The days of the Fixed-term Parliaments Act 2011 — adopted almost a decade ago as part of the Coalition Agreement between the Conservative and Liberal Democrat Parties — appear to be numbered. The Government has published draft legislation to repeal the Act along with a statement of principles concerning the exercise of the prerogative power of dissolution that would be revived if the 2011 Act were to be repealed.
I do not comment in any detail in this post on whether getting rid of the Fixed-term Parliaments Act (‘FTPA’) is a good idea in policy terms (on which see, among of things, the recent report of the House of Lords Constitution Committee). It is, however, worth interrogating the agenda underlying the Bill. If the Government really did intend to restore the pre-FTPA position, this would not result in the Prime Minister acquiring an entirely unilateral power to call elections at will. That is so because, under the pre-FTPA arrangements, the Lascelles Principles recognised that the Monarch could refuse to dissolve Parliament in certain circumstances — a point that was also acknowledged in the partial draft of the Cabinet Manual that was published before the 2010 election.
However, the statement of principles accompanying the Bill appears to presume that the Queen will dissolve Parliament as a matter of course when the Prime Minister so requests, thus implying an intention, on the part of the Government, not to restore the pre-FTPA position but to usher in a regime under which its latitude is greater than before. Indeed, the statement of principles misleadingly says that ‘[t]he Sovereign, by convention, is informed by and acts on the advice of the Prime Minister’. However, while this is the general principle, the convention — as reflected in the Lascelles Principles — was otherwise in relation to the dissolution prerogative. The Bill, together with the statement of principles, thus appears to be an attempt at executive aggrandisement that circumvents both the gatekeeping function formerly performed by the Monarch and the control (such as it has been) exercised by Parliament under the FTPA — while also, as we will see, attempting to exclude any possibility of judicial scrutiny of dissolution-related matters.
What, then, is envisaged in the place of the FTPA? The Draft Fixed-term Parliaments Act (Repeal) Bill is a short and, on the face of it, straightforward piece of legislation. If enacted, it would:
- repeal the FTPA (clause 1);
- reinstate the prerogative power to dissolve Parliament, thereby triggering a general election (clause 2);
- provide that courts could not, among other things, question the exercise of that power (clause 3);
- automatically dissolve Parliament on fifth anniversary of its first meeting if the dissolution power has not been exercised by then, thus preventing non-use of the power to prolong any given Parliament beyond five years (clause 4).
Against this background, three key questions arise. First, is it in fact possible, as the Bill assumes, to revive the dissolution prerogative? Second, but for clause 3, would matters relating to the dissolution prerogative (assuming that it is in fact restored by clause 2) be justiciable? Third, does clause 3, as may appear to be the case, rule out all possibility of judicial review in this context?
Can the dissolution prerogative be revived?
Some commentators have argued that it is not open to Parliament to restore the prerogative power of dissolution. One line of thinking here is that if legislation gets rid of a prerogative power, and subsequent legislation seeks to reinstate such a power, the reinstated power has been created by statute and must therefore be a statutory power. Parliament, in other words, can create statutory powers by enacting statutes, but it cannot create prerogative powers which, by definition, derive from a source other than statute. That must be true, in that the source of a statutorily-created ‘prerogative’ would, by definition, by statute — although there is presumably nothing that prevents a sovereign Parliament from stipulating that such a power ought to be treated as if it were a prerogative.
The question of what would happen to the dissolution prerogative were the FTPA to be repealed was recently canvassed by the House of Lords Constitution Committee. On this matter, Gavin Philipson said:
In my view, the prerogative probably cannot be revived. I accept that this is an issue on which lawyers take different good-faith positions. However, the very legal uncertainty as to whether the prerogative can be revived means that it would be irresponsible simply to legislate to repeal the Act and try to revive the prerogative without being sure that you could. As far as I know, there is no instance of statute successfully reviving the prerogative, so it is an open matter of law.
