Standards of Behaviour and Honesty in Political Life

Lord Butler of Brockwell Excerpts

Thursday 23rd June 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, this is the second successive Thursday on which the House has called on the noble Lord, Lord True, to demonstrate his skill at the Dispatch Box in batting on a sticky wicket. Without dissenting from anything that has been said in the debate, I may surprise him by offering the Government some support about the mechanics of upholding ministerial standards, albeit with a major qualification.

I do not think any of us would challenge the proposition in the Motion in the name of the noble Lord, Lord Morse, that a

“reduction in the standards of … honesty in political life”

has an

“impact on the democratic process”.

Various studies, including one reported by the Committee on Standards in Public Life, indicate the public view that Ministers and MPs have poor ethical standards in comparison with others who deliver public services, such as doctors, teachers, judges and local government officials. Such a loss of confidence between the Government and the governed is very serious.

However, here is my support for the Government. The Government’s response, published on 27 May, to the Committee on Standards in Public Life’s recommendations on the Ministerial Code, seems to me largely right, despite criticisms in the media. The Government have taken a measure to introduce gradations in the penalties for breaches of the Ministerial Code. I have long felt that the view that any breach of the code, however trivial, requires a Minister’s resignation, is wrong. The Government have now said that minor breaches can be dealt with by lesser sanctions such as loss of salary or even an apology. I welcome this. The Prime Minister mishandled Sir Alex Allan’s report into alleged bullying by Priti Patel. Instead of rejecting his conclusion that there was a degree of bullying for which there was ample evidence, the Prime Minister could have accepted that but not required such a severe sanction as her resignation. If he had, the complainants could have had a remedy and the Prime Minister could have retained the services of Sir Alex Allan.

The second recommendation in the committee’s recent report on ministerial interests, which the Government have partially accepted, is that the adviser on ministerial interests should be able to initiate investigations. The Government have accepted this, subject to the adviser consulting the Prime Minister. Many have criticised the requirement for the Prime Minister’s approval, but it seems realistic. The adviser’s investigations are unlikely to make progress in government if the Prime Minister has not authorised them.

The Government rejected the recommendation that the various regulators of ethics—the independent adviser on ministerial interests, the Commissioner for Public Appointments, and the Advisory Committee on Business Appointments—should all be put on a statutory basis and their powers backed by legislation. The Government do not like that recommendation because they want these matters to be governed in the political sphere. Legislation would bring the courts and judges in on the act. Again, I have sympathy with the Government’s view, but this is where I have an important proviso. The public will accept that allegations of ministerial misconduct should be dealt with in the political sphere only if they have confidence they will be dealt with fairly and rigorously. I am afraid that the Prime Minister has lost the public’s confidence over this, through his handling of the cases of Priti Patel and Owen Paterson, and through his own behaviour.

Since the Government’s Statement of 27 May, we have had the resignation of the noble Lord, Lord Geidt, and the Prime Minister is reported to be considering whether and how the post needs to be replaced. I am sure that a replacement is needed because, if a Minister’s conduct has to be investigated, the Prime Minister cannot convincingly do it himself. There is a need for an independent person or body to carry out the investigation if its results are to carry confidence. I speak with some experience when I say that it should not be the Cabinet Secretary, or any other civil servant, who carries out that investigation. Sue Gray was put in a very difficult position when she was asked to investigate whether the Covid rules had been broken by the Prime Minister or her own Civil Service boss. It has become apparent from the Geidt episode that if the Prime Minister’s own conduct is under scrutiny, judgment on it cannot be made by his own adviser. The outcome is bound to be unhappy: either the Prime Minister goes, or the adviser does. The Prime Minister’s conduct has to be dealt with by his own party, by the Cabinet or, ultimately, by the electorate.

In terms of the Motion in the name of the noble Lord, Lord Morse, I have no doubt that recent events had an impact on our democratic life, and it is a damaging impact. I also believe that no system of regulation will be adequate unless our leaders themselves demonstrate high standards. There is an old saying that a fish rots from the head; that is why we need to be concerned about the matters we are discussing today.

Houses of Parliament: Co-location

Lord Butler of Brockwell Excerpts

Thursday 16th June 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I join others in thanking the noble Lord, Lord Norton, for instituting this debate. I join the noble Lord, Lord Balfe, in thanking the noble Lord, Lord Norton, and the noble Lord, Lord Cormack, for the work that they do on the Campaign for an Effective Second Chamber. There is no doubt that the noble Lord, Lord Norton, today made a devastating case as to why the effectiveness of not only this House but Parliament would be greatly damaged if the House of Lords was no longer collocated with the House of Commons.

