Dissolution and Calling of Parliament Bill
Tuesday 6th July 2021
(3 years, 4 months ago)
Commons ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts
18:46 - The House divided: - Ayes: 367 / Noes: 65 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Eleanor Laing)
I have to tell the House that Mr Speaker has not selected the reasoned amendment.
The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Michael Gove)
I beg to move, That the Bill be now read a Second time.
It is a real pleasure to move the Second Reading of this Bill. The Bill contains provisions to ensure that we supersede the Fixed-term Parliaments Act 2011 with appropriate, democratic and timely reform in order to ensure that we restore to this place and to the people an opportunity to ensure that the Government that govern in their name can command the confidence of this House and the confidence of the public.
The legislation that we are bringing forward will I hope command support across this House, because it was a manifesto promise in both the Conservative and Labour party manifestos. Both Front-Bench teams are committed to the legislation, and it follows on from an excellent report by the Public Administration and Constitutional Affairs Committee, chaired by my hon. Friend the Member for Hazel Grove (Mr Wragg), and from recommendations made by the Constitution Committee in the other place. It has also received extensive scrutiny and support from a Joint Committee of the Commons and Lords. With both Front-Bench teams and three important Committees all in favour of this legislation, we can see already that the arguments that have been lined up for it are powerful and command wide support. I sincerely hope that nothing I say this afternoon undermines that consensus.
Michael Gove
That is very good advice from the hon. Gentleman. He, like me, believes that brevity is the soul of wit.
Rachael Maskell (York Central) (Lab/Co-op)
Will the right hon. Gentleman give us a definition of “democratic” in view of the fact that when it comes to calling general elections, this legislation will move power from this democratically elected Chamber to royal prerogative?
Michael Gove
Well, it gives power to the people. Fundamentally, all of us sit here at the pleasure of and at the disposal of our electorates. As we saw from the addled Parliament—or the paralysed Parliament or whatever you want to call the Parliament of 2017 to 2019—parliamentarians were actually frustrating the will of the people, in attempting to overturn Brexit and in attempting to sustain in power a Government who needed to seek confidence from the electorate and for the maintenance of their programme. For that reason, we are restoring power to the people, which had been taken away by the FTPA.
Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)
I saw the right hon. Gentleman try to answer what I was going to ask him in his reply to the earlier intervention. Considering that there have been two snap elections in the past four years, what problem are the Government trying to solve?
Michael Gove
It is precisely because there have been at least two elections of the kind that the hon. Gentleman draws attention to that the Fixed-term Parliaments Act has not done what it said on the tin. It has failed the Ronseal test. For those who advocated the Fixed-term Parliaments Act in the first place, all sorts of arguments were made about the importance of the predictability of election timing, and, of course, the Bill palpably failed to achieve that in the way that it failed to achieve so much else. What we are doing with this legislation is restoring a tried and tested method by which Prime Ministers can command the confidence not just of this House, but of the country.
Aaron Bell (Newcastle-under-Lyme) (Con)
Will my right hon. Friend give way?
Michael Gove
I am more than happy to give way to my hon. Friend, a distinguished member of the Joint Committee.
Aaron Bell
Does the Secretary of State agree that any legislation in this area must work with any parliamentary arithmetic? That was the problem we saw in the previous Parliament and that is what going back to the status quo ante before 2010 will achieve.
Michael Gove
My hon. Friend is absolutely right. Our approach to the dissolution of Parliament and the calling of elections before the Fixed-term Parliament Act was robust, successful and effective and ensured that our democracy worked as it should. What we are doing is ensuring that those tried and tested procedures are restored, and in so doing not just fulfilling our manifesto pledge, but—and it was a pleasure to do so—fulfilling the manifesto pledge of the right hon. Member for Islington North (Jeremy Corbyn) and making sure that democracy in that way is underpinned.
Sir Charles Walker (Broxbourne) (Con)
Does my right hon. Friend not agree that the Fixed-term Parliaments Act was probably the single worst piece of legislation that the coalition Government introduced? Fortunately, I did not vote for it then, but I will certainly be voting for this repeal tonight.
Michael Gove
Regarding the coalition years, I think that others are better placed—given that I served in the Government for five years—to decide which was the worst piece of legislation that was passed. The one thing I will say for the Fixed-term Parliaments Act is that it was very much a child of its time. It did achieve one purpose. It was introduced at the request of our Liberal Democrat coalition partners in order to ensure that, for the five years of that Parliament, neither party could collapse the Government in a way that might secure for either the junior or the senior coalition partner perceived political advantage. It did serve that purpose for those five years. Notwithstanding the points made by my hon. Friend, there was a significant range of achievements that the coalition Government can take pride in; nevertheless, the Act was specifically a child of its time. While it worked in that narrow sense, in cementing the coalition and ensuring it could achieve the policy gains that I believe were gained during those five years, its utility beyond those years in tougher circumstances has been tested to destruction.
Chris Bryant
I will let the Minister in on a secret: not all of us supported everything that was in the Labour manifesto at the last general election.
Is there not a worrying issue here, which is precisely what the right hon. Gentleman refers to as “the child of its time”? If the Government can always reconstitute the constitution every time they can pass a law, we have a problem here, because the Government are most likely always to do so in their own interests.
Michael Gove
I take very seriously the points that the hon. Gentleman makes, because there are few deeper scholars of our constitution or parliamentary history than him, but I would say two things. First, sometimes there are constitutional experiments or innovations, and it is understandable that they will have partisans who can see benefits from them; but then we can see in real time and in real circumstances whether those constitutional innovations are right and work, or whether it is appropriate for us to go back to the situation that prevailed before, which has actually proven over time, in a variety of circumstances, to be both more robust and more effective.
The second point is that of course there is always a temptation for Governments or any Administration in power to seek to look to the rules and to derive advantage perhaps from changing them, but the critical thing here is that, ultimately, the decision on whether an election has been called and Parliament has been dissolved appropriately rests with the people. We can look at historical examples; for example, in the 1970s Edward Heath decided to go to the country to ask the question, “Who governs?”. He believed that, in choosing the timing of the election, he was doing so to his party’s advantage, but when he asked, “Who governs?”, the country replied, “Well, not you, mate.” On that occasion, it was the case that a miscalculation on the part of the Prime Minister resulted in the electorate deciding that Edward Heath’s Administration should end and that Harold Wilson’s should take over.
Chris Bryant
In which case, one could conceive of a situation in which the Government were aware of something coming up that the public were not aware of—a report or a major security breach that had not yet been made public, for example. Or, for instance, the Government might choose to hold a general election before boundary changes because they thought that it might be to their advantage. Would it not make far more sense for the House simply to be able to vote at that moment?
Michael Gove
In both the cases that the hon. Gentleman mentions, if there were jiggery-pokery or the Government were acting in a way that the electorate considered heedless or reckless, electoral punishment would occur sooner or later. Attempting to rig the rules in that way is, as we have seen in the past, something that the public are always alive to, always wise to and always ready to punish.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Surely the biggest difference, though, between the situation today and that facing Edward Heath in the 1970s is the amount, the nature and the regulation of the spending of money. Heath did not have a long period before a short period of expenses and there were not those controls. Effectively, this Bill will allow the Prime Minister and the Prime Minister alone to be the only person who knows when that long period starts and to pile the money in. That is what this is about, is it not?
Michael Gove
No, it is not what it is about. The money spent on elections is an issue in which the Liberal Democrats and other parties have long had an interest, but more broadly the point is that the choice of election timing should ultimately depend on the capacity of the Prime Minister to command the confidence of this House. We saw during the course of the 2017 to 2019 Parliament the consequences of the Fixed-term Parliaments Act in a way that worked against the interests of democracy explicitly.
Michael Gove
I will just make a little progress and then come back to the right hon. Gentleman.
We saw in the 2017 to 2019 Parliament what happened when Parliament attempted to sustain a Government in office, to deny a Prime Minister the Dissolution that he requested, and yet at the same time would not allow that Government to get their business through, so we had a paralysed Parliament. We also had a Schrödinger’s Government: they were simultaneously in power and not in power, in office but incapable of carrying forward their legislation. We saw in the December 2019 general election the consequence of that: the party that argued that there needed to be a Dissolution, an election and a refreshed mandate secured that refreshed mandate, and, as a result, we saw our democracy working as it has so successfully in the past and as it deserves to again in the future.
Mr Carmichael
If, as the Minister says, this is about the point at which the Prime Minister can command the confidence of the House, surely that is something that can only be determined by this House and not the Prime Minister, so the point made by the hon. Member for Rhondda (Chris Bryant) is a good one.
Michael Gove
The points made by the hon. Member for Rhondda (Chris Bryant) are nearly always good ones, but on this occasion it is wrong. Ultimately, the decision about whether it is right to call an election and whether the Prime Minister and the Administration should return to power rightly rests with the people. During the course of the 2017-19 Parliament, parliamentarians sought to frustrate the Prime Minister seeking an election, and when that election eventually occurred, we saw that an appropriate decision was taken by the voters.
We also saw during the 2017-19 Parliament the reputation of Parliament—much to my regret—diminished in the eyes of the public because of its failure both to deliver on the original Brexit vote and to allow Government to carry on their business. In making sure that we return to a situation where we do not have the Fixed-term Parliaments Act, we are keeping faith with democracy. We are also keeping faith with the basis on which this Government were elected and, indeed, on which the Opposition argued for office.
Rachael Maskell
The reality is that Government hold privileged information. In the light of the economic challenge coming down the path, surely the Bill is simply a cut-and-run Bill to allow the Government to call an early general election before they have to deal with that crisis.
Michael Gove
I completely disagree. Looking at the broad economic situation that we face and what may happen in future, we have a well-informed and judicious electorate that will make a judgment whenever an election is called about the fitness of this Government to be returned to office or, indeed, the readiness of the Opposition or any other party to assume office, as has been seen in the past.
When Governments have sought to cut and run—when they have sought to manipulate the electoral timetable to their advantage—they have been punished. It was the case not just in 1974 with Edward Heath but in the early 1920s with Stanley Baldwin, when he sought to cut and run using the formidable advantage that he had—the support of press barons and the wealthy. Nevertheless, we saw the return of the very first Labour Government under Ramsay MacDonald, supported for all too brief a period by the Liberals of that time.
Dr Julian Lewis (New Forest East) (Con)
The historical case that my right hon. Friend is making is absolutely incontrovertible. The fact is that the legitimacy of previous elections has barely—if ever—been questioned. As soon as we brought in that wretched legislation, we ended up in what he rightly described as a paralysed Parliament. However, is he satisfied that clause 3 is strong enough to ensure that Parliament is not paralysed in future by political uses of the court to try to interfere with the process of dissolving Parliament? Professor Ekins in particular, I believe, has certain suggestions that might make that provision a little stronger.
Michael Gove
I believe that clause 3 is robust and fit for purpose, but it is also the case that Professor Ekins, of the Judicial Power Project attached to the think-tank Policy Exchange, is a brilliant legal mind. We will pay close attention to his arguments and to those of my right hon. Friend and others, in order to ensure that clause 3 is robust enough.
Reference to clause 3 means that it is appropriate for me to turn to the specific clauses in this short and focused Bill. Before I do so, I just want to thank again the work of the Joint Committee under Lord McLoughlin and others, which did such a service to this House, and indeed to the other place, in scrutinising the legislation. When reviewing the original 2011 Act, the Joint Committee found that—
Michael Gove
I will in just a second.
The Joint Committee found that the 2011 Act did fulfil its immediate political purpose of maintaining the coalition Government for five years, but that it did not succeed in enforcing a super-majority constraint on the calling of early general elections, given what happened in 2017 and 2019. Mere repeal of the Act without any form of replacement would create uncertainty and what the Committee called a “constitutional lacuna”—hence the need for this legislation. The Government should allow sufficient time for Parliament to explore the full implications of any replacement legislation. Indeed, the Committee’s own work and the work of other committees has been a service to that cause. That constitutional education should secure a wide degree of cross-party agreement—that exists in the support given from the Opposition Front Bench and from others.
Any replacement should be equally suitable for whatever parliamentary arithmetic is provided by the electorate; I believe this Bill does that. Any replacement should consider allowing the date of any early election to be stipulated in a motion triggering that election, which of course it will, and any replacement of the 2011 Act should not contain super-majority provisions. The Joint Committee also made the point that if future Administrations introduced fixed parliamentary terms they should consider whether the political gridlock that characterised the 2017 to 2019 Parliament is a price worth paying for the perceived benefit of a fixed-term Parliament. All those arguments were powerful. I thank the Committee again for its work.
I would also like to thank—I should have mentioned this earlier; forgive me—my hon. Friend the Minister for the Constitution and Devolution for the fantastic work that she has done in preparing this legislation and engaging with Committees. It is the first time that she has been back on the Front Bench since her recovery from cancer. She has showed remarkable fortitude and I know that across this House we are all absolutely delighted that she is back in her place.
Jonathan Edwards
I absolutely echo the Minister’s comments in relation to his colleague. The law as it stands means that if the Government lose a vote of no confidence, there are 14 days to form another Government, and if that does not happen, that leads to an election. What would be the position following the passing of this Bill? Would the Government losing a vote of no confidence immediately trigger a general election?
Michael Gove
In those circumstances the Prime Minister could immediately, and should immediately, request of Her Majesty a Dissolution and an election would follow. One of the most powerful examples in our recent parliamentary history was the loss of a vote of no confidence in 1979 by James Callaghan, which led to the general election that followed. Some might argue—it is a counterfactual, the truth of which we cannot know—that had James Callaghan sought to refresh his mandate in 1978 when he was in a stronger position politically, he might well have been returned. The perception on the part of the Labour party at that time—although it had lost the support of the Liberals just beforehand—that it was to its advantage to continue was of course undone by a decision of the electorate.
Chris Bryant
Historically, many different things have counted as motions of no confidence—for instance, losing a vote on an amendment to the Loyal Address following the Queen’s Speech or on an amendment to the Finance Bill, or refusing to grant supply for a military intervention or to allow a military intervention. Does the Minister think that all those things would still count as a motion of no confidence?
Michael Gove
The formal motion of no confidence that is traditionally requested by the Opposition and has to be granted within a day is a classic example, but on the question of military intervention, I personally believe—again, it is for the House to take a view—that that is a proper exercise of the prerogative power in certain circumstances. That is perhaps for debate in other forums, but it would not count in the way that the hon. Gentleman suggests.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the Minister agree that in that situation it would be open to any Member of this House to ask a Minister or the Prime Minister at the Dispatch Box whether he or she considered it to be a matter of confidence and then what followed from that would bear that out?
Michael Gove
My right hon. Friend is exactly right. If any Prime Minister felt that the House’s decision not to grant supply, the House’s decision to censure an individual Minister or the House’s decision not to authorise support for military action was a matter of confidence, that might mean that it would be appropriate to request a Dissolution at that point.
Michael Gove
Not for a little bit, because I want to run briefly through the clauses in the Bill.
There are six clauses and one schedule. The first clause repeals the Fixed-term Parliaments Act. The second clause revives the prerogative power and allows the Prime Minister to request a Dissolution from the monarch. The third clause is specifically to ensure that that decision cannot be reviewed in the courts. It is what might be called an ouster clause. It is there explicitly to say that proceedings in this House relating to the exercise of the prerogative power should not be justiciable.
It is very important, following on from the points made by my right hon. Friend the Member for New Forest East (Dr Lewis), that the House understands, appreciates and supports the Bill on that basis. It has been constitutional practice since 1688 and the Bill of Rights that it should not be the case that these matters are reviewed in the courts. Let me say that judicial review is an important part of keeping Governments honest, but there needs to be an absolute limit on what is considered justiciable and it should not be the case that the courts can prevent the request for a Dissolution on the part of a Prime Minister. If that decision is mistaken, then it is for the people to decide in a general election what is appropriate. I was very pleased that the Joint Committee confirmed in its report that it would be appropriate for Parliament to affirm that.
Michael Gove
I do not think that they would, necessarily. There are people who might seek to do that, but one of the things that Parliament can do—and one of the reasons that my hon. Friend’s question is so helpful, as were the Joint Committee’s deliberations—is to affirm what is the case. It would then be remarkable indeed for any court to attempt to do what my hon. Friend describes; it would be constitutionally unprecedented and, to my mind, would risk the understanding of the balance between Parliament, when its will is clearly expressed, and the courts’ interpretation of the law. I hope that in Committee and on Third Reading, and perhaps later in this debate, all hon. Members will affirm the importance of the non-justiciability of the exercise of these powers.
Jackie Doyle-Price (Thurrock) (Con)
One thing that came out of the Joint Committee’s report was the very clear interpretation that a Prime Minister requests a dissolution rather than advising the monarch on it. I am pleased that the Government have accepted that advice from the Joint Committee, but does it not make the ouster clause completely superfluous? The monarch, acting in conjunction with Parliament, is non-justiciable already.
Michael Gove
That is definitely my understanding of constitutional practice, but—without getting into the details—there have been one or two recent decisions by the courts that might be thought by some to have moved one or two goalposts on the constitutional playing field. Lest there be any doubt, the ouster clause is there to affirm that interpretation. It is a new pair of braces to join the sturdy constitutional belt to which my hon. Friend refers.
Clause 4 makes it clear that the maximum length of any Parliament should be five years. Clause 5 contains some minor updates, taking account of how the Fixed-term Parliaments Act modernised our electoral law, and introduces the schedule attendant to the Bill. Clause 6 makes it clear that the Bill covers the whole of our United Kingdom.
Sir Charles Walker
On clause 4, will my right hon. Friend confirm that a maximum five-year term will mean that the latest that we could have a general election in this Parliament would be January 2025?
Michael Gove
I think that I would defer to others on fixing the precise date, but I believe that that is so.
Aaron Bell
In addition to what is in the Bill, we have to discuss what is not in it: the conventions that we seek to restore and the Dissolution principles published along- side the draft Bill. As my right hon. Friend will know, the Joint Committee considered the conventions, the paramountcy of confidence and all those things quite extensively. From reading our report, what conclusions have the Government reached about the nature of confidence and the circumstances in which calling a general election would not be an appropriate thing for a Prime Minister to do?
Michael Gove
Again, my hon. Friend makes a very important point. Alongside the Bill, we have produced a brief statement of Dissolution principles. He is absolutely right. Our broad understanding of Dissolution principles derives from a letter written by Sir Alan “Tommy” Lascelles pseudonymously—I am glad to be able to use that word in the House of Commons—to The Times in the 1950s. He argued that a Dissolution should not be granted if the monarch thought that there were a viable alternative that could command a majority in the House of Commons—or, indeed, if it were a time of economic crisis or peril in which it would be inappropriate for a general election to be called. We think that it is very difficult, as my hon. Friend the Minister for the Constitution and Devolution and others made clear in evidence to the Joint Committee, to provide an exhaustive list of example cases in which it would be inappropriate for a Dissolution to be granted when requested. One thing we would like to do in Committee is have proper consideration of them.
It is important that our constitution always remains flexible and agile. I could conceive of circumstances—immediately after an election defeat, for example, when a Prime Minister is still perhaps clinging on, seeking to form a coalition or a confidence and supply arrangement and failing to do so—when that Prime Minister might seek an immediate other Dissolution shortly afterwards. In such circumstances, I can see that it would not be appropriate for a Dissolution to be granted. As I say, it would be helpful for everyone to take part in the debate to outline the circumstances that they think should guide the operation of the principles.
Mr Goodwill
Is it not also the case that, if there were a vote in the Commons that many considered to be a confidence vote, but the Government refused to accept that, it would be open to the official Opposition to table a confidence motion, in which there would be no doubt whatsoever?
Michael Gove
Exactly so, and it is absolutely important, as my right hon. Friend points out, that we stick to the principle that, immediately upon receipt of a request from the Opposition for a vote of no confidence, such a debate is granted and that the Prime Minister of the day would make their case. Following the defeat of an earlier attempt by my right hon. Friend the Member for Maidenhead (Mrs May) to secure support for her withdrawal Bill, a motion of no confidence was tabled by the then leader of the Labour party. That motion of no confidence was defeated and that allowed the Prime Minister to consider other ways of fulfilling that mandate.
Chris Bryant
I do not want to test everybody’s patience, but the one time when that course is not available to the Opposition is immediately after a general election, before Parliament has got on to actually meeting; and it is the Government, and only the Government, who decide when the House meets and what it debates. I note that we still have no formal process in our system of knowing when, after a general election, the House will meet to transact substantive business, other than to elect a Speaker and have the swearing-in.
Michael Gove
That is an important point, but it is also important to recognise that no newly elected Government can effectively govern without Parliament. It would be impossible without a vote of supply and without a Queen’s Speech to ensure that the basis on which they were elected, and the effective governance of the country, could continue. It is important that we recognise that that is the principle that prevailed beforehand, and it is the principle that we should adopt now.
I shall conclude, because many hon. Members wish to speak. I return to the point that I made at the start. Those who brought forward the Fixed-term Parliaments Act were motivated, I think, by two entirely reasonable motivations. The first was to ensure that the coalition Government—the first coalition that we had had since 1922—was able to proceed and govern in an effective way; of course it was against the backdrop of economic crisis. As a member of that coalition, I do not resile for a moment from the many decisions that were taken during that five years, and I take the opportunity to thank the right hon. Member for Orkney and Shetland (Mr Carmichael) and others who served in that coalition for putting the national interest first at that time.
The second thing that the Fixed-term Parliaments Act was designed to do was to ensure that our constitutional arrangements became more predictable. Although the FTPA succeeded in the unique circumstances of the coalition years, it emphatically has not made our constitutional arrangements more predictable, as what happened in 2017, and indeed between 2017 and 2019, reinforced. Indeed, the circumstances of the 2017 to 2019 Parliament reinforced in the public mind—and certainly that was reflected in the general election result of 2019—the need to move to a more flexible, more responsive, more agile, more familiar and more tried and tested set of constitutional arrangements. It is for that reason that I commend the Bill to the House.
Cat Smith (Lancaster and Fleetwood) (Lab)
I begin by saying how lovely it is to see the Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), back on the Front Bench after her absence, how well she is looking, and—without wishing the entire debate away—how much we are looking forward to her contribution at the end of this Second Reading debate.
As the Chancellor of the Duchy of Lancaster said, the Bill seeks to do two things: it repeals the Fixed-term Parliaments Act 2011 and it reinstates the status quo before that Act came into force. Effectively, it is turning back time. It is on those two points that I shall focus my remarks.
I suspect that we shall have quite a lot of debate today about whether the Fixed-term Parliaments Act worked. The Minister has set out clearly that he believes that it did not, but I believe there is an equally valid argument that aspects of it did work, although of course it was not without its pitfalls and flaws. The best example was the 2015 general election, which took place five years after the 2010 general election. It worked in the sense of holding the coalition Government to that timetable. However, I would argue that we could also say that the 2017 general election proves that the Act worked, because there were clauses within it for having an early election and those were gone through in the 2017 election.
The debate about whether the Act works probably centres around whether the 2017 to 2019 Parliament worked. That probably highlights the flaws in the Act. The fact that the Act said the Prime Minister could control the date of the election was, I would argue, one of the main sticking points of the Act, because at that point the Opposition felt the Prime Minister might abuse the Act to leave the European Union with no deal. Therefore, the Act was not without flaw.
There are also the issues around confidence motions and the questions that they raise. I think that will probably be explored in quite a lot of detail.
Dr Julian Lewis
I concede the hon. Member’s point that the Act did work as far as holding the coalition together until 2015 was concerned, but it did not work in 2017. If it had not been for the fact that the Scottish nationalists and the Liberal Democrats, for political reasons of their own, decided to allow the Dissolution, that stasis could have gone on for months, or years longer than it did. The Parliament would have been paralysed endlessly until the end of the five years. That cannot be right, surely.
Cat Smith
I will let other parties answer for their own actions. I certainly do not seek to speak for them. I think it would be a misinterpretation to say that the Act was purely for the purpose of holding the coalition together. I think that was a huge reason for support in certain parts of the then Government, but actually it was an idea that had been batted around in politics long before then. Indeed, I believe it had been a matter for various private Members’ Bills before the coalition Government came into office. It was certainly not an idea that was just thought up to hold the coalition together.
Alec Shelbrooke (Elmet and Rothwell) (Con)
I look forward to sparring with the hon. Lady on another constitutional Bill. Just to come back to the point she made about trying to set the date of the last election, she may recall that, 24 hours before the one-line Bill was passed, the Fixed-term Parliaments Act failed again to cause the election. The one-line Bill was put through and the irony was that it was by a two-thirds vote of the House. That undermines the FTPA because it shows it was just being used to play games.
Cat Smith
It is a pleasure to see the right hon. Gentleman in his place and I, too, look forward to sparring with him again on constitutional matters. I do not disagree with that. I am certainly not stood here to mount a defence of the FTPA. I was outlining some ways in which I felt the Act did work, but I am also highlighting huge flaws in the Act. Indeed, there is a reason why, in the Labour manifesto of December 2019, we said we would repeal it. The point he raises about the Prime Minister being able to control the date of the election is a huge reason why the Act is flawed. However, I am arguing that the principle of having fixed terms in itself is not necessarily a bad principle; it is a very pro-democracy principle.
Christine Jardine (Edinburgh West) (LD)
Something occurs to me. Those on the Government Benches might say there was stasis for two years, but perhaps the public expected politicians to debate and find a way ahead for the country, rather than just fix into positions and refuse to compromise. The way is not always to jump. It should not always be the Government alone who decide what is best for the country. That is Parliament’s role, surely.
Cat Smith
It would not be at all like the Liberal Democrats to dig into a position and hold it. [Laughter.] I do not believe that that Parliament hit the troubles it hit necessarily just because of the FTPA. If the Act had not been in place, there would still have been huge problems, because the governing party could not command confidence within its own Members and have a majority for its flagship policy. That was the sticking point for that Parliament.
The Act has been used as quite an easy scapegoat. It is blamed for all the ills of that Parliament. While it is not a perfect piece of legislation, and I support its repeal, I can see that the principle of fixed terms is not, in itself, necessarily a bad thing. Indeed, I believe the then Prime Minister, David Cameron, said 10 years ago, during the passage of the Act, that it was the biggest move of powers from the Executive in several centuries. That raises the question, if we are to repeal that Act and go back to the status quo and the old way of doing things, whether today is the biggest transfer of powers from the legislature to the Executive. Indeed, the 2015 Conservative manifesto celebrated the Fixed-term Parliaments Act’s success:
“We have also passed the Fixed Term Parliament Act, an unprecedented transfer of Executive power.”
That raises the question of whether we are transferring power back to the Executive and, if so, whether that is something this House really wishes to do.
Sir Charles Walker
I thank the hon. Lady for giving way, as this is such a therapeutic exercise. It is 10 years of hurt. [Laughter.] I am like a dog with a bone. The problem with the Fixed-term Parliaments Act in 2011 was that it transferred responsibility for keeping the coalition together away from the leaders of each of the coalition parties to Parliament. It was never any of Parliament’s business to keep that coalition going; it was the responsibility of David Cameron and Nick Clegg.
I feel so much better for having got that off my chest for the second time in a decade. I thank the hon. Lady.
Cat Smith
If it does not work out in politics, perhaps I have a career as a therapist.
I find it remarkable that Ministers sitting on the Treasury Bench filed through the Lobby 10 years ago to vote for the Fixed-term Parliaments Act, as today they will presumably be voting the opposite way.
Aaron Bell
The hon. Lady asks who power is being transferred to but, as the Chancellor of the Duchy of Lancaster said, it is a transfer to the people.
I enjoyed the hon. Lady’s exchange with the hon. Member for Edinburgh West (Christine Jardine), but the problem with the 2017 Parliament is that it did not trust the people, which is why we ended up where we did. That is why we had to have the election we eventually had, and it is why we had the result we did. If we just trusted the people, we would all be much better served.
Cat Smith
The hon. Gentleman is right to say this is about power and where power lies. Where we probably disagree and diverge is on the definition of where power is moving to and from.
The Bill before us transfers all the power into the hands of one individual, the Prime Minister. The power to call an election currently lies with all 650 Members of this House, who are elected by the people. I would argue that power to the people lies more in keeping the Fixed-term Parliaments Act. Of course I disagree with the Act, and I support its repeal, but I disagree with the Government’s replacement.
Several hon. Members rose—
Cat Smith
If I may, I will make a little progress. I am conscious of time.
I want to say a few words about comparisons, because it is always important to compare this House and how we do things with other countries and other parts of the United Kingdom. It is about the principle of who has the power to decide when an election takes place, or whether it should be fixed.
The Opposition believe that the democratic position to take, as a starting principle, is that these things should be fixed. Indeed, that is already the case for the Scottish Parliament, the Senedd Cymru and the Northern Ireland Parliament, as well as for our local councils in England and English elected Mayors. We know, and the voters know, when those institutions and individuals will be up for re-election, when they can re-elect them to do their job or reject them if they disagree.
The only question mark lies over this House and when this House goes to the people and the country. We are out of step even within our United Kingdom. In most parliamentary democracies, Dissolution is controlled by the legislature, with varying degrees of involvement from the Executive. I would argue that is good for democracy and, of course, for planning legislation and passing the Government’s manifesto, which the people would have voted for. It helps civil servants to work and plan with politicians, and it helps our electoral administrators, who have frankly been put under an awful lot of pressure in recent years. It helps us as political campaigners to know when a long campaign spend will start, because if we know when an election is called, we know when the spending limits can start kicking in. It is also good, most importantly, for voters to know when they can either re-elect or reject a politician.
The UK has a strong tradition of parliamentary sovereignty, and I believe that Parliament should be central to any decision to dissolve.
Alec Shelbrooke
I just want to probe the hon. Lady’s point about when to hold elections. Is she saying that there could be a period of time when the Opposition would not want to fight an election?
Cat Smith
Of course, in most circumstances an Opposition will want to have an election. If the right hon. Gentleman is referring to the 2019 situation, that was not about not wanting to have an election; it was about not wanting a situation in which the Government could take the country out of the European Union with no deal. That was the sticking point, and that was the issue with the date. In most situations, an Opposition would always want an election. Indeed, I can say quite confidently that I would do a darn sight better job than the right hon. Member for Surrey Heath (Michael Gove), but he knows that.
Chris Bryant
Might there not be a point where the Opposition just wanted to form a Government, because the Government had lost the confidence of the House but the Prime Minister would want to have a general election, because the numbers in the House might allow two different kinds of Government?
Cat Smith
I find it difficult to disagree with my hon. Friend. Indeed, the points that he has made, not just in that intervention but in earlier interventions on the Minister, have raised some important questions that I hope the House will consider. I am grateful that the Bill will be considered in Committee of the whole House and that we will have the advantage of my hon. Friend’s insights at that stage, as well as his contribution in the Joint Committee.
There is no way that this legislation would be before us this afternoon if it did not provide an electoral advantage. When Governments decide when elections happen, there is absolutely no doubt that it can be played to their advantage. As has already been made clear, the Government can call an election before bad news is about to be delivered, or if they feel that their Opposition are in disarray. Professor Petra Schleiter from Oxford University did a comparative study of 27 western and European democracies and found that when governing parties had the power to control when elections happened, they gained, on average, a 5% electoral advantage. Those of us who live and breathe politics will understand that that is the difference between forming a Government and falling out of government. That is why I would argue that it is anti-democratic to allows all the power to lie in the hands of one individual.
Anthony Mangnall (Totnes) (Con)
I am sorry to interrupt the hon. Lady, but that argument is somewhat of a straw house of an argument, because that could still be used at the end of a five-year parliamentary term if the Government stacked their legislative programme to be so in the interests of their constituent base that they would win anyway. So I am not entirely sure that her argument holds water, because either way, the Government of the day, whatever their colour, are able to do whatever they want in legislative terms that is most beneficial to their constituents.
Cat Smith
I suppose the difference is that when there is a five-year Parliament and all the parties know when the election is happening, there is a level playing field, unlike when a Government can call a general election unexpectedly if the advantage lies entirely with the governing party and not with any of the Opposition parties. The Bill therefore skews power towards the Executive and towards incumbent governing parties. It also gives Prime Ministers the power to haggle with Parliament by threatening early Dissolution and early elections. I would also argue that the Fixed-term Parliaments Act—although it is flawed and I certainly support its repeal—puts us more in line with other democracies that constrain the power of Prime Ministers.
Turning to the monarch and the attempt to restore the royal prerogative with legislation, if the Crown is left as the only check on untimely requests for Dissolution, that would inevitably draw the Crown into controversy if such requests were refused. Perhaps the Minister will shed some light on that in her closing remarks, but I struggle to see the circumstances in which a sovereign might decline a request for an election. I would argue that the most effective way of avoiding such a constitutional crisis would be to leave decisions on Dissolution to Parliament, which is the right place for what is a quintessentially political decision. The House of Lords Constitution Committee said when it published its report on the Fixed-term Parliaments Act in September:
“Reform of the Fixed-term Parliaments Act must keep the Queen out of politics.”
I sincerely agree with that. The Government’s proposal that the monarch should be the only check on a questionable request for Dissolution inevitably risks dragging the monarch into politics. I argue that the easiest way out of such a situation would be a parliamentary vote on Dissolution, which would protect the monarch from being dragged into politics.
Cat Smith
I would like to make a bit more progress.
I put on the record my thanks to Professor Meg Russell and Professor Robert Hazell for their evidence to the Joint Committee, which I have found very useful, as well as for their informative podcast, of which my hon. Friend the Member for Rhondda (Chris Bryant) was a feature.
The arguments that I have heard for leaving Dissolution in the hands of Parliament have convinced me that it would be the easiest way to keep the courts out of these decisions. Clause 3 will be a topic of quite heated debate. It is impossible to imagine the crack through which the courts could intervene had a House of Commons decision to trigger a statutory power of Dissolution been recorded. If the Government adopted that approach, we could remove the ouster clause, which would then be self-defeating in its current terms.
As long as Prorogation continues as a prerogative power, one way to avoid Parliament being prorogued against its will would be to make the prerogative power exercisable at the request of Parliament, rather than on the advice of the Prime Minister. An alternative would be to abolish the prerogative power and put Prorogation on the same footing as the power of Adjournment, thereby enabling Parliament to be prorogued when the House of Commons passes a motion to that effect.
Ultimately, I believe that Dissolution should remain in the hands of Parliament, not the Executive. The Bill is very much about the question of where power lies. The Fixed-term Parliaments Act was problematic and there are certainly aspects of it that I will be quite happy to see the back of, but the principle of having fixed terms is not in itself necessarily a bad thing—indeed, it puts us on a level footing with many other western democracies and progressive democracies around the world, and in line with our own Parliaments here in the United Kingdom.
Prorogation should be in the hands of Parliament, not the Executive, so I urge all colleagues, as this Second Reading debate continues, to consider where power should lie and how checks on that power can be put in place. If indeed we are to place power in the hands of people, I argue that the situation is far stronger if that power lies in the hands of the elected representatives in this House, rather than in the hands of one Prime Minister.
Mr William Wragg (Hazel Grove) (Con)
I welcome the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith) back to her rightful place on the Treasury Bench. May I say how appreciative I have been of her attendance at the Public Administration and Constitutional Affairs Committee, which I chair, over recent months to discuss this subject and others?
I thank my right hon. Friend the Chancellor of the Duchy of Lancaster for his mention of our report on the Bill, although it perhaps had a slight difference of emphasis to that which came from the Joint Committee. As he is in the Gallery today, I pay full tribute to Lord McLoughlin from the other place for so ably chairing that distinguished Joint Committee.
There are many minds in the House greater than mine that have given this subject a lot of thought—[Hon. Members: “Oh!”] On this subject, there certainly are, if I can be self-deprecating. As Bagehot would have it, we are discussing, and indeed legislating on, the at once solemn but also practical interaction between the “dignified” and the “efficient”—that is to say, the transaction between the monarch and the Prime Minister. On that note, I was pleased to see that the draft Dissolution principles were changed on the advice of the Joint Committee, such that the Prime Minister now shall not advise the monarch of the need to dissolve Parliament but rather make a “request” so to do.
How have we reached this point? I suggest that the disputatious nature of politics in recent years is too easily given as a reason. I contend that part of the real reason is the lesson of not tinkering with the constitution to suit immediate circumstances, which brings me to the Fixed-term Parliaments Act. Was it a high political ideal, as advanced by some, or a case of political expediency? I humbly suggest that it was the latter. It was of course necessary for a smaller coalition partner to have the assurance that it was not going to be cast off part way through a term, when it might have been to the larger party’s advantage to seek an election.
In all this, motivation is key, so it is perhaps helpful to consider briefly the Dissolution principles, which have been mentioned already as the Lascelles principles. In May 1950, Lascelles, the King’s private secretary—Senex being his pseudonym—wrote to The Times to suggest that “no wise Sovereign” would refuse a Dissolution except in three instances. We have heard them already, but the first was if the existing Parliament was still viable. The second was if a general election
“would be detrimental to the national economy”.
The third, and perhaps the most interesting and still relevant, was if the sovereign could find
“another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.”
Do they all stand today? As I have said, I think the latter one certainly does.
Most people’s knowledge of Tommy Lascelles, I am afraid, comes from “The Crown”. That is how we learn history these days, and of course it is a flawless representation of the truth. People know him from that, rather than from his letter to The Times some 70-odd years ago. Here I seek to make a tangential link to the world of drama, for all are players in our unwritten constitution. Each has a role set for them, even if it is unscripted. The actors must conform to the expectations, if we are to avoid the play that goes wrong, or indeed the Parliament that goes wrong.
In recent history, I am afraid that at times some have gone off the unscripted script, if such a thing were possible, because politics is a numbers game, and the reason we had such a quagmire in the last Parliament was that the numbers did not quite add up. That going off the script was not surprising, given the testing circumstances of the 2017 Parliament, but it is also a reflection, if I can be charitable, of the constitutional short-sightedness or, if not, vandalism done by the Constitutional Reform Act 2005. Add to that the novel action of the Prorogation that never was, if I can put it that way, combined with the actions of the former Speaker of this House. In short, everybody went off script. Fortunately, the ultimate safety valve of our constitution—a general election—worked.
Mr Wragg
Of course, this is all my view. The House will have a chance to listen to the utterances of the hon. Member for Rhondda (Chris Bryant) later on, and we look forward to that immensely. He will teach us a thing or two.
I support the Bill, but I fear that clause 3, the so-called ouster clause, may be superfluous. Its inclusion could be seen by those of a cynical bent as being a hangover from the intervention of the Supreme Court in 2019. We should hold more surely to the Bill of Rights of 1689. After all, the Queen in Parliament is not justiciable—at least that is my understanding.
Brendan O'Hara (Argyll and Bute) (SNP)
May I, too, say how pleased we are to see the hon. Member for Norwich North (Chloe Smith) back in her place? I look forward to many confrontations with her in the coming weeks and months. Let me say at the outset that the SNP will be opposing the Second Reading of this Bill when the House divides this evening. We will do so not because we are particularly wedded to the Fixed-term Parliaments Act, but because we believe that the Bill is a much wider part of a fundamental attack on our democracy.
One should not view the Bill in isolation. I believe that when Members look at it in the wider picture and place it alongside the voter suppression Bill, the Government’s plan to neuter the Electoral Commission and the draconian Police, Crime, Sentencing and Courts Bill, they will reach the same conclusion that many of us have reached: this Bill is simpler another part of a brazen attempt by this Government to further centralise control, give more power to the Executive, strip parliamentarians of their powers and deny the judiciary the ability to scrutinise what they are doing, while at the same time eroding the public’s right to protest against them. This is an unashamed power grab by the Executive, and we believe that it will be seen as such when seen in the context of the wider picture.
Brendan O'Hara
I thank the right hon. Gentleman for his intervention. No, we are not doing that, and I will come on to exactly why we are not. Although I acknowledge that the 2019 Labour manifesto said that they would repeal the Fixed-term Parliaments Act 2011 and I understand that they intend to abstain in tonight’s Division and amend in Committee, I would caution that any support for this Bill has to be contingent on what is coming to replace it. I say to anyone who might not like the current Act and wishes to see it repealed to be careful what they wish for. To address the point made by the right hon. Member for Scarborough and Whitby (Mr Goodwill), let me say that although in and of itself repealing that Act might look fairly innocuous and taken in isolation might even be seen as trivial and almost unimportant, I caution that if it is viewed as part of that wider, much larger strategy to centralise power and control with the Executive, this is a far cry from a benign piece of legislation, as they would have us believe.
Michael Gove
In this House and indeed in this Administration, there is a distinction between the role of Director of Public Prosecutions and Attorney General. I understand that in the Scottish Government the Lord Advocate combines both roles. That is a centralisation of Executive power, is it not? Would the hon. Gentleman advise his colleagues in the Scottish Government to move away from that centralisation of powers, towards the higher constitutional principles that we have here in the UK?
Brendan O’Hara
That is another piece of absolute obfuscation by the Minister—a ridiculous piece of obfuscation—so I will return to what I was saying. No matter how intense the 2011 Act, this is not a sufficient reason to support this Bill, because what this Government are proposing is a stripping away of one more pillar of parliamentary or judicial oversight. It is not simply a return to the position we had in 2011.
Mark Elliott, professor of public law at Cambridge University, has said:
“The statement of principles accompanying the Bill appears to presume that the Queen will dissolve Parliament as a matter of course when the Prime Minister so requests, thus implying an intention, on the part of the Government, not to restore the pre-FTPA position but to usher in a regime under which its latitude is greater than before”.
As we have heard, prior to 2011 the monarch was able, in certain circumstances, to deny a Prime Minister’s request to dissolve Parliament and seek an early general election. Because of the weaknesses of having an unwritten constitution, the prerogative power of the monarch, exercised, as we have heard, through the Lascelles principles, was one that was never able to be enshrined in statute. The Lascelles principles asserted that the monarch could deny Dissolution in certain circumstances, including in relation to the viability of the Government, being detrimental to the national economy and being able to find another Prime Minister who could govern. If this Bill becomes statute, what becomes of the Lascelles principles and the monarch’s ability to deny a request for a Dissolution of Parliament? As I understand it, this place may be able to create statutory powers by enacting statutes, but it cannot create prerogative powers, which, by definition, derive from a source other than statute. So those prerogative powers that the monarch has to seek a Dissolution are not coming back, meaning that this Bill is little more than an attempt by the Executive to circumvent even the minimal gatekeeping function exercised in the Lascelles principles by the monarch and all the power will be concentrated in the hands of the Prime Minister. As Professor Elliott says
“the very legal uncertainty as to whether the prerogative can be revived means that it would be irresponsible simply to legislate to repeal the Act and try to revive the prerogative without being sure that you could.”
Anthony Mangnall
This is more of a clarification point. If the Lascelles principles are in place and the Government were to call a general election but an alternative grouping could come together to be able to create a Government, would that not allow the Queen to appoint a new Prime Minister, under the principles that were referenced by my hon. Friend the Member for Hazel Grove (Mr Wragg)?
Brendan O’Hara
As I understand it, and reading what Professor Elliott says, the Lascelles principles would go and therefore we are not returning to exactly the position we had prior to the introduction of the 2011 Act. The Lascelles principles, because they are royal prerogatives, are not part of statute and therefore there is nothing to say that they will remain. They will go, so all the power will be on the Prime Minister and when a Prime Minister requests a Dissolution and a general election, the monarch will have no power on which to refuse.
Anthony Mangnall
I thank the hon. Gentleman for being so patient with me on this, but on reading the Bill, I do not see where it will be rescinding or taking away the Lascelles principles.
Brendan O’Hara
I think the fact that the principles are not there suggests that they will not be there. I understand that there is no statute—there cannot be—and therefore there will be no Lascelles principles on which to act. Hon. Members will know that things are pretty bad when I of all people stand here discussing the right of an unelected Head of State to use prerogative powers to act as a check on the excesses of the Executive.
Mr Carmichael
I am grateful to the hon. Gentleman for giving way because this is perhaps where we see the significance of clause 3. If there is to be nothing in this Bill or no decision that would be justiciable, then surely the implication is that, in fact, there is only one decision that can be made by the monarch, and that is to grant the application.
Brendan O’Hara
I thank the right hon. Gentleman for that intervention, and I absolutely agree. What is happening here is that the monarch will not be able to refuse under any circumstances, although not because of that very dangerous path of going into the political arena.
Although something of a constitutional anachronism, the Lascelles principles did at least provide a degree of constraint on a Prime Minister who opportunistically may have wanted to cut and run mid-term and hold a snap general election when their popularity was on the up, or perhaps more importantly and more pertinently, when they knew future events—perhaps the result of a particularly unhelpful public inquiry—would be guaranteed to put a major dent in their approval ratings.
Brendan O’Hara
The right hon. Gentleman shouts from a sedentary position that that would never happen to the SNP. Indeed, the SNP could not cut and run in the Scottish Parliament because we work to a fixed term. The next Scottish Parliament elections will be on 7 May 2026, and no matter what befalls the Government between now and then, the Scottish Government will be held to account on that date.
Mr Carmichael
Presumably in that case, as with the OECD report on Scottish education, the SNP would just not publish the report until after the election.
Brendan O’Hara
The Scottish Government will stand by and have stood by their record, and have been accountable on the day of the Scottish elections for every Parliament. The Scottish Parliament knows when the next election will be, and every Government will be accountable on that day. If those in the Chamber want to look at the success of the Scottish Government—the SNP Scottish Government—as put forward and verified by the Scottish public just two months ago, let me say that I am sure there is not a Member of this House, particularly on the Liberal Democrat Benches, who would not give their eye teeth for such an endorsement. However, I will move on, Madam Deputy Speaker, because I can see that I am testing your patience somewhat.
Brendan O’Hara
I will come to the right hon. Gentleman in a moment, but I will take your advice, Madam Deputy Speaker, and move on.
Clause 3 of the Bill is an ouster clause. It aims in effect to put the Government’s action beyond the reach of the law, meaning that decisions made by the Government on these matters are non-justiciable. This is clearly the action of a Government who are still smarting from the humiliation of the Supreme Court’s Prorogation judgment in 2019, which said that it was not in the power of the Prime Minister to suspend Parliament for such a long time at such a critical moment.
In January, Baroness Hale and Lord Sumption gave evidence to the Joint Committee on the Fixed-term Parliaments Act, and they both expressed serious reservations about clause 3 of this Bill, which renders non-justiciable the powers given to the Government in clause 2. Those non-justiciable powers include controlling the space of time between the Dissolution of one Parliament and the general election and between the general election and the first sitting of a new Parliament. All of that would be in the control of a Government whose previous attempts to undermine parliamentary democracy through proroguing in 2019 were, as we have seen, deemed unlawful. The difference this time is that they hope that the Supreme Court could not intervene. Back in January, both Lord Sumption and Baroness Hale were unequivocal in saying that the minimum safeguard that this Bill needed in the event of such an ouster clause was to put a time limit on the moving of writs for parliamentary elections, which has not been done.
Michael Gove
It is very much on that point. That case was brought by the hon. Gentleman’s hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry). Why was she sacked from the SNP Front Bench?
Brendan O’Hara
In the name of the wee man. Madam Deputy Speaker, I attempt not to waste your time or this House’s time, so yet again I will ignore the Minister.
In evidence to the Committee, the Government were advised that:
“The Fixed-term Parliaments Act had a provision that limited the time within which writs for parliamentary elections could be moved, and it is the latter that I think you would be wise to introduce into this Bill.”
Lord Sumption also warned the Government at that meeting. He said:
“I suspect that if the Prime Minister was effectively attempting to rule without Parliament by simply failing to issue writs of summons, the courts might well intervene for precisely the same reasons that they intervened in the case of the prorogation…I think it quite likely that the reasoning in Miller No. 2 would be applied to that situation. But, because this is a very undesirable state of affairs, I would very strongly urge you to introduce into the Bill a provision with a time limit.”
Baroness Hale and Lord Sumption could not have been clearer, but, six months later, the Government still have not introduced anything of the sort and clause 3 remains as it was back in January, in effect allowing the Government to decide on the length of a Prorogation, the gap between a Dissolution and an election and, indeed, the gap between an election and the first sitting of a new Parliament. They were warned by learned judges that that is not an acceptable state of affairs and they have had six months to do something about it, but it still does not appear in the Bill. If the Bill is passed as the Government wish, they will be able to do all of that in the hope of not having the courts look at it.
Until now, the only vague explanation I have heard about why the Government have not taken on the former Supreme Court judges’ advice is on a basis of, “Trust us—do you really think we would do such a thing?” The obvious answer is yes, because they have form for doing exactly that and have been found to have acted illegally. When the Minister for the Constitution and Devolution responds to the debate, will she explain why the Government have not taken on their advice? Indeed, will the Government finally seek to amend the Bill?
Under normal circumstances, a debate on whether this Parliament chooses to fix a term between its general elections is not something that the SNP would get overly het up about. Indeed, we do not intend to be here much longer. Hopefully, Scotland’s participation in UK general elections will be a thing consigned to the history books and children will learn about it alongside Robert Burns, William Shakespeare, the moon landings and how England came so close to winning the European championships. I hope, and have little doubt that, when established, our independent Scottish Parliament will continue to use the current arrangement: the one whereby everyone knows that, barring the collapse of the Government and an inability to create a new one, Scottish Parliament elections will take place on the first Thursday of May in 2026. That is how it should be.
The Bill once again exposes the absurdity of the UK not having a written constitution and reveals the inherent weakness of a system which simply hopes that the Executive branch do not do the things that, as a matter of legal and constitutional theory, they are allowed to do. Unfortunately, when the Executive decide to flex their muscles at the expense of the legislature and the judiciary, the failure to have adequate entrenched legal constitutional constraints becomes all too apparent. As I have said several times, the Bill cannot be seen in isolation and must be viewed as part of a concerted and co-ordinated power grab on the part of the Executive; one which, if they are successful, will give them even greater powers over Parliament and the courts. That is why the SNP will vigorously oppose it.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
First, may I put on the record how much I welcome the Bill? Indeed, having served on the Joint Committee chaired so ably by the noble Lord McLoughlin, who has gone on from a distinguished career in this House to—I hope—even greater things in the other place, I can probably own up to knowing more about the constitutional convolution surrounding this subject than it is healthy for any person to know, with the possible exception of the hon. Member for Rhondda (Chris Bryant).
I was slightly confused by the points made by the shadow Minister, as Labour has a manifesto commitment to repeal the Fixed-term Parliaments Act. I am not sure whether we will see some backtracking on that. I was also confused when she said that the Prime Minister of the day could take the opportunity of the Opposition being in disarray to call a general election. I have to say that I could probably pick any day in the past five years, and no doubt in the next four years, when that particular situation could be in force.
When we started out on this journey, I took the view that we should go as far as possible to restore the situation to as it existed before the Fixed-term Parliaments Act. At the end of our deliberations, I remained of the same view, but we all came to understand better the historical and constitutional context. It is important that we restore the royal prerogative. Less important is the academic discussion about whether it was merely in abeyance and could be restored or had been abolished. The Lascelles principles were discussed: the reasons why the King or Queen could refuse the initiative from No. 10 and, of course, the discretion around a request—or is that advice?—to Her Majesty. Indeed the hon. Member for Argyll and Bute (Brendan O’Hara) talked about whether the Lascelles principles would still be in place. We learned about the golden triangle—the communications between the Queen’s private secretary, the Cabinet Secretary and the Prime Minister’s private secretary—who would head off an embarrassing situation for the monarch who might have to turn down an election because it was too soon after the previous election, because an alternative Government could be formed, or because other situations might mean that it was inappropriate to call that particular election.
Jackie Doyle-Price
To emphasise the point that my right hon. Friend has just made, the truth is not that a monarch would never be put in a position where she had to say no, but that what happens in our constitution means that that question is never put until it is an acceptable time for a general election. Putting it in rules in the Fixed-term Parliaments Act got in the way of a functioning electoral democracy.
Mr Goodwill
That is right. I am a big subscriber to the view that if it ain’t broke, don’t fix it. The situation that we had worked for many years—during constitutional crises, world wars and great political events in this country. The people of this country have a great regard for Her Majesty the Queen, and I feel that if anyone was going to be put in that position, she is probably the best person—with advice from those around her, including the golden triangle, to make that decision.
Having been a member of the coalition Government, I have to say that the Fixed-term Parliaments Act worked well during the coalition period, steadying the nerves of our Liberal Democrat partners against a snap election. If the same situation were to happen again—perhaps a Labour-SNP coalition, but probably not any time soon—it could be dusted off again. I am not sure whether those two coalition partners would make very good bedfellows—certainly the image of Morecambe and Wise sat reading their bedtime books does not spring to mind, but who knows what might happen at some point in the future.
In the meantime, this Bill restores the situation as it was before 2020. It is a procedure that has stood the test of time and, most importantly, cannot be challenged in the courts. Let us remember the autumn of 2019 when, three times, Labour proved that it was frightened of the electorate and did not give the two-thirds majority for an election. Indeed, in December 2019, we discovered precisely why it was frightened of the electorate; it was brought to book by the electorate for ignoring them since the referendum decision was made. Hence I very much support the need for the ouster clause in clause 3, which ensures the belt and braces situation to which the Secretary of State referred.
Finally, there is one improvement that we should consider either for this Bill or for the forthcoming elections Bill. Currently, when an election is called after the customary wash-up, we have an election campaign that lasts 25 working days. With weekends and bank holidays, that means that we have more than 35 full days on the campaign trail. That is far too long. My view is that a campaign of that length is more likely to turn off voters than to motivate them—I suspect that Brenda from Bristol would agree with me.
I know that the returning officers will have all sorts of reasons why they need more time, and no doubt the party campaign managers will say that they do not have enough time to organise their campaigns. I know that the situation is different with overseas and more postal voters, but surely there are technical solutions to those issues. Perhaps, once every four of five years, our hard-working council officials could do some overtime at weekends if necessary. Let us have a 25-day election campaign and not a 25 working day election campaign.
Elections never used to be this long. Many people have already decided how they will vote. We should minimise the time for which the Government are possibly hamstrung during an election and cannot be scrutinised or challenged by Parliament. I welcome the repeal of the Fixed-term Parliaments Act, but look forward to provisions to fix the length of the election at 25 days only.
Chris Bryant (Rhondda) (Lab)
May I first say what an utter delight it is to see the hon. Member for Norwich North (Chloe Smith) in her place? Cancer is a bugger, and quite a lot of us have been through it. At the rate we are going, we will have a very large cancer survivors unit here in Parliament, and we shall overcome.
I know the right hon. Member for Surrey Heath (Michael Gove) is not present, but there is nothing more miserable than parts of one’s private life going through the public domain. I wish him and Sarah well.
The hon. Member for Hazel Grove (Mr Wragg) has come back. I was going to criticise him because he had just departed, having said that he was looking forward to hearing what I was going to say, but now he has returned.
I am afraid that I dislike the Bill from beginning to end. I know it was in our manifesto that we would repeal the 2011 Act, but there were lots of things in our last manifesto with which I did not fully agree, so merely saying that it was in our manifesto does not cut the mustard. Our 2010 manifesto said that we wanted to move towards a fixed-term Parliament and to hand over significant elements of the prerogative to Parliament. Indeed, I note that the Conservatives’ manifesto in 2010 said that they wanted to make
“the use of the Royal Prerogative subject to greater democratic control”.
I supported bits of the 2011 Act when I was the shadow Minister dealing with it at the time, in 2010. There were bits of the Act that we criticised but, broadly speaking, we supported it. What I object to in this Bill is that it significantly increases the Government’s power over Parliament. Indeed, when the Fixed-term Parliaments Act was introduced, it was a major transfer of power away from the Executive, and a major strengthening of Parliament’s authority over its own lifetime. By definition, this Bill is exactly the opposite of that. The Bill assumes that all the players in the so-called golden triangle—why on earth do we resort to such outdated concepts?—will be good guys. I use the word “guys” advisedly, because quite often they are guys, but of course there is a danger that the Bill also brings the palace and the monarch directly into party politics.
Dr Julian Lewis
The hon. Gentleman is making a strong case that it should not be a question of the Government against Parliament, but does he not agree that it should not be a question of Parliament against the people? That is the situation that we were nearly stuck in, because the Government, by wanting to be dissolved and have an election, wanted the people to have the final say about Brexit, but Parliament did not want the people to have the final say about Brexit. So the hon. Gentleman needs to be very careful, because there is a lot to be said for the Government not overruling Parliament, but there is not much to be said for Parliament not overruling Government when the Government are trying to give the final decision to the people.
Chris Bryant
Well, my point is simply that we need to have a level playing field in any general election. The Bill deliberately gives the Government the upper hand. It places them on the hill surrounding the territory. It means that they determine the territory on which a general election will be contested. They determine many other aspects, such as who is able to vote, who is able to register to vote, how the boundaries are constituted and so on. I start to ask myself: how much power do the Government want to have?
Dr Lewis
The hon. Gentleman is extremely kind in giving way a second time. I do not think he answered my point, which is that the key thing about Dissolution is that we are giving power to the people to have the final say.
On the hon. Gentleman’s other point, he says that the Government are able to choose a time that is to their advantage. The alternative is surely that when we have a fixed date when the election has to be held, the Government will still try to manipulate the situation so that it will coincide to their advantage at that date. We cannot really escape the question of manipulation entirely.
Chris Bryant
If there is a fixed date for a general election, there are fewer options for the Government to manipulate the situation. That is a publicly known fact to everybody, so there is a level playing field. Indeed, over the last 20 years or so we have had a set of rules in this country that mean that in the six months before a general election, the Opposition are allowed special access to the civil service. If the Opposition do not even know when the general election will be, they never have that opportunity.
Time and again, the Government get to set the rules, and there is a significant party political advantage to being able to set the date of a general election. That is why Governments never wanted to change that. They did it in 2010 for 2015 only, because they wanted to solve a specific problem. My biggest anxiety is that, while we all love the fluidity of our constitution, the downside is that it becomes the plaything of the Government of the day who want to jig and rejig bits and pieces to benefit themselves and keep themselves in power.
One instance of the kind of behaviour a Government today might conceivably think of is to hold a general election immediately after the new boundaries come in, or immediately before the boundaries come in, for their own party political advantage because that is how they will have assessed that. Alternatively, they could decide that we will not have a full judicial review producing a report on the lessons learned from the covid pandemic until after the date of the next general election. The right hon. Member for New Forest East (Dr Lewis) is absolutely right that it could be after 2025—they could decide that it will not produce its result until 2027. My point is that even if a report is about to be produced, they could decide to have a general election.
The Minister herself gave evidence to our Joint Committee on the Fixed-term Parliaments Act saying that the public would punish nefarious activity of that kind. I am not convinced by that, because in a general election the public are making a whole series of decisions, and the simple matter of whether the general election should have been called is probably round about number No. 535 on the list of issues that are of concern to them. My simple point is that this is about having a level playing field. We insist on that for other countries and democracies. It is a fundamental principle of what constitutes a fair democracy.
I will deal with some specifics, if I may. First, five years is far too long for a Parliament. Over the past 200 years, they have tended to run for about four years, including when we had a seven-year term for Parliaments. It would make far more sense for us to have a four-year term—that would be more in keeping with the rest of the country. If the Bill passes Second Reading, I will table an amendment to curtail it to four years. We do not even say that it is five years at the moment—it is five years plus with the additional bits. The five years is not from the start of one Parliament to the start of the next Parliament; it is from the date of the Parliament’s first sitting until the general election.
The Government get to decide the date not only of a Parliament’s first sitting but of its first sitting to transact substantial and substantive business, which traditionally starts with the First Reading of the Outlawries Bill, followed by the Queen’s Speech. Even after the Queen’s Speech, it is for the Government to decide when we actually get into proper business and, during that period, whether there might or might not be a motion of no confidence. That means that after a general election, such as when Baldwin lost the general election, there had to be a motion of no confidence in the new Parliament, but that depended on the Government bringing Parliament to sit. We are almost unique in the world by not having any provisions in statute or our Standing Orders guaranteeing that the House will be able to transact business within a certain number of days, let alone set up Committees and all the rest.
I am very worried about snap elections, because often they mean that parties are not able to provide a duty of care towards potential candidates. I will mention only one, Jared O’Mara. If we had had a more sensible run- up to a general election, we would have served him better, because we would have gone through a proper process of selecting candidates. I could look at other instances across the last few years. As Chair of the Committee on Standards I am painfully aware that sometimes people become candidates without being prepared, briefed and given the support they need to enter into what can be a very difficult and painful place.
We have already seen that the Government have phenomenal powers over prorogation, and I simply do not understand why the House of Commons cannot have a vote beforehand. We would nearly always grant it, but if there were any jiggery-pokery, we might not. Government Members might say, “You are only doing that for a party political reason.” We could point to the Labour Government in the 1940s, who brought forward a special prorogation so that three Sessions of Parliament ran during one year, to meet the requirements of the Parliament Act 1911. Why does prorogation remain a simple act of the Executive? I think it is a mistake. Indeed, it would assist the Government simply to say that every time there is going to be a prorogation, just as there is before a recess, there will be a vote in the House of Commons.
I completely agree with the hon. Member for Hazel Grove, although when he is being sarcastic and ironic it is sometimes slightly difficult to determine which side of his own argument he is on. I think he was suggesting that the ouster clause may be a bit of an own goal. It sounds a bit like, “the lady doth protest too much”. It is as if we do not have confidence in the Bill of Rights.
Chris Bryant
The hon. Gentleman is the Mona Lisa in so many ways. I do not know what to make of that. My point is that the Government are protesting too much. I think that is counterproductive and will lead to the exact opposite of what they are trying to achieve. They virtually invite the courts to have a pop at them, which is a mistake. We should rely on the fact that proceedings in Parliament shall not be impeached or questioned in a court of law or any other place, under the articles from the Bill of Rights.
I am concerned about what constitutes a confidence motion. It should be perfectly possible to bring down a Government by virtue of refusing to allow them either money, or the basic thrust of their programme through the Queen’s Speech, or a major item of foreign policy, such as sending troops into war. In 1784 that was one of the first reasons a Government were brought down by a motion in the House. If I am honest, I was perplexed when David Cameron and William Hague—now Lord Hague—did not resign or even seem to think worthy of comment the fact that they lost a vote on sending British troops to war. In any other generation of our political history, that would have meant the Government would have fallen. This is an important principle: on big national issues, whether something is a matter of confidence should not simply be a matter for the Government. We all know that money, major policies, and issues of war and peace are fundamentally matters of confidence.
Mr Carmichael
I hesitate to intervene, but the record should show that the particular motion to which the hon. Gentleman refers from 2013 was not one that committed the country to deploying troops. In fact, in specifically guaranteed that before that happened, the matter would come back before the House.
Chris Bryant
I think I am right in saying that the original motion tabled by the Government did commit, but the version carried by the House, which was an Opposition amendment, said that the matter would be brought back to the House.
Chris Bryant
Well, the record will have to be found, won’t it. I completely agree with the comments made by the right hon. Member for Scarborough and Whitby (Mr Goodwill) about the election period being far too long. I have some sympathy with the fact that many people now vote by post, and there are issues for electoral registration officers and all the rest. Honestly, however, it cannot be beyond the wit of woman and man in this country to bring a general election in a shorter period than we currently do.
My bigger point—I will bring my remarks to a close after this—is that the Government already have phenomenal power in this country. In our system, the amount of power that Government have in Westminster is most extraordinary. They determine every single element of the timetable and, indeed, they do more so now than they did in the time of the second world war. If we think of one of the big confidence debates, in 1939, there was the debate on the summer recess, because people who were opposed to appeasement were terrified that Neville Chamberlain as Prime Minister was going to use the recess to do a deal over Poland with Hitler. There was a chance in those days for another Member to table an amendment to the date of the recess. The rules now specify that we cannot even table an amendment to the date of the recess that has been tabled by a Government Minister.
The same is true of nearly every element of our expenditure. We cannot table a motion from the Opposition. Only a Government Minister can table a motion changing a tax, increasing a tax, laying a duty or a tax on the people, or increasing expenditure. We barely do a process of expenditure in our system at all. We do not really have a Budget, not in the sense that any other country would understand that they have a Budget. We have a statement by the Chancellor every year. The power that Government hold in this country is absolutely phenomenal and I do not think that simply to allow a few things such as a vote on Prorogation and a vote on Dissolution is too much to ask.
Jonathan Edwards
As a Welsh MP, I am sure that the hon. Gentleman would agree that one benefit of a fixed-term Parliament for this place is that there cannot be a clash with Welsh elections. Although the Bill says that there cannot be an election for the Senedd and a general election at the same time, the Library note states:
“Regulations can be made to hold”
an “extraordinary general” election. The question for us, if the Bill passes tonight, is: what are those extraordinary circumstances and how will UK Ministers co-ordinate with Welsh Ministers and the Welsh Parliament?
Chris Bryant
My personal view for some time has been that it is probably for the convenience of the people to have a more or less fixed time of the year when we have elections. The beginning of May seems to work for local elections and I do not see why it would not work for most other elections. I am not personally opposed to having several elections on the same day either. I know others are, but I think that that would be for the greater convenience of most people in the country.
My biggest fear is that the present Government have a very high theology of strong government. It feels to me akin to the Stuarts’ divine right of kings, which is not to say that they feel that they have a divine right to rule, but that they think that the Government have the divine right to rule. What makes me think this is the number of times that the Leader of the House—we had it again today from the Chancellor of the Duchy of Lancaster—referred to the “addled Parliament” of 1614. It was the king who called it the “addled Parliament” in 1614 because the king did not get his way. There are many ways of interpreting what happened in the last Parliament, but the Government did not get their way—we know that. I think that when the Government feel that the constitution has to change because the Government have not managed to get their way through Parliament, that is a worrying moment.
The truth is that the whole of this system depends—I mean the word “depends” deliberately—on a very, very thin thread of confidence in the Government. I think a better way of understanding politics is that Governments govern by consent, and that consent is not just earned at a general election. It is constantly earned and has to be constantly earned in this arena—in here. I worry that the Government do not feel that way. I personally do not trust any Government who abrogate more powers to themselves. It is even worse when a Government then claim to do so in the name of democracy, as we heard in the very first sentence of the Chancellor of the Duchy of Lancaster’s contribution earlier. Such abrogation nearly always rapidly descends into the arrogance of office. I think that there is a particular irony in the fact that the people who shouted “Take back control” again and again now ratchet up their own control over the British constitution.
Power is always best spread thin. Even a Cabinet Minister is only dressed in a little brief authority. Our constitution must never be a plaything of the Government of the day.
Alec Shelbrooke (Elmet and Rothwell) (Con)
It is a real privilege to follow the hon. Member for Rhondda (Chris Bryant). I want to expand on his closing remarks, because I think we need to strip back to why we are doing this, and I will start by talking about faith in democracy.
The reality is that in the last six months of 2019, and certainly in the autumn of 2019, the public did not have faith in this place. That is a simple fact—we had only to look at our inboxes and at the comments being made. We were not doing anything, we were not getting anywhere and we had a Speaker who, quite frankly, acted disgracefully on many an occasion, going way beyond the remit within which he should have operated. All that that did, from the public’s point of view, was make them say, “You are pointless. We have given you an instruction in a referendum and in a general election, but two years after the 2017 general election, you have still achieved nothing.”
The reason we did not achieve anything was that we were gridlocked. The hon. Member for Edinburgh West (Christine Jardine) made a comment today that was used so many times in that period: she said that people were looking for us to come to this place and solve the issues. I heard that phrase used throughout the argument, but what it actually meant was “People are looking for you to agree with me, to do what I say and to ignore what you want to say.” It was a 50-50 Parliament, really: it kept hitting gridlock and we did not get anywhere.
As I said in my intervention on the hon. Member for Lancaster and Fleetwood (Cat Smith), for whom I have a great deal of respect—I am looking forward to debates with her in Committee—the games that were played at the time did no favours to this place. The fact that 24 hours before we finally dissolved the last Parliament we had failed to dissolve it under the Fixed-term Parliaments Act, but then a one-line Bill got the two-thirds majority and got the Government to choose the date of the election, added to the sense of “What are you all playing at?”
