In Introduction to the Study of the Law of the Constitution, A. V. Dicey states: “The necessity for dissolutions stands in close connection with the existence of Parliamentary sovereignty… Where Parliament is supreme, some further security for such harmony is necessary, and this security is given by the right of dissolution, which enables the Crown or the Ministry to appeal from the legislature to the nation.”
Elsewhere, Dicey refers to examples of dissolution in 1784 and 1834 as examples of such a convention and argues this is a democratic necessity in a sovereign parliament, to argue that “the Cabinet, when supported by the Crown, and therefore possessing the power of dissolution, can defy the will of a House of Commons if the House is not supported by the electors.”
The Fixed Term Parliament Act 2011, abrogated the Royal Prerogative to dissolve Parliament in Section 3(2), stating: “Parliament cannot otherwise be dissolved.” The Act instead provides two mechanisms for an early parliamentary general election: either Parliament itself votes to do so with a two-third majority, or MPs allow elections to be triggered by passing a statute. All options to call an early general election therefore require the consent of the House of Commons, the very legislative chamber that is the subject of a general election.
This reform has been much applauded, for instance by Petra Schleiter in a blog post:“this change moves the UK considerably closer to the practices and norms that predominate in most European countries concerning parliamentary dissolution.” Yet, such praise overlooks a critical difference with other parliamentary democracies: the UK has both an elected sovereign Parliament and an Executive deriving certain prerogatives from an unelected Monarch, set out in an uncodified constitutional settlement.
The 15th September 2019 marked the eighth anniversary of the Fixed Term Parliament Act receiving Royal Assent and becoming law. In 2017, Prime Minister Theresa May successfully called for an election in 2017 under the Act. In September 2019, Prime Minister Boris Johnson’s attempt to call for an early election under the Fixed Term Parliament Act has been frustrated by the Commons. By preventing the dissolution of Parliament, it can be argued that the Act paradoxically contravenes its intended purpose to increase Parliamentary sovereignty. The Fixed Term Parliament Act has changed legislative-executive relation to one where such powers are no longer a fusion but are instead closer to an absorption of executive power by the legislature.
Walter Bagehot elegantly described the relationship of executive and legislative power in The English Constitution: “The English system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. Either the cabinet legislates and acts, or else it can dissolve. It is a creature, but it has the power of destroying its creators. It is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. It was made, but it can unmake; it was derivative in its origin, but it is destructive in its action.”
In this arrangement, while Parliament has, in Dicey’s words, “the right to make or unmake any law whatever,” the Executive has ample powers as well. Rigid statutory requirements for exercising dissolution powers risk triggering actions that might escalate a political crisis into a constitutional crisis.
For instance, by making dissolution and calling an election more difficult the Fixed Term Parliament Act might make using alternative prerogative powers, such as prorogation, more attractive to government. Whilst the prerogative power for dissolution was removed, the Fixed Term Parliament Act explicitly avoided the topic of prorogation of parliament, as Section 6(1) explicitly states: “This Act does not affect Her Majesty’s power to prorogue Parliament.”
The prorogation of the 2017–19 parliamentary session is planned to be the longest since 1930 (with the parliamentary session itself being the longest since the English Civil War); and the justiciability of prorogation is currently subject to ruling by the Supreme Court. There is the potential for longer prorogations becoming more common, especially in instances where the government no longer has the confidence of the House of Commons yet the House of Commons is not willing to agree to an early parliamentary general election.
Another potential way of working around the Fixed Term Parliament Act would be if ministers were to advise Her Majesty to refuse Royal Assent to any Bill until the House of Commons agreed to call an early general election. Whilst dissolution results in an election, use of such powers could compound public fears of being “undemocratically” governed, as we saw with popular reaction to prorogation, and would likely cause far greater constitutional outrage.
Given the lack of power to dissolve Parliament, administrations may resort to use of other prerogative powers when the Commons refuses to allow general elections to occur under the Fixed Term Parliament Act. However, longer prorogations and refusal to provide Royal Assent threaten to transform political into constitutional crises. Paradoxically, in its quest to control its own destiny, the House of Commons might achieve the opposite.