Dissolution and Calling of Parliament Bill

Lord True Excerpts

3rd reading
Thursday 24th February 2022 Lords Chamber

Moved by

[Lord True]

That the Bill do now pass.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I thank your Lordships’ House for its expertise and careful work on the Bill. It has again demonstrated the constitutional, legal and political expertise that makes this House such a remarkable revising Chamber. The Government have valued those exchanges, as have I. I particularly thank the noble Baroness, Lady Smith of Basildon, the noble Lords, Lord Kennedy of Southwark, Lord Wallace of Saltaire and Lord Butler of Brockwell, the noble and learned Lord, Lord Judge, and the Front Benches for their co-operation and discussions.

We disagreed on the question of whether there should be a role for the other place over Dissolution. However, although we do not believe it is good practice for this place to seek to dictate procedure in the other place, we will of course now properly await their further opinion on this point. The Government will oppose your Lordships’ amendment in the other place, for all the reasons that I set out during the passage of the Bill. Our intention was to repeal the Fixed-term Parliaments Act, and that remains our intention.

In conclusion, I thank the dedicated Bill team for its hard work over so many months, which I am sure was appreciated by colleagues on all sides. I thank all noble Lords who have taken part for their dedication in scrutinising the Bill and for their courtesy in our many meetings. It has been an honour to assist the Bill’s passage and serve your Lordships, and I beg to move that the Bill do now pass.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, on behalf of my noble friend Lady Smith of Basildon, who is unable to be with us this morning as she is having a briefing at the moment, I thank the noble Lord for his usual courtesy in dealing with the House and for taking this Bill through it. I also thank the Bill team for the meetings that took place. As he said, we have had scrutinised the Bill well and made one change. We have sent that back to the other place, and we will wait for it to come back to us, and then we will have further debates on that. I know my noble friend is very grateful for the co-operation we have received on the Bill going through. I sat in on many of the debates, and the other Benches were fascinating to listen to. I think we have done our job well and properly, and we await the decision of the other place. I give our thanks to the noble Lord, other Members, the officials and the team in the Labour Whips’ Office for what they did.

Elections Bill

Lord True Excerpts

Wednesday 23rd February 2022 Lords Chamber

Moved by

[Lord True]

That it be an instruction to the Committee of the Whole House to which the Elections Bill has been committed that they consider the bill in the following order:

Clauses 14 to 27, Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 6, Schedule 4, Clauses 7 and 8, Schedule 5, Clauses 9 and 10, Schedule 6, Clauses 11 and 12, Schedule 7, Clause 13, Schedule 8, Clause 28, Schedule 9, Clauses 29 to 36, Schedule 10, Clauses 37 to 46, Schedule 11, Clauses 47 to 51, Schedule 12, Clauses 52 to 65, Title.

Motion agreed.

Elections Bill

Lord True Excerpts

2nd reading
Wednesday 23rd February 2022 Lords Chamber

Moved by

[Lord True]

That the Bill be now read a second time.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I see that there is a large number of speakers down today. That is a testament to the importance of the subject matter underpinning this Bill. Without any offence to anyone, I particularly look forward of course to hearing the maiden speech of the noble Lord, Lord Moore of Etchingham.

The Government committed in their manifesto to secure the integrity of elections, restore constitutional balance and defend our democracy against increasingly sophisticated threats. I am therefore pleased to come before your Lordships for the Second Reading of this necessary Bill, which is a key part of that work.

We have a remarkable democratic heritage, because it has evolved and adapted with time, and overcome new threats and challenges. But it does not do that entirely naturally; it is down to the stewards of that system to actively preserve it—and, at this time, that includes your Lordships. That is why the Bill is necessary, and it is not without careful consideration that we take these steps. The Bill is the product of a number of reviews and reports, and fulfils a number of long-standing commitments.

Part 1 focuses on the administration of our elections—specifically, and most critically, on the principle that all those who are able to vote can do so easily and with confidence in the integrity of their ballot. In the Commons, we heard many times from the Opposition that this is a non-issue and that fraud within our system is not a problem. I am sure we will have the opportunity to discuss that in Committee, but we on this side must respectfully disagree.

Part 1 of the Bill therefore introduces what many consider to be an obvious requirement: the requirement to prove that you are who you say you are before you cast your vote. Everyone is challenged now as to their identity before they vote. Showing photo identification is a reasonable and proportionate way of proving your identity. It is something that we are often required to do in everyday life. Many people would question why it is not already the case; in fact, a recent Electoral Commission report was clear that the majority of the public say that a requirement to show identification at polling stations would make them more confident in the security of the voting system.

Not everyone has a passport or a driving licence, as I have seen inferred in some reporting of the provisions, so I want to underscore at the outset today that it is not just those forms of identification. Set out in the Bill is a broad range of identification that will be accepted. The Bill also makes provision for free voter cards to be produced and made available by local authorities to those electors who require them.

Noble Lords are rightly keen to understand the detail of the secondary legislation in this area and how the card will be administered. I bring to noble Lords’ attention the policy statement published in January by the Minister of State at the Department for Levelling Up, Housing and Communities, which sets out how the new requirements will work, including the application and rollout process that we envisage for the voter card. These proposals have been tried and tested, and not just via the pilots that we ran in 2018 and 2019.

Voter ID is used across the world, including in most European countries and in Canada. Indeed, it is not even a new concept in the United Kingdom, having been in place in Northern Ireland since 2003, when it was introduced by the then Labour Government. We therefore have an empirical example of how the rollout of such a measure can work. In fact, we know that not only has it been operating with ease for decades, it has been successful in upholding the integrity of elections.

Many across this House and the other place—again, this is an area that I expect to engage with in Committee—also have concerns about the integrity of absent voting methods. That is why the Elections Bill will also introduce measures to combat electoral fraud, and to ensure the integrity of the ballot in other ways. Voting by post and voting by proxy are essential tools for supporting voters in exercising their rights. They must remain available options for voters who may not wish to, or cannot, vote at a polling station.

It is not currently possible for electors to register for an absent vote online; those who wish to apply must do so via a paper form that is then posted to their local electoral registration officer. This is surely out of step with the process of registering to vote generally, which can be done online using the Register to Vote digital service for ease and convenience. The Bill therefore provides for an online service through which applications for an absent vote can be made. Identity verification for absent vote applications will be applied to paper applications as well as to applications made online. This will ensure that those applications are legitimate and the absent vote application process more secure, resilient and efficient for both electors and electoral administrators.

In addition, the Bill introduces further reasonable safeguards against the abuse of postal and proxy voting that will not complicate or hinder the process. They include new limits on the number of postal votes that may be handed in by any one individual, and provisions making it an offence for political campaigners to handle postal votes issued to others, unless they are family members or carers of the voter.

Of course, stealing someone’s vote is not always personation or taking someone’s postal ballot. There are also those who wish to intimidate or pressure people to cast their vote in a certain way, or not vote at all—something that is surely wholly unacceptable in any community in this country, in any part of this country, in the 21st century. The existing legislation on this, known as “undue influence”, which originated in the 19th century, is difficult to interpret and enforce. Through the Bill we will provide greater clarity to the police and to prosecutors, making sure that there can be no doubt that it is an offence to intimidate or cause harm to electors in order to influence their vote.

Part 1 also delivers the manifesto commitment of continuing our support of the first past the post voting system, and changes the voting system for police and crime commissioners, combined authority mayors and the Mayor of London from the confusing and overcomplicated supplementary vote system—

[Noble Lords]

Oh!

[Lord True (Con)]

—to the tried and tested simple majority voting system, also known as first past the post. I knew there would be a great deal of interest in those provisions on the Liberal Democrat Benches. In the 2011 nationwide referendum— I hesitate to remind them—two-thirds of voters voted in favour of retaining first past the post for parliamentary elections. It is therefore only right that we are consistent in our approach to voting systems and reflect the view of the British people in these important elections. The change to first past the post will provide clear local accountability in a readily understandable way: the person chosen to represent a local area will be the one who directly receives the most votes.

Finally, in Part 1, we are ensuring that in choosing to cast their ballot in the polling station, those who require additional support to navigate that system can receive it. How that support is provided, and for whom, is important. This, again, is a matter which I know we will discuss in some detail.

One size does not fit all, and often serves only to narrow the scope and responsiveness of the system. That is why the Bill is introducing key changes from our call for evidence on access to elections. It will require returning officers to respond to local need and provide each polling station with equipment as is reasonable to support voters with a range of disabilities. We are also extending the definition of who can act as companion to anyone who is aged 18 or over, so as not to limit those people who may require assistance in voting.

Part 2 of the Bill pertains to the franchise. The Government’s manifesto included a commitment to

“make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights.”

The Bill will fulfil this commitment. The existing time limit is anachronistic in an increasingly interconnected world. Most British expatriates retain deep ties to the United Kingdom. The Bill will therefore extend the franchise to all British citizens who have been previously registered or resident in the United Kingdom. In addition to that, the changes will facilitate participation by making it easier for overseas electors to remain on the register, with an absentee vote arrangement in place ahead of elections. This will also benefit those who administer elections.

Also relating to the franchise, Part 2 updates the voting and candidacy rights of EU citizens who reside in the United Kingdom, moving to a more reciprocal model fitting of an independent sovereign state. We stand by our commitments to those EU citizens resident here before our exit from the European Union. EU citizens who have been living in the United Kingdom since before the end of the implementation period on 31 December 2020 will retain their local voting and candidacy rights, provided they retain lawful immigration status. This goes well beyond our obligations under the withdrawal agreement and gives the lie to those who claimed that leaving the European Union was an act of xenophobia. For EU citizens who have moved to the United Kingdom following EU exit, local voting and candidacy rights will be granted on the basis of bilateral agreements with individual EU member states, which will reciprocate arrangements for British citizens living there too.

The third part of the Bill relates to the Electoral Commission, including reforming the accountability of the commission to the UK Parliament while respecting its operational independence. It was my noble friend Lord Pickles who found in his review on electoral fraud:

“The current system of oversight of the Electoral Commission—by the Speaker’s Committee on the Electoral Commission—does not provide an effective third-party check on its performance.”


The review was clear that the Electoral Commission needed to change. Part 3 of the Bill therefore introduces a strategy and policy statement, which will set out guidance and principles that the commission must have regard to in the discharge of its functions.

I have read the Electoral Commission’s letter published on 21 February, and I cannot agree with the characterisation of these measures. The Electoral Commission will remain accountable to the UK Parliament and governed by their Electoral Commissioners. This Bill will not change that. The provisions of the Bill do not allow the Government of the day to direct the commission’s decision-making, nor will it replace or undermine the commission’s other statutory duties. This statement will be reviewed regularly and will be subject to parliamentary approval and, in applicable circumstances, statutory consultation. The UK Parliament will be able to reject in full any draft statement that it disagrees with.

The Bill also expands the remit of the Speaker’s Committee on the Electoral Commission and empowers it to scrutinise the Electoral Commission’s compliance with its duty to have regard to the strategy and policy statement. Through this, Parliament will be able to better scrutinise the work of the commission and together, these reforms will facilitate parliamentary scrutiny of the Electoral Commission’s work, while respecting its operational independence.

Part 3 also clarifies that the Electoral Commission may not bring criminal prosecutions, as prosecutions for electoral law should remain with the existing prosecution authorities. Our view is that the proper place for criminal investigations and prosecutions lies with the experts in this domain, namely the police and prosecution authorities. We must not forget that the commission has never brought a criminal prosecution to date, and this provision merely maintains that status quo in practice. This means that our measure will not add any additional burden on prosecution authorities or lead to fewer prosecutions.

On Part 4, we already have a comprehensive regulatory framework for electoral campaigning, which is rooted in the principles of fairness, transparency and the importance of a level playing field. We must ensure that our electoral law continues to uphold these principles. These measures take a proportionate and sensible approach to ensure that those campaigning at elections and seeking to influence voters are subject to transparency requirements and rules that effectively maintain that level playing field. By restricting all third-party campaigning above £700 at elections to UK-based or otherwise eligible campaigners, the Bill also removes the opportunity for ineligible foreign spending at UK elections.

There has been some suggestion that the Bill introduces a loophole to allow foreign donations to UK political parties. Again, I am sure that will be discussed. But I can assure this House that the Bill does no such thing. The measures in this Bill, together with existing controls on who can make political donations, provide a robust and transparent framework to ensure that only those with a legitimate interest in UK elections can spend money on campaigning or make political donations. Donations can only come from permissible donors who have a genuine interest in UK electoral events, such as UK-based or registered electors, UK-registered companies, trade unions or other UK-based entities.

The principle of transparency for the electorate is vital, but third-party campaigners subject to the new lower tier registration threshold will be subject to lighter touch regulation proportionate to smaller campaign spend. In a similar vein, the joint campaigning measures are simply intended to strengthen the principle of spending limits already in law that protect the integrity of the level playing field by ensuring that political parties cannot use campaign groups to unfairly exploit loopholes enabling them to expand their spending limit potential.

I wish to make it clear that our proposals on joint campaigning will capture the regulated election spending of political parties and third-party campaigners working together as part of a common plan, where the various groups are for all intents and purposes operating as a single group. They do not include political parties and third-party campaigners who are simply spending on the same issue or spending on campaigns that are not regulated by electoral law.

I am sure that many in this House will welcome the clarification of the law on notional expenditure included in the Bill that candidates and agents should only be liable for benefits in kind they have actually used, or which they or their election agent have directed, authorised or encouraged someone else to use on their behalf. This will ensure that candidates and their agents can continue to conduct full campaigns without the fear, as found by PACAC in its 2019 review into electoral law,

“of falling foul of the law through no fault of their own.”

Part 5 of the Bill introduces a new offence aimed at helping to protect candidates and others from intimidation. Without a broad range of candidates for voters to choose from, we would diminish representation in this country and stifle discourse. To harass someone or to commit an assault are of course criminal offences already, but this Bill takes it a step further, and ensures that a person who has been convicted of an offence of an intimidatory nature can be banned and stripped of the privilege of standing for public office themselves for a period of five years.

Finally, Part 6 of the Bill delivers on recommendations made by Select Committees and the Electoral Commission to improve public trust and confidence in digital political campaigns. These are very important provisions. They introduce a new digital imprints regime which will be one of the most comprehensive in the world, increasing transparency and empowering voters to make informed decisions about the material they see online.

Before closing, I turn to the legislative consent Motions relating to the Bill. We worked closely with the devolved Administrations in preparing the policies for drafting into legislation. In order to deliver the benefits of coherence and consistency across some of the measures in the Bill, for both reserved and devolved polls, we sought legislative consent from the Scottish and Welsh Governments. Respecting the subsequent request from the Scottish and Welsh Governments to remove all aspects which relate to devolved matters, we are preparing the necessary amendments and will bring these changes forward in Committee. I welcome the indication which both Governments have given that they will consider legislating comparably across a number of areas.

At the beginning of my speech I emphasised that we have a strong history of democratic excellence and a shared devotion to democracy that brings together people on all sides of this House, and that we have a duty to regularly take stock and make the necessary changes that make it fit for the modern age. The sensible and considered measures I laid out here today will continue this legacy and raise confidence even further in our elections.

I assure noble Lords that I will listen extremely carefully, as ever, to all contributions made today and that I look forward to engaging with noble Lords as the Bill goes forward. I commend this Bill to the House.

--- Later in debate ---

[Lord True (Con)]

My Lords, it sounds as if I had better get in some supplies of black coffee for the next few weeks. What a pleasure it is to see the noble Lord, Lord Collins, in his place. I know he has not been well because I reached out to him and hoped to have met him before now to talk about the subjects he has spoken about with such passion today. I hope that we can have that discussion, and I am very pleased to see him here. I listened with great care to what he said.

I also listened with care to the noble Lord, Lord Moore of Etchingham—I have to call him my noble friend. I was fascinated by his Hastings connection. He might be interested to know that my grandmother’s family came from generations of poor Hastings fishermen. Indeed, one of them was drowned off the Hastings coast —it was probably a good thing he did not have the noble Lord’s forebear in the boat at the time. In 1846, my great-great-grandfather built a little fishing boat and called it “Free Trade”. That was a good name then —it was an important year for free trade—and it is a good cause now. My goodness, we enjoyed the noble Lord’s speech today.

