Dissolution and Calling of Parliament Bill

Lord True Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

Moved by

[Lord True]

That the Bill be now read a second time.

Relevant documents: 8th Report from the Constitution Committee

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

My Lords, if any noble Lords are concerned by the state of my voice, I should say that I have recently had a negative Covid test, but I have just had that cold which your Lordships will know all about. I would like to say how much I am looking forward to the contributions from everybody who is to speak, and congratulate my noble friend Lord Leicester, who was recently elected to this House, on making his maiden speech later; we all look forward to that.

It is a great privilege to open Second Reading on the Bill, which I trust will be welcomed by your Lordships’ House. Repealing the Fixed-term Parliaments Act 2011 was a manifesto commitment both of the Government and of the Official Opposition. As the Labour Party manifesto put it, the Act

“has stifled democracy and propped up weak governments”.

I agree, and look forward to unequivocal support from the Benches opposite today and in Committee—you always travel in hope in your Lordships’ House.

The 2011 Act fostered uncertainty and stasis in our democratic arrangements. It led to paralysis when the country needed decisive action. It undermined the effectiveness and responsiveness of our democratic system overall. The flaws of the Fixed-term Parliaments Act are understood and have been analysed by many noble Lords, including your Lordships’ Constitution Committee—I am pleased to see the name of the noble Baroness, Lady Taylor of Bolton, on the speakers’ list today. I am grateful for the depth of expertise and knowledge that your Lordships’ House has brought to bear on the scrutiny of the 2011 Act and that it will bring to bear on the scrutiny of this legislation.

The Bill seeks to return to the tried and tested position of the past over many centuries, replacing the 2011 Act with arrangements more in keeping with our best constitutional practices: delivering stable and effective government; upholding proper parliamentary accountability and public confidence in our democratic arrangements; and, above all, placing the British people at the heart of the resolution of any great national crisis.

The Bill will provide increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament. I emphasise at the outset that the Bill focuses on the Dissolution and the calling of Parliament only, not any other part of the constitutional process. Ensuring that these arrangements are clear, stable and widely understood underpins the integrity of our constitution.

Your Lordships’ Constitution Committee, in its report of December 2020, warned correctly that the “origins and content of” the 2011 Act

“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

Indeed, the Act led to paralysis and uncertainty at a critical time for our country. An untenable situation arose in the last Parliament, when the Government were neither able to pass vital legislation through Parliament on their central policy nor call a new election and put the question to the people, who had already voted in a referendum for the very proposition Parliament was seeking to block. The result was deadlock and paralysis. The fact that Parliament had to introduce bespoke primary legislation in 2019 to bypass the Act in order to hold the necessary election was surely the final, damning indictment. In summary, the Fixed-term Parliaments Act is a political experiment that failed. It is neither credible nor effective and does not serve future Parliaments or Governments, whether they are majority or minority formations or coalitions.

I now turn to the details of the Bill. Before I begin, I reiterate my sincere thanks for the valuable work of Parliament, particularly your Lordships’ Constitution Committee, chaired by the noble Baroness, Lady Taylor, the Public Administration and Constitutional Affairs Committee in the other place, and the Joint Committee chaired by my noble friend Lord McLoughlin, who I am also pleased to see here in his place today. I also add my thanks for the Constitution Committee’s most recent report on the Bill, which was published on 19 November. The Government welcome its consideration of the Bill and I can give an assurance that they will respond to the report before this House goes into Committee. Its consideration of the 2011 Act and the Government’s Bill has been valuable and has informed our approach, as will become evident.

The Bill is short; its purpose is clear and its objectives are known, because the British people lived with the previous system for centuries. It is a focused Bill of six clauses and one schedule. It restores the status quo ante, except in a few cases, particularly where practical changes to election arrangements made since 2011 have proven beneficial to the smooth running of elections—although I am certain that we will discuss that aspect of the Bill. It returns us to the tried and tested constitutional arrangements that have served successive Parliaments and Governments and that are a feature of our constitutional system.

Clause 1 repeals the Fixed-term Parliaments Act. Clause 2 makes express provision to revive the prerogative powers relating to the Dissolution of Parliament and the calling of a new Parliament that existed before the 2011 Act. This means that, once more, Parliament will be dissolved by the sovereign at the request of the Prime Minister. Within the life of a Parliament, Prime Ministers will once more be able to call a general election. That is a tried and tested approach that throughout our history has served successive Governments of different configurations.

