Dissolution and Calling of Parliament Bill

Lord Wallace of Saltaire Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

The noble and learned Lord, Lord Judge, said he wanted the other place to think again, and other noble Lords made the same point. It is of course the right of noble Lords, when they wish, to ask the House of Commons to think again—but the House of Commons has thought about this and sent us a Bill with no such provision as your Lordships propose to insert in it. The Bill has also been considered by the Joint Committee, which has reflected on it.

[Lord Wallace of Saltaire (LD)]

I am sure the Minister is aware that the House of Commons spent less than two hours in Committee, on Report and on the final stages of this Bill—so to say that it gave it considerable attention would I think be a slight exaggeration.

[Lord True (Con)]

My Lords, your Lordships are required to deal with the Bills that are sent to us by the other place, and the other place has sent us a Bill with no such provision. Members of your Lordships’ House under the chairmanship of my noble friend Lord McLoughlin on the Joint Committee, which reflected at length on these matters, did not propose such an amendment. None of those who have scrutinised the legislation formally have proposed what the noble and learned Lord has suggested.

The noble and learned Lord said that we could not return to an ancient system. There is perhaps a faint irony in advancing that argument in an unelected House with a tradition that dates back centuries. He said that we had to be 21st century. Well, we tried “21st century” in 2011 and, frankly, I rather prefer the experience of many decades in the long past which I believe served us well, and the proposition before your Lordships, supported by my party and the party opposite at the general election, was that we should do away with the failed 21st-century experiment.

We do not have to talk the talk about the problems that a Commons vote might cause. There has been a lot of speculation, to and fro, on this, but we lived it in 2017 to 2019; that Parliament refused three times to be dissolved and to meet the verdict of the people.

The repeal of the Fixed-term Parliaments Act was in our manifesto and that of the party opposite. I found it fascinating to hear the throaty roar of approval from the Benches opposite when any noble Lord, starting with the noble and learned Lord, Lord Judge, said that we must not go back to the situation before the Act was passed. I remind the party opposite, as did my noble friend, of the Labour Party’s promise to the people:

“A Labour government will repeal the Fixed-term Parliaments Act 2011, which has stifled democracy and propped up weak governments”.


They wish to maintain an essential part of that Act in the form of a Commons vote.

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Moved by

[Lord Wallace of Saltaire]

6: Clause 6, page 2, line 13, leave out subsection (3) and insert—
“(3) This Act comes into force when a Cabinet Manual revised in relation to the dissolution and calling of Parliament has been laid before Parliament.(3A) Prior to revising the Cabinet Manual the Minister must consult the relevant select committees in the House of Commons and the House of Lords.”Member’s explanatory statement
The current Cabinet Manual references the Fixed-term Parliaments Act and has not been revised for 10 years. As a consequence of the repeal of that Act under this Bill, the Cabinet Manual should be revised in relation to the dissolution and calling of Parliament.

[Lord Wallace of Saltaire (LD)]

My Lords, I tabled this amendment last week and received a letter on Monday evening from the Minister that answers a number of my points. Therefore, I mainly wish to stress the usefulness of the Cabinet Manual and to encourage the Minister to repeat what he said in my letter on the Floor of the House.

Paragraph 227 of the Joint Committee report points out that:

“legislation—by definition—does not create or restore conventions … If the old conventions on dissolving and summoning Parliaments are to be restored, or indeed if they are to be replaced by new ones, there needs to be a political process to identify, and to articulate, what those conventions are.”

I have heard the noble Lord, Lord Hannan, make two speeches in different debates over the last two weeks about the importance of due process and the political process and of not just rushing things through or allowing Prime Ministers to decide them. The Constitution Committee report on the revision of the Cabinet Manual stresses not only the importance and usefulness of that manual, but the need for there to be consultation with Parliament about the revision of the manual, because it relates to the relationship between the Executive and Parliament.

The Minister’s letter, which I thank him for, stresses that conventions

“can only operate effectively when they are commonly understood and where there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day”.

This has not been entirely true of our current Prime Minister over the last two years. We need to get back to that. I look forward to the Minister’s response.

[Baroness Smith of Basildon (Lab)]

My Lords, I remind the Minister that there was a Constitution Committee report on the Cabinet Manual and I think the Government have yet to respond. Could he give an update on when a response is likely to be? As it would cover these issues, it would be helpful when we have the opportunity for a longer debate in your Lordships’ House, given that we do not have the time today.

[Lord True (Con)]

My Lords, I thank the noble Lord, Lord Wallace, for his thoughts on the Cabinet Manual. It is important. I am pleased to say that, of course, the Government agree on the fundamental importance of the Cabinet Manual, and I can confirm to the House, as I have indicated privately to the noble Lord, that the Government intend to publish an updated version of the Cabinet Manual within this Parliament. In response to the noble Baroness opposite, I can also add that I have written to the newly appointed chair of the Constitution Committee, the noble Baroness, Lady Drake, to set out the Government’s intentions on this topic.

There have been a number of developments that render the current version out of date, not least—if we ever get to the end of it—this legislation going through now, which will have to be taken into account. As a result, this amendment, which would prevent the Bill coming into force until after a revised version of the Cabinet Manual has been published, is not needed and would be unhelpful. It would delay the commencement of legislation, which, one would infer, our Parliament will pass shortly, and we would be left carrying on under the terms of the Fixed-term Parliaments Act. I hope, for that technical reason, but also on the basis of the assurance that I have given the House, that the noble Lord will feel able to withdraw his amendment.

[Lord Wallace of Saltaire (LD)]

I thank the Minister for repeating that statement. I stress that the revision of the manual should ideally come well before the timing of the next election, and I strongly support the opposition suggestion that there should be a debate, ideally in both Houses, on the conventions that will have been restated. On that basis, I am happy to beg leave to withdraw my amendment.

Amendment 6 withdrawn.

Ministerial Code

Lord Wallace of Saltaire Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord True (Con)]

My Lords, as I said in my original Answer, Ministers are personally responsible for deciding how to act and conduct themselves in the light of the code, and for justifying their actions and conduct to Parliament and the public. I refer the noble Lord opposite to the statement that my noble friend Lord Goldsmith put out yesterday, in which he said:

“I did not authorise & do not support anything that would have put animals’ lives ahead of people’s … I never discussed the … charity or their efforts to evacuate animals with the”


Prime Minister.

[Lord Wallace of Saltaire (LD)]

My Lords, did the Minister by any chance see the strapline comment by Guido Fawkes over the video of the noble Lord, Lord Agnew, leaving the Chamber, which read, “We have now reached the point where Ministers have to explain which scandal of the Government’s they are resigning over”? We have another scandal here—an apparent contradiction between what one Minister has said and what it appears from the official record—which needs to be cleared up. We have a Ministerial Code which is effectively policed by a Prime Minister who has now lost public trust. Could not the Government begin to regain public trust by accepting recommendations from the Committee on Standards in Public Life that the Ministerial Code should be placed on a firmer statutory basis?

