:00:25. > :00:31.Denied's event could hardly be a more topical one. We are delighted
:00:32. > :00:37.to be hosting this. -- tonight's event. As I'm sure most now, a fixed
:00:38. > :00:42.term Parliament act was passed by the Coalition government in 2011,
:00:43. > :00:47.and the idea of the act was we would move from a system of flexible
:00:48. > :01:02.length parliaments in the UK to fixed terms of five years. Then
:01:03. > :01:09.Theresa May called the general election she required approval but
:01:10. > :01:14.MPs seemed happy to vote. But raised some questions about fixed term
:01:15. > :01:18.Parliament Acts. Last week, more topicality because the Conservative
:01:19. > :01:22.manifesto stated that the party that wins the election intensity repealed
:01:23. > :01:27.the fixed term Parliament act. It's a good time to talk about this
:01:28. > :01:30.topic. They have two excellent legal minds and stronger speakers to
:01:31. > :01:39.debate the rights and wrongs of that act. Carl Gardner, who will go
:01:40. > :01:43.first. He was called to the bar in 1993, and spent around 12 years as a
:01:44. > :01:48.government lawyer advising in various departments on a wide range
:01:49. > :02:00.of legal issues. At the moment, he runs amongst other things, the
:02:01. > :02:05.excellent head of legal blog. In 2015, he published a book called
:02:06. > :02:17.What A Fixed Up about the act, which he is opponent of. He is probably
:02:18. > :02:19.feeling happy at the moment. Gavin Philipson is a long-standing friend
:02:20. > :02:23.of the Constitution unit, a professor of law at Durham
:02:24. > :02:28.University, a specialist in public and constitutional law. He has
:02:29. > :02:31.worked on issues like human rights, anti-terrorism legislation, and
:02:32. > :02:35.recently did work on the Miller case which, if you remember, was about
:02:36. > :02:41.whether Parliament had to be consulted on the triggering of
:02:42. > :02:46.Article 50. Gavin is a supporter of the fixed term Parliament Acts, and
:02:47. > :02:58.after the events of last months, he thinks it is doing its job. He will
:02:59. > :03:02.defend the act and it may be easier said than done to repeal it.
:03:03. > :03:07.Excellent line-up, each Speaker will address us for about 20 minutes and
:03:08. > :03:13.then we will open to questions and discussion. This will be off the
:03:14. > :03:16.record so cameras will be turned off at that point. But the presentations
:03:17. > :03:20.which I greatly look forward to Bobby on the record. I invite Carl
:03:21. > :03:33.to get us off. I invite Carl to kick us off. Thank
:03:34. > :03:42.you. Thank you to UCL and the Constitution unit for inviting me to
:03:43. > :03:45.speak to you. I am delighted, assuming we get a Conservative
:03:46. > :03:51.government, not something I otherwise want. If we do get one, we
:03:52. > :03:58.will see the back of the Fixed-Term Parliaments Act. Where I am coming
:03:59. > :04:03.from, I used to be a great believer in constitutional reform, not
:04:04. > :04:08.specific reforms, to tackle particular problems, but
:04:09. > :04:12.constitutional reform in principle. I thought the Constitution was
:04:13. > :04:18.rubbish, archaic, old hat, and all that. And we need to sweep it away
:04:19. > :04:26.in place of a written constitution. I don't think any of that any more.
:04:27. > :04:31.Today, I come to you as a defender of the traditional British
:04:32. > :04:33.constitution but, I think, is sound, underestimated by the British
:04:34. > :04:39.people, and by what you might call the political class. And I think
:04:40. > :04:46.those who would like constitutional reform in a broad sense and a deep
:04:47. > :04:50.sense on principle, I think, are engaged in something very dangerous
:04:51. > :04:54.indeed. And the Fixed-Term Parliaments Act is, I think, a
:04:55. > :04:59.cautionary tale. Let me say this before I mentioned the act
:05:00. > :05:07.specifically. Never let them write a constitution. Not the politicians
:05:08. > :05:15.and not, sorry Gavin, the experts and academics either. They will muck
:05:16. > :05:22.it up. All in the name of principle. That is what has happened with the
:05:23. > :05:25.Fixed-Term Parliaments Act. Let me give you a reading from the second
:05:26. > :05:35.reading of the Fixed-Term Parliaments Act. -- the Bill in 2010
:05:36. > :05:41.or 2011. Nick Clegg said this. He explained the purpose of the Bill.
