Farewell to the Fixed-term Parliaments Act – a Cameron-Clegg masterpiece of legislative incompetence

While apprehension mounts among Brexiteers of a sell-out by Boris Johnson on an EU trade deal, the Prime Minister has secured a modicum of fresh credibility by honouring one of his manifesto commitments at last year’s general election: the draft text of the Fixed-term Parliaments Act 2011 (Repeal) Bill has been published by Michael Gove, Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office.

This new legislation not only abolishes fixed-term parliaments, but also reasserts the right of parliamentary prorogation by royal prerogative, thus helping to remove from the Supreme Court the pretended authority over the prerogative power that it claimed, in an unprecedented instance of judicial activism amounting to a constitutional coup d’état, in its ruling on Boris Johnson’s prorogation of Parliament last year. 

Abolishing the unloved Fixed-term Parliaments Act, a product of the horse-trading that shored up the Cameron-Clegg coalition, was a Conservative manifesto commitment and it is good to see it being implemented. “England does not love coalitions,” observed Disraeli, and a legislative excrescence such as the 2011 Act demonstrates why.  

Imposing such a straitjacket on prime ministers and MPs amounted to strangulation of the natural processes of parliamentary governance. Only last year, however, did we witness the extreme disruption facilitated by this legislation, with the House of Commons in a state of anarchy, the Government unable either to progress its programme or call a general election, and the clear will of the electorate as expressed in a national referendum in danger of nullification.

That crisis within the legislature, in turn, spawned further controversial innovations in another arm of the constitution: the judiciary. When Gina Miller and her allies contested the Government’s (rightly the Queen’s) power to prorogue Parliament, the long-established judicial system at first followed tradition and precedent. The High Court judges, who included the Lord Chief Justice and the Master of the Rolls, ruled that prorogation, being a royal prerogative power, was non-justiciable.

It was left to the Supreme Court, creation of Tony Blair and alien to English legal tradition and heritage, to indulge in judicial activism by ruling against the right of prorogation. That was a revolutionary move, since the royal prerogative, except in certain limited areas involving private property rights, has always been held to be non-justiciable, i.e. above the authority of judges. That has been the case, for a very straightforward and accessible reason: if it were not, it would be a moribund element of the constitution, of no functional purpose.

With this ruling, the Supreme Court invaded much wider territory than prorogation or Brexit: it asserted its supremacy over the Crown, thus blowing apart the entire delicate balance of our constitution: if the court could override the Crown then, by extension, it represented a higher authority than the entire Executive and, by an inevitable logical process, Parliament too.

 In this new imagining of the constitution, ultimate authority in the state lay not with the crowned Elizabeth II, but with the spider-bejewelled Lady Hale. It was significant, too – and revelatory – that, despite its controversial character, all 11 Supreme Court justices unanimously endorsed this judgement. How often does that happen in a nation’s supreme court? The conclusion is obvious: the judges saw an opportunity to acquire an extraordinary degree of power for the court and they jumped at it. No constitutionalist could view so extravagant an unbalancing of the constitution, with the supreme authority in a realm more than a millennium old seized by a tribunal that had come into existence only a decade previously.

The new legislation also addresses the similar development in Scotland where, at first, Lord Doherty, in the Court of Session, ruled that prorogation was a political decision, in which the courts had no locus. The prorogation issue, inevitably in the current climate in Scotland, provoked much debate and chatter about the Scottish Claim of Right of 1689, its relevance to the contemporary constitution north of the Border, and its greater robustness than the English Bill of Rights passed in the same year. 

Such arcana are regularly invoked by Scottish progressives and separatists, so that the Claim of Right has become a kind of totem of Scottish intransigence, despite so few people knowing its history or true significance. In 1689, during the Revolution that overthrew James II and VII, an illegal election of 125 representatives was held to assemble a “Convention”, chaired by a nominee of William of Orange. On the first day of its assembly, on 16 March 1689, a letter was delivered from James VII. In irenic terms, the King commanded the members to return to their allegiance and promised amnesty to all who did so by the end of the month.

The managers of the Convention suppressed the King’s letter, voted an Act declaring the Convention lawful, and purported to depose James VII. Only after that was the letter made public. Constitutional significance is read into the fact that, unlike the English parliament, which claimed James had “deserted” the throne, the Scots declared he had “forfeited” it, thereby making the Scottish parliament a higher authority than the monarch. Those proceedings were, by any objective yardstick, clearly illegal and the royal prerogative remains identical on both sides of the Anglo-Scottish border.

 Now, back to the autumn of 2019. When three judges in the Inner House reversed Lord Doherty’s decision in the Court of Session,  and found against the legality of prorogation, justifying their intervention on the catch-all claim to be defending “the principles of democracy and the rule of law”, the Lord President, Lord Carloway, took care to specify of the judgement: “This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law…”

 Nonetheless, it can confidently be predicted we have not seen the last of that old Scots chestnut, the Claim of Right.

The new government Bill deals firstly with the abolition of fixed-term parliaments. In his introduction, Michael Gove writes: “The overriding principle of our constitution should be that the Government of the day has the confidence of the House of Commons. The Act’s codification of confidence motions and its regime of fixed five year Parliaments, undermines this democratic necessity, both hindering the function of representative democracy by making it harder to have necessary elections.” 

He later adds: “…the Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once more Parliament will be dissolved by the Sovereign, on the advice of the Prime Minister. This will enable Governments, within the life of a Parliament, to call a general election at the time of their choosing.” 

The historic aspect of this legislation is that, if passed, it will be the first law since 1689 to enhance, rather than reduce, the royal prerogative, even if only by restoring to the Crown a power of which it was deprived as recently as last year. The Revolution legislation, from the Bill of Rights 1689 to the Act of Settlement 1701, filleted the monarchy of its vestigial sacral mystique and apostolic-style succession. 

So distasteful was the Act of Settlement to public sentiment in 1701 that it only passed the House of Commons by a majority of one: 118 votes to 117. When the Act was put into operation in 1714, it excluded the first 53 lawful heirs to the throne on grounds of Catholicism and imported George I, the 54^th in line. They might as well have stuck a pin in a telephone directory, if such had existed. By 1903, the descendants of excluded heirs numbered 6,039, of whom 858 were then living, making Edward VII 859^th in genealogical line of succession to the throne he occupied.

That destruction of the hereditary mystique of the monarchy left its utilitarian function, as a crucial component of the constitution, as its surviving role. That role remains key to the smooth functioning of our constitution, with its separation of powers and traditional checks and balances providing customary safeguards for rights and liberties.

So, this new legislation is also Boris’s riposte to Lady Hale and all other judicial activists aspiring to encroach upon the traditional structure of authority in Britain. It is to be regretted the Prime Minister did not go further by abolishing the Supreme Court and restoring the once great office of Lord Chancellor and the appellate jurisdiction of the House of Lords, a system that was never broken but was officiously mended by Tony Blair. If, however, Boris lets the side down on Brexit, this reforming measure will seem small comfort by comparison.