It is not the first time that I have felt some sympathy for the noble Lord, Lord True, in having to defend the indefensible. I have no doubt that he will do it with his usual skill and good humour, but I feel the discomfort that might have been felt by a citizen of ancient Rome sitting in the Colosseum waiting for a poor Christian to face a lion—or in this case, a pride of Lions. It is an impossible case to make.

However, I do the Government the compliment of believing that they are serious about the levelling-up agenda. So although I share the indignation that many of your Lordships have expressed about the Government’s handling of this issue, we are right to discuss seriously the pros and cons of the suggestion that the House of Lords should be moved outside London and separated from the House of Commons.

I agree very much with the noble Lord, Lord Stoneham, that a main fault of our parliamentary system as it works today is that the House of Lords is already too separate from the House of Commons. This would inevitably be made worse by moving the House to a separate location. I have always believed that the basic construct of our Parliament is a good one. The House of Commons is rightly the main battleground between the political parties, but its Members are understandably preoccupied by the need to get re-elected and by looking after the demands of their constituents, which are inevitably increasing these days. The fact is—and we are all aware of this—that the House of Commons does not give sufficient time to the scrutiny of legislation. The House of Lords, consisting of appointed people with a wide range of experience and expertise, is able to fill that gap, as well as being able, through our Select Committees, to provide well-informed and authoritative reports on issues of the day.

I agree with the noble Lord, Lord Norton, that, if our system works perfectly, the two Houses complement each other. It should be a dream partnership, but we all know that, sadly, in practice it does not work that way—although I contend that, beneath the surface, it works more effectively than is often recognised.

The starting point, which I know from long experience in the Civil Service, is that all Governments regard the whole of Parliament as an inconvenient but necessary fact of life. As far as the Executive are concerned, Parliament, like the courts, is an institution which prevents or makes it difficult for Governments to do some of the things that they want to. From the Executive’s point of view, Parliament has to be manoeuvred around, appeased, cajoled, persuaded or just driven. A Government with a good majority, reinforced by their extensive powers of patronage, generally get their measures through the House of Commons, but they cannot count on doing so in the House of Lords, where they have no overall majority. It is true that the Government can use their majority in the Commons to overturn amendments passed here, but, nevertheless, the House of Lords is an irritant to the Executive. On our side, there is also frustration. We in the House of Lords often feel that the Executive in the other place overturn our amendments without sufficient consideration and without much respect for the painstaking debate and discussion which has taken place here.

Yet below the surface, Parliament perhaps works better than even we who are Members of it perceive. It partly does so because of the easy and informal access that Members of this House have to Government Front-Benchers responsible for taking legislation through the House, and to the channels of communication that those Front-Benchers provide to the departments sponsoring legislation. I know from experience that the noble Lord, Lord True, is a good example of that. That is the means, rather than debate in the Chamber, whereby improvements to legislation are very often made. As others have said, we have valuable Joint Committees with the House of Commons and some joint pre-legislative scrutiny, although not as much as many of us would like.

Apart from the practical difficulties that would arise from putting the House of Lords in a different location from the House of Commons—and those have been well described today—the benefits of collocation often unseen by the general public would be lost to our parliamentary system if the House of Lords was moved to a different location.

Of course, our parliamentary system could work better; it needs improvement and some major reform. But I am convinced that the working of Parliament as a whole would be made worse, not better, by moving the Lords to a location different from the House of Commons. That, as the noble Lord, Lord Norton, said, is an important constitutional point. I do not believe that there will be sufficient advantage to the levelling-up agenda to offset that damage to our national life.

Upholding Standards in Public Life

Lord Butler of Brockwell Excerpts

Wednesday 8th June 2022 Lords Chamber

[Lord True (Con)]

My Lords, the Government have a responsibility to respond, to consider, and to bring to Parliament the considered results of their reflections on the advice that they are given. As I told the House earlier, the important report that we are discussing was presented last November; we have made some responses and more will follow shortly.

[Lord Butler of Brockwell (CB)]

My Lords, the Minister says that it is only six months since the committee’s report was published. Why is it taking so long for these recommendations to be considered and what processes are being undertaken to consider them?

[Lord True (Con)]

My Lords, far be it from me to advise a former Cabinet Secretary on what processes take place within government. There are matters to consider, which are considered by appropriate departments that may be affected. It is not unusual for a period of six months to pass—even in relation to a report from this particular committee. I could cite other cases, but the important thing is that we come forward with a considered response, which is precisely what I have undertaken to do.

Elections Bill

Lord Butler of Brockwell Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

Those are just three examples but the point is simple. There ought to be a requirement. The Committee on Standards in Public Life is where I rest my case, in a way; it has been absolutely clear about this. There is a strong case for requiring parties to make these checks. Businesses have to do it, and rightly so. The checks, as I have shown, are not onerous, with a £7,500 limit. I would not argue if the limit were £10,000, but I would not go beyond that. The fact is that it is not onerous on the parties. There is plenty of evidence that requires us to see that these checks take place, so that tainted, dirty money does not come into British politics. The Minister will have to have a much better answer than the noble Earl, Lord Howe, had; otherwise, I might push this.

[Lord Butler of Brockwell (CB)]

My Lords, I have added my name to the amendment of the noble Lord, Lord Rooker, and I really need to add very little to what he has said. It is very difficult to see why there should be opposition to a requirement that political parties should have

“a reasonable and proportionate risk-based policy for identifying the true source of donations.”

The Government’s answer to this, which the noble Earl, Lord Howe, gave in Committee, is that there has to be a balance. It is clear, however, that where the balance is now is not satisfactory, because, as the noble Lord, Lord Rooker, said, there have been a series of donations to all political parties that have been not to the credit of the parties, not good for their reputations and not good for the reputation for cleanliness of our politics.

As I understand the position, the Government have not ruled out acting on the recommendations of the Electoral Commission and the Committee on Standards in Public Life, but regard this as a complicated matter—perhaps it is—and need more time to work on it. If the noble Lord, Lord Rooker, seeks to test the opinion of the House, I will support him. I would be gratefully comforted, however, if not only the Minister but the spokespeople for the other political parties said tonight that they duly take this issue seriously and regard donations from foreign sources and people who want to influence our politics in an unhealthy way as a growing danger to our politics. If the spokespeople for the parties and the Government will say that they take this seriously, and the Government do not rule out acting on the recommendations of the Electoral Commission and the Committee on Standards in Public Life in due course, I will be very comforted.

[Lord True (Con)]

My Lords, I was thinking that others would wish to intervene, but that does not appear to be the case.

These are important amendments, but I shall not encourage anyone to think that the Government will accept them. The context is a shared concern about dirty money, a phrase that the noble Lord, Lord Butler of Brockwell, used. I do not think any Government have been stronger in response to the Russian invasion, or in bearing down on oligarchs, than this Government. However, following our robust debate in Committee, I am pleased that we are again returning to this important issue of political donations. I do listen to contributions of noble Lords and these debates will certainly serve as a key reference point for the Government as they keep rules on political donations under review, to ensure that they continue to provide an effective safeguard that protects the integrity of our political system. In that context, the Bill bears down very heavily on foreign donations and makes them much harder.

Turing to the specific amendments tabled by the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Rennard, Amendment 63 would remove the rights of overseas electors to make political donations. Amendment 69B would place a £7,500 limit on any donation or series of donations from overseas electors. I fear that many will not be surprised when I reiterate that the Government cannot support these amendments, as we intend to uphold the long-standing principle, first introduced by the Committee on Standards in Public Life itself in 1998, that if you are eligible to vote for a party, you are also eligible to donate to that party. These amendments would overturn that principle by removing the right of overseas electors to donate. Overseas electors are British citizens who have the right to vote and, despite what the noble Lord, Lord Grocott, said, the Labour Party has acknowledged that for many years. They are reasonable participants in our democracy. Furthermore, due to the interaction of Amendment 69B and the existing legislation, there would be no provision for either the return of donations exceeding the £7,500 threshold or the reporting of such donations to the Electoral Commission. This leaves a significant gap, which means that the amendment would simply not have the intended impact.

The Government do not support the proposal of the noble Lord, Lord Sikka, to which I listened carefully. It was fair for him to set out his case because he wishes to establish an independent committee to report on the creation of a foundation for democracy. The concept here, however, which is where agreement falls away, is that he submits that this body should be responsible for collecting all donations made to registered political parties and mandatorily allocating them based on membership and vote share at certain elections. The Government can find no justification for this amendment and believe it would place unreasonable restrictions on an individual’s freedom to donate to the political party of their choosing. It would go against the fundamental principle of allowing members of the public to get involved in our democracy by giving their support, be it at the ballot box, via a cup of coffee or via donations, to any party or parties that they choose.

Moreover, this proposal would risk disproportionately penalising smaller parties, which may not have such high levels of membership and vote share as the larger parties, but form an integral part of our democracy. Indeed, it is not clear to me how any new parties would emerge under the noble Lord’s system, as they would not be able to fundraise for themselves and would therefore struggle to get their message out to the public to encourage members to join and voters to support them in the future. The Government are therefore simply not convinced that there is a demand or evidence to support the noble Lord’s radical idea; nor do we think it necessary to establish an independent committee to come to this conclusion. Should other parliamentarians share the noble Lord’s view, the existing framework of parliamentary committees obviously provides an ideal place to consider the proposal further, so I urge the noble Lord not to press his amendment.

Next, I turn to Amendments 66 and 68, spoken to by the noble Baroness, Lady Bennett, and the noble Lord, Lord Sikka, which address a similar theme. Amendment 66 would seek to cap donations that any one individual or organisation can make to a political party to 5% of that party’s maximum campaign expenditure limit at the preceding election. This cap would apply to all donors, whether individuals or organisations, such as trade unions for example. What effect would it have on a large trade union donation?

Amendment 68 would require the Government to publish a report on proposals to establish state funding of political parties and limitations on private donations. In essence, the noble Baroness and the noble Lord are seeking the Government’s views on these two fundamental principles. I will underline our position.

First, fundraising is a legitimate part of the democratic process. Consequently, there is no cap on political donations to parties, candidates and other types of campaigner but, instead, strict limits on what they can spend on regulated campaign activity during elections. These maintain a level playing field in elections. In particular, the noble Baroness’s amendment has the potential to create a very uneven and complicated playing field. Under the proposal, each political party will have different amounts it can fundraise, given that spending limits are calculated according to the number of constituencies it contests. New political parties in particular, again, would be affected and this change could encourage quite unnatural growth, whereby new parties are incentivised to contest seats they have no intention of winning to give them a more competitive funding limit in the next cycle. I will not be drawn on what percentage of a party’s overall donation might be permitted because the Government simply do not accept that there should be such a percentage figure.

Secondly, there is absolutely no public support for expanding the level of public funding already available to political parties. The Government are not going to go down that road.

Finally, I wish to address Amendment 69, retabled by the noble Lord, Lord Rooker. This would introduce requirements, as he said, for registered parties to carry out risk assessments and due-diligence checks on donations. Only those with a legitimate interest in UK elections can make political donations and there are strict rules requiring companies making donations to be both incorporated and carrying out business in the UK. Parties must check that companies meet these criteria. It is also an offence to circumvent the rules through proxy donors—for example, an impermissible donor seeking to make a donation through a company that is itself a permissible donor. Political parties must already report all donations over a certain value to the Electoral Commission, which are then published online for public scrutiny.

The Government have heard the concerns that donors may seek to evade the rules and, in principle, the point of strengthening the system to provide greater levels of assurance on the sources of donations to ensure they are permissible and legitimate is important. Indeed, the Government recently published, ahead of introducing necessary legislation, the Corporate Transparency and Register Reform White Paper.

Reforms to Companies House will deliver more reliably accurate information on the companies register by introducing mandatory identity verification for people who manage or control companies and other UK-registered entities, providing greater powers for Companies House to query and challenge the information it receives, and introducing more effective investigation and enforcement powers for Companies House. This, in combination with a new power for the Companies House registrar proactively to pass on relevant information to law enforcement and other public and regulatory bodies, including the Electoral Commission, will indirectly support the enforcement of the rules on donations by providing greater confidence in the accuracy of the data held at Companies House, including when seeking information on UK-registered companies and other UK-registered entities that have made political donations.

The Government have not dismissed the fact that this is a significant area, which is why we are instituting these reforms to corporate transparency, but for the reasons I have outlined to the House on various amendments, I urge that noble Lords consider not pressing their amendments.

Dissolution and Calling of Parliament Bill

Lord Butler of Brockwell Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I have mixed feelings on this occasion. As the House may remember from my remarks on Report, I always thought that our amendment to the Bill that we passed back to the Commons was a second best. I also regret, as the noble Lord has just said, that the monarch should be left as the only protection against the misuse of the prerogative power to ask for a Dissolution of Parliament. I wish that we had decided not to pass the amendment that we did but instead had removed Clause 3 from the Bill, but we did not. I hope that no trouble will come from this, but I fear that it could.

[Lord Cormack (Con)]

My Lords, I fear that if we had removed Clause 3, although I was very sympathetic to that line of argument, as the noble Lord knows, we would have had the same result. The Commons, whipped, would have sent back the Bill with Clause 3 reinserted. We should not delude ourselves.

Both noble Lords on the Cross Benches performed a signal service. It was right that the noble and learned Lord, Lord Judge, should take the initiative that he did. I supported him then, and I would support him again, but not tonight, because we both made it plain, as did others, that this had to be the decision of the House of Commons. I think Members have made an unfortunate and potentially dangerous decision, bearing in the mind the delicate position of the monarch. I am very sorry they have deleted the wisdom that we inserted into the Bill. But it has, and there for the moment is an end to it.

