Upholding Standards in Public Life

Baroness Smith of Basildon Excerpts

Wednesday 8th June 2022 Lords Chamber

[Lord True (Con)]

My Lords, I do not wish to extend the tread into history, but certainly Margaret Thatcher was also a great example of integrity.

[Baroness Smith of Basildon (Lab)]

My Lords, I think neither of the Prime Ministers mentioned would have behaved in the way that this Prime Minister has. The Prime Minister seems to regard the Ministerial Code as somehow his own personal property or plaything. I think many of us were disappointed by the new introduction, which has no reference to integrity, honour or truth. Given the lack of confidence in this Prime Minister, which permeates into the Government and is so damaging to government that even a majority of his own Back-Benchers have no confidence in him, does the Minister not think he should answer very positively the Question from the noble Lord, Lord Young: that the Government have to respond urgently to the recommendations of the committee and do their best to implement those, otherwise confidence is going to be lost?

[Lord True (Con)]

My Lords, the Government have a responsibility to respond, to consider, and to bring to Parliament the considered results of their reflections on the advice that they are given. As I told the House earlier, the important report that we are discussing was presented last November; we have made some responses and more will follow shortly.

Global Positioning System

Baroness Smith of Basildon Excerpts

Tuesday 26th April 2022 Lords Chamber

[Lord True (Con)]

My Lords, there were several questions there. I referred to the position on OneWeb earlier. I also said that the Cabinet Office review had now concluded and that we were working towards a system-of-systems approach. The UK has a range of PNT-related programmes in development across a number of departments: the National Timing Centre at BEIS; a robust global navigation solution that MoD is working on; and the space-based augmentation service for aviation and maritime safety, which DfT is working on. There are a number of other science and technology investments, but I do not wish to take too much of your Lordships’ time.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister will be aware of the House of Lords special inquiry which reported in December 2021, Preparing for Extreme Risks: Building A Resilient Society, which examined the very issue raised by my noble friend Lord West. At the heart of this is how the Government prepare for risk across a range of issues. Will he look at the risk register and how it is used by government? At the moment, the risk register considers the probability of an event that is regarded as a risk happening within the next two years. We are aware that, in preparing for risks, you have to look at a much longer time span than the next two years. If we look back at preparation for the pandemic, for example, we see that we did not look far enough ahead. Will he take back to government and perhaps report back to your Lordships’ House and respond to the committee report on horizon scanning over a 10 or 20-year period, rather than the two-year period that is currently undertaken?

Dissolution and Calling of Parliament Bill

Baroness Smith of Basildon Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

[Lord Newby (LD)]

My Lords, I echo the sentiments of the noble Lord, Lord Grocott. This is a bizarre situation, in that we said to the House of Commons, “We think, O House of Commons, that you ought to have a bit more power on one of the most important acts of the political calendar; namely, the calling of an election.” It is an act, of course, which affects every one of them intimately whereas it affects us not at all. They have said, “It’s very kind of you to suggest that we have more power, but, actually, we don’t want it.” That seems bizarre and surprising, but if the Commons in their collective wisdom decide that they would rather the Queen retain a power than that they be given one which we have very generously offered to them, it seems churlish of us to insist on it. Therefore, I do not propose that we do.

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

[Lord True (Con)]

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

[Baroness Smith of Basildon (Lab)]

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

[Lord True (Con)]

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

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

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

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

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

Peerages: Recommendations

Baroness Smith of Basildon Excerpts

Thursday 3rd March 2022 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the noble Lord, Lord Balfe, for raising this issue. Issues of probity, trust and transparency in appointments to your Lordships’ House are not new. Indeed, his Question refers to resolutions of this House from back in 1917. Even further back, these issues were being discussed in the 1890s. I looked at the debate of 1894 in the House of Commons. Sir Wilfrid Lawson MP raised the point that many in your Lordships’ House have raised today, which is basically that although these awards are given in the name of the sovereign, they act on the advice of the Government and Ministers, and those Ministers are responsible to the House and Parliament, which is responsible to the public. He said that

“these titles and honours belonged to the public … If, therefore they were not given for national purpose, they were clearly misapplied.”

That is a good starting point for the debate. He said then that

“in the future it should be made more clear why these titles and honours were bestowed”.—[Official Report, 4/5/1894, Commons, cols. 411-12.]

While I do not agree exactly with the resolution of the noble Lord, Lord Balfe, he is on to something regarding more information being made available to the public.

The debate in 1917 said that honours were awarded in two parts, only one of which was mentioned in the Question today. The other was that the reasons why somebody was recommended for the honour that they were awarded should be published. If one thinks about honours, whether it is an OBE, a CBE or a knighthood, a few words about someone are always issued, but for appointments to your Lordships’ House just the name and no other information is published. It would be sensible to make available to the public the information on why people have been awarded such an honour.

The second part of the Motion in 1917 was raised again recently. Ministers—the Government—have to be satisfied that no payments to a political party or fund, directly or indirectly, had been made. Again, it is a question of trust, probity and transparency.

I would go slightly further than the noble Lord, Lord Balfe, and want to pick up on comments that other noble Lords have made. I am not going to get into numbers, as my noble friend Lord Griffiths and others did, but there is a further point that we can look at. We have had debates in your Lordships’ House about HOLAC being put on a statutory footing. I was not sure whether the noble Lord, Lord Howard, was arguing against any committee at all—he seemed to be arguing against HOLAC. I support its work but think it could be refined and be more transparent. We do not want a House of the great and the good but a House that is a little more representative.

At the heart of all this is that we do not have legitimacy because we are not elected. Therefore, probity in appointments is even more important than ever, because the only way in which to have any confidence in those who serve in this House is for people to have confidence in the appointments process. If that confidence goes, there is no role for this House in many ways. That is clear.

The Bill of the noble Lord, Lord Norton, about putting HOLAC on a statutory footing, is coming up. I am not sure whether that is necessarily the way forward. Transparency, as the noble Lord, Lord Balfe, suggested, is possibly a better way, but the issue relates to the integrity of the House.

If you look at the work of the House, particularly this week, it has to be said that we undertake the heavy lifting of legislation. We sit far longer than they do at the other end. Despite the provocation of the Government sabre-rattling at times because they do not like what we do, we always recognise the primacy of the other place. We look at Bills and legislation in far greater detail and have a much more forensic approach to it. However, again I come back to the fact that, because of the way in which we are appointed, the process has to be beyond question and have integrity.

Noble Lords may have heard the Tortoise Media podcast that the noble Lord, Lord Lexden, contributed to, which was published yesterday, I think. I recommend it because one of the issues that it talks about is the transparency of the vetting process, so that members of the public, those making the appointments and, indeed, the monarch can be assured that they can have confidence in that process. One of the reasons that it has become such an issue now is the concern about individual appointments that have been made and about the Prime Minister overruling HOLAC, which has never happened before.

I will put on record four suggestions that I think may be of assistance. I hope that I may have another minute, given that we have a bit of extra time. I thank the Minister. First, along the lines suggested by the noble Lord, Lord Balfe, giving the public further information about why someone has been appointed is a modest proposal. Secondly, I come back to the second point in 1917 about having no party-political donations. They should not be a qualification or reason for appointing anyone. Thirdly, I cite the point about the vetting process being open and transparent. Fourthly —this may be a little more controversial—I go back to what was said in the 1890s, so I cannot claim this as an original thought. At that time, the MP proposed that “when a man”—today we would add “or a woman”—has

“enjoyed a title or honour for two or three years he would be taken into Court and examined in order to see whether he was still worthy of it, and whether the man had ennobled the title in the same way that the title had ennobled the man.”—[Official Report, Commons, 4/5/1894; col. 412.]

What about some post-appointment assessment to look at the contribution that those who come into your Lordships’ House have made? We welcome people who are prepared to play a full role in the work that we do—I do not think that any of us, from any party, do not, regardless of party politics or of whether we are independents or Cross-Benchers. This is perhaps a bit more controversial, but can we look at post-appointment assessment?

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

My Lords, I am grateful to my noble friend Lord Balfe for securing this important and very interesting short debate. I was happy to yield the Floor, as they say in the US, to the noble Member from the Labour Party—I cannot precisely remember the phrase from the Senate. Her suggestions were interesting and good to hear but also challenging, because who would carry out this post-appointment scrutiny of performance? It is, of course, a deficit in this House that we are not subject, as the noble Baroness, Lady Fox, would say, to the ultimate assessment of performance, which is by the electorate. What would the consequence be if a committee said that a person was not doing very well or that it did not like what he or she had said? I am simply saying that those are the kinds of issue that would arise. Who would actually do this assessment?

[Baroness Smith of Basildon (Lab)]

I am not suggesting for one second that it should be based on what people say; it should be on whether they are able to make a contribution to the work of the House, regardless of what side they are on, how they vote and what views they espouse. We could debate the other issues.

[Lord True (Con)]

All right. I will stick to the main point of the debate, although there is a serious issue about whether people have to be here day after day, every day, to make a contribution. My noble friend Lord Howard of Rising spoke interestingly on that point. There are people who do not come here often but whose voices we hear and listen to very carefully. We all know them.

This was a fascinating debate, and I agree with what was said about King George V and Jane Ridley’s biography, which is outstanding. Of course, one of the things that he recognised was that Lord Curzon could not become Prime Minister, despite his truly outstanding career of public service, because he had a place in what the noble Lord, Lord Desai, would call a less legitimate Chamber and thus could not, among other things, answer to the new Labour Party arising in the House of Commons. The reality is that there are issues of legitimacy, which I will come back to later in my remarks.

The noble Lord, Lord Griffiths, made an interesting speech, as he always does. He complained at one point about the number of Peers appointed by my right honourable friend the Prime Minister. As I always point out, his rate of appointment is far lower than that undertaken by Mr Blair in his first term in office. That gets to be forgotten. There was talk about the imbalance of the House. I must say that, sitting in the Chamber last night, with eight defeats, defeat after defeat, it did not seem a very unbalanced House. Here we are, night after night, with your Lordships hammering the Government’s proposals to deal with issues such as illegal immigration and crime, and the very things that the Home Secretary seeks to do being challenged. I do not feel that the alleged imbalance is preventing your Lordships asking the House of Commons to think again rather often.

Someone asked what my noble friend Lord Howard of Rising meant. The phrase I noted down was that the views of committees are often reflected in those selected. I thought that was a profound and true remark. If we look at the reflection of some of those appointed—I do not have time to pursue it—I think that that remark would have something in it. We need individuality in the House, and it was exemplified, I may say, by the noble Baroness, Lady Fox. I do not always agree with her, but she certainly makes an individual contribution, and I find it very welcome.

