Dissolution and Calling of Parliament Bill

Lord Beith Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, it is no surprise that the noble Lord supports the Bill even though he had to offer an explanation for having supported the Fixed-term Parliaments Act in the first place. I am a supporter of the principle of fixed-term parliaments, but I served on the Joint Committee on the Bill and on this House’s Constitution Committee when it considered the Bill as then proposed. I pay tribute to my colleagues on both committees for their very careful consideration of the issues.

I was in the Commons at the time of the Fixed-term Parliaments Act, but, more significantly, I was in the Commons in 1974, when the old system was tested. We had elections in February and October of that year, and I had fought a by-election in November of the previous year, making it three elections in 11 months, with a majority still in two figures at the end of that process. The question that this raises is this: was Harold Wilson advised that to seek an immediate election after the outcome of the February 1974 election would be unreasonable? There was a decent interval of eight months before the next election took place—something that emerged from the process. We still do not know, and I look forward to someday finding the answer to that question.

Fixed-term parliaments are normal in most democracies. We are the exception. Fixed-term parliaments preclude, or limit, the ability of the Prime Minister to time elections to gain advantage or, worse, to create short-term policy inducements in order to secure a majority. That is essentially what Harold Wilson did in 1974. Fixed-term parliaments avoid the further problem that frequent elections and short Parliaments disrupt parliamentary scrutiny of the Executive. It is not always realised that a general election closes down the Select Committee system not only for the duration of the election but for what can be several months after the election. Back-Bench Members who succeed in the ballot for Bills lose their chance of getting their legislation through, and the threat of an early election is one of the devices that Government Whips use as they seek the votes of unwilling Back-Benchers in marginal seats. We might see more of that in this Parliament.

For Liberal Democrats—and, indeed, for Labour, until it changed its position—fixed-term Parliaments were a manifesto policy. A key factor in the coming into effect of the Fixed-term Parliaments Act was the need to maintain the coalition. As the Joint Committee points out, a future coalition may well make similar provision. It is misguided to assume that the so-called gridlock of 2019 was primarily caused by the Act or would be likely to occur again if the Act remained in force. It was a unique set of circumstances in which the majority in Parliament were opposed to the policy outcome of a no-deal Brexit that the Government favoured and could bring into effect by the mere calling of an election—not by the outcome of an election but by the mere calling of an election—during the timetable, before the clock reached midnight. By closing down Parliament for that period of the election the policy outcome of a no-deal Brexit could be secured. It is hard to imagine that set of circumstances happening again.

I recognise that both the Conservative and Labour parties went into the most recent general election committed to repealing the Fixed-term Parliaments Act, and I was therefore willing to be involved in detailed committee scrutiny of the Bill to ensure that it did not damage essential constitutional principles. I welcome the Government’s engagement with both committees and their willingness to make some modest, but not insignificant, changes, including the title, but also, more significantly, the language Ministers use to refer to the Prime Minister’s ability to request a Dissolution, rather than advise. The advice would be binding upon the sovereign; the request is not.

In order to return to the status quo ante, the ability of the monarch to refuse a Dissolution needs to be retained. There are very rare circumstances in which it might be used—for example, when a Prime Minister seeks a quick rerun of an election in the hope of getting a larger majority. But the essence of the matter is that the Prime Minister would be advised that he should not put forward such a request because it would be drawing the sovereign into political controversy. A power can be significant even when it is never directly used. That is the significance that I sought to draw from the 1974 experience.

The Joint Committee was very concerned, as noble Lords have been today, about Clause 3—the ouster clause—and particularly its wide drafting. There is general agreement, not just in politics but in the courts as well, that the calling of elections is not a matter in which it would be desirable for the courts to intervene, but inclusion of a “purported exercise” of those powers in the ouster is a worrying precedent, asserting that the Minister’s powers are what the Minister says they are, not what the law says.

Some Ministers, including the current Justice Secretary, appear to have declared war on judicial review, which is a very important restraint on a powerful Executive. This clause looks a bit like a trial run for ouster clauses on other matters. In this case, it is not necessary, as several have said this afternoon. A House of Commons vote in support of a Dissolution request would be proof against judicial review under the Bill of Rights. A minority of us on the Joint Committee favoured that provision being included in the Bill.

I will make one final point, which is drawn from the summary of the Commons Public Administration and Constitutional Affairs Committee’s report. It says:

“A mix of statute and convention remains the best way for this area to be governed, but requires the actors involved to act in ways which engender trust.”


Recent events underline the importance of those words. It is difficult to sustain trust when it appears that the Prime Minister and some of those around him easily forget that rules and long-established conventions apply to them and not just to the rest of us.

