Parliamentary Democracy in the United Kingdom

Lord Norton of Louth Excerpts

Tuesday 25th April 2023 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I shall focus on trust. Public trust in government is low and getting lower. The survey evidence is that the distrust is not in the institutional structures but in the people who inhabit those structures. A survey by Ipsos MORI in February found that lack of faith in politics, politicians and Governments ranked fourth in response to the question, “What do you see as the most important issue facing Britain?” A survey last summer by YouGov found that when offered a list of 18 options in response to the question, “How much better or worse would democracy in the UK work if …”, the most popular option for working better was if politicians spoke more honestly. A total of 81% answered that it would work a lot or a bit better. Constitutional change in the form of structures and processes came in notably lower, all figuring in the latter half of the list. Fewer than 50% of respondents thought that democracy would work better if the House of Lords was replaced by an elected Chamber. The problem is not structures; it is behaviour.

I make one other related point following the resignation of Dominic Raab. The coverage of it misses the point that the conduct involved was a symptom of a systemic problem with government. In September 2021 I initiated a debate in your Lordships’ House on the need for Ministers and senior civil servants to be trained in core leadership skills. Until there is such training, there will continue to be problems with the capacity of Ministers and officials to deliver good government. Does my noble friend the Minister, who took part in that debate, not agree?

House of Lords (Peerage Nominations) Bill [HL]

Lord Norton of Louth Excerpts

2nd reading
Friday 18th November 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

That the Bill be now read a second time.

[Lord Norton of Louth (Con)]

My Lords, some years ago a survey was carried out on what people thought were the most important factors in determining the legitimacy of the House of Lords. Ranked in order of those factors that respondents deemed very important, the one that came third was having Members who are experts in their field; second was the House considering legislation carefully; and the one that came top was trust in the appointments process. More than three-quarters of those surveyed thought it very important; when combined with those who thought it was fairly important, the figure rose to 95%.

We tend to stress what we do collectively—in effect, the outputs of the House. Fulfilling key functions such as detailed legislative scrutiny complements the work of the other place and adds value to the political process. What the House does is important for the health of our political system. But however important that work, it is not headline-grabbing. People tend to judge legislative chambers in terms of the activities of the individual Members rather than the work of the institution. A Member caught in a scandal gets headlines; achieving amendments to government Bills does not. Those who subscribe to the House’s daily news report will be only too aware that the House does not get a good press.

It was apparent from the evidence submitted to the Royal Commission on the Reform of the House of Lords in 2000 that those who know most about the work of the House of Lords tend to be the most supportive of it. The problem is that very few people know about the detailed work of the House as a revising and scrutinising body. The media focus on the individuals who form it and, key to today’s debate, the process by which they join the House.

Recent Prime Ministers have been rather profligate in making nominations for peerages. Just after the enactment of the House of Lords Act 1999, we were approximately the same size in membership as the House of Commons. We now exceed membership of the other place by a three-figure number. We have discussed, and agreed without dissent, that we are too large. The process of nomination is also a matter of contention, the media variously criticising those whose names have been put forward. I am concerned today not with particular cases but with the problems associated with the process. My key concern is achieving an appointments process that merits the trust of the people, and the Bill is designed to contribute to achieving that.

The monarch creates peerages on the recommendation of his principal adviser, the Prime Minister. There are no formal constraints on who the Prime Minister can nominate nor on the number of names that can be submitted. The Prime Minister is advised now, and has been for just over 20 years, by the House of Lords Appointments Commission, a non-departmental public body. The commission vets names submitted by the Prime Minister and can put forward recommendations for non-party-political peerages. Whereas there is no limit on prime ministerial nominations, the commission is limited—I would say too limited—in the number that it can put forward. The commission does a very worthwhile job, and I pay tribute to it for the work that it does, but it is limited, not least in its scrutiny. It can assess nominations only on grounds of propriety, not suitability. It is also the creature of the Prime Minister. A determined Prime Minister can not only ignore its advice but, if he or she chooses, disband it.

The Bill has several purposes, all of which are designed to enhance trust in the appointments process. There are five key features. First, it protects the Appointments Commission and its independence by putting it on a statutory basis and providing that members, including the chair, are nominated jointly by the Speaker of the House of Commons and the Lord Speaker. Members will serve non-renewable terms and be removable only by an address by both Houses. At least four must be independent, and there is a requirement for there to be a political balance in respect of the other members. The proposal to put the commission on a statutory basis is not new: it was made by the Wakeham commission, the last Labour Government and the Joint Committee on the Draft House of Lords Reform Bill. It is also a long-standing aim of the Campaign for an Effective Second Chamber.

Secondly, the Bill ensures that the Prime Minister does not submit a name to the King until such time as the advice of the commission has been received. Ultimately, the Prime Minister may not accept the advice of the commission, but it is up to the commission as to when, and if, it submits its advice. Furthermore, the Prime Minister has a statutory obligation, which I will detail shortly, to furnish the commission with information that it requires before proffering its advice.

Thirdly, it imposes an obligation on the Prime Minister to “have regard” to three principles that are widely supported in this House. The first is that at least 20% of the membership should be independent of any political party—in other words, Cross-Bench Peers. The second is that no one party should have an absolute majority of seats in the House. The third is that the membership of the House of Lords should be no larger than that of the House of Commons. These are included in order to protect core features of the House that enable it to fulfil its functions effectively.

The first two principles help to ensure that Ministers take the House seriously and engage with it. I previously distinguished the culture of the two Houses: the House of Commons is characterised by a culture of assertion and the House of Lords by a culture of justification. Ministers must listen and engage to carry the House. Perhaps the most important stage of the legislative process is the informal one of discussion between Committee and Report. A Government secure in the knowledge that they had a majority in the House would sweep away those attributes.

The other principle, that the House should be no larger than the Commons, addresses size and is intended to move us in the direction of reducing numbers. It does not prevent the Prime Minister making new nominations, but it is designed to induce some reduction. So adopting a two-out, one-in approach, as advocated by the Burns committee, would be entirely in order. A Prime Minister could justifiably claim to be working towards reducing the size of the House through adopting such an approach.

The fourth key feature of the Bill is that it addresses quality, enabling the commission to advise on suitability and stipulating the criteria that it must adopt in considering nominations. The principal criteria are specified in Clause 7(2): namely that a nominee must be someone of “conspicuous merit” and have

“a willingness and capacity to contribute to the work of the House”.

The commission may propose additional criteria, subject to parliamentary approval, and in so doing must have regard to the diversity of the population of the United Kingdom. The Bill empowers the commission to publish guidelines explaining how it will interpret the specified criteria.

The fifth key feature is transparency. When names are submitted to the commission by the Prime Minister acting as party leader, or on behalf of other party leaders, the leader responsible for each nomination must inform the commission of the procedure and criteria adopted by the party for the purposes of selecting the name for submission. Leaders must also supply such other information as the commission may request. Where the Prime Minister makes a nomination as Prime Minister and not as party leader, he or she must supply such information as may be requested by the commission. I attach particular importance to this feature in terms of enhancing public trust.

Clause 9 will impose valuable discipline on party leaders, who will need not just to submit names but to justify the criteria for putting them forward. They will know that the information they supply may not be judged sufficient and, if necessary, they may have to supply further information. The process will no longer be opaque.

Those are the key features, and they are embodied in a short Bill. Excluding Part 3, with supplementary provisions, there are nine substantive clauses. The Bill is short, but I believe that it is key to helping enhance the reputation of the House and helping it fulfil its essential functions.

Good government needs an effective Parliament. A Parliament enjoying the confidence of the public underpins the legitimacy of government. A confident Government should have no problem with embracing the provisions of the Bill. A YouGov survey for the UCL Constitution Unit, carried out just under two months ago, found that only 6% of respondents supported the existing system of nominating Peers, and a majority supported an independent body appointing new Members. Thus the public support going much further than what is proposed in the Bill. The Bill is modest, and it is in the interests of the Government to accept it, rather than wait until they are forced to accept something more radical. I beg to move.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I am extremely grateful to everybody who has spoken in this debate; it has been marked by the quality, as well as the quantity, of the contributions. I was particularly delighted to be followed, and not for the first time, by the noble Lord, Lord Blunkett, as I realised that this year marks the 50th anniversary of us graduating together from the University of Sheffield.

I will make just three points in response to the debate. First, this Bill has received widespread support throughout the House. My noble friend the Minister could not have been oblivious to the fact that, preceding her, there were 27 speakers, at least 25 of whom expressed explicit support for the Bill. The only Member who actually spoke directly against the Bill was my noble friend Lord Leigh of Hurley—or, rather, he spoke against a Bill, which, as the noble Lord, Lord Butler of Brockwell, indicated, is not necessarily the one before us.

The same point can be made about the response of my noble friend the Minister, who, in order to respond, raised the Bill into something that it is not. It does not create great constitutional issues. The issue of merit is independent of capacity to contribute to the work of the House, and that capacity is not necessarily measured simply in terms of attendance. The point she was raising does not even meet the lemon meringue test of looking nice from the outside but, when you bite it, there is nothing there; I do not think it even looked that attractive from the outside. So I trust that she will take on board all the points that have been made from around the House. Support has been notable not only from its breadth but its depth. The backgrounds of the Members who have spoken reflect the point about the quality of the House, and the experience and expertise in the House, expressing support for this measure. So I reiterate what some have said: I hope my noble friend will go back to her department—indeed, back to government generally—to make it clear that this House favours the changes that are embodied in the Bill.

