Dissolution and Calling of Parliament Bill

Dame Eleanor Laing in the Chair

Just before we begin the consideration, I should explain that although the Chair of the Committee would normally sit in a Clerk’s chair during the Committee stage, the Chair of proceedings will remain in the Speaker’s Chair while we still have the screens around the Table, about which, the House will note, I have complained several times today because they restrict the view of the Chair. That was all very well while we were working from a written list, but now that it is necessary for Members to catch the eye of the occupant of the Chair, it is also necessary for the occupant of the Chair to be able to see all Members. The person in the Speaker’s Chair will be carrying out the role not of Deputy Speaker but of Chairman of the Committee, and they should be addressed as Chairman, rather than as Deputy Speaker.

Clause 1

Repeal of the Fixed-term Parliaments Act 2011

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to consider the following:

Clauses 2 and 3 stand part.

Amendment 2, in clause 4, page 2, line 3, leave out “it first met” and insert “of the most recent general election”

Clauses 4, 5 and 6 stand part.

New clause 1—Election timetable not to disregard Saturdays and Sundays and bank holidays—

‘(1) Schedule 1 to the Representation of the People Act 1983 is amended as follows.

(2) In rule 2 (1), omit sub-paragraphs (a) and (b).”

New clause 2—Early parliamentary general elections—

‘(1) An early parliamentary general election may take place sooner than the automatic dissolution under section 4 of this Act only in accordance with this section.

(2) An early parliamentary general election is to take place only if the House of Commons passes a motion in the form set out in subsection (3).

(3) The form of motion for the purposes of subsection (2) is—

(none) “That there shall be an early parliamentary general election.”

(4) Subsection (5) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.

May I initially seek your guidance, Chairman? Would you like me to cover all the clause stand parts and to respond, as it were, in advance to amendments? Or would you like me to return to respond to hon. Members once they have spoken to their amendments?

That is a perfectly reasonable question from the Minister. As all matters are grouped in one group, she may, in her opening remarks, refer to all amendments and clauses standing part, but of course she will have an opportunity to answer points made by Members when they introduce their amendments and new clauses. Or should I say “he”—[Interruption.] I should say “they”, as the right hon. Member for Basingstoke (Mrs Miller) has a new clause as well. It is perfectly in order for the Minister to now address everything that is on the amendment paper.

Thank you very much indeed, Dame Eleanor. I shall endeavour to do that, and I hope you will bear with me while I ensure that I cover all that material.

Let me begin at the beginning, with clause 1. There is consensus throughout the House that the Fixed-term Parliaments Act 2011 has proven to be not fit for purpose and has been damaging to effective and accountable government. The experience of 2019 in particular showed us that the Act was flawed and ran counter to core constitutional principles, and was therefore damaging to the flexible functioning of our constitution. It was unique legislation and it did not work. We saw how, in 2017, a Government who commanded a majority in the House of Commons were able to call an early general election with ease, irrespective of the Act’s intentions.

The events of 2019 then demonstrated how the 2011 Act could obstruct democracy by making it harder to hold a necessary election. The Act’s prescriptive constraints, such as the threshold of a supermajority requirement for a general election and the statutory motions of no confidence, created an untenable situation in which the Government could neither pass vital legislation through Parliament nor call a new election. The result was parliamentary paralysis at a critical time for our Government. The introduction of bespoke primary legislation that circumvented the Act and let us hold a general election in 2019 was the final indictment of the Act.

The Bill therefore repeals the 2011 Act and returns us to the tried and tested system whereby Parliament will automatically dissolve after five years, if it has not been dissolved earlier by the sovereign exercising that prerogative power at the request of the Prime Minister. The key argument is that in doing so it will help to deliver increased legal, constitutional and political certainty around the process for the dissolving of Parliament. Clause 1 repeals the 2011 Act and in doing so delivers, as I have already mentioned, on both a Government manifesto commitment and a Labour manifesto commitment to do so. I therefore commend the clause to the Committee.

Will my hon. Friend help the House in respect of whether the Government acknowledge the existence of the Lascelles principles? If they do, what is the impact of clause 2 on those principles?

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.

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.

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 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

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?

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.

On clause 3, may I take the Minister back to the inclusion of the word “purported” and, in particular, draw her attention to paragraph 166 and the comments of Baroness Hale in relation to the Joint Committee report? She says that

“it looks as if it is saying, “Well, even if what we did”—

that is what the Government did—

“was not within the power that you have been given by the statute, the courts can’t do anything about it.”

She goes on to say:

“If that is the case, the courts would be very worried about that, because it would mean that the Government—the Prime Minister—had done something that was, at least arguably, not within its powers.”

There is some force and logic in the argument of Lady Hale, is there not?

This is a good opportunity for me to be absolutely clear about the reference to the word “purported” in this clause. This has been included to take account of previous judicial decisions—in particular the cases of Anisminic Ltd v. the Foreign Compensation Commission 1969, and Privacy International v. the Investigatory Powers Tribunal 2019. In the latter, the expectation was expressed that the drafting legislation would have regard to the case law and ensure that the drafting made it clear if “purported” decisions—that is decisions that would be considered by a court to be invalid—were intended to be outside the jurisdiction of the courts. What clause 3 does is present an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts. It is the Government’s position and presentation that they ought to be, and I hope that hon. Members will join me in that.

In the interests of clarity, is the Minister telling the House that the Government are asking Parliament to give them the power to do things that exceed the powers given to them and that nobody should be able to gainsay them?

I am proposing that the House understands the use of the phrase “purported”, which, clearly, the right hon. Gentleman does—I have no dispute with him on that point—and that hon. Members join us in acknowledging that it is right to be aware of the case law and to respond to it. The decision in front of us is whether purported decisions relating to this area should or should not be included in clause 3. It is our contention that they should be, because we believe that the entire area of Dissolution and the calling of Parliament is intended to be outside the jurisdiction of the courts. That is a perfectly legitimate question to put to Parliament. It is for us here in this Chamber to decide on that, and the reason for doing so would be that we think that such decisions are political rather than judicial in their nature. Fundamentally, the check on the exercise of power is for the electorate to decide on rather than the courts. Therefore, as I have said, the function of clause 3 is to set that out very clearly. I will now move on to clause 4, which deals with five-year maximum terms.

The purpose here is to ensure that a Parliament lasts no longer than five years. We do that by providing that Parliament will automatically dissolve five years after it has first met. In doing so, the clause returns us to the general position before the Fixed-term Parliaments Bill was enacted. We are confident that five years is the appropriate length for the maximum parliamentary term. Our Parliaments have seldom lasted a full five years, and, in practice, they have often been dissolved sooner. In fact, we can see that parliamentary terms have very often developed their own rhythm. For example, from the history books, we can see that a strong Government seeking a fresh mandate might seek a Dissolution after four years. Anything less than four years is usually a sign of some political crisis or emergency. Often, Parliaments are dissolved out of political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis.