Dissolution and Calling of Parliament Bill

Lord Mackay of Clashfern Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Grocott (Lab)]

My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.

It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.

It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.

[Lord Mackay of Clashfern (Con)]

My Lords, we are very much indebted to the noble Lord for his background in this matter. It is important to remember that there are Dissolution principles to be settled before this situation arises. From time to time they have been revised, but I do not think they have been revised for some time now, and obviously it is appropriate that they should be before a further action is required.

It seems there is an academic argument about whether, once the prerogative powers are stopped as they were by the original Act, they can be revived—and this academic discussion occupies quite a lot of pages. So far as I am concerned, if Parliament says, “You go back to where you were before we did this”, that seems perfectly possible and should be followed. I therefore agree with my noble friend Lord Norton of Louth that it is desirable to put that in the Bill. I do not think it is at all likely that anything of the sort that the noble Lord, Lord Grocott, has mentioned is likely to arise, because the Dissolution principles make that very plain. It is in the form of a request because of its importance, but it will be taken in accordance with principles that are well settled. I very much support this proposal and the basis on which it rests.

[Lord Desai (Non-Afl)]

My Lords, if I may intervene in this debate, I think it is still important that what used to be the custom and convention be clarified on paper. This is for a very simple reason. While I agree with the noble Lord, Lord Grocott, that it is inconceivable that a monarch could refuse the request of a Prime Minister, there is always a possibility. For example, in India, which has a constitution based very much on British lines, the president is elected by the Parliament, and very often he or she is a partisan person and would be unable to refuse the Prime Minister under any circumstances. We have to reserve the power of the monarch. If what the Prime Minister is saying does not smell good when he or she is asking for a dissolution, the monarch should have the power to say no.

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[Viscount Stansgate (Lab)]

My Lords, I intervene briefly because this is a very interesting debate and I am grateful to the noble Lord, Lord Norton of Louth, for having tabled his amendment. We are all here because we recognise that the 2011 Act was a mistake. However, I am a little puzzled by the noble Lord’s amendment because he prefers to insert the word “personal” when, up to now, we have simply referred to it as the royal prerogative. Indeed, I am grateful to the Minister, who in a Written Answer to me yesterday defined the royal prerogative; I have it in front of me but do not need to read it out. The Minister refers to the royal prerogative just in those terms and not in any way as “personal”. Therefore, when the noble Lord, Lord Norton, responds to this debate, I would be grateful if he—or indeed the Minister—could tell us whether there is any difference between the phrases “royal prerogative” and “personal prerogative”.

While I am on my feet, I join other noble Lords in saying that, when I listened to the noble Lord, Lord Beith, it brought back to me what happened in 1974. However, I do not think that anyone would expect the monarch to refuse a dissolution, although it is inherent in the nature of this Bill that the monarch might take that fatal step.

[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 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.

[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.

Devolved Governments: Public Expenditure

Lord Mackay of Clashfern Excerpts

Thursday 20th January 2022 Lords Chamber

[Lord Agnew of Oulton (Con)]

The noble Lord raises a very good point. I believe that I will be coming back on Monday to deal with an Urgent Question on this specific subject. I would remind noble Lords that these schemes were stood up at an incredibly fast pace to protect the productive capacity of this country. Yes, the fraud losses are extremely frustrating but, if we had not got that money to the business community as quickly as we did, we would have seen a lot more damage to our economy.

[Lord Mackay of Clashfern (Con)]

My Lords, to what extent do the UK Government make clear in the publicity in the devolved Administrations the amounts of money that come from the UK Government to those Administrations?

[Lord Agnew of Oulton (Con)]

My noble and learned friend is right that we need to remind Scottish citizens that a great deal of the funding that goes into Scotland comes from here. We now have a Minister for the Union, Michael Gove, and his job is to keep reminding all the devolved Administrations that we are one union. A very senior civil servant, Sue Gray—of whom some of you may have heard—is the Permanent Secretary for the Union, and we are encouraging engagement at, for example, local authority level on a much more frequent basis.

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.

Government: Leadership Training

Lord Mackay of Clashfern Excerpts

Thursday 16th September 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a great privilege to follow the noble Baroness, Lady Taylor. I must say that I agree with a great deal of what she said in relation to the conduct of the Government towards Parliament and the need for that particular relationship to be scrupulously observed.