Dissolution and Calling of Parliament Bill

Lord Beith Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, the House is indebted to the noble Lord for elucidating this issue and tabling the amendment. In the Joint Committee, it was worrying that the Government did not initially seem to understand the distinction between requesting a Dissolution and advising a Dissolution, advice that would be binding on the sovereign. I entirely exempt the ministerial reply today from that criticism—the Minister is indeed a former member of the Constitution Committee, which also considered this—but we certainly considered it necessary to explore a little more fully and to criticise the wording of the Dissolution Principles document, the one-page analysis of the issue that made the specific mistake to which the noble Lord made reference.

The refusal of a Dissolution is the only remaining restraint on the ability of a Prime Minister to foreshorten a Parliament in circumstances that might be either entirely appropriate or, in some cases, at least questionable. Subsequent government writing, such as appears in their response to the Joint Committee, indicates that the Government recognise that there are circumstances in which it might be inappropriate to grant a Dissolution, such as a Prime Minister seeking a rerun of an election that has not quite gone according to plan and has not delivered the overall majority that was sought.

Another possibility is the 1974 situation, which I remember vividly because I was elected first in October 1973 and then in February 1974. Ted Heath was unable to establish a coalition, because we did not want to form a coalition with him, so Harold Wilson became Prime Minister. Was he advised that it would be premature to go to the palace and seek an immediate Dissolution? I have no idea, but he did not do so. He took the rather shrewder step of spending about nine months trying to demonstrate that you could have a sanitised Labour Government who did not do any of the things that people worry about Labour Governments doing, and was therefore able to go to the country in a slightly stronger position in October that year. Thankfully, I was re-elected but with a majority of only 70-odd, if I remember rightly; I survived to tell the tale another day. There are circumstances like that in which the issue is a questionable one, and that is why it is important to defend the personal prerogative power.

There are ways of addressing this issue but they do not seem likely to find their way into the legislation as it will eventually be passed. We will discuss Motions of the House of Commons later. They would provide some restraint on a Prime Minister but not very much. Considering that this might not find its way into the final legislation, it is even more important that we protect the ability of the sovereign to decline to give a Dissolution in exceptional circumstances.

Of course, a power like that is more important for what happens behind the scenes than for any possibility that it would be fully exercised and the sovereign would actually have to do it. We are talking about a situation in which the Prime Minister would be advised that it would be unhelpful, inappropriate and potentially damaging to the position of the monarchy to raise the issue at this precise point and, if it was going to be raised, it would be much better to raise it later or at a better moment. Those are the kinds of conversations that surround the few personal prerogative powers that still exist.

The system depends on something that is sadly lacking at the moment, which is a great deal of trust. The Public Administration and Constitutional Affairs Committee in the Commons said that

“some mix of statute and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.”

That has not been happening very much lately, so we should look at this with some care.

The noble Lord, Lord Norton of Louth, has done the right thing by tabling the amendment. I am not entirely persuaded that it makes a difference because my view is that it is a personal prerogative and, unless Parliament legislates it away, it is still there. However, first, it is highly desirable that it becomes clear that the Government understand the position that it is a request, not advice; and, secondly, if there is a general feeling in the House that it needs to be included in the Bill, we can do so. If not, we simply recognise that this is the position and that it has not been changed if we revert to the status quo ante.

[Lord Grocott (Lab)]

My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.

It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.

It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.

--- Later in debate ---

[Lord Lansley (Con)]

There are many circumstances in which crises can emerge. There are arguments that cut both ways. In the midst of a pandemic, does one want an election? In the midst of a war, does one want an election? We could go back to 1940 and say, “Surely, if the Prime Minister then, Neville Chamberlain, had sought a Dissolution, why would he not have been granted it? Would it have not been right for the electorate to say what the outcome should be?” My response to my noble friend would be to ask whether in those circumstances it would not be the responsibility of the House of Commons, and whether it did not have the authority to resolve that crisis. If the answer we come to is, “Oh, but, but, but…”, there are all sorts of circumstances and hypothetical scenarios that we can conjure up which would lead us to the assumption that the Prime Minister can go to Her Majesty or the monarch and request a Dissolution, but the House of Commons would not support it. I come back to the same question: by what authority does the Prime Minister make such a request? I support the amendment and have put my name to it because it brings us back, time and again, to precisely that point.

Professor Robert Hazell put it more elegantly when he gave evidence to the Joint Committee:

“The best way of protecting the monarchy is not to revive the prerogative power but to leave decisions about Dissolution where they belong—in Parliament, in the House of Commons.”