:05:42. > :05:45.He said it had a single clear purpose, to remove the right of a
:05:46. > :05:50.Prime Minister to seek the dissolution of parliament for pure
:05:51. > :05:54.political gain. For the first time in our history, the timing of
:05:55. > :06:01.general elections will not be a plaything of government. There will
:06:02. > :06:04.be no more feverish speculation over the date of the next election,
:06:05. > :06:08.distracting politicians and getting on with the running of the country.
:06:09. > :06:12.Instead, everyone will know how long the Parliament can be expected to
:06:13. > :06:19.last. Bringing much greater stability to our political system.
:06:20. > :06:24.We can see immediately how utterly hollow those words have proved to
:06:25. > :06:33.be. Everyone was surprised by what Theresa May has done, and I think
:06:34. > :06:38.the argument we may hear government argued -- Gavin argued it was as
:06:39. > :06:42.intended, but the way it was introduced is it really wasn't. To
:06:43. > :06:48.cut a long story short, I think the birth of the act is very cynical. If
:06:49. > :06:55.you read David Law's book, 22 days in May, you will see the partisan
:06:56. > :06:56.observations behind temp1macro. It was
:06:57. > :07:12.-- behind Fixed-Term Parliaments Act. A Conservative government
:07:13. > :07:17.couldn't cut and run and pull the right out of the Liberal Democrats
:07:18. > :07:24.and vice versa. Originally, it was going to be set at 55%, exquisitely
:07:25. > :07:29.calculated to allow the Coalition to get an election whenever it wanted.
:07:30. > :07:35.But to allow the Conservative Party to block one. There was a lot of
:07:36. > :07:43.cynicism about the act, it was always to protect the Coalition,
:07:44. > :07:47.shield it from an early election. And it shielded Theresa May from
:07:48. > :07:51.call to get a mandate. When she first in power, if anyone said, you
:07:52. > :07:54.should call an election and get remembered, she can simply say no,
:07:55. > :08:02.the fixed term Parliament act prevented. Bert when she turned on a
:08:03. > :08:10.sixpence, it is help to get the election that she wanted. So the
:08:11. > :08:13.cynical motives behind this Act, but I also blame idealists, people who
:08:14. > :08:19.supported it on principle sincerely, who thought it was an act of
:08:20. > :08:24.progressive reform. What went wrong was the fixed term that people
:08:25. > :08:28.wanted underestimated and caricatured the old system. They
:08:29. > :08:34.said the Prime Minister could just ask for an election and get one when
:08:35. > :08:41.he or she wanted. It was never true. The legal position is that the Queen
:08:42. > :08:49.can refuse, or refuse a dissolution of parliament. You may laugh. That
:08:50. > :08:52.shows what is wrong, actually, with our attitude for the Constitution. I
:08:53. > :08:58.think you should learn from Americans and be more interested in
:08:59. > :09:03.it and supportive of it. By the way, it's the same system they have in
:09:04. > :09:10.Ireland. The President can refuse an election. Not a silly and unique as
:09:11. > :09:17.we Brits like to think. The evidence that that system worked is, where
:09:18. > :09:22.was the abuse? It was said, it was awful but Prime Minister had to ask
:09:23. > :09:26.the Queen for a dissolution, it was awful, there would be all this
:09:27. > :09:32.political abuse, it was terrible. I don't remember our poor or outrage
:09:33. > :09:36.in my lifetime, whenever a Prime Minister asked for a dissolution and
:09:37. > :09:42.gossip. I don't remember in 2000 when we got dissolution, the last
:09:43. > :09:52.fixed term of Parliament. A debtor in Britain 2001 or 1987. I don't
:09:53. > :09:56.remember it in 1983. This abuse by Prime Minister is just was never a
:09:57. > :10:02.problem. In fact, more common than to complain about an election being
:10:03. > :10:08.granted was a public demand for an election, like when Gordon Brown
:10:09. > :10:14.took over and David Cameron, later one of the authors of this Act,
:10:15. > :10:19.demanded that there be an election immediately. In fact, he wanted to
:10:20. > :10:25.change the law at this time to require Prime Minister is to ask for
:10:26. > :10:34.an election. So, what has happened? What we have seen with Theresa May
:10:35. > :10:38.has happened because of partisans in cynicism and idealists who
:10:39. > :10:43.underestimated the real content of a traditional constitution and
:10:44. > :10:50.tinkered with it. What is the at -- what has the act mucked up then? And
:10:51. > :10:57.quite a lot. Because of it, no one knows what would happen following a
:10:58. > :11:02.no-confidence motion, a statutory motion in line with section two of
:11:03. > :11:10.the Act. It used to be clear, the Fai Minister had to resign or ask
:11:11. > :11:16.for an election. Well, third 2011 act sets a clock ticking with an
:11:17. > :11:23.election triggered after 14 days, unless there is an antidote motion
:11:24. > :11:26.stopping the clock, a notion of confidence in the government or
:11:27. > :11:36.anyone. So what can a Prime Minister do? Resign? And hand over government
:11:37. > :11:37.to the opposition? Camp they simply sit on their hands and force an
:11:38. > :11:47.election? Making that 14 day period pointless.
