Dissolution and Calling of Parliament Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 6th July 2021
(3 years, 4 months ago)
Commons ChamberDissolution and Calling of Parliament Bill 2021-22 View all Dissolution and Calling of Parliament Bill 2021-22 Debates Read Hansard Text
18:46 - The House divided: - Ayes: 367 / Noes: 65 - Question accordingly agreed to.
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.
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.”
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.
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?
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.