[Lord True (Con)]

The noble Lord started off with “scandal” and retreated to “apparent contradiction”. I would advise him and others to refer both to the statement put out by my noble friend Lord Goldsmith and the official statements put out by No. 10 Downing Street and the Defence Secretary at the Foreign Affairs Select Committee yesterday.

Dissolution and Calling of Parliament Bill

Lord Wallace of Saltaire Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Wallace of Saltaire]

2: Clause 2, page 1, line 9, at end insert “subject to subsection (1A).
(1A) The Prime Minister may not request Her Majesty to exercise Her prerogative to dissolve Parliament if Parliament has been prorogued, unless Parliament is first recalled and the House of Commons agrees that the Prime Minister should request Her Majesty to exercise Her prerogative to dissolve Parliament.”

[Lord Wallace of Saltaire (LD)]

My Lords, quite a lot of what we will discuss this evening is how far we need to put into statute the sort of things the noble Lord, Lord Norton of Louth, has been thinking about, or whether a revised version of the Cabinet Manual would be sufficient to set out the conventions agreed by the parties. We will come back to that later.

Looking through the 2004 report of the Commons Public Administration and Constitutional Affairs Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, I note that there was a memorandum from the Treasury Solicitor’s Department on the royal prerogative, which listed as one of the prerogatives

“the summoning, prorogation and dissolution of Parliament”

as a single interconnected power.

The Government have said that Prorogation is outside the scope of the Bill and is an entirely separate car. The reasons, going back to why in 2010-11 Prorogation was taken out, seem relatively clear. The Lords Constitution Committee then said that

“the risk of abuse of the power of prorogation is very small”.

The Government said in the debates on the Bill that

“The conventions of this House are sufficiently strong”—[Official Report, Commons, 18/1/11; col. 768.]


to make inclusion of the power of Prorogation on a statutory footing unwise and unnecessary. Opinions would now differ. As the noble Lord, Lord Lexden, pointed out, no Prime Minister has asked improperly for a Dissolution, but the question of whether a Prime Minister has asked improperly for a Prorogation is very much open.

The noble Lord, Lord True, and other Ministers have enjoyed referring to our tried and tested constitutional system. If one looks back at arguments over Prorogation, there were riots throughout the country in 1820 against Prorogation. In 1831, when the Lords were about to debate whether there should be a Motion to prevent Prorogation, William IV jumped into a rather inferior carriage and came down personally to prorogue Parliament. In 1854, an MP proposed an address to the Queen against Prorogation, which Lord Aberdeen as Prime Minister made a matter of confidence in order to prevent. “Tried and tested” is, perhaps, a little strong.

I ask the Minister in general terms for an assurance that a revised edition of the Cabinet Manual, which I hope is now well under way, will clarify that there is now a well-established convention—tried and tested, even—over the last century that Prorogation is now a prerogative power available for use only in marking the short recess period between parliamentary Sessions, and that this should not be used as a prelude to a request for Dissolution that has not been communicated to nor approved by Parliament. Nor should it be used, as it has not been for the past century, as a means of avoiding parliamentary scrutiny, proposals or decisions over any extended period.

Perhaps I may be permitted to say a little about the broader issues behind this debate since my amendment is linked to the broader amendment which follows. The desirability of reaching as wide a consensus as possible has been stated in a range of reports relating to this Bill. The 2004 committee report said that the case for the reform of ministerial executive power is “unanswerable”. Indeed, opposition Conservatives including William Hague gave evidence to that committee in support of further limits on executive power. Perhaps the young Nicholas True wrote some of the evidence which he gave; I do not know.

The Minister’s response to the Constitution Committee last December said, rather more weakly, I thought:

“Political consensus is of course valuable when possible”


without, so far as I am aware, promoting any active cross-party consultations on the constitutional issue. I regret that. This is a major constitutional Bill; therefore there needs to be as much consensus as we can achieve.

The fact is that, week by week, we begin to approach the idea that this Government might not necessarily be in power beyond the next election, which could conceivably produce a Parliament in which no single party has a majority. We are concerned not just with addressing the flaws in the 2011 Act but with future-proofing, as various committees have talked about, so that we are prepared for a situation that we might face with the outcome of the next election.

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The careful scrutiny that your Lordships rightly expect has been provided. To construct this novel constitutional scheme which the noble and learned Lord, Lord Judge, is suggesting, building on the remnants of a piece of legislation that did not stand up in the political turmoil of the previous Parliament, would perhaps be to act with a little haste. That is not the way to ensure that our constitutional arrangements will stand the test of time as the previous arrangements did. This Bill returns our country to its best constitutional traditions, and I urge your Lordships to withdraw the amendment.

[Lord Wallace of Saltaire (LD)]

My Lords, I briefly point out that the definition of “Prorogation” that the Minister has just given does not cover the meaning of what the Prime Minister did in 2019. He might perhaps like to reconsider that definition if he wants to argue that the Prime Minister was behaving within the constitution. A lot of this debate has been about the lack of clarity in constitutional conventions at present and the need for greater clarity. I would be very happy to discuss further with him the revision of the Cabinet Manual to set out clearer definitions of what our conventions are, agreed among the parties and consulting with the committees in both Houses, which is what we need. We lack trust in politics at present and the public has a low opinion of politics and politicians. That is part of the reason why, as the noble Lord, Lord Desai, said, we need to put conventions down on paper. I hope that we will come back to the Cabinet Manual later.

I say rapidly to the noble Baroness, Lady Noakes, that we are a parliamentary democracy, and one of the planks on which the 2016 referendum was fought was to restore parliamentary sovereignty. When Parliament began afterwards to divide up into factions within both the major parties—which, after all, was the cause of our difficulties between 2017 and 2019—the Government moved towards an idea of popular sovereignty. If we were to move towards a system of popular sovereignty, as she suggests, we would be moving towards the Swiss model. We would have a much more local democracy, with local as well as national referenda and a Government who were much less able to control anything much from the centre; Switzerland does not have much of a foreign policy as a result. That is a popular democracy. It would be a very different model from our constitutional democracy based on checks and balances between judiciary, Parliament and Executive.

