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.