Dissolution and Calling of Parliament Bill

Julian Lewis Excerpts

2nd reading
Tuesday 6th July 2021 Commons Chamber

[Michael Gove]

I completely disagree. Looking at the broad economic situation that we face and what may happen in future, we have a well-informed and judicious electorate that will make a judgment whenever an election is called about the fitness of this Government to be returned to office or, indeed, the readiness of the Opposition or any other party to assume office, as has been seen in the past.

When Governments have sought to cut and run—when they have sought to manipulate the electoral timetable to their advantage—they have been punished. It was the case not just in 1974 with Edward Heath but in the early 1920s with Stanley Baldwin, when he sought to cut and run using the formidable advantage that he had—the support of press barons and the wealthy. Nevertheless, we saw the return of the very first Labour Government under Ramsay MacDonald, supported for all too brief a period by the Liberals of that time.

[Dr Julian Lewis (New Forest East) (Con)]

The historical case that my right hon. Friend is making is absolutely incontrovertible. The fact is that the legitimacy of previous elections has barely—if ever—been questioned. As soon as we brought in that wretched legislation, we ended up in what he rightly described as a paralysed Parliament. However, is he satisfied that clause 3 is strong enough to ensure that Parliament is not paralysed in future by political uses of the court to try to interfere with the process of dissolving Parliament? Professor Ekins in particular, I believe, has certain suggestions that might make that provision a little stronger.

[Michael Gove]

I believe that clause 3 is robust and fit for purpose, but it is also the case that Professor Ekins, of the Judicial Power Project attached to the think-tank Policy Exchange, is a brilliant legal mind. We will pay close attention to his arguments and to those of my right hon. Friend and others, in order to ensure that clause 3 is robust enough.

Reference to clause 3 means that it is appropriate for me to turn to the specific clauses in this short and focused Bill. Before I do so, I just want to thank again the work of the Joint Committee under Lord McLoughlin and others, which did such a service to this House, and indeed to the other place, in scrutinising the legislation. When reviewing the original 2011 Act, the Joint Committee found that—

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[Cat Smith (Lancaster and Fleetwood) (Lab)]

I begin by saying how lovely it is to see the Minister for the Constitution and Devolution, the hon. Member for Norwich North (Chloe Smith), back on the Front Bench after her absence, how well she is looking, and—without wishing the entire debate away—how much we are looking forward to her contribution at the end of this Second Reading debate.

As the Chancellor of the Duchy of Lancaster said, the Bill seeks to do two things: it repeals the Fixed-term Parliaments Act 2011 and it reinstates the status quo before that Act came into force. Effectively, it is turning back time. It is on those two points that I shall focus my remarks.

I suspect that we shall have quite a lot of debate today about whether the Fixed-term Parliaments Act worked. The Minister has set out clearly that he believes that it did not, but I believe there is an equally valid argument that aspects of it did work, although of course it was not without its pitfalls and flaws. The best example was the 2015 general election, which took place five years after the 2010 general election. It worked in the sense of holding the coalition Government to that timetable. However, I would argue that we could also say that the 2017 general election proves that the Act worked, because there were clauses within it for having an early election and those were gone through in the 2017 election.

The debate about whether the Act works probably centres around whether the 2017 to 2019 Parliament worked. That probably highlights the flaws in the Act. The fact that the Act said the Prime Minister could control the date of the election was, I would argue, one of the main sticking points of the Act, because at that point the Opposition felt the Prime Minister might abuse the Act to leave the European Union with no deal. Therefore, the Act was not without flaw.

There are also the issues around confidence motions and the questions that they raise. I think that will probably be explored in quite a lot of detail.

[Dr Julian Lewis]

I concede the hon. Member’s point that the Act did work as far as holding the coalition together until 2015 was concerned, but it did not work in 2017. If it had not been for the fact that the Scottish nationalists and the Liberal Democrats, for political reasons of their own, decided to allow the Dissolution, that stasis could have gone on for months, or years longer than it did. The Parliament would have been paralysed endlessly until the end of the five years. That cannot be right, surely.

