Dissolution and Calling of Parliament Bill

Report stage
Wednesday 9th February 2022 Lords Chamber

Report

11:41

Clause 2: Revival of prerogative powers to dissolve Parliament and to call a new Parliament

Amendment 1

Moved by

[Lord Judge]

1: Clause 2, page 1, line 9, at end insert—
“(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?

11:45

My concern is this. This amendment is about the ultimate source of power in our constitution, today and probably for the next 50 years. Where does it rest, is the question we were asking? But the real question is where should it rest? We are enacting a statute, and whether the prerogative is being revived or not, the statute will govern whatever it is that governs our processes. I ask the question again: where should this ultimate power of dissolution rest? Before the prerogative is revived, surely we must take time just to be certain that reviving the old way is the best way.

There are understandable arguments about the Fixed-term Parliaments Act, which made Parliament indissoluble—I hope that is the right word—or not subject to Dissolution, without a two-thirds majority. This amendment proposes that it be a bare majority of those Members of the House who vote. The Act itself was tested to destruction during the Brexit shambles. I understand the argument that there should be an Executive control and that it is necessary for efficient government, but is this really the best we can do in 2022?

Whatever the position was in 1950, the idea that the sovereign can, in response to the Prime Minister who advises or requests—what a wonderful argument that has been—a Dissolution, refuse it, is completely inconceivable; it is beyond the fairies. We cannot have the monarch turning down the elected Prime Minister’s request for Dissolution without becoming utterly enmeshed in party politics.

As to the courts, I strongly believe, as a former judge, that this has nothing to do with the courts. The courts should not and do not have any jurisdiction to interfere with proceedings in Parliament. Article 9 remains firmly in its place and is surely an encouragement to us to allow the issue to be resolved by the other place.

There is something more profound. Should not the voice of the elected Chamber be heard? We live in a modern democracy: why should it not be heard? Why should it be compelled into silence on the very issue of its own existence? Why should not a simple majority of those Members of the other place who choose to vote be regarded as worth having as some curb on a Dissolution power that would otherwise be put in the hands of a single individual who happens, for the time being, to be our Prime Minister? Why should so much power be restored to our Prime Minister, whoever he or she may be? He or she, whether for political advantage or otherwise—and largely, of course, it will be for political advantage—but in truth on a whim, would be vested with the constitutional authority to override, or threaten to override, a point to which I will come back, every single vote cast in the last general election by a single vote of their own. For a modern democracy, that does not sound very wise, does it?

I repeat that the modest purpose of this proposal is merely to send this fundamental constitutional issue back to the other place for time to be given there for a further and mature reflection on the merits or the demerits of the amendment. That is all I am asking. I should have pursued this amendment anyway, but since the other place finished its discussion, I want to raise it as a somewhat alarming event.

I made it clear in Committee that this was not about the current Prime Minister and his troubles. I raised the issue in the debate on the Queen’s Speech, when he was riding pretty comfortably high in the polls. But a few days ago, after members of his own party expressed dismay at current events, the then Leader of the House threatened them with a general election to bring them into line.

I have based what I regard as a very distasteful suggestion to have to make on the words actually spoken by the leader, and the careful and, as far as I have been able to ascertain, unchallenged analysis of the noble Lord, Lord Finkelstein, in the Times last week. He refers to the Leader of the House’s actual language, when he said:

“my view is the change of leader requires a general election”—

we all know what that is about. The noble Lord’s observation was:

“The motive for this statement was transparent … The motive was to frighten rebellious MPs with the prospect of losing their seats in an ill-timed election.”

That is a threat—to use the power that it is hoped and assumed by the leader that we would let through at great speed.

For today’s purposes, I urge that the other place be allowed to decide what it made of the merits and demerits of the argument and of that astonishing threat—that an uncurbed Dissolution power might indeed be open to such unexpected misuse. The threat itself was a misuse, and this unconstrained power should not be restored to the Executive. I beg to move.

[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.

