Dissolution and Calling of Parliament Bill (Instruction)

Debate between Alistair Carmichael and Chloe Smith

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.

Dissolution and Calling of Parliament Bill

Debate between Alistair Carmichael and Chloe Smith

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.

Elections Bill

Debate between Alistair Carmichael and Chloe Smith

2nd reading
Tuesday 7th September 2021 Commons Chamber

[Chloe Smith]

I am delighted that the hon. Gentleman is getting into the detail of what is actually being proposed, which is excellent. He makes the important point that schedule 1 has a widespread and broad-based list of identification. In fact, 98% of the population hold those forms of ID.

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

These proposals were trialled in 2019, and during that trial 2,000 people were turned away for not having the correct form of identification. Of those 2,000, 700 did not return to vote. Whether it is voter suppression is a question of semantics, but it is hardly encouragement, is it?

[Chloe Smith]

Under this Bill, as is clear in the impact assessment and the associated documents, there will be a widespread public communication campaign to ensure awareness so that people know what to bring with them to the polling station, which is only right. That is exactly what we would expect, because we want people to be able to take part in our elections.

--- Later in debate ---

[Chloe Smith]

I am grateful that the hon. Gentleman has raised that point, because there are two things to be said. The first, which I shall come to shortly in my remarks, is about how we are updating the franchise to reflect the position of EU citizens. The other important thing, which is worth making clear at this juncture, is that parts of the devolution settlements apply to electoral policy and so it is important to be clear that in this Bill we are looking at measures that will apply UK-wide—a full analysis is available, of course, in the Bill documents. That means we will have consistency at parliamentary elections, but a natural consequence of devolution is that there may be differences at other levels. I think we would both accept that and seek to work to make those arrangements a success for voters who may experience both sets of arrangements and for the hard-working election staff who may administer both sets.

As I have completed my remarks on overseas electors, I shall carry on moving through the Bill. At this point, I wish to address the Liberal Democrats’ reasoned amendment. It may come as little surprise that, regrettably, they take two opposite positions in one amendment: on the one hand they would like British citizens to participate more—indeed, that was their manifesto position—and on the other hand they do not. The official policy of the Liberal Democrats is to support votes for life, and the policy paper that they published in July 2019 said:

“There is no reason why”

expats

“should be treated any differently to those who continue to live in the UK.”

I agree. The Bill puts in place tougher measures against foreign interference and foreign money, but overseas British citizens are just that—British—and are therefore able both to vote and to donate. There is a long-standing principle, originally recommended by the Committee on Standards in Public Life in 1998, that permissible donors are those on the UK electoral register.

[Mr Carmichael]

The Minister references the Committee on Standards in Public Life; why has she not included in the Bill any of the Committee’s recommendations on campaign finance?

[Chloe Smith]

I shall come to campaign finance shortly, but is that all the right hon. Gentleman has to say on overseas voters?

Let me turn to the voting rights of EU citizens, an important subject that has been asked about. Part 2 of the Bill updates the voting and candidacy rights of EU citizens who reside in the UK and moves to a more reciprocal model that fits our new arrangements. We stand by our commitments to those EU citizens who were resident here before our exit from the EU, so any EU citizen who was a resident before the end of the transition period on 31 December 2020 and has legal immigration status will retain their voting and candidacy rights. That goes beyond our obligations under the withdrawal agreement. For EU citizens who have moved to the UK following our EU exit, local voting and candidacy rights will be granted on the basis of bilateral agreements with the individual EU member states that will reciprocate arrangements for British citizens who live there.

We all want to make progress this afternoon, so let me move on as fast I can through the rest of the Bill. I have set out the ways in which the Bill will bolster the security of our elections; let me move on to the enforcement of electoral law. A critical part of our electoral system is and must continue to be effective, independent regulation, and the Electoral Commission has a vital role to play. Lord Pickles found that the

“current system of oversight of the Electoral Commission—by the Speaker’s Committee on the Electoral Commission—does not provide an effective third-party check on its performance”,

so we think it is right for Parliament to have an increased role. The Bill will introduce a strategy and policy statement that will provide guidance to which the commission will have to have regard in the discharge of its functions. It will be subject to statutory consultation, parliamentary approval and regular review.

We will also improve the parliamentary structures that hold the regulator to account. The Speaker’s Committee on the Electoral Commission currently has a limited remit; the Bill will therefore give it the additional power to examine the commission’s compliance with its duty to have regard to the strategy and policy statement. That will allow Parliament to better scrutinise the work of the commission. Together, the reforms will facilitate parliamentary scrutiny of the Electoral Commission’s work while respecting its independence.

It is a shame that Her Majesty’s Opposition’s reasoned amendment misrepresents scrutiny by Parliament and misunderstands—or again wilfully misrepresents the fact—that the commission remains governed, in law, by its commissioners. We are also clarifying that the Electoral Commission should not bring prosecutions, and that prosecutions should remain with the existing prosecution authorities.

Let me move on to political finance, which right hon. and hon. Members have mentioned. We already have a comprehensive regulatory framework for campaigning that is rooted in the principles of fairness, transparency and the importance of a level playing field. We want to ensure that our electoral law continues to uphold those principles, which is why part 4 of the Bill will update and strengthen our political finance laws to restrict all third-party spending to UK-based entities and eligible overseas electors; to increase transparency around third-party campaigning at elections and the registration of new political parties; and to prohibit parties and campaigners from unfairly expanding their spending limits. The Bill will ensure that campaign spending can come only from sources that have a genuine and legitimate interest in UK elections, by restricting all third-party spending to UK-based entities and registered overseas electors, above a £700 minimum threshold.

On the regulation of third-party campaigners, it is right that those who campaign at elections and seek to influence voters are subject to transparency requirements and rules that maintain a level playing field. Those principles already apply. The Bill seeks to balance the burden of regulation, relative to the level of campaign spending, with the importance of a thriving and diverse public debate.

The Bill will not change the definition of what constitutes controlled expenditure for a third-party campaigner. The Electoral Commission already provides guidance, developed with third-party groups, on what constitutes such expenditure. To ensure that any other legitimate categories of third party that may emerge in future are not significantly restricted in their ability to campaign, a power will be given to the Secretary of State to amend the list of legal entities eligible to register as campaigners under section 88(2) of the Political Parties, Elections and Referendums Act 2000. Any change to that list made via a statutory instrument will be subject to the affirmative procedure and therefore subject to parliamentary scrutiny in both Houses. The Opposition amendment is simply wrong: the last time I checked, democratic parliamentary procedure on an SI is not “unilateral” change by a Secretary of State.

Dissolution and Calling of Parliament Bill

Debate between Alistair Carmichael and Chloe Smith

2nd reading
Tuesday 6th July 2021 Commons Chamber

[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.