Dissolution and Calling of Parliament Bill

Lord Rooker Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

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

My Lords, if any noble Lords are concerned by the state of my voice, I should say that I have recently had a negative Covid test, but I have just had that cold which your Lordships will know all about. I would like to say how much I am looking forward to the contributions from everybody who is to speak, and congratulate my noble friend Lord Leicester, who was recently elected to this House, on making his maiden speech later; we all look forward to that.

It is a great privilege to open Second Reading on the Bill, which I trust will be welcomed by your Lordships’ House. Repealing the Fixed-term Parliaments Act 2011 was a manifesto commitment both of the Government and of the Official Opposition. As the Labour Party manifesto put it, the Act

“has stifled democracy and propped up weak governments”.

I agree, and look forward to unequivocal support from the Benches opposite today and in Committee—you always travel in hope in your Lordships’ House.

The 2011 Act fostered uncertainty and stasis in our democratic arrangements. It led to paralysis when the country needed decisive action. It undermined the effectiveness and responsiveness of our democratic system overall. The flaws of the Fixed-term Parliaments Act are understood and have been analysed by many noble Lords, including your Lordships’ Constitution Committee—I am pleased to see the name of the noble Baroness, Lady Taylor of Bolton, on the speakers’ list today. I am grateful for the depth of expertise and knowledge that your Lordships’ House has brought to bear on the scrutiny of the 2011 Act and that it will bring to bear on the scrutiny of this legislation.

The Bill seeks to return to the tried and tested position of the past over many centuries, replacing the 2011 Act with arrangements more in keeping with our best constitutional practices: delivering stable and effective government; upholding proper parliamentary accountability and public confidence in our democratic arrangements; and, above all, placing the British people at the heart of the resolution of any great national crisis.

The Bill will provide increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament. I emphasise at the outset that the Bill focuses on the Dissolution and the calling of Parliament only, not any other part of the constitutional process. Ensuring that these arrangements are clear, stable and widely understood underpins the integrity of our constitution.

Your Lordships’ Constitution Committee, in its report of December 2020, warned correctly that the “origins and content of” the 2011 Act

“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

Indeed, the Act led to paralysis and uncertainty at a critical time for our country. An untenable situation arose in the last Parliament, when the Government were neither able to pass vital legislation through Parliament on their central policy nor call a new election and put the question to the people, who had already voted in a referendum for the very proposition Parliament was seeking to block. The result was deadlock and paralysis. The fact that Parliament had to introduce bespoke primary legislation in 2019 to bypass the Act in order to hold the necessary election was surely the final, damning indictment. In summary, the Fixed-term Parliaments Act is a political experiment that failed. It is neither credible nor effective and does not serve future Parliaments or Governments, whether they are majority or minority formations or coalitions.

I now turn to the details of the Bill. Before I begin, I reiterate my sincere thanks for the valuable work of Parliament, particularly your Lordships’ Constitution Committee, chaired by the noble Baroness, Lady Taylor, the Public Administration and Constitutional Affairs Committee in the other place, and the Joint Committee chaired by my noble friend Lord McLoughlin, who I am also pleased to see here in his place today. I also add my thanks for the Constitution Committee’s most recent report on the Bill, which was published on 19 November. The Government welcome its consideration of the Bill and I can give an assurance that they will respond to the report before this House goes into Committee. Its consideration of the 2011 Act and the Government’s Bill has been valuable and has informed our approach, as will become evident.

The Bill is short; its purpose is clear and its objectives are known, because the British people lived with the previous system for centuries. It is a focused Bill of six clauses and one schedule. It restores the status quo ante, except in a few cases, particularly where practical changes to election arrangements made since 2011 have proven beneficial to the smooth running of elections—although I am certain that we will discuss that aspect of the Bill. It returns us to the tried and tested constitutional arrangements that have served successive Parliaments and Governments and that are a feature of our constitutional system.

Clause 1 repeals the Fixed-term Parliaments Act. Clause 2 makes express provision to revive the prerogative powers relating to the Dissolution of Parliament and the calling of a new Parliament that existed before the 2011 Act. This means that, once more, Parliament will be dissolved by the sovereign at the request of the Prime Minister. Within the life of a Parliament, Prime Ministers will once more be able to call a general election. That is a tried and tested approach that throughout our history has served successive Governments of different configurations.

