Dissolution and Calling of Parliament Bill

Alistair Carmichael Excerpts

2nd reading
Tuesday 6th July 2021 Commons Chamber

[Michael Gove]

In both the cases that the hon. Gentleman mentions, if there were jiggery-pokery or the Government were acting in a way that the electorate considered heedless or reckless, electoral punishment would occur sooner or later. Attempting to rig the rules in that way is, as we have seen in the past, something that the public are always alive to, always wise to and always ready to punish.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Surely the biggest difference, though, between the situation today and that facing Edward Heath in the 1970s is the amount, the nature and the regulation of the spending of money. Heath did not have a long period before a short period of expenses and there were not those controls. Effectively, this Bill will allow the Prime Minister and the Prime Minister alone to be the only person who knows when that long period starts and to pile the money in. That is what this is about, is it not?

[Michael Gove]

No, it is not what it is about. The money spent on elections is an issue in which the Liberal Democrats and other parties have long had an interest, but more broadly the point is that the choice of election timing should ultimately depend on the capacity of the Prime Minister to command the confidence of this House. We saw during the course of the 2017 to 2019 Parliament the consequences of the Fixed-term Parliaments Act in a way that worked against the interests of democracy explicitly.

[Mr Carmichael]

rose—

[Michael Gove]

I will just make a little progress and then come back to the right hon. Gentleman.

We saw in the 2017 to 2019 Parliament what happened when Parliament attempted to sustain a Government in office, to deny a Prime Minister the Dissolution that he requested, and yet at the same time would not allow that Government to get their business through, so we had a paralysed Parliament. We also had a Schrödinger’s Government: they were simultaneously in power and not in power, in office but incapable of carrying forward their legislation. We saw in the December 2019 general election the consequence of that: the party that argued that there needed to be a Dissolution, an election and a refreshed mandate secured that refreshed mandate, and, as a result, we saw our democracy working as it has so successfully in the past and as it deserves to again in the future.

[Mr Carmichael]

If, as the Minister says, this is about the point at which the Prime Minister can command the confidence of the House, surely that is something that can only be determined by this House and not the Prime Minister, so the point made by the hon. Member for Rhondda (Chris Bryant) is a good one.

[Michael Gove]

The points made by the hon. Member for Rhondda (Chris Bryant) are nearly always good ones, but on this occasion it is wrong. Ultimately, the decision about whether it is right to call an election and whether the Prime Minister and the Administration should return to power rightly rests with the people. During the course of the 2017-19 Parliament, parliamentarians sought to frustrate the Prime Minister seeking an election, and when that election eventually occurred, we saw that an appropriate decision was taken by the voters.

We also saw during the 2017-19 Parliament the reputation of Parliament—much to my regret—diminished in the eyes of the public because of its failure both to deliver on the original Brexit vote and to allow Government to carry on their business. In making sure that we return to a situation where we do not have the Fixed-term Parliaments Act, we are keeping faith with democracy. We are also keeping faith with the basis on which this Government were elected and, indeed, on which the Opposition argued for office.

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[Brendan O’Hara]

I think the fact that the principles are not there suggests that they will not be there. I understand that there is no statute—there cannot be—and therefore there will be no Lascelles principles on which to act. Hon. Members will know that things are pretty bad when I of all people stand here discussing the right of an unelected Head of State to use prerogative powers to act as a check on the excesses of the Executive.

[Mr Carmichael]

I am grateful to the hon. Gentleman for giving way because this is perhaps where we see the significance of clause 3. If there is to be nothing in this Bill or no decision that would be justiciable, then surely the implication is that, in fact, there is only one decision that can be made by the monarch, and that is to grant the application.

[Brendan O’Hara]

I thank the right hon. Gentleman for that intervention, and I absolutely agree. What is happening here is that the monarch will not be able to refuse under any circumstances, although not because of that very dangerous path of going into the political arena.

Although something of a constitutional anachronism, the Lascelles principles did at least provide a degree of constraint on a Prime Minister who opportunistically may have wanted to cut and run mid-term and hold a snap general election when their popularity was on the up, or perhaps more importantly and more pertinently, when they knew future events—perhaps the result of a particularly unhelpful public inquiry—would be guaranteed to put a major dent in their approval ratings.

[Brendan O’Hara]

The right hon. Gentleman shouts from a sedentary position that that would never happen to the SNP. Indeed, the SNP could not cut and run in the Scottish Parliament because we work to a fixed term. The next Scottish Parliament elections will be on 7 May 2026, and no matter what befalls the Government between now and then, the Scottish Government will be held to account on that date.