This debate has felt at times a little like being in that stall on the beach and getting too close to Mr Punch, but none the less, I give considerable thanks to all those who have spoken. Important points have been raised. It is my duty to try to address the concerns raised, not only today but in Committee. I would, however, like to say again that a great deal of work has underpinned this Bill and the measures within it. I agree with the noble Baroness, Lady Fox, that we should be careful of language. We have heard of a likeness to Belarus, Russia and so on. I take and consider concerns, but I reject the characterisation of this Bill as seeking to suppress votes.

The Bill is inspired by fundamental principles that guide our democratic system, including that people should be encouraged to vote. I agree with the noble Lord, Lord Woolley, that those who are entitled to vote should always be able to exercise that right freely, securely and in an informed way, and that fraud, intimidation and interference have no place in our democracy.

We have to adjust and reform our system—this is more than consolidation; I will come to that in a minute, but consolidation is different from reform—but I cannot promise the noble Lord, Lord Desai, that we will reform it in the way he suggests. There might be difficulties with smartphone voting, for a start. Practically, we believe that the measures we have discussed here today constitute a series of practical improvements to the electoral system. We have worked closely with the electoral sector experts, the AEA, and the Electoral Commission to ensure that the provisions are designed properly. I remind noble Lords that the Electoral Commission is in support of voter identification.

The Minister responsible for the Bill, Kemi Badenoch, and her predecessor, Chloe Smith, took time to meet a wide range of organisations in the voluntary and community sector to inform policy decisions. These organisations have played a part in developing the details of secondary legislation and will continue to do so. I will come to the point made by the noble Baroness, Lady Barker, later in my remarks.

The noble Baroness, Lady Hayman, in what I thought was a very measured speech—I did not agree with it all but I am glad I had a bit of agreement from her on some parts of the Bill—asked about pre-legislative scrutiny, which has come up in the debate, and about post, a subject that I will come on to. The Government have always demonstrated a willingness to listen to and collaborate with stakeholders, but pre-legislative scrutiny is just one way in which the Government can take the views of Parliament as well as the electoral sector and other interested parties. The Elections Bill is a product of a wide range of views and engagement with the electoral sector, civil society, parliamentarians and the Parliamentary Parties Panel. Many elements have come directly from reports and reviews conducted by parliamentarians, such as the 2016 report on electoral fraud by my noble friend Lord Pickles. Four sets of measures in this legislation—namely, those on accessibility, overseas electors, intimidation and digital imprints—have also been directly the subject of government consultation. There are issues relating to accessibility that I will return to.

In addition to that, ahead of bringing forward the legislative proposals for voter identification, we undertook a range of voter pilots in 2018 and 2019 that were independently reviewed by the Electoral Commission. Furthermore, we proactively sought the input and expert eye of those with detailed knowledge of elections operation. I echo the tribute paid by my noble friend Lord Hayward to those who operate elections—people who will be impacted by the measures in the Bill. Since the announcement of the Bill, it has also received scrutiny from the Joint Committee on Human Rights and been debated in the other place, including four evidence sessions.

The noble Baroness, Lady Hayman, asked if I would give a statutory commitment to a post-legislative scrutiny requirement in the Bill. I am afraid I cannot go that far, but I will say that it is standard practice for the Government to conduct post-legislative scrutiny of Acts following Royal Assent. In this case it will be important to allow some time for elections actually to take place so that we can effectively review the impact of the legislation.

The Bill already makes provision to evaluate the impact of implementing voter identification following the first three sets of elections. The Electoral Commission already has a statutory duty, unchanged by the Bill, to undertake reports on the administration of each parliamentary election, so a specific statutory requirement risks not allowing for the necessary flexibility to report following elections as they happen. However, I undertake to the noble Baroness that we will enable the House to follow these developments carefully.

The noble Baroness asked, as did my noble friends Lord Hayward and Lord Hodgson and others, why we are not consolidating electoral law. This is a reform rather than a consolidation, but we remain committed to ensuring that electoral law is fit for purpose into the future. We acknowledge that the process of consolidation is a long-term project desired by many. It would take significant consideration and policy development, and the Government’s immediate priority is to deliver this Bill. However, it is a request of which the Government are aware.

Many noble Lords queued up in the debate to say that the provision regarding voter identification was unnecessary. I guess the argument is that not many burglaries take place and have not happened recently in our road. No doubt those who have that view will not be putting locks on their back door. In saying that it is unnecessary, I thought the noble Baroness opposite also appeared to say that she did not think we had done anything about postal fraud. The reality is that the Bill contains many measures to stop the theft of—

[Baroness Hayman of Ullock (Lab)]

In fact, it was meant to be the opposite.

[Lord True (Con)]

Ah, then I misheard. None the less, on cue I can tell the House that we are banning party campaigners from handling postal votes altogether; we are stopping postal vote harvesting; we are extending secrecy provisions; and we are requiring those registered for a postal vote to reaffirm their identities by reapplying for a postal vote every three years. I think I heard a general welcome and support in the debate for those provisions, and I am grateful for that. That was stated by the noble Lord opposite in his wind-up.

The claim that voter identification is unnecessary was addressed by my noble friends Lord Pickles, Lord Hayward and Lady Pidding and the noble Earl, Lord Leicester, among others. It would be remiss if we did not take action in this respect—action recommended by the independent Electoral Commission. It is also backed by international election observers, who highlighted vulnerabilities in our system and repeatedly called for introducing voter identification, saying that its absence is a security risk. I find it strange that the internationalist party par excellence does not pay any attention to those recommendations.

Showing photo identification is a reasonable and proportionate way to confirm that a person is who they say they are and something that people from all walks of life already do every day. Cabinet Office research shows that 98% of electors already own a photographic document. Everyone eligible to vote will continue to have the opportunity to do so and be encouraged to do so, and any eligible voter who does not have one of the many accepted forms of photographic identification, including lapsed identification, can apply for a free voter card from their local authority. Many members of the public have said in the pilots that they felt that the existence of voter identification increased their confidence in the security of voting.

I absolutely agree with my noble friend Lord Willetts, the noble Lord, Lord Janvrin, and others that we must encourage people and young people to vote. I have to say to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woolley, that we are not persuaded by automatic registration. No doubt, from hearing this debate, we will have the opportunity to discuss this in Committee. We think it contradicts the principle that individuals are properly responsible for registering themselves. That was one of the reasons we introduced individual electoral registration in 2014. The evidence shows that an individual system drives up registration and enhances the accuracy of the register. Online registration transforms the ease with which people can register to vote, and in March 2020, there were 47.6 million entries on the parliamentary registers in the UK—the highest number ever recorded. Instead of introducing a costly and potentially flawed system of automatic registration, the Government are committed to building on what we already have to make things better.

There was some criticism of the proposal to introduce first past the post to London mayoral and police commissioner elections. I will look carefully at Hansard but the noble Lord, Lord Kerslake, even seemed to challenge your Lordships to remove those provisions. I remind the House that these were manifesto commitments. The noble Lord, Lord Scriven, also said that there was no evidence of any problem. He said that we were accusing electors of not understanding what was going on. Let me give noble Lords some evidence. The Electoral Commission added that the rejection rate in May 2021 was 0.8% for local council elections; for police and crime commissioners, it was 2.7%; and it was 4.3% for the Mayor of London. In the 2021 London mayoral elections, conducted by supplementary vote, almost 5% of the total votes in the first round were rejected—114,000 ballots. In the second preference, 265,000 votes were invalidated. That is more votes than were validly transferred to the leading two candidates, Mr Khan and Mr Bailey. That is quite a significant problem, and I reject the view that there is no evidence for there being a problem.

The noble Baronesses, Lady Gale and Lady Humphreys, asked about Wales. As I said in my opening speech, I welcome the indication that the Welsh and Scottish Governments will consider legislating comparably across a number of areas. UK Government Ministers remain committed to working with our counterparts as they develop their own legislative proposals. On the strategy and policy statement, the Scottish and Welsh Governments have already recommended that the devolved Parliaments do not grant legislative consent to this measure. Therefore, we are preparing amendments, as I said at the outset, such that the statement must not contain provisions relating to the devolved functions of the commission.

The noble Lords, Lord Blunkett and Lord Thomas of Gresford—forgive me if there are others who I do not name; I have quite a lot to get through anyway—raised the important issue of assistance for blind and partially sighted voters. As noble Lords who are interested in the subject will know, the current difficulties arose partly because of the imperfections of the existing system that the noble Lord, Lord Thomas, spoke about, but there is also a court judgment that needs addressing.

The Government have had extensive engagement on this issue. I assure the House that we are ready to continue that. We are not removing the requirement to support blind and partially sighted voters; we are changing the way it is delivered to ensure that the needs of people with a wide range of disabilities are considered. Our approach will require returning officers to consider more varied and innovative support. That could be people using their own smartphones or devices in the polling station, or the use of a specific magnifier. There is not a one-size-fits-all approach. My colleagues in government and I look forward to further consultation and discussion on this very important subject.

Continuing on that, the noble Baroness, Lady Barker, raised engagement in relation to minority groups. My predecessor, Chloe Smith, conducted a series of round tables last summer with civil society groups, but I assure the noble Baroness that future engagement is also planned with groups that represent those with protected characteristics to work on supporting implementation planning and inform awareness-raising strategies. I will listen and ensure that my colleagues in government are aware of what the noble Baroness said.

There was a lot of discussion about overseas registration, not all of it favourable, although I was very moved by the speech of my noble friend Lord Lexden and his reference to Harry Shindler. The current position —that you are allowed to continue voting for 15 years —was established by the Labour Government in 2002, who determined that British citizens could continue to cast a vote. This did not seem such a shocking thing to the Labour Party then as it says it is now. I do not think that the principle it accepted then is invalidated by the removal of this limit. Why is it that 14 years and 364 days living abroad is fine, but at 15 years and one day Labour says, “We don’t want to know about you. You have no rights”? We believe that the connection that people have with their old country—their home country—does not end overnight in that way.

A suggestion was made by the noble Lord, Lord Rennard, that the franchise change is to increase political donations to the Conservative Party. I expect to hear some rumbles opposite. The issues at stake in the Bill are matters of principle.

[Noble Lords]

Oh!

[Lord True (Con)]

I knew they were coming.

There has been considerable demand for these reforms. Experts of all political stripes are keen to have their say on issues that affect them. The changes are about enfranchising British citizens and broadening their participation. Further evidence of the demand for votes is evidenced by the fact that, in recent years, many more overseas citizens have sought to exercise their voting rights under the current arrangements. In the 2015 general election, 110,000 British citizens living abroad were registered; for the 2019 election this had increased to 230,000. These electors come from all corners of the United Kingdom and are unlikely to share the same political persuasion.

Many noble Lords, starting with the noble and learned Lord, Lord Judge, in a typically notable speech, expressed concerns about Part 3 of the Bill. I have heard these concerns—although I have obviously been listening throughout the debate, I would have heard them even if I had just popped in. I hope to persuade noble Lords in Committee that those concerns are unfounded.

The Electoral Commission will remain operationally independent and governed by its Electoral Commissioners. As is the case now, the commission will remain accountable to Parliament, through the Speaker’s Committee on the Electoral Commission, which is chaired impartially by the Speaker of the House of Commons.

The noble and learned Lord, Lord Judge, quoted part of the offending clause, and someone else who spoke—perhaps it was the noble and learned Lord, Lord Judge—said that there was no requirement for the Secretary of State to even consult the commission. In fact, new Section 4C(2), inserted by Clause 14, says:

“The Secretary of State must consult the following on a draft of the statement … the Commission … the Speaker’s Committee … the Public Administration and Constitutional Affairs Committee … the Scottish Ministers … and … Welsh Ministers”.


He must reflect on those, and a proposal must be laid before Parliament, including your Lordships’ House. If your Lordships’ House or the other place have any doubts about it, it is within their power to refuse consent.

It has been suggested that the commission’s requirement to have regard to this statement is exactly the same as the Government directing the commission. With respect, I completely disagree. The statement will not allow the Government to direct the commission’s decision-making. The legal duty to have regard to this statement will not replace or undermine the commission’s other statutory duties. However, we see it as vital that we have an operationally independent regulator which can command trust across the political spectrum. The proposed measures are a necessary and proportionate approach to facilitate parliamentary scrutiny while respecting the commission’s operational independence. As I have explained, the Bill puts the UK Parliament at the centre of the processes relating to this statement, which will be subject to consultation at the relevant Select Committee.

The noble Lord, Lord Stunell, raised the CSPL recommendation to expand the commission’s regulatory powers to include enforcement of civil sanctions for candidate offences. It is important to note the local nature of offences under the Representation of the People Act, which means it is sensible for responsibilities related to candidates to lie with returning officers, local authorities and the police. Where appropriate, these can be referred to prosecution services and resolved through the courts. The Electoral Commission, by comparison, deals with wider scale campaigns run by political parties and third-party campaigners.

On Part 4, on expenditure, many noble Lords agreed with aspects of these proposals. However, I have heard the concerns raised by my noble friend Lord Hodgson of Astley Abbotts and others. I can assure my noble friend that we will be ready to engage. Charities and third-party campaigners subject to the lower tier expenditure limits will be subject to lighter-touch regulation proportionate to smaller campaign spend. They will not be subject to spending return requirements and donation reporting controls. This will ensure minimal regulatory burden for campaigners in scope. That said, it is completely reasonable to expect organisations spending significant amounts of money campaigning in our elections to follow rules and report their activity, even where they are regulated for other purposes.

I speak with great respect for the old and humane tradition of the Labour Party as the champion of working people, and the noble Lord opposite, the noble Lord, Lord Monks, very understandably expressed concerns about what the impact on trade unions might be. The new measures will not prevent any eligible UK-based group, including trade unions, campaigning. The measures are simply intended to strengthen the principle of spending limits already in law and protect the level playing field by ensuring that groups cannot unfairly expand their spending limits where they are conducting joint campaigns.

My officials met Trades Union Congress representatives about the Bill, but I totally appreciate the concerns of noble Lords. My officials and I welcome further discussions with noble Lords and stakeholders. I hope to reassure them and to consider any concerns that they have. In those conversations, I will address the points that the noble Lord, Lord Collins, made. I am committed to ensuring that all campaigners are clear about the rules and able to participate in our elections, as they always have been.

Noble Lords will be pleased that Parts 5 and 6—they may have noticed that I got only to Part 4—were generally supported. I thank noble Lords throughout the House and on the Front Benches opposite for that, and hope that the support will be sustained throughout the Bill. On that happy note for me, I conclude by again thanking all Peers who took part in this debate for their valuable contributions. We will read Hansard carefully. I look forward to engaging with them further, over a late black coffee if need be, and in more detail in Committee and throughout the remainder of the passage of the Bill.

Bill read a second time and committed to a Committee of the Whole House.

Representation of the People (Proxy Vote Applications) (Coronavirus) (Amendment) Regulations 2022

Lord True Excerpts

Thursday 10th February 2022 Lords Chamber

Moved by

[Lord True]

That the draft Regulations laid before the House on 10 January be approved.

Relevant documents: 27th Report from the Secondary Legislation Scrutiny Committee and 22nd Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument). Considered in Grand Committee on 8 February.

Motion agreed.

Dissolution and Calling of Parliament Bill

Lord True Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, this is the third time in your Lordships’ House that we have had a debate focused on this issue. At Second Reading, it was a key issue, as it was in Committee. It comes down to a fundamental point.

In the other place and, indeed, in your Lordships’ House, Ministers asserted from the beginning that bringing in this piece of legislation takes us back in some kind of parliamentary TARDIS to the status quo ante whereby we return to exactly the position that we were in before the Fixed-term Parliaments Act. However, in Clause 3, that argument is completely undermined by saying, “But just in case we haven’t got it right, we are going to have a clause that avoids any legal action”, and the so-called ouster clausem Clause 3. So the Government are not confident that the Bill without the ouster clause returns us to the position that we were in before.

The fundamental point, also made by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley, is that there is a choice. Do we accept on the calling of an election executive authority or parliamentary democracy? The huge flaw in the argument of the noble Lord, Lord Howard, is that he seems prepared to trust Parliament on every issue—matters of life and death, legislation and whether we go to war—but not on whether there can be a general election.

I heard the comments of the noble Lord, Lord Bridges, in exactly the same way as my noble friend Lord Reid. I wrote them down. He seemed to want to make a major constitutional change where power flowed from the ballot box to the Executive. The fundamental basis of our democracy is that power flows from the ballot box to the elected Chamber of Parliament, the House of Commons, and that the Government derive their authority from that House and are responsible to it.