This amendment does that in the simplest and most effective way possible by making it certain that if a Prime Minister requested a Dissolution in future, he or she did so on the basis that a majority of the House of Commons had agreed. If not, by what authority would he or she do it?

[Lord Beith (LD)]

This is an issue which divided the Joint Committee. The view expressed by the noble and learned Lord, Lord Judge, was the view of a minority of the committee of which I was a member, whereas the majority did not want to go into this territory. We had a great deal of discussion about it, but the report records, unusually, that there was a clear difference of view.

I support the idea that there should be a House of Commons vote. Even though I previously supported ensuring that the prerogative power remained a personal prerogative, partly in case this amendment was not carried but also because the two are not inconsistent with each other, it would be even more inconceivable that the monarch should refuse a Dissolution if it had the clear authority of the House of Commons behind it.

A further benefit of having a House of Commons vote on Dissolution is that it makes it quite clear the ouster clause that we will debate later would be unnecessary. The courts would not interfere with a decision taken by Parliament. We can return to that topic later, but we might as well put it on the table now, because it is a powerful argument for having a House of Commons vote. I therefore support what has been said by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley.

There are circumstances in which a Prime Minister might be told that it would be embarrassing for the monarch to have to be asked because a Dissolution might be refused. That would include a re-run of an election that had just taken place. Let us imagine a situation where one party is known to have substantial resources and seeks a re-run of the election, because it is just about the largest party but does not have a majority. There are a variety of such circumstances. In their response to the committee, the Government quite sensibly said that it was impossible to speculate—I am not quoting exactly—about the many different possible situations that could arise, and it is not very fruitful to do so. We merely recognise that there are possibilities.

While so much is said about the failings of the Fixed-term Parliaments Act—I know that it has faults, but the two-thirds majority issue was probably the only significant fault in the legislation—we have to recognise that most democracies in any way comparable to ours have a fixed term for Parliament and that the Joint Committee said:

“The Fixed-term Parliaments Act very clearly fulfilled its immediate political purpose. Not only did the Parliament last the full term, so did the Coalition Government that was formed at the beginning of it.”


I simply say to the other parties that they should be careful what they wish for. The time may come when they seek to form a Government with others and both sides need some guarantee that the Government will not be torpedoed early in its existence.

--- Later in debate ---

[Lord Sherbourne of Didsbury (Con)]

I am very pleased that the noble Lord asked that question, because the debates this evening have said that we do not think the monarch could conceivably refuse a request for a Dissolution, as the noble Lord has already said. Other speakers have said that the House of Commons would never refuse a Dissolution; that was the thrust of the noble Lord’s speech and the speeches of other noble Lords. We are being asked to put in a brake on the power of the Prime Minister, but we are told that the brake will never be exercised. What is the point of that? I come back to my question: what are the most inappropriate examples of a Prime Minister abusing their power by calling an election? I can think of only two. First, they might, for party-political reasons, seek the advantage of going early because they think they can get a bigger majority. We know that the electorate are not stupid. There are, throughout the whole country, Brendas from Bristol who will react to that—we found this in February 1974 and in 2017.

The other reason which I thought might be in the minds of noble Lords is if the Prime Minister of the day wanted to go to the country with what they thought would be a sole populist or undemocratic programme, and they were worried that the electorate might vote for it. That poses two problems. First, it is denying the public the right to choose the Government and policy they want. If you really want to exercise an effective brake for that sort of reason, you need a different Bill, because this Bill is designed to end the Fixed-term Parliaments Act and go back to the status quo ante. I believe, as my noble friend the Minister said, that this clause to give the House of Commons a veto—otherwise there is no point in giving the provision to it—drives a coach and horses through this Bill.

[Lord Beith (LD)]

I shall seek to answer the noble Lord’s question. I go back to February 1974. Imagine that Harold Wilson had said, “I’ve become the Prime Minister. I don’t have a majority. Mine is the largest party. I want to rerun the election straightaway.” Add into that mix—which was not the case at the time—that he is the leader of the party that has the most substantial resources and has been the least damaged financially by the conduct of the election. But that is not what happened. Maybe Harold Wilson was advised that he should not do that, but that is the sort of circumstance that might be thought inappropriate.