Chris Bryant
I am sorry to do this, but I just want to push back against the words “game playing”. There were very passionately held views on both sides of the argument on every single constitutional matter that was going on. I do not think that anybody was playing a game. Everybody was in deadly earnest—we just disagreed.
Alec Shelbrooke
I accept the hon. Gentleman’s intervention about the choice of language, and I will change it. His observation is well made and he makes it earnestly.
What I will therefore say is that what happened almost showed that we should have dissolved the last Parliament much earlier. It was going nowhere. We created a situation in which passions were high about the constitutional issues, but we just never made any progress—yet for all the calls from people outside saying “Resign!”, we could not. The ultimate act of resignation is for a Government to call a general election: they do not know whether they will be re-appointed. The Government literally could not resign.
Mr Carmichael
The hon. Gentleman touches on points that the hon. Member for Rhondda (Chris Bryant) raised at the very end of his speech. I was part of the process of discussion and eventually we did get an election in 2019, because the Government were prepared to talk to other parties and bring them along. That runs to the heart of the whole difficulty throughout the Parliament of 2017 to 2019: the Government decided on their position, whatever it happened to be on that day. It was never the same position all the time, but it was their way or the highway. Surely the point is, as the hon. Member for Rhondda and others have said throughout this debate, that it is for Parliament as a whole, and not just the Government on their own, to make these decisions.
Alec Shelbrooke
Parliament failed, and it failed day in and day out, week in and week out. It does not matter, to go back over these arguments, whether people should have shifted to my position or gone to another position. The now Leader of the Opposition spent hours and hours in No. 10 Downing Street, and every time we thought a deal had been made, he scuppered it and moved the goalposts.
Parliament did not work. It is all very well to say that we should have taken particular positions, but the history books show that it failed at every attempt. The way out of that situation is to go back to the people and to lay it on the table. That happened far too late, and in this place we undermined several attempts along the way.
I honestly believe that we have to be very careful at the moment. It is getting better now, but we have been through a period in which the value of the democratic processes in many democracies has been questioned. We have just seen a narcissistic, arrogant now ex-President of the United States with, quite frankly, low political intellectual ability, undermine the entire system to the point he literally caused five people to die because he did not accept the result of an election. He used social media and all the other things to stir it up by saying, “I won this election.” He clearly did not, but most polling shows that a whole swathe of voters in America think that he did, which again undermines democracy.
We still have some way to go to make sure we have the ability to dissolve a failing Parliament and go back to the people. It comes back to the point, which I have used in many a speech, of trusting the people. There have been comments today about how a Government could perhaps abuse a Bill, how we might not recall Parliament, how we could choose the date of the election or how we could delay and do all these things. I promise that the public would give us a right kicking if we did that.
One of the reasons the 2017 general election was, frankly, a disaster for my party was that we were looking to cash in. The people thought, “You are just trying to take advantage of the situation. You don’t actually need to have this election,” and we were punished for it. The public are not stupid; they recognise what goes on, and they have their own concerns. Ultimately, they give their verdict on us at the ballot box. Leading up to the December 2019 general election, the public thought that things had to change. It was noticeable that, whether people were remainers or leavers, they just wanted the situation resolved, which is why the result was the way it was.
I do not think what went on over the Prorogation helped the situation in any shape or form. Lord Roskill, in Council of Civil Service Unions v. Minister for the Civil Service 1985, stated that in his view prerogative powers were not susceptible to judicial review, yet that is pretty much exactly what happened, and it was applied retrospectively. There is precedent for longer Prorogations.
Again, it all added to the view—I do not want to use the word “establishment”, and the hon. Member for Rhondda (Chris Bryant) might once again advise me on better language—that the establishment was against the view of the people and was trying to thwart clear instructions that had been given. And we remained powerless in this place to do anything about it, which was the fundamental problem.
I have been in this place long enough to know that, going into Committee, it is unwise to take a fixed position on Second Reading. I am over the moon to see my hon. Friend the Minister back in the House today. She looks in fine health and it is a source of great joy to us all to see her back in her place. I know she will be listening to all the contributions being made, including from the hon. Member for Rhondda. I remember being a new MP, and he and I sparring over the Fixed-term Parliaments Bill and the issue of four years or five years.
Alec Shelbrooke
The hon. Gentleman is quite right: I did indeed vote for that Bill. I think what has been slightly overlooked in these arguments is that the question of stability at a time when the markets were in disarray over what happened was very important. We had not had to deal with those parliamentary maths, I believe, for nigh on 70 years and something had to take place to calm the markets. So that is why I think it is was worth it at the time. It is worth listening to the hon. Gentleman’s views on years. I still think five years is acceptable and he thinks four years. As my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) outlined, we really do need to shorten these elections.
Overall, the Bill is an important healing mechanism and stepping stone to starting to restore faith. If a Parliament in future ends up again in the situation we ended up in, where views were deeply entrenched and would not budge on either side of the argument, then surely, we must easily be able to dissolve that Parliament and go back to the people. We must always trust the people.
Owen Thompson (Midlothian) (SNP)
Some people might feel that this place can be a tad old fashioned, but the Bill makes the system that was abolished in 2011 seem almost progressive. It is not just the restoration of the previous prerogative powers; it is using statute to move to a system with even less accountability for the Executive.
Another chance is being grabbed by this Government, with all their centralising tendencies, to cut the checks and balances of Parliament and abandon any pretence of the separation of powers. There will be no role for parliamentarians, no role for the courts and no attempt to set out the kind of circumstances where the Queen could refuse a Dissolution request, such as the Lascelles principles. As a democrat, I believe it is right that an unelected monarch should not get involved. But even at that, this is such a bad position to be put in to have to overrule the bad decisions of Government. Apart from anything else, I am sure she would be too busy if she tried to deal with the bad decisions of this current Government. There is no longer a role for MPs, no place for the courts and the Queen is left as the last check. The type of circumstances where that might apply should at least be set out, rather than the business being done by a nod or a wink.
There were clearly problems with the Fixed-term Parliaments Act and I have some sympathy with the arguments to get rid of it. Most democracies can sensibly manage fixed terms, it has to be said, including the far more modern and efficient Parliament in Scotland. The approach makes perhaps for less democratic theatre, but for better long-term planning and more sensible Government decisions, which I am sure the public would welcome. However, five years is a very long time in this place. The Government party is usually chock-a-block with power-hungry schemers keen to get the knives out on their own side as quickly as possible. The official Opposition are usually far too busy chewing their own tail to bother with distractions such as actually opposing the Government. Elections can offer a temporary relief from the pain of listening to the baying mobs on the green Benches and offer a vague hope to the electorate that something better is on the horizon. It is little wonder that, outside wartime, no Parliament in the past 100 years has lasted the five-year distance.
There may be issues with the fixed-term legislation, but that does not mean we should simply throw the baby out with the bath water and give all the power to this Prime Minister to choose when and if it suits. The interests of the nations this Parliament is supposed to serve should come before the whim or ego of anyone, man or woman. It is not so much the principle of the Bill—perhaps even the most questionable clauses can be justified—but the alarm bells that are set off, as my hon. Friend the Member for Argyll and Bute (Brendan O'Hara) indicated earlier, when we look at the bigger picture: the behaviour about which all democrats should be concerned, whether it is the Government challenged on their lack of accountability or transparency, or the knee-jerk response to strip power away from those who challenge them. We saw that when the Prime Minister removed the Whip from those who simply disagreed with him—loyal Conservatives every one of them. We saw it when they illegally prorogued Parliament and in the Miller-Cherry case established by the Supreme Court. Now we see it in the ouster clause making it clear that any potential questioning of the Executive through the courts will no longer be tolerated. No wonder we on the SNP Benches are suspicious of the Government’s motives. This comes at a time when there is a systematic weakening of judicial review under way and the public are having their fundamental rights to protest curbed.
We have seen evidence of the same worrying approach to challenge when it comes to the Electoral Commission. The UK Government seem determined to strip powers from the watchdog that oversees elections and ensures the integrity and transparency of party election finance. Given the very real threats to our democracy from systematic disinformation and the election-changing influences of dark money, it is very clear that this independence is needed more now than ever before, rather than being watered down. Yet at this fragile time for our structures, the Government are choosing to remove the Electoral Commission’s powers to prosecute.
It might be a coincidence, and I am certainly willing to hear arguments for that case, but that proposal was brought forward just shortly after an investigation into donors who helped the current Prime Minister to buy wallpaper. It might just be chance, or it might not be—who knows? When these things are all added together, it leads to a perception that backs up the case to give us real suspicion as to the motives behind this Bill. Then we look at the issues around those who happen to be friends or have donated money—the donors and colleagues. Perhaps the Government could do a bit more to restore trust and faith in democracy than simply taking more power into the Executive. There are unanswered questions that still sit and fester and give no confidence to the public.
Where we are just now, it seems that this Government have given up on democracy altogether. It looks as though a stash of cash and a vested interest or two, or the right school tie, is what is needed to get into the corridors of power, and it stinks. As an excuse for bypassing democracy, the Prime Minister says that he wants to “get things done”, but so do many people around the world whom this place would often seriously challenge. Getting things right might take a little bit more time, but it stops the cronyism, corruption and rotting at the heart of any democratic structure.
The problems that caused the paralysis in 2019 were not the fault of the Fixed-term Parliaments Act; they were the fault of an intransigent Government. It is like a bad workperson blaming their tools. We may have left the EU, but the tricky questions were still there to be dealt with. They were pushed away for another day because the answers could not be found. Brexit was just steamrollered through without a care for the consequences, which continue to manifest themselves in ordinary lives even today. No doubt when things get too difficult we will see a familiar picture of another Tory leader running for the hills with their and their cronies’ wealth secured and the important numbers in their pockets in case they want to take up expensive lobbying jobs. Meanwhile, we still do not know how to square the circle of having no trade border with the EU, while having secured the right to dump all the EU’s standards for trade. Nor are we getting the chance to scrutinise properly decisions taken in rushed, desperate-looking trade deals with countries such as Australia that will change the face of farming in this country.
While I agree that there needs to be change to the electoral processes, the changes need to be in the opposite direction to that taken by this Government. We need greater openness, more transparency, more power for Parliament and independent watchdogs, including the judiciary, and more chances to hold the Executive to account. It is ironic that the Government accuse my party of being obsessed with the constitution when in reality they have been endlessly tinkering with the constitutional structures since coming to power. We in the SNP have a cause to improve active participation of all citizens in Scotland, and active engagement with the electorate has got to be a part of that process. That is a long campaign that I certainly have no issues with, because actually engaging with the electorate gives a better understanding and makes sure that all can be better informed.
Elements of this Bill are just a small but symbolic part of the centralising tendencies that continue to dominate under the opaque nature of this Government. If this is the route that Westminster wishes to take, I and my colleagues in the SNP cannot stand by and watch as the Government continue to attack and undermine democracy. I recognise that both the Conservative and Labour parties had the intention to repeal the Fixed-term Parliaments Act in their manifestos, but that does not mean at any cost. As the Government travel further from democracy, we will stand as defenders of that democracy and respect the democratic decisions of the people we represent. The Scottish Government and the Scottish Parliament have a clear mandate for a referendum on the future of our country, to take place during this electoral term, and if the Fixed-term Parliaments Act is repealed in this way, that could come sooner than expected.
Craig Whittaker (Calder Valley) (Con) [V]
I want to put on the record what an honour it was to be part of the Joint Committee on the Fixed-term Parliaments Act, which was superbly and ably led by Lord McLoughlin. Our task was to look at the Fixed-term Parliaments Act, which, as history has shown, has become totally unfit for purpose.
Although there was much debate and much evidence was taken on the Committee, it is important to say that the Committee’s report was an accurate reflection of the general views of the Committee. That does not mean that we did not have a robust debate and discussion of some of the elements of the draft legislation put before us, but the end result was that everyone agreed that the legislation needed to be the change before us, and restoring the status quo prior to the Fixed-term Parliaments Act seemed to be the logical thing to do for the majority.
I want to talk today on two elements of the Bill that drew alternative views and evidence from our panels of witnesses. The first is the so-called ouster clause. That proposal brought much scrutiny, views and evidence not just from our panel but from the members of the Committee. The Committee recognises that views differ as to whether the Government’s approach on justiciability is the best one. A minority of Committee members, as we have heard today from my hon. Friend the Member for Hazel Grove (Mr Wragg) , and I may say grunted quite loudly from a sedentary position by my hon. Friend the Member for Thurrock (Jackie Doyle-Price), believe that a House of Commons vote on a dissolution would be a protection against impeaching and questioning by the courts because of article 9 of the Bill of Rights of 1688. Such a vote would, in their view, give us a better guarantee than an ouster clause against unwarranted judicial involvement, and would avoid setting a precedent for ouster clauses in future legislation. That was one view.
Some members of the Committee have expressed doubts as to whether the belt and braces, or sledgehammer, approach of an ouster clause is really necessary if the courts will not in practice entertain legal challenges to dissolution. Provided it is clear that dissolution and calling of Parliaments are a personal prerogative, and that the Monarch’s veto over requests is real rather than ceremonial, they are satisfied that the courts would never—almost never—grant an application for judicial review of a decision to dissolve Parliament.
The majority view of the Committee, however—I am one of that majority—accepts that the general presumption is that Parliament does not intend to oust the jurisdiction of the courts; the Executive should be accountable to both the courts and to Parliament, too. None the less, in principle, the majority believe that Parliament should be able to designate certain matters as ones that are to be resolved in the political, rather than the judicial sphere, and that Parliament should accordingly be able to restrict and, in rare cases, entirely exclude the jurisdiction of the courts. This position, of course, is not inherently incompatible with the rule of law, even if ousting the courts’ jurisdiction will often be in tension with it, so that a [Inaudible] ouster would rarely be appropriate. In this case, when the power in question is to enable the electorate to determine who should hold the power, we consider the ouster to be acceptable. It also sends a very clear message to the courts what the spirit of the Bill intends.
My second and final point on the Bill is on the Electoral Registration and Administration Act 2013, which extended the length of the electoral timetable for UK elections from 17 working days to 25 working days. At the time, it was done to ensure the smooth and effective running of our elections. It also recognised the complexity of elections, in so far as the current Bill is compatible with ensuring that the register is up to date and that proxy and postal votes, including those of overseas voters, are possible. This Bill retains the 25 working day period between dissolution and polling day to ensure the supposedly continued operability of our electoral system. However, the lengthening of the election period has meant that the time between the dissolution of Parliament and its return is also lengthened. Although we consider that the country should be without Parliament for as short a time as possible, this must be balanced with the need to ensure that as many citizens as possible can register to vote and exercise their democratic right to vote in elections.
We had, if my memory serves me correctly, a unanimous feeling that we would like to see a significant reduction in the election timetable, as this 25-day period is for the benefit of the administrators rather than the electorate. Our proposal in the report is that a cross-party working party should be established by the Government to examine how the general election campaign period could be shortened from 25 days without compromising voter participation, including through the increased use of technology and increased focus on year-round voter registration. This would be a better approach to seeing how we can have a robust and transparent approach to democratic elections for the benefit of those who participate, rather than for the benefit of those who administer.
I support the Bill before us, which genuinely appears to have taken note of the plethora of robust debates and evidence from many quarters of this House, and that is before it has been subjected, from today, to the scrutiny of the House as well. My only request is that the Government look again at my final point on reducing the 25 working day requirement for the electoral timetable. I believe that, with modern-day technology and amended processes, that can be achieved quite easily, without compromising voter participation, in an open and transparent way. It would also future-proof our electoral system further around technological advances, which in my view should be embraced.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am delighted to have the opportunity to make a contribution to the debate. I am sorry that the Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), has just left the Chamber. I would just place on record—and I hope she will see it at some point on her return—that for me, as for so many others in this debate, it is a matter of genuine delight and joy to see her back in the House. Contrary to what we might read in some parts of the press, a lot of Members of Parliament are held in respect, but the hon. Lady is someone who is held not just in respect but in affection. The manner in which she has tackled her illness has been an inspiration to many, and we are delighted to see her back.
Madam Deputy Speaker, I hope that you will indulge me for a minute or two while I pick over some of the history of this matter and of the Fixed-term Parliaments Act. I am not quite the last man standing from that period, but I am one of the last few. It is often said that history is written by the victors. Well, not even my sense of hyperbole would allow me to describe the Liberal Democrats as the victors in that episode in our political history, but I think it is important that we put a few matters on record.
The Chancellor of the Duchy of Lancaster, in opening the debate, said that the Fixed-term Parliaments Act was a “child of its time”. I openly accept that, at the start of the quite remarkable political adventure that was the coalition Government, the necessary trust that people might have had in a single-party Government was not there and, yes, the Fixed-term Parliaments Act was a necessary safeguard for both parties to ensure that the Government would last the whole term. Remember what it was like at the start of that Government. All the commentators and all the clever people said, “This won’t last a month” and then, “It’ll not last two months”. They said that that Government would not last three months, then six months and then that they would not last a year. And then, eventually, it was accepted that that Government were going to last the whole term, as indeed they did.
The coalition Government did a lot of things that were very necessary in the interests of economic rebuilding after the crash of 2008, and it was necessary that we had five years of stability to be able to take those decisions.
Alec Shelbrooke
I agree with the point that the right hon. Gentleman agree has just made. He will recall that, just before the 2010 general election, the then Governor of the Bank of England, Mervyn King, said that whoever ran the next Government would be out of power for a generation because of the decisions they would have to make. Actually, we were able to bring that stability to the coalition, and one of the reasons that I happily backed the Fixed-term Parliaments Act then was to bring that stability. The public saw that there were two parties from different political spheres willing to do what needed to be done. I know that the right hon. Gentleman and I are on different sides of the coin when it comes to repealing that Act, but it is important to say why we both agreed on the importance of the Act at that time.
Mr Carmichael
I often say that the spending decisions that were taken—although, when they were implemented, they were actually the same as the ones that Alistair Darling had put in his last Budget in March 2010—were not taken on a whim; they were taken on the advice of the Governor of the Bank of England, and when that advice is given, any responsible politician or parliamentarian should listen to it.
I fully acknowledge what the Chancellor of the Duchy of Lancaster said about that Act being a “child of its time”, but it was more than that. As I think the hon. Member for Rhondda (Chris Bryant) said, the fixing of the parliamentary term was in Labour’s 2010 manifesto, and the regulation of and accountability over the exercise of the royal prerogative was in the Conservatives’ 2010 manifesto. For my party, it had been a long-standing policy. We saw it as a necessary modernisation, and the logical conclusion of getting rid of it in the way in which the Government seek to do through this Bill would mean that we were risking taking significant steps backwards in terms of constitutional integrity and electoral law. I shall return to that point.
Anthony Mangnall
I am sorry to interrupt the right hon. Gentleman, but the last line of clause 2(1) reads
“as if the Fixed-term Parliaments Act 2011 had never been enacted.”
The emphasis of those words means that we are going back to a point where that Act had never been enacted. Is that not the point—that we are going back to how it was, not trying to make changes going forward?
Mr Carmichael
The point is that, as I said, it was a necessary modernisation; we are undoing something that, 10 or 11 years ago, was a necessary modernisation.
The Chancellor of the Duchy of Lancaster spoke about the Ted Heath Government in the 1970s. The world was a very different place in the 1970s. I suspect that the hon. Member for Totnes (Anthony Mangnall) is not old enough to remember it. I should place on record that, notwithstanding the imminence of my 56th birthday, I only have a child’s recollection of that time. However, the conduct of elections was very different, and, of course, the general elections in the 1970s were to the only Parliament that people could be elected.
We now have a very different situation. We have a Parliament in Edinburgh, a Senedd in Wales and an Assembly in Northern Ireland, and they operate on fixed terms. Indeed, the Scottish Parliament—as my hon. Friend the Member for Edinburgh West (Christine Jardine) reminded me earlier—changed its terms in order to keep its elections in lockstep with, albeit at a different time from, the elections to this place. There was also the very different way in which campaigns were financed then.
One of the most significant and concerning aspects of the Bill is that everybody is in the same position as far as the short regulated period for expenditure is concerned, but when we do not know how long the Parliament will be and when the general election will come, the setting of the start of the long period is effectively done retrospectively. We can be caught for expenditure that we did not know we would be caught for, or, as is more likely to be the case, we can ladle money in, because every political campaigner will say that early money is what buys results. To my mind, that is one of the reasons why the Fixed-term Parliaments Act was a necessary modernisation in 2011. To take it away now actually risks a more substantial unbalancing of the playing field than anybody from the Treasury has thus far acknowledged.
I say gently to right hon. and hon. Members on the Government Benches that it might seem like a good idea today, while they are in government, but that will not last forever. The first election in which I actively campaigned was in 1983, when we all said that the Labour party was finished and there would never be another Labour Government. Then, in 1997, we said exactly the opposite: that the Conservatives would never again be in government. Yes, they have the whip hand today, but the day will come when they are sitting on the Opposition Benches, and they should consider how they will feel if the Government of the day treat them and their access to the playing field in this way.
Anthony Mangnall
I am sorry to inform the hon. Gentleman that I still was not born in 1983. If we do not know when an election is coming—I think this goes to the point made by the hon. Member for Midlothian (Owen Thompson)—we will find ourselves campaigning more regularly. There is a better form of direct democracy, because we are all required to be out there canvassing all the time. That has its advantages, in the sense of the engagement that we have with our constituents.
Mr Carmichael
Let me just say that the pattern of campaigning across the constituencies represented in this House is far from uniform. I spent a significant amount of time in Chesham and Amersham not that long ago, for reasons that will be understood. I was a great admirer of the late Cheryl Gillan—she was another one for whom I held not just respect, but affection—but it was apparent that the Conservatives’ campaigning machine in that constituency had perhaps been left in the garage for a few years longer than was necessarily helpful. If what we are about is engaging the electorate on an ongoing basis, I am all for that. Indeed, I suggest to the hon. Gentleman that the best way to achieve that would be by getting rid of the notion of safe seats, which is a product of the first-past-the-post system, so I will look to enlist his support the next time my party brings forward proposals for introducing proportional representation.
I can see that your smile is becoming increasingly indulgent, Madam Deputy Speaker, so I will not carry on down this route for too long, but it is surely an important principle that we should never hand to one of the runners the starting pistol that will start the race. Whatever view people take of the Fixed-term Parliaments Act, the principle that Parliament should be in control of its own timetable and election is surely something that all those who fought so hard to bring back control to Parliament would have found an easy sell.
There has been some talk about the Lascelles principles. My concern about the exclusion of any decision to dissolve Parliament from justiciability, as we find in clause 3, is that the debate is essentially about constitutional theory. If the Prime Minister were to go to the Queen and ask for a Dissolution and she were to refuse him, I suspect that, given the standing that the Queen has in the public’s affection, it is probably a constitutional crisis that we and the monarchy could survive. I cannot honestly imagine it ever happening, but given everything else that has happened in this country over the past six years, we should perhaps try to legislate not just for those things that we can imagine happening. The day may come when we have a different monarch—well, the day will come—and perhaps that monarch will need time to establish their standing in the way that Her Majesty has been able to do. For that future monarch, the temptation may be not to risk the instability.
Essentially, my concern—this is what the Lascelles principles were designed to avoid—is that the Bill as currently constituted risks bringing the monarchy into active partisan party politics. That is something we should countenance only with the very greatest of caution and the most careful consideration.
Jackie Doyle-Price
The truth of the matter is that our constitution does behave in a very dignified way. We know that Prime Ministers’ audiences with the monarch are, most of the time, entirely confidential—other than when Prime Ministers choose to leak them. I think we can trust Her Majesty never to utter what has been said to her in the confines of her study on those occasions. On that basis, can we actually be sure that those discussions have never taken place?
Mr Carmichael
No, we cannot. That is the self-evident answer to that question. I am fairly confident that conversations will be had by, as it were, the support teams on either side on a highly theoretical and hypothetical question, such as, “Well, in the event that this were to happen…” Indeed, that was why Lascelles wrote his letter to The Times in the first place—to give a bit of necessary transparency and certainty to the whole process, which in truth, because it is rooted in convention, has neither transparency nor certainty.
Ultimately, what we show here is that the insistence on continuing with an unwritten constitution becomes more and more difficult with every year that passes. Ultimately, that is something we will have to recognise. It will be the mother and father of all tasks to get the necessary consensus to codify it, but in an age when all the constitutional changes that we have had in the past few decades are there competing with the sovereignty of this House within Parliament in particular, it is in everybody’s interests that we should find the moment to do that. This is not the moment, for the avoidance of doubt. I think Parliament would need some time to be clear of its current concerns before we could undertake that.
Finally, I want to say a few words about the conduct of the 2017-19 Parliament. It is a shame that the hon. Member for Hazel Grove (Mr Wragg) is no longer in his place, because he outlined all the various actors in these dramas and how some might be seen to have executed their obligations better than others, but it is inevitably the case that where we have a system that relies on checks and balances, every time somebody takes out a check, somewhere else we have to adjust the balance. That is why although I felt exceptionally uneasy about the way former Speaker Bercow made some of his decisions, I thought they were necessary because the Government were getting close to abusing the substantial amounts of power that an unwritten constitution based on convention gave them. That is why instead of relying on nods and winks, and checks and balances, it is better that we should write it all down, as then everyone would know where they stood.
I do not think there is any hyperbole here, and it is overstating the case somewhat to suggest that the political turmoil of the 2017-2019 Parliament was a consequence of the term of Parliament having been fixed in 2017; there were lots of political reasons for that, most of them to do with the internal splits and divisions in the Conservatives, as the minority governing party after 2017. The fact that they had a minority set the political tone of that whole Government. Somebody said earlier that the election was far too late by November 2019. When would have been the right time? Perhaps it was when the Prime Minister became Prime Minister in July of that year, but I do not remember him having any great appetite for having an election at that point.
The truth of the matter is that we eventually had an election in 2019, at probably the worst time of year to be campaigning in Orkney and Shetland—we are never going through that again. That election required the Government of the day to work with the Opposition, with us and with the Scottish nationalists, and that is how it should be. That is effectively how the Fixed-term Parliaments Act did its job, when the Government eventually allowed it to do so. That is why I deeply regret this Government’s decision to repeal it, and why my party will be opposing them in the Lobby this evening.
Madam Deputy Speaker (Dame Rosie Winterton)
We now have nine more speakers, which means that, allowing for the wind-ups, we need speeches to be just under 10 minutes. No. 11 on the list has withdrawn, so we will go straight to Christine Jardine.
Christine Jardine (Edinburgh West) (LD)
Thank you, Madam Deputy Speaker. I can assure you that I will take much less than 10 minutes. In this debate we have gone over the constitutional law aspects of the Bill, and we have talked much about the Parliament of 2017 to 2019 and the implications of the Fixed-term Parliaments Act. I wish to look at one aspect that I do not think has been discussed sufficiently, which is that as a new Member of Parliament in 2017, I came into a situation where there was constant speculation about the possibility of an early election.
Almost every week between 2017 and December 2019, we discussed the possibility of a general election and when it would be—this year, next year or next month. That causes instability, and not only within Parliament for its Members, who are trying to figure out what they should be doing; but how does one govern in a situation where the Government could end at any moment and one could be going into a general election?
We have talked a lot about the public and their perception of Parliament today, and between 2017 and 2019 they were dissatisfied with the uncertainty about where their Government were going and what was going to happen. Business was unhappy with it, and it disrupted much of the personal, commercial and industrial life of the country.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
I am listening to the hon. Member intently. Was the problem between 2017 and 2019 not precisely the opposite, in that there was no way to have an election so that the Government could get on with governing and we could get business transacted in this place? Was it not the exact opposite of what she is describing that posed so many of the issues that we faced in those years?
Christine Jardine
I thank the hon. Member for his contribution, but I would say that it was actually the opposite. If we all cast our minds back to 2017 when the Fixed-term Parliaments Act was in place, we will remember that we had a snap general election because the Government wanted a general election. The Fixed-term Parliaments Act allowed for that. Then, between 2017 and 2019, the Government chose to behave like a majority Government when they were not one. The right hon. Member for Elmet and Rothwell (Alec Shelbrooke) said earlier that we had an instruction from the public; we did not. We had a divided country and a divided Parliament as a result. We did not have a majority and we had uncertainty and a Government who did not accept that to get anything done, they had to find a way to work with the other parties. That was the problem between 2017 and 2019.
Ironically, as my right hon. Friend the Member for Orkney and Shetland (Mr Carmichael) said, in 2019 we were able to come to a general election, even though it was in December, because the Government realised that they had to find a way and talk to people. In that respect, the Fixed-term Parliaments Act did not fail; it proved its worth in allowing the Government to be flexible enough to do that. Contrary to what the hon. Member for Argyll and Bute (Brendan O’Hara) said, the devolution Act allows for the same possibility in Scotland: if it is not possible for the Government to govern, there will be an election. I accept that the Fixed- term Parliaments Act is not perfect, but I do think it allows for some stability. It allows a Government, an Opposition and the public to know that there will be a period of stability if there is a majority Government.
Andrew Bowie
The hon. Member is being kind and indulgent of me in giving way. The simple fact is that the reason why we were able to have a snap election in 2017 was that two thirds of the House of Commons voted for it. That was never going to be the case at any point between 2017 and 2019; in fact, we had the farcical scenes of the Prime Minister wanting to dissolve his own Government to go to the country and the Leader of the Opposition agreeing, but not just yet. The hon. Member suggests that the uncertainty was brought about because the threat of an election was hanging over us, when actually the exact opposite was the case.
Christine Jardine
I am afraid I beg to differ. For me and for many people I know, the instability was because the Government did not accept the reality of the situation we were in and act accordingly. We could spend the rest of the evening debating what the Government did between 2017 and 2019 but we would not change it.
The fact of the matter remains that we had a general election in 2019 and we are now discussing the Fixed-term Parliaments Act, which I believe offers this country the opportunity for the same sort of stability as we see in democracies around the world and within our own democracy. If the Fixed-term Parliaments Act is repealed, this place will be perhaps the only sphere of government—local, national or devolved—in the United Kingdom that does not have a fixed term. It is not just about those elected to this place; those who work for it and for the elected representatives do not have the certainty and security of knowing what the term of a Parliament will be. That is why, as I said, I believe that although the Fixed-term Parliaments Act was not perfect, it was, as my right hon. Friend the Member for Orkney and Shetland said, a necessary modernisation and a recognition that the way we had done things up to 2011 had to be changed. We had to come into the 21st century, with a fixed-term Parliament with the flexibility to have an election but the stability that the country not only needed at that time but needs right now because of covid-19.
What happened in 2010 was not something that will never happen again. The situation that the country faced—the crisis that needed stability—was not something that happens only once in history. It has happened before and it will happen again and, as I have said, it is happening now. What the people of this country need from us is the certainty and the stability of what their future will be. That is why they elected us. We should not need the threat of a general election to be out there talking to and engaging with our constituents and listening to what they say. If we do, then we have failed.
The hon. Member for Argyll and Bute (Brendan O’Hara) described this Bill as a power grab and, in that, I have to agree with him. It is taking power away from Parliament. It is taking power away from the Members of Parliament and, in doing so, from the elected representatives, and placing it in the hands of the Government and only the Government. It is making the timing of a general election the whim, potentially, of one person based on the scenario of the time. We have talked about lots of decisions about when general elections were and when they were not. In 1974, when, sadly, I was also alive—
Anthony Mangnall
I am sorry that I was not there to see the 1974 election. We talk a lot in this place about the precedent and the history of what has gone on before us, but actually there are not many examples, with the exception of 1974, of where early elections have been called, so this is not a precedent that has been abused. It has been done with careful consideration by the Government of the day to call an election, not always to their advantage.
Christine Jardine
I am conscious that I am running out of time. I accept that it has not always been abused. If we look at that thread, we will see something common in 1974 and 2017. If a party goes for a snap election, the country will not necessarily re-elect it, because the country did not necessarily want a snap election; it wanted stability. Therefore, I return to my original point that what we have with the Fixed-term Parliaments Act is the certainty and the stability that, perhaps not the Government, but the country demands. Therefore, I will be voting with my right hon. Friend the Member for Orkney and Shetland.
If I could take one more second, Madam Deputy Speaker, it would be to echo the thoughts of my right hon. Friend, now that the Minister for the Constitution and Devolution is back in her place, and say what a delight it is to have her here.
Gareth Bacon (Orpington) (Con)
I join colleagues from across the House in warmly welcoming my hon. Friend the Minister back to her place. It is a great pleasure to see her back here today.
I rise in very strong support of this Bill. It is a long overdue redress of our constitutional balance and the use of the royal prerogative. The Bill reasserts that Parliament is sovereign in our democracy over what are fundamentally political decisions.
Let me speak to clause 1. The Fixed-term Parliaments Act, which this Bill repeals, is a prime example of how short-term measures, necessary at the time, can have very hazardous long-term implications for our constitution. I understand why the coalition Government considered it necessary to bring in the Fixed-term Parliaments Act, and the right hon. Member for Orkney and Shetland (Mr Carmichael) set out those reasons in what I thought was a very thoughtful speech earlier on. There were both political and economic considerations at the time. The reverberations of the financial crisis were still being felt, and the economic mess that was left behind by the outgoing Labour Government needed urgent and stable administration, but the election of 2010 did not deliver that. A clear outcome had not been achieved, so there was a need to show that the Government would provide stability for a full term. Whether the Fixed-term Parliaments Act was required to achieve that, or a simple Bill fixing the length of a single Parliament, is something that we could debate endlessly. However, we have to deal with what is, and the detrimental trade-offs have been shown to be patently obvious.
The Joint Committee of both Houses, established under section 7 to review the Act, found it flawed in several respects. There are still unanswered conundrums in key areas, which demonstrate why the Act should be repealed. For example, who governs after the 14-day period following the successful passage of a no-confidence vote? Is the Prime Minister still in charge? Should he or she resign immediately? Who takes over and how? What if an agreement is reached on the 15th day?
Secondly, how do other traditional confidence motions such as the Budget and the Queen’s Speech tie into the Act when statutory provisions mean that the Government could refuse to put a specific motion before the House? Thirdly, and most crucially, the gridlock, uncertainty and, eventually, utter paralysis that became the hallmarks of the bitter disputes of 2019 meant that we faced the absurd situation in which the Government could neither legislate nor go to the country. I can testify, as somebody who was a member of the general public and not a Member of this House at the time, to how that massively undermined the status of Government and Parliament in the eyes of the general public. Every single person I spoke to was tearing their hair out at what they saw as self-indulgent paralysis in this House.
My right hon. Friend the Chancellor of the Duchy of Lancaster outlined the important elements contained in clauses 2 and 4 of the Bill. I will focus on clause 3, which is extraordinarily important because it safeguards due political process from interference. Events during the last Parliament showed that the judiciary can be used and abused by activists to wage political wars through the courts. One of the most dangerous aspects of the Miller and Cherry case was that not only did a group of largely unelected elites seek to thwart the democratic will of the British people—I hasten to add that the 2016 referendum result was finally vindicated when we eventually had an election in 2019—but the sovereign was drawn into a partisan dispute. It is paramount for our constitutional democracy that the sovereign must be, and must be seen to be, above party political battles.
The Bill will help to prevent such a situation from arising again by making the revived prerogative powers non-justiciable. That is wholly welcome. For those reasons, I will support the Bill, and I congratulate the Government on delivering another of their manifesto commitments.
Jim Shannon (Strangford) (DUP)
May I say, as others have said, what a pleasure and joy it is to see the Minister for the Constitution and Devolution in her place? I mean that sincerely. I and the Democratic Unionist party are pleased to see her back to health and strength and back in her position of control as well. We wish her well. [Laughter.] Well, she has control as Minister. She has been much in our thoughts and prayers —I will leave it at that.
It is always a pleasure to speak in this House, whatever the issue may be. While my constituency staff may have a different opinion—it is incredibly exhausting for them to work their full-time hours during the day and canvass for hours in the evening, so they may long for a five-year fixed term—I believe it is right that we have the flexibility to match the requirements of Parliament and the nation as well as finding a balance and, perhaps, peace of mind for me and staff. I am a great believer in the democratic process, and I have been elected by the people to say that in this House. Coming as I do from Northern Ireland, I have endured the terrorist campaign directed against us, and that underlines why it is important to have a democratic process. I have always encouraged people to use the democratic process to express themselves. I am a great believer in it, and it has to deliver.
The hon. Member for Totnes (Anthony Mangnall), who has been active in interventions, referred to elections. I remember every election that I have done—there have been a brave few over the years—and, on the night of the count, I have always told my workers and voters, “The campaign for the next election starts tonight.” Anyone who thinks the campaign starts only as we run into an election is very much mistaken; it is from the start of the five years, four years or whatever it may be. It is always good to put that on the record. It is also, I believe, important that this House, this mother of Parliaments, this seat of democracy sent the democratic process and the methodology for that across the whole world, and how privileged we are to be here to be part of that.
I do, however, have just one real issue that concerns me. Others have spoken of it, and I want to put it on the record. Indeed, the hon. Member for Orpington (Gareth Bacon) referred to it in his last comment as well. We must ensure that Her Majesty is not put in a position that is untenable. I ask the Minister—I look to the Minister—to respond to it. Will she elaborate on what steps there are to protect the institution from allegations of affronts to the position of our constitutional monarchy?
I am unashamedly a fan of royalty and a fan of the Queen. It goes without saying that I just love the institutions, the traditions and the history that we have. Boy, the whole world wants to have it, but we have it here and in our history, and I love it. However, I have to say that I was incredibly dismayed about the suspension of Parliament in 2019, which saw our Head of State receiving a backlash for doing what she is supposed to do as our Head of State in following the lead of the Prime Minister.
From the background notes, I just took one paragraph, one sentence of which states:
“The Prime Minister could choose to advise the Queen to set a polling date 6 months in the future, or later, or could delay giving any advice on the subject to the Queen at all.”
Well, how disrespectful would that be to Her Majesty the Queen, given the high respect we have for her and for the institution in upholding the democratic process in every way, including her moral stance. I just think that we really need to have that clarified. In any of these changes, we must ensure that the position of the monarch in her role as sovereign over Parliament must be crystal clear, not once again debated and challenged. It should never be in doubt, there should never be a question mark and it should not be unnecessarily highlighted.
I have read one opinion stating that the Fixed-term Parliaments Act was designed to prop up a weak Government. We have no need for this. We have a democratic process that we all believe in, and the result is that the majority rules. This is sometimes a difficult pill to swallow, especially in scenarios such as the Northern Ireland withdrawal agreement, on which my party and I foresaw the dreadful position that Northern Ireland would be put in. We had a very awkward hokey-cokey of being in the EU and then out of the EU, as it suits the EU. It has been incredibly detrimental to small independent businesses that cannot import their products as they once did. I have numerous companies that are stretched and prevented from doing their normal business, as well as farmers who cannot get machinery in and nurses who cannot get the products they have had for years. Democracy has not been easy to accept.
However, when I look at an alternative, I am again drawn to the wisdom of Churchill. In my first speech—my maiden speech—in this House, I referred to Churchill. I am a fan of the Queen and of royalty, but I am also a great fan of Winston Churchill. He had an incredible ability with words, and I just wish I had even a small piece of his ability. He is one of my heroes. He said that
“it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule…and that public opinion, expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.”—[Official Report, 11 November 1947; Vol. 444, c. 207.]
What wise words from Winston Churchill. He is not here any more, but he walked in this House of Commons where we are. He perhaps sat in these seats because he was apt to sit on both sides of the Chamber—with the Government and with the Opposition. He was a great man and a great leader at a time when we needed him. Perhaps all of us in this House need a reminder that we are here to serve the people, not to rule them. If we get such servitude into our minds, I believe we will have the right mindset. What a privilege it is to be here, in the mother of Parliaments, and to be the MP for Strangford.
I support the changes in principle, and tonight we will vote with the Government, but I ask for further information on protecting our Queen and her role as the sovereign, in conjunction with her position as head of the constitutional monarchy that we hold so dear and love so deeply in our hearts—we enjoy it every day. This information will, of course, determine the form of where we are, so I look to the Minister for clarity and assurance, which I value, on the Bill’s impact on the monarchy and Her Majesty. The Government and Parliament must avoid a constitutional crisis, and they must always be respectful to our Queen and the monarchy.
Jackie Doyle-Price (Thurrock) (Con)
I join colleagues on both sides of the House in welcoming the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith), back to her place at the Dispatch Box. She has fought her battle with the characteristic grace she always displays, and it is great to have her back.
I have really enjoyed this debate because I am a constitutional nerd, so bear with me if I become a bit tedious. We have heard a lot about the Fixed-term Parliaments Act today, and people’s view of it tends to be informed by where they were in the debate in 2019. Some of us are perhaps more charitable about it than others.
It is difficult to view our constitutional settlement through the prism of what happened in 2019, because those circumstances were unprecedented and they would have tested the constitutional arrangements whatever they were. Fundamentally, we had a Government who were governing without a majority in Parliament, which is always testing, and they were trying to implement a policy that was not supported by a majority in Parliament, which is equally testing. There was also much dispute within the political parties, which meant the usual ways of sorting out issues were difficult. This was an issue of major constitutional significance, overlaid by a public referendum, so it was a powder keg.
Everyone was badly behaved because everyone, recognising that there was no majority for their particular position, did what they could to pursue their own opinions. It was not Parliament’s finest hour, but it was the fault not of the Fixed-term Parliaments Act but of the outcome of the 2017 general election. We can debate how that came about, and maybe it came about because of the Fixed-term Parliaments Act.
It might be a moot point whether consent for an election might have happened at all, given the Prime Minister went to the country with a majority in the House of Commons and without having lost a vote on any significant matter of policy, but that is a question for another day, because we have before us the Government’s proposals for reforming the Fixed-term Parliaments Act.
I am supportive of the proposal to return to the status quo that prevailed in 2010, but seeing these events through the prism of what happened in 2019 has led to a draft of the Bill that perhaps needs a little improvement. I am pleased the Government have already accepted some of the recommendations of the Joint Committee on the Fixed-term Parliaments Act in that regard.
It is important that the Government continue to act in that way, because these constitutional issues need to stand the test of time. If there is one lesson we can take from the Fixed-term Parliaments Act, it is that it did not stand the test of time, because it is a creature of its time. We can understand why the coalition Government wished to bake in some stability. We would all agree that messing around with the constitutional settlement in this country was perhaps not the best way to go about it, but that is easy to say in hindsight. We have to recognise there may be future coalitions, and perhaps the House could put on record that any attempt to bake a coalition agreement into legislation should not interfere with our constitutional arrangements.
We also need to acknowledge that, in delivering five years of stability in government, the Fixed-term Parliaments Act was a success. The right hon. Member for Orkney and Shetland (Mr Carmichael) reminded us of the political circumstances in which that Government came into being. For any long-term stability, following a financial crisis, we needed that Act to happen.
The Fixed-term Parliaments Act was not all bad, but what we have to replace it is better because it gives flexibility, within a reasonable amount of certainty. The Bill establishes a five-year maximum as opposed to a fixed term, and the expectation will be, as previously, that Governments will choose the date of an election. That is not to say that we encourage snap elections without any good reason. History tells us that the public do not like people who cheat; they expect everyone to play fair. If there was a perception that any Government were abusing their powers in that regard, the public would take a dim view. We can perhaps look to 2017 as an example of that.
As I said in my intervention on my right hon. Friend the Chancellor of the Duchy of Lancaster, I am pleased the Government have acknowledged that the Prime Minister requests a dissolution from the Queen, and does not seek advice. Accepting that, however, renders the ouster clause irrelevant. By making a decision to grant a Dissolution, is the Queen acting in Parliament? That is covered by the Bill of Rights. The issues we had in 2019 were about advice. I appreciate the point made about “let’s do belt and braces, be absolutely certain and put it in the Bill”, but if we are going back to and re-establishing the status quo from 2010, the existence of the ouster clause goes beyond that.
We had vigorous debates on these issues in the Joint Committee, and there was a strong minority opinion that an ouster clause is not the best way of doing things. My point is that it is superfluous. That it is in the Bill is perhaps belt and braces—fair enough—but by so doing, it almost becomes an article of bad faith. I think we should put the events of 2019 well and truly behind us. As I said earlier, that was not Parliament’s finest hour. What happened is that our unwritten constitution—and this is the beauty of it—finds a way of flexing to get to the right outcome. Again, it was uncomfortable for the Government at the time to have their actions thwarted, but the outcome was the right thing to happen.
I am concerned—the Fixed Term Parliaments Act is a good example of this—that as romantics we believe in our unwritten constitution. I was someone who believed that the fewer rules there are, the more reliant we are on honourable behaviour by all players in the system. In many ways, having too much prescription in the Fixed Term Parliaments Act enabled people to be compliant with the detail of the law, but not the interests of good governance. As we pass this Bill, which enjoys considerable support across the House in terms of returning to the status quo, I would not like it to be undermined by quick fixes to address the situation that happened in 2019. That should not be informing how we look after our fantastic constitution going forward.
Mrs Maria Miller (Basingstoke) (Con)
It is a great pleasure to take part in this debate and join many other right hon. and hon. Friends in hailing the good health of my hon. Friend the Minister for the Constitution and Devolution. I do not, however, join Members in welcoming her back, because I do not think she has ever been away. Whether by texts or telephone messages, Teams calls or ministerial meetings, she has always had a hand on the tiller, even if it was sometimes behind the scenes. It is a great pleasure to see her in her place. Democracy is a fragile thing. We are custodians of our democracy, and we should never, ever forget that. Having my hon. Friend at the centre of these discussions fills me with a great deal of confidence that they are being dealt with diligently. That is very important indeed, because elections are pivotal to our democracy. The process of dissolving Parliament and calling a new Parliament was changed back in 2011 to help make the coalition Government more stable, and it did that; the Bill is designed to return us to the tried and tested process, following what have been a bumpy few years.
In reflecting on the speeches of the right hon. Member for Orkney and Shetland (Mr Carmichael) and the hon. Member for Edinburgh West (Christine Jardine), I referred back to my notes, because I felt that they might be falling into rose-tinted glasses territory with respect to where the Fixed-term Parliaments Act came from. In its scrutiny, the Joint Committee, of which I was a member, took some important evidence from Oliver Letwin, who after all was one of the architects of the coalition agreement. He said that
“a fixed-term Parliament arrangement…was a product entirely of the coalition discussions.”
Any notion that it was at the back of the Conservative party’s mind could not be further from the truth. Indeed, he went as far as to say that coalition would not have worked as well with either side knowing that, to use his word, it could “crater” the Government.
The 2011 Act was legislation of convenience, as others have said. Perhaps it was not something that we should have done, or perhaps it should have been very time-limited, but in the eyes of those who put it together it was very much legislation of convenience, so it feels entirely appropriate that we are now rethinking it and looking for a different way forward. As my hon. Friend the Member for Thurrock (Jackie Doyle-Price) and others have said, it is highly probable that the bumps in the road that we experienced between 2017 and 2019 would have happened anyway, regardless of the Act, because our exiting the EU was a challenging process for this place—I recognise some of the criticisms that hon. Members have made of the way we behaved at the time. However, it is clear that the Act caused some delay at a time when we should have had a much slicker process for dealing with the constitutional crisis in the middle of 2019.
From the evidence that the Joint Committee took from academics and lawyers, it is clear that it can be argued that the Bill will return us to the position before the Fixed-term Parliaments Act was enacted. On balance, while the Act did its job for the coalition Government, there will not be too many people crying into their beer—to put it colloquially—if it is repealed. At times, when people such as Lady Hale and Lord Sumption came before the Joint Committee, we felt as if we were having a constitutional seminar on a very grand scale. Ultimately, however, we have to make the decision on the way forward, because views are mixed at best.
It is good to see that some of the drafting has been reconsidered, particularly in the name of the Bill, which is much more apposite now. There has also been redrafting in other areas as a result of the hard work of the Joint Committee, which was ably chaired by my noble Friend Lord McLoughlin—he did a superb job.
Suggestions have been made that the Bill might bring the sovereign into politics, but the evidence that the Joint Committee took did not overwhelmingly support that position. Suggestions that the non-justiciability clause was unnecessary really did not receive overwhelming support in the Joint Committee either, based on the evidence that we received. There was, however, a wonderful quote from Lord Sumption to the effect that there are many things that academics look at in great detail that are not worthy of great scrutiny. I think that sometimes we may be running down some unnecessary rabbit holes in these discussions. At some stages, there were as many views expressed as there were academics and lawyers in the room. We as elected representatives need to decide on the way forward and I think that the Government have taken some very sensible decisions.
This Dissolution and Calling of Parliament Bill is entirely silent on where it is decided who actually comes to Parliament—that is, the election campaign itself, which my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) and others have raised. If we are to consider Dissolution and the calling of Parliament, should we also consider the election and how that fits in? The Government have a further piece of legislation coming our way soon and it may be that they will look at this issue in more detail at that point. I really hope that they do, because we need to be able to look at the whole of this process—the whole of the way that our democracy works—and, at the moment, we are at risk of looking at it in a very piecemeal way.
Since I was elected, there has been a profound change in the way that our election campaigns run. Back in 2015, general election campaigns were around 25 days. In fact, dare I say it, they may have been even shorter when you were elected, Mr Deputy Speaker, which was a little way before me. You may well be interested to know that, in 2019, the general election campaign was 36 days. That is despite incredible advancements in technology and the ways that we work and despite the legislation clearly stating that elections should take 25 days—perhaps this is because, hidden in the mice type, as it were, it states that that is 25 days minus bank holidays and weekends. I have to say, nobody who has run or fought an election recognises bank holidays or weekends, so in hindsight what nonsense it was to draft the legislation in that way.
Lengthening campaigns has real consequences for our democracy, for the engagement of voters, for the period of uncertainty and for our economy and our politics. This point is borne out by academic research. We were not able to take evidence on this issue in any great detail in the Joint Committee. It is not covered in the Cabinet Office democratic engagement plan and I hope that we can rectify that omission in the progress of the Bill, perhaps, as the Joint Committee suggested, through a review of the issue either by a cross-party Committee or in other ways. I think that is long overdue.
To be absolutely clear, the actual length of elections and the trade-offs that we make in increasing the length of elections is not something that we have really debated in this place, at least not for quite a while. While I welcome the return to a much clearer and much more transparent system for the calling of elections, there is still the opaqueness of the election timetable and the increased use of postal votes. Overseas voters may well be very important, but we need to consider how that trades off against the length of campaigns.
I really welcome this Bill and a return to the transparency and the feeling of control that it gives to the way Parliament works. However, I join my hon. Friend the Member for Calder Valley (Craig Whittaker) and my right hon. Friend the Member for Scarborough and Whitby in urging the Government to look at the issue of shorter elections as well.
Sir David Evennett (Bexleyheath and Crayford) (Con) [V]
I am pleased to be able to participate in this important debate. I begin by congratulating my right hon. Friend the Chancellor of the Duchy of Lancaster on his excellent speech on the reasons why we need the Bill. I am also delighted to be able to say welcome back to my hon. Friend the Minister for the Constitution and Devolution. It is so good to see her on the Front Bench again. I am proud to call her a personal friend as well as a political colleague, so that is really good news.
I strongly support the Bill and the approach presented by the Government. I reluctantly voted for the Fixed-term Parliaments Act in 2011 due to the political and economic consequences at that time. The result of the 2010 general election necessitated a coalition Government between the Conservatives and the Liberal Democrats, and I was pleased to serve in that Government under the premiership of David Cameron. However, contrary to the comments of some hon. Members this afternoon, the Fixed-term Parliaments Act was not brought in to reform Parliament. Our country desperately needed both political and economic stability to sort out the mess left by the previous Labour Government. Therefore we needed everyone to know that the 2010 Parliament would run until May 2015, when a general election would be held, to give confidence to the people, the country, businesses and, of course, the Government themselves.
Long-term stability was provided, and therefore the fixed-term Parliament was a success. It was only a pity that the Act did not have a sunset clause so that it ceased to apply after that five-year period—but hindsight is a wonderful thing. As such, the Act served its purpose at the time. However, the political and economic landscape has changed significantly over the past decade and rendered the Act unfit for purpose and redundant.
Although the 2010 Parliament continued to term, the two subsequent Parliaments concluded early. It was never meant to be an indefinite situation, and the paralysis of Parliament from 2017 to 2019 shows how unsatisfactory the situation had become by that time. In fact it was ludicrous, unsatisfactory and undemocratic prior to the general election of 2019, and it did damage, I believe, to our parliamentary system. Although we are past that now and have to move on, the Government, we must remember, failed on three separate occasions— 4 September, 9 September and 28 October 2019—to get an election called. We do, therefore, need to have the status quo return, so that a two-thirds majority in Parliament is not needed to trigger an early election. The Prime Minister must, as colleagues have said, ask Her Majesty the Queen to dissolve Parliament and call an election, as was always the constitutional right prior to the introduction of the 2011 Act.
The Dissolution and Calling of Parliament Bill is a good title. It is a constitutional change, and it says what it means. It makes provision for the Dissolution prerogative to be revived, and in doing so ensures legal, constitutional and political certainty around the process for dissolving Parliament in future. It is a return to the tried and tested traditions that worked so well in the past, before the 2011 Act.
I welcome the fact that the Bill retains provision for the maximum length of a Parliament to remain at five years. I do not agree with the hon. Member for Rhondda (Chris Bryant); he spoke an awful lot of sense, but I think a four-year Parliament is too short. We do not want to have a Parliament that is constantly electioneering. Five years seems to me the right time.
I hope that the Government will look carefully at another issue, though: I share the opinion of my right hon. Friends the Members for Scarborough and Whitby (Mr Goodwill) and for Basingstoke (Mrs Miller) that the length of an election campaign—25 working days between Dissolution and polling day—is too long. A short, sharp, effective campaign will get the electorate more engaged and will get a better turnout and greater interest. The 2017 general election campaign was far too long. As you know, Mr Deputy Speaker, I have had many election campaigns, and I have never known one that was as long. By the time election day came, people had had enough of the campaign because it had been too elongated. Our constituents wanted to vote and boredom had set in over a long period. Therefore I think this could be looked at, and I hope that when my hon. Friend the Minister takes the Bill through Committee, she will look seriously at reducing the number of days between Dissolution and polling day.
I strongly support clause 3, which will not allow the courts to intervene in any Prorogation process. That is a vital safeguard because it should be the Prime Minister and the Government who decide when, with the Queen’s permission, to call an election, and the courts should not intervene. On the Conservative side of the House, and across the House, we believe in trusting the people. They will have their say at the polls and make their judgment on the Government, the policies and the approach. They will also make their judgment on whether they think a general election is justified and vote accordingly. People believed in December 2019 that an election was necessary, so that we could get past Brexit and look towards global Britain and the future for our country. I think it will be a successful future.
It is interesting that both the Labour and Conservative parties had in their manifestos a pledge to repeal the Fixed-term Parliaments Act. That is indicative of the difficulties we had at the time—people thought its time had come and gone.
I believe the Bill represents a minor electoral change, but it is important for the good of our democracy. I share quite a lot of the views of my right hon. Friend the Member for Basingstoke about other things to do with our electoral system, which need to be discussed as well. I know the Government are looking to present another Bill, which will hopefully deal with a lot of the different issues. However, the pledge in our 2019 Conservative party manifesto is being implemented. I look forward to discussing in Committee some of the Bill’s finer points because it is important that we get it right.
I strongly support the measure, and I welcome the Government bringing it forward now. It will bring back to Parliament the traditions and the tried-and-tested ways in which we run our affairs, which have succeeded for so long. This is an opportunity for us to start on the path, with another Bill on another day to discuss other issues to do with elections, but I strongly support the measure.
Aaron Bell (Newcastle-under-Lyme) (Con)
It is a pleasure to follow my right hon. Friend the Member for Bexleyheath and Crayford (Sir David Evennett). As others have said, it is an absolute pleasure to see the Minister, my hon. Friend the Member for Norwich North (Chloe Smith), in her place. We all welcome her back, as my right hon. Friend the Member for Basingstoke (Mrs Miller) said. The Minister has not really been away, but it is good to have the Smith vs. Smith show back, live in the House of Commons.
This is a very important Bill. It is a constitutional Bill, which means it is not necessarily box office. I do not know how many people are tuned into BBC Parliament at the moment, but I am glad that we are having the debate. We have had a full debate in the best traditions of the House and—praise be—with no time limit either, although I will ensure that my hon. Friends get their space at the end of the debate as well.
It was a privilege to serve on the Joint Committee with so many distinguished Members, five of whom have already spoken in the debate, and some of whom are still in their places. We had some very eminent witnesses, including former Clerks of the House, former Cabinet Secretaries and noble lordships, most of whom also served in this House in their time, who lent so much expertise to the proceedings—not least our Chair, the noble Lord McLoughlin, who was a fellow MP from Staffordshire in his day. I pay tribute to the Clerks of the Committee, who did an absolutely superb job in both arranging the witnesses and getting us all to a report that we could all support, which is incredibly important. When legislating in this area, we should strive to be as bipartisan as possible.
The case for change has been well made by the Government and was made by the Labour party in its manifesto. The 2011 Act, which we are repealing, was indeed a product of its time, as we have discussed. It actually served reasonably well from 2011 to 2015, as it was supposed to do. In the period between 2015 and 2019, however, it clearly showed its flaws. It was a constitutional innovation that did not really survive its first contact with any sort of difficulty, which is perhaps also because of the referendum.
Referendums are also a relatively recent constitutional innovation. When the referendum asked the House to do something that it did not want to do—previous referendums had usually been on things for which the House already had a will, such as giving devolution to Scotland and Wales—and came back with an instruction from the people that the majority of Members of the House did not support, we ended up with the situation that we had in the 2017 to 2019 Parliament, which I and other Members from the 2019 intake watched with horror from home. It was not just us; it was people who were not even interested in politics and did not know what was going on. Norms had broken down, and we need to restore those norms.
As I said when intervening on the Chancellor of the Duchy of Lancaster during his opening remarks, any constitutional arrangement needs to be equally suitable for any parliamentary arithmetic, and given what we had under the Fixed-term Parliaments Act that was blatantly not the case. I accept that Brexit exacerbated tensions, but those tensions would have been there anyway in any minority Government situation.
I understand that future coalitions may need similar security to what the Liberal Democrats sought in the Fixed-term Parliaments Act, but I suggest a simple Bill in the future, prohibiting the Prime Minister from requesting—something we said, requesting—a dissolution until a given date. That simple Bill would last only for that Parliament; after that, we could move back to the tried and tested, which is what we are trying to do today.
Conclusion 7 of our report was that a requirement for a super majority in this House cannot be enforced. It has been said sometimes that the constitution of this country is whatever commands a majority of the House of Commons. The only way to enforce a super majority requirement is perhaps through the House of Lords, but the idea that the House of Lords could prevent an election is not credible, or it would ultimately damage the credibility of the House of Lords to such an extent that it would not consider it.
Turning to other recommendations of the Joint Committee, I am pleased the Government have listened to the point about the Prime Minister requesting, not advising. As other hon. Members said, the name change is appropriate. Hopefully, this Bill will be part of our constitutional settlement for decades, perhaps even centuries, to come. The idea that it should have been called the repeal of the Fixed-term Parliament Act is simply not befitting. We have had some constitutional oddities in our time: the reason we have elections every five years is the Septennial Act, which means seven years. We can move on. This is the right title—the dissolution and summoning of Parliament is precisely what the Bill does.
The point about the 25 working day election period was well expounded by my right hon. Friends the Members for Scarborough and Whitby (Mr Goodwill), for Basingstoke and for Bexleyheath and Crayford. We need to find a way to reduce that. We need to press the Electoral Commission further; it has been very resistant, both in its evidence to our Committee and in answers given to questions in this House. With technology, surely it should not be insurmountable to find a way to reduce the period in which Parliament is absent and to reduce the overlong campaign, which does not serve us or our constituents.
Jackie Doyle-Price
Does my hon. Friend agree that the principle ought to be that the electoral timetable should be fixed at the convenience of the public and the participants in the election, not the Electoral Commission?
Aaron Bell
I could not put it any better than that; my hon. Friend is absolutely correct. I understand the desire to make sure things are done properly, but there has to be a way to do things more quickly. We have to embrace technology, which ought to make things more possible rather than more difficult—putting in extra time for this, that and the other, for coming from overseas or to set up people’s proxy vote. We must be able to do things far more quickly than we have done in the past.
On our recommendations, the Government need to look at—we all ought to, actually, because this is probably a conventional point—the period after the election. In many cases, we have been lucky that we have been able to form Governments quickly, but that is not necessarily always the case. We need to look at the conventions around that. In fact, turning to conclusions 31 to 33, by definition we are not meant to vote on those conventions because they are conventions, but, as the Chancellor of the Duchy of Lancaster said, a discussion in Committee of the whole House may help to establish conventions.
It was our Committee’s opinion that the original dissolution principles document was inadequate. We proposed a 20-point list of conventions relating not just to dissolution but to the period of time in which Parliament is dissolved and the calling and forming of Governments. I hope that we can all consider that in Committee and come to a common understanding, because honourable behaviour and common understanding is the way that we need to proceed in these matters.
Overall, the Bill does strengthen the democratic process by restoring the overriding principle that the Government should have the confidence of the House of Commons. That was the norm that was distorted over and again in 2019. We have to reaffirm that; it is fundamental to the operation of Parliament. Once again, parliamentary votes can be designated as matters of confidence. That was the essential problem: it was possible for a number of Members to vote against the Government’s absolute flagship policy one day and the next day to vote that they had confidence in the Government. That is no Government at all. We need to find a way for things to function so that there has to be confidence in the Government’s flagship policies, Budget and Queen’s Speech; otherwise, they are no longer the Government. That is how things need to proceed in this place.
The Bill would also provide greater legal constitutional and political certainty around the processes for dissolving Parliament and holding a general election, with the flexibility we need for exceptional circumstances. The one thing that contributed to the general sense of chaos that I saw watching from home, and I know others did, was the lack of certainty about how things should be operating. In particular, nobody seemed to know what was supposed to happen in that 14-day lacuna: whether the Prime Minister was supposed to resign on day 1 or day 14; whether the Leader of the Opposition would become the Prime Minister, even if they could not command a majority. It was a ridiculous position for our country to have got into, and we will get ourselves out of that by passing this Bill.
On clause 3, the ouster clause, I accept that opinions differ and they differed in the Committee, but I certainly have no problem putting into statute the very clear precedent that the exercise of prerogative powers relating to dissolution is non-justiciable and cannot be reviewed by the courts. That is a long-standing and generally accepted convention. Personally, I would of course take a dim view of a court seeking to intervene in the timing of an election. There is nothing more inherently political than an election and involving the courts—what is called “lawfare”—in the timing of an election would be incredibly uncomfortable for the public, everyone in the political sphere and, I think, the courts as well. How could the image of a Supreme Court trying to override the wishes of a Prime Minister, as enacted by the sovereign, be tolerable to the public? I cannot see any circumstance where that is better than having the election or, potentially, the sovereign refusing to dissolve Parliament.
On that point, we heard repeatedly that the sovereign would not refuse. If the sovereign was going to refuse, it would be communicated to the Prime Minister beforehand that the sovereign would refuse, so the request would never be made. That is how our unwritten constitution should work: through those sorts of understandings. That is what we need to get back to.
The ultimate arbiter of all these matters should be the voters or, in exceptional circumstances, the sovereign. If they are unhappy with how a Government have behaved with the calling of an election or the timing of an election, it is in their hands to determine the consequences for that Government and what the electoral punishment should be. I take issue with the idea we have heard a few times today that the Bill is about putting power in the hands of the Government. It takes power away from Parliament, certainly, but it vests that power in the public and the electorate, and that is where power should truly lie.
Anthony Mangnall (Totnes) (Con)
It is always a pleasure to follow my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell). May I start, as so many colleagues have done, by welcoming the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith), back to her rightful place? It is wonderful to see her.
This has been a very entertaining, interesting and thought-provoking debate. As ever, it is good to see Parliament on form, with cross-party consensus on what needs to be achieved. There has been a great deal of thought and consideration about what further steps this House might take. I certainly know that my hon. Friend the Member for Thurrock (Jackie Doyle-Price) will be able to hold me up on anything I get wrong, as a constitutional geek, as I make my speech.
I want to agree with what my hon. Friend the Member for Newcastle-under-Lyme said. When the Fixed-term Parliaments Act 2011 came in, the idea that it was there for political expedience was perfectly obvious. It should have been introduced with a sunset clause, so that we did not have to endure it beyond 2015.
I want to make just a few remarks, because there is nothing new I can say at this point in the debate. In 1974, we saw one election in February and one in October. I am not able to remember either of them, but I am acutely aware of the fact that that is the exception. Governments take very seriously the idea of holding general elections. It is not a power to be abused. There is not a system where Governments think they can instantly call one and find the public on their side. It takes great consideration to be able to make that decision. We have to be clear about that. Many of the arguments that have been made by the Opposition seem to be confusing personality with the politics. That is not acceptable in this debate, because the reality is that it has not been done since 2010, apart from in 2017, and, I would argue, because of the FTPA. The hon. Member for Strangford (Jim Shannon) made the point that elections are won not at election time but in between elections. It is in our interests to make sure that we run as close to the full term of a Parliament and certainly history would suggest that that is what we have done.
The excellent report produced by the Joint Committee and the Public Administration and Constitutional Affairs Committee report suggests in the recommendations that any replacement for the Act should support a majority, a coalition or a minority Government. That could include confidence and supply. I think that is exactly what happens now. As far as I can understand it—I will take any interventions if I am getting this wrong—the Lascelles principles are there to allow the opportunity for the Opposition, or another grouping, to come forward with an alternative if they can supply the numbers in the House. The hon. Member for Argyll and Bute (Brendan O'Hara) was saying that the Lascelles principles no longer stand and that that convention is overwritten by the Bill. That is not true. That is not the case. The fact that the convention is unwritten means that the point for the sovereign still stands and that, if someone were to approach the sovereign with the alternative model, it would work.
Jackie Doyle-Price
My hon. Friend is articulating this very well. Again, it comes back to the fact that one of the biggest issues with the Fixed-term Parliament Act was the way it interfered with votes of no confidence. It had a very prescriptive set of rules that prevented the Lascelles principles from being implemented at that stage, but now that we are going back to the status quo, they will absolutely come back.
Anthony Mangnall
I was worried that my hon. Friend was going to tell me that I was wrong, but that was a delightful intervention and one I entirely agree with. I thank her for that point, because the wording of the Bill ensures that it will look as though the Fixed-term Parliaments Act had never been enacted. We are going back to the status quo before the Bill, rather than trying to change things forward, and it is important that that is understood.
Parliament should be flexible, agile and able to respond to the needs of the public, and by removing the Fixed-term Parliaments Act, we will go back to a stage in which we can respond to the issues of the day, and the concerns and problems that must be addressed. Governments should be held to account by the Opposition and by Back Benchers. They should fear votes of no confidence where necessary and be prepared for elections to be called, if required, because their legislative agenda cannot be pursued. After all, we are here because we set a legislative agenda that we need to see through. If we are unable to do that, it is only right and sensible that we either go back to the people or offer an alternative, and that is what the Bill will do.
As far as I can make out, the only benefit of the Fixed-term Parliaments Act was that it brought the Liberal Democrats into an embrace of death from which they have not recovered, five years on. However their recovery goes, that seems to be it. They did not learn from the 1920s and they have not learned from 2010-15. The Bill offers us the opportunity to reassure our constituents that we can be on their doorsteps 365 days of the year. We can make the case about knocking on their doors and ensuring that they have the democracy and the representation that they deserve.
