Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

The Faulks administrative law review makes much the same point. Conventions are based on trust and executive restraint. Where trust is weakened, statutory authority has to replace convention. I therefore move my amendment, which links Prorogation to Dissolution, because that is part of making sure that we share an understanding of some of these basic constitutional principles.

[Lord Judge (CB)]

My Lords, the amendment in my name and those of the noble Baroness, Lady Smith of Basildon, and the noble Lords, Lord Newby and Lord Lansley, is about the constitutional location of power today and for the next 80 to 100 years. It is not about where, historically speaking, power in Parliament used to rest. It is about now, at the beginning of this century, after at least half a century in which the powers of the Prime Minister have been accreting at an alarming and chilling rate. I will not go through the endless efforts I have made to draw your Lordships’ attention to that fact, but it is a fact.

I was not able to speak at Second Reading but the issue of troublesome prerogative powers relating to Dissolution and Prorogation formed the basis of my contribution to the debate on the Queen’s Speech. I know that I am not taking the Minister by surprise because he and I have had many rather interesting discussions about the constitutional issues. It is important that I add this too: when I made that speech, the present Prime Minister was riding high in the polls. This is nothing to do with the fact that he has troubles abounding at the moment—Prime Ministers always run into trouble at some time. It is not about the present Prime Minister; it is about the person, whoever that might be, who holds this office not being given further power, as the Bill proposes.

We should not have a fixed-term Parliament. We all agree on that. There should be a maximum period. Five years is what is proposed and it makes perfect sense. What did not make sense last time was the proposal that a two-thirds majority was needed in the Commons for that term to come to an end. It did not make sense because of something that should have been absolutely obvious to everybody. I am sorry to say that to those who advocate for it. Just about every important piece of legislation enacted in Parliament has required a bare majority. Nobody set about trying to have two-thirds majorities; a bare majority would do. The Great Reform Act had a majority of two. The Habeas Corpus Act, where all our freedoms were determined, passed because the noble Lord acting as a Teller for one side counted a big fat Peer as 10 and so it was carried. That is what our liberties have turned on. My point is that a two-thirds majority is an aberration.

The question is: how do we replace the legislation? We have had the beginning of a fascinating discussion: do the current proposals revive the prerogative power? Fun—the noble Lord, Lord Norton, can get his students to write endless essays, all getting Firsts if they agree with him, on this subject. But this is the point: whatever the theory might be, the reality is that the power of Dissolution will now be based on statute—this statute, which might be changed. Prerogative power does not get elevated out of thin air; it is founded on the statute.

In answer to one or two of the matters raised in the noble Lord’s Amendment 1, whether the theory is that the Prime Minister gives Her Majesty—the monarch, rather—advice or a request, it seems to me, and here I agree with the noble Lord, Lord Grocott, absolutely impossible to understand that the monarch of the day would be prepared to enter into tempestuous political controversy, threatening the very existence of the monarchy, if the prime ministerial advice or request was rejected. It seems inconceivable. It might have been possible when the Lascelles letter was written to the Times in 1950. It was never put to the test; it never arose. In my view, it is inconceivable. If my view is right, here in the 21st century, the current legislative proposal in this Bill is that the decision whether Parliament should be dissolved would be vested exclusively in the Prime Minister of the day. Today, in a modern democracy, an uncurbed power to have Parliament dissolved—it is rather astonishing to think about it.

Of course, as was said in an earlier debate, it is perfectly true that the Prime Minister, in making his or her decision, has to be mindful of the possible adverse reaction of the electorate if they choose to think that his or her idea of having an election is a bad one. Of course it is, but whether the public do or not, general elections are about the next five years. The election arrives and a decision is made on the health service, the education system, the Armed Forces. It is not just about this single decision made by the Prime Minister. So I go this far with the argument against me: okay, the Prime Minister would take into account possible adverse reactions from the electorate if the electorate do not want an election. But this is not a principle; it is simply a matter of prime ministerial judgment. It is not constitutional control; it is the Prime Minister making a purely political decision: “Where does the balance of advantage to me and my party lie?”