What we risk having is a populist democracy with highly centralised government and a leader with a good deal of financial support behind him—occasionally her, but almost always him—who says that he speaks for the public without actually asking them what they say, who does his best to denigrate any sort of critical or independent media and who thus undermines the whole idea of a constitutional democracy. We have seen that happen in a number of countries in recent years and we do not want it to happen here. That is why we need greater clarity in our constitutional conventions, which is part of what we are concerned with in this Bill. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Baroness Noakes (Con)]

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

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

[Lord Wallace of Saltaire (LD)]

My Lords, if we are talking about our tried and tested constitution, we should remember that in the 17th century it was Chief Justice Coke and his defence of the rule of law against the extent of the royal prerogative which led to the development of some of the ideas of constitutional democracy at least as much as Parliament. The rule of law is an essential part of the way we work.

I say to the noble Baroness, Lady Noakes, that we all know that this clause is in the Bill because of the judgment on Prorogation in 2019. I was interested to hear that the Minister’s definition of Prorogation did not in any sense suggest that that use of the power came within an accepted definition. Perhaps he will change his definition next time he comes.

The Minister has said that the importance of the Bill is to restore the status quo, but this ouster clause is not the restoration of the status quo. I agree with the noble and learned Lord, Lord Hope, that it opens a window to its use on other occasions, which would be highly undesirable. It is much more radical than Clause 2 in changing our customs and practices. If we want to maintain the status quo while changing it a little—

[Lord Faulks (Non-Afl)]

The noble Lord says that the clause does not restore the status quo. Does it follow that, in his view, the power to dissolve would have been justiciable at common law by virtue of the conventions?

[Lord Wallace of Saltaire (LD)]

I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.

The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:

“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”


I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.

That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.

[Lord Grocott (Lab)]

My Lords, I would like to think that the Minister will find this argument conclusive. If he had accepted the amendment on Clause 2 that so many noble Lords thought was valuable—to have parliamentary resolution for a general election—we would not have needed this debate on the ouster clause and could have got home much earlier. But he has rejected it and that brings us to the debate about the ouster clause itself.

In normal circumstances, when eminent lawyers pronounce on issues of law and legality, those of us who are not lawyers intervene with some trepidation. I am relaxed on this issue, however, because the ghost in the room is the debate on Prorogation, not Dissolution, and that it went to the Supreme Court. We all know the debates surrounding that and those of us who are not lawyers are emboldened by the defence that the Divisional Court thought 100% in one direction and the Supreme Court thought 100% in the other. Whichever argument you pick, you will have a few top lawyers on your side.

In my view, that whole episode relates to that dreadful Parliament I keep referring to between 2017 and 2019. All that debate, which went to the Supreme Court, derived from the background of a dysfunctional Parliament—a bad case, if you like. So much of the debate we are having now is with that and the judgments that were made hanging over us. The list of dysfunctionalities of that Parliament knows no bounds. I mention one obvious point: there was a Speaker who, on the biggest debate of the day—the referendum result and its consequences—was highly partisan on one side of the argument. In those circumstances, all sorts of other undesirable things follow.

I, for one, very much regret that the Supreme Court decided to get involved in politics at the highest level. I know there are all sorts of disclaimers that it was not doing that, but that is precisely what happened. It is difficult to imagine a more dramatic, higher-profile political issue than that of leaving or not leaving the EU, and the Supreme Court came down decisively on one side of the argument, in practical terms. As soon as the courts are involved in these kinds of highly charged political areas, we are in trouble.

I can certainly see the need for this ouster clause, but I regret the need for it because we should have dealt with this in the simple way of a parliamentary majority. We keep hearing about the three pillars of the constitution: the judiciary, the Executive and the legislature. In my book, and perhaps I am biased, one of those is greater than the other two—a first among equals—and that is Parliament, which is answerable to the public in a way the other two are not.

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Moved by

[Lord Wallace of Saltaire]

7: Clause 4, page 2, line 2, leave out “If it has not been dissolved earlier,”
Member’s explanatory statement
This is a probing amendment aimed at debating the expectation of how long a Parliament should be in normal circumstances.

[Lord Wallace of Saltaire (LD)]

My Lords, before I speak to Amendments 7 and 9, I want to say one or two things about the conditions for Report. Here we are, late at night. We have just listened to the Minister make what I think is the longest speech I have ever heard to sum up in Committee, at 30 minutes, and there are still some important issues to debate. I appreciate that the length of his speech reflected the complexity and importance of the issues in a constitutional Bill; that being the case, we will need the time on Report, with a full House and without the enforcement of unusually short speeches, to discuss them further.

The House of Commons went through the Committee, Report and Third Reading stages of this Bill in less than two hours—not good for a constitutional Bill. This House is going through its Committee stage in a few hours, stretching late into the night. I very much hope that, when we come to Report, the usual channels will ensure that we start in prime time and address the very important issues, particularly in Clauses 2 and 3, at length and with the House listening.

Amendments 7 and 9 are probing amendments on the balance between frequent elections and regular elections and, secondly, about what time of the year they should be held if possible. I speak as someone with experience of having fought two elections in one year, the first in February and the second in late October. Yesterday, I talked to a former Conservative MP who said that he remembered having the impression of being damp for an entire month during a winter election. It is good for democracy if we have elections on a regular basis and in good weather in the summer; that is why I suggest that, where possible, we should have elections in June.

It is also good because regular elections allow for a longer period to know when controlled expenditure should be imposed and when the Opposition are entitled to talk to the Civil Service to prepare for a potential change of government. The prime ministerial prerogative to jump elections when they think is most to their advantage—we have not yet talked about incumbency advantage—deprives the Opposition of the advantage to prepare properly for governance afterwards. Good governance matters to an effective constitutional democracy.

I am also concerned about the effective monitoring and administration of campaigns. I go and talk to my local electoral registration team from time to time; my ear has been bent on the difficulties of running election campaigns at short notice. I heard anger in Bradford some months ago about Conservative MPs saying, “There is no problem—all it requires is for staff to work harder if it comes to it”.

I tabled the amendments to test the question: how often do we want to have elections, and do we wish to leave it entirely open as to whether they are in December, January or June? In my opinion, the default should be June, not coinciding with the May elections or devolved national elections. The exceptions should be at times of the year not including winter. That is the purpose of my amendments.

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[Baroness Scott of Bybrook (Con)]

I thank noble Lords; I am very grateful to the noble Lords, Lord Wallace of Saltaire and Lord Rooker, for tabling these amendments, which have initiated what has been an interesting short debate, if not necessarily always on the amendments. In 1974, I remember pushing a pushchair and delivering literature, though not necessarily for the Labour Party of the noble Lord, Lord Rooker.

If noble Lords do not mind, I will stick to the amendments and not answer any further questions. The Bill makes express provision for Parliament to automatically dissolve five years after it has first met. This is the most straightforward way to calculate the five-year term. It also remains the case that your Lordships’ House has an absolute veto on legislation to extend the life of any Parliament.

I first turn to the question of the length of parliamentary terms. I have heard the argument for a four-year term, and I heard from the noble Viscount, Lord Stansgate, that he does not necessarily agree with the noble Lord, Lord Rooker, on this. However, the Government remain of the very strong view that five years is the right maximum length for any Parliament.