On the point made by the noble Lord about denying the people a vote—that somehow, if the House of Commons were to vote not to have an election, we would be denying the public an opportunity to have their say—he is not correct, but is right on one point. In effect, there is a fixed or maximum term, in which it is not open to the House of Commons, the Prime Minister, or anyone else to never have an election. There is an end term to any Parliament, by which time an election must be held. It is not simply fixed in time. The argument is that previously the Prime Minister would be expected to go to the monarch. I doubt any of us wish to return to the situation where one puts the monarch in such controversy. We are all scarred by the unlawful Prorogation and how the Government behaved on that. It comes back to this point: do we have executive authority or parliamentary democracy in calling an election? There is nothing more basic for the House of Commons than that objective. Offering the other place an opportunity to vote on this issue avoids the need for Clause 3. The idea that the courts would involve themselves in a decision of Parliament to hold a general election is fanciful. This is an elegant and correct solution of this issue.

The noble and learned Lord, Lord Judge, referred to the issue of the former Leader of the House of Commons, Jacob Rees-Mogg, threatening MPs that if they failed to support the Prime Minister, the Prime Minister could call an election. If we are talking about hypothetical circumstances or crises that could occur again, that is certainly one, and should be guarded against at all costs, by not placing the power in the hands of just one person. We should not be surprised by such threats; noble Lords may recall that the current Leader of the House, early on in his parliamentary life, threatened your Lordships’ House with 1,000 extra peers if we failed to pass a piece of legislation he supported. Perhaps threats come quite easily to him.

We had a lengthy debate on this, which the noble and learned Lord, Lord Judge, summed up well at the beginning. When this was debated in the House of Commons, there was no lengthy debate, and there is an opportunity for them to reconsider this. When we debated it in Committee previously, my noble friend Lady Taylor said that she was surprised that the House of Commons gave away that power so easily. It may be because it did not discuss it in any great depth or with consideration. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Joint Committee was divided on the issue of whether it was appropriate or not. It is entirely appropriate that the House of Commons is given the opportunity to consider this again.

I come to one final point, which is that the noble Lord, Lord True, said at both Second Reading and in Committee that the Commons had not amended the Bill, so your Lordships’ House should not do so either. Last night, this House sat beyond 3 am, which is unusual. Today, to facilitate business, we are sitting at 11 am, on a much longer day. If it is not the duty of this House to pass amendments that the other end can consider, then what is the point? The amendment has our full support and I urge noble Lords to vote for it.

[Lord True (Con)]

My Lords, the request for a dissolution is perhaps the ultimate act of humility by an Executive. It is placing all that has been lent, first by the electorate, and then by Parliament, in the hands of the British people. That is the underlying thought behind what my noble friend Lord Bridges of Headley said, in what was a significant and important speech, as was the speech of my noble friend Lord Howard of Lympne.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

I am sure the Minister is aware that the House of Commons spent less than two hours in Committee, on Report and on the final stages of this Bill—so to say that it gave it considerable attention would I think be a slight exaggeration.

[Lord True (Con)]

My Lords, your Lordships are required to deal with the Bills that are sent to us by the other place, and the other place has sent us a Bill with no such provision. Members of your Lordships’ House under the chairmanship of my noble friend Lord McLoughlin on the Joint Committee, which reflected at length on these matters, did not propose such an amendment. None of those who have scrutinised the legislation formally have proposed what the noble and learned Lord has suggested.

The noble and learned Lord said that we could not return to an ancient system. There is perhaps a faint irony in advancing that argument in an unelected House with a tradition that dates back centuries. He said that we had to be 21st century. Well, we tried “21st century” in 2011 and, frankly, I rather prefer the experience of many decades in the long past which I believe served us well, and the proposition before your Lordships, supported by my party and the party opposite at the general election, was that we should do away with the failed 21st-century experiment.

We do not have to talk the talk about the problems that a Commons vote might cause. There has been a lot of speculation, to and fro, on this, but we lived it in 2017 to 2019; that Parliament refused three times to be dissolved and to meet the verdict of the people.

The repeal of the Fixed-term Parliaments Act was in our manifesto and that of the party opposite. I found it fascinating to hear the throaty roar of approval from the Benches opposite when any noble Lord, starting with the noble and learned Lord, Lord Judge, said that we must not go back to the situation before the Act was passed. I remind the party opposite, as did my noble friend, of the Labour Party’s promise to the people:

“A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments”.


They wish to maintain an essential part of that Act in the form of a Commons vote.

[Lord Reid of Cardowan (Lab)]

Can the Minister give one example of a spokesman from this side saying that we wish to retain the Fixed-term Parliaments Act?

[Lord True (Con)]

I fear I must say to the noble Lord, who I greatly respect and admire, that I simply stated a feature of the Fixed-term Parliaments Act that the party opposite wishes to retain: that there should be a Commons veto on Dissolution. That is what I said, and that is a fact. If the party opposite votes for this amendment, it will be voting for a House of Commons veto potentially on its own Dissolution—it is written there in the book.

[Lord Grocott (Lab)]

If the Minister is going to give us a history lesson on how people have acted and voted, could he remind us how he and his colleagues voted on the Fixed-term Parliaments Act?

--- Later in debate ---

[Lord True (Con)]

My Lords, I promised I would look up my personal record on that Bill. I have not done so, but I would be surprised if my name featured very heavily. Anyway, it is being done away with now, and I think the noble Lord and I agree that it should be done away with, whatever follows.

A vote in the House of Commons has created paralysis in a number of contexts and could create paralysis in many contexts. Some noble Lords have spoken on this, including my noble friends Lord Bridges and Lord Howard of Lympne, and the noble and learned Lord, Lord Brown. There could be minority Governments or situations where parties, Parliament or the nation have divided.

The kernel of the argument put forward by the noble Lord, Lord Grocott, and others is that their approach offers simplicity. In fact, it adds a complication to a Bill which is simple. Without going over the same ground, we saw that painfully in 2019, when the Labour Party was three times presented with the opportunity to force an election, and Mr Corbyn thrice denied the election to the Prime Minister and the British people by sitting on his hands. So do not tell me that there cannot be circumstances in which an Opposition would seek to prevent a general election. We have lived that system and I believe that my noble friend Lord Howard of Lympne, and indeed the noble Lord, Lord Butler of Brockwell, were absolutely right to warn that these circumstances could recur.

In Committee, I set out the negative consequences for the fundamental conventions on confidence. Simply put, the privilege to request that the sovereign exercise the Dissolution prerogative is an executive function enjoyed by virtue of the ability of the Government to command the confidence of the Commons. Our contention is that this simple process should not be unduly constrained by the type of process that the noble and learned Lord puts before us; it could be disruptive and unhelpful at times when expediency is essential.

[Baroness Taylor of Bolton (Lab)]

I am grateful to the Minister for giving way. He is talking about the use of executive powers. Is he concerned—I assume he is, because of Clause 3—that the courts might get involved in this and that that could cause serious constitutional conflict? Surely if the amendment proposed by the noble and learned Lord, Lord Judge, was accepted, that would reduce the need for the ouster clause in Clause 3?

[Lord True (Con)]

My Lords, I do not think it is an either/or question. If I may use a phrase that was once popular on the Benches opposite, there is third way, which is to have neither of those amendments and to return to the simple and proven practice of the past.

When we send an amendment to the other place, we are always adjured to be careful what we send and to show how we reflect and are thoughtful. I would like to consider some of the practical working of the proposition that the noble and learned Lord puts before us. There is little about that, despite its immense significance potentially for our constitution, and indeed its reversal of the Government’s manifesto commitment to repeal the Fixed-term Parliaments Act.

For example, the noble and learned Lord proposes that there should be a Motion that

“this present Parliament will be dissolved.”

How would this parliamentary process be sequenced and when would it apply? How would it relate to confidence? Would it also apply following a loss of confidence? Would a Prime Minister have to go for a further Motion? Could anyone put before the House of Commons the Motion proposed by the noble and learned Lord, or would it be only the Prime Minister and the Treasury Bench? If the Motion is passed, is the Prime Minister bound to seek a Dissolution—for example, a sudden tactical alliance could trigger a general election—or could he seek to retain the confidence of the House of Commons? Even if there were such a Motion as the noble and learned Lord has proposed, when would the Prime Minister have to dissolve Parliament?

In even more extraordinary circumstances, given such an amendment, could a Government procure such a Motion on the first day after the end of the debate on the gracious Speech? Could they pass such a Motion

“that this present Parliament will be dissolved”,

and then wait for the rest of the Parliament? After all, it says “will”; it does not say “when”.

These questions are practical and unanswered. I submit that it is not a responsible role for a revising Chamber to send this amendment down to the elected Chamber with none of those issues worked through. They were carefully considered by the Joint Committee, which arrived at a conclusion. This is constitution-making on the hoof.

[Noble Lords]

Oh!

[Lord True (Con)]

It is the launching of a ship of uncertainty in which many questions are unanswered.

[Baroness Smith of Basildon (Lab)]

I find the noble Lord’s comments quite offensive. He is suggesting that it is inappropriate for your Lordships’ House, having debated this issue for significantly longer than the other place, to suggest an alternative. That is perfectly reasonable and normal. The arrangements that he says should be in place are in the Bill. They are also untested, because it does not return us to the situation as before. I ask him to be a bit more careful in his choice of words and his attitude to the House discussing such issues.

[Lord True (Con)]

My Lords, I reject those remarks—in a friendly manner, of course. I do not think it is in any way offensive for a Minister at the Dispatch Box, or any other Member of your Lordships’ House, to put to noble Lords that there may be practical difficulties and things that are lacking in amendments proposed before the House.

We are often told that we should proceed with the utmost care in constitutional change; I agree profoundly. “Further and mature reflection” was the phrase I noted from the noble and learned Lord, Lord Judge; I agree. The Bill had extensive pre-legislative scrutiny. This option was not recommended. The majority of the Joint Committee, on which your Lordships are represented, considered that it would be, as was quoted by the noble and learned Lord, Lord Brown, contrary to the public interest. With that advice, and with the utmost respect, I do not think that hasty ping-pong between the two Houses qualifies as utmost care for making a substantial constitutional provision, against what the Joint Committee recommended. I submit that that is not a prudent approach. For that reason, I hope that the noble and learned Lord, Lord Judge, and others will reflect on the wisdom and practicality of the amendment.

There is a final fundamental point. The creation of statutory constraints would cut against and under- mine the flexibility that characterises the pre-FTPA arrangements that the Government want to reinstate, as they have promised. Generations of proven practice underlie those arrangements, but they were junked for what we all know was a short-term political expedient in 2011. I do not share the attitude of some to past experience—that we cannot return to the past and apply its wisdom again. Again, I submit that we can.

For all those reasons, I urge noble Lords not to press the amendment. It is defective in practice, leaves a host of very hard practical questions unanswered, and risks recreating the conditions of the very paralysis we all lived through so recently, about which we all told ourselves we would never want to see again. We should not risk returning to that. We should reflect on the wisdom of ages and take pride in our constitutional practice over generations before 2011, and reject the noble and learned Lord’s amendment.

[Lord Judge (CB)]

My Lords, we have probably talked too long already, but I find it wonderful to think that my arguments have been described as “beguiling”—that was my old friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He has reminded me of the days—our boy days—when we used to go round the county courts. He would always do it, every time: he would get up and say to the judge, “Mr Judge has made a very powerful argument,” or “a very remarkable piece of advocacy” or whatever it might be, and then he would punch me straight between the eyes and say, “But he is wrong”. Beguiling arguments have their strengths. They are beguiling because they are soundly based.

And then, I have just heard the noble Lord the Minister create a whole series of fences. It is like Becher’s Brook every time as we go around the course. The point of this amendment is for the issue to go to the other place and for the other place to consider it and decide whether those hurdles are ones that can be overcome or not—to decide which way it should go.

[Lord True (Con)]

Does the noble and learned Lord set at naught the recommendation of the Joint Committee of your Lordships and the other place which considered this proposition, rejected it, and cited it as contrary to the public interest?

[Lord Judge (CB)]

There was a majority in favour of the proposition that the noble Lord the Minister has put forward. I happen to think that the minority was right. I am inviting us to let the House of Commons have another look and make its own mind up. They will take into account the decisions, recommendations and all the papers that they are given, I hope, and come to their own conclusion.

What I did find slightly startling about the noble Lord the Minister’s response was the idea that when a Prime Minister seeks a general election, that is an act of deep humility. It is not. It is an act by an individual in power who is seeking the best possible way of retaining power. Elections are not sought in the public interest; they are sought for the advantage of the party in government. Humility has nothing whatever to do with it.

Finally, I want to raise a serious point. I find the idea—it has been espoused by a number of noble Lords—that we should stop any risk of the elected House acting as zombies. What an insult that is being paid to the elected Chamber by this House. Of course, the House will get things wrong—every House, every institution, gets things wrong. But the idea that we are going to suddenly be frozen in a situation which is incapable of movement and the Government will be paralysed and things will not work and the electricity will be turned off, all because the Commons has decided to reject a Prime Minister’s desire for a dissolution is, with great respect, bunkum. I do not propose to withdraw this amendment. I seek the opinion of the House.

--- Later in debate ---

I should say two more things. I am grateful to the Minister because, as he and I know but others who were not in the Committee do not realise, we had a non-lawyerly debate about the meaning of the word “purported”, along with the noble Lord, Lord Norton. I am grateful to the Minister for his letter to me. It seems that the Government are looking for a belt-and-braces approach. On the one hand they say that the legislation is clear, but on the other they make it clear that it is not clear because Clause 3 is there. However, involving the courts rather than the House of Commons is not the right way to proceed. As I have informed the noble Lord, Lord Butler, we would be unable to support his amendment.

[Lord True (Con)]

My Lords, I thank noble Lords again for an interesting debate and their many contributions. Like others who have never been called to the high profession of the law, I bow to the expertise of so many of your Lordships in this matter. However, as a lay man, I notice the diverse opinions put forward by those eminent enough to have the title of noble and learned, and other learned speakers versed in the law.

The underlying point here is what a pleasure it is for me, after the previous debate, to agree with the noble Lord, Lord Grocott, and others who said a similar thing. There is an underlying political point here, and a point, which I will come to, regarding the degree to which the public would simply not understand what would happen if there were interventions by the courts—a point made by the noble and learned Lord, Lord Brown. It could not redound in any way to the credit of the courts for there to be an intervention.

I submit to your Lordships that the concerns of those who have them are misplaced. We believe that this clause is proportionate and required, considering the direction of case law—a point underlined by the noble Lord, Lord Pannick, when he talked of the way in which the law had moved on. That is a matter that people in another place will want to notice when they consider the amendment of the noble Lord, Lord Butler, should your Lordships, to my regret, approve it. The Government are seeking to confirm the long-standing position that the Dissolution of Parliament should remain non-justiciable.

I explained the Government’s rationale behind the drafting of the clause in detail in a lengthy speech in Committee, which I promise not to repeat at length. However, I said to the Committee that I wanted to put the legal position on the record. I commented further in a letter, and I thank the noble Baroness, Lady Smith of Basildon, opposite for her interest in and reference to that. The letter has been laid in the Library and I hope it will be of assistance to your Lordships. I shall not repeat all the arguments but in the Government’s view, which I hope most noble Lords will agree with, it would be highly undesirable for the courts to be permitted to intervene in the Dissolution and calling of Parliament. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lord Faulks made devastating interventions on this in Committee. We heard similar arguments repeated today.

Just imagine the scenario. A Prime Minister requests a Dissolution, which is granted. The BBC news starts—“dong, dong, dong”; I do not know what music it has these days, but it fades away to a dramatic headline: “There will be a general election on 7 July”. Up in Telford, workers in the Labour constituency office start the printing presses. The orange tabards come out wherever the Lib Dems are congregating. The poster sites are booked, the canvassers are out, the expenses begin to accumulate and the statutory election clock begins to run. Then the news flashes across social media. Two days later, the BBC headline is “The general election on 7 July may not now go ahead because of an application to the courts.”

Such a situation would be absolutely incredible to 70 million people in this country, even if it might be understandable to a couple of people trying to get a court case going. We really must avoid any risk of this happening in the interests of the country, of politics and of the courts. It would be inappropriate for them to become embroiled in what many have said is the inherently political matter of when an election is called. We must avoid the practical risk of the uncertainty concerning the general election that would follow. Even the possibility of such a court case would be disruptive, drag our judges into the political fray and frustrate the democratic process.

