Dissolution and Calling of Parliament Bill

Shailesh Vara Excerpts

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

[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.

[Shailesh Vara (North West Cambridgeshire) (Con)]

Does my hon. Friend agree that one benefit of clause 3, as well as highlighting all the issues that she has just mentioned, is that it makes it abundantly clear that Parliament is supreme?

[Chloe Smith]

Yes, that is right. I am grateful to my hon. Friend and to all hon. and right hon. Members who served on the Joint Committee and spent a considerable amount of time looking at these issues. That is the kind of consideration that we ought to give to our constitutional affairs rather than taking them in a hurry—a point that I was making earlier. Let me acknowledge my hon. Friend’s point and thank him and others for the work that they did.