Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, as we have heard, the Bill is designed to repeal the Fixed-term Parliaments Act and put the constitutional position back to what it was before September 2011. The Fixed- term Parliaments Act was, as we have heard, designed as a short-term political fix but with significant constitutional consequences. As the Constitution Committee observed, the policy behind the Bill shows little sign of being developed with constitutional principles in mind. Instead of a “fixed-term parliament Act”, we ended up with a semi-Fixed-term Parliaments Act.

The Act has provisions which are constitutionally problematic and not well understood. Section 2(1)(b) of the 2011 Act confers, in effect, a veto power on the Opposition over the calling of an early election, as demonstrated in 2019, whereas Section 2(3)(b) potentially gives the Government a let-out provision in the event of losing a vote of confidence—something not possible under the convention on confidence that existed before 2011. Confusion as to its provisions has itself been part of the problem.

I turn to the provisions of the Bill before us. Let me begin by addressing what I shall term the silence of the Bill—that is, what it omits—before turning to the need for the omission to be extended. It is a short Bill, but it should be even shorter.

A Government rests for their continuance in office on the confidence of the House of Commons. That is not peculiar to the United Kingdom; it is a feature of parliamentary systems of government. The silence of this Bill on confidence motions enables the convention that prevailed before 2011 to be restored fully. The convention was not displaced by the 2011 Act, but parts of it disappeared.

Prior to 2011, the convention was that, if the Government lost the confidence of the House, they either resigned or requested the Dissolution of Parliament. A lack of confidence could be expressed by the House passing a vote of no confidence, by defeating a vote of confidence sought by the Government, or by defeating a Motion to which the Government had attached confidence. The 2011 Act cut off the capacity for the Prime Minister to request Dissolution in the event of defeat on the last two. The Prime Minister can still designate a Motion as one of confidence and, if defeated, tender the Government’s resignation, but cannot unilaterally trigger Dissolution.

The Joint Committee on the Fixed-term Parliaments Act recommended that the principles and conventions it set out should be adopted as the basis

“for creating a new shared understanding of conventions and practices.”

The understanding would certainly be new, as the report stated that a lack of confidence could be expressed by

“Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and Estimates process”.


The problem with this is that defeats in the course of the supply and estimates process occurred in the 20th century without the Government treating them as confidence issues. The Joint Committee’s interpretation would thus not only enshrine the concept of implicit votes of confidence but expand what fell within it.

It is a relief that the Bill does not seek to follow the Scotland Act 2016 in seeking to put a convention in statute. The 2016 Act included what purported to be a convention, the Sewel convention, thus creating a contradiction in terms—a nonsense recognised by the Supreme Court. The confidence convention is a convention. It has some fuzzy contours, but its defining principle is clear. The House of Commons can remove the Government by withdrawing its confidence. If the Government fail to recognise a vote as entailing confidence, it is open to the leader of the Opposition to move an explicitly worded vote of no confidence.

Should the silence of the Bill be extended? Given that the intention is to put the situation back to what it was prior to September 2011, do we need to include provisions governing the prerogative and the exclusion of the courts from any decision to seek Dissolution? I can see the argument for the first, but not the second. As Professor Mark Elliott has noted, nothing in the 2011 Act demonstrates that it sought to abolish the prerogative of Dissolution. The prerogative may be deemed to be in abeyance and, with the provisions of the Act removed, it comes back into play. Clause 2 seeks to remove doubt as to its existence but, by the very act of doing so, creates the question of whether it is now not a prerogative power but a statutory one.

In practice, the result either way is that the power of Dissolution rests with the Crown and is a personal prerogative. The sovereign retains the power to refuse a request for Dissolution. The Joint Committee felt that the Government should consider how best to articulate the role of the monarch in the process of granting or refusing a request for Dissolution. That, I contend, is more appropriately undertaken by bodies other than the Government. The Lascelles principles came from the source most appropriate for articulating them.

The Joint Committee also heard evidence that the Lascelles principles or related constitutional conventions should be referenced in statute. In my view, that would fall foul of my earlier observations. They would cease to be conventions and would be subject to judicial interpretation unless, as with the Sewel convention in the Scotland Act, the courts deemed them non-justiciable. The relevant convention here is that Ministers act in such a way as to not bring the sovereign within the realms of partisan controversy.