The noble Lord, Lord Cormack, spoke about numbers, as he often does. He rightly said that what we really need to look at it is the people who played an active part in 2019 to 2021. The average number was 471. He has this idea of a ceiling of 600. Does he propose that we should appoint 130 more Peers to bring the House up to that number? If they were to attend only 20% to 25% of the time, as he suggested, that would be 130 times four: another 600 Peers to get that effective number here. The numbers participating—

Lobbying of Ministers

Baroness Smith of Basildon Excerpts

Tuesday 1st March 2022 Lords Chamber

[Lord True (Con)]

My Lords, obviously I agree with what the noble Lord said in the first part of his question: in a free society it is an inherent right to make representations. As I have told the House, the Government are open to considering any proposals that do not restrict that. Lobbying and approaches to government should be transparent and properly conducted and exclude personal advantage; that is the purpose of the system.

[Baroness Smith of Basildon (Lab)]

My Lords, I come back to the point made by the noble Lords, Lord Clark and Lord Stunell. The Minister will have seen the Upholding Standards in Public Life report, which says that, in a liberal democracy, lobbying is an integral and sensible part of making views known to government but that trust in the integrity of our democracy is undermined when it is

“associated with money, undue influence and secrecy.”

That is the real problem here. He did not respond to the noble Lord, Lord Stunell, but I ask him to comment on two specific recommendations of the report. One, very appropriately, is that the Government should give up-to-date guidance to make it clear that informal lobbying and lobbying via WhatsApp or Zoom should also be reported to officials. The other is that that should include not just Ministers and civil servants but special advisers. Will the Government take those recommendations on board?

[Lord True (Con)]

My Lords, we are certainly aware of those points and, obviously, the investigation by Mr Boardman looked into issues relating to the first point that she made. I assure the House that all the various reports and recommendations put forward are being considered. I hope to come back to your Lordships before too long with further material proposals.

Dissolution and Calling of Parliament Bill

Baroness Smith of Basildon Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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[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.

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[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.

Ministerial Code

Baroness Smith of Basildon Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord True (Con)]

No, my Lords—I am saying that there is a set of allegations which have been made in many respects and in many circumstances over the last few weeks, in relation not only to this alleged incident but to others, which are allegations and not proof. We well know the impatience that your Lordships have for the conclusion of the Sue Gray inquiry and the Metropolitan Police investigations, but these matters need to be investigated, the facts established and the truth revealed.

[Baroness Smith of Basildon (Lab)]

My Lords, I do not want to prolong this unnecessarily, but I think the noble Lord may have missed the point. The only point my noble friends Lord Collins and Lord Browne were raising was that if the noble Lord, Lord Goldsmith, made a statement to this House that appears on the face of it to be at odds with a statement in an email from his private office that is now public, can he not come to your Lordships’ House to explain? I think that is a very straightforward request, and I hope that the noble Lord, given the comments he has made about Ministers acting on their personal honour, would want to convey that to the noble Lord, Lord Goldsmith, at the very least. No one is making any allegations, but the House would like, and deserves, an explanation.

[Lord True (Con)]

My Lords, again, I listen respectfully to the noble Baroness and to all in the House. I stand on the answer I gave that it is for Ministers to decide how to justify their actions and conduct, but I repeat that the assertions that have been made have been repudiated by the noble Lord, Lord Goldsmith, No. 10 Downing Street and the Defence Secretary.

Downing Street Parties: Police Investigation

Baroness Smith of Basildon Excerpts

Tuesday 25th January 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I know the Minister to be an honourable and decent man. I just have to wonder how many more times he will be comfortable coming to the Dispatch Box to defend the indefensible to your Lordships’ House. So I thank him for being prepared to answer questions today.

I have to say that defending this Prime Minister is a tough gig, particularly now it is the Metropolitan Police asking the questions. First, if I may press the Minister on a point of clarity, this morning we were told that the Sue Gray report was not able to be published, but parts of it—I think he used the word “findings”—would be published. We are now told that the Metropolitan Police is happy for all of it to be published. There has been some confusion over the course of the day as to what will be available, when it will be published and what will happen. Can the Minister please say whether the Government will commit to the publication of the report—not just the findings—and not in any way block it from being made available to the public in its entirety?

Secondly, and I appreciate that this may be a difficult one for the Minister, can he confirm reports today that after the Prime Minister was personally informed about the police investigation, he then chaired a Cabinet meeting and chose not to inform his own Cabinet of the police investigation? The Minister will know how deeply shocking that would be and what an enormous concern that would give, if that was the case. I would be grateful if he would comment on those two points.

[Lord True (Con)]

My Lords, on the second point, obviously, I am not a member of the Cabinet and not informed on that matter. It is not custom, as the noble Baroness knows, to comment on Cabinet discussions. On the first point, I must repeat what I said in the Statement. As the terms of reference set out, the findings will be made public. Obviously, there is an interrelation between the Cabinet Office inquiry and the police investigation, and any intimation must be left to those conducting the inquiries. As far as the Government are concerned, I repeat: the findings and the investigation will be made public.

Dissolution and Calling of Parliament Bill

Baroness Smith of Basildon Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the answer to the question of the noble Lord, Lord Grocott, may be that, if something was clearly in contradiction to the dissolution principles, it would be wrong. The idea must be that the Prime Minister would exercise his power to request within the framework provided by the dissolution principles.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise to speak only briefly. This short debate shows how, although we have five groups of amendments, they are all quite interdependent: they are all involved with the same issue. The noble Lord, Lord Norton of Louth, has done us a service tonight. He has indicated what the Government say they are trying to achieve: to reset the clock to where we were prior to the Fixed-term Parliaments Act. The reason why we have amendments down tonight is the lack of certainty that the legislation as drafted actually achieves that. I do not think there is any difference across the House about where we are trying to get to; rather, the issue is whether the vehicle being used does what it says on the tin, and that is why I am grateful to the noble Lord.