[Cat Smith]

I will let other parties answer for their own actions. I certainly do not seek to speak for them. I think it would be a misinterpretation to say that the Act was purely for the purpose of holding the coalition together. I think that was a huge reason for support in certain parts of the then Government, but actually it was an idea that had been batted around in politics long before then. Indeed, I believe it had been a matter for various private Members’ Bills before the coalition Government came into office. It was certainly not an idea that was just thought up to hold the coalition together.

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[Brendan O’Hara]

The Scottish Government will stand by and have stood by their record, and have been accountable on the day of the Scottish elections for every Parliament. The Scottish Parliament knows when the next election will be, and every Government will be accountable on that day. If those in the Chamber want to look at the success of the Scottish Government—the SNP Scottish Government—as put forward and verified by the Scottish public just two months ago, let me say that I am sure there is not a Member of this House, particularly on the Liberal Democrat Benches, who would not give their eye teeth for such an endorsement. However, I will move on, Madam Deputy Speaker, because I can see that I am testing your patience somewhat.

[Dr Julian Lewis]

rose—

[Brendan O’Hara]

I will come to the right hon. Gentleman in a moment, but I will take your advice, Madam Deputy Speaker, and move on.

Clause 3 of the Bill is an ouster clause. It aims in effect to put the Government’s action beyond the reach of the law, meaning that decisions made by the Government on these matters are non-justiciable. This is clearly the action of a Government who are still smarting from the humiliation of the Supreme Court’s Prorogation judgment in 2019, which said that it was not in the power of the Prime Minister to suspend Parliament for such a long time at such a critical moment.

In January, Baroness Hale and Lord Sumption gave evidence to the Joint Committee on the Fixed-term Parliaments Act, and they both expressed serious reservations about clause 3 of this Bill, which renders non-justiciable the powers given to the Government in clause 2. Those non-justiciable powers include controlling the space of time between the Dissolution of one Parliament and the general election and between the general election and the first sitting of a new Parliament. All of that would be in the control of a Government whose previous attempts to undermine parliamentary democracy through proroguing in 2019 were, as we have seen, deemed unlawful. The difference this time is that they hope that the Supreme Court could not intervene. Back in January, both Lord Sumption and Baroness Hale were unequivocal in saying that the minimum safeguard that this Bill needed in the event of such an ouster clause was to put a time limit on the moving of writs for parliamentary elections, which has not been done.

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[Chris Bryant (Rhondda) (Lab)]

May I first say what an utter delight it is to see the hon. Member for Norwich North (Chloe Smith) in her place? Cancer is a bugger, and quite a lot of us have been through it. At the rate we are going, we will have a very large cancer survivors unit here in Parliament, and we shall overcome.

I know the right hon. Member for Surrey Heath (Michael Gove) is not present, but there is nothing more miserable than parts of one’s private life going through the public domain. I wish him and Sarah well.

The hon. Member for Hazel Grove (Mr Wragg) has come back. I was going to criticise him because he had just departed, having said that he was looking forward to hearing what I was going to say, but now he has returned.

I am afraid that I dislike the Bill from beginning to end. I know it was in our manifesto that we would repeal the 2011 Act, but there were lots of things in our last manifesto with which I did not fully agree, so merely saying that it was in our manifesto does not cut the mustard. Our 2010 manifesto said that we wanted to move towards a fixed-term Parliament and to hand over significant elements of the prerogative to Parliament. Indeed, I note that the Conservatives’ manifesto in 2010 said that they wanted to make

“the use of the Royal Prerogative subject to greater democratic control”.