[Mr Carmichael]

Presumably in that case, as with the OECD report on Scottish education, the SNP would just not publish the report until after the election.

[Brendan O’Hara]

The Scottish Government will stand by and have stood by their record, and have been accountable on the day of the Scottish elections for every Parliament. The Scottish Parliament knows when the next election will be, and every Government will be accountable on that day. If those in the Chamber want to look at the success of the Scottish Government—the SNP Scottish Government—as put forward and verified by the Scottish public just two months ago, let me say that I am sure there is not a Member of this House, particularly on the Liberal Democrat Benches, who would not give their eye teeth for such an endorsement. However, I will move on, Madam Deputy Speaker, because I can see that I am testing your patience somewhat.

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[Chris Bryant]

The hon. Gentleman is the Mona Lisa in so many ways. I do not know what to make of that. My point is that the Government are protesting too much. I think that is counterproductive and will lead to the exact opposite of what they are trying to achieve. They virtually invite the courts to have a pop at them, which is a mistake. We should rely on the fact that proceedings in Parliament shall not be impeached or questioned in a court of law or any other place, under the articles from the Bill of Rights.

I am concerned about what constitutes a confidence motion. It should be perfectly possible to bring down a Government by virtue of refusing to allow them either money, or the basic thrust of their programme through the Queen’s Speech, or a major item of foreign policy, such as sending troops into war. In 1784 that was one of the first reasons a Government were brought down by a motion in the House. If I am honest, I was perplexed when David Cameron and William Hague—now Lord Hague—did not resign or even seem to think worthy of comment the fact that they lost a vote on sending British troops to war. In any other generation of our political history, that would have meant the Government would have fallen. This is an important principle: on big national issues, whether something is a matter of confidence should not simply be a matter for the Government. We all know that money, major policies, and issues of war and peace are fundamentally matters of confidence.

[Mr Carmichael]

I hesitate to intervene, but the record should show that the particular motion to which the hon. Gentleman refers from 2013 was not one that committed the country to deploying troops. In fact, in specifically guaranteed that before that happened, the matter would come back before the House.

[Chris Bryant]

I think I am right in saying that the original motion tabled by the Government did commit, but the version carried by the House, which was an Opposition amendment, said that the matter would be brought back to the House.

[Mr Carmichael]

indicated dissent.

[Chris Bryant]

Well, the record will have to be found, won’t it. I completely agree with the comments made by the right hon. Member for Scarborough and Whitby (Mr Goodwill) about the election period being far too long. I have some sympathy with the fact that many people now vote by post, and there are issues for electoral registration officers and all the rest. Honestly, however, it cannot be beyond the wit of woman and man in this country to bring a general election in a shorter period than we currently do.

My bigger point—I will bring my remarks to a close after this—is that the Government already have phenomenal power in this country. In our system, the amount of power that Government have in Westminster is most extraordinary. They determine every single element of the timetable and, indeed, they do more so now than they did in the time of the second world war. If we think of one of the big confidence debates, in 1939, there was the debate on the summer recess, because people who were opposed to appeasement were terrified that Neville Chamberlain as Prime Minister was going to use the recess to do a deal over Poland with Hitler. There was a chance in those days for another Member to table an amendment to the date of the recess. The rules now specify that we cannot even table an amendment to the date of the recess that has been tabled by a Government Minister.

The same is true of nearly every element of our expenditure. We cannot table a motion from the Opposition. Only a Government Minister can table a motion changing a tax, increasing a tax, laying a duty or a tax on the people, or increasing expenditure. We barely do a process of expenditure in our system at all. We do not really have a Budget, not in the sense that any other country would understand that they have a Budget. We have a statement by the Chancellor every year. The power that Government hold in this country is absolutely phenomenal and I do not think that simply to allow a few things such as a vote on Prorogation and a vote on Dissolution is too much to ask.

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[Alec Shelbrooke]

I accept the hon. Gentleman’s intervention about the choice of language, and I will change it. His observation is well made and he makes it earnestly.

What I will therefore say is that what happened almost showed that we should have dissolved the last Parliament much earlier. It was going nowhere. We created a situation in which passions were high about the constitutional issues, but we just never made any progress—yet for all the calls from people outside saying “Resign!”, we could not. The ultimate act of resignation is for a Government to call a general election: they do not know whether they will be re-appointed. The Government literally could not resign.