A maximum five-year term allows the Government time to undertake and implement their programme without having to start any electioneering. This is an important issue that I do not think the noble Lord, Lord Rooker, took into account as he did not mention it. Any Government have to deliver on the programme that is in their manifesto. Five years is a maximum period which I and the Government believe balances sensible, long-term government with ensuring that a Government and Parliament are accountable to the electorate in a timely manner.

In fact, we can that see parliamentary terms have developed their own effective and flexible rhythm. A strong Government seeking a fresh mandate might seek a Dissolution after four years. Anything less than four years is usually a sign of some political crisis or emergency. Often, Parliaments are dissolved for political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis. Moreover, shorter maximum terms invariably mean earlier speculation about whether a Parliament will see out its full term. This speculation does not serve Parliament, the public or businesses well. The former Cabinet Secretary noted in evidence at PACAC that longer-term Parliaments and longer-term tenures for both senior civil servants and Ministers would all be very good for Governments, who are increasingly having to face up to very long-term issues, as we have seen recently.

Finally, this question was reviewed by the Joint Committee, which did not question the starting premise that five years is the appropriate duration for parliamentary terms and the life cycle of a Parliament.

I will now address the amendment proposed by the noble Lord, Lord Wallace of Saltaire, on the timing of elections. The noble Lord has reflected on the experience of the electorate in December 2019 and observed that winter elections are not desirable. I hope your Lordships will allow me to relate Stanley Baldwin’s comments on the impossibility of finding a time for an election that suits everyone. On 23 October 1935, when seeking a Dissolution, Mr Baldwin observed on the timing of elections:

“Therefore I have long come to the conclusion that you must rule out the spring and summer months because of financial business. You must rule out August and September because of the holidays. You are left with the autumn, but in no circumstances must you run into any interference with the Christmas trade.”—[Official Report, Commons, 23/10/1935; col. 154.]


Those light-hearted remarks contain an important kernel of truth.

Certainly, outside times of political tumult when exceptional elections are necessary, it may well be the case that a Prime Minister would prefer not to call on the public to venture out to cast their vote in the depths of winter. I share the noble Lord’s sentiment that winter elections do not provide the most ideal conditions for queuing at a polling station or canvassing from door to door. The election in 2019 was, of course, exceptional and was called to bring an end to a period of extended parliamentary deadlock.

Nevertheless, the purpose of the Bill is to provide for a system that will serve successive Governments. As the 2011 Act has taught us, we should not draft our constitutional arrangements in response to one event. There is no guarantee that, in the future, an election will not again be required in December—or February, as in 1974, which we have heard about. So it would not be wise to legislate in the long term for an event that was an exception to the rule. Our arrangements need to be adaptable. That is the important point.

The challenge of the approach set out in the amendment of the noble Lord, Lord Wallace, is that it prevents the flexibility necessary for a Government to respond to particular circumstances. As such, I suggest to the noble Lord that to subject the timing of elections to this particular constraint—even if Parliaments do not normally run their full term—would run counter to that objective.

The purpose of the Bill is to revive arrangements that have stood, and will continue to stand, the test of time. I am grateful to the noble Lords, Lord Wallace and Lord Rooker, for stimulating this fascinating discussion but I hope that your Lordships’ Committee will agree with me that Clause 4, unamended, is the most suitable approach to achieve that aim. I therefore urge the noble Lord to withdraw his amendment.

[Lord Wallace of Saltaire (LD)]

I beg leave to withdraw the amendment, noting that we may return on at least one of these amendments on Report. That remains to be discussed.

Amendment 7 withdrawn.

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Moved by

[Lord Wallace of Saltaire]

10: Clause 6, page 2, line 13, leave out subsection (3) and insert—
“(3) This Act comes into force when a revised Dissolution Principles document has been laid before Parliament and—(a) the revised Dissolution Principles document has been approved by a resolution of the House of Commons; and(b) the House of Lords has debated a motion to take note of the revised Dissolution Principles document. (3A) The Dissolution Principles document under subsection (3) must be revised to refer to a “request” from the Prime Minister to the Sovereign to dissolve Parliament.”Member’s explanatory statement
This amendment seeks to implement a recommendation from the Joint Committee on the Fixed-term Parliaments Act to revise the Dissolution Principles document.

[Lord Wallace of Saltaire (LD)]

My Lords, the purpose of the two amendments in this group is to draw attention to recommendations made in the Joint Committee report and in a number of other parliamentary reports to which the Government have responded weakly and inadequately.

Paragraph 15 of the Joint Committee report states:

“The move to reduce executive dominance in key parts of the UK constitutional arrangements … was accompanied by a desire to clarify and make public the understanding of constitutional conventions.”


It then references the White Paper, The Governance of Britain, of 2007, and the drafting of the Cabinet Manual. The Constitution Committee’s report, Revision of the Cabinet Manual, published last July, stated at paragraph 35:

“We recommend that a draft update of the Cabinet Manual should be produced as soon as possible, and not later than 12 months from the date of this report.”


Paragraph 44 states:

“We note the open and constructive engagement which took place between the then Government and parliamentary committees on the first draft of the Cabinet Manual in 2010–11.”


Paragraph 45 goes on:

“We recommend that future drafts, including draft individual chapters, should be shared with our Committee and the relevant committee in the House of Commons for comment. This can help to achieve consensus”—


a word the Government do not seem fully to understand—

“on the text.”

It added that the next draft should commit to regular revision at the beginning of each Parliament—a summary of conventions, so that there is clarity and these things are understood.

On Dissolution principles, the Joint Committee at paragraphs 227 and 228 says that

“legislation—by definition—does not create or restore conventions … there needs to be a political process to identify, and to articulate, what those conventions are … The overwhelming consensus of those who gave evidence to the Committee is that the Dissolution Principles document falls short.”

Given that the Dissolution document as produced by the Government has received fairly universal criticism and very little approbation, it is quite remarkable that the Government have not yet provided a draft. I hope that the Minister will be able to say that a draft is now well under way and will shortly be provided. I say this with particular emphasis because we may well come out of the next election without a single-party majority. It is quite likely that there will be at least four parties which have two dozen MPs and another two parties which have perhaps a dozen, so there could be a very complicated outcome. At that point, we will need some clear guidance, understood by all those likely to be involved, about how government will be formed in a difficult situation.

The Public Administration and Constitutional Affairs Committee in July 2021 pressed the Minister to issue a revised Dissolution principles document, which has not yet been provided, and the Minister in the other place, Chloe Smith, told the Commons on 13 September that there was

“ongoing dialogue to be had”—[Official Report, Commons, 13/9/21; col. 751.]

on Dissolution conventions. I hope the Minister will be able to tell us how that dialogue is going on, when it might conclude and whether he thinks it is appropriate for this Bill to become an Act before those necessary documents to mark and clarify our conventions, which should accompany it, have been published and agreed with Parliament. I beg to move.