I supported bits of the 2011 Act when I was the shadow Minister dealing with it at the time, in 2010. There were bits of the Act that we criticised but, broadly speaking, we supported it. What I object to in this Bill is that it significantly increases the Government’s power over Parliament. Indeed, when the Fixed-term Parliaments Act was introduced, it was a major transfer of power away from the Executive, and a major strengthening of Parliament’s authority over its own lifetime. By definition, this Bill is exactly the opposite of that. The Bill assumes that all the players in the so-called golden triangle—why on earth do we resort to such outdated concepts?—will be good guys. I use the word “guys” advisedly, because quite often they are guys, but of course there is a danger that the Bill also brings the palace and the monarch directly into party politics.

[Dr Julian Lewis]

The hon. Gentleman is making a strong case that it should not be a question of the Government against Parliament, but does he not agree that it should not be a question of Parliament against the people? That is the situation that we were nearly stuck in, because the Government, by wanting to be dissolved and have an election, wanted the people to have the final say about Brexit, but Parliament did not want the people to have the final say about Brexit. So the hon. Gentleman needs to be very careful, because there is a lot to be said for the Government not overruling Parliament, but there is not much to be said for Parliament not overruling Government when the Government are trying to give the final decision to the people.

[Chris Bryant]

Well, my point is simply that we need to have a level playing field in any general election. The Bill deliberately gives the Government the upper hand. It places them on the hill surrounding the territory. It means that they determine the territory on which a general election will be contested. They determine many other aspects, such as who is able to vote, who is able to register to vote, how the boundaries are constituted and so on. I start to ask myself: how much power do the Government want to have?

[Dr Lewis]

The hon. Gentleman is extremely kind in giving way a second time. I do not think he answered my point, which is that the key thing about Dissolution is that we are giving power to the people to have the final say.

On the hon. Gentleman’s other point, he says that the Government are able to choose a time that is to their advantage. The alternative is surely that when we have a fixed date when the election has to be held, the Government will still try to manipulate the situation so that it will coincide to their advantage at that date. We cannot really escape the question of manipulation entirely.

[Chris Bryant]

If there is a fixed date for a general election, there are fewer options for the Government to manipulate the situation. That is a publicly known fact to everybody, so there is a level playing field. Indeed, over the last 20 years or so we have had a set of rules in this country that mean that in the six months before a general election, the Opposition are allowed special access to the civil service. If the Opposition do not even know when the general election will be, they never have that opportunity.

Time and again, the Government get to set the rules, and there is a significant party political advantage to being able to set the date of a general election. That is why Governments never wanted to change that. They did it in 2010 for 2015 only, because they wanted to solve a specific problem. My biggest anxiety is that, while we all love the fluidity of our constitution, the downside is that it becomes the plaything of the Government of the day who want to jig and rejig bits and pieces to benefit themselves and keep themselves in power.

One instance of the kind of behaviour a Government today might conceivably think of is to hold a general election immediately after the new boundaries come in, or immediately before the boundaries come in, for their own party political advantage because that is how they will have assessed that. Alternatively, they could decide that we will not have a full judicial review producing a report on the lessons learned from the covid pandemic until after the date of the next general election. The right hon. Member for New Forest East (Dr Lewis) is absolutely right that it could be after 2025—they could decide that it will not produce its result until 2027. My point is that even if a report is about to be produced, they could decide to have a general election.

The Minister herself gave evidence to our Joint Committee on the Fixed-term Parliaments Act saying that the public would punish nefarious activity of that kind. I am not convinced by that, because in a general election the public are making a whole series of decisions, and the simple matter of whether the general election should have been called is probably round about number No. 535 on the list of issues that are of concern to them. My simple point is that this is about having a level playing field. We insist on that for other countries and democracies. It is a fundamental principle of what constitutes a fair democracy.

I will deal with some specifics, if I may. First, five years is far too long for a Parliament. Over the past 200 years, they have tended to run for about four years, including when we had a seven-year term for Parliaments. It would make far more sense for us to have a four-year term—that would be more in keeping with the rest of the country. If the Bill passes Second Reading, I will table an amendment to curtail it to four years. We do not even say that it is five years at the moment—it is five years plus with the additional bits. The five years is not from the start of one Parliament to the start of the next Parliament; it is from the date of the Parliament’s first sitting until the general election.

The Government get to decide the date not only of a Parliament’s first sitting but of its first sitting to transact substantial and substantive business, which traditionally starts with the First Reading of the Outlawries Bill, followed by the Queen’s Speech. Even after the Queen’s Speech, it is for the Government to decide when we actually get into proper business and, during that period, whether there might or might not be a motion of no confidence. That means that after a general election, such as when Baldwin lost the general election, there had to be a motion of no confidence in the new Parliament, but that depended on the Government bringing Parliament to sit. We are almost unique in the world by not having any provisions in statute or our Standing Orders guaranteeing that the House will be able to transact business within a certain number of days, let alone set up Committees and all the rest.

I am very worried about snap elections, because often they mean that parties are not able to provide a duty of care towards potential candidates. I will mention only one, Jared O’Mara. If we had had a more sensible run- up to a general election, we would have served him better, because we would have gone through a proper process of selecting candidates. I could look at other instances across the last few years. As Chair of the Committee on Standards I am painfully aware that sometimes people become candidates without being prepared, briefed and given the support they need to enter into what can be a very difficult and painful place.

We have already seen that the Government have phenomenal powers over prorogation, and I simply do not understand why the House of Commons cannot have a vote beforehand. We would nearly always grant it, but if there were any jiggery-pokery, we might not. Government Members might say, “You are only doing that for a party political reason.” We could point to the Labour Government in the 1940s, who brought forward a special prorogation so that three Sessions of Parliament ran during one year, to meet the requirements of the Parliament Act 1911. Why does prorogation remain a simple act of the Executive? I think it is a mistake. Indeed, it would assist the Government simply to say that every time there is going to be a prorogation, just as there is before a recess, there will be a vote in the House of Commons.

I completely agree with the hon. Member for Hazel Grove, although when he is being sarcastic and ironic it is sometimes slightly difficult to determine which side of his own argument he is on. I think he was suggesting that the ouster clause may be a bit of an own goal. It sounds a bit like, “the lady doth protest too much”. It is as if we do not have confidence in the Bill of Rights.

Dissolution and Calling of Parliament Bill

Julian Lewis Excerpts

Consideration of Lords amendments
Monday 14th March 2022 Commons Chamber

[The Minister for the Cabinet Office and Paymaster General (Michael Ellis)]

I beg to move, That this House disagrees with Lords amendment 1.

The Bill passed through the other place, where it was carefully scrutinised and amended in only one respect: to seek to retain a role for this honourable House in respect of Dissolution. The Lords amendment provided that the Prime Minister could request the sovereign exercise—the revived prerogative powers to dissolve and call Parliament—only when this House agreed the motion

“that this present Parliament will be dissolved.”

That would create an untested, hybrid system by imposing statutory arrangements on top of the prerogative system that existed prior to the Fixed-term Parliaments Act 2011. Such statutory constraints would undermine the flexibility that for generations characterised the pre-2011 arrangements that the Government want to reinstate. With respect, the Government therefore firmly disagree with the Lords amendment.

In fact, the Government and the Opposition both committed—in their manifestos, no less—to repeal the Fixed-term Parliaments Act. The Lords amendment would repeal that Act only to retain one of its fundamental flaws. That is not our wish or our intention and it does not meet the commitment that we made to the electorate.

[Dr Julian Lewis (New Forest East) (Con)]

I am hugely relieved to hear the Minister say that. I have stood in every election since 1997. Only when we saw the chaos caused by a Government who did not want to continue and an Opposition who did not want the chance to face an election could we see how dreadful that old system was. We need to get rid of it, bag and baggage.

[Michael Ellis]

I agree with my right hon. Friend; there is of course a good reason why the 2017 to 2019 Parliament is referred to as the zombie Parliament.

I remind the House of the commitments that both parties made in 2019. The Conservatives committed to repealing the Fixed-term Parliaments Act.

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[Alex Norris]

I am grateful for that intervention. I strongly believe in the maxim that how you do one thing is how you do everything, and I believe that the same cast of characters will broadly act in the same way at every opportunity. That tends to be, as with all the pieces of legislation that I listed, that the Government see things through a very narrow political prism, and that is what we are seeing today.

[Dr Julian Lewis]

How is it an abuse of power and a strengthening of the Executive for the Executive to say, “We want to go to the people and let the people decide whether we should be allowed to continue in government or be chucked out”?

[Alex Norris]

The Lords amendment is a very modest safeguard to that in saying, “At least demonstrate that a majority of the legislature agrees with you.” It is not unreasonable to say that Parliament could be involved in the Dissolution process in the way that noble Lords have said. It is a modest hurdle. All it asks is that the Prime Minister of the day be able to command a majority, and in different scenarios.

I know that the Minister is keen to avoid hypotheticals, but we do have to think about how these powers may apply in future. In a balanced Parliament like the previous one, the amendment might mean that the Government work a little bit more broadly to secure the election. The right hon. Member for New Forest East (Dr Lewis) referred to the dreadful election of 2019. I would argue that it was the Government between 2017 and 2019 who were dreadful rather than the election itself, being a passive process. Indeed, the Minister characterised it as a zombie Government. Given that he served in that Government, I think he does himself a disservice in characterising himself in that way.

[Dr Lewis]

I do not think it was a dreadful election—it was a brilliant election. What was dreadful was the fact that it was in the power of the Opposition to stop that election happening and to not allow the people to have their say.

[Alex Norris]

I cannot agree with the right hon. Gentleman. The idea that it was dreadful that a Government who did not command a majority of this House could not just always get their way—that is how the system is supposed to work, I gently suggest.

Where a Government have a clear working majority, as we have today, the amendment would insure against a capricious Prime Minister—perhaps one losing the confidence of their own Benches in the light of, in a hypothetical, significant issues of judgment or personal character—just going and throwing everything up in the air in their own interest. Indeed, there is the scenario, as my hon. Friend the Member for Cardiff West (Kevin Brennan) said, where someone else might be able to form a Government, but the individual who would be most harmed could just call an election without that being explored.

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

I rise to speak in favour of the Lords amendment, which would require any Government seeking to dissolve this House early and call a general election to first seek and receive the support of a simple majority of the Members of this House.

Last year, when the Bill was first introduced by the Government, it was presented as a non-controversial resetting of a mistake that David Cameron made in his attempts to form a coalition with the Liberal Democrats. We were told that Cameron had made a bit of a mess of things, that this Bill would simply take us back to exactly where we were prior to 2010, and that we could almost pretend that it never really happened. However, as we have heard in this place and in the Lords, that is not the case. The Bill is not about reinstating what was in place prior to the Fixed-term Parliaments Act 2011, but rather creates a situation whereby the Executive have even greater powers and the monarch, who hitherto had prerogative powers, merely enacts the Executive’s will to dissolve Parliament.

This Lords amendment seeks to place a very minimal check on the Executive’s power by making any Dissolution of Parliament a decision that has to have the support of the majority of this House. I do not think that our constituents would think that it is too much to ask for those who have been elected to this place, and who serve their constituents in this place, to have some say if a Parliament is to be dissolved early and a general election called.

[Dr Julian Lewis]

I thank the hon. Gentleman for giving way, which is typically gracious of him. He calls it a “minimal check,” but the reality is that it is an absolute veto. If a Government do not have a majority in the House and if the Opposition sense that a Government might well win a majority if they went to the people, the Opposition are basically saying, “We are not going to allow the Government to get a mandate from the people.” That is precisely what would have happened in 2019 if Labour had not, for some reason, given way in the end.

[Brendan O'Hara]

I thank the right hon. Gentleman for that intervention, but that is a decision for this Parliament to take. We are elected to take decisions, and to abdicate that responsibility to the Executive is a dangerous route to go down; we should not do that. He says that it is the people, but we in this Parliament are the voice of the people, and there has to be a check on the powers of the Executive.