There are checks and balances, to which I referred in Committee. Ultimately, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has said more than once, the check on any alleged abuse—whatever that might be—of calling an election is the decision of the people. The noble and learned Lord referred again today to Brenda from Bristol.

[Lord Lea of Crondall (Non-Afl)]

I understand everything that the noble Lord has said, but is there not a contradiction there? One wants to say that the matter should not be taken to court but, in that case, where is the confidence that something could not go badly wrong with the process? Scenarios ought to be spelled out. Is there not a scenario in which this could go badly wrong? People would say, “Well, it was not conducted in the right way.”

[Lord True (Con)]

Once the general election genie is out of the bottle, it should stay out of the bottle. The decision lies with the electorate. There is no question of a dodgy scenario. It is then down to the electorate. The ultimate political reprimand is available to them, as my party discovered in 2017. You can go backwards, as well as forward.

I cannot accept the amendments of by my noble friend Lord Norton of Louth for the reasons I explained at length in Committee. He argued that this clause conflicted with the rule of law. The Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, said that it was ultimately for Parliament to decide what the law on non-justiciability should be and for the courts to interpret what Parliament has said. The majority of the Joint Committee agreed that a non-justiciability clause was compatible with the rule of law in a case such as this, where the power is to enable the electorate to make a decision. As my noble friend Lord Faulks said in Committee, unless you reject the doctrine of parliamentary sovereignty, there is nothing constitutionally objectionable to the clause.

The Government see a strong argument for its principled and pragmatic case that the courts do not have a role to play in the issue of dissolution. That our sovereign Parliament should be able to make provision for this is entirely consistent with the rule of law. For the reasons I gave at length in Committee—and will not repeat here—we believe that the entire wording of Clause 3 is necessary to secure against the risk of an intervention by the courts.

On precedent, I am happy to repeat the reassurance I gave in Committee that we do not see this as setting a wider precedent. Speaking at this Dispatch Box, I repeat that this clause is very specific and has been drafted with a particular purpose in mind, namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. It is a bespoke exclusion to address this precise task. I stress again that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more.

In conclusion, I say to the noble Lord, Lord Butler of Brockwell, whom I consider my noble friend, that he cannot have his cake and eat it. He tells us that there is no chance that the courts would intervene, but then puts before us an amendment that would enable them to do so. I am not sure which is his argument. My noble friend Lord Norton of Louth made the same argument: that it is unlikely that the courts would intervene. In that case, why are we having this argument, with this point put forward?

The noble Lord, Lord Pannick, told us explicitly that such a challenge might come. So the purported, or in fact actual, intention of this amendment, were it to be passed, would be to procure the circumstances that the noble Lord, Lord Pannick, envisaged: namely, that the courts might one day intervene on a Dissolution. That is what I assume the noble Lord, Lord Butler, is wanting: that the courts should have that opportunity—although at the start he said he did not really envisage or like the idea.

I agree very much with the speech of the noble Lord, Lord Trevethin and Oaksey: it is vital that we maintain this clause. Deleting or altering it, as proposed by my noble friend Lord Norton of Louth, would be, in my submission, like building a fence around a field only to leave the gate open—or having an umbrella with holes in it. It would not be completely effective in the light of past judgments by the courts. Desiring to avoid the involvement of the courts and to secure absolute certainty on this point, and on the basis that this does not provide a precedent for the future, I sincerely hope that noble Lords will withdraw or not move their amendments and join with the other place in supporting this clause.

[Lord Norton of Louth (Con)]

My Lords, I am grateful to all those who have spoken. This has been a very valuable debate which indeed shows the value of the House of Lords. I am especially grateful to the noble and learned Lord, Lord Hope of Craighead, as well as the noble Lords, Lord Beith and Lord Pannick, and the noble and right reverend Lord, Lord Sentamu, for their comments.

My noble friend Lord True will not be surprised to hear that he has not persuaded me. For the reasons I have given, I regard the amendment as necessary to remove the words that are either redundant or constitutionally objectionable. This is not about keeping the courts out but about the use of certain constitutionally objectionable words within the clause. My noble friend did not address adequately—indeed, did not address at all—the point that, if we are dealing with a personal prerogative power of the monarch, there is no advice to challenge. I notice that the noble Lord, Lord Faulks, and my noble friend Lady Noakes did not pick up on the distinction between the prerogative powers that are exercised on advice and those that are exercised not on advice. That is the fundamental distinction that has not been recognised or addressed.

I normally agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but on this occasion I think he is totally wrong. He argued that he was seeking to protect future members of the Supreme Court. I regard it the other way round and consider that we would be protecting future members by removing the provisions in this clause because, although my noble friend Lord True said that this was not intended to set a precedent, the point is that it will be on the statute book. It will be available to parliamentary draftsmen in the future when other measures come along and they will think, “Oh, let’s keep the courts out. There’s a remote chance they might get involved”. Therefore, there are dangers in this.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I remind the Minister that there was a Constitution Committee report on the Cabinet Manual and I think the Government have yet to respond. Could he give an update on when a response is likely to be? As it would cover these issues, it would be helpful when we have the opportunity for a longer debate in your Lordships’ House, given that we do not have the time today.

[Lord True (Con)]

My Lords, I thank the noble Lord, Lord Wallace, for his thoughts on the Cabinet Manual. It is important. I am pleased to say that, of course, the Government agree on the fundamental importance of the Cabinet Manual, and I can confirm to the House, as I have indicated privately to the noble Lord, that the Government intend to publish an updated version of the Cabinet Manual within this Parliament. In response to the noble Baroness opposite, I can also add that I have written to the newly appointed chair of the Constitution Committee, the noble Baroness, Lady Drake, to set out the Government’s intentions on this topic.

There have been a number of developments that render the current version out of date, not least—if we ever get to the end of it—this legislation going through now, which will have to be taken into account. As a result, this amendment, which would prevent the Bill coming into force until after a revised version of the Cabinet Manual has been published, is not needed and would be unhelpful. It would delay the commencement of legislation, which, one would infer, our Parliament will pass shortly, and we would be left carrying on under the terms of the Fixed-term Parliaments Act. I hope, for that technical reason, but also on the basis of the assurance that I have given the House, that the noble Lord will feel able to withdraw his amendment.

[Lord Wallace of Saltaire (LD)]

I thank the Minister for repeating that statement. I stress that the revision of the manual should ideally come well before the timing of the next election, and I strongly support the opposition suggestion that there should be a debate, ideally in both Houses, on the conventions that will have been restated. On that basis, I am happy to beg leave to withdraw my amendment.

Representation of the People (Proxy Vote Applications) (Coronavirus) (Amendment) Regulations 2022

Lord True Excerpts

Tuesday 8th February 2022 Grand Committee

Moved by

[Lord True]

That the Grand Committee do consider the Representation of the People (Proxy Vote Applications) (Coronavirus) (Amendment) Regulations 2022.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 22nd Report)

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, the instrument brought forward today makes a practical provision to continue support of the effective administration of elections. It does this by extending the Representation of the People (Proxy Vote Applications) (Coronavirus) Regulations 2021 for a further 12 months. These temporary regulations were first introduced ahead of the May 2021 elections. They allowed electors to appoint an emergency proxy, or change their existing proxy arrangement, up until 5 pm on the day of the poll where they were, or in fact their previously appointed proxy was, unable to attend a polling station due to Covid. This was without any form of attestation, which is normally required for a standard emergency proxy. It was part of a range of measures that helped ensure elections have been able to take place safely over the course of the last year.

While much has changed in the intervening 12 months, and is changing, extending this measure is prudent. While we have been able to remove a great many of the restrictions that Covid has made necessary, it is still the case that those who test positive for Covid are legally required to isolate—as some of their close contacts may be. While that is the case, and as the situation and exact nature of any isolation requirements going forward remain difficult to predict, we must ensure that those required to isolate are not, in the process of doing so, deprived of the ability to participate in the vital democratic process. So this is a tested and appropriate way to continue to protect that process during the pandemic. Now is not the right time to abandon this necessary temporary measure.

I will now move on to the specific details of the statutory instrument. The key purpose is to extend for a further 12 months the regulations brought into effect by the 2021 instrument, which is due to expire on 28 February 2022, so that instead it expires at the end of February 2023. We will keep this under review, and we will also consider repealing the regulations early, should they no longer remain necessary and proportionate.

The instrument will also remove the existing reference to the “clinically extremely vulnerable” and people who are

“at the highest risk of severe illness from coronavirus”

from the 2021 regulations. This terminology was used in England and Scotland respectively and its removal will bring the wording into line with the latest respective government guidance. Anyone following advice from a registered medical practitioner or a registered nurse to isolate will still be able to apply for an emergency proxy under these rules. This ensures that electors unable to attend the polling station for Covid-related health reasons will not be adversely affected.

The instrument applies to UK parliamentary elections in Great Britain, police and crime commissioner elections in England and Wales and local elections in England. The Scottish and Welsh Governments have also either extended their equivalent arrangements for their respective devolved elections or are in the process of doing so.

It is essential to our democracy that people are able to cast their vote. The 2021 regulations brought into effect a temporary measure to ensure that those required to isolate shortly before a poll could still vote, or that a proxy arrangement could be amended where the appointed proxy was unable to attend a polling station for Covid-related reasons. This instrument is a simple, yet vital, extension of that measure. It will cover local and mayoral elections in England scheduled for May 2022, as well as any applicable by-elections or unscheduled polls that occur before the May 2023 polls. However, as I outlined earlier, we will keep these measures under review and we will consider repealing them early, should they no longer remain necessary and proportionate.

I can assure noble Lords that we have consulted with the Electoral Commission and that it is supportive of this measure. I note also, and am grateful for, the cross-party support that the 2021 regulations received when brought forward last spring, and I hope very much that there will be support for their sensible and necessary extension. I hope that colleagues will join me in supporting the draft regulations. I commend them to the Committee and beg to move.

[Lord Shipley (LD)]

My Lords, this proposal to extend the rules governing late proxy vote applications as a consequence of coronavirus medical advice, including self-isolation, is appropriate and, as the Minister has just said, prudent. The consultation on the measures with the Parliamentary Parties Panel elicited no comments and the Electoral Commission seems content as well, so there is no reason, in my view, for this Committee to take a different view. It is anyway a sensible measure that is time-limited to a further 12 months.

I understand the comments of the Joint Committee on Statutory Instruments on the clarity of the territorial and temporal limitations imposed by Regulations 1 and 2, but I also understand the complexities of drafting these regulations. The commitment of the Department for Levelling Up, Housing and Communities to bear in mind the comments made about clarity should suffice, since this is in effect a one-year extension to an existing set of regulations.

--- Later in debate ---

My final point is an important one, and I hope that the noble Lord would agree with me on this, because it is around potential electoral fraud. We know that the Government have expressed clear concerns in the Elections Bill around electoral fraud, and proxy votes are being looked at as part of that. While we consider the SI before us today, what steps are the Government taking to ensure that emergency proxy votes still have the right kind of safeguards against electoral fraud?

[Lord True (Con)]

My Lords, I thank all those who have taken part in this short debate, and I particularly welcome the general support given on behalf of all parties, starting with the noble Lord, Lord Shipley, and for the recognition that the timely completion of this instrument is crucial in ensuring successful running of polls throughout 2022 while Covid regulations remain in place.

The immediate assurance that I can certainly give to the noble Baroness, Lady Hayman, is that there is absolutely no question of reducing the extent of protection for those in what was originally defined as the shielding groups. Under the extended regulations, electors will be able to appoint an emergency proxy to vote on their behalf without attestation when they are legally required to isolate and when attending a polling station would be contrary to advice provided by their medical professional—the kind of group that she described—and, indeed, when they believe that attendance at a polling station could lead to transmission of coronavirus. For example, they may be displaying symptoms but awaiting a test result. That picks up on what the noble Baroness, Lady Bennett, was saying. Electors are also able to amend their existing proxy arrangements at very short notice, when the proxy is unable to vote on their behalf, due to the reasons above. So the technical change in wording does not reduce to any degree the availability or accessibility of arrangements, and I am very glad that the noble Baroness raised it. If I had been in her place, and seeing these words disappearing, I would have wanted to ask that question, which is why I anticipated it to some degree and mentioned it in my opening remarks.

My noble friend Lord Hayward, with support, raised the question of correspondence between him and my department, and indeed, DLUHC on this matter. As he knows, as part of our consultation on the Elections Bill this morning, we also discussed the matter. The statutory instruments here—this one and others—were made in the context of the height of the original Covid pandemic, when the Government were encouraging absolutely minimal social interaction and there was legislation in place restricting such activity. That is no longer the case, and therefore we judge that the measure is no longer necessary on Covid grounds. The Government are clear that it is important that the democratic process is as accessible as possible, and making that change permanent for specific polls, for which my noble friend asks, would need consideration in the context of wider electoral policy and legislation.

However, I welcome the point raised by my noble friend and by the noble Baroness opposite, and the Elections Bill is coming before your Lordships’ House very shortly. The Government are certainly open to further discussion on this topic. The existing arrangements have been useful. It may interest the House to know that in the May 2021 PCC, mayoral and local elections, there were 2,800 instances in which the facilities afforded by these regulations were made use of. That is not a phenomenal number of people, but they were used by certain people at the height of the pandemic, so they have been useful. We consider that while the pandemic continues, it is worth extending the provision allowing electors to appoint a proxy or change their existing proxy up until 5 pm on polling day on various grounds relating to Covid. That is sensible, but there is a point on the other side, fairly made by the noble Baroness, that there is a balance in these things when making permanent procedures which might make it easy to circumvent the normal controls. This is a specific measure introduced to help people during the course of the pandemic. However, the Government are considering very carefully that balance, and I look forward to discussing it during the course of the Elections Bill.

I hope I have responded to—

[Lord Hayward (Con)]

I seek clarification in the light of what I understand my noble friend to have just said. We had previously written, seeking on behalf of all parties and organisations such as the Local Government Association—which supports the proposal—and the intention was quite clear in the correspondence that I wrote, originally almost a month ago, that there would not be the opportunity for an SI to be brought forward now and that, therefore, we would have to wait for the Elections Bill for such a change to be implemented. If that is the case, I regret, given that the conversations have been ongoing, that I and others—including the LGA and others, not only political parties but organisations representing interested parties—could have been told or received some indication previously.

[Lord True (Con)]

My Lords, I am disappointed by my noble friend’s comment. I regret that he is disappointed. The regulations we put in place were clearly time-limited and intended to be so. I indicated to him, as he well knows, in correspondence that took place and my response to the noble Baroness opposite, that the Government are open to discussion on this particular point, but the Government believe that careful consideration must be given to it in view of some of the implications. No doubt, my noble friend will have the opportunity on the Elections Bill to raise the matter again.

I can assure my noble friend that no personal discourtesy was intended by me or, I am sure, by any Minister in the responsible department in failing to deal with this matter in the timescale he asked for. If he has been offended, of course I regret that, but I stand by the position that I put before your Lordships, which I thought was fair. I think I said that I welcomed the point that he and the noble Baroness opposite had raised and that we are open to further discussions on this topic. I made the same point to my noble friend this morning in the exchanges we had on the Elections Bill, and I have nothing further to add.

Motion agreed.

Veterans’ Strategy Action Plan: Gambling Addiction

Lord True Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw attention to my interest as the chairman of Peers for Gambling Reform.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, the action plan contains over 60 commitments worth over £70 million and sets the direction for delivering for our veterans between 2022 and 2024. It does not represent the limit of the Government’s ambitions, and we continue to work across government to address issues affecting veterans. We take gambling seriously. Veterans can access a range of support, including via the 24/7 Veterans’ Gateway, and the National Gambling Helpline also gives advice to anyone affected by gambling problems in England, Scotland and Wales.

[Lord Foster of Bath (LD)]

My Lords, I thank the Minister for his reply, but, as in other countries, recent research from the Forces in Mind Trust and the Royal Air Force Benevolent Fund shows that the UK’s service personnel and our veterans are more likely to experience gambling harm than the general population, and yet Operation Courage, and now the Veterans’ Strategy Action Plan, make reference to help for drugs and alcohol problems but not gambling problems. Does the Minister now accept that there is sufficient evidence to justify much greater action on this issue?

[Lord True (Con)]

My Lords, I pay tribute to the noble Lord’s work in this area. I will not allow myself to venture into personal opinions on gambling—I am answering as a Minister. We are grateful to the Royal Air Force Benevolent Fund for its work and are assessing its findings and the Forces in Mind Trust report. We will take both those reports very seriously in considering our work going forward.

