Dissolution and Calling of Parliament Bill

Anthony Mangnall Excerpts

2nd reading
Tuesday 6th July 2021 Commons Chamber

[Cat Smith]

I find it difficult to disagree with my hon. Friend. Indeed, the points that he has made, not just in that intervention but in earlier interventions on the Minister, have raised some important questions that I hope the House will consider. I am grateful that the Bill will be considered in Committee of the whole House and that we will have the advantage of my hon. Friend’s insights at that stage, as well as his contribution in the Joint Committee.

There is no way that this legislation would be before us this afternoon if it did not provide an electoral advantage. When Governments decide when elections happen, there is absolutely no doubt that it can be played to their advantage. As has already been made clear, the Government can call an election before bad news is about to be delivered, or if they feel that their Opposition are in disarray. Professor Petra Schleiter from Oxford University did a comparative study of 27 western and European democracies and found that when governing parties had the power to control when elections happened, they gained, on average, a 5% electoral advantage. Those of us who live and breathe politics will understand that that is the difference between forming a Government and falling out of government. That is why I would argue that it is anti-democratic to allows all the power to lie in the hands of one individual.

[Anthony Mangnall (Totnes) (Con)]

I am sorry to interrupt the hon. Lady, but that argument is somewhat of a straw house of an argument, because that could still be used at the end of a five-year parliamentary term if the Government stacked their legislative programme to be so in the interests of their constituent base that they would win anyway. So I am not entirely sure that her argument holds water, because either way, the Government of the day, whatever their colour, are able to do whatever they want in legislative terms that is most beneficial to their constituents.

[Cat Smith]

I suppose the difference is that when there is a five-year Parliament and all the parties know when the election is happening, there is a level playing field, unlike when a Government can call a general election unexpectedly if the advantage lies entirely with the governing party and not with any of the Opposition parties. The Bill therefore skews power towards the Executive and towards incumbent governing parties. It also gives Prime Ministers the power to haggle with Parliament by threatening early Dissolution and early elections. I would also argue that the Fixed-term Parliaments Act—although it is flawed and I certainly support its repeal—puts us more in line with other democracies that constrain the power of Prime Ministers.

Turning to the monarch and the attempt to restore the royal prerogative with legislation, if the Crown is left as the only check on untimely requests for Dissolution, that would inevitably draw the Crown into controversy if such requests were refused. Perhaps the Minister will shed some light on that in her closing remarks, but I struggle to see the circumstances in which a sovereign might decline a request for an election. I would argue that the most effective way of avoiding such a constitutional crisis would be to leave decisions on Dissolution to Parliament, which is the right place for what is a quintessentially political decision. The House of Lords Constitution Committee said when it published its report on the Fixed-term Parliaments Act in September:

“Reform of the Fixed-term Parliaments Act must keep the Queen out of politics.”

I sincerely agree with that. The Government’s proposal that the monarch should be the only check on a questionable request for Dissolution inevitably risks dragging the monarch into politics. I argue that the easiest way out of such a situation would be a parliamentary vote on Dissolution, which would protect the monarch from being dragged into politics.

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[Brendan O’Hara]

That is another piece of absolute obfuscation by the Minister—a ridiculous piece of obfuscation—so I will return to what I was saying. No matter how intense the 2011 Act, this is not a sufficient reason to support this Bill, because what this Government are proposing is a stripping away of one more pillar of parliamentary or judicial oversight. It is not simply a return to the position we had in 2011.

Mark Elliott, professor of public law at Cambridge University, has said:

“The statement of principles accompanying the Bill appears to presume that the Queen will dissolve Parliament as a matter of course when the Prime Minister so requests, thus implying an intention, on the part of the Government, not to restore the pre-FTPA position but to usher in a regime under which its latitude is greater than before”.

As we have heard, prior to 2011 the monarch was able, in certain circumstances, to deny a Prime Minister’s request to dissolve Parliament and seek an early general election. Because of the weaknesses of having an unwritten constitution, the prerogative power of the monarch, exercised, as we have heard, through the Lascelles principles, was one that was never able to be enshrined in statute. The Lascelles principles asserted that the monarch could deny Dissolution in certain circumstances, including in relation to the viability of the Government, being detrimental to the national economy and being able to find another Prime Minister who could govern. If this Bill becomes statute, what becomes of the Lascelles principles and the monarch’s ability to deny a request for a Dissolution of Parliament? As I understand it, this place may be able to create statutory powers by enacting statutes, but it cannot create prerogative powers, which, by definition, derive from a source other than statute. So those prerogative powers that the monarch has to seek a Dissolution are not coming back, meaning that this Bill is little more than an attempt by the Executive to circumvent even the minimal gatekeeping function exercised in the Lascelles principles by the monarch and all the power will be concentrated in the hands of the Prime Minister. As Professor Elliott says

“the very legal uncertainty as to whether the prerogative can be revived means that it would be irresponsible simply to legislate to repeal the Act and try to revive the prerogative without being sure that you could.”

