UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Robert Craig: Zombie Prerogatives Should Remain Decently Buried: Replacing the Fixed-term Parliaments Act 2011 (Part 1)

Editors’ note: This is the first part of a two-part contribution. The second part will be posted tomorrow.

Part 1: Would the prerogative be revived?

I

In the light of widespread dissatisfaction with the Fixed-term Parliaments Act 2011 (‘FTPA’), the Conservative party manifesto states, at page 43, “We will repeal the Fixed-term Parliaments Act”. This post explores the constitutional implications if, as seems likely, the Conservative Government continues to command a majority in the House of Commons after the election and seeks to convince Parliament to repeal the Act.

The previous system was that Her Majesty could exercise her Royal Prerogative to dissolve Parliament (‘the dissolution prerogative’) which by convention was exercised on the advice of the Prime Minister. That advice was always followed, and rightly so. This will be addressed later.

The Parliament Act 1911 set the maximum term for Parliament to be five years. The FTPA instituted a new system whereby future elections would take place exactly five years apart – unless Parliament decided to have an early election. The 2015 General Election was triggered by the expiry of the fixed five-year term of the 2010 Parliament.

This post is in two parts. The first part deals with what happens if the FTPA is repealed without any replacement. It then argues it will only be possible to revive the dissolution prerogative if it is done with express words in a new Act. The second post addresses the question of whether the prerogative should be revived and, if not, what should be done instead.

II

The abeyance principle

At first glance, it might be thought that a ‘bare repeal’ of the FTPA would simply restore the status quo ante and future dissolutions of Parliament would be given effect using the pre-existing Royal Prerogative. Unfortunately, the situation is not that simple. (See also Kelly and Horne on this blog).

The issue of what has happened to the dissolution prerogative during the tenure of the FTPA was famously addressed in De Keyser’s Royal Hotel [1915] (‘De Keyser’).

Lord Atkinson said, at pp. 539-540, that:

‘when . . . a statute …is passed, it abridges the Royal Prerogative [and the] prerogative power to do that thing is in abeyance’.

Lord Sumner said, at p. 561:

“the Executive did not take possession under the prerogative [because] the Defence Acts had superseded it.”

I have described elsewhere (and on this blog) the situation where prerogative and statute directly overlap as falling under ‘the abeyance principle’, to distinguish it from ‘the frustration principle’, which applies where an Act is inconsistent with, but does not overlap with, a prerogative.

It is suggested that it is not helpful to assume that the concept of ‘abeyance’ means that a prerogative ‘moves’, ‘changes’, ‘contracts’ or ‘disappears’ when a statute overlaps with it. Instead, where there is an overlap between statute and prerogative, the relevant Act simply has priority over the prerogative but the latter continues to exist ‘underneath’. In that sense, the abeyance principle is, in essence, simply a rule of construction.

Laws are ‘fixed’

A defined and long established prerogative like the dissolution prerogative is a discrete rule of law with ancient roots. Laws are generally, and correctly, understood to be ‘fixed’ and the prerogative is no different. The relationship between the multiplicity of laws out there is governed by a number of rules of construction. In the event that an overlapping statute is repealed, the restoration of the status quo ante is governed by clear rules which, if followed, would not require the ‘expansion’ or ‘change’ of the prerogative. The relevant prerogative would simply still be there, as it has been for centuries.

This is arguably confirmed by Lord Atkinson in De Keyser (pp. 539-40):

‘when such a statute…is passed, it abridges the Royal Prerogative while it is in force… after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute’ (emphasis added).

The recent Supreme Court case of Miller can be read as confirming this approach:

‘If prerogative powers are curtailed by legislation, they may sometimes be reinstated by the repeal of that legislation, depending on the construction of the statutes in question’ [112].