:11:48. > :11:52.Or can they use the 14 day period to shore up the government, trying to
:11:53. > :11:56.get an antidote motion themselves. How much of the time timber used to
:11:57. > :12:01.do that was either how many times than they fail? To get an antidote
:12:02. > :12:11.motion? Nobody knows the answers to these questions. All raised by the
:12:12. > :12:15.2011 act. In my e-book, I set out some theories about this, that
:12:16. > :12:21.basically fall into two families, the free choice theory and the duty
:12:22. > :12:26.to resign theory. But nobody knows. The courts could not decide, of
:12:27. > :12:29.course, because of a mixture of the fact that the old rules and
:12:30. > :12:35.conventions which the courts don't enforce. And because no-confidence
:12:36. > :12:39.votes will be proceedings in Parliament, shielded from litigation
:12:40. > :12:42.by article nine of the Bill of Rights. It would be madness for the
:12:43. > :12:47.courts to decide these things. You can be sure that under the
:12:48. > :12:51.Fixed-Term Parliaments Act, politicians would make up the new
:12:52. > :12:56.rules as it suited them. That is what is wrong with this system.
:12:57. > :13:00.Again, it would give the sitting Prime Minister the power to decide
:13:01. > :13:08.what he or she wanted to do in that situation. For example, the Prime
:13:09. > :13:16.Minister might want to force an election. Or a startling PM might
:13:17. > :13:22.rather install a new government. And prevented from seeking an election.
:13:23. > :13:28.-- and prevent it from seeking an election. Forcing a minority
:13:29. > :13:36.government. For example, a PM who narrowly lost a majority in June
:13:37. > :13:39.might rather seek to form a Coalition which had views on
:13:40. > :13:45.boxer-macro, she might have to prefer to force an unworkable
:13:46. > :13:50.rainbow Coalition on the country, frustrated at every turn and if she
:13:51. > :13:55.had just short of a majority, deny it any chance to seek an increased
:13:56. > :14:05.majority of its own. Even if that became a popular rainbow Coalition.
:14:06. > :14:13.In crisis situations... Various theories drawn on, ad hoc.
:14:14. > :14:27.Justifying what was expedient. It is not just a question of the act
:14:28. > :14:33.having mocked up no confidence motions, then Parliament act also
:14:34. > :14:40.has other motions. It used to be clear that if the government did not
:14:41. > :14:50.have the confidence of the House of Commons it had to resign. Say if it
:14:51. > :14:57.couldn't get the Queen's speech through... The budget. Tony Blair
:14:58. > :15:03.was cleared in 2003, if he had not one that notorious vote on Iraq, he
:15:04. > :15:13.would have had to resign. I do not think we can be as confident now. A
:15:14. > :15:17.theory abroad, no such thing as a matter of confidence, although
:15:18. > :15:28.statutory motions, under the fixed-term Parliament act. Ideas are
:15:29. > :15:42.already shifting. Behaviour, already shifting. You may think I am being
:15:43. > :15:47.mad, but conservative back benchers, threatening to repeal the Queen's
:15:48. > :15:54.speech. In the article, then journalist passed on information
:15:55. > :15:58.from the office, they told him defeats are no longer regarded as
:15:59. > :16:06.motions of confidence because of the fixed-term Parliament act. This has
:16:07. > :16:10.been affecting the House of Commons, MP behaviour, that amendment that
:16:11. > :16:17.the threatened in 2013. Actually, and agreed amendment to the Queen's
:16:18. > :16:21.speech in 2013. Not what they used to be. That is because of the
:16:22. > :16:30.fixed-term Parliament act. Another example. The Syria vote, 2013. I
:16:31. > :16:38.thought it was shocking. The government could not carry the
:16:39. > :16:46.policy on war and peace in 2013. Bot the response of David Cameron, we
:16:47. > :16:56.should carry on merrily. Things have been broken, by this act. If you
:16:57. > :17:02.think about it, if the government doesn't have to resign if it loses
:17:03. > :17:08.its Queen's speech, and why shouldn't it is not a matter of
:17:09. > :17:16.confidence, when does it ever have to resign? When you realise, with
:17:17. > :17:24.this theory on the fixed-term Parliament act, never a duty to
:17:25. > :17:29.resign... That cannot be correct. We have broken something in the