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[Lord Mackay of Clashfern (Con)]

My Lords, I have a very vivid recollection of Harold Wilson’s problem when he was elected with less than a parliamentary majority. As noble Lords will know, he had a second election in that year. At that time, I was the Sheriff Principal of Renfrew and Argyll, and therefore I was a returning officer for the constituencies in Renfrew and in Argyll, so I was rather familiar with what was going on.

Harold Wilson, when he was elected first, had not got a majority. The opinion polls were not quite so prominent in those days as they are now, but there was quite a lot of speculation as to whether, if he took a second election, he would be better off or worse off. That was a decision that he had to make which would not necessarily have been the same as the balance of people in Parliament, because, if the theory of the noble Lord, Lord Grocott, were right, they would be anxious to be the Government. But I fear that they had the rather suspicious feeling that they might not be the Government, and that in fact what might happen would be that Mr Wilson would get a better majority than he had up to that point. As the Committee knows, it was not quite like that either. To forecast what the vote in Parliament will be in the event of a Prime Minister wanting to call an election is by no means easy. It was very difficult in 1974, and I have no doubt that that sort of circumstance might occur again.

I have tried to look at this from the point of view of the construction of our constitution. We have three parts of the constitution: the Executive, the judiciary and the legislature. The business of the House of Commons—and this House, for that matter—is to legislate primarily and to hold the Government to account. The executive power is not in the House of Commons or in this House, and it should not be; something has gone wrong when that happens. The executive power is in the Executive.

The noble Lord, Lord Newby, asked what the authority of the Prime Minister is if he or she has changed since the Parliament was elected. The authority is that he or she is the Prime Minister, and the Prime Minister’s responsibility, subject to Her Majesty, is to be the head of the Executive. Therefore, the responsibility for taking executive decisions is, and should be, with the Prime Minister.

As I said, the idea that you can forecast the result of a vote in Parliament on this subject is extremely difficult if you take account of all the possible circumstances. I know that if you have an Opposition doing very well and the Government are looking a bit shaky, they will both want the same thing—but there are many other circumstances in which they will not want that.

I submit to your Lordships that we had in existence for many years a system under which there was no vote in the House of Commons at all. As far as I remember, apart from the Wilson year there was really no difficulty about the responsibility of calling an election. You just have to think what a responsibility the person who calls an election has. We had a slight example of that not long ago, when an election was called and the result was that the Prime Minister had a smaller majority—indeed, no majority at all—having started off with a majority. I do not think for a minute that the Prime Minister thought that was going to happen—it would be extraordinary if she did—but it did happen, and that is the responsibility of the Prime Minister.

I find it very difficult to see how that can be properly shared with anybody else. He or she has to take the responsibility to consult the public—the people. It is an executive call to start a general election, and surely the responsibility for doing that should be on the Prime Minister and not on the House of Commons. All Members of the House of Commons will have some kind of interest in what is going to happen. It does not necessarily follow that they want the good of the general population, although it might be disguised in that way. For example, I could see that as people age—as I certainly am—they may feel that they do not want to continue, whereas others are very anxious to keep their position. One has to have that kind of consideration in mind.

I have great difficulty in disagreeing with the noble and learned Lord, Lord Judge, with whom I have agreed many times in the past, but this is a fundamental point. My principal reason for thinking that this is not an appropriate amendment is that the responsibility of the Houses of Parliament is primarily to legislate and to keep account of the Government, but not to control an executive act except by legislating. This is not in any way a legislation; it is just a decision in the House of Commons that has no effect except as an executive decision.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a long and really interesting discussion, and it sums up the very reason for this amendment. When I spoke on the amendment from the noble Lord, Lord Norton, at the beginning, I said that one of the reasons I thought he had brought his amendment forward was to bring some clarity, and it is the same with this amendment in so many ways.

When I looked through the Hansard for the other place, one of the things that struck me—I mentioned this at Second Reading—was how often Ministers asserted as fact something that was really a ministerial opinion or judgment, and not actually a fact. The most crucial one was that the Bill will

“reset the clock back to the pre-2011 position with as much clarity as possible.”—[Official Report, Commons, 13/9/21; col. 721.]

If it was that clear, we would not have the amendments before us tonight. It is not clear, and that lack of clarity has caused concern.

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[Viscount Stansgate (Lab)]

My Lords, I have been listening to this debate and it has been extremely interesting. I will not detain the House because it is late, but what I find interesting—I am talking more generally about Clause 3, although I fully accept some of the points made about the wording and mission creep—is that this Government are claiming that the Bill simply restores the status quo ante. In fact, it is rather more difficult to restore the status quo ante than you might think.

In my view, the reason why Clause 3 is in the Bill is the Miller cases. The noble Baroness, Lady Noakes, and I disagree on what you might call the direction of travel—we can have a conversation about that some other time—but the Government cannot have it both ways. They cannot claim that they are restoring the status quo ante and, at the same time, make the argument for Clause 3. When the Minister replies, it would be helpful if he at least acknowledged that the Bill does more than restore the status quo ante. I will leave it there, in view of the late hour.

[Baroness Smith of Basildon (Lab)]

My Lords, in this debate I find myself in the unusual position of agreeing with almost every speaker—agreeing with something they said and disagreeing with something they said.

