth of the drafting of the ouster might make it less, rather than more effective, as it would require judicial interpretation if it were to make sense. Others considered the breadth of the ouster was appropriate, given that future judgments might further change the understanding of constitutional law.

175.When Parliament legislates to restrict or oust the jurisdiction of the courts, it should use clear words, and be as explicit as possible about its intentions and the extent of the jurisdiction which it wishes to oust. In the light of previous judgments on other ouster clauses, we understand the Government’s approach to drafting. It is clear that the Government wishes to ensure the decision to dissolve one Parliament and summon another, any request for such a dissolution and the advice which may have underpinned the requests or the decision are not justiciable. To do this, it has considered it was necessary to take an expansive approach to drafting. We invite it to consider whether a clearer and more limited approach might be as likely—or even more likely—to be effective.

Clause 4: Automatic Dissolution of Parliament after 5 years

176.Clause 4 is simple:

If it has not been dissolved earlier, a Parliament dissolves at the beginning of the day that is the fifth anniversary of the day on which it first met.

It restores the legal position before the Fixed-term Parliaments Act. Nonetheless, it raises some questions.

Is the five-year maximum term appropriate?

177.Under the Fixed-term Parliaments Act, the maximum length of a Parliament is determined by when the last general election took place. A Parliament expires either in late March or early April in the fifth calendar year following the last General Election, to enable an election to take place on the first Thursday in May.166 In practice, this meant that the gap between ordinary elections would be almost exactly five years. The gap between an early general election and the next ordinary general election would be slightly less than five years but more than four years. This mechanism meant that ordinary general elections would always take place on the first Thursday in May and never more than five years after the last election.

178.The draft Bill would do away with this arrangement. Rather than proposing that the maximum gap between general elections should be five years, it proposes that the maximum term of a Parliament should be five years. Since Parliament does not meet immediately after a general election, this means that the gap between general elections can be greater than five years. So, for example, the 1997 general election took place five years and 22 days after the 1992 general election.

179.The Committee sees no obvious reason why the gap between elections should be greater than five years. The maximum term of a Parliament should be five years from the date of dissolution of the previous Parliament, rather than from when the current Parliament first met. This would prevent the election cycle from “drifting” if successive Parliaments reached, or very nearly reached, their maximum terms.

Should an election be called immediately following dissolution?

180.The Meeting of Parliament Act 1694 only requires a Parliament to stand summoned within three years of the dissolution of the last. As a matter of invariable practice (save for one exception in 1713) however the Monarch has issued a proclamation calling a new Parliament at the same time as Parliament is dissolved.167 If Parliament is dissolved by proclamation, the two proclamations will be combined; if Parliament is dissolved automatically by operation of law (as it has been on all three occasions under the Fixed-term Parliaments Act and as it would be under clause 4 of the draft repeal Bill) the proclamation summoning the new Parliament will be made as soon as practicable after that dissolution has occurred. This ensures that, when Parliament is dissolved, the 25 working-day statutory election period (under Schedule 1 of the Representation of the People Act 1983) begins immediately.

181.Under the previous system two distinct legal powers of the Monarch would be exercised at the same time. This convention, and other political realities (such as a Government’s need for supply) operated as constraints on the formal legal position, which is that a new Parliament need only stand summoned within 3 years of the dissolution of the last.168

182.The convention on proclamations guaranteed that the statutory election period would begin the day after dissolution, and that polling day would in fact take place (what was then) 17 working days later. Under the Fixed-term Parliaments Act 2011 the formal “trigger” for the statutory election period was the dissolution of Parliament, rather than the proclamation that summoned the new one as had previously been the case. This provided a legal, rather than just a conventional, guarantee that polling day would happen (what is now) 25 working days later.