The last point I would like to make is on clause 3, the ouster clause, which has been referenced by many in the House. It reminds this place of the fact that the courts must not involve themselves in the way in which we call elections. The point has been made time and again about the damage that would do. I welcome the Government’s Bill. I welcome the fact that it is fulfilling a manifesto commitment, and I welcome the fact that this is a return to a good piece of legislation that will ensure that democracy is secured for many years to come.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
It is always a pleasure to follow my hon. Friend the Member for Totnes (Anthony Mangnall), and even more of a pleasure to know that we are going to be in the same Lobby this evening—that is not always the case. I want to join everybody across the House in welcoming the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith), back to the Chamber. It has been a lesser place without her, and although she has been joining us through the wonders of Zoom, it is absolutely brilliant to have her back on the Front Bench doing her job so ably. I wholeheartedly echo the thoughts expressed by everyone in the House today.
It would be remiss of me not to mention that today, 6 July, is a day that is clouded by tragedy in the north-east of Scotland, because today we remember the 167 men who lost their lives in the Piper Alpha disaster 33 years ago. Many people are still grieving for lost loved ones, and this still causes many of us in the north-east to pause and think about the sacrifices made on our behalf by those people working to ensure that we continue to receive our energy in the way we do. We thank them and we remember them.
I am not a constitutional geek by any stretch, certainly not to the extent of my hon. Friend the Member for Thurrock (Jackie Doyle-Price). I thought I was, but listening to the arguments today, I realise that I am but a rank amateur when it comes to constitutional history, the details of how this country got to the place it did, how our constitution was created and how we run the country. However, I am strongly of the view that the Fixed-term Parliaments Act was, frankly, a piece of constitutional vandalism that I cannot wait to see repealed.
Governments must have the confidence of this House, and they must be able to govern. Most of us in this House who lived through the events between 2017 and 2019 will know that neither was the case in that Parliament, and 2019 is a year that I still shudder to remember. It a year—you will not believe this, Mr Deputy Speaker—in which I started with no grey hairs and ended up with plenty, and I think my hairline was 2 cm further down my forehead than it is today. It is vital that the action we are taking today goes ahead.
In the autumn of 2019, the British people had confidence in this Government and in the Prime Minister. Most wanted us to deliver on the referendum result, while others just wanted the country to move on; neither was possible. Who can forget the utter farce of the indicative votes process, when this Parliament literally voted to do nothing? It was a shambles. What arrogance for politicians to deprive the people of their will, when it was so clear that, in the national interest, we needed to go to the country and expunge that dead, or dying, Parliament. Who can forget the frankly absurd spectacle of the Prime Minister, almost on bended knee, seeking the permission of the Leader of the Opposition, then the right hon. Member for Islington North (Jeremy Corbyn), a man who claimed he wanted an election, just not quite yet—was it three times he used that line?
Indeed, we could still be in that awful holding pattern of wanting to go to the country but failing to get the two-thirds majority required under the Fixed-term Parliaments Act, had Jo Swinson and the Liberal Democrats not come graciously to the aid of the country and the Government. For her and their sacrifice, we and indeed the entire country will remain eternally grateful. [Laughter.] We laugh now, but I remember the debates back then about when the right hon. Member for Islington North would decide that it was right for us to go to the country—maybe it would be after Christmas; maybe it would be in spring, when the weather would be better. Knowing what we know now, imagine if we had still been in that position, with that Parliament coinciding with the coronavirus pandemic and all that it wrought on the country. Are we not so very glad that we went to the country when we did? It is a genuinely frightening thought.
It is hard now in this new Parliament—sort of new—with a functioning Government majority, to imagine returning to such a scenario, but in 2010 we were told by very clever people on TV that coalitions would be the future, and in 2015 we were told that government by a single-party majority had returned. I remember in 2017 also being told that the country was braced for an era of minority government. Now, of course, we are told that we have returned to large one-party Governments that command control of the House. It is very bad to try to predict the future. In this game, it is hard to predict what will happen in three weeks, let alone three years.
The greatest asset that this country has is the flexibility of its famously uncodified constitution not only to dignify, but to bend and adapt to, circumstance and event. It has been the habit of recent Governments since the late 1990s to meddle with that, and in many instances we have learnt the hard way that we do so at our peril. As my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) said, the old adage “If it ain’t broke, don’t fix it” should be every Government’s mantra. The joy and brilliance of the previous system—whereby a House of Commons could boot out a Government if they lost confidence, or a Prime Minister could, in the national interest, go to the country—was flexible and enduring. And it worked; it did not need fixing.
Ultimately, the Fixed-term Parliaments Act failed. It expressly failed to ensure that we had fixed-term Parliaments. If it had succeeded, I would not be standing here today—some might think that would be a very good thing, but from my perspective I am very glad that the Act failed. The Act is bad law. It was ill conceived and ill thought through, with awful consequences. My hon. Friend the Member for Orpington (Gareth Bacon) spoke about the confusing situation that would arise in the two-week gap between a Government falling and the creation of a new Government. I am very glad that the Government are seeking to overturn the Act. I support this Bill and look forward to voting for it this evening.
I will finish by echoing the comments of my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell), when he wondered whether many people were tuning into BBC Parliament to watch this debate. Shame on them if they are not, because today I genuinely think we have seen Parliament at its best—a dignified, in-depth, serious debate with no time limit. The only cry I would make is: more of this sort of thing, please.
Cat Smith (Lancaster and Fleetwood) (Lab)
With the leave of the House, I shall make some closing remarks on behalf of the Opposition. As the Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), is now at the Dispatch Box, let me begin by welcoming her back. I am sure she has heard all the comments made by colleagues this afternoon and hope she feels appreciated. I agree with what the right hon. Member for Basingstoke (Mrs Miller) said: it almost feels like the Minister has never been away. As her opposite number, I can say that she has never been more than a text message or Microsoft Teams call away. I know that it must have been quite challenging at times, but it is a credit to her, her strength and her strength of character that she has continued to do the job in the way she has through an incredibly challenging time personally. Now that she is back, she is not going to be easing her way back into it, because we have not only this chunky piece of legislation before us but the Elections Bill to come.
This is probably a good opportunity for me not only to welcome the new SNP spokesperson on election matters, the hon. Member for Argyll and Bute (Brendan O’Hara), who made an incredibly passionate speech, but to pay tribute to his predecessor, the hon. Member for Glasgow East (David Linden), who was a pleasure to work with and a fully signed up constitutional geek, unlike the hon. Member for West Aberdeenshire and Kincardine (Andrew Bowie), apparently—he claims not to be but I am sure that we can convince him otherwise.
This was a very good debate and I wish to make a few comments about what was said. I referred just a moment ago to the hon. Member for Argyll and Bute, who made a strong case for the argument that this legislation is a huge power grab by the Executive. Indeed, I agree with him that clause 3 looks very much like the Government are still smarting from the 2019 court judgment on the Prorogation that never was. I reach out to my SNP colleague and suggest to those on the Government Benches that one way to solve the perceived problem that the Government have, and the reason for clause 3 being in the Bill, could be a parliamentary vote on Dissolution, which would pave a way forward.
Alongside many other Members, the right hon. Member for Scarborough and Whitby (Mr Goodwill) raised the issue of shortening the election period. Indeed, election periods have got much longer—although in the most recent election, of course, the days were much shorter. I urge all colleagues to listen to their local electoral administrators, because there are significant challenges in running elections for those who are behind the scenes, not just for us who are campaigning. One of the biggest challenges we have is the processing of electoral enrolments. I suggest to the Minister that we could look again—perhaps it could be included in the Elections Bill—at a process of automatic voter registration, which would include everybody who was entitled to vote on the electoral roll and save an awful lot of time. Perhaps that would give us the freedom to shorten the election period without putting additional pressure on electoral administrators.
My hon. Friend the Member for Rhondda (Chris Bryant) made many salient points in the debate, but ultimately he called for a level playing field, which is a concern that runs right across those of us have concerns about the Bill.
I have sparred with the right hon. Member for Elmet and Rothwell (Alec Shelbrooke) on many other constitutional and electoral matters over the years—it is always a pleasure—but I very much agreed with him when he was talking about the threats to democracy and democratic systems globally, including his point about the United States of America. However, I disagreed with his analysis of the 2017-19 Parliament, which was echoed by some of his colleagues. I think we are unfairly blaming the Fixed-term Parliaments Act as the sole cause of the difficulties that the Government had at that time. If I close my eyes and imagine that that Act was not in place in the 2017-19 Parliament, I do not see that the political path would have been much smoother for the Government, so it is unfair to blame solely that Act for the Prime Minister’s difficulties at that time. When we legislate, we should be careful not to base everything on recent political experience. Indeed, we are legislating for constitutional matters that should not only secure as broad a consensus as we can across the House but stand the test of time. We should not base everything on the specific and unique circumstances in that Parliament.
I thank the right hon. Member for Orkney and Shetland (Mr Carmichael) for reminding us that he is, of course, one of the remaining veterans of the coalition Government. He referred to the Fixed-term Parliaments Act as a “necessary modernisation” and I agree with him. That is certainly borne out as true if we look across similar parliamentary democracies across Europe and the western world; we would be out of step by reverting to the old way of doing things—indeed, to do so is arguably a regressive step. He warned that the party that is in government today is not necessarily going to be in government forever and that those on the Opposition Benches might one day be in government. We should all be careful what we wish for and consider the fair and level playing field that we all seek to achieve.
I really enjoyed the contributions made by many Members. The hon. Member for Newcastle-under-Lyme (Aaron Bell) had an awful lot to say, but his take-down of the ridiculous situation of having a super majority in the Fixed-term Parliaments Act was very succinct. Indeed, it was total nonsense that there was any super-majority in the legislation in the first place. I certainly do not think that the hon. Member for Totnes (Anthony Mangnall) built any bridges with his Liberal Democrat colleagues in his contribution.
The Bill before us does two things: it repeals the Fixed-term Parliaments Act 2011 and reinstates the status quo as if the past 10 years did not happen at all. On the first of those matters, the official Opposition absolutely agree with the Government that the Fixed-term Parliaments Act 2011 should be repealed. However, the Government have some way to go to have our confidence that this Bill is worthy of our support. We certainly cannot wish to drag our monarch into politics. We should ensure that Parliament has a central role to play in the process, as is right in any modern democracy, and certainly has a say over Dissolution.
I say to the Minister that if this was a Bill in isolation, that would be one matter, but there is a pattern of behaviour and a pattern of legislation coming out of this Government when it comes to constitutional and election matters. The attacks on the Electoral Commission from members of her party, the attacks on judicial review, and making it harder to vote by requiring ID at polling stations when there is very little problem to solve shows a pattern of behaviour that does cause concern. So much of our politics and parliamentary procedures rely on people being, as my hon. Friend the Member for Rhondda said, good guys—and women, of course. If that is broken then everything else will fray at the edges.
Ultimately, this Bill is about where power lies. I would certainly argue that power should lie with the people, but this is a power grab by the Executive against the legislature. The Bill as it currently stands needs an awful lot of work if it is to have our confidence.
Mr Deputy Speaker (Mr Nigel Evans)
Minister, we have already had many messages from within the Chamber welcoming you back to the place where you rightfully belong. May I say on behalf of every Member of Parliament that it brings us great joy to see you back here in Parliament?
The Minister for the Constitution and Devolution (Chloe Smith)
Thank you very much indeed, Mr Deputy Speaker, and I thank all the very many friends across the House who have said such nice things to me today. It makes me blush but it makes me pleased and happy to rejoin you in person and to be able to lead the closing of the debate on this very important Bill.
I thank everybody who has spoken, including well-known sparring partners on the Opposition Front Benches, with a new one joining from the SNP, so I look forward to many a time speaking on constitutional matters with the hon. Member for Midlothian (Owen Thompson). I thank the Chairman of the Select Committee, my hon. Friend the Member for Hazel Grove (Mr Wragg), who is nearly in his place, and the members of the Joint Committee who have spoken, as well as many other colleagues from across the House.
I will cover as many of the specific points that have been made as I can, but let me start by outlining how today’s debate has underlined how our former and fundamental constitutional arrangements work, with the flexibility that is essential to our parliamentary democracy. The Bill restores that constitutional balance. How do we restore the former arrangements? With reference to the comments by the hon. Member for Argyll and Bute (Brendan O’Hara), it is very important to be clear about how the Bill does this puzzle of reviving the prerogative power. There are two aspects: whether it can be revived, and, critically and importantly, the practical effect of doing so. I will cover both very briefly.
Our view is that the prerogative power can be revived but that express provision is needed, and clause 2 does exactly that. It delivers on its intended purpose to firmly reset the clock with as much clarity as possible. In preparing the Bill, we engaged with a wide range of stakeholders, including many academics, some of whom have been quoted but many more of whom also agreed with the Government’s approach, including Professor Mark Elliott. The drafting is therefore sufficiently clear, as the Joint Committee agreed.
Moving on to the practical effect, a former First Parliamentary Counsel also agrees with the Government’s approach, talking about this question almost as
“a red herring…because…it is perfectly plain that the intention of the Act is to restore the situation to what it was before…and therefore the law will then be indistinguishable”.
Let me turn from that into how this power works and what is being restored. Here we talk about the role of the sovereign. I note that the shadow Minister, the hon. Member for Lancaster and Fleetwood (Cat Smith) was, if I heard her correctly, arguing or concerned that it perhaps was not clear what the role of the sovereign might be in the returning system. Indeed, I think the hon. Member for Midlothian made the same point. I want to be absolutely clear: there remains a role for the sovereign in exceptional circumstances to refuse a Dissolution request. I am not going to be able to speculate on that from the Dispatch Box. It would not be sensible for me to do so, but other Members of this House have already offered some examples this afternoon, such as, for example, if an Opposition already had the numbers to be able to form a Government and could demonstrate confidence and viability. That point was made by the hon. Member for Rhondda (Chris Bryant). Unfortunately he is not here to enjoy me joining him in making it.
Turning to how the conventions endure, I thank the Chairman of the Public Administration and Constitutional Affairs Committee, my hon. Friend the Member for Hazel Grove for bringing that point out very well. I also thank Joint Committee members, such as my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill), who reminded us of the Lascelles principles. What I will say here is just a point about how we see the principles that accompany the prerogative power—the convention principles, or the Dissolution principles, as we named them in a document that we published alongside the Bill—going forward. That document was published to facilitate Parliament’s discussion and consideration of these very important accompanying points. We also provided a very full response to the Joint Committee, which was a further opportunity to go further in outlining the conventions as commonly understood.
I think the place for further discussion and debate on these conventions is here in Parliament—in this Chamber and the other. That will provide us with a shared understanding and the commanding of confidence— I should say “agreement”; “confidence” risks being misunderstood in the context of our debate this afternoon. It will provide us with the commanding of agreement on what provides conventions, and therefore those conventions may be able to endure.
Let me go from there to what we intend to restore and some elements that we are maintaining, although the grander scheme here is to return to a former set of arrangements. The purpose of the Bill, as I say, is to restore the long-standing arrangements that existed before the 2011 Act, but there are some exceptions, and those are where changes had already been made to enable the smooth running of elections. That brings me to, for example, the retaining of the 25 working day period between Dissolution and polling day. That ensures the continued operability of our electoral system, and I will just dwell on that for a few minutes, because a number of hon. and right hon. Members raised it.
There are three points to be made, and each is about the benefit for voters, which is a point that rang out loud and clear—that we should have such arrangements for the benefit of voters, not administrators or, indeed, politicians. The first point is that the timetable as it stands gives enough time for nominations to be received—six days—and then 19 days for those nominations to be decided upon. Let us remember that in our constitution we have a constituency-based decision going on each time. Any voter in any constituency rightly needs time to consider and decide upon the candidates in the constituency once nominated.
The second point is how much change has occurred in electoral delivery since the arrangements that we are otherwise seeking to restore were created. That is to say that the system of delivering elections is more complex than at any other point in our history. First, before 2014, there was no online individual electoral registration. That is a point of fundamental change that has enabled increasingly higher numbers of last-minute applications. That is of benefit to voters, and I would argue very strongly so. Secondly, postal voting on demand was only allowed in 2000. Again, that is the subject of debate, but I would argue that it is very strongly of benefit to voters.
My third and final point is that, in the written evidence to the Joint Committee, the Association of Electoral Administrators argued strongly that
“it would be catastrophic for everyone involved…if the… period were to be shortened…It would create a significant risk of the election failing and not being delivered and increase the risk of disenfranchising potential electors, particularly those voting from overseas.”
Fundamentally, that is a point that we should be concerned about, and it is a point in favour of the benefit to voters.
Let me move on to acknowledge what it is that we are leaving behind if we are moving to restore a different system. At this point, I acknowledge the words of the right hon. Member for Orkney and Shetland (Mr Carmichael) and thank him again for his kind words to me. Fundamentally, his argument here is one for statute and one for qualification, and, fundamentally, my argument is not. We will have to agree to differ on that, and we will do so in the Lobby tonight. What we mean by moving away from a statutory system is that we do not think that it is possible to define everything. All the scenarios that could occur at the point at which a Dissolution might be needed could not possibly be codified, so statute is not adequate in this case. What we do think, though, is that there is a very important role for the House of Commons, and I want to make this point because it came up in several hon. Members’ remarks.
There is, of course, a crucial voting role for the House of Commons in indicating confidence in the Government, or the opposite of it. That is no small role at all. To swap a statutorily defined role for the House of Commons for that role is no small swap. Fundamentally, of course, having confidence is what defines the Government. There could be no more powerful role for the House of Commons in our constitution.
That takes us to the point of certainty that my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) very wisely made. The certainty comes because the people will know that they then have their role. If it has not been possible to find confidence in the House of Commons in the formation of a Government, then the power flows to the people, and that is a certain understanding of what will happen.
Chloe Smith
I do not have a great deal of time, but I will give way briefly.
Mr Carmichael
On this point of certainty, surely all parties are entitled to certainty about the date on which the long period for electoral expenses starts to run. Under the current arrangements from the Government, only the governing party will have that certainty. Is that fair?
Chloe Smith
I am extremely glad that the right hon. Gentleman has made that point. I was going to address it in just a moment, because he raised it at the very outset, so I will come back to it shortly.
Let us be realistic. What is the prerogative power here for? It is a bit more like “break glass in case of emergency” than it is the kind of scheme that I think the Liberal Democrats are looking for. I think we can all agree that people do not welcome needless upheaval—Brenda from Bristol put it pretty well—but they do want their role in resolving a crisis. Vernon Bogdanor, in evidence to Committees along the journey of this Bill, made the point very well. Essentially, unsuccessful Governments have attempted to get to five years. Successful Governments have gone to the people at four years. Anything short of that is a national emergency. What we are talking about today is what needs to happen in the cases of emergency or crisis. I note the arguments made for fixed terms, particularly by the hon. Member for Edinburgh West (Christine Jardine), but we have tried designing those and they have not worked, so what we are returning to here is an arrangement that did work.
I want to reassure the House on a couple of points, as I said I would to the right hon. Member for Orkney and Shetland. The long campaign expenditure controls are not changed by this repeal. Those arrangements are that if Parliament is not dissolved 55 months from its first meeting, then the long campaign controls apply. That situation continues. That has not changed. I also point out that there is a measure in the schedule to this Bill that adds to that in respect of third party donations. The schedule also provides that the trigger for the election timetable in the case of a general election is the Dissolution of Parliament. That is an important safeguard that we have built into the Bill, acknowledging arguments made on that note from the Joint Committee.
I conclude by thanking hon. Members once again for their contributions this afternoon. It has been a very good debate, and I am delighted to be back and to be part of it. My priority with this Bill is to encourage consensus, because that is what will give us the most effective operation of the conventions that must endure once again.
I close with the points made by the Public Administration and Constitutional Affairs Committee on the nature of our constitution:
“at the heart of the UK’s constitutional arrangements is a fine but constantly-shifting balance of convention, principle and law, that provides clear guidance, but also flexibility… In areas of prerogative power, the Sovereign remains the constitutional backstop.”
I could not have put it better. None the less, the hon. Member for Strangford (Jim Shannon), in his inimitable style, did put it better. He said that our institutions are often the envy of the world, and I could not agree more. It is those that I want to uphold. This Bill will return our country to successful constitutional arrangements that have stood the test of time and will continue to serve the people, with the choice ultimately in their hands.
Mr Deputy Speaker (Mr Nigel Evans)
I am anticipating a Division, so could Members please follow covid regulations as they go to vote?
Question put, That the Bill be now read a Second time.
Dissolution and Calling of Parliament Bill
Monday 13th September 2021
(3 years, 2 months ago)
Commons ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 13 September 2021 - large print - (13 Sep 2021)
20:27 - The Committee divided: - Ayes: 316 / Noes: 162 - Question accordingly agreed to.
20:46 - divided: - Ayes: 312 / Noes: 55 - Question accordingly agreed to.
The Chairman of Ways and Means (Dame Eleanor Laing)
Just before we begin the consideration, I should explain that although the Chair of the Committee would normally sit in a Clerk’s chair during the Committee stage, the Chair of proceedings will remain in the Speaker’s Chair while we still have the screens around the Table, about which, the House will note, I have complained several times today because they restrict the view of the Chair. That was all very well while we were working from a written list, but now that it is necessary for Members to catch the eye of the occupant of the Chair, it is also necessary for the occupant of the Chair to be able to see all Members. The person in the Speaker’s Chair will be carrying out the role not of Deputy Speaker but of Chairman of the Committee, and they should be addressed as Chairman, rather than as Deputy Speaker.
Clause 1
Repeal of the Fixed-term Parliaments Act 2011
Question proposed, That the clause stand part of the Bill.
The Chairman of Ways and Means (Dame Eleanor Laing)
With this it will be convenient to consider the following:
Clauses 2 and 3 stand part.
Amendment 2, in clause 4, page 2, line 3, leave out “it first met” and insert “of the most recent general election”
The intention of this amendment is to require that the last date for a general election is five years after the previous general election.
Clauses 4, 5 and 6 stand part.
New clause 1—Election timetable not to disregard Saturdays and Sundays and bank holidays—
‘(1) Schedule 1 to the Representation of the People Act 1983 is amended as follows.
(2) In rule 2 (1), omit sub-paragraphs (a) and (b).”
The purpose of this new clause is to reduce the time between dissolution and the next meeting of Parliament, by including weekends and bank holidays within the parliamentary general election timetable.
New clause 2—Early parliamentary general elections—
‘(1) An early parliamentary general election may take place sooner than the automatic dissolution under section 4 of this Act only in accordance with this section.
(2) An early parliamentary general election is to take place only if the House of Commons passes a motion in the form set out in subsection (3).
(3) The form of motion for the purposes of subsection (2) is—
(none) “That there shall be an early parliamentary general election.”
(4) Subsection (5) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.
(5) If a parliamentary general election is to take place as provided for by subsection (2), the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister which must be no later than 30 days after the date on which the House of Commons has passed the motion in the form set out in subsection (3).”
The intention of this new clause is to make dissolution subject to a vote of the House of Commons.
New clause 5—Calling of Parliament—
‘(1) The date for the first meeting of a new Parliament must be specified in any proclamation for the dissolution of a Parliament.
(2) The date specified in accordance with subsection (1) may not be later than the 14th day after polling day.”
The intention of this new clause is to require Parliament to meet, and a newly elected Commons to sit to elect a Speaker, within two weeks of a general election.
Amendment 3, in the Schedule, page 4, line 22, leave out “19th” and insert “12th”
The intention of this amendment is to shorten the period between dissolution of one Parliament and the first meeting of the next Parliament by reducing the general election campaign from 25 days to 18.
Amendment 4, page 7, line 15, after “subsection (2)” insert “and”
This is a drafting amendment consequential on Amendment 5.
Amendment 5, page 7, line 17, leave out from “(ii)” to end of line 19 and insert “omit paragraph (b)”
This amendment would ensure that the Secretary of State could not make regulations to combine a UK General Election and an extraordinary general election to the Senedd.
Schedule stand part.
The Minister for the Constitution and Devolution (Chloe Smith)
May I initially seek your guidance, Chairman? Would you like me to cover all the clause stand parts and to respond, as it were, in advance to amendments? Or would you like me to return to respond to hon. Members once they have spoken to their amendments?
The Chairman
That is a perfectly reasonable question from the Minister. As all matters are grouped in one group, she may, in her opening remarks, refer to all amendments and clauses standing part, but of course she will have an opportunity to answer points made by Members when they introduce their amendments and new clauses. Or should I say “he”—[Interruption.] I should say “they”, as the right hon. Member for Basingstoke (Mrs Miller) has a new clause as well. It is perfectly in order for the Minister to now address everything that is on the amendment paper.
Chloe Smith
Thank you very much indeed, Dame Eleanor. I shall endeavour to do that, and I hope you will bear with me while I ensure that I cover all that material.
Let me begin at the beginning, with clause 1. There is consensus throughout the House that the Fixed-term Parliaments Act 2011 has proven to be not fit for purpose and has been damaging to effective and accountable government. The experience of 2019 in particular showed us that the Act was flawed and ran counter to core constitutional principles, and was therefore damaging to the flexible functioning of our constitution. It was unique legislation and it did not work. We saw how, in 2017, a Government who commanded a majority in the House of Commons were able to call an early general election with ease, irrespective of the Act’s intentions.
The events of 2019 then demonstrated how the 2011 Act could obstruct democracy by making it harder to hold a necessary election. The Act’s prescriptive constraints, such as the threshold of a supermajority requirement for a general election and the statutory motions of no confidence, created an untenable situation in which the Government could neither pass vital legislation through Parliament nor call a new election. The result was parliamentary paralysis at a critical time for our Government. The introduction of bespoke primary legislation that circumvented the Act and let us hold a general election in 2019 was the final indictment of the Act.
The Bill therefore repeals the 2011 Act and returns us to the tried and tested system whereby Parliament will automatically dissolve after five years, if it has not been dissolved earlier by the sovereign exercising that prerogative power at the request of the Prime Minister. The key argument is that in doing so it will help to deliver increased legal, constitutional and political certainty around the process for the dissolving of Parliament. Clause 1 repeals the 2011 Act and in doing so delivers, as I have already mentioned, on both a Government manifesto commitment and a Labour manifesto commitment to do so. I therefore commend the clause to the Committee.
Clause 2 makes express provision to revive the prerogative powers that relate to the dissolution of Parliament and the calling of a new Parliament. That means that Parliament will, once more, be dissolved by the sovereign at the request of the Prime Minister. By doing this, the clause delivers on the Bill’s purpose, which is to reset the clock back to the pre-2011 position with as much clarity as possible. The clause is clear in its intention and in its effect. As the Joint Committee on the Fixed-term Parliaments Act put it, the drafting of clause 2 is
“sufficiently clear to give effect to the Government’s intention of returning to the constitutional position”
that existed prior to the passing of the 2011 Act.
Sir Geoffrey Cox (Torridge and West Devon) (Con)
Will my hon. Friend help the House in respect of whether the Government acknowledge the existence of the Lascelles principles? If they do, what is the impact of clause 2 on those principles?
Chloe Smith
Of course the Government and I acknowledge the existence of those principles; they are a historical fact in and of themselves. I refer my right hon. and learned Friend to the fact that we have said consistently throughout the Bill’s preparation and progress so far that we believe that now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated. The Government have contributed to that by publishing some Dissolution principles at the beginning of the Bill’s journey. We think those principles form part of a dialogue that continues not only between the Government and Parliament but with the wider public as well. I hope that the work of this Committee today and the work in the other place will together form part of the continuation of that historical tradition of there being an understanding of the conventions that underpin the prerogative.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does not the fact that the Prime Minister requests that the monarch take steps so that an election can happen show an understanding of the Lascelles principles? Indeed, there could be other circumstances, yet unforeseen, in which a request is refused.
Chloe Smith
Yes, we believe that that is the case; that is the flexibility inherent within the constitutional arrangements that we seek to revive. That brings me back to the express purpose of clause 2, which delivers on the Bill’s purpose, which is, as I said, to reset back to the pre-2011 position with as much clarity as possible. We believe that is clear in our intention to revive the prerogative.
Naturally, I recognise that the revival of the prerogative has been subject to academic debate. For example, as Professor Mark Elliott, professor of public law at the University of Cambridge said:
“Given the scheme of the Bill, it is perfectly clear that the prerogative will be revived and that, from the entry into force of the Bill, the prerogative power of dissolution will once again be exercisable.”
Furthermore, even if any doubts remained from some of the academic debate that has taken place, as the former First Parliamentary Counsel, Sir Stephen Laws, said in his evidence to the Joint Committee, the academic debate is something of
“a red herring, because…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”.
The Government are, then, confident of the intention and practical effect of the clause. A letter that I sent recently to my hon. Friend the Member for Hazel Grove (Mr Wragg) sets out why we believe that there is a sound legal basis for that position; I hope that Members may have had a chance to see that letter, which I publicised to right hon. and hon. Members. By making express provision to revive the prerogative powers, clause 2 returns us to the tried and tested constitutional arrangements, so I commend it to the Committee.
Clause 3 is necessary and proportionate for the avoidance of doubt and to preserve the long-standing position that the prerogative powers to dissolve one Parliament and call another are non-justiciable. Those prerogative powers are inherently political in nature and, as such, are not suitable for review by the courts. Any judgment on their exercise should be left to the electorate at the polling booth. That was the view of the courts, as expressed by, for example, Lord Roskill in the landmark GCHQ case in 1985: he considered that the courts are not the place to determine whether Parliament should be dissolved on one date or another. That position was recommended more recently in the independent review of administrative law, published in March this year, which noted that clause 3 can be regarded as a “codifying clause” that
“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.
As I mentioned earlier, clause 3 has been drafted with regard for the direction of travel in case law. Over the years since the GCHQ case, some of the prerogative powers previously considered to be non-justiciable have been held by the courts to be justiciable. The purpose of the clause is therefore to be as clear as possible about the no-go sign around the dissolution and calling of Parliament. It is carefully drafted to respect the message from the courts that only
“the most clear and explicit words”
can exclude their jurisdiction. This is a matter for Parliament to decide; that view accords with the majority of the Joint Committee, which said that
“Parliament should be able to designate certain matters as ones which are to be resolved in the political rather than the judicial sphere”.
We have made our intentions clear so that the courts will understand that that is the clear will of Parliament. I therefore commend the clause to the Committee.
Shailesh Vara (North West Cambridgeshire) (Con)
Does my hon. Friend agree that one benefit of clause 3, as well as highlighting all the issues that she has just mentioned, is that it makes it abundantly clear that Parliament is supreme?
Chloe Smith
Yes, that is right. I am grateful to my hon. Friend and to all hon. and right hon. Members who served on the Joint Committee and spent a considerable amount of time looking at these issues. That is the kind of consideration that we ought to give to our constitutional affairs rather than taking them in a hurry—a point that I was making earlier. Let me acknowledge my hon. Friend’s point and thank him and others for the work that they did.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
On clause 3, may I take the Minister back to the inclusion of the word “purported” and, in particular, draw her attention to paragraph 166 and the comments of Baroness Hale in relation to the Joint Committee report? She says that
“it looks as if it is saying, “Well, even if what we did”—
that is what the Government did—
“was not within the power that you have been given by the statute, the courts can’t do anything about it.”
She goes on to say:
“If that is the case, the courts would be very worried about that, because it would mean that the Government—the Prime Minister—had done something that was, at least arguably, not within its powers.”
There is some force and logic in the argument of Lady Hale, is there not?
Chloe Smith
This is a good opportunity for me to be absolutely clear about the reference to the word “purported” in this clause. This has been included to take account of previous judicial decisions—in particular the cases of Anisminic Ltd v. the Foreign Compensation Commission 1969, and Privacy International v. the Investigatory Powers Tribunal 2019. In the latter, the expectation was expressed that the drafting legislation would have regard to the case law and ensure that the drafting made it clear if “purported” decisions—that is decisions that would be considered by a court to be invalid—were intended to be outside the jurisdiction of the courts. What clause 3 does is present an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts. It is the Government’s position and presentation that they ought to be, and I hope that hon. Members will join me in that.
Mr Carmichael
In the interests of clarity, is the Minister telling the House that the Government are asking Parliament to give them the power to do things that exceed the powers given to them and that nobody should be able to gainsay them?
Chloe Smith
I am proposing that the House understands the use of the phrase “purported”, which, clearly, the right hon. Gentleman does—I have no dispute with him on that point—and that hon. Members join us in acknowledging that it is right to be aware of the case law and to respond to it. The decision in front of us is whether purported decisions relating to this area should or should not be included in clause 3. It is our contention that they should be, because we believe that the entire area of dissolution and the calling of Parliament is intended to be outside the jurisdiction of the courts. That is a perfectly legitimate question to put to Parliament. It is for us here in this Chamber to decide on that, and the reason for doing so would be that we think that such decisions are political rather that judicial in their nature. Fundamentally, the check on the exercise of power is for the electorate to decide on rather than the courts. Therefore, as I have said, the function of clause 3 is to set that out very clearly. I will now move on to clause 4, which deals with five-year maximum terms.
The purpose here is to ensure that a Parliament lasts no longer than five years. We do that by providing that Parliament will automatically dissolve five years after it has first met. In doing so, the clause returns us to the general position before the Fixed-term Parliaments Bill was enacted. We are confident that five years is the appropriate length for the maximum parliamentary term. Our Parliaments have seldom lasted a full five years, and, in practice, they have often been dissolved sooner. In fact, we can see that parliamentary terms have very often developed their own rhythm. For example, from the history books, we can see that a strong Government seeking a fresh mandate might seek a Dissolution after four years. Anything less than four years is usually a sign of some political crisis or emergency. Often, Parliaments are dissolved out of political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis.
Chris Bryant (Rhondda) (Lab)
But it is not actually five years; it is five years and a bit, is it not? As the Septennial Act 1716 did, it goes from the date of the first sitting of the new Parliament. It means that, if we stick with this, we will have the longest period from election to election of any democracy in the world. Would it not be better for the period from election to election to be at most five years?
Chloe Smith
The hon. Gentleman pre-empts my remarks in respect of his amendment, which I will endeavour to come to after I have worked through all the clauses.
The scheme that we are proposing is the right one and I will come in a moment to why I think that that is the case when compared with other technical methods of achieving a five-year term that the hon. Gentleman is thinking of. This clause provides for a maximum parliamentary term of five years from the date that Parliament first met, so we measure five years from the date of first meeting to the Dissolution of Parliament, and that is the Government’s proposition. We think that that provides the right balance of stability, flexibility and accountability that is entailed in returning to the arrangements that allow for a general election earlier than that. On that basis, I recommend that clause 4 stand part of the Bill.
I shall speak very briefly to clause 5. It introduces the schedule to the Bill, which makes provision for the consequential amendments that are needed to ensure that other legislation operates effectively once the 2011 Act has been repealed and we return to the status quo ante. The consequential amendments primarily reverse or alter legislative amendments made by the 2011 Act. They remove references to the Act in legislation and ensure that, after the repeal of the 2011 Act, other legislation that links to it still works. For example, in repealing the 2011 Act, they reflect the fact that there will no longer be fixed-term Parliaments, so the concept of an early general election would no longer exist in law.
Clause 5 also provides that the repeal of the 2011 Act by clause 1 does not affect the amendments and repeals made by the schedule to that Act. This ensures that essential provisions are not lost. It allows us to modify changes made by the 2011 Act and ensure the smooth running of elections by retaining sensible improvements made by that Act or subsequent to that Act. I know that those are some topics that we will come back to a little later as we progress through our debate this evening.
The schedule also makes a small number of minor changes to ensure the smooth running of elections. In short, this clause is necessary to ensure that electoral law and other related parts of the statute book continue to function smoothly. As such, I recommend that clause 5 stand part of the Bill.
Clause 6 is the one that we all know and love that deals with extent, early commencement and short title. It confirms that the territorial extent of the Bill is the United Kingdom, except for a very small number of amendments in the schedule where the extent is more limited. The clause ensures that the Bill has an early commencement, meaning that it comes into force on the day on which it receives Royal Assent, and it provides that the short title of the Bill will be the Dissolution and Calling of Parliament Act 2021.
That gives me an opportunity to explain that the Government have agreed with the recommendation of the Joint Committee that a Bill of constitutional significance that seeks to put in place arrangements that deliver legal, constitutional and political certainty around the process of dissolving one Parliament and calling another should be titled accordingly. The short title now reflects the purpose of the Bill and will help to ensure that it is clearly understood and that successive Parliaments are able to discern the intended effect of the legislation. I therefore propose that this clause stand part of the Bill. Mr Evans, would you like me also to make a remark about the schedule and then turn to the amendments?
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
indicated assent.
Chloe Smith
In that case, Mr Evans, I am going to carry on until you tell me otherwise. There is an amount to get through, but I hope to do so.
The schedule provides for a number of changes to primary and secondary legislation to ensure the effective operation of the statute book when the 2011 Act is repealed. These amendments primarily reverse or alter legislative amendments made by the 2011 Act. The schedule works with clause 6. As I have explained, we want to make sure that references to the 2011 Act work elsewhere in other legislation. There are some key changes in the schedule to draw to the attention of the House.
The first is to rule 1 of schedule 1 to the Representation of the People Act 1983, which sets out the election timetable. The Bill amends that rule to ensure that the trigger for the election process in the case of a parliamentary general election is the Dissolution of Parliament, following the recommendation of the FTPA Joint Committee.
The second change provides additional certainty in relation to the election process. The election writ is deemed to have been received the day after the Dissolution of Parliament. This will allow returning officers to begin arrangements the day after the election writs are issued, enabling all constituencies to begin making the necessary preparations, even in the event that the physical delivery of the writ is delayed. Similar deeming amendments are included for by-elections.
The third update is to section 20 of the Representation of the People Act 1985. Under the existing legislation, in the event of the demise of the Crown after Dissolution or up to seven days before, polling day is postponed by a fortnight. The 1985 Act provides no discretion or flexibility to further alter the date of the poll. This Bill provides limited discretion for the Prime Minister to move polling day up to seven days either side of this default 14-day postponement, by proclamation on the advice of the Privy Council. This is beneficial because it ensures that enough flexibility is built into the system should such specific and unlikely circumstances ever occur. There is also flexibility to move the date set for the first meeting of Parliament in such circumstances—again, by proclamation on the advice of the Privy Council.
The last key change that I will highlight in this section is to the Recall of MPs Act 2015, which is amended to ensure that there continues to be provision to prevent or terminate recall petitions close to a general election to avoid redundant by-elections. This means that there is no requirement to trigger a recall petition if the last possible polling day for a general election, based on Parliament running its full term, is less than six months away, and a recall petition is to be terminated when Parliament is dissolved. For the reasons that I have set out, I recommend that the schedule be the schedule to the Bill.
If it remains convenient to you, Mr Evans, I will now start to work my way through the amendments that have been tabled, but I remain at your disposal to return to the clauses if hon. Members would like me to respond after they have spoken to their amendments.
New clause 2 has been tabled by the hon. Member for Rhondda (Chris Bryant). As I understand it, it seeks to provide a role for the House of Commons in approving an early general election by simple majority vote. This would adjust the arrangements that exist under the 2011 Act by removing the two-thirds majority requirement. It would in itself be a departure from the prior constitutional norm, whereby the Prime Minister could request an early Dissolution of Parliament in order to test the view of the electorate. As we have already begun to touch on in this afternoon’s debate, the deadlock and paralysis created by the 2011 Act did rather demonstrate why a prescriptive statutory approach does not work. Instead, what we are doing in the Bill is returning to a set of widely understood constitutional conventions and practices. Those tried and tested arrangements are the right ones, and this new clause would run against the grain of those arrangements.
It is, after all, a core underlying principle that the authority of the Government and the Prime Minister, as the sovereign’s principal adviser, are derived from the ability to command the confidence of the House of Commons. The 2011 Act attached confidence and the decision of the Prime Minister to call an election to statutory motions, which gave the Commons a direct say in Dissolution, but it is also possible to argue that those arrangements hindered the function of democracy by making it harder to have necessary elections. Instead, the House should indeed be able to express its view on confidence, but in a much freer manner. We do not need the prescriptive statutory approach of either the 2011 Act or, I fear, this new clause.
New clause 2(5) would require the Prime Minister to advise the sovereign on the date of the election within 30 days of the House approving a motion for an election. I would argue that this is not necessary. Under the Bill, once a general election has been called and Dissolution takes place, the election timetable in schedule 1 to the Representation of the People Act 1983 makes the provision for the timing of an election very clear. Again, rather than introducing prescriptive arrangements, we believe that we should return to tried and tested standards whereby it is a core principle that the Prime Minister must be able to command the confidence of the House of Commons. New measures around that concept are not needed.
Aaron Bell (Newcastle-under-Lyme) (Con)
If a Prime Minister were to request a Dissolution that was proper but was perceived to be for political advantage and was premature, would not the remedy be in the hands and judgment of the electorate?
Chloe Smith
Yes, that is precisely the point, and that underlies a number of our considerations. In the place of a prescriptive statutory scheme, we can place our trust instead in the ability of people to choose against the behaviour that they observe from parties in Parliament.
Let me turn to new clause 5, which is also in the name of the hon. Member for Rhondda. It would require the House to start sitting 14 days after a general election. Although I agree that Parliament should meet as soon as possible after polling day, it is not necessary to codify that in legislation. Fundamentally, this is a similar type of argument. It is difficult to reconcile more extensive codification with the scheme of the Bill, and I shall set out the reasons why.
First, we think it is unnecessary to allow for such a 14-day period. Before and under the 2011 Act, the date of the first meeting of Parliament was set by the sovereign on the advice of the Prime Minister. In practice, Parliament has met within one to two weeks of a general election on all but two occasions since 1950. There are compelling practical reasons for a new Government to call a new Parliament as soon as possible. As I put it earlier, no Government can manage without supply. As the Joint Committee put it,
“without…the authorisation of the Commons to spend money…a modern administration could manage months at best”.
Ultimately, having won an election, any new Government would want to assemble Parliament to pass their Queen’s Speech at the earlier opportunity, and be able to move on to legislation and supply.
Jim Shannon (Strangford) (DUP)
If the largest party was trying to get a coalition, that might take more than 14 days. Is there provision in the legislation to cover that?
Chloe Smith
The hon. Gentleman makes precisely the point that goes to the new clause, which is that a Government would, I would have thought, want to assemble faster than 14 days, but there can be occasions when more than 14 days may be needed. Therefore, both these arguments point to flexibility, and that is my principal concern about the new clause.
Chris Bryant
All right then, if it is the simplest way of doing it, what is the last date that the next general election can be held if all this is carried as the Minister says?
Chloe Smith
With respect, that is not the right quiz question—the right quiz question is whether, under the hon. Gentleman’s amendment, the period would be five years plus 25 days. That would, I believe, arise from his amendment, because he is not counting the length of the election campaign, whereas our provision is five years from first sitting to last sitting, so we are trying to measure the life of a Parliament. I am not trying to engage in maths problems; I simply think that this is the most sensible way to measure it, and I hope hon. Members might agree. [Interruption.] I am really not going to engage in maths questions beyond that. We need a clear and easily understood scheme. I think we are all agreed that it ought to be five years, and we are dealing with how to achieve that. The Government’s proposition is that it should be, as I say, from five years after Parliament has first met. That is important.
Let me turn to the pair of amendments that relate to the shortening of the election timetable: new clause 1 in the name of my right hon. Friend the Member for Basingstoke (Mrs Miller) and amendment 3 in the name of the hon. Member for Rhondda. I am absolutely sure that there will be some very strong arguments put in this area. To try to help the Committee, I will set out why we have our current timetable and then seek to address what I would anticipate to be some of the core arguments that right hon. and hon. Members will raise.
The current timetable was introduced in 2013 through the Electoral Administration Act 2006, which absorbed fundamental shifts brought about through having postal votes on demand and individual electoral registration. As I have explained, the Bill seeks to return us to the status quo ante while retaining sensible changes that have been made since 2011 to enable the smooth running of elections, which are, in my view, of benefit to voters. The current timetable is one of those changes. It provides a balance between allowing sufficient time to run the polls effectively and for the public to be well informed, while not preventing Parliament from avoiding sitting for any longer than is necessary, which is a very important consideration.
On the requirements for running polls effectively, the 25 days working days are necessary to deliver elections, which are now often more complex than at any other point in our history, for reasons, as I mentioned, to do with postal voting on demand, but also online individual electoral registration. That was a fundamental constitutional change that enabled increasingly higher numbers of last-minute applications. To illustrate that, at the most recent general election almost 660,000 applications were made on the last day possible. Before 2000, as I said, there was no postal voting on demand, and it has since grown in numbers to represent nearly 20% of registered electors. Both things increased the complexity and demands of an election timetable.
The amendments refer to weekends and bank holidays in the election period. Local authority electoral services teams who do this work are already often working weekends and overtime to make elections work successfully. I also note that elections do not just rely on local authorities and their staff; there is a significant commercial element to their delivery through many suppliers, including, but not limited to, the software for maintaining the registers, and the printing and postage of paperwork such as the poll cards, ballot papers and postal votes. There is very little room for error on all that. Creating and maintaining the capacity to deliver it can be extremely challenging, especially at short notice. Weekends and bank holidays are not necessarily in our gift.
Mrs Maria Miller (Basingstoke) (Con)
My hon. Friend is of course making an excellent speech. The intent behind the new clause, which I will explain more fully when I go through it in detail, is to do exactly what she was calling for earlier, which is to have a clearer and more easily understood scheme. At the moment, it is not clear and not easy to understand, because it states that election periods are 25 days when they may not be: the last election was 36 days. We need more transparency, and that is part of what the new clause is calling for.
Chloe Smith
Absolutely. This is a good opportunity to remind ourselves that we have not necessarily observed a 25 working day timetable. For example, the 2017 election, known to have been rather a long one, was considerably longer than that minimum statutory period. It is important, as my right hon. Friend says, to be as clear as possible on this point.
Alec Shelbrooke (Elmet and Rothwell) (Con)
Does my hon. Friend feel that the debate on this presents the opportunity for a further piece of work on the period from when a Prime Minister dissolves Parliament to when the 25 days should start? I appreciate that this Bill is not really the appropriate moment for that, but does she agree that there should be further study and work to decide whether the timeframe should be tidied up more before we get to the 25 days?
Chloe Smith
I am grateful to my right hon. Friend. Some of what he refers to is not necessarily within a statutory scheme but within, for example, the processes of this House, but he makes a valuable point. We do need to look at the evidence in this area; that will clearly help us. There is already some written work that I would commend to right hon. and hon. Members. They could look at the most recent report of the Association of Electoral Administrators, which said, in July, that less time would be significantly problematic and that there was only so much that could be done at once. It made the point again in written evidence to the Joint Committee, saying that
“it would be catastrophic for everyone involved…if the statutory election period were to be shortened…It would create a significant risk of the election failing and not being delivered and increase the risk of disenfranchising potential electors”.
Alec Shelbrooke
Just for clarification on those comments, are the electoral services referring to the 25 working days, not a period leading up to that, and saying that they are confident that they can always achieve their work in the short campaign as defined, not relying on any period of time before the short campaign starts?
Chloe Smith
I believe that to be the case, although of course I would not wish to speak for the AEA. I really do commend its report to the Committee to enable it to see in much more detail the challenges that there are in delivering elections within the timetable that currently exists. To answer my right hon. Friend’s question, broadly yes—that set of comments is referring to the statutory timetable rather than any time before it.
Mr Goodwill
We would all wish to maximise participation in elections, and the practicalities of overseas voters, postal voters and voter registration are very important, but do we also need to look at the possibility that as campaigns go on and on, we might get campaign fatigue, which might well result in fewer people casting their ballots because they are sick to death of the election going on for what seems to be forever?
Chloe Smith
I am always sympathetic to that point. There is always a risk when any of us have to bang on too long that we simply get boring, and I can already apologise to the House for having taken 50 minutes of tonight’s Committee in trying to make my way through the material I am obliged to cover. My right hon. Friend makes a wise point, and it is one of the balances that have to be looked at in this discussion. That is one reason why he and others have tabled amendments.
David Linden (Glasgow East) (SNP)
On the wider point about how quickly an election takes place, can I take it as read from the Minister that the Government will always immediately move a writ for a by-election, and not drag it on any longer than usual?
Chloe Smith
If only I had the ability to give the hon. Gentleman that promise, I think I would have promoted myself to Chief Whip and other positions in a single move. I do not think I should be drawn on the dark ways of the Chief Whip and the usual channels. Instead, I will take an intervention from my hon. Friend the Member for Calder Valley (Craig Whittaker).
Craig Whittaker (Calder Valley) (Con)
I want to take my hon. Friend back to the point about 2013 and why the period became 25 working days. She mentioned postal votes and electronic registration, but surely the clue is in the title: electronic registration. Anything done electronically is supposed to be much quicker and clearer. Does the legislation also take into account future ways of voting, particularly for overseas voters who may want eventually to do it electronically?
Chloe Smith
Again, some incredibly thoughtful points are being put. My hon. Friend is right to observe that the introduction of online registration has enormously sped up how people can register, and he draws me to talk about two things. The first is to acknowledge what needs to be done to ensure that overseas voters can cast their ballots more easily. There is an entire field of working going on there, which we will discuss more in consideration of the Elections Bill—I look forward to seeing him in the debate—but a general point sits in the discussion of these amendments, which is how we ensure voters are getting what they need out of the election process.
Chloe Smith
I will not give way to my right hon. Friend the Member for Elmet and Rothwell (Alec Shelbrooke) again, if he will forgive me. I will give my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) a go.
Aaron Bell
My hon. Friend said a moment ago that she could not speak exactly for the AEA, but she will know from the open letter that it wrote to her that it wants even more time. It is proposing an extended 30-day timetable to
“increase capacity, introduce resilience and ensure electors are put first.”
That is all very well, but the point of an election is not to have the most perfect election imaginable, but to get the right result efficiently, so that everyone can cast their vote, but the country can be allowed to move on and resolve whatever tensions led to the election. The ever lengthening timetable is not in the national interest, let alone the interest of individual electors or individual candidates.
Chloe Smith
I am happy to confirm from this Dispatch Box that the Government’s position is to maintain the electoral timetable as it stands—I am not proposing an extension or reduction—but I draw the threads together as follows. We need to ensure that the system works for voters, and that includes them having enough time to register to vote, to receive their ballot papers, to return their ballot papers and to decide on the candidates in each constituency—we have a constituency-based system, after all. We also need to be able to make the same point about supporting candidates to fulfil their part of what needs to happen in an election timetable, both those who stand for parties and those who stand as independents. We have to think through these things if we legislate here.
In response to right hon. and hon. Members who have tabled the amendments, I suggest there is perhaps a space here for looking further into these issues. There would be an opportunity to have some research drawn together on the tensions between voter engagement, the resilience of polls and the needs of the country for a period when it does not have a Parliament or MPs able to help constituents. Although the Government continue to hold the powers needed to carry out essential business and respond to sudden, unexpected or distressing events, none the less the Government do after all need Parliament to be sitting. If needed, I will return to those points after right hon. and hon. Members have spoken, but I will leave new clause 1 and amendment 3 there.
Chloe Smith
I am afraid I have not got time to give way; I need to draw my remarks to a close. I look forward to the hon. Member for Carmarthen East and Dinefwr being able to say more about his amendment, which he has not yet had a chance to do. It would be rather good at this point if the Committee heard from others, rather than me. I draw my remarks to a close. I hope I have covered all the points on the new clauses, the schedule and the amendments. I commend the Bill as a whole, unamended, to the Committee.
Cat Smith
The Bill does two things: it repeals the Fixed-term Parliaments Act; and reinstates—or attempts to reinstate—the status quo that existed before 2011. The Labour party supports the repeal of the Fixed-term Parliaments Act, which we committed to in our 2019 manifesto, because the Act undermined motions of no-confidence and removed conventions around confidence motions. The concept of fixed terms, however, is not a bad one, and we should not throw the baby out with the bathwater here. When the Act was introduced, the then Prime Minister was clear that it transferred power away from the Prime Minister and to Parliament. By virtue of that, the Bill is clearly a power grab by a Prime Minister who thinks that one rule applies to him and the rest of us can just wish for it.
New clause 2, tabled by my hon. Friend the Member for Rhondda (Chris Bryant), would make Dissolution subject to a vote in the House of Commons. At the heart of the new clause is the question whether a Government should have the power to decide when an election takes place or whether elections should be fixed. The democratic position to take is that terms should be fixed. Indeed, that is what happens in our local councils in England and in the Parliaments in Scotland and Wales. In fact, in most parliamentary democracies, Dissolution is controlled by the legislature with varying degrees of involvement from the Executive.
In the UK, with our strong tradition of parliamentary sovereignty, Parliament should be central to any decision to dissolve, for three main reasons. First, there is the electoral advantage. If only the Prime Minister knows when an election will be held, only the Prime Minister will know when spending limits kick in. That plays to the advantage of the incumbent political party. It is also possible to bury bad news by calling an election before such news hits. If, for instance, there was to be an inquiry on covid and they felt that would be bad news for them, they could choose to go early to avoid negative headlines. Secondly, a vote in Parliament for Dissolution would remove any possibility of dragging the Crown into the politics of the decision. I am sure no Members of the House would like to see Her Majesty dragged into that. Thirdly, it would render the Bill’s ouster clause unnecessary, whether that clause is effective or not. The easiest way to keep the courts out of Dissolution decisions is to leave Dissolution in Parliament’s hands. It is impossible to imagine the crack through which the courts could intervene in a duly recorded decision of the House of Commons on that matter.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Does my hon. Friend agree that the new clause is a much more effective way of keeping the courts out? The ouster clause is a bit like a red flag or saying to someone, “Don’t think of an elephant”—they will think of an elephant. It is saying to the courts, “You can’t touch this,” which would be a charter for clever lawyers and clever judges to start to think, “Where can we start to look at this?” rather than using the long-established, age-old way of deciding matters: a vote here in Parliament.
Alec Shelbrooke
I will not debate the points of politics with the hon. Lady. On her comments about using Parliament for Dissolution, we have had all of that. There are probably few Members of the public watching us in the Chamber tonight, but they certainly watched what happened in 2019. Surely when we have a Chamber in stalemate, the Government should be able to resign. She will recall how her then leader stood on Parliament Square to say that the Government should resign but then came in here and stopped them from resigning, which was incredible. Surely when Parliament is deadlocked, as it was then, the Government should be able to resign and that should just happen, not be stopped by Parliament.
Cat Smith
I agree with the heckling from my hon. Friend the Member for Rhondda. I think the right hon. Member for Elmet and Rothwell (Alec Shelbrooke) is quite wrong and that the public are watching the debate with deep fascination. He underestimates the passion for constitutional legislation in this place. The point is that the new clause would remove the possibility of the courts being involved, and I think there is consensus across the Committee that that would be desirable. It strikes me that new clause 2 would be the most straightforward and easy way to do that. Of course, we know fine well that if the Government of the day can carry the House—in most cases, they can—there would be no issue in having a Dissolution. It would also avoid dragging the monarch into politics and remove the governing party’s electoral advantage. The new clause therefore strengthens the Bill, so I support it.
I turn to amendments 1 to 3 and new clause 1 on the length of an election campaign. It is impossible to look at the Bill without considering how it would move us to a position in which pretty much all elections will be unscheduled. I say “unscheduled” rather than “snap” because I recognise that an election period is very long; it certainly does not feel very snappy for candidates, voters or anyone campaigning. Unscheduled elections cause a problem for our electoral administrators. From having spoken to many of them and heard representations from the Electoral Commission and the Association of Electoral Administrators, it is clear that many close misses happen on the timetable, and a reduction of the timetable alongside the Bill, which could lead to more unscheduled elections, risks the public’s confidence in our democratic elections. For that reason, although it would be desirable to have shorter elections, I cannot support those amendments.
The Bill is not in a vacuum—we also have the Elections Bill and the Police, Crime, Sentencing and Courts Bill before the House—and taken together, it is clearly part of a political power grab with a movement of power away from Parliament. It is a movement away from 650 Members to the hands of one man or woman who is Prime Minister, who will decide when the starting gun will be fired on an election. The Bill is, frankly, an overreaction to and misunderstanding of the causes of the gridlock in the 2019 Parliament. The principle of fixed terms is not wrong, although the Fixed-term Parliaments Act was clearly flawed. Prorogation should be in the hands of Parliament, not the Executive.
Mrs Miller
I rise to speak in particular to new clause 1 in the name of my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill), my hon. Friends the Members for North West Cambridgeshire (Shailesh Vara), for Newcastle-under-Lyme (Aaron Bell), for Thurrock (Jackie Doyle-Price) and for Calder Valley (Craig Whittaker) and a number of others. It is well supported. As the Minister set out, this is an important Bill. I had the privilege of serving on the Joint Committee on the Fixed-Term Parliaments Act, where we heard the most extraordinary body of evidence about the last 10 years. I must say that it was overwhelmingly in support of the Government’s direction, which should take us back to the status quo ante position so eloquently outlined by the Minister. However, the evidence sessions also revealed a number of gaps—things that the Bill might do but does not—particularly on general campaigns and their lengths.
The Minister talked about the importance of a clear and easily understood scheme, and I completely agree. Elections are incredibly important parts of our democratic process—the pillar of the process in many ways—and should be clear and easily understood. However, as I alluded to in my intervention, the length of general elections is neither clear nor easily understood, and one must dive into the mice type to find out what the rules are.
The legislation says that elections should be 25 days in length, but that is not actually what it means: it is 25 days plus high days and holidays, and in essence that means an awful lot longer.
Mrs Miller
If I could finish this point, I will then allow the hon. Member to intervene.
Another of the pieces of legislation deployed under the coalition Government was the Electoral Registration and Administration Act 2013, section 14 of which extends the timetable of a general election from 17 to 25 working days. That neatly carves out bank holidays, weekends, high days and holidays, and anything else that might get in the way, when in fact all of us sitting here know that once the starting gun is fired, everybody—just everybody—is working their socks off in electoral offices up and down the country to make sure that we deliver the election on time. The provision is just not truthful, and it needs to be a better reflection of what goes on.
Chris Bryant
I think, therefore, that if the Bill goes through as the Government intend and we do not have the right hon. Member’s new clause or any other amendment, the last date that the next general election can be held is 23 January 2025. Is that her understanding?
Mrs Miller
Oh, the hon. Gentleman is getting me into the maths quiz with which he tried to tempt the Minister. I will leave the Government to decide that, because it is more in the Minister’s bailiwick than mine.
Alec Shelbrooke
Is not the essence of what my right hon. Friend is saying that it is exceptionally difficult to get elected to Parliament—we have all been through it—and it costs a lot of money? We tend to forget that candidates who have not been elected to this place more often than not give up work. Coming back to the point I made to my hon. Friend the Minister earlier, is there not a body of work to be done on the period between our Prime Minister calling an election and the short campaign starting? We must try to make it fair for those standing for Parliament for the first time, which can have an enormous financial cost.
Mrs Miller
My right hon. Friend makes a really important point. New clause 1 deals with the particular issue of the election campaign itself, but there is also the additional period of time that we colloquially call the wash-up, which can last for days or weeks, and it feels like months sometimes. Such a body of work could look at not only what is prescribed in legislation, but more broadly. I will go on to some of the issues I think we face by having overly long campaigns, of which I do not think there has been sufficient scrutiny.
However, before I do that let me say—and I am struggling to remember when you were elected, Mr Deputy Speaker—that I was elected in May 2005, as I am sure you remember, and when that general election was held the total length of the campaign was 23 days. It felt a lot longer for some of the reasons pointed out by my right hon. Friend the Member for Elmet and Rothwell (Alec Shelbrooke). At the last general election it was a total of 36 days, and indeed in 2015 it was 37 days, so almost two weeks longer than when I was elected. My right hon. Friend talked about some of the issues facing new candidates, who have perhaps had to give up their work and are not being paid. It is not without an impact, yet so little work has been done to consider what the impact is.
Chris Clarkson (Heywood and Middleton) (Con)
I was a new candidate at the last election, and I can absolutely attest that it was a wearying experience, as it is for the electorate. Does my right hon. Friend agree with me that that piece of work also needs to study the effect on the likelihood of people to turn out to vote? I think Brenda from Bristol spoke for us all when she said, “Oh no, not another one”.
Mrs Miller
Of course, my hon. Friend is absolutely right. He has a wealth of knowledge on these issues, as I know from having served on a Bill Committee with him.
We are talking not only about the impact on people standing for election. By lengthening our campaigns by almost two weeks, a number of other issues start to come into play. There is two weeks less scrutiny of Government by this place, which is not an inconsiderable issue that we should look at, yet it is not part of a scheme of work to consider all of these different issues. There is the fact that purdah gets longer not just at national level, but at local level, so fewer decisions are being made by local government for longer, and in stifling decision making that also has an effect that is not being captured. There are not inconsiderable impacts on our economy with the potential risk to our economy, depending on the economic circumstances we face at the particular time. Indeed, there is the risk of an outside actor interfering in our democratic process. The length of elections matters to returning officers—that is for sure—but there are many other issues that we should be considering that it is not clear are being brought into play at the moment.
Aaron Bell
My right hon. Friend has given an excellent list of some of the reasons why a long campaign is not desirable, but the simple fact is that voters are without their MPs. If, for example, Operation Pitting had taken place during an election campaign, Members across the House who have been deluged by casework would not have been able to take up that casework in the midst of an election campaign. The longer the campaign, the more likely it is that something will occur during that campaign.
Mrs Miller
My hon. Friend has put his finger on something that is probably more inequitable than he has realised, because constituents who have a re-standing Member of Parliament can deal with casework, but those where such an individual is not standing again do not have that access to casework. He raises an incredibly important point that needs to be taken into account.
There is emerging academic research in the US and Sweden that recommends shortening the length of campaigns for some of the reasons that have been made in interventions about increasing voter turnout, yet the Cabinet Office, in the excellent work it does with its democratic engagement plan, is silent on this issue. I was really pleased to hear the comments made by the Minister from the Front Bench today. Indeed, I thank her enormously for the way she has engaged on this and for the meetings she has had with colleagues. It is clear that she is not silent on the issue—she has views and thoughts—but there is no formal assessment of the link between the length of an election, voter engagement and all the risks I have talked about to our broader democracy.
New clause 1 is very much a probing amendment, but it needs a very clear response from the Minister today. She is quite rightly concerned about things such as engaging overseas voters in participating in the electoral process in a much more comprehensive way through other pieces of legislation that she is bringing before this place, and that is laudable and an important objective. However, the issue there is not the length of campaigns, but the awareness of the need to register annually. In some ways, the length of campaigns is sometimes being used as a solution for what is not necessarily the problem we face.
Chris Green (Bolton West) (Con)
Does this point not really get to the heart of the matter of the performance, whether of local government or of other bodies, in always being prepared for an election? Many have elections in thirds, and they may have mayoral or police and crime commissioner elections. Local authorities ought to be prepared and to make sure that their ability to hold an election is always up to date?
Mrs Miller
That is a very important point. If one of the pillars of our democracy is elections, we should be prepared to have an election within a specified period at any point in the year. It should be mission critical, and I am surprised by some of the comments that have been made showing that that is not the case. Gone are the days when we ran out of salt because there was too much frost on the road. Hampshire County Council makes sure that we have a very large stock of salt to avert such a crisis. We should make sure that some other issues that have been a problem are dealt with as well.
I am very grateful to the Minister again for listening to these concerns so intently. Rather than my pushing new clause 1 to a vote, I hope she might indicate in her comments that the Government will be commissioning research about the impact of the length of general elections on our democracy—not just on voter participation, but on the broader democracy—so that we in this place can keep a close eye on how longer campaigns affect the quality of the democracy in our country. Perhaps this will form a foundation stone for the modernisation of UK elections more broadly—a thorny issue, I know—and perhaps she will report on the findings of that research as we start to discuss further legislation, including the Elections Bill in this place.
Craig Whittaker
That is the nub of these issues. Instead of extending elections because of their complexity, surely we should be considering alternative ways to allow people to vote differently to the way they currently vote.
Mrs Miller
My hon. Friend makes points that I am sure those listening to that debate will be pondering. In a day and age when electronic mail, not postal mail, is the norm, they will be asking what the Government are doing to ensure that our electoral system is modernised. I applaud the Government for all they are doing on voter identification. It is such an important thing but it has been sadly lacking. This is a reforming Government in that area, and I am sure my hon. Friend the Minister will do all she can to continue that reforming zeal in her work.
Let me pull together two other points that are allied to what we have been discussing. I think a great deal will be needed in returning to the status quo ante. The vast majority of Members do not remember the status quo ante—some of us do, such as my hon. Friend the Member for Calder Valley (Craig Whittaker) and perhaps one or two others such as my right hon. Friend the Member for Elmet and Rothwell, but there are not many of us left. Ensuring that the House and Members understand those conventions that are not formalised in law will be something of a challenge. I am sure the Minister is up to that challenge, but it is something we need to address. She has rightly made a number of comments on this issue—she has written a letter to the Public Administration and Constitutional Affairs Committee, and there are pieces of correspondence and an opportunity for debate—but as we move forward we need a settled view of the conventions.
Finally, on the wash-up, the day that a Prime Minister announces a general election is not the start of the general election campaign, and hon. Members need to take a much closer look, perhaps through colleagues who sit on the relevant Committees, as to how we can get better control over what is considered in that wash-up session. There are often a few deals regarding what legislation will pass through Parliament before the election campaign, and perhaps that would be better done after the election, rather than before. We should be considering such matters, with a focus on shortening the election campaign to something that is not just best for one set of people, but best for our democracy.
Brendan O’Hara (Argyll and Bute) (SNP)
I will hopefully delight the Committee by trying to speed things up a little, and I will not detain Members for long.
I agree with the hon. Member for Lancaster and Fleetwood (Cat Smith) that the Bill smacks of a Government who are still smarting from the events of 2019. I suggest that perhaps anger and revenge are no way to govern, and hopefully the House will help the Government to look beyond their bruised pride and get to a situation far beyond this Bill. Although in and of itself clause 1 may look fairly innocuous, and when taken in isolation might even be seen as trivial and almost unimportant, I caution the Committee that when viewed alongside other legislation currently going through this place—the Elections Bill, for example, and the Police, Crime, Sentencing and Courts Bill—we are witnessing a strategy on the part of the Government to centralise power and control with the Executive at the expense of this House. Some clauses in Bill, including clause 1, give more power to the Executive, strip parliamentarians of their powers, and deny the judiciary the ability to scrutinise what they are doing, while at the same time eroding the public’s right to protest against it. As has been said, this is an unashamed power grab by the Executive at the expense of this House, and we believe that that is how it will be seen in the context of that wider picture.
However intensely hon. Members may dislike the Fixed-term Parliaments Act 2011, simply voting for the Bill this evening will not automatically return us to our position prior to 2011 when that Act was introduced. The Scottish National party has said it will oppose the Bill all the way through, and we will oppose it again tonight. New clause 2, and the idea that a general election could be called to dissolve Parliament and that that motion must be agreed by this House, is correct. It appears to me that if the Bill passes without new clause 2, the Prime Minister of the day will have full and unfettered control over the Dissolution of Parliament and the timing of any general election.
Patrick Grady
I wanted to make this point to the Minister. Not only will the Prime Minister have full power, but some of the clauses and consequential amendments in the Bill will have a profound effect on other aspects of the constitution. It specifically amends the Referendums (Scotland) Act 2020 as a consequential amendment. That Act states that a referendum in Scotland cannot be held on the same date as a UK general election, but it is not the referendum that takes precedence; it is the UK general election. So if the Scottish Government set a date for a referendum, say in May 2023, under this Bill, it would be entirely within the Prime Minister’s power to set that date for a UK general election and consequently shift the date of the referendum in Scotland. We are handing a gross power to the UK Government as a consequence of the Bill.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
Was that the hon. Gentleman’s speech? Shall I cross him off the list?
Brendan O'Hara
I do not believe it was my hon. Friend’s speech, Mr Evans, but if it was, it was a perfectly good one and I thank him for it. The points he makes are absolutely valid.
David Linden (Glasgow East) (SNP)
I guess that, like me, my hon. Friend finds it a bit perplexing, when sitting in this debate and looking at Conservative Members, who advocated for Brexit in their constituencies and for Parliament to take back control, that they will walk through the Lobby tonight to neuter Parliament. Do he and his constituents who voted against Brexit see the irony in what the Brexiteers will do tonight?