I start with the point made by my noble friend Lord Stansgate. If the Bill is merely returning to the status quo ante, as was said, I am not quite clear why we need a clause such as Clause 3. I think it was the noble Lord, Lord Butler, who said that it seems inconceivable to him that the courts would insert themselves into a decision about a general election. As the noble Lord, Lord Faulks, said, the practical consequences of doing so are quite disastrous and it is hard to contemplate the impact that would have on a democratic decision to have a general election.

The elephant in the room that has been alluded to is that everybody, whatever side of the argument they are on, is scarred by the unlawful Prorogation. I appreciate that this is about Dissolution, which is very different to Prorogation, but because of the unlawful Prorogation the Government are concerned that the courts may insert themselves into this decision-making. So, even though they are telling us that it returns us to where we were prior to the Fixed-term Parliaments Act, they still feel the need for belt and braces. Yet there is also the view that it is a step too far and would never be needed anyway.

As the noble Lord, Lord Grocott, pointed out, a neater way of avoiding the courts involving themselves in a decision about a general election, and avoiding bringing the monarch into a controversial political decision—the noble Lord, Lord Butler, commented on this—is for the House of Commons to have a vote. If the Government are concerned that, because of the way the legislation is drafted without Clause 3, there would be a danger of the courts intervening—in my view, there is not a role for the courts to intervene, but the Government are concerned that there may be—they have this clause. That is the chilling effect that people are concerned about.

This highlights the fact that the Government are not confident that their own legislation does reset. I agree with the noble Baroness, Lady Noakes, which probably surprises her as much as it surprises me, that it is legislation that tries to deal with shadows, because it is something we all hope will not happen. We have to look at this, and we need some more explanation from the Government as to why they feel it is necessary. It is hard to understand how the courts could and would insert themselves into a decision on a general election. I come back to the amendments in group two, particularly Amendment 3, being a better way to deal with this.

Could the noble Lord also address two things when he replies? Although there are the normal checks and balances of conventions, Parliament and parliamentary behaviour, one of our concerns, which comes back, sideways, to the unlawful Prorogation, is that we have a Prime Minister at the moment who does not really stick to the normal conventions of parliamentary behaviour that we expect. The noble Lord and I have had numerous discussions on this across the Dispatch Box—his face shows no emotion at the moment; I do not want to embarrass him. For example, I think that Prime Minister is the first Prime Minister to have ignored findings on the Ministerial Code, and the first to reject the advice of the House of Lords Appointments Commission and do what he wanted to do. In the same way as the 2017-19 Parliament, which my noble friend referred to as the dysfunctional Parliament, and the unlawful Prorogation influenced our decision, we are affected by the Prime Minister’s behaviour when we look at this. It is the same consideration.

Something is still needed to restore checks and balances. I am not convinced that it is this clause, but I would like to hear some more from the Minister, because most of us would be appalled that the courts would be involved in parliamentary sovereignty, for both practical and political reasons.

Could I get the noble Lord to address one final thing when he responds? I am still not clear about the word “purported”. I looked again at the Joint Committee’s report. Various lawyers, such as the noble and learned Baroness, Lady Hale, and Lord Sumption also commented that, basically, if the Government did something that was outwith their powers, we could do anything about it. If that is the intention behind clause, that is quite damaging. I would find it helpful if the noble Lord could explain why the word “purported” is in there and why it needs to be. I genuinely do not understand why it should be. That seems more dangerous than the clause itself.

[Lord True (Con)]

My Lords, I will certainly seek to do so. I do not wish to pre-empt the Committee in any way. We obviously have other groups to come to. I anticipate that the debates on those will not be quite so lengthy but, given the importance of this amendment, I hope noble Lords will be forbearing if I address it in some detail to place these matters on the record, mindful as we all should be that arguments put at length in Committee should not be repeated at length on Report.

I took it from what the noble Baroness opposite said that the Labour Party agrees with us that the courts should not come anywhere near this. Other people have obviously argued otherwise. She came out with that other elephant in the room, which was glinting quietly in the mists behind the argument from the noble Lord, Lord Butler. She criticises my right honourable friend Minister. The elements are mixed in my right honourable friend the Prime Minister. He has apologised for actions, and things are subject to inquiries. My right honourable friend the Prime Minister is subject to the most unprecedented campaign of personal vilification that I have been aware of in modern politics in my lifetime. Notwithstanding that, I do not think that that justifies ad hominem legislation of any sort. This point was addressed by the noble Lord, Lord Faulks.

The noble Lord, Lord Butler, based his argument on a claim that the Government sought “totalitarian” powers, with an advised plural. This matter concerns one process, as has been pointed out by several people who have spoken, and one process alone: the Dissolution of Parliament and the precipitation of a general election. I find nothing remotely totalitarian in a Government asking the public to be the Government’s judge.

Dissolution remains one of the most fundamental non-justiciable prerogative powers. Nobody has argued that it should be justiciable; some people said, “We do not need to have an ouster clause because it is obviously not”, et cetera. Dissolution is unique for two reasons. First, the constraints on it are democratic; the judgment on a Prime Minister’s decision to call an election is the electorate. There is no vacuum of accountability, as the noble Lord, Lord Grocott, said. What greater judgment and punishment can be meted out if a Prime Minister abuses that power than the loss of power, as the noble and learned Lord, Lord Brown, told us? It is the ultimate political reprimand. Secondly, the security of the process of calling an election, and the election itself, underpins the integrity and health of our democracy. It is critical that exercise of the Dissolution prerogative, including the preliminary steps leading to the exercise of the power, are not made insecure. This prerogative power is inherently political in nature and it is not suitable for review by the courts. There is no legal standard that the courts can usefully apply to review the preliminary steps and the Dissolution decision itself.