As we have already heard, Clause 3 is the most contentious provision and conflicts with the Government’s goal of restoring the position before 2011. The ouster clause is designed to ensure that Clause 2 does not fall within the scope of judicial review. This is constitutionally objectionable, especially in Clause 3(c) in respect of limits and extent, for the reason just given by the noble and learned Lord, Lord Hope of Craighead.

I recall the late Lord Simon of Glaisdale arguing against a provision designed for the removal of doubt on the grounds that there was no doubt to be removed. There are shades of that in this provision. In what circumstances does my noble friend Lord True envisage that the court could conceivably intervene in the granting of a request for the electorate to exercise their power to choose a new House of Commons?

These are all matters for Committee. The Bill is a manifesto commitment and the principle has been approved by the other place. Our task is one of detailed and critical scrutiny.

Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

1: Clause 2, page 1, line 6, after “Her Majesty’s” insert “personal”

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, the Government have a manifesto commitment to get rid of the Fixed-term Parliaments Act. The Opposition also have a manifesto commitment to repeal it. This Bill repeals the Act and seeks, as we have just heard, to restore the status quo ante. Like my later amendments, Amendment 1 is designed to ensure that the Bill does precisely that.

Amendment 1 makes it explicit that the prerogative power to dissolve Parliament and call a new Parliament falls within the personal prerogative of the sovereign. Since the 17th century, the powers that remain with the Crown and have not been displaced by statute have come to be exercised in the name of the Crown or by the monarch, acting on the advice of Ministers. There are three personal, or reserve, prerogative powers remaining—that is, where the monarch does not act on advice—although two are governed by conventions of the constitution. Until the enactment of the Fixed-term Parliaments Act, the power to dissolve Parliament was a prerogative power that was not exercised on advice. A Prime Minister requested Dissolution but the monarch was not bound to accede to the request. Although the practice was to grant the request, there were circumstances in which it could be envisaged that the monarch could refuse it.

As is well known, there was some uncertainty as to what those circumstances may be. In 1950, the King’s private secretary, Alan Lascelles, wrote anonymously to the Times identifying circumstances in which a request for a Dissolution may be refused. Prime Ministers were not able to take it as given that a request would be granted. My understanding is that, in 1993, No. 10 contacted the palace to check that, in the event of the Government being defeated on the Motion on the social protocol of the Maastricht treaty, which the Prime Minister had made a vote of confidence, a request for Dissolution would be granted. As the Joint Committee on the Fixed-term Parliaments Act reported:

“As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.”


There is an argument that the power to dissolve Parliament should not be within the sovereign’s gift. There is an argument that it should be. I believe it important that a Prime Minister does not have the capacity in all circumstances to determine the date of a general election. This, however, is not the occasion for that argument. If the Bill is to restore the status quo ante, it is not a question of whether the power should reside with the sovereign but, rather, a case of ensuring that the Bill puts it beyond doubt that it does so.

This amendment would, therefore, put on the face of the Bill that the prerogative to dissolve Parliament and call a new Parliament is a personal prerogative. The motivation for it stems from the Government’s initial list of Dissolution principles, referring to the sovereign acting on advice. As the Joint Committee recommended:

“If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to ‘advice’ on dissolution with ‘requests’ for dissolution since the Monarch must accept Prime Ministerial advice.”


The Government took this on board; the Explanatory Notes to this Bill refer to the sovereign granting Dissolution

“on the request of the Prime Minister.”

However, it is worth quoting what the Government said in their response to the Joint Committee’s report:

“In repealing the FTPA, we are returning to a position whereby the power to dissolve Parliament is exercised solely by the Sovereign as a ‘personal prerogative power’. We are grateful to the Committee for its scrutiny of how this is described in the dissolution principles paper, and agree that the better description is that the Prime Minister ‘requests’ a dissolution.”