[Lord Sherbourne of Didsbury (Con)]

I just think that if you gave the House of Commons the opportunity to veto it, and the Government of the day simply could not get on with their business, which is what would probably happen, then we would have a problem. I come back to the point I made with my noble friend Lord Lansley: if you have a Government with a minority, or without a working majority, that Prime Minister may not be able to get the support of Parliament; but he or she needs it to be able to have an effective working Government.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, with a Supreme Court judge, the chairman of the most recent inquiry into the workings of judicial review—he did an extremely good piece of work on that—and a former Cabinet Secretary presenting views that differ in more than nuanced ways, the House will have to resolve this issue. Those of us who are deeply concerned about this clause cannot be accused of wanting to drag the judges into decisions about whether elections are being held. In my case, and in some of the other cases, we have offered two mechanisms that clearly make that very unlikely.

One is that the courts would be very unlikely to question or interfere in any way with the personal prerogative power, which we all agreed earlier is the nature of, if not the wording of the Bill, then of the re-establishment of the status quo ante. The second is that a significant number of us argued that a vote in the House of Commons is a desirable process. Were it there—were it a condition—it would entirely obviate any fear that the courts would become involved, because the courts would recognise the Bill of Rights’ prohibition on questioning the decision made in Parliament. We are not people seeking to drag the judges into this process.

The Government’s belief that they have to build a bulwark of some kind against judges becoming involved, all based on a particular recent experience that was about not Dissolution but Prorogation, has, I think, drawn them into doing something that, if we do it, we will come to regret very much in years to come. The phraseology of the clause should remind us of that: it is the

“purported exercise of the powers”

or the “purported decision”. What does that take us to? It takes us to the point where the Government are trying to ensure that the courts do not question whether the Prime Minister had the power to act in that way, or, if he had the power, that he is acting in ways covered by the legislation. I find it very hard to conceive of a case that could be made, if the processes of this legislation are followed, in which that could reasonably be advanced in front of or taken seriously by any court. What I see is an ouster clause that we will not see the last of and that we will see again in other legislation. Then it will be said that it is a perfectly acceptable ouster clause, as Parliament allowed it in legislation that repealed the Fixed-term Parliaments Act; that it is just a straightforward way of making it clear that this is an area in which we do not want the courts involved.

The power of judicial review, which was carefully analysed by the noble Lord, Lord Faulks, and the team he led, is an essential way in which the citizen is protected from the abuse of power by the Executive. There are many kinds of Executive, not just the national Government we are thinking of today; local authorities and private sector organisations have powers of various kinds. If they act beyond those powers, the courts are the proper place to challenge that misuse of power. Once we give currency to the idea that a Minister can say in relation to a purported action or purported decision that they have decided they have the power to do this and may not be challenged, that is a reversal of the entire system of judicial review.

The process described in Clause 3 will never be engaged in relation to what we are talking about—the calling of a general election. There are so many barriers against it—not least, of course, the desire of the judges not to get into that political process at all—but once we have got this on to the statute book, we will not have seen the last of it. I think we have created a highly dangerous model for ouster clauses. I am disappointed, in a way: I think the noble Lord, Lord Faulks, resisted pressures to come up with foolish decisions in his review, and I would welcome him being on my side on the issue, which is about the longer-term importance of judicial review for the purpose for which it was intended. One can raise questions about some ways in which it has been used in the past. One can raise questions about whether there are some limitations, such as the Cart issues raised by the review by the noble Lord, Lord Faulks. It is vital in the protection of our citizens and I see it threatened by the existence of this clause.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my core concern regarding this group of amendments is for the future generation of judges—not just in the Supreme Court, but judges who, I suggest, must inevitably be troubled at first instance and so forth before things get to the Supreme Court—if there is there is the slightest glimmer of a prospect of anybody legally challenging any decision with regard to Dissolution. I find myself in total agreement with all that my noble friend Lord Faulks said and the legal analysis here. The courts have striven mightily to remove any possibility of ouster clauses having effect. With that, in most contexts, I totally agree, but this is in the context of Dissolution and of trying, with the utmost clarity, to return as whence we were, where there was no possibility of the courts entertaining a challenge.

To my mind, the courts would be grossly embarrassed and, of course, singularly unlikely to intervene. The noble Lord, Lord Beith is absolutely right: it is the last thing they would want to do because it would be so embarrassing and destructive of the current constitutional position of judges to allow themselves to be drawn into this field. However, the temptation for others to try to involve them must be removed. I suggest that this clause, as is, tries to dot every I and cross every T.

--- Later in debate ---

[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.

Dissolution and Calling of Parliament Bill

Lord Beith Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.

I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.

It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.

That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.

That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.

But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.

[Lord Beith (LD)]

My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.

In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.

It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.

I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.

My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.

The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.

[Lord Faulks (Non-Afl)]

My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.

First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.

It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.