That leads on to my second point. A number of noble Lords have raised points that are essentially ones that we can discuss in Committee quite legitimately. To be honest, I am pleasantly surprised that more points have not been raised for Committee deliberation. Of the two key ones that have been mentioned, one is the proportionality test, which I think quite legitimately we should discuss in Committee, and the other, which I pondered before introducing the Bill, was the one that was touched upon by the noble Lord, Lord Kakkar, and one or two other noble Lords, about the prospect of judicial review. I wondered whether we should consider that in terms of the content of the Bill or whether—the noble Lord, Lord Kakkar, touched upon this—we think the courts would probably want to steer clear of that anyway. However, that would merit coming back to in Committee. Those are germane points that merit further consideration, and I look forward to Committee.

Thirdly, as a number of noble Lords, especially my noble friend Lord Cormack, mentioned, this represents incremental change and is very much in line with what we have achieved so far. We got the House of Lords Reform Act 2014 on the statute book, and it was a Private Member’s Bill, and we got the House of Lords (Expulsion and Suspension) Act through as a Private Member’s Bill, introduced by the noble Baroness, Lady Hayman. Therefore, there is plenty of precedent for a change of this sort to come in as private Members’ legislation. The Minister was saying that it should normally be government legislation but normally it is not; normally it is government legislation that does not get through but Private Members’ Bills that make it to the statute book. It would therefore be completely appropriate for this modest measure to make it to the statute book.

As I stressed in opening, and as other noble Lords have quite rightly picked up, it is a modest measure—that is the whole point. The noble Lord, Lord Burns, the noble Baroness, Lady Hayman, and the noble and learned Lord, Lord Judge, said that it is a first step but I think it is at least a further step on the road to achieving change, and we can then consider what else needs to be done subsequently. Therefore, it is in line with what we have done before and it is incremental; the Bill may not be sufficient but it is necessary. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Houses of Parliament: Co-location

Lord Norton of Louth Excerpts

Thursday 16th June 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

That this House takes note of the case for both Houses of Parliament to continue to be co-located in the same city.

[Lord Norton of Louth (Con)]

My Lords, my Motion is not concerned with the practicalities of decanting the Palace of Westminster, nor with the geographical site selected for relocation. My concern is one of constitutional principle. It is one that must be to the fore in considering relocation. The debate about restoration and renewal tends to focus on the physical health of the Palace of Westminster. My Motion is concerned with the health of our parliamentary system of government.

The design of the Palace of Westminster and its use are a means to an end. The end is an effective system of parliamentary government. Parliament exists to respond to the demands of the Crown, for both supply and legislation. Its power lies in its capacity to say no. That power underpins the functions it has developed to scrutinise demands for legislation and money, and for calling government to account. Those are the key functions of Parliament.

Having two Chambers serves a valuable purpose, but they are two parts of one constitutional entity. Each Chamber effectively plays to its strengths: we cannot emulate the House of Commons, but the House of Commons cannot emulate this House. We enjoy distinct legitimacies: the House of Commons, an electoral legitimacy; this House, a functional legitimacy. We complement one another. This is the key point: that complementarity is cemented by the two Houses being collocated in Westminster. We need one another and we need to be together to be effective in fulfilling our functions.

The interconnection of the two Houses derives as much from what we do informally as what we do formally. What happens in formal space, the Chamber and committee rooms, is core to each House fulfilling its functions, but that activity, while necessary, is not sufficient. It is what happens in preparation for formal proceedings that is fundamental to being effective as bodies of scrutiny and in calling government to account.

We need to meet not only Members of our own House, essential in mobilising support to pursue amendments and raise issues of concern, but Members of the other place. We have to liaise when Bills are going through and to interact for the purposes of lobbying and exchanging information. Political history can be affected by a chance encounter between Members of the two Houses. The opportunity for such interaction has always been there but, if anything, has been enhanced by the building of Portcullis House—its creation changing the geopolitics of the Parliamentary Estate, and the relaxing of rules on who can use refreshment and dining facilities.

We need to be collocated, not only for the benefit of both Houses in fulfilling the essential functions of Parliament, but for the convenience of citizens. We are an open institution. Members of the public can make representations to Members of both Houses. We are a highly pluralistic society, with citizens getting together to form charities and a range of other interest groups. The number of such groups has grown markedly in recent decades. Those groups seek to influence Parliament, not only by sending briefings electronically but by coming to Westminster to speak to Members in both Houses.

Moving one Chamber to another part of the country does not bring that Chamber closer to the people; it detaches it from those organisations that seek to put their case. They will most likely remain London-based in order to lobby the House of Commons and government. Arranging to see Members of both Houses will be costly and time-consuming and more likely undertaken by the better-resourced organisations. If the two Houses are not collocated, the opportunity for personal interaction between Members of both Houses is lost.

Separating us physically cannot be substituted by the use of technology or even quick transport links. We need spontaneity and the capacity to move quickly to liaise with one another and with Members of the other place. Meeting virtually, or in hybrid form, makes that difficult, if not impossible. I know some take the view that meeting in hybrid form during lockdown was a success and could be the future of how Parliament operates. Hybrid proceedings were a success technically—and the staff did a fantastic job at short notice—but not a success politically.

Members decanting to different parts of the kingdom during lockdown strengthened the Executive. Members operated as disparate and discrete entities and not as a collective body. We were not able to be agile in engaging with other Members and in challenging Ministers at the Dispatch Box.

As my noble friend Lord True acknowledged on 16 May:

“Those of us who have had experience of a Parliament by Zoom know the importance of personal contact within and across the Houses to the good operation of government and Parliament.”—[Official Report, 16/5/22; col 243.]


Separating the two Chambers empowers government. The suggestion that the House of Lords moves to a different part of the country, with the House of Commons in Westminster, is essentially a power grab by the Executive. I am not making the case against the House of Lords moving; I am making the case against the House of Lords alone moving. If one Chamber moves, the other must as well, and so must the Executive. If Westminster decants, then so too must Whitehall.

There is a perfectly coherent argument that can be made for locating Parliament and the Executive in a purpose-built capital, a Bonn or Brasília, or even an existing city big enough to accommodate such a massive ecosystem. My Motion is silent as to location. The essential point is not where, but who: it has to be Parliament—both Houses—and the Executive.

There are obvious practical problems if the two Houses are miles from one another in meetings of all-party groups and Joint Committees. I suspect others in this debate may address this. Committees can meet virtually but it is not the same as meeting in person. In any event, this is to isolate one feature of intercameral contact. One has to encompass the whole range of interactions between the Members of the two Houses to appreciate the necessity of both Houses being collocated in the same city, and ideally on the same site. Even if we move to the QEII Centre and the Commons to Richmond House, there will be problems—quite significant problems—of communication between Members of both.

Recognising the importance of two Chambers being collocated is not something peculiar to the United Kingdom; it is a global phenomenon. As the briefing by the Library records, of the 81 national bicameral legislatures that exist, all bar three are located in the same city and even one of the exceptions appears to be temporary. All major western democracies with bicameral legislatures have the two Chambers located in the same city. There is a particular value in being located in the same building, or at least on the same estate.

It is crucial that we put on record the need for both Houses to remain collocated and for this to be embraced as a prerequisite for the restoration and renewal programme. We need to ensure that it is confirmed now, given the increasing urgency of both Houses decanting. The decision to move out may be taken out of our hands. The Palace is demonstrably deteriorating before our eyes. We have parts variously closed off or covered by canopies because of falling masonry. We are lucky that no one has been killed or seriously injured and that there has been no major fire. The possibility of a catastrophic failure with an essential utility failing increases year by year. Whenever we move out, be it by design or necessity, we have to move as one entity—that is, Parliament.

Successive Governments have demonstrated limited knowledge of our constitution. They variously advance schemes for change which have been advocated on their individual merits and not within a clear intellectual approach to constitutional change. We need to stop what amount to constitutionally incoherent schemes, made without standing back and understanding where we are going. Ministers need a grasp of core constitutional principles, not least those governing the relationship between the Executive and Parliament. The Government are the creature of the constitution, not the other way round.

I conclude with some questions for my noble friend the Minister. First, a practical question: how much public money has been spent exploring the cost of locating the House of Lords in another city, and who authorised that expenditure? Secondly, what constitutional authorities were consulted by government prior to the Secretary of State’s letter of 13 May? Thirdly, was the Cabinet Office consulted by the levelling-up department before the Secretary of State wrote to the Lord Speaker? Fourthly, what study have the Government undertaken of practice in other nations with bicameral legislatures, and if they have undertaken such a study, what conclusions have they drawn? Finally, does my noble friend accept the constitutional principle that I have enunciated?

This debate is not about some secondary issue; it is about maintaining the health and integrity of our parliamentary system of Government. I beg to move.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I am extremely grateful to everyone who spoke in the debate. It has been an extremely powerful and extraordinarily important occasion. We have heard some excellent speeches, given added weight by the authority of those making them.

