Source · Select Committees · Public Administration and Constitutional Affairs Committee
Recommendation 7
7
Paragraph: 50
The question of whether or not the dissolution prerogative can be restored is a complex...
Conclusion
The question of whether or not the dissolution prerogative can be restored is a complex one, which involves fundamental constitutional principles. It clearly was the intention of the Government in 2011 to abolish the prerogative, but the wording of the Act is less conclusive on this point. Some also hold the view that the fact of abolition does not even matter. As all the evidence to this inquiry makes clear, this is a highly contested issue. There are also questions as to what exactly would be revived and for example what the legitimate expectations of the Sovereign as a constitutional backstop would be. This is of particular concern in light of the Supreme Court’s recent decision about the prerogative power of Prorogation. It is clear that attempting to revive the prerogative would invite the courts to make the final decision on these issues. These are core political and constitutional questions that neither Parliament nor government should abrogate to the courts. Even if there is a desire to return to the old system for dissolution and calling elections, it would be better setting these arrangements in statute rather than engaging in an unnecessary attempt to revive a prerogative which could have considerable unintended consequences and implications.
Paragraph Reference:
50
Government Response
Accepted
HM Government
Accepted
The Government recognises that there is a debate about whether the dissolution prerogative can be revived without specific legislation to do so. To provide for legal, constitutional and political certainty around the process for dissolving Parliament and to remove any doubt about the underlying intention, the draft Bill makes express provision that the prerogative powers relating to the dissolution of Parliament (and the calling of a new Parliament) that existed before the FTPA are exercisable again “as if the FTPA had never been enacted.” The Government agrees that the exercise of these prerogative powers is a matter that should not be abrogated to the Courts. For this reason, the Government’s draft Bill contains an ouster clause to make clear that the exercise or purported exercise of the revived prerogative powers, any decisions or purported decisions relating to the revived powers (including any preliminary steps and advice leading to the exercise of the powers), and the limits or extent of the revived powers, are non-justiciable. This facilitates a return to the long-standing norm that operated before 2011. Early elections: avoiding paralysis and propping up of weak governments