This has been the view of the courts, as we have heard. Lord Roskill, in the landmark GCHQ case in 1985, said the courts’ right of challenge must

“depend upon the subject matter of the prerogative power which is exercised”.

He agreed that the Dissolution of Parliament was not

“susceptible to judicial review because”

its

“nature and subject matter is such as not to be amenable to the judicial process.”

Furthermore, as Lord Justice Taylor noted in Everett:

“At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable.”


However, despite these clear directions from some of the most esteemed judicial authorities, in our judgment the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.

As the Independent Review of Administrative Law noted—and I pay tribute to my noble friend Lord Faulks for his role in that and for his reasoned and intelligent approach in leading that review,

“the past 40 years or so have seen a steady retreat within the law on judicial review away from the view that exercises of certain public powers are by their very nature non-justiciable in favour of the view that the exercises of those powers are either justiciable or reviewable on some grounds but not others.”

It is this reality that makes it necessary to include this clause leaving no room for doubt. The clause has been carefully drafted, as the noble and learned Lord, Lord Hope, divined, respecting the message from the courts that only, in the words of Lord Justice Laws, with

“the most clear and explicit words”

can Parliament exclude their jurisdiction. I am afraid, therefore, that when noble Lords suggest that reviving the prerogative power would suffice—this touches on the point raised by the noble Viscount—as the courts would be excluded from reviewing a prerogative power, that does not take into account the direction of travel in the case law and would be to ignore the clear message of the courts themselves. That was the gravamen of the impressive speech of the noble Lord, Lord Faulks, with which, in substance, I agreed, and also the submission of the noble and learned Lord, Lord Brown.

Noble Lords raised concerns with the specific wording of the clause, in particular the words “purported”, “limit” and “extent”, which I will address in detail. First, I emphasise that this clause says what is necessary and no more. Each of its words is necessary, in our judgment, to preserve the non-justiciability of the prerogative of Dissolution. Drafting this clause has been a technical challenge for counsel, and it has required a response to a range of case law. The purpose of the clause is to be as clear as possible about the “no-go” sign around the Dissolution and calling of Parliament, to preserve the sphere of political decision-making that provides the context for the exercise of the prerogative power of Dissolution and the preliminary steps leading to the exercise of that power. The Independent Review of Administrative Law, which had the benefit of seeing the Government’s clause, did not find it disproportionate but rather agreed that it can be regarded as a “codifying clause” which

“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.

I can tell the noble Viscount that it was the view of the Independent Review of Administrative Law that the clause restates the position.

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In short, we have included “purported” in Clause 3 to give effect to the principle that matters concerning the Dissolution and calling of Parliament are best judged by the electorate, not by the courts. This wording is essential to achieve that point.

[Baroness Smith of Basildon (Lab)]

I am sorry to interrupt the Minister, and I am grateful for the detail that he is going into. I am not a lawyer, but I am not the only person in your Lordships’ House tonight who is not. Can the Minister say, in lay man’s language, what he understands a “purported decision” to be? Can he give an example?

[Lord True (Con)]

My Lords, as noble Lords know, I am a lay man. I have read out the legal advice that I have been given that it should not fall to the courts to assess by reference to whether relevant considerations have been taken into account or irrelevant ones have been discounted. I said that earlier in my speech. I will write to the noble Baroness if the words that I have put before Parliament are not sufficient, but they are the words that I have on advice.

[Baroness Smith of Basildon (Lab)]

My Lords, I suspect that those words are sufficient for lawyers, but I think the Minister’s understanding of this might be as great as mine at the moment, so I will perhaps take advice between now and Report so that I fully understand the implications of what he saying—because I do not think he is able to give me further detail either.

[Lord True (Con)]

My Lords, I seek to put into the record the points put to me by those who argue and maintain that this is necessary.

I will further address the specific question of bad faith that was raised. This touches on another area around “purported”. Bad faith was mentioned by Lord Reid in Anisminic as one of the ways in which a decision may be treated as a nullity. Case law suggests that, if an exercise of power by a public body is taken in bad faith, it is unlawful and will be quashed by the court. A decision is taken in bad faith if it is taken dishonestly or maliciously, although the courts have also equated bad faith with any deliberate improper purpose. Therein lies the challenge. Again, there is no suitable standard by which a court can judge what an “improper purpose” is. By what standards can the courts assess the legitimate or illegitimate purpose—

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[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly, if only to remind your Lordships’ House that the Labour Chief Whip, the noble Lord, Lord Kennedy, and I were not able to vote in 1974, but that is probably not a good reason for rising to the Dispatch Box at this time of night.

I am grateful to my noble friend Lord Rooker for raising a number of issues that have concerned this House as a whole. I think it was my noble friend Lord Coaker who, during the debate on the police Bill last Monday, reminded the House that we were discussing measures to curtail protests that even Margaret Thatcher would not have contemplated during the worst times—as she would have seen it—of the miners’ strikes. We have moved a long way in what we think of as acceptable.

I point out that in 1838 the Chartists had six demands. All have been met, and we have gone beyond on some, such as the universal male suffrage that they wanted—we have improved on that—except for the one demand of theirs that has never been met, which is for annual elections. I am not making that case.