Brendan O'Hara
I am sure I am not the only person in this House who can see the irony of how taking back control supposedly has led us to a position where Parliament is being neutered by the Executive, and the people who were most loudly proclaiming “Take back control” are the people holding the scissors and doing the neutering—if that is not too much of an image, Mr Evans.
If the Bill passes, as well as there being no parliamentary or legal scrutiny, an active debate will still rage about whether the monarch’s prerogative powers would return to exactly as they were in 2011. I notice that, in her letter to the Chair of the Public Administration and Constitutional Affairs Committee, the Minister acknowledged that
“there remains a role for the sovereign in exceptional circumstances to refuse a Dissolution request.”
But the monarch’s prerogative powers are now being enshrined in statute, having been removed by statute; they are now being restored by statute. So what exactly are the exceptional circumstances in which the monarch can refuse a Dissolution request? How can the Lascelles principles, which we heard earlier were prerogative powers, now be statutory powers? I cannot see how this returns us to the position we were in in 2011.
Therefore, we have been and will continue to be extremely uneasy about the insertion of the ouster clause making the Government’s action in relation to the dissolution of Parliament non-justiciable. As I said, we share the concerns of many Members across the Chamber that the repeal of the Fixed-terms Parliaments Act would not automatically take us back to the position of 2012 and we need a lot more clarity about exactly what legal position we would be in.
The Chair of the Public Administration and Constitutional Affairs Committee pointed out in a letter to the Minister:
“The Fixed-terms Parliaments Act was passed and the consequences of this cannot simply be wished away.”
I note that, in her response to the Committee Chair, the Minister accepts that there is an academic debate about the issue, but she seems to believe the opinion of her academics that the courts
“will be required to act as if the Fixed-term Parliaments Act had never been enacted”
and that they will be
“required to pretend that it never happened.”
It is a ridiculous situation and an extremely unsatisfactory position in which we find ourselves. For years, as my hon. Friend the Member for Glasgow East (David Linden) said, we have heard this Government talk about taking back control and the importance of parliamentary sovereignty. This is an early test of how this Parliament takes back that control, and the Executive are legislating to prevent it from happening. If the Bill is passed as it stands, Parliament and the judiciary, and arguably the monarch’s traditional role, will no longer be in play, and the decision to dissolve this place and call a general election will be entirely in the hands of the Prime Minister, who may call one when it is politically expedient so to do. That is not how a modern liberal democracy should function, and that is why we will not be supporting the Bill.
Back in January, both Lord Sumption and Baroness Hale were unequivocal in their evidence that the minimum safeguard required in the event of an ouster clause being put in place was the inclusion in the Bill of a time limit on the moving of writs for parliamentary elections. However, as it stands, there is no such provision in the Bill; six months on, the Government have not produced anything of the sort, and the original clause remains. In effect, that allows the Government to decide the length of a period of Prorogation, the gap between the Dissolution of Parliament and an election, and indeed the gap between an election and the first sitting of a Parliament. That is deeply worrying. The Government had an opportunity to take the advice of many learned people and improve the Bill. They refused to take that advice, and I fear that it is sinister and troubling that they did not.
Sir Geoffrey Cox
It is a great pleasure to follow so erudite and intelligible a speech from the hon. Member for Argyll and Bute (Brendan O'Hara).
I have an experience that is very rare in my political career—a sense of complete vindication. I voted against the Fixed-term Parliaments Act in 2011, when it was brought in, and I seem to recall saying then what I hear the Minister saying from the Front Bench now: that it would not work and that it was an abominable intrusion and distortion of our constitution. I see this Bill as a welcome correction that brings our constitution back to the fundamental principle, which has existed for many years, that, with the important exception that the monarch has the right to speak his or her mind at the time the Prime Minister requests a Dissolution, and in the last resort even perhaps to decline it—although it would not be known for many years that he or she had—it should be the case that the Prime Minister can advise Her Majesty to dissolve the House. We are at last returning to sanity and, with the pardon of the hon. Member for Rhondda (Chris Bryant), to normality when it comes to the constitution.
However, I say to the Committee and the Minister that there is an issue that troubles me. It seems to me that, when we presented our manifesto to the country in 2019, we did not only promise that we would restore the balance of our constitution by repealing the Fixed-term Parliaments Act. We presented the country then with a constitutional programme, or at least the willingness to look fundamentally at our constitution and to consider deeply whether we should restore to a more Conservative and a more traditional basis other aspects of our constitution, too.
In welcoming this Bill, therefore, I say to my hon. Friend the Minister that I hope that it is not the last measure that we will introduce in the portfolio that she occupies. At the moment, I look at our offering and I see this Bill, which I fully support, I see the Elections Bill, which I also support, and I see the Judicial Review and Courts Bill. I hope we are not going to be quite so timid as to present that as our sole offering to the country. In 1997, the Labour party was elected. One thing one can say about that Government is that they came in with a coherent, radical plan for the constitution, and they then enacted it with complete ruthlessness, and with complete disregard for Opposition voices. I was in the House some years later, and I recall vividly how the Labour party steamrollered its constitutional changes, including the Constitutional Reform Act 2005, through this House with very little by way of consideration and regard for alternative voices.
We now have a majority comparable to that, and I hope that we will not squander that opportunity. There are important things that we should now be doing. I have some sympathy with the plea this afternoon by the hon. Member for Rhondda that we should be considering Prorogation. So we should. We should be considering whether the Supreme Court’s decision in Miller No. 2 should stand. We should be considering whether other decisions of the Supreme Court should be allowed to stand. There comes to mind, for example, the Adams case, in which Mr Gerry Adams was effectively acquitted of his convictions in 1975 because the Supreme Court held that the Carltona principle in effect did not apply to the decision then taken. That, in my view, is a matter that this House ought to be reviewing.
I say to right hon. and hon. Members and to my friends on the Government Benches that we must not regard the constitution as an area that is too complicated for us to go into. We must not accept the liberal consensus, as it is no doubt called, upon which the new Labour Government in ’97 traded. We must not accept that these things are permanent features of our constitution. They were not introduced with our consent, and we have every right, with the mandate from the people that we now have, to reconsider them.
I say to the Minister that I applaud this Bill, and I applaud her particularly. I was impressed, if I may say so, throughout the course of her presentation by how deeply competent and how completely on top of her brief she was. Thank heavens for such a Minister.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
Order. Sir Geoffrey, I have given a bit of latitude, but do you intend to speak to the clauses, new clauses or amendments?
Sir Geoffrey Cox
It is stand part that I am addressing, Mr Evans.
This Bill should warmly commend itself to those on both sides of the Committee. My only caution—my only plea—is: let this not be the last word we say upon the British constitution.
Chris Bryant
It is a delight to follow that Third Reading speech.
I have enjoyed today, not least because it is such a delight to be vindicated. I feel as if I have been saying the same things for 20 years. Some of what the Minister said today, if we put the word “not” in, was what she said 10 years ago, which is kind of entertaining but rather irritating.
I am not going to speak at length, but we have to go back to fundamental principles when we are talking about the constitution. I like Parliament sitting. It is good for Governments to face the scrutiny of the Commons elected. Long interruptions are a bad thing. We take a long time to get a Parliament going after a general election, and now, with a long general election, as the right hon. Member for Basingstoke (Mrs Miller) referred to, it can be several months that parliamentary scrutiny is effectively out of action, before Select Committees are fully set up and all the rest of it.
The Executive and the Parliament need to be in balance with one other. There is a real danger that we are moving in the direction of what I call an over-mighty Executive. The Leader of the House in particular has what I call a high theological understanding of government—the Government are always right, by definition. In our system, the Government have considerable power. That is why some have called it an elected dictatorship.
The constitution should always stand the test of time and the test of bad actors. We always presume we will have a good monarch. We have had bad monarchs in the past. We presume we will always have an honourable and good Prime Minister. We might have a bad Prime Minister, who might choose to—[Interruption.] I am being ironic here. We might have a Prime Minister who deliberately chose to subvert the constitution and use it to subvert democracy.
Aaron Bell
It is a pleasure to follow the hon. Member for Rhondda (Chris Bryant)—the right hon. Member, I should say.
Aaron Bell
Not yet. I am sure it will come in time.
I will not repeat my Second Reading speech—this is the Committee stage—but I still welcome the Bill for all the reasons I gave on that day. I welcome the Government’s continued engagement with all of us who have an interest in it, in particular members of the Joint Committee on which I served with the hon. Member for Rhondda and many other Members, with whom I made friends and now sign amendments with. Perhaps the Whips will regret putting me on that Committee in the fullness of time.
I will turn to new clause 1, in the name of my right hon. Friend the Member for Basingstoke (Mrs Miller), in a little while, but first I want to discuss the overall principles relating to Dissolution. The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend the Member for Surrey Heath (Michael Gove) said on Second Reading that the right place for a proper discussion of the principles was in Committee, so I think it is probably right, with your indulgence, Ms Winterton, that we have a little discussion about them. Perhaps the Minister can reflect on them in her closing remarks, too.
We heard about Tommy Lascelles and his principles from 1950. Younger viewers will remember him from “The Crown”, played by Pip Torrens, as the private secretary to Her Majesty, but at the time he was the private secretary to His Majesty. He was talking about the principles in another closely contested election period—1950 and 1951. Those principles are relevant today, but the second one about the national economy was widely considered to have fallen into abeyance. There are other principles that we should perhaps consider. It was the opinion of the Joint Committee that the Dissolution principles document issued by the Government did not go quite far enough and did not cover other aspects of Dissolution—the calling of the new Parliament and so on. I therefore ask the Minister to comment a little on the 20 principles in our report: on the overall paramount confidence in our system, what it means to lose the confidence of the House and how to determine that, and what the Prime Minister ought to be doing in certain circumstances, whether to offer the resignation of the Government or to request a Dissolution from the monarch, and when it would be more appropriate for the Prime Minister to resign. We said that it would be more appropriate if there had recently been a general election, if there was a new Prime Minister from that Member’s party, or if it appeared that another person might command the confidence of the House—that was, of course, the third of Lascelles’s principles. The work of the Committee in putting together a more complete list of principles around confidence ought to be reflected in the debate and I ask the Minister to reflect on that in her closing remarks.
Turning briefly to new clause 1, since I am a signatory to it with my right hon. Friend the Member for Basingstoke, I am grateful for the comments the Minister made from the Dispatch Box. I am also grateful for her engagement with those of us who signed new clause 1. I welcome the additional research we ought to see. As I said in my intervention on her earlier, the purpose of an election is not simply to have the most perfectly admirable election in the world, but to resolve things. The longer we take, the more people we can register and persuade to vote, but as my hon. Friend the Member for Heywood and Middleton (Chris Clarkson) said, eventually they might get bored and not vote. The point of an election is to resolve things. We want to make sure people vote—once and once only, as I said in my speech on the Elections Bill the other day—but the key purpose of an election is to let the country move on from a moment of tension, contest and electoral joust between opposing candidates in our constituencies. I do not think it serves anybody for that to go on a day longer than is truly necessary. That is why I was happy to put my name to new clause 1.
I listened to the Electoral Commission and the Association of Electoral Administrators. I understand that there are complications with going back to the status quo ante of 17 days as things stand, but I reflect on what my hon. Friend the Member for Calder Valley (Craig Whittaker) said. Rather than saying it cannot be done with the rules as they are, we should look at which rules we could change to get back to the status quo ante. The Bill takes us back to the status quo ante in so many ways and I welcome that, but the real key is to get everything back to how it was before. I remember, as a teenager, watching elections that were short, sharp and got the job done. It did not work for us in 1997 when I was a teenager, but it got the job done and let the country move on. That is what we should have with our elections. They should not be dragged out for months. For the reasons I have given and for the candidates too, we should look at ways to make them shorter, notwithstanding the arguments that have been made by the administrators.
Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)
Diolch yn fawr, Dame Rosie; it is a pleasure to contribute to this debate, to serve under your chairmanship and to speak to my amendments 4 and 5. I welcome the provisions in the Bill that put certain safeguards in place to protect against a clash between ordinary Westminster and Senedd elections. My amendments go one step further and would remove regulations from the Government of Wales Act 2006 that allow the Secretary of State to combine a UK general election with an extraordinary general election to the Senedd. Although these are probing amendments, I would like to set out why the possibility of even an extraordinary election to the Senedd taking place at the same time as a Westminster election is a cause for concern.
The introduction of the Elections Bill has put Wales and Westminster on a rapidly diverging path when it comes to empowering and engaging citizens in the democratic process. In Wales, 16 and 17-year-olds are allowed to vote in Senedd and local elections, rightly having a say over critical issues that affect their future. In Wales, any legal citizen, no matter their nationality, can vote in Senedd and local elections. It is telling that as Wales and, of course, Scotland extend their franchise, this place seeks to do the exact opposite. In Westminster elections, the introduction of mandatory ID cards risks placing an additional barrier between voters and democratic engagement, especially for younger people and minority groups.
This all comes at a time when the Conservative Government here are intent on slashing the number of Welsh MPs from 40 to 32. Not only is this part of a relentless anti-devolution power grab from our Senedd, but it will cause practical confusion, as many will find themselves living in different boundaries for the Senedd and Westminster. In addition, if both elections were held at the same time, headlines would inevitably be dominated by the Westminster election, prejudicing the national debate in Wales. Despite the fact that we will celebrate a quarter of a century of devolved Welsh governance in a few years’ time, there continues to be a lack of understanding about which tier of government is responsible for which policy area. Simultaneous elections would therefore only increase confusion, a phenomenon probably encouraged by some political parties.
I gladly admit that there has yet to be an extraordinary Senedd election to date, but it is not completely out of the realms of possibility. Indeed, further reforms to the Senedd may make this outcome more likely. For example, the expert panel report on Assembly electoral reform, chaired by the formidable Professor Laura McAllister, made a strong case for the introduction of the single transferable vote system—a system that could vastly improve how connected voters feel to the democratic process but which would make coalition Government in Wales inevitable. Although I believe such cross-party governance to be a good thing, it could increase the likelihood of an extraordinary election.
Patrick Grady
The hon. Gentleman is making an excellent point in his speech and with his amendment. It is not entirely clear from the answer that he got from the Minister why the Government would not simply accept the proposal, for the same reason that I cited in my intervention on my hon. Friend the Member for Argyll and Bute (Brendan O’Hara)—the potential of a UK general election being used to manipulate the date of a referendum, the date of a Scottish election or the date of a Welsh election. Once again, it is the power grab that the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) spoke of.
Jonathan Edwards
I am grateful for the hon. Gentleman’s intervention and his point about the pre-eminence that Westminster would have over these major democratic events in Wales and Scotland.
Although these scenarios are currently hypothetical, we cannot but be vigilant when living in an age where the British Government had no shame, only a few years ago, in unlawfully proroguing this House to avoid scrutiny and parliamentary debate on the biggest political decision that the UK has faced in generations. I would appreciate it if the Minister, in closing, could shed some light on why the Secretary of State needs to retain the powers to combine extraordinary general elections to the Senedd on the same day as UK parliamentary general elections when provisions in section 5 of the Government of Wales Act allow the Senedd to dissolve itself and the Presiding Officer to propose a day to hold an election.
Before I bring my comments to a close, I would like to speak in support of other amendments and particularly new clauses 2 to 4, which would empower the legislature over the Executive and give a semblance of balance to a Bill that is inherently about enabling the Executive to dominate this House. A healthy democracy requires checks and balances between the Government and Parliament. The Fixed-term Parliaments Act 2011, which the Bill would repeal, was good for democracy as it strengthened the hand of this House in the governance of the UK.
The excuse for this Bill is the events of the 2017 to 2019 Parliament. Although I acknowledge that the current Prime Minister and his team skilfully used the deep deliberations of that time to present a Parliament in paralysis, I firmly believe that future historians will look very kindly on the role of this House during that period. Members of a legislature should never offer unequivocal support for the actions of an Executive. Our job is to scrutinise and challenge. During the period in question, this House was dealing with a hugely complex issue and carefully, through detailed deliberation, working its way through the various options. The tragedy of the events of the last Parliament is that the Opposition fell into the trap set by the Government by agreeing to the early election.
What we saw towards the end of the last Parliament was a Government willing to thrash parliamentary democracy to achieve their political goals. The amendments put forward by the hon. Member for Rhondda (Chris Bryant) seek to insure us against such similar acts in future. If he chooses to divide the Committee on his amendments, he will have my support.
Peter Gibson (Darlington) (Con)
I wish to speak against new clause 2, Dame Rosie, and it is a pleasure to be called to speak after having served on the Joint Committee that examined the Bill. At its heart, the Bill resumes a position in our democracy that has served us well, restoring the process for dissolving Parliament to the situation that existed before 2011. I am therefore pleased to support the Government this evening as they seek to deliver on their manifesto pledge.
The measures that the Bill delivers will ensure that the Government must always have the confidence of the House of Commons while restoring the trust between the electorate, Government and the Commons. Political events of recent years have made it clear to all of us why this confidence and trust is so important. With the unprecedented events of Brexit and now covid-19, it has become increasingly clear that we must have flexibility on the timing of elections with the restoration of prerogative power to call elections as a result of crisis and change.
To my mind, the Government have clearly set out the legal argument for the source of power to dissolve Parliament. Professor Mark Elliott of the University of Cambridge observed in his evidence to the Joint Committee that clause 2 requires the courts to act as if the Fixed-Term Parliaments Act had never been enacted. I have spoken to many hon. Friends who served in the 2017 Parliament and they were incredibly frustrated with the dither and delay that covered this House in little glory in the run-up to the 2019 election.
During its 10-year existence, the Fixed-term Parliaments Act 2011 caused damage to our parliamentary democracy, undermining the confidence of the electorate, and brought about persistent parliamentary paralysis. Fundamentally, the Bill is a return to the tried-and-tested method that has defined our parliamentary democracy for centuries—one that our constituents will be able to trust. It was a pleasure to serve on the Joint Committee on this important Bill and I look forward to its passage through this place tonight.
Chris Green
It is a pleasure to follow my hon. Friend the Member for Darlington (Peter Gibson), who captured many of the points so clearly and effectively. I welcome the Bill and fully intend to support it and the reversal of the Fixed-Term Parliaments Act. That Act was designed to deal with the short-term problem of a coalition, which is a relatively frequent occurrence in our democracy but is certainly not something that we would wish to have generally, because it causes a great many problems, with accountability being one of the most significant concerns. Following a coalition Government, there is always a question about blame and who is responsible for what actions. One side claims all the good things and blames all the bad on the other. We do not want legislation that reflects those problematic times and deals with that situation as a permanent feature. People across the country understand our political system and actually quite value the way we do politics, including first-past-the-post and having a majority Government, as we have recognised over many years.
Elections are wonderful occasions for a whole range of reasons. They are a festival of democracy and, in many ways, are uplifting, although I recognise the negativity of long election campaigns. My right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) made a very good point by referring to election fatigue. I am therefore very sympathetic to new clause 1. Even though I and many others quite enjoy elections and the campaign trail, we have to reflect on the concern that my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) highlighted so well about the exclusionary qualities of a long election campaign: it is very difficult for many people to engage in it if they are not already in Parliament or do not have wider financial support to be an active candidate throughout. I hope that the Minister will reflect on the new clause even if it is not pressed to a vote at this stage.
Patrick Grady
The hon. Member says that there is election fatigue and that people are worried about when election campaigns begin, but surely the effect of the Bill will be that the next election campaign will start now because nobody except the Prime Minister will know the date of the next election.
Chris Green
The hon. Gentleman makes an interesting point, but I fundamentally disagree. In countries with fixed-term Parliaments, such as the United States of America, they legislate for two years and then campaign for two years, whereas if we do not know the time of the next general election, we do not know when we will start campaigning. Often, even Prime Ministers of the day do not know when the elections will be, because they are not fixed in time, so it is difficult for the Government to start campaigning. Actually, I think the Bill will reduce the campaign period.
There is a strong sense that once electors have made their decision, they have given their judgment not only on the political parties but, more importantly, on the candidates themselves. In constituencies, we are elected as individuals and then we form a Government among ourselves. It is not necessarily the largest party that will form a Government, because we might be in a coalition situation and other parties might seek that. With a fixed term, however, a party that is in the majority at the beginning of a Parliament may find, whether because of death, defection or fragmentation, that it is no longer able to function. Arguably, we have seen that recently.
I oppose new clause 2 because for Parliament to make the decision to permit an election would, in a sense, enable the House of Commons to hold the Government of the day to ransom. We saw that recently when the Government ought to have fallen and we ought to have had a general election. The British people ought to have been in a position to make a decision not only about the fundamental issue of Brexit but, more broadly, about how individuals here had represented the interests and concerns of their constituents, and then to return us to enact whatever manifesto we had come up with.
The idea that we could be in a position where the Opposition and perhaps fragments of the governing party could say, “No, we will just carry on as long as we see fit” would bring Parliament more and more into disrepute. We have to have the Prime Minister making these decisions. Fundamentally, who would fear facing the verdict of the people? It would be those who were doing a bad job, whether they were in opposition or in the Government of the day. I believe that the Prime Minister ought to make that decision within the five-year period.
Patrick Grady
I apologise, Dame Rosie, that I have been bobbing up and down this afternoon wanting to speak and not wanting to speak, but I think that some of our discussion on the new clauses needs to be teased out a little more. First, I would like to hear from the Minister in response to the point on which I tried to intervene on her, which was about the consequential effects, particularly with regard to referendums. The hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) made a similar point about the ability of the UK Parliament essentially to take primacy over decisions already made by the devolved assemblies about the dates of elections and particularly of referendums.
Why could not the Bill have been structured in such a way that it simply stopped the Prime Minister from choosing a date on which a poll or plebiscite of some kind was already scheduled? Forcing polls or plebiscites in the devolved areas to be rescheduled instead entirely diminishes or takes away the idea that we are in some kind of union of equals and fundamentally reasserts the primacy of this place above all else. If that does not make the argument for the outcome of the referendum that I will be campaigning for, I do not know what does.
The point about setting the date of the election, which also relates to new clause 2, is particularly important. The effect will be not only that the Prime Minister alone will know the date of the next election, but that he will know all the consequent dates that fit alongside it, particularly the regulated periods, the short campaign and the long campaign. It will therefore affect the ability of parties and individual candidates—as the hon. Member for Bolton West (Chris Green) said, we are all individual candidates for election—to spend money and to decide when and how to do so.
That point relates to the Elections Bill, which is about to be considered in Committee, and speaks to the piecemeal approach that this Government are very slyly taking to what is actually a very serious package of constitutional reforms that undermine democratic protections and positions that people have enjoyed across these islands for some considerable time.
That was a bit too long for an intervention, Dame Rosie, so I have taken advantage of the fact that the Committee still had a bit of time to run. As the Minister was not willing to take my intervention, I hope that in her summing up she will be able to reply to some of my points.
Chloe Smith
As I was advised by the Chairman of Ways and Means at the time, I endeavoured to respond to all amendments at the beginning of the debate, so I have given what I hope was the bulk of my remarks. It remains for me to thank all right hon. and hon. Members for their contributions, which have been comprehensive and thoughtful.
I assure my right hon. Friend the Member for Basingstoke (Mrs Miller) that I will look at commissioning research. I say to my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) that, as set out in the response to the Joint Committee’s report, there is ongoing dialogue to be had on conventions. I suggest to the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards) that we might meet if he would like to go further over the detail that he requested; I will even extend that invitation to the hon. Member for Glasgow North (Patrick Grady). I assure them both that I am already discussing these matters with colleagues in the devolved Administrations.
I urge the Committee to agree that the clauses should stand part of the Bill and that the amendments are not necessary. I commend the Bill to the Committee.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Revival of prerogative powers to dissolve Parliament and to call a new Parliament
Question put, That the clause stand part of the Bill.
Chloe Smith
I beg to move, That the Bill be now read the Third time.
I thank hon. and right hon. Members on both sides of the House for their careful scrutiny of the Bill throughout its passage, and I thank you and your colleagues for your chairmanship, Madam Deputy Speaker.
I am also grateful to all those who contributed in Committee and on Second Reading, and I particularly thank those who served on the Joint Committee on the Fixed-term Parliaments Act and on the Public Administration and Constitutional Affairs Committee, whose expert scrutiny has informed our approach and improved the Bill.
We have been fortunate to have had an enriching debate today, including on the conventions that underpin the Dissolution of one Parliament and the calling of another. As I mentioned earlier, that dialogue will continue through the remaining stages of the Bill as it passes out of the elected House and goes into the other place. During its passage, the Government have at all times listened with care to the concerns raised and the thoughts posed, and I reassure the House that this is a focused, careful Bill that will return us to the long-standing constitutional arrangements that have served successive Governments and Parliaments and have ensured effective, responsive, accountable politics in which the voters are supreme. All the flexibility encapsulated in that is essential to our parliamentary democracy. This Bill restores that constitutional balance, and I commend it to the House.
Cat Smith
This Bill would have benefited from being amended in Committee. Although it is right and proper that the Fixed-term Parliaments Act is repealed, as it was so clearly flawed, reverting to the status quo hands power to the Executive. Indeed, it is a power grab by a Tory party that believes there is one rule for it and another rule for everybody else.
This Bill should not be the Government’s priority during a global pandemic. While our doctors and nurses are having to wear bin bags, the Government are coming up with legislation to play to their own electoral advantage. However, the Fixed-term Parliaments Act was clearly a flawed piece of legislation and the 2019 Labour manifesto committed to repealing it. Although the Bill could have been improved in Committee, and it is regrettable that it was not, we will be abstaining on Third Reading.
Mrs Miller
I bid this Bill well as it passes to the other place. On behalf of other members of the Joint Committee, I particularly thank the Minister for her incredible hard work throughout the passage of the Bill, despite the other challenges she was facing at the time. I personally thank her for her words in response to new clause 1. I look forward to talking to her further about the research she has undertaken to do on the length of elections.
Brendan O’Hara
Madam Deputy Speaker, I thank you and your colleagues, the Clerks and all hon. and right hon. Members who have taken part in what has been a good-natured debate.
Having said that, this is still a thoroughly bad piece of legislation, and nothing I have heard tonight has changed my mind.
Conservative Members seem determined, on a regular basis, to turn the clock back, in this case to a system deemed undesirable and out of touch more than a decade ago. As we have heard, politicians and academics are still arguing about whether it is even possible to believe that the Fixed-term Parliaments Act 2011 had never been enacted. We are being asked to pretend that it never happened. At the risk of showing my age, let me say that it is as though this Government have been taking advice from the scriptwriters of “Dallas”, who asked the world to pretend that Bobby Ewing had never died and they could just go back and pick up the storyline as though nothing had happened previously and anything that had happened in the past would have absolutely no consequence now. While that academic debate rages on and we are heading back to the situation prior to 2011, there can be no doubt that this Bill is little more than a brazen attempt by the Executive to entrench more and more powers with themselves, at the expense of this Parliament. I repeat: as bad as that is in and of itself, when it is viewed alongside what else is going through this place, we see that we are witnessing a full-on attack on our democracy. For that reason, we will be opposing the Bill on Third Reading.
Question put, That the Bill be now read the Third Time.
Dissolution and Calling of Parliament Bill
Tuesday 14th September 2021
(3 years, 2 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 13 September 2021 - large print - (13 Sep 2021)
Dissolution and Calling of Parliament Bill
Tuesday 30th November 2021
(2 years, 11 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 13 September 2021 - large print - (13 Sep 2021)
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.
Baroness Smith of Basildon (Lab)
My Lords, I thank the Minister for his contribution and his endurance in getting through it—I have some cough sweets if they would be any use to him. I know how he feels; I once took a Bill through Committee while recovering from flu, with a lot of Lucozade under my desk. Given that he is not very well, I thank him for his contribution today. This is a relatively short Bill—six clauses and one schedule of what the Government describe as minor and consequential amendments. It is significant none the less, despite its brevity.
I was talking to a colleague the other day who described your Lordships’ House as the “custodians of the constitution”. That may sound a little pompous, but I think we take the constitutional responsibilities of Parliament very seriously. With that, I entirely concur with the Minister’s comments about the committees of both Houses, which have provided ample information and a very helpful backdrop to today’s debate.
Looking at the list of speakers in today’s debate, we have those who have served in government and at the highest levels of the Civil Service, colleagues from the law and constitutional experts. Some of our newer colleagues will contribute as well; I welcome and look forward to the maiden speech of the noble Earl, Lord Leicester. When he came to your Lordships’ House, he described it as
“the most effective reforming chamber in the … world.”
I hope we can live up to his expectations. I look forward to his contribution.
The Minister outlined this already, but I really think this Bill reinforces the traditional saying, “Legislate in haste, repent at leisure”. I am not staking any claim for the moral high ground for myself or my party, but it is essential when considering constitutional changes that there is a proper process of investigation, analysis and consideration. Otherwise, it is impossible to predict and fully understand all the implications of the changes proposed. There is an onus on parliamentarians from both Houses, from all parties and none, to ensure that any constitutional change stands the test of time. The answer to addressing such issues is pretty straightforward. Probably quite boringly, it is about having a process to ensure that all the relevant issues and consequences, intended and unintended, are fully understood.
As the noble Lord said, there is now little doubt that the Fixed-term Parliaments Act is badly drafted legislation. It is also rather ineffective, possibly because of its starting point. Despite the principle being discussed often—as he said, even in party manifestos—there had been very little detailed consideration. When the Bill was introduced, it was clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. That was understandable, given that we have little experience of coalition governments in our system, but it is an unavoidable irony that the coalition for which it was designed was clearly more robust than the Conservative Governments that followed, as ways then had to be found to circumvent the legislation. There is little disagreement that it is flawed and needs to be replaced. The question that remains is how to go about it.
When reading through the debates in the other place, I found it interesting how often ministerial comments and opinions were asserted as facts. If I were being generous, I would probably describe them as optimistic assertions. At Third Reading in the other place the Minister, Chloe Smith, stated:
“The Bill therefore repeals the 2011 Act and returns us to the tried and tested system whereby Parliament will automatically dissolve after five years, if it has not been dissolved earlier by the sovereign exercising that prerogative power at the request of the Prime Minister.”
She then asserted that the Bill will
“reset the clock back to the pre-2011 position with as much clarity as possible”,
but does it really do that? First, the Joint Committee that the Minister here referred to identified ways in which the then draft Bill did not do that, including through the inclusion of Clause 3 in the Bill before us today. This is the ouster clause that puts in statute that the decision to hold an election is outside any legal jurisdiction. If the “factory settings” were being restored to 2011, then surely such a clause would not be required. I heard what the Minister said but it did not really bring the clarity that we are looking for.
In the debate in the other place, the Minister then also declared that the Lascelles principles—through which a monarch has a constitutional power under the prerogative to refuse an election in three very limited circumstances—were ones that the Government “acknowledged” as a historical fact and that
“now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated.”—[Official Report, Commons, Dissolution and Calling Of Parliament Bill Committee, 13/9/21; cols. 721-22.]
However, I am unconvinced that any of this provides the clarity we need for the legislation before us.
The key question is whether the prerogative can be restored by statute and, therefore, whether the Bill restores the prerogative powers as they previously existed, including the principles by which a monarch can refuse an election. If it is the Government’s view that that is the effect of the Bill, why is Clause 3—the ouster clause that would prevent any decision being judicially challenged—so essential? That is a very specific question, and it is important because Clause 3 implies that the Government consider that by seeking to revert to what they describe as the previous position by statute, the decision to call an election could be legally challenged.
When our own Select Committee on the Constitution, chaired by my noble friend Lady Taylor, examined this issue last year—albeit without the benefit of seeing the legislation now before us—it said:
“The possibility of legal challenge to the prime minister’s advice to the Monarch, or the Monarch’s decision to dissolve Parliament, must be avoided.”
I accept that, and I understand why the Government remain scarred by the attempt at an unlawful Prorogation that was successfully legally challenged in 2019. The Minister will recall that so great was my concern and that of the noble Lord, Lord Newby, that we refused to take part in the Prorogation ceremony, which was later in effect declared void.
As the Minister and I have discussed, there is a clear difference between Prorogation and Dissolution, but the wider and perhaps more relevant question is whether the way the legislation is drafted is the correct way to address the issue. There was a difference of opinion in the Joint Committee, yet even those who supported the Government’s approach in principle were concerned at how Clause 3 had been drafted—that is, its extent and future use as defined in Clause 3. My noble friend Lord Rooker picked up that issue and the Minister is right that it will have to be debated—perhaps for longer than he would like, although hopefully not too long. Still, it will have to be ironed out in Committee.
The use of the word “purported” has caused considerable concern because it appears that, in effect, Parliament is giving the Executive the power to do something that is not within their power, and there would be no legal redress whatsoever. I am not a lawyer—it probably shows—but from reading through the various reports and evidence to the Joint Committee and the Constitution Committee, it was obvious that if you ask two lawyers the same question, you get at least three opinions. Some said that they thought the ouster clause was clear, while some thought there was the potential for abuse. Others, including constitutional experts, considered that the courts would then seek to interpret the clause. I suspect that the potential for the latter two outcomes is undesirable and certainly not what the Government intended—so Clause 3, the ouster clause, may not even do what the Government intend.
So, what are the alternatives? I suggest that there are two options that we could consider and draw out in Committee. First, as invited by the Joint Committee, the Government could consider whether a more limited but clearer and more precise approach could be more effective. However, in the initial response to that invitation, the Government appeared to both agree and disagree. They accepted that clarity was necessary but disagreed that they needed to change anything.
An alternative approach would be for the House of Commons to continue to have a vote on the issue. Given that the power has been with Parliament since the Fixed-term Parliaments Act 2011, it would not be a huge leap to consider that that position should continue. Otherwise, the effect of the changes proposed by the Government will not be just to set the clock back to 2011 but to increase the power of the Prime Minister not just beyond the current position but beyond what existed prior to 2011.
Let us face it: this Prime Minister has not exactly established himself as someone who could be constrained, or even guided, by the normal conventions of Parliament. Whether because of the unlawful Prorogation, for example, or his lack of support for the Ministerial Code, there are many who consider that the Prime Minister wants to find ways around the usual and normal ways of working rather than follow the rules. But, as we have already seen, he is not alone in the Government in appearing to consider the normal processes of checks and balances in our system as something of an inconvenience. Legislation has to be considered for all situations, not just one particular Prime Minister.
I am sure that most noble Lords in this House would agree that Parliament and the governance of our country work best when there is a balance between the Executive and Parliament, not when the Prime Minister thinks that they are one and the same. If the Government consider that the Lascelles principles still apply—and I am not convinced that they do—the monarch could, in future, again be placed in a difficult position: having to make a decision to either accept an inappropriate request for Dissolution or refuse the advice of a Prime Minister for an election. However, the ouster clause is a heavy-handed, inappropriate way of dealing with the issue.
A point made by Professor Andrew Blick of King’s College, London, is one that we would do well to heed, and perhaps look at in more detail in Committee. In his evidence, Professor Blick considered that maintaining a vote in the House of Commons would help to insulate the monarch from being put at the centre of a political and constitutional controversy. Many of us remain very concerned at the way the Leaders of both Houses went to Balmoral to ask the Queen to call for the Prorogation. So I favour this approach, but we will get into that in more detail in Committee.
There are other issues in the Bill, such as the number of days needed for a general election, that we may also want to probe further. I look forward to today’s debate, with the expertise and information we have in this House, and to our deliberations in Committee.
Lord Newby (LD)
My Lords, I too offer my sympathies to the Minister for having to take forward this Bill under the duress of a heavy cold. I hope that my comments will not add too much to his coughing and spluttering.
This is an exceptionally short Bill but still a very significant one. The Act that it replaces was said by David Cameron to be
“the biggest transfer of powers from the Executive in centuries.”
If we accept his judgment, it follows that the repeal of the Act to return to the position that preceded its passage marks a major transfer of powers back to the Executive. So the key question before us is whether such a transfer is justified. On these Benches, we believe that it is not.
The purpose of the Fixed-term Parliaments Act was to provide a stable framework within which the coalition Government formed in 2010 could operate. In his Second Reading speech in another place, even Michael Gove accepted that it had been successful in achieving this and had prevented the Tories “collapsing the Government” early to gain a political advantage.
The reason we have this Bill before us today is that the previous minority Conservative Government were frustrated in calling an election because they did not have a parliamentary majority. Yet, even with the Act in place, Theresa May was able to call an election, having had a revelation while up a mountain, and Boris Johnson was able to call an election three years early in the wholly exceptional circumstances of 2019.
The advantages of having a fixed term are clear. It brings some certainty and reduces the advantage the Prime Minister has in choosing an election date that maximises his or her chance of victory. Research in the UK by Schleicher and Belu shows that, where elections have been called opportunistically before the statutory end point of a Parliament, it has given the incumbents an average increase in vote share of 3.5% over what might otherwise have been expected, which has translated into an 11% seat advantage. In circumstances where no party has a majority in the Commons—a highly likely scenario for the UK in the future—it gives the largest party a massive advantage.
Fixed terms also provide the parties with a more level playing field on electoral expenditure.
Lord Cormack (Con)
I am most grateful. What was the massive advantage in 2017?
Lord Newby (LD)
My Lords, the massive advantage was perceived in the mind of the Prime Minister. The massive disadvantage was her judgment, not that she did not have the opportunity to exercise that judgment. We think the exercise of that judgment, on what was by any accounts if not a whim then a very short period of decision-making, is a bad idea for democracy.
As I was saying, fixed terms provide parties with a more level playing field on electoral expenditure. If the Government can plan for an early election, they can ratchet up spending in the year before the planned, but unannounced, date. Opposition parties will typically be unable to take the risk of planning and spending on the basis of an early election date. For these reasons, a fixed-term Parliament is the international norm. Some three-quarters of the world’s major democracies have a fixed term. So do the Scottish, Welsh and Northern Ireland legislatures. No doubt that is why Labour was so enthusiastically in favour of introducing a fixed-term Parliament in Gordon Brown’s manifesto in 2010. I am not arguing that every single aspect of the current Act is incapable of improvement, but I am seeking to defend the principle which lies behind it.
So if we are to reverse the biggest transfer of executive power from the Executive in centuries and hand it back to the Prime Minister, you would hope that there would be a compelling reason for doing so. In moving Second Reading in another place, Michael Gove said that this compelling reason was that
“it gives power to the people.”—[Official Report, Commons, 6/7/21; col. 788.]
This is pure doublespeak. It does not give power to the people; it gives it to the Prime Minster, pure and simple.
I suspect that this Prime Minster will not follow the precedent of his predecessor by having a revelation during a long mountain walk, but he might have it on the roundabout at Peppa Pig World and come back the next day and simply call an election. How do the people have any say in that decision? They clearly do not. They do have the power to vote the Prime Minister back or not at the subsequent election, but, if you really wanted to give power to the people, surely a Prime Minister would follow the public mood and, when it was supportive of an early election, call one. But that is exactly the time when a Prime Minister is least likely to call an election, because the people want elections when they want to change the Government, not retain them. So the democratic argument for prime ministerial discretion on calling an early election is entirely bogus.
This Bill seeks to put the clock back and reinstate prime ministerial powers over Parliament. But it goes further than that. With Clause 3, it seeks to increase prime ministerial power further by removing the power of the court to adjudicate on the way in which that power is exercised. As we saw in 2019, judicial oversight is not just a theoretical possibility but, as the noble Lord, Lord True, said, an actual possibility, and the Prime Minister simply wants to cut out this possibility in future.
If that is his aim, there is a much more satisfactory and democratic way of doing this, which is to make the calling of an election before the end of the full allotted span of a Parliament subject to a vote in the Commons. This reins in the executive power that the Bill seeks to give the Prime Minister, without unduly hobbling his or her ability to call an election—because, at the very least, the Prime Minister would have to consult Cabinet colleagues and persuade their party to vote for such an election.
In practice, it is unlikely that the Prime Minister will be denied an election by Parliament—by the Commons. Oppositions nearly always want elections and, if the Prime Minister is able to persuade neither their colleagues nor the Opposition to vote for one, the likelihood is that it would not be in the national interest. We will therefore support an amendment in Committee to make the premature calling of an election subject to a vote by the Commons. By doing so, we would remove the problem of the ouster clause and restrain prime ministerial power but allow MPs to decide whether it is in the national interest to have an election when the Prime Minister wants to call one. My colleagues will raise other aspects of the Bill both today and in subsequent stages, but, if the Lords can persuade the Commons to take back some control of the electoral process, I believe that it will have fulfilled its constitutional role.
To return to first principles, the British public do not elect a Government; they elect a Parliament, and an Executive are then drawn from that Parliament. Parliament is the servant of the people, and Parliament, not the Executive, should have the decisive vote on when the people should have their say.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support the Bill. While it appears that no one really wants to keep the Fixed-term Parliaments Act, there are obviously differing views about what should replace it. There seem to me to be three basic suggestions: first, that the Commons should have a vote; secondly, that the Prime Minister should decide, subject to the courts’ supervisory jurisdiction; and, thirdly, that the Prime Minister should decide but do so under a non-reviewable prerogative, which is what the Bill proposes. As I said, I favour the latter.
To clear the ground—the noble Lord, Lord Newby, has just done this—obviously, the three alternatives, if you can have three, are mutually exclusive. If the Commons has a vote, that decision is plainly unreviewable: Article 9 of the Bill of Rights plainly puts that out of court. It should further be noted that there is disagreement among lawyers as to whether, given that the FTPA earlier replaced the prerogative, the prerogative—certainly in an unreviewable form—can now be restored. My own clear view is that it can, and that is certainly the view of Lord Sumption and Mark Elliott, the leading Cambridge professor of public law, who advises the Constitution Committee and who supported the decision in Miller II.
With Clause 3 in the Bill, I simply cannot see any court, and certainly not the Supreme Court—now under new management, with a new president—contemplating reviewing the prerogative of the Prime Minister. Indeed, even without Clause 3, I do not think that it would have done so, but it is there for the avoidance of doubt. Indeed, one reason for having it there is to relieve the court of the embarrassment of being drawn reluctantly—believe me—into this rather sensitive area.
Let me explain now why I see no basic objection to an unreviewable prerogative here—it is, or would be, exercisable by Her Majesty not on the advice but at the request of the Prime Minister—and then I must explain why I do not think that the House of Commons should have a vote. As to an unreviewable prerogative power, I gather that there are those who worry that that could place Her Majesty in an invidious position if, for example, the Prime Minister did not like the result of a general election and thought he could get a better majority with an immediate further election. That sort of thing, besides being flatly contrary to the conventions set out and agreed on all sides, is really a purely theoretical risk. Any Prime Minister has to have regard to the obvious general good sense of the electorate, and we all know that electorates can see through that sort of thing extremely readily. Certainly, it does not to my mind suggest for a moment that the Prime Minister could be mad enough to reach a decision that would actually embarrass Her Majesty.
As to the Commons having a vote, I object to that because it would leave wide open the possibility that we could return to the selfsame intolerable position that arose under the Fixed-term Parliaments Act back in the late summer of 2019. Paragraph 86 of the report of March this year from the Joint Committee on that Act said:
“It would be possible to replace the Fixed-term Parliaments Act with a provision requiring a vote in the Commons before Parliament was dissolved. A minority of the Committee argues this would be the simplest and most obvious way of protecting the Monarch from being dragged into party political debate. The majority 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.”
In a letter dated 12 August, the Minister gave a well-judged response to the suggestion from the Public Administration and Constitutional Affairs Committee for a convention that there should be a Commons vote. The letter said:
“To establish a convention that a resolution of the House must proceed an early dissolution would not be compatible with a return to the tried and tested arrangements for calling an election. Indeed, to create such an expectation would potentially only lead to a repeat of the circumstances of 2019 which this Bill seeks to avoid in repealing the 2011 Act and reviving the dissolution prerogative.”
The imperative, in my respectful suggestion, is to avoid any risk of returning to the position that arose then. In speaking in a debate on 5 September of that year, 2019, I deplored the situation brought about by the Kinnock Bill, an Opposition Bill to ensure that Boris Johnson could not pursue his essential policy of securing Brexit, even if necessary on a no-deal basis. Although I was certainly no supporter of the Prime Minister or of Brexit, and still less of a no-deal Brexit, I suggested that the Bill compelled the Prime Minister to go to Brussels cap in hand, not merely to seek but to obtain a further extension to that process. A little later, I said that
“those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted.”—[Official Report, 5/9/19; col. 1177.]
The imperative of this Bill is that we do not allow that to recur. Let us return to the safe and sound position we used to have—let us pass this Bill.
Lord Grocott (Lab)
My Lords, the House might allow me to mention that, in June 2014, a Labour Back-Bencher introduced the Fixed-term Parliaments Act 2011 (Repeal) Bill. I happen to have a copy of it with me here. Modesty prevents me mentioning the name of the person who introduced the Bill, but it got nowhere; the Government ignored it. Had they not, we would have saved ourselves an awful lot of time and trouble. At least this allows me to deploy my favourite parliamentary phrase: “I told you so”. The intentions of the Bill before us are clear: first, to scrap the Fixed-term Parliaments Act 2011 and, secondly, to return to the system of dissolving Parliament which existed prior to the Act. I very much agree with the first objective, but some significant improvement is needed to the second.
The Fixed-term Parliaments Act 2011 was a bad piece of legislation. It was a major constitutional Bill presented in haste, with no attempt at reaching consensus and no pre-legislative scrutiny. Perhaps most damning of all, the Bill was drafted in cynicism between two political parties, the Tories and the Liberal Democrats, that did not trust each other and wanted a mechanism that would keep them in office for a full five-year term. David Laws, in his book 22 Days in May, says it all:
“William Hague and George Osborne indicated that we needed a mechanism to build confidence in each other … That pointed to fixed-term parliaments”.
So much for David Cameron’s quote that it was a major transfer of power from the Government to the legislature. I was amazed that the noble Lord, Lord Newby, quoted that approvingly when, quite clearly and unarguably, the whole purpose of the Bill was to guarantee the Executive a five-year term. That is no way to make constitutional change. I would like to hear from the Minister on this; perhaps he could apologise on behalf of the Conservative Government at the time that this Bill was ever introduced, and say that no major constitutional change will be introduced without full cross-party debate and pre-legislative scrutiny as long as this Government are in office.
The 2011 Act led to serious damage to the way in which our democracy works. This was particularly evident during what I can describe only as the poisonous Parliament between 2017 and 2019. There were at least two deeply damaging episodes for which the Act was directly responsible. The first was in January 2019 when we had the first of the so-called meaningful votes on Brexit. The Government lost that vote by 432 votes to 203, with a majority against them of over 220. Prior to the Fixed-term Parliaments Act and the conventions that existed at the time, there is no conceivable way that a Government could have survived a defeat like that without either an immediate vote of confidence or by calling a general election.
An even more damaging consequence of the Act was in autumn 2019. This was when the Government had unarguably lost the confidence of the Commons, again on their European policy. Three times they tried to call an election to settle the matter and three times failed to achieve the two-thirds majority required by the Act. This meant that in our cherished parliamentary democracy, whose foundational building block is that Governments govern on the basis of the confidence of Parliament, we faced a situation in which a Government remained in office despite clearly having lost Parliament’s confidence. They could not pass their legislation nor enable the British people to vote in a general election. No wonder it is such a discredited Parliament.
What should we put in the Act’s place? I was privileged to be a member of the Joint Committee that examined the current Bill. There were two related issues that we must have spent half our time discussing. The first concerned the role of the monarch and the need to keep the Queen out of politics. The second was about the so-called Dissolution principles. These issues are fundamental to our democracy. They are, after all, questions about the circumstances in which the British people can exercise their most fundamental democratic right—the right to vote.
The Government’s answer to these questions is, on the surface, a very simple one. It is to return to the system exactly as it was before the Fixed-term Parliaments Act. This meant that, apart from in a very restricted number of conventions, a general election could take place whenever a Prime Minister requested that the monarch dissolve Parliament. But herein lies the rub: as we know, a request, as opposed to advice, from a Prime Minister means that the monarch still has discretion about whether to accept the request. Then inevitably you hit a serious problem. If you consider it essential to keep the monarch out of politics—I do—how on earth can you allow even the possibility of her deciding whether she can refuse a request from a Prime Minister for a general election? Such a decision would be a major constitutional crisis. There could hardly be a more politically charged subject.
There is a solution, which has been touched on by previous speakers. In my view it is a very simple one, and it is that a general election should be held not just when a Prime Minister goes to the monarch and requests one, but when a Prime Minister goes to the monarch armed with a House of Commons resolution and advises her to hold one. Remember that, in our constitution, advice from the Prime Minister is something that the monarch would accept. This simple requirement of a majority in the Commons solves every problem at a stroke. The Government get what they want because a Prime Minister—who of course would not be Prime Minister unless he or she enjoyed the confidence of the Commons—would get the necessary majority on such a fundamental issue. There would be no need for endless debates about Dissolution principles as the authority of Parliament is the only principle that you need. The Queen is kept completely out of politics; she is simply abiding by the supreme authority of a parliamentary majority.
There are other advantages. First, a resolution of Parliament would not be challenged by the courts, so the judiciary would be kept out of politics. Secondly, we would avoid the bizarre embarrassment of the Bill as drafted, which hands back power from Parliament to the monarch. The whole history of our democracy involves the steady transfer of prerogative powers from the monarch to Parliament. This Bill effectively says, “No, we don’t want these powers so please can the hereditary monarch take them back?” By the way, if the Minister when replying says that the whole purpose of the Bill is to give the power of Dissolution back to the Prime Minister to avoid the chaos of the last Parliament, the answer is simply this: on the three occasions when Boris Johnson wanted a general election, he would have got one under my proposal because a majority of MPs said yes. It was simply the requirement of a two-thirds majority that caused the chaos.
I also say to those who object to the idea of a simple majority of government-supporting MPs being able to call an election when it suits them, they can do that already. The Early Parliamentary General Election Act 2019 did just that with a simple majority. I am suggesting a solution that keeps both the monarch and the courts out of politics. It enables a Prime Minister with a majority in the Commons to secure a general election, just as Prime Ministers have been able to do in the past. It solves at a stroke all the problems of having to define Dissolution principles. All that is needed is to include in the Bill a provision that a Dissolution will take place when the Prime Minister arrives at the palace armed with a House of Commons resolution, which would then be granted automatically. I very much hope that the Minister can see that case when he winds up, and I look forward to his reply.
Lord Strathclyde (Con)
My Lords, that must have been a very satisfying speech for the noble Lord, Lord Grocott, to make—I can see that he enjoyed it. It might have been shorter if he had simply stood up and said, “I told you so.”
I support the support the Bill as well. Our lives would of course be considerably easier if all Bills were introduced like this, largely supported by the Opposition and unamended in the House of Commons. It puts a wrong right and takes us back to where we were before. It is admirably clear in its intention and impact. While I accept that there are some aspects of detail that are controversial, I hope that the Government will not be swayed from their course of action.
As part of the good will that existed at that heady time of excitement at the creation of the coalition, post the general election of 2010, I was persuaded that the Liberal Democrats had some ideas that needed to be tested by experience, and so the Fixed-term Parliaments Act was created. It was something that I supported, despite my earlier scepticism. However, the events of 2017 and 2019 showed that the Act was insufficiently flexible to meet our constitutional arrangements. It gave power to the courts and to the House of Commons, it created a muddle and it was also unnecessary. This Bill returns us to the clarity that we previously enjoyed. In this House, I believe that one of our overriding objectives should be to provide that kind of clarity and simplicity.
Of course, there will be those who urge conditions on the workings of the Bill through the House of Commons—in the way that the noble Lord, Lord Grocott, has—and indeed the courts. I urge the Minister to ignore their blandishments, however elegantly they are made.
The Bill deals with the whole question of when elections are called. I believe that we should do nothing to put hurdles in the way of people using their vote. “Trust the people” might sound like a cheap political slogan, but it is the cornerstone on which our constitution is built. The noble Lord, Lord Grocott, put it very well when he said that there was a fundamental right to vote, but I part company with him after that.
We should do everything to make sure that our system of dissolving Parliament and calling an election is very clear and well understood by the people of this country. This Bill does just that and should be supported.
Lord Beith (LD)
My Lords, it is no surprise that the noble Lord supports the Bill even though he had to offer an explanation for having supported the Fixed-term Parliaments Act in the first place. I am a supporter of the principle of fixed-term parliaments, but I served on the Joint Committee on the Bill and on this House’s Constitution Committee when it considered the Bill as then proposed. I pay tribute to my colleagues on both committees for their very careful consideration of the issues.
I was in the Commons at the time of the Fixed-term Parliaments Act, but, more significantly, I was in the Commons in 1974, when the old system was tested. We had elections in February and October of that year, and I had fought a by-election in November of the previous year, making it three elections in 11 months, with a majority still in two figures at the end of that process. The question that this raises is this: was Harold Wilson advised that to seek an immediate election after the outcome of the February 1974 election would be unreasonable? There was a decent interval of eight months before the next election took place—something that emerged from the process. We still do not know, and I look forward to someday finding the answer to that question.
Fixed-term parliaments are normal in most democracies. We are the exception. Fixed-term parliaments preclude, or limit, the ability of the Prime Minister to time elections to gain advantage or, worse, to create short-term policy inducements in order to secure a majority. That is essentially what Harold Wilson did in 1974. Fixed-term parliaments avoid the further problem that frequent elections and short Parliaments disrupt parliamentary scrutiny of the Executive. It is not always realised that a general election closes down the Select Committee system not only for the duration of the election but for what can be several months after the election. Back-Bench Members who succeed in the ballot for Bills lose their chance of getting their legislation through, and the threat of an early election is one of the devices that Government Whips use as they seek the votes of unwilling Back-Benchers in marginal seats. We might see more of that in this Parliament.
For Liberal Democrats—and, indeed, for Labour, until it changed its position—fixed-term Parliaments were a manifesto policy. A key factor in the coming into effect of the Fixed-term Parliaments Act was the need to maintain the coalition. As the Joint Committee points out, a future coalition may well make similar provision. It is misguided to assume that the so-called gridlock of 2019 was primarily caused by the Act or would be likely to occur again if the Act remained in force. It was a unique set of circumstances in which the majority in Parliament were opposed to the policy outcome of a no-deal Brexit that the Government favoured and could bring into effect by the mere calling of an election—not by the outcome of an election but by the mere calling of an election—during the timetable, before the clock reached midnight. By closing down Parliament for that period of the election the policy outcome of a no-deal Brexit could be secured. It is hard to imagine that set of circumstances happening again.
I recognise that both the Conservative and Labour parties went into the most recent general election committed to repealing the Fixed-term Parliaments Act, and I was therefore willing to be involved in detailed committee scrutiny of the Bill to ensure that it did not damage essential constitutional principles. I welcome the Government’s engagement with both committees and their willingness to make some modest, but not insignificant, changes, including the title, but also, more significantly, the language Ministers use to refer to the Prime Minister’s ability to request a Dissolution, rather than advise. The advice would be binding upon the sovereign; the request is not.
In order to return to the status quo ante, the ability of the monarch to refuse a Dissolution needs to be retained. There are very rare circumstances in which it might be used—for example, when a Prime Minister seeks a quick rerun of an election in the hope of getting a larger majority. But the essence of the matter is that the Prime Minister would be advised that he should not put forward such a request because it would be drawing the sovereign into political controversy. A power can be significant even when it is never directly used. That is the significance that I sought to draw from the 1974 experience.
The Joint Committee was very concerned, as noble Lords have been today, about Clause 3—the ouster clause—and particularly its wide drafting. There is general agreement, not just in politics but in the courts as well, that the calling of elections is not a matter in which it would be desirable for the courts to intervene, but inclusion of a “purported exercise” of those powers in the ouster is a worrying precedent, asserting that the Minister’s powers are what the Minister says they are, not what the law says.
Some Ministers, including the current Justice Secretary, appear to have declared war on judicial review, which is a very important restraint on a powerful Executive. This clause looks a bit like a trial run for ouster clauses on other matters. In this case, it is not necessary, as several have said this afternoon. A House of Commons vote in support of a Dissolution request would be proof against judicial review under the Bill of Rights. A minority of us on the Joint Committee favoured that provision being included in the Bill.
I will make one final point, which is drawn from the summary of the Commons Public Administration and Constitutional Affairs Committee’s report. It says:
“A mix of statute and convention remains the best way for this area to be governed, but requires the actors involved to act in ways which engender trust.”
Recent events underline the importance of those words. It is difficult to sustain trust when it appears that the Prime Minister and some of those around him easily forget that rules and long-established conventions apply to them and not just to the rest of us.
Lord Butler of Brockwell (CB)
My Lords, I regret that I am going to share the self-satisfaction of the noble Lord, Lord Grocott. I believed from the outset that the 2011 Bill was misconceived. Partly through the not inconsiderable intervention of my noble friend Lord Pannick, who regrets that he cannot be here today, your Lordships’ House was twice persuaded to send the Bill back to the House of Commons for reconsideration. The concession eventually obtained was that the operation of the Act should be reviewed in 2020 by a Joint Committee. That was conducted under the chairmanship of the noble Lord, Lord McLoughlin, who I think I am right in saying should be congratulated on his birthday today.
The stated intention of the Fixed-term Parliaments Act was, as the noble Lord, Lord Newby, said, to ensure that the 2010 coalition lasted a full five years. But, with respect to the noble Lord, the Bill was not even sufficiently effective to do that. If either of the coalition parties had wanted to end the Parliament early, it is highly likely that, with the support of the Official Opposition, the necessary two-thirds majority in the Commons to bring the Parliament to an end would have been available.
A second aim of the Act was to remove from the Prime Minister the alleged advantage of being able to choose the timing of a general election. In my experience, the flexibility that Prime Ministers have is very limited in practice. No Prime Minister is likely to choose to put their Commons majority at risk before the last year of a Parliament unless they judge it essential in order to get their Government’s programme through. Experience also shows that, if the electorate sense that the Government are putting them to the trouble of a general election for opportunist reasons, they punish the party severely through the ballot box, as the intervention by the noble Lord, Lord Cormack, made clear. That is what Mrs May found in 2017.
I believe that the traditional arrangement by which the Prime Minister can ask the Queen to dissolve Parliament so that the Executive can seek a new mandate, in circumstances where they cannot rely on getting their programme through Parliament, is in the national interest. I therefore support this Bill. However, I greatly regret the inclusion of Clause 3. The noble Lord has argued that the Dissolution of Parliament is a matter properly dealt with by the electorate rather than the judiciary, but in my submission, this is a false argument. By the time the electorate have any say, Parliament will have been dissolved, the power will have been used and the Queen will have had to assent to it.
If the Bill gave a role to Parliament in the Prime Minister’s request for Dissolution, it would, as others have said, be a different matter. But the Bill does not allow any involvement by Parliament. Under the Bill, Dissolution is not something done by Parliament; like Prorogation, it is something done by the Executive to Parliament. Parliament does not authorise it or have any role in it. If the Executive misuse their power, in my view the exercise of that power should be subject to review by the courts.
But in this case, as has already been pointed out, there is an even more fundamental objection. Let us suppose that the Government do misuse the prerogative power in some way. All commentators agree that, at least in theory, such a situation could happen. What protection would exist if the courts cannot intervene? There is only one source of protection in that circumstance: the sovereign. The sovereign would have to refuse the Prime Minister’s request for Dissolution. That would require the sovereign to do what everyone agrees she should be protected from doing: intervening in party politics, and in the most contentious of circumstances. If it is necessary to have protection against the Prime Minister’s abuse of the power in this Bill, in my view it should be provided either by Parliament or the courts, not by the sovereign.
I end with a more general point. A recent article in the New Statesman, under the heading “Democracy’s Last Stand”, discussed how ex-President Trump’s attempt to subvert the result of a democratic election was thwarted by the courts. The article also pointed out how rapidly Hungary, Turkey and Brazil have seen their democracies strong-armed by repressive Governments. The article asked whether the United Kingdom’s constitutional safeguards are sufficient to prevent a slide in a similar direction. It reminded readers of the politically motivated Prorogation, the demonising of the courts and the BBC, and the attempts to override the findings of independent standards and appointments bodies. One could add the use of the Henry VIII powers to bypass Parliament’s scrutiny, highlighted by two Committees in your Lordships’ House last week, and now, the ouster clause in this Bill.
I suggest that those of us who value our democratic traditions must stand up against the Government’s attempts to remove oversight of their actions by Parliament and the courts. If Clause 3 is not amended, I shall vote against its inclusion in the Bill.
Earl Leicester (Con) (Maiden Speech)
My Lords, it is an honour to make my maiden speech in your Lordships’ House. I will not dwell on the six generations of the Coke family who, in 162 years of taking their seat—or not—in this House, only mustered three speeches, two of them by my father, concerning the railways, in 1998 and 1999. As you can see, my family, who have the obstinate habit of spelling our name “Coke” and not, as it is pronounced, “Cook”, have not been over- talkative in this House.
An earlier antecedent, Sir Edward Coke, was a Member of Parliament and ultimately rose to become Lord Chief Justice to King James I. He is immortalised in one of the 12 bronze relief panels on the doors of the Supreme Court in Washington DC, where he is seen barring the King from entering Parliament. He defended common law against the divine right of the monarchy. This and other ideas of Coke’s were important to a fledgling republic; indeed, a number of them were written into the US constitution. In the English Civil War our family were, not unnaturally, Parliamentarians.
Perhaps my family was distracted from your Lordships’ House by the business of managing a large estate in Norfolk and seeing that proper use was made of its resources. We are still the custodians of that estate at Holkham, managing it sustainably and to sustain the myriad families that work there and rely on it. I have been up there for nearly three decades and have been wholly responsible for it for the last 15 years. Its prime activities are my main interests: the environment, agriculture, heritage and tourism.
In 2012 we resumed management of the Holkham National Nature Reserve from Natural England. It is arguably the most important NNR in the country. Through positive conservation and effective predator control, it yields large numbers of fledglings that survive to adulthood, and it outperforms many other sites. The greatest success has been the natural colonisation and fledging of more than 435 spoonbills, a species which became extinct in this country 400 years ago. The breeding population has doubled in the last two years. Our population of lapwings, a species that has seen a 57% decline across the UK, is back to what it was 20 years ago. This is all because of subtle management changes, trying different things and not sticking to rigid prescriptions.
While the Government have an ambition to halt declines, Holkham is reversing them. On the farm, the principles of regenerative agriculture have been put into practice this last decade. We are not organic, and probably will not ever be, though I have challenged the farm team to farm without artificial inputs by 2030. This year was the first that no insecticides were used. Nitrogen input on the potatoes was reduced by 22%, having been reduced by 10% in each of the previous two years, but they still, importantly, yielded good yields. With cattle extensively grazing the nature reserve and sheep grazing the cover crops in a six-course rotation, we are relearning the lessons that Coke of Norfolk espoused during the agricultural revolution.
I fervently believe that regenerative agriculture provides one of the main solutions for combating climate change. It is a shame that COP 26 appeared to miss the opportunity to focus on it. The woodland is actively managed for profit, amenity and increased biodiversity, using the principles of continuous cover forestry. One of my passions these last 25 years has been renewable energy. We have invested in ground source heat pumps, air source heat pumps, biomass boilers, solar and a large, 2.5-megawatt anaerobic digester that pumps gas directly into the national grid. We have not invested in wind power, principally for aesthetic reasons; anyway, there are plenty more effective wind turbines 15 miles off the Norfolk coast.
Living in Holkham Hall, one of the 10 treasure houses of England, still replete with a full and much-cherished collection from the Grand Tour, I hope to speak authoritatively on heritage matters. My degree at the University of Manchester was in history of art. After university, I spent six years in the Army. We still retain a great number of cottages, and for these we operate an ethical housing policy, letting to local people and key workers only as we attempt to retain social cohesion and village life in a popular holiday destination. The estate has embraced tourism and leisure in the last 25 years and operates a holiday park—the recipient of the David Bellamy gold award for over 20 years—and a small hotel, the Victoria Inn. We run events and cafes. I have worked in nearly all of them.
I am president of Visit East of England and a board member of ALVA, chaired by the noble Baroness, Lady Wheatcroft. None of this would be possible without the wonderful team we employ. They are our greatest asset—well trained, welcoming, espousing great values, employed for their attitude and empowered to make decisions. We have been a real living wage employer since 2017, with 290 employees on the payroll at the end of October. Personally, I tend towards a contrarian view and generally support the underdog, hence my dogged support of Norwich City Football Club. I like to challenge, and I often ask, “Why?”—perhaps too many times.
I apologise for the digression from the Bill we are discussing. I welcome the revival of the prerogative power to dissolve and call a new Parliament. This returns us to the best constitutional practices. Prerogative powers and constitutional conventions are a particular feature of our constitution. They provide the necessary flexibility and agility for our parliamentary democracy. The events of the 2017-19 Parliament demonstrated the negative impact the 2011 Act had on our parliamentary democracy and it led to paralysis. In these circumstances, the Government were unable to secure their business or return the issue to the electorate to break the deadlock because Parliament was unwilling to withdraw confidence or support an election. This meant bespoke legislation was needed in 2019 to have another election. The Bill seeks to put in place arrangements that deliver increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament.
I am hugely grateful for the warm and kind welcome I have received from all quarters of this House, regardless of political hue. I thank the staff of the House, who have been without fail all hugely helpful to me, from the discretion of the doorkeepers to the forbearance of the dining room staff when I had forgotten to pay for my dinner. I thank all those who enabled me to be here today—my family and wife in particular, and the team I leave managing Holkham—as we strive to enact our vision to make it the most pioneering and sustainable rural estate in the UK. I hope your Lordships will approve that a Coke, after 174 years of near-total silence, should once again try to stir the broth of public debate in this House.
Lord Taylor of Holbeach (Con)
My Lords, some speeches come more easily than others and following my noble friend Lord Leicester’s maiden speech, I feel I have only one principal task and that is to congratulate him on his excellent first speech to this House and tell him how welcome he is here. Not even the arguments of the coming Friday debate can take away the sense that this House, and our Benches in particular, have gained by the active membership of the noble Earl. Those of us who live nearby know the impact that he has made on Holkham Hall and its estate. For 30 years, as he said, he has been a director of Coke Estates and for the past 15 years he has been very much in control of what is a real community asset for those in Norfolk and beyond. His hands-on approach to the great house and the estate means that we have a real expert who is able to speak with experience and authority about the responsibility that we have to the past of maintaining buildings in the best condition and at the same time making them relevant to the present and the future. Perhaps I can illustrate that by referring to the work he has done on one of the finest houses in England and on the Victoria, which he referred to in his speech, maintaining its function but creating one of the best restaurants with rooms in the country. We would expect the president of the Caravan and Motorhome Club to provide facilities for them together with the cottages and holiday facilities he talked of. Holkham is the model of how to restore and engineer amenity and of how to combine modern farming with nature conservation, and we have a chance to learn from a man who has done it and knows how to do it. Not for nothing is he president of Visit East of England. As chairman of the Midlands Engine APPG Visitor Economy subgroup, I share that interest in a key economic sector.
Perhaps I should now turn to the Bill. My first reaction was to go to the Library of the House, a source of great strength to all of us who find ourselves faced with legislation we know too little about. I was particularly interested to explore further the Second Reading of the Fixed-term Parliaments Bill, which I thought might be useful, for at the time I was the Whip in this House responsible for Cabinet Office matters and I thought I might find that I had words for eating—it can happen in politics, can it not, particularly if you have ministerial responsibilities? As it turned out, that role was left not to the noble Lord, Lord Wallace of Saltaire, who is in his place, but to the noble and learned Lord, Lord Wallace of Tankerness, who took the Bill through the House.