183.The reversion of this rule from a statutory one to a conventional one leaves open the possibility that a Government might dissolve Parliament, but delay the statutory election period, perhaps by a few weeks. This was something about which Lord Sumption expressed concerns:

This is one of the problematical aspects of the Bill as drafted. Clause 3—the ouster clause—renders non-justiciable the powers referred to in clause 2, which includes the issue of writs for parliamentary elections. That would not matter a great deal if the time limit for the issue of a writ for parliamentary elections were specified in the Bill, as it was in the Fixed-term Parliaments Act. It seems to me desirable, if you are going to have an ouster clause, that there should be a time limit on the moving of writs for parliamentary elections, precisely to prevent that kind of abuse.169

184.If it is possible to dissolve Parliament but then to delay the statutory election period, Lord Sumption added, the draft Bill risks creating circumstances in which the courts might feel compelled to intervene so as to protect against the Executive governing without Parliament. Lady Hale agreed, both as to the existence of the risk and how it might best be avoided, since “where the Government attempt to do without Parliament, the courts are much more inclined than they would otherwise be to act in support of Parliament.”170

185.There are ways in which this might be remedied. The first is to re-establish the convention, by ensuring it is prominently recorded in the Cabinet Manual and widely understood. The other is to introduce a statutory link between the dissolution of one Parliament and the summoning of its successor.

186.At the moment Schedule 1 of the Representation of the People Act 1983 provides that election writs for a general election are to be issued “as soon as practicable after the dissolution of Parliament by section 3(1) of the Fixed-term Parliaments Act 2011.” The draft Bill could be amended so that Schedule 1 of the Representation of the People Act 1983 says that writs for a general election are to be issued as soon as practicable after “the dissolution of Parliament” rather than after the proclamation summoning the new one, but that would remove the connection the draft Bill otherwise restores between the calling of Parliament and the election.

187.Another approach would be to require the Monarch, as a matter of law, to make a proclamation summoning a new Parliament either (a) at the same time as any proclamation dissolving Parliament or (b) immediately after Parliament has been dissolved by reason of expiry of its maximum term. A law of this nature would reflect the modern expectation that Parliament is a regular and permanent feature of our constitutional arrangements, rather than something summoned by the Monarch as and when required. Reform would probably require the repeal and replacement of section 2 of the Meeting of Parliament Act 1694.

188.Under the Government’s proposals, the dissolution of Parliament does not automatically trigger the statutory election period. It would be possible, legally, at least, for Parliament to be dissolved, and for the Government to delay the proclamation summoning a new Parliament. The Government should legislate to ensure that a proclamation summoning a new Parliament must be made at the same time as, or immediately after, the dissolution of Parliament. This means repealing and replacing section 2 of the Meeting of Parliament Act 1694.

Miscellaneous matters

Demise of the Crown: proposed new flexibilities

189.If the Monarch dies after the election period has begun, but before polling day, the election timetable, and the first meeting of Parliament, are paused and postponed by a fortnight. This arrangement is contained in the Representation of the People Act 1985 and was the subject of minor modification when the Fixed-term Parliaments Act 2011 was passed.

190.The Government proposes with amendments to the 1985 Act not merely to retain this arrangement, but to grant the incumbent Government the power to vary the length of this pause and postponement. The new Monarch, by proclamation, would be able to bring forward the election by up to seven days, or to pause and postpone it by a further seven days. The Minister of State for the Constitution and Devolution, Chloe Smith MP, explained in a written statement on 1 December 2020 that this was seen as a discretionary power of “the Prime Minister” to move the election in those circumstances.171

191.In evidence, the Chancellor of the Duchy of Lancaster explained:

On the demise, we looked at the dates that would have happened—what would have happened with an election technically and the dates of the 2019 election. The arrangements would have been that the election would have taken place—I am speaking from memory here, but we will supply the Committee with the figures if you don’t have them—on 27 December, two days after Christmas.172

192.The draft Bill allows limited discretion to change the date of the polling day in the event of a demise of the Crown, rather than fixing the delay at fourteen days, as is done now. Even with the Fixed-term Parliaments Act, polling day at general elections could fall close to major public holidays. We agree that it is appropriate for there to be a limited degree of extra flexibility in polling dates if the Monarch dies during an election period, and that it should be exercised by Proclamation, on the advice of the Privy Council. It would be sensible for a Prime Minister to consult the Leader of the Opposition and the leaders of other parties in Parliament before seeking to exercise this flexibility.

Other consequential amendments

193.Save for the matters addressed above, the draft Bill makes consequential amendments, many of which simply revert older statutes to say what they said before the Fixed-term Parliaments Act amended them. Most other changes, we are satisfied, remove redundant references to the Fixed-term Parliaments Act in other enactments.