It will also be suggested—it has been suggested to me and I have read it pretty frequently—that recent events in the Commons in the context of Brexit underline the need for this prime ministerial power. The Brexit debates were hardly a model of clarity but let us remember what they reflected: a huge parliamentary and, indeed, national divide, splitting parliamentary parties themselves, in the context of the constitutional aberration of a referendum, with the Dissolution process itself governed by the requirement for a two-thirds majority rather than a simple majority, which, as I said a moment ago, altered parliamentary processes and, indeed, strategies. In constitutional terms, the Brexit shambles demonstrated the folly of a two-thirds majority being superimposed on the result of a referendum that was not welcome to a majority in the House of Commons. That is not a sufficient justification for reviving or creating—it does not matter what you call it—this unrestricted power over the length of the life of the Parliament for the Prime Minister of the day.

These arguments overlook something so obvious that it is not merely in danger of being overlooked, it is being overlooked. I am not going to let it be overlooked. The Dissolution of Parliament eradicates the choice made by millions of citizens when they cast their votes at the previous election and chose who would represent them in the House of Commons. That sounds over- dramatic, but I invite your Lordships to think about it, because that is what it means.

To ensure continuing democratic involvement, to ensure that we live in a democracy and to enable us all to reflect on where power should lie, of course there has to be a finite time for each Parliament. That is a necessity in a democracy. But when the Dissolution is not a consequence of the effluxion of time but is simply based on a unilateral prime ministerial decision, the votes at the earlier general election are wiped out. The earlier democratic decision is revoked. One vote trumps millions of votes. To me, in a democracy there is a certain level of absurdity about such a principle. If this Bill passes unamended, the effect of those votes will be revoked by—and I am choosing a word used recently by the Delegated Legislation Committee—diktat. If you do not like “diktat”, call it decree, call it command, call it whim, call it fancy. I do not mind what you call it. but it is one person’s decision—unconstrained and unrestricted—by an assessment of political advantage.

Surely in the 21st century the exercise of power to change and to ditch the democratic vote should at least be subject to a modicum of control. The amendment from the noble Lord, Lord Norton, offered the possible control of the monarch and, for the reasons I have given, I respectfully suggest that that is not sufficient. Surely we should rest some responsibility on the House of Commons of the day—the elected representatives. That is what the Commons is there to do: to control and to keep an eye on the Executive and to keep a particular eye on the accreting power of the Prime Minister.

This is something that we cannot just accept on the basis that a prerogative power is being revived. This is going to be a statute.

[Baroness Taylor of Bolton (Lab)]

My Lords, I listened carefully to the noble Lord, Lord True, and he is right that this is an important Bill. I very much welcome the repeal of the Fixed-term Parliaments Act—I was never a fan and I am pleased to see it go.

I hesitate to disagree on any occasion with the noble and learned Lord, Lord Judge, but I am not sure that I follow his logic entirely. Maybe that is because of the political experience that some of us have seen and felt when Prime Ministers have not always got these things right and have not always chosen the right minute to have an election. My noble friends Lord Grocott and Lord Rooker will well remember 1978 when Jim Callaghan did not have an election at a time when people thought it might be advantageous and subsequently lost a few months later. Gordon Brown did not have an election in 2009 and subsequently lost a year later.

The noble and learned Lord, Lord Judge, is right that this is about the constitutional location of power, but it is also about the role of the Executive and the legislature. Yes, the legislature is there to hold the Government to account—a very important function. If I was in the House of Commons at the moment, having been given a vote by the Fixed-term Parliaments Act I think I would have wanted to hold on to that vote to say whether an election should take place. I thought that that might have been one of the compromises that was reached during the consideration of this Bill by the Government and when the Joint Committee looked at it. I am surprised that the Commons gave up so easily the power to have a say and to sanction the calling of a general election.

It would not necessarily have been a simple thing to do. The noble and learned Lord, Lord Judge, mentioned the two-thirds majority that was clearly just part of the political fix of the original deal between the Conservatives and the Liberals after the 2010 election, and that is a non-starter. However, I wonder whether he would say that the majority had to be 50% plus one of those voting on the issue or 50% of the whole House plus one. What would the Motion be and what would the role of the Speaker be in terms of a tied vote? We have to consider all those arrangements. I do not think it is a simple issue although, had I been in the Commons when this Bill was going through, I would have been very reluctant to give any say whatever in terms of when an election should take place.

