Snap guide to this session’s Government legislation 3) The dissolution and calling of Parliament Bill

13 Jun

The Bills announced in each session’s Queen’s Speech are the fulcrum of the Parliamentary year.  But they are easily lost sight of, separately and wholly, as the political cycle moves – and a mass of other news and events crowd them out.

So during the coming months, ConservativeHome will run a brief guide, most Sunday mornings, to each Bill from this year’s Speech: what it is, whether it’s new, its main strengths and weaknesses – and whether it’s expected sooner or later.

2) The dissolution and calling of Parliament Bill

What it is

This is the Bill to scrap the Fixed Terms Parliament Act and restore the Royal Prerogative arrangement that preceded it.  It has a brief six clauses in all – four of which concern the matters above.  (The two remaining clauses are relatively minor.)

Essentially, Clauses One and Four cover the fixed terms aspects, repealing the Act and confirming that no Parliament can last longer than five years.  Clauses Two and Three deal with restoring the Prerogative “as if the…Act had never been enacted”, as Clause 2 puts it.  Clause Three seeks to place this revived Prerogative beyond the reach of the courts.  This is a so-called “Ouster Clause“.

Responsible department

The Cabinet Office – and the dissolution and calling of Parliament Bill has already received its First Reading in the Commons.  This took place on May 12.

Michael Gove, the Chancellor of the Duchy of Lancaster, is thus the lead Minister. Chloe Smith, Minister for the Constitution and Devolution, who also sits in the Cabinet Office, would be expected to take Bill through committee.

Carried over or a new Bill?

A new Bill – but it has already had pre-legislative scrutiny through a joint committee which reported in March.

Expected back when?

Sooner rather than later.

Arguments for

The basic case for the Bill is that fixed terms are inflexible – and that they’ve not been observed in any event, with general elections coming early in 2017 and 2019.

This being so, the most practicable alternative is to fall back on the status quo ante under which, as a Government command paper on the Bill has put it, “Parliament will be dissolved by the Sovereign, on the advice of the Prime Minister”.  Which means, given the Supreme Court’s judgement on prorogation, putting the matter beyond reach of the courts.

Arguments against

These fall into two parts, mirroring the Bill’s case and stucture.  First, that it’s a good thing in principle for Parliaments to work on the assumption that they will last for a fixed term.

And that fixed term can indeed be shortened if necessary, as it has twice been, then what’s the problem?  Second, that the status quo ante can’t be restored, since a prerogative is a non-statutory executive power and common law is created by courts and not legislatures, as Anne Twomey, a constitutional law professor, argued in evidence to the joint committee (and shouldn’t be anyway).

Politics

The Liberal Democrats were the co-creators of the Fixed Terms Act, along with their Conservative co-partners in the Coalition Government, and can be expected to oppose the Bill.  One might presume Labour unwilling to allow Boris Johnson greater flexibility over a general election’s calling, especially with talk of a poll in 2023.  However, one Tory source says that current feedback from the party is “supportive”.

Brenda Hale, who presided over the Supreme Court’s prorogation judgement, disagreed with Professor Twomey – telling the joint committee that in her view the prorogative can be restored.  But if one takes such a view, it doesn’t necessarily follow that one also believes the prerogative should be placed beyond the reach of the courts.  So what Labour says and how it votes will be worth watching

Controversy rating: 5/10

It’s hard see a Conservative backbench revolt that either supports the Act or opposes a restored prerogative.  But Opposition MPs, enthusiasts for judicial power, and supporters of the prorogation judgement will portray the Bill as an executive power grab.  So opponents of the Bill are more likely to stress opposing ouster clauses, not supporting fixed parliaments.