Dissolution and Calling of Parliament Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I do not often agree with the noble Lord, Lord Wallace of Saltaire, as he knows, but I did agree with his closing remarks on Second Reading:

“We should never take democracy for granted: it needs to be defended.”—[Official Report, 30/11/21; col. 1332.]


I absolutely agree, which is why it is important that the amendments in this group are not passed.

Sometimes, when people talk about democracy, they talk in terms of the role of Parliament or the separation of powers. But we must always remember that democracy is about the people—demos—who have power at the apex of our constitution and whom we have to defend. The most important players in our democracy are not Members of Parliament at Westminster but the voters up and down the land. The possibility of Parliament standing in the way of asking the people for their views on the way forward is fundamentally undemocratic, in my view.

These amendments are capable of depriving the people of their say in the future of the country. Furthermore, they could do harm at the very time that the views of the people, as expressed at the ballot box, are most needed and could have the greatest impact. Of course, if the Government of the day have a whopping majority, whether or not they have to pass a resolution in the other place will make very little difference to the outcome. It might perhaps add a few days of delay to the timing of a general election, but it would otherwise simply be a tiresome detail. But the amendment will make life difficult for minority Governments or Governments with small majorities, if they feel that they need to call an election.

At Second Reading, I spoke about the events of 2019 being one of my key reasons for supporting the Bill. It was plain that Parliament was dysfunctional. The Government could not get their chosen policies through the House due to a combination of the actions of the opposition parties and of some of our own Back-Benchers. A majority in the other place and indeed in your Lordships’ House—although that is not relevant to this amendment—was set upon frustrating the Government’s Brexit policies, but the Government could not call an election to settle that issue because they could not meet the two-thirds threshold of the Fixed-term Parliaments Act.

Of course, the Government eventually got their Early Parliamentary General Election Act through and, by then, the Labour Party had decided to support it. But we will never know whether it would have been possible for the Government to have reached the simple majorities required in these amendments at an earlier stage—but it is entirely possible that they would not have done so. A number of my party’s MPs had lost the Conservative Whip during those unhappy days and would not, therefore, have been able to stand as Conservative candidates if an election had been called. Would the turkeys really have voted for Christmas? I think not.

Many noble Lords in this House might choose to forget the result of the 2019 election because it was not to their taste, but I remind them that it was a resounding thumbs up for the Government’s Brexit policies, which Parliament was seeking to harass and destroy at the time. These amendments could well have prevented that decisive view of the country from being expressed at the time, and we would have been the poorer for it.

Minority Governments with small majorities but fractious Back-Benchers capable of frustrating a vote on a general election are not figments of my imagination; they are a real part of our political system. I say this especially to the Benches opposite because, if they have any hopes of again forming a Government, they need to reflect on whether a zombie Parliament could affect them as well. They might also reflect on whether the minority Wilson Government in 1974, which the noble Lord, Lord Beith, referred to in the debate on the earlier group of amendments, would also have resulted in an election. Is it absolutely clear that the Wilson minority Government could have called the second election in that year if he had had to cope with what this amendment would have landed him with? These amendments could be a very dangerous part of our constitutional arrangements and should be rejected.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I feel part of an endangered species: a Cross-Bencher who fully supports this government Bill. I would also like to go back to where we were before the ill-starred and ill-judged Fixed-term Parliaments Act.

I am against giving the Commons a veto, as proposed in Amendment 3 by my noble and learned friend Lord Judge, who is normally so sagacious but who is wrong on this occasion. This could lead to the same chaos, stasis and problem of September 2019, which the noble Baroness, Lady Noakes, has just outlined, when we subjected our Prime Minister—whatever you thought of him then or think of him now—to the humiliation of having to go cap in hand to Brussels to plead for an extension of time to achieve a policy flatly contrary to the one that he wished to put to the country. He could not get a two-thirds majority, and one seriously doubts whether he would have got a simple majority.

The Joint Committee that examined this legislation and reported in March 2021 made plain that, although a minority supported the view outlined by my noble and learned friend Lord Judge and the noble Lords, Lord Lansley and Lord Beith, the majority recognised the danger, which we should avoid at all costs, I respectfully contend.

As to the prerogative power, one can hardly overstress the difference between Prorogation and Dissolution. Prorogation—let one remind oneself—affects the cessation of Parliament and is anti-democratic in the sense that it thwarts the power of Parliament. Our governing, imperative, fundamental constitutional principle is the sovereignty of Parliament; Prorogation thwarts it and leaves the Executive for the duration in uncontrolled power. Dissolution—at the opposite end of the spectrum—is explicitly designed to give the electorate the opportunity to decide who should control our Executive. My noble and learned friend Lord Judge speaks of Dissolution eradicating the decision of the electorate last time around, ditching the democratic vote. Well, of course, in one sense you are getting rid of an existing Parliament, but you are inviting more up-to-date views on what the public—who, as the noble Baroness, Lady Noakes, said, really should be controlling all our processes—want and whether they approve the particular policies in the particular circumstances in which Dissolution is sought.

Of course, if you put the Commons in control, although you run into the sort of difficulties that the noble Baroness, Lady Noakes, rightly identified, you get rid of the problems that others seem to suggest arise under Clause 3 here. There is no question then, obviously, of the courts’ supervisory jurisdiction. But—and we will come to this point of debate later—I suggest you really do not need to introduce the chaos of a Commons vote in support of Dissolution in order to avoid the risk of introducing the courts into the whole business.

[Lord Grocott (Lab)]

My Lords, before I comment specifically on the amendment in the name of the noble and learned Lord, Lord Judge, I think that both the noble Baroness, Lady Noakes, and the noble and learned Lord, Lord Brown, have misread what happened in 2019. What happened then would have happened had this amendment been passed, which was that a clear majority in Parliament voted for a general election—fact. On three occasions, they voted for a general election. A general election would have occurred under the terms of this amendment.

If I may say so, the politics of it are fairly obvious. If a Motion comes from a Prime Minister that there should be a general election, which is what this amendment suggests, the Government may not even have a majority, as the noble Baroness, Lady Noakes, suggested; there may be people opposed to the Government’s policies generally on their own Benches, and they may not get a majority of their own people, necessarily. But it is almost impossible for an Opposition to vote against a general election. It kills the whole point of being an Opposition. What is an Opposition for if not for saying, “We’ve got a rotten Government, and it is time the people turned them out”? The Labour Opposition at that time sat on its hands, but politically, though I cannot go into all the legal ramifications, it is impossible to imagine a Prime Minister with a majority in Parliament—and he or she would not be the Prime Minister if that were not the case—calling for a simple parliamentary majority, which is all that is required, in order to hold a general election and Parliament throwing it out. That is for the birds; it really is. It would be politics turned upside down.

I think the amendment from the noble and learned Lord, Lord Judge, just nails it. I agree with it absolutely, partly because, when in doubt, you should opt for the simple solution, and there is nothing simpler than a simple majority. We get into all sorts of trouble, as other Members have said, when we require a two-thirds majority or an artificial majority. The public know what a majority is and, let us face it, the real fact of life is that a majority in Parliament—this is as close to Dicey as anyone could be—is power in the land, apart from on the day the general election is held. If Parliament tries to do things that do not have majority support, the majority has all sorts of ways of asserting its support.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, with a Supreme Court judge, the chairman of the most recent inquiry into the workings of judicial review—he did an extremely good piece of work on that—and a former Cabinet Secretary presenting views that differ in more than nuanced ways, the House will have to resolve this issue. Those of us who are deeply concerned about this clause cannot be accused of wanting to drag the judges into decisions about whether elections are being held. In my case, and in some of the other cases, we have offered two mechanisms that clearly make that very unlikely.

One is that the courts would be very unlikely to question or interfere in any way with the personal prerogative power, which we all agreed earlier is the nature of, if not the wording of the Bill, then of the re-establishment of the status quo ante. The second is that a significant number of us argued that a vote in the House of Commons is a desirable process. Were it there—were it a condition—it would entirely obviate any fear that the courts would become involved, because the courts would recognise the Bill of Rights’ prohibition on questioning the decision made in Parliament. We are not people seeking to drag the judges into this process.

The Government’s belief that they have to build a bulwark of some kind against judges becoming involved, all based on a particular recent experience that was about not Dissolution but Prorogation, has, I think, drawn them into doing something that, if we do it, we will come to regret very much in years to come. The phraseology of the clause should remind us of that: it is the

“purported exercise of the powers”

or the “purported decision”. What does that take us to? It takes us to the point where the Government are trying to ensure that the courts do not question whether the Prime Minister had the power to act in that way, or, if he had the power, that he is acting in ways covered by the legislation. I find it very hard to conceive of a case that could be made, if the processes of this legislation are followed, in which that could reasonably be advanced in front of or taken seriously by any court. What I see is an ouster clause that we will not see the last of and that we will see again in other legislation. Then it will be said that it is a perfectly acceptable ouster clause, as Parliament allowed it in legislation that repealed the Fixed-term Parliaments Act; that it is just a straightforward way of making it clear that this is an area in which we do not want the courts involved.

The power of judicial review, which was carefully analysed by the noble Lord, Lord Faulks, and the team he led, is an essential way in which the citizen is protected from the abuse of power by the Executive. There are many kinds of Executive, not just the national Government we are thinking of today; local authorities and private sector organisations have powers of various kinds. If they act beyond those powers, the courts are the proper place to challenge that misuse of power. Once we give currency to the idea that a Minister can say in relation to a purported action or purported decision that they have decided they have the power to do this and may not be challenged, that is a reversal of the entire system of judicial review.

The process described in Clause 3 will never be engaged in relation to what we are talking about—the calling of a general election. There are so many barriers against it—not least, of course, the desire of the judges not to get into that political process at all—but once we have got this on to the statute book, we will not have seen the last of it. I think we have created a highly dangerous model for ouster clauses. I am disappointed, in a way: I think the noble Lord, Lord Faulks, resisted pressures to come up with foolish decisions in his review, and I would welcome him being on my side on the issue, which is about the longer-term importance of judicial review for the purpose for which it was intended. One can raise questions about some ways in which it has been used in the past. One can raise questions about whether there are some limitations, such as the Cart issues raised by the review by the noble Lord, Lord Faulks. It is vital in the protection of our citizens and I see it threatened by the existence of this clause.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my core concern regarding this group of amendments is for the future generation of judges—not just in the Supreme Court, but judges who, I suggest, must inevitably be troubled at first instance and so forth before things get to the Supreme Court—if there is there is the slightest glimmer of a prospect of anybody legally challenging any decision with regard to Dissolution. I find myself in total agreement with all that my noble friend Lord Faulks said and the legal analysis here. The courts have striven mightily to remove any possibility of ouster clauses having effect. With that, in most contexts, I totally agree, but this is in the context of Dissolution and of trying, with the utmost clarity, to return as whence we were, where there was no possibility of the courts entertaining a challenge.

To my mind, the courts would be grossly embarrassed and, of course, singularly unlikely to intervene. The noble Lord, Lord Beith is absolutely right: it is the last thing they would want to do because it would be so embarrassing and destructive of the current constitutional position of judges to allow themselves to be drawn into this field. However, the temptation for others to try to involve them must be removed. I suggest that this clause, as is, tries to dot every I and cross every T.