[Lord Lancaster of Kimbolton (Con)]

My Lords, we are at times in danger of giving the impression that the majority of our veterans who leave service are troubled, yet I remind your Lordships’ House that 96% of service leavers make a successful transition to a civilian career within six months of leaving. It is an excellent action plan, but if I were to have one criticism, it is that it is not until page 32 that the Government first talk about promoting a positive image of our veterans. Can I ask my noble friend if that could be the headline—that service veterans are excellent people to employ?

[Lord True (Con)]

I agree profoundly with what my noble friend said, and he is right that the significant majority of veterans go on to live happy and healthy lives when they move out of the Armed Forces, and make as great a contribution to our society when they are not serving as when they did. That does not absolve the Government of the duty to stand by those who need additional support.

[Lord Browne of Ladyton (Lab)]

My Lords, the RAF Benevolent Fund research, to which the noble Lord, Lord Foster, refers, merely corroborates the Army’s own assessment that military veterans are eight times more likely to have gambling problems than the rest of the country’s population. Should the Government ask themselves not what do we do for the people whose distress has caused them to fall into this difficulty, but why there is such a prevalence of those who give their military service to this country developing this distressing condition?

[Lord True (Con)]

I do not detract from the significance of what the noble Lord said, with his very great experience. The reality is that this Government take seriously the gambling concerns and problems in all sectors of society, and are committed to tackling gambling-related harms. As he will know, the Ministry of Defence is continuing to develop welfare support policies for supporting personnel, including those with gambling problems, and the MoD restricts the ability of service personnel to access online gambling sites.

[Lord Browne of Belmont (DUP)]

My Lords, does the Minister agree that there is a necessity for an up-to-date community survey that will measure problem gambling among both Armed Forces and civilian populations?

--- Later in debate ---

[Lord True (Con)]

There is a Gambling Act review, which I know that some noble Lords will feel is taking a little time. It will be, and is, the most thorough review of gambling law since the Labour Government’s Act and we need to get it right. We are continuing with that and have already taken interim action—for example, banning gambling on credit cards.

[The Lord Bishop of St Albans]

My Lords, it is absolutely right that we pay tribute to those veterans who have successfully transitioned back into civilian life, but nevertheless the research by the RAF Benevolent Fund is striking, with much higher levels of problem gambling and at-risk gambling among veterans, which we need to attend to. Are there any plans by Her Majesty’s Government to screen those transitioning back into civilian life, and to provide additional support where necessary?

[Lord True (Con)]

As I have already said, the Government are grateful to the RAF Benevolent Fund and are considering that research. The NHS long-term plan is addressing provision for those who have gambling problems, and we will continue to work to ensure that we detect and support problems where they arise. In that respect, I am on all fours with every noble Lord who has contributed so far.

[Lord Lexden (Con)]

I commend the Government for establishing a review of the treatment of LGBT veterans who served in our Armed Forces between 1967 and 2000, when many were disciplined, dismissed and humiliated for homosexual conduct which was perfectly legal in civilian life. Can my noble friend assure these veterans that, when the review is completed, it will be followed by action to address the suffering and hardship that they endured?

[Lord True (Con)]

I pay tribute to my noble friend and others on all Benches who have campaigned on this matter. I am pleased to tell him that setting up this process is not the end; the end is the action that follows. We are committed to taking tangible action, where appropriate, to redress past wrongs. To do this in a meaningful way, we have to fully understand the impact that the historic ban still has today, and the independent review will help to do that.

[Baroness Chapman of Darlington (Lab)]

My Lords, we know from research from Swansea University and others that veterans are 10 times more likely than non-veterans to experience problem gambling, yet we do not screen for it. Support for those leaving the Armed Forces has vastly improved in recent decades but there is still more to do, and support cannot be provided if we do not know those most likely to need it. When the Minister goes back to his department and speaks to colleagues at the MoD, will he encourage them to include screening for a propensity for problem gambling as part of the usual mental health screening?

[Lord True (Con)]

I am sure that my colleagues will take note of everything said in this House; I certainly promise the noble Baroness that. I remind the House, if anyone doubts this Government’s commitment, that it was this Government who set up the first ever dedicated Office for Veterans’ Affairs, to champion veterans in every respect, at the heart of government. We have an action plan and we will have a veterans strategy refresh, drawing on all the wise advice given by your Lordships and others, but I think the Government deserve some credit for what has actually been done here.

[Lord Forsyth of Drumlean (Con)]

My Lords, is not the truth of the matter that the explosion in gambling addiction is a consequence of the Labour Government’s decision to change the law which previously prevented people promoting and stimulating demand for gambling?

[Lord True (Con)]

My noble friend puts me in a dangerous place. The Government’s answer—and it is right—is to undertake as comprehensive a review of the Gambling Act as there has ever been, and that will be pursued. My personal view, as a sports fan, is that I am sick and tired of gambling advertising being thrust down viewers’ throats.

Ministerial Code

Lord True Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord Collins of Highbury]

To ask Her Majesty’s Government whether their Ministers are expected to abide by the standards of conduct as set out in paragraph 1.3(c) of the Ministerial Code, as reflected in the resolution of the House of 20 March 1997 and paragraph 4.67 of the Companion to Standing Orders.

[The Minister of State, Cabinet Office (Lord True) (Con)]

Yes, my Lords. Like all Ministers, I assented to the Ministerial Code on entering office, as I am sure all those in this House in all parties who have had the honour of serving as one of Her Majesty’s Ministers will have done. The code sets out the standards expected of all those who serve in government. Ministers are personally responsible for deciding how to act and conduct themselves in light of the code, and for justifying their actions and conduct to Parliament and the public.

[Lord Collins of Highbury (Lab)]

My Lords, in answer to my noble friend Lord Foulkes on Tuesday 7 December, the Minister of State—the noble Lord, Lord Goldsmith —denied reports that the Prime Minister intervened to evacuate an animal charity from Kabul at the height of the crisis. Yesterday, however, the House of Commons Foreign Affairs Committee published an email from the Minister’s private office in August, which stated, contrary to this, that

“the PM has just authorised their staff and animals to be evacuated”.

Only one of these two statements can be true—which is it? Given that paragraph 4.67 of the Companion clearly states that Ministers must correct any inadvertent errors at the earliest opportunity, or offer their resignation if they have knowingly misled, surely the noble Lord, Lord True, agrees that the noble Lord, Lord Goldsmith, should, as a matter of urgency, return to make a Statement to the House. It is what all noble Lords would expect.

[Lord True (Con)]

My Lords, as I said in my original Answer, Ministers are personally responsible for deciding how to act and conduct themselves in the light of the code, and for justifying their actions and conduct to Parliament and the public. I refer the noble Lord opposite to the statement that my noble friend Lord Goldsmith put out yesterday, in which he said:

“I did not authorise & do not support anything that would have put animals’ lives ahead of people’s … I never discussed the … charity or their efforts to evacuate animals with the”


Prime Minister.

[Lord Wallace of Saltaire (LD)]

My Lords, did the Minister by any chance see the strapline comment by Guido Fawkes over the video of the noble Lord, Lord Agnew, leaving the Chamber, which read, “We have now reached the point where Ministers have to explain which scandal of the Government’s they are resigning over”? We have another scandal here—an apparent contradiction between what one Minister has said and what it appears from the official record—which needs to be cleared up. We have a Ministerial Code which is effectively policed by a Prime Minister who has now lost public trust. Could not the Government begin to regain public trust by accepting recommendations from the Committee on Standards in Public Life that the Ministerial Code should be placed on a firmer statutory basis?

[Lord True (Con)]

The noble Lord started off with “scandal” and retreated to “apparent contradiction”. I would advise him and others to refer both to the statement put out by my noble friend Lord Goldsmith and the official statements put out by No. 10 Downing Street and the Defence Secretary at the Foreign Affairs Select Committee yesterday.

[Lord Browne of Ladyton (Lab)]

My Lords, once again we are being treated to Ministers in studios and in the House not facing up to the fact that the evidence is out there. These emails are there for people to see. I have not heard one Minister deny that the Nowzad animals were helped out of Afghanistan by the noble Lord, Lord Goldsmith, and the Prime Minister—and possibly also by the intervention of his wife—or say that these emails are not correct. So the evidence is there. Over and above that, my noble friend Lord Foulkes, who cannot be with us today, was on LBC last night with Dominic Dyer, who explained at length how it happened, because he was involved in identifying the Prime Minister, his wife and the noble Lord, Lord Goldsmith, as helping them to get the animals out of Afghanistan. He is upset because they will not take credit for it; that is what is upsetting him. So when will we get to the point where Ministers here or in television studios will live in the same world as the rest of us, when all the evidence proves the contrary of what they are saying?

[Lord True (Con)]

My Lords, I fear I say too often in this House that allegations do not constitute proof. I remind noble Lords that whatever the context of this particular circumstance, a truly outstanding operation was conducted to remove people from Afghanistan safely. I repeat that statements have been made by the noble Lord, Lord Goldsmith, No. 10 Downing Street and the Defence Secretary which repudiate the allegations being made.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, does the noble Lord not accept that it is the duty of the noble Lord, Lord Goldsmith, to come to this House and correct or explain the statement, or misstatement, that he made—not to make statements generally? He owes a duty to this House.

[Lord True (Con)]

My Lords, I am sure my noble friend will read and hear what the noble Baroness has said. I said in my original Answer that Ministers are personally responsible for deciding how to justify their actions and conduct to Parliament and the public.

[Baroness Hamwee (LD)]

My Lords, I entirely agree with the Minister that allegations do not constitute evidence, but is he suggesting that this is an allegation of a forgery?

[Lord True (Con)]

No, my Lords—I am saying that there is a set of allegations which have been made in many respects and in many circumstances over the last few weeks, in relation not only to this alleged incident but to others, which are allegations and not proof. We well know the impatience that your Lordships have for the conclusion of the Sue Gray inquiry and the Metropolitan Police investigations, but these matters need to be investigated, the facts established and the truth revealed.

[Baroness Smith of Basildon (Lab)]

My Lords, I do not want to prolong this unnecessarily, but I think the noble Lord may have missed the point. The only point my noble friends Lord Collins and Lord Browne were raising was that if the noble Lord, Lord Goldsmith, made a statement to this House that appears on the face of it to be at odds with a statement in an email from his private office that is now public, can he not come to your Lordships’ House to explain? I think that is a very straightforward request, and I hope that the noble Lord, given the comments he has made about Ministers acting on their personal honour, would want to convey that to the noble Lord, Lord Goldsmith, at the very least. No one is making any allegations, but the House would like, and deserves, an explanation.

[Lord True (Con)]

My Lords, again, I listen respectfully to the noble Baroness and to all in the House. I stand on the answer I gave that it is for Ministers to decide how to justify their actions and conduct, but I repeat that the assertions that have been made have been repudiated by the noble Lord, Lord Goldsmith, No. 10 Downing Street and the Defence Secretary.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, in the interests of transparency and good government, will the Minister go back to his colleague, the noble Lord, Lord Goldsmith, and ask him to come to this House immediately and explain the accurate situation of what really happened, because we now have this email?

--- Later in debate ---

[Lord True (Con)]

My Lords, again, I repeat that everything your Lordships say will of course be referred to those with whom your Lordships are concerned. But I must underline the fact that in the current state of affairs in our country, there are a great deal of allegations that are being taken as fact, and I stand by that comment also. People are innocent until proved guilty.

Downing Street Parties: Police Investigation

Lord True Excerpts

Tuesday 25th January 2022 Lords Chamber

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my honourable friend the Paymaster-General to an Urgent Question in another place on the investigation into Downing Street parties following the statement from the Commissioner of the Metropolitan Police. The Statement is as follows:

“As the House will be aware, earlier today the Commissioner of the Metropolitan Police confirmed that the Metropolitan Police Service will be investigating alleged breaches of Covid-19 regulations within the Government. This is a matter for the police, and the House will understand that I am not in a position to comment on the nature or content of the police investigation. I previously made it clear from this Dispatch Box that the Government recognise, and I recognise, the public anxiety and indignation that it appears as though the people who have been setting the rules may not have been following the rules, and I would like to repeat that sentiment today. This is why the Prime Minister asked for a Cabinet Office investigation to take place.

The terms of reference for that investigation, led by the Second Permanent Secretary at the Cabinet Office and the Department for Levelling Up, Housing and Communities, Sue Gray, have been published and laid in the Library of the House. Those terms made it clear that, as with all internal investigations, if, during the course of the work, any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused.

As the House would expect, there is ongoing contact between the Cabinet Office investigation and the Metropolitan Police Service. However, the Cabinet Office investigation will continue its work. I would urge the House to wait for the findings of that investigation and for the police to conclude their work. That is important to allow the work to take place unimpeded and to protect the rights of all those involved. I must emphasise that matters relating to adherence to the law are properly a matter for the police to investigate, and the Cabinet Office will liaise with them as appropriate.

Finally, I can confirm that the findings of the investigation will be provided to this honourable House and made public. The House will understand that there is a limit to what I can say, given that this is an ongoing investigation. I also cannot comment on what is now an ongoing police investigation, and therefore I ask that Members of the House let the investigation run its course and do not pre-empt its conclusions.”

[Baroness Smith of Basildon (Lab)]

My Lords, I know the Minister to be an honourable and decent man. I just have to wonder how many more times he will be comfortable coming to the Dispatch Box to defend the indefensible to your Lordships’ House. So I thank him for being prepared to answer questions today.

I have to say that defending this Prime Minister is a tough gig, particularly now it is the Metropolitan Police asking the questions. First, if I may press the Minister on a point of clarity, this morning we were told that the Sue Gray report was not able to be published, but parts of it—I think he used the word “findings”—would be published. We are now told that the Metropolitan Police is happy for all of it to be published. There has been some confusion over the course of the day as to what will be available, when it will be published and what will happen. Can the Minister please say whether the Government will commit to the publication of the report—not just the findings—and not in any way block it from being made available to the public in its entirety?

Secondly, and I appreciate that this may be a difficult one for the Minister, can he confirm reports today that after the Prime Minister was personally informed about the police investigation, he then chaired a Cabinet meeting and chose not to inform his own Cabinet of the police investigation? The Minister will know how deeply shocking that would be and what an enormous concern that would give, if that was the case. I would be grateful if he would comment on those two points.

[Lord True (Con)]

My Lords, on the second point, obviously, I am not a member of the Cabinet and not informed on that matter. It is not custom, as the noble Baroness knows, to comment on Cabinet discussions. On the first point, I must repeat what I said in the Statement. As the terms of reference set out, the findings will be made public. Obviously, there is an interrelation between the Cabinet Office inquiry and the police investigation, and any intimation must be left to those conducting the inquiries. As far as the Government are concerned, I repeat: the findings and the investigation will be made public.

[Lord Newby (LD)]

My Lords, it is not disputed that the Prime Minister attended his own birthday party at a time when such gatherings were illegal. So he is now simply awaiting the executioner’s blow, either from the Gray report or the police investigation. In the meantime, his authority has disappeared completely. Will the Minister pass on to the Prime Minister the view of the country, and I suspect of this House, that the only positive act that he could now perform would be to resign today?

[Lord True (Con)]

No, my Lord.

[Lord Butler of Brockwell (CB)]

My Lords, could the Minister give us a little more precise guidance about the effect of these developments today on the timing of Sue Gray’s report? Can that report still be expected within the next few days?

[Lord True (Con)]

Most noble Lords will understand why I am not going to speculate on the timing of the progress of either investigation. I have told the House that aspects of the Cabinet Office investigation will continue. Obviously, there is an independent police investigation. I am sure the noble Lord, with his great experience and great service to the country, will understand that those two inquiries must be allowed to run their course.

[Lord Robathan (Con)]

My Lords, I am not, contrary to what people might think, a cheerleader for the Prime Minister. Indeed, when I had the opportunity, I did not vote for him, for a number of reasons. However, I think we should get things in perspective. It seems to me that the great British public are not terribly concerned about—

[Lord Robathan (Con)]

I am not talking about Members of the House of Lords sitting opposite, I am talking about the British public. I do not think they are very concerned. I care very much whether the Prime Minister lies, as it happens, because I think Prime Ministers should have integrity. However, the instability at the top that has been caused by this furore is deeply worrying when we have geopolitical events in Ukraine. Frankly, I think most people would like to see the Government getting on with it. Perhaps the Prime Minister will eventually have to resign, but I think that what is now happening in Ukraine and elsewhere is more important.