The wording rings an alarm bell. “Requests” is not a “better description”. It is a correct statement of the constitutional position that pertained prior to the enactment of the Fixed-term Parliaments Act in September 2011. To say that “requests” is a “better description” than “advice” is to convey that it is simply a choice of words to convey the same thing. If the Government accept that the power to dissolve is a “personal prerogative power”, it is not a power exercised on advice. The wording of the Government’s response does not instil confidence in the grasp of Ministers and officials of the principles governing our constitutional arrangements.

Given that, I believe that there is a case for putting it beyond doubt that it is a personal prerogative power. At the very least, this debate provides an opportunity for the Minister to put it on the record at the Dispatch Box that it is a personal prerogative power. However, I see no reason why it should not be in the Bill. The Government are committed to restoring the position as it stood prior to the Fixed-term Parliaments Act taking effect. The amendment does not challenge that; rather, it would ensure that it is achieved. I beg to move.

--- Later in debate ---

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

My Lords, I thank all those who contributed to what has been an important and interesting debate. I am grateful to my noble friend Lord Norton of Louth for bringing it forward, and I also welcomed the opportunity to talk to him about it. What I am going to say on the record is, I hope, a response to that discussion and to matters raised in this debate. I was struck by the fact that the noble Lord, Lord Beith, in an elegant and thoughtful contribution, envisaged circumstances where the reserve power could apply. The noble Lord, Lord Grocott, said that it was inconceivable. The reality is, as we will discuss later, that the Government’s belief, and the traditional practice, is that the reserve power has an important constitutional role.

The noble Lord, Lord Grocott, had a little go at another Second Reading speech at the start. I agree, of course, with what he said and with what my noble friend Lord Lexden said. I also agree with what the noble Baroness, Lady Smith, said last time around. It is absolutely true that the 2011 Act was, in her words, clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. I freely acknowledge the wisdom and accuracy of those words.

There is general support for the Bill, and I welcome that. I cannot encourage the noble Baroness opposite to think that all the amendments are clarifying. I think some of the discussions we have had would involve driving a coach and horses through the Government’s intentions on the Bill, as I hope to persuade the House later.

Turning to the amendment of my noble friend Lord Norton, I repeat that I am grateful to him for tabling it. Clause 2 was carefully drafted to put beyond doubt that the prerogative powers relating to the dissolution and calling of Parliament will be revived. As my noble friend Lord Norton outlined, these are prerogative powers that are personal or reserve prerogative powers, meaning that they belong to the person of the sovereign, acting in the sovereign’s individual capacity. The noble Lord has also sought to place on record and beyond doubt that the dissolution prerogative power is not exercised on the advice of the Prime Minister but is instead a request made to the sovereign. I can assure him that that is the Government’s position.

Turning specifically to Dissolution, the Government have recognised in response to the Joint Committee, for whose work we are extremely grateful, that this personal prerogative is exercised by the sovereign on the request of the Prime Minister, not on their advice. I am pleased to reassure your Lordships that the Government fully accept this accurate characterisation and are grateful for the Joint Committee’s considered conclusions on that point and the submissions made in the debate.

I hope that very clear statement on the record will gratify and ease the concerns of my noble friend Lord Norton and others. I therefore thank him again for tabling the amendment as it has given the Government an opportunity to clarify this point in Parliament, and given this Committee the opportunity to debate this aspect of the constitution. I hope my statement has provided sufficient clarity on the nature of the Dissolution prerogative so that my noble friend may feel able to withdraw his amendment.

[Lord Norton of Louth (Con)]

My Lords, I am extremely grateful to everyone who has spoken. It has given rise to a very valuable debate with some very helpful interventions. I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.

Today, however, is the occasion for that debate about the prerogative being revived. I accept that the Bill achieves what it is designed to do: to provide that the prerogative comes back and to put it beyond doubt because of that academic debate about whether it could or could not. This establishes that it does. That has to be our starting point because, as the noble Baroness, Lady Smith, said, it is designed to restore the status quo ante. Therefore, the purpose of my amendment is to achieve clarity of that purpose and that it is a personal prerogative, the distinction I drew —in response to the noble Viscount, Lord Stansgate—in opening. It is one of only three prerogative powers that the monarch does not exercise on advice.

