Dissolution and Calling of Parliament Bill

Lord Newby Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Newby (LD)]

My Lords, I too offer my sympathies to the Minister for having to take forward this Bill under the duress of a heavy cold. I hope that my comments will not add too much to his coughing and spluttering.

This is an exceptionally short Bill but still a very significant one. The Act that it replaces was said by David Cameron to be

“the biggest transfer of powers from the Executive in centuries.”

If we accept his judgment, it follows that the repeal of the Act to return to the position that preceded its passage marks a major transfer of powers back to the Executive. So the key question before us is whether such a transfer is justified. On these Benches, we believe that it is not.

The purpose of the Fixed-term Parliaments Act was to provide a stable framework within which the coalition Government formed in 2010 could operate. In his Second Reading speech in another place, even Michael Gove accepted that it had been successful in achieving this and had prevented the Tories “collapsing the Government” early to gain a political advantage.

The reason we have this Bill before us today is that the previous minority Conservative Government were frustrated in calling an election because they did not have a parliamentary majority. Yet, even with the Act in place, Theresa May was able to call an election, having had a revelation while up a mountain, and Boris Johnson was able to call an election three years early in the wholly exceptional circumstances of 2019.

The advantages of having a fixed term are clear. It brings some certainty and reduces the advantage the Prime Minister has in choosing an election date that maximises his or her chance of victory. Research in the UK by Schleicher and Belu shows that, where elections have been called opportunistically before the statutory end point of a Parliament, it has given the incumbents an average increase in vote share of 3.5% over what might otherwise have been expected, which has translated into an 11% seat advantage. In circumstances where no party has a majority in the Commons—a highly likely scenario for the UK in the future—it gives the largest party a massive advantage.

Fixed terms also provide the parties with a more level playing field on electoral expenditure.

[Lord Cormack (Con)]

I am most grateful. What was the massive advantage in 2017?

[Lord Newby (LD)]

My Lords, the massive advantage was perceived in the mind of the Prime Minister. The massive disadvantage was her judgment, not that she did not have the opportunity to exercise that judgment. We think the exercise of that judgment, on what was by any accounts if not a whim then a very short period of decision-making, is a bad idea for democracy.

As I was saying, fixed terms provide parties with a more level playing field on electoral expenditure. If the Government can plan for an early election, they can ratchet up spending in the year before the planned, but unannounced, date. Opposition parties will typically be unable to take the risk of planning and spending on the basis of an early election date. For these reasons, a fixed-term Parliament is the international norm. Some three-quarters of the world’s major democracies have a fixed term. So do the Scottish, Welsh and Northern Ireland legislatures. No doubt that is why Labour was so enthusiastically in favour of introducing a fixed-term Parliament in Gordon Brown’s manifesto in 2010. I am not arguing that every single aspect of the current Act is incapable of improvement, but I am seeking to defend the principle which lies behind it.

So if we are to reverse the biggest transfer of executive power from the Executive in centuries and hand it back to the Prime Minister, you would hope that there would be a compelling reason for doing so. In moving Second Reading in another place, Michael Gove said that this compelling reason was that

“it gives power to the people.”—[Official Report, Commons, 6/7/21; col. 788.]

This is pure doublespeak. It does not give power to the people; it gives it to the Prime Minster, pure and simple.

I suspect that this Prime Minster will not follow the precedent of his predecessor by having a revelation during a long mountain walk, but he might have it on the roundabout at Peppa Pig World and come back the next day and simply call an election. How do the people have any say in that decision? They clearly do not. They do have the power to vote the Prime Minister back or not at the subsequent election, but, if you really wanted to give power to the people, surely a Prime Minister would follow the public mood and, when it was supportive of an early election, call one. But that is exactly the time when a Prime Minister is least likely to call an election, because the people want elections when they want to change the Government, not retain them. So the democratic argument for prime ministerial discretion on calling an early election is entirely bogus.

This Bill seeks to put the clock back and reinstate prime ministerial powers over Parliament. But it goes further than that. With Clause 3, it seeks to increase prime ministerial power further by removing the power of the court to adjudicate on the way in which that power is exercised. As we saw in 2019, judicial oversight is not just a theoretical possibility but, as the noble Lord, Lord True, said, an actual possibility, and the Prime Minister simply wants to cut out this possibility in future.