At a time when Parliament is getting a really bad press, we need to be looking at ways of strengthening the institution, not weakening it. I was particularly struck by the comments of the noble Lord, Lord Stoneham, reinforced by the noble Lord, Lord Butler, that we should be looking at ways in which we can further strengthen the connections between the two Houses. There is a lot we can do. We are stronger together. There are a lot of institutional ways in which we can do this. I am a great advocate of pre-legislative and post-legislative scrutiny. We can make great advances there with a combination of the two Chambers together.

As I say, we are stronger together. We are clearly weaker when we are separate; that has been a clear message in this debate. In that respect, I know that my noble friend Lord True will be a strong advocate in reporting that back to the Government. Throughout the debate, there has been a clear message. My noble friend has come as close as he can to saying, “I’m on your side”. I know that he will be faithful in reporting what has been a uniform voice in this House.

Part of the problem, however, is that he cannot report back to a member of the Cabinet with a distinct responsibility for constitutional issues. When I put down a Question asking

“which Cabinet minister has overall responsibility for constitutional issues”,

my noble friend replied:

“The Prime Minister has overall responsibility”.


The Prime Minister has a range of responsibilities that occupy his time and is not renowned for being a constitutional theorist. Ministers need a grasp of the principles that underpin our constitution, not least those that govern the relationship between Parliament and the Executive. My noble friend Lord True clearly has that grasp but he is the one Minister to have some responsibility for the constitution; there is nobody senior with that designated task, which is one of the limitations that we face. In speaking on behalf of the House, my noble friend may have an uphill struggle, but he will have the support of the whole House in getting that message over.

Motion agreed.

Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

2: Clause 3, page 1, line 17, leave out “or purported exercise”
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.

[Lord Norton of Louth (Con)]

My Lords, on the assumption that the Government invite the Commons to disagree with the amendment we have just passed, I move Amendment 2 and speak to my other two amendments in this group. I pursued these in Committee and believe their importance is such as to merit returning to them on Report.

As I argued in Committee, the provisions of Clause 3 that are covered by my amendments conflict with the Government’s aim to restore the constitutional position to that which existed prior to the enactment of the Fixed-term Parliaments Act. They are also objectionable in principle. It is this point I wish to pursue.

In Committee, the Minister, my noble friend Lord True, sought to justify both the use of “purported” and the inclusion of paragraph (c). He advanced a “thin edge of the wedge” argument: the clause is necessary because

“the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.”—[Official Report, 25/1/22; col. 233.]

The courts are viewed by the Government as having encroached in certain cases on the exercise of the prerogative where vested in Ministers. Because the courts have gone beyond what the Executive wished, they wish to prevent them straying further in respect of the Dissolution of Parliament. As my noble friend emphasised, the use of “purported” is to make it plain that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.

My contention is that the fear underpinning the provision is unfounded. The cases cited by my noble friend are not sufficient to show that the courts would ever go near the exercise of the prerogative where the Dissolution and calling of Parliament are concerned. As my noble friend reminded us in Committee, Lord Roskill said, in 1985 in the GCHQ case, that the Dissolution of Parliament was

“not susceptible to judicial review”.

Indeed, Lord Roskill identified what he referred to as “excluded categories”, comprising prerogative powers that by their “nature and subject matter” were

“such as not to be amenable to the judicial process.”

These included

“the dissolution of Parliament and the appointment of ministers”.

I regard the powers not exercised on advice as the ultimate excluded categories.

In Committee, I moved an amendment to put on the face of the Bill that the prerogative power to dissolve Parliament and call an election was a personal prerogative power of the monarch, not exercised on the advice of Ministers. There would therefore be no advice for the courts to consider. The prerogative powers not exercised on advice are such as to put them in a class of their own as there would be no purported exercise or purported decision. If the personal prerogative is revived, the use of “purported” has no relevance. This is not addressed in the letter from my noble friend Lord True to the noble Baroness, Lady Smith of Basildon.

If the argument is that the prerogative is now a statutory power and that is the route through which a challenge may be mounted, the problem with the use of “purported” is that it enables Ministers to go beyond their powers. Let us be clear as to the meaning of “purported”: it means that something has been stated to be true or to have happened, even though that may not be the case. My noble friend Lord True argued that the use of the word would not constitute a precedent—we have seen evidence already this week of its use in another measure—but I am not persuaded that it is desirable in principle to embody such a provision in statute. As he said, it may be a bespoke solution, but it is a bespoke solution in plain sight. It is constitutionally objectionable, as potentially it conflicts with the rule of law. That should concern us all. It should certainly concern everyone on this side of the House. It is a fundamental tenet of Conservative belief that institutions are subject to the rule of law, which regulates definitively the relations between citizens and applies equally to the governors and the governed. A stable social order is dependent on the maintenance of the rule of law.

Furthermore, there is nothing to suggest that the courts would ever wish to entertain interfering in the process given the repercussions that my noble friend Lord True outlined in Committee. Those scenarios would be as unpalatable to the courts as they are to your Lordships. As he recognised in Committee, there are political checks and balances at work, and, where there are, the courts stay clear. That was apparent in respect of the so-called Sewel convention, when the Supreme Court declared that

“policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary.”

The provisions before us are unprecedented. As the noble and learned Lord, Lord Hope of Craighead, said in Committee, the objection is to the use of “purported” and the words in paragraph (c). As he made clear, there is no objection to say that the court or tribunal may not question the powers referred to in Clause 2.

As I said in responding to the debate in Committee, when my noble friend Lord Faulks argued that the clause was necessary to keep the courts out of politics, I take the view that the clause, or rather the words that I seek to delete, are designed to keep the courts out of the law. Take out “purported” and paragraph (c) and the problem is solved. One is then keeping within, and indeed promoting, the rule of law.

The provisions of the clause cover a situation that is so unlikely to ever occur for the reasons I have given—indeed, if it is a personal prerogative power of the monarch, it cannot occur—that it does not justify conferring powers that are so objectionable. The remoteness of it ever occurring is such that it would be better to wait and deal with it at the time. The doctrine of parliamentary sovereignty is not in doubt. As the late Lord Bingham argued, it is immanent in our constitution. As one of the measures being repealed by this Bill—the Early Parliamentary General Election Act 2019—demonstrates, Parliament can move with some speed to achieve the outcome it wishes. That is beyond doubt. There are precedents for Parliament enacting within 24 hours a Bill to overturn a court judgment.

Parliament by the very doctrine of parliamentary sovereignty is entitled to enact the provisions of this clause. What it can do is not necessarily what it should do. Retaining the purported exercise of powers and any purported decision within the clause, along with paragraph (c), is either redundant or it clashes with a basic tenet of the constitution. If the latter, it is objectionable in principle and unnecessary in practice. I would hope that a Conservative Government would take the high road and accept these amendments.

[Lord Butler of Brockwell (CB)]

My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable.

My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is

“legislating against shadows, against figments of the imagination.”—[Official Report, 25/1/22; col. 227.]

I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary.

If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment.

We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission.

I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises.

This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation “against shadows”, but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.

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[Lord True (Con)]

Once the general election genie is out of the bottle, it should stay out of the bottle. The decision lies with the electorate. There is no question of a dodgy scenario. It is then down to the electorate. The ultimate political reprimand is available to them, as my party discovered in 2017. You can go backwards, as well as forward.

I cannot accept the amendments of by my noble friend Lord Norton of Louth for the reasons I explained at length in Committee. He argued that this clause conflicted with the rule of law. The Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, said that it was ultimately for Parliament to decide what the law on non-justiciability should be and for the courts to interpret what Parliament has said. The majority of the Joint Committee agreed that a non-justiciability clause was compatible with the rule of law in a case such as this, where the power is to enable the electorate to make a decision. As my noble friend Lord Faulks said in Committee, unless you reject the doctrine of parliamentary sovereignty, there is nothing constitutionally objectionable to the clause.

The Government see a strong argument for its principled and pragmatic case that the courts do not have a role to play in the issue of dissolution. That our sovereign Parliament should be able to make provision for this is entirely consistent with the rule of law. For the reasons I gave at length in Committee—and will not repeat here—we believe that the entire wording of Clause 3 is necessary to secure against the risk of an intervention by the courts.

On precedent, I am happy to repeat the reassurance I gave in Committee that we do not see this as setting a wider precedent. Speaking at this Dispatch Box, I repeat that this clause is very specific and has been drafted with a particular purpose in mind, namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. It is a bespoke exclusion to address this precise task. I stress again that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more.

In conclusion, I say to the noble Lord, Lord Butler of Brockwell, whom I consider my noble friend, that he cannot have his cake and eat it. He tells us that there is no chance that the courts would intervene, but then puts before us an amendment that would enable them to do so. I am not sure which is his argument. My noble friend Lord Norton of Louth made the same argument: that it is unlikely that the courts would intervene. In that case, why are we having this argument, with this point put forward?

The noble Lord, Lord Pannick, told us explicitly that such a challenge might come. So the purported, or in fact actual, intention of this amendment, were it to be passed, would be to procure the circumstances that the noble Lord, Lord Pannick, envisaged: namely, that the courts might one day intervene on a Dissolution. That is what I assume the noble Lord, Lord Butler, is wanting: that the courts should have that opportunity—although at the start he said he did not really envisage or like the idea.

I agree very much with the speech of the noble Lord, Lord Trevethin and Oaksey: it is vital that we maintain this clause. Deleting or altering it, as proposed by my noble friend Lord Norton of Louth, would be, in my submission, like building a fence around a field only to leave the gate open—or having an umbrella with holes in it. It would not be completely effective in the light of past judgments by the courts. Desiring to avoid the involvement of the courts and to secure absolute certainty on this point, and on the basis that this does not provide a precedent for the future, I sincerely hope that noble Lords will withdraw or not move their amendments and join with the other place in supporting this clause.

[Lord Norton of Louth (Con)]

My Lords, I am grateful to all those who have spoken. This has been a very valuable debate which indeed shows the value of the House of Lords. I am especially grateful to the noble and learned Lord, Lord Hope of Craighead, as well as the noble Lords, Lord Beith and Lord Pannick, and the noble and right reverend Lord, Lord Sentamu, for their comments.

My noble friend Lord True will not be surprised to hear that he has not persuaded me. For the reasons I have given, I regard the amendment as necessary to remove the words that are either redundant or constitutionally objectionable. This is not about keeping the courts out but about the use of certain constitutionally objectionable words within the clause. My noble friend did not address adequately—indeed, did not address at all—the point that, if we are dealing with a personal prerogative power of the monarch, there is no advice to challenge. I notice that the noble Lord, Lord Faulks, and my noble friend Lady Noakes did not pick up on the distinction between the prerogative powers that are exercised on advice and those that are exercised not on advice. That is the fundamental distinction that has not been recognised or addressed.

I normally agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but on this occasion I think he is totally wrong. He argued that he was seeking to protect future members of the Supreme Court. I regard it the other way round and consider that we would be protecting future members by removing the provisions in this clause because, although my noble friend Lord True said that this was not intended to set a precedent, the point is that it will be on the statute book. It will be available to parliamentary draftsmen in the future when other measures come along and they will think, “Oh, let’s keep the courts out. There’s a remote chance they might get involved”. Therefore, there are dangers in this.

Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

1: Clause 2, page 1, line 6, after “Her Majesty’s” insert “personal”

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[Lord Norton of Louth (Con)]

My Lords, the Government have a manifesto commitment to get rid of the Fixed-term Parliaments Act. The Opposition also have a manifesto commitment to repeal it. This Bill repeals the Act and seeks, as we have just heard, to restore the status quo ante. Like my later amendments, Amendment 1 is designed to ensure that the Bill does precisely that.

Amendment 1 makes it explicit that the prerogative power to dissolve Parliament and call a new Parliament falls within the personal prerogative of the sovereign. Since the 17th century, the powers that remain with the Crown and have not been displaced by statute have come to be exercised in the name of the Crown or by the monarch, acting on the advice of Ministers. There are three personal, or reserve, prerogative powers remaining—that is, where the monarch does not act on advice—although two are governed by conventions of the constitution. Until the enactment of the Fixed-term Parliaments Act, the power to dissolve Parliament was a prerogative power that was not exercised on advice. A Prime Minister requested Dissolution but the monarch was not bound to accede to the request. Although the practice was to grant the request, there were circumstances in which it could be envisaged that the monarch could refuse it.

As is well known, there was some uncertainty as to what those circumstances may be. In 1950, the King’s private secretary, Alan Lascelles, wrote anonymously to the Times identifying circumstances in which a request for a Dissolution may be refused. Prime Ministers were not able to take it as given that a request would be granted. My understanding is that, in 1993, No. 10 contacted the palace to check that, in the event of the Government being defeated on the Motion on the social protocol of the Maastricht treaty, which the Prime Minister had made a vote of confidence, a request for Dissolution would be granted. As the Joint Committee on the Fixed-term Parliaments Act reported:

“As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.”


There is an argument that the power to dissolve Parliament should not be within the sovereign’s gift. There is an argument that it should be. I believe it important that a Prime Minister does not have the capacity in all circumstances to determine the date of a general election. This, however, is not the occasion for that argument. If the Bill is to restore the status quo ante, it is not a question of whether the power should reside with the sovereign but, rather, a case of ensuring that the Bill puts it beyond doubt that it does so.

This amendment would, therefore, put on the face of the Bill that the prerogative to dissolve Parliament and call a new Parliament is a personal prerogative. The motivation for it stems from the Government’s initial list of Dissolution principles, referring to the sovereign acting on advice. As the Joint Committee recommended:

“If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to ‘advice’ on dissolution with ‘requests’ for dissolution since the Monarch must accept Prime Ministerial advice.”


The Government took this on board; the Explanatory Notes to this Bill refer to the sovereign granting Dissolution

“on the request of the Prime Minister.”

However, it is worth quoting what the Government said in their response to the Joint Committee’s report:

“In repealing the FTPA, we are returning to a position whereby the power to dissolve Parliament is exercised solely by the Sovereign as a ‘personal prerogative power’. We are grateful to the Committee for its scrutiny of how this is described in the dissolution principles paper, and agree that the better description is that the Prime Minister ‘requests’ a dissolution.”


The wording rings an alarm bell. “Requests” is not a “better description”. It is a correct statement of the constitutional position that pertained prior to the enactment of the Fixed-term Parliaments Act in September 2011. To say that “requests” is a “better description” than “advice” is to convey that it is simply a choice of words to convey the same thing. If the Government accept that the power to dissolve is a “personal prerogative power”, it is not a power exercised on advice. The wording of the Government’s response does not instil confidence in the grasp of Ministers and officials of the principles governing our constitutional arrangements.

Given that, I believe that there is a case for putting it beyond doubt that it is a personal prerogative power. At the very least, this debate provides an opportunity for the Minister to put it on the record at the Dispatch Box that it is a personal prerogative power. However, I see no reason why it should not be in the Bill. The Government are committed to restoring the position as it stood prior to the Fixed-term Parliaments Act taking effect. The amendment does not challenge that; rather, it would ensure that it is achieved. I beg to move.

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

My Lords, I thank all those who contributed to what has been an important and interesting debate. I am grateful to my noble friend Lord Norton of Louth for bringing it forward, and I also welcomed the opportunity to talk to him about it. What I am going to say on the record is, I hope, a response to that discussion and to matters raised in this debate. I was struck by the fact that the noble Lord, Lord Beith, in an elegant and thoughtful contribution, envisaged circumstances where the reserve power could apply. The noble Lord, Lord Grocott, said that it was inconceivable. The reality is, as we will discuss later, that the Government’s belief, and the traditional practice, is that the reserve power has an important constitutional role.

The noble Lord, Lord Grocott, had a little go at another Second Reading speech at the start. I agree, of course, with what he said and with what my noble friend Lord Lexden said. I also agree with what the noble Baroness, Lady Smith, said last time around. It is absolutely true that the 2011 Act was, in her words, clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. I freely acknowledge the wisdom and accuracy of those words.

There is general support for the Bill, and I welcome that. I cannot encourage the noble Baroness opposite to think that all the amendments are clarifying. I think some of the discussions we have had would involve driving a coach and horses through the Government’s intentions on the Bill, as I hope to persuade the House later.

Turning to the amendment of my noble friend Lord Norton, I repeat that I am grateful to him for tabling it. Clause 2 was carefully drafted to put beyond doubt that the prerogative powers relating to the dissolution and calling of Parliament will be revived. As my noble friend Lord Norton outlined, these are prerogative powers that are personal or reserve prerogative powers, meaning that they belong to the person of the sovereign, acting in the sovereign’s individual capacity. The noble Lord has also sought to place on record and beyond doubt that the dissolution prerogative power is not exercised on the advice of the Prime Minister but is instead a request made to the sovereign. I can assure him that that is the Government’s position.

Turning specifically to Dissolution, the Government have recognised in response to the Joint Committee, for whose work we are extremely grateful, that this personal prerogative is exercised by the sovereign on the request of the Prime Minister, not on their advice. I am pleased to reassure your Lordships that the Government fully accept this accurate characterisation and are grateful for the Joint Committee’s considered conclusions on that point and the submissions made in the debate.

I hope that very clear statement on the record will gratify and ease the concerns of my noble friend Lord Norton and others. I therefore thank him again for tabling the amendment as it has given the Government an opportunity to clarify this point in Parliament, and given this Committee the opportunity to debate this aspect of the constitution. I hope my statement has provided sufficient clarity on the nature of the Dissolution prerogative so that my noble friend may feel able to withdraw his amendment.

[Lord Norton of Louth (Con)]

My Lords, I am extremely grateful to everyone who has spoken. It has given rise to a very valuable debate with some very helpful interventions. I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.

Today, however, is the occasion for that debate about the prerogative being revived. I accept that the Bill achieves what it is designed to do: to provide that the prerogative comes back and to put it beyond doubt because of that academic debate about whether it could or could not. This establishes that it does. That has to be our starting point because, as the noble Baroness, Lady Smith, said, it is designed to restore the status quo ante. Therefore, the purpose of my amendment is to achieve clarity of that purpose and that it is a personal prerogative, the distinction I drew —in response to the noble Viscount, Lord Stansgate—in opening. It is one of only three prerogative powers that the monarch does not exercise on advice.