[Lord True (Con)]

I will not agree with every aspect of my noble friend’s remarks, but he does make a point: the business of government must continue. We all know there are very grave matters before the Government, both domestic and international. My right honourable friend the Prime Minister is fully and actively engaged in those and made a Statement on events in Ukraine in the House of Commons earlier. I believe it is important that that factor is recognised.

[Lord Scriven (LD)]

My Lords, Kate Josephs, who was director-general of the Covid task force and is now chief executive of Sheffield City Council, has admitted going to a drinks party for her leaving do on 17 December 2020. Subsequently, she tried to mislead the local press by denying that she had been to drinks parties. She apologised only 19 minutes before the story went public. Does the Minister believe that this is the leadership behaviour expected of a chief executive in local government?

[Lord True (Con)]

My Lords, I am not going to comment on any particular individual at the Dispatch Box. I am sure the noble Lord is a greater expert on Sheffield than I.

[Lord Cormack (Con)]

My Lords, there is great concern around the country. The graphic photograph of the Queen alone at her husband’s funeral, juxtaposed with other pictures, did cause a great deal of disquiet. Will my noble friend the Minister do his best to guarantee that both reports—that of Sue Gray and if there is a report from the police—are published on a day when both Houses of Parliament are sitting?

[Lord True (Con)]

My Lords, I can only say to my noble friend that the reports of findings will be published in due course. There are investigations under way; those investigations, with great respect, should be allowed to continue and be completed. At that point, obviously, the matter of publication becomes condign.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, we have just done the Third Reading of the Police, Crime, Sentencing and Courts Bill, and I wondered whether the Minister would comment on the number of people who have been fined extortionate amounts of money for breaking rules and have been accused of breaking the law. Will they receive an amnesty, as a consequence of realising there was wide-scale rule-breaking?

Secondly, the Minister said the business of government will carry on—needs to carry on—but is there a danger that the Government will be distracted by this police inquiry, and hugely important matters of rebuilding society after lockdown are going to be neglected because of this preoccupation with No. 10 and parties? That is what the country is worried about.

[Lord True (Con)]

I agree with what the noble Baroness has said, and I can certainly give her the assurance that the work of governing is continuing. I do note that people on the Benches opposite are extremely distracted by their perusal of social media. But on the first point, she will understand that I cannot comment on the judgments that are being made in the courts or any individual cases, but obviously, I hear what she is saying.

[Baroness Meyer (Con)]

My Lords, the Prime Minister has apologised several times and has shown that he understands the public’s indignation. Does my noble friend not agree that, until the investigations are conducted, we should better concentrate on more important issues such as Ukraine and the NIP, and instead of destabilising the Government we should all work together and move forward?

[Noble Lords]

Oh!

[Lord True (Con)]

My Lords, we hear the voice of those who do not want to work together or move forward. I agree with what my noble friend said. I do believe, also, that there is a great principle, in public life and private life, that no one is guilty by accusation. We should let the reports be concluded.

[Lord Browne of Ladyton (Lab)]

My Lords, I infer from the noble Lord’s statement that we can expect publication of only the findings of Sue Gray’s report and not the whole report. Am I right?

Secondly, does this sequence of events not raise serious questions about the nature of policing these lockdown regulations? It is almost impossible not to conclude that the police went from saying, “We are not investigating anything because we have no evidence”, to Sue Gray interviewing police officers and finding that they had evidence all along, and the Metropolitan Police Commissioner, having seen them, saying, “I either discipline the police officers or I investigate the crimes”?

[Lord True (Con)]

No, my Lords, nothing may be inferred of that kind. I refer the House to the very clear statements made by the Metropolitan Police Commissioner this morning, in her own words, where she set out the position. I do not think it is for me, as a Minister of the Crown, to add to or substitute the words of the Metropolitan Police Commissioner.

Dissolution and Calling of Parliament Bill

Lord True Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

I hope the Minister will take on board the comments we have made. I know he said that he does not want to see any amendments to the Bill, but as we have heard today, the amendments noble Lords have put forward seek to achieve what the Minister and the Government want to achieve via the Bill. I am grateful to the noble Lord, Lord Norton, for doing that. What we need is clarity, which is what many of the amendments before us today seek to achieve. Where there is a lack of clarity, they seek to ensure that the Bill does what the Government want it to do. I am sure that we will return to this issue, but I hope the Minister will not rule out accepting this amendment or having a discussion with the noble Lord, Lord Norton, to see if it could help the Government to achieve their objectives.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I thank all those who contributed to what has been an important and interesting debate. I am grateful to my noble friend Lord Norton of Louth for bringing it forward, and I also welcomed the opportunity to talk to him about it. What I am going to say on the record is, I hope, a response to that discussion and to matters raised in this debate. I was struck by the fact that the noble Lord, Lord Beith, in an elegant and thoughtful contribution, envisaged circumstances where the reserve power could apply. The noble Lord, Lord Grocott, said that it was inconceivable. The reality is, as we will discuss later, that the Government’s belief, and the traditional practice, is that the reserve power has an important constitutional role.

The noble Lord, Lord Grocott, had a little go at another Second Reading speech at the start. I agree, of course, with what he said and with what my noble friend Lord Lexden said. I also agree with what the noble Baroness, Lady Smith, said last time around. It is absolutely true that the 2011 Act was, in her words, clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. I freely acknowledge the wisdom and accuracy of those words.

There is general support for the Bill, and I welcome that. I cannot encourage the noble Baroness opposite to think that all the amendments are clarifying. I think some of the discussions we have had would involve driving a coach and horses through the Government’s intentions on the Bill, as I hope to persuade the House later.

Turning to the amendment of my noble friend Lord Norton, I repeat that I am grateful to him for tabling it. Clause 2 was carefully drafted to put beyond doubt that the prerogative powers relating to the dissolution and calling of Parliament will be revived. As my noble friend Lord Norton outlined, these are prerogative powers that are personal or reserve prerogative powers, meaning that they belong to the person of the sovereign, acting in the sovereign’s individual capacity. The noble Lord has also sought to place on record and beyond doubt that the dissolution prerogative power is not exercised on the advice of the Prime Minister but is instead a request made to the sovereign. I can assure him that that is the Government’s position.

Turning specifically to Dissolution, the Government have recognised in response to the Joint Committee, for whose work we are extremely grateful, that this personal prerogative is exercised by the sovereign on the request of the Prime Minister, not on their advice. I am pleased to reassure your Lordships that the Government fully accept this accurate characterisation and are grateful for the Joint Committee’s considered conclusions on that point and the submissions made in the debate.

I hope that very clear statement on the record will gratify and ease the concerns of my noble friend Lord Norton and others. I therefore thank him again for tabling the amendment as it has given the Government an opportunity to clarify this point in Parliament, and given this Committee the opportunity to debate this aspect of the constitution. I hope my statement has provided sufficient clarity on the nature of the Dissolution prerogative so that my noble friend may feel able to withdraw his amendment.

[Lord Norton of Louth (Con)]

My Lords, I am extremely grateful to everyone who has spoken. It has given rise to a very valuable debate with some very helpful interventions. I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.

Today, however, is the occasion for that debate about the prerogative being revived. I accept that the Bill achieves what it is designed to do: to provide that the prerogative comes back and to put it beyond doubt because of that academic debate about whether it could or could not. This establishes that it does. That has to be our starting point because, as the noble Baroness, Lady Smith, said, it is designed to restore the status quo ante. Therefore, the purpose of my amendment is to achieve clarity of that purpose and that it is a personal prerogative, the distinction I drew —in response to the noble Viscount, Lord Stansgate—in opening. It is one of only three prerogative powers that the monarch does not exercise on advice.

I deliberately quoted the report of the Joint Committee, which the noble Lord, Lord Beith, referred to, in relation to the point that the noble Lord, Lord Grocott, raised: the practice is that the monarch has acceded to requests for Dissolution. I was also trying to touch on the fact that No. 10 has contacted the palace in advance to make sure that it will be granted. I always think that is a useful deterrent; it makes the Prime Minister think about it. There is now the convention that Ministers do not act in a way that would embarrass the Crown, so there is some restraint there. There is a useful purpose in its existing in the same way that, formally, the monarch does not appoint the Prime Minister. That, again, is one of the powers not exercised on advice. There are certain elements there that remind Ministers that there is a higher authority to which they are responsible. There is a purpose in it and a useful role, but that is a wider debate. My starting point is that the purpose of the Bill is to restore the status quo ante and my amendment is focused on that. It is working within the purpose of the Bill and what it is designed to achieve.

As I said in opening, I was keen to get the Minister to put on record at the Dispatch Box that it is a personal prerogative power. Therefore, that is a necessary condition. I will need to reflect on whether it is a sufficient one, but for the moment I beg leave to withdraw the amendment.

--- Later in debate ---

I support Amendment 3 in my name and those of the noble and learned Lord, Lord Judge, and the noble Lords, Lord Newby and Lord Lansley, and I hope the Minister will not just dismiss it out of hand but will be happy to enter into further discussions to see whether it could be a helpful way forward, particularly when we get to the next debate, on Clause 3.

[Lord True (Con)]

My Lords, I thank all those who have spoken in what has rightly been a lengthy debate. Perhaps my concluding marks too will be lengthy; I trust not. I am grateful to all noble Lords who have taken part. Your Lordships will divine that some of those who have spoken I agree with, and some I found less persuasive, but I have welcomed the opportunity to discuss these matters and others with many noble Lords, including the noble Baroness opposite, whose courtesy I always so much appreciate, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Grocott. I very much appreciate that.

I have listened very carefully to all the arguments, not least the compelling concluding remarks of my noble and learned friend Lord Mackay of Clashfern. I was a little puzzled by the position of the noble Baroness opposite because she seemed to say that when the Labour Party told the electorate in 2019 that they would repeal the Fixed-term Parliaments Act, what they actually meant was that they would not repeal it, but they would keep the chance of the very zombie Parliament that the public so overwhelmingly rejected in the 2019 election. I suggest to your Lordships that, notwithstanding some speeches that have been made, the risk of that occurring if these amendments are supported remains high.

I respectfully suggest to all noble Lords that retaining a revised version of the failed 2011 Act, which this amendment would do, in effect, by keeping the Commons veto in a revised form, is a highly problematic suggestion. It would not achieve what it is intended to do; it certainly would not secure clarity. I was on the Constitution Committee a long time ago when the noble Baroness, Lady Taylor, became chair, and I say to her how much I admired and respected the work that was done by that committee while she was chair; I am sure I speak for the whole House on that. In her compelling speech, she spoke of the need for some degree of clarity and the need to avoid loopholes. We must guard against repeating one of the fundamental errors of the Fixed-term Parliaments Act, which, in the words of our manifesto, led to “paralysis”, or, in the words of the Labour manifesto, has “propped up weak governments”—Governments without the authority to govern effectively.

I submit that the first problem is that this is not the simple solution that some noble Lords have implied. In fact, a vote in the other place on Dissolution would be complicated and challenging to effect. To highlight one area of difficulty, what will be the likely consequences for constitutional conventions, including the conventions on confidence? Some of your Lordships will recall that this was a question that very much exercised this House in the debates on the 2011 Act.

The amendment would undoubtedly repeat the mistakes of the 2011 Act: it would undermine the fundamental conventions on confidence—by virtue of which a Government hold office—by divorcing them from practical effect and, even worse, making the consequences of a loss of a confidence vote ambiguous. The amendment is dangerously silent on the status and practice of the conventions associated with confidence. That silence is unclear and ambiguous, and could undoubtedly lead to fractious debate, uncertainty and delay at a time when timely action might be needed. In particular, in the event that a Prime Minister lost a vote on a Motion designated as a matter of confidence, they would not be able to request a Dissolution without the prior approval of the House.

It is unclear, therefore, how the amendment would interact with conventions on confidence in practice. Does it mean that the Prime Minister would be expected to table the Motion provided for in this amendment straight away, or would they be able to try to regain the confidence of the House? Would some other Member of the House be able to table the Motion? What happens after the loss of a vote on confidence? We saw with the 2011 Act, which tried to codify what would happen after the loss of a vote of no confidence, that efforts to partially prescribe how essentially political processes are played out leads only to ambiguity and uncertainty.

With respect, rather than introducing a process that would arguably preclude the Prime Minister reflecting on the view of the House after a defeat on a designated issue, the amendment does not provide a clear and unambiguous process, yet it also serves to restrict the ability to flexibly respond. The amendment is silent on these fundamental points of principle and practical implementation and therefore risks us repeating the mistakes of the 2011 Act. I agree with my noble friend Lady Stowell of Beeston: lack of clarity is risky.

Your Lordships have suggested that a simple majority is the silver bullet, preventing deadlock and stasis. However, I submit that, with the benefit of history—from not so long ago; we do not have to have grey hair to have lived through the disastrous Parliament of 2017-19—we can see that the real risk of a vote, even a simple majority one, as I will argue shortly, is a repetition of the deadlock and paralysis of the 2017-19 Parliament.

--- Later in debate ---

[Lord Grocott (Lab)]

My Lord, if the Minister is going down the path of history, can he please address the specific point? On three occasions, the Prime Minister in—I agree with him—that dreadful Parliament, obtained a majority for a general election. That is not a theoretical speculation—it is fact.

[Lord True (Con)]

My Lords, I am coming on to that, as I just said to the House I would. You can look at those circumstances in different ways, I would submit. Perhaps I will deal with that and then go on to the other point.

The Government had effectively lost the confidence of the Commons on the central purpose of its being, which was to deliver the referendum result on a key European policy. As the noble Lord opposite says, they tried to call an election three times, and three times the Commons refused to grant one. Why did the other place refuse to grant one? I cannot remember which noble Lord it was who said in the debate that it was because the leader of the Opposition sat on his hands and decided to prevent an election taking place. The noble Lord said he would not have done, but he did—three times.

The votes for dissolution were 298 on 4 September, 293 on 9 September, and 299 on 28 October. On every occasion they fell short of a majority. The Labour Party cast its vote to secure what it manifestly wished to do, which was to prevent the Prime Minister going to the country. Three times Mr Corbyn was presented—like Caesar on the Lupercal—with the crown of the election that he could have had the following day, on 4 September, 9 September and 28 October, and he declined.

The noble Lord suggests that of course if they had known there would be an election, the Opposition would never have sought to vote against it. By sitting on their hands, the Opposition defied the people and did not have an election.

[Lord Lansley (Con)]

My noble friend must address the point. The point is that if the requirement were not what the Fixed-term Parliaments Act required but a simple majority on a Motion in the House of Commons, the Prime Minister back in October 2019 would have secured a simple majority and got his election.

[Lord True (Con)]

My Lords, there is a conditional in that: a “would”. I believe that people must be presumed to intend the consequences of their own actions, and the consequence of Mr Corbyn’s actions was to thwart a general election three times. The figures I have given to the House are there in the book.

I want to move on because the noble and learned Lord, Lord Judge, in the gravamen of the argument—although I think the matters I have covered are a flaw in it—used the argument, which I think was taken up by my noble friend Lady Noakes, that the votes of millions of people should not be overturned by Dissolution. A number of noble Lords have addressed this. By implication, the noble and learned Lord argues, per contra, that the chance to vote for millions of people should be denied by a vote of the House of Commons. It seems to me an extraordinary concept that a House of Commons that does not wish to go should, in his words, prevent or overturn the votes of millions. I respectfully disagree. I think the noble Baroness, Lady Taylor of Bolton, who chaired your Lordships’ Constitution Committee with distinction, put some political practicality into the equation, as did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. This is very serious. I simply do not accept the argument that the noble and learned Lord, Lord Judge, put forward.

A simple majority vote, for the reasons I have given, would not necessarily prevent deadlock in certain conditions—my noble friend Lord Sherbourne of Didsbury spoke to this—such as when the Government of the day held only a small majority, no majority at all or depended on a small party with a particular regional or country-specific interest. The procedure that is proposed would, in my submission, fail the test of clarity and the absence of loopholes, as the noble Baroness, Lady Taylor of Bolton, put to us. The Joint Committee itself noted on the matter of a vote in the Commons before Parliament was dissolved, that, “The majority”—there were conflicting views, as the noble Lord, Lord Beith, put to us—

“considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”

I agree with the submission of the majority that this would be

“counter to the public interest.”

In short, far from making things simple, the very thing that the noble Lord, Lord Grocott, said he wished to achieve, it could still lead to stasis.