If that is his aim, there is a much more satisfactory and democratic way of doing this, which is to make the calling of an election before the end of the full allotted span of a Parliament subject to a vote in the Commons. This reins in the executive power that the Bill seeks to give the Prime Minister, without unduly hobbling his or her ability to call an election—because, at the very least, the Prime Minister would have to consult Cabinet colleagues and persuade their party to vote for such an election.

In practice, it is unlikely that the Prime Minister will be denied an election by Parliament—by the Commons. Oppositions nearly always want elections and, if the Prime Minister is able to persuade neither their colleagues nor the Opposition to vote for one, the likelihood is that it would not be in the national interest. We will therefore support an amendment in Committee to make the premature calling of an election subject to a vote by the Commons. By doing so, we would remove the problem of the ouster clause and restrain prime ministerial power but allow MPs to decide whether it is in the national interest to have an election when the Prime Minister wants to call one. My colleagues will raise other aspects of the Bill both today and in subsequent stages, but, if the Lords can persuade the Commons to take back some control of the electoral process, I believe that it will have fulfilled its constitutional role.

To return to first principles, the British public do not elect a Government; they elect a Parliament, and an Executive are then drawn from that Parliament. Parliament is the servant of the people, and Parliament, not the Executive, should have the decisive vote on when the people should have their say.

Dissolution and Calling of Parliament Bill

Lord Newby Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, like everybody else who has spoken in the Committee so far today, I share the objective of returning to the status quo ante and repealing the Fixed-term Parliaments Act. But as some noble Lords who heard me speak on Second Reading may know, I do so for different reasons from that which the noble Lord, Lord Grocott, and most others have set out today. I supported the original legislation, and the reason why I think that it should be repealed is because something that I believed was a relinquishing of power to the electorate turned into a weapon that got used against the electorate, as my noble friend Lady Noakes has described.

That is why I think it is important that we go back to how we were before, rather than, at this point, seek to introduce something that would maintain a power that the House of Commons did not have before. I thought what the noble and learned Lord, Lord Judge, said when he introduced his amendment was interesting as he said this about where power lies. He carefully made the point that this was not about the current Prime Minister, this was about where power rests in this situation. Should it be with the Executive? Should it be with Parliament? I know that over the last few years the noble and learned Lord has raised many different examples of where there is an imbalance of power between the Executive and Parliament, and that there are some ways in which that needs to be looked at and that imbalance addressed.

I do not think we would be wise to try to introduce a power because of what happened a couple of years ago. The battle for power at that point, in 2019, between the Executive and Parliament was observed, in my view, by people outside Parliament as a battle that should not have taken place. It was power that should not rest in the hands of Parliament. Indeed, it should not rest, in a direct way if you like, in the hands of the Prime Minister. This was about a democratic mandate that was in need of being implemented. I think, for everybody’s interests, trying to introduce the amendment that has been proposed here would be unwise, and the best course of action would be to return to exactly what we had before.

[Lord Newby (LD)]

My Lords, I put my name to this amendment for the reasons given by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley. Like the noble Lord, Lord Grocott, I have been searching for credible arguments against it. I was therefore very grateful that the Minister circulated a letter, setting out the Government’s stance, in which I hoped I might find some credible arguments against it, even if I did not agree with them, but this is what the letter said. It said that it

“will not necessarily achieve the desired outcome”

and:

“Its long-term consequences … are untested.”


I may have got the logic wrong, but until something is implemented how can we know what its long-term consequences are? So I was not too troubled in my belief by that.

Then I read that it was a “novel element”. Anything that is change, by definition, has a degree of novelty to it, so that did not get us very far. It was then said that there could be “(unintended) consequences” without any suggestion of what they might be, so that did not get us much further. It then said it was a “constitutional innovation”. Well, yes—so? That did not get us any further. The letter then said that it had not been “fully considered” and constitutional change needed to be fully considered. Perhaps it had not been, but it has now, so that is not a credible argument. Finally, we had a typically empty threat from the noble Lord, Lord True:

“We are not doing a service to the elected chamber if we ask them to reconsider a question which they have squarely confronted and which they have decisively decided against.”