Constitutional Reform

Lord Butler of Brockwell Excerpts

Monday 21st March 2022 Lords Chamber

[Lord True (Con)]

Yes, my Lords, I think your Lordships’ Constitution Committee makes outstanding contributions to all thinking on constitutional matters. As I indicated in my previous answer, we are seeking approaches to always create good relations—as far as we can—between the different Administrations of these islands. That means good will, and every party has to show that good will.

[Lord Butler of Brockwell (CB)]

My Lords, the measures that the Minister referred to were for the most part unilateral initiatives on the part of the Government. What has happened to the proposal in the Conservative Party manifesto—and of other parties—for a commission on the constitution, which would involve much wider consultation?

[Lord True (Con)]

My Lords, I have indicated previously to your Lordships’ House that the Government are determined to take the various aspects of constitutional consideration forward; I gave the House examples of the different workstreams. I simply do not agree with the noble Lord that there is not cross-party agreement on certain things. For example, the removal of the Fixed-term Parliaments Act was agreed across the House and the principle of it was subject to very extensive consultation and examination.

Elections Bill

Lord Butler of Brockwell Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

In considering the policy and strategy statement to be written by the Secretary of State, telling the Electoral Commission what it may and may not do, will the Minister tell the Committee which political parties and which organisations have supported this principle and which have opposed it? As far as I can tell, support comes from only one party. All the independent organisations concerned with the health of our democracy have opposed there being such a statement.

[Lord Butler of Brockwell (CB)]

My Lords, since the Minister will no doubt address the question that the noble Lord, Lord Collins, raised, perhaps I may just add a supplementary. In addition to asking what problem Clauses 14 and 15 address, why is a strategy and policy statement thought the necessary solution to it?

[Lord Kerslake (CB)]

My Lords, may I add a further supplementary question? In the Written Ministerial Statement, the Minister in the other place, Chloe Smith, said:

“In recent years, some across the House have lost confidence in the work of the Commission”.—[Official Report, Commons, 17/6/21; col. 11WS.]


Perhaps the Minister can tell us whether that is the view of some across the House of Commons or of the Government? Is this change about an issue of confidence or is it something different?

--- Later in debate ---

[Lord Butler of Brockwell (CB)]

My Lords, I am very grateful to the noble Lord for giving way. His complaints against the Electoral Commission may be justified, but can he explain how a strategy and policy statement from the Government would put the matter right?

[Lord Hayward (Con)]

The noble Lord intervenes at a highly apposite time. I said at the start of my contribution that I was conflicted. All I wanted to do was set the record straight in relation to the Electoral Commission as I and others have experienced it. A number of noble Lords have said that these clauses do not solve the problems that might arise from any behaviour of the Electoral Commission. That is why I am conflicted. I do not believe these clauses solve the problem. I believe there are problems with the Electoral Commission and that Mr Pullinger and his new organisation will tackle them, but I do not believe that these clauses solve the problem.

The noble and learned Lord, Lord Judge, regularly reminds us of Henry VIII clauses. I regard this as a Henry II clause: “Who will rid me of this troublesome priest?”—or, in this case, this troublesome regulatory body. I am sorry, but I cannot read those clauses without thinking that in some malevolent hands they will be misinterpreted by some Government or another.

I was an electoral observer in 2018 in a country I know well because I completed the whole of my university career there—Zimbabwe. I met the Zimbabwe Electoral Commission and challenged it on the way it operated that election. I would like to be in a position to suggest that it use and operate our law. Could I honestly do that with these two clauses as they stand?

I come back to the position on which I opened. I am conflicted. I would like to see what the noble Lord, Lord Scriven, identified: the clear operation of an electoral commission that produces independent, fair, free elections. That I could commend to the Zimbabwe Electoral Commission. I hope that, when it comes back, this legislation will be something that I could recommend. As it stands, with these clauses, I could not.

Elections Bill

Lord Butler of Brockwell Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, I want to make a Committee point, if I may. Even though I agree with the general statements that have been made about the deep undesirability of Clauses 14 and 15, and the danger they represent to the reputation of this country as a guardian of democracy, my noble friend made quite clear that we would want to see those clauses removed but also indicated his support for the noble Baroness’s amendments, which would ameliorate those clauses slightly if the Bill were to retain them. I am very keen that the Bill does not retain them.

The amelioration has its limits and, in that context, I want to remind the Committee of the report of the Constitution Committee on the Bill in this respect. Paragraph 39 says:

“We are concerned about the desirability of introducing a Government-initiated strategy and policy statement for the Electoral Commission. The proposal will open up to risk the independence of the Commission … it would be dangerous if the perception were to emerge that the Commission is beholden to the Government for its operation and delivery.”


