Dissolution and Calling of Parliament Bill (Instruction)

Alistair Carmichael Excerpts

Monday 13th September 2021 Commons Chamber

[Chloe Smith]

How wonderful to be pre-empted on a core remark that I was going to make anyway. What I ought to say first, however, is that while there is some similarity between the concepts of Prorogation and Dissolution—as the Clerks have observed in calling them “cognate matters”—in that they are both prerogative acts affecting the sitting of Parliament, they are, beyond that, quite distinct. Dissolution is the end of a Parliament before a general election, providing an opportunity for the electorate to exercise its judgment on the Government of the day. Prorogation is simply the formal ending of a parliamentary Session. The Public Administration and Constitutional Affairs Committee wrote to me recently saying that there was

“no read across from prorogation and dissolution”,

and I agree with that.

The Fixed-term Parliaments Act 2011 expressly did not affect the prerogative power to prorogue Parliament. Our Bill to repeal that Act, which is what we are considering today in Committee, therefore does not touch on matters of Prorogation. To do that would significantly widen the scope of the Bill beyond the manifesto commitments of this side of the House and those of the other side of the House, who were clear in their manifesto that they wished to repeal the Fixed-term Parliaments Act. It would even go beyond the short title of this Bill. Therefore, it is inappropriate to put such measures in the Bill.

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

I am grateful to the Minister for giving way, but it is not wholly accurate to say that the Bill does not relate to Prorogation. If she has regard to clause 3 and its inclusion of the words “or purported” in relation to the exercise of prerogative powers, she will be aware that there are some who feel that that raises the question of justiciability in relation to the Miller and Cherry cases. Is that not in fact an instance where the Bill does touch on Prorogation?

[Chloe Smith]

I thank the right hon. Gentleman for that thoughtful point, but I think he is incorrect. In my view, clause 3 does not do that. The intention of the clause is much more specifically related to Dissolution decisions, and it is my entire argument here from the Dispatch Box that we are dealing today with Dissolution, not with Prorogation, and that the two should be kept quite separate.

[Mr Carmichael]

That being the case, why do the Government’s own explanatory notes on the Bill refer to the Miller and Cherry cases?

[Chloe Smith]

Because clause 3 is careful, as the explanatory notes set out, to absorb recent case law, as I am sure the right hon. Gentleman would want us to do. I know that the hon. Member for Rhondda thinks that that is important, because he has given us a tour de force of the history in this area. The point still stands, none the less, that clause 3 is about Dissolution, having had regard to relevant case law. That does not make it about Prorogation, as much as the right hon. Member for Orkney and Shetland (Mr Carmichael) might wish it to. It is not about Prorogation.

I ought to take this moment to reflect on what we are actually voting on today. The hon. Member for Rhondda has suggested that there might almost be a trap here. I hesitate to suggest that he is laying a trap for Government Members to vote on. That would hardly be in his character, I am sure. However, a few suggestions have been made in the Chamber this afternoon that, if Government Members were to vote against his motion right here, right now, we would be saying that Prorogation was in fact justiciable. I think I can answer that one fairly clearly in saying that we are voting on an instruction to this Committee here today that we should have leave to make provision relating to the Prorogation of Parliament. I am really doing nothing more there than reading from the Order Paper, so we can be quite clear what today’s vote consists of.

--- Later in debate ---

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

I will not detain the House for long but, because I was not able to intervene latterly on the Minister’s speech, I wish to put on record that the motion of the hon. Member for Rhondda (Chris Bryant) is required to be passed for this House to debate this matter today. In the event that the Bill gets its Third Reading, it will go to the other place, where very different rules apply. In the other place, it is required only that the House should determine that the matter is in scope, whether or not the ex facie scope is achieved.

Essentially that means that, when the Bill goes to the other place, the unelected Chamber will be able to debate this matter. It is surely perverse that the Government should deny the elected Chamber the same opportunity.