:17:30. > :17:36.Constitution. That makes my case against the act. One more thing I
:17:37. > :17:42.want to cover. We are often told by supporters of the act, no going
:17:43. > :17:49.back. Even if people like me when the argument, that the act is a
:17:50. > :17:55.mess, failure, you cannot go back because the prerogative that the
:17:56. > :18:02.Queen had to dissolve parliament is gone forever. Because of that idea,
:18:03. > :18:10.from the statute that covers a ground, a bridge, certain giving
:18:11. > :18:18.prerogative powers on the same subject. It is said that the
:18:19. > :18:21.prerogative is dead. And if we got rid of the fixed-term Parliament
:18:22. > :18:27.act, we would need to get some new statutory system. I think that is
:18:28. > :18:35.wrong. Before I explain why it can be repealed, I want to let you no
:18:36. > :18:42.what it remains me of. A story Michael Foot told in 1980. He was
:18:43. > :18:48.talking about his youth, he saw a magician in Plymouth. He said he
:18:49. > :19:02.wanted a beautiful watch from the audience. And when he got this, he
:19:03. > :19:09.would wrap it in a hanky, take out a hammer, smash it to smithereens.
:19:10. > :19:13.Then he would say, I am sorry, I have forgotten the rest of the trip.
:19:14. > :19:17.That is what the principal people who got us the fixed-term Parliament
:19:18. > :19:22.act and we have done to the Constitution. It could be broken,
:19:23. > :19:33.but we cannot mend it. That is not correct. A repeal can work. Repeal
:19:34. > :19:43.has the effect of providing any law that was changed by the act. In this
:19:44. > :19:47.case, fixed-term Parliament act. Prerogative powers are no different
:19:48. > :20:00.from other common law. Rules... Spring back to life. Put back by
:20:01. > :20:05.statute, spring back to life. If you are not convinced by that, some keys
:20:06. > :20:14.authority on this. People are going to remember the GCHQ case, from the
:20:15. > :20:21.1980s. That went to the House of Lords. Some of fell away in the
:20:22. > :20:24.first instance. That unions had been arguing that the prerogative to
:20:25. > :20:33.manage the civil service had been abolished by legislation in 1927,
:20:34. > :20:44.subsequently repealed. They said it had not survived, was dead. The High
:20:45. > :20:49.Court rejected that argument. They ruled a statute may abridge,
:20:50. > :20:54.restrict prerogative power. But it's such a statute is later repealed,
:20:55. > :20:58.the prerogative power with apparently really watch as it had
:20:59. > :21:07.existed before the statute. That can be done here. People sometimes say
:21:08. > :21:12.a-ha! Just look at section 16 of the interpretation act. That does
:21:13. > :21:22.prevent exactly this effect. The answer to that, you can easily get
:21:23. > :21:28.around section 16, I meeting Parliament intervention clear
:21:29. > :21:32.enough. We can go back to the old position. I think that we should,
:21:33. > :21:38.because any other statutory position from the government is probably
:21:39. > :21:43.going to be even less trustworthy. Gosnell, unilateral statutory power
:21:44. > :21:51.in the hands of the Prime Minister, like the recent Article 50. Never
:21:52. > :22:15.let them right Constitution. Thank you very much. Thank you. Something
:22:16. > :22:20.to say? Thank you very much for organising this. It came out of a
:22:21. > :22:29.Twitter fight! But various otherwise. Come and have it out in
:22:30. > :22:38.public. It has changed since then because of the Tory pledge to repeal
:22:39. > :22:46.the act. You spent two thirds saying it was bad. I am going to reverse
:22:47. > :22:57.that. Defend it briefly. Then explain why they cannot go back. It
:22:58. > :23:07.would be extremely unwise just to repeal it. So... I accept my
:23:08. > :23:14.argument on this point, the prerogative may not be right, I am
:23:15. > :23:18.not arguing that I'm definitely correct, you are definitely wrong,
:23:19. > :23:23.as much as I would love to do that. But we have been discussing this
:23:24. > :23:27.with people and I decided we have got considerable doubt. That is my
:23:28. > :23:37.argument. We do not know for sure. We cannot know, simply not a
:23:38. > :23:50.definitive answer. That is because it never has actually happened. I do
:23:51. > :23:54.not think the GCHQ case... That is at least as far as I know, from
