Things were different in 2010. If schools closed and households found themselves stuck indoors, or unable to travel abroad, it was due to snowstorms and erupting Icelandic volcanoes, not because of a pandemic. Moreover, if the then Prime Minister wished to dissolve Parliament, he did not need to adhere to the requirements of the Fixed-term Parliaments Act 2011, which fixed parliamentary terms to five years, allowing for early parliamentary general elections either following a vote of two-thirds of the House of Commons in favour of an early parliamentary general election, or following a vote of no confidence. Instead, so the draft Fixed-term Parliaments Act 2011 (Repeal) Bill would have us believe, the Prime Minister could dissolve Parliament and instigate a new general election by use of a prerogative power, at a date of his choosing unchecked by the courts, subject only to ensuring Parliament did not exceed its maximum term of five years.

Turning back the clocks to return the status quo is not a direction of travel I would have chosen, preferring a constitution with a more effective set of checks and balances. However, importantly, the Draft Bill is attempting to revise history. It is choosing to tip the balance of power even more in favour of the Government than was the case immediately prior to the enactment of the Fixed-term Parliaments Act 2011.

Re-instating the prerogative?

Prior to the 2011 Act, the Prime Minister did indeed possess a prerogative power to dissolve Parliament. The question is whether, as appears to be intended, the Draft Bill reinstates the prerogative power of dissolution as a prerogative power.

Clause 1 of the Bill specifically repeals the Fixed-term Parliaments Act 2011. However, this may not, in and of itself, reinstate the prerogative. To the extent that legislation regulates the same material as a prerogative power, then, as Attorney General v De Keyser’s Royal Hotel makes clear, a Minister must use his statutory power, abiding by any conditions placed on the scope or exercise of that power by legislation, as opposed to using the prerogative.

Legislation, and the prerogative, are different sources of power. The question remains, however, as to whether any legislation which replicates a power found in the prerogative repeals the prerogative power, or merely provides an alternative source of that power that must be used by a Minister instead of the prerogative power?  This issue arose, albeit obiter, in De Keyser’s Royal Hotel, and split their Lordships. Lord Dunedin and Lord Moulton concluded that legislation placed the prerogative power in abeyance, able to be revived as and when legislation was repealed. Lord Parmoor reached the opposite conclusion, that legislation extinguished the prerogative.

In R (Miller) v Secretary of State for Exiting the European Union (Miller I), the majority stated that ‘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]. This suggests that, as with most things in law, context is important. As Gavin Phillipson has argued, the application of this principle to the Fixed-term Parliaments Act 2011 is unclear. The 2011 Act did not merely replace the prerogative power of dissolution with a different set of rules regulating the dissolution of Parliament. Section 3(2) of the Act also states that Parliament cannot be otherwise dissolved than through the operation of its provisions. This could be interpreted as an implied intention in the 2011 Act to repeal the prerogative power, not merely to put its provisions into abeyance.

Perhaps in recognition of these difficulties, the draft Bill adopts a belt-and-braces approach. Clause 2 of the Bill carries the sub-heading ‘Revival of prerogative powers to dissolve Parliament and to call a new Parliament’. Clause 2(1) states that ‘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 Act 2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.’

Notably, clause 2 does not refer to the prerogative powers relating to the dissolution of Parliament, but to ‘the powers relating to the dissolution of Parliament that were exercisable by virtue of the prerogative’. How are we to read this provision? What is clear, is that the rules relating to how Parliament is to be dissolved should mirror those found in the prerogative power in the hands of the Crown before the enactment of the Fixed-term Parliaments Act 2011. What is less clear is whether this is sufficient to revive these powers as part of the prerogative, or whether this clause merely replicates the content of the former prerogative, these provisions now being statutory powers, derived from legislation. In other words, the draft Bill may replicate the content, but not the form of the powers prior to the enactment of the 2011 Act.

