The newly introduced Dissolution and Calling of Parliament Bill (“the Bill”) – like the Draft Fixed-term Parliaments Act (Repeal) Bill which preceded it – is a missed opportunity. It has failed to unify and define the scope and exercise of the powers of proroguing and dissolving Parliament, in one statute, which were in need of clarification post-Miller II. Now that the Government has decided on the form which it would like the Bill repealing the Fixed-term Parliaments Act to take, the moment has gone and, as a niche of constitutional law, it is unlikely to garner enough political capital for these issues to be deemed worth addressing for the meantime.
Ironically, by foregoing the opportunity to require the consent of a simple majority of MPs for a premature dissolution and/or prorogation, the Government has missed out on the simplest method for it to achieve either or both of these goals while preventing the matter from ending up in the courts. Instead, the Bill has increased the judicial activist argument for the courts to rule on the legality thereof, while failing to legally place it out of their hands, by removing all other checks on these powers from the other branches of government and placing its bets on clause 3, which states that:
A court or tribunal may not question –
(a) the exercise or purported exercise of the powers referred to in section 2,
(b) any decision or purported decision relating to those powers, or
(c) the limits or extent of those powers
Purpose of Premature Dissolutions of Parliament
In order to discuss the purpose and scope of a premature dissolution of Parliament, the mechanism for calling an early parliamentary general election, the duty of an MP vi-à-vis her constituents must be established. For argument’s sake, I will proceed on the basis that the trustee model of representation is preferable for a parliamentary democracy (it is outside the scope of this post to prove its preferability to the delegate model, although I acknowledge that reasonable people may disagree with my preference).
The Government has argued that the purpose of a premature dissolution is so that it is “…able to obtain a fresh democratic mandate from the British public when this is necessary”. This is agreeable insofar as a minority government may need to obtain a fresh mandate for a majority in the House of Commons, in order to achieve its legislative goals. However, if an individual MPs acts a trustee for her constituents, the only time that she needs to refresh her democratic mandate is when her term expires at the end of a Parliament.
There is an exception to this rule which flows consequentially from the trustee model. If an MP owes her constituents her judgement in their best interests, two MPs might reasonably adopt opposite conclusions from one another concerning the best interests thereof. Where this amounts to an even split in the Commons, e.g. under a minority government, deadlock will ensue. Hence follows is what I posit to be the key function of a premature dissolution of Parliament, which is to enable the Government to overcome an obstructionist House of Commons which will not or cannot move that it has no confidence in the Government. By going to the country, the electorate may increase the seat share of the faction which it deems to be on the right side of the deadlock. Therefore, it is a side effect of the Government being able to call a snap election, in order to break parliamentary deadlock, that one may be called so that the Government can increase its majority when it is popular.
Premature Dissolution and Parliamentary Oversight
The accessibility of this deadlock resolution tool is hampered by s. 2 of the Fixed-Term Parliaments Act 2011’s requirement that an absolute two-thirds majority of MPs support a motion for an early general election, as a third of MPs can block this by active opposition or abstention (notwithstanding the option for an early general election following a successful motion of no confidence, which the Government is unlikely to move against itself). There is an incentive for Opposition parties to oppose a snap election because the indecision and inaction of minority governments is undesirable, compared to giving one party or another the ability to fulfil its legislative agenda. Precedent (1974 and 2019) demonstrates that minority governments who call snap elections tend to be rewarded with majorities in the Commons.
If the Bill had substituted s. 2’s threshold for a simple majority, the current Government would still have been able to achieve its objective of giving the majority party in the Commons the ability to call a snap election. This would be reasonable because, on the one hand, MPs who do not wish to commit their vote, one way or another, should not be able to hold up proceedings on account of their lack of conviction. On the other hand, the risk of parliamentary deadlock outweighs the risk of a snap election being called in circumstances unfair to the Opposition. It is worth remembering that the electorate will ultimately be able to decide whether the Government is unreasonably attempting to increase its seat share and vote accordingly.
The disadvantage of the Government being able to prematurely dissolve Parliament, without approval from a simple majority of MPs, is that a minority (and perhaps coalition) government will be able to call a snap election which would have been opposed by a majority of MPs. The risk of this is that the Government would be able to call one when circumstances unfairly favour its position over other MPs, for example when more independently minded backbenchers are polling poorly due to a controversial vote or if the state of the Opposition party’s finances is in disarray. Consequently, this is a tool which may tip the balance of power away from Parliament towards the Government. The risk of a snap election returning a Parliament less willing or able to scrutinise the Government may reasonably be traded-off in favour of facilitating the resolution of parliamentary deadlock, but this risk may only be justifiably taken insofar as a majority of MPs waive it by voting in favour of an early general election. It is also worth noting that precedent does not suggest the need for a minority government to be able to call one ex officio, as the Johnson government was still able to achieve a snap election through the Early Parliamentary General Election Act 2019. Accordingly, the risk of a minority government calling a snap election unfair to and opposed by most MPs outweighs the risk of a minority government being unable to resolve deadlock in a hung Parliament.
In keeping with the above, the Commons should have been able to approve the date upon which the early general election shall take place, as part of the motion for a premature dissolution. Notwithstanding that there may be consensus among a majority party on the choice to have a snap election, it would still be useful to decentralise the party’s choice of a date so that the frontbench is formally provided with more information from the backbenches. For similar reasons as above, this would also be a useful control on executive overreach by a minority (and perhaps coalition) government. Conversely, a situation could take place whereby the Commons might approve the premature dissolution, only for the date of the election to take place at a time which will disproportionately favour the Government. Alternatively, the Commons may not approve the premature dissolution at all, due to the uncertainties – in either situation the purpose of seeking one would be undermined.
Unifying the Prorogation and Dissolution Regimes on a Statutory Basis
The closest that the Bill comes to jointly treating the royal prerogative powers of dissolution and prorogation is clause 3(b), which makes reference to “any decision or purported decision relating to those powers [to dissolve Parliament and to call a new Parliament]”. The FTPA demonstrates that failing to treat prorogation and dissolution holistically creates perverse incentives and unintended consequences. Ironically, s. 6(1) FTPA specifically retains the power for the Queen to prorogue Parliament. Premature prorogation is the next best method to premature dissolution for breaking parliamentary deadlock. By ending the then current 2019 session and delaying the start of the new one, the Johnson Government effectively brought about an impromptu adjournment of Parliament – attempting to stop parliamentary opposition to a “no deal” Brexit, by ending business and limiting the time available for scrutiny.
In addition to proroguing Parliament at the end of the session, as normal, there is value in retaining premature prorogation. Due to the rule that a Bill cannot be passed in either House twice in the same session, it can be used “…[in order] to give an opportunity to revive Bills whose passage was blocked by disagreement between the two Houses”. Therefore, it gives the House of Lords the opportunity to consent to a Bill which the Commons is determined to pass, notwithstanding the upper house’s opposition. It is also potentially an element of overriding Lords via the Parliament Act 1911, s. 2, by expediting the two successive sessions required for s. 2’s operation.
Although both powers are now purportedly to be exercised by the royal prerogative (for fuller discussion, please see the respective posts from Professors Young and Elliott), the Government could have provided much more clarity by codifying the principles governing the exercise of these powers in one statute – a format more accessible than royal prerogative or judicial decision. This would have minimised the future risk of Governments overstepping the mark of what are the lawful circumstances for dissolving and/or proroguing Parliament. In particular, the Government should have taken the opportunity to codify the maximum length of a parliamentary session and define when a new session begins (in order to avoid a repeat of the above prorogation controversy).