However, the fact that this has not been done does not mean it cannot be done. A key question concerns the effect of the legislation that impacts on the prerogative — here, the FTPA. The orthodox view is that when legislation covers an area that had until then been dealt with by the prerogative, the legislation places the prerogative in abeyance for as long as the legislation remains in force. As Lord Atkinson put it in Attorney General v De Keyser’s Royal Hotel Ltd  AC 508, 539–40:
[W]hen a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, … it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same – namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.
On this view, there is no difficulty in principle with the prerogative being revived upon repeal of the legislation that, in the first place, put it in abeyance. As Carl Gardner put it in his evidence to the Constitution Committee, ‘Repeal would not create a new prerogative power, or extend one. All it would do is remove the statutory “rug” to uncover the common law floor underneath it.’ This analysis is supported by the fact that (notwithstanding a misleading suggestion to the contrary in the Explanatory Notes) there is nothing in the FTPA that clearly suggests it sought to abolish the dissolution prerogative. The closest it comes is in section 3. Having set out the statutory mechanism for dissolution, sub-section (2) goes on to provide that, ‘Parliament cannot otherwise be dissolved.’ This, however, certainly does not in terms abolish the prerogative; a more natural reading is that it confirms that it cannot (while the statutory mechanism is in place) be exercised.
The issue then becomes whether the Bill has the effect — of which it must in principle be capable — of removing the ‘statutory rug’ that the FTPA put in place. The answer is surely ‘yes’. Clause 2(1) of the Bill says:
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.
This is entirely consistent with the position set out in De Keyser, that legislation such as the FTPA abridges the prerogative or puts it in abeyance, and that repeal of such legislation is capable of causing the prerogative to become exercisable once again. What the position would have been had the Bill repealed the FTPA without going on, in clause 2, to make the provision set out above is a nice question but is not one that arises. Given the scheme of the Bill, it is perfectly clear that the prerogative will be revived and that, from the entry into force of the Bill, the prerogative power of dissolution will once again be exercisable.
Is the dissolution prerogative justiciable?
Clause 3 of the Bill is headed: ‘Non-justiciability of revived prerogative powers’. In fact, it is really an ouster clause, and I consider below whether that ouster clause precludes all judicial review of the revived dissolution power. First, however, it is worth considering whether the use of that power is capable of giving rise to justiciable issues. If the answer were ‘no’, then the ouster clause would be redundant: it might be objectionable as a matter of constitutional principle, but it would make no difference in practice (because even in the absence of the ouster clause, no justiciable matters would arise, meaning that no judicial review would be possible).
It is true that the dissolution prerogative was described as a non-justiciable power by Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service AC 374. But there has been a good deal of water under the bridge since then, and other powers, including the prerogative of mercy, have been recognised as justiciable notwithstanding inclusion in Lord Roskill’s prohibited list. The modern, and better, view is that it is not powers that are (or are not) justiciable, but the questions to which their exercise may give rise. Two things follow from this insight. First, questions about whether a prerogative power exists, and about its extent, are questions of law upon which considerations of justiciability cannot have any purchase. It was for precisely this reason that the Supreme Court in Miller II UKSC 41 concluded that justiciability-related considerations did not prevent it from determining whether the scope of the prorogation prerogative had been exceeded — a matter that raised necessarily justiciable questions about the legal extent of the power. Second, once we recognise that the notion of a given power being non-justiciable is nonsensical, it follows that matters of justiciability can only properly arise and be considered in the context of a given challenge to a given exercise of a prerogative power. All of this means that the inclusion of the dissolution prerogative on Lord Roskill’s list in CCSU must now be taken with a very large pinch of salt.
It is, of course, true that the exercise of the dissolution power is highly unlikely to give rise to justiciable questions that are suitable for resolution by a court of law. But that does not mean that when or if justiciable questions do arise, they should be treated as off limits. Nor does it mean that considerations of justiciability should prevent a court from ruling on legal questions about the existence or extent of the power. If, then, the dissolution prerogative is capable in principle of giving rise to justiciable questions — including as to its legal scope — it follows that the ouster provision, found in clause 3 of the Bill, is not merely an adornment. While unlikely to do so, the dissolution prerogative can generate justiciable questions, meaning that there is a category of potential judicial review challenges that would be precluded by an effective ouster clause. The question, however, is whether clause 3 is such a clause.
Is judicial review completely ousted by clause 3?
In relation to clause 3, it is important to begin by noting that it does not amount to an attempt to reverse Miller II: that case was concerned with the prorogation prerogative, about which the present Bill has nothing whatever to say. Clause 3 provides that:
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.
Is this the holy grail of parliamentary drafting — an ouster clause that leaves the courts with no room for manoeuvre, meaning that they would have to either roll over and apply it or refuse to do so, thereby trigger an all-out confrontation with the other branches of government? There is certainly very little wriggle room here. The aim of clause 3(a) and (b) appears to be — through the inclusion of ‘purported’ exercises of the power etc — to close off the sort of interpretive avenue that was exploited by the Appellate Committee of the House of Lords in Anisminic Ltd v Foreign Compensation Commission 2 AC 147. Meanwhile, the Explanatory Notes to the Bill openly acknowledge that the purpose of clause 3(c) is to ‘to address the distinction drawn by the Supreme Court in [Miller II] … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise’. (In Miller II, the Supreme Court, for reasons that I have defended in another post, avoided the need to confront the question of justiciability by framing the question before it in terms of the scope of the power.)
So is clause 3 a watertight ouster clause? A preliminary point that is worth clarifying is that while clause 3 is headed ‘Non-justiciability of revived prerogative powers’, it is not in fact concerned with justiciability. The question of whether an issue is justiciable is one that falls to be confronted in relation to an exercise of a power that is in principle amenable to judicial review — and clause 3 is concerned with the prior question of whether, in principle, judicial review is available in respect of the exercise of, and decisions relating to, the dissolution prerogative. Whether it succeeds in cutting off any possibility of judicial review is, however, debatable. For all that the drafting is tight, it would be naïve to assume that a determined court would be unable, in the face of the ouster, to preserve any vestige of judicial review. As Jack Williams has noted, the clause prevents courts only from ‘questioning’ certain matters relating to ‘the powers referred to in [clause] 2’. The critical issue therefore becomes whether a court engaging in judicial review would be doing that prohibited thing — i.e. questioning a relevant matter concerning those powers.
An example, courtesy of Thomas Fairclough, may help to place all of this in perspective. Of clause 3, he has asked: ‘Does this get around the [Miller II] reasoning of a Court having to determine if the power exists in the first place? If so, does that mean the PM could invoke the Bill to e.g. deport all immigrants and say “it’s a purported use of the … power [referred to in clause 2] and so non-reviewable”?’ The answer, surely, is ‘no’. Such an outcome would be constitutionally grotesque, and it is unthinkable that a court, faced with this situation, would refuse to intervene on the basis that clause 3 prevented any judicial oversight of such matters. Indeed, it is no exaggeration to say that according such an effect to clause 3 would stand the rule of law on its head. How, then, might clause 3 be interpreted in such circumstances?
The framing of clause 3 means that it only has any purchase when the court is questioning a given matter in respect of the relevant power (i.e. the dissolution prerogative). Clearly, under clause 3(a) and (b), a court, in our example, would not be questioning an exercise of the dissolution power (or decision relating to it), because, in truth, the dissolution power would not be in play at all. Would the court be questioning a purported exercise of that power? Yes, in the sense that the Minister claims that the deportations are being carried out under that power. But such a literal reading would produce a constitutionally perverse outcome, and a court would be right to resist it. Instead, clause 3(a) and (b) might, at the very least, be read as precluding review on the ‘purported exercise’ basis only in circumstances where the contention that the dissolution power is in play is a reasonable one. After all, any other approach would render Ministers capable of doing anything, free from judicial review, merely by claiming that they were acting pursuant to power in clause 2 of the Bill. What of clause 3(c)? Would not a court engaging review in our example be questioning the limits or extent of the relevant power? Yes, in the sense that the court would be determining that the dissolution power was not sufficiently broad to provide a legal basis for deportation. But to read clause 3(c) as precluding such judicial oversight would, once again, produce constitutionally perverse results. The court would therefore be justified in reading clause 3(c) more narrowly, so as to enable it, for instance, to correct basic, or ‘four corners’, excesses of jurisdiction — on the ground, for instance, that finding something to be flagrantly outwith the power is a qualitatively different exercise from questioning the limits of the power. (It may also, for reasons advanced in the next paragraph, be a categorically different exercise.)
