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.