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[Lord True (Con)]

My Lords, the noble Lord, Lord Wallace, has frequently looked forward to that fabled day when the Liberal Democrats will again have, as he sees it, a balance of power in government. Perhaps a manual could be published on what would be the likely behaviour of the Liberal Democrats in the event they had such constitutional authority.

Jokes apart, I am grateful to the noble Lord for raising these points. They are two fundamentally important documents, which, as my noble friend Lord Norton of Louth and the noble Lord, Lord Kennedy, pointed out, are government documents. We published a Dissolution Principles document because we are aware that principles can operate effectively only when they are commonly understood and, yes, when there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day. There has been substantial discussion and scrutiny of the principles, including by the Joint Committee chaired by my noble friend Lord McLoughlin, by PACAC in the other place, and in dialogue back and forth.

As others have said, Amendment 10 proposes that there should be a process for Parliament to scrutinise a restatement of the principles in the form of a vote in both Houses, which has the difficulties that my noble friend Lord Norton of Louth and others referred to. The Government have reservations that this would be a step towards a codification of principles and conventions, just as we saw that the 2011 Act, which we have discussed, was not necessarily helpful because of the need for flexibility. In fact, Lord Sumption recognised in principle the challenges of codification when he gave evidence to the Joint Committee. He argued:

“One should be careful not to start codifying conventions, because their practical value is that they represent experience and practice … what is required to make Parliament work is not necessarily the same today as it was half a century ago.”


That will be so in the future. The Government believe that a careful balance needs to be struck between ensuring that there is a tacit agreement that these principles should be upheld—I acknowledge the duty to be mindful of the views of people inside and outside politics—and leaving space for these conventions to move in line with the political context.

In practical terms, on this and the next amendment, the Government would be concerned that this amendment means that the provisions of the Bill would only come into effect once both Houses had considered and voted on a Dissolutions principle. That risks creating uncertainty around the coming into force of the Act and, therefore, the arrangements for calling any election, which we have all agreed today should be avoided.

The same applies to Amendment 11. As noble Lords have emphasised throughout the debates today, constitutional conventions have a vital role to play in our parliamentary democracy. I am conscious that the separate tradition of the Liberal Democrats, which I respect, is that they wish more and more to be written down. The Cabinet Manual, alongside other authoritative texts such as Erskine May, is an important point of reference and reflection for how conventions are understood—but iterations enable evolution.

The noble Lord, Lord Wallace, is quite right to say that it will be necessary to revisit these sections of the Cabinet Manual once the 2011 Act is repealed. The Cabinet Manual recognises that conventions continue to evolve, and the Government will in due course respond to the report of the Constitution Committee and set out their intentions with regard to updating the Cabinet Manual. We are grateful to the committee for its considered review of the manual and its thoughtful identification of the key issues that ought to be considered in terms of any update. I am acutely aware that the Government’s response is long overdue, and I have humbly apologised for this to the noble Baroness, Lady Taylor. We are carefully considering those recommendations and will respond in due course.

To continue on the amendment, the Government agree that the Cabinet Manual should be an accurate reflection of our constitutional arrangements, but we are of the view that this amendment for a parliamentary vote is unnecessarily restrictive, for the reasons given by my noble friend Lord Norton of Louth and others. But the Government are particularly concerned that the provisions of the Bill would only come into force once a revised version of the Cabinet Manual has been published. Such an undertaking would necessarily require a considerable amount of work. Tying the provisions of the Bill to such a project risks creating uncertainty, which, again, we wish to avoid.

Both these amendments would run the risk of fixing our understanding of these conventions at a point in time—that is point one—undermining the flexibility that is essential to our constitutional arrangements. On the matter of the Cabinet Manual, I urge the noble Lord to withdraw his amendment, which would add complications because of the Catch-22 situation: the Cabinet Manual draws its authority from its ability to accurately reflect our arrangements, but we have not yet determined in Parliament what the successor arrangements to FTPA should be.

While obviously accepting the importance of both the principles and the manual as well as their relevance across party, beyond party and beyond this Parliament, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Wallace of Saltaire (LD)]

My Lords, the question really is: where are these documents and when are they going to be published? There were some very critical comments from various committees of both Houses, including the Joint Committee, about the lack of quality in what is currently provided in the Dissolution Principles and about the outdatedness of the Cabinet Manual, particularly the part of it that deals with Government formation.

There may be an overall majority for one party at the next election, which would be easier, but we need to future-proof the Bill as we take it through and to prepare for other eventualities. The Joint Committee marks that we are more likely to have non-majoritarian outcomes from elections in the coming years than we have had in the last 50. Perhaps the Minister will be prepared to talk between now and Report about being able to provide some statement on Report about a rather more definite timespan than “in due course”, which, as we know, means “kicked into the long grass for the next year or two”.

We need to have, as far as we can, some shared assumptions, some cross-party agreement, about these crucial conventions in our constitution. That requires trust. Trust is currently in very short supply; trust in this Government and this Prime Minister, if the opinion polls are correct, is currently going through the floor. Where trust is lacking, one needs written rules. Where written rules are challenged, we end up requiring statute. Yes, we would perhaps prefer the flexibility of shared assumptions, but in that case we need to talk about what they are and make sure that we all share similar assumptions, before we slide into a situation that could be another critical outcome or contested set of procedures around the next election.

I look forward to talking further with the Minister, and I may or may not wish to bring these amendments back in some form on Report. For the moment, I am happy to beg leave to withdraw the amendment, and I wish all your Lordships a very pleasant evening.

Amendment 10 withdrawn.

House of Lords: Appointments

Lord Wallace of Saltaire Excerpts

Monday 24th January 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, pending any further constructive and radical reform of the House, can the Government not at least agree that the appointments body should become a statutory body and that a set of principles, comparable to the Dissolution principles we will discuss tomorrow, could be drawn up by the Government in co-operation with all other parties represented in the House of Commons to form the basis for a common understanding of the principles by which appointments to this House should be made?

[Lord True (Con)]

My Lords, the House of Lords Appointments Commission performs an important role but, as I have told the House before, there are no current plans to alter its remit. Following the opening Question from the noble Lord, Lord Grocott, one thing I think we could agree on is that the Liberal Democrats are at least very well represented in this House—I do not use the term “overrepresented”, preferred by my noble friend behind me.

