Editors’ note: This is the second of a two-part contribution. The first part may be found here.

Part 2: What should replace the FTPA?

A previous post argued that a bare repeal of the Fixed-term Parliaments Act 2011 (‘FTPA’) would not revive the dissolution prerogative. A new statute with clear words would be required in order to revive it. This post addresses the separate question of what should replace the FTPA if the Conservatives are returned to power.

IV

Should the prerogative be reinstated?

The surprisingly deep question of whether the prerogative could be reinstated is entirely separate to whether it should be reinstated. This post suggests it should not. Instead, a statutory power to call a general election should be conferred on the Prime Minister subject to one restriction. This suggestion is based on the potential difficulties that could occur if the prerogative is expressly revived. It is also designed to replicate the old system as far as possible as that is what the manifesto appears to want to achieve.

As stated in the previous post, a major problem with attempting to revive the prerogative is that Phillipson might be right that the dissolution prerogative has been abolished and cannot be revived, even expressly. Even the faintest possibility of Phillipson being right (although his argument is perhaps stronger than that) would raise the unwelcome prospect that a future Prime Minister might be faced with litigation claiming that the Crown has no power to effect a purported dissolution. A declaration could be pre-emptively sought, as in Miller, long before any actual attempt to dissolve Parliament. As Miller showed, prerogatives that would normally be non-justiciable can be litigated if the claim is that there is no power available, rather than the exercise itself was somehow flawed. The possibility of litigation cannot be immediately ruled out, particularly after Miller.

The second issue is the necessity for express words for the prerogative to be revived which would require a proper Bill. It will also be necessary either to insert a direct five year limit on Parliament or expressly to revive the Septennial Act 1715 and s 7 of the Parliament Act 1911. This is because those two Acts, respectively, made the maximum parliamentary term seven years, and then reduced it to five. Both these provisions were expressly repealed in the Schedule to the FTPA. In addition, the sections in the FTPA preserving the necessary proclamations on dissolution would also probably need to be replicated.

A bare repeal would fail to revive the prerogative, might leave the status of the proclamation powers in some doubt and would mean the five-year term limit of Parliament would no longer be a legal rule but would be reduced to some kind of  constitutional convention. This would be less than ideal.

The Queen’s residual power if the prerogative is revived

The third issue is well explained by Carl Gardner. If the prerogative is revived, previous debates between Robert Blackburn, Rodney Brazier et al as to the extent to which the Monarch retains a discretion to refuse dissolution in some circumstances would suddenly be relevant again. That debate even burst into the public domain in the 1950s in a famous letter sent anonymously by a senior civil servant (‘Senex’) to the Times. The letter claimed that where a Parliament was ‘vital, viable and capable’, a request for dissolution could be refused, if it would harm the economy or if an alternative Government could be formed.

Blackburn argues, persuasively, that ‘Senex’ was wrong and dissolution could not be refused in these circumstances or indeed in almost any circumstances. Blackburn perhaps surprisingly concedes, however, that if an ‘unconstitutional’ request for dissolution was made, it could be refused by the Queen. He suggests an example could be where an election is sought following a defeat after the first Queen’s speech directly after an election. He says in that situation, a request for dissolution could properly be refused. We could label this the ‘refusal’ scenario.

This post disagrees with Blackburn on this point. It is not acceptable, in a modern democracy, for there to be any circumstances where a hereditary Monarch could ever be drawn into the political arena. This is true for those in favour of the constitutional monarchy as well as republicans. For the former, there are no circumstances where the Queen should potentially be placed in a politically embarrassing situation. For the latter, the possibility of the Queen ever being personally involved would be beyond the pale. These are the primary reasons why it is suggested that the revival of the prerogative is simply unacceptable. This is also the reason why this author disagrees with Gardner that the prerogative should be revived. A solution that keeps the Queen out of any possible political involvement must be found, and one is suggested in the next section.

V

Dissolution of Parliament should be a statutory power conferred on the Prime Minister

One of the key strengths of the UK constitution is its flexibility. The FTPA is antithetical to that approach, because it makes the system more rigid. It is clear that the Conservative manifesto wishes to return to something similar to the previous flexible system so that effectively the decision rests in the hands of the person who commands the political confidence of the elected chamber, i.e. the Prime Minister. The UK constitution tends to lean towards flexible options over rigid options and the FTPA arguably runs counter to that. In some ways, therefore, it might be thought unsurprising that the FTPA has been marked for repeal.

Regardless of the merits or otherwise of the FTPA, the question is what should now replace it if the Conservatives are returned to power. It is suggested that the appropriate solution should respect two central principles:

1. There should be no circumstances where the monarch could be drawn into the political arena.
2. Whatever framework is established should prioritise flexibility over rigidity.

One solution might be to undertake a bare repeal of the FTPA in the knowledge that the prerogative would not revive. This would mean that every new dissolution would require a fresh Act approved by both Houses. Interestingly, the recent vote that achieved a two thirds majority under the FTPA procedure might not have succeeded. If it had failed, it is likely that a new Act simply dissolving Parliament would have been the better solution rather than the Government putting forward a motion of no confidence in itself.

However, the solution of requiring an Act each time an early election is sought also suffers from an analogous democratic deficit as the prerogative which is that it is possible to envisage circumstances where the House of Lords could refuse to pass the Bill. This would also be unacceptable democratically to many people, although it is less egregious than a potential royal refusal.