The principle of this Bill is to repeal that Fixed-term Parliaments Act and restore the prerogative procedure. I think that we are all agreed about that. However, I sense that Clause 3 is going to lead to considerable debate on how that procedure should be resolved. I am not entirely sure that I can agree with noble Lords who feel that just leaving it to the Commons to vote on the matter is to restore the constitutional convention to the status quo ante, but I believe that we have an opportunity in the Bill at least to discuss these matters, and it is good that we have noble Lords here who have experience of them from all different aspects.
Prerogative powers and constitutional conventions are a particular part of our constitution. They provide the necessary flexibility and agility for its delivery. We in this House have a welcome role in discussing the Bill, and I hope that the debates on it in Committee and further on will provide an opportunity for the interesting notions that have been presented to the House today to be further discussed and resolved. This House has a particular role to play on the shared understanding of the convention and I hope it continues to do so.
Lord Sikka (Lab)
My Lords, I congratulate the noble Earl, Lord Leicester, on his excellent speech and welcome him to the House. I look forward to his insights on many worldly matters.
I am not a constitutional expert or a lawyer; nor am I a seasoned parliamentarian, as many others on the speakers’ list are. In many ways, I am an outsider and I offer an outsider’s perspective on the Bill. I believe that many of the concerns I will express may be shared by many lay people outside.
There is a broad public perception that Governments pass laws for their own convenience. The Bill ferments those concerns and reinforces them in many people’s minds. It does not enhance the power of the elected Chamber or the people. Possibly, it is all about enabling the Government to make a dash for an election before the glow of the coronavirus vaccine wears off and the consequences of their disastrous management of the economy and Brexit catch up with them.
The Minister referred to a desire to return to some glorious past. Perhaps that past was never really that glorious at all; if we look at the history, we see Governments cutting loose and seeking electoral advantage regardless of whether it was good for the country or not. We all know that the Fixed-term Parliaments Act 2011 was part of the coalition Government’s strategy to remain in office; there was nothing else to it really. The Minister kindly referred to the Labour Party manifesto, so I remind him of the Conservative Party’s 2015 manifesto, which referred to the FTPA as
“an unprecedented transfer of Executive power.”
Presumably now we have an executive grab for power, because all other centres of power are being weakened.
The key factor in the FTPA was that the House of Commons determined the timing of the Dissolution of Parliament. The Bill takes that away and gives the Prime Minister unconstrained power over when to call an election. If a Prime Minister can unlawfully prorogue Parliament, he can also abuse the Dissolution powers. Are there any safeguards in the Bill? It is hard to see any, especially when the courts are excluded and people cannot go to them for any help.
Under the Bill, Parliament can be dissolved by a Prime Minister who is shoehorned into office—in other words, not the leader at the general election and therefore not subject to an earlier verdict of the people. Parliament can also be dissolved by a Prime Minister whose party does not have a working majority in the Commons.
What if the Prime Minister chooses not to dissolve Parliament and to go over five years? Are there sufficient safeguards? I could not really see anything in there to assure me. At least a vote in the House of Commons offered some safeguards against abusive Dissolutions, but all that is swept away. There is nothing to prevent Prime Ministers from behaving as they did in the past: pass a very favourable Budget, bribe the people, and call a general election. We are really talking about returning to the days of electoral bribery without any consideration of the consequences for the economy or the country as a whole, which in itself is an abuse of the Prime Minister’s office.
The Explanatory Notes accompanying the Bill say that
“the Sovereign dissolved Parliament only when requested to do so by the Prime Minister, and in certain exceptional circumstances, the Sovereign could refuse to grant a dissolution.”
I hope that the Minister will tell the public at large what the “exceptional circumstances” are in which a Dissolution may be refused. When did the sovereign last override the Prime Minister’s advice? The Prime Minister basically seems to be in control. We have an adversarial political system, but which representative of the people will be called on to advise the sovereign on whether the circumstances are “exceptional” and therefore the Prime Minister’s request ought to be denied? Without suggesting democratic arrangements, the Bill leaves the sovereign open to a potential charge of political bias and subject to public opprobrium.
Clause 3, as many have referred to, is highly troublesome. It seeks to deny people access to the courts to rule on abusive Dissolutions. The inclusion of the clause suggests that the Government are concerned that people may challenge the Prime Minister’s decision, and that the Government are out to disempower the people. We live in a country where people have access to law and adjudication by the courts on most things, but on the vital issue of the Dissolution of Parliament and Prorogation the people will have no such right. Why are they being denied that right? The Minister referred earlier to elections being verdicts, but it has already been pointed out that the election comes some time after the event of Dissolution; the abuse has already taken place.
If the courts are precluded from adjudicating on the prerogative power of Dissolution, the only check on a rogue Prime Minister is the monarch. However, the Bill does not legislate on the monarch’s powers or offer any transparency or clarity on how those powers might be exercised. The only way to protect the sovereign from party politics and a charge of bias is really to empower the people to go to the courts and to empower the courts to intervene.
Overall, the Bill is part of a worrying trend of centralising power in the hands of the Executive and weakening the powers of Parliament, the courts and the people.
Lord Rennard (LD)
My Lords, the Bill gives more power to Boris Johnson and less to Parliament. It is therefore in my view a Bill that Parliament should oppose, and I remain surprised that it has so much support from the Labour Benches. When Labour left government in 2010, the Labour Party manifesto of that year was committed to the principle of fixed-term Parliaments. Labour’s opposition to the 2011 Fixed-term Parliaments Bill was clearly tactical, and the argument that it then made against it was that the proposed term should have been four years, not five.
No athlete in a race would be expected to fire the starting gun. The power to fire such a gun in the race to win seats in a general election is, I believe, a strong one. While criticising aspects of the 2011 Act, the Institute for Government said that
“for all its faults, the FTPA does stop an incumbent government from timing an election for maximum partisan advantage, resulting in a fairer contest.”
Those of us on either side of the debates on the Fixed-term Parliaments Act in 2011 were proved to be wrong in certain respects. Some of us thought that it would mean that Parliaments would generally last for five years in future. Others thought that Parliament would not be able to provide for early elections. But the general elections of 2017 and 2019 proved that we were both wrong. But I believe that the principle should remain that Parliament should decide whether there is to be an election outside an agreed regular timescale, and that a significant majority should be required for it to happen.
In our debates this afternoon, we have considered at some length issues of electoral advantage. I have great respect for the noble Lord, Lord Butler of Brockwell, and his experience as Cabinet Secretary, but, as I understand the political system, it was never the role of the Cabinet Secretary to run a party’s election campaign. Those of us who have run them would say that control over the timing of the election confers a very significant advantage to that party, and those of us who have run election campaigns with very limited war chests would say that you are at a very considerable disadvantage if you do not have control or knowledge of when the election will take place.
The principles introduced in the Fixed-term Parliaments Act have actually proved practical for the Parliaments and Assemblies in Scotland, Wales, Northern Ireland and London. I should point out that they were legislated for by the Labour Government after 1997. These principles also proved to be effective for every single local authority in the United Kingdom. The Parliament that agreed them for the governance of these places should agree them for itself.
The 2011 Act was not without faults, of course. As it was initially proposed, the 55% threshold for immediate Dissolution was a short-term fix to suit the coalition at the time—and I said so. It would have been better to have followed, straightaway, the rules that Parliament had previously set in Scotland and Wales, which require a two-thirds majority for an immediate Dissolution. Those rules have proved effective there, and the Fixed-term Parliaments Bill was changed before it become an Act.
Another problem with it was the lack of clarity over what would happen in the fortnight after a Government lost confidence when there was not a two-thirds majority for an immediate Dissolution. Again, the principle of elected Members electing the Prime Minister should have been adopted, as it was agreed by this Parliament under a Labour Government for the Parliaments of Scotland and Wales. This power might allow our Parliament to remove an incumbent Prime Minister. It might allow another Prime Minister from the same or another party to serve in their place.
I am sorry that the noble and learned Lord, Lord Clarke of Nottingham, is not in his place; were he here, I would have pointed out to him that, had we had such a rule in 2019, perhaps he might have achieved his childhood ambition and become Prime Minister. He might have been chosen by the Members of the House of Commons at that time. Perhaps it might have been possible for people in Britain to be offered the choice in a referendum of the reality of Brexit, as opposed to the glossy packaging that suggested that there were no downsides to it. As in Scotland and Wales, where the elected Members choose the First Minister, such an arrangement would, in my view, avoid the potential of dragging the monarchy into politics in an unfortunate way. Instead, we had a general election in 2019 on an entirely false prospectus—namely, that there was an “oven-ready” deal.
Another problem that we later identified with the 2011 Act was that it left in place the very short timetable of 17 working days for the conduct of an election campaign. This was no longer practical in the era of widespread postal voting, including from abroad, and with many people still needing to register to vote once a general election was called. This problem with the election timetable was eventually addressed in the Electoral Registration and Administration Act 2013, which introduced a timetable of 25 working days, and I am pleased that the Government recently accepted that this timetable must stay in place.
There were attempts in the other place to revert to the previous 17 working day timetable for general elections. Huge concerns were expressed by the bodies representing electoral registration officers and the suppliers of electoral materials such as ballot papers about a potential change to allow fewer than 25 working days to conduct general election campaigns. The Electoral Commission in its briefing on the Bill chose to highlight why a minimum of 25 working days is needed for general election campaigns. Postal voting has become much more widespread since it became an option for everyone in 2000. Many people need time to apply to vote by post, and virtually no local authorities accept electronic applications to do so. Time is needed for applications to vote by post, for postal vote packages to be sent out, and for them to be returned by polling day. This is especially true for UK voters living overseas, including members of our Armed Forces serving abroad.
A final reason why the longer timetable is needed is that, as the Electoral Commission has pointed out, 9 million people in the UK are not registered to vote and should be, or are incorrectly registered. Some 60% of people think that voter registration is automatic. They are wrong, but electoral registration should be automatic, as the right to vote is not something that you should have to apply for. Were we to introduce such a system, the calling of such elections and the fairness of them would be greatly improved.
Lord Hope of Craighead (CB)
My Lords, I will concentrate my remarks on Clause 3, the so-called ouster provisions. The clause is deceptively short and simple. There are three provisions here, as the Minister explained, and they had the support of the majority of the Joint Committee on the Fixed-term Parliaments Act, to which reference has already been made. But the chair of the Public Administration and Constitutional Affairs Committee in the other place described them as
“legally unnecessary and constitutionally unwise.”
The Joint Committee’s commentary tells us that first two provisions are there to confirm that the exercise or purported exercise of the powers relating to the Dissolution and calling of Parliament set out in Clause 2 are not to be questioned by any court. These two provisions may well be seen to be unnecessary, because that is the provision already. In the Council of Civil Service Unions case to which the commentary refers, Lord Roskill said that the prerogative power relating to the Dissolution of Parliament was not amenable to the judicial review process. As he put it, the courts are not the place to determine whether Parliament should be dissolved on one date rather than another. But in view of doubts as to whether prerogative powers can be revived, to which the noble Baroness, Lady Smith of Basildon, referred, the protection that the prerogative afforded may possibly not be available, because we would be dealing here with powers conferred by statute. So I can see that there is a case for providing the protection as to their exercise that a statutory power might not otherwise have. It is right that there should be no room for doubt on this matter, for the reason given by Lord Roskill.
The third provision in the clause is an entirely different matter. It seeks to extend the protection of non-justiciability to the “limits or extent” of those powers. As the commentary explains, it is designed to address the distinction drawn by the Supreme Court in Miller v the Prime Minister as regards the court’s role in reviewing the scope or extent of a prerogative power as opposed to its exercise. It seeks, as the commentary put it, “to clarify” that neither is justiciable in the context of decisions relating to Dissolution. This is the provision that was described by the chair of the Constitutional Affairs Committee, in what I would regard as a carefully worded understatement, as “constitutionally unwise.”
In its report, the Select Committee of this House on the constitution, of which I am a member, said that
“judicial review should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”
It went on to say:
“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”
I think that is what the chair of that committee was referring to.
I have no doubt that the Prime Minister felt aggrieved by what the Supreme Court did in Miller. So too, in a way, did I. As it happens, I was a member of the Commission that took part in the Prorogation ceremony. I felt that it was my duty, as convenor, to support the Lord Speaker’s decision to take part in the ceremony in response to Her Majesty’s command, while respecting absolutely the decision of the leaders of the opposition parties—the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby—not to do so. So it was a bit of a shock to the system to be told by the court of which I was previously the deputy president that the proceeding in which I took part was unlawful, null and of no effect. I did not see that coming.
The decision in that case was, of course, controversial. I will refrain from any comment one way or the other as to how the court applied the law to the facts that were before it and especially the remedy it chose. However, I have no doubts at all about its analysis of the law. Two fundamental principles of our constitutional law were at play in that case. The first was the principle of parliamentary sovereignty; the second was the role that the courts play in protecting parliamentary sovereignty from threats posed to it by the use of prerogative powers by the Executive. The court was entirely right to point out that the sovereignty of Parliament would be undermined, as the fundamental principle of our constitution, if the Executive could, through the use of the prerogative, prevent Parliament exercising its legislative authority for as long as it pleased. If parliamentary sovereignty is to play its role, particularly in extreme circumstances, it needs that protection.
That is what the case of Miller was all about. The crux of that decision was whether “the limits or extent”—those are the words of the third provision in the clause—of the prerogative power had been exceeded. It was not about whether, if it was within those limits, the prerogative power had been properly exercised. The commentary on this provision says that it “seeks to clarify” this point. Not at all—all the clarification one needs is to be found in Miller. What this provision seeks to do is remove that protection altogether. That is why it is not only unwise but dangerous.
I hope that I may be forgiven for quoting, as so many people do, the words of Dick the Butcher in “Henry VI, Part 2”. He said:
“The first thing we do, let’s kill all the lawyers.”
He did not like the idea that a few words scribbled by a lawyer on a parchment could undo a man’s reputation. That was just a throwaway line, perhaps in jest, but it serves as a warning about the risks to which democracies may expose themselves if they react in this way against decisions by the judges that they do not like.
I too read the article in the New Statesman to which my noble friend Lord Butler of Brockwell referred; it is well worth reading. There is a spectrum, as it put it, along which countries can move, gradually or suddenly, as the protections on which democracy itself depends are eroded, one by one. I agree with the noble Lord that gradual erosion is what seems to be going on here. Removing the protection that the courts provide in this context may seem relatively unimportant to those in this Government who would say that it is not needed anyway: “So let’s keep the judges out of it”, they are telling us. But the sovereignty of Parliament is fundamental to our democracy. Just as fundamental is the need for it to be protected against the Executive’s misuse of the prerogative, whatever it may be and whomsoever it may come from. Maintaining that protection is what the courts have been doing for centuries. We deprive them of that role at our peril. That is why I believe that the third provision in this clause should be removed from the Bill.
Lord Norton of Louth (Con)
My Lords, as we have heard, the Bill is designed to repeal the Fixed-term Parliaments Act and put the constitutional position back to what it was before September 2011. The Fixed- term Parliaments Act was, as we have heard, designed as a short-term political fix but with significant constitutional consequences. As the Constitution Committee observed, the policy behind the Bill shows little sign of being developed with constitutional principles in mind. Instead of a “fixed-term parliament Act”, we ended up with a semi-Fixed-term Parliaments Act.
The Act has provisions which are constitutionally problematic and not well understood. Section 2(1)(b) of the 2011 Act confers, in effect, a veto power on the Opposition over the calling of an early election, as demonstrated in 2019, whereas Section 2(3)(b) potentially gives the Government a let-out provision in the event of losing a vote of confidence—something not possible under the convention on confidence that existed before 2011. Confusion as to its provisions has itself been part of the problem.
I turn to the provisions of the Bill before us. Let me begin by addressing what I shall term the silence of the Bill—that is, what it omits—before turning to the need for the omission to be extended. It is a short Bill, but it should be even shorter.
A Government rests for their continuance in office on the confidence of the House of Commons. That is not peculiar to the United Kingdom; it is a feature of parliamentary systems of government. The silence of this Bill on confidence motions enables the convention that prevailed before 2011 to be restored fully. The convention was not displaced by the 2011 Act, but parts of it disappeared.
Prior to 2011, the convention was that, if the Government lost the confidence of the House, they either resigned or requested the Dissolution of Parliament. A lack of confidence could be expressed by the House passing a vote of no confidence, by defeating a vote of confidence sought by the Government, or by defeating a Motion to which the Government had attached confidence. The 2011 Act cut off the capacity for the Prime Minister to request Dissolution in the event of defeat on the last two. The Prime Minister can still designate a Motion as one of confidence and, if defeated, tender the Government’s resignation, but cannot unilaterally trigger Dissolution.
The Joint Committee on the Fixed-term Parliaments Act recommended that the principles and conventions it set out should be adopted as the basis
“for creating a new shared understanding of conventions and practices.”
The understanding would certainly be new, as the report stated that a lack of confidence could be expressed by
“Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and Estimates process”.
The problem with this is that defeats in the course of the supply and estimates process occurred in the 20th century without the Government treating them as confidence issues. The Joint Committee’s interpretation would thus not only enshrine the concept of implicit votes of confidence but expand what fell within it.
It is a relief that the Bill does not seek to follow the Scotland Act 2016 in seeking to put a convention in statute. The 2016 Act included what purported to be a convention, the Sewel convention, thus creating a contradiction in terms—a nonsense recognised by the Supreme Court. The confidence convention is a convention. It has some fuzzy contours, but its defining principle is clear. The House of Commons can remove the Government by withdrawing its confidence. If the Government fail to recognise a vote as entailing confidence, it is open to the leader of the Opposition to move an explicitly worded vote of no confidence.
Should the silence of the Bill be extended? Given that the intention is to put the situation back to what it was prior to September 2011, do we need to include provisions governing the prerogative and the exclusion of the courts from any decision to seek Dissolution? I can see the argument for the first, but not the second. As Professor Mark Elliott has noted, nothing in the 2011 Act demonstrates that it sought to abolish the prerogative of Dissolution. The prerogative may be deemed to be in abeyance and, with the provisions of the Act removed, it comes back into play. Clause 2 seeks to remove doubt as to its existence but, by the very act of doing so, creates the question of whether it is now not a prerogative power but a statutory one.
In practice, the result either way is that the power of Dissolution rests with the Crown and is a personal prerogative. The sovereign retains the power to refuse a request for Dissolution. The Joint Committee felt that the Government should consider how best to articulate the role of the monarch in the process of granting or refusing a request for Dissolution. That, I contend, is more appropriately undertaken by bodies other than the Government. The Lascelles principles came from the source most appropriate for articulating them.
The Joint Committee also heard evidence that the Lascelles principles or related constitutional conventions should be referenced in statute. In my view, that would fall foul of my earlier observations. They would cease to be conventions and would be subject to judicial interpretation unless, as with the Sewel convention in the Scotland Act, the courts deemed them non-justiciable. The relevant convention here is that Ministers act in such a way as to not bring the sovereign within the realms of partisan controversy.
As we have already heard, Clause 3 is the most contentious provision and conflicts with the Government’s goal of restoring the position before 2011. The ouster clause is designed to ensure that Clause 2 does not fall within the scope of judicial review. This is constitutionally objectionable, especially in Clause 3(c) in respect of limits and extent, for the reason just given by the noble and learned Lord, Lord Hope of Craighead.
I recall the late Lord Simon of Glaisdale arguing against a provision designed for the removal of doubt on the grounds that there was no doubt to be removed. There are shades of that in this provision. In what circumstances does my noble friend Lord True envisage that the court could conceivably intervene in the granting of a request for the electorate to exercise their power to choose a new House of Commons?
These are all matters for Committee. The Bill is a manifesto commitment and the principle has been approved by the other place. Our task is one of detailed and critical scrutiny.
Lord Mackay of Clashfern (Con)
My Lords, I very much subscribe to the last observation of my noble friend Lord Norton. The detail of what should happen in the event of the previous Act being repealed is an extremely complicated matter. Clause 2 seeks to set out what should happen, but the question about whether a prerogative can be set up again once it has been destroyed is interesting and possibly important. If there are attempts to set this up as a statutory power from then on, it may have different effects from being merely a prerogative power. For one thing, it may contain more restrictions on its exercise than would be the case in a straightforward prerogative. There is a question to answer here about that, if one wants to go back to the situation which existed before the Act we are now seeking to repeal was passed. There is no doubt at all in my mind that, once that Act was passed, the prerogative power was certainly restricted, if not completely destroyed.
The option of going to a fixed Parliament apart from this situation is sealed, in a way, by the provision in Clause 4 that terminates a Parliament after five years. There is a fixed-term Parliament in that sense as it cannot be extended beyond five years. On the other hand, it can be reduced in length by the exercise of what was prerogative power. This is best discussed in detail in Committee because it seems to me essential that something fairly detailed is understood to be the purpose of Clause 2.
Of course, that brings me immediately to Clause 3. If anything requires discussion in Committee, this certainly merits it because it has profound effects. For one thing, it is a new phraseology which, so far, I think has not been the subject of a judicial decision. There is a certain amount of talk in a case suggesting that something of the kind may be necessary if you are going to get a real ouster clause. I think the great effect of the Anisminic judgment is that it really makes it impossible to set up a protection for a decision that is not in accordance with a statutory provision in statutory cases and, of course, something of the kind may be necessary in prerogative cases as well. That sort of principle is an extremely difficult one to get round. When I was Lord Chancellor, I was of the view that it was not possible to devise a completely sacrosanct ouster clause because it was always possible to get round it by the Anisminic principle. People have sought to devise more of them since then and they may or may not be successful, but that matter really requires to be discussed fairly fully in Committee.
Therefore, it seems to me that at present the precise result of what we—certainly the Official Opposition and the Government—are agreed on is that the Fixed-term Parliaments Act should be repealed, without any desire to keep it partly in place. What replaces it and how it should be replaced is really the question. The detail that requires to be considered is such that we should prefer to do that in Committee, rather than trying to do it at Second Reading when it is the principle of the Bill that is in issue. The principle of the Bill is mainly concerned with the repeal of the Fixed-term Parliaments Act. I thoroughly agree with that. I have never understood fully how it was supposed to work. Maybe it is unnecessary to consider that further, so long as one agrees that it should no longer have effect. Precisely how to replace it is a difficult matter and would be best left, in accordance with our procedures, to Committee.
Lord Rooker (Lab)
My Lords, my theme will essentially follow the closing remarks of the noble Lord, Lord Butler. I want to start with a quote:
“the government has moved to cement its grip on power. It’s taking action against the courts, shrinking their ability to hold the ruling party to account, curbing citizens’ right to protest and imposing new rules that would gag whistleblowers and … restrict freedom of the press. It’s also moving against election monitors while changing voting rules, which observers say will hurt … opposition groups”.
That is how Jonathan Freedland, in early October, thought the BBC World Service might describe—if it was not us—the antics of Viktor Orbán’s Hungary: but it was us. Now, with this Bill restoring the unfettered right of the Prime Minister to fix the election date, it is part of a pattern, open and in front of our eyes. The reform of judicial review to stop the courts overturning unlawful decisions; the new powers for Ministers to suppress almost any protest; the widening of the scope of the Official Secrets Act; the removal of the public interest defence for journalists and sources; taking powers over the elections referee; giving Ministers powers to order the Electoral Commission to impose penalties on campaigning groups; and the open attempts to control the media via Ofcom—all are out of the Trump playbook.
In his Shirley Williams Memorial Lecture, Lord Puttnam added to the list
“an Education Bill that seeks to reduce … academic freedoms in the area of Teacher Training”.
Interestingly, in the early 1970s he recorded his conversations with Albert Speer, who had been Hitler’s architect and Armaments Minister and served 20 years in Spandau. Lord Puttnam came to understand
“‘the fascist play book’—the way democracy can be corrupted and overturned by a few malevolent but persuasive politicians, those who are prepared to exploit divisions in society with simple populist messages.”
There are many criticisms of the failure of our Prime Minister, but Johnson is clearly not out of his depth when it comes to taking a harder line on making it difficult for his Government to lose power. Now comes the personal power to fix the election date, dressed up as prerogative powers, and ruling out powers of scrutiny by the courts, under Clause 3. I am not a lawyer, but I am told that this is a super ouster—beyond an ouster clause. It even covers Ministers acting in bad faith; they cannot be challenged when acting in bad faith. So, continual vigilance is required, and this House has a major role to play. Indeed, Speer told Lord Puttnam that there is a need to develop a form of
“‘moral vigilance’ required to recognise … evil for what it is.”
Are we willing to see the pattern created by the Johnson Government to frustrate the bodies designed to keep a check on government, ignoring and overturning long-operated conventions, all to tighten his grip on power? Because that is what is happening. This pattern is formed of tiny bits, each of which, on its own, can be made to look quite reasonable, dressed up in simple slogans. Of course, nobody will admit there is a plan. All we get is a smile, deliberately tousled hair and soft tones. But there is a plan and others have seen and discussed the framework. Well, I am not buying it.
I was always in favour of fixed-term Parliaments, even when we had Mrs Thatcher in government. It seemed sensible; other countries do it with checks and balances. I freely admit, and I share some of the views of my noble friend Lord Grocott on this, that it did not work in practice. That does not mean you scrub the system; it means you change what you think has gone wrong, in the light of experience. Other nations with a decently run constitution with checks and balances can cope with fixed dates for elections. The real problem is that we are losing our checks and balances, and the unwritten nature of our constitution is being abused in front of our eyes.
This Bill is an abuse of the electoral system, designed to help rig membership of the elected House. I cannot think of a nobler cause than for this House to say that it is a step too far and we are not having it: we will change the Bill and send it back. I hope that if they send it back to us, we will send it back again, because this is a step too far and part of a pattern. It is no good saying, “Oh well, it’s only this Bill; the other things don’t matter”. The other things are coming this way, and we have to see them as part of a pattern.
Before I sit down, I want briefly to congratulate the noble Earl, Lord Leicester, on his maiden speech. I have to say, he sounded too good to be true. I freely accept what he said, but as I say, it sounded too good to be true. I welcomed his speech, and I think the House did too. He was followed by the noble Lord, who congratulated him on his practical knowledge of what happens in Cambridgeshire and the Norfolk area.
Lord Thomas of Gresford (LD)
My Lords, what a pleasure it is to follow the noble Lord, Lord Rooker, with all his passion, and to hear from him that he will, like us, push this Bill back over and over again until it is gone.
I had always understood that once a prerogative power of the Crown is lost, it is lost for ever. This Bill asserts a highly controversial and novel proposition that, by Act of Parliament, it can be declared that a previous Act of Parliament never existed; that we return to the status quo ante. Rather than enact new legislation that could not avoid the scrutiny of the courts, government policy is to obliterate the Fixed-term Parliaments Act: it never was; it never existed; Carthago delenda est. I occasionally like to speak a language that the Prime Minister might understand.
We have heard today from the noble and learned Lords, Lord Hope and Lord Mackay, about the considerable conflict among lawyers and academics over whether you can revive a prerogative power. That will lead to inevitable litigation unless, by Act of Parliament, you can exclude the courts from considering it at all. The Government exercise the prerogative powers of the Crown, but not in an absolute way. All prerogative power is subject to the law; that is part of the common law of this country. The constitutional settlement of this country is that the Executive are subject to the law, that the power to make and unmake the law is exercised through Parliament, not the Executive, and that it is the exclusive right of the judiciary to determine what is the law. That is what is called a liberal democracy. Since the civil war, this country has not been an absolutist country where the Executive pass whatever laws they wish.
In a liberal democracy, there are two overriding principles: the separation of powers and the rule of law. They have proved to be an effective protection of the safety, dignity and human rights of the people of this country. A view was expressed by a majority in the Joint Committee on the Fixed-term Parliaments Act, which considered these proposals in 2021, that Parliament should be able to designate certain matters as ones which are to be resolved in the political sphere, rather than the judicial sphere, so that Parliament should be able to restrict, and, in rare cases, entirely to exclude, the jurisdiction of the courts. This challenges fundamentally those two principles—the separation of powers and the rule of law. Noble Lords will note the committee’s view that
“Parliament should be able to designate”
which side of the line it falls. Parliament should be able to set the boundaries of what is and is not within the political sphere.
If a Prime Minister abuses the power of Dissolution, as this Prime Minister abused the power of Prorogation, the Bill seeks to ensure that the courts would be unable to exercise any control over his or her action. Clause 3(c) prevents a court examining even the “limits or extent” of the powers of Dissolution. As the Explanatory Notes say in terms:
“This is to address the distinction drawn by the Supreme Court in Miller … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”
In other words, it would prevent a court finding that the Prime Minister had exceeded his powers in requesting a Dissolution, or in any related advice that he had acted ultra vires. This tries to get rid of any control at all over the Prime Minister.
Why do the Government want to revive the status quo? In his evidence to the Joint Committee, the Minister, the noble Lord, Lord True, said:
“The long-standing position is that the exercise of the prerogative power to dissolve is not reviewable by the courts and that had been the understood position since the Bill of Rights. And obviously judgments on any Government’s action should then lie with the people rather than with anybody else”.
That is an impressive statement, but what is the “understood position” based on? I am not aware of any precedent, ever, where the point at which the Dissolution cannot be reviewed by the courts ever came up. There was no precedent for the actions of the Prime Minister when he prorogued Parliament, yet the courts did intervene and held his action to be unlawful. If the purpose of this Bill is to return to the status quo ante, that status did not anywhere justify the Minister’s assertions to the Joint Committee that it has been
“the understood position since the Bill of Rights”—
it has never been discussed.
The Constitution Committee said in its report on the Bill:
“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”
There is a school of legal jurisprudence called legal positivism, which claims that law is a human construct with no connection to morality or even justice. If the legislature, however it is elected, has passed a law, it must be obeyed. That is so if it is unjust, unwise or immoral. That is the positivist approach. It may be a bad law by some standard, but if it was added to the system by a legitimate authority, it is still a law. I am glad to see that the noble and learned Lord, Lord Etherton, is in his place, because his lecture at Gray’s Inn—the Birkenhead Lecture—pointed out that it was the defence of German judges in the Nuremberg trials that they were only applying the laws passed by their leader as the embodiment of the executive; he had of course abolished the president, the legislature and judicial review.
The common law, under which we enjoy our freedoms, derives from the traditions of natural law, as exemplified in the Bill of Rights, the American Bill of Rights, the UN convention and many other laws and human rights conventions. I was very pleased to hear the noble Earl, Lord Leicester, refer to his ancestor, Sir Edward—whom we must always call “Coke” hereafter, as I understand it—because he was one of the founders of our view of the common law.
We said we would never look back. Statutory power is what we want, clearly defined, and the consent of Parliament to its Dissolution—and that can be put before the Queen, without ever involving her in political controversy.
Lord Lisvane (CB)
My Lords, I congratulate the noble Lord, Lord McLoughlin, on his chairing of the Joint Committee and the magisterial report that it produced. It was a pleasure to give oral evidence to that committee, and also, with my noble friend Lord Butler of Brockwell, to the Constitution Committee and the Public Administration and Constitutional Affairs Committee in the House of Commons.
The Bill now before us lays the FTPA to an unregretted rest. It also seeks to restore the status quo ante by what might be called a willing suspension of disbelief—whether that will be successful is another issue. But I suggest that, in its short life, the FTPA may have damaged constitutional expectations in a way that may not be easy to repair. This was explored in some detail in the excellent speech by the noble Lord, Lord Norton of Louth.
The expectation of what might be a matter of confidence used to be fairly wide: a Government that lost the Queen’s Speech in the Commons, or lost on an amendment central to the Speech or a Second Reading of a Finance Bill, would either have to secure a demonstrative vote of confidence or ask Her Majesty for a Dissolution—and of course the official Opposition could of course take the initiative. But under the FTPA, the agreement by two-thirds that there should be an early general election immediately relegated the big confidence issues to the second division. A Government could suffer a severe defeat, but unless the FTPA was engaged, or they lost the formal Motion of confidence envisaged in the Act, they could shake the defeat off.
My concern is that the FTPA has reset expectations on what is a matter of confidence in a way that cannot now be fully restored. The Minister said in opening the debate that of course a Prime Minister can designate an issue as being a matter of confidence, and Mr Gove said something similar in the Second Reading debate in the House of Commons, but it is not quite the same thing.
I have no doubt that the applicability of the Lascelles principles will figure in Committee, and indeed we have heard something of those this afternoon. Those who are uneasy about replacing the Commons’ statutory power under the FTPA with a purported revival of prerogative power will no doubt argue for a Dissolution to be triggered only by a vote in the House of Commons —with, no doubt, a simple majority, rather than the baneful two-thirds majority. Without, at this stage, expressing a view, might I offer a word of caution? If your Lordships decide that the decision should rest with the House of Commons rather than with the monarch upon an unconstrained request from the Prime Minister, it will be essential to specify the words to which the Commons must agree.
When in my former life I saw an early draft of the Bill for the FTPA, I was horrified. It said that only defeat on a Motion of confidence should be the electoral trigger. But how was a Motion of confidence to be defined? If it carried conditions, would it still be a Motion of confidence? I could see no more certain way of inviting judicial interpretation of whether a statutory requirement had been fulfilled, Article 9 or no Article 9. For that to happen in the charged circumstances of a looming general election would be disastrous.
I am glad to say that that problem was cured during the passage of the Bill, but it follows that, should your Lordships see fit to put the finger of the House of Commons on the trigger, there must be an explicit form of words in the Bill, with nothing left to interpretation. If your Lordships do wish to empower the House of Commons in that way, I suggest that the provision must be capable of doing two things: first, a check on a Prime Minister who is inappropriately seeking a Dissolution; and, secondly, a means of getting Parliament out of a situation where the Government of the day are simply treading water.
There is widespread unease about Clause 3 of the Bill, in respect not only of its intent but whether, as a matter of law, it can achieve exactly what it says. I do not see how a resilient argument can be made that a prerogative power, removed by statute and then restored by statute, can be a prerogative power of exactly the same character as the abolished power. I will study my noble and learned friend’s views on that very closely indeed.
It seems from proceedings in the House of Commons that the parliamentary authorities have taken the view that the matter of Prorogation is outside the scope of the Bill. That view was expressed by the Deputy Speaker in the chair on 13 September last year, and it meant that Mr Chris Bryant had to move for an instruction to the Committee of the whole House in order to discuss a new clause on that subject—on which proposal he was unsuccessful.
Having spent a while as one of those authorities, I was a little surprised at that view. Scope, or relevance, as noble Lords will know, does not depend on the Long Title of a Bill; it depends on what is in the Bill and what is very closely associated with what is in the Bill. I make no criticism whatever of the learned minds who came to that view—it is always tiresome to have the old and bold trying to second-guess you—but it seems to me that there are two factors that bring Prorogation very close to this Bill. The first is that in the FTPA, which of course was an Act about Dissolution, it was nevertheless thought necessary to include in Section 6(1) a saving for Prorogation. If the Bill now before us is resetting the clock, for Prorogation to be out of scope may thus be thought curious. I should say to noble Lords that I have no cunning plan for Committee or Report on how Prorogation might be covered by the Bill, but it seems to me that this is something which needs exploring a little further.
The second factor is that in normal times—if any of us now has a clear recollection of what normal times were like—it was not unusual to prorogue Parliament and then dissolve during the period of Prorogation, so the two processes were intimately related. This may indeed be something to explore further, and I much look forward to Committee on the Bill.
Lord Young of Cookham (Con)
My Lords, it was a real pleasure for me to listen to the noble Lord, Lord Lisvane, reversing the pattern of some 40 years in the other place when he had to sit and listen in silence to me. While I support this legislation, I confess I do so with mixed feelings. As Leader of the House in the other place in the 2010 Parliament, I had hoped to leave behind an important legacy of constitutional reform with three pieces of legislation. The first was reform of your Lordships’ House, which secured a large majority on Second Reading but bit the dust when the Labour Party refused to agree to a programme Motion. The second was reducing the number of MPs and equalising the constituency boundaries, which was scuppered by the Liberal Democrats when they broke the coalition agreement. The third and final piece of my legacy was the Fixed-term Parliaments Act, now being repealed by my own party. So when my grandchildren ask what I did in that Parliament, the answer will now be “Very little”.
In agreeing with repeal, I think it important to put the Act in a slightly different context from that which we have heard so far in this debate—at times a rather cynical context. I think there is common ground that, over recent years, the Executive have claimed for themselves more and more power at the expense of Parliament with the extensive use of Henry VIII clauses, the introduction of guillotines, programme Motions and deferred Divisions in the other place and the extensive use of patronage—a theme developed by the noble Lord, Lord Rooker, in his excellent speech, although I got off his train before it arrived at the destination.
In 2010, we tried to redress the balance and shift the terms of trade away from the Executive and back to Parliament. We introduced elections for the chairmen of Select Committees, breaking the grip of the Whips, we introduced a Back-Bench Business Committee, breaking the monopoly of the Government on the business of the House, and, as part of that package of restoring power to Parliament, we took away the right of the Prime Minister to dissolve and gave it to Members of Parliament. I prefer to put the Act in that context, assigning slightly better motives than the more cynical ones perhaps ascribed by the noble Lord, Lord Grocott.
The Fixed-term Parliaments Act had other advantages. It enabled me, speaking purely selfishly as Leader of the House, to plan a package of Bills over a five-year Parliament, rather than, as previously happened, finding that in year three of four, half way through, the Prime Minister would dissolve and a whole series of Bills would be lost. In 1983, I had to introduce the same Bill twice because Parliament was dissolved half way through. The fixed-term Parliament was popular in financial circles—they do not like uncertainty—and, as has been said, it brought us into line with other democracies. However, as noble Lords have explained, it clearly has not worked. At the foot of the bed of the 2107 Parliament was a notice saying “Please Do Not Resuscitate” —but the Fixed-term Parliaments Act officiously kept it alive. So I accept that we should repeal the Act, but I put that plea of mitigation in context.
However, I paused when I reached the ouster clause in the Bill which, to use an economist’s phrase, hit me right on my indifference curve. On the one hand, I understand why the Government are concerned about judicial activism. The Minister mentioned the direction of travel of legislation and the Supreme Court decision in Miller, and I see why my noble friend and the Government want to insure themselves against such intrusion when it comes to this Bill. I see from the helpful report from the Joint Committee ably chaired by my noble friend Lord McLoughlin that the Government’s view has support from, for example, the former First Parliamentary Counsel, Sir Stephen Laws.
But there are a number of arguments to the contrary, which we have heard, and I shall mention just two. First, as the report says, non-justiciability is determined by the courts themselves and is not imposed by statute. As the noble Lord, Lord Lisvane, and Sir Malcolm Jack pointed out in their evidence,
“the courts will themselves interpret clause 3 of the draft Bill.”
So to that extent it seems to be self-defeating.
Secondly, on judicial activism and the Miller case, Prorogation could not be more different from Dissolution. The Executive’s decision to prorogue a sitting Parliament against its will so that the Executive could not be held to account during a critical time in the nation’s history was outrageous—so outrageous that it obliged me for the first time in 23 years as a Minister to leave the Government, and I had swallowed quite a lot of indigestible stuff before. The Supreme Court rightly held the action to be illegal, and it was an affront to democracy—but that is totally different from a decision to dissolve Parliament so that Parliament can be refreshed by the electorate. Indeed, what could be more democratic than such a decision? I am not a lawyer, but the noble and learned Lord, Lord Brown, is and he said it would be inconceivable for the courts to intervene. Far from being an affront to democracy, as in Prorogation, it would be the very assertion of democracy.
So, while I am supportive of the Bill, the Minister will have some work to do to persuade me of the necessity of Clause 3.
Lord Hayward (Con)
My Lords, I am late in the speaking order today, and I have therefore decided that I shall fillet the comments that I was going to make, because many of them have already been made—but I will identify those whose comments I particularly agree with.
First, I observe that it would appear that it is a good idea to distribute a magazine free of charge to all Members of the House, because I have rarely heard the New Statesman quoted so often by so many speakers.
Briefly before I come to the crux of my observations, I will return to the comments made by the noble Lord, Lord Rennard, in relation to shortening or not shortening an election period. In paragraph 2.15 the Joint Committee said:
“We would like to see a significant reduction in the election timetable, insofar as this is compatible with ensuring the register is up to date and proxy and postal votes are possible”.
I share the concerns of the noble Lord, Lord Rennard, about any form of shortening of the timetable unless there are substantial changes to election law as it currently stands—and I do not see that happening, as he did not either.
I return to the other part of the main thread of the debate: Clause 3, the ouster clause. I should of course favour this legislation. Removal of the Fixed-term Parliaments Act will allow a certain Lord Hayward to appear on radio and television any number of times, guessing what the election will result in in terms of a majority for whom and in whatever form—so it is great to abolish this legislation. What I do not understand in relation to Clause 3 is that, in the autumn of 2019 and in December 2019, had there been an election without the Supreme Court decision, the Government would not have secured a majority of the size they did, because they were able to achieve a deal and therefore were in a very different position. Therefore, why Clause 3 should be there saying “Well actually, we want to penalise the judiciary for having taken action which produced—in my mind—a larger Conservative majority” makes no sense whatever.
More importantly, as other Members of this House have said this afternoon, it seems to be bad law to set about saying, “We are going to say that these things cannot be considered by the judiciary.” As has been pointed out, it is downright difficult to achieve that phraseology anyway, but I am afraid that I agree with the vast majority of noble Lords who have spoken, including the noble and learned Lord, Lord Hope, my noble friend Lord Norton, the noble Lord, Lord Lisvane, and, albeit using different phraseology, the noble Lord, Lord Rooker, that it is unacceptable for us to try to go down that route. One of the pillars of the British democracy is the strength of our judiciary working along- side Parliament. Long may it continue to be so.
Lord Bridges of Headley (Con)
My Lords, I congratulate my noble friend Lord Leicester on his excellent maiden speech and what he has done at Holkham. I have spent many happy times there. Well, they were sort of happy. I was with my 13 year-old son trying to spot lapwings. I am not a bird-watcher and it was very cold, but it was very enjoyable—apart from us not seeing anything at that point.
If anyone wants to know why constitutional reform matters, one has only to listen to this debate and consider the rather miserable history of the Fixed-term Parliaments Act 2011. I am sorry to tread on the toes of my noble friend Lord Young but I share a belief in what he may see as a slightly cynical rationale behind this, which others have spoken of. For proof of that, one need only consider how and where this Act was born. It was conceived in the heat of the rose garden romance, and it was born in the political back room of the deal that was done around the coalition. Sir Oliver Letwin, the midwife of that coalition, has testified that the Act
“was to enable the coalition to be formed. One of the principal demands of the Liberal Democrat side of the coalition, when we came to discuss the whole proposition, was that there should be no ability for the larger of the two parties—the Conservative Party—within a coalition Government to spot the moment when it would be convenient to ditch the coalition by seeking a dissolution.”
With due respect to my noble friend, I see that deal as a dark day for our Conservative Party, which I thought would not treat the constitution as a bargaining chip in political horse-trading.
Of course, some tried to give the Act more credibility, as others have today, by dressing it up in the clothes of constitutional theory. The best example of this was Mr Nick Clegg, former representative of the hard-working people of Sheffield Hallam, now representing the billionaires of Silicon Valley. It is worth reminding ourselves of what he said when he presented the then Fixed-term Parliaments Bill at Second Reading:
“There will be no more feverish speculation over the date of the next election, distracting politicians from getting on with running the country. Instead everyone will know how long a Parliament can be expected to last, bringing much greater stability to our political system. Crucially, if, for some reason, there is a need for Parliament to dissolve early, that will be up to the House of Commons to decide. Everyone knows the damage that is done when a Prime Minister dithers and hesitates over the election date, keeping the country guessing. We were subjected to that pantomime in 2007. All that happens is that the political parties end up in perpetual campaign mode, making it very difficult for Parliament to function effectively. The only way to stop that ever happening again is by the reforms contained in the Bill.”—[Official Report, Commons, 13/9/10; col. 621.]
I only hope that Mr Clegg gives Mr Mark Zuckerberg better predictions, for we all know what happened two years later: feverish speculation over the date of the election, distracted politicians unable to get on with running the country, and no one sure how long the Parliament would last. What was the reason for that parliamentary gridlock? As others have said, before the Fixed-term Parliaments Act reared its head we had a simple system, which my noble friend Lord Norton set out. In essence, when a Prime Minister lost the confidence of the other place, there would be a general election and, if the Prime Minister chose to call a general election, we would have one. Those two simple thoughts fuse into one big point, which my noble friend Lord Strathclyde made: trust the people. If the people’s representatives lose confidence in the Government, or if the Prime Minister wishes to renew the Government’s mandate, it is the people who are put back in control. No faction in Parliament or judge in a court could prevent that from happening.
That was the system which we had before. Therefore, it is entirely right that we should go back to it. I agree that trying to turn the clock back—or, perhaps more aptly in this case, trying to put the toothpaste back in the tube—obviously raises all manner of legal questions which I know set racing the pulses of noble Lords, and especially noble and learned Lords. On a matter as important as this, of course it is right that we kick the tyres of what is proposed. At first, I was quite queasy, as others are, when I read of the ouster clause. However, the more I read—not as a lawyer—the more I sensed that this is an exceptional issue on which an ouster makes sense.
I hear the points about Article 9 of the Bill of Rights, but in this case, we should leave it beyond all doubt that the courts cannot thwart an election. To achieve that aim, I have yet to hear any credible alternatives to the ouster clause as written in the Bill, so I would keep it as it is. Sir Stephen Laws told the Joint Committee:
“It would be nice to have neatly focused ouster clauses that you could justify in relation to what they actually apply to. But that is not a thing that is possible anymore, because if you try and draw some distinction as to where the ouster clause will or will not apply, you will end up with the courts using that distinction in order to circumvent the ouster you are intending to create.”
The Dissolution Principles document strikes me as also obviously necessary, and I was pleased that the Government have accepted that the Prime Minister requests a Dissolution. The document’s simplicity is critical. Trying to enshrine the Lascelles principles, or codify what is to happen in a multitude of scenarios, would create complexity and uncertainty, and could do what we all wish to avoid: drag the monarch into politics.
Let me end where I began. A previous Government ran headlong into constitutional reform, riding roughshod over processes and conventions that may have had flaws but maintained that clear link between Parliament and people. The sooner we get back to the previous system and restore that link, the better.
Lord Lansley (Con)
My Lords, I am very glad to follow my noble friend and like him, of necessity, I come to bury the Fixed-term Parliaments Act, not revive it. It has been a privilege to listen to so many excellent speeches this afternoon, not least the maiden speech of my noble friend Lord Leicester. As a fellow East Anglian, I too have much enjoyed visiting the Holkham estate in years past. We look forward to his contributions here as well.
As we get towards the latter stages of this debate, I have reached three hesitant conclusions for Second Reading, which should take us towards thinking about the Bill further in Committee. If the Government believed that the prerogative was in abeyance, they should simply have repealed the Fixed-term Parliaments Act. Lo and behold, the personal prerogative of the sovereign would be revived in the way that it existed previously. Clearly, they did not believe that, which is why we have the legislation in the form that it is rather than a simple repeal. Therefore, we must conclude that we are seeking to set statutory provisions around a defined personal prerogative of the sovereign. We all want the personal prerogative of the sovereign to be responsible for the Dissolution of Parliament and to be untrammelled and not interfered with, but equally we want it to be so precisely delineated that the sovereign is not drawn into political controversy as a consequence.
My reason for participating in this debate is that we looked at the question of the prerogative at length during debates on the Trade Act. The position I come to it from is this: every time Parliament comes into contact with the prerogative in statute, we should not necessarily abolish it because, as with the Trade Act, we may think it quite right for there to be an executive responsibility, but we then have to make it accountable. So my second conclusion is that, here we are, putting a statute in place to govern the exercise of a prerogative—particularly the exercise of it by the Prime Minister, of course, rather than the monarch—and we should hold the Prime Minister accountable to Parliament, because that is where the authority comes from. We have to defend the sovereignty of Parliament.
Therefore, what does that accountability look like? It ought to be a simple majority of the House of Commons. We can dispense with some of the more unhelpful arguments about the Fixed-term Parliaments Act and the supermajority. We will not go back to gridlock as a consequence of that because there is no supermajority. A simple majority gets us to precisely the position that we want—namely, where a Prime Minister who has a majority in the House of Commons will get his or her way, and that should be the case. However, we also have to say that if a Prime Minister has not got a simple majority in the House of Commons, they should not necessarily get their own way. Therefore, my third conclusion is that we should put such a simple majority into the Bill.
I encourage noble Lords not to think about the last coalition, which I think history will treat more kindly than it has so far, but to think forward to the next one. Let us imagine a day when there is a coalition where the Prime Minister comes from a party that has significantly less than a majority in the House of Commons but has created a coalition. Should that Prime Minister be able to go to the palace and ask for a Dissolution without any scrutiny whatever? Would this not be an abuse? Is it not essential that any such coalition in the future—we have to anticipate that there may be such a thing—would have to re-enter exactly this territory? Would we not future-proof the Bill if we put a simple majority in the House of Commons into it? Would we not create the constitutional environment in which a coalition could be formed if needed? Coalitions ought to be about exactly that kind of situation; otherwise, I do not think that we have properly done our job in anticipating the circumstances that this legislation may pertain to and preparing it for that possibility.
Baroness Noakes (Con)
My Lords, in my time in your Lordships’ House, two periods stand out as painful memories, and both are addressed by the Bill. The first is of the period of coalition government between 2010 and 2015. While these Benches rejoiced at the end of the period of Labour rule, many of us found it hard to support the coalition wholeheartedly. In particular, the coalition agenda had a disproportionate focus on constitutional reform, which inevitably sapped energy away from more important things. I was very sorry to hear my noble friend Lord Young of Cookham, who is leaving his place at the moment, claiming some credit for that. Of course, there was Nick Clegg’s futile attempt to reform the House of Lords, which fortunately ran into the sand and never got past a Second Reading in the other place. The time of both Parliament and the country as a whole was wasted on a referendum on the alternative vote system. The wheels came off that when the British public had their say.
At the time, the Fixed-term Parliaments Act did not seem to be the worst of the constitutional measures that sailed under the convenience flag of the coalition, but its weaknesses emerged over time. As we have heard, it has produced only one five-year fixed-term Parliament, and that was in order to hard-wire the coalition in. Whether or not that was, on balance, a good thing for the country is a moot point at best. After 2015, we had two elections in less than five years—so the Act failed in its initial purpose.
The 2017 election was an act of self-harm by my own party—I freely admit that—but the second, in 2019, is the source of my second painful memory. Its final result, when it was finally called, was a triumph for democracy and the good sense of the British people, whose message was clear, and that included getting Brexit done. But the journey to that election was truly painful and laid bare the flaws of the Fixed-term Parliaments Act.
The requirement for a supermajority and the narrow path laid out for a no confidence Motion in the other place before an election could be called led to chaos in Parliament in 2019. The Government could not get their business through, could not call a general election and were harried at every turn by both Houses of Parliament, set on defying the outcome of the 2016 referendum. I still bear the scars of what happened in your Lordships’ House, as I am sure my noble friend the Minister does, and I certainly hope never to experience its like again in my remaining time here. For these reasons, the Bill has my wholehearted support. We must never again risk the mayhem of late 2019. That is why I fully support Clause 1, which removes the Fixed-term Parliaments Act from the statute book—it can be written out of our history.
The logical next step is to reinstate the status quo ante. As we have heard, Clause 2 does this through the revival of the royal prerogative. I believe that anything that diverts from that straightforward aim, including fettering the royal prerogative with parliamentary processes, runs the risk of unintended consequences. It is conceivable that a Government might not have a majority, could not get a vote through the other place and could be held to ransom, as they were in 2019, by a Parliament set on thwarting their will. That year showed us that the unthinkable can indeed happen. The previous system worked well for Governments of all parties, and I am confident that it will work well again. We should simply revive the royal prerogative and not invent something else around it.
I also support Clause 3 of the Bill, which expressly provides for non-justiciability. I do not believe that it should be seen as an ouster clause, because it is generally accepted that the likelihood of the courts challenging the monarch’s personal prerogative is very small. There should be nothing to oust. But a small likelihood is not a zero possibility, and recent judgments should make us wary of where the courts might want to go in future—we clearly cannot rule out future judicial activism. I believe that we should put that question beyond any doubt by enacting Clause 3.
The other place has already expressed its clear view on this short and simple Bill. When it debated it, it did so in the light of all the relevant issues that were surfaced by the excellent Joint Committee on the Fixed-term Parliaments Act, its report and the Government’s response. It also did so in the light of the points raised by the Public Administration and Constitutional Affairs Committee in the other place, and I do not believe that any new issues have been raised by your Lordships’ Constitution Committee in its recent report, although I look forward to hearing the noble Baroness, Lady Taylor of Bolton, in due course.
Your Lordships’ House is always entitled to ask the other place to think again, but I suggest very gently to noble Lords that doing so when the result is not likely to change is not a good use of your Lordships’ time. I hope that this House will not impede the Bill’s journey to Royal Assent.
Lord Cormack (Con)
My Lords, I always enjoy following my noble friend Lady Noakes. I frequently disagree with her, and I am afraid I will disagree on certain issues this afternoon, but she is a meticulous parliamentarian and we are very fortunate to have her with us.
I speak with a certain sense of nostalgia. I made my maiden speech in your Lordships’ House on the Fixed-term Parliaments Bill. I damned it with faint praise, but of course, as a new Conservative Back-Bencher, always anxious to be compliant, I gave it my support.
No Parliament can ever bind its successor. What we are doing is not in any sense without precedent and it is entirely acceptable that we should seek to take this unhelpful legislation off the statute book. I would have preferred a straightforward repeal. That I could have supported without any real reservations. After all, in the 2010 general election, all parties but the Conservative Party pledged themselves to fixed-term Parliaments and even the Conservative Party was not outright hostile to them. In 2019, both the major parties —Conservative and Labour—pledged themselves to repeal. That would have been good.
Of course, in the old system which we are seeking to return to, there was no magic wand for any Prime Minister. I intervened on the noble Lord, Lord Newby, to remind him that 2017 was not exactly a resounding success for our party. I have vivid memories of 28 February 1974, which was the first election at which I had to defend the seat I had won in 1970. If noble Lords remember, there was great controversy as to whether that election should take place. I remember attending and speaking at two heated meetings of the 1922 Committee in another place. In the first meeting, everybody seemed to want a general election on 14 February, apart from Sir Stephen McAdden and me. At the next meeting, we had withdrawn our opposition, knowing we had lost, and the election was called for the 28th. The Prime Minister of the day was roundly criticised for his slogan, “Who governs the country?”. “You do”, he was told, “That is what you were elected to do on 18 June 1970.” We all know what happened: an inconclusive election but a real defeat for Edward Heath, who never came back as Prime Minister.
While in this context I can accept this Bill and give it my support as far as the abolition of fixed-term Parliaments is concerned, unlike my noble friend Lord Bridges of Headley, whose speech I listened to with fascination and much approval, I cannot support Clause 3. William Wragg, the chairman in another place of the Public Administration and Constitutional Affairs Committee, had it right that this is unnecessary. To me, it smacks of the naughty schoolboy who has been rapped on the knuckles by his teacher then pulling the teacher’s chair away so that he falls to the ground. It is an act of spitefulness at worst, humorous revenge at best, but constitutionally, it is unacceptable and wrong. I was glad to hear my noble friend Lord Lisvane—I deliberately call him that—in his excellent speech make some very powerful points in this context.
If this clause remains in the Bill unamended, like the noble Lord, Lord Butler, I will not support it, because it has dangerous precedence. The reason why I think that is in effect summed up by three reports published by your Lordships’ committees in the last 10 days. I here associate myself very much with some of the sentiments of the noble Lord, Lord Rooker. There is the report from the Constitution Committee, about which the noble Baroness, Lady Taylor, will speak later, on the Dissolution and Calling of Parliament Bill. However, the title of the report from the Secondary Legislation Scrutiny Committee says it all: Government by Diktat: A Call to Return Power to Parliament, as does the report from the Delegated Powers and Regulatory Reform Committee: Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. We are at a dangerous crossroads. There is a real danger of Parliament becoming the creature of government. The noble Lord, Lord Thomas of Gresford, talked in his very interesting speech about the separation of powers. We do not have separation of powers such as they have in the United States; here the Executive are drawn from the legislature. Therefore, there is in every parliamentarian’s thinking, “Do I go against my Government? Do I break ranks with the Official Opposition?” The most troubling development of my 51 years in Parliament has been that what was a vocation to public service has become a job. Far too many entering Parliament do so feeling that they will fail if they do not get on to the Government Front Bench. There is that dichotomy and tension. In that tension, it is easy for a Government to try to use Parliament rather than be accountable to it. There is an enormous difference between those two states.
We should never forget, in the immortal words of Edmund Burke, that the price of liberty is eternal vigilance. We in Parliament have a duty to be eternally vigilant, to hold the Government to account. We in this House, quite rightly, have very limited powers; we can seek only to ask people to think again. However, while I accept the basic premise of this Bill without opposition, Clause 3 is fraught with danger. When we come to Committee, we must ask the other place to reflect on it and what it implies, and to think again.
Baroness Bennett of Manor Castle (GP)
My Lords, like the noble Lord, Lord Lansley, I have noted the mood of the House that we have genuinely come together today to bury the Fixed-term Parliaments Act, not to praise it. Many noble Lords tell your Lordships’ House that they support this Bill and the burial of the Act in the interests of democracy. I am sure that they are honourable men and women, who support the status quo in our society and say they want to restore things to just the way they were.
That is not my position. Like the noble Lord, Lord Newby, I know that the good is being buried with the bad with the abolition of the Fixed-term Parliaments Act. As the noble Lord said, the majority of the world’s democracies have fixed-term Parliaments—countries with modern, functional, democratic constitutions. None of those adjectives can be applied to the UK constitution, with or without the Fixed-term Parliaments Act. A Prime Minister who can call an election, with or without the support of a parliamentary majority that put him or her in place, has the advantage. As the noble Lord, Lord Hayward, said, shortening the election period would only magnify that advantage.
Of course that advantage can be lost, as the noble Lord, Lord Cormack, pointed out to the noble Lord, Lord Newby. But it is usually significant and often decisive and gives great benefits, particularly in fundraising, which is so important to the outcome of our elections—the country gets the politics that the few people pay for—and in planning, given the costs to opposition parties, which must plan just in case without the clarity of a known timetable. My political memory goes back to Gordon Brown’s election that wasn’t, and a living room filled to the ceiling with paper that was bought in case of the need for freepost leaflets that were never used for that purpose. That is the practical politics of a growing challenger party.
None the less, I am not going to go further down the route of arguing against the sense of set election times; that is not an argument I am going to win today. I will turn instead, as many noble Lords from all sides of your Lordships’ House have, to focus on Clause 3. Many expert legal minds have chewed over the detail and will continue to do so. I want to focus more on the principle. Why are the Government so concerned about their behaviour being judged against the standard of law? Surely that is what the rule of law is all about. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that Clause 3 would ensure that the courts were relieved of the embarrassment of being drawn into a sensitive area. Surely protecting the people, the constitution and the country from unlawful decisions is the role of the courts; we do not need them for the easy stuff. That they have become, as some see it, more active is, I suggest, because of the law-breaking at the centre of government becoming more extreme, the Executive chafing against the limits of control from the rights won by the people over centuries of campaigning—human rights that the Government are keen to destroy. This is not judicial activism but judicial defence of the law.
The noble Lord, Lord Grocott, noted that it was the poisonous distrust among the coalition partners that created the Act that we are working today to abolish. I do not need to quote the opinion polls. It is a well-known fact that poisonous distrust is also the people’s attitude towards our politics and politicians—a distrust that led to the desperate desire to “take back control” in 2016, a desire very clearly continually being frustrated by the lack of a democratic constitution and the concentration of power and money in Westminster. Unlike the noble Lord, Lord Thomas of Gresford, I do not regard “novelty” as a negative term. I desperately want the novelty of democracy in the UK.
Why are our politics so poisonous? I draw your Lordships’ attention to the recent coalition negotiations in Germany, where three parties from very different ideological starting points negotiated the formation of a Government and a platform for it. Yes, it took a little while. Talks proceeded and talks were concluded. I note the important comments of the noble Lord, Lord Lansley, about how British politics might look different—a little more like Germany’s in future—without even a change of electoral system. Around the country, there are 13 local councils where Greens are part of what are known as rainbow coalitions, the very kinds of structures that he was imagining. That is functional, grown-up, democratic politics—not something we have much experience of here in Westminster. Here we have a see-saw from one side to the other, and parties seeking power without principles or policies attached to them.
It is tempting to blame individuals—I promise you that I do—but this culture has persisted over many years. My thesis is that the problem is the system. The checks and balances in the UK are deliberately weak, because we have a feudal monarchy with occasional bits of democracy bolted on, scraps that were thrown to the people when the pressure became too great over centuries. The whole Bill is an attempt to knock off a bit of that bolted-on democracy and to test how far the Government can get away with taking back power from Parliament, the courts and the rule of law. The noble Baroness, Lady Noakes, rather gave the game away when she spoke about the events of the past—about Parliament defying the will of the Government.
The Minister acknowledged that it was only after pre-legislative scrutiny that it was ensured that the law provided that Dissolution was an automatic trigger for a defined polling date. But what happens if there is an emergency, real or created, such as a pandemic or a war? What if it is said that an election cannot be held in these emergency conditions—which are all too likely to be real, or easily created, in this age of shocks? Maybe this would be an act of obvious bad faith. But then redress against actions in bad faith is explicitly excluded by Clause 3. I can sense the scoffing, although my comments very much take the direction of those of the noble Lord, Lord Rooker. But would it be so surprising from a Prime Minister who advised the monarch to unlawfully suspend Parliament; from a Prime Minister who planned to break international law, and was stopped from doing that only by this unelected Chamber; and from a Prime Minister looking in the policing Bill to end the right to protest, in the Elections Bill to take over the Electoral Commission and suppress the votes of his opponents, and in a promised judicial review Bill to further reduce the rule of law?
The Turkish thinker Ece Temelkuran, speaking about the West, said that,
“some … choose to believe that their mature democracy and strong state institutions will protect them”
from dictatorship. She warns of “dark dawns”, such as Turkey has experienced, being experienced possibly anywhere. We do not have a mature democracy, we do not have strong state institutions and we are not protected, and, if Clause 3 remains in the Bill, we will be even more vulnerable.
Baroness Pidding (Con)
My Lords, the government Bill before us today restores the democratic nature of how our parliamentary system works and how elections can be called. We are the custodians of democracy, and elections are pivotal to this. The Bill makes provision for the Dissolution prerogative to be revived and, in doing so, ensures legal, constitutional and political certainty around the process for dissolving Parliament in future. It is a return to the tried and tested traditions that worked so well in the past, before the Fixed-term Parliaments Act.
The process of dissolving Parliament and calling a new Parliament was changed in 2011 to help make the coalition Government more resilient. It was brought in under specific circumstances, providing us with relative political stability at a time when the country was facing economic uncertainty. However, over the past decade, the political and economic landscape has changed significantly and has rendered the Act unfit for purpose and redundant. We must not risk the future return of a zombie Parliament such as we saw between 2017 and 2019, which caused exasperation in the general public. If there is gridlock in the other place, it is only right that the question is taken back to the people, ensuring that the country is not once again held in a state of paralysis by a few hundred individuals.
The Fixed-term Parliaments Act served its purpose. However, politics and time have moved on. As there was no sunset clause included in that Act, it is only right that we take steps to repeal it. It is for this reason that I welcome the return to a robust system.
I understand that some are concerned about the powers that the Bill returns to the Prime Minister, theoretically allowing the Prime Minister of the day to call elections when it is most politically convenient to them. On this I have two points. First, the Bill limits Parliament to five-year terms, so places a time restraint on the Government. Secondly, I remind noble Lords of the outcome of the 2017 general election, which some on this side of the House will remember with a shudder, while I suspect others may have fonder memories. Elections are risky endeavours and should not be taken lightly, and the Bill does not change that. The Bill strengthens our democracy, making both Parliament and the Government more—not less—accountable to the British public.
There is another consideration that I wish to raise. The Bill was part of the Government’s manifesto. The 2019 general election gave the Prime Minister the mandate to deliver on his promise to the British people that their express instruction would never again be perversely frustrated by factionalism within Parliament. The mandate given to the Government to deliver on their pledge of repealing the Fixed-term Parliaments Act is unassailable. Given the swift passage of the Bill through the other place by those who will be directly affected by it once it is given Royal Assent, I hope that others here will share my view that it is not for us to frustrate it.
We enjoy a privileged position that we should endeavour to use in the pursuit of strengthening and safeguarding our democracy. The Government’s Bill gives us an opportunity to do so and I will therefore be supporting it.
Baroness Taylor of Bolton (Lab)
My Lords, I very much welcome the Bill. I was never a fan of the Fixed- term Parliaments Act and, indeed, never a fan of fixed terms, whatever the manifesto said at any particular time.
We should start by reminding ourselves of how we got that legislation in the first place. It was a simple, blatant political fix between the Conservatives and the Liberals, between Cameron and Clegg—I do not know how many other people were consulted. As a former Chief Whip I have no problems with a political fix, but please do not dress it up as some constitutional principle because it was never that in the first place.
The Constitution Committee, which I currently chair, was very temperate in its language at the time. It said, as the Minister reminded us, that the Fixed-term Parliaments Bill
“owed more to short-term political considerations than an assessment of constitutional principles.”
I think that is the polite way of saying “a political fix”. Clearly, the committee was quite right in assessing the longevity of that legislation. As we have seen, it was proven that it was possible for a Government—for a Prime Minister—to get around the provision, so the Minister was quite correct when he said it was a political experiment that failed.
So, here we have the withdrawal of that legislation and, as I say, I welcome that. However, the repeal is the easy part—we can all agree that that is simple; we are now entering new territory. In the Constitution Committee’s report we say that it
“touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”
Before I go into the conflict and the details, particularly Clause 3, I say at the outset that we should all welcome the clarity of a five-year term for any Parliament; I think most of us will be happier with that. In respect of other parts of the Bill, it is not a case of being happy with them so much as hoping that they are workable.
There has been a lot of discussion about whether it is possible to return to the pre-Fixed-term Parliaments Act provision. Can a prerogative that has been abolished be reinstated? In some respects the Government have adopted a belt-and-braces attitude: they have a statutory provision and the ouster clause. That aspect of Clause 3 is clearly causing not just academic concern but concern on all sides of this House, and it will have to be addressed in Committee.
I think we all agree that we need to keep the Monarch out of all the potential political considerations. I remind the House what the Constitution Committee said about Clause 3, because it is extremely relevant to the discussions we will have later:
“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament. On the one hand ouster clauses should provide legal clarity about the ability of the executive to make decisions which may be considered more appropriate to political rather than judicial deliberations. On the other hand, judicial review”—
this is important—
“should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”
We go on to say:
“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”
To build on what the noble Lord, Lord Butler, was saying, the experience of the last few years tells us that exceptional circumstances and events are not as exceptional as we might have expected. We need to consider how to make sure that the balance that is required is maintained and workable. There are dangers there. They have been highlighted in the debate today, and they will be looked at in great detail in Committee.
There are just three other points that I want to make. The most important concerns the issue raised by my noble friend Lord Grocott. I was very surprised that the House of Commons gave up any say whatever in the calling of an election. As I say, I did not like the Fixed-term Parliaments Act but it did give MPs that power and that say—although not to the extent that many people suggested—so I was surprised that the House of Commons did not reinstate at least some kind of confirmatory vote in the House, should the Prime Minister decide to call an election. I am not sure how much difference it would have made, but in the exceptional circumstances that we can all perhaps envisage, it could have been possible.
Secondly, I welcome what the Minister said about taking on board the concerns of the Scottish and Welsh Governments about possible clashes of election dates. That needs restating and underpinning in some way because it could create some significant problems.
Thirdly, in early September the Constitution Committee published a report on the need to review and update the Cabinet Manual. The Minister indicated when he will respond to our report on the Bill, but he has not yet responded to that report. The Government’s response is significantly overdue, and I hope we can get some indication of when that review will take place. But it is also important that we get an acknowledgment that Parliament and parliamentary committees should have some say on the content of the Cabinet Manual. It is important that the Dissolution principles we have been discussing on the fringes of this debate are part of that, that they can be discussed by Parliament and that Parliament can have some influence there.
