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manifesto stated that the party that wins the election intensity repealed | :01:19.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