The most detrimental aspect of a vote in the other place, and potentially allowing that to be used to frustrate an election, is that general elections are sometimes called when the existing Parliament has proven to be unviable. The statutory requirement for a vote in the other place would only compound that problem, and in such a case, as we have discussed or I have submitted, with part of his own party potentially voting against a Prime Minister—circumstances that the noble Lord, Lord Butler, suggested could happen—even a simple majority would be too high.

Past Governments, and potentially future Governments, have often worked within turbulent political and economic contexts, trying to deliver ambitious and significant agendas and sometimes with small majorities. It is in these circumstances, above all, that the flexibility of the system which the two major parties in this country pledged to revive and which we are seeking to revive through this Bill matters most. In these scenarios, a Prime Minister should be able to be decisive and request a Dissolution to try to resolve a parliamentary stalemate or test their mandate to govern.

My noble friend Lord Lansley asked by what authority a Prime Minister might act. I think my noble friend and learned friend Lord Mackay of Clashfern answered that. The Prime Minister, acting as the Sovereign’s principal adviser, is able to request a Dissolution by virtue of an ability to command the confidence of the other place. In the case of a minority Government or a confused House of Commons, the agreement to a Dissolution might be difficult to secure—as it proved three times in 2019. I submit that not many new MPs—some noble Lords have been slightly disrespectful of what might be the motives of people in another place—would rush to face the electorate in a matter of months if given the chance to have a say.

It is by no means certain, as noble Lords have suggested, that past minority Governments would have secured opposition support for an election had this system operated. I agree with the powerful interventions of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes on this point. Some noble Lords seem to forget the experience of 2017-19. A vote in the House of Commons might have meant other minority Governments and similar ones having to limp on like that one, unable to deliver their priorities. The revival of the prerogative power to dissolve Parliament is, in our submission, the most effective way for a Government to be permitted to put important questions to the people, resolve stasis and secure the mandate to govern effectively. It is a system of constitutional practice that has worked; I urge noble Lords not to seek to add complexity where previously, before 2011, there was none.

I must address briefly the amendment in the name of the noble Lord, Lord Wallace of Saltaire. It would go further in the development of a statutory process by making express provision that, when Parliament stands prorogued, a Dissolution cannot be sought. The amendment seeks to set a condition that a Parliament must be “recalled”—or rather summoned—for the purpose of the passage of a Dissolution approval Motion.

Prior to the Dissolution of Parliament, a short Prorogation may be necessary to allow the swift conclusion of business; of course, it should be as short as possible. This has happened on several occasions, most recently in 1992, 1997, 2005 and 2010. In 2010, Parliament was prorogued from Thursday 8 April until Monday 12 April, whereupon Dissolution was proclaimed. Among other things, this enabled the general election to take place on a Thursday, as has been usual practice. Although the concepts of Prorogation and Dissolution may be superficially similar in that they are both prerogative acts, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, they are distinct. Prorogation is the formal ending of a Session; Dissolution provides an opportunity for the electorate to give their verdict.

I have heard the arguments in favour of a Commons vote on this matter in the circumstance of a Prorogation also but, respectfully, the Government believe that this is undesirable and risks repeating some of the worst aspects of the 2011 Act. In our submission, providing for the requirement that a prorogued Parliament must be summoned serves only to build in additional delay and undermine the ability of the Prime Minister to act decisively. The risk that the noble Lord alluded to in seeking to strengthen the role of the Commons raises that fundamental question: who should be the ultimate judge on the Government’s decision to call an election? As many noble Lords have said, the answer is clear: the electorate. As the Joint Committee said, they are

“the ultimate authority in a democratic system”.

Like my noble friend Lord Sherbourne of Didsbury, I simply do not understand the idea of a rogue or outrageous Dissolution because it is the fundamental act of humility by the Executive to place their future in the hands of the electorate, who should be the final arbiter of whether a Prime Minister has called an election legitimately. I acquit the noble Lord, Lord Wallace of Saltaire, of this but I have found it strange to hear noble Lords say that they want to repeal the FTPA but return to some of the worst aspects of it. I think that there is a further complication in what the noble Lord suggested.

I am sure that the House wishes to move on. We will have further opportunities in the debate on the next group to discuss sovereignty and controls on Parliament, but I ought to say in preamble that noble Lords have suggested that a Commons vote increases parliamentary accountability and acts as a check on the Executive. It is not our view that the prerogative system diminishes parliamentary sovereignty and the Executive’s accountability to Parliament. Rather, by reviving the prerogative powers, we are restoring the link between confidence and Dissolution. If a Prime Minister loses the confidence of the elected House, they can either resign, seek a Dissolution or seek to recover the confidence of the House. The other place has the nuclear option of a Motion of no confidence and a plethora of means of holding the Executive to account. It does not require further prescriptive statutory measures to do so effectively.

Notwithstanding the gentle chiding of the noble Lord, Lord Newby—I am grateful to him for taking the time, or wasting it as he seemed to argue, to read the letter that I sent to noble Lords—I ask your Lordships to consider carefully the potential, unknown, long-term consequences of this amendment, which flow out of some of the problems that we have discussed in this debate. A vote in the Commons would disrupt the equilibrium in finely balanced, historical constitutional arrangements and could have an impact on the role of the sovereign. In reviving the prerogative power to dissolve Parliament, the Government have clearly acknowledged that this power is exercised by the sovereign on the request of the Prime Minister, as we discussed in the first group.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, in this debate I find myself in the unusual position of agreeing with almost every speaker—agreeing with something they said and disagreeing with something they said.

I start with the point made by my noble friend Lord Stansgate. If the Bill is merely returning to the status quo ante, as was said, I am not quite clear why we need a clause such as Clause 3. I think it was the noble Lord, Lord Butler, who said that it seems inconceivable to him that the courts would insert themselves into a decision about a general election. As the noble Lord, Lord Faulks, said, the practical consequences of doing so are quite disastrous and it is hard to contemplate the impact that would have on a democratic decision to have a general election.

The elephant in the room that has been alluded to is that everybody, whatever side of the argument they are on, is scarred by the unlawful Prorogation. I appreciate that this is about Dissolution, which is very different to Prorogation, but because of the unlawful Prorogation the Government are concerned that the courts may insert themselves into this decision-making. So, even though they are telling us that it returns us to where we were prior to the Fixed-term Parliaments Act, they still feel the need for belt and braces. Yet there is also the view that it is a step too far and would never be needed anyway.

As the noble Lord, Lord Grocott, pointed out, a neater way of avoiding the courts involving themselves in a decision about a general election, and avoiding bringing the monarch into a controversial political decision—the noble Lord, Lord Butler, commented on this—is for the House of Commons to have a vote. If the Government are concerned that, because of the way the legislation is drafted without Clause 3, there would be a danger of the courts intervening—in my view, there is not a role for the courts to intervene, but the Government are concerned that there may be—they have this clause. That is the chilling effect that people are concerned about.

This highlights the fact that the Government are not confident that their own legislation does reset. I agree with the noble Baroness, Lady Noakes, which probably surprises her as much as it surprises me, that it is legislation that tries to deal with shadows, because it is something we all hope will not happen. We have to look at this, and we need some more explanation from the Government as to why they feel it is necessary. It is hard to understand how the courts could and would insert themselves into a decision on a general election. I come back to the amendments in group two, particularly Amendment 3, being a better way to deal with this.

Could the noble Lord also address two things when he replies? Although there are the normal checks and balances of conventions, Parliament and parliamentary behaviour, one of our concerns, which comes back, sideways, to the unlawful Prorogation, is that we have a Prime Minister at the moment who does not really stick to the normal conventions of parliamentary behaviour that we expect. The noble Lord and I have had numerous discussions on this across the Dispatch Box—his face shows no emotion at the moment; I do not want to embarrass him. For example, I think that Prime Minister is the first Prime Minister to have ignored findings on the Ministerial Code, and the first to reject the advice of the House of Lords Appointments Commission and do what he wanted to do. In the same way as the 2017-19 Parliament, which my noble friend referred to as the dysfunctional Parliament, and the unlawful Prorogation influenced our decision, we are affected by the Prime Minister’s behaviour when we look at this. It is the same consideration.

Something is still needed to restore checks and balances. I am not convinced that it is this clause, but I would like to hear some more from the Minister, because most of us would be appalled that the courts would be involved in parliamentary sovereignty, for both practical and political reasons.

Could I get the noble Lord to address one final thing when he responds? I am still not clear about the word “purported”. I looked again at the Joint Committee’s report. Various lawyers, such as the noble and learned Baroness, Lady Hale, and Lord Sumption also commented that, basically, if the Government did something that was outwith their powers, we could do anything about it. If that is the intention behind clause, that is quite damaging. I would find it helpful if the noble Lord could explain why the word “purported” is in there and why it needs to be. I genuinely do not understand why it should be. That seems more dangerous than the clause itself.

[Lord True (Con)]

My Lords, I will certainly seek to do so. I do not wish to pre-empt the Committee in any way. We obviously have other groups to come to. I anticipate that the debates on those will not be quite so lengthy but, given the importance of this amendment, I hope noble Lords will be forbearing if I address it in some detail to place these matters on the record, mindful as we all should be that arguments put at length in Committee should not be repeated at length on Report.

I took it from what the noble Baroness opposite said that the Labour Party agrees with us that the courts should not come anywhere near this. Other people have obviously argued otherwise. She came out with that other elephant in the room, which was glinting quietly in the mists behind the argument from the noble Lord, Lord Butler. She criticises my right honourable friend Minister. The elements are mixed in my right honourable friend the Prime Minister. He has apologised for actions, and things are subject to inquiries. My right honourable friend the Prime Minister is subject to the most unprecedented campaign of personal vilification that I have been aware of in modern politics in my lifetime. Notwithstanding that, I do not think that that justifies ad hominem legislation of any sort. This point was addressed by the noble Lord, Lord Faulks.

The noble Lord, Lord Butler, based his argument on a claim that the Government sought “totalitarian” powers, with an advised plural. This matter concerns one process, as has been pointed out by several people who have spoken, and one process alone: the Dissolution of Parliament and the precipitation of a general election. I find nothing remotely totalitarian in a Government asking the public to be the Government’s judge.

Dissolution remains one of the most fundamental non-justiciable prerogative powers. Nobody has argued that it should be justiciable; some people said, “We do not need to have an ouster clause because it is obviously not”, et cetera. Dissolution is unique for two reasons. First, the constraints on it are democratic; the judgment on a Prime Minister’s decision to call an election is the electorate. There is no vacuum of accountability, as the noble Lord, Lord Grocott, said. What greater judgment and punishment can be meted out if a Prime Minister abuses that power than the loss of power, as the noble and learned Lord, Lord Brown, told us? It is the ultimate political reprimand. Secondly, the security of the process of calling an election, and the election itself, underpins the integrity and health of our democracy. It is critical that exercise of the Dissolution prerogative, including the preliminary steps leading to the exercise of the power, are not made insecure. This prerogative power is inherently political in nature and it is not suitable for review by the courts. There is no legal standard that the courts can usefully apply to review the preliminary steps and the Dissolution decision itself.

This has been the view of the courts, as we have heard. Lord Roskill, in the landmark GCHQ case in 1985, said the courts’ right of challenge must

“depend upon the subject matter of the prerogative power which is exercised”.

He agreed that the Dissolution of Parliament was not

“susceptible to judicial review because”

its

“nature and subject matter is such as not to be amenable to the judicial process.”

Furthermore, as Lord Justice Taylor noted in Everett:

“At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable.”


However, despite these clear directions from some of the most esteemed judicial authorities, in our judgment the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.

As the Independent Review of Administrative Law noted—and I pay tribute to my noble friend Lord Faulks for his role in that and for his reasoned and intelligent approach in leading that review,

“the past 40 years or so have seen a steady retreat within the law on judicial review away from the view that exercises of certain public powers are by their very nature non-justiciable in favour of the view that the exercises of those powers are either justiciable or reviewable on some grounds but not others.”

It is this reality that makes it necessary to include this clause leaving no room for doubt. The clause has been carefully drafted, as the noble and learned Lord, Lord Hope, divined, respecting the message from the courts that only, in the words of Lord Justice Laws, with

“the most clear and explicit words”

can Parliament exclude their jurisdiction. I am afraid, therefore, that when noble Lords suggest that reviving the prerogative power would suffice—this touches on the point raised by the noble Viscount—as the courts would be excluded from reviewing a prerogative power, that does not take into account the direction of travel in the case law and would be to ignore the clear message of the courts themselves. That was the gravamen of the impressive speech of the noble Lord, Lord Faulks, with which, in substance, I agreed, and also the submission of the noble and learned Lord, Lord Brown.

Noble Lords raised concerns with the specific wording of the clause, in particular the words “purported”, “limit” and “extent”, which I will address in detail. First, I emphasise that this clause says what is necessary and no more. Each of its words is necessary, in our judgment, to preserve the non-justiciability of the prerogative of Dissolution. Drafting this clause has been a technical challenge for counsel, and it has required a response to a range of case law. The purpose of the clause is to be as clear as possible about the “no-go” sign around the Dissolution and calling of Parliament, to preserve the sphere of political decision-making that provides the context for the exercise of the prerogative power of Dissolution and the preliminary steps leading to the exercise of that power. The Independent Review of Administrative Law, which had the benefit of seeing the Government’s clause, did not find it disproportionate but rather agreed that it can be regarded as a “codifying clause” which

“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.

I can tell the noble Viscount that it was the view of the Independent Review of Administrative Law that the clause restates the position.

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[Baroness Smith of Basildon (Lab)]

I am sorry to interrupt the Minister, and I am grateful for the detail that he is going into. I am not a lawyer, but I am not the only person in your Lordships’ House tonight who is not. Can the Minister say, in lay man’s language, what he understands a “purported decision” to be? Can he give an example?

[Lord True (Con)]

My Lords, as noble Lords know, I am a lay man. I have read out the legal advice that I have been given that it should not fall to the courts to assess by reference to whether relevant considerations have been taken into account or irrelevant ones have been discounted. I said that earlier in my speech. I will write to the noble Baroness if the words that I have put before Parliament are not sufficient, but they are the words that I have on advice.

[Baroness Smith of Basildon (Lab)]

My Lords, I suspect that those words are sufficient for lawyers, but I think the Minister’s understanding of this might be as great as mine at the moment, so I will perhaps take advice between now and Report so that I fully understand the implications of what he saying—because I do not think he is able to give me further detail either.

[Lord True (Con)]

My Lords, I seek to put into the record the points put to me by those who argue and maintain that this is necessary.

I will further address the specific question of bad faith that was raised. This touches on another area around “purported”. Bad faith was mentioned by Lord Reid in Anisminic as one of the ways in which a decision may be treated as a nullity. Case law suggests that, if an exercise of power by a public body is taken in bad faith, it is unlawful and will be quashed by the court. A decision is taken in bad faith if it is taken dishonestly or maliciously, although the courts have also equated bad faith with any deliberate improper purpose. Therein lies the challenge. Again, there is no suitable standard by which a court can judge what an “improper purpose” is. By what standards can the courts assess the legitimate or illegitimate purpose—

[Lord Beith (LD)]

I want to clarify something. Clearly, one reason to include the word “purported” is to deal with the annulling of decisions that have begun to be put into effect. But the Minister referred earlier to the importance of protecting the political space for the particular decision involved in this legislation: the calling of an election. Is it his understanding that this is quite unlike any other exercise of executive power? If it is not, I shall be even more worried because it would bring about situations in which it is generally publicly accepted that the courts were right to annul, for example, a bad faith decision or a decision that has taken none of the processes that should go with it.

[Lord True (Con)]

I heard what the noble and learned Lord, Lord Hope, and the noble Lord, Lord Beith, said and I was going to, and will, come on to this point. I am trying to put a considered position on the record for the benefit of the House between Committee and Report.

By what standards would a court assess the legitimate or illegitimate purpose, or for that matter the impropriety or propriety, of a Dissolution decision by a Prime Minister? Is a Government calling a snap election because that may be to their advantage in some way an improper purpose? Where is the line to be drawn? Ultimately, these are matters that political actors and the electorate, not, I respectfully suggest, judges and lawyers, are best placed to opine on.

