A Question of Confidence? The Fixed-term Parliaments Act 2011 Contents

Chapter 4: The Act and other prime ministerial powers

123.Although the primary objective of the Fixed-term Parliaments Act was to remove the prerogative power of the Monarch, acting on advice from the Prime Minister, to dissolve Parliament, the Act explicitly provided for two related powers:

During our inquiry these powers were the subject of attention and controversy. We assess each in turn.

Setting the date of an early general election

124.If a parliament lasts for its full five-year term, section 1 of the Act provides that the date of general election is “the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell.”104

125.However, the date of an early general election is chosen by the Prime Minister. The Act does not provide a mechanism for the House of Commons to approve it—even if the Government has lost a vote of no confidence and the 14-day period has elapsed. During the debate on the then Government’s third early general election motion on 28 October 2019, several opposition MPs voiced concern that the Prime Minister could choose an election date after the UK had left the EU, enabling a ‘no deal’ Brexit because Parliament’s dissolution would prevent MPs from averting that outcome.105 Following indications from the Scottish National Party and the Liberal Democrats that they would support an early general election if the bill had a date in it, the Government then introduced the Early Parliamentary General Election Bill, setting the date of the 2019 election in statute.

126.The potential for a Prime Minister to exploit the power to set the date of an early election was explored by witnesses. Dr Craig Prescott said: “as the Act stands, the Prime Minister has considerable latitude over setting the election date, and given the highly political context, prime ministers will be tempted to exercise this power in a manner that best suits them, in deciding the length of the election campaign.”106

127.Professor Robert Blackburn was also concerned and suggested an alternative:

“The absence in the Fixed-term Parliaments Act of any limitation upon a Prime Minister’s discretion to set the precise date for dissolution following an early election being triggered is unsatisfactory. It could allow a Prime Minister to put off the required election for months in order to achieve some political advantage. A new provision could be included in the Act therefore, that dissolution is to take place within fourteen days of the Commons passing a motion for an early election or the end of the fourteen day period following a no confidence motion … This would permit sufficient time for the necessary pre-election procedures to be drawn up and completion of any Bills near Royal Assent.”107

128.Carl Gardner thought that “Parliament should consider amending section 2(7) of the FTPA to remove the power of the Prime Minister to unilaterally fix the date of an early election.” He said that the consent of the House of Commons or both Houses to a date proposed by the Prime Minister would be appropriate; another possibility “would be to create a new institution to fix this date impartially, or to give the function to the Electoral Commission.”108

129.Similarly, Professor Robert Hazell thought that “it might be preferable to provide that the polling day should be approved by the House of Commons, before the Prime Minister recommends a date to the Queen.” He suggested an alternative: “following the precedent in section 3 of the Scotland Act 1998, where the polling day is proposed by the Presiding Officer, at Westminster it could be proposed by the Speaker. This would have the same effect: the Speaker would want to propose a date that was supported by the House.”109

130.The Fixed-term Parliaments Act transferred power to the House of Commons to decide whether there should be an early general election, but it did not give MPs control over the date of the election.

131.When the Fixed-term Parliaments Bill was being considered it was widely believed the risk of a Prime Minister misusing the power to set the date of a general election was small. However, Parliament may wish to consider whether the House of Commons should be required to approve the date on which an early election is to be held.

132.If an election is due under section 1 of the Act at the end of a five-year parliament, the Prime Minister may delay the polling date from early May by two months by an affirmative statutory instrument. This provision was designed to allow flexibility should an unforeseen incident arise, as happened with the foot and mouth outbreak in the lead-up to the 2001 general election. While there may be circumstances in which a Prime Minister could seek to misuse the power to delay a scheduled election for political purposes, the requirement for an affirmative instrument provides Parliament with an appropriate level of control.

Prerogative power to prorogue Parliament

September 2019 purported prorogation and Supreme Court judgment

133.Prorogation is the act of ending a parliamentary session. It is prerogative power held by the Monarch, which in practice is exercised on advice from the Prime Minister via the Privy Council. Short of legislation, there is no opportunity for Parliament to consent to or control the length of a prorogation. While it curtails nearly all parliamentary business and prevents Parliament from meeting, before 2019 the power to prorogue had not recently been controversial. Prorogation normally lasts for only a few days,110 which are used to prepare for the State Opening of Parliament.

134.At a meeting of the Privy Council on 28 August 2019, the Queen by Order in Council ordered that Parliament would be prorogued on a day between 9 and 12 September 2019, with a new session beginning on 14 October 2019.111 This was an unusual length of time for a prorogation and was controversial. At the time the UK was on course to leave the European Union, with or without a deal, on 31 October 2019. The then Speaker of the House of Commons, Rt Hon John Bercow MP, said it was “blindingly obvious” that its purpose was “to stop [Parliament] debating Brexit and performing its duty in shaping a course for the country.”112

135.In contrast, the Prime Minister, Boris Johnson, argued that a new session was necessary because: “We need new legislation. We’ve got to be bringing forward new and important bills and that’s why we are going to have a Queen’s Speech.”113 Mr Johnson said allegations that the length of the prorogation was to force through a no deal Brexit were “completely untrue.”114 Another argument advanced by the Government for the length of the prorogation was that the period included the weeks during which Parliament would normally be adjourned for the party conferences. This did not satisfy opponents, who said that the House of Commons had not approved the dates for that recess—as it would otherwise have been required to do—and that there was less scope to recall Parliament during prorogation than in a recess.