[Mr Carmichael]

The hon. Gentleman touches on points that the hon. Member for Rhondda (Chris Bryant) raised at the very end of his speech. I was part of the process of discussion and eventually we did get an election in 2019, because the Government were prepared to talk to other parties and bring them along. That runs to the heart of the whole difficulty throughout the Parliament of 2017 to 2019: the Government decided on their position, whatever it happened to be on that day. It was never the same position all the time, but it was their way or the highway. Surely the point is, as the hon. Member for Rhondda and others have said throughout this debate, that it is for Parliament as a whole, and not just the Government on their own, to make these decisions.

[Alec Shelbrooke]

Parliament failed, and it failed day in and day out, week in and week out. It does not matter, to go back over these arguments, whether people should have shifted to my position or gone to another position. The now Leader of the Opposition spent hours and hours in No. 10 Downing Street, and every time we thought a deal had been made, he scuppered it and moved the goalposts.

Parliament did not work. It is all very well to say that we should have taken particular positions, but the history books show that it failed at every attempt. The way out of that situation is to go back to the people and to lay it on the table. That happened far too late, and in this place we undermined several attempts along the way.

I honestly believe that we have to be very careful at the moment. It is getting better now, but we have been through a period in which the value of the democratic processes in many democracies has been questioned. We have just seen a narcissistic, arrogant now ex-President of the United States with, quite frankly, low political intellectual ability, undermine the entire system to the point he literally caused five people to die because he did not accept the result of an election. He used social media and all the other things to stir it up by saying, “I won this election.” He clearly did not, but most polling shows that a whole swathe of voters in America think that he did, which again undermines democracy.

We still have some way to go to make sure we have the ability to dissolve a failing Parliament and go back to the people. It comes back to the point, which I have used in many a speech, of trusting the people. There have been comments today about how a Government could perhaps abuse a Bill, how we might not recall Parliament, how we could choose the date of the election or how we could delay and do all these things. I promise that the public would give us a right kicking if we did that.

One of the reasons the 2017 general election was, frankly, a disaster for my party was that we were looking to cash in. The people thought, “You are just trying to take advantage of the situation. You don’t actually need to have this election,” and we were punished for it. The public are not stupid; they recognise what goes on, and they have their own concerns. Ultimately, they give their verdict on us at the ballot box. Leading up to the December 2019 general election, the public thought that things had to change. It was noticeable that, whether people were remainers or leavers, they just wanted the situation resolved, which is why the result was the way it was.

I do not think what went on over the Prorogation helped the situation in any shape or form. Lord Roskill, in Council of Civil Service Unions v. Minister for the Civil Service 1985, stated that in his view prerogative powers were not susceptible to judicial review, yet that is pretty much exactly what happened, and it was applied retrospectively. There is precedent for longer Prorogations.

Again, it all added to the view—I do not want to use the word “establishment”, and the hon. Member for Rhondda (Chris Bryant) might once again advise me on better language—that the establishment was against the view of the people and was trying to thwart clear instructions that had been given. And we remained powerless in this place to do anything about it, which was the fundamental problem.

I have been in this place long enough to know that, going into Committee, it is unwise to take a fixed position on Second Reading. I am over the moon to see my hon. Friend the Minister back in the House today. She looks in fine health and it is a source of great joy to us all to see her back in her place. I know she will be listening to all the contributions being made, including from the hon. Member for Rhondda. I remember being a new MP, and he and I sparring over the Fixed-term Parliaments Bill and the issue of four years or five years.

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[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I am delighted to have the opportunity to make a contribution to the debate. I am sorry that the Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), has just left the Chamber. I would just place on record—and I hope she will see it at some point on her return—that for me, as for so many others in this debate, it is a matter of genuine delight and joy to see her back in the House. Contrary to what we might read in some parts of the press, a lot of Members of Parliament are held in respect, but the hon. Lady is someone who is held not just in respect but in affection. The manner in which she has tackled her illness has been an inspiration to many, and we are delighted to see her back.

Madam Deputy Speaker, I hope that you will indulge me for a minute or two while I pick over some of the history of this matter and of the Fixed-term Parliaments Act. I am not quite the last man standing from that period, but I am one of the last few. It is often said that history is written by the victors. Well, not even my sense of hyperbole would allow me to describe the Liberal Democrats as the victors in that episode in our political history, but I think it is important that we put a few matters on record.

The Chancellor of the Duchy of Lancaster, in opening the debate, said that the Fixed-term Parliaments Act was a “child of its time”. I openly accept that, at the start of the quite remarkable political adventure that was the coalition Government, the necessary trust that people might have had in a single-party Government was not there and, yes, the Fixed-term Parliaments Act was a necessary safeguard for both parties to ensure that the Government would last the whole term. Remember what it was like at the start of that Government. All the commentators and all the clever people said, “This won’t last a month” and then, “It’ll not last two months”. They said that that Government would not last three months, then six months and then that they would not last a year. And then, eventually, it was accepted that that Government were going to last the whole term, as indeed they did.