12:00

There is also the saga about the Dissolution principles. I understand them, but they are messy. Do we imagine that a Prime Minister could go to a monarch and there would be circumstances in which the monarch would say no? As I said, that is inconceivable; they are the most contrived set of circumstances. The best argument that I have heard—I might as well give my opponents the best argument—is that it would be outrageous if a Prime Minister, immediately after he or she had lost a general election, were to go to the monarch and say, “I want another election immediately”. I suppose that anything is conceivable; it is conceivable that we will be hit by a meteorite during the general election. None the less, the chances are slim of a Prime Minister losing a general election and many colleagues, including Cabinet members—while other Members of the House of Commons have only held on by a slim majority and just made it back to Parliament—and then saying to them all, “Right, folks, we’ve done it once, let’s let them hit us again.” It is inconceivable that a Prime Minister, under those circumstances, would call for a general election.

In any case, in an unwritten constitution, of which I am so fond, you simply cannot pretend to cross the t’s and dot the i’s right the way through. I am trying to be helpful to the Government. There is a simple solution to this messy Bill, which is ugly in terms of the detail but not, as I said, on the fundamental principle. If you require a simple majority, you do away with the Dissolution principles, a politicised monarch and the interference of the judiciary. That is game, set, match and tournament.

[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.

12:15

I do not think it is right that a Prime Minister, particularly a beleaguered one, should be able to threaten his parliamentary troops to plunge the country into uncertainty merely because he is in personal difficulties. Not one of us knows what is going to happen in the coming weeks and months—and even days—but what is important is that there should be a seemly transition that does not compromise the integrity of the sovereign, particularly in this year of all years, and a clear opportunity for the House of Commons to decide whether it wishes to plunge the country into a general election or not.

All this modest and sensible amendment does is give that chance to the other place. Because of the changed circumstances of very recent times, and because this was not properly debated in the other place at an earlier stage, I believe we have a duty to do this. We equally have a duty to accept whatever the Commons says when it votes on the equivalent of the Judge amendment, because the elected House is where the proper power in our constitution lies. We have a constitutional position and a duty that we exercise quite often to say “Please think again”. I can think of nothing more important on which to ask the opinion of the House of Commons than the amendment that is now before us.

[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.

12:30

I can sense the strength of feeling in the House, but I will tell noble Lords why I oppose the amendment. I oppose it for a very simple reason. I see the underlying principle of the Bill as “Trust the people”. It is about ensuring that Parliament cannot stop people expressing their views. I want to return to a system in which a Prime Minister can call an election and the election happens—no ifs, no buts, no parliamentary votes and no court cases. I think the noble and learned Lord asked exactly the right question, supported by the noble Lord, Lord Newby: “Where does power lie?”

Under what I want, power would flow directly from the Executive to the ballot box. As the noble and learned Lord put it in Committee, it is indeed one person’s decision to call an election, but that decision should automatically give power to millions of people who can pick up a stubby pencil and decide on the future of the country. Power rests with them and, if they want to punish the Government for calling an election early—as we saw to our cost—they can do so.

Flowing from that, I say with respect to the noble Lord, Lord Grocott, and others who have spoken, whose opinions I very much respect, that I do not buy the argument at all that Parliament should have a say—period. Let us just examine what that would mean. It would mean that Parliament would, as I understand it, last for five years, unless a majority of Members in the other place voted to end it. Now we can quibble—I will come on to this point—about whether that would be by a simple majority or a two-thirds majority, but there would be a fixed term. Saying that this amendment would still honour the Conservative Party manifesto pledge, which, let us remind ourselves, was that we would

“get rid of the Fixed Term Parliaments Act”

is in some ways technically true. But, in fact, that statement in the Conservative manifesto should have said, “We’ll get rid of the Fixed-term Parliaments Act and replace it with another fixed-term Parliaments Act”—and I do not believe that is the intention of the Government.