--- Later in debate ---

Tabled by

[Lord Judge]

3: Clause 2, page 1, line 9, at end insert—
“(1A) The powers referred to in subsection (1) must not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””

[Lord Judge (CB)]

My Lords, it is rather fun to be clothed in the costume of a revolutionary who is about to tear down the constitution. I do not think anyone has ever thought of me in those terms, and my family will be absolutely fascinated by it.

I have found this an interesting debate on all sides. It is perfectly obvious that I shall have to read the debate, which I shall. It is also perfectly clear that there is nothing further that I can say in private meetings, in the Chamber or anywhere else that will enable me to persuade the Minister to change his mind or his position.

I remind noble Lords that we are simply asking that the House of Commons should have a chance to look again at the proposal before us so that it can make up its mind. Its Members had a debate, but when you read it you see that—this sounds discourteous, and I suppose in a way it is—the issue was hardly addressed. All that I am asking in this amendment is that they should be given a chance to think about it. I would be perfectly happy for them to reject it; that would be their decision. For today’s purposes, I shall withdraw the amendment, but I shall reflect on what should happen at the next stage.

Amendment 3 not moved.

Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

Moved by

[Lord Judge]

1: Clause 2, page 1, line 9, at end insert—
“(1A) The powers referred to in subsection (1) shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””

[Lord Judge (CB)]

My Lords, in the recent Committee debate I undertook to reread Hansard because I particularly wanted to address the views expressed by those who disagreed with this amendment. I have done so. I continue to respect those views but I do not share them. I am going to urge the House that understandable reasons should give way to compelling ones.

The arguments focused largely on the merits or demerits of the amendment, but in a sense what we were discussing does not really matter because, as I hope I made clear in my reply to the debate, it is obviously not for this House to decide the issue; it is for the other place to do so. It is a decision for the elected Chamber, and we are not elected.

The purpose of the amendment is simple: the objective is to offer the other place an opportunity to reflect again on this hugely important constitutional Bill and see whether it may have second thoughts. If the second thoughts lead the other place to the same view, so be it: that will be its view, and we must accept the view of the elected Chamber. However, I intend to abide by whatever decision is made by it after what I hope may be a fuller consideration of the merits or demerits of the arguments both ways—much fuller than it was, given the somewhat peremptory way in which this entire Bill was dealt with.

We have become habituated—have we not?—to the steady, apparently unstoppable accumulation of power in No. 10 Downing Street, and we have done so while simultaneously the authority and weight of Parliament itself, and the House of Commons in particular, have been diminishing. It is astonishing to think that we are now proposing to resurrect the medieval concept of the prerogative, the concept on which the divine right of kings was based. King James, and King Charles just across the road, will be laughing as they turn in their graves. The king lost his head in part because he kept dissolving Parliament.

I wonder whether any noble Lords heard Oliver Cromwell thinking of stepping off his plinth outside; I thought I heard a movement or two, but he has gone back. Cromwell, having been a great parliamentarian, decided that Parliament was not doing what he wanted, so Parliament was “purged”—an interesting thought and an interesting use of words. At that stage in our history, Parliament had obtained, through the Long Parliament, the right to dissolve Parliament. Cromwell did not dissolve it because he did not have the power to do so; he simply purged it. What are we doing resurrecting an ancient power in the 21st century?

--- Later in debate ---

[Lord Judge (CB)]

My Lords, we have probably talked too long already, but I find it wonderful to think that my arguments have been described as “beguiling”—that was my old friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He has reminded me of the days—our boy days—when we used to go round the county courts. He would always do it, every time: he would get up and say to the judge, “Mr Judge has made a very powerful argument,” or “a very remarkable piece of advocacy” or whatever it might be, and then he would punch me straight between the eyes and say, “But he is wrong”. Beguiling arguments have their strengths. They are beguiling because they are soundly based.