[Baroness Scott of Bybrook (Con)]

I thank noble Lords; I am very grateful to the noble Lords, Lord Wallace of Saltaire and Lord Rooker, for tabling these amendments, which have initiated what has been an interesting short debate, if not necessarily always on the amendments. In 1974, I remember pushing a pushchair and delivering literature, though not necessarily for the Labour Party of the noble Lord, Lord Rooker.

If noble Lords do not mind, I will stick to the amendments and not answer any further questions. The Bill makes express provision for Parliament to automatically dissolve five years after it has first met. This is the most straightforward way to calculate the five-year term. It also remains the case that your Lordships’ House has an absolute veto on legislation to extend the life of any Parliament.

I first turn to the question of the length of parliamentary terms. I have heard the argument for a four-year term, and I heard from the noble Viscount, Lord Stansgate, that he does not necessarily agree with the noble Lord, Lord Rooker, on this. However, the Government remain of the very strong view that five years is the right maximum length for any Parliament.

A maximum five-year term allows the Government time to undertake and implement their programme without having to start any electioneering. This is an important issue that I do not think the noble Lord, Lord Rooker, took into account as he did not mention it. Any Government have to deliver on the programme that is in their manifesto. Five years is a maximum period which I and the Government believe balances sensible, long-term government with ensuring that a Government and Parliament are accountable to the electorate in a timely manner.

In fact, we can that see parliamentary terms have developed their own effective and flexible rhythm. A strong Government seeking a fresh mandate might seek a Dissolution after four years. Anything less than four years is usually a sign of some political crisis or emergency. Often, Parliaments are dissolved for political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis. Moreover, shorter maximum terms invariably mean earlier speculation about whether a Parliament will see out its full term. This speculation does not serve Parliament, the public or businesses well. The former Cabinet Secretary noted in evidence at PACAC that longer-term Parliaments and longer-term tenures for both senior civil servants and Ministers would all be very good for Governments, who are increasingly having to face up to very long-term issues, as we have seen recently.

Finally, this question was reviewed by the Joint Committee, which did not question the starting premise that five years is the appropriate duration for parliamentary terms and the life cycle of a Parliament.

I will now address the amendment proposed by the noble Lord, Lord Wallace of Saltaire, on the timing of elections. The noble Lord has reflected on the experience of the electorate in December 2019 and observed that winter elections are not desirable. I hope your Lordships will allow me to relate Stanley Baldwin’s comments on the impossibility of finding a time for an election that suits everyone. On 23 October 1935, when seeking a Dissolution, Mr Baldwin observed on the timing of elections:

“Therefore I have long come to the conclusion that you must rule out the spring and summer months because of financial business. You must rule out August and September because of the holidays. You are left with the autumn, but in no circumstances must you run into any interference with the Christmas trade.”—[Official Report, Commons, 23/10/1935; col. 154.]


Those light-hearted remarks contain an important kernel of truth.

Certainly, outside times of political tumult when exceptional elections are necessary, it may well be the case that a Prime Minister would prefer not to call on the public to venture out to cast their vote in the depths of winter. I share the noble Lord’s sentiment that winter elections do not provide the most ideal conditions for queuing at a polling station or canvassing from door to door. The election in 2019 was, of course, exceptional and was called to bring an end to a period of extended parliamentary deadlock.

Nevertheless, the purpose of the Bill is to provide for a system that will serve successive Governments. As the 2011 Act has taught us, we should not draft our constitutional arrangements in response to one event. There is no guarantee that, in the future, an election will not again be required in December—or February, as in 1974, which we have heard about. So it would not be wise to legislate in the long term for an event that was an exception to the rule. Our arrangements need to be adaptable. That is the important point.

The challenge of the approach set out in the amendment of the noble Lord, Lord Wallace, is that it prevents the flexibility necessary for a Government to respond to particular circumstances. As such, I suggest to the noble Lord that to subject the timing of elections to this particular constraint—even if Parliaments do not normally run their full term—would run counter to that objective.

The purpose of the Bill is to revive arrangements that have stood, and will continue to stand, the test of time. I am grateful to the noble Lords, Lord Wallace and Lord Rooker, for stimulating this fascinating discussion but I hope that your Lordships’ Committee will agree with me that Clause 4, unamended, is the most suitable approach to achieve that aim. I therefore urge the noble Lord to withdraw his amendment.

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[Baroness Smith of Basildon (Lab)]

My Lords, I think that we have had a slightly longer and more interesting discussion on this than we anticipated at the start. The noble Lord, Lord Wallace, made a very valid point, not least because we have spoken a lot tonight about the normal conventions and practices of parliamentary politics. It remains to be seen whether the actions of this Government and this Prime Minister, in ignoring so many of them, will become the norm or whether, once he has gone, whenever that might be—it might be sooner than he anticipates—we will return to the normal way of abiding by the conventions.

I wonder whether the Cabinet Manual will be amended to say what happens or what should happen. I was amused earlier today when I read the section on the principles of collective Cabinet government. Paragraph 4.2 says:

“The Cabinet system of government is based on the principle of collective responsibility. All government ministers are bound by the collective decisions of Cabinet”,


which seems a remote concept at the moment, but perhaps we will return to those days as well.

Even though it is not within the power of Parliament to say that these documents should be updated, as with the Ministerial Code—the introduction to which now seems so dated and irrelevant in many ways because what is referred to in it has largely passed—there should be this regular updating. If we are to have a dynamic Parliament and a dynamic constitution, we need to update as appropriate.

