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Home / News and Insights / Blogs / Brexit / 98: It’s the prime minister’s prerogative… or is it?

With little fanfare, the Dissolution and Calling of Parliament Act 2022 (DCPA) received Royal Assent in March, returning the power to call general elections to the prime minister of the day. In addition to the necessary repeal of the Fixed-Term Parliaments Act 2011 (FTPA), which had set elections in stone every five years, the DCPA does two unusual things.

It revives a prerogative power

Section 2 of the DCPA confirms that the prerogative power to dissolve parliament and call elections that existed until 2011 is entirely revived, ‘as if the Fixed-Term Parliaments Act 2011 had never been enacted.’

By doing so, the Act avoids the knotty constitutional problem of what might have happened if the FTPA, which superseded prerogative powers, had simply been repealed ‘full stop’. Some legal scholars mused that a legal vacuum may have resulted, given the long-held principle that ‘when a statute is passed, it abridges the Royal Prerogative [and the] prerogative power to do that thing is in abeyance’, (De Keyser, 1915). There remains a lively academic debate as to what the precise legal situation would have been.

It tries to oust the courts

Apparently still reeling from the Supreme Court’s landmark decision in the Miller 2 case, the government inserted an extraordinarily broad ouster clause in section 3 to preclude judicial interference in future decisions to call elections. On its face, no court may question the ‘exercise or purported exercise’ of the powers in the Act, nor ‘the limits or extent of those powers’.

The exclusion of the courts from purported exercises of the powers is a response to past decisions of the House of Lords and Supreme Court, which have invariably interpreted ouster clauses extremely narrowly. In Privacy International v IPT (2019), the Supreme Court held that an ouster clause in section 67 of the Regulation of Investigatory Powers Act 2000 did not exclude judicial review entirely, though it might have done had it covered ‘purported determinations’ as well as simply ‘determinations’ of the Investigatory Powers Tribunal [111].

Unlawful determinations, by virtue of resting on errors of law, cannot be classed as determinations at all, they merely purport to be. Similarly, the reference to ‘the limits or extent’ of the powers seeks to cut off the Supreme Court’s reasoning in Miller 2. There, it was held that the review of the prerogative power to prorogue parliament was justified because the court has jurisdiction to review the ‘the lawful limits of the power and whether they have been exceeded’ [36], if not the exercise of the power within its lawful limits.

Whether the ouster clause in the DCPA would survive a legal challenge is far from certain, however, despite its apparently tight wording.
First, a wealth of case law including the judgements cited above reveals the courts to be deeply uncomfortable with ouster clauses and their consequences for the separation of powers (see also Anisminic, 1969, and O’Reilly, 1983). The courts are not averse to finding creative ways of reading around them.

Second, the decision in Miller 2 rested on what the Supreme Court called the ‘constitutional principle’ of parliamentary sovereignty, which, it said, ‘limited’ prerogative powers [41]. Two core elements of that principle could end up clashing should a future prime minister abuse the power to dissolve parliament: the decision of the present parliament to oust the courts from reviewing future dissolutions, on the one hand, and the possibility that a future parliament could see its constitutional role and duties curtailed and frustrated by the executive, on the other. Would the courts stand idly by should the latter happen on the basis of the statute alone, or would they look at the constitutional principle of parliamentary sovereignty more broadly?

‘As if the Lib Dems had never been enacted’

Finally, spare a thought for the Liberal Democrats, who made two major constitutional demands before agreeing to join the Conservatives in a coalition government in 2010. The first a referendum on a new voting system, in which the British public overwhelmingly voted for the status quo. The second the FTPA, which has now been swept away with barely a whisper.

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