By returning us to the status quo ante, the Bill will enable the link between confidence and Dissolution to be restored so that critical votes in the other place can once more be designated as matters of confidence, which, if lost, would trigger an early election—circumstances which many of us well remember from 1979. The other place will therefore continue to play its expected and key role in holding Governments to account and demonstrating whether they have the confidence of the elected House.

This is the status quo ante that we are all familiar with and understand. Under that system, our nation weathered many a constitutional crisis and accomplished enormous social change and social improvement without conflict, revolution or civil strife. That is the position the general public understand and under which our liberties have long been guaranteed.

Clause 3 restates the long-standing position that the prerogative powers to dissolve and call Parliament are non-justiciable. I understand that some noble Lords question why this clause is necessary at all and say that, after all, these prerogative powers are recognised as outside the purview of the courts. Let me explain: Clause 3 is drafted with careful regard to developments in case law. As noble Lords will be aware, since the GCHQ case, some prerogative powers that were previously considered to be non-justiciable have been reviewed by the courts.

The recent independent review of administrative law, which was chaired by my noble friend Lord Faulks, noted that

“the direction of travel in favour of regarding more and more prerogative powers as reviewable in principle is undeniable and has existed for many years”.

This culminated in the decision of the Supreme Court in Miller/Cherry 2 in relation to Prorogation. So, with respect to those noble Lords who say that there is no risk of the courts reviewing a decision to dissolve Parliament, I cannot simply say that the case law would suggest that this risk can be discounted, and recent events, in particular, have underlined this.

Clause 3 has been drafted with great care, taking on board the position of the courts that the most clear and explicit words are needed. It provides that any decisions relating to the revived powers to dissolve one Parliament and call another are non-justiciable, as well as the exercise of the powers themselves. This is to ensure that any preliminary steps leading to the exercise of these powers, including any request to the sovereign to dissolve Parliament and any related advice, cannot be reviewed by a court or tribunal.

Clause 3 further provides that a court or tribunal cannot consider the exercise of those revived prerogative powers or any related decisions, even if the court considers they are invalid or, in the language used by the Bill, “purported”. Nor may a court consider the limits or extent of those powers. Again, taking into account the case law, this is to make as clear as possible the position that all elements of the process relating to the Dissolution and calling of Parliament are covered by Clause 3 and are not a matter for the courts.

Let me be clear: there would be no change to the involvement of the courts, as the Dissolution and calling of Parliament is not an issue that has, so far, ever been considered reviewable. This clause simply confirms that position, preserves it for the future and protects the judiciary from being drawn into political matters.

Ultimately, judgment on the Government’s actions in calling an election is a matter for the electorate at the polling booth. I remember well the wise words of the noble Lord, Lord Grocott, on this subject at Second Reading of the original Bill, that it is not axiomatic that the timing of an election serves the incumbent Prime Minister. As the Joint Committee affirmed,

“it is appropriate for Parliament to make clear where it thinks the constitutional boundaries lie”.

This clause was unamended in the other place, and while I recognise that your Lordships will have questions, we do, I think, mostly agree that the prerogative power for Dissolution is, and should, remain non-justiciable.

[Lord Rooker (Lab)]

Before the Minister leaves Clause 3 —I am not a lawyer—will he explain the use of the word “purported” in two of the items? He has spent a lot of time on Clause 3, so I presume he is briefed on this to explain why “purported exercise” is also covered.

[Lord True (Con)]

My Lords, I always seek to be brief, but one always aspires to be better briefed in your Lordships’ House. I anticipate that this will be the subject of some discussion in Committee, and I wanted to make some progress in this speech, but to answer the noble Lord, which is my duty, purported exercises of power or decisions refer to things that would be considered by a court to be invalid or a nullity and therefore not a real exercise of power or decision because they have been done on the basis of an error of law. The courts have noted that this could arise where, for example, a decision is made outside the limits of relevant power or without taking into account a relevant consideration.