We might as well go home if we adopted that policy. We certainly would not have been voting against the police Bill at all if we accepted that. That is the sum total of the Government’s response on why we should oppose this amendment.

The further argument—which the Government did not use, incidentally—that I thought had some substance was advanced by the noble Baroness, Lady Noakes. These are my words, not hers: MPs might refuse a Prime Minister an election because they feared for their own seats and so would act out of personal interest rather than the national interest. Against that theoretical possibility, surely there is the more likely possibility of a Prime Minister calling a premature election primarily to save his or her skin, rather than because they have considerations of the national interest uppermost in their mind.

In any event, surely, the constitutional position is that citizens vote for someone to represent them in Parliament, not for a Prime Minister. In my political lifetime, there have been five occasions on which the Prime Minister has changed during the lifetime of a Parliament without triggering a new election in any case. So voters have ended up with a Prime Minister who was not a prime ministerial candidate at the previous election and who has no personal, direct mandate from the electorate. MPs, by contrast, will be held to account by their electorates if they trigger an early election and so, in my view, the decision on whether to do so should rest with them.

I was going to respond to the noble Baroness in terms of what happened in 2019, but the noble Lord, Lord Grocott, has done that extremely comprehensively. I would just say, going back to 1974, that the same arguments apply. Does anyone believe that in the autumn of 1974, if the House of Commons had been asked whether there should be an election, Harold Wilson would have been denied one? The noble Lord, Lord Grocott, gave the reasons. Oppositions are there to oppose, and they do not vote to keep their opponents in office—it is in the name. The key question which the noble Lord, Lord Lansley, raised is by what authority does a Prime Minister decide, uniquely, when an election should be held, particularly, as I said earlier, if that Prime Minister was not the candidate for Prime Minister at the preceding general election? In my view, authority on when an election should be held should rest with the people who have been elected to run a Parliament. That is why I support this amendment.

[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.

Dissolution and Calling of Parliament Bill

Lord Newby Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

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

My Lords, I oppose this amendment. How beguilingly it is put. What could be more tempting than simply to say, “Vote in favour and all you are doing is giving the House of Commons another opportunity to discuss it”? We really ought to consider whether the case in favour is sufficiently powerful to take that unusual step, tempting as it may be. It is certainly not every day of the week that I find myself in agreement with the noble Lord, Lord Howard, and I agree, too, with my noble friend Lord Butler that this solution to the problems that have been identified today is not a good one.

I respectfully remind the House that although the matter took only a little time in the House of Commons, the Fixed-Term Parliaments Act Joint Committee pointed out in paragraph 86 of its careful and thorough report that there was only a minority in favour of giving the House of Commons by Motion a veto over a proposed Dissolution, as this amendment would do. It ended:

“The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”


Of course I recognise that, under this proposed amendment, a two-thirds majority would drop to 51%. However, as the noble Lords, Lord Howard and Lord Butler, pointed out, a hung Parliament could well reproduce the sort of stasis and chaos at which we arrived back in the summer of 2019.

I do not pretend to agree with the noble Lord, Lord Butler, on the next amendment, but this is a different point entirely. Given that, there should be a guardian against the sort of abuse that the noble Lord, Lord Grocott, suggested could occur in the way of the prime ministerial prerogative of Dissolution; I suggest Brenda of Bristol.

[Lord Newby (LD)]

My Lords, I am not quite sure I know how to follow that last remark. I have put my name to this amendment for the reasons so eloquently given by the noble and learned Lord, Lord Judge. Like him, I carefully read the considered and lengthy response of the noble Lord, Lord True, to the equivalent debate in Committee. The noble Lord set out to make our flesh creep about the consequences of this amendment. I shall deal with three of his arguments, one of which has already been dealt with today.