The weakness of the noble Baroness’s amendment, which I know is well intentioned, is that the statutory status of the statement remains and she creates a rather interesting situation, which I had not seen in legislative form before, in which the commission can carry out what the Government suggest if it already agrees with them, which would be a new kind of statutory position. The fact is that there would still be a statement that had some degree of statutory authority behind it.

Governments and governing parties can always criticise what the Electoral Commission says and does and have shown little hesitation about doing so over the years. There has never been a limit on the ability of the Conservative Party to say what it disagrees with in the Electoral Commission’s work. But to create a statutory process, even with the consultation involved, and produce from that a statement which explicitly or implicitly appears to bind the Electoral Commission is highly dangerous. I see that statement as addressing priorities of the commission. Is the commission spending too much time on political finance and donations? Is it spending too much time trying to register groups of people in this country? Should it spend more time trying to find more overseas voters? Such issues are not things on which we want to see the Electoral Commission steered by a statement that has any authority from statute. Let parties both in government and outside it continue to express their views and, indeed, their criticisms, but do not build into our statutory system that kind of statement.

[Lord Butler of Brockwell (CB)]

My Lords, I put my name to the amendment in the name of the noble Lord, Lord Wallace of Saltaire, which my noble and learned friend Lord Judge will move this afternoon. As I may not be able—depending on the progress of business—to speak then, it may be for the convenience of the Committee if I make a very short intervention now.

I spent last night reading the illustrative example of a strategy and policy document issued by the Government in September. This document is no doubt designed to reassure but we are left with the question of how much further this clause gives an opportunity to a Government to go in regulating the activities of the commission. That is the subject that should worry us.

Elections Bill

Lord Butler of Brockwell Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, it is a great privilege and a pleasure to follow the noble Lord, Lord Moore, and to be the first to congratulate him on his delightful maiden speech. The noble Lord acknowledged that it has been a long time coming, albeit with good reason. I think the whole House will agree that it has been worth waiting for and that it amply fulfilled the expectations of those who have previously spoken.

As with John Morley always being remembered for his Life of Gladstone, when we are all forgotten, the noble Lord will be remembered for his biography of Margaret Thatcher. Like many others, I gave him such help as I could in that endeavour, in the belief that I was contributing to the objective and definitive history of that time. My trust was never abused and was amply rewarded by the outcome. It is our good fortune that the stimulus and enjoyment which the noble Lord gives us each week through his columns in the Spectator and the Telegraph will be extended to his contributions in this House. I hope we will receive them on a similarly regular basis.

I want to make three short points about the Bill. First, I regret that it has not been subject to pre-legislative scrutiny or, even better, a Speaker’s committee in the other place. It is desirable that legislation on this subject should be submitted to the views and contributions of all parties and, if possible, introduced with all-party agreement. If that does not happen in the Commons, it invites partisan disagreement in this House, and it is clear from the speeches that have already been made that that has not happened. For that reason, it will encounter more difficulties in this House than it otherwise would have done, which is regrettable.

Secondly, we live in a time in which the means of distorting information available to voters have grown hugely in their reach and influence. It is necessary for legislation to protect voters, as far as possible, against the intervention of those with the means and resources to subvert the democratic process, whether that subversion comes from state actors or other interest groups. In this context, the Bill is inadequate. As has been stated, it does not address the concerns expressed by the Intelligence and Security Committee or, more recently, the Committee on Standards in Public Life and the Foreign Affairs Select Committee in another place, about the dangers of secretive campaign finance coming from foreign sources. In passing, I cannot help referring to the paradox that, in my time in government, we used to worry about subversive finance from Russia to the Labour Party; now we worry about subvention from Russia to the Conservative Party.

Seriously, however, I ask the Minister to tell us what the Government are doing about these reports, particularly in current circumstances. I say with all due respect to him that it is not sufficient to say that the Government always consider the advice they get from wise committees and then do nothing about it. These committees are indeed wise. As those of us who serve on Select Committees and other committees find, they take a great deal of evidence and receive contributions from experts, and they need to be taken seriously. There is not likely to be another opportunity for legislation on election issues during this Parliament, and so these matters need to be dealt with in the Bill. The committees that have made recommendations need and deserve a serious response from the Government before the Bill is considered. I mention particularly the threat through unincorporated associations identified by the Committee on Standards in Public Life, and I ask the Minister in his response to deal with that.

Finally, the Electoral Commission is the instrument through which we seek to ensure a level playing field. Like others, I remain to be persuaded that it is necessary for the Executive to interfere with the independence of the commission through a strategy and policy statement, especially one prepared by the Government, with their own majority in the House of Commons and their own electoral interests. I hope that the House will look very carefully at that provision in the Bill.

