A couple of weeks ago, we looked at the question of repealing the Fixed-term Parliaments Act and suggested it might be an important litmus test for how much Dominic Cumming’s departure affected the Government’s willingness to pick important, but arcane, constitutional battles.
I then raised the issue with Jacob Rees-Mogg in the Moggcast, and was assured that progress on the issue was being made and that returning to discretionary elections was on the agenda (it was, after all, a manifesto commitment).
And lo! This morning’s Times reports that the Government is indeed publishing today a bill to repeal the FTPA. According to the ‘senior Government sources’ quoted by the paper it does sound as though Ministers have elected to take the purist option I outlined in my piece: “seeking to restore the power to go to the country conferred by royal prerogative”.
According to the paper, Boris Johnson sees this as part of a wider battle to reassert traditional parts of the political constitution against outside encroachment – and as of a piece with his conflict with the Supreme Court.
The draft Bill is now available online, and the truth of these claims is plain to see in the first three clauses:
1 Repeal of the Fixed-term Parliaments Act 2011
The Fixed-term Parliaments Act 2011 is repealed.
2 Revival of prerogative powers to dissolve Parliament and to call a new Parliament
(1) 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.
(2) For the purposes of subsection (1), the powers relating to the calling of a new Parliament include powers to order the issue of—
(a) writs of summons to attend the House of Lords, and
(b) writs for parliamentary elections (see rule 3 in Schedule 1 to the Representation of the People Act 1983).
3 Non-justiciability of revived prerogative powers
A court of law 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.”
If successful, passing this Bill would mean that no future coalition of opposition and backbench MPs could ever hope to usurp the Executive and bypass the checks and balances of our parliamentary system the way Oliver Letwin and his confederates attempted to do.
Whether or not Clause 3 will be protection enough against the Supreme Court, in light of their evident willingness to innovate, remains to be seen. The Government has clearly learned from the defeat of previous ‘ouster clauses’ by making sure it encompasses “purported” decisions – thus aiming to shoot the fox of judges who have circumvented previous such attempts by claiming that the decisions they quashed fell outside ouster clause laid down by Parliament.
Even as we speak, the Lords anew constitutional reality conjured up in Miller II. Might this Bill be amended to shield future prorogations behind Article IX and restore their status as proceedings in Parliament?
On 22 October, Standing Order 76 of the the House of Lords Standing Orders Relating to Public Business was deleted after 399 years on the books “to avoid the implication that prorogation is a proceeding of Parliament”, something no one had hitherto realized. pic.twitter.com/aDhUQdjuCJ
— Yuan Yi Zhu (@yuanyi_z) November 30, 2020