First, the noble Lord said that, if this amendment were passed, the chance of zombie Parliaments would remain high. As we have already heard, the last Parliament was a zombie Parliament to the extent that the Fixed-Term Parliament Act requires a two-thirds majority. Without that, it would not have been. The noble Lord, Lord Howard, said, “Ah yes, but there will be other circumstances in which such a zombie Parliament could obtain”. The noble Lord, Lord Pannick, has explained the first next step if a Prime Minister were unable to win a majority. I think that the noble Lord, Lord Howard, is asking us to entertain as plausible the possibility that, if nobody could form a Government, Parliament would decide that it wished to continue in existence without there being a credible Government. This is completely implausible to me. I cannot foresee circumstances in which such a situation would obtain for more than a very short period—a day or two at most. The noble Lord did not set such circumstances out. I do not believe that this amendment makes zombie Parliaments more likely.

Secondly, the noble Lord, Lord True, said that the amendment is “dangerously silent” on the status and practice of the conventions associated with confidence. Of course it is silent on the convention because conventions are not law. In the case of a Motion of no confidence having been passed, it seems blindingly obvious that, at that very minute, there would be a vote under the Act, as it would then be, to call an election. I cannot see circumstances in which that would not happen. The fact that conventions are not mentioned in this Bill is impossible and largely irrelevant.

Thirdly—and most extraordinarily—the noble Lord, Lord True, argued that this amendment, if passed, would deny or “overturn” the votes of millions. What on earth does that possibly mean? When millions vote, they do so in the expectation that there will be a full term of Parliament. During the course of a Parliament, they may or may not at any particular time wish that there were another election. As it happens, today, I suspect that most people would be rather glad to have an election, but that is not the way the constitution works. Parliament is elected for a period. If that period is to be truncated, the authority for truncating it rests with Parliament. The people have no say in whether to have an early election under our constitution, and the Government are certainly not proposing that, so the argument that, somehow, the amendment would frustrate the votes of millions is completely misplaced.

It comes down to a simple question: where should the ultimate source of power in our constitution rest? This was the question which the noble and learned Lord, Lord Judge, posed. We contend that it should be with Parliament and not the Executive. We contend that the steady accretion of power to No. 10—which, to a limited extent, has been further added to by the decision of the Prime Minister to set up a prime ministerial department— is not good for democracy. The amendment is one small way of reversing that trend.

[Lord Sentamu (CB)]

My Lords, I apologise that I was not present during Committee.

When I was a student, a young person doing A-levels in Uganda, there was a question: “How are the people of the United Kingdom governed?” The book said, “The people of the United Kingdom are governed by the Queen in Parliament under God”, and went on, “and the sovereign is Parliament.” If Parliament is the ultimate authority, to deny it the possibility of agreeing to the Dissolution of Parliament seems bizarre. If it is not, who has the ultimate authority? The noble Lord, Lord Howard, said that the Government could be paralysed and could not govern, but governance can happen only if those in the Executive are accountable and transparent to Parliament. If they are not, we are creating a body of people who think they are not answerable for their decisions to Parliament—that they are the ones who give it legitimacy. They may find themselves paralysed because, for whatever reason, they cannot obtain a majority. We heard that lady in Bristol when the election was announced in 2017. She said, “Not another election!” People are fed up with ad hoc solutions that often do not help.

I support the noble Lord, the Convenor of my group, who has provided a simple solution. If the Government cannot obtain a simple majority for Parliament to be dissolved, so be it. As for the calling of elections regardless because you are not getting your legislation through, well, if Parliament is objecting and it is sovereign, it requires a bit of humility to say, “We did not get it this time; maybe next year.” I plead for this simple amendment, which would resolve all the problems that the noble Lord, Lord Howard, talked about—of the power of the sovereign and the power of the courts. Of course, the courts will intervene if something illegal has been done. Do noble Lords remember the Brexit question, when there was a desire that it should be done through the royal prerogative, the old King Henry VIII powers? The court said, “No. The act to enter into these negotiations was an Act of Parliament, and if you want to do away with it, it is Parliament that must consent for that to be done.” That was when the courts intervened, by the way.

I, for one, support this simple way to resolve the problem that the Fixed-term Parliaments Act created, but we surely cannot go back to the power of the Prime Minister as if Prime Ministers are not accountable to Parliament: they are.