By returning us to the status quo ante, the Bill will enable the link between confidence and Dissolution to be restored so that critical votes in the other place can once more be designated as matters of confidence, which, if lost, would trigger an early election—circumstances which many of us well remember from 1979. The other place will therefore continue to play its expected and key role in holding Governments to account and demonstrating whether they have the confidence of the elected House.

This is the status quo ante that we are all familiar with and understand. Under that system, our nation weathered many a constitutional crisis and accomplished enormous social change and social improvement without conflict, revolution or civil strife. That is the position the general public understand and under which our liberties have long been guaranteed.

Clause 3 restates the long-standing position that the prerogative powers to dissolve and call Parliament are non-justiciable. I understand that some noble Lords question why this clause is necessary at all and say that, after all, these prerogative powers are recognised as outside the purview of the courts. Let me explain: Clause 3 is drafted with careful regard to developments in case law. As noble Lords will be aware, since the GCHQ case, some prerogative powers that were previously considered to be non-justiciable have been reviewed by the courts.

The recent independent review of administrative law, which was chaired by my noble friend Lord Faulks, noted that

“the direction of travel in favour of regarding more and more prerogative powers as reviewable in principle is undeniable and has existed for many years”.

This culminated in the decision of the Supreme Court in Miller/Cherry 2 in relation to Prorogation. So, with respect to those noble Lords who say that there is no risk of the courts reviewing a decision to dissolve Parliament, I cannot simply say that the case law would suggest that this risk can be discounted, and recent events, in particular, have underlined this.

Clause 3 has been drafted with great care, taking on board the position of the courts that the most clear and explicit words are needed. It provides that any decisions relating to the revived powers to dissolve one Parliament and call another are non-justiciable, as well as the exercise of the powers themselves. This is to ensure that any preliminary steps leading to the exercise of these powers, including any request to the sovereign to dissolve Parliament and any related advice, cannot be reviewed by a court or tribunal.

Clause 3 further provides that a court or tribunal cannot consider the exercise of those revived prerogative powers or any related decisions, even if the court considers they are invalid or, in the language used by the Bill, “purported”. Nor may a court consider the limits or extent of those powers. Again, taking into account the case law, this is to make as clear as possible the position that all elements of the process relating to the Dissolution and calling of Parliament are covered by Clause 3 and are not a matter for the courts.

Let me be clear: there would be no change to the involvement of the courts, as the Dissolution and calling of Parliament is not an issue that has, so far, ever been considered reviewable. This clause simply confirms that position, preserves it for the future and protects the judiciary from being drawn into political matters.

Ultimately, judgment on the Government’s actions in calling an election is a matter for the electorate at the polling booth. I remember well the wise words of the noble Lord, Lord Grocott, on this subject at Second Reading of the original Bill, that it is not axiomatic that the timing of an election serves the incumbent Prime Minister. As the Joint Committee affirmed,

“it is appropriate for Parliament to make clear where it thinks the constitutional boundaries lie”.

This clause was unamended in the other place, and while I recognise that your Lordships will have questions, we do, I think, mostly agree that the prerogative power for Dissolution is, and should, remain non-justiciable.

[Lord Rooker (Lab)]

Before the Minister leaves Clause 3 —I am not a lawyer—will he explain the use of the word “purported” in two of the items? He has spent a lot of time on Clause 3, so I presume he is briefed on this to explain why “purported exercise” is also covered.

[Lord True (Con)]

My Lords, I always seek to be brief, but one always aspires to be better briefed in your Lordships’ House. I anticipate that this will be the subject of some discussion in Committee, and I wanted to make some progress in this speech, but to answer the noble Lord, which is my duty, purported exercises of power or decisions refer to things that would be considered by a court to be invalid or a nullity and therefore not a real exercise of power or decision because they have been done on the basis of an error of law. The courts have noted that this could arise where, for example, a decision is made outside the limits of relevant power or without taking into account a relevant consideration.

The reference has been included to make it clear that all elements of the Dissolution and calling of Parliament process fall to the political and not the judicial sphere. The drafting takes account of previous judicial decisions, which I have no doubt we will discuss at some length in Committee. In particular in the case of Privacy International, the Supreme Court said that those drafting legislation should make clear whether such purported decisions are intended to be outside the jurisdiction of the courts. I am grateful to the noble Lord for his intervention, and I look forward to discussing this matter at some length—I hope not at some length—and I have no doubt that we will have a lively discussion in Committee, so I would like to make some progress, if I may.

Clause 4 provides a maximum parliamentary term of five years, calculated from the date of the first meeting of Parliament. This will ensure that elections are held at regular intervals by providing a longstop of five years, a maximum term which is of course still guaranteed by your Lordships through an explicit exception in the Parliament Acts. By reviving the prerogative powers, the Government could call an election either to resolve political deadlock, to seek a fresh mandate from the electorate or after a defeat on a major policy issue.

As I have set out, a Prime Minister will take a number of factors into account when choosing to call a general election. But of course, this would include— I can offer reassurance here—scheduled elections to the devolved legislatures. We recognise the practical administrative challenges of holding elections which are conducted under different arrangements simultaneously or in close proximity. A Prime Minister choosing to call an election would undoubtedly wish to take these matters into account.

Clause 5 introduces the Schedule, which sets out minor and consequential amendments. Clause 6 confirms that the territorial extent of the Bill is the UK, except for a very small number of amendments in the Schedule where the extent is more limited. The Schedule contains a number of minor and consequential changes, including to the parliamentary elections rules in the Representation of the People Acts 1983 and 1985, concerned also with the demise of the Crown and the Recall of MPs Act 2015. I would be happy to explain any of these in detail if your Lordships wished between now and Committee.

The Bill has undergone pre-legislative scrutiny. The Government are indebted to the work of the Joint Committee on the Fixed-term Parliaments Act. We have carefully considered the committee’s findings and amended the Bill in two respects, the first being the Title of the Bill. This small but significant change ensures the purpose and effect of the Bill is clear, reflecting its precise remit and its constitutional significance. Secondly, having reflected on the Joint Committee’s report, the Government agree that the trigger for the election process should be the Dissolution of Parliament. This amendment will give legal certainty that the election period will automatically follow on from Dissolution, providing a clear timetable leading to a defined polling date.

Let me conclude with the conventions which provide the flesh on the bones of the Bill. In restoring the status quo ante, conventions will once more govern the operation of the revived prerogative powers. Conventions can operate effectively only where there is shared understanding of them. That is why the Government published in draft their understanding of those conventions alongside the Bill for scrutiny—not only by the Joint Committee but by Parliament as a whole. We set out in that document:

“The circumstances in which a Prime Minister might seek a dissolution are underpinned by two core constitutional principles.”


First:

“The Prime Minister holds that position by virtue of their ability to command the confidence of the House of Commons and will normally be the accepted leader of the political party that commands the majority of the House of Commons.”


Secondly:

“The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.”


We recognise that the conventions on Dissolution are part of an interlocking picture. Therefore, in our response to the Joint Committee, we have provided fuller explanations of the conventions on confidence Motions, Dissolution and Government formation. It is intended to provide the basis for discussion and debate among parliamentarians, building our shared understanding in and across both Houses and all those represented in them.

The value of conventions is not that they should cover every single hypothetical scenario but that they provide guiding principles and are an effective deterrent —in particular, the imperative not to involve the sovereign in politics. We welcome further discussion in your Lordships’ House on the conventions. That is the best way to develop our shared understanding.

This Bill will deliver increased legal, constitutional and political certainty around the processes for the dissolution and calling of Parliament. It will restore tried-and-tested constitutional arrangements which have been understood by the electorate for generations and are underpinned by the core constitutional principle that the Government of the day draw their authority by commanding the confidence of the elected House.

I hope these constitutional arrangements that have served us well in the past will continue to serve future Parliaments and Governments of all parties, whatever they may be. The ability of a Prime Minister to call a general election for reasons of political or public necessity, to turn to the people to give their judgment, is an essential feature of our democracy. The Fixed-term Parliaments Act disrupted that relationship. This Bill, we submit, will restore the proper balance to our constitutional arrangements.