The coalition Government did a lot of things that were very necessary in the interests of economic rebuilding after the crash of 2008, and it was necessary that we had five years of stability to be able to take those decisions.

[Alec Shelbrooke]

I agree with the point that the right hon. Gentleman agree has just made. He will recall that, just before the 2010 general election, the then Governor of the Bank of England, Mervyn King, said that whoever ran the next Government would be out of power for a generation because of the decisions they would have to make. Actually, we were able to bring that stability to the coalition, and one of the reasons that I happily backed the Fixed-term Parliaments Act then was to bring that stability. The public saw that there were two parties from different political spheres willing to do what needed to be done. I know that the right hon. Gentleman and I are on different sides of the coin when it comes to repealing that Act, but it is important to say why we both agreed on the importance of the Act at that time.

[Mr Carmichael]

I often say that the spending decisions that were taken—although, when they were implemented, they were actually the same as the ones that Alistair Darling had put in his last Budget in March 2010—were not taken on a whim; they were taken on the advice of the Governor of the Bank of England, and when that advice is given, any responsible politician or parliamentarian should listen to it.

I fully acknowledge what the Chancellor of the Duchy of Lancaster said about that Act being a “child of its time”, but it was more than that. As I think the hon. Member for Rhondda (Chris Bryant) said, the fixing of the parliamentary term was in Labour’s 2010 manifesto, and the regulation of and accountability over the exercise of the royal prerogative was in the Conservatives’ 2010 manifesto. For my party, it had been a long-standing policy. We saw it as a necessary modernisation, and the logical conclusion of getting rid of it in the way in which the Government seek to do through this Bill would mean that we were risking taking significant steps backwards in terms of constitutional integrity and electoral law. I shall return to that point.

[Anthony Mangnall]

I am sorry to interrupt the right hon. Gentleman, but the last line of clause 2(1) reads

“as if the Fixed-term Parliaments Act 2011 had never been enacted.”

The emphasis of those words means that we are going back to a point where that Act had never been enacted. Is that not the point—that we are going back to how it was, not trying to make changes going forward?

[Mr Carmichael]

The point is that, as I said, it was a necessary modernisation; we are undoing something that, 10 or 11 years ago, was a necessary modernisation.

The Chancellor of the Duchy of Lancaster spoke about the Ted Heath Government in the 1970s. The world was a very different place in the 1970s. I suspect that the hon. Member for Totnes (Anthony Mangnall) is not old enough to remember it. I should place on record that, notwithstanding the imminence of my 56th birthday, I only have a child’s recollection of that time. However, the conduct of elections was very different, and, of course, the general elections in the 1970s were to the only Parliament that people could be elected.

We now have a very different situation. We have a Parliament in Edinburgh, a Senedd in Wales and an Assembly in Northern Ireland, and they operate on fixed terms. Indeed, the Scottish Parliament—as my hon. Friend the Member for Edinburgh West (Christine Jardine) reminded me earlier—changed its terms in order to keep its elections in lockstep with, albeit at a different time from, the elections to this place. There was also the very different way in which campaigns were financed then.

One of the most significant and concerning aspects of the Bill is that everybody is in the same position as far as the short regulated period for expenditure is concerned, but when we do not know how long the Parliament will be and when the general election will come, the setting of the start of the long period is effectively done retrospectively. We can be caught for expenditure that we did not know we would be caught for, or, as is more likely to be the case, we can ladle money in, because every political campaigner will say that early money is what buys results. To my mind, that is one of the reasons why the Fixed-term Parliaments Act was a necessary modernisation in 2011. To take it away now actually risks a more substantial unbalancing of the playing field than anybody from the Treasury has thus far acknowledged.

I say gently to right hon. and hon. Members on the Government Benches that it might seem like a good idea today, while they are in government, but that will not last forever. The first election in which I actively campaigned was in 1983, when we all said that the Labour party was finished and there would never be another Labour Government. Then, in 1997, we said exactly the opposite: that the Conservatives would never again be in government. Yes, they have the whip hand today, but the day will come when they are sitting on the Opposition Benches, and they should consider how they will feel if the Government of the day treat them and their access to the playing field in this way.

[Anthony Mangnall]

I am sorry to inform the hon. Gentleman that I still was not born in 1983. If we do not know when an election is coming—I think this goes to the point made by the hon. Member for Midlothian (Owen Thompson)—we will find ourselves campaigning more regularly. There is a better form of direct democracy, because we are all required to be out there canvassing all the time. That has its advantages, in the sense of the engagement that we have with our constituents.