If it were otherwise, and it was thought that a prerogative somehow ‘contracted’ when a statute was passed in the same area, the ‘extension’ of the prerogative on the repeal of the statute would breach Lord Diplock’s dictum (henceforth ‘Diplock’s rule’) that ‘it is 350 years and a Civil War too late… to broaden the prerogative’. Diplock’s rule was arguably confirmed by Lord Bingham in Bancoult where he said:

‘Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged’. [69]

Two alternative views of the relationship between statute and prerogative

On one (unpersuasive) view, the prerogative is being continuously squeezed like a ‘sponge’ into a smaller space over time by successive statutes, or even abolished on occasion. If a statute is repealed, the prerogative can ’enlarge’ or ‘broaden’ again. This is perhaps problematic in the light of Diplock’s rule. One way around Diplock’s rule would be to say that if statute tries to ‘re-confer’ what was formerly a prerogative power on the Crown then technically the fresh conferral would actually be a statutory power. However, this solution suffers from the problem, addressed below, that this would mean Parliament is legally disabled, technically, from reviving a prerogative power through legislation.

A better view, it is suggested, is the idea that the prerogative sits underneath statutes like the ground underneath Parliament and the statutes are like buildings sitting on top of the ground (the ‘underground’ theory). Virtually all the ground is permanently concreted over but if a building is knocked down and the concrete foundation underneath is deliberately removed, the ground underneath is simply revealed again, unchanged. Laws are fixed. This conception of the relationship avoids both the ‘Diplock rule’ problem as well as the problem that the reinstatement of a prerogative power might otherwise look like a statutory power when it is not. For an approach that shares some similarities, see Carl Gardner: ‘What a Fix-Up!’.

Either way the prerogative can come back if the statute expresses a clear intention. This author prefers the latter approach because it avoids both problems highlighted above.

The important point for our purposes is that, on one view, the wording of the FTPA may mean that there would be no power to dissolve Parliament on repeal because the FTPA abolished or permanently confined the dissolution prerogative.

III

Has the dissolution prerogative been abolished?

Gavin Phillipson argues in a recent Modern Law Review article that the dissolution prerogative has been abolished as a result of s 3(2) FTPA, which states: ‘Parliament cannot otherwise be dissolved’. He points out that the Explanatory Notes on this section say ‘the Queen will not be able to dissolve Parliament in exercise of the prerogative’. Phillipson could also have quoted Point 16 in the Explanatory Notes which says:

‘The prerogative power to dissolve Parliament before the maximum five-year period was exercised by Her Majesty, conventionally on the advice of the Prime Minister. This prerogative power was abolished by this Act’. (Emphasis added).

It must be pointed out (in the interests of balance) that the Explanatory Notes specifically also say that the Notes ‘have been prepared by the Cabinet Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament’.

It is arguable therefore that the dissolution prerogative was abolished by the FTPA.

On the ‘underground’ analogy, the FTPA put the dissolution prerogative into abeyance – as a matter of construction – but the prerogative would remain fixed underneath the FTPA. ‘Abolishing’ the prerogative would be like trying to get rid of the ground underneath Parliament (this is admittedly controversial and is addressed further below). An Act that repeals the FTPA, if correctly worded, would restore the status quo ante by simply removing the layers of law sitting above the prerogative and the prerogative would be ‘reinstated’ by default.

The vast majority of the time, none of this matters because when a statute is passed, it sits on top of the prerogative, and that is the end of the issue. This time, however, it matters because, on the ’underground’ analogy, repeal of the FTPA, using the correct form of words, would result in the dissolution prerogative being expressly reinstated, whatever the FTPA says.

The unpalatable consequences if the prerogative has been abolished

If Phillipson is right that the dissolution prerogative has been abolished, he must argue that a later Parliament is unable to legislate so as to revive the dissolution prerogative, even if it expressly wishes to do so. This is a problem because the earlier Parliament would have successfully prevented a later Parliament from legislating in a particular way in the future. This would mean that the earlier Parliament had successfully bound the later Parliament.

One of the cardinal rules of the doctrine of sovereignty of Parliament is that an earlier Parliament cannot permanently bind future Parliaments. If Parliament wishes to revive a clear, established and identifiable prerogative by repealing a statute that has put it into abeyance, it is difficult to see why it should not be able to do so. After all, s 15 of the Interpretation Act 1978 states:

15 Repeal of repeal.

Where an Act repeals a repealing enactment, the repeal does not revive any enactment previously repealed unless words are added reviving it. (Emphasis added)

If repealed statutes can be revived by express words, why cannot prerogatives be revived by express words?