I deliberately quoted the report of the Joint Committee, which the noble Lord, Lord Beith, referred to, in relation to the point that the noble Lord, Lord Grocott, raised: the practice is that the monarch has acceded to requests for Dissolution. I was also trying to touch on the fact that No. 10 has contacted the palace in advance to make sure that it will be granted. I always think that is a useful deterrent; it makes the Prime Minister think about it. There is now the convention that Ministers do not act in a way that would embarrass the Crown, so there is some restraint there. There is a useful purpose in its existing in the same way that, formally, the monarch does not appoint the Prime Minister. That, again, is one of the powers not exercised on advice. There are certain elements there that remind Ministers that there is a higher authority to which they are responsible. There is a purpose in it and a useful role, but that is a wider debate. My starting point is that the purpose of the Bill is to restore the status quo ante and my amendment is focused on that. It is working within the purpose of the Bill and what it is designed to achieve.

As I said in opening, I was keen to get the Minister to put on record at the Dispatch Box that it is a personal prerogative power. Therefore, that is a necessary condition. I will need to reflect on whether it is a sufficient one, but for the moment I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Norton of Louth]

4: Clause 3, page 1, line 17, leave out “or purported exercise”
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.

[Lord Norton of Louth]

My Lords, I shall also speak to my other two amendments in this group. The amendments would ensure that the ouster provisions in the clause did not apply to the purported exercise of the powers to dissolve Parliament contained in Clause 2. There are two principal arguments that I wish to develop in support of the amendments. The first is that they are necessary to give effect to the Government’s intention that the Bill restore the status quo ante. The second is that including the “purported” exercise of powers within the clause is objectionable in principle.

The purpose of the Bill is to restore the position to what it was before the 2011 Act was enacted. As paragraph 23 of the Explanatory Notes concedes, the purpose of Clause 3(c) is

“to address the distinction drawn by the Supreme Court … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”

As the Law Society of Scotland pointed out in its helpful briefing note, that takes us further than the pre-2011 status quo ante. It considers that extending the clause to the purported exercise of the Clause 2 powers, or a purported decision in relation to those powers, may go beyond the bounds of the previous law as expressed in the 1985 case of Council of Civil Service Unions v Minister for the Civil Service. As the note goes on to say:

“We take the view that the inclusion of ‘purported’ appears to be designed to address the decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others … where the absence of the word ‘purported” was treated as significant by some of the judges.”


Either the Bill restores the status quo ante or it does not. If the Government are to be consistent and achieve the situation as it existed prior to September 2011, the references to the “purported exercise” and “purported decision” of powers under Clause 2 need to be removed from the Bill.

The second and fundamental objection is one of principle. The use of “purported” means that the exercise might be beyond the power vested in Ministers. I am not in favour of Ministers having the capacity without it being open to challenge in the courts. The Minister in the Commons, Chloe Smith, said that the clause provided

“an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts.”

She went on to say that

“the check on the exercise of power is for the electorate to decide on rather than the courts.”—[Official Report, Commons, 13/9/21; col. 723.]

“Purported” decisions might conflict with the rule of law. The Minister in the other place was effectively saying that it was not for the courts to determine whether Ministers were acting beyond their powers. I do not think that the letter from my noble friend Lord True really engaged with that point.

It is important to stress that the clause should not be viewed as an attempt to restrict the courts from encroaching on the position of Parliament. That might be how Ministers wish to convey it, but the senior courts have been exercised by the use of powers by Ministers, not by Parliament. Indeed, the most recent high-profile cases that appear to have motivated the Government to use this wording were ones in which the courts sought to protect, not undermine, the position of Parliament in relation to the Executive. In this clause, the Government seek to confer on Ministers wide-ranging powers in a way that I consider dangerous.

The wording of the clause might also be counterproductive. There is no evidence that the courts would want to encroach on the exercise of the prerogative in dissolving Parliament and calling an election.

With these amendments, we are also discussing whether Clause 3 should stand part of the Bill. My contention is that if there is an ouster clause, it needs to be true to the purpose of the Bill, which is to restore the position to what it was before 2011, and that it should omit provisions—in this case reference to “purported exercise” and “purported decision”—that are constitutionally objectionable. If the Government persist in wishing to retain such wording, that serves to reinforce the case for removing the clause. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.

Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.

We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.

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[Lord True (Con)]

I will come to that particular piece of legislation—definitely—since it has been raised. To complete what I was saying, the prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing its future and power into the hands of the people. We therefore believe that Clause 3 is appropriate and necessary, as judgment on the Government’s actions in such matters should be left solely to the electorate at the polling booth. I stress that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. The Judicial Review and Courts Bill, by way of contrast, contains an ouster clause to prevent the judicial review of decisions of the Upper Tribunal to refuse permission to appeal decisions of the First-Tier Tribunal.

I turn to the potential consequences of the amendments proposed. Deleting the wording or the clause would undoubtedly make the dissolution prerogative more susceptible to potential litigation. In effect, the decisions in Anisminic, Privacy International and Miller II potentially offer a route for a court, or more precisely a mischievous litigator, to derail an election process by taking the Government to court for calling an election for political imperatives with which they may disagree. The suggestion by noble Lords to delete “purported decisions” is equally disagreeable, for it would arguably provide litigators with a route to try to delay an election through a court case that could examine why an election has been called on one date rather than another. This, I think, we can all agree would be entirely undesirable.

The clause prevents political litigation about the timing of elections; litigation that I am sure your Lordships dread as much as I do and—I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood—I am sure much of the judiciary would dread. Let me emphasise what it is that we are trying to protect: it is nothing less than the legal certainty of our elections, which underpins our democracy. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn, as the noble Lord, Lord Faulks, said, into making decisions and weighing political imperatives that they are not equipped to do.

If there is an intervention, is the election timetable then suspended? Are the people to be informed that a court might deny them the right to have their democratic say? If the court process moves slowly, could the situation arise where a court then dismisses or questions an election result? Asking the courts to review a Dissolution decision is to ask them to weigh the political merits and imperatives of the decision; it is inherent in the nature of the question. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn into making decisions and weighing political imperatives.

More practically, we must consider the risk that we might send a signal to mischievous and politically motivated litigators that they can disrupt the process with vexatious and frivolous claims against Dissolution. Even the threat of such a court case would be disruptive to the process, drag our judges into the political fray and cause huge expense and delay and a frustration of the democratic process. There is no surer way of risking the reputation of the judicial system among many sections of the British people, no surer way for the courts to be seen as a political institution, and no surer way to drag the sovereign into politics. These are not scenarios for which your Lordships can possibly wish. It is wise to take all the necessary steps to be absolutely certain, without a shadow of doubt, to ensure that these scenarios do not occur.

Finally, let me directly confront the case put by the noble Lord, Lord Butler of Brockwell, that, by removing a judicial oversight, this clause allows a licence for the Executive—far from it. The exercise of the prerogative power is a question for the political, not the judicial, sphere, and the remedies and constraints are in that political sphere.

Our constitution has for centuries proved well able to avoid extremities and has provided for accountable checks on the Executive, and these checks are both pre and post hoc. In terms of pre-hoc checks, a Prime Minister requests a Dissolution of the sovereign which, in exceptional circumstances, can be refused. In parallel, the core constitutional principle that the sovereign must not be drawn into party politics acts as an important deterrent to improper requests being made. That is an immense latent force in our constitutional arrangements. Furthermore, the Government, in response to the Joint Committee, amended the Bill prior to its introduction to Parliament so that the statutory election period will be triggered automatically by the Dissolution of Parliament. This will ensure that the theoretical possibility of a Dissolution without an ensuing election period is eliminated.

There are also post-hoc checks and incentives on the Executive that have worked for many years, effectively compelling Parliament to be called as soon as feasible after an election. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling or meeting of a new Parliament is not in the interest of any Government seeking to make progress on the mandate it has received at a general election. Most importantly, the Dissolution and calling of Parliament are powers that pave the way to a general election and a new Parliament. Again, as the noble and learned Lord, Lord Brown, reminded us, the actions of the Prime Minister and the Government are subject to the judgment of the electorate and, in due course, to that of a new Parliament.

If a Prime Minister acts—as we alleged one might—nefariously, even if a Prime Minister acts contrary to prior expectations and past practice, that will be judged by the electorate. It is also available to that new Parliament to undertake the nuclear option of passing a Motion of no confidence on the new Government, almost immediately, if it wishes, on an amendment to the Queen’s Speech. These practical constraints on the Executive have served us well for many generations. As we see, the checks on Dissolution are practical and political; they should not be legal.

I apologise for speaking at such length, but I hope noble Lords will understand the importance of putting these points on the record for your Lordships to consider between now and Report. If any other points have been raised in the debate, I will, of course, write. I sincerely hope that noble Lords will reconsider their amendments and urge them to join the view of the other place to not permit the entry of the courts and support this clause

[Lord Norton of Louth (Con)]

My Lords, I very much agree with the noble Lord, Lord Beith, that it has been a very good debate in light of the quality of the contributions that we have heard. I think it demonstrates the value of this House in being able to hear and rehearse these arguments.

I noticed yesterday when the noble Baroness, Lady Fookes, was presiding over our proceedings and the Minister was at the Dispatch Box that the Minister resigned. When I saw that the noble Baroness, Lady Fookes, was in the Chair this evening and the Minister was at the Dispatch Box I wondered for a moment whether something might happen.