I deliberately quoted the report of the Joint Committee, which the noble Lord, Lord Beith, referred to, in relation to the point that the noble Lord, Lord Grocott, raised: the practice is that the monarch has acceded to requests for Dissolution. I was also trying to touch on the fact that No. 10 has contacted the palace in advance to make sure that it will be granted. I always think that is a useful deterrent; it makes the Prime Minister think about it. There is now the convention that Ministers do not act in a way that would embarrass the Crown, so there is some restraint there. There is a useful purpose in its existing in the same way that, formally, the monarch does not appoint the Prime Minister. That, again, is one of the powers not exercised on advice. There are certain elements there that remind Ministers that there is a higher authority to which they are responsible. There is a purpose in it and a useful role, but that is a wider debate. My starting point is that the purpose of the Bill is to restore the status quo ante and my amendment is focused on that. It is working within the purpose of the Bill and what it is designed to achieve.

As I said in opening, I was keen to get the Minister to put on record at the Dispatch Box that it is a personal prerogative power. Therefore, that is a necessary condition. I will need to reflect on whether it is a sufficient one, but for the moment I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

Moved by

[Lord Norton of Louth]

4: Clause 3, page 1, line 17, leave out “or purported exercise”
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.

[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.

--- Later in debate ---

[Lord True (Con)]

I will come to that particular piece of legislation—definitely—since it has been raised. To complete what I was saying, the prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing its future and power into the hands of the people. We therefore believe that Clause 3 is appropriate and necessary, as judgment on the Government’s actions in such matters should be left solely to the electorate at the polling booth. I stress that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. The Judicial Review and Courts Bill, by way of contrast, contains an ouster clause to prevent the judicial review of decisions of the Upper Tribunal to refuse permission to appeal decisions of the First-Tier Tribunal.

I turn to the potential consequences of the amendments proposed. Deleting the wording or the clause would undoubtedly make the dissolution prerogative more susceptible to potential litigation. In effect, the decisions in Anisminic, Privacy International and Miller II potentially offer a route for a court, or more precisely a mischievous litigator, to derail an election process by taking the Government to court for calling an election for political imperatives with which they may disagree. The suggestion by noble Lords to delete “purported decisions” is equally disagreeable, for it would arguably provide litigators with a route to try to delay an election through a court case that could examine why an election has been called on one date rather than another. This, I think, we can all agree would be entirely undesirable.

The clause prevents political litigation about the timing of elections; litigation that I am sure your Lordships dread as much as I do and—I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood—I am sure much of the judiciary would dread. Let me emphasise what it is that we are trying to protect: it is nothing less than the legal certainty of our elections, which underpins our democracy. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn, as the noble Lord, Lord Faulks, said, into making decisions and weighing political imperatives that they are not equipped to do.

If there is an intervention, is the election timetable then suspended? Are the people to be informed that a court might deny them the right to have their democratic say? If the court process moves slowly, could the situation arise where a court then dismisses or questions an election result? Asking the courts to review a Dissolution decision is to ask them to weigh the political merits and imperatives of the decision; it is inherent in the nature of the question. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn into making decisions and weighing political imperatives.

More practically, we must consider the risk that we might send a signal to mischievous and politically motivated litigators that they can disrupt the process with vexatious and frivolous claims against Dissolution. Even the threat of such a court case would be disruptive to the process, drag our judges into the political fray and cause huge expense and delay and a frustration of the democratic process. There is no surer way of risking the reputation of the judicial system among many sections of the British people, no surer way for the courts to be seen as a political institution, and no surer way to drag the sovereign into politics. These are not scenarios for which your Lordships can possibly wish. It is wise to take all the necessary steps to be absolutely certain, without a shadow of doubt, to ensure that these scenarios do not occur.

Finally, let me directly confront the case put by the noble Lord, Lord Butler of Brockwell, that, by removing a judicial oversight, this clause allows a licence for the Executive—far from it. The exercise of the prerogative power is a question for the political, not the judicial, sphere, and the remedies and constraints are in that political sphere.