I look forward to a constructive debate on not only the Bill but the conventions. I commend the Bill to the House.

--- Later in debate ---

[Lord True (Con)]

My Lords, indeed we should never take democracy for granted—although I have noticed over the years, with advancing age, that whenever the party on those Benches is resoundingly defeated at any election, whether by the Labour Party or the party on these Benches, it cries “Populism!”, “Foul!”, “Unfair!”. We have just heard an extraordinary suggestion that an ideal constitution would involve months and months of negotiation, presumably involving the Liberal Democrats, probably on a statutory basis. I have to say that I do not think that that is a way forward that would commend itself to many in this House.

It has been an outstanding debate, and, of course, I must congratulate my noble friend Lord Leicester on his outstanding maiden speech. All of the House found it entrancing: it was deeply rooted in history, traditions and a sense of place, cherishing the best of our past and showing a love and knowledge of the environment. It was also so forward-looking in embracing new technologies and ideas for the future. My noble friend said he liked a challenge. Well, I think we will all relish the challenge that he set out, based on the charm and wisdom that he displayed. By the way, at the age of four I wanted to see a spoonbill and I still never have seen one. That is not a request for an invitation, but I congratulate him on bringing those birds back to these shores.

Also in preamble, I was asked by somebody, possibly the noble Lord, Lord Rooker, to apologise for the 2011 Act. Actually, like my noble friend Lady Noakes with whose speech I much agreed, I was no enthusiast for the 2011 Act. Indeed, I remember coming out of a victorious local election campaign in Richmond in 2010—I will not say who the defeated party were—to be telephoned by my noble friend Lord Strathclyde, who said that he had been summoned to a meeting of the Shadow Cabinet to approve negotiations for coalition, which included some of the ideas that we have heard today. I was not entirely enamoured of that. In fact, if you look in the Division lists on the ping-pong on that Bill, you will not find my name. I was a very new Member of the House, but that was my first mini revolt; I rather fear that one or two others followed. I do not commend that behaviour to my noble friend Lord Leicester, but I will not apologise for the 2011 Act, because, I repeat, it was a political experiment. Some, like the noble Baroness, Lady Taylor, have said that it was a political expediency. That is correct; hopefully your Lordships will accept that it should be gone and gone swiftly.

We have had a very informed debate on an important constitutional Bill. As I had expected, we have had a large number of insightful speeches based on your Lordships’ varied expertise and experience. I will try to answer as many points as I can. I was sorry that one or two of the speeches suggested that there was an authoritarian approach behind this Bill—I think I even heard the word “fascist” at one point, which is not a helpful word to play at political opponents. That was certainly not the Government’s intention or an approach that I would ever commend from this Dispatch Box. On the other hand, I have been very grateful for the support of many of my noble friends; for example, my noble friends Lord Strathclyde, Lord Taylor of Holbeach, Lady Pidding and others.

I was slightly discouraged by the noble Lord, Lord Lisvane, casting a fly over the House on the matter of Prorogation. In my humble submission—I used to look at Bills to see how I could amend them to cause trouble for the party opposite over many years—it does not look to me from the Long Title that Prorogation should come into this Bill. I emphasise that the Bill is not, and was never intended to be, about Prorogation. The Government made it clear at the time that they were disappointed with the judgment on Prorogation but, in the event, the Supreme Court noted that its decision rested on the case’s exceptional facts. What we have in this Bill is not in relation to that Prorogation issue, and the Government will not support attempts to bring that procedure into scope. We should concentrate on the matters before us.

I was asked by the noble Lord, Lord Rennard, and my noble friend Lord Hayward about the 25-day election period. It has not been the main subject of debate, but I know that it is a matter of concern to many. I can say that the Government wish to retain the 25-day working period. This was acknowledged; we have made that clear. We believe that any reduction would have adverse effects on all those involved in elections: political parties, electoral administrators and, most importantly, the electors. As both noble Lords said, modern elections are complex operations, including postal and overseas voting. The Government’s position is that we should retain the current system. I hope that we will not detain ourselves too long on that question in this Bill as, obviously, we will have a larger Bill on elections coming forward.