Then there is the argument that a requirement for a simple majority, as opposed to a two-thirds majority, would not lead to parliamentary gridlock. This is the point that my noble friend Lord Howard made. I agree with my noble friend, and the noble and learned Lord, Lord Brown. I contend—although I know that the noble Baroness, Lady Taylor, would not agree, potentially —that there could be a case in which the Prime Minister, if he or she was leading the largest party in a coalition, might find that his or her coalition partners did not want a general election. My noble friend Lord Lansley might say that that is unlikely. I think his words were that “in almost all circumstances” the Prime Minister would get a majority. But that is not good enough for me; it is just not good enough. Who here foresaw, when the Fixed-term Parliaments Bill was going through Parliament in 2010-11, the tumult of 2019? When the original Act was passed in 2011, we were all sure that it was going to bring stability.

That brings me to my third and final point. The noble Baroness, Lady Smith, argued in Committee that, if Parliament blocked a Prime Minister’s attempt to call an election, it would not be denying the people a say in a general election because

“there will be a general election within five years.”—[Official Report, 25/1/22; col. 208.]

Let us stop and think for a moment: “within five years”. We could be in a situation where, as my noble friend Lord Howard said, a Government were in office but not in power. I am sure that the noble Baroness needs no reminding of what her manifesto said: it pledged that Labour would repeal—I use the word deliberately; “repeal”, not “replace”—the Fixed-term Parliaments Act because it

“stifled democracy and propped up weak governments.”

That is precisely the point. By the noble Baroness’s own admission, this amendment risks doing precisely that, with years of twisting in the wind.

That is what we want to avoid. Trust the people—that is the entire point of the Bill, and that is why the amendment should be disagreed.

[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.

12:45

I have listened carefully to the debate. I am not going to repeat at length the arguments that I put in Committee; they lie there in Hansard and I stand by them. One novel argument was put forward today; the noble Baroness who has just finished, and indeed the noble and learned Lord, Lord Judge, referred to remarks made by my right honourable friend Mr Rees-Mogg. Let me put it beyond peradventure: the established constitutional position is and remains that a general election is not required following a change in leadership. I think all of us agree with that, and it is and will remain the position.

The noble and learned Lord, Lord Judge, said he wanted the other place to think again, and other noble Lords made the same point. It is of course the right of noble Lords, when they wish, to ask the House of Commons to think again—but the House of Commons has thought about this and sent us a Bill with no such provision as your Lordships propose to insert in it. The Bill has also been considered by the Joint Committee, which has reflected on it.

[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.

[Noble Lords]

Oh!

[Lord True (Con)]

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

[Baroness Smith of Basildon (Lab)]

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

[Lord True (Con)]

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

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

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

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

13:00

[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.

13:04

Division 1

Ayes: 200

Noes: 160

13:15

Clause 3: Non-justiciability of revived prerogative powers

Amendment 2

Moved by

[Lord Norton of Louth]

2: Clause 3, page 1, line 17, leave out “or purported exercise”
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.

13:30

[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.

13:45

However, this is not really that sort of situation at all. It is not, truly speaking, an ouster clause; it is simply restoring the status quo. As the noble Lord, Lord Norton, pointed out—and Lord Roskill so long ago expressed the view—it is simply a no-go area for the courts, so that we are not ousting anything that they would normally consider but simply saying that this is the position.

If this is an ouster clause, and I doubt whether it is, is it justified here in order to preserve the status quo? Why leave open the possibility, however remote, of the courts challenging a Dissolution? Potential chaos would follow a challenge—campaigns might be halted and results might even be overturned; even a threat of a legal challenge or an unsuccessful challenge could cause some serious temporary chaos. We all know that the courts are astute at identifying what has been described as politics by other means, but applications might be made, as the noble Lord pointed out, for collateral reasons. There are those who, quite frankly, say that they would be prepared to weaponise judicial review for political advantage.

Will this ouster clause be a precedent? The argument in Committee was that this will simply be followed by the parliamentary draftsmen and by a Government eager to restrain executive power. Of course, the Judicial Review and Courts Bill, which we were debating on Monday, contains a different ouster clause; it is a qualified ouster clause. Surely our job as Parliament is to look very carefully at any ouster clause in any Bill; they need justification. I entirely accept an ouster clause but it is not appropriate for the Executive automatically to oust the jurisdiction of the courts. I have faith that Parliament will be vigilant about this. Parliament has a vital role to prevent the Government routinely using such clauses.