The approach sketched in the previous paragraph would preserve ‘four corners’ judicial review, thereby enabling judicial intervention in the event of the sort of utterly blatant excess of power disclosed by our example. It would also be possible — although it would involve a bolder approach that would take the courts closer to the edge of what might be interpretively possible — to go further. It might, for instance, be noted that since the prerogative is subject to the rule of law, and since the grounds of judicial review derive from the rule of law, there is no prerogative power to act contrary to the grounds of review. It might then be argued that a court — assuming a justiciable issue had arisen — that struck down an exercise of the dissolution power on any of the grounds of judicial review would be justified in doing so notwithstanding the ouster clause, because the court (applying the approach, mentioned above, advocated by Jack Williams) would not, in doing so, be questioning any relevant matter in respect of the dissolution power. Rather, the court would be observing and giving effect to the pre-existing legal boundaries of the power. On this view, the relevant power is never in play and no ‘questioning’ is going on in respect of it: the dissolution prerogative does not in the first place entail any authority to act contrary to the principles of judicial review that derive from the rule of law, and its limits are not the result of any judicial ‘questioning’ because they exist independently of and prior to any judicial rumination upon them.
Admittedly, it would be a bold court that adopted such an approach. I set it out, however, to illustrate the wider point that a court determined to uphold judicial review in the face of the ouster clause would likely find a way of doing so. The broader question is whether such a court would feel it necessary to go through the mental gymnastics entailed in such an interpretive exercise or would, instead, simply decline to give (full) effect to the ouster clause. The position here is as well-known as it is ambiguous: as a matter of orthodox constitutional theory, review can be excluded and ouster clauses, duly interpreted, must be given effect; but judicial dicta to the effect that the exclusion of review may not be within even a sovereign Parliament’s gift suggest otherwise. For instance, Lord Carnwath, in Privacy International UKSC 22, said that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’.
If such dicta are ever put to the test, this is unlikely to be the context in which it happens. For all that the ouster clause in the present Bill raises interesting questions, the likelihood — it is to be hoped — of an attempted use of the dissolution prerogative that would both raise a justiciable question and tempt a court to play fast and loose with clause 3 is surely small. However, it is important to view the Bill in its wider context, to which I recently drew attention in another post. A significant element of that context is increasing resistance within Government to both legal and political control. The Bill is entirely of a piece with that trend. As noted at the beginning of this piece, the statement of principles accompanying the Bill appears to be an attempt to circumvent the Lascelles Principles and the monarchical control function that they imply. The Bill itself seeks to remove whatever (modest) leverage the FTPA gives to Parliament when it comes to curtailing the Government’s capacity to bring about early general elections at a time of its choosing. Meanwhile, clause 3 seeks to shield the exercise of the dissolution power against any form of judicial control. Viewed thus, the Draft Fixed-term Parliaments Act (Repeal) Bill neatly, if disturbingly, sums up an attitude to legal and political control of Government that is opposed to, and is corrosive of, basic constitutional principle. As such, it forms part of a constitutional tableau that is, in equal measures, increasingly apparent and increasingly concerning.
I am very grateful to Tom Fairclough (2TG), Philip Murray and Jack Williams (Monckton Chambers) for discussion of the issues dealt with in this post and for their comments on an earlier draft of it. The usual disclaimer applies.