Finally, I remind the House that the Constitution Committee has long emphasised that constitutional change should be able to stand the test of time. The Fixed-term Parliaments Act did not do that. I hope this House can make sure that this Bill is in a fit state to pass that test.
Baroness Stowell of Beeston (Con)
My Lords, as the final Back-Bench speaker, I cannot help wondering whether I have been so placed because I supported the Fixed-term Parliaments Act when the Bill came through your Lordships’ House. While it may have been a political convenience for the coalition Government, as some have argued in this debate today, I believed in it, and I spoke up for it at every stage, as a Back-Bencher and a new Member of your Lordships’ House. I did that not because I particularly favoured fixed-term Parliaments—I do not. I supported the Bill because I saw that it was one of the few structural changes that we could make to our political system to show the public that we were serious about putting their interests before our own. This was, in my view, essential following the financial crash of 2008, the expenses scandals of 2009 and the crises in public confidence across all aspects of politics and institutions that are meant to serve the public interest. Indeed, I was not alone: fixed- term Parliaments featured in the Labour and Lib Dem 2010 general election manifestos, broadly for the same reasons—although it seemed to me that, once the Bill arrived in your Lordships’ House, the Labour Party seemed less convinced about them by then.
To me, alongside behavioural changes, we politicians needed to identify some meaningful structural changes that would favour the public interest, even though, from the perspective of parliamentarians, they were not broken—and I say that again. I made it clear during the passage of the fixed-term Parliaments legislation that the system for calling elections that we had before was not broken; the reason to change it was to give up some power for the benefit of the electorate.
All that said, I am not going to argue against the Government’s decision to repeal the Act. It has not worked, and I think that it needs to go. However, if we are not to perpetuate the problem which fixed-term Parliaments were meant to help solve—at least according to my view and that in the Labour and Lib Dem 2010 manifestos—we must make sure we understand why it did not work and learn the correct lessons.
I pay tribute to my noble friend Lord McLoughlin and the Joint Committee, which considered this matter in detail, as well as the other committees of your Lordships’ House, particularly the Constitution Committee, chaired by the noble Baroness, Lady Taylor of Bolton. But even with the benefit of those committees’ work and all the constitutional experts and lawyers in your Lordships’ House who have spoken today, our biggest risk is failing to see the bigger picture. We must not lose sight of that as we scrutinise this Bill in detail.
As the final Back-Bench speaker, allow me to paint with some broad brushes. The value to the voters of fixed-term Parliaments was some certainty that the Government and political parties would not be distracted by a general election, at least for a while, and certainty that the Government of the day and all political parties would have to face the electorate on a predetermined date, whatever the political conditions at that time—something that has already been said by other noble Lords today. Although fixed-term Parliaments meant certainty for the electorate in principle, in practice, as we have heard, the legislation meant the Prime Minister relinquishing power to Parliament—or, more specifically, to Members of the Commons—to decide when it would be in the public interest to undo that certainty to achieve greater clarity from the voters. Once enacted, MPs were given the power to override what the electorate had determined at the general election by way of a vote of no confidence or a two- thirds majority in favour of an early election.
The basic safeguard was our assumption, I guess, that in order not to scupper voters’ impending support via the ballot box, MPs would not seek to force a general election unless it made sense to the electorate that they did so—in other words, if there was a problem which was preventing effective governance of the country which could not be resolved without clarity from the electorate. That principle seemed to work okay in 2017, when Theresa May, as Prime Minister, could see that getting the necessary legislation through Parliament to enable Brexit would be near-on impossible. The opposition parties might not have agreed with her intentions about Brexit but, in line with all expectations and like all opposition parties throughout the ages, they did not give up the opportunity of an election when it was offered to them by the Prime Minister.
As we all know, things did not work out quite as Theresa May planned. I believe that that was not because, as some have argued already, she was opportunistic but because during the campaign the voters were left uncertain and unsure about the various party leaders and what they offered, and delivered a result that was even less clear than before. That lack of clarity from the voters was a message to the political class to sort ourselves out, but instead, we all turned inwards: Parliament and the Executive engaged in battle, and parliamentary gridlock ensued. Whatever anyone thought of Mrs May’s Government or her attempts to secure Parliament’s agreement to her Brexit deal, I think she was vindicated in her belief that, without a clear majority, Parliament would not deliver the will of the people.
By the time Boris Johnson succeeded her in 2019, normal parliamentary rules and political conventions had collapsed. It was clear that a general election was needed, but Parliament refused. Whatever noble Lords think about Boris Johnson’s tactics when he succeeded Mrs May, his efforts to force a general election were rewarded with clarity from the electorate.
Unlike most other noble Lords who have spoken, the reason why I think the Fixed-term Parliaments Act needs to be repealed is not that there is anything wrong with the legislation in principle, although I am sure that some points of detail could have been improved, but, sadly, that Parliament sought to use the legislation to its own advantage when it was out of step with the majority of the electorate—not just those who had voted to leave the European Union but the many other voters who just wanted Brexit to be dealt with, so they could move on. That is a dreadful indictment on us all, and it is the lesson that I think we need to show that we have learned.
As much as I regret the demise of a structural change to our system which I believed was in part a response to voters’ lack of confidence in Parliament, I think the only way forward now is to go back to what we had before and concentrate on behavioural changes which show how we are motivated by serving the public interest. That is why I hope very much that noble Lords, however well intentioned, do not bring forward amendments during the passage of this Bill to give the House of Commons the power to decide whether a Prime Minister can dissolve Parliament and call a general election. In my mind, that would not improve matters of public confidence in Parliament; it would make matters worse, because it would appear that this House is driven by its opinion of the current Prime Minister, not by what best serves the long-term interests of the public at large.
Lord Wallace of Saltaire (LD)
My Lords, I take issue with the repetition of the phrase “tried and tested” by the Minister and others to defend prerogative power. The British people, the Minister declared, lived with the previous system for centuries. For several of those centuries, this country was at best semi-democratic. In the 17th century, as the noble Earl, Lord Leicester, reminded us, Chief Justice Coke stoutly defended the rule of law against the royal prerogative. Parliament’s resistance to the royal prerogative led to civil war and the execution of the king, followed 40 years later by the expulsion of his second successor and the invitation to his Dutch son-in-law to become king instead. Our 18th century political system was highly corrupt, with bribery and patronage underpinning government. I hope that that is not a tried and tested system to which anyone would like to return us.
Reform in the 19th century made for higher standards and greater democracy, almost always against the entrenched resistance of the Tory party. Throughout the past 400 years, as the noble Lord, Lord Grocott, remarked, the whole history of Parliament has been the transfer of powers from the monarch to Parliament. I challenge the Minister to list for the House the occasions on which Parliament has legislated to restore prerogative powers.
Two new reports from committees of this House have expressed deep concerns relevant to this debate. The Delegated Powers Committee last Thursday published a report called Democracy Denied? The Urgent Need to Rebalance Power Between Parliament and the Executive. It said that parliamentary democracy is
“founded on the principles of … parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament … The shift of power from Parliament to the executive must stop.”
The report of the Secondary Legislation Scrutiny Committee, in parallel, is entitled Government by Diktat: a Call to Return Power to Parliament. It declares:
“A critical moment has now been reached when that balance”—
between Parliament and the Executive—
“must be re-set: not restored to how things were immediately before these exceptional recent events”—
by which it means Brexit and Covid—
“but re-set afresh”.
Both of these committees remind us that limited government—or liberal democracy—depends on checks and balances among three constitutional actors: Parliament, elected and representing the people; the judiciary, safeguarding the rule of law; and government, wielding executive power.
In the exceptional circumstances of 2017 to 2019, both Theresa May and Boris Johnson claimed to represent the will of the people against Parliament: direct democracy, with the leader speaking for the masses against the elites. The noble Lord, Lord True, has faithfully repeated their claim, adding on several occasions that the December 2019 election showed decisively that the Government do speak for the people—if necessary, against Parliament—having won 43.5% of the popular vote.
Lord Hailsham many years ago warned that the UK’s constitutional arrangements allowed for an effective “electoral dictatorship” between elections, with executive power escaping parliamentary scrutiny and judicial oversight. What we have glimpsed in the past four years is the shadow of authoritarian populism breaking through the conventions of our unwritten constitution. Michael Gove argued in the Commons Second Reading debate on this Bill that Parliament in 2019 was
“frustrating the will of the people”—[Official Report, Commons, 6/7/2021; col. 789.]
which he believed a new Prime Minister—who had scarcely appeared before Parliament since taking office—nevertheless authentically represented. The will of the people is the cry of populist demagogues, not of constitutional democrats.
I re-read last week the 2019 report by the noble Lord, Lord Hennessy, for the Constitution Society: Good Chaps No More? It denounces the willingness of our current Prime Minister to break the rules and misrepresent evidence in his first months in office. He says:
“A key characteristic of the British constitution is the degree to which the good governance of the United Kingdom has relied on the self-restraint of those who carry it out … If general standards of good behaviour among senior UK politicians can no longer be taken for granted, then neither can the sustenance of key constitutional principles.”
Sadly, good behaviour by senior politicians cannot be taken for granted, so I say to the noble Lord, Lord Bridges, that codification is therefore needed. As the Secondary Legislation Scrutiny Committee has just put it, we now need a reset, not a restoration of the previous status quo.
The noble Lord, Lord True, has defended the Government’s abandonment of their manifesto promise of a broader approach to reform through a constitutional commission. He told the House the other week that he also opposed piecemeal reform. So now he is supporting a piecemeal reactionary Bill—a Bill that restores prerogative power and weakens the judiciary. I look forward to hearing how he manages to defend that.
The Select Committee on the Constitution reminded us that
“prerogative powers are an exception to the sovereignty of Parliament.”
Successive reports from committees of both Houses over the last 20 years have noted that the direction of travel has been to reduce the extent of prerogative powers, and to extend parliamentary oversight. This Bill would reverse that direction.
We will therefore attempt to amend this Bill. We will support the replacement of Clause 3 by a requirement for an affirmative vote in the Commons before the Prime Minister requests a Dissolution. We will also seek to include a parallel requirement for this before Prorogation. Moving the Second Reading in the Commons, Michael Gove made it entirely clear that Clause 3 had been included because of the Supreme Court’s decision on Prorogation in 2019. Lord Sumption indicated in his evidence to the Joint Committee that the Prime Minister
“was effectively attempting to rule without Parliament”
for as long as possible. That surely brings the issue of Prorogation within the scope of this Bill.
We will wish to gain assurances from the Government —and here I strongly agree with the noble Baroness, Lady Taylor of Bolton—that a draft revised version of the Cabinet Manual will be published before this Bill becomes an Act, and will be presented to the appropriate committees of both Houses for review, as has been strongly recommended by her Select Committee. The Cabinet Manual provides a directory of our constitutional conventions—if you like, a shadow constitutional document.
We will also wish for assurances on a revised version of the Dissolution Principles, which should also appropriately cover the process of government formation. The draft principles and conventions on confidence, Dissolution and Government formation on pages 61 to 65 of the Joint Committee report are far better and fuller than the one-page sketch that the Government provided.
The Joint Committee draft also wisely deals with the issue of Government formation in the event that an election does not produce a single-party majority. Opinion polls over the past six to nine months have consistently shown between 25% and 30% of voters supporting parties other than the Conservatives or Labour. This suggests that the result of the next election might well be again a Parliament without a single-party majority. Any form of future proofing, as others have said, would therefore need to take this into account. I recognise that the Conservatives will attempt in the Elections Bill to bias our electoral system further to their advantage, but it is still possible, despite their huge advantages in funding and office, that they will not retain power.
We have just witnessed a well-managed change of government in Germany, during which the outgoing Government stayed in office for eight weeks after the election, while three parties carefully negotiated a detailed agreement as the basis for a stable coalition. We may need to develop a similar approach here and should anticipate the likelihood of its occurrence.
Since we are discussing some fundamental issues of democracy, I will add a further question for the Minister. In 10 days’ time, the President of our most important democratic ally, the United States, is convening a virtual summit of democracies to discuss the challenges and dangers that they now face, to which several noble Lords have referred. The UK sees itself as one of the world’s oldest democracies, yet the Government have so far said nothing about this summit: whether they plan to take part, which Minister will lead, and what we might contribute. Will the Minister provide this House, before 9 December, with a Statement on what part, if any, the Government plan to play in President Biden’s summit of democracies? We should never take democracy for granted: it needs to be defended.
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.
Dissolution and Calling of Parliament Bill
Tuesday 25th January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 51-I Marshalled list for Committee - (21 Jan 2022)
Lord Grocott (Lab)
My Lords, I very much support Clause 1 being part of the Bill, but I want briefly to record how big a decision this is. Just 11 years after the Fixed-term Parliaments Act 2011 was put on to the statute book, with much criticism and objection to it at the time—it was done in the shortest period of time and, as we know from other sources, was decided in a very short period by the coalition partners—we are saying that it should now be repealed. This must be the shortest existence of any major constitutional Act.
I mention that so that we learn, I hope, at least one lesson from it: that major constitutional Bills should not be introduced in anything like the way this one was. At the very least, there should be some attempt to achieve consensus on them if they are to endure. Of course, normally, there should surely be pre-legislative scrutiny. The Act has no friends, as evidenced by the fact that there are no amendments to Clause 1. Clause 1 is terrific; I thought that we should start on a happy note.
Lord Lexden (Con)
My Lords, Evelyn Waugh once said that the problem with the Tory party is that it
“never put the clock back by a single second.”
Is it not rather wonderful that it is now putting the clock back by 11 whole years?
Lord Norton of Louth
Lord Norton of Louth (Con)
My Lords, the Government have a manifesto commitment to get rid of the Fixed-term Parliaments Act. The Opposition also have a manifesto commitment to repeal it. This Bill repeals the Act and seeks, as we have just heard, to restore the status quo ante. Like my later amendments, Amendment 1 is designed to ensure that the Bill does precisely that.
Amendment 1 makes it explicit that the prerogative power to dissolve Parliament and call a new Parliament falls within the personal prerogative of the sovereign. Since the 17th century, the powers that remain with the Crown and have not been displaced by statute have come to be exercised in the name of the Crown or by the monarch, acting on the advice of Ministers. There are three personal, or reserve, prerogative powers remaining—that is, where the monarch does not act on advice—although two are governed by conventions of the constitution. Until the enactment of the Fixed-term Parliaments Act, the power to dissolve Parliament was a prerogative power that was not exercised on advice. A Prime Minister requested Dissolution but the monarch was not bound to accede to the request. Although the practice was to grant the request, there were circumstances in which it could be envisaged that the monarch could refuse it.
As is well known, there was some uncertainty as to what those circumstances may be. In 1950, the King’s private secretary, Alan Lascelles, wrote anonymously to the Times identifying circumstances in which a request for a Dissolution may be refused. Prime Ministers were not able to take it as given that a request would be granted. My understanding is that, in 1993, No. 10 contacted the palace to check that, in the event of the Government being defeated on the Motion on the social protocol of the Maastricht treaty, which the Prime Minister had made a vote of confidence, a request for Dissolution would be granted. As the Joint Committee on the Fixed-term Parliaments Act reported:
“As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.”
There is an argument that the power to dissolve Parliament should not be within the sovereign’s gift. There is an argument that it should be. I believe it important that a Prime Minister does not have the capacity in all circumstances to determine the date of a general election. This, however, is not the occasion for that argument. If the Bill is to restore the status quo ante, it is not a question of whether the power should reside with the sovereign but, rather, a case of ensuring that the Bill puts it beyond doubt that it does so.
This amendment would, therefore, put on the face of the Bill that the prerogative to dissolve Parliament and call a new Parliament is a personal prerogative. The motivation for it stems from the Government’s initial list of Dissolution principles, referring to the sovereign acting on advice. As the Joint Committee recommended:
“If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to ‘advice’ on dissolution with ‘requests’ for dissolution since the Monarch must accept Prime Ministerial advice.”
The Government took this on board; the Explanatory Notes to this Bill refer to the sovereign granting Dissolution
“on the request of the Prime Minister.”
However, it is worth quoting what the Government said in their response to the Joint Committee’s report:
“In repealing the FTPA, we are returning to a position whereby the power to dissolve Parliament is exercised solely by the Sovereign as a ‘personal prerogative power’. We are grateful to the Committee for its scrutiny of how this is described in the dissolution principles paper, and agree that the better description is that the Prime Minister ‘requests’ a dissolution.”
The wording rings an alarm bell. “Requests” is not a “better description”. It is a correct statement of the constitutional position that pertained prior to the enactment of the Fixed-term Parliaments Act in September 2011. To say that “requests” is a “better description” than “advice” is to convey that it is simply a choice of words to convey the same thing. If the Government accept that the power to dissolve is a “personal prerogative power”, it is not a power exercised on advice. The wording of the Government’s response does not instil confidence in the grasp of Ministers and officials of the principles governing our constitutional arrangements.
Given that, I believe that there is a case for putting it beyond doubt that it is a personal prerogative power. At the very least, this debate provides an opportunity for the Minister to put it on the record at the Dispatch Box that it is a personal prerogative power. However, I see no reason why it should not be in the Bill. The Government are committed to restoring the position as it stood prior to the Fixed-term Parliaments Act taking effect. The amendment does not challenge that; rather, it would ensure that it is achieved. I beg to move.
Lord Beith (LD)
My Lords, the House is indebted to the noble Lord for elucidating this issue and tabling the amendment. In the Joint Committee, it was worrying that the Government did not initially seem to understand the distinction between requesting a Dissolution and advising a Dissolution, advice that would be binding on the sovereign. I entirely exempt the ministerial reply today from that criticism—the Minister is indeed a former member of the Constitution Committee, which also considered this—but we certainly considered it necessary to explore a little more fully and to criticise the wording of the Dissolution Principles document, the one-page analysis of the issue that made the specific mistake to which the noble Lord made reference.
The refusal of a Dissolution is the only remaining restraint on the ability of a Prime Minister to foreshorten a Parliament in circumstances that might be either entirely appropriate or, in some cases, at least questionable. Subsequent government writing, such as appears in their response to the Joint Committee, indicates that the Government recognise that there are circumstances in which it might be inappropriate to grant a Dissolution, such as a Prime Minister seeking a rerun of an election that has not quite gone according to plan and has not delivered the overall majority that was sought.
Another possibility is the 1974 situation, which I remember vividly because I was elected first in October 1973 and then in February 1974. Ted Heath was unable to establish a coalition, because we did not want to form a coalition with him, so Harold Wilson became Prime Minister. Was he advised that it would be premature to go to the palace and seek an immediate Dissolution? I have no idea, but he did not do so. He took the rather shrewder step of spending about nine months trying to demonstrate that you could have a sanitised Labour Government who did not do any of the things that people worry about Labour Governments doing, and was therefore able to go to the country in a slightly stronger position in October that year. Thankfully, I was re-elected but with a majority of only 70-odd, if I remember rightly; I survived to tell the tale another day. There are circumstances like that in which the issue is a questionable one, and that is why it is important to defend the personal prerogative power.
There are ways of addressing this issue but they do not seem likely to find their way into the legislation as it will eventually be passed. We will discuss Motions of the House of Commons later. They would provide some restraint on a Prime Minister but not very much. Considering that this might not find its way into the final legislation, it is even more important that we protect the ability of the sovereign to decline to give a Dissolution in exceptional circumstances.
Of course, a power like that is more important for what happens behind the scenes than for any possibility that it would be fully exercised and the sovereign would actually have to do it. We are talking about a situation in which the Prime Minister would be advised that it would be unhelpful, inappropriate and potentially damaging to the position of the monarchy to raise the issue at this precise point and, if it was going to be raised, it would be much better to raise it later or at a better moment. Those are the kinds of conversations that surround the few personal prerogative powers that still exist.
The system depends on something that is sadly lacking at the moment, which is a great deal of trust. The Public Administration and Constitutional Affairs Committee in the Commons said that
“some mix of statute and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.”
That has not been happening very much lately, so we should look at this with some care.
The noble Lord, Lord Norton of Louth, has done the right thing by tabling the amendment. I am not entirely persuaded that it makes a difference because my view is that it is a personal prerogative and, unless Parliament legislates it away, it is still there. However, first, it is highly desirable that it becomes clear that the Government understand the position that it is a request, not advice; and, secondly, if there is a general feeling in the House that it needs to be included in the Bill, we can do so. If not, we simply recognise that this is the position and that it has not been changed if we revert to the status quo ante.
Lord Grocott (Lab)
My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.
It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.
It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.
Lord Mackay of Clashfern (Con)
My Lords, we are very much indebted to the noble Lord for his background in this matter. It is important to remember that there are Dissolution principles to be settled before this situation arises. From time to time they have been revised, but I do not think they have been revised for some time now, and obviously it is appropriate that they should be before a further action is required.
It seems there is an academic argument about whether, once the prerogative powers are stopped as they were by the original Act, they can be revived—and this academic discussion occupies quite a lot of pages. So far as I am concerned, if Parliament says, “You go back to where you were before we did this”, that seems perfectly possible and should be followed. I therefore agree with my noble friend Lord Norton of Louth that it is desirable to put that in the Bill. I do not think it is at all likely that anything of the sort that the noble Lord, Lord Grocott, has mentioned is likely to arise, because the Dissolution principles make that very plain. It is in the form of a request because of its importance, but it will be taken in accordance with principles that are well settled. I very much support this proposal and the basis on which it rests.
Lord Desai (Non-Afl)
My Lords, if I may intervene in this debate, I think it is still important that what used to be the custom and convention be clarified on paper. This is for a very simple reason. While I agree with the noble Lord, Lord Grocott, that it is inconceivable that a monarch could refuse the request of a Prime Minister, there is always a possibility. For example, in India, which has a constitution based very much on British lines, the president is elected by the Parliament, and very often he or she is a partisan person and would be unable to refuse the Prime Minister under any circumstances. We have to reserve the power of the monarch. If what the Prime Minister is saying does not smell good when he or she is asking for a dissolution, the monarch should have the power to say no.
Lord Lexden (Con)
My Lords, I agree with all those who have said that my noble friend Lord Norton of Louth has done us a very considerable service. He reminded us of the formidable words of Alan Lascelles, private secretary to George VI in 1950. We should, at all times, keep those Lascelles words in mind:
“It is surely indisputable (and common sense) that a Prime Minister may ask—not demand—that his Sovereign will grant him a dissolution of Parliament; and that the Sovereign, if he”—
or, we should add, she—
“so chooses, may refuse to grant this request.”
It is the existence of this power that has ensured, and will continue to ensure, that no Prime Minister has asked improperly for a dissolution in our history.
Lord Lexden (Con)
I do not think I could make a list of the possibilities. One can conceive of them, but we trust to the existence of this power and the wisdom of the monarch to ensure that no improper dissolution is likely ever to be brought forward.
Viscount Stansgate (Lab)
My Lords, I intervene briefly because this is a very interesting debate and I am grateful to the noble Lord, Lord Norton of Louth, for having tabled his amendment. We are all here because we recognise that the 2011 Act was a mistake. However, I am a little puzzled by the noble Lord’s amendment because he prefers to insert the word “personal” when, up to now, we have simply referred to it as the royal prerogative. Indeed, I am grateful to the Minister, who in a Written Answer to me yesterday defined the royal prerogative; I have it in front of me but do not need to read it out. The Minister refers to the royal prerogative just in those terms and not in any way as “personal”. Therefore, when the noble Lord, Lord Norton, responds to this debate, I would be grateful if he—or indeed the Minister—could tell us whether there is any difference between the phrases “royal prerogative” and “personal prerogative”.
While I am on my feet, I join other noble Lords in saying that, when I listened to the noble Lord, Lord Beith, it brought back to me what happened in 1974. However, I do not think that anyone would expect the monarch to refuse a dissolution, although it is inherent in the nature of this Bill that the monarch might take that fatal step.
Lord Mackay of Clashfern (Con)
My Lords, the answer to the question of the noble Lord, Lord Grocott, may be that, if something was clearly in contradiction to the dissolution principles, it would be wrong. The idea must be that the Prime Minister would exercise his power to request within the framework provided by the dissolution principles.
Baroness Smith of Basildon (Lab)
My Lords, I rise to speak only briefly. This short debate shows how, although we have five groups of amendments, they are all quite interdependent: they are all involved with the same issue. The noble Lord, Lord Norton of Louth, has done us a service tonight. He has indicated what the Government say they are trying to achieve: to reset the clock to where we were prior to the Fixed-term Parliaments Act. The reason why we have amendments down tonight is the lack of certainty that the legislation as drafted actually achieves that. I do not think there is any difference across the House about where we are trying to get to; rather, the issue is whether the vehicle being used does what it says on the tin, and that is why I am grateful to the noble Lord.
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.
Lord Wallace of Saltaire
(1A) The Prime Minister may not request Her Majesty to exercise Her prerogative to dissolve Parliament if Parliament has been prorogued, unless Parliament is first recalled and the House of Commons agrees that the Prime Minister should request Her Majesty to exercise Her prerogative to dissolve Parliament.”
Lord Wallace of Saltaire (LD)
My Lords, quite a lot of what we will discuss this evening is how far we need to put into statute the sort of things the noble Lord, Lord Norton of Louth, has been thinking about, or whether a revised version of the Cabinet Manual would be sufficient to set out the conventions agreed by the parties. We will come back to that later.
Looking through the 2004 report of the Commons Public Administration and Constitutional Affairs Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, I note that there was a memorandum from the Treasury Solicitor’s Department on the royal prerogative, which listed as one of the prerogatives
“the summoning, prorogation and dissolution of Parliament”
as a single interconnected power.
The Government have said that Prorogation is outside the scope of the Bill and is an entirely separate car. The reasons, going back to why in 2010-11 Prorogation was taken out, seem relatively clear. The Lords Constitution Committee then said that
“the risk of abuse of the power of prorogation is very small”.
The Government said in the debates on the Bill that
“The conventions of this House are sufficiently strong”—[Official Report, Commons, 18/1/11; col. 768.]
to make inclusion of the power of Prorogation on a statutory footing unwise and unnecessary. Opinions would now differ. As the noble Lord, Lord Lexden, pointed out, no Prime Minister has asked improperly for a Dissolution, but the question of whether a Prime Minister has asked improperly for a Prorogation is very much open.
The noble Lord, Lord True, and other Ministers have enjoyed referring to our tried and tested constitutional system. If one looks back at arguments over Prorogation, there were riots throughout the country in 1820 against Prorogation. In 1831, when the Lords were about to debate whether there should be a Motion to prevent Prorogation, William IV jumped into a rather inferior carriage and came down personally to prorogue Parliament. In 1854, an MP proposed an address to the Queen against Prorogation, which Lord Aberdeen as Prime Minister made a matter of confidence in order to prevent. “Tried and tested” is, perhaps, a little strong.
I ask the Minister in general terms for an assurance that a revised edition of the Cabinet Manual, which I hope is now well under way, will clarify that there is now a well-established convention—tried and tested, even—over the last century that Prorogation is now a prerogative power available for use only in marking the short recess period between parliamentary Sessions, and that this should not be used as a prelude to a request for Dissolution that has not been communicated to nor approved by Parliament. Nor should it be used, as it has not been for the past century, as a means of avoiding parliamentary scrutiny, proposals or decisions over any extended period.
Perhaps I may be permitted to say a little about the broader issues behind this debate since my amendment is linked to the broader amendment which follows. The desirability of reaching as wide a consensus as possible has been stated in a range of reports relating to this Bill. The 2004 committee report said that the case for the reform of ministerial executive power is “unanswerable”. Indeed, opposition Conservatives including William Hague gave evidence to that committee in support of further limits on executive power. Perhaps the young Nicholas True wrote some of the evidence which he gave; I do not know.
The Minister’s response to the Constitution Committee last December said, rather more weakly, I thought:
“Political consensus is of course valuable when possible”
without, so far as I am aware, promoting any active cross-party consultations on the constitutional issue. I regret that. This is a major constitutional Bill; therefore there needs to be as much consensus as we can achieve.
The fact is that, week by week, we begin to approach the idea that this Government might not necessarily be in power beyond the next election, which could conceivably produce a Parliament in which no single party has a majority. We are concerned not just with addressing the flaws in the 2011 Act but with future-proofing, as various committees have talked about, so that we are prepared for a situation that we might face with the outcome of the next election.
Lord Judge (CB)
My Lords, the amendment in my name and those of the noble Baroness, Lady Smith of Basildon, and the noble Lords, Lord Newby and Lord Lansley, is about the constitutional location of power today and for the next 80 to 100 years. It is not about where, historically speaking, power in Parliament used to rest. It is about now, at the beginning of this century, after at least half a century in which the powers of the Prime Minister have been accreting at an alarming and chilling rate. I will not go through the endless efforts I have made to draw your Lordships’ attention to that fact, but it is a fact.
I was not able to speak at Second Reading but the issue of troublesome prerogative powers relating to Dissolution and Prorogation formed the basis of my contribution to the debate on the Queen’s Speech. I know that I am not taking the Minister by surprise because he and I have had many rather interesting discussions about the constitutional issues. It is important that I add this too: when I made that speech, the present Prime Minister was riding high in the polls. This is nothing to do with the fact that he has troubles abounding at the moment—Prime Ministers always run into trouble at some time. It is not about the present Prime Minister; it is about the person, whoever that might be, who holds this office not being given further power, as the Bill proposes.
We should not have a fixed-term Parliament. We all agree on that. There should be a maximum period. Five years is what is proposed and it makes perfect sense. What did not make sense last time was the proposal that a two-thirds majority was needed in the Commons for that term to come to an end. It did not make sense because of something that should have been absolutely obvious to everybody. I am sorry to say that to those who advocate for it. Just about every important piece of legislation enacted in Parliament has required a bare majority. Nobody set about trying to have two-thirds majorities; a bare majority would do. The Great Reform Act had a majority of two. The Habeas Corpus Act, where all our freedoms were determined, passed because the noble Lord acting as a Teller for one side counted a big fat Peer as 10 and so it was carried. That is what our liberties have turned on. My point is that a two-thirds majority is an aberration.
The question is: how do we replace the legislation? We have had the beginning of a fascinating discussion: do the current proposals revive the prerogative power? Fun—the noble Lord, Lord Norton, can get his students to write endless essays, all getting Firsts if they agree with him, on this subject. But this is the point: whatever the theory might be, the reality is that the power of Dissolution will now be based on statute—this statute, which might be changed. Prerogative power does not get elevated out of thin air; it is founded on the statute.
In answer to one or two of the matters raised in the noble Lord’s Amendment 1, whether the theory is that the Prime Minister gives Her Majesty—the monarch, rather—advice or a request, it seems to me, and here I agree with the noble Lord, Lord Grocott, absolutely impossible to understand that the monarch of the day would be prepared to enter into tempestuous political controversy, threatening the very existence of the monarchy, if the prime ministerial advice or request was rejected. It seems inconceivable. It might have been possible when the Lascelles letter was written to the Times in 1950. It was never put to the test; it never arose. In my view, it is inconceivable. If my view is right, here in the 21st century, the current legislative proposal in this Bill is that the decision whether Parliament should be dissolved would be vested exclusively in the Prime Minister of the day. Today, in a modern democracy, an uncurbed power to have Parliament dissolved—it is rather astonishing to think about it.
Of course, as was said in an earlier debate, it is perfectly true that the Prime Minister, in making his or her decision, has to be mindful of the possible adverse reaction of the electorate if they choose to think that his or her idea of having an election is a bad one. Of course it is, but whether the public do or not, general elections are about the next five years. The election arrives and a decision is made on the health service, the education system, the Armed Forces. It is not just about this single decision made by the Prime Minister. So I go this far with the argument against me: okay, the Prime Minister would take into account possible adverse reactions from the electorate if the electorate do not want an election. But this is not a principle; it is simply a matter of prime ministerial judgment. It is not constitutional control; it is the Prime Minister making a purely political decision: “Where does the balance of advantage to me and my party lie?”
It will also be suggested—it has been suggested to me and I have read it pretty frequently—that recent events in the Commons in the context of Brexit underline the need for this prime ministerial power. The Brexit debates were hardly a model of clarity but let us remember what they reflected: a huge parliamentary and, indeed, national divide, splitting parliamentary parties themselves, in the context of the constitutional aberration of a referendum, with the Dissolution process itself governed by the requirement for a two-thirds majority rather than a simple majority, which, as I said a moment ago, altered parliamentary processes and, indeed, strategies. In constitutional terms, the Brexit shambles demonstrated the folly of a two-thirds majority being superimposed on the result of a referendum that was not welcome to a majority in the House of Commons. That is not a sufficient justification for reviving or creating—it does not matter what you call it—this unrestricted power over the length of the life of the Parliament for the Prime Minister of the day.
These arguments overlook something so obvious that it is not merely in danger of being overlooked, it is being overlooked. I am not going to let it be overlooked. The Dissolution of Parliament eradicates the choice made by millions of citizens when they cast their votes at the previous election and chose who would represent them in the House of Commons. That sounds over- dramatic, but I invite your Lordships to think about it, because that is what it means.
To ensure continuing democratic involvement, to ensure that we live in a democracy and to enable us all to reflect on where power should lie, of course there has to be a finite time for each Parliament. That is a necessity in a democracy. But when the Dissolution is not a consequence of the effluxion of time but is simply based on a unilateral prime ministerial decision, the votes at the earlier general election are wiped out. The earlier democratic decision is revoked. One vote trumps millions of votes. To me, in a democracy there is a certain level of absurdity about such a principle. If this Bill passes unamended, the effect of those votes will be revoked by—and I am choosing a word used recently by the Delegated Legislation Committee—diktat. If you do not like “diktat”, call it decree, call it command, call it whim, call it fancy. I do not mind what you call it. but it is one person’s decision—unconstrained and unrestricted—by an assessment of political advantage.
Surely in the 21st century the exercise of power to change and to ditch the democratic vote should at least be subject to a modicum of control. The amendment from the noble Lord, Lord Norton, offered the possible control of the monarch and, for the reasons I have given, I respectfully suggest that that is not sufficient. Surely we should rest some responsibility on the House of Commons of the day—the elected representatives. That is what the Commons is there to do: to control and to keep an eye on the Executive and to keep a particular eye on the accreting power of the Prime Minister.
This is something that we cannot just accept on the basis that a prerogative power is being revived. This is going to be a statute.
Baroness Taylor of Bolton (Lab)
My Lords, I listened carefully to the noble Lord, Lord True, and he is right that this is an important Bill. I very much welcome the repeal of the Fixed-term Parliaments Act—I was never a fan and I am pleased to see it go.
I hesitate to disagree on any occasion with the noble and learned Lord, Lord Judge, but I am not sure that I follow his logic entirely. Maybe that is because of the political experience that some of us have seen and felt when Prime Ministers have not always got these things right and have not always chosen the right minute to have an election. My noble friends Lord Grocott and Lord Rooker will well remember 1978 when Jim Callaghan did not have an election at a time when people thought it might be advantageous and subsequently lost a few months later. Gordon Brown did not have an election in 2009 and subsequently lost a year later.
The noble and learned Lord, Lord Judge, is right that this is about the constitutional location of power, but it is also about the role of the Executive and the legislature. Yes, the legislature is there to hold the Government to account—a very important function. If I was in the House of Commons at the moment, having been given a vote by the Fixed-term Parliaments Act I think I would have wanted to hold on to that vote to say whether an election should take place. I thought that that might have been one of the compromises that was reached during the consideration of this Bill by the Government and when the Joint Committee looked at it. I am surprised that the Commons gave up so easily the power to have a say and to sanction the calling of a general election.
It would not necessarily have been a simple thing to do. The noble and learned Lord, Lord Judge, mentioned the two-thirds majority that was clearly just part of the political fix of the original deal between the Conservatives and the Liberals after the 2010 election, and that is a non-starter. However, I wonder whether he would say that the majority had to be 50% plus one of those voting on the issue or 50% of the whole House plus one. What would the Motion be and what would the role of the Speaker be in terms of a tied vote? We have to consider all those arrangements. I do not think it is a simple issue although, had I been in the Commons when this Bill was going through, I would have been very reluctant to give any say whatever in terms of when an election should take place.
Lord Lansley (Con)
My Lords, I am very pleased to contribute to this debate. I signed Amendment 3 together with the noble and learned Lord, Lord Judge, and other noble Lords.
I do not come to this as a constitutional expert—far from it—but I think I bring to it two objectives. One is to think about it from the practical, political point of view. In this House we have encountered, and will continue to encounter, the prerogative power being increasingly clarified by statute. I start with that point, which I think the noble and learned Lord, Lord Judge, referred to. When we see the prerogative being clarified by statute, my view is that we should try to make it a watertight statute. We should try to make it absolutely clear. In this particular respect, we are looking at something that is clear only in so far as it reasserts that there is the status quo ante. However, the status quo ante itself is not necessarily clear. We have a set of principles which—as we have discovered, and I have discovered, by listening to the debates and reading them in the other place—are themselves debatable about how they would be applied and in what circumstances they would be applied. Even in the first debate this afternoon, we heard the assertion that it would be inconceivable for the monarch to refuse a request for a Dissolution but equally, there may be circumstances in which such a request may be refused, otherwise what is the point of calling it a request?
It is not certain. My view is that when we encounter prerogative whether we were debating the Trade Bill and looking at the prerogative to make treaties—I have a Private Member’s Bill which would clarify in statute the circumstances in which the Government could enter into a prolonged and substantial armed conflict or declare war—or here, I think we should be prepared to be more specific about the circumstances in which this prerogative is to be used.
I come back to the practical and political. First, there is a manifesto commitment. The Conservative manifesto said:
“We will get rid of the Fixed Term Parliaments Act”.
Amendment 3 also enables that to happen. That is not the issue.
Secondly, the Joint Committee put forward the proposition that constitutional change should secure
“as wide a degree of cross-party agreement as possible”.
My personal view is that Amendment 3 would enable that to happen. It is supported by parties in this House. Although it will not commend itself to my noble friends on these Benches, it would be supported by the Scottish nationalists, who are not represented here; they said so in the other place. However, I was rather disappointed that when the Government responded to the Joint Committee, they did not address that point; they did not say that they were looking to secure as wide a degree of cross-party support as possible.
What we have to do, which the Joint Committee asked for, is expose the Bill to the fullest possible scrutiny. Looking at the debate in the other place, I do not think that this issue, which seems central, received that, so I am pleased that we are giving it an opportunity to be thought about very carefully.
I recall that the Fixed-term Parliaments Act and its implementation fell down on the two-thirds majority. We should remember that there were three occasions in 2019 on which a Motion was presented in the other place and secured a simple majority but not a two-thirds majority. That immediately begs the question: was that the extent of the problem? Certainly, a simple majority enables us to start to think about how crises should be resolved and by whom, but it is that fundamental point about “by whom” that I come back to. The noble and learned Lord, Lord Judge, put it extremely well, but I shall put it in my own terms.
If a Prime Minister were requesting a Dissolution of Parliament and calling an election in circumstances where that would not be supported by a majority in the House of Commons, on what authority would he or she be doing that? If people cannot tell me what that authority is, we should put into the statute now that a Prime Minister should act with such authority. In all normal circumstances, based on our past experience, a Prime Minister will command a majority in the House of Commons and be able to secure a simple majority for such a Motion, and they would be able to have a Dissolution of Parliament at a time of his or her choosing.
However, I do not think that we can turn the clock back to past conventions and assume that they will be readily or easily applied to future circumstances. For example, coalitions have happened and may do so again, and they may be quite complicated. If we were in circumstances where a Prime Minister did not have a majority based on his or her own party and we were in the relatively early stages of a Parliament, by what authority would they circumvent the fact that an alternative Government was available?
Lord Sherbourne of Didsbury (Con)
Perhaps I may ask my noble friend about a situation where there was a hung Parliament, where the Prime Minister had no majority—we have had that experience very recently—where a pandemic was taking place and where the Opposition did not co-operate in passing laws. Surely then it would be right for the Prime Minister to seek the consent of the country.
Lord Lansley (Con)
There are many circumstances in which crises can emerge. There are arguments that cut both ways. In the midst of a pandemic, does one want an election? In the midst of a war, does one want an election? We could go back to 1940 and say, “Surely, if the Prime Minister then, Neville Chamberlain, had sought a Dissolution, why would he not have been granted it? Would it have not been right for the electorate to say what the outcome should be?” My response to my noble friend would be to ask whether in those circumstances it would not be the responsibility of the House of Commons, and whether it did not have the authority to resolve that crisis. If the answer we come to is, “Oh, but, but, but…”, there are all sorts of circumstances and hypothetical scenarios that we can conjure up which would lead us to the assumption that the Prime Minister can go to Her Majesty or the monarch and request a Dissolution, but the House of Commons would not support it. I come back to the same question: by what authority does the Prime Minister make such a request? I support the amendment and have put my name to it because it brings us back, time and again, to precisely that point.
Professor Robert Hazell put it more elegantly when he gave evidence to the Joint Committee:
“The best way of protecting the monarchy is not to revive the prerogative power but to leave decisions about Dissolution where they belong—in Parliament, in the House of Commons.”
This amendment does that in the simplest and most effective way possible by making it certain that if a Prime Minister requested a Dissolution in future, he or she did so on the basis that a majority of the House of Commons had agreed. If not, by what authority would he or she do it?
Lord Beith (LD)
This is an issue which divided the Joint Committee. The view expressed by the noble and learned Lord, Lord Judge, was the view of a minority of the committee of which I was a member, whereas the majority did not want to go into this territory. We had a great deal of discussion about it, but the report records, unusually, that there was a clear difference of view.
I support the idea that there should be a House of Commons vote. Even though I previously supported ensuring that the prerogative power remained a personal prerogative, partly in case this amendment was not carried but also because the two are not inconsistent with each other, it would be even more inconceivable that the monarch should refuse a Dissolution if it had the clear authority of the House of Commons behind it.
A further benefit of having a House of Commons vote on Dissolution is that it makes it quite clear the ouster clause that we will debate later would be unnecessary. The courts would not interfere with a decision taken by Parliament. We can return to that topic later, but we might as well put it on the table now, because it is a powerful argument for having a House of Commons vote. I therefore support what has been said by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley.
There are circumstances in which a Prime Minister might be told that it would be embarrassing for the monarch to have to be asked because a Dissolution might be refused. That would include a re-run of an election that had just taken place. Let us imagine a situation where one party is known to have substantial resources and seeks a re-run of the election, because it is just about the largest party but does not have a majority. There are a variety of such circumstances. In their response to the committee, the Government quite sensibly said that it was impossible to speculate—I am not quoting exactly—about the many different possible situations that could arise, and it is not very fruitful to do so. We merely recognise that there are possibilities.
While so much is said about the failings of the Fixed-term Parliaments Act—I know that it has faults, but the two-thirds majority issue was probably the only significant fault in the legislation—we have to recognise that most democracies in any way comparable to ours have a fixed term for Parliament and that the Joint Committee said:
“The Fixed-term Parliaments Act very clearly fulfilled its immediate political purpose. Not only did the Parliament last the full term, so did the Coalition Government that was formed at the beginning of it.”
I simply say to the other parties that they should be careful what they wish for. The time may come when they seek to form a Government with others and both sides need some guarantee that the Government will not be torpedoed early in its existence.
Lord Lisvane (CB)
My Lords, I had added my name to Amendment 2 in the name of noble Lord, Lord Wallace of Saltaire, but unfortunately it has not made it on to the Marshalled List that I have. I hope that is not an expression of editorial disapproval.
I congratulate the noble Lord on his ingenuity in bringing Prorogation within the scope of our discussions. As the Minister will know, I was a little sceptical about the view that Prorogation was outside the scope or relevance of the Bill. That was on two grounds. First, it was said that Section 6 of the 2011 Act excluded Prorogation. Of course, it may have excluded it, but what is excluded can be added by amendment.
The second ground of my scepticism was the intimate relationship between Dissolution and Prorogation. It is by no means unknown for Parliament to be dissolved while prorogued; I have not looked at the figures, but this may be the majority of cases in recent decades. Even if we go back to the relatively short period—the business period, as it were—of Prorogation after wash-up, there will be a period of time when the House of Commons cannot take a decision of the sort envisaged by my noble and learned friend in his Amendment 3. So I suggest that, although this may not be crucial, it is probably a useful procedural mechanism or precaution.
Baroness Noakes (Con)
My Lords, I do not often agree with the noble Lord, Lord Wallace of Saltaire, as he knows, but I did agree with his closing remarks on Second Reading:
“We should never take democracy for granted: it needs to be defended.”—[Official Report, 30/11/21; col. 1332.]
I absolutely agree, which is why it is important that the amendments in this group are not passed.
Sometimes, when people talk about democracy, they talk in terms of the role of Parliament or the separation of powers. But we must always remember that democracy is about the people—demos—who have power at the apex of our constitution and whom we have to defend. The most important players in our democracy are not Members of Parliament at Westminster but the voters up and down the land. The possibility of Parliament standing in the way of asking the people for their views on the way forward is fundamentally undemocratic, in my view.
These amendments are capable of depriving the people of their say in the future of the country. Furthermore, they could do harm at the very time that the views of the people, as expressed at the ballot box, are most needed and could have the greatest impact. Of course, if the Government of the day have a whopping majority, whether or not they have to pass a resolution in the other place will make very little difference to the outcome. It might perhaps add a few days of delay to the timing of a general election, but it would otherwise simply be a tiresome detail. But the amendment will make life difficult for minority Governments or Governments with small majorities, if they feel that they need to call an election.
At Second Reading, I spoke about the events of 2019 being one of my key reasons for supporting the Bill. It was plain that Parliament was dysfunctional. The Government could not get their chosen policies through the House due to a combination of the actions of the opposition parties and of some of our own Back-Benchers. A majority in the other place and indeed in your Lordships’ House—although that is not relevant to this amendment—was set upon frustrating the Government’s Brexit policies, but the Government could not call an election to settle that issue because they could not meet the two-thirds threshold of the Fixed-term Parliaments Act.
Of course, the Government eventually got their Early Parliamentary General Election Act through and, by then, the Labour Party had decided to support it. But we will never know whether it would have been possible for the Government to have reached the simple majorities required in these amendments at an earlier stage—but it is entirely possible that they would not have done so. A number of my party’s MPs had lost the Conservative Whip during those unhappy days and would not, therefore, have been able to stand as Conservative candidates if an election had been called. Would the turkeys really have voted for Christmas? I think not.
Many noble Lords in this House might choose to forget the result of the 2019 election because it was not to their taste, but I remind them that it was a resounding thumbs up for the Government’s Brexit policies, which Parliament was seeking to harass and destroy at the time. These amendments could well have prevented that decisive view of the country from being expressed at the time, and we would have been the poorer for it.
Minority Governments with small majorities but fractious Back-Benchers capable of frustrating a vote on a general election are not figments of my imagination; they are a real part of our political system. I say this especially to the Benches opposite because, if they have any hopes of again forming a Government, they need to reflect on whether a zombie Parliament could affect them as well. They might also reflect on whether the minority Wilson Government in 1974, which the noble Lord, Lord Beith, referred to in the debate on the earlier group of amendments, would also have resulted in an election. Is it absolutely clear that the Wilson minority Government could have called the second election in that year if he had had to cope with what this amendment would have landed him with? These amendments could be a very dangerous part of our constitutional arrangements and should be rejected.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I feel part of an endangered species: a Cross-Bencher who fully supports this government Bill. I would also like to go back to where we were before the ill-starred and ill-judged Fixed-term Parliaments Act.
I am against giving the Commons a veto, as proposed in Amendment 3 by my noble and learned friend Lord Judge, who is normally so sagacious but who is wrong on this occasion. This could lead to the same chaos, stasis and problem of September 2019, which the noble Baroness, Lady Noakes, has just outlined, when we subjected our Prime Minister—whatever you thought of him then or think of him now—to the humiliation of having to go cap in hand to Brussels to plead for an extension of time to achieve a policy flatly contrary to the one that he wished to put to the country. He could not get a two-thirds majority, and one seriously doubts whether he would have got a simple majority.
The Joint Committee that examined this legislation and reported in March 2021 made plain that, although a minority supported the view outlined by my noble and learned friend Lord Judge and the noble Lords, Lord Lansley and Lord Beith, the majority recognised the danger, which we should avoid at all costs, I respectfully contend.
As to the prerogative power, one can hardly overstress the difference between Prorogation and Dissolution. Prorogation—let one remind oneself—affects the cessation of Parliament and is anti-democratic in the sense that it thwarts the power of Parliament. Our governing, imperative, fundamental constitutional principle is the sovereignty of Parliament; Prorogation thwarts it and leaves the Executive for the duration in uncontrolled power. Dissolution—at the opposite end of the spectrum—is explicitly designed to give the electorate the opportunity to decide who should control our Executive. My noble and learned friend Lord Judge speaks of Dissolution eradicating the decision of the electorate last time around, ditching the democratic vote. Well, of course, in one sense you are getting rid of an existing Parliament, but you are inviting more up-to-date views on what the public—who, as the noble Baroness, Lady Noakes, said, really should be controlling all our processes—want and whether they approve the particular policies in the particular circumstances in which Dissolution is sought.
Of course, if you put the Commons in control, although you run into the sort of difficulties that the noble Baroness, Lady Noakes, rightly identified, you get rid of the problems that others seem to suggest arise under Clause 3 here. There is no question then, obviously, of the courts’ supervisory jurisdiction. But—and we will come to this point of debate later—I suggest you really do not need to introduce the chaos of a Commons vote in support of Dissolution in order to avoid the risk of introducing the courts into the whole business.
Lord Grocott (Lab)
My Lords, before I comment specifically on the amendment in the name of the noble and learned Lord, Lord Judge, I think that both the noble Baroness, Lady Noakes, and the noble and learned Lord, Lord Brown, have misread what happened in 2019. What happened then would have happened had this amendment been passed, which was that a clear majority in Parliament voted for a general election—fact. On three occasions, they voted for a general election. A general election would have occurred under the terms of this amendment.
If I may say so, the politics of it are fairly obvious. If a Motion comes from a Prime Minister that there should be a general election, which is what this amendment suggests, the Government may not even have a majority, as the noble Baroness, Lady Noakes, suggested; there may be people opposed to the Government’s policies generally on their own Benches, and they may not get a majority of their own people, necessarily. But it is almost impossible for an Opposition to vote against a general election. It kills the whole point of being an Opposition. What is an Opposition for if not for saying, “We’ve got a rotten Government, and it is time the people turned them out”? The Labour Opposition at that time sat on its hands, but politically, though I cannot go into all the legal ramifications, it is impossible to imagine a Prime Minister with a majority in Parliament—and he or she would not be the Prime Minister if that were not the case—calling for a simple parliamentary majority, which is all that is required, in order to hold a general election and Parliament throwing it out. That is for the birds; it really is. It would be politics turned upside down.
I think the amendment from the noble and learned Lord, Lord Judge, just nails it. I agree with it absolutely, partly because, when in doubt, you should opt for the simple solution, and there is nothing simpler than a simple majority. We get into all sorts of trouble, as other Members have said, when we require a two-thirds majority or an artificial majority. The public know what a majority is and, let us face it, the real fact of life is that a majority in Parliament—this is as close to Dicey as anyone could be—is power in the land, apart from on the day the general election is held. If Parliament tries to do things that do not have majority support, the majority has all sorts of ways of asserting its support.
Baroness Stowell of Beeston (Con)
My Lords, like everybody else who has spoken in the Committee so far today, I share the objective of returning to the status quo ante and repealing the Fixed-term Parliaments Act. But as some noble Lords who heard me speak on Second Reading may know, I do so for different reasons from that which the noble Lord, Lord Grocott, and most others have set out today. I supported the original legislation, and the reason why I think that it should be repealed is because something that I believed was a relinquishing of power to the electorate turned into a weapon that got used against the electorate, as my noble friend Lady Noakes has described.
That is why I think it is important that we go back to how we were before, rather than, at this point, seek to introduce something that would maintain a power that the House of Commons did not have before. I thought what the noble and learned Lord, Lord Judge, said when he introduced his amendment was interesting as he said this about where power lies. He carefully made the point that this was not about the current Prime Minister, this was about where power rests in this situation. Should it be with the Executive? Should it be with Parliament? I know that over the last few years the noble and learned Lord has raised many different examples of where there is an imbalance of power between the Executive and Parliament, and that there are some ways in which that needs to be looked at and that imbalance addressed.
I do not think we would be wise to try to introduce a power because of what happened a couple of years ago. The battle for power at that point, in 2019, between the Executive and Parliament was observed, in my view, by people outside Parliament as a battle that should not have taken place. It was power that should not rest in the hands of Parliament. Indeed, it should not rest, in a direct way if you like, in the hands of the Prime Minister. This was about a democratic mandate that was in need of being implemented. I think, for everybody’s interests, trying to introduce the amendment that has been proposed here would be unwise, and the best course of action would be to return to exactly what we had before.
Lord Newby (LD)
My Lords, I put my name to this amendment for the reasons given by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley. Like the noble Lord, Lord Grocott, I have been searching for credible arguments against it. I was therefore very grateful that the Minister circulated a letter, setting out the Government’s stance, in which I hoped I might find some credible arguments against it, even if I did not agree with them, but this is what the letter said. It said that it
“will not necessarily achieve the desired outcome”
and:
“Its long-term consequences … are untested.”
I may have got the logic wrong, but until something is implemented how can we know what its long-term consequences are? So I was not too troubled in my belief by that.
Then I read that it was a “novel element”. Anything that is change, by definition, has a degree of novelty to it, so that did not get us very far. It was then said that there could be “(unintended) consequences” without any suggestion of what they might be, so that did not get us much further. It then said it was a “constitutional innovation”. Well, yes—so? That did not get us any further. The letter then said that it had not been “fully considered” and constitutional change needed to be fully considered. Perhaps it had not been, but it has now, so that is not a credible argument. Finally, we had a typically empty threat from the noble Lord, Lord True:
“We are not doing a service to the elected chamber if we ask them to reconsider a question which they have squarely confronted and which they have decisively decided against.”
We might as well go home if we adopted that policy. We certainly would not have been voting against the police Bill at all if we accepted that. That is the sum total of the Government’s response on why we should oppose this amendment.
The further argument—which the Government did not use, incidentally—that I thought had some substance was advanced by the noble Baroness, Lady Noakes. These are my words, not hers: MPs might refuse a Prime Minister an election because they feared for their own seats and so would act out of personal interest rather than the national interest. Against that theoretical possibility, surely there is the more likely possibility of a Prime Minister calling a premature election primarily to save his or her skin, rather than because they have considerations of the national interest uppermost in their mind.
In any event, surely, the constitutional position is that citizens vote for someone to represent them in Parliament, not for a Prime Minister. In my political lifetime, there have been five occasions on which the Prime Minister has changed during the lifetime of a Parliament without triggering a new election in any case. So voters have ended up with a Prime Minister who was not a prime ministerial candidate at the previous election and who has no personal, direct mandate from the electorate. MPs, by contrast, will be held to account by their electorates if they trigger an early election and so, in my view, the decision on whether to do so should rest with them.
I was going to respond to the noble Baroness in terms of what happened in 2019, but the noble Lord, Lord Grocott, has done that extremely comprehensively. I would just say, going back to 1974, that the same arguments apply. Does anyone believe that in the autumn of 1974, if the House of Commons had been asked whether there should be an election, Harold Wilson would have been denied one? The noble Lord, Lord Grocott, gave the reasons. Oppositions are there to oppose, and they do not vote to keep their opponents in office—it is in the name. The key question which the noble Lord, Lord Lansley, raised is by what authority does a Prime Minister decide, uniquely, when an election should be held, particularly, as I said earlier, if that Prime Minister was not the candidate for Prime Minister at the preceding general election? In my view, authority on when an election should be held should rest with the people who have been elected to run a Parliament. That is why I support this amendment.
Lord Sherbourne of Didsbury (Con)
My Lords, I am very puzzled by this debate. There have been words used such as “inappropriate”, “exceptional” and “misuse of power” to suggest that the Prime Minister of the day, when he or she asks the electorate to choose the Government, and where he puts his or her own tenure in No. 10 at risk, is somehow abusing his or her position. I do not understand what those likely positions might be where the Prime Minister of the day can be accused of abusing his or her power to go to the electorate. Nobody has yet produced an example of that. We know when the Prime Minister might want to do that—because they have no majority and want a majority, because they have a very small majority or because they want a mandate for a new policy, possibly—but none of those is an abuse of their power.
If I had read the speech of the noble and learned Lord, Lord Judge, and instead of reading “election” and “Dissolution” had read “Prorogation”, I would completely understand. Of course, it would be an abuse of power to give the Prime Minister of the day the power to extend the life of Parliament, but I do not understand in what situation a Prime Minister can be accused, in these words, of inappropriate or exceptional misuse, by asking the electorate to choose the Government they want, and to put his or her own tenure at No. 10 at risk. I would be grateful if somebody could provide me with some examples.
Lord Grocott (Lab)
I am glad to assist, but I would like to ask the noble Lord a question. I have already explained how a Prime Minister who wanted an election could get one, so the power remains with the Prime Minister.
Lord Grocott (Lab)
I am sorry. God, I will be glad when we get rid of those for good.
The noble Lord, Lord Sherbourne, said that, somehow or other, there is a suggestion that the argument on this side or around the House is that a Prime Minister calling for a general election is bad, undemocratic or inappropriate. We are not saying that at all. We are saying that a Prime Minister would not be a Prime Minister unless he had a majority in the House of Commons, and the Prime Minister would get what he wanted. I apologise for the length of the intervention, but the question I want to ask the noble Lord is: if he feels this passionately about, as I understood it, the Prime Minister alone being able to make that decision, how could it possibly be the case, in his argument, that a monarch—unelected—could say no to the Prime Minister making a request of that sort?
Lord Sherbourne of Didsbury (Con)
I am very pleased that the noble Lord asked that question, because the debates this evening have said that we do not think the monarch could conceivably refuse a request for a Dissolution, as the noble Lord has already said. Other speakers have said that the House of Commons would never refuse a Dissolution; that was the thrust of the noble Lord’s speech and the speeches of other noble Lords. We are being asked to put in a brake on the power of the Prime Minister, but we are told that the brake will never be exercised. What is the point of that? I come back to my question: what are the most inappropriate examples of a Prime Minister abusing their power by calling an election? I can think of only two. First, they might, for party-political reasons, seek the advantage of going early because they think they can get a bigger majority. We know that the electorate are not stupid. There are, throughout the whole country, Brendas from Bristol who will react to that—we found this in February 1974 and in 2017.
The other reason which I thought might be in the minds of noble Lords is if the Prime Minister of the day wanted to go to the country with what they thought would be a sole populist or undemocratic programme, and they were worried that the electorate might vote for it. That poses two problems. First, it is denying the public the right to choose the Government and policy they want. If you really want to exercise an effective brake for that sort of reason, you need a different Bill, because this Bill is designed to end the Fixed-term Parliaments Act and go back to the status quo ante. I believe, as my noble friend the Minister said, that this clause to give the House of Commons a veto—otherwise there is no point in giving the provision to it—drives a coach and horses through this Bill.
Lord Beith (LD)
I shall seek to answer the noble Lord’s question. I go back to February 1974. Imagine that Harold Wilson had said, “I’ve become the Prime Minister. I don’t have a majority. Mine is the largest party. I want to rerun the election straightaway.” Add into that mix—which was not the case at the time—that he is the leader of the party that has the most substantial resources and has been the least damaged financially by the conduct of the election. But that is not what happened. Maybe Harold Wilson was advised that he should not do that, but that is the sort of circumstance that might be thought inappropriate.
Lord Sherbourne of Didsbury (Con)
I just think that if you gave the House of Commons the opportunity to veto it, and the Government of the day simply could not get on with their business, which is what would probably happen, then we would have a problem. I come back to the point I made with my noble friend Lord Lansley: if you have a Government with a minority, or without a working majority, that Prime Minister may not be able to get the support of Parliament; but he or she needs it to be able to have an effective working Government.
Lord Butler of Brockwell (CB)
My Lords, the noble Lord asked for an example of where a Prime Minister might illegitimately ask for a general election. I will give an example not a million miles away from our present circumstances. Let us suppose that 54 Conservative Members of Parliament expressed no confidence in the present Prime Minister, and there was then an election in the Conservative Party for an alternative leader, and that leader emerged. At that moment, the present Prime Minister decided that, rather than give up power, he would ask the Queen to dissolve Parliament so that there could be a general election. I put it to the noble Lord, Lord Sherbourne, that, in those circumstances, a majority in Parliament, which the Conservatives would have, would reject the proposal for a general election. That might be an imaginable circumstance. I am not in favour of this amendment—I would rather not have it at all—but that is a situation where I would rather that the majority in Parliament rejected the idea of an election than the Queen having to do it.
Lord Mackay of Clashfern (Con)
My Lords, I have a very vivid recollection of Harold Wilson’s problem when he was elected with less than a parliamentary majority. As noble Lords will know, he had a second election in that year. At that time, I was the Sheriff Principal of Renfrew and Argyll, and therefore I was a returning officer for the constituencies in Renfrew and in Argyll, so I was rather familiar with what was going on.
Harold Wilson, when he was elected first, had not got a majority. The opinion polls were not quite so prominent in those days as they are now, but there was quite a lot of speculation as to whether, if he took a second election, he would be better off or worse off. That was a decision that he had to make which would not necessarily have been the same as the balance of people in Parliament, because, if the theory of the noble Lord, Lord Grocott, were right, they would be anxious to be the Government. But I fear that they had the rather suspicious feeling that they might not be the Government, and that in fact what might happen would be that Mr Wilson would get a better majority than he had up to that point. As the Committee knows, it was not quite like that either. To forecast what the vote in Parliament will be in the event of a Prime Minister wanting to call an election is by no means easy. It was very difficult in 1974, and I have no doubt that that sort of circumstance might occur again.
I have tried to look at this from the point of view of the construction of our constitution. We have three parts of the constitution: the Executive, the judiciary and the legislature. The business of the House of Commons—and this House, for that matter—is to legislate primarily and to hold the Government to account. The executive power is not in the House of Commons or in this House, and it should not be; something has gone wrong when that happens. The executive power is in the Executive.
The noble Lord, Lord Newby, asked what the authority of the Prime Minister is if he or she has changed since the Parliament was elected. The authority is that he or she is the Prime Minister, and the Prime Minister’s responsibility, subject to Her Majesty, is to be the head of the Executive. Therefore, the responsibility for taking executive decisions is, and should be, with the Prime Minister.
As I said, the idea that you can forecast the result of a vote in Parliament on this subject is extremely difficult if you take account of all the possible circumstances. I know that if you have an Opposition doing very well and the Government are looking a bit shaky, they will both want the same thing—but there are many other circumstances in which they will not want that.
I submit to your Lordships that we had in existence for many years a system under which there was no vote in the House of Commons at all. As far as I remember, apart from the Wilson year there was really no difficulty about the responsibility of calling an election. You just have to think what a responsibility the person who calls an election has. We had a slight example of that not long ago, when an election was called and the result was that the Prime Minister had a smaller majority—indeed, no majority at all—having started off with a majority. I do not think for a minute that the Prime Minister thought that was going to happen—it would be extraordinary if she did—but it did happen, and that is the responsibility of the Prime Minister.
I find it very difficult to see how that can be properly shared with anybody else. He or she has to take the responsibility to consult the public—the people. It is an executive call to start a general election, and surely the responsibility for doing that should be on the Prime Minister and not on the House of Commons. All Members of the House of Commons will have some kind of interest in what is going to happen. It does not necessarily follow that they want the good of the general population, although it might be disguised in that way. For example, I could see that as people age—as I certainly am—they may feel that they do not want to continue, whereas others are very anxious to keep their position. One has to have that kind of consideration in mind.
I have great difficulty in disagreeing with the noble and learned Lord, Lord Judge, with whom I have agreed many times in the past, but this is a fundamental point. My principal reason for thinking that this is not an appropriate amendment is that the responsibility of the Houses of Parliament is primarily to legislate and to keep account of the Government, but not to control an executive act except by legislating. This is not in any way a legislation; it is just a decision in the House of Commons that has no effect except as an executive decision.
Baroness Smith of Basildon (Lab)
My Lords, this has been a long and really interesting discussion, and it sums up the very reason for this amendment. When I spoke on the amendment from the noble Lord, Lord Norton, at the beginning, I said that one of the reasons I thought he had brought his amendment forward was to bring some clarity, and it is the same with this amendment in so many ways.
When I looked through the Hansard for the other place, one of the things that struck me—I mentioned this at Second Reading—was how often Ministers asserted as fact something that was really a ministerial opinion or judgment, and not actually a fact. The most crucial one was that the Bill will
“reset the clock back to the pre-2011 position with as much clarity as possible.”—[Official Report, Commons, 13/9/21; col. 721.]
If it was that clear, we would not have the amendments before us tonight. It is not clear, and that lack of clarity has caused concern.
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.
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.
Lord Wallace of Saltaire (LD)
My Lords, I briefly point out that the definition of “Prorogation” that the Minister has just given does not cover the meaning of what the Prime Minister did in 2019. He might perhaps like to reconsider that definition if he wants to argue that the Prime Minister was behaving within the constitution. A lot of this debate has been about the lack of clarity in constitutional conventions at present and the need for greater clarity. I would be very happy to discuss further with him the revision of the Cabinet Manual to set out clearer definitions of what our conventions are, agreed among the parties and consulting with the committees in both Houses, which is what we need. We lack trust in politics at present and the public has a low opinion of politics and politicians. That is part of the reason why, as the noble Lord, Lord Desai, said, we need to put conventions down on paper. I hope that we will come back to the Cabinet Manual later.
I say rapidly to the noble Baroness, Lady Noakes, that we are a parliamentary democracy, and one of the planks on which the 2016 referendum was fought was to restore parliamentary sovereignty. When Parliament began afterwards to divide up into factions within both the major parties—which, after all, was the cause of our difficulties between 2017 and 2019—the Government moved towards an idea of popular sovereignty. If we were to move towards a system of popular sovereignty, as she suggests, we would be moving towards the Swiss model. We would have a much more local democracy, with local as well as national referenda and a Government who were much less able to control anything much from the centre; Switzerland does not have much of a foreign policy as a result. That is a popular democracy. It would be a very different model from our constitutional democracy based on checks and balances between judiciary, Parliament and Executive.
What we risk having is a populist democracy with highly centralised government and a leader with a good deal of financial support behind him—occasionally her, but almost always him—who says that he speaks for the public without actually asking them what they say, who does his best to denigrate any sort of critical or independent media and who thus undermines the whole idea of a constitutional democracy. We have seen that happen in a number of countries in recent years and we do not want it to happen here. That is why we need greater clarity in our constitutional conventions, which is part of what we are concerned with in this Bill. I beg leave to withdraw the amendment.
Lord Judge
“(1A) The powers referred to in subsection (1) must not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””
Lord Judge (CB)
My Lords, it is rather fun to be clothed in the costume of a revolutionary who is about to tear down the constitution. I do not think anyone has ever thought of me in those terms, and my family will be absolutely fascinated by it.
I have found this an interesting debate on all sides. It is perfectly obvious that I shall have to read the debate, which I shall. It is also perfectly clear that there is nothing further that I can say in private meetings, in the Chamber or anywhere else that will enable me to persuade the Minister to change his mind or his position.
I remind noble Lords that we are simply asking that the House of Commons should have a chance to look again at the proposal before us so that it can make up its mind. Its Members had a debate, but when you read it you see that—this sounds discourteous, and I suppose in a way it is—the issue was hardly addressed. All that I am asking in this amendment is that they should be given a chance to think about it. I would be perfectly happy for them to reject it; that would be their decision. For today’s purposes, I shall withdraw the amendment, but I shall reflect on what should happen at the next stage.
Lord Norton of Louth
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.