[Anthony Mangnall]

This is more of a clarification point. If the Lascelles principles are in place and the Government were to call a general election but an alternative grouping could come together to be able to create a Government, would that not allow the Queen to appoint a new Prime Minister, under the principles that were referenced by my hon. Friend the Member for Hazel Grove (Mr Wragg)?

[Brendan O’Hara]

As I understand it, and reading what Professor Elliott says, the Lascelles principles would go and therefore we are not returning to exactly the position we had prior to the introduction of the 2011 Act. The Lascelles principles, because they are royal prerogatives, are not part of statute and therefore there is nothing to say that they will remain. They will go, so all the power will be on the Prime Minister and when a Prime Minister requests a Dissolution and a general election, the monarch will have no power on which to refuse.

[Anthony Mangnall]

I thank the hon. Gentleman for being so patient with me on this, but on reading the Bill, I do not see where it will be rescinding or taking away the Lascelles principles.

[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.

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[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.

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[Christine Jardine]

I am afraid I beg to differ. For me and for many people I know, the instability was because the Government did not accept the reality of the situation we were in and act accordingly. We could spend the rest of the evening debating what the Government did between 2017 and 2019 but we would not change it.

The fact of the matter remains that we had a general election in 2019 and we are now discussing the Fixed-term Parliaments Act, which I believe offers this country the opportunity for the same sort of stability as we see in democracies around the world and within our own democracy. If the Fixed-term Parliaments Act is repealed, this place will be perhaps the only sphere of government—local, national or devolved—in the United Kingdom that does not have a fixed term. It is not just about those elected to this place; those who work for it and for the elected representatives do not have the certainty and security of knowing what the term of a Parliament will be. That is why, as I said, I believe that although the Fixed-term Parliaments Act was not perfect, it was, as my right hon. Friend the Member for Orkney and Shetland said, a necessary modernisation and a recognition that the way we had done things up to 2011 had to be changed. We had to come into the 21st century, with a fixed-term Parliament with the flexibility to have an election but the stability that the country not only needed at that time but needs right now because of covid-19.

What happened in 2010 was not something that will never happen again. The situation that the country faced—the crisis that needed stability—was not something that happens only once in history. It has happened before and it will happen again and, as I have said, it is happening now. What the people of this country need from us is the certainty and the stability of what their future will be. That is why they elected us. We should not need the threat of a general election to be out there talking to and engaging with our constituents and listening to what they say. If we do, then we have failed.

The hon. Member for Argyll and Bute (Brendan O’Hara) described this Bill as a power grab and, in that, I have to agree with him. It is taking power away from Parliament. It is taking power away from the Members of Parliament and, in doing so, from the elected representatives, and placing it in the hands of the Government and only the Government. It is making the timing of a general election the whim, potentially, of one person based on the scenario of the time. We have talked about lots of decisions about when general elections were and when they were not. In 1974, when, sadly, I was also alive—

[Anthony Mangnall]

I am sorry that I was not there to see the 1974 election. We talk a lot in this place about the precedent and the history of what has gone on before us, but actually there are not many examples, with the exception of 1974, of where early elections have been called, so this is not a precedent that has been abused. It has been done with careful consideration by the Government of the day to call an election, not always to their advantage.

[Christine Jardine]

I am conscious that I am running out of time. I accept that it has not always been abused. If we look at that thread, we will see something common in 1974 and 2017. If a party goes for a snap election, the country will not necessarily re-elect it, because the country did not necessarily want a snap election; it wanted stability. Therefore, I return to my original point that what we have with the Fixed-term Parliaments Act is the certainty and the stability that, perhaps not the Government, but the country demands. Therefore, I will be voting with my right hon. Friend the Member for Orkney and Shetland.

If I could take one more second, Madam Deputy Speaker, it would be to echo the thoughts of my right hon. Friend, now that the Minister for the Constitution and Devolution is back in her place, and say what a delight it is to have her here.

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[Anthony Mangnall (Totnes) (Con)]

It is always a pleasure to follow my hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell). May I start, as so many colleagues have done, by welcoming the Minister for the Constitution and Devolution, my hon. Friend the Member for Norwich North (Chloe Smith), back to her rightful place? It is wonderful to see her.

This has been a very entertaining, interesting and thought-provoking debate. As ever, it is good to see Parliament on form, with cross-party consensus on what needs to be achieved. There has been a great deal of thought and consideration about what further steps this House might take. I certainly know that my hon. Friend the Member for Thurrock (Jackie Doyle-Price) will be able to hold me up on anything I get wrong, as a constitutional geek, as I make my speech.

I want to agree with what my hon. Friend the Member for Newcastle-under-Lyme said. When the Fixed-term Parliaments Act 2011 came in, the idea that it was there for political expedience was perfectly obvious. It should have been introduced with a sunset clause, so that we did not have to endure it beyond 2015.

I want to make just a few remarks, because there is nothing new I can say at this point in the debate. In 1974, we saw one election in February and one in October. I am not able to remember either of them, but I am acutely aware of the fact that that is the exception. Governments take very seriously the idea of holding general elections. It is not a power to be abused. There is not a system where Governments think they can instantly call one and find the public on their side. It takes great consideration to be able to make that decision. We have to be clear about that. Many of the arguments that have been made by the Opposition seem to be confusing personality with the politics. That is not acceptable in this debate, because the reality is that it has not been done since 2010, apart from in 2017, and, I would argue, because of the FTPA. The hon. Member for Strangford (Jim Shannon) made the point that elections are won not at election time but in between elections. It is in our interests to make sure that we run as close to the full term of a Parliament and certainly history would suggest that that is what we have done.

The excellent report produced by the Joint Committee and the Public Administration and Constitutional Affairs Committee report suggests in the recommendations that any replacement for the Act should support a majority, a coalition or a minority Government. That could include confidence and supply. I think that is exactly what happens now. As far as I can understand it—I will take any interventions if I am getting this wrong—the Lascelles principles are there to allow the opportunity for the Opposition, or another grouping, to come forward with an alternative if they can supply the numbers in the House. The hon. Member for Argyll and Bute (Brendan O'Hara) was saying that the Lascelles principles no longer stand and that that convention is overwritten by the Bill. That is not true. That is not the case. The fact that the convention is unwritten means that the point for the sovereign still stands and that, if someone were to approach the sovereign with the alternative model, it would work.

[Jackie Doyle-Price]

My hon. Friend is articulating this very well. Again, it comes back to the fact that one of the biggest issues with the Fixed-term Parliament Act was the way it interfered with votes of no confidence. It had a very prescriptive set of rules that prevented the Lascelles principles from being implemented at that stage, but now that we are going back to the status quo, they will absolutely come back.

[Anthony Mangnall]

I was worried that my hon. Friend was going to tell me that I was wrong, but that was a delightful intervention and one I entirely agree with. I thank her for that point, because the wording of the Bill ensures that it will look as though the Fixed-term Parliaments Act had never been enacted. We are going back to the status quo before the Bill, rather than trying to change things forward, and it is important that that is understood.

Parliament should be flexible, agile and able to respond to the needs of the public, and by removing the Fixed-term Parliaments Act, we will go back to a stage in which we can respond to the issues of the day, and the concerns and problems that must be addressed. Governments should be held to account by the Opposition and by Back Benchers. They should fear votes of no confidence where necessary and be prepared for elections to be called, if required, because their legislative agenda cannot be pursued. After all, we are here because we set a legislative agenda that we need to see through. If we are unable to do that, it is only right and sensible that we either go back to the people or offer an alternative, and that is what the Bill will do.

As far as I can make out, the only benefit of the Fixed-term Parliaments Act was that it brought the Liberal Democrats into an embrace of death from which they have not recovered, five years on. However their recovery goes, that seems to be it. They did not learn from the 1920s and they have not learned from 2010-15. The Bill offers us the opportunity to reassure our constituents that we can be on their doorsteps 365 days of the year. We can make the case about knocking on their doors and ensuring that they have the democracy and the representation that they deserve.

The last point I would like to make is on clause 3, the ouster clause, which has been referenced by many in the House. It reminds this place of the fact that the courts must not involve themselves in the way in which we call elections. The point has been made time and again about the damage that would do. I welcome the Government’s Bill. I welcome the fact that it is fulfilling a manifesto commitment, and I welcome the fact that this is a return to a good piece of legislation that will ensure that democracy is secured for many years to come.