Our constitution has for centuries proved well able to avoid extremities and has provided for accountable checks on the Executive, and these checks are both pre and post hoc. In terms of pre-hoc checks, a Prime Minister requests a Dissolution of the sovereign which, in exceptional circumstances, can be refused. In parallel, the core constitutional principle that the sovereign must not be drawn into party politics acts as an important deterrent to improper requests being made. That is an immense latent force in our constitutional arrangements. Furthermore, the Government, in response to the Joint Committee, amended the Bill prior to its introduction to Parliament so that the statutory election period will be triggered automatically by the Dissolution of Parliament. This will ensure that the theoretical possibility of a Dissolution without an ensuing election period is eliminated.

There are also post-hoc checks and incentives on the Executive that have worked for many years, effectively compelling Parliament to be called as soon as feasible after an election. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling or meeting of a new Parliament is not in the interest of any Government seeking to make progress on the mandate it has received at a general election. Most importantly, the Dissolution and calling of Parliament are powers that pave the way to a general election and a new Parliament. Again, as the noble and learned Lord, Lord Brown, reminded us, the actions of the Prime Minister and the Government are subject to the judgment of the electorate and, in due course, to that of a new Parliament.

If a Prime Minister acts—as we alleged one might—nefariously, even if a Prime Minister acts contrary to prior expectations and past practice, that will be judged by the electorate. It is also available to that new Parliament to undertake the nuclear option of passing a Motion of no confidence on the new Government, almost immediately, if it wishes, on an amendment to the Queen’s Speech. These practical constraints on the Executive have served us well for many generations. As we see, the checks on Dissolution are practical and political; they should not be legal.

I apologise for speaking at such length, but I hope noble Lords will understand the importance of putting these points on the record for your Lordships to consider between now and Report. If any other points have been raised in the debate, I will, of course, write. I sincerely hope that noble Lords will reconsider their amendments and urge them to join the view of the other place to not permit the entry of the courts and support this clause

[Lord Norton of Louth (Con)]

My Lords, I very much agree with the noble Lord, Lord Beith, that it has been a very good debate in light of the quality of the contributions that we have heard. I think it demonstrates the value of this House in being able to hear and rehearse these arguments.

I noticed yesterday when the noble Baroness, Lady Fookes, was presiding over our proceedings and the Minister was at the Dispatch Box that the Minister resigned. When I saw that the noble Baroness, Lady Fookes, was in the Chair this evening and the Minister was at the Dispatch Box I wondered for a moment whether something might happen.

My noble friend Lord True will not be surprised to hear that I do not agree with the argument that he has advanced. I retain my points in opening that this clause, particularly the use of the word purported, does not restore the status quo ante and is objectionable on principle. I have previously quoted the late Lord Simon of Glaisdale, who once opposed an amendment being brought forward for the avoidance of doubt on the grounds that there was no doubt to be avoided. I think we may be in a similar situation here. It is quite clear that the courts would not get involved in this, despite what has been claimed about the direction of case law recently. I do not think the issue really arises, in part for the reasons given by my noble friend Lord True. The problems he adumbrated a few moments ago would be reasons why the courts would stay completely clear of entertaining any case relating to this.

My objection is really on the grounds of principle. I do not think it appropriate to try to limit the power of the courts because one disagrees with particular decisions of theirs. It is objectionable on principle. The argument has been advanced that it sets a precedent; my noble friend Lord True said, “No, this does not set a precedent; it is a bespoke solution.” The problem, I fear, is that on future occasions, Governments will find a bespoke solution based on what is included in this Bill.

I maintain my position. I hear what the noble Lord, Lord Faulks, said about the purpose being to keep the courts out of politics, but my fear is that putting “purported” in is designed to keep the courts out of the law. So I am not persuaded by what my noble friend Lord True said. I am sure that we will come back to this on Report but, for the moment, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

--- Later in debate ---

[Lord Norton of Louth (Con)]

My Lords, I very much agree with the noble Lord about the need for a revision of the Cabinet Manual. It is long overdue. I see the point of his amendment is to try to spur that, so I put on record the importance of bringing it up to date and incorporating quite a lot of material that needs putting in.

I am a bit wary of the noble Lord’s amendments, particularly Amendment 10, because he is trying to get Parliament to approve something which is really in the gift of government. The Dissolution Principles are those which would govern the Prime Minister in requesting a Dissolution, and that really is a matter for government and the principles that will govern that. It might be laid before Parliament, but there really should not be a requirement for it to be approved by a resolution of the House of Commons.