Political versus Legal Constitutionalism
It is preferable that the House of Commons, rather than the judiciary, should scrutinise premature dissolutions and/or prorogations of Parliament. Although the decision in Miller II was framed as a scope of power (of prorogation in this case) issue, a question which the Supreme Court asked at  (ii) was “…whether there is a reasonable justification for action which has an extreme effect upon the fundamentals of our democracy”. I submit that the political ramifications of this question are such that it should be left to MPs because, if their answer is unsatisfactory to a majority of the electorate, it can be remedied at the ballot box (an opportunity which may come sooner, in the event of a premature dissolution). It is also worth considering that parliamentary disapproval would prevent the Government from stopping Parliament from sitting and continuing its business, in the first place, as opposed to the courts remedying this retrospectively.
Another reason why this should be decided by MPs instead of judges is to insulate the latter from accusations that they have compromised their neutrality – it is not enough for them to act in a neutral manner; they must be seen to do so. If they are asked to rule on the legality of the decision to prematurely prorogue (or dissolve, as the case may be) Parliament, it runs the risk that they will be seen as taking a political side in the dispute. The Government has attempted to achieve this objective via clause 3. However, the clause will increase the moral argument for the judiciary to hold the executive to account because the other branches of government are effectively precluded from exercising this accountability function. The Bill removes parliamentary consent and it fails to restore the Lascelles Principles (the conditions under which the Queen may refuse the PM’s request to dissolve Parliament) in the draft dissolution principles, which were published alongside the original draft Bill. This means that there is still considerable uncertainty about the constitutional position were the Queen to refuse a dissolution request by the Prime Minister.
As one can see from the analyses in Professors Young and Elliott’s respective posts, clause 3 would still be subject to the rule of law. Accordingly, there still exists some circumstances in which an activist bench could find room for adjudicating on the legality of a premature dissolution. One scenario could be a question on the existence of a royal prerogative if the Prime Minister advises the dissolution of Parliament when there is no prerogative power to do so, e.g. a dissolution after a general election but before Westminster had sat. Another scenario could be a question on the extent of a royal prerogative, where dissolution enables the Government to override a potential Commons defeat of a specific outcome – e.g. when there are irrevocable consequences of inaction that would occur when Parliament was dissolved.
The goal of preventing judicial intervention would have been better achieved by requiring the agreement of the House of Commons. Article IX of the Bill of Rights 1688 would take effect and the above issue would be circumvented, since “…debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Had the Bill retained parliamentary approval, it would also have been easier to rebut the moral argument for judicial intervention. Even under a majority government, there would be formal debate in the Commons on a premature dissolution or prorogation of Parliament, recorded in Hansard, against which MPs could be held accountable by the electorate. Deciding not to reinstate the Lascelles Principles (as the other alternative form of check on the Government) would also be more compelling. In a vacuum, they are undesirable insofar as they would contradict the doctrine of responsible government – that the Sovereign acts on ministerial advice.
After proposing to repeal the Fixed-term Parliaments Act, the Government had the opportunity in its Dissolution and Calling of Parliament Bill to reinforce the principle of political constitutionalism by unifying the system of proroguing and/or dissolving Parliament and requiring a simple majority of the House of Commons for the exercise of both powers. Among other benefits, it would have clarified how they should be exercised and given a compelling argument as to why the question should not be adjudicated in the courts, both in terms of parliamentary privilege and political ethics. Instead, the form in which the Bill is currently published fails in this regard, which may ultimately lead to another collision between the Government and the courts – this might give the former another opportunity to consider the above amendments to the law.
Max Taylor is a Bar Practice Course student at the University of Law.
The author would like to express his gratitude to Professors Michael Gordon and Alison Young for their helpful comments on an earlier draft of this piece. Any remaining errors are the author’s own.
(Suggested citation: M. Taylor, ‘The Dissolution and Calling of Parliament Bill: Missed Opportunities’, U.K. Const. L. Blog (18th May 2021) (available at https://ukconstitutionallaw.org/))