[Mr Carmichael]

Let me just say that the pattern of campaigning across the constituencies represented in this House is far from uniform. I spent a significant amount of time in Chesham and Amersham not that long ago, for reasons that will be understood. I was a great admirer of the late Cheryl Gillan—she was another one for whom I held not just respect, but affection—but it was apparent that the Conservatives’ campaigning machine in that constituency had perhaps been left in the garage for a few years longer than was necessarily helpful. If what we are about is engaging the electorate on an ongoing basis, I am all for that. Indeed, I suggest to the hon. Gentleman that the best way to achieve that would be by getting rid of the notion of safe seats, which is a product of the first-past-the-post system, so I will look to enlist his support the next time my party brings forward proposals for introducing proportional representation.

I can see that your smile is becoming increasingly indulgent, Madam Deputy Speaker, so I will not carry on down this route for too long, but it is surely an important principle that we should never hand to one of the runners the starting pistol that will start the race. Whatever view people take of the Fixed-term Parliaments Act, the principle that Parliament should be in control of its own timetable and election is surely something that all those who fought so hard to bring back control to Parliament would have found an easy sell.

There has been some talk about the Lascelles principles. My concern about the exclusion of any decision to dissolve Parliament from justiciability, as we find in clause 3, is that the debate is essentially about constitutional theory. If the Prime Minister were to go to the Queen and ask for a Dissolution and she were to refuse him, I suspect that, given the standing that the Queen has in the public’s affection, it is probably a constitutional crisis that we and the monarchy could survive. I cannot honestly imagine it ever happening, but given everything else that has happened in this country over the past six years, we should perhaps try to legislate not just for those things that we can imagine happening. The day may come when we have a different monarch—well, the day will come—and perhaps that monarch will need time to establish their standing in the way that Her Majesty has been able to do. For that future monarch, the temptation may be not to risk the instability.

Essentially, my concern—this is what the Lascelles principles were designed to avoid—is that the Bill as currently constituted risks bringing the monarchy into active partisan party politics. That is something we should countenance only with the very greatest of caution and the most careful consideration.

[Jackie Doyle-Price]

The truth of the matter is that our constitution does behave in a very dignified way. We know that Prime Ministers’ audiences with the monarch are, most of the time, entirely confidential—other than when Prime Ministers choose to leak them. I think we can trust Her Majesty never to utter what has been said to her in the confines of her study on those occasions. On that basis, can we actually be sure that those discussions have never taken place?

[Mr Carmichael]

No, we cannot. That is the self-evident answer to that question. I am fairly confident that conversations will be had by, as it were, the support teams on either side on a highly theoretical and hypothetical question, such as, “Well, in the event that this were to happen…” Indeed, that was why Lascelles wrote his letter to The Times in the first place—to give a bit of necessary transparency and certainty to the whole process, which in truth, because it is rooted in convention, has neither transparency nor certainty.

Ultimately, what we show here is that the insistence on continuing with an unwritten constitution becomes more and more difficult with every year that passes. Ultimately, that is something we will have to recognise. It will be the mother and father of all tasks to get the necessary consensus to codify it, but in an age when all the constitutional changes that we have had in the past few decades are there competing with the sovereignty of this House within Parliament in particular, it is in everybody’s interests that we should find the moment to do that. This is not the moment, for the avoidance of doubt. I think Parliament would need some time to be clear of its current concerns before we could undertake that.

Finally, I want to say a few words about the conduct of the 2017-19 Parliament. It is a shame that the hon. Member for Hazel Grove (Mr Wragg) is no longer in his place, because he outlined all the various actors in these dramas and how some might be seen to have executed their obligations better than others, but it is inevitably the case that where we have a system that relies on checks and balances, every time somebody takes out a check, somewhere else we have to adjust the balance. That is why although I felt exceptionally uneasy about the way former Speaker Bercow made some of his decisions, I thought they were necessary because the Government were getting close to abusing the substantial amounts of power that an unwritten constitution based on convention gave them. That is why instead of relying on nods and winks, and checks and balances, it is better that we should write it all down, as then everyone would know where they stood.

I do not think there is any hyperbole here, and it is overstating the case somewhat to suggest that the political turmoil of the 2017-2019 Parliament was a consequence of the term of Parliament having been fixed in 2017; there were lots of political reasons for that, most of them to do with the internal splits and divisions in the Conservatives, as the minority governing party after 2017. The fact that they had a minority set the political tone of that whole Government. Somebody said earlier that the election was far too late by November 2019. When would have been the right time? Perhaps it was when the Prime Minister became Prime Minister in July of that year, but I do not remember him having any great appetite for having an election at that point.

