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Alexander Horne and Richard Kelly: Prerogative Powers and the Fixed-term Parliaments Act

KellyrAlexander HorneThe Fixed-term Parliaments Act 2011 is a contentious and oft criticised piece of legislation, although it does have its supporters. The government and the Political and Constitutional Reform Committee have argued it has created a stable environment for longer-term government planning.

The 2011 Act made provision for the next general election to be held on the first Thursday of May 2015 (and fixed the terms of future Parliaments to five years). Accordingly, it ostensibly removed the Prime Minister’s power to pick a date of his own choice. Prior to the 2011 Act, the prerogative power to dissolve Parliament before the maximum five-year period was exercised personally by Her Majesty, conventionally at the request of the Prime Minister.

When the Bill was considered in Parliament, the House of Lords proposed a “sunset clause”. This would have required both the Houses to renew the legislation after each general election. The Commons objected. The deadlock between the two Houses was resolved through the insertion of a statutory requirement on the Prime Minister to establish a committee “to carry out a review of the operation of [the] Act” and “if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of [the] Act.” The committee is required to report at some point between 1 June 2020 and 30 November 2020.

On 23 October 2014, there was a debate in the House of Commons, scheduled by the Backbench Business Committee, calling for the repeal of the 2011 Act. MPs debated the following motion:

That this House believes that the Government should bring forward proposals to repeal the Fixed-term Parliaments Act 2011.

In the event, the motion was defeated by 68 votes to 21. During the course of the debate, an interesting question arose, which would have to be considered if opponents of the legislation were ever to succeed in securing repeal: namely, if the 2011 Act were repealed, would the former prerogative power revive? (This is not the only matter that could arise – for example, the 2011 Act also removed certain provisions relating to the maximum length of a Parliament; however these issues are not the focus of this blog).

The Royal Prerogative

According to A.V.Dicey, the Royal Prerogative is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. As Liam Laurence Smyth (then Clerk of the Journals) observed in Parliament and the Law, Hart, 2013 (citing from a Government submission to the House of Commons Select Committee on Public Administration from 2003):

It is not altogether clear what happens when a prerogative power has been superseded by a statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

If this is the case, it would mean that rather than simply repealing the 2011 Act, opponents of the legislation would have to introduce a new statute setting out the circumstances in which the Prime Minister would be entitled to request the monarch dissolve Parliament or to put in place other provisions that set out how Parliament could be dissolved.

The latter route would appear to be necessary if the 2011 Act has abolished the prerogative power permanently. (Although the Explanatory Notes state that the prerogative power to dissolve Parliament was abolished by the Act, para 16, they do not form part of the legislation so clearly this is not determinative).

Other relevant issues here would include the fact that section 3(2) of the 2011 Act provides that “Parliament cannot otherwise be dissolved” (which might be argued to be an express abolition of the prerogative power). A contrary argument, that suggests the power is only in abeyance whilst the statute is in force, is the fact that the 2011 Act is subject to review and might be repealed. In such circumstances, would the drafters of the legislation have intended that there be no alternative means of dissolving Parliament?

For if such provisions are not included, and it is the case that the 2011 Act abolished the prerogative power, then a simple repeal of the Act would appear to mean that no mechanism to dissolve Parliament would exist.

A role for the courts?

If a dispute was to arise over this issue, there is a risk that it might have to be settled in the courts. In the well-known case of R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, Lord Bingham observed:

It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. “If it is law, it will be found in our books. If it is not to be found there, it is not law”: Entick v Carrington (1765) 19 St Tr 1030, 1066.

Such an inquiry was carried out by the Court of Appeal ([1919] 2 Ch 197) and the House ([1920] AC 508, 524-528, 538-539, 552-554, 563, 573) in Attorney-General v De Keyser’s Royal Hotel Limited. In Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75, 101, Lord Reid said:

The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?

The desire of the courts to involve themselves in such a political case, involving the workings of Parliament, is far from clear. In particular, it is worth noting that in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Roskill stated plainly that there could be no grounds whatever upon which the power of dissolution could be challenged by way of judicial review, arguing that: “The courts are not the place wherein to determine whether … Parliament [should be] dissolved on one date rather than another.”

The question as to whether the prerogative power has been supplanted by statute is a rather different one and it would be a brave Prime Minister who would seek a dissolution with the law in an unclear state. That said, it might be thought that it would be an even braver court that would rule that Parliament could not be dissolved in order to hold a general election.

 

Alexander Horne is an employed barrister at the House of Commons and a teaching fellow at University College London.

Richard Kelly is a senior researcher at the Parliament and Constitution Centre in the House of Commons Library.

 

Suggested citation: A. Horne and R. Kelly, ‘Prerogative Powers and the Fixed-term Parliaments Act’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org)

8 comments on “Alexander Horne and Richard Kelly: Prerogative Powers and the Fixed-term Parliaments Act

  1. ObiterJ
    November 20, 2014

    I really see no reason why repeal (simpliciter) of the Fixed Term Parliaments Act should revive the pre-existing prerogative.

    It might be arguable that the Act had merely suspended the prerogative powers but I do not really think so. Parliament could have so provided had it wished to do so. I think that the old prerogative has gone and any repealing Act would need to make provision for dissolution.

    A clue may exist in the Interpretation Act 1978 s15. “Where an Act repeals a repealing enactment, the repeal does not revive any enactment previously repealed unless words are added reviving it.”

    That might be applied by analogy:

    “Where an Act supresedes a prerogative power and that Act is repealed, the repeal does not revive the pre-existing prerogative power unless words are added reviving it.”

    However one looks at it, the safer course for any Parliament go forward with repeal of the Fixed Terms Act would be to make provision for dissolution.

  2. Martin Holterman
    November 29, 2014

    It seems to me that this act governs how a specific power of the Crown is to be exercised, i.e. the power to send out writs of election. If this constraint – that such writs may only be sent out every five years, except for by-elections – is repealed, then it seems to me that we are back to the old situation: the Queen, acting on the advice of the Prime Minister, can send out these writs at any time.

  3. Alexander Horne
    January 27, 2015

    I note that Lord Morris of Aberavon has expressed a view on this issue (Daily Telegraph, 26 Jan 2015). He suggests that the prerogative power is “in abeyance” and can be restored. See: http://www.telegraph.co.uk/news/general-election-2015/11366537/Parliament-has-trussed-itself-up-like-a-chicken.html

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This entry was posted on November 19, 2014 by in UK Parliament and tagged , , .
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