Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will concentrate my remarks on Clause 3, the so-called ouster provisions. The clause is deceptively short and simple. There are three provisions here, as the Minister explained, and they had the support of the majority of the Joint Committee on the Fixed-term Parliaments Act, to which reference has already been made. But the chair of the Public Administration and Constitutional Affairs Committee in the other place described them as

“legally unnecessary and constitutionally unwise.”

The Joint Committee’s commentary tells us that first two provisions are there to confirm that the exercise or purported exercise of the powers relating to the Dissolution and calling of Parliament set out in Clause 2 are not to be questioned by any court. These two provisions may well be seen to be unnecessary, because that is the provision already. In the Council of Civil Service Unions case to which the commentary refers, Lord Roskill said that the prerogative power relating to the Dissolution of Parliament was not amenable to the judicial review process. As he put it, the courts are not the place to determine whether Parliament should be dissolved on one date rather than another. But in view of doubts as to whether prerogative powers can be revived, to which the noble Baroness, Lady Smith of Basildon, referred, the protection that the prerogative afforded may possibly not be available, because we would be dealing here with powers conferred by statute. So I can see that there is a case for providing the protection as to their exercise that a statutory power might not otherwise have. It is right that there should be no room for doubt on this matter, for the reason given by Lord Roskill.

The third provision in the clause is an entirely different matter. It seeks to extend the protection of non-justiciability to the “limits or extent” of those powers. As the commentary explains, it is designed to address the distinction drawn by the Supreme Court in Miller v the Prime Minister as regards the court’s role in reviewing the scope or extent of a prerogative power as opposed to its exercise. It seeks, as the commentary put it, “to clarify” that neither is justiciable in the context of decisions relating to Dissolution. This is the provision that was described by the chair of the Constitutional Affairs Committee, in what I would regard as a carefully worded understatement, as “constitutionally unwise.”

In its report, the Select Committee of this House on the constitution, of which I am a member, said that

“judicial review should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”

It went on to say:

“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”


I think that is what the chair of that committee was referring to.

I have no doubt that the Prime Minister felt aggrieved by what the Supreme Court did in Miller. So too, in a way, did I. As it happens, I was a member of the Commission that took part in the Prorogation ceremony. I felt that it was my duty, as convenor, to support the Lord Speaker’s decision to take part in the ceremony in response to Her Majesty’s command, while respecting absolutely the decision of the leaders of the opposition parties—the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby—not to do so. So it was a bit of a shock to the system to be told by the court of which I was previously the deputy president that the proceeding in which I took part was unlawful, null and of no effect. I did not see that coming.

The decision in that case was, of course, controversial. I will refrain from any comment one way or the other as to how the court applied the law to the facts that were before it and especially the remedy it chose. However, I have no doubts at all about its analysis of the law. Two fundamental principles of our constitutional law were at play in that case. The first was the principle of parliamentary sovereignty; the second was the role that the courts play in protecting parliamentary sovereignty from threats posed to it by the use of prerogative powers by the Executive. The court was entirely right to point out that the sovereignty of Parliament would be undermined, as the fundamental principle of our constitution, if the Executive could, through the use of the prerogative, prevent Parliament exercising its legislative authority for as long as it pleased. If parliamentary sovereignty is to play its role, particularly in extreme circumstances, it needs that protection.

That is what the case of Miller was all about. The crux of that decision was whether “the limits or extent”—those are the words of the third provision in the clause—of the prerogative power had been exceeded. It was not about whether, if it was within those limits, the prerogative power had been properly exercised. The commentary on this provision says that it “seeks to clarify” this point. Not at all—all the clarification one needs is to be found in Miller. What this provision seeks to do is remove that protection altogether. That is why it is not only unwise but dangerous.

I hope that I may be forgiven for quoting, as so many people do, the words of Dick the Butcher in “Henry VI, Part 2”. He said:

“The first thing we do, let’s kill all the lawyers.”


He did not like the idea that a few words scribbled by a lawyer on a parchment could undo a man’s reputation. That was just a throwaway line, perhaps in jest, but it serves as a warning about the risks to which democracies may expose themselves if they react in this way against decisions by the judges that they do not like.

I too read the article in the New Statesman to which my noble friend Lord Butler of Brockwell referred; it is well worth reading. There is a spectrum, as it put it, along which countries can move, gradually or suddenly, as the protections on which democracy itself depends are eroded, one by one. I agree with the noble Lord that gradual erosion is what seems to be going on here. Removing the protection that the courts provide in this context may seem relatively unimportant to those in this Government who would say that it is not needed anyway: “So let’s keep the judges out of it”, they are telling us. But the sovereignty of Parliament is fundamental to our democracy. Just as fundamental is the need for it to be protected against the Executive’s misuse of the prerogative, whatever it may be and whomsoever it may come from. Maintaining that protection is what the courts have been doing for centuries. We deprive them of that role at our peril. That is why I believe that the third provision in this clause should be removed from the Bill.

Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Norton of Louth]

My Lords, I shall also speak to my other two amendments in this group. The amendments would ensure that the ouster provisions in the clause did not apply to the purported exercise of the powers to dissolve Parliament contained in Clause 2. There are two principal arguments that I wish to develop in support of the amendments. The first is that they are necessary to give effect to the Government’s intention that the Bill restore the status quo ante. The second is that including the “purported” exercise of powers within the clause is objectionable in principle.

The purpose of the Bill is to restore the position to what it was before the 2011 Act was enacted. As paragraph 23 of the Explanatory Notes concedes, the purpose of Clause 3(c) is

“to address the distinction drawn by the Supreme Court … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”

As the Law Society of Scotland pointed out in its helpful briefing note, that takes us further than the pre-2011 status quo ante. It considers that extending the clause to the purported exercise of the Clause 2 powers, or a purported decision in relation to those powers, may go beyond the bounds of the previous law as expressed in the 1985 case of Council of Civil Service Unions v Minister for the Civil Service. As the note goes on to say:

“We take the view that the inclusion of ‘purported’ appears to be designed to address the decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others … where the absence of the word ‘purported” was treated as significant by some of the judges.”


Either the Bill restores the status quo ante or it does not. If the Government are to be consistent and achieve the situation as it existed prior to September 2011, the references to the “purported exercise” and “purported decision” of powers under Clause 2 need to be removed from the Bill.

The second and fundamental objection is one of principle. The use of “purported” means that the exercise might be beyond the power vested in Ministers. I am not in favour of Ministers having the capacity without it being open to challenge in the courts. The Minister in the Commons, Chloe Smith, said that the clause provided

“an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts.”

She went on to say that

“the check on the exercise of power is for the electorate to decide on rather than the courts.”—[Official Report, Commons, 13/9/21; col. 723.]

“Purported” decisions might conflict with the rule of law. The Minister in the other place was effectively saying that it was not for the courts to determine whether Ministers were acting beyond their powers. I do not think that the letter from my noble friend Lord True really engaged with that point.

It is important to stress that the clause should not be viewed as an attempt to restrict the courts from encroaching on the position of Parliament. That might be how Ministers wish to convey it, but the senior courts have been exercised by the use of powers by Ministers, not by Parliament. Indeed, the most recent high-profile cases that appear to have motivated the Government to use this wording were ones in which the courts sought to protect, not undermine, the position of Parliament in relation to the Executive. In this clause, the Government seek to confer on Ministers wide-ranging powers in a way that I consider dangerous.

The wording of the clause might also be counterproductive. There is no evidence that the courts would want to encroach on the exercise of the prerogative in dissolving Parliament and calling an election.

With these amendments, we are also discussing whether Clause 3 should stand part of the Bill. My contention is that if there is an ouster clause, it needs to be true to the purpose of the Bill, which is to restore the position to what it was before 2011, and that it should omit provisions—in this case reference to “purported exercise” and “purported decision”—that are constitutionally objectionable. If the Government persist in wishing to retain such wording, that serves to reinforce the case for removing the clause. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.

Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.

We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.

Dissolution and Calling of Parliament Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I supported these amendments in Committee and I should like to do so again today. I cannot help feeling that there is just a hint—as the noble Lord, Lord Lansley, put it earlier—of the generals fighting the last war, because it is very obvious why Clause 3 is there: it is to head off what was seen to be a trend at least in the decision in Miller 2.

I will make two points, if I may. First, following my noble friend Lord Butler of Brockwell, I agree that the clause is unnecessary. One of the things that was said by the Supreme Court at the beginning of Miller 2 was to distinguish the Prorogation issue with which it was concerned and Dissolution. It was made quite clear in a very few words at the start of that decision that decisions about Dissolution were nothing to do with the courts. The noble Lord, Lord Grocott, made that point very clearly when he said that this is the most political of decisions that could be taken. That is a very clear warning to the courts that it is nothing to do with them. It is unnecessary, because I cannot see the courts engaging with a Dissolution issue in addition to the points made by the noble Lord, Lord Norton.

The second point that I would like to say a little more about is the unwise precedent. The problem here is that the language of paragraph (c) in Clause 3 removes entirely from the courts the possibility of determining the limit or extent of the powers. The reverse of the coin is that it is the Executive who are the determination and who decide the limit or extent of their own powers. Earlier today, the noble Lord, Lord Reid of Cardowan, said that this was the basis for a dictatorship. My noble friend Lord Butler referred in Committee to a number of examples not very far away from us in Europe, where there is perhaps a trend moving towards that. We have to be extremely careful not to give a signal to a Government that they can get away with an exclusion clause of this kind. The question is how far the clause should go, and it is paragraph (c) of Clause 3 that is completely objectionable, leaving it to the Executive to determine the extent and limits of their own powers.

The question of precedent is worth dwelling on. I admire greatly the skills of the parliamentary draftsmen. They have their own skills and traditions, one of which is that they are very determined to follow precedent in the way in which they engage with legislation. This has great value, because it means that there is constancy in the way in which issues are expressed in our legislation, which is of a very high standard. My concern is that, whatever may be said today about this not setting a precedent, it will nevertheless be there in the books, and the draftsmen will, some years ahead, say, “That is what was done in 2022. It is an example that we can follow.” That is danger that I fear in this clause, which is unnecessary. It is unnecessary, so we should not risk the creation of a precedent that, in future years, we may deeply regret.

[Lord Trevethin and Oaksey (CB)]

My Lords, I respectfully agree with much of what the noble and learned Lord said about the drafting of this clause and agree that it should not be treated as a precedent in the future for other ouster clauses. The drafting is unprecedented, because the decision of the Supreme Court in Miller 2 was itself unprecedented. I do not agree with the amendment of the noble Lord, Lord Butler, and I will briefly explain why.

I regard with horror, and I suggest that your Lordships should regard with horror, the prospect of what one might notionally call Miller 3: namely, a piece of litigation challenging the propriety or legal effectiveness of a Dissolution. In Miller 1, the noble and learned Lord, Lord Reed, now President of the Supreme Court, warned against the legalisation of political issues and observed that it was fraught with danger, not least for the judiciary. There is a danger that, because the Supreme Court in Miller 2 found itself able to determine that case against the Government without getting involved in the underlying political issues, one might suppose that a similar exercise could be undertaken in relation to litigation about Dissolution without the judges having to address political questions in an objectionable way. That reasoning would be fallacious.

It is necessary to bear in mind what happened in Miller 2 in relation to the evidence. The noble Lord, Lord Pannick, who is about to rise, will be able to help us with that if need be. The government evidence in Miller 2 could politely be described as sparse. It consisted of a handful of partially redacted memos and there was no witness statement, as far as I understand it, which dealt substantively with the reasons for—that is, the justification for—the Prorogation. Why that was, I have no idea. It might have been pressure of time. It might have been—though I doubt it—some kind of Machiavellian strategy on the part of the Government, who were unafraid to lose the case. It might have been because no one was prepared to make a witness statement. It might have been for the legitimate reason that the legal position was being argued for that justiciability had to be taken as a preliminary issue, as the Divisional Court held that it should be, prior to any consideration of evidence. Never mind; there was no good evidence from the Government.

That enabled the Supreme Court, when it came to apply its test as to reasonable justification, to say in robust terms that there was no evidence before the court that would begin to support the contention that there was reasonable justification for the Prorogation. In that way, the Supreme Court avoided the need to tackle a question that might have arisen if the Government had given their evidence in a different way. The Prime Minister might have said: “Look, Parliament has made Brexit very difficult. I am engaged in an immensely important negotiation with foreign counterparties, which is going to affect the future of this country for many years. I regard it as desirable to convey the message to my negotiating counterparties that I mean business. That is why I intend to prorogue for an unusually long period of time.” The Prime Minister might have said that and that might have been true—I do not know. If that had been the evidence before the court, it is inconceivable that the Supreme Court justices would have felt able to enter on to that terrain, because it was nakedly political. That is the way that it might have gone.

That indicates that allowing even the faintest possibility of litigation about the legal effectiveness of a Dissolution is a grave error. It should be unthinkable that the judges should be forced to engage with that type of issue. I respectfully agree with what I think the noble and learned Lord, Lord Hope of Craighead, and others, have indicated—that it is very unlikely that the judges would entertain litigation of this nature. They would wisely be reluctant to do so.

But we should recognise the risk of litigation of this nature being initiated for collateral reasons. We are contemplating a period leading up to a general election. All the politicians will be on manoeuvres. There are potentially collateral advantages to litigating points of this nature, so Miller 3, or something like it, is conceivable. It should not happen. That is why, even though the drafting causes me concern, the ouster clause is good and this amendment should not be agreed to.