Recall of MPs Act

194.The Schedule of the draft Repeal Bill includes modifications to the Recall of MPs Act 2015. That Act allows voters—via a “recall petition”—to unseat an MP in certain circumstances. A recall petition is normally triggered if an MP:

195.The 2015 Act interacts closely with the election timetable. This is because, at the moment, a “recall petition” will not be triggered if polling day for the next general election is less than six months away. A “live” recall petition will also be discontinued if it subsequently emerges that an early general election is to take place within six months of a “recall condition” having being met. The purpose of this “six months” provision is to avoid redundant by-elections towards the end of a Parliament. The policy basis for this is perfectly sound, and the Committee endorses it.

196.We are concerned that the proposed amendments to the Recall of MPs Act 2015, inadvertently, fail to give effect to the Government’s policy intentions. This is because the drafting does not recognise that the dissolution of the current Parliament, and the issuing of a proclamation summoning a new one, are distinct legal events. Although the two things, in practice, almost always happen concurrently, the law enables them to be separated by a period of almost three years, under the Meeting of Parliament Act 1694.

197.If amended as proposed by the draft Bill, the Recall of MPs Act would say in section 5(2)(a):

“[The Speaker of the House of Commons is not required to give notice to a petition officer] if it would require the Speaker to give notice at a time… within the period of 6 months ending with the last possible polling day for the next parliamentary general election”

198.The 2015 Act would then go on to define the “last possible polling day for the next parliamentary general election” as:

“the day on which polling would take place, according to the election timetable in rule 1 of Schedule 1 to the Representation of the People Act 1983, if the Parliament then in existence were dissolved by virtue of section 4 of the Fixed-term Parliaments Act 2011 (Repeal) Act 2021 (automatic dissolution of Parliament after five years).”

199.This new rule would operate essentially as it did before, and as we think the Government intends it, if—under Schedule 1 of the Representation of the People Act 1983—the dissolution of Parliament were to trigger the statutory election period. However, the draft Bill’s amendments to the 1983 Act propose that it should instead be the proclamation summoning the new Parliament that triggers the statutory election period. The “last possible polling day” would therefore technically be almost three years after dissolution on the expiry of a Parliament’s maximum term, rather than just 25 working days after it. MPs would be “protected” against recall in a six-month period that fell about two and a half years after Parliament had been dissolved. Such a provision would be redundant. It is clearly not what the Government can have intended.

200.The Committee has already recommended that the statutory election timetable should be tied to dissolution. If that recommendation is adopted, the drafting problems identified in relation to the amending of the Recall of MPs Act 2015 would no longer arise.

Changes to the timing of statutory reviews etc

201.We draw to the attention of the House of Commons Work and Pensions Select Committee the proposal to amend the Welfare Reform Act 2012. Section 96A of that Act currently requires the Secretary of State for Work and Pensions to review the benefit cap at least once a Parliament and to make recommendations about the level at which it is set. She is only relieved of that duty if there is an early general election under the FtPA. The Government’s new proposal is that the Secretary of State must carry out a review at least once in every five years, and that it is no longer linked at all to the election cycle.

202.Similarly, we draw to the attention of the House of Commons Business, Energy and Industrial Strategy Committee the modifications the Bill would make to the Small Business, Enterprise and Employment Act 2015. A series of reporting requirements under that Act use the beginning and end of a Parliament as reference points, which would be changed to reflect the repeal of the FtPA.

86 Oral evidence taken before the Public Administration and Constitutional Affairs Committee on 2 June 2020, HC 167 , Q70

87 Paul Evans (FTP0006)

88 Paul Evans (FTP0006)

90 Constitution Committee, 12th Report of Session 2019–21, A Question of Confidence? The Fixed-term Parliaments Act 2011, HL121, paras 32–39 ; Public Administration and Constitutional Affairs Committee, Sixth Report of the Session 2019–21, The Fixed-term Parliaments Act 2011, HC167, paras 36–51

91 Professor Gavin Phillipson (Professor of Law at University of Bristol Law School) (FTP0020)

92 Daniel Greenberg (Counsel for Domestic Legislation, Office of Speaker’s Counsel at House of Commons) (FTP0010)

93 Mr Robert Craig (Lecturer in Law at University of Bristol) (FTP0019)

95 Q198; see also Dr Alan Greene (Senior Lecturer at Birmingham Law School) (FTP0009)

99 Oral evidence taken before the Public Administration and Constitutional Affairs Committee on 24 April 2020, HC 167, Q15

101 Daniel Greenberg (Counsel for Domestic Legislation, Office of Speaker’s Counsel at House of Commons) (FTP0010)

103 Rt Hon Michael Gove MP (Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office at Cabinet Office) (FTP0024)

104 Rt Hon Michael Gove MP (Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office at Cabinet Office) (FTP0024)

110 Q292

111 c. 2(1) of the draft Bill refers to the “calling” of parliament while s.3(4) of the FtPA 2011 refers to the “summoning” of Parliament. The terms, for all practical purposes,mean the same thing. Proclamations made by the Monarch have typically referred to “calling” a new parliament, whereas most legislation about elections has referred to “summoning” it.