Legislation: Skeleton Bills and Delegated Powers

Lord Wallace of Saltaire Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, this has been an excellent debate and well worth all of us postponing our journeys home—I wish more noble Lords had been here. I hope the Minister will respond, after reflection, in writing to all those who have taken part in the debate about some of the important issues which we have been discussing, as well as, of course, responding to the two committee reports which we are discussing.

We have been talking about both the balance of power between Parliament and government and the quality of policy-making. The noble Lord, Lord Bridges of Headley, remarked that we are facing a good deal of half-baked Bills at the moment. I have certainly read through two half-baked Bills over my recess—the Higher Education (Freedom of Speech) Bill, which is a real mess, and the Elections Bill. I also read the highly critical report of the Commons Public Administration and Constitutional Affairs Committee on the Elections Bill, which was published on 7 December. In paragraphs 48 and 49 it states:

“The melange of delegated powers provided for in this Bill serves to highlight, and potentially adds to, the complexity of an already disparate body of electoral law …The Government should present the draft secondary legislation as early as possible, as committed to by then responsible Minister, Chloe Smith MP, to enable due consideration by both Houses and stakeholders of the proposed secondary legislation that will provide further detail on the purpose and implementation of the Bill prior to that legislation being laid or made.”


As an example of the style of the Bill, I quote from Schedule 6, paragraph 18:

“The Minister may take whatever steps the Minister considers appropriate to promote awareness among qualifying people of the changes made by section 11 to the overseas elector franchise.”


That is the sort of thing that surely has to come out, and I hope the Minister will accept that.

In winding up, the Minister might like to tell us whether the Government will publish this draft secondary legislation before the Elections Bill receives its Second Reading in the Lords, and whether they will also publish their response to this highly critical PACAC report, which concludes in effect that the Bill in its current state is not fit for purpose. If the Government provide neither of these before the Bill reaches us, it will be appropriate, I suggest, for the Lords to rule that the Bill be paused until they have been received. The strength of these Commons criticisms means that there is a case for withdrawing the Bill in its present form and radically redrafting it. I suggest it might even amount to contempt of Parliament to attempt to push such a Bill through as it stands without taking such criticisms into account.

I say to the Minister that I have hard experience of Bills being paused when I was in his position in the Cabinet Office in the Lords. A Bill was paused for several months for extra consultations and it came back considerably improved. I note that at paragraph 39 the Secondary Legislation Scrutiny Committee recommends precisely that for skeleton Bills, saying that departments should be

“pressed into providing illustrative draft statutory instruments before second reading, to show how the powers were intended to be used.”

That, I suggest, should become a general principle: a draft of secondary legislation proposed under a Bill before Parliament should be published before either House concludes its scrutiny on it.

One of the basic rules, which has been quoted already, that any democratic Government should follow is to refrain from pushing through powers for Ministers which they would object to if they found themselves in opposition, with another party in power. Since the last election, this Government have been behaving as if they expect to be in power for a very long time and can therefore afford to reinforce executive power and sweep away parliamentary objections.

The polls now suggest that this is a less likely outcome of the next election than it seemed six months ago. Wise Conservatives should remember that limited government used to be a sound Conservative principle, and that if and when they again find themselves in opposition, they might deeply regret tipping the balance between Parliament and the Executive so far in favour of executive power. I can almost hear the weighty speech that the noble Lord, Lord Strathclyde, would then make about the importance of a strong Opposition and the wisdom of the Government giving way to constitutional objections and reasoned criticisms.

There are contradictions in the Government’s attitude at the present moment in calling for cuts in the policy-making ranks of the Civil Service while pressing forward with a heavy legislative agenda and on centralised legislative powers. That is a recipe for poorer-quality legislation and policy outcomes—of course, so is the increasing frequency with which senior and junior Ministers change positions. There is hardly time for a Minister to learn his or her brief before they move on again, leaving frustrated and bewildered officials to greet their successors.

I mention in passing that both these reports talk about the need to ensure that there are adequate resources for parliamentary scrutiny. That is a point that we should not lose, and I hope that the relevant committees will look into that.

The question of how we get down from the temporary surge of both post-Brexit legislation and the response to Covid is another important matter that we all need to look at. We should be returning to the normal pace of legislative change after this, not allowing the rush of each new Minister deciding that he or she wants a Bill and is going to compete to push it through, with the consequences that the noble Lord, Lord Norton, suggests.

It has been said by several Members—including the noble Viscount, Lord Stansgate, the noble Lord, Lord Janvrin, and others—that Parliament should now assert its right to amend secondary legislation or, at least to start with, to send it back more regularly to the Government to ensure that the quality of that legislation is more carefully examined before it is submitted.

Of course, the concentration of power in London and the weakening of local government in England has increased the pressure on government policy-making and the congestion in parliamentary scrutiny. I note that Ministers now issue detailed guidance to local authorities and parcel out funds to local government in multiple small packages; according to one figure I saw recently, less than £250,000 is being sent out in small packages to various local authorities in some cases. Whitehall and Westminster would be much less choked if more decisions were taken by locally elected bodies, as in other democratic states. Sadly, we have a Government that seem fundamentally to distrust local government.

The House of Lords, in turn, would be less heavily burdened with scrutiny if the Commons was more conscientious in its legislative tasks. I note, for example, that the Commons went through the entire Committee, Report and Third Reading stages of the Dissolution and Calling of Parliament Bill in 100 minutes—scarcely time for any serious debate. We are all familiar with Bills which arrive in the Lords with many of their clauses unexamined in the Commons.

The respective roles of the first and second Chambers of Parliament come into play here, and the importance of the scrutiny and revising role the second Chamber plays in our overcentralised state raises broader issues than we can touch on now. That is a matter for a broader discussion of parliamentary and constitutional reform which our Government promised to launch in their 2019 manifesto but have sadly backed out of. However, we need to tackle those issues, and I suggest that one of our key committees—probably the Constitution Committee—needs to therefore return to the question of the role of the second Chamber, how it should be expanded, and how, as the noble Viscount, Lord Eccles, and others said, we persuade the new generation of Members of Parliament at the other end that we play a necessary, useful and increasingly important role here.

Retained European Union Law

Lord Wallace of Saltaire Excerpts

Thursday 16th December 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, obviously we are in the middle of a negotiation that continues to cover a wide range of issues, including the democratic deficit that the noble Baroness mentions. Unfortunately, we are not likely to complete those discussions this year; I expect that they will run into next year. However, it would not be a good solution to give the Northern Ireland Assembly or Executive decision-making roles in the European Union. The UK is not a member of the European Union, and therefore it would not be right or appropriate to try to resolve these questions in that way.

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister may remember that one of the studies in preparation for the single market demonstrated that the UK, before the single market, tended to take US regulations as the standard for British regulations under a sort of extraterritorial jurisdiction. The business media now tells us that the world is moving towards three focuses of regulation: American, Chinese and European. Do we intend to add a fourth, which would be purely national, to the great disadvantage of exporters within Britain, or do we intend to return to incorporating American regulations as British, perhaps without fully consulting Parliament on the unsatisfactory compromises we have to make?