Arguably, the aim of clause 2 is clearly to reinstate the prerogative power of dissolution as a prerogative power, as the subheading makes clear. However, subheadings are not part of legislation. Nevertheless, as we saw in Miller I, when interpreting section 2 of the Scotland Act 2016, a subheading may influence the way in which courts interpret statutory provisions. In Miller I, the reference to ‘the Sewel Convention’ in the subheading of section 2 was used to support the argument that a provision which ‘recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’ was intended to entrench the Sewel Convention as a convention, rather than convert it into law. Could the same argument be used to support an interpretation of clause 2 of the Draft Bill, once enacted, as evidence of an intention to revive the prerogative power of dissolution?

I would argue against such an interpretation. First, Section 2 of the Scotland Act 2016 did not state that Westminster would not legislate on certain issues without the consent of the Scottish Parliament. Rather, it stated that ‘it was recognised that’ this was normally the case. Clause 2 of the Draft Bill, however, is differently worded. The former prerogative power is not merely recognised, it is used as a means of identifying the content of the power to dissolve Parliament – that found in the prerogative immediately prior to the enactment of the Fixed-term Parliaments Act 2011. Whilst, in Miller I, reference to the subheading might help in the interpretation of whether what had been ‘recognised’ in legislation was a convention, as opposed to a legally enforceable statutory provision, the same is not true of Clause 2 of the Draft Bill. The subheading does not clarify whether the ‘power’ in clause 2 is a statutory power replicating the content of a former prerogative power, or a statutory provision reviving this power as a prerogative. ‘Reviving the prerogative power’ could refer to reviving its content and/or its status as a prerogative power.

Second, in Miller I, the use of the subheading to interpret the scope of section 2 of the Scotland Act 2016 reinforced an interpretation of the provision that would be in line with existing principles of the UK constitution. As a convention, a breach of the Sewel Convention may not be enforced by the courts. If it had been transformed into a legally enforceable obligation, this may have led to the courts having the power to declare Acts of the Westminster Parliament to be contrary to the Sewel Convention, or even to strike down an Act of Parliament. Such an interpretation could potentially undermine parliamentary sovereignty.

However, to read ‘clause 2’ as resurrecting not just the content of the prerogative power of dissolution, but also its source as a prerogative and not a statutory power, may be to read the clause in a manner which undermines rather than supports background principles of the constitution, the courts having wider powers of judicial review over statutory than over prerogative powers. Statutory powers also give Parliament more powers to determine the scope and conditions of exercise of an executive power. Regarding the power to dissolve as a statutory power, with the content of a former prerogative power of dissolution, is more in line with the background constitutional principles of parliamentary sovereignty and parliamentary accountability referred to in R (Miller) v Prime Minister; Cherry v Advocate General for Scotland (Miller II; Cherry).

It matters whether this new ‘power’ is either a prerogative or a statutory power, even if the content of the power remains the same. First, it will make it clearer to MPs debating the Bill that, as a statutory power, it is possible for Parliament to set conditions on the exercise of the power to dissolve Parliament, even if the aim is merely to replicate the former prerogative power. It would also signal more clearly to MPs that they could propose amendments to set out the content of the power to dissolve Parliament more clearly.

Second, the principle of legality applies to statutory powers. It does not apply to prerogative powers. Even though the Supreme Court in Miller II; Cherry recognised that the ability of the court to determine the scope of prerogative powers by reference to background constitutional principles was similar to the principle of legality, it is not the same ([49]). If clause 2 merely replicates the content of the former prerogative, but its status is that of a statutory and not a prerogative power, this may affect the definition of the content of the former prerogative power. If clause 2 is regarded as general or ambiguous, then the scope of the powers would be ‘read down’ so as to ensure that they did not undermine fundamental principles of the common law.

Unchecked by the Courts

Clause 3 is designed to remove the jurisdiction of the court over the dissolution of Parliament. Clause 3 of the Bill sets out three things a court ‘may not question’. These are:

• ‘the exercise or purported exercise of the powers referred to in section 2’;
• ‘any decision or purported decision relating to those powers’;
• ‘the limits or extent of those powers’.