:23:55. > :23:57.Twitter when I asked that. Nobody could come his when that actually
:23:58. > :24:25.happened. Claiming it would be a messages,
:24:26. > :24:49.seeking the declaration that no prerogative of the solution. The
:24:50. > :24:52.better course but better still, I suspect that the more government
:24:53. > :24:58.lawyers look into this, the more likely they would be to add files to
:24:59. > :25:05.reason me that repealing act would not be what the legal uncertainty,
:25:06. > :25:11.the prerogative still there. Not what the hassle, getting through the
:25:12. > :25:19.grumpy Parliament, occupied with the legal challenges of Brexit. And
:25:20. > :25:26.definitely not worth litigation. It would be a doomed attempt, could
:25:27. > :25:32.look foolish but a one off. Does she really want to do that? I am going
:25:33. > :25:39.to spend a few minutes just briefly defending the act. But I am not
:25:40. > :25:48.going to go into all the arguments about those descendant the
:25:49. > :25:57.prerogative. First... Does the episode of Theresa May, and the
:25:58. > :26:02.selection, getting people to vote so readily, sure that the act is not
:26:03. > :26:10.worth the paper it is written on? It is true that some of the arguments,
:26:11. > :26:18.whether it puts a stop to or make less frequent early elections. Nick
:26:19. > :26:30.Clegg mentioned it would make politics short term. I always saw
:26:31. > :26:37.those as ancillary benefits. But if those were the reasons for
:26:38. > :26:49.supporting the act, I am only going to pause, because one particular set
:26:50. > :26:54.of circumstances Parliament voted to give Theresa the election. May we
:26:55. > :26:58.know that the Prime Minister 's are always going to get the assent of
:26:59. > :27:03.the House of Commons. If Labour are crushed in the next general
:27:04. > :27:08.election, and the Conservatives get no large majority, future leaders
:27:09. > :27:18.could look back on Jeremy Corbyn's decision to vote so readily, draw
:27:19. > :27:22.conclusions that may not be bitter. Turkeys voting for Christmas? We do
:27:23. > :27:27.not know. Political advantage always means that you can never avoid an
:27:28. > :27:35.election. Some circumstances could be put for a perfectly good case,
:27:36. > :27:39.the two thirds required. Secondly, the main reason for supporting the
:27:40. > :27:44.act was not because it made Parliament have fixed terms, matters
:27:45. > :27:50.better. The act was perhaps slightly misleading in name, sold. It was not
:27:51. > :27:55.to give Parliament fixed-terms but to change who have the power to
:27:56. > :28:01.dissolve parliament. Removing that from the Queen, the archaic powers,
:28:02. > :28:07.and give that to Parliament, specifically the House of Commons.
:28:08. > :28:10.Secondly, by requiring two thirds majority, the government losing a
:28:11. > :28:16.vote of confidence, to stop this being used for purely partisan
:28:17. > :28:21.advantage as it was routinely and openly used. Never any pretense. It
:28:22. > :28:27.have been used for the benefit of the governing party. We could time
:28:28. > :28:37.it when they wanted. It remains indefensible. It does remain
:28:38. > :28:39.indefensible that the government should have the constitutional
:28:40. > :28:45.advantage simply because it is in power. It is not the case in some
:28:46. > :28:52.countries and does not have to be in ours. Of course, an unwritten
:28:53. > :28:55.constitution, much of this comes about by accident, the particular
:28:56. > :29:01.set of political circumstances, none of that Timmy matters. I do not give
:29:02. > :29:08.about the motives. I think we were lucky to get real statutory
:29:09. > :29:11.prerogative. That was largely untouched. Certainly, through the
:29:12. > :29:20.new legal reform programme. To see it removed and replaced with
:29:21. > :29:25.a democratic studied. We should certainly not give it back. That is
:29:26. > :29:29.because, I think, perhaps, times I have read them all over the weekend,
:29:30. > :29:35.some of his worried about the doubt created by the impact of the act on
:29:36. > :29:41.the resignation commission is overdone. Even if not, it has been
:29:42. > :29:43.nearly 40 years since we last had a successful moat Toure motion
:29:44. > :29:53.in by Minister, in 1979. It may be 40 years until it happens again.
