Dissolution and Calling of Parliament Bill

Lord Butler of Brockwell Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Sherbourne of Didsbury (Con)]

I just think that if you gave the House of Commons the opportunity to veto it, and the Government of the day simply could not get on with their business, which is what would probably happen, then we would have a problem. I come back to the point I made with my noble friend Lord Lansley: if you have a Government with a minority, or without a working majority, that Prime Minister may not be able to get the support of Parliament; but he or she needs it to be able to have an effective working Government.

[Lord Butler of Brockwell (CB)]

My Lords, the noble Lord asked for an example of where a Prime Minister might illegitimately ask for a general election. I will give an example not a million miles away from our present circumstances. Let us suppose that 54 Conservative Members of Parliament expressed no confidence in the present Prime Minister, and there was then an election in the Conservative Party for an alternative leader, and that leader emerged. At that moment, the present Prime Minister decided that, rather than give up power, he would ask the Queen to dissolve Parliament so that there could be a general election. I put it to the noble Lord, Lord Sherbourne, that, in those circumstances, a majority in Parliament, which the Conservatives would have, would reject the proposal for a general election. That might be an imaginable circumstance. I am not in favour of this amendment—I would rather not have it at all—but that is a situation where I would rather that the majority in Parliament rejected the idea of an election than the Queen having to do it.

[Lord Mackay of Clashfern (Con)]

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

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

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

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

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

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

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

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

--- Later in debate ---

This Bill will provide a welcome degree of clarity. It will restore, or rather confirm, the status quo and, with this ouster clause, keep the judges out of politics. I pause to point out that, in a sense, as we said in the IRAL, this is not truly an ouster clause, since the Bill is not creating a new power and then ousting the jurisdiction of the courts. Rather, it is confirming the status quo as acknowledged so long ago by Lord Roskill in the GCHQ case. It is doing this in the interests of legal certainty, a point made by the Constitution Committee, of which I have the privilege of being a member. Our current Prime Minister is perceived by many in your Lordships’ House and outside as having rather little regard for the law. But personal antipathy to this Prime Minister should not result in our making unnecessary and undesirable amendments to this Bill.

[Lord Butler of Brockwell (CB)]

My Lords, I shall disagree with the noble Lord who has just spoken by opposing the inclusion of Clause 3 in the Bill, but first I thank the noble Lords, Lord True and Lord Wolfson, for extending to me the courtesy of a virtual discussion on this. They failed to persuade me, but I appreciated the courtesy.

Last week, the Minister circulated a letter to your Lordships addressing the issues arising from the Bill. In it, he said:

“Clause 3: Restates the long standing position that the exercise of prerogative power”


in relation to the Dissolution and calling of Parliament “is non-justiciable”, and the noble Lord, Lord Faulks, has just said something similar. I have been around a long time, but I am not aware of any such long-standing position. There is the statement of Lord Roskill, but it did not bear directly on this. It is not surprising that this position has not been conclusively established, because no challenge to the use of the prerogative power has ever been made. Nor do I think it likely that it ever would be. If it was, I find it hard to imagine the circumstances in which a court would uphold such a challenge. So, in practice, I regard this clause as unnecessary, and dangerous.

Let us suppose, for the sake of argument, that a Government misused this prerogative power by asking the sovereign to dissolve Parliament in order to prevent Parliament causing the Government some inconvenience or in an attempt to overturn the result of a recent election. What safeguard would there be against such a misuse of power in the absence of the courts? The noble Baroness the Leader of the Opposition was absolutely right. She said that there were three possibilities. There is Parliament—the House of Commons—which we debated in the last group of amendments, there are the courts or there is the sovereign. Those are the only three possibilities. Again, I quote the Minister’s letter:

“The sovereign retains the power to refuse an improper dissolution and, in doing so, acts as a constitutional backstop in this context.”


Is this a position in which we would wish to place the sovereign? It would do precisely what we are all agreed we should not do: namely, to require the sovereign to intervene in what are likely to be, as the noble Lord, Lord Grocott, said, the most highly charged political circumstances. Therefore, if anyone is to prevent the Government misusing the power, and the Government are determined to oppose the House of Commons being given a vote, I submit that it should be the courts rather than the sovereign.

Of course, if the high court of Parliament—the House of Commons—has authorised the use of the power, that would put it out of the reach of the courts. That is the virtue of the amendment moved by my noble and learned friend Lord Judge and the noble Lord, Lord Wallace of Saltaire, but the Government are opposed to that. There are dangers in leaving it to the House of Commons, which were described at length in the last debate, so it is either the courts or the sovereign. I submit that in those circumstances, it has to be the courts.

There is a more fundamental objection to Clause 3. These are the words of the clause:

“A court or tribunal may not question—


(a) the exercise or purported exercise of the powers referred to in section 2,


(b) any decision or purported decision relating to those powers, or


(c) the limits or extent of those powers.”


I find those words chilling. They amount to saying, “We will take these powers, but we will not allow any interference by the judicial system in the way we exercise them.” That is the language of an authoritarian —some might even say totalitarian—Government.

It is because the present Government have shown signs of seeking to override any challenge to the use of their powers that this ouster clause is such a dangerous precedent, as my noble and learned friend Lord Hope has said. I suggest that this House should stand against that precedent. I shall not seek the opinion of the Committee today on excluding Clause 3 from the Bill, but I reserve the right to move an amendment on Report to remove it.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I will speak only on Clause 3 stand part and not on the more detailed amendments, because I am sure that my noble friend the Minister will reply in his careful way about how the wording was arrived at and what it is intended to do, as he did very carefully at Second Reading.

One does not have to be an expert on the constitution, which I am not, to know that judges should not interfere in politics, and decisions on calling elections are about as political as decisions ever get. I believe the Government are right to try to draft this Bill in such a way that the courts cannot interfere in that very political decision, and that is why I support Clause 3 standing part of the Bill.

The fact that the Government feel it necessary to include Clause 3 and draft it in such a complex way speaks volumes about how the judiciary has found many ways of getting involved in areas that would have seemed unthinkable only a few years ago, ones of which we would have assumed the courts would steer clear. The clause is necessary only because of the direction of travel taken by the courts in the way they have interpreted the areas they get involved in. I, for one, believe that we need no more surprises like the Miller judgments.

Clause 3 is confined to the specific and narrow issue of whether the prerogative power to dissolve Parliament is justiciable. I cannot conceive of any circumstances in which the involvement of the courts could ever be justified, and those who oppose Clause 3 have said that they cannot think of any either. Even the noble Lord, Lord Butler of Brockwell, who demonstrated the fertility of his imagination in the debate on an earlier group of amendments, could not come up with an example. We are legislating against shadows, against figments of the imagination.

The issue is about only the steps taken to allow a general election to be called. It is a very political decision. We cannot conceive of the courts ever getting involved in delaying an election, halting an election or even, as my noble friend Lord Faulks suggested, nullifying the result of a general election. It just seems too ludicrous a concept even to contemplate. However, we need it to be clear beyond peradventure in the law, and without this clause it may not be.

We need to get this into perspective. Clause 3 does not diminish the role of the courts in the constitution; it is about this one narrow area that before, when we simply rested on the prerogative, no one thought the courts could ever get involved in, but because of other developments in the law we now feel it necessary to be quite explicit about it.

[Lord Butler of Brockwell (CB)]

The noble Baroness and I agree that the circumstances in which this situation arises are unthinkable, so why should we have the dangerous precedent of this ouster clause in the Bill?

[Baroness Noakes (Con)]

We have it because it is just possible that the courts could find a way in. We have seen them getting involved in areas that we never thought they would get involved in before. That is a fact of the way the judiciary has moved in recent years, and it is why the clause is there.

I do not accept that the clause sets a dangerous precedent. It is about this one very narrow issue. It is not about an ouster clause that would be put in every statute that came before Parliament. Of course, Parliament must decide at the end of the day how it wants to frame its laws. It has the right to do that, and the courts can then interpret those laws, but I do not believe that this will be seen as a precedent for a more general use of ouster clauses. If it is, I am fairly sure that Parliament would not accept them. We should see this clause in the narrow concept in which it is drafted and not try to extend it beyond that.