The truth of the matter is that we eventually had an election in 2019, at probably the worst time of year to be campaigning in Orkney and Shetland—we are never going through that again. That election required the Government of the day to work with the Opposition, with us and with the Scottish nationalists, and that is how it should be. That is effectively how the Fixed-term Parliaments Act did its job, when the Government eventually allowed it to do so. That is why I deeply regret this Government’s decision to repeal it, and why my party will be opposing them in the Lobby this evening.

[Madam Deputy Speaker (Dame Rosie Winterton)]

We now have nine more speakers, which means that, allowing for the wind-ups, we need speeches to be just under 10 minutes. No. 11 on the list has withdrawn, so we will go straight to Christine Jardine.

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[The Minister for the Constitution and Devolution (Chloe Smith)]

Thank you very much indeed, Mr Deputy Speaker, and I thank all the very many friends across the House who have said such nice things to me today. It makes me blush but it makes me pleased and happy to rejoin you in person and to be able to lead the closing of the debate on this very important Bill.

I thank everybody who has spoken, including well-known sparring partners on the Opposition Front Benches, with a new one joining from the SNP, so I look forward to many a time speaking on constitutional matters with the hon. Member for Midlothian (Owen Thompson). I thank the Chairman of the Select Committee, my hon. Friend the Member for Hazel Grove (Mr Wragg), who is nearly in his place, and the members of the Joint Committee who have spoken, as well as many other colleagues from across the House.

I will cover as many of the specific points that have been made as I can, but let me start by outlining how today’s debate has underlined how our former and fundamental constitutional arrangements work, with the flexibility that is essential to our parliamentary democracy. The Bill restores that constitutional balance. How do we restore the former arrangements? With reference to the comments by the hon. Member for Argyll and Bute (Brendan O’Hara), it is very important to be clear about how the Bill does this puzzle of reviving the prerogative power. There are two aspects: whether it can be revived, and, critically and importantly, the practical effect of doing so. I will cover both very briefly.

Our view is that the prerogative power can be revived but that express provision is needed, and clause 2 does exactly that. It delivers on its intended purpose to firmly reset the clock with as much clarity as possible. In preparing the Bill, we engaged with a wide range of stakeholders, including many academics, some of whom have been quoted but many more of whom also agreed with the Government’s approach, including Professor Mark Elliott. The drafting is therefore sufficiently clear, as the Joint Committee agreed.

Moving on to the practical effect, a former First Parliamentary Counsel also agrees with the Government’s approach, talking about this question almost as

“a red herring…because…it is perfectly plain that the intention of the Act is to restore the situation to what it was before…and therefore the law will then be indistinguishable”.

Let me turn from that into how this power works and what is being restored. Here we talk about the role of the sovereign. I note that the shadow Minister, the hon. Member for Lancaster and Fleetwood (Cat Smith) was, if I heard her correctly, arguing or concerned that it perhaps was not clear what the role of the sovereign might be in the returning system. Indeed, I think the hon. Member for Midlothian made the same point. I want to be absolutely clear: there remains a role for the sovereign in exceptional circumstances to refuse a Dissolution request. I am not going to be able to speculate on that from the Dispatch Box. It would not be sensible for me to do so, but other Members of this House have already offered some examples this afternoon, such as, for example, if an Opposition already had the numbers to be able to form a Government and could demonstrate confidence and viability. That point was made by the hon. Member for Rhondda (Chris Bryant). Unfortunately he is not here to enjoy me joining him in making it.

Turning to how the conventions endure, I thank the Chairman of the Public Administration and Constitutional Affairs Committee, my hon. Friend the Member for Hazel Grove for bringing that point out very well. I also thank Joint Committee members, such as my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill), who reminded us of the Lascelles principles. What I will say here is just a point about how we see the principles that accompany the prerogative power—the convention principles, or the Dissolution principles, as we named them in a document that we published alongside the Bill—going forward. That document was published to facilitate Parliament’s discussion and consideration of these very important accompanying points. We also provided a very full response to the Joint Committee, which was a further opportunity to go further in outlining the conventions as commonly understood.

I think the place for further discussion and debate on these conventions is here in Parliament—in this Chamber and the other. That will provide us with a shared understanding and the commanding of confidence— I should say “agreement”; “confidence” risks being misunderstood in the context of our debate this afternoon. It will provide us with the commanding of agreement on what provides conventions, and therefore those conventions may be able to endure.