Dissolution and Calling of Parliament Bill

Lord Newby Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I fear that if we had removed Clause 3, although I was very sympathetic to that line of argument, as the noble Lord knows, we would have had the same result. The Commons, whipped, would have sent back the Bill with Clause 3 reinserted. We should not delude ourselves.

Both noble Lords on the Cross Benches performed a signal service. It was right that the noble and learned Lord, Lord Judge, should take the initiative that he did. I supported him then, and I would support him again, but not tonight, because we both made it plain, as did others, that this had to be the decision of the House of Commons. I think Members have made an unfortunate and potentially dangerous decision, bearing in the mind the delicate position of the monarch. I am very sorry they have deleted the wisdom that we inserted into the Bill. But it has, and there for the moment is an end to it.

[Lord Newby (LD)]

My Lords, I echo the sentiments of the noble Lord, Lord Grocott. This is a bizarre situation, in that we said to the House of Commons, “We think, O House of Commons, that you ought to have a bit more power on one of the most important acts of the political calendar; namely, the calling of an election.” It is an act, of course, which affects every one of them intimately whereas it affects us not at all. They have said, “It’s very kind of you to suggest that we have more power, but, actually, we don’t want it.” That seems bizarre and surprising, but if the Commons in their collective wisdom decide that they would rather the Queen retain a power than that they be given one which we have very generously offered to them, it seems churlish of us to insist on it. Therefore, I do not propose that we do.

[Baroness Smith of Basildon (Lab)]

My Lords, we laugh, and in some ways, it is amusing. It is also extraordinary—I am not sure that it is amusing. The Fixed-term Parliaments Act was an Act of its time whose main purpose was to protect the coalition Government, and it succeeded in that to a degree. I was very disappointed to read the response of Ministers in the other place. It seemed to focus on the argument that because all parties agreed that the Fixed-term Parliaments Act must go, there was only one way of doing it. That seemed an extraordinary proposition to make. On the points made by my noble friend Lord Grocott and the noble Lord, Lord Newby, this House had no vested interest whatever in the amendment that it passed. It sought to do so in the interests of the democratic system. The Government’s preferred option was one that we found quite extraordinary.

We enjoy in our Parliament a system of checks and balances in the democratic system. For those of us who do not consider that the Prime Minister alone should decide on the election, there seem to be three alternatives: first, that the courts intervene, which the majority of your Lordships’ House found unacceptable, although I take the point of the noble Lord, Lord Butler; secondly, as the noble Lord, Lord Lansley, said, that the monarchy would be drawn into that decision-making process, which we would all seek to avoid—I was glad that he quoted both Jackie Doyle-Price and Kevin Brennan, because I thought the points they made in the House of Commons were very pertinent; finally, that Parliament should have an opportunity to be engaged in that decision.

Those of my age who remember Wolfie Smith in “Citizen Smith” will have heard “Power to the people”; the Minister said, “Let us hand power back to the people”, but the Government are actually handing power back to the Prime Minister. There was never any difficulty in the election process—there was always going to be a general election—it is about who decides on the election. The Minister probably watched too much bad TV in his younger days. I find it extraordinary that the House of Commons was prepared to give up that power so easily.

I agree that, as the other place—albeit its majority being the Government’s majority—does not wish to pursue this, there is little point in our asking it to reconsider. However, I repeat a question that my noble friend Lord Collins asked the Minister in Oral Questions yesterday, which he sort of answered in the affirmative. The Fixed-term Parliaments Act was a prime example of legislation being passed for one particular purpose without a great deal of thought, and it has had to be undone for all the reasons we know. Legislation made too quickly for a specific circumstance does not protect the constitution in any way. I hope the Minister will agree with me that constitutional change needs much more careful examination of long-term and unintended consequences. We have got ourselves into a right pickle over this one. Does he accept that, when looking at any significant constitutional change, a period of pre-legislative scrutiny and consultation would provide for better legislation at the end of the day?

But for now, bizarre as the decision made by the other place may seem, we do not intend to pursue this further.