Dealing with the question of “purported”, Boris Johnson plainly purported to prorogue Parliament. He went through all the customary processes and, as a matter of fact, Parliament was prorogued. Frankly, if you as a Government or parliamentary draftsman had read the decision in Anisminic or Privacy International, you would be negligent not to include the word “purported”, otherwise you are simply inviting the courts in.

Finally, the House generally agrees that it is very unlikely that the courts would want anything to do with this, but that might well have been the view that the Government took in relation to Prorogation, and that might have been the advice that was given to the Prime Minister and the Government. After all, a divisional court declined to accept the beguiling submissions of the noble Lord, Lord Pannick, that this was justiciable and decided unanimously that it was not. It is not inconceivable that these situations may arise.

In my respectful submission, this has been very carefully considered. In Committee, the noble Lord, Lord Wallace, very kindly referred to some of the conclusions of the Independent Review of Administrative Law and said that Parliament should think “long and hard” before ousting the jurisdiction of the courts. That is what we thought, and I entirely adhere to what we said then. But the position is that there has been careful consideration by us—I hope—the Joint Committee, the House of Commons and your Lordships’ House. We have looked long and hard at this ouster clause. In my respectful submission, it is one that stands the analysis we have given it and should remain in the Bill.

[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.

14:00

I believe Clause 3 is necessary to put this issue beyond question. Judges must not get involved in politics, and there is no more political decision than when to hold an election. I do not think that judges should ever stand between the people and the ballot box.

I wish to underline what other noble Lords have said about whether or not this is a precedent. If this ended up on the statute book, it would, in a technical sense, be a precedent for a future parliamentary draftsman to put into a draft Bill. But that is all parliamentary draftsmen do: they draft something into a Bill, they do not make it law. Parliament makes laws, and it will be for Parliament to ensure that there was not an inappropriate use of ouster clauses. I do not think that it has ever been asserted that ouster clauses are unconstitutional; they are certainly permitted in specific circumstances where justified and should be justified on their merits in each case. In this case, Clause 3 is there to ensure that we can go back to the prior understanding in relation to this one specific example of the royal prerogative.

[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.

14:15

As we listened to the debate, many noble Lords who are lawyers—the Minister recognised that he and I made the pages of Private Eye for not being lawyers and trying to make sense of the legislation—spoke on the premise that this would never go to the courts anyway and they would not intervene. I can think of no worse situation for the courts to intervene in than the calling of a general election. While one noble Lord called Clause 3 admirable, I cannot go as far as that. The Government may think it necessary; I would say that it is possibly understandable but a neater, more acceptable and more democratic way of dealing with this issue is the amendment that we have just agreed, whereby the House of Commons, the other place, should have a say in whether a general election is called. That would put the matter beyond legal action.

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

[Lord True (Con)]

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

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

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

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

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

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

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

[Lord Lea of Crondall (Non-Afl)]

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

[Lord True (Con)]

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

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

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

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

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

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

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

[Lord Norton of Louth (Con)]

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

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

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

14:30

We have had a very good debate, but my view is that it would have been better if this clause had not seen the light of day in the first place. We need to avoid constitutional tension within our system of government. As Professors Mark Elliott and David Feldman have written, the possibility of such tension

“demands a form of institutional comity that requires legislative respect for fundamental constitutional values as well as judicial respect for Parliament’s legislative authority.”

Clause 3 does not facilitate such comity.

I do not intend to press the matter. I have made my points and have got them on the record, which is what I sought to achieve. I leave it to the Government, even at this late stage, to reflect on what has been said and to adopt a mature and informed approach to constitutional issues, and especially the relationships at the heart of our constitution. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 and 4 not moved.

Amendment 5

Moved by

[Lord Butler of Brockwell]

5: Clause 3, leave out Clause 3

[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.

14:33

Division 2

Ayes: 120

Noes: 230

14:45

Clause 6: Extent, commencement and short title

Amendment 6

Moved by

[Lord Wallace of Saltaire]

6: Clause 6, page 2, line 13, leave out subsection (3) and insert—
“(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.

Amendment 6 withdrawn.

14:51

Sitting suspended.