The aim of these provisions is to ensure that the power to dissolve Parliament is non-justiciable. Indeed the subheading of clause 3 is the ‘non-justiciability of revived prerogative powers’. As discussed above, merely because a subheading describes a statutory provision in a particular way does not mean that this is how the provision is to be interpreted. The law is found in legislative provisions, not subheadings.

Unlike the infamous provisions found in Part 5 of the UK Internal Market Bill (as introduced), clause 3 is worded in a manner similar to an ouster clause – setting out what the court may not question. Where there are differences with more classic ouster clauses is in the replacement of the words ‘shall not’ (found in the classic ouster clauses discussed in Anisminic Ltd v Foreign Compensation Committee (Anisminic) and R (Privacy International) v Investigatory Powers Tribunal (Privacy International)) with ‘may not’. Is this enough to signal that we should regard this clause as an all-encompassing non-justiciability clause as courts may not question the power to dissolve Parliament as it does not have the power to do so? Or does the use of ‘may’ signal that clause 3 contains an ouster clause that is weaker in strength than the clauses found in the legislation discussed in Anisminic and Privacy International?

If we read clause 3 as making the power to dissolve Parliament non-justiciable, this will have the effect of further reducing judicial review over the prerogative than was the case prior to the enactment of the Fixed-term Parliaments Act 2011. The need to assess whether a prerogative power is ‘justiciable’ stems from CCSU v Minister for the Civil Service (CCSU), the first House of Lords case to confirm the ability of the courts to review the exercise of certain prerogative powers. However, CCSU concerns controls over the exercise and not of the existence or extent of prerogative powers. Consequently, as Miller II; Cherry makes clear, it is possible for courts to control the existence of any prerogative power, even one that would not be classed as justiciable according to the criteria set out in CCSU.

Moreover, it is not 100 percent clear that the exercise of the prerogative power of dissolution would have been non-justiciable in 2010. Although Lord Roskill in CCSU included the dissolution of Parliament in his list of non-justiciable prerogative powers, this list is only obiter and, even by 2010, had been re-interpreted by later decisions (e.g. as regards the prerogative power of mercy in R v Secretary of State for the Home Department, ex parte Bentley). Whilst it may be highly likely that, should a case have arisen in 2010 concerning an abusive use of the prerogative power of dissolution – perhaps seeing it being exercised for an improper purpose – the courts would have classed this power as non-justiciable, it is still possible to argue that there may have been some instances in which the exercise of the prerogative power of dissolution was justiciable, just as the court recognised in Bentley that there can be examples of where the prerogative power of mercy could be reviewed.

If we read clause 3 as an ouster clause, it may be that the clause does not succeed in completely removing judicial review over the power of dissolution. The first two situations in which courts ‘may not’ question the dissolution power is as to the ‘exercise or purported exercise’ and a ‘decision or purported decision’ of the dissolution power. The use of ‘purported’ is probably designed to prevent the courts from interpreting the ouster clause in a manner similar to the interpretation of the ouster clause in Anisminic. As is well known, in that case a provision stating that ‘the determination by the Commission of any application made to them under this Act… shall not be called in question in any court of law’ was insufficient to prevent the court from assessing whether a determination was only a ‘purported’ determination. The inclusion of ‘purported’ therefore, aims to prevent the court from concluding that a use of the power of dissolution, or a decision to dissolve Parliament, is only a purported decision or use of that power and is therefore reviewable as it is not, in law, a use of the power of dissolution or a decision to dissolve Parliament.

The question is, would this wording succeed? In Privacy International, the courts were called upon to interepret an ouster clause that also appeared to be designed to counteract Anisminic. This clause stated 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’. Anisminic appeared to have concluded that a decision was only a ‘purported’ decision if tainted with a jurisdictional error, leading to a move in English law which recognises all legal errors as jurisdictional errors. The words ‘including decisions as to whether they have jurisdiction’ would, therefore, appear to specifically exclude the ability of the courts to determine that a decision was only ‘purported’ (tainted by a jurisdictional error) as the court could not question a decision by the Tribunal as to whether it had the jurisdiction to Act.

