Dissolution and Calling of Parliament Bill

Lord Thomas of Gresford Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, what a pleasure it is to follow the noble Lord, Lord Rooker, with all his passion, and to hear from him that he will, like us, push this Bill back over and over again until it is gone.

I had always understood that once a prerogative power of the Crown is lost, it is lost for ever. This Bill asserts a highly controversial and novel proposition that, by Act of Parliament, it can be declared that a previous Act of Parliament never existed; that we return to the status quo ante. Rather than enact new legislation that could not avoid the scrutiny of the courts, government policy is to obliterate the Fixed-term Parliaments Act: it never was; it never existed; Carthago delenda est. I occasionally like to speak a language that the Prime Minister might understand.

We have heard today from the noble and learned Lords, Lord Hope and Lord Mackay, about the considerable conflict among lawyers and academics over whether you can revive a prerogative power. That will lead to inevitable litigation unless, by Act of Parliament, you can exclude the courts from considering it at all. The Government exercise the prerogative powers of the Crown, but not in an absolute way. All prerogative power is subject to the law; that is part of the common law of this country. The constitutional settlement of this country is that the Executive are subject to the law, that the power to make and unmake the law is exercised through Parliament, not the Executive, and that it is the exclusive right of the judiciary to determine what is the law. That is what is called a liberal democracy. Since the civil war, this country has not been an absolutist country where the Executive pass whatever laws they wish.

In a liberal democracy, there are two overriding principles: the separation of powers and the rule of law. They have proved to be an effective protection of the safety, dignity and human rights of the people of this country. A view was expressed by a majority in the Joint Committee on the Fixed-term Parliaments Act, which considered these proposals in 2021, that Parliament should be able to designate certain matters as ones which are to be resolved in the political sphere, rather than the judicial sphere, so that Parliament should be able to restrict, and, in rare cases, entirely to exclude, the jurisdiction of the courts. This challenges fundamentally those two principles—the separation of powers and the rule of law. Noble Lords will note the committee’s view that

“Parliament should be able to designate”

which side of the line it falls. Parliament should be able to set the boundaries of what is and is not within the political sphere.

If a Prime Minister abuses the power of Dissolution, as this Prime Minister abused the power of Prorogation, the Bill seeks to ensure that the courts would be unable to exercise any control over his or her action. Clause 3(c) prevents a court examining even the “limits or extent” of the powers of Dissolution. As the Explanatory Notes say in terms:

“This is to address the distinction drawn by the Supreme Court in Miller … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”


In other words, it would prevent a court finding that the Prime Minister had exceeded his powers in requesting a Dissolution, or in any related advice that he had acted ultra vires. This tries to get rid of any control at all over the Prime Minister.

Why do the Government want to revive the status quo? In his evidence to the Joint Committee, the Minister, the noble Lord, Lord True, said:

“The long-standing position is that the exercise of the prerogative power to dissolve is not reviewable by the courts and that had been the understood position since the Bill of Rights. And obviously judgments on any Government’s action should then lie with the people rather than with anybody else”.


That is an impressive statement, but what is the “understood position” based on? I am not aware of any precedent, ever, where the point at which the Dissolution cannot be reviewed by the courts ever came up. There was no precedent for the actions of the Prime Minister when he prorogued Parliament, yet the courts did intervene and held his action to be unlawful. If the purpose of this Bill is to return to the status quo ante, that status did not anywhere justify the Minister’s assertions to the Joint Committee that it has been

“the understood position since the Bill of Rights”—

it has never been discussed.

The Constitution Committee said in its report on the Bill:

“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”


There is a school of legal jurisprudence called legal positivism, which claims that law is a human construct with no connection to morality or even justice. If the legislature, however it is elected, has passed a law, it must be obeyed. That is so if it is unjust, unwise or immoral. That is the positivist approach. It may be a bad law by some standard, but if it was added to the system by a legitimate authority, it is still a law. I am glad to see that the noble and learned Lord, Lord Etherton, is in his place, because his lecture at Gray’s Inn—the Birkenhead Lecture—pointed out that it was the defence of German judges in the Nuremberg trials that they were only applying the laws passed by their leader as the embodiment of the executive; he had of course abolished the president, the legislature and judicial review.

The common law, under which we enjoy our freedoms, derives from the traditions of natural law, as exemplified in the Bill of Rights, the American Bill of Rights, the UN convention and many other laws and human rights conventions. I was very pleased to hear the noble Earl, Lord Leicester, refer to his ancestor, Sir Edward—whom we must always call “Coke” hereafter, as I understand it—because he was one of the founders of our view of the common law.

We said we would never look back. Statutory power is what we want, clearly defined, and the consent of Parliament to its Dissolution—and that can be put before the Queen, without ever involving her in political controversy.