Dissolution and Calling of Parliament Bill

Lord Grocott Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

Debate on whether Clause 1 should stand part of the Bill.

[Lord Grocott (Lab)]

My Lords, I very much support Clause 1 being part of the Bill, but I want briefly to record how big a decision this is. Just 11 years after the Fixed-term Parliaments Act 2011 was put on to the statute book, with much criticism and objection to it at the time—it was done in the shortest period of time and, as we know from other sources, was decided in a very short period by the coalition partners—we are saying that it should now be repealed. This must be the shortest existence of any major constitutional Act.

I mention that so that we learn, I hope, at least one lesson from it: that major constitutional Bills should not be introduced in anything like the way this one was. At the very least, there should be some attempt to achieve consensus on them if they are to endure. Of course, normally, there should surely be pre-legislative scrutiny. The Act has no friends, as evidenced by the fact that there are no amendments to Clause 1. Clause 1 is terrific; I thought that we should start on a happy note.

[Lord Lexden (Con)]

My Lords, Evelyn Waugh once said that the problem with the Tory party is that it

“never put the clock back by a single second.”

Is it not rather wonderful that it is now putting the clock back by 11 whole years?

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[Lord Beith (LD)]

My Lords, the House is indebted to the noble Lord for elucidating this issue and tabling the amendment. In the Joint Committee, it was worrying that the Government did not initially seem to understand the distinction between requesting a Dissolution and advising a Dissolution, advice that would be binding on the sovereign. I entirely exempt the ministerial reply today from that criticism—the Minister is indeed a former member of the Constitution Committee, which also considered this—but we certainly considered it necessary to explore a little more fully and to criticise the wording of the Dissolution Principles document, the one-page analysis of the issue that made the specific mistake to which the noble Lord made reference.

The refusal of a Dissolution is the only remaining restraint on the ability of a Prime Minister to foreshorten a Parliament in circumstances that might be either entirely appropriate or, in some cases, at least questionable. Subsequent government writing, such as appears in their response to the Joint Committee, indicates that the Government recognise that there are circumstances in which it might be inappropriate to grant a Dissolution, such as a Prime Minister seeking a rerun of an election that has not quite gone according to plan and has not delivered the overall majority that was sought.

Another possibility is the 1974 situation, which I remember vividly because I was elected first in October 1973 and then in February 1974. Ted Heath was unable to establish a coalition, because we did not want to form a coalition with him, so Harold Wilson became Prime Minister. Was he advised that it would be premature to go to the palace and seek an immediate Dissolution? I have no idea, but he did not do so. He took the rather shrewder step of spending about nine months trying to demonstrate that you could have a sanitised Labour Government who did not do any of the things that people worry about Labour Governments doing, and was therefore able to go to the country in a slightly stronger position in October that year. Thankfully, I was re-elected but with a majority of only 70-odd, if I remember rightly; I survived to tell the tale another day. There are circumstances like that in which the issue is a questionable one, and that is why it is important to defend the personal prerogative power.

There are ways of addressing this issue but they do not seem likely to find their way into the legislation as it will eventually be passed. We will discuss Motions of the House of Commons later. They would provide some restraint on a Prime Minister but not very much. Considering that this might not find its way into the final legislation, it is even more important that we protect the ability of the sovereign to decline to give a Dissolution in exceptional circumstances.

Of course, a power like that is more important for what happens behind the scenes than for any possibility that it would be fully exercised and the sovereign would actually have to do it. We are talking about a situation in which the Prime Minister would be advised that it would be unhelpful, inappropriate and potentially damaging to the position of the monarchy to raise the issue at this precise point and, if it was going to be raised, it would be much better to raise it later or at a better moment. Those are the kinds of conversations that surround the few personal prerogative powers that still exist.

The system depends on something that is sadly lacking at the moment, which is a great deal of trust. The Public Administration and Constitutional Affairs Committee in the Commons said that

“some mix of statute and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.”

That has not been happening very much lately, so we should look at this with some care.

The noble Lord, Lord Norton of Louth, has done the right thing by tabling the amendment. I am not entirely persuaded that it makes a difference because my view is that it is a personal prerogative and, unless Parliament legislates it away, it is still there. However, first, it is highly desirable that it becomes clear that the Government understand the position that it is a request, not advice; and, secondly, if there is a general feeling in the House that it needs to be included in the Bill, we can do so. If not, we simply recognise that this is the position and that it has not been changed if we revert to the status quo ante.

[Lord Grocott (Lab)]

My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.

It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.

It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.

[Lord Mackay of Clashfern (Con)]

My Lords, we are very much indebted to the noble Lord for his background in this matter. It is important to remember that there are Dissolution principles to be settled before this situation arises. From time to time they have been revised, but I do not think they have been revised for some time now, and obviously it is appropriate that they should be before a further action is required.

It seems there is an academic argument about whether, once the prerogative powers are stopped as they were by the original Act, they can be revived—and this academic discussion occupies quite a lot of pages. So far as I am concerned, if Parliament says, “You go back to where you were before we did this”, that seems perfectly possible and should be followed. I therefore agree with my noble friend Lord Norton of Louth that it is desirable to put that in the Bill. I do not think it is at all likely that anything of the sort that the noble Lord, Lord Grocott, has mentioned is likely to arise, because the Dissolution principles make that very plain. It is in the form of a request because of its importance, but it will be taken in accordance with principles that are well settled. I very much support this proposal and the basis on which it rests.

[Lord Lexden (Con)]

My Lords, I agree with all those who have said that my noble friend Lord Norton of Louth has done us a very considerable service. He reminded us of the formidable words of Alan Lascelles, private secretary to George VI in 1950. We should, at all times, keep those Lascelles words in mind:

“It is surely indisputable (and common sense) that a Prime Minister may ask—not demand—that his Sovereign will grant him a dissolution of Parliament; and that the Sovereign, if he”—


or, we should add, she—

“so chooses, may refuse to grant this request.”

It is the existence of this power that has ensured, and will continue to ensure, that no Prime Minister has asked improperly for a dissolution in our history.

[Lord Grocott (Lab)]

May I just ask, what would be an improper dissolution?

[Lord Lexden (Con)]

I do not think I could make a list of the possibilities. One can conceive of them, but we trust to the existence of this power and the wisdom of the monarch to ensure that no improper dissolution is likely ever to be brought forward.

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[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.

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[Lord Sherbourne of Didsbury (Con)]

My Lords, I am very puzzled by this debate. There have been words used such as “inappropriate”, “exceptional” and “misuse of power” to suggest that the Prime Minister of the day, when he or she asks the electorate to choose the Government, and where he puts his or her own tenure in No. 10 at risk, is somehow abusing his or her position. I do not understand what those likely positions might be where the Prime Minister of the day can be accused of abusing his or her power to go to the electorate. Nobody has yet produced an example of that. We know when the Prime Minister might want to do that—because they have no majority and want a majority, because they have a very small majority or because they want a mandate for a new policy, possibly—but none of those is an abuse of their power.

If I had read the speech of the noble and learned Lord, Lord Judge, and instead of reading “election” and “Dissolution” had read “Prorogation”, I would completely understand. Of course, it would be an abuse of power to give the Prime Minister of the day the power to extend the life of Parliament, but I do not understand in what situation a Prime Minister can be accused, in these words, of inappropriate or exceptional misuse, by asking the electorate to choose the Government they want, and to put his or her own tenure at No. 10 at risk. I would be grateful if somebody could provide me with some examples.

[Lord Grocott (Lab)]

I am glad to assist, but I would like to ask the noble Lord a question. I have already explained how a Prime Minister who wanted an election could get one, so the power remains with the Prime Minister.

[Lord Faulks (Non-Afl)]

The noble Lord is masked.

[Lord Grocott (Lab)]

I am sorry. God, I will be glad when we get rid of those for good.

The noble Lord, Lord Sherbourne, said that, somehow or other, there is a suggestion that the argument on this side or around the House is that a Prime Minister calling for a general election is bad, undemocratic or inappropriate. We are not saying that at all. We are saying that a Prime Minister would not be a Prime Minister unless he had a majority in the House of Commons, and the Prime Minister would get what he wanted. I apologise for the length of the intervention, but the question I want to ask the noble Lord is: if he feels this passionately about, as I understood it, the Prime Minister alone being able to make that decision, how could it possibly be the case, in his argument, that a monarch—unelected—could say no to the Prime Minister making a request of that sort?

[Lord Sherbourne of Didsbury (Con)]

I am very pleased that the noble Lord asked that question, because the debates this evening have said that we do not think the monarch could conceivably refuse a request for a Dissolution, as the noble Lord has already said. Other speakers have said that the House of Commons would never refuse a Dissolution; that was the thrust of the noble Lord’s speech and the speeches of other noble Lords. We are being asked to put in a brake on the power of the Prime Minister, but we are told that the brake will never be exercised. What is the point of that? I come back to my question: what are the most inappropriate examples of a Prime Minister abusing their power by calling an election? I can think of only two. First, they might, for party-political reasons, seek the advantage of going early because they think they can get a bigger majority. We know that the electorate are not stupid. There are, throughout the whole country, Brendas from Bristol who will react to that—we found this in February 1974 and in 2017.

The other reason which I thought might be in the minds of noble Lords is if the Prime Minister of the day wanted to go to the country with what they thought would be a sole populist or undemocratic programme, and they were worried that the electorate might vote for it. That poses two problems. First, it is denying the public the right to choose the Government and policy they want. If you really want to exercise an effective brake for that sort of reason, you need a different Bill, because this Bill is designed to end the Fixed-term Parliaments Act and go back to the status quo ante. I believe, as my noble friend the Minister said, that this clause to give the House of Commons a veto—otherwise there is no point in giving the provision to it—drives a coach and horses through this Bill.

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A vote in the House of Commons, by hindering the ability of the Prime Minister to call and to request an election at the time of his judgment, could mean that a Government are held hostage and lame duck Parliaments limp on. We have seen it. We have heard many fanciful scenarios in this debate, including the one of the noble Lord, Lord Butler of Brockwell—which I thought very fanciful—but this has happened and could happen again.

[Lord Grocott (Lab)]

My Lord, if the Minister is going down the path of history, can he please address the specific point? On three occasions, the Prime Minister in—I agree with him—that dreadful Parliament, obtained a majority for a general election. That is not a theoretical speculation—it is fact.

[Lord True (Con)]

My Lords, I am coming on to that, as I just said to the House I would. You can look at those circumstances in different ways, I would submit. Perhaps I will deal with that and then go on to the other point.

The Government had effectively lost the confidence of the Commons on the central purpose of its being, which was to deliver the referendum result on a key European policy. As the noble Lord opposite says, they tried to call an election three times, and three times the Commons refused to grant one. Why did the other place refuse to grant one? I cannot remember which noble Lord it was who said in the debate that it was because the leader of the Opposition sat on his hands and decided to prevent an election taking place. The noble Lord said he would not have done, but he did—three times.

The votes for dissolution were 298 on 4 September, 293 on 9 September, and 299 on 28 October. On every occasion they fell short of a majority. The Labour Party cast its vote to secure what it manifestly wished to do, which was to prevent the Prime Minister going to the country. Three times Mr Corbyn was presented—like Caesar on the Lupercal—with the crown of the election that he could have had the following day, on 4 September, 9 September and 28 October, and he declined.

The noble Lord suggests that of course if they had known there would be an election, the Opposition would never have sought to vote against it. By sitting on their hands, the Opposition defied the people and did not have an election.

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[Lord Wallace of Saltaire (LD)]

I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.

The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:

“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”


I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.

That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.

[Lord Grocott (Lab)]

My Lords, I would like to think that the Minister will find this argument conclusive. If he had accepted the amendment on Clause 2 that so many noble Lords thought was valuable—to have parliamentary resolution for a general election—we would not have needed this debate on the ouster clause and could have got home much earlier. But he has rejected it and that brings us to the debate about the ouster clause itself.

In normal circumstances, when eminent lawyers pronounce on issues of law and legality, those of us who are not lawyers intervene with some trepidation. I am relaxed on this issue, however, because the ghost in the room is the debate on Prorogation, not Dissolution, and that it went to the Supreme Court. We all know the debates surrounding that and those of us who are not lawyers are emboldened by the defence that the Divisional Court thought 100% in one direction and the Supreme Court thought 100% in the other. Whichever argument you pick, you will have a few top lawyers on your side.

In my view, that whole episode relates to that dreadful Parliament I keep referring to between 2017 and 2019. All that debate, which went to the Supreme Court, derived from the background of a dysfunctional Parliament—a bad case, if you like. So much of the debate we are having now is with that and the judgments that were made hanging over us. The list of dysfunctionalities of that Parliament knows no bounds. I mention one obvious point: there was a Speaker who, on the biggest debate of the day—the referendum result and its consequences—was highly partisan on one side of the argument. In those circumstances, all sorts of other undesirable things follow.

I, for one, very much regret that the Supreme Court decided to get involved in politics at the highest level. I know there are all sorts of disclaimers that it was not doing that, but that is precisely what happened. It is difficult to imagine a more dramatic, higher-profile political issue than that of leaving or not leaving the EU, and the Supreme Court came down decisively on one side of the argument, in practical terms. As soon as the courts are involved in these kinds of highly charged political areas, we are in trouble.

I can certainly see the need for this ouster clause, but I regret the need for it because we should have dealt with this in the simple way of a parliamentary majority. We keep hearing about the three pillars of the constitution: the judiciary, the Executive and the legislature. In my book, and perhaps I am biased, one of those is greater than the other two—a first among equals—and that is Parliament, which is answerable to the public in a way the other two are not.