How Boris Johnson is turning back the constitutional clock

Protesters gather outside Downing Street in 2019 for the Stop The Coup protests - Credit: John Keeble/Getty Images

SAM FOWLES took on Boris Johnson’s government over the prorogation of parliament in 2019 – now he warns of a new battle against the repealing of the Fixed Term Parliaments Act.

The Royal Prerogative harks back “to the clanking of mediaeval chains of the ghosts of the past”. So said the great judge Lord Roskill, giving judgment in the House of Lords in 1985 (when the House of Lords did the job that the Supreme Court does today). Yet, more than three decades later, the Johnson government, in its Fixed Term Parliaments Act (Repeal) Bill, will reanimate the Royal Prerogative to dismiss parliament and call elections. Not content, however, with reforging constitutional chains, the government proposes to outlaw judicial review of the power to dismiss parliament, creating a mediaeval ghost on steroids.

The Cabinet Office claims that the proposals will “reaffirm the longstanding position that the prerogative powers are not reviewable by courts”. Whoever wrote that statement either skipped constitutional law class or is lying. Prerogative powers have been subject to judicial review since the 1960s. Like any government power, prerogative powers must be used lawfully. That means, among other things, they can’t be infected by bias or corruption, can’t disproportionately violate fundamental rights or constitutional principle, and can’t be used for purposes for which they were not intended. Sometimes the courts will rule that a claim involving a prerogative power is “not justiciable”. This just means that the facts of that particular don’t raise a question of law.

Lying is apparently par for the course for recent governments. This Bill, however, is unusual because it opens up a new front in the war being waged on our constitution. The history of the UK constitution, as Lord Browne-Wilkinson (another legend of the Bench) observed in another House of Lords case is “the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature.” The Bill reverses that progress.

In the middle ages the UK was ruled by monarchs. In England parliament was little more than a consultative body, summoned by the monarch to raise taxes or pass laws then dismissed once its “duty” was done. The monarch mainly governed through the royal prerogative, a broad suite of government powers exercisable by whim of the sovereign and accountable to none. In the early modern period, seeking the emulate the absolute monarchies of mainland Europe, English monarchs became increasingly aggressive about their prerogative powers. James I likened the prerogative to the power of God to “make and unmake their subjects… of raising and casting down, of life and of death… and yet accountable to none but God only.” The Stuarts’ divine ambitions led to the civil war and Glorious Revolution. Since those days, as parliament has gained democratic legitimacy, it has gradually chipped away at the royal prerogative. Prerogative powers have become statutory powers: granted to the executive by parliament and exercisable only within the terms set by parliament.

In a democracy, the ultimate source of power is the consent of the electorate. We elect MPs to represent us in parliament. The executive handles the day-to-day business of government but is always accountable to MPs. The prerogative is a rival, non-democratic source of power; a hangover from an autocratic age, exercised without accountability. The prerogative, by its very nature, subverts democracy.

The dismissal prerogative exemplifies this. The monarch retained the power to summon and dismiss parliament into the democratic age. It was generally exercised on the monarch’s behalf by the prime minister and a convention developed that an election would be called at least once every five years. Conventions, however, can be ignored at will. Parliament finally rectified this constitutional anomaly in 2011 with the Fixed Term Parliaments Act. This ended the monarch/prime minister’s prerogative to dismiss parliament. It ensured that the power to call elections would be exercised by the representatives of the people and there would be a legal guarantee of a general election at least every five years. It was, with the exception of gay marriage, the best piece of legislation passed by the Cameron coalition.

Johnson’s bill turns back the constitutional clock. Parliament will, once again, only sit when the executive allows it to do so. This reverses the constitutional balance of power. The executive should be accountable to parliament. This will never be real or meaningful while the prime minister can dismiss parliament and order a new one whenever it gets a bit uppity. The Bill undermines the sanctity of elections because it allows the prime minister to call an one at the time his party is most likely to win. If the polls look bad, the government will have the power to simply put off calling an election indefinitely. While, in theory, the prerogative will be exercised in accordance with the “principles” published alongside the Bill, these are not legally enforceable. The prime minister, as he has done with the Ministerial Code, can ignore or manipulate them with impunity. Indeed, as the prorogation case demonstrated, this new prerogative power is almost certain to be abused.

Prerogative powers, in a democracy, should not exist at all. We certainly should not resurrect constitutional revenants that have rightly been consigned to the dustbin of history.

Sam Fowles is a Barrister at Cornerstone Barristers and a Fellow at the Foreign Policy Centre. He represented Joanna Cherry and 73 other parliamentarians in Miller II/Cherry. He tweets at @SamFowles.