Published:

Professor Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

For a certain type of critic, the Government’s constitutional reform agenda is authoritarian populism in action, contemptuous of the rule of law and parliamentary democracy alike.

The riposte is that many academic lawyers or political barristers seem rather keen on tempting courts to depart from the law in order to discipline an unruly Parliament or people – not much respect for the rule of law or democracy there. In limiting the prospects for political litigation, the Government and Parliament can help vindicate the rule of law and the integrity of parliamentary democracy.

The more fair-minded critic of the Government’s agenda sees that its aim is to restore the traditional political constitution, but goes on to question whether this would be a desirable change or even whether it is possible in view of how the world has changed.

That is, is it wise to unwind recent innovations and is it feasible for legislation to reinstate the constitution as it stood before these changes? These are good questions for parliamentarians to ask about proposed legislation.

The Queen’s Speech promised legislation to restore the balance of power between executive, legislature and courts. It remains unclear exactly what form that legislation will take and thus whether it will prove an effective means to help reverse the rise of judicial power.

The worry may be that the legislation does not go far enough, leaving the problem largely unresolved, rather than that it works too radical a change. However, another of the Government’s legislative proposals is rather more advanced, prompting questions now about whether it is warranted or will work.

The Dissolution and Calling of Parliament Bill, which has its second reading in the House of Commons today, will repeal the Fixed-term Parliaments Act 2011. Repeal should not be, but may prove to be, controversial.

The 2011 Act is an unloved statute. Both major parties contested the last general election promising to repeal it. Repeal is necessary because the Act proved dangerous in the last Parliament and indeed was very nearly disastrous.

In preventing dissolution, the Act made it possible for a cross-party coalition of MPs to maintain a government in office but not in power, refusing formally to withdraw confidence and thus trigger an election, but denying that government the capacity to govern.

The Supreme Court’s prorogation judgment made a bad crisis worse, denying the Government an option to provoke withdrawal of confidence and making it easier for a gaggle of parliamentarians to govern without taking responsibility.

If the Liberal Democrats and the Scottish National Party had not calculated that an early election was to their electoral advantage, the constitutional impasse could have continued for months or even years longer, with the country practically ungovernable.

Parliament has a responsibility to avoid a repeat of this constitutional debacle. The Bill now before the House helps to achieve this, per clause 2, by restoring Her Majesty’s prerogative power to dissolve Parliament as if the Fixed-term Parliaments Act had never been enacted.

Some academic lawyers argue that it is impossible to revive a prerogative power and that if the Bill is enacted the power to dissolve Parliament must be a statutory power, which will invite judicial review. The argument is fallacious, for a sovereign Parliament can certainly legislate to restore the law as it stood before its prior legislative act, provided that it makes its intention clear, as clause 2 does.

However, if the Bill were simply to restore the prerogative, as if the 2011 Act had never been enacted, the risk would be that political opponents of an early election would invite the courts to quash a dissolution, on similar grounds to those asserted in the prorogation judgment.

They would argue before the Supreme Court that the Government had wrongly dissolved Parliament for political advantage or for no obviously good reason and that dissolution had cut short parliamentary accountability and made it impossible for Parliament to enact legislation. The argument should fail because it is not for the courts to police the timing of elections. But the same argument succeeded in the prorogation judgment and its logic clearly extends to the prerogative of dissolution.

It has been clear for some time, as Policy Exchange has argued in a series of articles and reports, that legislation to repeal the 2011 Act needs also to reverse the Supreme Court’s judgment, protecting the prerogative of dissolution from judicial review.

Clause 3 goes some way towards this end providing in strong terms that no court may question the exercise or purported exercise of the powers referred to in clause 2 or the limit or extent of those powers. Predictably, some critics have argued that this is an unconstitutional clause, that it ushers in lawless government and unreasonably disarms the courts from intervening in extremis.

On the contrary, as I argued in evidence to the Joint Committee on the Fixed-term Parliaments Act, the fears about clause 3’s application are illusory. The restored prerogative of dissolution will help avoid constitutional impasse. In ruling out judicial review, clause 3 does no more than restate the law as it clearly was until the Supreme Court made new law, without admitting it, in the prorogation judgment.

The Independent Review of Administrative Law has recognised the merits of clause 3, which affirms traditional limits on judicial review rather than somehow constituting a novel, dangerous exemption from judicial oversight. The clause has to be framed in strong terms if it is to prove effective, for courts read legislation that seems to limit judicial review narrowly.

Some critics of clause 3 have even suggested that the courts might revive their overheated 2019 dicta, abandoning parliamentary sovereignty and quashing Parliament’s choice that dissolution shall not be subject to judicial review.

This seems an odd hill on which to choose to die. It is scarcely a fundamental of our constitution that courts should decide on the timing of elections and it seems very unlikely that the Supreme Court, led by Lord Reed rather than Lady Hale, would accept this argument.

The courts have no power to quash legislation preventing judicial review of a dissolution. However, future litigation challenging a dissolution, and thus an early election, would aim to evade the legislation, not least by targeting the steps leading up to Her Majesty’s order, including ministerial advice.

Clause 3 should be reframed to specify that a court may not question any (purported) act of the Crown relating to the dissolution of Parliament or any ministerial advice, or other procedural steps, relating to such an act. The clause might also usefully be supplemented by specifying that Article 9 of the Bill of Rights 1689 covers all acts of the Crown relating to prorogation and dissolution, and all ministerial advice to Her Majesty in relation to such action.

The Bill could also provide that the Supreme Court’s prorogation judgment and the judgment of the Scottish court on appeal in that case have no authority and cannot be relied upon in any UK court, which would restore the constitutionally sound judgments at first instance.

No one should lament the repeal of the Fixed-term Parliaments Act. In repealing the Act, Parliament has to address the law the Supreme Court invented in its prorogation judgment. Clause 3 of the Bill now before the House goes some way towards this end but should go further.