My noble friend Lord True will not be surprised to hear that I do not agree with the argument that he has advanced. I retain my points in opening that this clause, particularly the use of the word purported, does not restore the status quo ante and is objectionable on principle. I have previously quoted the late Lord Simon of Glaisdale, who once opposed an amendment being brought forward for the avoidance of doubt on the grounds that there was no doubt to be avoided. I think we may be in a similar situation here. It is quite clear that the courts would not get involved in this, despite what has been claimed about the direction of case law recently. I do not think the issue really arises, in part for the reasons given by my noble friend Lord True. The problems he adumbrated a few moments ago would be reasons why the courts would stay completely clear of entertaining any case relating to this.

My objection is really on the grounds of principle. I do not think it appropriate to try to limit the power of the courts because one disagrees with particular decisions of theirs. It is objectionable on principle. The argument has been advanced that it sets a precedent; my noble friend Lord True said, “No, this does not set a precedent; it is a bespoke solution.” The problem, I fear, is that on future occasions, Governments will find a bespoke solution based on what is included in this Bill.

I maintain my position. I hear what the noble Lord, Lord Faulks, said about the purpose being to keep the courts out of politics, but my fear is that putting “purported” in is designed to keep the courts out of the law. So I am not persuaded by what my noble friend Lord True said. I am sure that we will come back to this on Report but, for the moment, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Lord Norton of Louth (Con)]

My Lords, I very much agree with the noble Lord about the need for a revision of the Cabinet Manual. It is long overdue. I see the point of his amendment is to try to spur that, so I put on record the importance of bringing it up to date and incorporating quite a lot of material that needs putting in.

I am a bit wary of the noble Lord’s amendments, particularly Amendment 10, because he is trying to get Parliament to approve something which is really in the gift of government. The Dissolution Principles are those which would govern the Prime Minister in requesting a Dissolution, and that really is a matter for government and the principles that will govern that. It might be laid before Parliament, but there really should not be a requirement for it to be approved by a resolution of the House of Commons.

There should be an update of the Cabinet Manual, but it is important to remember that the Cabinet Manual is not something that needs to be endorsed by Parliament. It is distinct from Parliament and draws together the provisions, as we understand them, and the conventions, but it is a manual for government to which we can have recourse. Yes, there should be dialogue with committees and consultations so that we can feed into that, but at the end of the day it is within the remit of the government. It is a government document, not one to be endorsed by Parliament.

[Viscount Stansgate (Lab)]

My Lords, I agree with the noble Lord, Lord Norton, that it does not have to be agreed by Parliament, but the Cabinet Manual is a really interesting document. I remember when it came out; other noble Lords might remember it as well. I believe it was triggered and inspired by the then Government and the then Cabinet Secretary, who is a Member of this House. It is a pity that he is not here because he could play a big part in the short debate that we are having on this question.

For those who have never seen it, it was a fascinating document because it encapsulated the conventions that had existed for many years but had never been codified in any way. It was very useful. I feel very sorry, incidentally, that, for a debate such as this, the noble Lord, Lord Hennessy of Nympsfield, is not here to take part. Our debates would be hugely enriched by having him here; of course, he coined one of the phrases of recent times, the “good chaps theory of government”. Many of the things that we have been discussing have illustrated ways in which people feel that we are departing from that theory and we are discovering that our constitution is capable of being abused. I do not want to go back over history, but we would not have had the discussion that we had about Clause 3 and references to the Miller case without that being an obvious example, and there are others.

Of course, this will not be pressed to a Division tonight, but a great deal more attention should be paid to the Cabinet Manual. I am rather unclear as to how it could be revised and who would be involved in doing it. A noble Lord said earlier that we were talking about where power lies in our constitution. When I visited a school recently, I recommended that the students read the Cabinet Manual, or at least have it to hand, because if they wanted to understand our constitution, that was an essential part of it. The sixth-formers looked at me rather blankly and I do not blame them in the slightest. That does not mean to say that I was wrong, because it still is very important. I am not sure how it could be updated, but it would be a very good thing. It is rather like when Gandhi was asked what he thought of civilisation in Britain and he replied, “Well, I think it would be a very good thing.”

Nevertheless, I support the spirit of the amendment and I would be interested to know whether we are going to come back to this on Report. If so, I hope to play a modest part in the debate at that stage.

Legislation: Skeleton Bills and Delegated Powers

Lord Norton of Louth Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too congratulate the noble Baroness, Lady Cavendish, on initiating this debate. I too commend and endorse the powerful reports of the Delegated Powers and Regulatory Reform and the Secondary Legislation Scrutiny Committees.

Governments are under pressure to produce results. The “something must be done, and done quickly” mentality affects Governments of all persuasions. The tendency is to resort to legislation—to passing a Bill. Whether legislation is actually needed is another matter. One indication that it is not is the volume of statute law that has never been brought into effect. One study found over 480 Acts of Parliament passed between 1960 and 2020 with at least one section or schedule not yet commenced. Governments are tempted to give themselves wide powers to cover all sorts of potential problems. Skeleton Bills represent part—but only part—of a wider, growing problem in the Government’s approach to legislation. We need to come up with a solution that addresses the problem holistically.

I wish to commend a proposal that has been raised before, including in this House by the Leader’s Group on Working Practices, in its report of 2011, and in the Commons by the Political and Constitutional Reform Committee, in its 2013 report, Ensuring Standards in the Quality of Legislation. Each endorsed the proposal for a legislative standards committee to examine each Bill against a set of objectives embodied in a code of legislative standards. It would be able to identify and report on skeleton Bills prior to their consideration in either House and it would not be constrained in the way our committees dealing purely with secondary legislation are constrained. As the Hansard Society told the Political and Constitutional Reform Committee:

“Parliament should at least be a partner in the process of setting the standards of what constitutes a well prepared piece of legislation, rather than permitting the executive to determine this from bill to bill. If Parliament is serious about checking the growth of the statute book and improving the quality of law-making, then it must be both more imaginative and muscular in asserting its role and function vis-à-vis the executive.”


The Secondary Legislation Scrutiny Committee recommends that both Houses and government agree procedures for determining what our skeleton Bills—and what the consequences of such determination—should be. If government and the other place are not too keen, I think we should be prepared to go it alone with our own legislative standards committee. That would play to our strengths.

Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, as we have heard, the Bill is designed to repeal the Fixed-term Parliaments Act and put the constitutional position back to what it was before September 2011. The Fixed- term Parliaments Act was, as we have heard, designed as a short-term political fix but with significant constitutional consequences. As the Constitution Committee observed, the policy behind the Bill shows little sign of being developed with constitutional principles in mind. Instead of a “fixed-term parliament Act”, we ended up with a semi-Fixed-term Parliaments Act.

The Act has provisions which are constitutionally problematic and not well understood. Section 2(1)(b) of the 2011 Act confers, in effect, a veto power on the Opposition over the calling of an early election, as demonstrated in 2019, whereas Section 2(3)(b) potentially gives the Government a let-out provision in the event of losing a vote of confidence—something not possible under the convention on confidence that existed before 2011. Confusion as to its provisions has itself been part of the problem.

I turn to the provisions of the Bill before us. Let me begin by addressing what I shall term the silence of the Bill—that is, what it omits—before turning to the need for the omission to be extended. It is a short Bill, but it should be even shorter.

A Government rests for their continuance in office on the confidence of the House of Commons. That is not peculiar to the United Kingdom; it is a feature of parliamentary systems of government. The silence of this Bill on confidence motions enables the convention that prevailed before 2011 to be restored fully. The convention was not displaced by the 2011 Act, but parts of it disappeared.

Prior to 2011, the convention was that, if the Government lost the confidence of the House, they either resigned or requested the Dissolution of Parliament. A lack of confidence could be expressed by the House passing a vote of no confidence, by defeating a vote of confidence sought by the Government, or by defeating a Motion to which the Government had attached confidence. The 2011 Act cut off the capacity for the Prime Minister to request Dissolution in the event of defeat on the last two. The Prime Minister can still designate a Motion as one of confidence and, if defeated, tender the Government’s resignation, but cannot unilaterally trigger Dissolution.

The Joint Committee on the Fixed-term Parliaments Act recommended that the principles and conventions it set out should be adopted as the basis

“for creating a new shared understanding of conventions and practices.”

The understanding would certainly be new, as the report stated that a lack of confidence could be expressed by

“Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and Estimates process”.


The problem with this is that defeats in the course of the supply and estimates process occurred in the 20th century without the Government treating them as confidence issues. The Joint Committee’s interpretation would thus not only enshrine the concept of implicit votes of confidence but expand what fell within it.

It is a relief that the Bill does not seek to follow the Scotland Act 2016 in seeking to put a convention in statute. The 2016 Act included what purported to be a convention, the Sewel convention, thus creating a contradiction in terms—a nonsense recognised by the Supreme Court. The confidence convention is a convention. It has some fuzzy contours, but its defining principle is clear. The House of Commons can remove the Government by withdrawing its confidence. If the Government fail to recognise a vote as entailing confidence, it is open to the leader of the Opposition to move an explicitly worded vote of no confidence.

Should the silence of the Bill be extended? Given that the intention is to put the situation back to what it was prior to September 2011, do we need to include provisions governing the prerogative and the exclusion of the courts from any decision to seek Dissolution? I can see the argument for the first, but not the second. As Professor Mark Elliott has noted, nothing in the 2011 Act demonstrates that it sought to abolish the prerogative of Dissolution. The prerogative may be deemed to be in abeyance and, with the provisions of the Act removed, it comes back into play. Clause 2 seeks to remove doubt as to its existence but, by the very act of doing so, creates the question of whether it is now not a prerogative power but a statutory one.