[Lord Frost (Con)]

My Lords, regulatory freedom is one of the advantages of Brexit, not one of the disadvantages. We now have a choice as to whether we proceed nationally in regulations and standards, if we wish to get ahead of other international bodies and organisations, or whether we wish to track other organisations’ rules. US regulations, European Union regulations, others’ regulations or national ones may be the best ones for this country in future, but we have the ability to make that choice now, and that is one of the advantages of Brexit.

Downing Street Christmas Parties

Lord Wallace of Saltaire Excerpts

Thursday 9th December 2021 Lords Chamber

[Lord True (Con)]

My Lords, I reject the characterisation of both my right honourable friend the Prime Minister and the many people who work in No. 10 Downing Street and elsewhere, whether political employees, political figures or civil servants. Whatever emerges from the findings of these alleged events, I think it is quite wrong to extrapolate from that to besmirch a whole class of people who are seeking to do their very best for this country.

So far as the facts are concerned, as I have said, the Cabinet Secretary will investigate. As the noble Baroness said, matters relating to adherence to the law are properly for the police to investigate, and the Cabinet Office will liaise with them as appropriate.

I believe it is best that we should now wait for the findings of this inquiry, which the Prime Minister has directed should be produced as soon as possible.

[Lord Wallace of Saltaire (LD)]

My Lords, I am sure the Minister is aware that the morning newspapers and the other blogs that many of us have read now list a good deal more than three parties as having broken the rules at that time. Do we have a guarantee that the findings will be published in full when they come out?

I turn to what I think is the most important thing for all of us now. Public trust and public confidence in the rules to beat this pandemic have clearly been very badly damaged and need to be re-established, particularly as the new variant is sweeping through the country. How do the Government plan to ensure that public confidence and trust in the rules can be rebuilt? Are the Government providing a strategy on that? Do they think, for example, that, in the current circumstances, the Prime Minister is the best person to lead that, or that perhaps another Minister might be more capable of commanding public confidence for the next few weeks?

[Lord True (Con)]

As a preamble, I failed to respond to the noble Baroness opposite on who might have been at any of these alleged events. I can assure her that, obviously, that is part of the investigation and report that the Cabinet Secretary will complete, but I am not in a position to make a statement on that myself.

So far as what the noble Lord has just said, I do not believe that this should damage trust. Obviously, there are several strands here. There is proper public concern and indignation, which I referred to in the Statement, about the tape that came out, and a proper wish to establish the facts on these events. We have to be candid that, separate from that and wider than that, there is a persistent political campaign against the Prime Minister to besmirch his character—

Ministerial Code

Lord Wallace of Saltaire Excerpts

Monday 6th December 2021 Lords Chamber

Asked by

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government when they will publish an updated version of the Ministerial Code.

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

My Lords, the Ministerial Code is the responsibility of the Prime Minister of the day. It is customarily updated and issued on their assuming or returning to office, and any amendments to the code are a decision for the Prime Minister.

[Lord Wallace of Saltaire (LD)]

My Lords, I recognise that the Prime Minister issued the latest version on almost the same day when he advised Her Majesty the Queen to prorogue Parliament so that he could avoid parliamentary scrutiny of his actions for another couple of months. Is not it time now, given the widespread concern about behaviour in public life and the recommendations of the Committee on Standards in Public Life, for a more measured review, which might well include asking for comments and contributions from the relevant committees of both Houses?

[Lord True (Con)]

My Lords, high standards in public life are of fundamental importance. I respectfully submit, regularly from this Dispatch Box, that we are fortunate in this country in the high standards we have in public life. Of course this Government look carefully at reports and advice given on various aspects. As the noble Lord will know, we are carefully considering a number of recently published reports and will respond in due course.

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

Lord Wallace of Saltaire Excerpts

2nd reading
Friday 3rd December 2021 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I withdrew my name from this debate yesterday because I was told that it was likely to go on well after 1.30 pm, and I have to be up in Saltaire by 5.30 pm. It takes those of us who live outside the south-east longer to get home. I congratulate all those who have spoken on the self-discipline and brevity of their interventions, and I am therefore happy to speak briefly on this.

I joined the pre-reform House and I recall the Cranborne agreement directly because, as it happened, my wife and I were in the back of Lord Ashdown’s car, as his wife drove us to a dinner in Windsor. We were listening in to the negotiations that he was having with the Government about what Lord Cranborne had offered. I can confirm that this was clearly intended to be temporary—the pebble in the shoe, as the noble Lord, Lord Hannan, rightly said. The question is: when do we take the next stage of partial reform, and what should it be? I welcome the comment from the noble Earl, Lord Attlee, that there should be not just this Bill but also a statutory appointments committee. That is the least of the steps that we could next take.

[Lord Lilley (Con)]

Who would select the people on this statutory appointments committee? Quis custodiet ipsos custodes?

[Lord Wallace of Saltaire (LD)]

That is a question of public appointment, as we know, and there is some controversy about public appointments—but we have approaches to them. Making the committee on public appointments also a statutory body is perhaps also something that we need to do when we have a Prime Minister who is not, in the terms of the noble Lord, Lord Hennessy, a “good chap”.

[Earl Attlee (Con)]

My Lords, we already have an Appointments Commission for the Cross Benches.

[Lord Wallace of Saltaire (LD)]

I thank the noble Earl. I agree with the noble Lord, Lord Hannan, that we should then move towards a partially elected House, at least, or perhaps even an indirectly elected House. That is the direction of travel in which we need to go.

We all know that the second Chamber does valuable work. I say to the Minister: yesterday, I was checking how long the House of Commons had spent scrutinising the Dissolution and Calling of Parliament Bill. It was just under two hours for Committee, Report and Third Reading. We ought to give that a little more scrutiny, and that is what this House is here for and does very well, as we all know.

My plea to the Minister is: I hope that he will imitate the example of the noble Lord, Lord Young, and do his best to stretch his brief. We all know that it will say that the Government are opposed to piecemeal reform, the time is not ripe and this needs further consideration. It is clear that this debate has been quite different from that of some years ago. Even in this House, the mood is changing. We will come towards taking this step within the next five to 10 years, and perhaps he might even suggest that it could be in the next Conservative manifesto. Therefore, I look forward to what the Minister will say, and I hope that he will give us a little encouragement at the very least—as far as his brief will allow it—and that we take this forward.