112 Conservative Party, The Conservative Party Manifesto 2015, p49

116 There are examples of requests being refused in other Commonwealth countries, notably in Canada in 1926, South Africa in 1939 and of a Prime Minister being dismissed for refusing to ask for a double-dissolution in Australia in 1975.

121 Peter Hennessey, Distilling the Frenzy, 2013, p207

122 [Senex letter] The Times, May 2 1950; See account in Peter Hennessy, The Hidden Wiring, 1995, p 60–61

123 Lord Hennessy is also a member of the House of Lords Constitution Committee

124 Peter Hennessey, The Prime Minister, 2001, p 21

125 The Draft Cabinet Manual “Chapter 6 Elections and Government Formation” can be found: Justice Committee, Fifth Report of Session 2009–10, Constitutional processes following a general election, HC 396, Ev 23

126 Q183; In British Columbia in 2017 the incumbent Government was defeated on its speech from the throne (the Canadian equivalent of the Queen’s Speech) following a general election. Like Stanley Baldwin in 1924, rather than seeking a further dissolution following such a defeat, the incumbent Premier instead resigned. The Leader of the Opposition was then invited to form a Government.

132 Q220, Clive Priestley, ‘Promoting the efficiency of central government’, in Arthur Shenfield et al., Managing the Bureaucracy (Adam Smith Institute, London, 1986), p.117; Peter Hennessy, ‘“Harvesting the Cupboards”: Why Britain has Produced no Administrative Theory or Ideology in the Twentieth Century’, Transactions of the Royal Historical Society 4 (1994), pp.203–219, p.205.

133 Q237; See also Andrew Blick and Peter Hennessy, Good Chaps No More? Safeguarding the Constitution in Stressful Times, Constiution Society,

134 R (Miller) v Prime Minister and Cherry v Advocate General [2019] UKSC 41

138 For example, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and R (Privacy International) v Investigatory Powers Tribunal & Ors [2019] UKSC 22

139 See for example, R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] HL 61

140 Professor Tom Hickman QC (Professor of Public Law at University College London (UCL)) (FTP0014)

141 Dr John McGarry (Senior Lecturer in Law at Department of Law and Centre for Crime Justice and Security at Staffordshire University) (FTP0011)

142 Q 174

147 Mr Robert Craig (Lecturer in Law at University of Bristol) (FTP0019), Junade Ali (FTP0004), Policy Exchange’s Judicial Power Project (FTP0007), Steven Spadijer (DPhil Candidate (Law); Lecturer and Tutor Pembroke College, Oxford at Oxford University) (FTP0008)

148 The Law Society of Scotland (FTP0005)

149 Professor Tom Hickman QC (Professor of Public Law at University College London (UCL)) (FTP0014)

151 Q267; Professor Robert Hazell CBE, Professor of Government and the Constitution, and Professor Meg Russell FBA, Director of the Constitution Unit in the School of Public Policy at UCL (FTP0003); see Paul Evans (FTP0006)]

152 Dr Craig Prescott (Lecturer in Law at Bangor University) (FTP0016)

154 Vernon Bogdanor (Professor of Government at Kings College London) (FTP0001)

159 Professor Gavin Phillipson (Professor of Law at University of Bristol Law School) (FTP0020)

163 Professor Gavin Phillipson (Professor of Law at University of Bristol Law School) (FTP0020)

164 Professor Gavin Phillipson (Professor of Law at University of Bristol Law School) (FTP0020)

166 If the last General Election was an early general election, and took place between 1 January and the first Thursday in May of that year, the Parliament instead expires in the fourth calendar year.

167 We are aware of only one example of the two proclamations being made on different dates, namely in 1713. Professor Tom Hickman QC (Professor of Public Law at University College London (UCL)) (FTP0014)

168 Meeting of Parliament Act 1694, Section 2

171 HCWS615, 1 December 2020

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