However one interprets Privacy International, it is clear that a majority of Justices of the Supreme Court concluded that the ouster clause did not fully succeed. For Lady Hale, Lords Carnwath, Kerr and Lloyd-Jones, the wording of the clause was not clear enough to remove the ability of the court to review a decision for error of law. Whilst it is true that all legal errors are jurisdictional errors, it is not the case that all jurisdictional errors are legal errors. There are also jurisdictional errors of fact. The clause could be construed, therefore, as excluding jurisdictional errors of fact. More specific and express words were needed to exclude jurisdictional errors of law. For Lords Sumption and Reed, when understood in the context of the statute as a whole, the ouster clause may well prevent the courts from reviewing substantive errors of law, it being clear from the statute that Parliament wished the Investigatory Powers Tribunal to have the final say on substantive legal issues, but it did not prevent the courts from reviewing procedural legal errors.

Does this mean that ‘purported’ exercises of the power to dissolve Parliament, to the extent that they make a legal error, are still capable of being reviewed by the court? This may provide a means of ensuring the courts could review purported exercises of the power of dissolution that would not be within the ‘four corners’ of the power. This would be the case regardless of whether the ‘power’ had the status of a statutory or a prerogative power. However, if the power is best understood as a statutory power with the content of the earlier prerogative power, then the principle of legality could be used to determine the legal definition of that power. The principle of legality could mean that the power did not include the power to dissolve Parliament when to do so would be contrary to fundamental constitutional principles – including the principles of parliamentary sovereignty and parliamentary accountability used in Miller 2; Cherry when determining the scope of the prerogative power of prorogation.

What about the further provision, that courts cannot question ‘the limits or extent of those powers’? Is this enough to remove the power of the court to determine the scope of prerogative powers? This depends upon whether we can distinguish between ‘the definition’ or ‘existence’  of a power and ‘the limits or extent’ of the same power.This is not an easy line to draw. In Burmah Oil v Lord Advocate, for example, the prerogative power to destroy property before it fell into the hands of an enemy of the State included the payment of compensation. Is this part of the definition of the power, which concerns whether this power exists, or its ‘limits or extent’?

The intention of the drafters may well have been to remove the legal check over the power to dissolve Parliament similar to that found in Miller 2; Cherry with respect to the prerogative power of prorogation  – where the court can determine the extent of the prerogative power. When interpreting clause 2, we have argued that there is, potentially, a tripartite distinction between controls over whether a power exists, controls over the limits or extent of that power, and controls over the exercise of a power. In Miller 2; Cherry, the Supreme Court distinguished controls over the existence or extent of a power from controls over the exercise of a power. The first two were controls over all prerogative powers. The second was a control over a subset of justiciable prerogative powers. Could we imply, therefore, that the draft Bill will succeed in removing judicial review over the existence or definition of the power of the dissolution of Parliament, this being essentially the same type of control as a control over the limits or extent of a power?

Although the Supreme Court appear to have elided controls over the existence of a prerogative and its extent, it is important to understand why. The Supreme Court did so to make it clear that it was exercising a long-standing power of the courts to determine the existence and extent of a prerogative power, these being set by the common law. Just because controls over existence and extent are both long-standing common law controls does not mean that they are the same type of control.

The real question to ask here is what the court would be purporting to control if it were asked to review a particular instance in which a Prime Minister had used the power to dissolve Parliament and whether this is a control over the existence and definition of the power, its limits and extent, or its exercise. What if the Prime Minister deported all elected MPs, and then said Parliament was dissolved? What if he dissolved Parliament because his family had been kidnapped and there was a realistic threat that their lives would be in danger if he did not dissolve Parliament? Would these be controls over the existence of the power of dissolution, or its limits, or its exercise?

When answering these specific questions, it is important to recognise that clause 3(1)(c) is itself subject to the principle of legality and, as Privacy International makes clear, this includes interpreting the provision in line with the rule of law. This may mean that the court interprets the provision as narrowly as possible. Both of the examples given above could be regarded as questions as to the existence of the power to dissolve Parliament as opposed to its limits or extent, the powers of dissolution ‘that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-term Parliaments Act 2011’ not including either of these powers to dissolve Parliament. Such an interpretation would uphold the rule of law, preventing abuses of the power of dissolution either by a rogue Prime Minister, or a terrorist.