Dissolution and Calling of Parliament Bill

Lord Butler of Brockwell Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Howard of Lympne (Con)]

The noble Lord talks about a resolution, but what he previously said was that the courts could not be imagined challenging any decision that obtained a majority in the House of Commons. It was to that observation that I replied. There are many examples and I refer him to the Hansard of Monday’s debate.

[Lord Butler of Brockwell (CB)]

My Lords, I rise briefly to support my noble friend’s amendment, but with reservations. My reservation is that which has been put forward by the noble Lord, Lord Howard. It is not inconceivable that a Government could be hamstrung by failing to get a majority in the House of Commons and could not get their programme through. I believe that there should be restraints on the improper use of the power to dissolve. We are all agreed that it should not be the sovereign and there are dangers in it being a resolution of the House of Commons. That is why I will argue for the removal of Clause 3 so that in the last resort there can be resort to the courts.

[Lord Cormack (Con)]

My Lords, the removal of Clause 3 would be the second-best option. The noble Lord, Lord Butler, knows that I was sympathetic when he raised this point at Second Reading. Like my noble friend Lord Howard, with whom I frequently agree but not today, I apologise for not being here in Committee. I was attending a farewell dinner for a friend who had given some 20 years’ service in his post and I felt that, as I had spoken at Second Reading, I could reserve what I wanted to say for Report. I strongly support what the noble and learned Lord, Lord Judge, said, in his balanced, measured and eminently sensible speech.

To give unfettered power to any individual is a very serious thing indeed. I believe that it is important that this House today gives the other place an opportunity—an opportunity that it did not take when the Bill was with it. It is important because things have moved along quite a lot, not least with the intemperate, frankly bullying and certainly unconstitutional threat of Mr Rees- Mogg, which was one of the worst utterances that I have heard in my 50 years in Parliament from any leader or indeed any senior Minister of the Crown.

We know—I know from personal experience—that you do not need a general election if there is a change of Prime Minister. Harold Wilson resigned in 1976 and was replaced by Jim Callaghan. The election in which Mrs Thatcher had her triumph came three years later. Mrs Thatcher retired—or left—and was replaced by John Major without a general election. David Cameron, contrary to his promise to carry on, a few hours after the referendum result indicated that he was going and was replaced by Mrs May without either a general election or a party election for a leader. Those are historic facts. I believe that it is very important that the House of Commons should have a say in this.

I agree very much with what the noble Lord, Lord Grocott, said about the Fixed-term Parliaments Act and I bid it farewell without any sadness. Although my noble friend Lord Howard is right in a theoretical sense that of course anything can happen—we can all think of extreme things happening—I honestly do not believe that it is at all likely that you would not get a majority in the House of Commons, perhaps a slender one, one way or the other.

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[Lord Norton of Louth (Con)]

My Lords, on the assumption that the Government invite the Commons to disagree with the amendment we have just passed, I move Amendment 2 and speak to my other two amendments in this group. I pursued these in Committee and believe their importance is such as to merit returning to them on Report.

As I argued in Committee, the provisions of Clause 3 that are covered by my amendments conflict with the Government’s aim to restore the constitutional position to that which existed prior to the enactment of the Fixed-term Parliaments Act. They are also objectionable in principle. It is this point I wish to pursue.

In Committee, the Minister, my noble friend Lord True, sought to justify both the use of “purported” and the inclusion of paragraph (c). He advanced a “thin edge of the wedge” argument: the clause is necessary because

“the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.”—[Official Report, 25/1/22; col. 233.]

The courts are viewed by the Government as having encroached in certain cases on the exercise of the prerogative where vested in Ministers. Because the courts have gone beyond what the Executive wished, they wish to prevent them straying further in respect of the Dissolution of Parliament. As my noble friend emphasised, the use of “purported” is to make it plain that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.

My contention is that the fear underpinning the provision is unfounded. The cases cited by my noble friend are not sufficient to show that the courts would ever go near the exercise of the prerogative where the Dissolution and calling of Parliament are concerned. As my noble friend reminded us in Committee, Lord Roskill said, in 1985 in the GCHQ case, that the Dissolution of Parliament was

“not susceptible to judicial review”.

Indeed, Lord Roskill identified what he referred to as “excluded categories”, comprising prerogative powers that by their “nature and subject matter” were

“such as not to be amenable to the judicial process.”

These included

“the dissolution of Parliament and the appointment of ministers”.

I regard the powers not exercised on advice as the ultimate excluded categories.

In Committee, I moved an amendment to put on the face of the Bill that the prerogative power to dissolve Parliament and call an election was a personal prerogative power of the monarch, not exercised on the advice of Ministers. There would therefore be no advice for the courts to consider. The prerogative powers not exercised on advice are such as to put them in a class of their own as there would be no purported exercise or purported decision. If the personal prerogative is revived, the use of “purported” has no relevance. This is not addressed in the letter from my noble friend Lord True to the noble Baroness, Lady Smith of Basildon.