Lord Norton of Louth
My Lords, I shall also speak to my other two amendments in this group. The amendments would ensure that the ouster provisions in the clause did not apply to the purported exercise of the powers to dissolve Parliament contained in Clause 2. There are two principal arguments that I wish to develop in support of the amendments. The first is that they are necessary to give effect to the Government’s intention that the Bill restore the status quo ante. The second is that including the “purported” exercise of powers within the clause is objectionable in principle.
The purpose of the Bill is to restore the position to what it was before the 2011 Act was enacted. As paragraph 23 of the Explanatory Notes concedes, the purpose of Clause 3(c) is
“to address the distinction drawn by the Supreme Court … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”
As the Law Society of Scotland pointed out in its helpful briefing note, that takes us further than the pre-2011 status quo ante. It considers that extending the clause to the purported exercise of the Clause 2 powers, or a purported decision in relation to those powers, may go beyond the bounds of the previous law as expressed in the 1985 case of Council of Civil Service Unions v Minister for the Civil Service. As the note goes on to say:
“We take the view that the inclusion of ‘purported’ appears to be designed to address the decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others … where the absence of the word ‘purported” was treated as significant by some of the judges.”
Either the Bill restores the status quo ante or it does not. If the Government are to be consistent and achieve the situation as it existed prior to September 2011, the references to the “purported exercise” and “purported decision” of powers under Clause 2 need to be removed from the Bill.
The second and fundamental objection is one of principle. The use of “purported” means that the exercise might be beyond the power vested in Ministers. I am not in favour of Ministers having the capacity without it being open to challenge in the courts. The Minister in the Commons, Chloe Smith, said that the clause provided
“an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts.”
She went on to say that
“the check on the exercise of power is for the electorate to decide on rather than the courts.”—[Official Report, Commons, 13/9/21; col. 723.]
“Purported” decisions might conflict with the rule of law. The Minister in the other place was effectively saying that it was not for the courts to determine whether Ministers were acting beyond their powers. I do not think that the letter from my noble friend Lord True really engaged with that point.
It is important to stress that the clause should not be viewed as an attempt to restrict the courts from encroaching on the position of Parliament. That might be how Ministers wish to convey it, but the senior courts have been exercised by the use of powers by Ministers, not by Parliament. Indeed, the most recent high-profile cases that appear to have motivated the Government to use this wording were ones in which the courts sought to protect, not undermine, the position of Parliament in relation to the Executive. In this clause, the Government seek to confer on Ministers wide-ranging powers in a way that I consider dangerous.
The wording of the clause might also be counterproductive. There is no evidence that the courts would want to encroach on the exercise of the prerogative in dissolving Parliament and calling an election.
With these amendments, we are also discussing whether Clause 3 should stand part of the Bill. My contention is that if there is an ouster clause, it needs to be true to the purpose of the Bill, which is to restore the position to what it was before 2011, and that it should omit provisions—in this case reference to “purported exercise” and “purported decision”—that are constitutionally objectionable. If the Government persist in wishing to retain such wording, that serves to reinforce the case for removing the clause. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.
Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.
We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.
Lord Faulks (Non-Afl)
My Lords, the Committee has shown in the debate on this Bill so far that there is common ground that this Bill should provide clarity. The use of “purported” in Clause 3 seems to be a deliberate choice by the Government and the parliamentary draftsmen. It is not a word used much in everyday speech but is found in other Acts of Parliament. It is also used in judgments when an act has taken place or a decision has been taken, but a court has concluded after the event that the decision or act has no legal effect. Any well-informed draftsman in this context would have had well in mind the decision in the Anisminic case.
In Miller II, as it is generally referred to—the prorogation case—the Supreme Court concluded that despite the fact that the Prime Minister had gone through all the appropriate formalities to prorogue Parliament and Parliament had been, as a matter of fact, prorogued, the prorogation, or purported prorogation, was unlawful and was thus deemed not to have happened as a matter of law, with the result that Parliament was reassembled.
The purpose of Clause 3 is plainly to render the exercise of the power to dissolve Parliament non-justiciable. The first question is whether, as a matter of construction, it has that effect, and the second is whether such an ouster clause should be in the Bill at all. That is an issue in the stand part amendment in the name of the noble Lord, Lord Butler. If, for the sake of argument, the House were to conclude that an ouster clause was appropriate, why not include “purported” in the ouster clause? In its absence, a court could conclude that notwithstanding the apparent or purported Dissolution, because of the unlawfulness of the Dissolution—and the courts have shown considerable ingenuity on occasions in finding unlawfulness—the Dissolution never, as a matter of law, occurred. It would follow that Parliament would then be reassembled, campaigning might be halted, the date of an election vacated, with all the attendant chaos that would ensure, and it is even possible that the result of an election could be set aside. That seems to me to be a highly undesirable state of affairs, for two principal reasons: first, the uncertainly; and, secondly, the insertion of the courts into the political process.
I entirely appreciate the distinction between Prorogation and Dissolution, but before Miller 2 most lawyers would have considered that Prorogation was non-justiciable. I dare say that the advice was given by the Attorney-General or the Government Legal Department that when Mrs Miller and others brought their judicial review it was non-justiciable. That is not such an unreasonable point of view, given the unanimous decision of the Divisional Court, a court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. That court concluded that, without in any way expressing approval of the decision of the Prime Minister, it was a matter of politics, not law. In other words, the power was non-justiciable.
Why did the Supreme Court disagree with the reasoning of the Divisional Court? Unfortunately, we do not know, because it made no mention of the decision of the lower court. This departure from the normal engagement with the reasoning of the lower court could certainly be regarded as something of a discourtesy, to put it mildly.
There are differing views as to whether the Supreme Court in Miller 2 came to the right conclusion. The Government’s view may well have been a factor in the setting up of the independent review of administrative law, which I had the privilege of chairing. I do not purport to speak on behalf of the panel today, but I can point out to the House that we concluded that the decision might be regarded as something of a one-off and should not of itself lead to any fundamental changes in the scope of judicial review. The combination of a minority Government, no agreement in government on the right approach to Brexit, and the rigidity of the Fixed-term Parliaments Act, with its requirement of a super-majority, created something of a perfect storm.
On the one hand, the case was a magnificent demonstration of the checks and balances in our constitution working well, even if you do not agree with the conclusion. As it happens, I do not agree with it, but other views are available. I do not favour the decision because of the involvement of judges in a political matter. In conversation with constitutional experts in the United States, I have encountered considerable surprise at the decision. An equivalent challenge in the United States would fall foul of the political questions doctrine, and the claimants would not be able to establish that they had standing to bring such a challenge. In this jurisdiction, points on standing are rarely taken. We pointed this out in the IRAL and suggested that they should be taken more often, even by the court of its own motion, since it is a jurisdictional matter.
In his response to the IRAL report, the then Lord Chancellor, Sir Robert Buckland, as he now is, said that he was anxious to protect judges from politics. I think he had a point. Unlike in the US, our judges have, for the most part, skilfully avoided involvement in political matters. As a result, and in sharp distinction to their counterparts in the United States, our judges are not well known to the general public and their views are not a matter of general public interest, in the non-technical sense, and long may that continue.
This Bill would protect judges from political controversy by reason of the terms of Clause 3. I think a number of judges would be perfectly happy with that outcome, but even if they were not there would be an acceptance that Parliament is entitled to legislate to exclude the courts from considering the legality of the power to dissolve Parliament. The IRAL concluded that it was constitutionally open to Parliament to pass an ouster clause of this sort, and unless you reject the doctrine of parliamentary sovereignty, I do not believe that this is in any way controversial.
Lord Butler of Brockwell (CB)
My Lords, I shall disagree with the noble Lord who has just spoken by opposing the inclusion of Clause 3 in the Bill, but first I thank the noble Lords, Lord True and Lord Wolfson, for extending to me the courtesy of a virtual discussion on this. They failed to persuade me, but I appreciated the courtesy.
Last week, the Minister circulated a letter to your Lordships addressing the issues arising from the Bill. In it, he said:
“Clause 3: Restates the long standing position that the exercise of prerogative power”
in relation to the Dissolution and calling of Parliament “is non-justiciable”, and the noble Lord, Lord Faulks, has just said something similar. I have been around a long time, but I am not aware of any such long-standing position. There is the statement of Lord Roskill, but it did not bear directly on this. It is not surprising that this position has not been conclusively established, because no challenge to the use of the prerogative power has ever been made. Nor do I think it likely that it ever would be. If it was, I find it hard to imagine the circumstances in which a court would uphold such a challenge. So, in practice, I regard this clause as unnecessary, and dangerous.
Let us suppose, for the sake of argument, that a Government misused this prerogative power by asking the sovereign to dissolve Parliament in order to prevent Parliament causing the Government some inconvenience or in an attempt to overturn the result of a recent election. What safeguard would there be against such a misuse of power in the absence of the courts? The noble Baroness the Leader of the Opposition was absolutely right. She said that there were three possibilities. There is Parliament—the House of Commons—which we debated in the last group of amendments, there are the courts or there is the sovereign. Those are the only three possibilities. Again, I quote the Minister’s letter:
“The sovereign retains the power to refuse an improper dissolution and, in doing so, acts as a constitutional backstop in this context.”
Is this a position in which we would wish to place the sovereign? It would do precisely what we are all agreed we should not do: namely, to require the sovereign to intervene in what are likely to be, as the noble Lord, Lord Grocott, said, the most highly charged political circumstances. Therefore, if anyone is to prevent the Government misusing the power, and the Government are determined to oppose the House of Commons being given a vote, I submit that it should be the courts rather than the sovereign.
Of course, if the high court of Parliament—the House of Commons—has authorised the use of the power, that would put it out of the reach of the courts. That is the virtue of the amendment moved by my noble and learned friend Lord Judge and the noble Lord, Lord Wallace of Saltaire, but the Government are opposed to that. There are dangers in leaving it to the House of Commons, which were described at length in the last debate, so it is either the courts or the sovereign. I submit that in those circumstances, it has to be the courts.
There is a more fundamental objection to Clause 3. These are the words of the clause:
“A court or tribunal may not question—
(a) the exercise or purported exercise of the powers referred to in section 2,
(b) any decision or purported decision relating to those powers, or
(c) the limits or extent of those powers.”
I find those words chilling. They amount to saying, “We will take these powers, but we will not allow any interference by the judicial system in the way we exercise them.” That is the language of an authoritarian —some might even say totalitarian—Government.
It is because the present Government have shown signs of seeking to override any challenge to the use of their powers that this ouster clause is such a dangerous precedent, as my noble and learned friend Lord Hope has said. I suggest that this House should stand against that precedent. I shall not seek the opinion of the Committee today on excluding Clause 3 from the Bill, but I reserve the right to move an amendment on Report to remove it.
Lord Beith (LD)
My Lords, with a Supreme Court judge, the chairman of the most recent inquiry into the workings of judicial review—he did an extremely good piece of work on that—and a former Cabinet Secretary presenting views that differ in more than nuanced ways, the House will have to resolve this issue. Those of us who are deeply concerned about this clause cannot be accused of wanting to drag the judges into decisions about whether elections are being held. In my case, and in some of the other cases, we have offered two mechanisms that clearly make that very unlikely.
One is that the courts would be very unlikely to question or interfere in any way with the personal prerogative power, which we all agreed earlier is the nature of, if not the wording of the Bill, then of the re-establishment of the status quo ante. The second is that a significant number of us argued that a vote in the House of Commons is a desirable process. Were it there—were it a condition—it would entirely obviate any fear that the courts would become involved, because the courts would recognise the Bill of Rights’ prohibition on questioning the decision made in Parliament. We are not people seeking to drag the judges into this process.
The Government’s belief that they have to build a bulwark of some kind against judges becoming involved, all based on a particular recent experience that was about not Dissolution but Prorogation, has, I think, drawn them into doing something that, if we do it, we will come to regret very much in years to come. The phraseology of the clause should remind us of that: it is the
“purported exercise of the powers”
or the “purported decision”. What does that take us to? It takes us to the point where the Government are trying to ensure that the courts do not question whether the Prime Minister had the power to act in that way, or, if he had the power, that he is acting in ways covered by the legislation. I find it very hard to conceive of a case that could be made, if the processes of this legislation are followed, in which that could reasonably be advanced in front of or taken seriously by any court. What I see is an ouster clause that we will not see the last of and that we will see again in other legislation. Then it will be said that it is a perfectly acceptable ouster clause, as Parliament allowed it in legislation that repealed the Fixed-term Parliaments Act; that it is just a straightforward way of making it clear that this is an area in which we do not want the courts involved.
The power of judicial review, which was carefully analysed by the noble Lord, Lord Faulks, and the team he led, is an essential way in which the citizen is protected from the abuse of power by the Executive. There are many kinds of Executive, not just the national Government we are thinking of today; local authorities and private sector organisations have powers of various kinds. If they act beyond those powers, the courts are the proper place to challenge that misuse of power. Once we give currency to the idea that a Minister can say in relation to a purported action or purported decision that they have decided they have the power to do this and may not be challenged, that is a reversal of the entire system of judicial review.
The process described in Clause 3 will never be engaged in relation to what we are talking about—the calling of a general election. There are so many barriers against it—not least, of course, the desire of the judges not to get into that political process at all—but once we have got this on to the statute book, we will not have seen the last of it. I think we have created a highly dangerous model for ouster clauses. I am disappointed, in a way: I think the noble Lord, Lord Faulks, resisted pressures to come up with foolish decisions in his review, and I would welcome him being on my side on the issue, which is about the longer-term importance of judicial review for the purpose for which it was intended. One can raise questions about some ways in which it has been used in the past. One can raise questions about whether there are some limitations, such as the Cart issues raised by the review by the noble Lord, Lord Faulks. It is vital in the protection of our citizens and I see it threatened by the existence of this clause.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, my core concern regarding this group of amendments is for the future generation of judges—not just in the Supreme Court, but judges who, I suggest, must inevitably be troubled at first instance and so forth before things get to the Supreme Court—if there is there is the slightest glimmer of a prospect of anybody legally challenging any decision with regard to Dissolution. I find myself in total agreement with all that my noble friend Lord Faulks said and the legal analysis here. The courts have striven mightily to remove any possibility of ouster clauses having effect. With that, in most contexts, I totally agree, but this is in the context of Dissolution and of trying, with the utmost clarity, to return as whence we were, where there was no possibility of the courts entertaining a challenge.
To my mind, the courts would be grossly embarrassed and, of course, singularly unlikely to intervene. The noble Lord, Lord Beith is absolutely right: it is the last thing they would want to do because it would be so embarrassing and destructive of the current constitutional position of judges to allow themselves to be drawn into this field. However, the temptation for others to try to involve them must be removed. I suggest that this clause, as is, tries to dot every I and cross every T.
Baroness Noakes (Con)
My Lords, I will speak only on Clause 3 stand part and not on the more detailed amendments, because I am sure that my noble friend the Minister will reply in his careful way about how the wording was arrived at and what it is intended to do, as he did very carefully at Second Reading.
One does not have to be an expert on the constitution, which I am not, to know that judges should not interfere in politics, and decisions on calling elections are about as political as decisions ever get. I believe the Government are right to try to draft this Bill in such a way that the courts cannot interfere in that very political decision, and that is why I support Clause 3 standing part of the Bill.
The fact that the Government feel it necessary to include Clause 3 and draft it in such a complex way speaks volumes about how the judiciary has found many ways of getting involved in areas that would have seemed unthinkable only a few years ago, ones of which we would have assumed the courts would steer clear. The clause is necessary only because of the direction of travel taken by the courts in the way they have interpreted the areas they get involved in. I, for one, believe that we need no more surprises like the Miller judgments.
Clause 3 is confined to the specific and narrow issue of whether the prerogative power to dissolve Parliament is justiciable. I cannot conceive of any circumstances in which the involvement of the courts could ever be justified, and those who oppose Clause 3 have said that they cannot think of any either. Even the noble Lord, Lord Butler of Brockwell, who demonstrated the fertility of his imagination in the debate on an earlier group of amendments, could not come up with an example. We are legislating against shadows, against figments of the imagination.
The issue is about only the steps taken to allow a general election to be called. It is a very political decision. We cannot conceive of the courts ever getting involved in delaying an election, halting an election or even, as my noble friend Lord Faulks suggested, nullifying the result of a general election. It just seems too ludicrous a concept even to contemplate. However, we need it to be clear beyond peradventure in the law, and without this clause it may not be.
We need to get this into perspective. Clause 3 does not diminish the role of the courts in the constitution; it is about this one narrow area that before, when we simply rested on the prerogative, no one thought the courts could ever get involved in, but because of other developments in the law we now feel it necessary to be quite explicit about it.
Lord Butler of Brockwell (CB)
The noble Baroness and I agree that the circumstances in which this situation arises are unthinkable, so why should we have the dangerous precedent of this ouster clause in the Bill?
Baroness Noakes (Con)
We have it because it is just possible that the courts could find a way in. We have seen them getting involved in areas that we never thought they would get involved in before. That is a fact of the way the judiciary has moved in recent years, and it is why the clause is there.
I do not accept that the clause sets a dangerous precedent. It is about this one very narrow issue. It is not about an ouster clause that would be put in every statute that came before Parliament. Of course, Parliament must decide at the end of the day how it wants to frame its laws. It has the right to do that, and the courts can then interpret those laws, but I do not believe that this will be seen as a precedent for a more general use of ouster clauses. If it is, I am fairly sure that Parliament would not accept them. We should see this clause in the narrow concept in which it is drafted and not try to extend it beyond that.
Lord Wallace of Saltaire (LD)
My Lords, if we are talking about our tried and tested constitution, we should remember that in the 17th century it was Chief Justice Coke and his defence of the rule of law against the extent of the royal prerogative which led to the development of some of the ideas of constitutional democracy at least as much as Parliament. The rule of law is an essential part of the way we work.
I say to the noble Baroness, Lady Noakes, that we all know that this clause is in the Bill because of the judgment on Prorogation in 2019. I was interested to hear that the Minister’s definition of Prorogation did not in any sense suggest that that use of the power came within an accepted definition. Perhaps he will change his definition next time he comes.
The Minister has said that the importance of the Bill is to restore the status quo, but this ouster clause is not the restoration of the status quo. I agree with the noble and learned Lord, Lord Hope, that it opens a window to its use on other occasions, which would be highly undesirable. It is much more radical than Clause 2 in changing our customs and practices. If we want to maintain the status quo while changing it a little—
Lord Faulks (Non-Afl)
The noble Lord says that the clause does not restore the status quo. Does it follow that, in his view, the power to dissolve would have been justiciable at common law by virtue of the conventions?
Lord Wallace of Saltaire (LD)
I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.
The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:
“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”
I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.
That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.
Lord Grocott (Lab)
My Lords, I would like to think that the Minister will find this argument conclusive. If he had accepted the amendment on Clause 2 that so many noble Lords thought was valuable—to have parliamentary resolution for a general election—we would not have needed this debate on the ouster clause and could have got home much earlier. But he has rejected it and that brings us to the debate about the ouster clause itself.
In normal circumstances, when eminent lawyers pronounce on issues of law and legality, those of us who are not lawyers intervene with some trepidation. I am relaxed on this issue, however, because the ghost in the room is the debate on Prorogation, not Dissolution, and that it went to the Supreme Court. We all know the debates surrounding that and those of us who are not lawyers are emboldened by the defence that the Divisional Court thought 100% in one direction and the Supreme Court thought 100% in the other. Whichever argument you pick, you will have a few top lawyers on your side.
In my view, that whole episode relates to that dreadful Parliament I keep referring to between 2017 and 2019. All that debate, which went to the Supreme Court, derived from the background of a dysfunctional Parliament—a bad case, if you like. So much of the debate we are having now is with that and the judgments that were made hanging over us. The list of dysfunctionalities of that Parliament knows no bounds. I mention one obvious point: there was a Speaker who, on the biggest debate of the day—the referendum result and its consequences—was highly partisan on one side of the argument. In those circumstances, all sorts of other undesirable things follow.
I, for one, very much regret that the Supreme Court decided to get involved in politics at the highest level. I know there are all sorts of disclaimers that it was not doing that, but that is precisely what happened. It is difficult to imagine a more dramatic, higher-profile political issue than that of leaving or not leaving the EU, and the Supreme Court came down decisively on one side of the argument, in practical terms. As soon as the courts are involved in these kinds of highly charged political areas, we are in trouble.
I can certainly see the need for this ouster clause, but I regret the need for it because we should have dealt with this in the simple way of a parliamentary majority. We keep hearing about the three pillars of the constitution: the judiciary, the Executive and the legislature. In my book, and perhaps I am biased, one of those is greater than the other two—a first among equals—and that is Parliament, which is answerable to the public in a way the other two are not.
Viscount Stansgate (Lab)
My Lords, I have been listening to this debate and it has been extremely interesting. I will not detain the House because it is late, but what I find interesting—I am talking more generally about Clause 3, although I fully accept some of the points made about the wording and mission creep—is that this Government are claiming that the Bill simply restores the status quo ante. In fact, it is rather more difficult to restore the status quo ante than you might think.
In my view, the reason why Clause 3 is in the Bill is the Miller cases. The noble Baroness, Lady Noakes, and I disagree on what you might call the direction of travel—we can have a conversation about that some other time—but the Government cannot have it both ways. They cannot claim that they are restoring the status quo ante and, at the same time, make the argument for Clause 3. When the Minister replies, it would be helpful if he at least acknowledged that the Bill does more than restore the status quo ante. I will leave it there, in view of the late hour.
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.
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.
Lord Faulks (Non-Afl)
This may be an observation intended to help the Minister. Since the Bill was drafted, the Judicial Review and Courts Bill has been introduced. It contains an ouster clause, but one that is qualified as opposed to absolute, so the argument that this is being used as some form of basis for future ouster clauses seems to be defied by recent legislative practice.
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.
Lord Wallace of Saltaire
Member’s explanatory statement
This is a probing amendment aimed at debating the expectation of how long a Parliament should be in normal circumstances.
Lord Wallace of Saltaire (LD)
My Lords, before I speak to Amendments 7 and 9, I want to say one or two things about the conditions for Report. Here we are, late at night. We have just listened to the Minister make what I think is the longest speech I have ever heard to sum up in Committee, at 30 minutes, and there are still some important issues to debate. I appreciate that the length of his speech reflected the complexity and importance of the issues in a constitutional Bill; that being the case, we will need the time on Report, with a full House and without the enforcement of unusually short speeches, to discuss them further.
The House of Commons went through the Committee, Report and Third Reading stages of this Bill in less than two hours—not good for a constitutional Bill. This House is going through its Committee stage in a few hours, stretching late into the night. I very much hope that, when we come to Report, the usual channels will ensure that we start in prime time and address the very important issues, particularly in Clauses 2 and 3, at length and with the House listening.
Amendments 7 and 9 are probing amendments on the balance between frequent elections and regular elections and, secondly, about what time of the year they should be held if possible. I speak as someone with experience of having fought two elections in one year, the first in February and the second in late October. Yesterday, I talked to a former Conservative MP who said that he remembered having the impression of being damp for an entire month during a winter election. It is good for democracy if we have elections on a regular basis and in good weather in the summer; that is why I suggest that, where possible, we should have elections in June.
It is also good because regular elections allow for a longer period to know when controlled expenditure should be imposed and when the Opposition are entitled to talk to the Civil Service to prepare for a potential change of government. The prime ministerial prerogative to jump elections when they think is most to their advantage—we have not yet talked about incumbency advantage—deprives the Opposition of the advantage to prepare properly for governance afterwards. Good governance matters to an effective constitutional democracy.
I am also concerned about the effective monitoring and administration of campaigns. I go and talk to my local electoral registration team from time to time; my ear has been bent on the difficulties of running election campaigns at short notice. I heard anger in Bradford some months ago about Conservative MPs saying, “There is no problem—all it requires is for staff to work harder if it comes to it”.
I tabled the amendments to test the question: how often do we want to have elections, and do we wish to leave it entirely open as to whether they are in December, January or June? In my opinion, the default should be June, not coinciding with the May elections or devolved national elections. The exceptions should be at times of the year not including winter. That is the purpose of my amendments.
Lord Rooker (Lab)
My Lords, I have found the debate fascinating today. I thank the Minister for the detailed responses he has given. I have not changed my mind on any of the issues, and I very much support the noble Lords, Lord Norton and Lord Butler, and my noble friend Lord Grocott on the issues they have raised.
I looked around the House and realised I was probably the only person present who fought and won both the elections in 1974. I have been sitting here thinking what the weather was like. I know what it was like. On 28 February, it was snowing as I was still knocking up at 9.30 pm out in the constituency; it was a very important period in my life. My noble friend Lady Taylor asked me during one of the debates whether I would have supported a quick election a month after I had won in 1974. I was physically whacked at that point. Therefore, I was quite content, because the message came through after we all assembled that there would have to be another election later in the year. But that is not really what I want to raise.
I am going to devalue the debate; I am sorry about that. In respect of the length of a Parliament, I accept that the Bill restores the status quo; that is probably the least important part of the Bill. But in my view that is no excuse not to put the issue on the record for the future. I am going to repeat much of what I said on Second Reading. Five years is not the norm for general elections in the UK, to start with. I am no academic and no expert, but I know in the past that there was a legal maximum of three years, and there was a period where there was a legal maximum of seven years. I think the maximum has been five years since the Parliament Act 1911, but five-year Parliaments are rare.
Going early is a clear advantage to the sitting Government. That is why, during the 1970s, 1980s and probably 1990s, I became convinced that I was in favour of a fixed-term Parliament, because I could see the manipulation that was going on and the temptation for Governments to manipulate the economy, basically. In some ways, I regret that the Fixed-term Parliaments Act 2011 failed. It was designed to fail, almost. I accept it is going, and I am not trying to bring it back, but there are some difficulties with going back to the status quo ante.
There have been 20 general elections since 1945. Thirteen have been early, and the sitting Prime Minister won 10 out of those 13. Those 20, between 1945 and the last general election, were within 74 years, so we are talking about an election just under every four years. My experience in the other place was of seven general elections, and I sat for 27 years, so we averaged just under four years.
It was worse, in a way, not knowing when elections were going to be. My party was not a rich party. We had no offices in the city. Each time, I had to find somewhere for a headquarters, not knowing when the election was, and get phones in. It was difficult in those days, but nevertheless it was a joy to be in the other place for so long.
Giving the Prime Minister the choice of date is an advantage in the electoral system, and that is what I am against. I realise that building the checks and balances is not easy, because for every check there are disadvantages either way. But I do not think that it should be built into the system. As I said, I accept that we are abandoning the fixed term that we brought in in 2011. What I object to is the maximum length, which should be more like what we are actually used to, which is four years rather than five. There is some support for this view. People think that Governments run out of steam after four years, and there is some evidence for that but my point is not about it. My objection is quite different. Governments that seek to rig the electoral system, as this one is attempting to do, should be more limited as to how long it is before they meet the electorate. I want to shorten the time. I almost put an amendment down for three years to strengthen the point that I wanted to make—which I made at Second Reading, but when you have a good story to tell it is worth repeating.
This is nothing personal to any of the Ministers either here or in the other place, but there is a pattern whereby the Government are attempting overall to rig the electoral system. There is a succession of Bills and regulations before Parliament or due to come before Parliament, and I have a little list, which is not exhaustive, of their intentions: voter suppression, straight out of the Trump playbook, which we are about to get; action against the courts, shrinking their ability to hold the ruling party to account—that is the reality— curbing citizens’ right to protest; restricting the freedom of the press by removing the public interest defence; moves against election monitors and the referee in a concerted attack on the Electoral Commission, whose powers have never been as strong as I thought they should have been; widening the scope of the Official Secrets Act; and open attempts before our eyes to control the media via Ofcom.
There is a pattern here. We deal with each little bit as it comes along and have debates like we have had today, of a very high quality and forensic in looking at what is a very small Bill with massive implications—but the debate is in the context of this Bill. We have arguments already flattened by the noble Lord, Lord Faulks, who said, “No, the ouster clause won’t be used as a precedent, because there’s another Bill that hasn’t got the same ouster clause in.” This can make the point, as the noble Lord, Lord Norton, did, that the draftsman will find a way. I am very disappointed that the draftsmen have co-operated with all this, because they have operated under instructions. There are all these issues and others, which I will not go over. I quoted Lord Puttnam at Second Reading, who gave a couple of further examples.
It all makes it harder for a Government to lose power. That is what the pattern actually creates. Would a four-year limit stop this? No. I am just trying to shorten it from five. Would it limit the damage? Well, maybe. Is it worth raising? Oh yes, because I intend to raise it at every possible opportunity; not just on this Bill, but on all the others as they come. I am not alone. There are the Select Committees that were mentioned earlier, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. We have had two incredibly powerful reports published just before Christmas from this House—the unelected House—about the threats to our democratic process, which is really important.
This is where the tragedy is in some ways. I would love to be able to switch off from what I have now and pop back to the other place for a couple of years and say, “By the way, it’s not quite like we think it is. Things have got bad—it’s a little bit back in time.” That is not possible, however, because I came to this place ignorant of its powers, even though I had been down there and was a Minister as I swapped over. There is massive ignorance among the Members of both places about our roles and what we are doing.
I do not have a solution to this because the argument is always, “You’re unelected, you don’t count.” But because we are unelected and we do not have a vote in a general election, we are disinterested in some ways. I see no problem in this place saying to the other place to think again, because we are only a sub-committee of the other place. All our powers are to ask it to think again. At every opportunity, the House of Commons rightly has the last word. It does not matter what happens—it has the last word in every case.
I know that in extremes the Parliament Act can be used, but it been used only twice in my time. It is still the case, however, that the Commons has the final word. That is the case I always put across when doing the Peers in Schools programme. Our powers are incredibly limited, but they mean we can say, “Think again”. Sometimes we say, “And again”. I think there are a couple of examples where it was three times, then this place—obviously, as it is unelected—said, “You’ve had a good think about it, we’ll leave it alone.” That is our function. The fact is that they did not change that in the Bill.
There is an interchange sometimes when Ministers talk about Parliament but are actually talking about the Government. Government and Parliament are interchangeable—well, to Ministers they might be, but to the rest of the population they are not. Ministers say that Parliament has decided, but they mean that the majority controlled by the Government in the other place has decided. It is the Government who have decided. The whipping system and the timetable system have decided. In some ways I greatly regret the timetabling system used down there, but we had good reasons. I have lived through guillotines and I know what the rules were. What was it—100 hours to get a guillotine for wasting time upstairs in Committee? That is why timetabling was brought in.
The fact is that we receive Bills in this place that have not been thoroughly examined in the elected Chamber and that is a tragedy. There was a time when I tried, as a Minister, to suggest that we ought to have Bills with the bits that had not been discussed highlighted, but it is incredibly complicated to say which sections were not debated or looked at; you just cannot do it. We have to use our common sense and gumption.
The fact is that they are not doing their job in the Commons. That is the reality. Their job is to keep an eye on the Government and to question what the Executive are doing—and they are simply not doing it. They are distracted by other things, such as trying to do the job of local councillors for a start. It is easy for me to say that because it was not like that. I do not want to say that those were the good old days and throw back, but the House of Commons is not doing its job of scrutinising the Executive and we are receiving legislation that has not been properly scrutinised. Then, unfortunately, the Government say, “Oh, it’s the House of Lords, always defeating the Government.” We are not; we are simply saying that we want the Commons to do its job. That is what we are asking them to do.
In this case, I would be astonished if Clause 3 is still in the Bill when it leaves this place. There is the amendment supported by the Cross Benches and the noble Lord, Lord Butler, about letting Parliament decide on Dissolution; if you have one, you do not need the other. It is simple. Keep the judges away—I absolutely agree with that—but there is an easy way to do it: let the elected House do it.
I have made my point, but I shall keep coming back. For each Bill and regulation that comes along, I will recite the same list, because there is a pattern and the penny has to drop at some point.
Viscount Stansgate (Lab)
My Lords, I very much enjoyed the speech of my noble friend, for whom—I hope he will allow me to say—I have a great deal of affection. I am very interested in the list that he has and will use again; there is great merit in much of it.
I remember the weather on 28 February 1974, and it was shocking—appalling. I think my noble friend said that there was snow where he was; in the constituency where I was working it was solid rain, but I will say that the turnout improved compared to the previous election because it was an election that people thought mattered. The other thing about the weather, referred to by a noble Lord when he talked about the time of year that he would like elections to be held, is that I remember the weather in June 1970—it was gorgeous where I was. As I am about to tell the House on Friday, I cast my first vote in the election of June 1970. It was wonderful weather and it was an election called early by the then Prime Minister—and he lost. That was my first recollection of general elections: you can be very disappointed.
I hope my noble friend will not press his Amendment 8 to a vote, but I would find it difficult to join him if he did, because there is an element of flexibility in this. For more than 100 years, five years has been the standard length of a Parliament, and there is no reason to go beyond that. As he says, in his own experience—he has had a great deal of experience in another place in here—the period between elections averaged about four years. Therefore, without legislating, I think you will find that if you keep the period of five years, in practice events will unfold in such a way as to make it an average of about four years over a period of many Parliaments.
Baroness Smith of Basildon (Lab)
My Lords, I rise briefly, if only to remind your Lordships’ House that the Labour Chief Whip, the noble Lord, Lord Kennedy, and I were not able to vote in 1974, but that is probably not a good reason for rising to the Dispatch Box at this time of night.
I am grateful to my noble friend Lord Rooker for raising a number of issues that have concerned this House as a whole. I think it was my noble friend Lord Coaker who, during the debate on the police Bill last Monday, reminded the House that we were discussing measures to curtail protests that even Margaret Thatcher would not have contemplated during the worst times—as she would have seen it—of the miners’ strikes. We have moved a long way in what we think of as acceptable.
I point out that in 1838 the Chartists had six demands. All have been met, and we have gone beyond on some, such as the universal male suffrage that they wanted—we have improved on that—except for the one demand of theirs that has never been met, which is for annual elections. I am not making that case.
Baroness Scott of Bybrook (Con)
I thank noble Lords; I am very grateful to the noble Lords, Lord Wallace of Saltaire and Lord Rooker, for tabling these amendments, which have initiated what has been an interesting short debate, if not necessarily always on the amendments. In 1974, I remember pushing a pushchair and delivering literature, though not necessarily for the Labour Party of the noble Lord, Lord Rooker.
If noble Lords do not mind, I will stick to the amendments and not answer any further questions. The Bill makes express provision for Parliament to automatically dissolve five years after it has first met. This is the most straightforward way to calculate the five-year term. It also remains the case that your Lordships’ House has an absolute veto on legislation to extend the life of any Parliament.
I first turn to the question of the length of parliamentary terms. I have heard the argument for a four-year term, and I heard from the noble Viscount, Lord Stansgate, that he does not necessarily agree with the noble Lord, Lord Rooker, on this. However, the Government remain of the very strong view that five years is the right maximum length for any Parliament.
A maximum five-year term allows the Government time to undertake and implement their programme without having to start any electioneering. This is an important issue that I do not think the noble Lord, Lord Rooker, took into account as he did not mention it. Any Government have to deliver on the programme that is in their manifesto. Five years is a maximum period which I and the Government believe balances sensible, long-term government with ensuring that a Government and Parliament are accountable to the electorate in a timely manner.
In fact, we can that see parliamentary terms have developed their own effective and flexible rhythm. A strong Government seeking a fresh mandate might seek a Dissolution after four years. Anything less than four years is usually a sign of some political crisis or emergency. Often, Parliaments are dissolved for political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis. Moreover, shorter maximum terms invariably mean earlier speculation about whether a Parliament will see out its full term. This speculation does not serve Parliament, the public or businesses well. The former Cabinet Secretary noted in evidence at PACAC that longer-term Parliaments and longer-term tenures for both senior civil servants and Ministers would all be very good for Governments, who are increasingly having to face up to very long-term issues, as we have seen recently.
Finally, this question was reviewed by the Joint Committee, which did not question the starting premise that five years is the appropriate duration for parliamentary terms and the life cycle of a Parliament.
I will now address the amendment proposed by the noble Lord, Lord Wallace of Saltaire, on the timing of elections. The noble Lord has reflected on the experience of the electorate in December 2019 and observed that winter elections are not desirable. I hope your Lordships will allow me to relate Stanley Baldwin’s comments on the impossibility of finding a time for an election that suits everyone. On 23 October 1935, when seeking a Dissolution, Mr Baldwin observed on the timing of elections:
“Therefore I have long come to the conclusion that you must rule out the spring and summer months because of financial business. You must rule out August and September because of the holidays. You are left with the autumn, but in no circumstances must you run into any interference with the Christmas trade.”—[Official Report, Commons, 23/10/1935; col. 154.]
Those light-hearted remarks contain an important kernel of truth.
Certainly, outside times of political tumult when exceptional elections are necessary, it may well be the case that a Prime Minister would prefer not to call on the public to venture out to cast their vote in the depths of winter. I share the noble Lord’s sentiment that winter elections do not provide the most ideal conditions for queuing at a polling station or canvassing from door to door. The election in 2019 was, of course, exceptional and was called to bring an end to a period of extended parliamentary deadlock.
Nevertheless, the purpose of the Bill is to provide for a system that will serve successive Governments. As the 2011 Act has taught us, we should not draft our constitutional arrangements in response to one event. There is no guarantee that, in the future, an election will not again be required in December—or February, as in 1974, which we have heard about. So it would not be wise to legislate in the long term for an event that was an exception to the rule. Our arrangements need to be adaptable. That is the important point.
The challenge of the approach set out in the amendment of the noble Lord, Lord Wallace, is that it prevents the flexibility necessary for a Government to respond to particular circumstances. As such, I suggest to the noble Lord that to subject the timing of elections to this particular constraint—even if Parliaments do not normally run their full term—would run counter to that objective.
The purpose of the Bill is to revive arrangements that have stood, and will continue to stand, the test of time. I am grateful to the noble Lords, Lord Wallace and Lord Rooker, for stimulating this fascinating discussion but I hope that your Lordships’ Committee will agree with me that Clause 4, unamended, is the most suitable approach to achieve that aim. I therefore urge the noble Lord to withdraw his amendment.
Lord Wallace of Saltaire (LD)
I beg leave to withdraw the amendment, noting that we may return on at least one of these amendments on Report. That remains to be discussed.
Lord Wallace of Saltaire
“(3) This Act comes into force when a revised Dissolution Principles document has been laid before Parliament and—(a) the revised Dissolution Principles document has been approved by a resolution of the House of Commons; and(b) the House of Lords has debated a motion to take note of the revised Dissolution Principles document. (3A) The Dissolution Principles document under subsection (3) must be revised to refer to a “request” from the Prime Minister to the Sovereign to dissolve Parliament.”Member’s explanatory statement
This amendment seeks to implement a recommendation from the Joint Committee on the Fixed-term Parliaments Act to revise the Dissolution Principles document.
Lord Wallace of Saltaire (LD)
My Lords, the purpose of the two amendments in this group is to draw attention to recommendations made in the Joint Committee report and in a number of other parliamentary reports to which the Government have responded weakly and inadequately.
Paragraph 15 of the Joint Committee report states:
“The move to reduce executive dominance in key parts of the UK constitutional arrangements … was accompanied by a desire to clarify and make public the understanding of constitutional conventions.”
It then references the White Paper, The Governance of Britain, of 2007, and the drafting of the Cabinet Manual. The Constitution Committee’s report, Revision of the Cabinet Manual, published last July, stated at paragraph 35:
“We recommend that a draft update of the Cabinet Manual should be produced as soon as possible, and not later than 12 months from the date of this report.”
Paragraph 44 states:
“We note the open and constructive engagement which took place between the then Government and parliamentary committees on the first draft of the Cabinet Manual in 2010–11.”
Paragraph 45 goes on:
“We recommend that future drafts, including draft individual chapters, should be shared with our Committee and the relevant committee in the House of Commons for comment. This can help to achieve consensus”—
a word the Government do not seem fully to understand—
“on the text.”
It added that the next draft should commit to regular revision at the beginning of each Parliament—a summary of conventions, so that there is clarity and these things are understood.
On Dissolution principles, the Joint Committee at paragraphs 227 and 228 says that
“legislation—by definition—does not create or restore conventions … there needs to be a political process to identify, and to articulate, what those conventions are … The overwhelming consensus of those who gave evidence to the Committee is that the Dissolution Principles document falls short.”
Given that the Dissolution document as produced by the Government has received fairly universal criticism and very little approbation, it is quite remarkable that the Government have not yet provided a draft. I hope that the Minister will be able to say that a draft is now well under way and will shortly be provided. I say this with particular emphasis because we may well come out of the next election without a single-party majority. It is quite likely that there will be at least four parties which have two dozen MPs and another two parties which have perhaps a dozen, so there could be a very complicated outcome. At that point, we will need some clear guidance, understood by all those likely to be involved, about how government will be formed in a difficult situation.
The Public Administration and Constitutional Affairs Committee in July 2021 pressed the Minister to issue a revised Dissolution principles document, which has not yet been provided, and the Minister in the other place, Chloe Smith, told the Commons on 13 September that there was
“ongoing dialogue to be had”—[Official Report, Commons, 13/9/21; col. 751.]
on Dissolution conventions. I hope the Minister will be able to tell us how that dialogue is going on, when it might conclude and whether he thinks it is appropriate for this Bill to become an Act before those necessary documents to mark and clarify our conventions, which should accompany it, have been published and agreed with Parliament. I beg to move.
Lord Norton of Louth (Con)
My Lords, I very much agree with the noble Lord about the need for a revision of the Cabinet Manual. It is long overdue. I see the point of his amendment is to try to spur that, so I put on record the importance of bringing it up to date and incorporating quite a lot of material that needs putting in.
I am a bit wary of the noble Lord’s amendments, particularly Amendment 10, because he is trying to get Parliament to approve something which is really in the gift of government. The Dissolution Principles are those which would govern the Prime Minister in requesting a Dissolution, and that really is a matter for government and the principles that will govern that. It might be laid before Parliament, but there really should not be a requirement for it to be approved by a resolution of the House of Commons.
There should be an update of the Cabinet Manual, but it is important to remember that the Cabinet Manual is not something that needs to be endorsed by Parliament. It is distinct from Parliament and draws together the provisions, as we understand them, and the conventions, but it is a manual for government to which we can have recourse. Yes, there should be dialogue with committees and consultations so that we can feed into that, but at the end of the day it is within the remit of the government. It is a government document, not one to be endorsed by Parliament.
Viscount Stansgate (Lab)
My Lords, I agree with the noble Lord, Lord Norton, that it does not have to be agreed by Parliament, but the Cabinet Manual is a really interesting document. I remember when it came out; other noble Lords might remember it as well. I believe it was triggered and inspired by the then Government and the then Cabinet Secretary, who is a Member of this House. It is a pity that he is not here because he could play a big part in the short debate that we are having on this question.
For those who have never seen it, it was a fascinating document because it encapsulated the conventions that had existed for many years but had never been codified in any way. It was very useful. I feel very sorry, incidentally, that, for a debate such as this, the noble Lord, Lord Hennessy of Nympsfield, is not here to take part. Our debates would be hugely enriched by having him here; of course, he coined one of the phrases of recent times, the “good chaps theory of government”. Many of the things that we have been discussing have illustrated ways in which people feel that we are departing from that theory and we are discovering that our constitution is capable of being abused. I do not want to go back over history, but we would not have had the discussion that we had about Clause 3 and references to the Miller case without that being an obvious example, and there are others.
Of course, this will not be pressed to a Division tonight, but a great deal more attention should be paid to the Cabinet Manual. I am rather unclear as to how it could be revised and who would be involved in doing it. A noble Lord said earlier that we were talking about where power lies in our constitution. When I visited a school recently, I recommended that the students read the Cabinet Manual, or at least have it to hand, because if they wanted to understand our constitution, that was an essential part of it. The sixth-formers looked at me rather blankly and I do not blame them in the slightest. That does not mean to say that I was wrong, because it still is very important. I am not sure how it could be updated, but it would be a very good thing. It is rather like when Gandhi was asked what he thought of civilisation in Britain and he replied, “Well, I think it would be a very good thing.”
Nevertheless, I support the spirit of the amendment and I would be interested to know whether we are going to come back to this on Report. If so, I hope to play a modest part in the debate at that stage.
Lord Kennedy of Southwark (Lab Co-op)
I just want to say how much I enjoyed my noble friend’s speech. I very much agree with his points and those of the noble Lord, Lord Norton of Louth. The Cabinet Manual is an important document. It is a government document, not a parliamentary one, but we need to ensure that it is used properly and respected. That is a very important point to make.
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
Wednesday 9th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 51-R-I Marshalled list for Report - (7 Feb 2022)
13:04 - Division on Amendment 1 - Ayes: 200 / Noes: 160 - Amendment 1 agreed.
14:33 - Division on Amendment 5 - Ayes: 120 / Noes: 230 - Amendment 5 disagreed.
Lord Judge
“(1A) The powers referred to in subsection (1) shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””
Lord Judge (CB)
My Lords, in the recent Committee debate I undertook to reread Hansard because I particularly wanted to address the views expressed by those who disagreed with this amendment. I have done so. I continue to respect those views but I do not share them. I am going to urge the House that understandable reasons should give way to compelling ones.
The arguments focused largely on the merits or demerits of the amendment, but in a sense what we were discussing does not really matter because, as I hope I made clear in my reply to the debate, it is obviously not for this House to decide the issue; it is for the other place to do so. It is a decision for the elected Chamber, and we are not elected.
The purpose of the amendment is simple: the objective is to offer the other place an opportunity to reflect again on this hugely important constitutional Bill and see whether it may have second thoughts. If the second thoughts lead the other place to the same view, so be it: that will be its view, and we must accept the view of the elected Chamber. However, I intend to abide by whatever decision is made by it after what I hope may be a fuller consideration of the merits or demerits of the arguments both ways—much fuller than it was, given the somewhat peremptory way in which this entire Bill was dealt with.
We have become habituated—have we not?—to the steady, apparently unstoppable accumulation of power in No. 10 Downing Street, and we have done so while simultaneously the authority and weight of Parliament itself, and the House of Commons in particular, have been diminishing. It is astonishing to think that we are now proposing to resurrect the medieval concept of the prerogative, the concept on which the divine right of kings was based. King James, and King Charles just across the road, will be laughing as they turn in their graves. The king lost his head in part because he kept dissolving Parliament.
I wonder whether any noble Lords heard Oliver Cromwell thinking of stepping off his plinth outside; I thought I heard a movement or two, but he has gone back. Cromwell, having been a great parliamentarian, decided that Parliament was not doing what he wanted, so Parliament was “purged”—an interesting thought and an interesting use of words. At that stage in our history, Parliament had obtained, through the Long Parliament, the right to dissolve Parliament. Cromwell did not dissolve it because he did not have the power to do so; he simply purged it. What are we doing resurrecting an ancient power in the 21st century?
Lord Lansley (Con)
My Lords, I have signed once more on Report this amendment, along with the noble and learned Lord, Lord Judge, and I entirely agree with what he just said to the House. That is partly in the light of the debate in Committee, which compellingly reinforced the need to send this issue back to the other place to be reconsidered, and for it to make the final decision, as the noble and learned Lord says.
I say to colleagues, not least on this side of the House, that the Conservative Party’s manifesto in 2019, which we are implementing, said:
“We will get rid of the Fixed Term Parliaments Act.”
This legislation, including Amendment 1, will do that. So the Conservative manifesto commitment will be met. The question, of course, is what we put in its place.
My noble friend on the Front Bench will have his chance to say so, but he has said that the purpose of the Bill is to restore the prerogative power, or the status quo ante. I have to say that it still feels like generals fighting the last war—they are fixed on the events of the autumn of 2019, and, as the noble and learned Lord, Lord Judge, has amply illustrated, we are not in the situation of the end of 2019 and we may never be again. If one looks at the events of the autumn of 2019, one sees that three times the Prime Minister sought a general election and failed to secure a two-thirds majority but in each case secured a simple majority. The proposition, which seems to be at the heart of the Government’s approach, is that this Bill prevents gridlock, but in my view a simple majority of the House of Commons would, in almost all circumstances, also prevent such gridlock.
More to the point, as the noble and learned Lord, Lord Judge, said, is the question that the other place has to answer: should this once again be an executive decision of the Prime Minister of the day, regardless of the view of the House of Commons? I will not go on at length, but I repeat my view that the Prime Minister exercises the responsibility to request a Dissolution by virtue of the fact that he or she commands a majority in the House of Commons. If a Prime Minister loses the confidence of the House of Commons, by what right do they go to the palace and seek a Dissolution? In the circumstances in which a Prime Minister loses the confidence of his or her own party, and of the House of Commons by extension, there may be, and often has been in the past, an opportunity for a new Administration to be formed who enjoy the command of a majority in the House of Commons. Under those circumstances, it seems to me that it would not be right to seek a Dissolution.
The noble and learned Lord referred to what Mr Rees-Mogg said. I am a former Leader of the House of Commons and I believe that the job of the Leader of the House of Commons is to explain the Government’s thinking to the House and explain the House’s thinking to the Government. On this occasion, the latter did not happen. The House was not in a mind to have a Dissolution and an election and I do not think that the Leader of the House was reflecting any view in the House of Commons to that effect. It was, therefore, a threat—an unconstitutional threat, since the Fixed-term Parliaments Act currently applies and such a threat could not be given effect unless and until this legislation passes into law.
My point is that we should give an opportunity not to restore the prerogative in the form in which it existed in the past but to qualify it by reference to what is the reality of our constitution—that sovereignty rests in the sovereign in Parliament, that that must be reflected by a majority in the House of Commons and that therefore a request for an election should be backed by a simple majority in the House of Commons. Anything other than those circumstances would be an illegitimate request and contrary to the view of Parliament.
Lord Grocott (Lab)
My Lords, I mentioned in Committee and I mention again to the House now that I have always been a strong critic of the Fixed-term Parliaments Act and I was pleased when the Government decided to do away with it. But I find myself in a strange position now of being pleased that they have introduced the Bill but disappointed with it, because it is a messy and—for the reasons that the noble and learned Lord, Lord Judge, said—counterintuitive solution, in that it is moving power back to the monarch. It is a messy solution to a problem that was particular, in most respects, to the 2017-19 Parliament and which, as the noble Lord, Lord Lansley, said, we are now trying to repair or prevent from happening again.
My message is simply that the shenanigans of the 2017-19 Parliament were a result, more than anything else, of the 2011 Fixed-term Parliaments Act, which this Bill will repeal. We need not worry about that kind of problem again because it is incredibly unlikely—impossible, I would say—that we will see those sets of circumstances recurring. Of course, the main reason why the Government could not get a majority for a general election—a facility that I strongly believe should be available to a Government—was the requirement for a two-thirds majority. On each occasion when Boris Johnson went to Parliament and asked for a majority, it gave him one, but not a two-thirds majority.
The solution being offered by the noble and learned Lord, Lord Judge, is beautiful in its simplicity. It solves all the problems with one mighty bound. The main problems of this Bill—or rather, the problems that it does not resolve—are the possible interference by the judiciary, the possible politicisation of the role of the monarch and the argument that we can all have about what the Dissolution principles should be, which a lot of the debate in the Joint Committee was about. With one mighty bound we are free, if we say that you need a majority in the House of Commons. It prevents—for ever—any possibility of the monarch again being involved in this most political of decisions and of saying to a democratically elected Prime Minister, “No, sorry, I’m the monarch; you think you should go to the people, but I’m telling you that you can’t.” It is inconceivable that that could happen and, if it did, it would be a constitutional crisis of a magnitude that we have not so far seen. You get rid of all that area of debate and problem. You also get rid of this ugly ouster clause, to which we will come in a moment. The courts are kept out of it because no court is going to challenge a majority verdict of the House of Commons. With a simple majority in the House of Commons, it is job done. The courts and the monarch are out of it.
Lord Howard of Lympne (Con)
My Lords, I apologise that I was not present during the Committee stage. The noble and learned Lord, Lord Judge, knows that I have great respect for him. We enjoyed working together in opposition to the Government’s Internal Market Bill. He was courteous enough to ask me my opinion of his amendment before he put it down. I told him that I would be unable to support it. The reason is the answer to the question that he posed during his remarks, to which my noble friend Lord Lansley purported, but failed, to give an answer, which is: what happens if there is, as there could be—and no one in your Lordships’ House can suggest that there could never be—a revival of the circumstances in the House of Commons between 2017 and 2019? The position was that the Government could not properly govern because they did not have a majority for many of the things that they wanted to do. The House of Commons did not want them to govern and so was content with that stalemate position and that hobbled Government, which did no good whatever to Parliament or the country.
I do not understand why this is referred to as a messy Bill. It is a perfectly straightforward Bill, which seeks to restore the position as it was before the Fixed- term Parliaments Act. The Act was necessary for the course of the coalition Government, but it should never have been made permanent. I very much regret that I did not vote for an amendment in your Lordships’ House that would have made it temporary.
Baroness Taylor of Bolton (Lab)
Would the noble Lord acknowledge, as my noble friend has proved, that, in the circumstances about which he is talking, the Government had a majority for an election? Therefore, this amendment would not have created the difficulties that he is suggesting.
Lord Howard of Lympne
The noble Baroness and her friends cannot possibly give an assurance that a circumstance will not arise not precisely the same as that which occurred between 2017 and 2019 but in which a simple majority could not be obtained for an election, because a majority of the House of Commons was content to stymie and hobble the Government and keep them in place in that paralysed state, which was what we saw in that unhappy time.
Lord Reid of Cardowan (Lab)
The noble Lord seems to be missing the fundamental fact that the problems to which he referred took place under the Fixed-term Parliaments Act, which required a two-thirds majority. This Bill gets rid of the Fixed-term Parliaments Act. The circumstances that occurred in 2017-19, as the noble Lord, Lord Lansley, pointed out, cannot recur in absence of the Fixed-term Parliaments Act.
Lord Howard of Lympne (Con)
With respect to the noble Lord—he knows I have great respect for him—I do not think that he was listening to what I have just said in answer to his noble friend. All this Bill does is to replace the bar of the two-thirds majority which the Fixed-term Parliaments Act provided with a slightly lower bar, but there is still a bar and it is perfectly conceivable that we could have a House of Commons in which the Government did not have a majority.
Baroness Smith of Basildon (Lab)
I am listening to the noble Lord with care and I think that there is a fundamental flaw in his argument. On that basis, does he not accept that a simple majority is used for every piece of legislation in the House of Commons? Why should calling a general election be any different? A simple majority is a sensible bar and a sensible test of whether the country should have an election.
Lord Howard of Lympne (Con)
The answer to the noble Baroness is this: if legislation is put before the House of Commons and it fails because there is no simple majority for it, there is a simple answer—the legislation fails. You do not have a situation that could go on for years in which a Government remain in office in a state of paralysis because that is what a majority of the House of Commons wants. That is the mischief that would arise in relation to this Bill.
Lord Marks of Henley-on-Thames (LD)
But why should a Prime Minister who cannot get a majority of the House of Commons for an election be entitled to a Dissolution?
Lord Howard of Lympne (Con)
Because our Government need decision. If you have a situation in which you have paralysis in the House of Commons, it is in the national interest that this should be resolved. The way in which it has traditionally been resolved and would now be resolved again if this Bill were passed would be by the Prime Minister asking Her Majesty, the monarch, to exercise the prerogative to provide a general election, which would resolve that paralysis.
I will say one more thing on Clause 3, because I do not want to trouble your Lordships again. The noble Lord, Lord Grocott, said that the ouster clause was completely unnecessary because no court would ever challenge the decision of a majority of the House of Commons. Had the noble Lord been present on Monday, he would have heard your Lordships’ House debate a number of occasions in which the courts had challenged legislation passed by a majority of the House of Commons. I am afraid that the noble Lord’s reliance on the reticence of the courts in these matters is considerably misplaced, particularly having regard to their decision on Prorogation. For that reason, Clause 3 is absolutely essential.
Lord Grocott (Lab)
We are talking about a resolution of the House of Commons. Can he give any circumstance —we are not talking about legislation; we are talking about resolution—where a resolution of the Commons was overturned by the courts or was even regarded as being justiciable by the courts?
Lord Howard of Lympne (Con)
The noble Lord talks about a resolution, but what he previously said was that the courts could not be imagined challenging any decision that obtained a majority in the House of Commons. It was to that observation that I replied. There are many examples and I refer him to the Hansard of Monday’s debate.
Lord Butler of Brockwell (CB)
My Lords, I rise briefly to support my noble friend’s amendment, but with reservations. My reservation is that which has been put forward by the noble Lord, Lord Howard. It is not inconceivable that a Government could be hamstrung by failing to get a majority in the House of Commons and could not get their programme through. I believe that there should be restraints on the improper use of the power to dissolve. We are all agreed that it should not be the sovereign and there are dangers in it being a resolution of the House of Commons. That is why I will argue for the removal of Clause 3 so that in the last resort there can be resort to the courts.
Lord Cormack (Con)
My Lords, the removal of Clause 3 would be the second-best option. The noble Lord, Lord Butler, knows that I was sympathetic when he raised this point at Second Reading. Like my noble friend Lord Howard, with whom I frequently agree but not today, I apologise for not being here in Committee. I was attending a farewell dinner for a friend who had given some 20 years’ service in his post and I felt that, as I had spoken at Second Reading, I could reserve what I wanted to say for Report. I strongly support what the noble and learned Lord, Lord Judge, said, in his balanced, measured and eminently sensible speech.
To give unfettered power to any individual is a very serious thing indeed. I believe that it is important that this House today gives the other place an opportunity—an opportunity that it did not take when the Bill was with it. It is important because things have moved along quite a lot, not least with the intemperate, frankly bullying and certainly unconstitutional threat of Mr Rees- Mogg, which was one of the worst utterances that I have heard in my 50 years in Parliament from any leader or indeed any senior Minister of the Crown.
We know—I know from personal experience—that you do not need a general election if there is a change of Prime Minister. Harold Wilson resigned in 1976 and was replaced by Jim Callaghan. The election in which Mrs Thatcher had her triumph came three years later. Mrs Thatcher retired—or left—and was replaced by John Major without a general election. David Cameron, contrary to his promise to carry on, a few hours after the referendum result indicated that he was going and was replaced by Mrs May without either a general election or a party election for a leader. Those are historic facts. I believe that it is very important that the House of Commons should have a say in this.
I agree very much with what the noble Lord, Lord Grocott, said about the Fixed-term Parliaments Act and I bid it farewell without any sadness. Although my noble friend Lord Howard is right in a theoretical sense that of course anything can happen—we can all think of extreme things happening—I honestly do not believe that it is at all likely that you would not get a majority in the House of Commons, perhaps a slender one, one way or the other.
Lord Pannick (CB)
My Lords, the noble Lord, Lord Howard, raised a concern that there might be a Prime Minister who is unable to govern and to secure a majority for a Dissolution. There is a constitutional solution to any such problem, should it occur—that such a Prime Minister should resign and let someone take over who is able to command a majority in the House of Commons.
Viscount Stansgate (Lab)
My Lords, the House does not need or want a history lesson, but over hundreds of years power has been reclaimed from monarchs by Parliament and the necessary transfer of power from Prime Ministers to Parliament. There is an imbalance in the balance of power between the legislature and the Executive, but it turns out that repealing the Fixed-term Parliaments Act 2011, which I think everyone in this House agrees should go, is more difficult than was imagined. We are an unelected House, but I can think of no better use of my vote today than to vote for Amendment 1 and allow the House of Commons to consider the matter properly and to reach its view, as the noble Lord, Lord Cormack, said. People disagree as to the nature of future constitutional circumstances but I am very proud of the fact that I have a vote that can send this amendment to the House of Commons and I, for one, will be content with whatever the House of Commons decides it wishes to do.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I oppose this amendment. How beguilingly it is put. What could be more tempting than simply to say, “Vote in favour and all you are doing is giving the House of Commons another opportunity to discuss it”? We really ought to consider whether the case in favour is sufficiently powerful to take that unusual step, tempting as it may be. It is certainly not every day of the week that I find myself in agreement with the noble Lord, Lord Howard, and I agree, too, with my noble friend Lord Butler that this solution to the problems that have been identified today is not a good one.
I respectfully remind the House that although the matter took only a little time in the House of Commons, the Fixed-Term Parliaments Act Joint Committee pointed out in paragraph 86 of its careful and thorough report that there was only a minority in favour of giving the House of Commons by Motion a veto over a proposed Dissolution, as this amendment would do. It ended:
“The majority 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.”
Of course I recognise that, under this proposed amendment, a two-thirds majority would drop to 51%. However, as the noble Lords, Lord Howard and Lord Butler, pointed out, a hung Parliament could well reproduce the sort of stasis and chaos at which we arrived back in the summer of 2019.
I do not pretend to agree with the noble Lord, Lord Butler, on the next amendment, but this is a different point entirely. Given that, there should be a guardian against the sort of abuse that the noble Lord, Lord Grocott, suggested could occur in the way of the prime ministerial prerogative of Dissolution; I suggest Brenda of Bristol.
Lord Newby (LD)
My Lords, I am not quite sure I know how to follow that last remark. I have put my name to this amendment for the reasons so eloquently given by the noble and learned Lord, Lord Judge. Like him, I carefully read the considered and lengthy response of the noble Lord, Lord True, to the equivalent debate in Committee. The noble Lord set out to make our flesh creep about the consequences of this amendment. I shall deal with three of his arguments, one of which has already been dealt with today.
First, the noble Lord said that, if this amendment were passed, the chance of zombie Parliaments would remain high. As we have already heard, the last Parliament was a zombie Parliament to the extent that the Fixed-Term Parliament Act requires a two-thirds majority. Without that, it would not have been. The noble Lord, Lord Howard, said, “Ah yes, but there will be other circumstances in which such a zombie Parliament could obtain”. The noble Lord, Lord Pannick, has explained the first next step if a Prime Minister were unable to win a majority. I think that the noble Lord, Lord Howard, is asking us to entertain as plausible the possibility that, if nobody could form a Government, Parliament would decide that it wished to continue in existence without there being a credible Government. This is completely implausible to me. I cannot foresee circumstances in which such a situation would obtain for more than a very short period—a day or two at most. The noble Lord did not set such circumstances out. I do not believe that this amendment makes zombie Parliaments more likely.
Secondly, the noble Lord, Lord True, said that the amendment is “dangerously silent” on the status and practice of the conventions associated with confidence. Of course it is silent on the convention because conventions are not law. In the case of a Motion of no confidence having been passed, it seems blindingly obvious that, at that very minute, there would be a vote under the Act, as it would then be, to call an election. I cannot see circumstances in which that would not happen. The fact that conventions are not mentioned in this Bill is impossible and largely irrelevant.
Thirdly—and most extraordinarily—the noble Lord, Lord True, argued that this amendment, if passed, would deny or “overturn” the votes of millions. What on earth does that possibly mean? When millions vote, they do so in the expectation that there will be a full term of Parliament. During the course of a Parliament, they may or may not at any particular time wish that there were another election. As it happens, today, I suspect that most people would be rather glad to have an election, but that is not the way the constitution works. Parliament is elected for a period. If that period is to be truncated, the authority for truncating it rests with Parliament. The people have no say in whether to have an early election under our constitution, and the Government are certainly not proposing that, so the argument that, somehow, the amendment would frustrate the votes of millions is completely misplaced.
It comes down to a simple question: where should the ultimate source of power in our constitution rest? This was the question which the noble and learned Lord, Lord Judge, posed. We contend that it should be with Parliament and not the Executive. We contend that the steady accretion of power to No. 10—which, to a limited extent, has been further added to by the decision of the Prime Minister to set up a prime ministerial department— is not good for democracy. The amendment is one small way of reversing that trend.
Lord Sentamu (CB)
My Lords, I apologise that I was not present during Committee.
When I was a student, a young person doing A-levels in Uganda, there was a question: “How are the people of the United Kingdom governed?” The book said, “The people of the United Kingdom are governed by the Queen in Parliament under God”, and went on, “and the sovereign is Parliament.” If Parliament is the ultimate authority, to deny it the possibility of agreeing to the Dissolution of Parliament seems bizarre. If it is not, who has the ultimate authority? The noble Lord, Lord Howard, said that the Government could be paralysed and could not govern, but governance can happen only if those in the Executive are accountable and transparent to Parliament. If they are not, we are creating a body of people who think they are not answerable for their decisions to Parliament—that they are the ones who give it legitimacy. They may find themselves paralysed because, for whatever reason, they cannot obtain a majority. We heard that lady in Bristol when the election was announced in 2017. She said, “Not another election!” People are fed up with ad hoc solutions that often do not help.
I support the noble Lord, the Convenor of my group, who has provided a simple solution. If the Government cannot obtain a simple majority for Parliament to be dissolved, so be it. As for the calling of elections regardless because you are not getting your legislation through, well, if Parliament is objecting and it is sovereign, it requires a bit of humility to say, “We did not get it this time; maybe next year.” I plead for this simple amendment, which would resolve all the problems that the noble Lord, Lord Howard, talked about—of the power of the sovereign and the power of the courts. Of course, the courts will intervene if something illegal has been done. Do noble Lords remember the Brexit question, when there was a desire that it should be done through the royal prerogative, the old King Henry VIII powers? The court said, “No. The act to enter into these negotiations was an Act of Parliament, and if you want to do away with it, it is Parliament that must consent for that to be done.” That was when the courts intervened, by the way.
I, for one, support this simple way to resolve the problem that the Fixed-term Parliaments Act created, but we surely cannot go back to the power of the Prime Minister as if Prime Ministers are not accountable to Parliament: they are.
Lord Bridges of Headley (Con)
My Lords, first, I apologise that I was not able to speak in Committee. I did, however, read the very interesting debate, and I am extremely sorry to say that I find myself at odds with the noble and learned Lord, Lord Judge. I think he and I wholeheartedly share a concern about the creeping, stealthy growth in the size of the state and of the Executive. I have spoken on this before and I will always stand up with him to oppose it.
Also, I fear that I am taking on my former boss, my noble friend Lord Lansley, on this matter. Listening to them, I feel, as the noble and learned Lord, Lord Brown, said, that they are making some very beguiling arguments. As we have just heard, what is being suggested in the amendment sounds very simple. We could be in The Jungle Book, facing Kaa and his big eyes: it is a simple, big thought that we can just introduce this amendment and all will be well.
Lord Reid of Cardowan (Lab)
My Lords, I apologise for not having attended previous debate on the Bill, but I want to make just two simple points. First, it is not true that the problems of the Fixed-term Parliaments Act were not foreseen. They were foreseen and explicitly raised by many Members on this side of the House. Secondly, however, the noble Lord, Lord Bridges, has encapsulated the difference between the two sides of this argument. In particular, I ask him to reflect seriously on his statement that we want power flowing from the ballot box to the Executive. That is completely contrary to the constitution of this country. Indeed, not only is it contrary to that, but it is enormously dangerous, because any system—
Lord Bridges of Headley (Con)
What I want is a system where, if the Prime Minister wishes to call a general election, that election happens and we get to the situation in which we can trust the people. That is where I wish to see the power flowing.
Lord Reid of Cardowan (Lab)
Out of courtesy to the noble Lord, I will check the record, but my distinct recollection was that he said that we want a system where power flows from the ballot box to the Executive. Not only is that contrary to everything we believe, by omitting Parliament in the middle of it, but it is the basis of every bad dictatorship that Europe has produced—referendums and power flowing from the ballot box to the Executive. That is the extreme case or course, but it is, in essence, precisely the difference between the arguments on the two sides today, in which we believe that on major issues, which now in the British Parliament include the declaration of war, the people who should make the decision at the end of the day are those in Parliament, not the Executive. All the power that the Executive receives is because they can control or, rather, call on a majority in Parliament. Should the Executive cease to have the confidence of Parliament, whether on policy, war, peace or the Dissolution of Parliament, the Executive cannot proceed unless they can change the mind of Parliament. That is a simple argument that applies to the most important things that Parliament can decide. I would argue that the Dissolution of Parliament is one of those issues.
