Dissolution and Calling of Parliament Bill

Robert Goodwill Excerpts

Committee stage & 3rd reading
Monday 13th September 2021 Commons Chamber

[Chloe Smith]

Of course the Government and I acknowledge the existence of those principles; they are a historical fact in and of themselves. I refer my right hon. and learned Friend to the fact that we have said consistently throughout the Bill’s preparation and progress so far that we believe that now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated. The Government have contributed to that by publishing some Dissolution principles at the beginning of the Bill’s journey. We think those principles form part of a dialogue that continues not only between the Government and Parliament but with the wider public as well. I hope that the work of this Committee today and the work in the other place will together form part of the continuation of that historical tradition of there being an understanding of the conventions that underpin the prerogative.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does not the fact that the Prime Minister requests that the monarch take steps so that an election can happen show an understanding of the Lascelles principles? Indeed, there could be other circumstances, yet unforeseen, in which a request is refused.

[Chloe Smith]

Yes, we believe that that is the case; that is the flexibility inherent within the constitutional arrangements that we seek to revive. That brings me back to the express purpose of clause 2, which delivers on the Bill’s purpose, which is, as I said, to reset back to the pre-2011 position with as much clarity as possible. We believe that is clear in our intention to revive the prerogative.

Naturally, I recognise that the revival of the prerogative has been subject to academic debate. For example, as Professor Mark Elliott, professor of public law at the University of Cambridge said:

“Given the scheme of the Bill, it is perfectly clear that the prerogative will be revived and that, from the entry into force of the Bill, the prerogative power of dissolution will once again be exercisable.”

Furthermore, even if any doubts remained from some of the academic debate that has taken place, as the former First Parliamentary Counsel, Sir Stephen Laws, said in his evidence to the Joint Committee, the academic debate is something of

“a red herring, because…it is perfectly plain that the intention of the Act is to restore the situation to what it was before the 2011 Act, and therefore the law will then be indistinguishable from what it was before”.

The Government are, then, confident of the intention and practical effect of the clause. A letter that I sent recently to my hon. Friend the Member for Hazel Grove (Mr Wragg) sets out why we believe that there is a sound legal basis for that position; I hope that Members may have had a chance to see that letter, which I publicised to right hon. and hon. Members. By making express provision to revive the prerogative powers, clause 2 returns us to the tried and tested constitutional arrangements, so I commend it to the Committee.

Clause 3 is necessary and proportionate for the avoidance of doubt and to preserve the long-standing position that the prerogative powers to dissolve one Parliament and call another are non-justiciable. Those prerogative powers are inherently political in nature and, as such, are not suitable for review by the courts. Any judgment on their exercise should be left to the electorate at the polling booth. That was the view of the courts, as expressed by, for example, Lord Roskill in the landmark GCHQ case in 1985: he considered that the courts are not the place to determine whether Parliament should be dissolved on one date or another. That position was recommended more recently in the independent review of administrative law, published in March this year, which noted that clause 3 can be regarded as a “codifying clause” that

“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.

As I mentioned earlier, clause 3 has been drafted with regard for the direction of travel in case law. Over the years since the GCHQ case, some of the prerogative powers previously considered to be non-justiciable have been held by the courts to be justiciable. The purpose of the clause is therefore to be as clear as possible about the no-go sign around the dissolution and calling of Parliament. It is carefully drafted to respect the message from the courts that only

“the most clear and explicit words”

can exclude their jurisdiction. This is a matter for Parliament to decide; that view accords with the majority of the Joint Committee, which said that

“Parliament should be able to designate certain matters as ones which are to be resolved in the political rather than the judicial sphere”.

We have made our intentions clear so that the courts will understand that that is the clear will of Parliament. I therefore commend the clause to the Committee.

--- Later in debate ---

[Chloe Smith]

I believe that to be the case, although of course I would not wish to speak for the AEA. I really do commend its report to the Committee to enable it to see in much more detail the challenges that there are in delivering elections within the timetable that currently exists. To answer my right hon. Friend’s question, broadly yes—that set of comments is referring to the statutory timetable rather than any time before it.

[Mr Goodwill]

We would all wish to maximise participation in elections, and the practicalities of overseas voters, postal voters and voter registration are very important, but do we also need to look at the possibility that as campaigns go on and on, we might get campaign fatigue, which might well result in fewer people casting their ballots because they are sick to death of the election going on for what seems to be forever?

[Chloe Smith]

I am always sympathetic to that point. There is always a risk when any of us have to bang on too long that we simply get boring, and I can already apologise to the House for having taken 50 minutes of tonight’s Committee in trying to make my way through the material I am obliged to cover. My right hon. Friend makes a wise point, and it is one of the balances that have to be looked at in this discussion. That is one reason why he and others have tabled amendments.