136.Parliament was subsequently prorogued on 9 September 2019. Legal challenges to the decision began in the courts of England and Wales, Scotland and Northern Ireland. The cases in England and Wales, and Scotland, were appealed to the Supreme Court. It handed down a unanimous judgment on 24 September 2019 that the prorogation was “unlawful.” The Court accepted that “the power to order the prorogation of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice.”115 However, it said:

“[t]he courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty … The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament (subject to a few exceptional circumstances in which, under statute, Parliament can meet while it stands prorogued). An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.”116

This led the Court to rule:

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”117

137.Following the quashing of the prorogation beginning on 9 September 2019, the 2017–19 parliamentary session recommenced on 25 September. The session was ended with another prorogation, this time lasting for only five days, on 8 October 2019. The 2019 session opened with the Queen’s Speech on 14 October.

Prorogation as a prerogative power

138.In light of the Supreme Court’s judgment, there has been attention on whether prorogation should remain a prerogative power. Witnesses held contrasting views on whether the status quo was appropriate and what if any change was needed.

139.Lord Lisvane did not see any “great attraction” in allowing the House of Commons to decide on prorogation: “The effect of the Supreme Court judgment means that future Governments will approach this very carefully.”118 This position was shared by Lord Butler of Brockwell: “Except in the recent notorious circumstances, prorogation is usually used simply to bring a Session to an end and prepare for a new Session. That can be left to the Executive.”119

140.Other witnesses thought that it was inappropriate that the Government should determine when and how long a prorogation is, and that it would be more suitable for Parliament to decide the matter. Professor Hazell suggested:

“given the risk of possible abuse, it would seem wise to ensure that Parliament cannot be prorogued against its will. One way to do this would be to make the prerogative power exercisable at the request of Parliament rather than on the advice of the Prime Minister. Another would be to put prorogation on the same footing as the power of adjournment, and to enable Parliament to be prorogued when the House of Commons passes a motion to that effect.”120

Professor Robert Blackburn thought prorogation should be “subject to a vote in both Houses of Parliament on a motion moved by the Government.”121

141.Dr Hameed, Lecturer in Law, University of Southampton, suggested that it should be possible for:

“Parliament to be summoned by MPs if it is prorogued. Again, examples may be found in other jurisdictions. The 1995 Constitution of Uganda provides under art 95(5): “at least one-third of all members of Parliament may, in writing signed by them, request a meeting of Parliament; and the Speaker shall summon Parliament to meet within twenty-one days”.”122

142.It is already possible to recall Parliament when it is prorogued, under the Meeting of Parliament Act 1797, as amended by the Parliament (Elections and Meeting) Act 1943. This allows the Monarch, with advice from the Privy Council, to “issue his or their royal proclamation, giving notice of his or their royal intention that Parliament shall meet and be holden for the dispatch of business on any day after the date of such proclamation.”123 It does not provide a role for either House or their Speakers.

143.Any Government advising the Monarch on prorogation in the future will need to take into account the experience of the September 2019 prorogation and Supreme Court judgment in Miller/Cherry.124

144.As part of the statutory review of the Fixed-term Parliaments Act 2011, Parliament may wish to consider whether the prorogation of Parliament should require its approval in the same way the Commons approves its recess dates.

102 Fixed-term Parliaments Act 2011, section 2(7)

103 Ibid., section 6(1)

104 Ibid., section 1(3)

105 HC Deb, 28 October 2019, cols 56–76

106 Written evidence from Dr Craig Prescott, University of Winchester (FPA0001)

107 Written evidence from Professor Robert Blackburn, King’s College London (FPA0016)

108 Written evidence from Carl Gardner, BPP University of Law (FPA0006)

109 Written evidence from Professor Robert Hazell, University College London (FPA0003)

110 House of Lords Library, Lengths of Prorogation since 1900, Library Note, LNN 2019/0111, October 2019

111 Section 3 of the Northern Ireland (Executive Formation etc) Act 2019 provided for Parliament to debate reports on progress towards forming a Northern Ireland Executive and other matters within five calendar days of 4 September 2019, 9 October 2019, and fortnightly thereafter. It further provided that if Parliament was prorogued it would be recalled for such debates. These provisions set the effective maximum window for the prorogation during this period.

112 ‘Parliament suspension: Queen approves PM’s plan’, BBC News, 28 August 2019: https://www.bbc.co.uk/news/uk-politics-49493632 [accessed 30 July 2020]

113 Ibid.

114 Ibid.

115 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent), and Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), para 30: https://www.supremecourt.uk/cases/docs/uksc-2019–0192-judgment.pdf [accessed 30 July 2020]

116 Ibid., paras 41–42

117 Ibid., para 61

118 Q 27 (Lord Lisvane)

119 Q 27 (Lord Butler of Brockwell)

120 Written evidence from Professor Robert Hazell, University College London (FPA0003)

121 Written evidence from Professor Robert Blackburn, King’s College London (FPA0016)

122 Written evidence from Dr Asif Hameed, University of Southampton (FPA0015)

123 Meeting of Parliament Act 1797, section 1

124 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent), and Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland), para 61: https://www.supremecourt.uk/cases/docs/uksc-2019–0192-judgment.pdf [accessed 30 July 2020]

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