In practice, the result either way is that the power of Dissolution rests with the Crown and is a personal prerogative. The sovereign retains the power to refuse a request for Dissolution. The Joint Committee felt that the Government should consider how best to articulate the role of the monarch in the process of granting or refusing a request for Dissolution. That, I contend, is more appropriately undertaken by bodies other than the Government. The Lascelles principles came from the source most appropriate for articulating them.

The Joint Committee also heard evidence that the Lascelles principles or related constitutional conventions should be referenced in statute. In my view, that would fall foul of my earlier observations. They would cease to be conventions and would be subject to judicial interpretation unless, as with the Sewel convention in the Scotland Act, the courts deemed them non-justiciable. The relevant convention here is that Ministers act in such a way as to not bring the sovereign within the realms of partisan controversy.

As we have already heard, Clause 3 is the most contentious provision and conflicts with the Government’s goal of restoring the position before 2011. The ouster clause is designed to ensure that Clause 2 does not fall within the scope of judicial review. This is constitutionally objectionable, especially in Clause 3(c) in respect of limits and extent, for the reason just given by the noble and learned Lord, Lord Hope of Craighead.

I recall the late Lord Simon of Glaisdale arguing against a provision designed for the removal of doubt on the grounds that there was no doubt to be removed. There are shades of that in this provision. In what circumstances does my noble friend Lord True envisage that the court could conceivably intervene in the granting of a request for the electorate to exercise their power to choose a new House of Commons?

These are all matters for Committee. The Bill is a manifesto commitment and the principle has been approved by the other place. Our task is one of detailed and critical scrutiny.

Hereditary Peers: By-elections

Lord Norton of Louth Excerpts

Wednesday 10th November 2021 Lords Chamber

[Lord True (Con)]

My Lords, I believe that I have answered the last question from the noble Baroness. People get here in many ways, the majority by patronage through nomination by one individual who happens to be the Prime Minister of the time. I respect everyone in this Chamber, however they got here. Indeed, some get here by being right reverend Prelates. We should concentrate on doing our work well and publicising our discontents a little less.

[Lord Norton of Louth (Con)]

Does my noble friend agree that closing off the by-election option for hereditary Peers and putting the House of Lords Appointments Commission on a statutory basis should not be seen as mutually exclusive options and that, implemented together, they could be taken to constitute stage two of House of Lords reform?

[Lord True (Con)]

My Lords, I regret that I do not agree with my noble friend. He will know that the position of the Government is that we do not favour piecemeal reform and that overall reform needs careful consideration.

Government: Leadership Training

Lord Norton of Louth Excerpts

Thursday 16th September 2021 Lords Chamber

Moved by

[Lord Norton of Louth]

To move that this House takes note of the case for enhancing the quality of government through the introduction of training in core leadership skills for (1) ministers, and (2) senior civil servants.

[Lord Norton of Louth (Con)]

My Lords, when I joined your Lordships’ House 23 years ago, I was in the middle of research funded by the ESRC into the role of senior Ministers and their relationships with senior civil servants. Many of the problems I identified then remain today. Over the past 20 years, there has been a growing recognition of the importance of training those who lead government, but the capacity to deliver that training has not kept pace with the aspirations.

My proposition is that those who head departments should have some training in how to lead. Leadership entails not just being able to manage an organisation in terms of ensuring that it runs efficiently but, crucially, creating a vision, getting others to buy into that vision—making them feel they have a stake in it and have contributed to it—and being able to turn that vision into action. Let me flesh out the two primary components of this proposition; the first covers who should be trained and the second what the training should—indeed, must—include.

We have a system of government where, historically, senior civil servants and Ministers have been generalists, lacking specialist knowledge and training in management. Although the importance of training civil servants has been variously recognised and led by bodies such as the Civil Service College, the National School of Government and Civil Service Learning, less attention has been accorded to the value of training Ministers, even though it is Ministers to whom we look for leadership and generating the vision—the goals—that civil servants are then expected to deliver.

Ministers matter. The doctrine of individual ministerial responsibility is important not so much for ascribing culpability when things go wrong but for ensuring that senior Ministers have line control of departments. Despite recurrent claims of prime ministerial or presidential government, the resources of No. 10 are limited and Prime Ministers are rarely interested in the whole gamut of public policy. They may determine high policy, but middle-level policy remains with senior Ministers. I have argued that the baronial model of government is as applicable in British government as that of prime ministerial government.

Some Ministers have their own fiefdoms. Legal powers are vested in senior Ministers—formally the Secretary of State—and not the Prime Minister or Cabinet. Ministers matter not only for what they may decide to do, but for what they decide not to do. They are important gatekeepers. As Heclo and Wildavsky noted many years ago in their seminal study, Cabinet Ministers are

“chief executives of their own departmental empires”.

Ministers matter, not just in terms of the powers vested in them but in how they seek to use them. I generated a typology of Ministers, comprising commanders, ideologues, managers, team players and agents. I distinguished purpose in office from the skills necessary to achieve it. Ministers may have a vision, but they may not have the ability to turn it into action. Some may be skilful politicians, but they may lack any clear vision.

New Ministers will typically come into office with no training or experience in running a department and often with no experience in leading others. They learn by observation as junior Ministers or by seeking to translate experience from a previous occupation, which may not always be apposite. At the time of my research, it was very apparent that Ministers got very little, if any, guidance from No. 10 as to what was expected of them. Providing guidance is clearly important, but Ministers need leadership skills to deliver their policies. The recent report of Policy Exchange’s Reform of Government Commission, entitled Government Reimagined, recognised that Ministers must develop skills to lead a department successfully.

I am delighted that the National Leadership Centre has been created and is designed, as the name demonstrates, to offer a leadership programme. I note that the evaluation report on the first year of the NLC states that

“one leader considered the engagement in training to improve their leadership capability and capacity as being a duty of all public service senior leaders”.

However, it does not reach all such leaders. It is designed for only 100 of them. The programme is selective and, as the evaluation noted, the recruitment process lacks transparency. It should encompass all senior civil servants—and Ministers.

I therefore very much welcome the Cabinet Office and Civil Service Declaration on Government Reform, published in June, which recognises the need for training Ministers as well as civil servants. It recognises that the training should encompass skills. There is a commitment not only to online provision but to a physical campus—in other words, a reversion to what existed before training was moved online for cost reasons.

Commitment to training Ministers is a major step forward, but within the declaration the focus is very much on the Civil Service. Of the 30 concrete steps promised for implementation this year, only one refers explicitly to Ministers, namely number 9:

“Put in place a training programme for Ministers, including project and commercial skills.”


Training in skills should not be confined to project and commercial skills, but should encompass how to develop strategy, crisis management and understanding the environment in which one has to work to achieve goals. Ministers who are commanders and ideologues will have clear future goals, but knowing what you want to achieve is different from knowing how to get there. Engaging in strategic planning is crucial; so too is crisis management. Training in crisis management is best practice in leading companies and, I was very pleased to see, appears to be included in the NLC leadership programme. Key to handling a crisis is, first, being able to recognise that there is a crisis—which is not as simple as it may sound—and, secondly, knowing how to respond.

In terms of the political environment, it is crucial not to be insular. Both Ministers and civil servants need to appreciate the significance of Parliament. Senior civil servants should not see it as an irrelevance or an adversary, or something to be left to the Minister to handle. I achieved an amendment to the Constitutional Reform and Governance Bill in 2010, which became Section 3(6) of the Act. It requires the Minister for the Civil Service to have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and the conventions governing the relationship between Parliament and Her Majesty’s Government. Although this forms part of the Civil Service Code, no record is kept centrally of what departments have done to give effect to it, and answers to questions I have asked on the subject have been notably unforthcoming.

It is not just civil servants who need to be trained in the significance of Parliament. Ministers will benefit from it as well. The fact that a Minister is an MP or Peer does not mean necessarily that they have a clear understanding of the body of which they are a Member. Some Ministers are notably dismissive or defensive in the Chamber and in Committee. Ministers in the Commons frequently lack an understanding of the role and significance of this House. I fear we even have on occasion a Minister in this House who does not fully understand or appreciate its role. Parliamentarians are among those whom Ministers need to buy into their vision.

Acquiring or honing leadership skills will enable Ministers to deliver on their policy goals. It is not a case of creating identikit Ministers. There is more a danger of that in imposing specific processes and potentially producing a tick-box approach than in empowering Ministers with the skills to lead and achieve the outcomes they seek.

I can find nothing in the declaration and the list of actions that addresses skills necessary for effective leadership. There are some very welcome commitments in terms of recruitment to the Civil Service and ensuring closer engagement with Ministers, but the emphasis is on establishing frameworks and processes. I am not decrying what is proposed—I very much endorsed it—but, rather, am drawing attention to what is omitted.

The same applies to the report of the Commission for Smart Government, chaired by my noble friend Lord Herbert, who I am delighted to see is speaking in today’s debate. It recommends giving each Minister on appointment a formal and public “commission letter” stipulating what they are expected to accomplish and with public reporting on performance. As I read it, there are no recommendations on how Ministers are to be proficient, to provide leadership, in delivering what is expected of them. Checking that Ministers have delivered what is expected of them is important, but more important is ensuring that they are provided with the skills to do it.