:29:54. > :29:57.There is uncertainty and what happens in circumstances where that
:29:58. > :30:03.happens again, is not a good enough reason to go back to the product. I
:30:04. > :30:07.would take issue with some of the particular uncertainties that Carl
:30:08. > :30:10.says are created. As Carl himself says, the reason he wants to go back
:30:11. > :30:15.where he is so happy about going back to the prerogative of governing
:30:16. > :30:21.by convention, is that conventions are flexible and adapt to new
:30:22. > :30:25.situations and change. It is why Karl likes. One of the reasons why
:30:26. > :30:31.conventions have to adapt is because of new legislation. He says he loves
:30:32. > :30:37.legislation for adaptability and then spends 50 pages boning the fact
:30:38. > :30:44.it might obtain. -- the pack fact it might change. If there was a period
:30:45. > :30:50.of uncertainty while the changes taking place. If there's a problem,
:30:51. > :30:54.fix it. If there's a problem in the draft, amended. If there's a problem
:30:55. > :30:59.in the convention, look at the Cabinet manual and Carl agrees that
:31:00. > :31:02.some problems are attributed to misinterpretations and blues
:31:03. > :31:09.drafting. Take a look at that again and also the parliament involved
:31:10. > :31:14.again. Try clarifying the goalie it in the act. This uncertainty has not
:31:15. > :31:19.become real life or 40 years, it's not a reason to go back to the
:31:20. > :31:26.prerogative. And prime ministerial partisan use of it. My final point
:31:27. > :31:29.is that Carl did not really mentioned that there are, of course,
:31:30. > :31:36.similar problems of uncertainty over whether in the convention whether
:31:37. > :31:40.the Queen is legally entitled, which is right to reduce the prerogative
:31:41. > :31:44.but constitutional scholars debated and disagreed over when the Queen
:31:45. > :31:51.could justifiably refuser dissolution. That was a letter in
:31:52. > :31:55.the 1950. It's not clear and it is contested. All of that meant that
:31:56. > :32:00.the norms that should guide the decision of an unelected moniker
:32:01. > :32:05.were open to doubt, an clear at least in some circumstances. That, I
:32:06. > :32:08.think, is worse than any uncertainty created by the interaction between
:32:09. > :32:13.the dissolution prerogative and the Convention of resignation, sorry,
:32:14. > :32:17.between the new act and the convention of resignation. It could
:32:18. > :32:21.mean the Queen having to make a real live political and very important
:32:22. > :32:25.decision to grant a dissolution. Now the convention is uncertain, leaving
:32:26. > :32:28.her real choice or advisers choice, that is unjustifiable in principle
:32:29. > :32:34.and if you care about the monarchy, places it in peril. I will not say
:32:35. > :32:39.much more because if the Tories win the next general election, this is a
:32:40. > :32:42.manifesto, the fact that some law professor has criticised the act
:32:43. > :32:47.will not stop Parliament repealing it. It seems as though manifesto, I
:32:48. > :32:54.thought, let's assume they probably will win: can they go back to the
:32:55. > :33:00.prerogative? I argue, this is at least uncertain. So I'm starting
:33:01. > :33:05.with a view basics. Parliament is softened, which means the statute as
:33:06. > :33:13.we know ranks higher than the prerogative and common law. So it
:33:14. > :33:20.can replace prerogative and four. This is known as the abeyance
:33:21. > :33:23.principle. It relates to the Miller negotiation. This poll 's superior
:33:24. > :33:27.force occupies the field, the probative is replaced. It's the
:33:28. > :33:36.question of what happens to that replace prerogative, what is its
:33:37. > :33:41.status in doubt? From the doctrine of parliamentary sovereignty that it
:33:42. > :33:45.can repeal any previous statute, Karl explains it at some length in
:33:46. > :33:52.his book" is the work on interpretation, obliterating the
:33:53. > :33:57.statute making it never existing. If Parliament can do it to the statute,
:33:58. > :34:03.must I submit, it must be able to do it to the perogative. If you argue
:34:04. > :34:12.otherwise, you with elevating the status of Acts above statutes. It's
:34:13. > :34:17.wrong and constitutional heresy -- perogatives over statutes.