Many referred to the constitutional conventions and principles that lie alongside the Bill. My noble friends Lord Norton of Louth and Lord Bridges of Headley were wise to advise against too much codification; in that, I disagree with the noble Lord, Lord Wallace of Saltaire. I note the point made by the noble Baroness, Lady Taylor, about the Cabinet Manual, which I will take away. I can offer her no specific response in advance beyond what I have said to your Lordships before.

Conventions are important. If the Bill revives the prerogative powers to dissolve one Parliament and call another, as we believe, then prerogative powers will once more be governed by convention. As I said in my opening speech, it is critical that there is a common understanding of how they will operate. I have no doubt that we will have valuable discussions on those matters.

I was asked to address a question about whether the prerogative can be revived—a point raised, from different perspectives, by a number of noble Lords, including the noble Lord, Lord Lisvane; indeed, the noble Lord, Lord Wallace of Saltaire, asked for an example. I do not particularly want to go back to the 17th century. The centuries that I was referring to were rather more recent, but I would think that 1660 was a fairly significant example of the royal prerogative being revived.

The Government are confident that the prerogative powers can be revived but, as was said by a number of noble Lords, to make express provision to do so is the intent and effect of Clause 2. The Government believe there is a sound legal basis for this position. The courts have said that a revival of prerogative powers is possible. For example, the Supreme Court said in the first Miller case:

“If prerogative powers are curtailed by legislation, they may sometimes be reinstated by the repeal of that legislation, depending on the construction of the statutes in question.”


That was put more strongly in the case of Burmah Oil when Lord Pearce in 1965 observed that, if a statute that restricts the prerogative is repealed, then

“the prerogative power would apparently re-emerge as it existed before the statute”.

This would be subject to words in the repealing statute, as was referred to in the GCHQ case.

As the noble Baroness, Lady Taylor, reminded us, the Joint Committee reserved its position on this question but concluded that the Bill is sufficiently clear to give effect to the Government’s intention of returning to the prior constitutional position. As the former First Parliamentary Counsel Sir Stephen Laws said in evidence to the Joint Committee, this academic debate is a “red herring”. He said that it

“is perfectly plain that the intention of the Act is to restore the situation to what it was before the 2011 Act, and therefore the law will then be indistinguishable from what it was before”.

Of course, many noble Lords on all sides, as I readily anticipated, raised important points about Clause 3. I will address them briefly, although my noble and learned friend Lord Mackay of Clashfern was quite right to say that these matters will need to be probed and discussed in depth in Committee. I think there is general consensus in the House on that, to which I accede, and I look forward to those discussions.

We believe that the clause is necessary and proportionate, for the avoidance of doubt, and will preserve what I still contend, with respect to the noble Lord, Lord Thomas of Gresford, is the long-standing position that the prerogative powers to dissolve one Parliament and call another are non-justiciable. Prerogative powers to dissolve are inherently political in nature and, as such, we maintain, are not suitable for review by the courts. Certainly, that was the view as expressed by Lord Roskill in the GCHQ case in 1985, as the noble and learned Lord, Lord Hope of Craighead, reminded us. The courts are not the place to determine whether Parliament should be dissolved on one date or other.

This clause seeks to underline that position. The Independent Review of Administrative Law in March noted that Clause 3 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”.

Several noble Lords questioned why the clause is necessary at all, if the recognised position is that prerogative powers are non-justiciable. I hope that what happened to my noble friend Lord Young of Cookham does not happen to me in my ministerial career: finding that everything I do is reversed, although that has happened to me in other contexts. I hope that I will be able to reassure him that, in our judgment, the clause is necessary to take account of the direction of travel in case law, and has been drafted carefully in recognition of, and to address, that fact.

Over the years since the GCHQ case, some other prerogative powers previously considered non-justiciable have been held by the courts to be justiciable. So, the purpose of this clause in this case is to be as clear as possible about the no-go sign around the Dissolution and calling of Parliament. It is carefully drafted, respecting the message from the courts in Cart that only

“the most clear and explicit words”

can exclude their jurisdiction. Therefore, while the Government agree that the revived powers of Dissolution are non-justiciable, we are making provision to confirm and preserve this position for the future.