I look forward to the contributions of other noble Lords—we have a quality line-up—and to my noble friend the Minister explaining the Government’s plans to deliver training, especially for Ministers. Given that the June declaration embodies commitments to be implemented this year, how far advanced are plans for a physical campus and what skills training will Ministers be expected—indeed, required—to undertake, and will such training apply to current Ministers and not just new Ministers on appointment? I very much support the proposal for a mandatory induction package for the senior Civil Service, but what training will be provided for all existing senior civil servants? In particular, what steps are being taken to ensure that the senior officials who advise Ministers are fully cognisant of the importance of Parliament and the relationship between Parliament and the Executive? Simply saying that the requirement is in the Civil Service Code is not an answer to the question.

My Motion calls attention to the case for enhancing the quality of government through the introduction of training in core leadership skills for Ministers and civil servants. It is surely a public good. I beg to move.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I said in opening that there was a quality line-up of speakers, and the debate has rather proved it; we have had some stellar speeches. One of the things that has been clear is the common theme about the sheer importance of this.

In response to the noble Baroness, Lady Fox, I say that it is not just a case of using external providers and a one-size-fits-all form of training. I distinguished between purpose in office—what Ministers seek to achieve—and the skills necessary to achieve it. You will get variety and different qualities of Minister. You cannot ensure you are necessarily getting all good Ministers, but you can ensure you are getting the best you can by giving them the skills to deliver. That is the key point.

It is not just using external providers; one of the things that I drew from my own research was the importance of best practice drawn on the experience of former Ministers. When I interviewed those who had held senior office, it was quite clear that when new Ministers come in they reinvent the wheel rather than draw on those who have already invented it. There is a lot of experience out there that we can draw on, from those who have the experience; that is absolutely vital.

In terms of providing training, as my noble friend Lord Maude has clearly indicated, and the noble Lord, Lord Bilimoria, has reinforced, there are the courses available. The supply is there, but a key problem, as my noble friend indicated, is that they tend to be optional—the danger there is that you end up preaching to the converted. The ones who want to do it are the ones who go and do it. It is the ones who are the most resistant who need to be reached.

As the noble and learned Lord, Lord Judge, said in his excellent contribution, there tends to be resistance to training when you first introduce it. Once it is in place, you start to wonder how you coped without it. It is about overcoming that resistance and getting it in there. It then becomes part and parcel of good government. That is absolutely the point that we must stress, as the noble Baroness, Lady Smith, was saying. We are talking about good governance. This is such an important debate. What could be more important than ensuring the quality of government of the United Kingdom? This is a way of facilitating it.

I am very grateful to my noble friend the Minister for his response demonstrating that we are making some progress. It is a case of building on that and particularly, as I was stressing, not only providing skills training for civil servants but really developing it for Ministers as well. That must be the driving force.

The noble Baroness, Lady Smith of Basildon, was making the point about the distinction between Ministers and civil servants; there is no reason why they cannot both be engaged in order to understand the role of the other. That is particularly important to achieving what we seek to achieve.

The exemplar of what we seek to achieve is embodied in my noble and learned friend Lord Mackay of Clashfern, because he demonstrated what a good Minister does, which is to work as part of a team, to bring people on board and to ensure that they feel that they are part of the process, because loyalty must be earned; it cannot be dictated. Ministers must have a vision to bring others within that vision, to ensure that they feel part of it. That is the way to deliver this.

We recognise what needs to be done and are moving in that direction. The more that we can do to achieve that, the better for the governance of the United Kingdom. I beg to move.

Motion agreed.

House of Lords Appointments Commission

Lord Norton of Louth Excerpts

Monday 6th September 2021 Lords Chamber

Asked by

[Lord Norton of Louth]

To ask Her Majesty’s Government what plans they have to place the House of Lords Appointments Commission on a statutory basis.

[Baroness Scott of Bybrook (Con)]

My Lords, this debate is limited to one hour. That is very tight and, in order to give time for the Minister to respond, all noble Lords apart from the noble Lord, Lord Norton of Louth, need to stick strictly to no more than two minutes.

[Lord Norton of Louth (Con)]

My Lords, my noble friend Lord True will note the number of Peers contributing to this short debate. Each, as has been mentioned, will have two minutes. My noble friend will have 10 minutes to say what he could probably say in 10 seconds: namely, that the Government have no plans to put the House of Lords Appointments Commission on to a statutory basis. They should have: for some of us, this is unfinished business.

I have the honour to be convener of the Campaign for an Effective Second Chamber. My noble friend Lord Cormack chairs the campaign. We formed it more than 20 years ago to make the case for strengthening the existing House in the valuable work that it does. The key changes that we sought were embodied in the House of Lords Bill introduced by Lord Steel of Aikwood. Some of what we included in that Bill we have managed to get enacted, primarily through the House of Lords Reform Act 2014. The House of Lords Bill included a clause establishing the House of Lords Appointments Commission—that is, putting it on to a statutory basis. I wish to explain why it should be done and how it can be done.

In an Ipsos MORI poll in 2007, respondents were asked which factors were important to determine the legitimacy of the House of Lords. The option attracting the most support was “Trust in the appointment process”—75% of respondents ranked it as “very important” and 19% as “important”. Trust in the appointment process ranked higher than “The House considering legislation carefully” and “Having many Members who are expert in their field”. I note that it considerably outstripped “Having some Members elected by the public”. How appointments are made is thus crucial to how the House is seen by the public. At present, the process falls short. At times it is mired in controversy, and there is little transparency in the selection of nominees. However worthy the individual nominees may be, their merits are lost in media criticism of the process and public perceptions of the type of person elevated to the peerage.

The existing Appointments Commission examines all nominations and puts forward nominations for Cross-Bench Peers, but it is limited in two significant respects. It can examine nominations only in terms of propriety, not suitability, and it is the creature of the Prime Minister. Having an Appointments Commission that is not only independent of the Prime Minister but is seen to be independent strengthens both the Prime Minister, confirming the merits of the persons nominated, and the legitimacy of the House.

Putting the Appointments Commission on to a statutory basis is necessary, but it is not sufficient. Powers will have to be vested in it and, I shall argue, can be without jeopardising the Prime Minister’s role as principal adviser to the sovereign in recommending individuals for peerages. How, then, can it be done? As noted in the Library briefing for this debate, I have introduced a Bill that has now had its First Reading. I have sought in it to ensure that the commission can have an impact through vetting nominations to ensure that they meet a high-quality threshold, through requiring the Prime Minister to await the advice of the commission before putting forward names to the Crown, and through ensuring transparency in the process by requiring the Prime Minister, and other party leaders as appropriate, to inform the commission of the process by which the names were selected to be put forward. As noble Lords will see, it also includes provision for the Prime Minister to have regard to the principles that I believe are widely supported by the House, not least in terms of size.

The case for putting the commission on to a statutory basis has been made by a number of bodies, including the Government, over the past two decades. It was made by the Royal Commission on the Reform of the House of Lords, chaired by my noble friend Lord Wakeham. It was a proposal that was accepted by the Government but not acted on. I served on the Joint Committee on the draft House of Lords Reform Bill, which also endorsed the proposal. As I said, it was a key provision of the House of Lords Bill that was variously debated and widely supported in your Lordships’ House.

The proposal itself is modest relative to the report of the royal commission, which recommended transferring the power to nominate Peers from the Prime Minister to the Appointments Commission. My proposal would retain the existing position whereby the Prime Minister recommends names to the sovereign, although he would be required to wait until such time as he had received the advice of the commission. The Government, in 2001, proposed that the commission should have responsibility for managing the balance and size of the House. My Bill provides for the commission to offer advice on how to reduce the size of the House, but does not empower it to determine the size. This, therefore, is a modest proposal, and it may be prudent for the Government to accept it rather than wait until overtaken by more radical demands for change.

When questioned on the issue of reform of this House, my noble friend Lord True said that the Government did not support piecemeal reform. Well, as a Conservative, I do—and so, too, to judge by their election manifesto, do the Government. The 2019 manifesto stated that the Conservative Government had enacted legislation to enable Peers to retire and to remove those who committed a serious offence. That was not strictly accurate. What they had done was support, or at least acquiesce in, the passage of the Private Member’s Bill that I drafted, which was introduced in the Commons on behalf of the Campaign for an Effective Second Chamber by Dan Byles and taken through this House by Lord Steel. That was piecemeal reform, which I believe has proved its worth.

The same applies to the House of Lords (Expulsion and Suspension) Act 2015, introduced by the noble Baroness, Lady Hayman. She is unable to be here for this debate, but she would very much like to have been, to support the case for putting the Appointments Commission on a statutory basis.

Even if my noble friend Lord True says that the Government have no plans to place the commission on a statutory basis, he could indicate a willingness on the part of the Government not to oppose such a move. Simply saying that there are no plans does not mean that the Government do not accept the merits of the case. My noble friend has not really engaged with the principle. He has the opportunity today to say whether he accepts the principle. The Government need not commit significant resources, including time, to getting a measure through. They can instead facilitate the passage of the Bill or another Private Member’s Bill with a similar aim. The important thing is to get it on the statute book.

In short, it can be done. My contention is that it should be done. It will not undermine the position of the Prime Minister but rather bolster it, certainly in the case of a confident Prime Minister, in making nominations, and it will enhance the legitimacy of this House.