It is a long time since I was a Minister but, in those days, it was a terrific fault if, by any chance, some proposal leaked out before it was put before Parliament; a complete investigation would normally take place into why that had happened and to prevent it happening again. I think partly that was due to the attitude of the most senior Minister in the Government—in my case, for most of the time, it was Margaret Thatcher—but it was indeed a very important consideration.

I am interested in the idea of instructing Ministers in what they should be doing. I am not sure whether this instruction would be given before they become Ministers, in the hope that they may become Ministers, or once they are in office, after they become Ministers. Whatever, it is certainly very important.

I looked through the papers that are recorded in the back of the brief that the Library has prepared for us and I took out this phrase:

“We will also ensure Ministers receive training in how to assess evidence, monitor delivery, and work effectively with Civil Service colleagues.”


The best I can do is to say just a word or two about my own experience as a Minister in two departments—both a long time ago, but I think the principles remain.

The first principle is that the Minister and all the staff of the department, whether they are civil servants or other agents that are used in the particular office in question, are one team. The Minister is responsible for that team and must take responsibility for any errors that take place. We all make mistakes—I have not met anyone yet who has never made a mistake; I look forward to that possibility but, so far, it has not materialised—and it is absolutely essential that the Minister takes responsibility for his department and what it does in his name. It tends to be a very divisive matter if the Minister starts to make out that something or other has happened that he did not want.

The second point I want to make is that the Civil Service and the other advisers in various departments are there to assist. I think it is vital for the Minister to give time to these people to express to him or her what their view is of a particular matter.

When I became Lord Chancellor, a long time ago now, I was very interested to hear what the civil servants, staff and officials had to say about quite difficult decisions that from time to time we had to make. I was told by my private office a week after I came into the office that they had doubled the amount of time allowed in my diary for consultations with officials. I think that indicates that I felt that the only way to be really sure that you were doing what was right was to try to find out what the advice was and discuss why that advice was given. As I look back on it now, I think that most of the decisions I took were agreed between myself and the official responsible for looking into the matter.

The whole position of being a Minister is surely very responsible, and one of the things a Minister is responsible for, in the public interest, is having a relationship with the press. When I became the Lord Advocate, there was no connection between my office and the press: rather, it was thought of as a rather unworthy kind of connection. I did not agree with that and I was determined to try to raise it. Help was given by my Secretary of State, George Younger, from the Scottish Office. One of the officers there told me that, if you have a case, the thing to do is to say when you are going to make a statement on it, make a complete investigation and, when that has been given, say “That’s all”—otherwise, the thing drags on and becomes an impediment. These are just some little advices I got out of practice, and I suspect they are pretty good advices still.

Council of Europe Convention on Access to Official Documents

Lord Mackay of Clashfern Excerpts

Tuesday 20th July 2021 Lords Chamber

[Lord True (Con) [V]]

My Lords, I have underlined the principle of this Government’s belief in transparency. I refute the idea that there is anything anti-European here. The current adherents to the treaty are Bosnia, Estonia, Finland, Hungary, Lithuania, Montenegro, Norway, the Republic of Moldova, Sweden, Ukraine and Iceland. The majority of EU countries are not signatories. I think that answers the noble Lord’s point that this is some kind of EU line.

[Lord Mackay of Clashfern (Con)]

My Lords, can the Minister say whether a Cabinet paper would be an official document in terms of this treaty and, if so, would it be protected under Article 3k?

[Lord True (Con) [V]]

My Lords, my noble and learned friend is right to draw attention to this. Although protection for deliberations within public authorities is allowed for in the convention, it does not provide the specific exemption that Parliament felt was necessary in order to protect Cabinet collective responsibility, which is one of the key conventions underpinning our form of Cabinet government. It informed the Labour Government in 2000, at the time this Act was passed, and continues to inform us.

Wellbeing of Future Generations Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading
Friday 25th June 2021 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I find it somewhat difficult to follow the noble Lord, but I support his Bill. I believe that it is necessary for us to consider the future when looking at the present, but one difficulty that I have is that the future is rather difficult to predict. We have to expect the unexpected. How you plan for the unexpected is something that I have not quite grasped from the Bill, although I believe that the Bill requires a mode of thought that is an improvement on the present situation. It puts a legal duty on government that resembles the duty that parents have for their offspring.