The author’s rejection of the previous solution, however, perhaps shows the way to an alternative answer. Since a Prime Minister with a healthy majority could be fairly sure of securing passage of a Bill dissolving Parliament in almost all circumstances, it might be better to confer a power to seek a dissolution on the Prime Minister to be exercised at his or her discretion. This would be akin to a ‘Henry VIII’ clause (analogously with how s 53 FOIA in Evans was labelled by the LCJ in that case) because it would be conferring on the Prime Minister a power currently exercised by Parliament.

Some may feel the constitutional long-stop of the House of Lords would be preferable. However, there is something unpalatable about the idea of an unelected chamber stopping a general election under any circumstances and this author cannot see how this could ever really be justifiable. It might even result in a threat to flood the Lords. A statutory power conferred on the Prime Minister, with one proviso, would perhaps be better. Opinions may legitimately differ on this point, obviously.

What if a post-election Queen’s speech is voted down?

The ‘Henry VIII-style’ power would still leave the difficult ‘refusal’ scenario, postulated by Blackburn and others, where a fresh election very shortly after the previous one, and in unusual circumstances, could cause constitutional and political problems. If an untrammelled power were conferred on the Prime Minister, a rogue Prime Minister could theoretically dissolve Parliament precipitately. A solution is needed to replace the previous, inappropriate, residual royal long-stop. In accordance with the two principles of 1) royal non-involvement and 2) flexible solutions are better, the right solution should be as politically flexible as possible by ideally being approved by elected politicians.

It is suggested that a proviso should be inserted requiring the Prime Minister to win a vote by simple majority on a Motion in the House of Commons that ‘this House believes that Parliament should be dissolved’, before being able to seek a dissolution. The justification for this is explicitly as a result of the legal inexorability of a dissolution once it is triggered. This rigid legal fact needs to be softened by political flexibility and approval. It is suggested that this would also be consistent with the fact that the UK system is famously a political constitution. This would also have the merit of bringing the UK in line with many other countries that require simple or absolute majority approval by the legislature, as Robert Hazell has pointed out on this blog recently.

The other consequence would be to restore the political primacy of no confidence motions because they would be distinct from a dissolution motion. The consequences of losing a no confidence motion would be political, as they should be, but the situation would be governed by convention, not rigid law. The loss of a no confidence motion might well lead the PM to call an election and put forward a dissolution motion but that is a matter for the politicians, not lawyers.

This new system would not prevent a Prime Minister with a healthy majority from calling a snap election, on the steps of No 10 if desired, confident that they would win the vote in the Commons. After the vote, the Prime Minister could go to the Palace and seek the dissolution, which would still be granted by the Monarch, except via a statutory power not a prerogative power. It could be modelled on the Scotland Act 1998 provisions concerning the appointment of the First Minister. It would be a formality, obviously, given dissolution would have been approved by the House of Commons.

To be clear, the Queen acceding to the request would not be by virtue of any exercise of prerogative power, in the same way that Her Majesty appointing the First Minister by definition cannot be a prerogative because the post of First Minister has been invented out of thin air, and (as Dicey said) prerogatives are residual. The statutory dissolution power would have nothing to do with the old prerogative equivalent. This would not be a revival and the dissolution prerogative would remain in abeyance. Parliament can confer any power it likes on anyone. In this case, it would be conferring a genuine statutory power to seek dissolution after Commons approval on the Prime Minister and imposing a technical statutory duty to dissolve Parliament on Her Majesty. The Queen would obviously have no discretion to refuse a dissolution request under any circumstances.

In the event that the difficult ‘refusal’ scenario occurred, the Prime Minister would not be assured of a victory in the vote to approve a dissolution in the House of Commons, particularly if there is a wafer thin majority or a minority Government. If further political attempts to form a Government then also failed, it would eventually be politically unavoidable for a vote to dissolve Parliament to take place in the House of Commons and the last incumbent Prime Minister could then seek a dissolution in the usual way.

The proposals in this post are explicitly designed to replicate the previous system as far as possible after adjusting for the removal of any residual discretion for the Queen. Since reverting to something close to the previous system is what the manifesto appears to be aiming to achieve, this post is simply an attempt to show how that goal could be achieved sensibly in the light of the two principles set out earlier.

VI

It has been argued that reviving the dissolution prerogative, while entirely legally possible, is not appropriate for democratic and other reasons. This post has suggested that a Bill will anyway be necessary to repeal the FTPA. Such a bill will need to lay down a five year term limit for Parliament as well as replicate some of its other provisions, for example on proclamations. It has been suggested, therefore, that if the FTPA is to be repealed and a Bill is necessary anyway, it would probably be better to create a statutory ‘Henry VIII-style’ power vested in the Prime Minister to seek a dissolution of Parliament. This is aimed at giving the power to call elections to the Prime Minister which would appear to be the desired outcome from reading the Conservative manifesto. It has been argued, however, that approval via a Motion in the House of Commons should probably be required before dissolution could legally be sought in order to prevent difficulties in some, admittedly unlikely, scenarios.

The author would like to thank Gavin Phillipson, Carl Gardner 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 2)’, U.K. Const. L. Blog (25th May 2017) (available at https://ukconstitutionallaw.org/))