3rd August 2021
You would think that the grand question of the relationship between the powers of the crown and of parliament had been more-or-less settled over the last 400 years of our history.
The trend has been for the ‘prerogative’ powers of the crown – those powers that have legal effect because the crown is said to have such powers – to be subject to regulation or control by parliament and the courts.
And this is not an unusual thing for a polity that has become more democratic.
Some of these powers have moved to being under parliamentary and judicial supervision or direction at different times – but the tide has generally been in one direction.
But.
As the historian Robert Saunders explains lucidly in this thread, we have a remarkable turn in the tide.
This article, on the repeal of the Fixed Term Parliaments Act, raises a question that needs more public discussion: who wields the historic powers of the Crown once the monarchy is no longer politically active? Should there be *any* limit on their use by a prime minister? THREAD https://t.co/QNqjKhfS4V
— Robert Saunders (@redhistorian) August 2, 2021
In particular:
12. For a democracy to transfer power from Parliament to the Crown is bizarre in itself. And the effect is to remove any check on the ability of a Prime Minister, who might have no majority &no electoral mandate, to access the highest powers of the state. Are we sure that's wise?
— Robert Saunders (@redhistorian) August 2, 2021
The issue, is of course, the repeal of the unliked and unloved Fixed-term Parliaments Act.
This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.
Given how easily governments, through parliament, have circumvented the core provision of the legislation, it must be regarded – at least on the face of it – as one of the most singularly useless acts of parliament ever enacted.
(This blog has previously discussed this statute here.)
But.
The principle behind the legislation was – and is – valid and important.
It should be for parliament – and not the executive – to decide when there should be an early general election (that is, an election before the end of a fixed term).
That there have perhaps been frustrations and misadventures with the legislation so far does not mean that the law should be abandoned absolutely – no more than any other prerogative being handed back to the monarch (and by implication the prime minister).
The historical trend away from passing power away from the executive to supervision or control by parliament and the executive has been bucked.
And, fittingly, it is this cavalier (in both senses) government seeking this reversal.
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I cannot agree with this post. Eugene Forsey’s “The Royal Power of Dissolution of Parliament in the British Commonwealth by Eugene A. Forsey” makes it clear that the sovereign or the sovereign’s representative has the power the refuse a request from a Prime Minister or Premier is there is an alternative government which can command a majority in the existing Parliament or Legislature. Forsey cites Canada in 1926 and South Africa in 1939 as examples.
The 1975 dismissal of the Whitlam government by the G-G Sir John Kerr was an illegitimate use (simply put because Australia’s constitution is a curious mixture of the British and the American with, at the end of the day, no way (other than a game of chicken) to resolve differences between the two elected houses though it is the lower house that determines the government. Sir John died in disgrace.
Most recently, in BC in 2017, the Lt. Gov was faced with this situation when the sitting premier though she’d lost her Liberal (really a conservative) party majority in the recent general election, announced after defeat on the Throne Speech that she’d request dissolution as the was just a one vote majority for the NDP with the Greens. She visited the Lt., Gov. and emerged announcing she’d resigned and that the leader of the NDP had been summoned. Either she didn’t do what she said she was going to do or the Lt. Gov. fired her.
Thus, the power does not pass to the PM but to the sovereign etc.
HM is Queen of Australia and also Queen of Canada and both are fully independent nations and merely share the same person for separate roles unrelated to each other or to her role as Queen of the UK.
The examples you quote relate to events in Australia and Canada.
However in the UK the 2012 Fixed Term Parliaments Act explicitly stripped HM of her discretionary powers and reduced her role to merely advisory (if the PM wants to listen) and ceremonial. Going up to the Palace to see the Sovereign is now very much part of the kabuki theatre that is 2021 Britain. Under the FTPA those former powers of the Monarch were posited in Parliament as the supreme authority.
What DAG is pointing out is that Johnson is seeking to repeal the FTPA and it seems intending to repatriate those powers not to HM but to the PM.
Thanks I did not know that and assumed the power reverted to the status quo ante.
As someone brought up in a different legal system (with a written constitution, amendable only by supermajority ;-) ), I have always been puzzled by the fact that, until 2011, the incumbent party could choose when to call an election.
That from a normative perspective. From a positive one, I could not understand why Cameron decided to pass the Fixed Parliament Act.
It’s worth noting that the Fixed-Term Parliaments Act was effective in preventing Boris Johnson in calling an election, (and purging his MPs) for several months. The monster was kept in consitiuional check. That is until Parliament, in its infinite wisdom decided that it was right to allow an election. It’s unfair to blame the Act for that: No statute can fix stupid.
“This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.”
Did it not result in the 2010-2015 parliament lasting an entire fixed-term? Or are you not counting that because the legislation was enacted during that period (and so PM Cameron during the first couple of years of that parliament was not legally restrained from calling an election)?
Also, here is a provocative question for you: would you consider the date of the next US Presidential election to be “enshrined in [US] law”?