If the argument is that the prerogative is now a statutory power and that is the route through which a challenge may be mounted, the problem with the use of “purported” is that it enables Ministers to go beyond their powers. Let us be clear as to the meaning of “purported”: it means that something has been stated to be true or to have happened, even though that may not be the case. My noble friend Lord True argued that the use of the word would not constitute a precedent—we have seen evidence already this week of its use in another measure—but I am not persuaded that it is desirable in principle to embody such a provision in statute. As he said, it may be a bespoke solution, but it is a bespoke solution in plain sight. It is constitutionally objectionable, as potentially it conflicts with the rule of law. That should concern us all. It should certainly concern everyone on this side of the House. It is a fundamental tenet of Conservative belief that institutions are subject to the rule of law, which regulates definitively the relations between citizens and applies equally to the governors and the governed. A stable social order is dependent on the maintenance of the rule of law.

Furthermore, there is nothing to suggest that the courts would ever wish to entertain interfering in the process given the repercussions that my noble friend Lord True outlined in Committee. Those scenarios would be as unpalatable to the courts as they are to your Lordships. As he recognised in Committee, there are political checks and balances at work, and, where there are, the courts stay clear. That was apparent in respect of the so-called Sewel convention, when the Supreme Court declared that

“policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary.”

The provisions before us are unprecedented. As the noble and learned Lord, Lord Hope of Craighead, said in Committee, the objection is to the use of “purported” and the words in paragraph (c). As he made clear, there is no objection to say that the court or tribunal may not question the powers referred to in Clause 2.

As I said in responding to the debate in Committee, when my noble friend Lord Faulks argued that the clause was necessary to keep the courts out of politics, I take the view that the clause, or rather the words that I seek to delete, are designed to keep the courts out of the law. Take out “purported” and paragraph (c) and the problem is solved. One is then keeping within, and indeed promoting, the rule of law.

The provisions of the clause cover a situation that is so unlikely to ever occur for the reasons I have given—indeed, if it is a personal prerogative power of the monarch, it cannot occur—that it does not justify conferring powers that are so objectionable. The remoteness of it ever occurring is such that it would be better to wait and deal with it at the time. The doctrine of parliamentary sovereignty is not in doubt. As the late Lord Bingham argued, it is immanent in our constitution. As one of the measures being repealed by this Bill—the Early Parliamentary General Election Act 2019—demonstrates, Parliament can move with some speed to achieve the outcome it wishes. That is beyond doubt. There are precedents for Parliament enacting within 24 hours a Bill to overturn a court judgment.

Parliament by the very doctrine of parliamentary sovereignty is entitled to enact the provisions of this clause. What it can do is not necessarily what it should do. Retaining the purported exercise of powers and any purported decision within the clause, along with paragraph (c), is either redundant or it clashes with a basic tenet of the constitution. If the latter, it is objectionable in principle and unnecessary in practice. I would hope that a Conservative Government would take the high road and accept these amendments.

[Lord Butler of Brockwell (CB)]

My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable.

My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is

“legislating against shadows, against figments of the imagination.”—[Official Report, 25/1/22; col. 227.]

I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary.

If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment.

We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission.

I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises.

This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation “against shadows”, but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.

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Moved by

[Lord Butler of Brockwell]

5: Clause 3, leave out Clause 3

[Lord Butler of Brockwell (CB)]

My Lords, I too am very grateful to those who have taken part in this debate.

This for me is a matter of principle. It is wrong, as the noble Lord, Lord Pannick, the noble and right reverend Lord and the noble and learned Lord, Lord Hope, said, that there can be no protection from the courts against the improper use of executive power. My hackles rise when I hear the Minister use the phrase “The courts are not permitted”—“This legislation is to ensure that the courts are not permitted to look at this matter”. In response to the noble Lord, Lord Grocott, this is not an issue of the courts preventing the people having a say in an election. It is about the courts preventing the illegitimate or illegal use of executive power. That is what the issue is.

I believe it is vanishingly unlikely that the courts would become involved in this matter—I am now just answering the point made by the noble Lord, Lord True. I would be prepared to have a lifelong bet with him that this situation will not arise in his or my lifetime. However, the courts can look after themselves. They do not need the protection of legislation in this matter; it is indeed for the courts to decide the merits of issues and not for the Government to legislate in advance to prevent them doing so.

Therefore, because this for me is a matter of principle, and because I would like, in case the amendment we previously passed is overturned by the House of Commons, the opportunity to return to this on ping-pong, I beg leave to test the opinion of the House.