Dissolution and Calling of Parliament Bill

Lord Young of Cookham Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, it was a real pleasure for me to listen to the noble Lord, Lord Lisvane, reversing the pattern of some 40 years in the other place when he had to sit and listen in silence to me. While I support this legislation, I confess I do so with mixed feelings. As Leader of the House in the other place in the 2010 Parliament, I had hoped to leave behind an important legacy of constitutional reform with three pieces of legislation. The first was reform of your Lordships’ House, which secured a large majority on Second Reading but bit the dust when the Labour Party refused to agree to a programme Motion. The second was reducing the number of MPs and equalising the constituency boundaries, which was scuppered by the Liberal Democrats when they broke the coalition agreement. The third and final piece of my legacy was the Fixed-term Parliaments Act, now being repealed by my own party. So when my grandchildren ask what I did in that Parliament, the answer will now be “Very little”.

In agreeing with repeal, I think it important to put the Act in a slightly different context from that which we have heard so far in this debate—at times a rather cynical context. I think there is common ground that, over recent years, the Executive have claimed for themselves more and more power at the expense of Parliament with the extensive use of Henry VIII clauses, the introduction of guillotines, programme Motions and deferred Divisions in the other place and the extensive use of patronage—a theme developed by the noble Lord, Lord Rooker, in his excellent speech, although I got off his train before it arrived at the destination.

In 2010, we tried to redress the balance and shift the terms of trade away from the Executive and back to Parliament. We introduced elections for the chairmen of Select Committees, breaking the grip of the Whips, we introduced a Back-Bench Business Committee, breaking the monopoly of the Government on the business of the House, and, as part of that package of restoring power to Parliament, we took away the right of the Prime Minister to dissolve and gave it to Members of Parliament. I prefer to put the Act in that context, assigning slightly better motives than the more cynical ones perhaps ascribed by the noble Lord, Lord Grocott.

The Fixed-term Parliaments Act had other advantages. It enabled me, speaking purely selfishly as Leader of the House, to plan a package of Bills over a five-year Parliament, rather than, as previously happened, finding that in year three of four, half way through, the Prime Minister would dissolve and a whole series of Bills would be lost. In 1983, I had to introduce the same Bill twice because Parliament was dissolved half way through. The fixed-term Parliament was popular in financial circles—they do not like uncertainty—and, as has been said, it brought us into line with other democracies. However, as noble Lords have explained, it clearly has not worked. At the foot of the bed of the 2107 Parliament was a notice saying “Please Do Not Resuscitate” —but the Fixed-term Parliaments Act officiously kept it alive. So I accept that we should repeal the Act, but I put that plea of mitigation in context.

However, I paused when I reached the ouster clause in the Bill which, to use an economist’s phrase, hit me right on my indifference curve. On the one hand, I understand why the Government are concerned about judicial activism. The Minister mentioned the direction of travel of legislation and the Supreme Court decision in Miller, and I see why my noble friend and the Government want to insure themselves against such intrusion when it comes to this Bill. I see from the helpful report from the Joint Committee ably chaired by my noble friend Lord McLoughlin that the Government’s view has support from, for example, the former First Parliamentary Counsel, Sir Stephen Laws.

But there are a number of arguments to the contrary, which we have heard, and I shall mention just two. First, as the report says, non-justiciability is determined by the courts themselves and is not imposed by statute. As the noble Lord, Lord Lisvane, and Sir Malcolm Jack pointed out in their evidence,

“the courts will themselves interpret clause 3 of the draft Bill.”

So to that extent it seems to be self-defeating.

Secondly, on judicial activism and the Miller case, Prorogation could not be more different from Dissolution. The Executive’s decision to prorogue a sitting Parliament against its will so that the Executive could not be held to account during a critical time in the nation’s history was outrageous—so outrageous that it obliged me for the first time in 23 years as a Minister to leave the Government, and I had swallowed quite a lot of indigestible stuff before. The Supreme Court rightly held the action to be illegal, and it was an affront to democracy—but that is totally different from a decision to dissolve Parliament so that Parliament can be refreshed by the electorate. Indeed, what could be more democratic than such a decision? I am not a lawyer, but the noble and learned Lord, Lord Brown, is and he said it would be inconceivable for the courts to intervene. Far from being an affront to democracy, as in Prorogation, it would be the very assertion of democracy.

So, while I am supportive of the Bill, the Minister will have some work to do to persuade me of the necessity of Clause 3.