Dissolution and Calling of Parliament Bill

Lord Mackay of Clashfern Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I very much subscribe to the last observation of my noble friend Lord Norton. The detail of what should happen in the event of the previous Act being repealed is an extremely complicated matter. Clause 2 seeks to set out what should happen, but the question about whether a prerogative can be set up again once it has been destroyed is interesting and possibly important. If there are attempts to set this up as a statutory power from then on, it may have different effects from being merely a prerogative power. For one thing, it may contain more restrictions on its exercise than would be the case in a straightforward prerogative. There is a question to answer here about that, if one wants to go back to the situation which existed before the Act we are now seeking to repeal was passed. There is no doubt at all in my mind that, once that Act was passed, the prerogative power was certainly restricted, if not completely destroyed.

The option of going to a fixed Parliament apart from this situation is sealed, in a way, by the provision in Clause 4 that terminates a Parliament after five years. There is a fixed-term Parliament in that sense as it cannot be extended beyond five years. On the other hand, it can be reduced in length by the exercise of what was prerogative power. This is best discussed in detail in Committee because it seems to me essential that something fairly detailed is understood to be the purpose of Clause 2.

Of course, that brings me immediately to Clause 3. If anything requires discussion in Committee, this certainly merits it because it has profound effects. For one thing, it is a new phraseology which, so far, I think has not been the subject of a judicial decision. There is a certain amount of talk in a case suggesting that something of the kind may be necessary if you are going to get a real ouster clause. I think the great effect of the Anisminic judgment is that it really makes it impossible to set up a protection for a decision that is not in accordance with a statutory provision in statutory cases and, of course, something of the kind may be necessary in prerogative cases as well. That sort of principle is an extremely difficult one to get round. When I was Lord Chancellor, I was of the view that it was not possible to devise a completely sacrosanct ouster clause because it was always possible to get round it by the Anisminic principle. People have sought to devise more of them since then and they may or may not be successful, but that matter really requires to be discussed fairly fully in Committee.

Therefore, it seems to me that at present the precise result of what we—certainly the Official Opposition and the Government—are agreed on is that the Fixed-term Parliaments Act should be repealed, without any desire to keep it partly in place. What replaces it and how it should be replaced is really the question. The detail that requires to be considered is such that we should prefer to do that in Committee, rather than trying to do it at Second Reading when it is the principle of the Bill that is in issue. The principle of the Bill is mainly concerned with the repeal of the Fixed-term Parliaments Act. I thoroughly agree with that. I have never understood fully how it was supposed to work. Maybe it is unnecessary to consider that further, so long as one agrees that it should no longer have effect. Precisely how to replace it is a difficult matter and would be best left, in accordance with our procedures, to Committee.