Noble Lords, including the noble and learned Lord, Lord Hope of Craighead, made reference to the judgment of the Supreme Court in respect of the review of the scope of prerogative power to dissolve Parliament. The Government have drafted Clause 3 with regard to case law, including Miller II. It is a proportionate response that seeks to put beyond doubt that Dissolution is not a matter for the courts. The independent review on administrative law noted this judgment, and the distinction it draws creates the potential for the courts to circumvent no-go signs currently mounted around the exercise of prerogative powers. The Clause seeks to make it clear that, in the context of the Dissolution and calling of Parliament, the no-go signs should not be subverted in this way. The democratically elected House of Commons is constituted as a clear expression of the will and judgment of the public, and the ability of the electorate to judge the record of the Government and their decision to call an election as well. That is the continued safeguard which protects Parliament.

Some noble Lords spoke of a concept of an improper Dissolution or an abuse of Dissolution. That concern is misplaced. There are a number of sufficient and appropriate restraints in our constitutional arrangements. First is the convention that the sovereign should be kept out of politics; this in itself is a powerful deterrent to making any improper request. Nevertheless, the sovereign may in exceptional circumstances refuse a request to dissolve Parliament. The noble Lord, Lord Beith, had some important and interesting reflections on this point. I too would like to know the answer to his question about 1974.

That is not all. In response to the report by the FTPA Joint Committee, we have amended the Bill 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. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling of a new Parliament would negatively impact on the authority of the Government. Control by the Commons of tax and expenditure is a further compelling necessity for any new Government to call a new Parliament as soon as possible. One final test is the common sense of the electorate. Any attempt by a Government to manipulate the system would be clear to the electorate, and that Government would be punished in an election.

Many noble Lords—the noble Baroness opposite, the noble Lords, Lord Newby, Lord Grocott, and Lord Thomas of Gresford, my noble friend Lord Lansley, the noble Baroness, Lady Taylor, and many others—suggested that there should be a role for the House of Commons in approving a Dissolution. I anticipate that we will discuss this issue at some length in Committee. The noble Lord, Lord Lisvane, with his great experience, offered important cautionary notes here. I found the analysis of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, as clear as it was compelling, and I agreed with his analysis. The Government disagree with that approach: reviving the flexibility of the previous system undermines the entire purpose of the Bill. The creation of prescriptive statutory arrangements represented a significant departure from our previous constitutional arrangements, eroding the flexibility that is an essential part of our democracy.

The evidence is before us. My noble friend Lady Stowell set this out very clearly: we have to see the broad picture. The experience of the 2011 Act demonstrates that statutory systems can perpetuate political instability. The reality was skated over by the noble Lord, Lord Grocott, in his speech. He said that under the model he proposes, the Prime Minister in 2019 could have had an election three times and had a majority. He forgets the reality of those times. I hope he is never the man with the three cards on Westminster Bridge. The reality is that the Labour Party did not want an election at the time. They could avoid it by simply sitting on their hands, which would not have been possible. The Labour Party could still have avoided an election, even under his proposal.

When the 2011 Act is repealed, it will be vital that the link between confidence and Dissolution is restored in order that critical votes can again be designated as matters of confidence which, if lost, would trigger an early election. Therefore, the House of Commons will continue to play a key role. The claim by the noble Lord, Lord Rooker, that this debate was a battle to prevent the rigging of the membership of the Commons was a very odd characterisation of the Bill’s central intent, which is to prevent interference with the remittance of great political questions to the people—to allow them to choose their elected representatives. I remind noble Lords that the Joint Committee gave this matter detailed consideration and a majority—I respect the alternative opinions—concluded that the House of Commons should not retain a say over Dissolution. Finally, as my noble friend Lady Pidding reminded us, the other place considered and dismissed amendments to enable it to retain a statutory role. I very much hope that your Lordships will not “go there”, as they say, but I suspect I may be disappointed.

Noble Lords have suggested that the Bill limits the accountability of the Prime Minister. I must agree to disagree with that too. There have been and will remain two vital checks, which again have been widely forgotten by many who have spoken in this debate: the House of Commons and the electorate. It was not the case that under the prerogative system, the Commons was unable to hold the Executive to account. The Bill restores the position whereby a Government hold office by the virtue of their ability to command the confidence of the House of Commons. In that respect, the House of Commons will continue to play a key role. Yes, a Prime Minister will once again be able to call an election at a time of his or her choosing, but elections are an expression of democracy. I believe in democracy. As the Joint Committee put it,

“ultimately elections ensure the electorate—the ultimate authority in a democratic system—has the opportunity to exercise its judgment.”

