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.

Chris White: Will next week’s Queen’s Speech presage an early general election?

3 May

Chris White is Co-Head of Advocacy at SEC Newgate.  He was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House.

Next week, in the wake of the local and national elections, the Government will have its first real set-piece opportunity to press the reset button since the beginning of the pandemic, when it unveils its legislative agenda as part of the Queen’s Speech.

Much of the focus will either be on the flagship measures designed to get the economy moving and push on with the levelling up agenda, or on the pared-down ceremonials, and whether the Queen will attend.

Yet the long-trailed arrival of the short bill to repeal the Fixed Term Parliaments Act (FTPA) could well have a greater impact on the future of the Government than many realise.

Repealing the Act

The draft Bill to repeal the FTPA has already had significant scrutiny from the Joint Committee, which published its report last month and raised a number of concerns, particularly around the ouster clause and the role of the monarch under a revived prerogative system.

This latter point, restoring the status quo ante, will attract a great deal of attention when the Bill finally appears before both Houses. The Government’s position is that the Monarch’s role in dissolution is not simply ceremonial, and that she or he has the constitutional power to exercise a veto.

There is a lack of clarity around how a refusal to grant a dissolution would be appropriate and, without such clarity, the change could place the Monarch at the centre of huge political controversy. This should be avoided at all costs, and as the Joint Committee makes clear, “the Cabinet Manual should, unlike the initial Dissolution Principles document, address much more directly how the Monarch’s veto operates in practice.”

Repealing the Act will attract a great deal of heat and light from all sides during its passage, but it is both necessary and the right thing to do, subject to some tidying up in the drafting. The Government has a clear mandate from the 2019 manifesto, its repeal was supported by Labour in its manifesto, and above all, the country cannot have such paralysis again.

Timing of the next election

Reverting to the status quo ante will have several significant effects – not least a return to the practice of the Prime Minister choosing the date of the election. Currently, the FTPA mandates that general elections are scheduled to take place on the first Thursday in May in every fifth year. The next election is currently scheduled to take place on 2 May 2024, and reverting to the previous system would not change the maximum term length of five years.

It is by no means certain that, should the FTPA, be repealed the Prime Minister will choose to keep the date of the next election to 2024, and could decide to choose an earlier date under the pre-2010 system.

It is far too early to say for certain what will happen in 2023 or 2024, yet the long-term trends are certainly looking favourable for the Conservatives should they wish to hold an earlier election.

The Conservatives now hold a seven-point overall poll lead on Labour, with little sign of Labour leader Sir Keir Starmer making any real breakthrough.

Much more needs to be done to deliver on the manifesto promises made that delivered a stunning electoral result, and voters will want to begin to see the benefits of Brexit, but at this stage the trends are clearly promising.

Going early?

If the Prime Minister does decide to go for an early election, what clues should we look out for? Constructing a legislative programme takes a considerable amount of time and effort. Bids for legislative slots take time to arrange, and letters from the Leader of the House to Cabinet Ministers seeking their input for the forthcoming session to be announced in May would have been sent out over a year ago, shortly after the previous State Opening of Parliament in 2019.

A normal legislative year, running May to April, could expect to have between 20 and 25 bills, ranging from the short – up to 25 clauses – to the very long – over 150 clauses. Any legislative programme will have a mix of measures: too many ‘big’ bills will clog the system, and too many small ones will lead to both Houses having too little to do. These would have been whittled down from around 40 bids from departments.

This year is slightly unusual in that we already know quite a few of the scheduled bills – Police, Crime, Sentencing and Courts Bill, the Environment Bill and the Armed Forces Bill will all be ‘carried over’ from this session, as they have yet to be completed.

Ministers have also announced legislation to improve the building safety regulatory regime and reform the asylum system, in addition to the aforementioned bill that will repeal the Fixed Term Parliaments Act.

Letters will now have gone out to Departments and Ministers for the 2022-3 session, and the Leader of the House and Downing Street will spend the next few months stitching together the Queen’s Speech for the 2022-3 Session.

If the Prime Minister does want room for an earlier election in 2023, for example, then the content of that Queen’s Speech next year, and the battle for legislative slots in it, should be closely watched.

The news from the political grapevine is already suggesting that legislative time is at a premium, particularly with several carryover bills included in this upcoming session. Expect to see several kites being flown in the papers from Ministers making the case for why their measures are vital.

There will also be a need to reserve time for campaigning during the first few months of 2023. Even with a majority of 80, Conservative MPs will be wanting to spend time in their seats rather than tied down to votes in the Commons. It is eminently possibly that we could see a either a trimmed down Queen’s Speech in 2022, one with a few ‘motherhood and apple pie’ bills, or some placeholders that won’t matter too much should they fall by the wayside.

Over the next few months the FTPA will be repealed and we will return to the previous system of the PM choosing the date of the next election. That election may well come sooner than we think.