It could be argued that, even if judicial control over the power of dissolution was completely removed, checks would still remain in line with the Lascelles principles. Is it really preferable to rely on the Monarch as opposed to the courts to check such potential abuses of the constitution?

Maximum Five Year Term

In 2010, the maximum term of Parliament was fixed by legislation. Section 7 of  the Parliament Act 1911 substituted ‘five years’ for ‘seven years’ in the Septennial Act 1715. The 1911 Act refers to this as the ‘maximum duration’ of Parliament. A question remains, however, as to how this term is to be calculated – is it from the day when Parliament first meets, or is it from the day in which a particular Parliament is elected? This matters, as it may be that clause 4 of the draft Bill could inadvertently extend the current life of Parliament.

The Fixed-term Parliaments Act 2011 calculated the maximum five year term according to polling days. Its provisions provided for the next general election to take place on 7 May 2015, with further elections taking place on the first Thursday in May in the fifth calendar year following the day on which the previous general election was held (sections 1(2) and 1(3)). Clause 4 of the draft Bill sets a different limit; ‘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.’ The period of five years is calculated not from the date of a general election, but from the first meeting of Parliament.

Why does this matter? According to the Cabinet Manual, the date of the first meeting of a new Parliament ‘is determined by proclamation issued by the Sovereign’. The Manual refers to past practice of meeting on the Wednesday following the general election the previous Thursday. It also refers to a 2007 recommendation of the Select Committee on the Modernisation of the House of Commons for an interval of 12 days between polling day and the first meeting of Parliament. In other words, there is no legally enforceable regulation of the gap between a general election and the anniversary of the meeting of the first Parliament.

Does the move from ‘polling day’ to ‘anniversary of the first meeting of Parliament’ matter? Two potential issues may arise. First, does this provide a Government in power once the Draft Bill has been enacted to potentially extend the life of parliament beyond the term set by the Fixed-term Parliaments Act 2011? If so, does this mean that the provisions of the Parliaments Acts 1911-1949 cannot be used to enact the Draft Bill, this, potentially, being a provision to ‘extend the maximum duration of Parliament beyond five years’?

This depends on how we interpret the Parliament Act 1911. Was the purpose of the 1911 Act to ensure that there is a 5 year maximum term of Parliament and to prevent any extension beyond five years occurring without the consent of the House of Lords? If so, the Parliament Acts 1911-1949 can be used as the draft Bill does not extend the term of Parliament beyond a maximum of five years, it merely changes how this five year term is calculated. Or, do we read the purpose of the Parliament Act 1911 as ensuring that there is no possibility of extending the life of Parliament, beyond whatever limit is in place at the time, without the consent of the House of Lords? If that is the case, then, arguably, the draft Bill is potentially extending the current life of Parliament, currently fixed in terms of polling day, given the potentially legally-unlimited gap between polling day and the first day that Parliament meets.

Conclusion

The Draft Bill may not succeed in turning back the clocks. It also wants to go further. It aims to remove any form of legal check over the power to dissolve Parliament, relying on politics and the ‘constitutional backstop’ of the Monarch as opposed to that of the courts. It may also, indirectly, incentivise an incoming Government to delay the first meeting of Parliament in order to potentially extend the life of Parliament. If recent events have taught us anything, it is that, in times of crisis, anyone can be tempted to avoid constitutional limits in order to achieve what they consider to be an overarching legitimate purpose. The question is, do we trust politics and the Crown or the courts to step in to prevent possible abuses in extreme circumstances?

With thanks to Mike Gordon and Hayley J Hooper for comments on an earlier version.

Alison L Young, Sir David Williams Professor of Public Law, University of Cambridge.

(Suggested citation: A.L. Young, ‘The Draft Fixed-term Parliaments Act 2011 (Repeal) Bill: Turning Back the Clock?’, U.K. Const. L. Blog (4th Dec. 2020) (available at https://ukconstitutionallaw.org/))