Therefore, although bad faith is suitable in the context of behaviour seen as, for example, commercially unacceptable or a deliberate improper exercise of an ordinary discretion by a public authority, it is not a term that is apt in the context of the Dissolution and calling of Parliament. This is something that is inherently political or, in the words of Lord Justice Taylor, a matter of “high policy”. Dissolution is simply not amenable to these legal tests.

I turn to the second part—a further amendment to delete “limits or extent” from the clause. Again, I am grateful to my noble friend and the noble and learned Lord, Lord Hope, for meeting me prior to Committee to explain their thinking. I hope that what I am about to say reassures your Lordships’ Committee of the necessity and proportionality of Clause 3(c).

As with the inclusion of “purported”, the words “limits” and “extent” are also a necessary response to case law. Clause 3 is drafted in response to the judgment of the Supreme Court in Miller II; that is clear. By reference to certain constitutional principles, the Supreme Court established a legal limit on the power to prorogue Parliament and concluded that it had been exceeded. The point we want to make is that by framing the issue in Miller II as being about the limits of the power to prorogue Parliament, the court was able to put the arguments about non-justiciability to one side.

In analysing the importance of Miller II, the Independent Review of Administrative Law observed that

“it creates the potential for the courts to circumvent the ‘no-go’ signs currently mounted around the exercise of prerogative powers in relation to ‘matters of high policy ... [such as] … dissolving Parliament”.

Therefore, Clause 3(c) seeks to make it clear that in the context of the Dissolution and calling of Parliament, the “no-go” signs should not be circumvented in this way.

My second point is about what standards or limits a court may seek to impose. In Miller II, the Supreme Court considered that two principles of constitutional law were relevant in establishing the relevant limit on the power to prorogue; namely, parliamentary sovereignty and parliamentary accountability. The Prorogation of Parliament is of course different from the Dissolution and calling of Parliament, as we have heard more than once tonight. In particular, the latter enables the electorate to deliver their verdict on the incumbent Government.

However, one might conclude that a court could look to impose a limit on the revived prerogative powers to dissolve and call Parliament, analogous to the limit imposed on the power to prorogue Parliament in Miller II, and in effect require in law a Government, of whatever persuasion and under whatever lead, to have a reasonable justification for calling an election in certain circumstances.

To paraphrase the independent review, in the case of Dissolution, deleting the words “limits” and “extent” would allow the courts to impose

“various conditions on when such a power can be said to have been validly exercised”,

and then declare

“that the power has not been exercised at all if those conditions are not observed.”

The Government consider that this would be an entirely inappropriate limit on the revived prerogative powers.

As I have argued, the Dissolution and calling of Parliament are inherently political decisions that are entirely unsuitable for review by the courts. More specifically, with relevance to Clause 3(c), we do not believe that it is appropriate for the courts to impose legal limits of this sort on when a Parliament may be dissolved and a general election called.

In reply to the noble and learned Lord, Lord Hope, we contend that this clause is not contrary to the rule of law. The Government agree with the independent review, which said:

“It is … for Parliament to decide what the law … should be, and it is for the courts to interpret what Parliament has said.”


The majority of the Joint Committee also concluded that it is

“not inherently incompatible with the rule of law”

for Parliament

“to designate certain matters as ones which”

should

“be resolved in the political … sphere”.

I come now to the point of precedent raised by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Hope, for whose conversations I was very grateful. They asked a specific question and voiced their concerns that this clause sets a precedent. It is not so. As I have explained, Clause 3 is a very specific clause drafted with a particular purpose in mind; namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. For this reason, it is more accurately described, to use the phraseology of the independent review, as a “codifying clause”—a clause that in effect seeks to prevent the courts in future declaring something to be justiciable that is already currently understood to be non-justiciable.

In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. This is a bespoke exclusion to address this precise task.

--- Later in debate ---

[Lord True (Con)]

I will come to that particular piece of legislation—definitely—since it has been raised. To complete what I was saying, the prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing its future and power into the hands of the people. We therefore believe that Clause 3 is appropriate and necessary, as judgment on the Government’s actions in such matters should be left solely to the electorate at the polling booth. I stress that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. The Judicial Review and Courts Bill, by way of contrast, contains an ouster clause to prevent the judicial review of decisions of the Upper Tribunal to refuse permission to appeal decisions of the First-Tier Tribunal.

I turn to the potential consequences of the amendments proposed. Deleting the wording or the clause would undoubtedly make the dissolution prerogative more susceptible to potential litigation. In effect, the decisions in Anisminic, Privacy International and Miller II potentially offer a route for a court, or more precisely a mischievous litigator, to derail an election process by taking the Government to court for calling an election for political imperatives with which they may disagree. The suggestion by noble Lords to delete “purported decisions” is equally disagreeable, for it would arguably provide litigators with a route to try to delay an election through a court case that could examine why an election has been called on one date rather than another. This, I think, we can all agree would be entirely undesirable.

The clause prevents political litigation about the timing of elections; litigation that I am sure your Lordships dread as much as I do and—I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood—I am sure much of the judiciary would dread. Let me emphasise what it is that we are trying to protect: it is nothing less than the legal certainty of our elections, which underpins our democracy. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn, as the noble Lord, Lord Faulks, said, into making decisions and weighing political imperatives that they are not equipped to do.

If there is an intervention, is the election timetable then suspended? Are the people to be informed that a court might deny them the right to have their democratic say? If the court process moves slowly, could the situation arise where a court then dismisses or questions an election result? Asking the courts to review a Dissolution decision is to ask them to weigh the political merits and imperatives of the decision; it is inherent in the nature of the question. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn into making decisions and weighing political imperatives.

More practically, we must consider the risk that we might send a signal to mischievous and politically motivated litigators that they can disrupt the process with vexatious and frivolous claims against Dissolution. Even the threat of such a court case would be disruptive to the process, drag our judges into the political fray and cause huge expense and delay and a frustration of the democratic process. There is no surer way of risking the reputation of the judicial system among many sections of the British people, no surer way for the courts to be seen as a political institution, and no surer way to drag the sovereign into politics. These are not scenarios for which your Lordships can possibly wish. It is wise to take all the necessary steps to be absolutely certain, without a shadow of doubt, to ensure that these scenarios do not occur.

Finally, let me directly confront the case put by the noble Lord, Lord Butler of Brockwell, that, by removing a judicial oversight, this clause allows a licence for the Executive—far from it. The exercise of the prerogative power is a question for the political, not the judicial, sphere, and the remedies and constraints are in that political sphere.

Our constitution has for centuries proved well able to avoid extremities and has provided for accountable checks on the Executive, and these checks are both pre and post hoc. In terms of pre-hoc checks, a Prime Minister requests a Dissolution of the sovereign which, in exceptional circumstances, can be refused. In parallel, the core constitutional principle that the sovereign must not be drawn into party politics acts as an important deterrent to improper requests being made. That is an immense latent force in our constitutional arrangements. Furthermore, the Government, in response to the Joint Committee, amended the Bill prior to its introduction to Parliament so that the statutory election period will be triggered automatically by the Dissolution of Parliament. This will ensure that the theoretical possibility of a Dissolution without an ensuing election period is eliminated.

There are also post-hoc checks and incentives on the Executive that have worked for many years, effectively compelling Parliament to be called as soon as feasible after an election. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling or meeting of a new Parliament is not in the interest of any Government seeking to make progress on the mandate it has received at a general election. Most importantly, the Dissolution and calling of Parliament are powers that pave the way to a general election and a new Parliament. Again, as the noble and learned Lord, Lord Brown, reminded us, the actions of the Prime Minister and the Government are subject to the judgment of the electorate and, in due course, to that of a new Parliament.

If a Prime Minister acts—as we alleged one might—nefariously, even if a Prime Minister acts contrary to prior expectations and past practice, that will be judged by the electorate. It is also available to that new Parliament to undertake the nuclear option of passing a Motion of no confidence on the new Government, almost immediately, if it wishes, on an amendment to the Queen’s Speech. These practical constraints on the Executive have served us well for many generations. As we see, the checks on Dissolution are practical and political; they should not be legal.

I apologise for speaking at such length, but I hope noble Lords will understand the importance of putting these points on the record for your Lordships to consider between now and Report. If any other points have been raised in the debate, I will, of course, write. I sincerely hope that noble Lords will reconsider their amendments and urge them to join the view of the other place to not permit the entry of the courts and support this clause

[Lord Norton of Louth (Con)]

My Lords, I very much agree with the noble Lord, Lord Beith, that it has been a very good debate in light of the quality of the contributions that we have heard. I think it demonstrates the value of this House in being able to hear and rehearse these arguments.

I noticed yesterday when the noble Baroness, Lady Fookes, was presiding over our proceedings and the Minister was at the Dispatch Box that the Minister resigned. When I saw that the noble Baroness, Lady Fookes, was in the Chair this evening and the Minister was at the Dispatch Box I wondered for a moment whether something might happen.

My noble friend Lord True will not be surprised to hear that I do not agree with the argument that he has advanced. I retain my points in opening that this clause, particularly the use of the word purported, does not restore the status quo ante and is objectionable on principle. I have previously quoted the late Lord Simon of Glaisdale, who once opposed an amendment being brought forward for the avoidance of doubt on the grounds that there was no doubt to be avoided. I think we may be in a similar situation here. It is quite clear that the courts would not get involved in this, despite what has been claimed about the direction of case law recently. I do not think the issue really arises, in part for the reasons given by my noble friend Lord True. The problems he adumbrated a few moments ago would be reasons why the courts would stay completely clear of entertaining any case relating to this.

My objection is really on the grounds of principle. I do not think it appropriate to try to limit the power of the courts because one disagrees with particular decisions of theirs. It is objectionable on principle. The argument has been advanced that it sets a precedent; my noble friend Lord True said, “No, this does not set a precedent; it is a bespoke solution.” The problem, I fear, is that on future occasions, Governments will find a bespoke solution based on what is included in this Bill.

I maintain my position. I hear what the noble Lord, Lord Faulks, said about the purpose being to keep the courts out of politics, but my fear is that putting “purported” in is designed to keep the courts out of the law. So I am not persuaded by what my noble friend Lord True said. I am sure that we will come back to this on Report but, for the moment, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I think that we have had a slightly longer and more interesting discussion on this than we anticipated at the start. The noble Lord, Lord Wallace, made a very valid point, not least because we have spoken a lot tonight about the normal conventions and practices of parliamentary politics. It remains to be seen whether the actions of this Government and this Prime Minister, in ignoring so many of them, will become the norm or whether, once he has gone, whenever that might be—it might be sooner than he anticipates—we will return to the normal way of abiding by the conventions.

I wonder whether the Cabinet Manual will be amended to say what happens or what should happen. I was amused earlier today when I read the section on the principles of collective Cabinet government. Paragraph 4.2 says:

“The Cabinet system of government is based on the principle of collective responsibility. All government ministers are bound by the collective decisions of Cabinet”,


which seems a remote concept at the moment, but perhaps we will return to those days as well.

Even though it is not within the power of Parliament to say that these documents should be updated, as with the Ministerial Code—the introduction to which now seems so dated and irrelevant in many ways because what is referred to in it has largely passed—there should be this regular updating. If we are to have a dynamic Parliament and a dynamic constitution, we need to update as appropriate.

[Lord True (Con)]

My Lords, the noble Lord, Lord Wallace, has frequently looked forward to that fabled day when the Liberal Democrats will again have, as he sees it, a balance of power in government. Perhaps a manual could be published on what would be the likely behaviour of the Liberal Democrats in the event they had such constitutional authority.

Jokes apart, I am grateful to the noble Lord for raising these points. They are two fundamentally important documents, which, as my noble friend Lord Norton of Louth and the noble Lord, Lord Kennedy, pointed out, are government documents. We published a Dissolution Principles document because we are aware that principles can operate effectively only when they are commonly understood and, yes, when there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day. There has been substantial discussion and scrutiny of the principles, including by the Joint Committee chaired by my noble friend Lord McLoughlin, by PACAC in the other place, and in dialogue back and forth.

As others have said, Amendment 10 proposes that there should be a process for Parliament to scrutinise a restatement of the principles in the form of a vote in both Houses, which has the difficulties that my noble friend Lord Norton of Louth and others referred to. The Government have reservations that this would be a step towards a codification of principles and conventions, just as we saw that the 2011 Act, which we have discussed, was not necessarily helpful because of the need for flexibility. In fact, Lord Sumption recognised in principle the challenges of codification when he gave evidence to the Joint Committee. He argued:

“One should be careful not to start codifying conventions, because their practical value is that they represent experience and practice … what is required to make Parliament work is not necessarily the same today as it was half a century ago.”


That will be so in the future. The Government believe that a careful balance needs to be struck between ensuring that there is a tacit agreement that these principles should be upheld—I acknowledge the duty to be mindful of the views of people inside and outside politics—and leaving space for these conventions to move in line with the political context.

In practical terms, on this and the next amendment, the Government would be concerned that this amendment means that the provisions of the Bill would only come into effect once both Houses had considered and voted on a Dissolutions principle. That risks creating uncertainty around the coming into force of the Act and, therefore, the arrangements for calling any election, which we have all agreed today should be avoided.

The same applies to Amendment 11. As noble Lords have emphasised throughout the debates today, constitutional conventions have a vital role to play in our parliamentary democracy. I am conscious that the separate tradition of the Liberal Democrats, which I respect, is that they wish more and more to be written down. The Cabinet Manual, alongside other authoritative texts such as Erskine May, is an important point of reference and reflection for how conventions are understood—but iterations enable evolution.

The noble Lord, Lord Wallace, is quite right to say that it will be necessary to revisit these sections of the Cabinet Manual once the 2011 Act is repealed. The Cabinet Manual recognises that conventions continue to evolve, and the Government will in due course respond to the report of the Constitution Committee and set out their intentions with regard to updating the Cabinet Manual. We are grateful to the committee for its considered review of the manual and its thoughtful identification of the key issues that ought to be considered in terms of any update. I am acutely aware that the Government’s response is long overdue, and I have humbly apologised for this to the noble Baroness, Lady Taylor. We are carefully considering those recommendations and will respond in due course.

To continue on the amendment, the Government agree that the Cabinet Manual should be an accurate reflection of our constitutional arrangements, but we are of the view that this amendment for a parliamentary vote is unnecessarily restrictive, for the reasons given by my noble friend Lord Norton of Louth and others. But the Government are particularly concerned that the provisions of the Bill would only come into force once a revised version of the Cabinet Manual has been published. Such an undertaking would necessarily require a considerable amount of work. Tying the provisions of the Bill to such a project risks creating uncertainty, which, again, we wish to avoid.

Both these amendments would run the risk of fixing our understanding of these conventions at a point in time—that is point one—undermining the flexibility that is essential to our constitutional arrangements. On the matter of the Cabinet Manual, I urge the noble Lord to withdraw his amendment, which would add complications because of the Catch-22 situation: the Cabinet Manual draws its authority from its ability to accurately reflect our arrangements, but we have not yet determined in Parliament what the successor arrangements to FTPA should be.

While obviously accepting the importance of both the principles and the manual as well as their relevance across party, beyond party and beyond this Parliament, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Wallace of Saltaire (LD)]

My Lords, the question really is: where are these documents and when are they going to be published? There were some very critical comments from various committees of both Houses, including the Joint Committee, about the lack of quality in what is currently provided in the Dissolution Principles and about the outdatedness of the Cabinet Manual, particularly the part of it that deals with Government formation.

There may be an overall majority for one party at the next election, which would be easier, but we need to future-proof the Bill as we take it through and to prepare for other eventualities. The Joint Committee marks that we are more likely to have non-majoritarian outcomes from elections in the coming years than we have had in the last 50. Perhaps the Minister will be prepared to talk between now and Report about being able to provide some statement on Report about a rather more definite timespan than “in due course”, which, as we know, means “kicked into the long grass for the next year or two”.

We need to have, as far as we can, some shared assumptions, some cross-party agreement, about these crucial conventions in our constitution. That requires trust. Trust is currently in very short supply; trust in this Government and this Prime Minister, if the opinion polls are correct, is currently going through the floor. Where trust is lacking, one needs written rules. Where written rules are challenged, we end up requiring statute. Yes, we would perhaps prefer the flexibility of shared assumptions, but in that case we need to talk about what they are and make sure that we all share similar assumptions, before we slide into a situation that could be another critical outcome or contested set of procedures around the next election.

I look forward to talking further with the Minister, and I may or may not wish to bring these amendments back in some form on Report. For the moment, I am happy to beg leave to withdraw the amendment, and I wish all your Lordships a very pleasant evening.