Dissolution and Calling of Parliament Bill

Lord Wallace of Saltaire Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I take issue with the repetition of the phrase “tried and tested” by the Minister and others to defend prerogative power. The British people, the Minister declared, lived with the previous system for centuries. For several of those centuries, this country was at best semi-democratic. In the 17th century, as the noble Earl, Lord Leicester, reminded us, Chief Justice Coke stoutly defended the rule of law against the royal prerogative. Parliament’s resistance to the royal prerogative led to civil war and the execution of the king, followed 40 years later by the expulsion of his second successor and the invitation to his Dutch son-in-law to become king instead. Our 18th century political system was highly corrupt, with bribery and patronage underpinning government. I hope that that is not a tried and tested system to which anyone would like to return us.

Reform in the 19th century made for higher standards and greater democracy, almost always against the entrenched resistance of the Tory party. Throughout the past 400 years, as the noble Lord, Lord Grocott, remarked, the whole history of Parliament has been the transfer of powers from the monarch to Parliament. I challenge the Minister to list for the House the occasions on which Parliament has legislated to restore prerogative powers.

Two new reports from committees of this House have expressed deep concerns relevant to this debate. The Delegated Powers Committee last Thursday published a report called Democracy Denied? The Urgent Need to Rebalance Power Between Parliament and the Executive. It said that parliamentary democracy is

“founded on the principles of … parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament … The shift of power from Parliament to the executive must stop.”

The report of the Secondary Legislation Scrutiny Committee, in parallel, is entitled Government by Diktat: a Call to Return Power to Parliament. It declares:

“A critical moment has now been reached when that balance”—


between Parliament and the Executive—

“must be re-set: not restored to how things were immediately before these exceptional recent events”—

by which it means Brexit and Covid—

“but re-set afresh”.

Both of these committees remind us that limited government—or liberal democracy—depends on checks and balances among three constitutional actors: Parliament, elected and representing the people; the judiciary, safeguarding the rule of law; and government, wielding executive power.

In the exceptional circumstances of 2017 to 2019, both Theresa May and Boris Johnson claimed to represent the will of the people against Parliament: direct democracy, with the leader speaking for the masses against the elites. The noble Lord, Lord True, has faithfully repeated their claim, adding on several occasions that the December 2019 election showed decisively that the Government do speak for the people—if necessary, against Parliament—having won 43.5% of the popular vote.

Lord Hailsham many years ago warned that the UK’s constitutional arrangements allowed for an effective “electoral dictatorship” between elections, with executive power escaping parliamentary scrutiny and judicial oversight. What we have glimpsed in the past four years is the shadow of authoritarian populism breaking through the conventions of our unwritten constitution. Michael Gove argued in the Commons Second Reading debate on this Bill that Parliament in 2019 was

“frustrating the will of the people”—[Official Report, Commons, 6/7/2021; col. 789.]

which he believed a new Prime Minister—who had scarcely appeared before Parliament since taking office—nevertheless authentically represented. The will of the people is the cry of populist demagogues, not of constitutional democrats.

I re-read last week the 2019 report by the noble Lord, Lord Hennessy, for the Constitution Society: Good Chaps No More? It denounces the willingness of our current Prime Minister to break the rules and misrepresent evidence in his first months in office. He says:

“A key characteristic of the British constitution is the degree to which the good governance of the United Kingdom has relied on the self-restraint of those who carry it out … If general standards of good behaviour among senior UK politicians can no longer be taken for granted, then neither can the sustenance of key constitutional principles.”


Sadly, good behaviour by senior politicians cannot be taken for granted, so I say to the noble Lord, Lord Bridges, that codification is therefore needed. As the Secondary Legislation Scrutiny Committee has just put it, we now need a reset, not a restoration of the previous status quo.

The noble Lord, Lord True, has defended the Government’s abandonment of their manifesto promise of a broader approach to reform through a constitutional commission. He told the House the other week that he also opposed piecemeal reform. So now he is supporting a piecemeal reactionary Bill—a Bill that restores prerogative power and weakens the judiciary. I look forward to hearing how he manages to defend that.

The Select Committee on the Constitution reminded us that

“prerogative powers are an exception to the sovereignty of Parliament.”

Successive reports from committees of both Houses over the last 20 years have noted that the direction of travel has been to reduce the extent of prerogative powers, and to extend parliamentary oversight. This Bill would reverse that direction.

We will therefore attempt to amend this Bill. We will support the replacement of Clause 3 by a requirement for an affirmative vote in the Commons before the Prime Minister requests a Dissolution. We will also seek to include a parallel requirement for this before Prorogation. Moving the Second Reading in the Commons, Michael Gove made it entirely clear that Clause 3 had been included because of the Supreme Court’s decision on Prorogation in 2019. Lord Sumption indicated in his evidence to the Joint Committee that the Prime Minister

“was effectively attempting to rule without Parliament”

for as long as possible. That surely brings the issue of Prorogation within the scope of this Bill.

We will wish to gain assurances from the Government —and here I strongly agree with the noble Baroness, Lady Taylor of Bolton—that a draft revised version of the Cabinet Manual will be published before this Bill becomes an Act, and will be presented to the appropriate committees of both Houses for review, as has been strongly recommended by her Select Committee. The Cabinet Manual provides a directory of our constitutional conventions—if you like, a shadow constitutional document.

We will also wish for assurances on a revised version of the Dissolution Principles, which should also appropriately cover the process of government formation. The draft principles and conventions on confidence, Dissolution and Government formation on pages 61 to 65 of the Joint Committee report are far better and fuller than the one-page sketch that the Government provided.

The Joint Committee draft also wisely deals with the issue of Government formation in the event that an election does not produce a single-party majority. Opinion polls over the past six to nine months have consistently shown between 25% and 30% of voters supporting parties other than the Conservatives or Labour. This suggests that the result of the next election might well be again a Parliament without a single-party majority. Any form of future proofing, as others have said, would therefore need to take this into account. I recognise that the Conservatives will attempt in the Elections Bill to bias our electoral system further to their advantage, but it is still possible, despite their huge advantages in funding and office, that they will not retain power.

We have just witnessed a well-managed change of government in Germany, during which the outgoing Government stayed in office for eight weeks after the election, while three parties carefully negotiated a detailed agreement as the basis for a stable coalition. We may need to develop a similar approach here and should anticipate the likelihood of its occurrence.

Since we are discussing some fundamental issues of democracy, I will add a further question for the Minister. In 10 days’ time, the President of our most important democratic ally, the United States, is convening a virtual summit of democracies to discuss the challenges and dangers that they now face, to which several noble Lords have referred. The UK sees itself as one of the world’s oldest democracies, yet the Government have so far said nothing about this summit: whether they plan to take part, which Minister will lead, and what we might contribute. Will the Minister provide this House, before 9 December, with a Statement on what part, if any, the Government plan to play in President Biden’s summit of democracies? We should never take democracy for granted: it needs to be defended.