And then, I have just heard the noble Lord the Minister create a whole series of fences. It is like Becher’s Brook every time as we go around the course. The point of this amendment is for the issue to go to the other place and for the other place to consider it and decide whether those hurdles are ones that can be overcome or not—to decide which way it should go.

[Lord True (Con)]

Does the noble and learned Lord set at naught the recommendation of the Joint Committee of your Lordships and the other place which considered this proposition, rejected it, and cited it as contrary to the public interest?

[Lord Judge (CB)]

There was a majority in favour of the proposition that the noble Lord the Minister has put forward. I happen to think that the minority was right. I am inviting us to let the House of Commons have another look and make its own mind up. They will take into account the decisions, recommendations and all the papers that they are given, I hope, and come to their own conclusion.

What I did find slightly startling about the noble Lord the Minister’s response was the idea that when a Prime Minister seeks a general election, that is an act of deep humility. It is not. It is an act by an individual in power who is seeking the best possible way of retaining power. Elections are not sought in the public interest; they are sought for the advantage of the party in government. Humility has nothing whatever to do with it.

Finally, I want to raise a serious point. I find the idea—it has been espoused by a number of noble Lords—that we should stop any risk of the elected House acting as zombies. What an insult that is being paid to the elected Chamber by this House. Of course, the House will get things wrong—every House, every institution, gets things wrong. But the idea that we are going to suddenly be frozen in a situation which is incapable of movement and the Government will be paralysed and things will not work and the electricity will be turned off, all because the Commons has decided to reject a Prime Minister’s desire for a dissolution is, with great respect, bunkum. I do not propose to withdraw this amendment. I seek the opinion of the House.

Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

3rd reading
Thursday 24th February 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, I add my thanks. It is important that we conduct legislation in the House, and off the Floor in between the different stages, in the way we did on this Bill and I hope will do also on the Elections Bill—a much longer and more complex Bill. Indeed, we discovered on Second Reading of that Bill yesterday that abolishing the fixed terms for Parliament has knock-on effects for third-party campaigning—a point made in yesterday’s debate. We in this House often deal with the complex interdependence of different aspects of the rules that govern our democracy. There will be a rising tide of opinion inside and outside Parliament that we need to look at some of these things fairly soon together, rather than in one chunk after another. I regret to repeat—the Minister will hear it yet again—that I did agree with the part of the Conservative manifesto that said there should be a constitutional commission. I hope it will be in the next Conservative manifesto, and I hope it will be in the manifestos of other parties and that it will then happen. Having said that, I look forward with interest to how the Commons will respond to the Lords amendment, and perhaps it will return here.

[Lord Judge (CB)]

My Lords, I join in thanking everybody. I have two points, one serious and one less so. One is an entirely private thought, so nobody is listening to me saying this: I hope the Commons has enough time to look at the issues that arise in relation to this Bill. The other is of particular thanks to the noble Lord, Lord Lisvane, who is not in his place, for reminding me of a lesson I learned when I did English language grammar—gosh, does that still exist? I was taught the auxiliary verbs “shall”, “should”, “will”, “would”, “may”, “can”, “must” and “do” and to appreciate the difference between “shall” and “must.”

[Lord Grocott (Lab)]

My Lords, I have just a small observation on the suggestion of the noble Lord, Lord True, that we were somehow telling the Commons to alter its procedures or advising it on its procedures in relation to this Bill. What we have done is say to the House of Commons that we are an unelected House, but we want it to think again whether it is wise for it, the elected House, to say, “No, we don’t want these powers of Dissolution at all. We think it is important they are carried out by the monarch.” I think that is a development without precedent anywhere in the world—the legislature saying it does not want these powers and wants to give them back to the monarch. That does put a slightly different construct on what we are asking the Commons to consider.

Dissolution and Calling of Parliament Bill

Lord Judge Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, with the leave of the House, I will briefly remind your Lordships of where we find ourselves. Your Lordships’ House amended the Bill, which had been passed by the other place, to give the Commons the right to a veto on dissolution and invited the other place to reconsider its decision. As the noble and learned Lord, Lord Judge, told us, the amendment would offer the House of Commons an opportunity to reflect again on this highly important constitutional Bill.

It has now been considered by the other place again, and the Commons unsurprisingly maintained its previous decision. During the discussion in the other place, Members noted the flaws of a prescriptive system and feared that it would recreate the paralysis of the 2019 Parliament—something that the manifestos of both major parties at the last general election said they wished to avoid. Furthermore, the importance of retaining the flexible nature of the constitution was emphasised.

Your Lordships asked the other place to consider its role, as is your Lordships’ right. For a second time it has done so, and it has decisively rejected a Commons veto, placing its trust, as do the Government, in the constitutional practices that served this country well for generations before the failed experiment of the Fixed-term Parliaments Act. The Government agree with the view of the other place: the amendment would undermine the rationale of the Bill.

We are now within reach of securing important and historic legislation and delivering the manifesto commitment of two political parties—and notably, from my point of view, of the Government. The Bill returns us to the status quo ante, revives the prerogative powers for the Dissolution and calling of Parliament, and preserves the long-standing position on the non-justiciability of these powers.

I thank all noble Lords for their important engagement in the passage of this Bill, which was valued by me and the Government. It deepened reflection on the Bill and the principles behind it. However, I would be grateful if your Lordships now accepted the clear decision of the other place, which, as the reason before us today notes, is that

“the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”

That is a very clear message from the other House, and I urge your Lordships not to insist on their amendment.

[Lord Judge (CB)]

My Lords, after a short debate in the other place, the amendment proposed by this House was disagreed, and here we are today. There is still an issue: we believe the Dissolution of Parliament should not be based on the revival of the prerogative, but the other place takes a different view. The other place is the elected Chamber. As I made clear during the debate, this issue was to be decided not by Parliament as a whole but by the other place because that is the elected Chamber. It has spoken. I stand by the undertaking I gave during the debate, and therefore this must be carried.

In doing so—I think I am allowed to say this—I very much hope that, in the long march of the future, it will turn out that the decision of the House of Commons is vindicated. I really do hope that. I would like to think that I will be right, but I still do not have confidence that we can be sure that no future Prime Minister will misuse or abuse this power. We will therefore have to wait for the future to decide who, in truth, was right on the issue.

[Lord Lansley (Con)]

My Lords, I hope we are all agreed that we should not insist on the amendment that we passed on the previous occasion. However, we were right to ask the other place to think again. Indeed, even though it was a relatively short debate, and programmed as such, it was an opportunity for a number of Members to think again—if not necessarily to change their minds, at least to reflect on the nature of the decision that was being made. For example, Jackie Doyle-Price said:

“In building legislation that will last, we need to ensure that we have sufficient, adequate checks so that any Prime Minister will not abuse their position.”


Kevin Brennan asked a very interesting question, which we raised here:

“What would happen where the Prime Minister of a minority Government wished to call a general election, but there was the possibility of an alternative Government being formed? Would that Prime Minister be able to dissolve Parliament by prerogative in those circumstances, or would another person be given an opportunity to form a Government and a majority in the House of Commons?”—[Official Report, Commons, 14/3/22; cols. 647 and 643.]


Of course, the answer is that such a person may be given such an opportunity but that would be by the exercise of the discretion of the sovereign, which would draw the sovereign back into decision-making—something we were all agreed that we wanted to avoid.

The point is that our amendment was intended to raise these issues but not in any sense to undermine the manifesto commitments of the two main parties to repeal the Fixed-term Parliaments Act. However, the manifestos did not say how the Act was to be replaced.

The Government have settled to their satisfaction that the constraint of Parliament upon the prerogative power is to be removed, but they have not settled the question of whether the sovereign might continue to be drawn into Dissolution decisions. It is unfortunately likely that, if there were to be another coalition—I speak as a former Minister in a coalition Government—this issue will resurface; it is bound to do so. Like the noble and learned Lord, Lord Judge, I hope that we will be proved wrong and the Government proved right.

In such important constitutional legislation—the Government are fortunate in having my noble friend on the Front Bench to steward it in this place—we should be looking for consensus and certainty. I am not sure that this Bill has achieved that. None the less, I hope that the Bill will succeed in its objectives.