Again, any attempt by a Government to manipulate the system, as we have seen in recent history, would be likely to be punished.

I thank all those who have spoken for their valuable contributions. I will read Hansard extremely carefully and reflect on the many important and challenging things that have been said. I am pleased we have had such a stimulating debate, which has attracted so many of your Lordships. I look forward to being at the service of your Lordships in the period between now and Committee, and indeed, through the whole passage of the Bill. When we are here, my door will always be open. I met a large number of Members prior to today’s debate, and I look forward to further opportunities to engage and, I hope, persuade. I am sure we will continue to have lively and robust discussions as we take this important Bill through its remaining stages. I believe there is broad consensus for repeal of the Fixed-term Parliaments Act, and I commend this Bill and the way it is accomplished to the House. I beg to move.

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

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.

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.

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.

Dissolution and Calling of Parliament Bill

Lord True Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

Moved by

[Lord True]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.

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

My Lords, with the leave of the House, I will briefly remind your Lordships of where we find ourselves. Your Lordships’ House amended the Bill, which had been passed by the other place, to give the Commons the right to a veto on dissolution and invited the other place to reconsider its decision. As the noble and learned Lord, Lord Judge, told us, the amendment would offer the House of Commons an opportunity to reflect again on this highly important constitutional Bill.

It has now been considered by the other place again, and the Commons unsurprisingly maintained its previous decision. During the discussion in the other place, Members noted the flaws of a prescriptive system and feared that it would recreate the paralysis of the 2019 Parliament—something that the manifestos of both major parties at the last general election said they wished to avoid. Furthermore, the importance of retaining the flexible nature of the constitution was emphasised.

Your Lordships asked the other place to consider its role, as is your Lordships’ right. For a second time it has done so, and it has decisively rejected a Commons veto, placing its trust, as do the Government, in the constitutional practices that served this country well for generations before the failed experiment of the Fixed-term Parliaments Act. The Government agree with the view of the other place: the amendment would undermine the rationale of the Bill.

We are now within reach of securing important and historic legislation and delivering the manifesto commitment of two political parties—and notably, from my point of view, of the Government. The Bill returns us to the status quo ante, revives the prerogative powers for the Dissolution and calling of Parliament, and preserves the long-standing position on the non-justiciability of these powers.

I thank all noble Lords for their important engagement in the passage of this Bill, which was valued by me and the Government. It deepened reflection on the Bill and the principles behind it. However, I would be grateful if your Lordships now accepted the clear decision of the other place, which, as the reason before us today notes, is that

“the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”

That is a very clear message from the other House, and I urge your Lordships not to insist on their amendment.

[Lord Judge (CB)]

My Lords, after a short debate in the other place, the amendment proposed by this House was disagreed, and here we are today. There is still an issue: we believe the Dissolution of Parliament should not be based on the revival of the prerogative, but the other place takes a different view. The other place is the elected Chamber. As I made clear during the debate, this issue was to be decided not by Parliament as a whole but by the other place because that is the elected Chamber. It has spoken. I stand by the undertaking I gave during the debate, and therefore this must be carried.

In doing so—I think I am allowed to say this—I very much hope that, in the long march of the future, it will turn out that the decision of the House of Commons is vindicated. I really do hope that. I would like to think that I will be right, but I still do not have confidence that we can be sure that no future Prime Minister will misuse or abuse this power. We will therefore have to wait for the future to decide who, in truth, was right on the issue.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, we laugh, and in some ways, it is amusing. It is also extraordinary—I am not sure that it is amusing. The Fixed-term Parliaments Act was an Act of its time whose main purpose was to protect the coalition Government, and it succeeded in that to a degree. I was very disappointed to read the response of Ministers in the other place. It seemed to focus on the argument that because all parties agreed that the Fixed-term Parliaments Act must go, there was only one way of doing it. That seemed an extraordinary proposition to make. On the points made by my noble friend Lord Grocott and the noble Lord, Lord Newby, this House had no vested interest whatever in the amendment that it passed. It sought to do so in the interests of the democratic system. The Government’s preferred option was one that we found quite extraordinary.

We enjoy in our Parliament a system of checks and balances in the democratic system. For those of us who do not consider that the Prime Minister alone should decide on the election, there seem to be three alternatives: first, that the courts intervene, which the majority of your Lordships’ House found unacceptable, although I take the point of the noble Lord, Lord Butler; secondly, as the noble Lord, Lord Lansley, said, that the monarchy would be drawn into that decision-making process, which we would all seek to avoid—I was glad that he quoted both Jackie Doyle-Price and Kevin Brennan, because I thought the points they made in the House of Commons were very pertinent; finally, that Parliament should have an opportunity to be engaged in that decision.

Those of my age who remember Wolfie Smith in “Citizen Smith” will have heard “Power to the people”; the Minister said, “Let us hand power back to the people”, but the Government are actually handing power back to the Prime Minister. There was never any difficulty in the election process—there was always going to be a general election—it is about who decides on the election. The Minister probably watched too much bad TV in his younger days. I find it extraordinary that the House of Commons was prepared to give up that power so easily.

I agree that, as the other place—albeit its majority being the Government’s majority—does not wish to pursue this, there is little point in our asking it to reconsider. However, I repeat a question that my noble friend Lord Collins asked the Minister in Oral Questions yesterday, which he sort of answered in the affirmative. The Fixed-term Parliaments Act was a prime example of legislation being passed for one particular purpose without a great deal of thought, and it has had to be undone for all the reasons we know. Legislation made too quickly for a specific circumstance does not protect the constitution in any way. I hope the Minister will agree with me that constitutional change needs much more careful examination of long-term and unintended consequences. We have got ourselves into a right pickle over this one. Does he accept that, when looking at any significant constitutional change, a period of pre-legislative scrutiny and consultation would provide for better legislation at the end of the day?

But for now, bizarre as the decision made by the other place may seem, we do not intend to pursue this further.

[Lord True (Con)]

My Lords, I thank all noble Lords who have spoken. I say to the noble Baroness that this Bill did receive detailed pre-legislative scrutiny; it was considered by a Joint Committee of both Houses and Ministers were scrutinised by committees in both Houses. Ministers in both Houses—I have had some small endeavour in this—have engaged actively with interested Members during the Bill. That is a contrast—perhaps this was the point the noble Baroness was making—to what happened in 2011 when the Fixed-term Parliaments Act was cobbled together in back rooms, as we learn about in the memoirs of Mr David Laws.

[Baroness Smith of Basildon (Lab)]

Just to help the Minister, that is exactly the point I was making about the Fixed-term Parliaments Act not having proper scrutiny and getting us into the position we are in now.

[Lord True (Con)]

I was agreeing with the noble Baroness on that. The Fixed-term Parliaments Act was an aberration from 2011 to 2022. Some noble Lords have expressed shock that the House of Commons would wish to return to an arrangement which endured for generations. I do not share that shock.

The noble Lord, Lord Grocott, who was a ferocious opponent of the Fixed-term Parliaments Act—I agreed with him profoundly on this—said he was surprised that the House of Commons responded in the way it did. I read out to the House its reason in my opening remarks. Your Lordships asked the Commons a specific question on the Dissolution Bill: did it want a veto on this Dissolution measure? The House of Commons has replied specifically to that question in its reason. That does not in any way detract from the powers of the House of Commons either to bring down a Government through withdrawing confidence or to sustain one. That remains one of its fundamental powers, which can promote a Dissolution and a general election.

I agree with those who said there is an abiding need to avoid the sovereign being drawn into politics. That principle is accepted by all people, I think, at every level of politics; it has been and will remain the case, as was set out in the Dissolution principles.

It was proposed that the Commons should have a vote, and the Commons has clearly rejected the proposal. I am grateful that noble Lords—albeit it in a mildly chiding way in some cases—have accepted that. I am grateful to the noble and learned Lord, Lord Judge, for not pressing his amendment. I did not chide the House in any way on the role it played—I respect that role—but I think we should show respect for the decision of the Commons in our words and deeds now.

I thank noble Lords for all the points made in the debate. I hope we can now proceed, and I beg to move.

Motion agreed.