Let me go from there to what we intend to restore and some elements that we are maintaining, although the grander scheme here is to return to a former set of arrangements. The purpose of the Bill, as I say, is to restore the long-standing arrangements that existed before the 2011 Act, but there are some exceptions, and those are where changes had already been made to enable the smooth running of elections. That brings me to, for example, the retaining of the 25 working day period between Dissolution and polling day. That ensures the continued operability of our electoral system, and I will just dwell on that for a few minutes, because a number of hon. and right hon. Members raised it.

There are three points to be made, and each is about the benefit for voters, which is a point that rang out loud and clear—that we should have such arrangements for the benefit of voters, not administrators or, indeed, politicians. The first point is that the timetable as it stands gives enough time for nominations to be received—six days—and then 19 days for those nominations to be decided upon. Let us remember that in our constitution we have a constituency-based decision going on each time. Any voter in any constituency rightly needs time to consider and decide upon the candidates in the constituency once nominated.

The second point is how much change has occurred in electoral delivery since the arrangements that we are otherwise seeking to restore were created. That is to say that the system of delivering elections is more complex than at any other point in our history. First, before 2014, there was no online individual electoral registration. That is a point of fundamental change that has enabled increasingly higher numbers of last-minute applications. That is of benefit to voters, and I would argue very strongly so. Secondly, postal voting on demand was only allowed in 2000. Again, that is the subject of debate, but I would argue that it is very strongly of benefit to voters.

My third and final point is that, in the written evidence to the Joint Committee, the Association of Electoral Administrators argued strongly that

“it would be catastrophic for everyone involved…if the… period were to be shortened…It would create a significant risk of the election failing and not being delivered and increase the risk of disenfranchising potential electors, particularly those voting from overseas.”

Fundamentally, that is a point that we should be concerned about, and it is a point in favour of the benefit to voters.

Let me move on to acknowledge what it is that we are leaving behind if we are moving to restore a different system. At this point, I acknowledge the words of the right hon. Member for Orkney and Shetland (Mr Carmichael) and thank him again for his kind words to me. Fundamentally, his argument here is one for statute and one for qualification, and, fundamentally, my argument is not. We will have to agree to differ on that, and we will do so in the Lobby tonight. What we mean by moving away from a statutory system is that we do not think that it is possible to define everything. All the scenarios that could occur at the point at which a Dissolution might be needed could not possibly be codified, so statute is not adequate in this case. What we do think, though, is that there is a very important role for the House of Commons, and I want to make this point because it came up in several hon. Members’ remarks.

There is, of course, a crucial voting role for the House of Commons in indicating confidence in the Government, or the opposite of it. That is no small role at all. To swap a statutorily defined role for the House of Commons for that role is no small swap. Fundamentally, of course, having confidence is what defines the Government. There could be no more powerful role for the House of Commons in our constitution.

That takes us to the point of certainty that my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) very wisely made. The certainty comes because the people will know that they then have their role. If it has not been possible to find confidence in the House of Commons in the formation of a Government, then the power flows to the people, and that is a certain understanding of what will happen.

[Mr Carmichael]

Will the hon. Lady give way?

[Chloe Smith]

I do not have a great deal of time, but I will give way briefly.

[Mr Carmichael]

On this point of certainty, surely all parties are entitled to certainty about the date on which the long period for electoral expenses starts to run. Under the current arrangements from the Government, only the governing party will have that certainty. Is that fair?

[Chloe Smith]

I am extremely glad that the right hon. Gentleman has made that point. I was going to address it in just a moment, because he raised it at the very outset, so I will come back to it shortly.

Let us be realistic. What is the prerogative power here for? It is a bit more like “break glass in case of emergency” than it is the kind of scheme that I think the Liberal Democrats are looking for. I think we can all agree that people do not welcome needless upheaval—Brenda from Bristol put it pretty well—but they do want their role in resolving a crisis. Vernon Bogdanor, in evidence to Committees along the journey of this Bill, made the point very well. Essentially, unsuccessful Governments have attempted to get to five years. Successful Governments have gone to the people at four years. Anything short of that is a national emergency. What we are talking about today is what needs to happen in the cases of emergency or crisis. I note the arguments made for fixed terms, particularly by the hon. Member for Edinburgh West (Christine Jardine), but we have tried designing those and they have not worked, so what we are returning to here is an arrangement that did work.

