Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange’s Judicial Power Project and a researcher based at Nuffield College, Oxford.
When the Fixed-term Parliaments Act 2011 Act (FTPA) was first introduced, all three major parties backed its principle. Within the decade, both the Conservative and Labour parties committed to its repeal as part of their 2019 election manifestos.
The Fixed-term Parliaments Act 2011 (Repeal) Bill, published recently, seeks to carry this commitment into British law, restoring the prerogative power to dissolve Parliament and protecting it from judicial interference, reforms for which Policy Exchange’s Judicial Power Project has argued in successive reports and articles.
What changed in the meantime? As it turned out, the evil the FTPA ostensibly sought to remedy – the Prime Minister’s ability to time elections for political advantage – was far outweighed by the new ones it created, as the antics of some members of the “dead Parliament” of 2017-2019, desperate to avoid taking their case to the people in a general election, made clear.
The FTPA did empower backbenchers – another one of its oft-touted virtues – but at the expense of the electorate, who for months were deprived from having their say on one of the most momentous constitutional developments in recent history. Worse yet, it was not even effective at what it purported to do. Of the three Parliaments elected since its enactment, only one ran the full statutory five years.
Nor has it provided the political stability it promised, quite the contrary. Hence, there is now a sizeable cross-party parliamentary majority for the repeal of that short-sighted and ill-conceived piece of opportunistic constitutional tinkering.
The new bill is a simple one. Section 1 repeals the Fixed-term Parliaments Act 2011. Section 2 revives Her Majesty The Queen’s prerogative power to dissolve a Parliament and to call a new one.
There has been some public discussion about whether the power of dissolution should not be given to the Prime Minister directly, or to require a simple majority of the House of Commons to vote for dissolution. In the end, the Government has decided to propose a return to the pre-2011 status quo, which has the advantage of intelligibility and of being rooted in the United Kingdom’s history.
Section 3, which forbids the courts from questioning The Queen’s exercise of those powers, as well as any decision leading to the exercise of them, has predictably provoked overheated criticism, including accusations of authoritarianism.
In fact, it has long been settled, at least until the Supreme Court’s prorogation judgment, that the courts should not be tempted to enter into certain areas, and the life and death of parliaments ranks high among them. Indeed, in his famous judgment in the GCHQ case, Lord Roskill specifically listed dissolution as one of the prerogative powers not “susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process”.
Under the United Kingdom’s political constitution, it is impossible to imagine a circumstance where it would be appropriate for the courts to decide on the proper timing of elections. This is a decision which involves a potent mix of high policy and low politics which is the very essence of democratic politics. There exist no legal standards against which to judge the legitimacy of a decision to go to the polls, and any attempt at judicial intervention will inevitably drag the judiciary into partisan political controversy. And the repeal of the FTPA will make it harder for parliamentarians to delay facing the people in a general election, which can only be a gain for democracy and accountability.
But in the aftermath of the Cherry/Miller (No 2) judgment – in which another related prerogative power, long thought as being immune from judicial review, was improperly brought under the courts’ control – there is a real possibility that parliamentarians, unwilling to face an early election, will try to litigate the issue in the courts. Indeed, given the courts’ proclivity to expand their dominion in recent decades, the risk was not entirely absent even before Cherry/Miller II. When the FTPA was making its way through Parliament in 2011, several constitutional authorities called for the Bill to be modified to minimise the risk of judicial intervention, but the Coalition government took the view that “the risk of the courts straying into or getting involved with them was very small”.
The risk has grown since then, and it is surely right for the Government to address the point squarely by precluding judicial review of dissolution. Not only does it protect our democracy, but it also insulates the judges from accusations of political interference, which undermines the very source of their legitimacy.
Section 4 provides for the automatic dissolution of Parliament after five years of its first meeting. By a constitutional quirk, this would mean that the life of the present Parliament would be extended by seven months, as the FtPA provides for elections to be held on the first Thursday in May every five years. However, modern parliaments almost never run for the theoretical maximum of five years – the 2015 election was the first time this ever happened in British history – so the provision is unlikely to have any impact on the date of the next election. Sections 5 and 6, as well as a schedule, deal with ancillary matters.
The Government has also published a statement on the constitutional principles governing dissolution. They are a powerful reminder of the simple axiom at the core of the British constitution: apart from in exceptional circumstances, the Sovereign acts on the advice of the Prime Minister so long as the Government he leads command the confidence of the House of Commons.
All in all, this is a simple, elegant and overdue enactment, which sets out to do exactly what it says it will do – to return the UK political constitution to its state before the Fixed-term Parliaments Act ever graced our statute books. It is to be hoped that the Government will continue to restore politics to its rightful place – at the core of the United Kingdom’s constitution.