The reference has been included to make it clear that all elements of the Dissolution and calling of Parliament process fall to the political and not the judicial sphere. The drafting takes account of previous judicial decisions, which I have no doubt we will discuss at some length in Committee. In particular in the case of Privacy International, the Supreme Court said that those drafting legislation should make clear whether such purported decisions are intended to be outside the jurisdiction of the courts. I am grateful to the noble Lord for his intervention, and I look forward to discussing this matter at some length—I hope not at some length—and I have no doubt that we will have a lively discussion in Committee, so I would like to make some progress, if I may.

Clause 4 provides a maximum parliamentary term of five years, calculated from the date of the first meeting of Parliament. This will ensure that elections are held at regular intervals by providing a longstop of five years, a maximum term which is of course still guaranteed by your Lordships through an explicit exception in the Parliament Acts. By reviving the prerogative powers, the Government could call an election either to resolve political deadlock, to seek a fresh mandate from the electorate or after a defeat on a major policy issue.

As I have set out, a Prime Minister will take a number of factors into account when choosing to call a general election. But of course, this would include— I can offer reassurance here—scheduled elections to the devolved legislatures. We recognise the practical administrative challenges of holding elections which are conducted under different arrangements simultaneously or in close proximity. A Prime Minister choosing to call an election would undoubtedly wish to take these matters into account.

Clause 5 introduces the Schedule, which sets out minor and consequential amendments. Clause 6 confirms that the territorial extent of the Bill is the UK, except for a very small number of amendments in the Schedule where the extent is more limited. The Schedule contains a number of minor and consequential changes, including to the parliamentary elections rules in the Representation of the People Acts 1983 and 1985, concerned also with the demise of the Crown and the Recall of MPs Act 2015. I would be happy to explain any of these in detail if your Lordships wished between now and Committee.

The Bill has undergone pre-legislative scrutiny. The Government are indebted to the work of the Joint Committee on the Fixed-term Parliaments Act. We have carefully considered the committee’s findings and amended the Bill in two respects, the first being the Title of the Bill. This small but significant change ensures the purpose and effect of the Bill is clear, reflecting its precise remit and its constitutional significance. Secondly, having reflected on the Joint Committee’s report, the Government agree that the trigger for the election process should be the Dissolution of Parliament. This amendment will give legal certainty that the election period will automatically follow on from Dissolution, providing a clear timetable leading to a defined polling date.

Let me conclude with the conventions which provide the flesh on the bones of the Bill. In restoring the status quo ante, conventions will once more govern the operation of the revived prerogative powers. Conventions can operate effectively only where there is shared understanding of them. That is why the Government published in draft their understanding of those conventions alongside the Bill for scrutiny—not only by the Joint Committee but by Parliament as a whole. We set out in that document:

“The circumstances in which a Prime Minister might seek a dissolution are underpinned by two core constitutional principles.”


First:

“The Prime Minister holds that position by virtue of their ability to command the confidence of the House of Commons and will normally be the accepted leader of the political party that commands the majority of the House of Commons.”


Secondly:

“The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.”


We recognise that the conventions on Dissolution are part of an interlocking picture. Therefore, in our response to the Joint Committee, we have provided fuller explanations of the conventions on confidence Motions, Dissolution and Government formation. It is intended to provide the basis for discussion and debate among parliamentarians, building our shared understanding in and across both Houses and all those represented in them.

The value of conventions is not that they should cover every single hypothetical scenario but that they provide guiding principles and are an effective deterrent —in particular, the imperative not to involve the sovereign in politics. We welcome further discussion in your Lordships’ House on the conventions. That is the best way to develop our shared understanding.

This Bill will deliver increased legal, constitutional and political certainty around the processes for the dissolution and calling of Parliament. It will restore tried-and-tested constitutional arrangements which have been understood by the electorate for generations and are underpinned by the core constitutional principle that the Government of the day draw their authority by commanding the confidence of the elected House.

I hope these constitutional arrangements that have served us well in the past will continue to serve future Parliaments and Governments of all parties, whatever they may be. The ability of a Prime Minister to call a general election for reasons of political or public necessity, to turn to the people to give their judgment, is an essential feature of our democracy. The Fixed-term Parliaments Act disrupted that relationship. This Bill, we submit, will restore the proper balance to our constitutional arrangements.

I look forward to a constructive debate on not only the Bill but the conventions. I commend the Bill to the House.

--- Later in debate ---

[Lord Rooker (Lab)]

My Lords, my theme will essentially follow the closing remarks of the noble Lord, Lord Butler. I want to start with a quote:

“the government has moved to cement its grip on power. It’s taking action against the courts, shrinking their ability to hold the ruling party to account, curbing citizens’ right to protest and imposing new rules that would gag whistleblowers and … restrict freedom of the press. It’s also moving against election monitors while changing voting rules, which observers say will hurt … opposition groups”.

That is how Jonathan Freedland, in early October, thought the BBC World Service might describe—if it was not us—the antics of Viktor Orbán’s Hungary: but it was us. Now, with this Bill restoring the unfettered right of the Prime Minister to fix the election date, it is part of a pattern, open and in front of our eyes. The reform of judicial review to stop the courts overturning unlawful decisions; the new powers for Ministers to suppress almost any protest; the widening of the scope of the Official Secrets Act; the removal of the public interest defence for journalists and sources; taking powers over the elections referee; giving Ministers powers to order the Electoral Commission to impose penalties on campaigning groups; and the open attempts to control the media via Ofcom—all are out of the Trump playbook.

In his Shirley Williams Memorial Lecture, Lord Puttnam added to the list

“an Education Bill that seeks to reduce … academic freedoms in the area of Teacher Training”.

Interestingly, in the early 1970s he recorded his conversations with Albert Speer, who had been Hitler’s architect and Armaments Minister and served 20 years in Spandau. Lord Puttnam came to understand

“‘the fascist play book’—the way democracy can be corrupted and overturned by a few malevolent but persuasive politicians, those who are prepared to exploit divisions in society with simple populist messages.”

There are many criticisms of the failure of our Prime Minister, but Johnson is clearly not out of his depth when it comes to taking a harder line on making it difficult for his Government to lose power. Now comes the personal power to fix the election date, dressed up as prerogative powers, and ruling out powers of scrutiny by the courts, under Clause 3. I am not a lawyer, but I am told that this is a super ouster—beyond an ouster clause. It even covers Ministers acting in bad faith; they cannot be challenged when acting in bad faith. So, continual vigilance is required, and this House has a major role to play. Indeed, Speer told Lord Puttnam that there is a need to develop a form of

“‘moral vigilance’ required to recognise … evil for what it is.”

Are we willing to see the pattern created by the Johnson Government to frustrate the bodies designed to keep a check on government, ignoring and overturning long-operated conventions, all to tighten his grip on power? Because that is what is happening. This pattern is formed of tiny bits, each of which, on its own, can be made to look quite reasonable, dressed up in simple slogans. Of course, nobody will admit there is a plan. All we get is a smile, deliberately tousled hair and soft tones. But there is a plan and others have seen and discussed the framework. Well, I am not buying it.

I was always in favour of fixed-term Parliaments, even when we had Mrs Thatcher in government. It seemed sensible; other countries do it with checks and balances. I freely admit, and I share some of the views of my noble friend Lord Grocott on this, that it did not work in practice. That does not mean you scrub the system; it means you change what you think has gone wrong, in the light of experience. Other nations with a decently run constitution with checks and balances can cope with fixed dates for elections. The real problem is that we are losing our checks and balances, and the unwritten nature of our constitution is being abused in front of our eyes.

This Bill is an abuse of the electoral system, designed to help rig membership of the elected House. I cannot think of a nobler cause than for this House to say that it is a step too far and we are not having it: we will change the Bill and send it back. I hope that if they send it back to us, we will send it back again, because this is a step too far and part of a pattern. It is no good saying, “Oh well, it’s only this Bill; the other things don’t matter”. The other things are coming this way, and we have to see them as part of a pattern.

Before I sit down, I want briefly to congratulate the noble Earl, Lord Leicester, on his maiden speech. I have to say, he sounded too good to be true. I freely accept what he said, but as I say, it sounded too good to be true. I welcomed his speech, and I think the House did too. He was followed by the noble Lord, who congratulated him on his practical knowledge of what happens in Cambridgeshire and the Norfolk area.

Dissolution and Calling of Parliament Bill

Lord Rooker Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

[Lord Rooker (Lab)]

My Lords, I have found the debate fascinating today. I thank the Minister for the detailed responses he has given. I have not changed my mind on any of the issues, and I very much support the noble Lords, Lord Norton and Lord Butler, and my noble friend Lord Grocott on the issues they have raised.

I looked around the House and realised I was probably the only person present who fought and won both the elections in 1974. I have been sitting here thinking what the weather was like. I know what it was like. On 28 February, it was snowing as I was still knocking up at 9.30 pm out in the constituency; it was a very important period in my life. My noble friend Lady Taylor asked me during one of the debates whether I would have supported a quick election a month after I had won in 1974. I was physically whacked at that point. Therefore, I was quite content, because the message came through after we all assembled that there would have to be another election later in the year. But that is not really what I want to raise.

I am going to devalue the debate; I am sorry about that. In respect of the length of a Parliament, I accept that the Bill restores the status quo; that is probably the least important part of the Bill. But in my view that is no excuse not to put the issue on the record for the future. I am going to repeat much of what I said on Second Reading. Five years is not the norm for general elections in the UK, to start with. I am no academic and no expert, but I know in the past that there was a legal maximum of three years, and there was a period where there was a legal maximum of seven years. I think the maximum has been five years since the Parliament Act 1911, but five-year Parliaments are rare.

Going early is a clear advantage to the sitting Government. That is why, during the 1970s, 1980s and probably 1990s, I became convinced that I was in favour of a fixed-term Parliament, because I could see the manipulation that was going on and the temptation for Governments to manipulate the economy, basically. In some ways, I regret that the Fixed-term Parliaments Act 2011 failed. It was designed to fail, almost. I accept it is going, and I am not trying to bring it back, but there are some difficulties with going back to the status quo ante.

There have been 20 general elections since 1945. Thirteen have been early, and the sitting Prime Minister won 10 out of those 13. Those 20, between 1945 and the last general election, were within 74 years, so we are talking about an election just under every four years. My experience in the other place was of seven general elections, and I sat for 27 years, so we averaged just under four years.

It was worse, in a way, not knowing when elections were going to be. My party was not a rich party. We had no offices in the city. Each time, I had to find somewhere for a headquarters, not knowing when the election was, and get phones in. It was difficult in those days, but nevertheless it was a joy to be in the other place for so long.

Giving the Prime Minister the choice of date is an advantage in the electoral system, and that is what I am against. I realise that building the checks and balances is not easy, because for every check there are disadvantages either way. But I do not think that it should be built into the system. As I said, I accept that we are abandoning the fixed term that we brought in in 2011. What I object to is the maximum length, which should be more like what we are actually used to, which is four years rather than five. There is some support for this view. People think that Governments run out of steam after four years, and there is some evidence for that but my point is not about it. My objection is quite different. Governments that seek to rig the electoral system, as this one is attempting to do, should be more limited as to how long it is before they meet the electorate. I want to shorten the time. I almost put an amendment down for three years to strengthen the point that I wanted to make—which I made at Second Reading, but when you have a good story to tell it is worth repeating.

This is nothing personal to any of the Ministers either here or in the other place, but there is a pattern whereby the Government are attempting overall to rig the electoral system. There is a succession of Bills and regulations before Parliament or due to come before Parliament, and I have a little list, which is not exhaustive, of their intentions: voter suppression, straight out of the Trump playbook, which we are about to get; action against the courts, shrinking their ability to hold the ruling party to account—that is the reality— curbing citizens’ right to protest; restricting the freedom of the press by removing the public interest defence; moves against election monitors and the referee in a concerted attack on the Electoral Commission, whose powers have never been as strong as I thought they should have been; widening the scope of the Official Secrets Act; and open attempts before our eyes to control the media via Ofcom.

There is a pattern here. We deal with each little bit as it comes along and have debates like we have had today, of a very high quality and forensic in looking at what is a very small Bill with massive implications—but the debate is in the context of this Bill. We have arguments already flattened by the noble Lord, Lord Faulks, who said, “No, the ouster clause won’t be used as a precedent, because there’s another Bill that hasn’t got the same ouster clause in.” This can make the point, as the noble Lord, Lord Norton, did, that the draftsman will find a way. I am very disappointed that the draftsmen have co-operated with all this, because they have operated under instructions. There are all these issues and others, which I will not go over. I quoted Lord Puttnam at Second Reading, who gave a couple of further examples.

It all makes it harder for a Government to lose power. That is what the pattern actually creates. Would a four-year limit stop this? No. I am just trying to shorten it from five. Would it limit the damage? Well, maybe. Is it worth raising? Oh yes, because I intend to raise it at every possible opportunity; not just on this Bill, but on all the others as they come. I am not alone. There are the Select Committees that were mentioned earlier, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. We have had two incredibly powerful reports published just before Christmas from this House—the unelected House—about the threats to our democratic process, which is really important.

This is where the tragedy is in some ways. I would love to be able to switch off from what I have now and pop back to the other place for a couple of years and say, “By the way, it’s not quite like we think it is. Things have got bad—it’s a little bit back in time.” That is not possible, however, because I came to this place ignorant of its powers, even though I had been down there and was a Minister as I swapped over. There is massive ignorance among the Members of both places about our roles and what we are doing.

I do not have a solution to this because the argument is always, “You’re unelected, you don’t count.” But because we are unelected and we do not have a vote in a general election, we are disinterested in some ways. I see no problem in this place saying to the other place to think again, because we are only a sub-committee of the other place. All our powers are to ask it to think again. At every opportunity, the House of Commons rightly has the last word. It does not matter what happens—it has the last word in every case.

I know that in extremes the Parliament Act can be used, but it been used only twice in my time. It is still the case, however, that the Commons has the final word. That is the case I always put across when doing the Peers in Schools programme. Our powers are incredibly limited, but they mean we can say, “Think again”. Sometimes we say, “And again”. I think there are a couple of examples where it was three times, then this place—obviously, as it is unelected—said, “You’ve had a good think about it, we’ll leave it alone.” That is our function. The fact is that they did not change that in the Bill.

There is an interchange sometimes when Ministers talk about Parliament but are actually talking about the Government. Government and Parliament are interchangeable—well, to Ministers they might be, but to the rest of the population they are not. Ministers say that Parliament has decided, but they mean that the majority controlled by the Government in the other place has decided. It is the Government who have decided. The whipping system and the timetable system have decided. In some ways I greatly regret the timetabling system used down there, but we had good reasons. I have lived through guillotines and I know what the rules were. What was it—100 hours to get a guillotine for wasting time upstairs in Committee? That is why timetabling was brought in.

The fact is that we receive Bills in this place that have not been thoroughly examined in the elected Chamber and that is a tragedy. There was a time when I tried, as a Minister, to suggest that we ought to have Bills with the bits that had not been discussed highlighted, but it is incredibly complicated to say which sections were not debated or looked at; you just cannot do it. We have to use our common sense and gumption.

The fact is that they are not doing their job in the Commons. That is the reality. Their job is to keep an eye on the Government and to question what the Executive are doing—and they are simply not doing it. They are distracted by other things, such as trying to do the job of local councillors for a start. It is easy for me to say that because it was not like that. I do not want to say that those were the good old days and throw back, but the House of Commons is not doing its job of scrutinising the Executive and we are receiving legislation that has not been properly scrutinised. Then, unfortunately, the Government say, “Oh, it’s the House of Lords, always defeating the Government.” We are not; we are simply saying that we want the Commons to do its job. That is what we are asking them to do.

In this case, I would be astonished if Clause 3 is still in the Bill when it leaves this place. There is the amendment supported by the Cross Benches and the noble Lord, Lord Butler, about letting Parliament decide on Dissolution; if you have one, you do not need the other. It is simple. Keep the judges away—I absolutely agree with that—but there is an easy way to do it: let the elected House do it.

I have made my point, but I shall keep coming back. For each Bill and regulation that comes along, I will recite the same list, because there is a pattern and the penny has to drop at some point.