:34:18. > :34:26.Parliament sovereign over prerogative powers. Parliament staff
:34:27. > :34:30.must be legally capable of doing the same thing to prerogative as
:34:31. > :34:41.statutes. Mainly, abolishing them, not putting into abeyance. Now, gas,
:34:42. > :34:49.there have been several cases -- yes, there have been several cases,
:34:50. > :34:56.including possibly Miller, in which courts talk about statutes putting
:34:57. > :35:00.prerogative and abeyance. They use the metaphor Carl talked about, the
:35:01. > :35:09.statute sits on top of the perogative like a carpet on top of a
:35:10. > :35:17.floor. As long as the statute is on, the Act can't be used. Repeal the
:35:18. > :35:23.statute and it's like lifting up the carpet, hey presto, the perogative
:35:24. > :35:29.is still there and believe it. -- underneath it. But. In a system
:35:30. > :35:33.where parliament is suffering, the question is what is Parliament's
:35:34. > :35:43.intention? What is the legislation done? In many cases it's silently
:35:44. > :35:49.obligated the field. Displacing the perogative. I would argue Parliament
:35:50. > :35:56.Gatley Bolasie perogative not just the place. Otherwise Parliament is
:35:57. > :36:03.not sovereign. So there isn't a case laying down, that is always the case
:36:04. > :36:03.when Parliament goes from AIDS Act goes
:36:04. > :36:16.Abeyance. -- it immediately renders it anyway and then it will be
:36:17. > :36:22.plainly unconstitutional. It would give prerogative a statement that
:36:23. > :36:26.even statute or repeal doesn't have. Parliament only put a new carpet
:36:27. > :36:30.down, it contains the floor itself. It is to replace the dusty
:36:31. > :36:41.prerogative floorboards with a smart new hardwood floor of statute. This
:36:42. > :36:46.Fixed-Term Parliaments Act is hardwood flooring. Carl illustrates
:36:47. > :36:52.this well in his book. Prerogative powers are not abolished once and
:36:53. > :36:55.for all, a statute displaces a prerogative only when in force. But
:36:56. > :37:02.to say they are not abolished is only another way of saying they
:37:03. > :37:10.can't be abolished. In turn, but as another were saying Palmer is
:37:11. > :37:13.legally incapable -- Parliament is incapable... That
:37:14. > :37:20.if Parliament and get rid of the statute, that may have never
:37:21. > :37:25.existed, it must be able to do the same for a prerogative. If you
:37:26. > :37:28.temporarily displace it, you are saying the House less power over the
:37:29. > :37:32.prerogative than it does over the statute. That must be wrong. It
:37:33. > :37:37.turns the doctrine of sovereignty on its head. Finally, as a matter of
:37:38. > :37:40.case law, the claimed that if Parliament had tried to abolish the
:37:41. > :37:46.prerogative it would provide if the act doing the abolition was
:37:47. > :37:53.revealed, it has not been shown to be the case. It may be right but
:37:54. > :37:57.it's never, unequivocally happened. In the GCHQ case that Carl mentioned
:37:58. > :38:06.that I am indebted to him for pointing it out, it was obvious to
:38:07. > :38:11.me that on the fact is the argument put forward by the trade unions in
:38:12. > :38:15.the 1927 act that prerogative was an abeyance was wrong. There was no
:38:16. > :38:20.surprise that point was lost. As he points out, the regulations
:38:21. > :38:23.introduced in 1927 act that supposedly put the prerogative into
:38:24. > :38:29.abeyance referred to the council put under the prerogative. The 1927 act
:38:30. > :38:34.was imposing minor restrictions on how those powers could be exercised.
:38:35. > :38:43.There was never any questions of abolishing it. It was not revived
:38:44. > :38:47.again. So, I think Parliament can abolish prerogative powers and
:38:48. > :38:51.colours want is only to say it can put in abeyance. When you come to
:38:52. > :38:57.the more difficult question, even if it was abolished, can a later part
:38:58. > :39:02.want to revise it? That is a difficult conceptual question. I
:39:03. > :39:06.would put my cell of the argument by saying that is the prerogative that
:39:07. > :39:11.actually gone has ceased to exist, then the later Parliament cannot in
:39:12. > :39:21.truth be reviving it, because there was nothing to revise. Bullets can
:39:22. > :39:25.do as the it with a statutory power. To say at a later Parliament can
:39:26. > :39:29.revive the prerogative is logically the same as saying the early
:39:30. > :39:37.Parliament could not abolish it. It is still there to be revived,
:39:38. > :39:38.somehow. Parliament providing it will only create statutory power,
:39:39. > :39:48.Parliament cannot create powers, prerogative powers, it only
:39:49. > :39:52.creates... So far I have only argued that Parliament can Parliament can
:39:53. > :39:58.get rid of prerogative. The final part is saying why it has. This is
:39:59. > :40:05.the evidence from the act. As I say, it depends on the act. The early
:40:06. > :40:10.triggers for dissolution, Parliament may not be devolved otherwise.
:40:11. > :40:15.Explanatory notes to that says the Queen will not be able to dissolve
:40:16. > :40:27.parliament in exercise of the prerogative. And even
:40:28. > :40:35.more spectacularly, Parliament was not abolished by this act. They are
:40:36. > :40:45.admissible as an aid to construction. Judges has given me a
:40:46. > :40:51.list of cases in which they have referred to construction. That is
:40:52. > :40:58.the -- that was noted in a House of Commons briefing paper where the act
:40:59. > :41:04.was introduced to remove the prerogative power of dissolution.
:41:05. > :41:11.Now, so, suppose it has been, suppose I am right or we don't know,
:41:12. > :41:17.what will happen is there was one -- the fixed Parliament act was
:41:18. > :41:22.repealed. And. My argument is, given this is never actually been tested,
:41:23. > :41:26.there is not a prerogative that has been revived, there must be
:41:27. > :41:35.substantial doubt as to what would happen. The House of Commons library
:41:36. > :41:39.briefing says what happened. The interpretation, you can argue either
:41:40. > :41:47.way, does it apply to prerogative? Not clear, it suggests. That they
:41:48. > :41:50.wouldn't provide. You can perhaps, by providing the contrary intention.
:41:51. > :41:51.I don't think the interpretation of the act is decisive either way on
:41:52. > :42:04.that. The local governor of -- what would happen because I could
:42:05. > :42:12.you would be left with no mechanism of dissolution at all. You might
:42:13. > :42:18.argue, there would be a legal void and law would be a vacuum. I would
:42:19. > :42:22.say no, if there was no mechanism for dissolution than the mechanism
:42:23. > :42:27.is there in an act. I thought Theresa May had lost, if she hadn't
:42:28. > :42:32.been given the two thirds of majority and Labour had turned it
:42:33. > :42:36.down, if she hadn't gone to no confidence her own government, she
:42:37. > :42:42.could have done, that was likely, the Bristol next step would be the
:42:43. > :42:48.act to threaten the House of Lords, a terrible thing happening
:42:49. > :42:53.immediately straightaway, and in light of that, the safe clause is to
:42:54. > :42:57.replace the Fixed-Term Parliaments Act with statutory. There must be
:42:58. > :43:01.considerable doubt as to whether the prerogative still exists or not.
:43:02. > :43:06.There was one final slam dunk which says why you can't have a
:43:07. > :43:15.straightforward repeal, it's because if you repeal the tap-in you would
:43:16. > :43:20.be indefinitely extended -- if you repeal the Fixed-Term Parliaments
:43:21. > :43:24.Act you would extend Parliament. This is because the five-year limit
:43:25. > :43:29.on Parliament was provided by section seven of the bomb attack.
:43:30. > :43:34.Both of those works -- Parliament act. Both of those are repealed by
:43:35. > :43:37.the act. That sets out a five-year limit on file. So repeal the
:43:38. > :43:44.Fixed-Term Parliaments Act and this just carries on.
:43:45. > :43:56.He you read the extending the life of Parliament indefinitely. Under
:43:57. > :44:04.section 21 no limit on the powers does not extend to extending the
:44:05. > :44:08.way. Full veto rights. I would argue that the convention would not apply.
:44:09. > :44:15.Because of the fact that what would be going on, government would be
:44:16. > :44:27.extending the life of Parliament. Not expecting intelligent voters to
:44:28. > :44:30.go digging round. And no mandate, clearly, four extending the life of
:44:31. > :44:34.Parliament. This bill has got to do something. I think we have set out
:44:35. > :45:34.the arguments. Good evening. I am glad to see what
:45:35. > :45:39.you past the selected tests, not everybody could get in! You would
:45:40. > :45:49.imagine that the members of the panel, speaking, some going outside
:45:50. > :45:55.to jeer, calling them failures! We are always accused of doing that. It
:45:56. > :45:59.is done incessantly by the opponents of selection by ability. The
:46:00. > :46:01.principle of that debate, pretending we do not