I am now at the great-grandchild generation. We all have a responsibility to do our best for them, but what the best is varies very much from time to time. That has certainly been my experience. I also want to say that, when someone tells me off, I try to take account of that, because I believe that it is a good lesson for the future. The difficulty is that this is a mode of thought that does not seem to me easy to formulate in detail. We must consider carefully in Committee the system put in place in the Bill.

What is well-being? It is a very difficult concept, and I want to mention one important aspect of it. Those of us who heard the national parliamentary prayer breakfast this morning will have heard statements of the spirit that enables people to have hope in the face of adversity, and I believe that this should form part of well-being. We must do our best to provide our offspring with a spirit that enables them to have hope, which is the best protection against despair and the consequences of despair.

EU-UK Trade and Cooperation Agreement

Lord Mackay of Clashfern Excerpts

Friday 8th January 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, shortly after I became Lord Advocate, the late Lord Bingham was appointed a High Court judge. He had been nominated by the Attorney-General to defend the United Kingdom in a number of cases raised in the European Court of Justice by the European Commission for breaches of the common fisheries policy, and the Attorney-General nominated me to take his place. When he handed over to me, he remarked that he had advised the Attorney-General that they were all absolutely hopeless. So it turned out. I realised then what a hard bargain this policy was for us, and the prospect of leaving was an inviting one for the UK elements of our fisheries.

The agreement affirms the sovereign rights and obligations of the UK and the EU as independent coastal states, and emphasises the right of each party to grant vessels of the other party the right to enter its waters, to be exercised in annual consultations in the light of the best scientific information available. I am therefore confident that the UK has the full right to control and manage its own waters, subject to international law, once the disappointing temporary arrangement to gradually raise the UK’s shares has expired on 31 July 2026, and completely on 31 December 2026.

I close by expressing my great thankfulness that our fellow citizens in Europe are to continue to enjoy the beautiful seafood harvested in the north of Scotland.

EU Exit: End of Transition Period

Lord Mackay of Clashfern Excerpts

Thursday 24th September 2020 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, the detail of the ultimate agreement, if any, is not known. What difference will it make whether we have a free trade agreement or no deal in respect of the preparations that are the subject of this Statement?

[Lord True (Con)]

That is a very important question, and it is important that it is understood. Whether we have a free trade deal must not be confused with the question of tariffs, and the question of tariffs will differ. Whether or not we get a Canada arrangement or another arrangement, my noble and learned friend is quite right that we will have left the single market and the customs union. That fact means that adjustments for businesses trading with the European Union will have to be made, and they are the subject of this Statement and the ongoing discussions. It is important that all businesses and people moving to and from the European Union understand the point lying behind my noble and learned friend’s question.

Covid-19: Debt Collection

Lord Mackay of Clashfern Excerpts

Thursday 23rd July 2020 Lords Chamber

[Lord True]

My Lords, those are two important questions and I have touched on each. The call for evidence that we issued last month will inform policy in these areas. I hear what the noble Baroness and others say in relation to enforcement agents. I can only repeat that local authorities can act responsibly and many councils have responded positively to the challenges and have indeed signed up to the protocol developed by Citizens Advice, which was referred to in the original Question. I hope that more will consider doing so.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, being in debt is a tremendous burden. What can local authorities do now to relieve people who cannot pay in full or at all from this distressing burden?

[Lord True]

My Lords, local authorities have discretion to act, as indeed central government does. This Government have made a clear commitment to introduce a breathing-space protocol to assist with the effective management of problem debt.

Census (England and Wales) Order 2020

Lord Mackay of Clashfern Excerpts

Tuesday 12th May 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, the Census Act 1920 provided a framework for a census of questions on stated subjects, with an obligation to answer, subject to a penalty. It provided for the authority for a particular census to be an Order in Council, of which this is one, with supporting regulations, including a census form.

More recently, as has been mentioned, that Act was amended by statutes which provided for optional questions by providing for questions where failure to answer would not be subject to a penalty. This draft order provides for an obligation to answer three such questions, but that obligation is unenforceable. The draft regulations and the form will translate into clear language that answering these questions is optional. The correct result is reached by a circuitous route.