My Lords, if any noble Lords are concerned by the state of my voice, I should say that I have recently had a negative Covid test, but I have just had that cold which your Lordships will know all about. I would like to say how much I am looking forward to the contributions from everybody who is to speak, and congratulate my noble friend Lord Leicester, who was recently elected to this House, on making his maiden speech later; we all look forward to that.
It is a great privilege to open Second Reading on the Bill, which I trust will be welcomed by your Lordships’ House. Repealing the Fixed-term Parliaments Act 2011 was a manifesto commitment both of the Government and of the Official Opposition. As the Labour Party manifesto put it, the Act
“has stifled democracy and propped up weak governments”.
I agree, and look forward to unequivocal support from the Benches opposite today and in Committee—you always travel in hope in your Lordships’ House.
The 2011 Act fostered uncertainty and stasis in our democratic arrangements. It led to paralysis when the country needed decisive action. It undermined the effectiveness and responsiveness of our democratic system overall. The flaws of the Fixed-term Parliaments Act are understood and have been analysed by many noble Lords, including your Lordships’ Constitution Committee—I am pleased to see the name of the noble Baroness, Lady Taylor of Bolton, on the speakers’ list today. I am grateful for the depth of expertise and knowledge that your Lordships’ House has brought to bear on the scrutiny of the 2011 Act and that it will bring to bear on the scrutiny of this legislation.
The Bill seeks to return to the tried and tested position of the past over many centuries, replacing the 2011 Act with arrangements more in keeping with our best constitutional practices: delivering stable and effective government; upholding proper parliamentary accountability and public confidence in our democratic arrangements; and, above all, placing the British people at the heart of the resolution of any great national crisis.
The Bill will provide increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament. I emphasise at the outset that the Bill focuses on the Dissolution and the calling of Parliament only, not any other part of the constitutional process. Ensuring that these arrangements are clear, stable and widely understood underpins the integrity of our constitution.
Your Lordships’ Constitution Committee, in its report of December 2020, warned correctly that the “origins and content of” the 2011 Act
“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.
Before the Minister leaves Clause 3 —I am not a lawyer—will he explain the use of the word “purported” in two of the items? He has spent a lot of time on Clause 3, so I presume he is briefed on this to explain why “purported exercise” is also covered.
My Lords, I always seek to be brief, but one always aspires to be better briefed in your Lordships’ House. I anticipate that this will be the subject of some discussion in Committee, and I wanted to make some progress in this speech, but to answer the noble Lord, which is my duty, purported exercises of power or decisions refer to things that would be considered by a court to be invalid or a nullity and therefore not a real exercise of power or decision because they have been done on the basis of an error of law. The courts have noted that this could arise where, for example, a decision is made outside the limits of relevant power or without taking into account a relevant consideration.
The reference has been included to make it clear that all elements of the Dissolution and calling of Parliament process fall to the political and not the judicial sphere. The drafting takes account of previous judicial decisions, which I have no doubt we will discuss at some length in Committee. In particular in the case of Privacy International, the Supreme Court said that those drafting legislation should make clear whether such purported decisions are intended to be outside the jurisdiction of the courts. I am grateful to the noble Lord for his intervention, and I look forward to discussing this matter at some length—I hope not at some length—and I have no doubt that we will have a lively discussion in Committee, so I would like to make some progress, if I may.
Clause 4 provides a maximum parliamentary term of five years, calculated from the date of the first meeting of Parliament. This will ensure that elections are held at regular intervals by providing a longstop of five years, a maximum term which is of course still guaranteed by your Lordships through an explicit exception in the Parliament Acts. By reviving the prerogative powers, the Government could call an election either to resolve political deadlock, to seek a fresh mandate from the electorate or after a defeat on a major policy issue.
My Lords, I thank the Minister for his contribution and his endurance in getting through it—I have some cough sweets if they would be any use to him. I know how he feels; I once took a Bill through Committee while recovering from flu, with a lot of Lucozade under my desk. Given that he is not very well, I thank him for his contribution today. This is a relatively short Bill—six clauses and one schedule of what the Government describe as minor and consequential amendments. It is significant none the less, despite its brevity.
I was talking to a colleague the other day who described your Lordships’ House as the “custodians of the constitution”. That may sound a little pompous, but I think we take the constitutional responsibilities of Parliament very seriously. With that, I entirely concur with the Minister’s comments about the committees of both Houses, which have provided ample information and a very helpful backdrop to today’s debate.
Looking at the list of speakers in today’s debate, we have those who have served in government and at the highest levels of the Civil Service, colleagues from the law and constitutional experts. Some of our newer colleagues will contribute as well; I welcome and look forward to the maiden speech of the noble Earl, Lord Leicester. When he came to your Lordships’ House, he described it as
“the most effective reforming chamber in the … world.”