[Lord True (Con)]

My Lords, the noble Lord, Lord Wallace, has frequently looked forward to that fabled day when the Liberal Democrats will again have, as he sees it, a balance of power in government. Perhaps a manual could be published on what would be the likely behaviour of the Liberal Democrats in the event they had such constitutional authority.

Jokes apart, I am grateful to the noble Lord for raising these points. They are two fundamentally important documents, which, as my noble friend Lord Norton of Louth and the noble Lord, Lord Kennedy, pointed out, are government documents. We published a Dissolution Principles document because we are aware that principles can operate effectively only when they are commonly understood and, yes, when there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day. There has been substantial discussion and scrutiny of the principles, including by the Joint Committee chaired by my noble friend Lord McLoughlin, by PACAC in the other place, and in dialogue back and forth.

As others have said, Amendment 10 proposes that there should be a process for Parliament to scrutinise a restatement of the principles in the form of a vote in both Houses, which has the difficulties that my noble friend Lord Norton of Louth and others referred to. The Government have reservations that this would be a step towards a codification of principles and conventions, just as we saw that the 2011 Act, which we have discussed, was not necessarily helpful because of the need for flexibility. In fact, Lord Sumption recognised in principle the challenges of codification when he gave evidence to the Joint Committee. He argued:

“One should be careful not to start codifying conventions, because their practical value is that they represent experience and practice … what is required to make Parliament work is not necessarily the same today as it was half a century ago.”


That will be so in the future. The Government believe that a careful balance needs to be struck between ensuring that there is a tacit agreement that these principles should be upheld—I acknowledge the duty to be mindful of the views of people inside and outside politics—and leaving space for these conventions to move in line with the political context.

In practical terms, on this and the next amendment, the Government would be concerned that this amendment means that the provisions of the Bill would only come into effect once both Houses had considered and voted on a Dissolutions principle. That risks creating uncertainty around the coming into force of the Act and, therefore, the arrangements for calling any election, which we have all agreed today should be avoided.

The same applies to Amendment 11. As noble Lords have emphasised throughout the debates today, constitutional conventions have a vital role to play in our parliamentary democracy. I am conscious that the separate tradition of the Liberal Democrats, which I respect, is that they wish more and more to be written down. The Cabinet Manual, alongside other authoritative texts such as Erskine May, is an important point of reference and reflection for how conventions are understood—but iterations enable evolution.

The noble Lord, Lord Wallace, is quite right to say that it will be necessary to revisit these sections of the Cabinet Manual once the 2011 Act is repealed. The Cabinet Manual recognises that conventions continue to evolve, and the Government will in due course respond to the report of the Constitution Committee and set out their intentions with regard to updating the Cabinet Manual. We are grateful to the committee for its considered review of the manual and its thoughtful identification of the key issues that ought to be considered in terms of any update. I am acutely aware that the Government’s response is long overdue, and I have humbly apologised for this to the noble Baroness, Lady Taylor. We are carefully considering those recommendations and will respond in due course.

To continue on the amendment, the Government agree that the Cabinet Manual should be an accurate reflection of our constitutional arrangements, but we are of the view that this amendment for a parliamentary vote is unnecessarily restrictive, for the reasons given by my noble friend Lord Norton of Louth and others. But the Government are particularly concerned that the provisions of the Bill would only come into force once a revised version of the Cabinet Manual has been published. Such an undertaking would necessarily require a considerable amount of work. Tying the provisions of the Bill to such a project risks creating uncertainty, which, again, we wish to avoid.

Both these amendments would run the risk of fixing our understanding of these conventions at a point in time—that is point one—undermining the flexibility that is essential to our constitutional arrangements. On the matter of the Cabinet Manual, I urge the noble Lord to withdraw his amendment, which would add complications because of the Catch-22 situation: the Cabinet Manual draws its authority from its ability to accurately reflect our arrangements, but we have not yet determined in Parliament what the successor arrangements to FTPA should be.

While obviously accepting the importance of both the principles and the manual as well as their relevance across party, beyond party and beyond this Parliament, I hope that the noble Lord will be content to withdraw his amendment.

House of Lords: Appointments

Baroness Smith of Basildon Excerpts

Monday 24th January 2022 Lords Chamber

[Lord True (Con)]

My Lords, we have no plans to do so.

[Baroness Smith of Basildon (Lab)]

My Lords, I return to the point made by the noble Lord, Lord Cormack, about the Burns report. When the Lord Speaker’s committee on the size of the House reported on 31 October 2017, it made some judgments on what the relative size of the political parties would be in 2022. It suggested that the Official Opposition Benches should have about 166 Peers as the number in the House reduced, while the Conservative Benches would have around 210. Today, we see the Labour Benches at 167—roughly right—but the Conservative Benches are 47 Peers higher than anticipated in the normal reduction of the House, as proposed by the noble Lord, Lord Burns. That might not have been evident in Monday evening’s votes, perhaps because the Official Opposition are punching above their weight and a number of Conservative Peers just went home. However, is it not the case that the Burns report was accepted by all parties in your Lordships’ House as being a way forward? Is this not another example of the Government thinking that the rules apply to other people but not themselves?

[Lord True (Con)]

No, my Lords, I do not agree with the noble Baroness opposite. I note that the Labour leader has said that he wants

“a democratic second chamber representing the nations and regions of the UK.”

I am sure that that gets fervent support on the Benches opposite. I repeat the point that I made: there is a factor in the way that this House operates. The Government have suffered 164 defeats in this House in two years—well over twice as many as were inflicted on Gordon Brown’s whole Government and more than in the first five years of Sir Tony Blair’s Government.