Dissolution and Calling of Parliament Bill

Debate between Lord Butler of Brockwell and Lord Mackay of Clashfern

Committee stage
Tuesday 25th January 2022 Lords Chamber

[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.

European Union (Withdrawal Agreement) Bill

Debate between Lord Butler of Brockwell and Lord Mackay of Clashfern

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.

However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.

We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.

[Lord Mackay of Clashfern (Con)]

I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide

“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,

which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and

“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”

Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.

Healthcare (International Arrangements) Bill

Debate between Lord Butler of Brockwell and Lord Mackay of Clashfern

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I agree with the noble Lord that our parliamentary processes for dealing with statutory instruments are unsatisfactory—in particular, that we cannot amend them. But is not the remedy in Parliament’s hands? If we were a little bolder and rejected some statutory instruments, it would not be difficult for the Government to reintroduce them in an amended form. The amendment could be very slight. It seems that statutory instruments are necessary, particularly when we are dealing with all those that result from our leaving the European Union. Therefore, we need to look very carefully at the parliamentary process for dealing with them. It seems, as the noble Lord, Lord Young of Cookham, said at Question Time, that this is in Parliament’s hands. We could be bolder and achieve the objective of amending statutory instruments by rejecting some of them.

[Lord Mackay of Clashfern (Con)]

My Lords, it is important to realise that statutory instruments are a very useful way of dealing with particular situations, but of course it is extremely important that the powers to make these instruments are properly scrutinised and narrow. As the noble Lord, Lord Wilson of Dinton, said on the previous day this Bill was being considered, in his day parliamentary counsel would say, “What do you want to use this for?” If the reply was, “I’m not sure”, they would say, “Well, in that case I’m not drafting it until you know what it is for”.

Privileges and Conduct

Debate between Lord Butler of Brockwell and Lord Mackay of Clashfern

Thursday 15th November 2018 Lords Chamber

[Lord Mackay of Clashfern]

She was the investigator and complaints were made about the nature of the investigation. She submitted to the Committee for Privileges a document containing that information. That was submitted to the noble Lord, Lord Lester, for his consideration—the committee was not going to take one side or the other. He then submitted a supplementary comment on that also. The last person we heard speak on this was the noble Lord, Lord Lester. The commissioner was not asked to speak after that. We were firmly of the opinion that the commissioner’s report had to be taken on the basis of what she said, and the committee had the duty of deciding, on the balance of probabilities, whether that was a reasonable decision in the circumstances or to reject it. We also had the knowledge that, if we rejected the commissioner’s report, we were in fact saying that the complainant’s account of the matter was a complete lie. The evidence she submitted on paper was detailed and circumstantial, and the commissioner went over it with her.

[Lord Butler of Brockwell (CB)]

My Lords, the noble and learned Lord will know that I intervene with great reluctance. Is he saying that, if the feeling of the House is that, for whatever reason, the process was unfair, nevertheless we are compelled by the rules to do an injustice to an individual?

[Lord Mackay of Clashfern]

Not at all. I am saying that the process is perfectly fair. The commissioner gave the noble Lord, Lord Lester, and the complainant exactly the same balance. I do not accept for a moment that this House has approved unfair rules and only discovered that today. These rules have been in position for a long time, and you have to bear in mind that the complainant made a complaint on the basis of these rules. As far as I can see, there is nothing unfair about the rules, so long as both sides get the full account of what the other side has said. In my opinion, that is natural justice: that you have the full account before you. Natural justice would not allow, for example, supplementary evidence to be taken by the commissioner without it being shown to the noble Lord, Lord Lester. As far as I know, there is no complaint to suggest that he was not shown every piece of paper that the commissioner had. He was given his opportunity to explain.

The process then requires the commissioner to make up her mind and submit her report to the Committee for Privileges. The committee’s only responsibility is to decide whether it accepts the report. As far as I can see, nothing has been suggested about the facts of the matter on which she reported which can be shown to be wrong. In the recondite speeches we have heard on the subject of procedure—

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Debate between Lord Butler of Brockwell and Lord Mackay of Clashfern

Friday 23rd March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I want to just say, in support of what the noble Lord, Lord Grocott, has said, that my understanding is that this Bill has received a Second Reading. Therefore, it is inappropriate to propose amendments that have the effect of destroying the Bill, because that is trying to reverse a decision that the House has already taken.

The other thing that I want to say is that my noble friend Lord Butler and I have worked together for years and years, but I dispute very much the idea that the only way in which this House could indicate in a very strong manner that it supports the Bill proposed by the noble Lord, Lord Grocott, is by an absurd procedure that requires two Members of this House to record their vote in opposition to what they really believe. I think that there would be something very seriously wrong with the procedures of this House if there were no other ways in which the House could show its support of the Bill.

The other empirical observation that I want to add is that, if you want to make progress on the whole, it does not help you to interrupt the people who are opposing you.

[Lord Butler of Brockwell]

Before the noble Lord sits down, can I just say in reply that, if he reads the newspapers tomorrow or listens to “Yesterday in Parliament”, he will hear that the way in which the House demonstrated that it wanted to support the Grocott Bill was through that Bill.