I hope we can live up to his expectations. I look forward to his contribution.
The Minister outlined this already, but I really think this Bill reinforces the traditional saying, “Legislate in haste, repent at leisure”. I am not staking any claim for the moral high ground for myself or my party, but it is essential when considering constitutional changes that there is a proper process of investigation, analysis and consideration. Otherwise, it is impossible to predict and fully understand all the implications of the changes proposed. There is an onus on parliamentarians from both Houses, from all parties and none, to ensure that any constitutional change stands the test of time. The answer to addressing such issues is pretty straightforward. Probably quite boringly, it is about having a process to ensure that all the relevant issues and consequences, intended and unintended, are fully understood.
My Lords, I too offer my sympathies to the Minister for having to take forward this Bill under the duress of a heavy cold. I hope that my comments will not add too much to his coughing and spluttering.
This is an exceptionally short Bill but still a very significant one. The Act that it replaces was said by David Cameron to be
“the biggest transfer of powers from the Executive in centuries.”
If we accept his judgment, it follows that the repeal of the Act to return to the position that preceded its passage marks a major transfer of powers back to the Executive. So the key question before us is whether such a transfer is justified. On these Benches, we believe that it is not.
The purpose of the Fixed-term Parliaments Act was to provide a stable framework within which the coalition Government formed in 2010 could operate. In his Second Reading speech in another place, even Michael Gove accepted that it had been successful in achieving this and had prevented the Tories “collapsing the Government” early to gain a political advantage.
The reason we have this Bill before us today is that the previous minority Conservative Government were frustrated in calling an election because they did not have a parliamentary majority. Yet, even with the Act in place, Theresa May was able to call an election, having had a revelation while up a mountain, and Boris Johnson was able to call an election three years early in the wholly exceptional circumstances of 2019.
The advantages of having a fixed term are clear. It brings some certainty and reduces the advantage the Prime Minister has in choosing an election date that maximises his or her chance of victory. Research in the UK by Schleicher and Belu shows that, where elections have been called opportunistically before the statutory end point of a Parliament, it has given the incumbents an average increase in vote share of 3.5% over what might otherwise have been expected, which has translated into an 11% seat advantage. In circumstances where no party has a majority in the Commons—a highly likely scenario for the UK in the future—it gives the largest party a massive advantage.
My Lords, the massive advantage was perceived in the mind of the Prime Minister. The massive disadvantage was her judgment, not that she did not have the opportunity to exercise that judgment. We think the exercise of that judgment, on what was by any accounts if not a whim then a very short period of decision-making, is a bad idea for democracy.
As I was saying, fixed terms provide parties with a more level playing field on electoral expenditure. If the Government can plan for an early election, they can ratchet up spending in the year before the planned, but unannounced, date. Opposition parties will typically be unable to take the risk of planning and spending on the basis of an early election date. For these reasons, a fixed-term Parliament is the international norm. Some three-quarters of the world’s major democracies have a fixed term. So do the Scottish, Welsh and Northern Ireland legislatures. No doubt that is why Labour was so enthusiastically in favour of introducing a fixed-term Parliament in Gordon Brown’s manifesto in 2010. I am not arguing that every single aspect of the current Act is incapable of improvement, but I am seeking to defend the principle which lies behind it.
So if we are to reverse the biggest transfer of executive power from the Executive in centuries and hand it back to the Prime Minister, you would hope that there would be a compelling reason for doing so. In moving Second Reading in another place, Michael Gove said that this compelling reason was that
“it gives power to the people.”—[Official Report, Commons, 6/7/21; col. 788.]
This is pure doublespeak. It does not give power to the people; it gives it to the Prime Minster, pure and simple.
I suspect that this Prime Minster will not follow the precedent of his predecessor by having a revelation during a long mountain walk, but he might have it on the roundabout at Peppa Pig World and come back the next day and simply call an election. How do the people have any say in that decision? They clearly do not. They do have the power to vote the Prime Minister back or not at the subsequent election, but, if you really wanted to give power to the people, surely a Prime Minister would follow the public mood and, when it was supportive of an early election, call one. But that is exactly the time when a Prime Minister is least likely to call an election, because the people want elections when they want to change the Government, not retain them. So the democratic argument for prime ministerial discretion on calling an early election is entirely bogus.
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support the Bill. While it appears that no one really wants to keep the Fixed-term Parliaments Act, there are obviously differing views about what should replace it. There seem to me to be three basic suggestions: first, that the Commons should have a vote; secondly, that the Prime Minister should decide, subject to the courts’ supervisory jurisdiction; and, thirdly, that the Prime Minister should decide but do so under a non-reviewable prerogative, which is what the Bill proposes. As I said, I favour the latter.
To clear the ground—the noble Lord, Lord Newby, has just done this—obviously, the three alternatives, if you can have three, are mutually exclusive. If the Commons has a vote, that decision is plainly unreviewable: Article 9 of the Bill of Rights plainly puts that out of court. It should further be noted that there is disagreement among lawyers as to whether, given that the FTPA earlier replaced the prerogative, the prerogative—certainly in an unreviewable form—can now be restored. My own clear view is that it can, and that is certainly the view of Lord Sumption and Mark Elliott, the leading Cambridge professor of public law, who advises the Constitution Committee and who supported the decision in Miller II.
With Clause 3 in the Bill, I simply cannot see any court, and certainly not the Supreme Court—now under new management, with a new president—contemplating reviewing the prerogative of the Prime Minister. Indeed, even without Clause 3, I do not think that it would have done so, but it is there for the avoidance of doubt. Indeed, one reason for having it there is to relieve the court of the embarrassment of being drawn reluctantly—believe me—into this rather sensitive area.
Let me explain now why I see no basic objection to an unreviewable prerogative here—it is, or would be, exercisable by Her Majesty not on the advice but at the request of the Prime Minister—and then I must explain why I do not think that the House of Commons should have a vote. As to an unreviewable prerogative power, I gather that there are those who worry that that could place Her Majesty in an invidious position if, for example, the Prime Minister did not like the result of a general election and thought he could get a better majority with an immediate further election. That sort of thing, besides being flatly contrary to the conventions set out and agreed on all sides, is really a purely theoretical risk. Any Prime Minister has to have regard to the obvious general good sense of the electorate, and we all know that electorates can see through that sort of thing extremely readily. Certainly, it does not to my mind suggest for a moment that the Prime Minister could be mad enough to reach a decision that would actually embarrass Her Majesty.
My Lords, the House might allow me to mention that, in June 2014, a Labour Back-Bencher introduced the Fixed-term Parliaments Act 2011 (Repeal) Bill. I happen to have a copy of it with me here. Modesty prevents me mentioning the name of the person who introduced the Bill, but it got nowhere; the Government ignored it. Had they not, we would have saved ourselves an awful lot of time and trouble. At least this allows me to deploy my favourite parliamentary phrase: “I told you so”. The intentions of the Bill before us are clear: first, to scrap the Fixed-term Parliaments Act 2011 and, secondly, to return to the system of dissolving Parliament which existed prior to the Act. I very much agree with the first objective, but some significant improvement is needed to the second.
The Fixed-term Parliaments Act 2011 was a bad piece of legislation. It was a major constitutional Bill presented in haste, with no attempt at reaching consensus and no pre-legislative scrutiny. Perhaps most damning of all, the Bill was drafted in cynicism between two political parties, the Tories and the Liberal Democrats, that did not trust each other and wanted a mechanism that would keep them in office for a full five-year term. David Laws, in his book 22 Days in May, says it all:
“William Hague and George Osborne indicated that we needed a mechanism to build confidence in each other … That pointed to fixed-term parliaments”.
So much for David Cameron’s quote that it was a major transfer of power from the Government to the legislature. I was amazed that the noble Lord, Lord Newby, quoted that approvingly when, quite clearly and unarguably, the whole purpose of the Bill was to guarantee the Executive a five-year term. That is no way to make constitutional change. I would like to hear from the Minister on this; perhaps he could apologise on behalf of the Conservative Government at the time that this Bill was ever introduced, and say that no major constitutional change will be introduced without full cross-party debate and pre-legislative scrutiny as long as this Government are in office.
My Lords, that must have been a very satisfying speech for the noble Lord, Lord Grocott, to make—I can see that he enjoyed it. It might have been shorter if he had simply stood up and said, “I told you so.”
I support the support the Bill as well. Our lives would of course be considerably easier if all Bills were introduced like this, largely supported by the Opposition and unamended in the House of Commons. It puts a wrong right and takes us back to where we were before. It is admirably clear in its intention and impact. While I accept that there are some aspects of detail that are controversial, I hope that the Government will not be swayed from their course of action.
As part of the good will that existed at that heady time of excitement at the creation of the coalition, post the general election of 2010, I was persuaded that the Liberal Democrats had some ideas that needed to be tested by experience, and so the Fixed-term Parliaments Act was created. It was something that I supported, despite my earlier scepticism. However, the events of 2017 and 2019 showed that the Act was insufficiently flexible to meet our constitutional arrangements. It gave power to the courts and to the House of Commons, it created a muddle and it was also unnecessary. This Bill returns us to the clarity that we previously enjoyed. In this House, I believe that one of our overriding objectives should be to provide that kind of clarity and simplicity.
Of course, there will be those who urge conditions on the workings of the Bill through the House of Commons—in the way that the noble Lord, Lord Grocott, has—and indeed the courts. I urge the Minister to ignore their blandishments, however elegantly they are made.
The Bill deals with the whole question of when elections are called. I believe that we should do nothing to put hurdles in the way of people using their vote. “Trust the people” might sound like a cheap political slogan, but it is the cornerstone on which our constitution is built. The noble Lord, Lord Grocott, put it very well when he said that there was a fundamental right to vote, but I part company with him after that.
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Indeed, the Act led to paralysis and uncertainty at a critical time for our country. An untenable situation arose in the last Parliament, when the Government were neither able to pass vital legislation through Parliament on their central policy nor call a new election and put the question to the people, who had already voted in a referendum for the very proposition Parliament was seeking to block. The result was deadlock and paralysis. The fact that Parliament had to introduce bespoke primary legislation in 2019 to bypass the Act in order to hold the necessary election was surely the final, damning indictment. In summary, the Fixed-term Parliaments Act is a political experiment that failed. It is neither credible nor effective and does not serve future Parliaments or Governments, whether they are majority or minority formations or coalitions.
I now turn to the details of the Bill. Before I begin, I reiterate my sincere thanks for the valuable work of Parliament, particularly your Lordships’ Constitution Committee, chaired by the noble Baroness, Lady Taylor, the Public Administration and Constitutional Affairs Committee in the other place, and the Joint Committee chaired by my noble friend Lord McLoughlin, who I am also pleased to see here in his place today. I also add my thanks for the Constitution Committee’s most recent report on the Bill, which was published on 19 November. The Government welcome its consideration of the Bill and I can give an assurance that they will respond to the report before this House goes into Committee. Its consideration of the 2011 Act and the Government’s Bill has been valuable and has informed our approach, as will become evident.
The Bill is short; its purpose is clear and its objectives are known, because the British people lived with the previous system for centuries. It is a focused Bill of six clauses and one schedule. It restores the status quo ante, except in a few cases, particularly where practical changes to election arrangements made since 2011 have proven beneficial to the smooth running of elections—although I am certain that we will discuss that aspect of the Bill. It returns us to the tried and tested constitutional arrangements that have served successive Parliaments and Governments and that are a feature of our constitutional system.
Clause 1 repeals the Fixed-term Parliaments Act. Clause 2 makes express provision to revive the prerogative powers relating to the Dissolution of Parliament and the calling of a new Parliament that existed before the 2011 Act. This means that, once more, Parliament will be dissolved by the sovereign at the request of the Prime Minister. Within the life of a Parliament, Prime Ministers will once more be able to call a general election. That is a tried and tested approach that throughout our history has served successive Governments of different configurations.
By returning us to the status quo ante, the Bill will enable the link between confidence and Dissolution to be restored so that critical votes in the other place can once more be designated as matters of confidence, which, if lost, would trigger an early election—circumstances which many of us well remember from 1979. The other place will therefore continue to play its expected and key role in holding Governments to account and demonstrating whether they have the confidence of the elected House.
This is the status quo ante that we are all familiar with and understand. Under that system, our nation weathered many a constitutional crisis and accomplished enormous social change and social improvement without conflict, revolution or civil strife. That is the position the general public understand and under which our liberties have long been guaranteed.
Clause 3 restates the long-standing position that the prerogative powers to dissolve and call Parliament are non-justiciable. I understand that some noble Lords question why this clause is necessary at all and say that, after all, these prerogative powers are recognised as outside the purview of the courts. Let me explain: Clause 3 is drafted with careful regard to developments in case law. As noble Lords will be aware, since the GCHQ case, some prerogative powers that were previously considered to be non-justiciable have been reviewed by the courts.
The recent independent review of administrative law, which was chaired by my noble friend Lord Faulks, noted that
“the direction of travel in favour of regarding more and more prerogative powers as reviewable in principle is undeniable and has existed for many years”.
This culminated in the decision of the Supreme Court in Miller/Cherry 2 in relation to Prorogation. So, with respect to those noble Lords who say that there is no risk of the courts reviewing a decision to dissolve Parliament, I cannot simply say that the case law would suggest that this risk can be discounted, and recent events, in particular, have underlined this.
Clause 3 has been drafted with great care, taking on board the position of the courts that the most clear and explicit words are needed. It provides that any decisions relating to the revived powers to dissolve one Parliament and call another are non-justiciable, as well as the exercise of the powers themselves. This is to ensure that any preliminary steps leading to the exercise of these powers, including any request to the sovereign to dissolve Parliament and any related advice, cannot be reviewed by a court or tribunal.
Clause 3 further provides that a court or tribunal cannot consider the exercise of those revived prerogative powers or any related decisions, even if the court considers they are invalid or, in the language used by the Bill, “purported”. Nor may a court consider the limits or extent of those powers. Again, taking into account the case law, this is to make as clear as possible the position that all elements of the process relating to the Dissolution and calling of Parliament are covered by Clause 3 and are not a matter for the courts.
Let me be clear: there would be no change to the involvement of the courts, as the Dissolution and calling of Parliament is not an issue that has, so far, ever been considered reviewable. This clause simply confirms that position, preserves it for the future and protects the judiciary from being drawn into political matters.
Ultimately, judgment on the Government’s actions in calling an election is a matter for the electorate at the polling booth. I remember well the wise words of the noble Lord, Lord Grocott, on this subject at Second Reading of the original Bill, that it is not axiomatic that the timing of an election serves the incumbent Prime Minister. As the Joint Committee affirmed,
“it is appropriate for Parliament to make clear where it thinks the constitutional boundaries lie”.
This clause was unamended in the other place, and while I recognise that your Lordships will have questions, we do, I think, mostly agree that the prerogative power for Dissolution is, and should, remain non-justiciable.
As I have set out, a Prime Minister will take a number of factors into account when choosing to call a general election. But of course, this would include— I can offer reassurance here—scheduled elections to the devolved legislatures. We recognise the practical administrative challenges of holding elections which are conducted under different arrangements simultaneously or in close proximity. A Prime Minister choosing to call an election would undoubtedly wish to take these matters into account.
Clause 5 introduces the Schedule, which sets out minor and consequential amendments. Clause 6 confirms that the territorial extent of the Bill is the UK, except for a very small number of amendments in the Schedule where the extent is more limited. The Schedule contains a number of minor and consequential changes, including to the parliamentary elections rules in the Representation of the People Acts 1983 and 1985, concerned also with the demise of the Crown and the Recall of MPs Act 2015. I would be happy to explain any of these in detail if your Lordships wished between now and Committee.
The Bill has undergone pre-legislative scrutiny. The Government are indebted to the work of the Joint Committee on the Fixed-term Parliaments Act. We have carefully considered the committee’s findings and amended the Bill in two respects, the first being the Title of the Bill. This small but significant change ensures the purpose and effect of the Bill is clear, reflecting its precise remit and its constitutional significance. Secondly, having reflected on the Joint Committee’s report, the Government agree that the trigger for the election process should be the Dissolution of Parliament. This amendment will give legal certainty that the election period will automatically follow on from Dissolution, providing a clear timetable leading to a defined polling date.
Let me conclude with the conventions which provide the flesh on the bones of the Bill. In restoring the status quo ante, conventions will once more govern the operation of the revived prerogative powers. Conventions can operate effectively only where there is shared understanding of them. That is why the Government published in draft their understanding of those conventions alongside the Bill for scrutiny—not only by the Joint Committee but by Parliament as a whole. We set out in that document:
“The circumstances in which a Prime Minister might seek a dissolution are underpinned by two core constitutional principles.”
First:
“The Prime Minister holds that position by virtue of their ability to command the confidence of the House of Commons and will normally be the accepted leader of the political party that commands the majority of the House of Commons.”
Secondly:
“The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.”
We recognise that the conventions on Dissolution are part of an interlocking picture. Therefore, in our response to the Joint Committee, we have provided fuller explanations of the conventions on confidence Motions, Dissolution and Government formation. It is intended to provide the basis for discussion and debate among parliamentarians, building our shared understanding in and across both Houses and all those represented in them.
The value of conventions is not that they should cover every single hypothetical scenario but that they provide guiding principles and are an effective deterrent —in particular, the imperative not to involve the sovereign in politics. We welcome further discussion in your Lordships’ House on the conventions. That is the best way to develop our shared understanding.
This Bill will deliver increased legal, constitutional and political certainty around the processes for the dissolution and calling of Parliament. It will restore tried-and-tested constitutional arrangements which have been understood by the electorate for generations and are underpinned by the core constitutional principle that the Government of the day draw their authority by commanding the confidence of the elected House.
I hope these constitutional arrangements that have served us well in the past will continue to serve future Parliaments and Governments of all parties, whatever they may be. The ability of a Prime Minister to call a general election for reasons of political or public necessity, to turn to the people to give their judgment, is an essential feature of our democracy. The Fixed-term Parliaments Act disrupted that relationship. This Bill, we submit, will restore the proper balance to our constitutional arrangements.
I look forward to a constructive debate on not only the Bill but the conventions. I commend the Bill to the House.
As the noble Lord said, there is now little doubt that the Fixed-term Parliaments Act is badly drafted legislation. It is also rather ineffective, possibly because of its starting point. Despite the principle being discussed often—as he said, even in party manifestos—there had been very little detailed consideration. When the Bill was introduced, it was clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. That was understandable, given that we have little experience of coalition governments in our system, but it is an unavoidable irony that the coalition for which it was designed was clearly more robust than the Conservative Governments that followed, as ways then had to be found to circumvent the legislation. There is little disagreement that it is flawed and needs to be replaced. The question that remains is how to go about it.
When reading through the debates in the other place, I found it interesting how often ministerial comments and opinions were asserted as facts. If I were being generous, I would probably describe them as optimistic assertions. At Third Reading in the other place the Minister, Chloe Smith, stated:
“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.”
She then asserted that the Bill will
“reset the clock back to the pre-2011 position with as much clarity as possible”,
but does it really do that? First, the Joint Committee that the Minister here referred to identified ways in which the then draft Bill did not do that, including through the inclusion of Clause 3 in the Bill before us today. This is the ouster clause that puts in statute that the decision to hold an election is outside any legal jurisdiction. If the “factory settings” were being restored to 2011, then surely such a clause would not be required. I heard what the Minister said but it did not really bring the clarity that we are looking for.
In the debate in the other place, the Minister then also declared that the Lascelles principles—through which a monarch has a constitutional power under the prerogative to refuse an election in three very limited circumstances—were ones that the Government “acknowledged” as a historical fact and that
“now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated.”—[Official Report, Commons, Dissolution and Calling Of Parliament Bill Committee, 13/9/21; cols. 721-22.]
However, I am unconvinced that any of this provides the clarity we need for the legislation before us.
The key question is whether the prerogative can be restored by statute and, therefore, whether the Bill restores the prerogative powers as they previously existed, including the principles by which a monarch can refuse an election. If it is the Government’s view that that is the effect of the Bill, why is Clause 3—the ouster clause that would prevent any decision being judicially challenged—so essential? That is a very specific question, and it is important because Clause 3 implies that the Government consider that by seeking to revert to what they describe as the previous position by statute, the decision to call an election could be legally challenged.
When our own Select Committee on the Constitution, chaired by my noble friend Lady Taylor, examined this issue last year—albeit without the benefit of seeing the legislation now before us—it said:
“The possibility of legal challenge to the prime minister’s advice to the Monarch, or the Monarch’s decision to dissolve Parliament, must be avoided.”
I accept that, and I understand why the Government remain scarred by the attempt at an unlawful Prorogation that was successfully legally challenged in 2019. The Minister will recall that so great was my concern and that of the noble Lord, Lord Newby, that we refused to take part in the Prorogation ceremony, which was later in effect declared void.
As the Minister and I have discussed, there is a clear difference between Prorogation and Dissolution, but the wider and perhaps more relevant question is whether the way the legislation is drafted is the correct way to address the issue. There was a difference of opinion in the Joint Committee, yet even those who supported the Government’s approach in principle were concerned at how Clause 3 had been drafted—that is, its extent and future use as defined in Clause 3. My noble friend Lord Rooker picked up that issue and the Minister is right that it will have to be debated—perhaps for longer than he would like, although hopefully not too long. Still, it will have to be ironed out in Committee.
The use of the word “purported” has caused considerable concern because it appears that, in effect, Parliament is giving the Executive the power to do something that is not within their power, and there would be no legal redress whatsoever. I am not a lawyer—it probably shows—but from reading through the various reports and evidence to the Joint Committee and the Constitution Committee, it was obvious that if you ask two lawyers the same question, you get at least three opinions. Some said that they thought the ouster clause was clear, while some thought there was the potential for abuse. Others, including constitutional experts, considered that the courts would then seek to interpret the clause. I suspect that the potential for the latter two outcomes is undesirable and certainly not what the Government intended—so Clause 3, the ouster clause, may not even do what the Government intend.
So, what are the alternatives? I suggest that there are two options that we could consider and draw out in Committee. First, as invited by the Joint Committee, the Government could consider whether a more limited but clearer and more precise approach could be more effective. However, in the initial response to that invitation, the Government appeared to both agree and disagree. They accepted that clarity was necessary but disagreed that they needed to change anything.
An alternative approach would be for the House of Commons to continue to have a vote on the issue. Given that the power has been with Parliament since the Fixed-term Parliaments Act 2011, it would not be a huge leap to consider that that position should continue. Otherwise, the effect of the changes proposed by the Government will not be just to set the clock back to 2011 but to increase the power of the Prime Minister not just beyond the current position but beyond what existed prior to 2011.
Let us face it: this Prime Minister has not exactly established himself as someone who could be constrained, or even guided, by the normal conventions of Parliament. Whether because of the unlawful Prorogation, for example, or his lack of support for the Ministerial Code, there are many who consider that the Prime Minister wants to find ways around the usual and normal ways of working rather than follow the rules. But, as we have already seen, he is not alone in the Government in appearing to consider the normal processes of checks and balances in our system as something of an inconvenience. Legislation has to be considered for all situations, not just one particular Prime Minister.
I am sure that most noble Lords in this House would agree that Parliament and the governance of our country work best when there is a balance between the Executive and Parliament, not when the Prime Minister thinks that they are one and the same. If the Government consider that the Lascelles principles still apply—and I am not convinced that they do—the monarch could, in future, again be placed in a difficult position: having to make a decision to either accept an inappropriate request for Dissolution or refuse the advice of a Prime Minister for an election. However, the ouster clause is a heavy-handed, inappropriate way of dealing with the issue.
A point made by Professor Andrew Blick of King’s College, London, is one that we would do well to heed, and perhaps look at in more detail in Committee. In his evidence, Professor Blick considered that maintaining a vote in the House of Commons would help to insulate the monarch from being put at the centre of a political and constitutional controversy. Many of us remain very concerned at the way the Leaders of both Houses went to Balmoral to ask the Queen to call for the Prorogation. So I favour this approach, but we will get into that in more detail in Committee.
There are other issues in the Bill, such as the number of days needed for a general election, that we may also want to probe further. I look forward to today’s debate, with the expertise and information we have in this House, and to our deliberations in Committee.
Fixed terms also provide the parties with a more level playing field on electoral expenditure.
This Bill seeks to put the clock back and reinstate prime ministerial powers over Parliament. But it goes further than that. With Clause 3, it seeks to increase prime ministerial power further by removing the power of the court to adjudicate on the way in which that power is exercised. As we saw in 2019, judicial oversight is not just a theoretical possibility but, as the noble Lord, Lord True, said, an actual possibility, and the Prime Minister simply wants to cut out this possibility in future.
If that is his aim, there is a much more satisfactory and democratic way of doing this, which is to make the calling of an election before the end of the full allotted span of a Parliament subject to a vote in the Commons. This reins in the executive power that the Bill seeks to give the Prime Minister, without unduly hobbling his or her ability to call an election—because, at the very least, the Prime Minister would have to consult Cabinet colleagues and persuade their party to vote for such an election.
In practice, it is unlikely that the Prime Minister will be denied an election by Parliament—by the Commons. Oppositions nearly always want elections and, if the Prime Minister is able to persuade neither their colleagues nor the Opposition to vote for one, the likelihood is that it would not be in the national interest. We will therefore support an amendment in Committee to make the premature calling of an election subject to a vote by the Commons. By doing so, we would remove the problem of the ouster clause and restrain prime ministerial power but allow MPs to decide whether it is in the national interest to have an election when the Prime Minister wants to call one. My colleagues will raise other aspects of the Bill both today and in subsequent stages, but, if the Lords can persuade the Commons to take back some control of the electoral process, I believe that it will have fulfilled its constitutional role.
To return to first principles, the British public do not elect a Government; they elect a Parliament, and an Executive are then drawn from that Parliament. Parliament is the servant of the people, and Parliament, not the Executive, should have the decisive vote on when the people should have their say.
As to the Commons having a vote, I object to that because it would leave wide open the possibility that we could return to the selfsame intolerable position that arose under the Fixed-term Parliaments Act back in the late summer of 2019. Paragraph 86 of the report of March this year from the Joint Committee on that Act said:
“It would be possible to replace the Fixed-term Parliaments Act with a provision requiring a vote in the Commons before Parliament was dissolved. A minority of the Committee argues this would be the simplest and most obvious way of protecting the Monarch from being dragged into party political debate. The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”
In a letter dated 12 August, the Minister gave a well-judged response to the suggestion from the Public Administration and Constitutional Affairs Committee for a convention that there should be a Commons vote. The letter said:
“To establish a convention that a resolution of the House must proceed an early dissolution would not be compatible with a return to the tried and tested arrangements for calling an election. Indeed, to create such an expectation would potentially only lead to a repeat of the circumstances of 2019 which this Bill seeks to avoid in repealing the 2011 Act and reviving the dissolution prerogative.”
The imperative, in my respectful suggestion, is to avoid any risk of returning to the position that arose then. In speaking in a debate on 5 September of that year, 2019, I deplored the situation brought about by the Kinnock Bill, an Opposition Bill to ensure that Boris Johnson could not pursue his essential policy of securing Brexit, even if necessary on a no-deal basis. Although I was certainly no supporter of the Prime Minister or of Brexit, and still less of a no-deal Brexit, I suggested that the Bill compelled the Prime Minister to go to Brussels cap in hand, not merely to seek but to obtain a further extension to that process. A little later, I said that
“those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted.”—[Official Report, 5/9/19; col. 1177.]
The imperative of this Bill is that we do not allow that to recur. Let us return to the safe and sound position we used to have—let us pass this Bill.
The 2011 Act led to serious damage to the way in which our democracy works. This was particularly evident during what I can describe only as the poisonous Parliament between 2017 and 2019. There were at least two deeply damaging episodes for which the Act was directly responsible. The first was in January 2019 when we had the first of the so-called meaningful votes on Brexit. The Government lost that vote by 432 votes to 203, with a majority against them of over 220. Prior to the Fixed-term Parliaments Act and the conventions that existed at the time, there is no conceivable way that a Government could have survived a defeat like that without either an immediate vote of confidence or by calling a general election.
An even more damaging consequence of the Act was in autumn 2019. This was when the Government had unarguably lost the confidence of the Commons, again on their European policy. Three times they tried to call an election to settle the matter and three times failed to achieve the two-thirds majority required by the Act. This meant that in our cherished parliamentary democracy, whose foundational building block is that Governments govern on the basis of the confidence of Parliament, we faced a situation in which a Government remained in office despite clearly having lost Parliament’s confidence. They could not pass their legislation nor enable the British people to vote in a general election. No wonder it is such a discredited Parliament.
What should we put in the Act’s place? I was privileged to be a member of the Joint Committee that examined the current Bill. There were two related issues that we must have spent half our time discussing. The first concerned the role of the monarch and the need to keep the Queen out of politics. The second was about the so-called Dissolution principles. These issues are fundamental to our democracy. They are, after all, questions about the circumstances in which the British people can exercise their most fundamental democratic right—the right to vote.
The Government’s answer to these questions is, on the surface, a very simple one. It is to return to the system exactly as it was before the Fixed-term Parliaments Act. This meant that, apart from in a very restricted number of conventions, a general election could take place whenever a Prime Minister requested that the monarch dissolve Parliament. But herein lies the rub: as we know, a request, as opposed to advice, from a Prime Minister means that the monarch still has discretion about whether to accept the request. Then inevitably you hit a serious problem. If you consider it essential to keep the monarch out of politics—I do—how on earth can you allow even the possibility of her deciding whether she can refuse a request from a Prime Minister for a general election? Such a decision would be a major constitutional crisis. There could hardly be a more politically charged subject.
There is a solution, which has been touched on by previous speakers. In my view it is a very simple one, and it is that a general election should be held not just when a Prime Minister goes to the monarch and requests one, but when a Prime Minister goes to the monarch armed with a House of Commons resolution and advises her to hold one. Remember that, in our constitution, advice from the Prime Minister is something that the monarch would accept. This simple requirement of a majority in the Commons solves every problem at a stroke. The Government get what they want because a Prime Minister—who of course would not be Prime Minister unless he or she enjoyed the confidence of the Commons—would get the necessary majority on such a fundamental issue. There would be no need for endless debates about Dissolution principles as the authority of Parliament is the only principle that you need. The Queen is kept completely out of politics; she is simply abiding by the supreme authority of a parliamentary majority.
There are other advantages. First, a resolution of Parliament would not be challenged by the courts, so the judiciary would be kept out of politics. Secondly, we would avoid the bizarre embarrassment of the Bill as drafted, which hands back power from Parliament to the monarch. The whole history of our democracy involves the steady transfer of prerogative powers from the monarch to Parliament. This Bill effectively says, “No, we don’t want these powers so please can the hereditary monarch take them back?” By the way, if the Minister when replying says that the whole purpose of the Bill is to give the power of Dissolution back to the Prime Minister to avoid the chaos of the last Parliament, the answer is simply this: on the three occasions when Boris Johnson wanted a general election, he would have got one under my proposal because a majority of MPs said yes. It was simply the requirement of a two-thirds majority that caused the chaos.
I also say to those who object to the idea of a simple majority of government-supporting MPs being able to call an election when it suits them, they can do that already. The Early Parliamentary General Election Act 2019 did just that with a simple majority. I am suggesting a solution that keeps both the monarch and the courts out of politics. It enables a Prime Minister with a majority in the Commons to secure a general election, just as Prime Ministers have been able to do in the past. It solves at a stroke all the problems of having to define Dissolution principles. All that is needed is to include in the Bill a provision that a Dissolution will take place when the Prime Minister arrives at the palace armed with a House of Commons resolution, which would then be granted automatically. I very much hope that the Minister can see that case when he winds up, and I look forward to his reply.
We should do everything to make sure that our system of dissolving Parliament and calling an election is very clear and well understood by the people of this country. This Bill does just that and should be supported.