I want to reassure the House on a couple of points, as I said I would to the right hon. Member for Orkney and Shetland. The long campaign expenditure controls are not changed by this repeal. Those arrangements are that if Parliament is not dissolved 55 months from its first meeting, then the long campaign controls apply. That situation continues. That has not changed. I also point out that there is a measure in the schedule to this Bill that adds to that in respect of third party donations. The schedule also provides that the trigger for the election timetable in the case of a general election is the Dissolution of Parliament. That is an important safeguard that we have built into the Bill, acknowledging arguments made on that note from the Joint Committee.

I conclude by thanking hon. Members once again for their contributions this afternoon. It has been a very good debate, and I am delighted to be back and to be part of it. My priority with this Bill is to encourage consensus, because that is what will give us the most effective operation of the conventions that must endure once again.

I close with the points made by the Public Administration and Constitutional Affairs Committee on the nature of our constitution:

“at the heart of the UK’s constitutional arrangements is a fine but constantly-shifting balance of convention, principle and law, that provides clear guidance, but also flexibility… In areas of prerogative power, the Sovereign remains the constitutional backstop.”

I could not have put it better. None the less, the hon. Member for Strangford (Jim Shannon), in his inimitable style, did put it better. He said that our institutions are often the envy of the world, and I could not agree more. It is those that I want to uphold. This Bill will return our country to successful constitutional arrangements that have stood the test of time and will continue to serve the people, with the choice ultimately in their hands.

Dissolution and Calling of Parliament Bill

Alistair Carmichael Excerpts

Committee stage & 3rd reading
Monday 13th September 2021 Commons Chamber

[Chloe Smith]

Yes, that is right. I am grateful to my hon. Friend and to all hon. and right hon. Members who served on the Joint Committee and spent a considerable amount of time looking at these issues. That is the kind of consideration that we ought to give to our constitutional affairs rather than taking them in a hurry—a point that I was making earlier. Let me acknowledge my hon. Friend’s point and thank him and others for the work that they did.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

On clause 3, may I take the Minister back to the inclusion of the word “purported” and, in particular, draw her attention to paragraph 166 and the comments of Baroness Hale in relation to the Joint Committee report? She says that

“it looks as if it is saying, “Well, even if what we did”—

that is what the Government did—

“was not within the power that you have been given by the statute, the courts can’t do anything about it.”

She goes on to say:

“If that is the case, the courts would be very worried about that, because it would mean that the Government—the Prime Minister—had done something that was, at least arguably, not within its powers.”

There is some force and logic in the argument of Lady Hale, is there not?

[Chloe Smith]

This is a good opportunity for me to be absolutely clear about the reference to the word “purported” in this clause. This has been included to take account of previous judicial decisions—in particular the cases of Anisminic Ltd v. the Foreign Compensation Commission 1969, and Privacy International v. the Investigatory Powers Tribunal 2019. In the latter, the expectation was expressed that the drafting legislation would have regard to the case law and ensure that the drafting made it clear if “purported” decisions—that is decisions that would be considered by a court to be invalid—were intended to be outside the jurisdiction of the courts. What clause 3 does is present an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts. It is the Government’s position and presentation that they ought to be, and I hope that hon. Members will join me in that.

[Mr Carmichael]

In the interests of clarity, is the Minister telling the House that the Government are asking Parliament to give them the power to do things that exceed the powers given to them and that nobody should be able to gainsay them?

[Chloe Smith]

I am proposing that the House understands the use of the phrase “purported”, which, clearly, the right hon. Gentleman does—I have no dispute with him on that point—and that hon. Members join us in acknowledging that it is right to be aware of the case law and to respond to it. The decision in front of us is whether purported decisions relating to this area should or should not be included in clause 3. It is our contention that they should be, because we believe that the entire area of dissolution and the calling of Parliament is intended to be outside the jurisdiction of the courts. That is a perfectly legitimate question to put to Parliament. It is for us here in this Chamber to decide on that, and the reason for doing so would be that we think that such decisions are political rather that judicial in their nature. Fundamentally, the check on the exercise of power is for the electorate to decide on rather than the courts. Therefore, as I have said, the function of clause 3 is to set that out very clearly. I will now move on to clause 4, which deals with five-year maximum terms.

The purpose here is to ensure that a Parliament lasts no longer than five years. We do that by providing that Parliament will automatically dissolve five years after it has first met. In doing so, the clause returns us to the general position before the Fixed-term Parliaments Bill was enacted. We are confident that five years is the appropriate length for the maximum parliamentary term. Our Parliaments have seldom lasted a full five years, and, in practice, they have often been dissolved sooner. In fact, we can see that parliamentary terms have very often developed their own rhythm. For example, from the history books, we can see that 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 out of political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis.