Dissolution and Calling of Parliament Bill (Instruction)

Chloe Smith Excerpts

Monday 13th September 2021 Commons Chamber

[The Minister for the Constitution and Devolution (Chloe Smith)]

It is a pleasure to serve under your chairmanship at this stage of the proceedings, Madam Deputy Speaker, when so much more still awaits us if only we have the chance to get to it.

The first point to make is that this is not the right place to debate Prorogation. This is a short and narrowly focused Bill concerning the ending of one Parliament and the beginning of a new one, and the process of getting from one to the other, not the ending of a parliamentary Session. Therefore, the Government’s view is that expanding the Bill to cover Prorogation would not be appropriate.

[Owen Thompson (Midlothian) (SNP)]

Will the Minister give way?

[Chloe Smith]

So soon?

[Owen Thompson]

I just wanted to ask a brief question. If this is not the right place for this topic to be debated, where is the right place for it to be debated?

[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.

[Patrick Grady]

Will the Minister give way?

[Chloe Smith]

I will give way one last time, and I am sure the intervention will be good.

[Patrick Grady]

I wonder whether the Minister might just indulge the House and express the Government’s opinion on the hon. Member for Rhondda’s amendment, given that the Government seem to oppose our getting a chance to discuss it?

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. The hon. Gentleman knows that this is a very narrow debate on the instruction. The Minister can of course speak about the content of the instruction on the matter of Prorogation, but not on the amendment itself.

[Chloe Smith]

rose—

[Chris Bryant]

So will the Minister give way to me instead?

[Chloe Smith]

indicated assent.

[Chris Bryant]

Thank you. The question then is: if not now, when? That has still not been answered. If we are not to debate the matter today, I presume that the Government still believe that Prorogation should not be justiciable, so when are we going to discuss legislative measures to deal with Prorogation?

--- Later in debate ---

[Chloe Smith]

Well, indeed. “If not now, when” is always a good question, and better people than me have put it. This instruction has been laid by the hon. Gentleman, who goes back a long time in this House. He and I have had constitutional battles on the Floor of the House for about 10 years, and I am always delighted to do battle with him. I may concede to him in some cases that he is a better hon. Gentleman than I am. However, the point today, in answer to his question, is that his instruction seeks to widen the scope of the Bill considerably and at this stage I do not think that hon. Members could be fully clear about the extent of his vision for such a change. I do not think it is clear, beyond just the one amendment today, what he may have in mind to discuss about Prorogation. I do not think it is fully clear from this half hour of quite warm-tempered debate what other hon. Members and right hon. Members have in mind to change about Prorogation. This instruction could leave the field of Prorogation open of course to further debate—that is its point—amendment and qualification. Of course, that must be its point, but all of that is somewhat larger than is revealed by today’s amendment. I would be a little surprised if hon. Members wanted to vote with him on a motion that does not give any more time than that for consideration of a very important area of our constitution.

Let me point out how much time we have taken to get to what we are doing today on Dissolution. There have been manifesto commitments from both sides of the House, as I have said. There have been detailed reports from Committees of this House and the other place, as well as a high degree of consensus and many years of reflection on the operation of the Fixed-term Parliaments Act. I do not believe that a great deal of realistic notice, ahead of the amendment and this instruction, exists in respect of Prorogation. For that reason, I suggest that now is not the time for that debate, and it is not for me to suggest another time for such a debate.

The hon. Member for Rhondda raised some other points that ought to be answered. There are compelling practical reasons why we do not need to go into the territory raised here today. He raised the spectre of a Government using Prorogation simply to keep on going, but the point needs to be made that any Government would want a new parliamentary Session to begin as soon as possible to pass their Queen’s Speech at the earliest opportunity and to have supply. Quite rightly, no Government can operate without supply and they therefore need Parliament to be in existence. No Government, whether the Government of the day or a future Government, would want to introduce hurdles between the end of one parliamentary Session and another. Their purpose would be to move the legislative programme forward so that they could deliver on their commitments to the electorate. These are fundamentally important points about how Governments and Parliament work together, and I think that that is a quite reasonable answer to the points that have been made today about whether a Government could indeed prorogue forever and whether they ought to be stopped in some way.

More broadly, the Sovereign exercises the prerogative power to prorogue Parliament on the advice of the Prime Minister and that has always been the case. What I think is coming into this debate on the instruction, and may come into the discussion later if this motion were to be passed, is the concept of introducing prescriptive statutory approaches into our flexible constitutional arrangements, and I would call that unnecessary and undesirable. The whole scheme of what we are doing in the Committee for this Bill is to remove constraining and inflexible schemes and return to flexible arrangements that work well.

[John Redwood (Wokingham) (Con)]

Is it not the case that those who wish to reopen this issue are revisiting a very dark chapter in the history of our Parliament, when Parliament decided to stand against the wishes of the British people expressed in a democratic referendum? It required the British people to reassert their will and their decision in a general election to clear the air, but is it not great that we cleared the air?

[Chloe Smith]

The point is that we have an opportunity to clear the air in regard to legislation that is highly prescriptive and has not worked. That is the aim of today; it is not to extend at relatively short notice into a very large subject for debate, for which the ground has not been properly prepared by the hon. Member for Rhondda, although I admire his spirit in trying to do so. Instead, we ought to be able to move past this instruction to change the scope of the Bill and conduct our work through Committee, thus discharging at least two manifesto commitments from either side of the House and returning our constitutional arrangements to a form of stability that works.