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.
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?
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.
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.
Lord Norton of Louth
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.
Lord Norton of Louth (Con)
My Lords, on the assumption that the Government invite the Commons to disagree with the amendment we have just passed, I move Amendment 2 and speak to my other two amendments in this group. I pursued these in Committee and believe their importance is such as to merit returning to them on Report.
As I argued in Committee, the provisions of Clause 3 that are covered by my amendments conflict with the Government’s aim to restore the constitutional position to that which existed prior to the enactment of the Fixed-term Parliaments Act. They are also objectionable in principle. It is this point I wish to pursue.
In Committee, the Minister, my noble friend Lord True, sought to justify both the use of “purported” and the inclusion of paragraph (c). He advanced a “thin edge of the wedge” argument: the clause is necessary because
“the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.”—[Official Report, 25/1/22; col. 233.]
The courts are viewed by the Government as having encroached in certain cases on the exercise of the prerogative where vested in Ministers. Because the courts have gone beyond what the Executive wished, they wish to prevent them straying further in respect of the Dissolution of Parliament. As my noble friend emphasised, the use of “purported” is to make it plain that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.
My contention is that the fear underpinning the provision is unfounded. The cases cited by my noble friend are not sufficient to show that the courts would ever go near the exercise of the prerogative where the Dissolution and calling of Parliament are concerned. As my noble friend reminded us in Committee, Lord Roskill said, in 1985 in the GCHQ case, that the Dissolution of Parliament was
“not susceptible to judicial review”.
Indeed, Lord Roskill identified what he referred to as “excluded categories”, comprising prerogative powers that by their “nature and subject matter” were
“such as not to be amenable to the judicial process.”
These included
“the dissolution of Parliament and the appointment of ministers”.
I regard the powers not exercised on advice as the ultimate excluded categories.
In Committee, I moved an amendment to put on the face of the Bill that the prerogative power to dissolve Parliament and call an election was a personal prerogative power of the monarch, not exercised on the advice of Ministers. There would therefore be no advice for the courts to consider. The prerogative powers not exercised on advice are such as to put them in a class of their own as there would be no purported exercise or purported decision. If the personal prerogative is revived, the use of “purported” has no relevance. This is not addressed in the letter from my noble friend Lord True to the noble Baroness, Lady Smith of Basildon.
If the argument is that the prerogative is now a statutory power and that is the route through which a challenge may be mounted, the problem with the use of “purported” is that it enables Ministers to go beyond their powers. Let us be clear as to the meaning of “purported”: it means that something has been stated to be true or to have happened, even though that may not be the case. My noble friend Lord True argued that the use of the word would not constitute a precedent—we have seen evidence already this week of its use in another measure—but I am not persuaded that it is desirable in principle to embody such a provision in statute. As he said, it may be a bespoke solution, but it is a bespoke solution in plain sight. It is constitutionally objectionable, as potentially it conflicts with the rule of law. That should concern us all. It should certainly concern everyone on this side of the House. It is a fundamental tenet of Conservative belief that institutions are subject to the rule of law, which regulates definitively the relations between citizens and applies equally to the governors and the governed. A stable social order is dependent on the maintenance of the rule of law.
Furthermore, there is nothing to suggest that the courts would ever wish to entertain interfering in the process given the repercussions that my noble friend Lord True outlined in Committee. Those scenarios would be as unpalatable to the courts as they are to your Lordships. As he recognised in Committee, there are political checks and balances at work, and, where there are, the courts stay clear. That was apparent in respect of the so-called Sewel convention, when the Supreme Court declared that
“policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary.”
The provisions before us are unprecedented. As the noble and learned Lord, Lord Hope of Craighead, said in Committee, the objection is to the use of “purported” and the words in paragraph (c). As he made clear, there is no objection to say that the court or tribunal may not question the powers referred to in Clause 2.
As I said in responding to the debate in Committee, when my noble friend Lord Faulks argued that the clause was necessary to keep the courts out of politics, I take the view that the clause, or rather the words that I seek to delete, are designed to keep the courts out of the law. Take out “purported” and paragraph (c) and the problem is solved. One is then keeping within, and indeed promoting, the rule of law.
The provisions of the clause cover a situation that is so unlikely to ever occur for the reasons I have given—indeed, if it is a personal prerogative power of the monarch, it cannot occur—that it does not justify conferring powers that are so objectionable. The remoteness of it ever occurring is such that it would be better to wait and deal with it at the time. The doctrine of parliamentary sovereignty is not in doubt. As the late Lord Bingham argued, it is immanent in our constitution. As one of the measures being repealed by this Bill—the Early Parliamentary General Election Act 2019—demonstrates, Parliament can move with some speed to achieve the outcome it wishes. That is beyond doubt. There are precedents for Parliament enacting within 24 hours a Bill to overturn a court judgment.
Parliament by the very doctrine of parliamentary sovereignty is entitled to enact the provisions of this clause. What it can do is not necessarily what it should do. Retaining the purported exercise of powers and any purported decision within the clause, along with paragraph (c), is either redundant or it clashes with a basic tenet of the constitution. If the latter, it is objectionable in principle and unnecessary in practice. I would hope that a Conservative Government would take the high road and accept these amendments.
Lord Butler of Brockwell (CB)
My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable.
My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is
“legislating against shadows, against figments of the imagination.”—[Official Report, 25/1/22; col. 227.]
I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary.
If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment.
We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission.
I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises.
This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation “against shadows”, but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.
Lord Hope of Craighead (CB)
My Lords, I supported these amendments in Committee and I should like to do so again today. I cannot help feeling that there is just a hint—as the noble Lord, Lord Lansley, put it earlier—of the generals fighting the last war, because it is very obvious why Clause 3 is there: it is to head off what was seen to be a trend at least in the decision in Miller 2.
I will make two points, if I may. First, following my noble friend Lord Butler of Brockwell, I agree that the clause is unnecessary. One of the things that was said by the Supreme Court at the beginning of Miller 2 was to distinguish the Prorogation issue with which it was concerned and Dissolution. It was made quite clear in a very few words at the start of that decision that decisions about Dissolution were nothing to do with the courts. The noble Lord, Lord Grocott, made that point very clearly when he said that this is the most political of decisions that could be taken. That is a very clear warning to the courts that it is nothing to do with them. It is unnecessary, because I cannot see the courts engaging with a Dissolution issue in addition to the points made by the noble Lord, Lord Norton.
The second point that I would like to say a little more about is the unwise precedent. The problem here is that the language of paragraph (c) in Clause 3 removes entirely from the courts the possibility of determining the limit or extent of the powers. The reverse of the coin is that it is the Executive who are the determination and who decide the limit or extent of their own powers. Earlier today, the noble Lord, Lord Reid of Cardowan, said that this was the basis for a dictatorship. My noble friend Lord Butler referred in Committee to a number of examples not very far away from us in Europe, where there is perhaps a trend moving towards that. We have to be extremely careful not to give a signal to a Government that they can get away with an exclusion clause of this kind. The question is how far the clause should go, and it is paragraph (c) of Clause 3 that is completely objectionable, leaving it to the Executive to determine the extent and limits of their own powers.
The question of precedent is worth dwelling on. I admire greatly the skills of the parliamentary draftsmen. They have their own skills and traditions, one of which is that they are very determined to follow precedent in the way in which they engage with legislation. This has great value, because it means that there is constancy in the way in which issues are expressed in our legislation, which is of a very high standard. My concern is that, whatever may be said today about this not setting a precedent, it will nevertheless be there in the books, and the draftsmen will, some years ahead, say, “That is what was done in 2022. It is an example that we can follow.” That is danger that I fear in this clause, which is unnecessary. It is unnecessary, so we should not risk the creation of a precedent that, in future years, we may deeply regret.
Lord Trevethin and Oaksey (CB)
My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.
I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.
It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.
That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.
That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.
But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.
Lord Beith (LD)
My Lords, this is a new threat. We have heard of the threat of an election being called to the detriment of Back-Bench Members whose support is being sought, but the threat of Miller 3 is not one that has been produced before. I found it an unpersuasive line of argument, particularly that the Prime Minister could go to the courts and say, “In order that I should have a stronger position in dealing with foreign counterparties, I must suspend Parliament to make sure that nobody can attend Parliament and say anything in the course of its proceedings while I am engaged in these negotiations.” I cannot see any basis for that, as opposed to the contention that has come into the debate of a Prime Minister adducing in evidence, “I wish to have a Dissolution and I have a majority in Parliament supporting me in this desire”, which would be the case under the amendment that we passed previously. We would be in an absolutely clear position and the courts would have no basis for intervening.
In the preceding debate, the noble Lord, Lord True, said that the simple and proven practice of the past is what we should follow. But the simple and proven practice of the past did not include an ouster clause of this nature. The Representation of the People Acts do not contain ouster clauses of this nature, nor does most other legislation. That is a situation that might change, as the noble and learned Lord, Lord Hope, pointed out, if this is taken as a precedent. I will come back to that in a moment.
It is necessary to be clear, first, that in the event of the other place agreeing to the amendment that we passed a moment ago, this ouster clause is particularly unnecessary because no court would interfere with so clear a decision of Parliament. There are other reasons why the request to the monarch to dissolve would be protected from the actions of the courts. One is that it is, as the noble Lord, Lord Norton of Louth, pointed out in moving his amendment, a personal prerogative power. It is not a matter of advice which might be challenged, as it was in the Prorogation case. It is a personal prerogative power, which results from a request from the Prime Minister. I do not believe that the courts would be in any way inclined to interfere with the exercise of that personal prerogative by the monarch.
I strongly assert that the comparison with Prorogation is quite wrong. The effect of Prorogation is that Parliament cannot meet; it cannot sit or discuss and it cannot challenge the Executive. That is quite different from the Dissolution of Parliament and the calling of an election. Indeed, it has been adduced from the quarters of those who support the Government’s position that the calling of an election, referring the matter to the people, is so clearly the right outcome in so many circumstances that it should not be interrupted in any way. In my view, the courts would certainly not want to be seen to be preventing a general election from taking place. I find that inconceivable.
My primary worry about this ouster clause is not that it has some practical effect or that it changes what would be the clear reluctance of the courts to become involved in arguments about the calling of an election. It is that the Government have form on ouster clauses; we saw that earlier this week when debating the Judicial Review and Courts Bill, which has its own ouster clause. In that case, the Government have declared that it is their intention to use the wording in that Bill as a precedent for ouster clauses in other, unspecified Bills in future. That was clearly stated in a government press release.
The noble and learned Lord, Lord Hope, made the point that parliamentary draftsmen like to act on precedent. When they have found a form of words that suits their purpose in one case, they like to use it again in another, if possible. We are creating precedents for issues around, for example, purported powers that will be very unhelpful in future as we seek to defend the ability of the citizen to challenge abuse of power, which is what judicial review is about. We are doing so because of fears that are not justified and dangers that do not exist, because the likelihood of courts preventing a general election from taking place is clearly vanishingly small, to the point of non-existence, for the reasons that I and others in this debate have adduced. We would be better off without the ouster clause provision. We do not need it and therefore we support the amendments of the noble Lord, Lord Norton of Louth, and the amendment of the noble Lord, Lord Butler of Brockwell.
Lord Faulks (Non-Afl)
My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.
First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.
It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.
Lord Pannick (CB)
My Lords, I suppose I should declare a professional interest in the possibility of Miller 3.
I support the amendments in the names of the noble Lords, Lord Norton and Lord Butler. I do not suggest that the courts would today never entertain a judicial review in relation to Dissolution. The noble Lord, Lord Norton, mentioned the words of Lord Roskill in the GCHQ case in 1984—the law has moved on a long way in the nearly 40 years since then. Like other noble Lords, I find it very difficult to envisage a case in which the courts would entertain a challenge to the Dissolution of Parliament and the calling of a general election. However, I support the amendments because I think it would be wise, in this context, to proceed on the basis of never say never.
One of the vices of a provision such as Clause 3 is that it seeks to remove the possibility of the court exercising jurisdiction, however exceptional the circumstances may be or however grave the abuse of power by a future Prime Minister. I would much prefer to leave it to the judgment of a future Supreme Court whether the circumstances then existing justify exceptional judicial involvement and whether there is an abuse of power, rather than confirm a blanket immunity from legal challenge whatever the circumstances.
I also agree with the noble Lords, Lord Butler and Lord Norton, that there is a point of principle here: the Prime Minister would be exercising a very important power. It is wrong in principle that there should be an immunity from the rule of law—it is a very basic principle. That principle does not depend on whether the noble Lord, Lord Faulks, is correct in saying that, as a matter of description, this is or is not an ouster clause. What it purports to do is prevent the court saying, “What you have done is unlawful”. We should not be allowing the exercise of public powers to enjoy such immunity as a matter of principle.
We then have the argument the noble Lord, Lord Faulks, deployed, and which was raised in Committee, that the mere existence of this possible jurisdiction to entertain a judicial review may cause delay, expense or inconvenience. That seems to me to be entirely unrealistic. I looked to see whether there have been any cases analogous to the possible cases we are talking about. There is one. The Press Association reported on 8 April 1992, the day before the 1992 general election— won by John Major—that on 7 April, the day before, Mr Justice Macpherson had considered and rejected a judicial review application which was made by a Mr George Barnes, who was seeking to stop the 1992 general election going ahead. Mr Barnes was aggrieved by the manner, as he put it, in which the main political parties had chosen their candidates.
Lord Faulks (Non-Afl)
I am sorry to interrupt the noble Lord in the middle of his flow, but I think his point was that the law has moved on greatly since Lord Roskill. So does not citing a decision from 1992 rather defeat his own argument?
Lord Pannick (CB)
No, because my point is that hopeless or frivolous applications will be dealt with speedily by the courts. This was plainly an application with no merit whatever, and my noble friend’s point, as I understood him, was that the mere existence of the jurisdiction could cause delay. I am giving an example of how the courts then, and today, would deal with a frivolous application.
The judge decided, unsurprisingly, that this was not a matter for the courts and that there was no basis for the application. The general election went ahead and it was entirely untroubled by the litigation. There was no delay, expense or inconvenience. The court dismissed a hopeless application speedily and effectively, as it usually does. For all these reasons, if my noble friend Lord Butler wishes to test the opinion of the House, he will have my support.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too attempted to darn this Bill in Committee and, indeed, spoke at Second Reading, and I too am opposed to this group of amendments. My core concern here is to safeguard my successors on the Bench and to avoid the risk of constitutional crisis, which would arise were there to be some future attempted legal challenge not as frivolous as that just indicated by the noble Lord, Lord Pannick, but something dressed up as an altogether more coherent attack on a Dissolution, such as the noble Lord, Lord Pannick, himself would be adept at managing.
Unlike the noble Lord, Lord Howard, but in common with the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Beith, I do not think for an instant that the courts would ever actually reach the point of upholding such a challenge, even though, as the noble Lord, Lord Pannick, also says, things have undoubtedly moved on since the CCSU case. That, as it happens, was my very last case at the Bar, decades ago. Although it is very unlikely that such a challenge would succeed, it is very important to put in the Bill a provision that would provide the greatest possible discouragement to any mischievous person, instructing whosoever it may be, contemplating a challenge.
Clause 3 seems to me to be admirable for that purpose; it enables the courts to say, as Mr Justice Macpherson—a very old friend of mine, with whom I shared a room in chambers for decades—said in that case, “Chuck it out without more ado.” That is really the point made by the noble Lord, Lord Trevethin and Oaksey. That is the practical effect of Clause 3. It is not there, I would suggest, as revenge for Miller 2; nor does it—and this is the point made by the noble Lord, Lord Faulks—create a risk that this will be a template or precedent for the future. Its relevance here is purely in the context and to underline the fact that Dissolution is essentially a prerogative act, preserved even since CCSU. We should leave it there, discourage prospective litigants and reinforce the courts in a robust rejection of any attempt that would delay and disrupt, to some degree, a Dissolution process. Leave it there.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Butler of Brockwell, was kind enough to quote me from when I spoke in Committee on this. I want to underline that what I said was:
“I cannot conceive of any circumstances in which the involvement of the courts could ever be justified”.—[Official Report, 25/1/22; col. 227.]
That is the important point. What Clause 3 is trying to do is to put this question beyond doubt.
Without Clause 3, we potentially do not rule out the courts trying to get themselves involved in challenging the use of the royal prerogative, doubtless with the help of very clever lawyers such as the noble Lord, Lord Pannick. Indeed, in the noble Lord’s remarks just now, he rather wanted to keep the door open for noble Lords such as himself to encourage the courts to get involved in cases such as the use of the royal prerogative.
Our understanding before the introduction of the Fixed-term Parliaments Act was that the courts would not get involved in the use of the royal prerogative. Since then, there have been some surprising judgments—perhaps not surprising to the noble Lord, Lord Pannick—such as Miller 2, which have made many people doubtful about whether or not the settled understanding of where the courts would go was indeed that settled. That is what the noble Lord, Lord Pannick, has underlined for us today.
Lord Grocott (Lab)
My Lords, as a layman and an unashamed politician, I want to make a couple of layman’s/politician’s observations in what has been a largely legal argument.
Much of this discussion—in fact, the whole of this Report stage—has been considered with the ghost of the 2017-19 Parliament at its back; the cloud over us, one could say. It was a very unfortunate Parliament—in the past I have called it poisonous—and we need to be careful about drawing all sorts of long-term constitutional conclusions from that period. This relates to my observation on the debate about the ouster clause: it is, as others have said, trying to solve the problem of Miller 2.
To me, as a layman, Miller 2 did present some problems. One is unarguable—and I am cautious about saying that—in that it did massively involve the courts in an intensely political situation. I know it tried to give disclaimers in its judgment, and all the rest of it, but I can tell you, as a politician, it is hard to imagine a more intense, political, biting debate than the one that existed in relation to Britain’s membership of the European Union, and the courts went slam dunk right into the middle of that debate. In my view this is not a good precedent.
I would also say—and I am sure I will be stopped if I trespass here—that it involved the courts in arguments which I know are legal arguments, doubtless very good legal arguments, but they do not make much sense to the layman. Part of the Miller 2 judgment was to say that the Prorogation had not happened. Although I understand the lawyers’ argument for saying so, it does not make much common sense to an observer. It is like saying that the sun comes up in the morning, and it is up there now, but the law says that the sun has not risen. I say, “Look, it is up there now,” but the law says it is still where it was before. That kind of ugly language and reasoning is—at least to me—something that we do not want to see employed too often. It is employed in the Bill itself; it is as though the Fixed-term Parliaments Act 2011 had never happened, but both those things—the Act and, unfortunately, the Prorogation —had happened.
I simply make the following observation. If I am right that we want to make things intelligible to both lawyers and non-lawyers, if I am right that 2017-19 was a really bad patch, and if I am right in saying that we really do not want the courts—however exceptional it might be—telling the people when they can and cannot have a general election, then I have offered a solution. I am sorry I keep coming back—actually I am not going to apologise at all, because it is right—to the amendment by the noble and learned Lord, Lord Judge. If only the House of Commons would apply its mind to the arguments that have been deployed in this House during the consideration of previous amendments, that would solve all the problems. If there were a resolution of Parliament then the courts would not intervene, the monarch would not have decisions to make and there would be no need for the ouster clause.
Let us lift up our eyes and hope that the Commons weighs the merits of the amendment that we have sent back to them, recognises those merits, votes not on a purely partisan basis but on the basis of the strength of the arguments, and retains the change that we have already made to the Bill.
Lord Howard of Rising (Con)
My Lords, I must also apologise for not being here in Committee, although I have followed your Lordships’ arguments with great interest.
One point is abundantly clear to me: the idea of not using the royal prerogative to call for an election is, at its very best, curious. The concept that a Government should limp on without the confidence of the Commons, when that Government no longer have the wish, or possibly the ability, to conduct the affairs of the nation, can do only harm to the well-being of this country. I have listened to a lot of erudite and hypothetical—indeed very hypothetical—arguments today. We cannot get away from the fact that, if a Government feel that they no longer wish to govern, then it is not only pointless to keep them in place but potentially very damaging.
In line with what my noble friend Lord Bridges said, restricting people from voting is anti-democratic. There should be no impediment to the freedom to allow the electorate to express their opinion at any time at the ballot box. Allowing the courts to interfere with that and to have a say may have unknown effects and cause serious harm, as the noble Lord, Lord Trevethin and Oaksey, and others have pointed out. After all, the courts can produce some very weird results.
My only other thought, standing here among so many noble and learned Lords, is that I wonder what the collective noun for lawyers is. Do your Lordships think it is “a bear pit” of lawyers?
Lord Sentamu (CB)
My Lords, the noble Lord, Lord Grocott, asks whether the sun has risen. Yes, it is still up there, but for those who lived in the Mexican desert during the testing of the atomic bomb, the sky was so full of light that nearby farmers woke up and started working, but three hours later the light had gone. Of course, at the usual time of 6 am, the sun rose. They said, “We saw the sun rise twice”, but it had not. Physical things may help us, but also they may not.
For myself, I find phrases such as
“A court or tribunal may not question”
very difficult. Putting that in statute sets a bad precedent. The courts are restrained in the way that they approach many things; they would never simply say out of hand, “We are not going to look at this”. That is why my friend Sir William MacPherson, when someone did not want the election to take place in 1992, looked at that and then dismissed it. Now there is the idea that he should not have done so. I have always had great admiration for the British Parliament and for the Civil Service and the way that it works, which is just really lovely—some of your Lordships who were born here and live here may not appreciate it, but I do—but this measure worries me.
I was in the judiciary when we questioned Mr Amin for expelling Uganda citizens who happened to be Asian. There were two kinds: those who were Ugandan Asian citizens and Asians living in Uganda who were British. We questioned whether he had the right to do this. He did not like it. What did he do? He passed a decree that no court in the land could question the expulsion of Asians. That caused me a lot of problems. This measure sounds almost like that.
There should be no Act of any sort which is not subject to the possibility of challenge in the courts, because they are the custodians of the rule of law. We cannot say by statute, “You should not challenge this particular prerogative”; if it is not done according to the rule of law, they should be able to look at it. I have a lot of confidence in judges, lawyers and the people, because they are the guardians of the rule of law. If they do not guard that, the likes of Mr Amin will have a field day. I support the intention the noble Lord, Lord Butler, that the clause should be deleted.
Lord Fairfax of Cameron (Con)
My Lords, very briefly, I would like to respectfully adopt the arguments of the noble and learned Lord, Lord Brown, and others, including the noble Lord, Lord Trevethin and Oaksey, and my noble friend Lord Faulks, in this matter.
The noble and learned Lord, Lord Hope, said, I think, that he could not see the courts getting involved in a Dissolution case, and I think the noble Lord, Lord Pannick, said similarly. But, as my noble friend Lord Faulks has said, very many people, including many lawyers, could not see the courts getting involved in a Prorogation matter because, until the Supreme Court and Miller, that was considered to have been unarguably a political matter. But in a paradigm example of judicial activism, the Supreme Court in Miller did get involved, despite the unanimous decision—which some people find curious—of a strong divisional court below. The noble Lord, Lord Pannick, referred later to the rule of law. My point is that, until the Supreme Court and Miller, as held by the divisional court, Prorogation was considered to be a political matter.
Lord Pannick (CB)
Does the noble Lord allow for the possibility that the reason why there was no precedent prior to Miller 2 was because no Prime Minister prior to that had abused, in the view of the court, the power to prorogue Parliament in order to frustrate his views in relation to Brexit?
Lord Fairfax of Cameron (Con)
The use of the word “abuse” is somewhat tendentious. As I was saying on the question of the rule of law, and as held by the divisional court, until the Supreme Court decision on Miller, Prorogation was thought to be an entirely political matter and therefore not subject to the jurisdiction of the courts. I suggest that the risk remains, and pray in aid the noble Lord, Lord Pannick, in this regard, because he jokingly referred to his possible involvement in Miller 3.
I rest my case. The Government are entitled for these reasons to insist on Clause 3.
Baroness Smith of Basildon (Lab)
My Lords, I will start where I started in the previous debate, with the parliamentary TARDIS: the Government say that we can set things back to where they were before. Ministers in the other House and in your Lordships House said that this Bill brings clarity, but it is clear that it does not bring clarity. That is why the Government have insisted on Clause 3.
The elephant in the room, as has been mentioned, is Prorogation, but Prorogation is different from Dissolution. The unlawful Prorogation has had an impact on many people—I still think of it. I agree with the assessment of the noble Lord, Lord Pannick, that that was an abuse of power, but I would not extend that in the same way to a Dissolution.
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.
Lord Butler of Brockwell
Lord Butler of Brockwell (CB)
My Lords, I too am very grateful to those who have taken part in this debate.
This for me is a matter of principle. It is wrong, as the noble Lord, Lord Pannick, the noble and right reverend Lord and the noble and learned Lord, Lord Hope, said, that there can be no protection from the courts against the improper use of executive power. My hackles rise when I hear the Minister use the phrase “The courts are not permitted”—“This legislation is to ensure that the courts are not permitted to look at this matter”. In response to the noble Lord, Lord Grocott, this is not an issue of the courts preventing the people having a say in an election. It is about the courts preventing the illegitimate or illegal use of executive power. That is what the issue is.
I believe it is vanishingly unlikely that the courts would become involved in this matter—I am now just answering the point made by the noble Lord, Lord True. I would be prepared to have a lifelong bet with him that this situation will not arise in his or my lifetime. However, the courts can look after themselves. They do not need the protection of legislation in this matter; it is indeed for the courts to decide the merits of issues and not for the Government to legislate in advance to prevent them doing so.
Therefore, because this for me is a matter of principle, and because I would like, in case the amendment we previously passed is overturned by the House of Commons, the opportunity to return to this on ping-pong, I beg leave to test the opinion of the House.
Lord Wallace of Saltaire
“(3) This Act comes into force when a Cabinet Manual revised in relation to the dissolution and calling of Parliament has been laid before Parliament.(3A) Prior to revising the Cabinet Manual the Minister must consult the relevant select committees in the House of Commons and the House of Lords.”Member’s explanatory statement
The current Cabinet Manual references the Fixed-term Parliaments Act and has not been revised for 10 years. As a consequence of the repeal of that Act under this Bill, the Cabinet Manual should be revised in relation to the dissolution and calling of Parliament.
Lord Wallace of Saltaire (LD)
My Lords, I tabled this amendment last week and received a letter on Monday evening from the Minister that answers a number of my points. Therefore, I mainly wish to stress the usefulness of the Cabinet Manual and to encourage the Minister to repeat what he said in my letter on the Floor of the House.
Paragraph 227 of the Joint Committee report points out that:
“legislation—by definition—does not create or restore conventions … If the old conventions on dissolving and summoning Parliaments are to be restored, or indeed if they are to be replaced by new ones, there needs to be a political process to identify, and to articulate, what those conventions are.”
I have heard the noble Lord, Lord Hannan, make two speeches in different debates over the last two weeks about the importance of due process and the political process and of not just rushing things through or allowing Prime Ministers to decide them. The Constitution Committee report on the revision of the Cabinet Manual stresses not only the importance and usefulness of that manual, but the need for there to be consultation with Parliament about the revision of the manual, because it relates to the relationship between the Executive and Parliament.
The Minister’s letter, which I thank him for, stresses that conventions
“can only operate effectively when they are commonly understood and where there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day”.
This has not been entirely true of our current Prime Minister over the last two years. We need to get back to that. I look forward to the Minister’s response.
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
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 51-R-I Marshalled list for Report - (7 Feb 2022)
Lord Ashton of Hyde (Con)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Dissolution and Calling of Parliament Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Motion
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.
Lord Wallace of Saltaire (LD)
My Lords, I add my thanks. It is important that we conduct legislation in the House, and off the Floor in between the different stages, in the way we did on this Bill and I hope will do also on the Elections Bill—a much longer and more complex Bill. Indeed, we discovered on Second Reading of that Bill yesterday that abolishing the fixed terms for Parliament has knock-on effects for third-party campaigning—a point made in yesterday’s debate. We in this House often deal with the complex interdependence of different aspects of the rules that govern our democracy. There will be a rising tide of opinion inside and outside Parliament that we need to look at some of these things fairly soon together, rather than in one chunk after another. I regret to repeat—the Minister will hear it yet again—that I did agree with the part of the Conservative manifesto that said there should be a constitutional commission. I hope it will be in the next Conservative manifesto, and I hope it will be in the manifestos of other parties and that it will then happen. Having said that, I look forward with interest to how the Commons will respond to the Lords amendment, and perhaps it will return here.
Lord Judge (CB)
My Lords, I join in thanking everybody. I have two points, one serious and one less so. One is an entirely private thought, so nobody is listening to me saying this: I hope the Commons has enough time to look at the issues that arise in relation to this Bill. The other is of particular thanks to the noble Lord, Lord Lisvane, who is not in his place, for reminding me of a lesson I learned when I did English language grammar—gosh, does that still exist? I was taught the auxiliary verbs “shall”, “should”, “will”, “would”, “may”, “can”, “must” and “do” and to appreciate the difference between “shall” and “must.”
Lord Grocott (Lab)
My Lords, I have just a small observation on the suggestion of the noble Lord, Lord True, that we were somehow telling the Commons to alter its procedures or advising it on its procedures in relation to this Bill. What we have done is say to the House of Commons that we are an unelected House, but we want it to think again whether it is wise for it, the elected House, to say, “No, we don’t want these powers of Dissolution at all. We think it is important they are carried out by the monarch.” I think that is a development without precedent anywhere in the world—the legislature saying it does not want these powers and wants to give them back to the monarch. That does put a slightly different construct on what we are asking the Commons to consider.
Dissolution and Calling of Parliament Bill
Monday 14th March 2022
(2 years, 8 months ago)
Commons ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 14 March 2022 - (14 Mar 2022)
18:14 - The House divided: - Ayes: 292 / Noes: 217 - Question accordingly agreed to.
The Minister for the Cabinet Office and Paymaster General (Michael Ellis)
I beg to move, That this House disagrees with Lords amendment 1.
The Bill passed through the other place, where it was carefully scrutinised and amended in only one respect: to seek to retain a role for this honourable House in respect of Dissolution. The Lords amendment provided that the Prime Minister could request the sovereign exercise—the revived prerogative powers to dissolve and call Parliament—only when this House agreed the motion
“that this present Parliament will be dissolved.”
That would create an untested, hybrid system by imposing statutory arrangements on top of the prerogative system that existed prior to the Fixed-term Parliaments Act 2011. Such statutory constraints would undermine the flexibility that for generations characterised the pre-2011 arrangements that the Government want to reinstate. With respect, the Government therefore firmly disagree with the Lords amendment.
In fact, the Government and the Opposition both committed—in their manifestos, no less—to repeal the Fixed-term Parliaments Act. The Lords amendment would repeal that Act only to retain one of its fundamental flaws. That is not our wish or our intention and it does not meet the commitment that we made to the electorate.
Dr Julian Lewis (New Forest East) (Con)
I am hugely relieved to hear the Minister say that. I have stood in every election since 1997. Only when we saw the chaos caused by a Government who did not want to continue and an Opposition who did not want the chance to face an election could we see how dreadful that old system was. We need to get rid of it, bag and baggage.
Michael Ellis
I agree with my right hon. Friend; there is of course a good reason why the 2017 to 2019 Parliament is referred to as the zombie Parliament.
I remind the House of the commitments that both parties made in 2019. The Conservatives committed to repealing the Fixed-term Parliaments Act.
John Redwood (Wokingham) (Con)
Will the Minister confirm that, if we dismiss Lords amendment 1 today, the courts will not have a role in fixing the dates for elections, because, surely, that is matter for us, answerable to the electors?
Michael Ellis
My right hon. Friend is quite right that it is not productive, and, in fact, it would not be in the interests of the judiciary themselves, for the courts to have such a role.
We committed to repealing the Fixed-term Parliaments Act, as it had led to paralysis at a time when the country needed decisive action. In a similar vein, the Labour manifesto said that the 2011 Act
“stifled democracy and propped up weak governments.”
A vote in the Commons could create paralysis in a number of contexts, including minority Governments, coalition Governments, or where our parties, Parliament or even the nation, at some point in the future, were divided.
As a majority on the Joint Committee on the Fixed-term Parliaments Act noted, a Commons vote would have a practical effect only where Parliament were gridlocked. The problem is that if the Government of the day had a comfortable majority, a vote would be unlikely to make any difference; it would have no meaningful effect, beyond causing unnecessary delay and expense. However, when Parliament is gridlocked, a vote could mean denying an election to a Government who were unable to function effectively. We witnessed the consequences of such a vote painfully in 2019, so let us not repeat that mistake by devising a system where those events could happen again. Lords amendment 1 is, therefore, with the greatest possible respect, without merit.
Kevin Brennan (Cardiff West) (Lab)
The right hon. and learned Gentleman has mentioned what happens in the event of a minority Government. What would happen where the Prime Minister of a minority Government wished to call a general election, but there was the possibility of an alternative Government being formed? Would that Prime Minister be able to dissolve Parliament by prerogative in those circumstances, or would another person be given an opportunity to form a Government and a majority in the House of Commons?
Michael Ellis
I do not want to get into hypotheticals, but what I will say is that the pre-2011 position worked extremely well. There is a reason why it worked well and it was proven to have functioned correctly. We seek to go back to a proven, tried and tested system, which works in a whole variety of different circumstances, not every one of which can be easily expostulated.
Alun Cairns (Vale of Glamorgan) (Con)
Does my right hon. and learned Friend share my disbelief at some of the opposition to the current position, especially as we recall the chaos that led to the last general election and the frustration among the public when Parliament, in many people’s eyes, seemed to lose the respect of the population?
Michael Ellis
Good constitutional practice involves protecting the integrity of the legislature, the Executive and the judiciary and, in our view, the proposals do that and this amendment would not, so I agree with what my right hon. Friend says.
Jackie Doyle-Price (Thurrock) (Con)
I sat on the Joint Committee that reviewed the 2011 Act and we spent long, productive and interesting hours looking at it. Does my right hon. and learned Friend agree that it is really unproductive to look at our future arrangements in the context of what happened in 2019, just as it is to look at them in the context of what happened in 2010? The beauty of our system must be that the constitution can flex. Those were particularly unique circumstances in 2019, and we should not let them affect what happens going forward.
Michael Ellis
My hon. Friend is completely right. In fact, it is difficult to expostulate all the different scenarios that may occur in future, so it is best to avoid that, but we know what worked well—the status quo ante the 2011 Act.
As I say, we have experienced the consequences of a statutory scheme and we know what happened in 2019, but the amendment is also dangerously silent on critical questions of implementation and is likely to have undesirable consequences for our constitutional system. For example, it is likely to have negative consequences for the fundamental conventions on confidence. 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. That is the alpha and omega of everything, and should not unduly constrained by any sort of prescriptive parliamentary process that would be disruptive and unhelpful when expediency is essential.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
The Minister responded to the hon. Member for Thurrock (Jackie Doyle-Price) by saying that he fully agreed with her excellent statement, but he is in essence doing the exact opposite. Why this paradoxical situation?
Michael Ellis
I am obviously not doing that. We are able to see where mistakes have been made and where things have gone well in the past, and we see that in the pre-2011 position—the position we are seeking to achieve and that Labour sought to achieve in its manifesto, as did my party. That tried and tested system worked well, and worked well for generations.
Mr William Wragg (Hazel Grove) (Con)
May I refer my right hon. and learned Friend to “The Crown”, of which I am sure he was an avid viewer? In answer to the intervention by the hon. Member for Cardiff West (Kevin Brennan), is my right hon. and learned Friend familiar with the Lascelles principles, as written to The Times under the pseudonym “Senex”, and can he update the House on whether they now form part of the Cabinet manual?
Michael Ellis
The Lascelles principles are something we still respect. One of the fundamental tenets of Sir Alan Lascelles’ letter was the fact that we wished to avoid any suggestion that the sovereign be involved in politics.
The amendment, as I was saying, is silent on the issue of the negative consequences. The privilege to request that the sovereign exercise the Dissolution prerogative is an executive function that is enjoyed by virtue of the ability to command the confidence of the Commons.
We must also question how the amendment would work in practice. For example, how would the parliamentary process be sequenced and when would it apply? Would the Prime Minister be required to confirm the support of the House only when they intend to request that Parliament be dissolved before the maximum five-year term, or would it apply following a loss of confidence? There are myriad questions that the amendment would leave unanswered; as we can see, it adds undesired complexity to what is a simple proposition—a return to the status quo ante.
The Bill intends to return us to that status quo, reviving the prerogative powers for the Dissolution and the calling of Parliament and preserving the long-standing position on the non-justiciability of those powers. The amendment would undermine the entire rationale for the Bill. If it is amended as proposed, we would be entering into precisely the kind of ill-thought-through constitutional innovation that we are seeking to repeal.
The simplest and most effective route is to make express provision to revive the prerogative powers for the Dissolution and calling of Parliament, returning our country to tried and tested constitutional arrangements offering certainty around the calling of elections. The prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing the future and power into the hands of the people.
Finally, with all due respect for the undoubted expertise and value of the House of Lords, I suggest it is not appropriate for the revising Chamber to ask the elected House to revisit questions, not least when they relate to the process and role of this House, on which this House has already definitively decided. I thank their lordships, but I hope that they will now take note of this House’s clear view. Therefore, I would welcome this House’s sending a clear signal and I urge it to vote against the amendment.
Alex Norris (Nottingham North) (Lab/Co-op)
I am grateful for the opportunity to speak for the Opposition in this debate.
I listened very carefully to the case that the Minister made for his motion to remove Lords amendment 1 to clause 2. I was sad to hear it, and I think we could do better. He is right that Labour, both in our manifesto and in the two years since, has supported the principle of the repeal of the Fixed-term Parliaments Act 2011, which was an ill-thought-out and poorly executed piece of legislation. I gently say, though, given how strongly the Minister stressed that, that it was this Government’s piece of legislation, not ours. He cautions us against novations in this space, but that was actually a lesson for themselves, and it is not quite fair to point it in our direction.
Kevin Brennan
Does my hon. Friend think there is any possibility that a future Government, or this Government given their past record, might abuse the power to dissolve Parliament in the way that they abused the power to prorogue Parliament during that period through a disgraceful hoodwinking of Her Majesty the Queen?
Alex Norris
I am grateful for that intervention. I strongly believe in the maxim that how you do one thing is how you do everything, and I believe that the same cast of characters will broadly act in the same way at every opportunity. That tends to be, as with all the pieces of legislation that I listed, that the Government see things through a very narrow political prism, and that is what we are seeing today.
Dr Julian Lewis
How is it an abuse of power and a strengthening of the Executive for the Executive to say, “We want to go to the people and let the people decide whether we should be allowed to continue in government or be chucked out”?
Alex Norris
The Lords amendment is a very modest safeguard to that in saying, “At least demonstrate that a majority of the legislature agrees with you.” It is not unreasonable to say that Parliament could be involved in the Dissolution process in the way that noble Lords have said. It is a modest hurdle. All it asks is that the Prime Minister of the day be able to command a majority, and in different scenarios.
I know that the Minister is keen to avoid hypotheticals, but we do have to think about how these powers may apply in future. In a balanced Parliament like the previous one, the amendment might mean that the Government work a little bit more broadly to secure the election. The right hon. Member for New Forest East (Dr Lewis) referred to the dreadful election of 2019. I would argue that it was the Government between 2017 and 2019 who were dreadful rather than the election itself, being a passive process. Indeed, the Minister characterised it as a zombie Government. Given that he served in that Government, I think he does himself a disservice in characterising himself in that way.
Alex Norris
I cannot agree with the right hon. Gentleman. The idea that it was dreadful that a Government who did not command a majority of this House could not just always get their way—that is how the system is supposed to work, I gently suggest.
Where a Government have a clear working majority, as we have today, the amendment would insure against a capricious Prime Minister—perhaps one losing the confidence of their own Benches in the light of, in a hypothetical, significant issues of judgment or personal character—just going and throwing everything up in the air in their own interest. Indeed, there is the scenario, as my hon. Friend the Member for Cardiff West (Kevin Brennan) said, where someone else might be able to form a Government, but the individual who would be most harmed could just call an election without that being explored.
John Redwood
The point is this: why should an Opposition, when facing a minority Government who want to resolve things via an election, be able to stop an election? They either have to form a coalition of their majority and govern, which is one option, or allow the public to decide. It was outrageous that the Opposition did not allow the public to have a Government.
Alex Norris
I cannot agree with the right hon. Gentleman, because the reality is that before those parties could even come together to form that possible alternative Government, the Prime Minister could be in the car and on the way to call the election, and that process would be rendered moot. I cannot support that.
Jackie Doyle-Price
Many Members may find it rather difficult to think of a scenario when we would not need to have such a vote, but if other Members have watched “The Crown”, we have seen the example—a very fictitious one—where the scriptwriters wrote the moment when the then Prime Minister Margaret Thatcher was losing the confidence of her parliamentary party and had that fictitious meeting with the Queen. In building legislation that will last, we need to ensure that we have sufficient, adequate checks so that any Prime Minister will not abuse their position. Is the truth of the matter not that we are going back to the status quo ante? Indeed, the existence of the ouster clause that excludes the courts means that the Government are going further than that.
Alex Norris
It is definitely fair to say that there are new arrangements. That is why the Minister said the amendment would be inappropriate, but I do not think it would be. By the way, I have not seen “The Crown”; my wife and I are working our way through “Flip or Flop”, and there are 160 episodes of it, so it may take some time. In the scenario that the hon. Lady talks about, we have seen in recent history Prime Ministers who are losing the confidence of their party talking in terms of “Back me or sack me”. The reality is that the Bill, without this minor safeguard, would mean that a “Back me or sack me” moment, rather than it being won as a parliamentary process with a party’s Back Benchers, would instead play out as a party psychodrama with the general electorate. I think that would be a bad thing.
I will finish with three further quick arguments against giving the Government the power they seek, or at least not without this minor fettering suggested by the Lords. First, it comes back to a question of electoral advantage and ensuring that elections are fair. It is an age-old argument, and an issue that has launched a thousand dissertations—it was one of the major reasons for the 2011 Act—but it has become only more salient since then. Over the past 12 years, we have seen increasing restrictions on party and non-party activity, and the Elections Bill will put more in. These provisions are backdated, and that provides a significant advantage for candidates of the current governing party during the short campaign period, but the advantage grows further for parties, as the regulated period for political parties is now 365 days prior to election day. It is a heck of an advantage to know that start. The amendment would not completely get rid of that, but it would even the scales, and that is another good reason to support it.
Secondly—others colleagues have brought this up, and if I stray out of order, I know I will be told off, so I will be very quick—surely the real lesson to take from that 2019 episode is that by including a parliamentary rubber stamp on Dissolution, we remove any risk of dragging the Crown into such a decision. I think all right hon. and hon. Members would seek to avoid that, because it was an unedifying moment.
Hon. Members have mentioned the courts and the justiciability of the decisions. The Lords amendment would settle that for certain because a vote in this House would be a definitive answer. I know that the Government think that the Bill’s ouster clause will resolve all matters relating to the courts, but I say to them that we will see; I do not think it is as definitive as they say.
I urge the House to support the Lords amendment. The Minister has made a passionate exposition of his case. I gently say to Conservative Back Benchers that the Bill is obviously targeted at restricting the activities of the Opposition, but that means them too. I see some mischievous faces, including the hon. Member for Hazel Grove (Mr Wragg), who is an independent figure. They mean to fetter their own—[Interruption.] The Minister says otherwise, but I gently say to him that the last time that was tested with the Government, which was the first week of September 2019, 21 of your colleagues lost the Whip—
Alex Norris
Sorry, Madam Deputy Speaker: 21 of the Minister’s colleagues. Of course, they were rare circumstances, but it has happened again in this Parliament that when the Government face opposition from outside, they seek to shut us out, and when they find opposition inside, they seek to lock yourselves out as well.
Alex Norris
I apologise, Madam Deputy Speaker.
I say to the Government that it is not a one-way street and we think that having some checks and balances in our democracy is a good thing. In that spirit, I hope that hon. Members will vote in support of the Lords amendment.
Mr William Wragg (Hazel Grove) (Con)
I thank the hon. Member for Nottingham North (Alex Norris) for the introduction where he described me as being cheeky faced. It will stun the Opposition and surprise the Government that I will be voting enthusiastically with the Government in the Lobby later, so clearly my re-education is having the desired effect.
I rise to speak against the Lords amendment and in favour of the Government’s motion to disagree. I view the Fixed-term Parliaments Act 2011 not through rose-tinted spectacles as a great beacon of constitutional progress, but as a politically expedient measure that helped to secure a coalition in which the junior partner feared being unceremoniously dumped part way through an electoral term.
The lesson of the passage of this Bill thus far, and indeed of the work of the Joint Committee and of my Public Administration and Constitutional Affairs Committee, is that the genie cannot simply be put back in the bottle. I slightly disagree with the Minister, because by removing a prerogative power, the 2011 Act made it impossible to return completely to the status quo ante, hence the need for the Bill where we are codifying Dissolution for the first time. That cannot easily be argued against.
At the heart of the Lords amendment is whether the House should maintain a veto on Dissolution and the calling of an election, and I believe that it should not. It is for the monarch to dissolve the House following a request—I emphasise “a request”, unlike the early drafting of the Bill, which suggested that Her Majesty be advised to dissolve—from Her Majesty’s Government.
Patrick Grady (Glasgow North) (SNP)
Why is it good enough for the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly to operate on fixed terms but not this place?
Mr Wragg
The hon. Gentleman invites me to be intemperate about the difference between this House and the other Parliaments of the United Kingdom, which I will resist entirely. Places evolve through their own conventions and those Parliaments are doing exactly that. There is no need for universality; surely he would argue that the beauty of devolution is that it allows for difference. If he wanted uniformity, however, he would essentially support the United Kingdom.
The impetus for the Bill came from the logjam of the previous Parliament.
It is important to note where the impetus came for this Lords amendment, because it is a symptom of the mistrust that followed the Prorogation that never was, in 2019.
Brendan O'Hara (Argyll and Bute) (SNP)
I rise to speak in favour of the Lords amendment, which would require any Government seeking to dissolve this House early and call a general election to first seek and receive the support of a simple majority of the Members of this House.
Last year, when the Bill was first introduced by the Government, it was presented as a non-controversial resetting of a mistake that David Cameron made in his attempts to form a coalition with the Liberal Democrats. We were told that Cameron had made a bit of a mess of things, that this Bill would simply take us back to exactly where we were prior to 2010, and that we could almost pretend that it never really happened. However, as we have heard in this place and in the Lords, that is not the case. The Bill is not about reinstating what was in place prior to the Fixed-term Parliaments Act 2011, but rather creates a situation whereby the Executive have even greater powers and the monarch, who hitherto had prerogative powers, merely enacts the Executive’s will to dissolve Parliament.
This Lords amendment seeks to place a very minimal check on the Executive’s power by making any Dissolution of Parliament a decision that has to have the support of the majority of this House. I do not think that our constituents would think that it is too much to ask for those who have been elected to this place, and who serve their constituents in this place, to have some say if a Parliament is to be dissolved early and a general election called.
Dr Julian Lewis
I thank the hon. Gentleman for giving way, which is typically gracious of him. He calls it a “minimal check,” but the reality is that it is an absolute veto. If a Government do not have a majority in the House and if the Opposition sense that a Government might well win a majority if they went to the people, the Opposition are basically saying, “We are not going to allow the Government to get a mandate from the people.” That is precisely what would have happened in 2019 if Labour had not, for some reason, given way in the end.
Brendan O'Hara
I thank the right hon. Gentleman for that intervention, but that is a decision for this Parliament to take. We are elected to take decisions, and to abdicate that responsibility to the Executive is a dangerous route to go down; we should not do that. He says that it is the people, but we in this Parliament are the voice of the people, and there has to be a check on the powers of the Executive.
Patrick Grady
What we are hearing, especially from Government Members, is continued Westminster exceptionalism: that this place, particularly the Executive, once elected, knows what is best. That is why I raised the comparison with the devolved institutions, which operate to strict fixed terms. If they are to devolve early, that has to be a decision taken by the legislature as a whole.
Brendan O’Hara
I thank my hon. Friend for that intervention, and he is right. What we are seeing is, as he describes it so eloquently, Westminster exceptionalism, because this does not go nearly far enough. It is the absolute minimum that one would expect.
As Tom Fleming of University College London and his colleague Meg Russell, the director of the constitution unit there, said of this Lords amendment:
“Requiring prior Commons approval for an early general election places some check on the executive, while reducing the likelihood of either the monarch or the courts being embroiled in damaging political disputes.”
They are right, but the problem for Tom Fleming and Meg Russell is in believing or hoping that that this Executive would welcome having checks being placed on their power, be they parliamentary or judicial, because they simply do not.
John Redwood
Can the hon. Member explain why Opposition parties in this House are so keen to prevent there being an early election? I thought Oppositions welcomed early elections.
Brendan O’Hara
It is very witty to frame this debate in those terms, but I think the right hon. Gentleman is missing the point. This is not about the power to hold a general election; this is about the power being ceded from this place to the Executive and what the Executive choose to do with that power when they get it. I will come on to what their powers could if that happens.
By opposing this Lords amendment, the Government are saying that the decision to dissolve this Parliament and call an election would rest entirely with the Prime Minister, and that that could be done without any parliamentary scrutiny whatsoever and in the absence of any judicial oversight. I suspect that many people watching our proceedings will be surprised to see that the Government are so opposed to the Lords amendment given that it is so limited and that all it seeks is a simple majority in this House.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Is it not strange that Conservative Members who we have had to listen to banging on and on for years about Parliament being sovereign and Parliament having control are now willing to cede that control to the Executive for cheap political gain?
Brendan O’Hara
I thank my hon. Friend, and I suspect he may have been reading my speech earlier, because I will come to that issue shortly.
This Government are determined that the Prime Minister, without consultation with or approval from this House and free of the threat of legal challenge, can call a snap general election when it is politically expedient for him so to do. Regardless of what is happening at home or abroad, basically, electoral calculus and the position of the governing party at the time will decide when we have a general election. It is wrong, and I believe it is unacceptable in a modern democracy.
Of course, as my hon. Friend says, a great irony here is that the very limited check that the Government will vote down this evening will be voted down by people who were elected on a promise that this House would take back control. Well, they should realise that they are not taking back control; they are surrendering control. The collective outrage displayed at the general election of 2019 about the perceived emasculation of this Parliament by Brussels and the European Union—they were absolutely determined to restore the sovereignty of what they like to call the mother of Parliaments—is going to look rather hollow when, at the first time of asking, they vote to take powers away from this legislature and hand them over to the Executive. I hope that when they go through the Lobby tonight, they understand that this is not taking back control. Voting with the Government this evening is about this House handing control to the Executive and about abdicating responsibility to the Executive.
At the risk of adding a note of discord, let us have a look at who we will be handing those increased executive powers to. They will be given to a Prime Minister who has illegally prorogued Parliament, who sought to purge his party of all but his most loyal followers, and who had to remove the Whip from a long-standing and highly respected Member simply for being chosen to head a Committee over his preferred candidate. We will be giving greater executive power to a Prime Minister who, in defiance of the security services, ennobled the son of a former KGB officer turned billionaire Russian oligarch, a Prime Minister whose career three weeks ago was hanging by a thread and who has been revealed to be up to his neck in dirty Russian money, and a Prime Minister who is currently under investigation by the Metropolitan police.
If Conservative Members vote to defeat this Lords amendment tonight, that is the character of the man to whom this House will be handing even greater executive power. I advise them to think very carefully about their decision, because this Lords amendment is there to protect the role of the House of Commons, to avoid executive overreach and, ultimately, to protect democracy.
John Redwood
Opposition parties are struggling a bit with this idea of democracy, are they not? Taking back control was to have control by the people and for the people, and offering the people an early general election so that they could choose an effective Government when a Parliament was logjammed, hopeless and not prepared to govern with clarity and passion was the right thing to do. I just cannot understand why Labour and the SNP are still queuing up to defend the indefensible, and to say that because they may well be faced again with a situation in which they do not dare face the electors, they need some kind of legal rigmarole and manipulation of votes in a balanced or damaged Parliament to thwart the popular will yet again. “Never let the people make the decision,” they say: it must be contained within Parliament, even when a Parliament has obviously failed, as it did when it could not implement the wishes of the British people over the great Brexit referendum.
I want assurances from the Minister that this new policy will protect the Crown—the Queen—from the difficult business of politics. I think the Minister’s version of it is better than the version from the other place. Of course, it must keep the courts out. There is nothing more political than the decision about when we go to an election and when we give the people their power back and the right to make that fundamental choice. It is a choice that now can mean something, because we do not have to keep on accepting a whole load of European laws that we have no great role in making. Again, we need that absolute guarantee that we will have this freedom so that that can happen.
Those who say that they do not want the Prime Minister to have this much power have surely been in the House long enough to know that, while the Prime Minister has considerable power from his or her office, they are also buffeted and challenged every day by a whole series of pressures in this place and outside. If a leader of a party with a majority wanted an early election that their supporters did not want, I suspect that that would get sorted out without an early election. So we are only talking about what happens when a Government have lost their majority and the Prime Minister is doing his or her best to govern as a minority. We get the extraordinary position we got when the whole Opposition wanted to gang up to thwart the public making a choice, but did not want to govern. That was totally unacceptable, and the Opposition should hear the message from the doorsteps in the 2019 election. The public wanted a Parliament with a Government who could govern, so they decided to choose one. Those who sought to block it made themselves more unpopular, and they showed that they do not understand the fundamental point of democracy that, when Parliament lets the people down, the people must be able to choose a new and more effective Parliament.
Chris Bryant (Rhondda) (Lab)
I apologise to the House that, because I have been in Committee Room 10 launching the call for evidence on setting up a national strategy for acquired brain injury, I am afraid I was not able to hear the wonderful speeches that doubtless came from those on the Front Bench—well, on the Opposition side anyway.
I completely agree with what the right hon. Member for Wokingham (John Redwood) has just said. Yes, I think the people of this country are crying out for a Government who can actually govern. They still were after the general election, and they certainly are at the moment. Yes, of course, the Prime Minister is buffeted, and I think the Prime Minister should be buffeted a bit more, to be honest.
What I do not understand is that this is the tiniest, most minimalist check on government that one could imagine. It simply means that a Government, which by definition already has a majority of Members of the House of Commons, should be required to come to the House of Commons to get a vote through to have a general election. It is absolutely minimal.
Jackie Doyle-Price
Is it equally the case that including this vote in the Bill would not mitigate people not being good chaps? If a Prime Minister has a majority and they could get that vote through—who knows what their reasons are—when they see things coming over the horizon that might give them some advantage, it makes it difficult for the monarch to say “no” under the Bill. Is it better to preserve what was best about our constitution before 2010, which relies on the Prime Minister and the monarch being responsible, and the good behaviour that should follow?
Chris Bryant
I think the danger is precisely the opposite. The arrangements that the hon. Lady would like us to have are ones that put the monarch in a regular position of making a decision, and brings them closely into not only party politics, but sometimes into partisan politics within a political party. It is perfectly possible that a Prime Minister might have lost, or be about to lose, the confidence of their political party, but that political party might still want to govern and carry on under a different leader. In other words, there may be within the House an alternative Government who would be better for the nation.
My other problem is that there seems to be a very high theological understanding of the role of the Executive. I think the former Leader of the House set that going with his rather Stuart early-17th-century understanding of the constitution, which is that basically, as long as the Prime Minister has the confidence of the House of Commons, he or she should be allowed to do pretty much anything and, frankly, parliamentary democracy is a little bit of an irritant. It is worth always bearing in mind that the Executive today is the only body who can ensure that business and legislation are considered, and the only body who decide when Parliament sits, when it will go into recess, and how long it will go into recess for. If we had the same rules today as we had in 1939, nobody would have been able to table an amendment to the recess debate that led to the big row before the beginning of the second world war. Today we have an Executive who are more powerful than they have been at any stage since the early 17th century, and it is time, occasionally, that the House of Commons said, “You know what? We’re a parliamentary democracy. Let’s take just a tiny bit of power into our own hands.”
Gareth Bacon (Orpington) (Con)
I will be brief as I gather I have only a few minutes to speak. The Lords amendment would require the House of Commons to give prior approval to a dissolution of Parliament, and that would be done by simple majority rather than the two-thirds majority required by the Fixed Term Parliaments Act 2011. On the face of it, that would be an improvement to the existing position, but it is still something of a half-way house that causes confusion. In the event that a Government lose their ability to command a majority in the House of Commons, it does not automatically follow that the House would vote to approve an election.
For example, it may suit Opposition parties to keep a lame-duck Government in place, so that they can inflict parliamentary defeat after parliamentary defeat, as a means of further undermining confidence in the Government. But in whose interests would that be? Certainly not the interests of the country. As hon. Members have said, we very much saw that in the “zombie” Parliament of 2017-19, when Parliament initially refused to allow an election to take place. The country became ungovernable, and contempt for Parliament rose dramatically—I speak as somebody who was outside Parliament at that time, and who shared in that contempt. I submit that that is not in anyone’s best interests.
We recently heard some confused interventions on this matter from the other place. For example, a Liberal Democrat peer asked:
“But why should a Prime Minister who cannot get a majority of the House of Commons for an election be entitled to a Dissolution?”—[Official Report, House of Lords, 9 February 2022; Vol. 818, c. 1590.]
I am still not sure whether that was a rhetorical question or whether the Lord in question was trying to figure it out for himself. Either way, it is non-sequitur reasoning because in the example he gave, a Government would not seek to dissolve Parliament unless they found it impossible to gain simple majorities in the first place. In my opinion, a rather better, and frankly rather more honest question would be: why would Parliament want to avoid an election, unless it feared that the result would go against its own wishes? That is the real question that those who support the Lords amendment must ask themselves.
There is concern in certain quarters that going to the electorate to seek a new mandate would allow an opportunistic Government to call an election at a convenient time to increase their majority. It is true that the power to call an election gives an advantage to a sitting Government, but that ability is a double-edged sword and can seriously backfire against a Prime Minister seeking to exploit a perceived opportunity. Post-war history is replete with examples of an incumbent Government misreading the political situation, and calling an election that fails to deliver the result they wished for. Harold Wilson’s Labour Government in 1970 and Ted Heath’s Conservative Government in February 1974 are obvious examples of that. Similarly, a failure to call an election can damage an incumbent Government. The obvious recent example would be from 2007 when Gordon Brown publicly flirted with calling an election, only to back off at the last moment and cause irreparable damage to his public image as a result. The power to call an election—or not—does not automatically confer an insuperable advantage on the incumbent Government. The Lords amendment is therefore completely unnecessary, and I will continue to support the Bill as it stands.
Jackie Doyle-Price
Members across the House want the repeal of the Fixed Term Parliaments Act 2011, but in its defence, it was a creature of its time and it delivered stable government for five years. Let us not reinvent history regarding why it was introduced in the first place. It disappoints me that so much of this debate has been seen through the prism of 2019. That was a unique political position where we were divided by an issue that crossed party and electoral politics. We risk making very bad law on the basis of what happened in that history.
Call me old-fashioned, but I am a romantic when it comes to our constitution. We have an unwritten constitution, and the less of it that is written, the more likely it is to flex to meet those challenges. On that basis I am opposed to the Lords amendment. However, equally, while the Government’s stated ambition is to go back to the status quo ante, the existence of the ouster clause goes beyond that, and the amendment is an alternative to that ouster clause—it is another way of ousting the courts from deliberation on our proceedings—so the ouster clause’s existence makes a strong argument for it as an option.
I regret that we are having this debate. As Conservatives, we ought to stick to the more romantic view of our constitution and be able to expect Prime Ministers to behave well and honourably in their deliberation with monarchs so that monarchs are never put in that difficult position. However, we have the Lascelles principles, which articulate the occasions where the monarch can be empowered to involve themselves in politics, and that should be enough. I recognise that the argument is lost—it was probably lost in 2011 when the Fixed-term Parliaments Act was passed, and it certainly was when we came to the sad events of 2019—but I hope that we can go back to normal.
Patrick Grady
It is not really for the Scottish National party to defend the Westminster interpretation of democracy, but the Bill, and rejecting the Lords amendment, is such a retrograde step that we must put that on the record and see it as part of a bigger picture. This is not control being taken back by Parliament but control being taken from Parliament by the Executive and, as a number of other hon. Members have said, consolidating power as part of a package of measures—not least the Elections Bill.
The effect of all that is that the next election campaign starts today. Everyone in the Chamber must therefore be aware of what they are doing when they cast their vote on the amendment. The campaigning starts today. The power will end up with the Prime Minister and he alone, without the check of his Cabinet or of this House. That is a significant power grab that will further undermine confidence among the public in the institutions of this place. Again, I say to Government Members that, from an SNP point of view, that is fine in a way. The Bill and the rest of their package of reform is not strengthening the Union. As I said in my interventions, we can look at the systems in place to protect the devolved institutions’ democracies and see how they can dissolve only with the permission of the legislature or must operate to a fixed term that everyone knows in advance, but the Bill is taking this place backwards. It is increasing the divergence on these islands. Once again, from where I am standing, that is fine, but perhaps Government Members ought to think twice about it.
Michael Ellis
First, may I say to my hon. Friend the Member for Thurrock (Jackie Doyle-Price) that I, too, am a romantic—that may come as a surprise to the House—especially when it comes to the constitution? I agree that flex is required and that it is highly desirable to have an unwritten constitution that gives us that flex and ability to change things as needed while accepting the conventions of our constitution.
The Lords amendment before the House is not a small amendment; in fact, it is a wrecking amendment as it would convert the whole purpose of the Bill. I can hardly think of anything more democratic than saying: a Government of any particular day might have lost of the confidence of the elected House and will therefore go to the country and ask the people for their view.
I know that the Opposition would not want to go back to 2019 and, as happened then, block a general election three times. That is no doubt why they agreed in their manifesto that the 2011 Act had to go. Let us not allow that to happen again. Let us hand power to the people, let us protect the sovereign from involvement in politics and let us disagree with the Lords amendment.
Question put, That this House disagrees with Lords amendment 1.
Dissolution and Calling of Parliament Bill
Tuesday 22nd March 2022
(2 years, 8 months ago)
Lords ChamberRead Full debate Dissolution and Calling of Parliament Bill 2021-22 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129(a) Motion for Consideration of Commons Reason - (15 Mar 2022)
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.
Lord Lansley (Con)
My Lords, I hope we are all agreed that we should not insist on the amendment that we passed on the previous occasion. However, we were right to ask the other place to think again. Indeed, even though it was a relatively short debate, and programmed as such, it was an opportunity for a number of Members to think again—if not necessarily to change their minds, at least to reflect on the nature of the decision that was being made. For example, Jackie Doyle-Price said:
“In building legislation that will last, we need to ensure that we have sufficient, adequate checks so that any Prime Minister will not abuse their position.”
Kevin Brennan asked a very interesting question, which we raised here:
“What would happen where the Prime Minister of a minority Government wished to call a general election, but there was the possibility of an alternative Government being formed? Would that Prime Minister be able to dissolve Parliament by prerogative in those circumstances, or would another person be given an opportunity to form a Government and a majority in the House of Commons?”—[Official Report, Commons, 14/3/22; cols. 647 and 643.]
Of course, the answer is that such a person may be given such an opportunity but that would be by the exercise of the discretion of the sovereign, which would draw the sovereign back into decision-making—something we were all agreed that we wanted to avoid.
The point is that our amendment was intended to raise these issues but not in any sense to undermine the manifesto commitments of the two main parties to repeal the Fixed-term Parliaments Act. However, the manifestos did not say how the Act was to be replaced.
The Government have settled to their satisfaction that the constraint of Parliament upon the prerogative power is to be removed, but they have not settled the question of whether the sovereign might continue to be drawn into Dissolution decisions. It is unfortunately likely that, if there were to be another coalition—I speak as a former Minister in a coalition Government—this issue will resurface; it is bound to do so. Like the noble and learned Lord, Lord Judge, I hope that we will be proved wrong and the Government proved right.
In such important constitutional legislation—the Government are fortunate in having my noble friend on the Front Bench to steward it in this place—we should be looking for consensus and certainty. I am not sure that this Bill has achieved that. None the less, I hope that the Bill will succeed in its objectives.
Lord Grocott (Lab)
My Lords, we should not let this moment pass without reminding ourselves of precisely what a bizarre set of circumstances we find ourselves in. I remind the House that the Lords amendment that we sent to the Commons says:
“The powers referred to in subsection (1)”
—that is, the power to dissolve Parliament—
“shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).”
In other words, very simply, this unelected House is saying to the elected House that, while it is none of our business, we think the House of Commons should have something to say about whether the House of Commons should be dissolved and the electorate consulted. I hope that, at some point in the future, the Commons reason for disagreeing with this House will be printed word for word in Erskine May, as follows:
“The Commons disagree to Lords Amendment 1 for the following Reason—Because the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”
Imagine if we substituted “the Dissolution of Parliament” for, say, something that we are going to debate in another Bill tomorrow—“the electoral system”. This is our constitution. It is not any old Bill but the rules of the game. Could we have an amendment in future saying that the Commons disagrees with the Lords in an amendment on the electoral system, on the basis that the Commons does not consider it appropriate that the electoral system should be subject to a vote in the House of Commons? That could apply to any other aspect of our constitution.
I feel pretty confident in saying that there has never been anything quite like this. As we have said time and time again, the whole development of our parliamentary democracy has been a slow transference of power from the monarch/Executive to the elected House of Commons; yet this particular Commons, elected just two years ago, is saying that whether or not there is an election is not anything to do with it. Ultimately, this entrenches the possibility of the monarch becoming profoundly and deeply involved in politics and in an acutely political decision: whether there should be a general election—there is no bigger decision than that. The House of Commons feels that it should not have any say in that whatever, and it should ultimately be a decision for the monarch.
I encourage those who revise Erskine May to make sure that this stunning reason on Dissolution appears somewhere in the text of that great tome. I am sure that it has never happened before. I think it is absolutely bizarre of the Commons to say that it does not want anything to do with this.
Lord Butler of Brockwell (CB)
My Lords, I have mixed feelings on this occasion. As the House may remember from my remarks on Report, I always thought that our amendment to the Bill that we passed back to the Commons was a second best. I also regret, as the noble Lord has just said, that the monarch should be left as the only protection against the misuse of the prerogative power to ask for a Dissolution of Parliament. I wish that we had decided not to pass the amendment that we did but instead had removed Clause 3 from the Bill, but we did not. I hope that no trouble will come from this, but I fear that it could.
Lord Cormack (Con)
My Lords, I fear that if we had removed Clause 3, although I was very sympathetic to that line of argument, as the noble Lord knows, we would have had the same result. The Commons, whipped, would have sent back the Bill with Clause 3 reinserted. We should not delude ourselves.
Both noble Lords on the Cross Benches performed a signal service. It was right that the noble and learned Lord, Lord Judge, should take the initiative that he did. I supported him then, and I would support him again, but not tonight, because we both made it plain, as did others, that this had to be the decision of the House of Commons. I think Members have made an unfortunate and potentially dangerous decision, bearing in the mind the delicate position of the monarch. I am very sorry they have deleted the wisdom that we inserted into the Bill. But it has, and there for the moment is an end to it.
Lord Newby (LD)
My Lords, I echo the sentiments of the noble Lord, Lord Grocott. This is a bizarre situation, in that we said to the House of Commons, “We think, O House of Commons, that you ought to have a bit more power on one of the most important acts of the political calendar; namely, the calling of an election.” It is an act, of course, which affects every one of them intimately whereas it affects us not at all. They have said, “It’s very kind of you to suggest that we have more power, but, actually, we don’t want it.” That seems bizarre and surprising, but if the Commons in their collective wisdom decide that they would rather the Queen retain a power than that they be given one which we have very generously offered to them, it seems churlish of us to insist on it. Therefore, I do not propose that we do.
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.