The prerogative can be expressly revived

There are therefore two views of what the FTPA intended. If, on its true construction, the FTPA attempted to abolish the dissolution prerogative, a repeal of the FTPA will reverse that attempted abolition as long as there are express words to that effect. If, on its true construction, the FTPA did not attempt to abolish the dissolution prerogative then the repealing Act, with express words of revival, would simply clear the ground for the prerogative to be exercised again. On either view, the prerogative, however, would not ‘broaden’ or ‘enlarge’. Diplock’s rule would not be breached. Instead, the dissolution prerogative will simply become available for use again, unchanged.

Either way, the prerogative can be reinstated by Parliament if it wishes, as the highest court has suggested is feasible in both De Keyser and in Miller.

Implications for parliamentary sovereignty

The problem with this approach of course is that it means that there is something a current Parliament cannot do which is to abolish a prerogative permanently. It is suggested, however, that the effect of an Act that puts a prerogative into abeyance is indistinguishable from abolition and therefore Parliament is not actually inhibited in achieving anything it wishes to achieve in practice.

In other words, statutory ‘abolition’ would be ‘effective’ for as long as future Parliaments continued to want it to be ‘effective’. This would therefore be consistent with untrammelled ‘continuing’ (in the Hartian sense) parliamentary sovereignty. Incidentally, in our post-Miller world, and potentially post-EU world, the continuing theory of parliamentary sovereignty is starting to look more plausible again.

What if there are no express words reviving the prerogative?

Section 16 Interpretation Act 1978 states:

16 General savings.

(1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,

 

(a) revive anything not in force or existing at the time at which the repeal takes effect;

As Gardner argues, old laws therefore do not revive unless Parliament clearly says so. The concrete foundations must be deliberately removed even after a building is knocked down. It is suggested that this provision reveals that those who draft Acts of Parliament were fully aware of the theoretical possibility of old laws reviving, be they prerogative or statute. This highly practical provision is entirely understandable as a mechanism to make sure that the unexpected revival of old laws was not done inadvertently. Given the fact that repeal of a later statute could otherwise in theory see the revival of a whole host of long forgotten laws, this rule of construction makes a great deal of practical sense.

It also confirms, it is suggested, the validity of the underground theory because if repeal automatically ‘abolished’ all inconsistent previous laws, why would a provision mandating that repealed laws ‘do not revive’ be necessary? Furthermore, this section confirms that old laws can be revived if there are express words to that effect. This is what the majority in Miller perhaps meant when they stated that prerogatives can be ‘reinstated…depending on the construction of the statutes in question’ [112].

If the FTPA undergoes a bare repeal, it would seem that the prerogative would therefore not be reinstated because a bare repeal would not contain the requisite express words or intention. The concrete foundations would remain in place. An explicit intention to revive the dissolution prerogative would need to be demonstrated with clear words in a new statute. The question of whether that is the best solution will be addressed in the next post.

The author would like to thank Gavin Phillipson and Jeff King for helpful comments on previous drafts. The usual disclaimer applies.

 Robert Craig, LSE Law School

(Suggested citation: R. Craig, ‘Zombie Prerogatives Should Remain Decently Buried: Replacing the Fixed-term Parliaments Act 2011 (Part 1)’, U.K. Const. L. Blog (24th May 2017) (available at https://ukconstitutionallaw.org/))

8 comments on “Robert Craig: Zombie Prerogatives Should Remain Decently Buried: Replacing the Fixed-term Parliaments Act 2011 (Part 1)

  1. aaron nelson
    May 24, 2017

    This seems to boil down to the idea that the UK’s Parliamentary democracy has been (and is) temporarily suspending by means of statute the divine right of Kings/Queens. That doesn’t chime with reality.

    I prefer the analysis that the RP is an ancient right of sovereignty which is gradually eroded by Parliament passing laws; that, in the case of the FTPA, the RP was abolished (not held in abeyance) by statute; that (contrary to some of the dicta) it does not revive on abolition of that statute; but that a new statute can grant the sovereign a new statutory power which, while having a different basis (statutory not RP) operates in the same way, i.e. PM asks Queen, Queen says yes.

