Dissolution and Calling of Parliament Bill

Brendan O'Hara Excerpts

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

[Mrs Miller]

My hon. Friend makes points that I am sure those listening to that debate will be pondering. In a day and age when electronic mail, not postal mail, is the norm, they will be asking what the Government are doing to ensure that our electoral system is modernised. I applaud the Government for all they are doing on voter identification. It is such an important thing but it has been sadly lacking. This is a reforming Government in that area, and I am sure my hon. Friend the Minister will do all she can to continue that reforming zeal in her work.

Let me pull together two other points that are allied to what we have been discussing. I think a great deal will be needed in returning to the status quo ante. The vast majority of Members do not remember the status quo ante—some of us do, such as my hon. Friend the Member for Calder Valley (Craig Whittaker) and perhaps one or two others such as my right hon. Friend the Member for Elmet and Rothwell, but there are not many of us left. Ensuring that the House and Members understand those conventions that are not formalised in law will be something of a challenge. I am sure the Minister is up to that challenge, but it is something we need to address. She has rightly made a number of comments on this issue—she has written a letter to the Public Administration and Constitutional Affairs Committee, and there are pieces of correspondence and an opportunity for debate—but as we move forward we need a settled view of the conventions.

Finally, on the wash-up, the day that a Prime Minister announces a general election is not the start of the general election campaign, and hon. Members need to take a much closer look, perhaps through colleagues who sit on the relevant Committees, as to how we can get better control over what is considered in that wash-up session. There are often a few deals regarding what legislation will pass through Parliament before the election campaign, and perhaps that would be better done after the election, rather than before. We should be considering such matters, with a focus on shortening the election campaign to something that is not just best for one set of people, but best for our democracy.

[Brendan O’Hara (Argyll and Bute) (SNP)]

I will hopefully delight the Committee by trying to speed things up a little, and I will not detain Members for long.

I agree with the hon. Member for Lancaster and Fleetwood (Cat Smith) that the Bill smacks of a Government who are still smarting from the events of 2019. I suggest that perhaps anger and revenge are no way to govern, and hopefully the House will help the Government to look beyond their bruised pride and get to a situation far beyond this Bill. Although in and of itself clause 1 may look fairly innocuous, and when taken in isolation might even be seen as trivial and almost unimportant, I caution the Committee that when viewed alongside other legislation currently going through this place—the Elections Bill, for example, and the Police, Crime, Sentencing and Courts Bill—we are witnessing a strategy on the part of the Government to centralise power and control with the Executive at the expense of this House. Some clauses in Bill, including clause 1, give more power to the Executive, strip parliamentarians of their powers, and deny the judiciary the ability to scrutinise what they are doing, while at the same time eroding the public’s right to protest against it. As has been said, this is an unashamed power grab by the Executive at the expense of this House, and we believe that that is how it will be seen in the context of that wider picture.

However intensely hon. Members may dislike the Fixed-term Parliaments Act 2011, simply voting for the Bill this evening will not automatically return us to our position prior to 2011 when that Act was introduced. The Scottish National party has said it will oppose the Bill all the way through, and we will oppose it again tonight. New clause 2, and the idea that a general election could be called to dissolve Parliament and that that motion must be agreed by this House, is correct. It appears to me that if the Bill passes without new clause 2, the Prime Minister of the day will have full and unfettered control over the Dissolution of Parliament and the timing of any general election.

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[The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)]

Was that the hon. Gentleman’s speech? Shall I cross him off the list?

[Brendan O'Hara]

I do not believe it was my hon. Friend’s speech, Mr Evans, but if it was, it was a perfectly good one and I thank him for it. The points he makes are absolutely valid.

[David Linden (Glasgow East) (SNP)]

I guess that, like me, my hon. Friend finds it a bit perplexing, when sitting in this debate and looking at Conservative Members, who advocated for Brexit in their constituencies and for Parliament to take back control, that they will walk through the Lobby tonight to neuter Parliament. Do he and his constituents who voted against Brexit see the irony in what the Brexiteers will do tonight?

[Brendan O'Hara]

I am sure I am not the only person in this House who can see the irony of how taking back control supposedly has led us to a position where Parliament is being neutered by the Executive, and the people who were most loudly proclaiming “Take back control” are the people holding the scissors and doing the neutering—if that is not too much of an image, Mr Evans.

If the Bill passes, as well as there being no parliamentary or legal scrutiny, an active debate will still rage about whether the monarch’s prerogative powers would return to exactly as they were in 2011. I notice that, in her letter to the Chair of the Public Administration and Constitutional Affairs Committee, the Minister acknowledged that

“there remains a role for the sovereign in exceptional circumstances to refuse a Dissolution request.”

But the monarch’s prerogative powers are now being enshrined in statute, having been removed by statute; they are now being restored by statute. So what exactly are the exceptional circumstances in which the monarch can refuse a Dissolution request? How can the Lascelles principles, which we heard earlier were prerogative powers, now be statutory powers? I cannot see how this returns us to the position we were in in 2011.

Therefore, we have been and will continue to be extremely uneasy about the insertion of the ouster clause making the Government’s action in relation to the dissolution of Parliament non-justiciable. As I said, we share the concerns of many Members across the Chamber that the repeal of the Fixed-terms Parliaments Act would not automatically take us back to the position of 2012 and we need a lot more clarity about exactly what legal position we would be in.

The Chair of the Public Administration and Constitutional Affairs Committee pointed out in a letter to the Minister:

“The Fixed-terms Parliaments Act was passed and the consequences of this cannot simply be wished away.”

I note that, in her response to the Committee Chair, the Minister accepts that there is an academic debate about the issue, but she seems to believe the opinion of her academics that the courts

“will be required to act as if the Fixed-term Parliaments Act had never been enacted”

and that they will be

“required to pretend that it never happened.”

It is a ridiculous situation and an extremely unsatisfactory position in which we find ourselves. For years, as my hon. Friend the Member for Glasgow East (David Linden) said, we have heard this Government talk about taking back control and the importance of parliamentary sovereignty. This is an early test of how this Parliament takes back that control, and the Executive are legislating to prevent it from happening. If the Bill is passed as it stands, Parliament and the judiciary, and arguably the monarch’s traditional role, will no longer be in play, and the decision to dissolve this place and call a general election will be entirely in the hands of the Prime Minister, who may call one when it is politically expedient so to do. That is not how a modern liberal democracy should function, and that is why we will not be supporting the Bill.

Back in January, both Lord Sumption and Baroness Hale were unequivocal in their evidence that the minimum safeguard required in the event of an ouster clause being put in place was the inclusion in the Bill of a time limit on the moving of writs for parliamentary elections. However, as it stands, there is no such provision in the Bill; six months on, the Government have not produced anything of the sort, and the original clause remains. In effect, that allows the Government to decide the length of a period of Prorogation, the gap between the Dissolution of Parliament and an election, and indeed the gap between an election and the first sitting of a Parliament. That is deeply worrying. The Government had an opportunity to take the advice of many learned people and improve the Bill. They refused to take that advice, and I fear that it is sinister and troubling that they did not.

[Sir Geoffrey Cox]

It is a great pleasure to follow so erudite and intelligible a speech from the hon. Member for Argyll and Bute (Brendan O'Hara).

I have an experience that is very rare in my political career—a sense of complete vindication. I voted against the Fixed-term Parliaments Act in 2011, when it was brought in, and I seem to recall saying then what I hear the Minister saying from the Front Bench now: that it would not work and that it was an abominable intrusion and distortion of our constitution. I see this Bill as a welcome correction that brings our constitution back to the fundamental principle, which has existed for many years, that, with the important exception that the monarch has the right to speak his or her mind at the time the Prime Minister requests a Dissolution, and in the last resort even perhaps to decline it—although it would not be known for many years that he or she had—it should be the case that the Prime Minister can advise Her Majesty to dissolve the House. We are at last returning to sanity and, with the pardon of the hon. Member for Rhondda (Chris Bryant), to normality when it comes to the constitution.

However, I say to the Committee and the Minister that there is an issue that troubles me. It seems to me that, when we presented our manifesto to the country in 2019, we did not only promise that we would restore the balance of our constitution by repealing the Fixed-term Parliaments Act. We presented the country then with a constitutional programme, or at least the willingness to look fundamentally at our constitution and to consider deeply whether we should restore to a more Conservative and a more traditional basis other aspects of our constitution, too.

In welcoming this Bill, therefore, I say to my hon. Friend the Minister that I hope that it is not the last measure that we will introduce in the portfolio that she occupies. At the moment, I look at our offering and I see this Bill, which I fully support, I see the Elections Bill, which I also support, and I see the Judicial Review and Courts Bill. I hope we are not going to be quite so timid as to present that as our sole offering to the country. In 1997, the Labour party was elected. One thing one can say about that Government is that they came in with a coherent, radical plan for the constitution, and they then enacted it with complete ruthlessness, and with complete disregard for Opposition voices. I was in the House some years later, and I recall vividly how the Labour party steamrollered its constitutional changes, including the Constitutional Reform Act 2005, through this House with very little by way of consideration and regard for alternative voices.

We now have a majority comparable to that, and I hope that we will not squander that opportunity. There are important things that we should now be doing. I have some sympathy with the plea this afternoon by the hon. Member for Rhondda that we should be considering Prorogation. So we should. We should be considering whether the Supreme Court’s decision in Miller No. 2 should stand. We should be considering whether other decisions of the Supreme Court should be allowed to stand. There comes to mind, for example, the Adams case, in which Mr Gerry Adams was effectively acquitted of his convictions in 1975 because the Supreme Court held that the Carltona principle in effect did not apply to the decision then taken. That, in my view, is a matter that this House ought to be reviewing.

I say to right hon. and hon. Members and to my friends on the Government Benches that we must not regard the constitution as an area that is too complicated for us to go into. We must not accept the liberal consensus, as it is no doubt called, upon which the new Labour Government in ’97 traded. We must not accept that these things are permanent features of our constitution. They were not introduced with our consent, and we have every right, with the mandate from the people that we now have, to reconsider them.

I say to the Minister that I applaud this Bill, and I applaud her particularly. I was impressed, if I may say so, throughout the course of her presentation by how deeply competent and how completely on top of her brief she was. Thank heavens for such a Minister.

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[Brendan O’Hara]

Madam Deputy Speaker, I thank you and your colleagues, the Clerks and all hon. and right hon. Members who have taken part in what has been a good-natured debate.

Having said that, this is still a thoroughly bad piece of legislation, and nothing I have heard tonight has changed my mind.

Conservative Members seem determined, on a regular basis, to turn the clock back, in this case to a system deemed undesirable and out of touch more than a decade ago. As we have heard, politicians and academics are still arguing about whether it is even possible to believe that the Fixed-term Parliaments Act 2011 had never been enacted. We are being asked to pretend that it never happened. At the risk of showing my age, let me say that it is as though this Government have been taking advice from the scriptwriters of “Dallas”, who asked the world to pretend that Bobby Ewing had never died and they could just go back and pick up the storyline as though nothing had happened previously and anything that had happened in the past would have absolutely no consequence now. While that academic debate rages on and we are heading back to the situation prior to 2011, there can be no doubt that this Bill is little more than a brazen attempt by the Executive to entrench more and more powers with themselves, at the expense of this Parliament. I repeat: as bad as that is in and of itself, when it is viewed alongside what else is going through this place, we see that we are witnessing a full-on attack on our democracy. For that reason, we will be opposing the Bill on Third Reading.

Question put, That the Bill be now read the Third Time.