There should be an update of the Cabinet Manual, but it is important to remember that the Cabinet Manual is not something that needs to be endorsed by Parliament. It is distinct from Parliament and draws together the provisions, as we understand them, and the conventions, but it is a manual for government to which we can have recourse. Yes, there should be dialogue with committees and consultations so that we can feed into that, but at the end of the day it is within the remit of the government. It is a government document, not one to be endorsed by Parliament.

[Viscount Stansgate (Lab)]

My Lords, I agree with the noble Lord, Lord Norton, that it does not have to be agreed by Parliament, but the Cabinet Manual is a really interesting document. I remember when it came out; other noble Lords might remember it as well. I believe it was triggered and inspired by the then Government and the then Cabinet Secretary, who is a Member of this House. It is a pity that he is not here because he could play a big part in the short debate that we are having on this question.

For those who have never seen it, it was a fascinating document because it encapsulated the conventions that had existed for many years but had never been codified in any way. It was very useful. I feel very sorry, incidentally, that, for a debate such as this, the noble Lord, Lord Hennessy of Nympsfield, is not here to take part. Our debates would be hugely enriched by having him here; of course, he coined one of the phrases of recent times, the “good chaps theory of government”. Many of the things that we have been discussing have illustrated ways in which people feel that we are departing from that theory and we are discovering that our constitution is capable of being abused. I do not want to go back over history, but we would not have had the discussion that we had about Clause 3 and references to the Miller case without that being an obvious example, and there are others.

Of course, this will not be pressed to a Division tonight, but a great deal more attention should be paid to the Cabinet Manual. I am rather unclear as to how it could be revised and who would be involved in doing it. A noble Lord said earlier that we were talking about where power lies in our constitution. When I visited a school recently, I recommended that the students read the Cabinet Manual, or at least have it to hand, because if they wanted to understand our constitution, that was an essential part of it. The sixth-formers looked at me rather blankly and I do not blame them in the slightest. That does not mean to say that I was wrong, because it still is very important. I am not sure how it could be updated, but it would be a very good thing. It is rather like when Gandhi was asked what he thought of civilisation in Britain and he replied, “Well, I think it would be a very good thing.”

Nevertheless, I support the spirit of the amendment and I would be interested to know whether we are going to come back to this on Report. If so, I hope to play a modest part in the debate at that stage.

Dissolution and Calling of Parliament Bill

Lord Norton of Louth Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

Moved by

[Lord Norton of Louth]

2: Clause 3, page 1, line 17, leave out “or purported exercise”
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.

[Lord Norton of Louth (Con)]

My Lords, on the assumption that the Government invite the Commons to disagree with the amendment we have just passed, I move Amendment 2 and speak to my other two amendments in this group. I pursued these in Committee and believe their importance is such as to merit returning to them on Report.

As I argued in Committee, the provisions of Clause 3 that are covered by my amendments conflict with the Government’s aim to restore the constitutional position to that which existed prior to the enactment of the Fixed-term Parliaments Act. They are also objectionable in principle. It is this point I wish to pursue.

In Committee, the Minister, my noble friend Lord True, sought to justify both the use of “purported” and the inclusion of paragraph (c). He advanced a “thin edge of the wedge” argument: the clause is necessary because

“the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.”—[Official Report, 25/1/22; col. 233.]

The courts are viewed by the Government as having encroached in certain cases on the exercise of the prerogative where vested in Ministers. Because the courts have gone beyond what the Executive wished, they wish to prevent them straying further in respect of the Dissolution of Parliament. As my noble friend emphasised, the use of “purported” is to make it plain that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.

My contention is that the fear underpinning the provision is unfounded. The cases cited by my noble friend are not sufficient to show that the courts would ever go near the exercise of the prerogative where the Dissolution and calling of Parliament are concerned. As my noble friend reminded us in Committee, Lord Roskill said, in 1985 in the GCHQ case, that the Dissolution of Parliament was

“not susceptible to judicial review”.

Indeed, Lord Roskill identified what he referred to as “excluded categories”, comprising prerogative powers that by their “nature and subject matter” were

“such as not to be amenable to the judicial process.”

These included

“the dissolution of Parliament and the appointment of ministers”.

I regard the powers not exercised on advice as the ultimate excluded categories.

In Committee, I moved an amendment to put on the face of the Bill that the prerogative power to dissolve Parliament and call an election was a personal prerogative power of the monarch, not exercised on the advice of Ministers. There would therefore be no advice for the courts to consider. The prerogative powers not exercised on advice are such as to put them in a class of their own as there would be no purported exercise or purported decision. If the personal prerogative is revived, the use of “purported” has no relevance. This is not addressed in the letter from my noble friend Lord True to the noble Baroness, Lady Smith of Basildon.

If the argument is that the prerogative is now a statutory power and that is the route through which a challenge may be mounted, the problem with the use of “purported” is that it enables Ministers to go beyond their powers. Let us be clear as to the meaning of “purported”: it means that something has been stated to be true or to have happened, even though that may not be the case. My noble friend Lord True argued that the use of the word would not constitute a precedent—we have seen evidence already this week of its use in another measure—but I am not persuaded that it is desirable in principle to embody such a provision in statute. As he said, it may be a bespoke solution, but it is a bespoke solution in plain sight. It is constitutionally objectionable, as potentially it conflicts with the rule of law. That should concern us all. It should certainly concern everyone on this side of the House. It is a fundamental tenet of Conservative belief that institutions are subject to the rule of law, which regulates definitively the relations between citizens and applies equally to the governors and the governed. A stable social order is dependent on the maintenance of the rule of law.

Furthermore, there is nothing to suggest that the courts would ever wish to entertain interfering in the process given the repercussions that my noble friend Lord True outlined in Committee. Those scenarios would be as unpalatable to the courts as they are to your Lordships. As he recognised in Committee, there are political checks and balances at work, and, where there are, the courts stay clear. That was apparent in respect of the so-called Sewel convention, when the Supreme Court declared that

“policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary.”

The provisions before us are unprecedented. As the noble and learned Lord, Lord Hope of Craighead, said in Committee, the objection is to the use of “purported” and the words in paragraph (c). As he made clear, there is no objection to say that the court or tribunal may not question the powers referred to in Clause 2.

As I said in responding to the debate in Committee, when my noble friend Lord Faulks argued that the clause was necessary to keep the courts out of politics, I take the view that the clause, or rather the words that I seek to delete, are designed to keep the courts out of the law. Take out “purported” and paragraph (c) and the problem is solved. One is then keeping within, and indeed promoting, the rule of law.

The provisions of the clause cover a situation that is so unlikely to ever occur for the reasons I have given—indeed, if it is a personal prerogative power of the monarch, it cannot occur—that it does not justify conferring powers that are so objectionable. The remoteness of it ever occurring is such that it would be better to wait and deal with it at the time. The doctrine of parliamentary sovereignty is not in doubt. As the late Lord Bingham argued, it is immanent in our constitution. As one of the measures being repealed by this Bill—the Early Parliamentary General Election Act 2019—demonstrates, Parliament can move with some speed to achieve the outcome it wishes. That is beyond doubt. There are precedents for Parliament enacting within 24 hours a Bill to overturn a court judgment.

Parliament by the very doctrine of parliamentary sovereignty is entitled to enact the provisions of this clause. What it can do is not necessarily what it should do. Retaining the purported exercise of powers and any purported decision within the clause, along with paragraph (c), is either redundant or it clashes with a basic tenet of the constitution. If the latter, it is objectionable in principle and unnecessary in practice. I would hope that a Conservative Government would take the high road and accept these amendments.

[Lord Butler of Brockwell (CB)]

My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable.

My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is

“legislating against shadows, against figments of the imagination.”—[Official Report, 25/1/22; col. 227.]

I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary.

If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment.

We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission.

I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises.

This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation “against shadows”, but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.

--- Later in debate ---

[Lord True (Con)]

Once the general election genie is out of the bottle, it should stay out of the bottle. The decision lies with the electorate. There is no question of a dodgy scenario. It is then down to the electorate. The ultimate political reprimand is available to them, as my party discovered in 2017. You can go backwards, as well as forward.

I cannot accept the amendments of by my noble friend Lord Norton of Louth for the reasons I explained at length in Committee. He argued that this clause conflicted with the rule of law. The Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, said that it was ultimately for Parliament to decide what the law on non-justiciability should be and for the courts to interpret what Parliament has said. The majority of the Joint Committee agreed that a non-justiciability clause was compatible with the rule of law in a case such as this, where the power is to enable the electorate to make a decision. As my noble friend Lord Faulks said in Committee, unless you reject the doctrine of parliamentary sovereignty, there is nothing constitutionally objectionable to the clause.

The Government see a strong argument for its principled and pragmatic case that the courts do not have a role to play in the issue of dissolution. That our sovereign Parliament should be able to make provision for this is entirely consistent with the rule of law. For the reasons I gave at length in Committee—and will not repeat here—we believe that the entire wording of Clause 3 is necessary to secure against the risk of an intervention by the courts.

On precedent, I am happy to repeat the reassurance I gave in Committee that we do not see this as setting a wider precedent. Speaking at this Dispatch Box, I repeat that this clause is very specific and has been drafted with a particular purpose in mind, namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. It is a bespoke exclusion to address this precise task. I stress again that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more.

In conclusion, I say to the noble Lord, Lord Butler of Brockwell, whom I consider my noble friend, that he cannot have his cake and eat it. He tells us that there is no chance that the courts would intervene, but then puts before us an amendment that would enable them to do so. I am not sure which is his argument. My noble friend Lord Norton of Louth made the same argument: that it is unlikely that the courts would intervene. In that case, why are we having this argument, with this point put forward?

The noble Lord, Lord Pannick, told us explicitly that such a challenge might come. So the purported, or in fact actual, intention of this amendment, were it to be passed, would be to procure the circumstances that the noble Lord, Lord Pannick, envisaged: namely, that the courts might one day intervene on a Dissolution. That is what I assume the noble Lord, Lord Butler, is wanting: that the courts should have that opportunity—although at the start he said he did not really envisage or like the idea.

I agree very much with the speech of the noble Lord, Lord Trevethin and Oaksey: it is vital that we maintain this clause. Deleting or altering it, as proposed by my noble friend Lord Norton of Louth, would be, in my submission, like building a fence around a field only to leave the gate open—or having an umbrella with holes in it. It would not be completely effective in the light of past judgments by the courts. Desiring to avoid the involvement of the courts and to secure absolute certainty on this point, and on the basis that this does not provide a precedent for the future, I sincerely hope that noble Lords will withdraw or not move their amendments and join with the other place in supporting this clause.

[Lord Norton of Louth (Con)]

My Lords, I am grateful to all those who have spoken. This has been a very valuable debate which indeed shows the value of the House of Lords. I am especially grateful to the noble and learned Lord, Lord Hope of Craighead, as well as the noble Lords, Lord Beith and Lord Pannick, and the noble and right reverend Lord, Lord Sentamu, for their comments.

My noble friend Lord True will not be surprised to hear that he has not persuaded me. For the reasons I have given, I regard the amendment as necessary to remove the words that are either redundant or constitutionally objectionable. This is not about keeping the courts out but about the use of certain constitutionally objectionable words within the clause. My noble friend did not address adequately—indeed, did not address at all—the point that, if we are dealing with a personal prerogative power of the monarch, there is no advice to challenge. I notice that the noble Lord, Lord Faulks, and my noble friend Lady Noakes did not pick up on the distinction between the prerogative powers that are exercised on advice and those that are exercised not on advice. That is the fundamental distinction that has not been recognised or addressed.

I normally agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but on this occasion I think he is totally wrong. He argued that he was seeking to protect future members of the Supreme Court. I regard it the other way round and consider that we would be protecting future members by removing the provisions in this clause because, although my noble friend Lord True said that this was not intended to set a precedent, the point is that it will be on the statute book. It will be available to parliamentary draftsmen in the future when other measures come along and they will think, “Oh, let’s keep the courts out. There’s a remote chance they might get involved”. Therefore, there are dangers in this.