  2. JohnAllman.UK
    May 24, 2017

    Am I correct in thinking that if the FTPA were repealed, without the express words you say might be needed, then a purported dissolution of Parliament could be challenged in the courts, and the courts would have to rule whether the FTPA had abolished that part of the RP, or merely put it into abeyance, as in De Kaiser?

    In that scenario, regardless of the PA 1911, what power would there be to dissolve Parliament even AFTER five years, six years, twenty years, or a hundred years?

    You can imagine a movie plot. In March 2021, the PM announces that she is minded to call a general election in May 2021. Some litigant in person (a Mr Haddock) immediately seeks judicial review of that decision, or a declaration on the very question that you moot, on the grounds that the RP to dissolve Parliament has been abolished. May defends.

    But then another bomb goes off in a nightclub a few days before May is due in court against Haddock. May declares a state of emergency. In the circumstances, she abandons her defence in R (in the application of Haddock) v May, announcing that she will appeal if Haddock gets his JR. Haddock wins at first instance. May still hasn’t appealed by 2026, and there have only been byelections in the intervening five years without a general election.

    We realise then why May borrowed the phrase Hitler used at the end of Mein Kampf, “strong and stable”. SS. “Tomorrow belongs to May”, so-to-speak.

    I am not a lawyer. I’m a Haddock, and also a Parliamentary candidate at the moment.

    JohnAllman.UK

  3. Pingback: Robert Craig: Zombie Prerogatives Should Remain Decently Buried: Replacing the Fixed-term Parliaments Act 2011 (Part 2) | UK Constitutional Law Association

  4. movingvisionuk
    May 25, 2017

    Parliament may do, within the limits of our constitution, what it likes with its own Acts (statutes ). Despite the learned opinion if some there are many who assert that no statute has authority to usurp any constitutional instrument that is not a statute e.g., the Declaration of Right and Magna Carta. Nor may Parliament usurp a constitutionally entrenched Common Law precedent. Usurpation enjoys no statute of limitation and any precedent that relies upon such an impropriety is void no matter that it’s been improperly acquiesced to for over 300 years. We’ve barely started to hear the clammer building up about this just beneath the radar of entrenched and presumed entitlement.

  5. Jeremy
    May 25, 2017

    Is an express intention to revive the prerogative power even necessary? Would a sentence in the repeal act saying “Section 16 of the Interpretation Act 1978 does not apply to this act” not do the same?

    • movingvisionuk
      May 26, 2017

      That would continue to presume that the Royal Perogative is constitutionally inferior to an Act of Parliament. The Royal Perogative is entrenched within Constitutional Instruments that are superior to statute. It seems to some of us that much of this conversation is based on an erroneous premise. Clearly there’s a profound schism developing between those who believe that Parliamentary Sovereignty is the same as Parliamentary Supremacy and those who assert that no constitutional instrument exits that qualifies such. The elegantly designed separation of powers in our constitution is clearly written. As we’ve seen in the Miller case, the prime minister is not the Queen.

    • Robert Craig
      May 26, 2017

      That is a very interesting idea but if the intention by that is to revive the prerogative, then why not just revive the prerogative explicitly? I do accept that your idea may serve to bolster the interpretation of the relevant rules of construction that I am defending and, if its ok with you, I will adopt that idea in the longer version of these posts that i am currently drafting? Many thanks. Great point.

      • movingvisionuk
        May 31, 2017

        But the Royal Perogative needs no reviving because it has never or can ever be lawfully usurped. The very term Royal Perogative is not a a specific constitutional term and only exists as a description of a constitutional right. Our constitutional monarch has a supreme executive power that’s limited by the constitution; specifically the 1688 Declaration of Right and the entrenched Common Law emperitives enshrined within it. So the Monarch may only use her Perogative power to uphold a threatened constitutional precident or, under the Common Law defence of Duress of Circumstance where a breach of the Law is tolerated in order to prevent a greater breach from manifesting. The Duress of Circumstance defence is not exclusive to the Monarch but available to everyone. It’s use can not create a precident and is only lawful for the limited time it needs to have effect.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: