My Lords, I very much support Clause 1 being part of the Bill, but I want briefly to record how big a decision this is. Just 11 years after the Fixed-term Parliaments Act 2011 was put on to the statute book, with much criticism and objection to it at the time—it was done in the shortest period of time and, as we know from other sources, was decided in a very short period by the coalition partners—we are saying that it should now be repealed. This must be the shortest existence of any major constitutional Act.
I mention that so that we learn, I hope, at least one lesson from it: that major constitutional Bills should not be introduced in anything like the way this one was. At the very least, there should be some attempt to achieve consensus on them if they are to endure. Of course, normally, there should surely be pre-legislative scrutiny. The Act has no friends, as evidenced by the fact that there are no amendments to Clause 1. Clause 1 is terrific; I thought that we should start on a happy note.
My Lords, the Government have a manifesto commitment to get rid of the Fixed-term Parliaments Act. The Opposition also have a manifesto commitment to repeal it. This Bill repeals the Act and seeks, as we have just heard, to restore the status quo ante. Like my later amendments, Amendment 1 is designed to ensure that the Bill does precisely that.
Amendment 1 makes it explicit that the prerogative power to dissolve Parliament and call a new Parliament falls within the personal prerogative of the sovereign. Since the 17th century, the powers that remain with the Crown and have not been displaced by statute have come to be exercised in the name of the Crown or by the monarch, acting on the advice of Ministers. There are three personal, or reserve, prerogative powers remaining—that is, where the monarch does not act on advice—although two are governed by conventions of the constitution. Until the enactment of the Fixed-term Parliaments Act, the power to dissolve Parliament was a prerogative power that was not exercised on advice. A Prime Minister requested Dissolution but the monarch was not bound to accede to the request. Although the practice was to grant the request, there were circumstances in which it could be envisaged that the monarch could refuse it.
As is well known, there was some uncertainty as to what those circumstances may be. In 1950, the King’s private secretary, Alan Lascelles, wrote anonymously to the Times identifying circumstances in which a request for a Dissolution may be refused. Prime Ministers were not able to take it as given that a request would be granted. My understanding is that, in 1993, No. 10 contacted the palace to check that, in the event of the Government being defeated on the Motion on the social protocol of the Maastricht treaty, which the Prime Minister had made a vote of confidence, a request for Dissolution would be granted. As the Joint Committee on the Fixed-term Parliaments Act reported:
“As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.”
My Lords, the House is indebted to the noble Lord for elucidating this issue and tabling the amendment. In the Joint Committee, it was worrying that the Government did not initially seem to understand the distinction between requesting a Dissolution and advising a Dissolution, advice that would be binding on the sovereign. I entirely exempt the ministerial reply today from that criticism—the Minister is indeed a former member of the Constitution Committee, which also considered this—but we certainly considered it necessary to explore a little more fully and to criticise the wording of the Dissolution Principles document, the one-page analysis of the issue that made the specific mistake to which the noble Lord made reference.
The refusal of a Dissolution is the only remaining restraint on the ability of a Prime Minister to foreshorten a Parliament in circumstances that might be either entirely appropriate or, in some cases, at least questionable. Subsequent government writing, such as appears in their response to the Joint Committee, indicates that the Government recognise that there are circumstances in which it might be inappropriate to grant a Dissolution, such as a Prime Minister seeking a rerun of an election that has not quite gone according to plan and has not delivered the overall majority that was sought.
Another possibility is the 1974 situation, which I remember vividly because I was elected first in October 1973 and then in February 1974. Ted Heath was unable to establish a coalition, because we did not want to form a coalition with him, so Harold Wilson became Prime Minister. Was he advised that it would be premature to go to the palace and seek an immediate Dissolution? I have no idea, but he did not do so. He took the rather shrewder step of spending about nine months trying to demonstrate that you could have a sanitised Labour Government who did not do any of the things that people worry about Labour Governments doing, and was therefore able to go to the country in a slightly stronger position in October that year. Thankfully, I was re-elected but with a majority of only 70-odd, if I remember rightly; I survived to tell the tale another day. There are circumstances like that in which the issue is a questionable one, and that is why it is important to defend the personal prerogative power.
My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.
It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.
It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.
Lord Mackay of Clashfern (Con)
My Lords, we are very much indebted to the noble Lord for his background in this matter. It is important to remember that there are Dissolution principles to be settled before this situation arises. From time to time they have been revised, but I do not think they have been revised for some time now, and obviously it is appropriate that they should be before a further action is required.
It seems there is an academic argument about whether, once the prerogative powers are stopped as they were by the original Act, they can be revived—and this academic discussion occupies quite a lot of pages. So far as I am concerned, if Parliament says, “You go back to where you were before we did this”, that seems perfectly possible and should be followed. I therefore agree with my noble friend Lord Norton of Louth that it is desirable to put that in the Bill. I do not think it is at all likely that anything of the sort that the noble Lord, Lord Grocott, has mentioned is likely to arise, because the Dissolution principles make that very plain. It is in the form of a request because of its importance, but it will be taken in accordance with principles that are well settled. I very much support this proposal and the basis on which it rests.
My Lords, if I may intervene in this debate, I think it is still important that what used to be the custom and convention be clarified on paper. This is for a very simple reason. While I agree with the noble Lord, Lord Grocott, that it is inconceivable that a monarch could refuse the request of a Prime Minister, there is always a possibility. For example, in India, which has a constitution based very much on British lines, the president is elected by the Parliament, and very often he or she is a partisan person and would be unable to refuse the Prime Minister under any circumstances. We have to reserve the power of the monarch. If what the Prime Minister is saying does not smell good when he or she is asking for a dissolution, the monarch should have the power to say no.
My Lords, I agree with all those who have said that my noble friend Lord Norton of Louth has done us a very considerable service. He reminded us of the formidable words of Alan Lascelles, private secretary to George VI in 1950. We should, at all times, keep those Lascelles words in mind:
“It is surely indisputable (and common sense) that a Prime Minister may ask—not demand—that his Sovereign will grant him a dissolution of Parliament; and that the Sovereign, if he”—
or, we should add, she—
“so chooses, may refuse to grant this request.”
It is the existence of this power that has ensured, and will continue to ensure, that no Prime Minister has asked improperly for a dissolution in our history.
I do not think I could make a list of the possibilities. One can conceive of them, but we trust to the existence of this power and the wisdom of the monarch to ensure that no improper dissolution is likely ever to be brought forward.
My Lords, I intervene briefly because this is a very interesting debate and I am grateful to the noble Lord, Lord Norton of Louth, for having tabled his amendment. We are all here because we recognise that the 2011 Act was a mistake. However, I am a little puzzled by the noble Lord’s amendment because he prefers to insert the word “personal” when, up to now, we have simply referred to it as the royal prerogative. Indeed, I am grateful to the Minister, who in a Written Answer to me yesterday defined the royal prerogative; I have it in front of me but do not need to read it out. The Minister refers to the royal prerogative just in those terms and not in any way as “personal”. Therefore, when the noble Lord, Lord Norton, responds to this debate, I would be grateful if he—or indeed the Minister—could tell us whether there is any difference between the phrases “royal prerogative” and “personal prerogative”.
While I am on my feet, I join other noble Lords in saying that, when I listened to the noble Lord, Lord Beith, it brought back to me what happened in 1974. However, I do not think that anyone would expect the monarch to refuse a dissolution, although it is inherent in the nature of this Bill that the monarch might take that fatal step.
Lord Mackay of Clashfern (Con)
My Lords, the answer to the question of the noble Lord, Lord Grocott, may be that, if something was clearly in contradiction to the dissolution principles, it would be wrong. The idea must be that the Prime Minister would exercise his power to request within the framework provided by the dissolution principles.
My Lords, I rise to speak only briefly. This short debate shows how, although we have five groups of amendments, they are all quite interdependent: they are all involved with the same issue. The noble Lord, Lord Norton of Louth, has done us a service tonight. He has indicated what the Government say they are trying to achieve: to reset the clock to where we were prior to the Fixed-term Parliaments Act. The reason why we have amendments down tonight is the lack of certainty that the legislation as drafted actually achieves that. I do not think there is any difference across the House about where we are trying to get to; rather, the issue is whether the vehicle being used does what it says on the tin, and that is why I am grateful to the noble Lord.
The reason why I am speaking now is that I may not have to speak on other amendments, because they are very much a part of the same issue. The dissolution principles have been identified several times. There is a later amendment, from the noble Lord, Lord Wallace, on the recommendation of the joint committee that these principles be revised and updated. I am sure that the Minister will respond to that later.
On the Lascelles principles, it is clear there that there are three areas where the sovereign could refuse a request—they would not have to, but they could—if those conditions were met. I suspect, as some noble Lords have said, that there would be a discussion prior to that point before any request was formally made.
I hope the Minister will take on board the comments we have made. I know he said that he does not want to see any amendments to the Bill, but as we have heard today, the amendments noble Lords have put forward seek to achieve what the Minister and the Government want to achieve via the Bill. I am grateful to the noble Lord, Lord Norton, for doing that. What we need is clarity, which is what many of the amendments before us today seek to achieve. Where there is a lack of clarity, they seek to ensure that the Bill does what the Government want it to do. I am sure that we will return to this issue, but I hope the Minister will not rule out accepting this amendment or having a discussion with the noble Lord, Lord Norton, to see if it could help the Government to achieve their objectives.
My Lords, I thank all those who contributed to what has been an important and interesting debate. I am grateful to my noble friend Lord Norton of Louth for bringing it forward, and I also welcomed the opportunity to talk to him about it. What I am going to say on the record is, I hope, a response to that discussion and to matters raised in this debate. I was struck by the fact that the noble Lord, Lord Beith, in an elegant and thoughtful contribution, envisaged circumstances where the reserve power could apply. The noble Lord, Lord Grocott, said that it was inconceivable. The reality is, as we will discuss later, that the Government’s belief, and the traditional practice, is that the reserve power has an important constitutional role.
The noble Lord, Lord Grocott, had a little go at another Second Reading speech at the start. I agree, of course, with what he said and with what my noble friend Lord Lexden said. I also agree with what the noble Baroness, Lady Smith, said last time around. It is absolutely true that the 2011 Act was, in her words, clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. I freely acknowledge the wisdom and accuracy of those words.
There is general support for the Bill, and I welcome that. I cannot encourage the noble Baroness opposite to think that all the amendments are clarifying. I think some of the discussions we have had would involve driving a coach and horses through the Government’s intentions on the Bill, as I hope to persuade the House later.
Turning to the amendment of my noble friend Lord Norton, I repeat that I am grateful to him for tabling it. Clause 2 was carefully drafted to put beyond doubt that the prerogative powers relating to the dissolution and calling of Parliament will be revived. As my noble friend Lord Norton outlined, these are prerogative powers that are personal or reserve prerogative powers, meaning that they belong to the person of the sovereign, acting in the sovereign’s individual capacity. The noble Lord has also sought to place on record and beyond doubt that the dissolution prerogative power is not exercised on the advice of the Prime Minister but is instead a request made to the sovereign. I can assure him that that is the Government’s position.
My Lords, I am extremely grateful to everyone who has spoken. It has given rise to a very valuable debate with some very helpful interventions. I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.
Today, however, is the occasion for that debate about the prerogative being revived. I accept that the Bill achieves what it is designed to do: to provide that the prerogative comes back and to put it beyond doubt because of that academic debate about whether it could or could not. This establishes that it does. That has to be our starting point because, as the noble Baroness, Lady Smith, said, it is designed to restore the status quo ante. Therefore, the purpose of my amendment is to achieve clarity of that purpose and that it is a personal prerogative, the distinction I drew —in response to the noble Viscount, Lord Stansgate—in opening. It is one of only three prerogative powers that the monarch does not exercise on advice.
I deliberately quoted the report of the Joint Committee, which the noble Lord, Lord Beith, referred to, in relation to the point that the noble Lord, Lord Grocott, raised: the practice is that the monarch has acceded to requests for Dissolution. I was also trying to touch on the fact that No. 10 has contacted the palace in advance to make sure that it will be granted. I always think that is a useful deterrent; it makes the Prime Minister think about it. There is now the convention that Ministers do not act in a way that would embarrass the Crown, so there is some restraint there. There is a useful purpose in its existing in the same way that, formally, the monarch does not appoint the Prime Minister. That, again, is one of the powers not exercised on advice. There are certain elements there that remind Ministers that there is a higher authority to which they are responsible. There is a purpose in it and a useful role, but that is a wider debate. My starting point is that the purpose of the Bill is to restore the status quo ante and my amendment is focused on that. It is working within the purpose of the Bill and what it is designed to achieve.
2: Clause 2, page 1, line 9, at end insert “subject to subsection (1A).
(1A) The Prime Minister may not request Her Majesty to exercise Her prerogative to dissolve Parliament if Parliament has been prorogued, unless Parliament is first recalled and the House of Commons agrees that the Prime Minister should request Her Majesty to exercise Her prerogative to dissolve Parliament.”
My Lords, quite a lot of what we will discuss this evening is how far we need to put into statute the sort of things the noble Lord, Lord Norton of Louth, has been thinking about, or whether a revised version of the Cabinet Manual would be sufficient to set out the conventions agreed by the parties. We will come back to that later.
Looking through the 2004 report of the Commons Public Administration and Constitutional Affairs Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, I note that there was a memorandum from the Treasury Solicitor’s Department on the royal prerogative, which listed as one of the prerogatives
“the summoning, prorogation and dissolution of Parliament”
as a single interconnected power.
The Government have said that Prorogation is outside the scope of the Bill and is an entirely separate car. The reasons, going back to why in 2010-11 Prorogation was taken out, seem relatively clear. The Lords Constitution Committee then said that
“the risk of abuse of the power of prorogation is very small”.
The Government said in the debates on the Bill that
“The conventions of this House are sufficiently strong”—[Official Report, Commons, 18/1/11; col. 768.]
to make inclusion of the power of Prorogation on a statutory footing unwise and unnecessary. Opinions would now differ. As the noble Lord, Lord Lexden, pointed out, no Prime Minister has asked improperly for a Dissolution, but the question of whether a Prime Minister has asked improperly for a Prorogation is very much open.
The noble Lord, Lord True, and other Ministers have enjoyed referring to our tried and tested constitutional system. If one looks back at arguments over Prorogation, there were riots throughout the country in 1820 against Prorogation. In 1831, when the Lords were about to debate whether there should be a Motion to prevent Prorogation, William IV jumped into a rather inferior carriage and came down personally to prorogue Parliament. In 1854, an MP proposed an address to the Queen against Prorogation, which Lord Aberdeen as Prime Minister made a matter of confidence in order to prevent. “Tried and tested” is, perhaps, a little strong.
The Joint Committee says at paragraph 14 that there has been
“a clear direction of travel to bring prerogative powers under greater democratic control, usually through greater Parliamentary scrutiny or approval, or by giving statutory force to rules that previously relied on prerogative powers, executive discretion and constitutional conventions.”
The Faulks administrative law review makes much the same point. Conventions are based on trust and executive restraint. Where trust is weakened, statutory authority has to replace convention. I therefore move my amendment, which links Prorogation to Dissolution, because that is part of making sure that we share an understanding of some of these basic constitutional principles.
Lord Judge (CB)
My Lords, the amendment in my name and those of the noble Baroness, Lady Smith of Basildon, and the noble Lords, Lord Newby and Lord Lansley, is about the constitutional location of power today and for the next 80 to 100 years. It is not about where, historically speaking, power in Parliament used to rest. It is about now, at the beginning of this century, after at least half a century in which the powers of the Prime Minister have been accreting at an alarming and chilling rate. I will not go through the endless efforts I have made to draw your Lordships’ attention to that fact, but it is a fact.
I was not able to speak at Second Reading but the issue of troublesome prerogative powers relating to Dissolution and Prorogation formed the basis of my contribution to the debate on the Queen’s Speech. I know that I am not taking the Minister by surprise because he and I have had many rather interesting discussions about the constitutional issues. It is important that I add this too: when I made that speech, the present Prime Minister was riding high in the polls. This is nothing to do with the fact that he has troubles abounding at the moment—Prime Ministers always run into trouble at some time. It is not about the present Prime Minister; it is about the person, whoever that might be, who holds this office not being given further power, as the Bill proposes.
We should not have a fixed-term Parliament. We all agree on that. There should be a maximum period. Five years is what is proposed and it makes perfect sense. What did not make sense last time was the proposal that a two-thirds majority was needed in the Commons for that term to come to an end. It did not make sense because of something that should have been absolutely obvious to everybody. I am sorry to say that to those who advocate for it. Just about every important piece of legislation enacted in Parliament has required a bare majority. Nobody set about trying to have two-thirds majorities; a bare majority would do. The Great Reform Act had a majority of two. The Habeas Corpus Act, where all our freedoms were determined, passed because the noble Lord acting as a Teller for one side counted a big fat Peer as 10 and so it was carried. That is what our liberties have turned on. My point is that a two-thirds majority is an aberration.
The question is: how do we replace the legislation? We have had the beginning of a fascinating discussion: do the current proposals revive the prerogative power? Fun—the noble Lord, Lord Norton, can get his students to write endless essays, all getting Firsts if they agree with him, on this subject. But this is the point: whatever the theory might be, the reality is that the power of Dissolution will now be based on statute—this statute, which might be changed. Prerogative power does not get elevated out of thin air; it is founded on the statute.
My Lords, I listened carefully to the noble Lord, Lord True, and he is right that this is an important Bill. I very much welcome the repeal of the Fixed-term Parliaments Act—I was never a fan and I am pleased to see it go.
I hesitate to disagree on any occasion with the noble and learned Lord, Lord Judge, but I am not sure that I follow his logic entirely. Maybe that is because of the political experience that some of us have seen and felt when Prime Ministers have not always got these things right and have not always chosen the right minute to have an election. My noble friends Lord Grocott and Lord Rooker will well remember 1978 when Jim Callaghan did not have an election at a time when people thought it might be advantageous and subsequently lost a few months later. Gordon Brown did not have an election in 2009 and subsequently lost a year later.
The noble and learned Lord, Lord Judge, is right that this is about the constitutional location of power, but it is also about the role of the Executive and the legislature. Yes, the legislature is there to hold the Government to account—a very important function. If I was in the House of Commons at the moment, having been given a vote by the Fixed-term Parliaments Act I think I would have wanted to hold on to that vote to say whether an election should take place. I thought that that might have been one of the compromises that was reached during the consideration of this Bill by the Government and when the Joint Committee looked at it. I am surprised that the Commons gave up so easily the power to have a say and to sanction the calling of a general election.
It would not necessarily have been a simple thing to do. The noble and learned Lord, Lord Judge, mentioned the two-thirds majority that was clearly just part of the political fix of the original deal between the Conservatives and the Liberals after the 2010 election, and that is a non-starter. However, I wonder whether he would say that the majority had to be 50% plus one of those voting on the issue or 50% of the whole House plus one. What would the Motion be and what would the role of the Speaker be in terms of a tied vote? We have to consider all those arrangements. I do not think it is a simple issue although, had I been in the Commons when this Bill was going through, I would have been very reluctant to give any say whatever in terms of when an election should take place.
I support the approach from the noble Lord, Lord True, that the main objective should be making this Bill as clear and watertight as possible. That is one of the principles that should underpin all the considerations we have about amendments. The Constitution Committee, which I chaired until very recently, said that constitutional legislation should be able to pass the test of time. Clearly, the Fixed-term Parliaments Act was never going to do that, and I think many of us saw that from the outset. Certainly, when we are looking at this legislation, be it on certain other clauses—Clause 3, for example—or indeed the points that have already been made by the noble Lord, Lord Norton, I think that the purpose of our deliberations from now on should be to make sure that there are no loopholes whatever in this legislation so that it can pass the test of time.
My Lords, I am very pleased to contribute to this debate. I signed Amendment 3 together with the noble and learned Lord, Lord Judge, and other noble Lords.
I do not come to this as a constitutional expert—far from it—but I think I bring to it two objectives. One is to think about it from the practical, political point of view. In this House we have encountered, and will continue to encounter, the prerogative power being increasingly clarified by statute. I start with that point, which I think the noble and learned Lord, Lord Judge, referred to. When we see the prerogative being clarified by statute, my view is that we should try to make it a watertight statute. We should try to make it absolutely clear. In this particular respect, we are looking at something that is clear only in so far as it reasserts that there is the status quo ante. However, the status quo ante itself is not necessarily clear. We have a set of principles which—as we have discovered, and I have discovered, by listening to the debates and reading them in the other place—are themselves debatable about how they would be applied and in what circumstances they would be applied. Even in the first debate this afternoon, we heard the assertion that it would be inconceivable for the monarch to refuse a request for a Dissolution but equally, there may be circumstances in which such a request may be refused, otherwise what is the point of calling it a request?
It is not certain. My view is that when we encounter prerogative whether we were debating the Trade Bill and looking at the prerogative to make treaties—I have a Private Member’s Bill which would clarify in statute the circumstances in which the Government could enter into a prolonged and substantial armed conflict or declare war—or here, I think we should be prepared to be more specific about the circumstances in which this prerogative is to be used.
I come back to the practical and political. First, there is a manifesto commitment. The Conservative manifesto said:
“We will get rid of the Fixed Term Parliaments Act”.
Perhaps I may ask my noble friend about a situation where there was a hung Parliament, where the Prime Minister had no majority—we have had that experience very recently—where a pandemic was taking place and where the Opposition did not co-operate in passing laws. Surely then it would be right for the Prime Minister to seek the consent of the country.
There are many circumstances in which crises can emerge. There are arguments that cut both ways. In the midst of a pandemic, does one want an election? In the midst of a war, does one want an election? We could go back to 1940 and say, “Surely, if the Prime Minister then, Neville Chamberlain, had sought a Dissolution, why would he not have been granted it? Would it have not been right for the electorate to say what the outcome should be?” My response to my noble friend would be to ask whether in those circumstances it would not be the responsibility of the House of Commons, and whether it did not have the authority to resolve that crisis. If the answer we come to is, “Oh, but, but, but…”, there are all sorts of circumstances and hypothetical scenarios that we can conjure up which would lead us to the assumption that the Prime Minister can go to Her Majesty or the monarch and request a Dissolution, but the House of Commons would not support it. I come back to the same question: by what authority does the Prime Minister make such a request? I support the amendment and have put my name to it because it brings us back, time and again, to precisely that point.
Professor Robert Hazell put it more elegantly when he gave evidence to the Joint Committee:
“The best way of protecting the monarchy is not to revive the prerogative power but to leave decisions about Dissolution where they belong—in Parliament, in the House of Commons.”
This amendment does that in the simplest and most effective way possible by making it certain that if a Prime Minister requested a Dissolution in future, he or she did so on the basis that a majority of the House of Commons had agreed. If not, by what authority would he or she do it?
This is an issue which divided the Joint Committee. The view expressed by the noble and learned Lord, Lord Judge, was the view of a minority of the committee of which I was a member, whereas the majority did not want to go into this territory. We had a great deal of discussion about it, but the report records, unusually, that there was a clear difference of view.
I support the idea that there should be a House of Commons vote. Even though I previously supported ensuring that the prerogative power remained a personal prerogative, partly in case this amendment was not carried but also because the two are not inconsistent with each other, it would be even more inconceivable that the monarch should refuse a Dissolution if it had the clear authority of the House of Commons behind it.
A further benefit of having a House of Commons vote on Dissolution is that it makes it quite clear the ouster clause that we will debate later would be unnecessary. The courts would not interfere with a decision taken by Parliament. We can return to that topic later, but we might as well put it on the table now, because it is a powerful argument for having a House of Commons vote. I therefore support what has been said by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley.
There are circumstances in which a Prime Minister might be told that it would be embarrassing for the monarch to have to be asked because a Dissolution might be refused. That would include a re-run of an election that had just taken place. Let us imagine a situation where one party is known to have substantial resources and seeks a re-run of the election, because it is just about the largest party but does not have a majority. There are a variety of such circumstances. In their response to the committee, the Government quite sensibly said that it was impossible to speculate—I am not quoting exactly—about the many different possible situations that could arise, and it is not very fruitful to do so. We merely recognise that there are possibilities.
While so much is said about the failings of the Fixed-term Parliaments Act—I know that it has faults, but the two-thirds majority issue was probably the only significant fault in the legislation—we have to recognise that most democracies in any way comparable to ours have a fixed term for Parliament and that the Joint Committee said:
My Lords, I had added my name to Amendment 2 in the name of noble Lord, Lord Wallace of Saltaire, but unfortunately it has not made it on to the Marshalled List that I have. I hope that is not an expression of editorial disapproval.
I congratulate the noble Lord on his ingenuity in bringing Prorogation within the scope of our discussions. As the Minister will know, I was a little sceptical about the view that Prorogation was outside the scope or relevance of the Bill. That was on two grounds. First, it was said that Section 6 of the 2011 Act excluded Prorogation. Of course, it may have excluded it, but what is excluded can be added by amendment.
The second ground of my scepticism was the intimate relationship between Dissolution and Prorogation. It is by no means unknown for Parliament to be dissolved while prorogued; I have not looked at the figures, but this may be the majority of cases in recent decades. Even if we go back to the relatively short period—the business period, as it were—of Prorogation after wash-up, there will be a period of time when the House of Commons cannot take a decision of the sort envisaged by my noble and learned friend in his Amendment 3. So I suggest that, although this may not be crucial, it is probably a useful procedural mechanism or precaution.
I raise the next point with considerable diffidence because it relates to the drafting of Amendment 3. I see that, in proposed new subsection (1B), Parliament “will” be dissolved—not “shall”. I was going to apologise for my pedantry, but I never have before, so I do not think I am going to start this evening. “Will” is an expression of will but, of course, once the House of Commons has enshrined that in a resolution, it takes on an executive character, so “shall” is probably more appropriate.
It is essential that, if we go down this road, there is a form of words in the statute, if that is the eventual view of Parliament. Whether a particular Motion falls within the statutory requirements cannot be left to the interpretation of the chair. It seems to me that that would put an unbearable strain on Article 9 and would lead us all down a path that we would not wish to traverse.
The noble Baroness, Lady Taylor of Bolton, asked what would happen if there were a tied vote. I immediately agree that conventions and precedents are not as tight a constraint as statutory provision, but I am in no doubt that, if there were a tied vote, the Speaker of the day’s attention would be brought to the decision of Speaker Denison in 1867, when he said that major matters of public policy should be decided by a majority of the House, not “merely”—he used that word—on the casting vote of its presiding officer.
My Lords, I do not often agree with the noble Lord, Lord Wallace of Saltaire, as he knows, but I did agree with his closing remarks on Second Reading:
“We should never take democracy for granted: it needs to be defended.”—[Official Report, 30/11/21; col. 1332.]
I absolutely agree, which is why it is important that the amendments in this group are not passed.
Sometimes, when people talk about democracy, they talk in terms of the role of Parliament or the separation of powers. But we must always remember that democracy is about the people—demos—who have power at the apex of our constitution and whom we have to defend. The most important players in our democracy are not Members of Parliament at Westminster but the voters up and down the land. The possibility of Parliament standing in the way of asking the people for their views on the way forward is fundamentally undemocratic, in my view.
These amendments are capable of depriving the people of their say in the future of the country. Furthermore, they could do harm at the very time that the views of the people, as expressed at the ballot box, are most needed and could have the greatest impact. Of course, if the Government of the day have a whopping majority, whether or not they have to pass a resolution in the other place will make very little difference to the outcome. It might perhaps add a few days of delay to the timing of a general election, but it would otherwise simply be a tiresome detail. But the amendment will make life difficult for minority Governments or Governments with small majorities, if they feel that they need to call an election.
At Second Reading, I spoke about the events of 2019 being one of my key reasons for supporting the Bill. It was plain that Parliament was dysfunctional. The Government could not get their chosen policies through the House due to a combination of the actions of the opposition parties and of some of our own Back-Benchers. A majority in the other place and indeed in your Lordships’ House—although that is not relevant to this amendment—was set upon frustrating the Government’s Brexit policies, but the Government could not call an election to settle that issue because they could not meet the two-thirds threshold of the Fixed-term Parliaments Act.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I feel part of an endangered species: a Cross-Bencher who fully supports this government Bill. I would also like to go back to where we were before the ill-starred and ill-judged Fixed-term Parliaments Act.
I am against giving the Commons a veto, as proposed in Amendment 3 by my noble and learned friend Lord Judge, who is normally so sagacious but who is wrong on this occasion. This could lead to the same chaos, stasis and problem of September 2019, which the noble Baroness, Lady Noakes, has just outlined, when we subjected our Prime Minister—whatever you thought of him then or think of him now—to the humiliation of having to go cap in hand to Brussels to plead for an extension of time to achieve a policy flatly contrary to the one that he wished to put to the country. He could not get a two-thirds majority, and one seriously doubts whether he would have got a simple majority.
The Joint Committee that examined this legislation and reported in March 2021 made plain that, although a minority supported the view outlined by my noble and learned friend Lord Judge and the noble Lords, Lord Lansley and Lord Beith, the majority recognised the danger, which we should avoid at all costs, I respectfully contend.
As to the prerogative power, one can hardly overstress the difference between Prorogation and Dissolution. Prorogation—let one remind oneself—affects the cessation of Parliament and is anti-democratic in the sense that it thwarts the power of Parliament. Our governing, imperative, fundamental constitutional principle is the sovereignty of Parliament; Prorogation thwarts it and leaves the Executive for the duration in uncontrolled power. Dissolution—at the opposite end of the spectrum—is explicitly designed to give the electorate the opportunity to decide who should control our Executive. My noble and learned friend Lord Judge speaks of Dissolution eradicating the decision of the electorate last time around, ditching the democratic vote. Well, of course, in one sense you are getting rid of an existing Parliament, but you are inviting more up-to-date views on what the public—who, as the noble Baroness, Lady Noakes, said, really should be controlling all our processes—want and whether they approve the particular policies in the particular circumstances in which Dissolution is sought.
Of course, if you put the Commons in control, although you run into the sort of difficulties that the noble Baroness, Lady Noakes, rightly identified, you get rid of the problems that others seem to suggest arise under Clause 3 here. There is no question then, obviously, of the courts’ supervisory jurisdiction. But—and we will come to this point of debate later—I suggest you really do not need to introduce the chaos of a Commons vote in support of Dissolution in order to avoid the risk of introducing the courts into the whole business.
My Lords, before I comment specifically on the amendment in the name of the noble and learned Lord, Lord Judge, I think that both the noble Baroness, Lady Noakes, and the noble and learned Lord, Lord Brown, have misread what happened in 2019. What happened then would have happened had this amendment been passed, which was that a clear majority in Parliament voted for a general election—fact. On three occasions, they voted for a general election. A general election would have occurred under the terms of this amendment.
If I may say so, the politics of it are fairly obvious. If a Motion comes from a Prime Minister that there should be a general election, which is what this amendment suggests, the Government may not even have a majority, as the noble Baroness, Lady Noakes, suggested; there may be people opposed to the Government’s policies generally on their own Benches, and they may not get a majority of their own people, necessarily. But it is almost impossible for an Opposition to vote against a general election. It kills the whole point of being an Opposition. What is an Opposition for if not for saying, “We’ve got a rotten Government, and it is time the people turned them out”? The Labour Opposition at that time sat on its hands, but politically, though I cannot go into all the legal ramifications, it is impossible to imagine a Prime Minister with a majority in Parliament—and he or she would not be the Prime Minister if that were not the case—calling for a simple parliamentary majority, which is all that is required, in order to hold a general election and Parliament throwing it out. That is for the birds; it really is. It would be politics turned upside down.
I think the amendment from the noble and learned Lord, Lord Judge, just nails it. I agree with it absolutely, partly because, when in doubt, you should opt for the simple solution, and there is nothing simpler than a simple majority. We get into all sorts of trouble, as other Members have said, when we require a two-thirds majority or an artificial majority. The public know what a majority is and, let us face it, the real fact of life is that a majority in Parliament—this is as close to Dicey as anyone could be—is power in the land, apart from on the day the general election is held. If Parliament tries to do things that do not have majority support, the majority has all sorts of ways of asserting its support.
A Prime Minister who decided that he or she wanted a general election would be able to get one via this mechanism. This is why I am stunned, frankly, that the Government do not accept it. It meets what the Government want to do, as far as I can see. It restores a situation in which a Prime Minister can get a general election. I am in favour of that; I have said that repeatedly. I support the Government’s objective to enable that to happen so that you do not have the chaos that occurred at the end of the 2017-19 Parliament.
Of course, a simple majority in the Commons has huge additional advantages as well, one of which I have already referred to: it completely removes the monarch from having to make political decisions, or the most significant political decision anyone could make, which is whether to consult the people. I cannot see how there is any way that a monarch would say to a Prime Minister armed with a majority in Parliament and requesting a general election, “No, you may want one, but you can’t have it. Up theirs to the majority in Parliament.” No monarch is going to say that. It is obvious.
As far as I am concerned, though I do not whether I would carry all the lawyers in the House with me, it has the added advantage of keeping the lawyers out of politics as well, which has been a cause of some concern and been rather problematic on a number of occasions that I could refer to, although that would be out of order. We would not need the dreaded ouster clause we are going to talk about shortly. A majority in Parliament is the jewel in the crown: it can do what it wants, mercifully, in our constitution, and more often than not it is far and away the best way of making decisions.
I recognise what an odd situation we are in and what an odd situation this amendment is proposing: we, the unelected House of Lords, are suggesting to the recently elected House of Commons that they should have this power and not give it away for the monarch to decide. I am in favour of simple arguments and simple solutions. A simple argument is that the history of the British constitution is the slow attrition of power by Parliament—or, more specifically, by the House of Commons—away from the monarch. And this House of Commons, which I respect as I do all elected bodies, has decided to reverse this process: “We think this is too big a decision for us to make, and we need to hand it back to Her Majesty so that she can decide when it is convenient for the British public to exercise their democratic right to vote.”
I find it difficult to find a credible argument against the proposition in this amendment. It keeps the monarch out of trouble; it keeps the judiciary out of trouble; it gives the Prime Minister what the Prime Minister wants and is entitled to have with his or her majority in Parliament; and the Government get what they want. What is not to like about it?
My Lords, like everybody else who has spoken in the Committee so far today, I share the objective of returning to the status quo ante and repealing the Fixed-term Parliaments Act. But as some noble Lords who heard me speak on Second Reading may know, I do so for different reasons from that which the noble Lord, Lord Grocott, and most others have set out today. I supported the original legislation, and the reason why I think that it should be repealed is because something that I believed was a relinquishing of power to the electorate turned into a weapon that got used against the electorate, as my noble friend Lady Noakes has described.
That is why I think it is important that we go back to how we were before, rather than, at this point, seek to introduce something that would maintain a power that the House of Commons did not have before. I thought what the noble and learned Lord, Lord Judge, said when he introduced his amendment was interesting as he said this about where power lies. He carefully made the point that this was not about the current Prime Minister, this was about where power rests in this situation. Should it be with the Executive? Should it be with Parliament? I know that over the last few years the noble and learned Lord has raised many different examples of where there is an imbalance of power between the Executive and Parliament, and that there are some ways in which that needs to be looked at and that imbalance addressed.
I do not think we would be wise to try to introduce a power because of what happened a couple of years ago. The battle for power at that point, in 2019, between the Executive and Parliament was observed, in my view, by people outside Parliament as a battle that should not have taken place. It was power that should not rest in the hands of Parliament. Indeed, it should not rest, in a direct way if you like, in the hands of the Prime Minister. This was about a democratic mandate that was in need of being implemented. I think, for everybody’s interests, trying to introduce the amendment that has been proposed here would be unwise, and the best course of action would be to return to exactly what we had before.
My Lords, I put my name to this amendment for the reasons given by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley. Like the noble Lord, Lord Grocott, I have been searching for credible arguments against it. I was therefore very grateful that the Minister circulated a letter, setting out the Government’s stance, in which I hoped I might find some credible arguments against it, even if I did not agree with them, but this is what the letter said. It said that it
“will not necessarily achieve the desired outcome”
and:
“Its long-term consequences … are untested.”
I may have got the logic wrong, but until something is implemented how can we know what its long-term consequences are? So I was not too troubled in my belief by that.
Then I read that it was a “novel element”. Anything that is change, by definition, has a degree of novelty to it, so that did not get us very far. It was then said that there could be “(unintended) consequences” without any suggestion of what they might be, so that did not get us much further. It then said it was a “constitutional innovation”. Well, yes—so? That did not get us any further. The letter then said that it had not been “fully considered” and constitutional change needed to be fully considered. Perhaps it had not been, but it has now, so that is not a credible argument. Finally, we had a typically empty threat from the noble Lord, Lord True:
“We are not doing a service to the elected chamber if we ask them to reconsider a question which they have squarely confronted and which they have decisively decided against.”
We might as well go home if we adopted that policy. We certainly would not have been voting against the police Bill at all if we accepted that. That is the sum total of the Government’s response on why we should oppose this amendment.
The further argument—which the Government did not use, incidentally—that I thought had some substance was advanced by the noble Baroness, Lady Noakes. These are my words, not hers: MPs might refuse a Prime Minister an election because they feared for their own seats and so would act out of personal interest rather than the national interest. Against that theoretical possibility, surely there is the more likely possibility of a Prime Minister calling a premature election primarily to save his or her skin, rather than because they have considerations of the national interest uppermost in their mind.
My Lords, I am very puzzled by this debate. There have been words used such as “inappropriate”, “exceptional” and “misuse of power” to suggest that the Prime Minister of the day, when he or she asks the electorate to choose the Government, and where he puts his or her own tenure in No. 10 at risk, is somehow abusing his or her position. I do not understand what those likely positions might be where the Prime Minister of the day can be accused of abusing his or her power to go to the electorate. Nobody has yet produced an example of that. We know when the Prime Minister might want to do that—because they have no majority and want a majority, because they have a very small majority or because they want a mandate for a new policy, possibly—but none of those is an abuse of their power.
If I had read the speech of the noble and learned Lord, Lord Judge, and instead of reading “election” and “Dissolution” had read “Prorogation”, I would completely understand. Of course, it would be an abuse of power to give the Prime Minister of the day the power to extend the life of Parliament, but I do not understand in what situation a Prime Minister can be accused, in these words, of inappropriate or exceptional misuse, by asking the electorate to choose the Government they want, and to put his or her own tenure at No. 10 at risk. I would be grateful if somebody could provide me with some examples.
I am glad to assist, but I would like to ask the noble Lord a question. I have already explained how a Prime Minister who wanted an election could get one, so the power remains with the Prime Minister.
I am sorry. God, I will be glad when we get rid of those for good.
The noble Lord, Lord Sherbourne, said that, somehow or other, there is a suggestion that the argument on this side or around the House is that a Prime Minister calling for a general election is bad, undemocratic or inappropriate. We are not saying that at all. We are saying that a Prime Minister would not be a Prime Minister unless he had a majority in the House of Commons, and the Prime Minister would get what he wanted. I apologise for the length of the intervention, but the question I want to ask the noble Lord is: if he feels this passionately about, as I understood it, the Prime Minister alone being able to make that decision, how could it possibly be the case, in his argument, that a monarch—unelected—could say no to the Prime Minister making a request of that sort?
I am very pleased that the noble Lord asked that question, because the debates this evening have said that we do not think the monarch could conceivably refuse a request for a Dissolution, as the noble Lord has already said. Other speakers have said that the House of Commons would never refuse a Dissolution; that was the thrust of the noble Lord’s speech and the speeches of other noble Lords. We are being asked to put in a brake on the power of the Prime Minister, but we are told that the brake will never be exercised. What is the point of that? I come back to my question: what are the most inappropriate examples of a Prime Minister abusing their power by calling an election? I can think of only two. First, they might, for party-political reasons, seek the advantage of going early because they think they can get a bigger majority. We know that the electorate are not stupid. There are, throughout the whole country, Brendas from Bristol who will react to that—we found this in February 1974 and in 2017.
The other reason which I thought might be in the minds of noble Lords is if the Prime Minister of the day wanted to go to the country with what they thought would be a sole populist or undemocratic programme, and they were worried that the electorate might vote for it. That poses two problems. First, it is denying the public the right to choose the Government and policy they want. If you really want to exercise an effective brake for that sort of reason, you need a different Bill, because this Bill is designed to end the Fixed-term Parliaments Act and go back to the status quo ante. I believe, as my noble friend the Minister said, that this clause to give the House of Commons a veto—otherwise there is no point in giving the provision to it—drives a coach and horses through this Bill.
I shall seek to answer the noble Lord’s question. I go back to February 1974. Imagine that Harold Wilson had said, “I’ve become the Prime Minister. I don’t have a majority. Mine is the largest party. I want to rerun the election straightaway.” Add into that mix—which was not the case at the time—that he is the leader of the party that has the most substantial resources and has been the least damaged financially by the conduct of the election. But that is not what happened. Maybe Harold Wilson was advised that he should not do that, but that is the sort of circumstance that might be thought inappropriate.
I just think that if you gave the House of Commons the opportunity to veto it, and the Government of the day simply could not get on with their business, which is what would probably happen, then we would have a problem. I come back to the point I made with my noble friend Lord Lansley: if you have a Government with a minority, or without a working majority, that Prime Minister may not be able to get the support of Parliament; but he or she needs it to be able to have an effective working Government.
My Lords, the noble Lord asked for an example of where a Prime Minister might illegitimately ask for a general election. I will give an example not a million miles away from our present circumstances. Let us suppose that 54 Conservative Members of Parliament expressed no confidence in the present Prime Minister, and there was then an election in the Conservative Party for an alternative leader, and that leader emerged. At that moment, the present Prime Minister decided that, rather than give up power, he would ask the Queen to dissolve Parliament so that there could be a general election. I put it to the noble Lord, Lord Sherbourne, that, in those circumstances, a majority in Parliament, which the Conservatives would have, would reject the proposal for a general election. That might be an imaginable circumstance. I am not in favour of this amendment—I would rather not have it at all—but that is a situation where I would rather that the majority in Parliament rejected the idea of an election than the Queen having to do it.
Lord Mackay of Clashfern (Con)
My Lords, I have a very vivid recollection of Harold Wilson’s problem when he was elected with less than a parliamentary majority. As noble Lords will know, he had a second election in that year. At that time, I was the Sheriff Principal of Renfrew and Argyll, and therefore I was a returning officer for the constituencies in Renfrew and in Argyll, so I was rather familiar with what was going on.
Harold Wilson, when he was elected first, had not got a majority. The opinion polls were not quite so prominent in those days as they are now, but there was quite a lot of speculation as to whether, if he took a second election, he would be better off or worse off. That was a decision that he had to make which would not necessarily have been the same as the balance of people in Parliament, because, if the theory of the noble Lord, Lord Grocott, were right, they would be anxious to be the Government. But I fear that they had the rather suspicious feeling that they might not be the Government, and that in fact what might happen would be that Mr Wilson would get a better majority than he had up to that point. As the Committee knows, it was not quite like that either. To forecast what the vote in Parliament will be in the event of a Prime Minister wanting to call an election is by no means easy. It was very difficult in 1974, and I have no doubt that that sort of circumstance might occur again.
I have tried to look at this from the point of view of the construction of our constitution. We have three parts of the constitution: the Executive, the judiciary and the legislature. The business of the House of Commons—and this House, for that matter—is to legislate primarily and to hold the Government to account. The executive power is not in the House of Commons or in this House, and it should not be; something has gone wrong when that happens. The executive power is in the Executive.
The noble Lord, Lord Newby, asked what the authority of the Prime Minister is if he or she has changed since the Parliament was elected. The authority is that he or she is the Prime Minister, and the Prime Minister’s responsibility, subject to Her Majesty, is to be the head of the Executive. Therefore, the responsibility for taking executive decisions is, and should be, with the Prime Minister.
As I said, the idea that you can forecast the result of a vote in Parliament on this subject is extremely difficult if you take account of all the possible circumstances. I know that if you have an Opposition doing very well and the Government are looking a bit shaky, they will both want the same thing—but there are many other circumstances in which they will not want that.
My Lords, this has been a long and really interesting discussion, and it sums up the very reason for this amendment. When I spoke on the amendment from the noble Lord, Lord Norton, at the beginning, I said that one of the reasons I thought he had brought his amendment forward was to bring some clarity, and it is the same with this amendment in so many ways.
When I looked through the Hansard for the other place, one of the things that struck me—I mentioned this at Second Reading—was how often Ministers asserted as fact something that was really a ministerial opinion or judgment, and not actually a fact. The most crucial one was that the Bill will
“reset the clock back to the pre-2011 position with as much clarity as possible.”—[Official Report, Commons, 13/9/21; col. 721.]
If it was that clear, we would not have the amendments before us tonight. It is not clear, and that lack of clarity has caused concern.
The comments made by the noble Lord, Lord Lansley, about having a practical view of how this works in practice were really important. As the noble Baroness, Lady Taylor, said, one of the problems of the Fixed-term Parliaments Act is that it did not stand the test of time. It was probably flawed at the beginning, and the Minister was kind enough to quote me at the very beginning when I said that the legislation was brought in for a specific purpose, which was to protect the coalition. It outlived its usefulness pretty quickly.
On all this, I start from the basis that a Government must have and retain the confidence of the House of Commons. A Government derive their authority from those elected to the House of Commons. Without that authority, a Prime Minister is unable to govern, unless they can command the support of the House of Commons. In some ways, the 2017 to 2019 Parliament is not a good starting point from which to look at how Parliament operates. We had the Long Parliament and the Rump Parliament; that was the dysfunctional Parliament in so many ways. We need to accept that.
The honourable Lady in the House of Commons kept saying we would “reset” this back to pre-2011. The noble Lord, Lord Lansley, made the point that that is not clear at all. Can you reinstate a royal prerogative by statute? Does the royal prerogative—a point made by the noble and learned Lord, Lord Judge— really work in practice today? It seems there are two options. Either we remove the ouster clause, which would allow the courts to intervene to say whether they think a general election being called by a Prime Minister is appropriate, or we have a separate mechanism of the House of Commons and Members of Parliament voting.
I understand the comments made by the noble Baroness and others that MPs would have a vested interest in whether there is an election. That is 650 vested interests, but a Prime Minister has one vested interest in whether to have an election. I struggle to understand why it can be acceptable for the Prime Minister just to call an election on their judgment, as in the Bill—it is moot whether it restores the position back to pre-2011—but not for Parliament to vote on it. MPs have a vested interest in every single piece of legislation passed and in governing the country. That is what we expect them to do in the interests of their constituents and the nation, so to deny them a vote on the one thing that allows the public to have a vote is difficult.
The noble Baroness, Lady Noakes, said MPs would be denying the people a say in a general election. That is not the case, because there will be a general election within five years. Only if a Prime Minister wishes to have an early election would there have to be endorsement by those elected to Parliament. In this system we do not elect a Government. We elect individual Members of Parliament, who then choose a Prime Minister and the Prime Minister chooses the Government.
I have some sympathy with the comments made by the noble Lord about what would be an inappropriate decision by a Prime Minister to call an election. When a Prime Minister calls an election, it may be to increase their majority. That seems to me a perfectly legitimate reason for a Prime Minister to call an election. Because they are worried the other side might win is also a reason not to call a general election, but at the end of the day that is why we have term limits. No Prime Minister can put off an election for ever, because there is a term of office within which they have to call a general election. We all know that when you do not have fixed terms, Prime Ministers and Parliament will choose an election date to the benefit of their party, and I do not think that an illegitimate way to proceed.
The noble Lord, Lord Beith, in some ways trespassed on the next amendment as well, which I understand because the two go hand in hand, and it is far preferable to have Parliament making the decision than to remove Clause 3 from the Bill.
I would not dare to suggest that the noble Lord, Lord Lisvane, has his “shalls” or “wills” wrong on this, but it highlights a point—the same one made by the noble Lord, Lord Norton. The noble Lord, Lord True, said at the very beginning of our discussions on the Bill that because the House of Commons did not make any amendments your Lordships’ House should not make any amendments. That is not a good justification for not doing so. I read the debates and looked at the discussions they had on whether the House of Commons should have a final say on whether there should be a general election. It did not seem that there was much detailed debate on that, and I wonder whether those Members of the House of Commons who debated this really understood the power they were giving away or what they were giving away. Our democracy works on a system of checks and balances, and I am far more comfortable with those checks and balances being held by elected Members of the House of Commons than by the courts, or by dragging Her Majesty into political discussions. The Lascelles principles are clearly outlined on paper, but I am not sure they have stood the test of time.
I do not think it is possible just to reset the clock by passing the Bill as it is. We have a duty to ask the House of Commons to have a look at this again. It is a matter for MPs. They should debate and consider it and see whether they think it is appropriate that we hand the power straight back to the Prime Minister so that the decision is vested in one person. Ministers have said previously that this increases democratic legitimacy but handing it to one member of the Executive in the House of Commons does not do that. No one is saying that the Prime Minister—he or she—would not be capable of making a decision, but democracy is served better when decisions are taken in the House of Commons in the normal way.
My noble friend Lord Grocott knocked back the point made about the two-thirds majority by explaining why that is so difficult. I am sorry that the noble Baroness, Lady Noakes, did not listen to the comments of the noble Lord, Lord Lansley, earlier, because he gave the circumstances in which the House of Commons did vote for an election, but because it was not a simple majority but a two-thirds majority it did not happen then. It did eventually happen, but a simple majority, in the same way as we decide every other piece of legislation, would be the best way forward.
I support Amendment 3 in my name and those of the noble and learned Lord, Lord Judge, and the noble Lords, Lord Newby and Lord Lansley, and I hope the Minister will not just dismiss it out of hand but will be happy to enter into further discussions to see whether it could be a helpful way forward, particularly when we get to the next debate, on Clause 3.
My Lords, I thank all those who have spoken in what has rightly been a lengthy debate. Perhaps my concluding marks too will be lengthy; I trust not. I am grateful to all noble Lords who have taken part. Your Lordships will divine that some of those who have spoken I agree with, and some I found less persuasive, but I have welcomed the opportunity to discuss these matters and others with many noble Lords, including the noble Baroness opposite, whose courtesy I always so much appreciate, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Grocott. I very much appreciate that.
I have listened very carefully to all the arguments, not least the compelling concluding remarks of my noble and learned friend Lord Mackay of Clashfern. I was a little puzzled by the position of the noble Baroness opposite because she seemed to say that when the Labour Party told the electorate in 2019 that they would repeal the Fixed-term Parliaments Act, what they actually meant was that they would not repeal it, but they would keep the chance of the very zombie Parliament that the public so overwhelmingly rejected in the 2019 election. I suggest to your Lordships that, notwithstanding some speeches that have been made, the risk of that occurring if these amendments are supported remains high.
I respectfully suggest to all noble Lords that retaining a revised version of the failed 2011 Act, which this amendment would do, in effect, by keeping the Commons veto in a revised form, is a highly problematic suggestion. It would not achieve what it is intended to do; it certainly would not secure clarity. I was on the Constitution Committee a long time ago when the noble Baroness, Lady Taylor, became chair, and I say to her how much I admired and respected the work that was done by that committee while she was chair; I am sure I speak for the whole House on that. In her compelling speech, she spoke of the need for some degree of clarity and the need to avoid loopholes. We must guard against repeating one of the fundamental errors of the Fixed-term Parliaments Act, which, in the words of our manifesto, led to “paralysis”, or, in the words of the Labour manifesto, has “propped up weak governments”—Governments without the authority to govern effectively.
In my party’s manifesto, when we pledged to repeal this Act we made absolutely clear that its purpose was to prevent
“paralysis at a time the country needed decisive action.”
The Government, in submitting their manifesto to the country, had no doubt that the procedures that led to that paralysis should be done away with.
A vote in the House of Commons, by hindering the ability of the Prime Minister to call and to request an election at the time of his judgment, could mean that a Government are held hostage and lame duck Parliaments limp on. We have seen it. We have heard many fanciful scenarios in this debate, including the one of the noble Lord, Lord Butler of Brockwell—which I thought very fanciful—but this has happened and could happen again.
My Lord, if the Minister is going down the path of history, can he please address the specific point? On three occasions, the Prime Minister in—I agree with him—that dreadful Parliament, obtained a majority for a general election. That is not a theoretical speculation—it is fact.
My Lords, I am coming on to that, as I just said to the House I would. You can look at those circumstances in different ways, I would submit. Perhaps I will deal with that and then go on to the other point.
The Government had effectively lost the confidence of the Commons on the central purpose of its being, which was to deliver the referendum result on a key European policy. As the noble Lord opposite says, they tried to call an election three times, and three times the Commons refused to grant one. Why did the other place refuse to grant one? I cannot remember which noble Lord it was who said in the debate that it was because the leader of the Opposition sat on his hands and decided to prevent an election taking place. The noble Lord said he would not have done, but he did—three times.
The votes for dissolution were 298 on 4 September, 293 on 9 September, and 299 on 28 October. On every occasion they fell short of a majority. The Labour Party cast its vote to secure what it manifestly wished to do, which was to prevent the Prime Minister going to the country. Three times Mr Corbyn was presented—like Caesar on the Lupercal—with the crown of the election that he could have had the following day, on 4 September, 9 September and 28 October, and he declined.
The noble Lord suggests that of course if they had known there would be an election, the Opposition would never have sought to vote against it. By sitting on their hands, the Opposition defied the people and did not have an election.
My noble friend must address the point. The point is that if the requirement were not what the Fixed-term Parliaments Act required but a simple majority on a Motion in the House of Commons, the Prime Minister back in October 2019 would have secured a simple majority and got his election.
My Lords, there is a conditional in that: a “would”. I believe that people must be presumed to intend the consequences of their own actions, and the consequence of Mr Corbyn’s actions was to thwart a general election three times. The figures I have given to the House are there in the book.
I want to move on because the noble and learned Lord, Lord Judge, in the gravamen of the argument—although I think the matters I have covered are a flaw in it—used the argument, which I think was taken up by my noble friend Lady Noakes, that the votes of millions of people should not be overturned by Dissolution. A number of noble Lords have addressed this. By implication, the noble and learned Lord argues, per contra, that the chance to vote for millions of people should be denied by a vote of the House of Commons. It seems to me an extraordinary concept that a House of Commons that does not wish to go should, in his words, prevent or overturn the votes of millions. I respectfully disagree. I think the noble Baroness, Lady Taylor of Bolton, who chaired your Lordships’ Constitution Committee with distinction, put some political practicality into the equation, as did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. This is very serious. I simply do not accept the argument that the noble and learned Lord, Lord Judge, put forward.
A simple majority vote, for the reasons I have given, would not necessarily prevent deadlock in certain conditions—my noble friend Lord Sherbourne of Didsbury spoke to this—such as when the Government of the day held only a small majority, no majority at all or depended on a small party with a particular regional or country-specific interest. The procedure that is proposed would, in my submission, fail the test of clarity and the absence of loopholes, as the noble Baroness, Lady Taylor of Bolton, put to us. The Joint Committee itself noted on the matter of a vote in the Commons before Parliament was dissolved, that, “The majority”—there were conflicting views, as the noble Lord, Lord Beith, put to us—
“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.”
There remains a role for the sovereign in exceptional circumstances to refuse a dissolution request; the noble Lord, Lord Beith, made this point. This is a powerful incentive to ensure that improper requests are not made of the sovereign, irrespective of the Government’s majority in the House of Commons. However, a House of Commons vote in effect removes the role of the sovereign as the constitutional backstop. Some of your Lordships avowedly wish to do that; it is the Government’s strong opinion that that would be unwise.
The Bill as drafted will provide constitutional arrangements that deliver significant benefits to this country and clarity on the way forward—a clarity that has been well known, understood and trusted, and served successive Parliaments and Governments of different parties for generations. The Bill has been through rigorous parliamentary scrutiny. There has been a good deal of scrutiny of the 2011 Act by the Constitution Committee and PACAC. The Joint Committee also undertook outstanding pre-legislative scrutiny of the Bill, which has informed our approach.
The careful scrutiny that your Lordships rightly expect has been provided. To construct this novel constitutional scheme which the noble and learned Lord, Lord Judge, is suggesting, building on the remnants of a piece of legislation that did not stand up in the political turmoil of the previous Parliament, would perhaps be to act with a little haste. That is not the way to ensure that our constitutional arrangements will stand the test of time as the previous arrangements did. This Bill returns our country to its best constitutional traditions, and I urge your Lordships to withdraw the amendment.
My Lords, I briefly point out that the definition of “Prorogation” that the Minister has just given does not cover the meaning of what the Prime Minister did in 2019. He might perhaps like to reconsider that definition if he wants to argue that the Prime Minister was behaving within the constitution. A lot of this debate has been about the lack of clarity in constitutional conventions at present and the need for greater clarity. I would be very happy to discuss further with him the revision of the Cabinet Manual to set out clearer definitions of what our conventions are, agreed among the parties and consulting with the committees in both Houses, which is what we need. We lack trust in politics at present and the public has a low opinion of politics and politicians. That is part of the reason why, as the noble Lord, Lord Desai, said, we need to put conventions down on paper. I hope that we will come back to the Cabinet Manual later.
I say rapidly to the noble Baroness, Lady Noakes, that we are a parliamentary democracy, and one of the planks on which the 2016 referendum was fought was to restore parliamentary sovereignty. When Parliament began afterwards to divide up into factions within both the major parties—which, after all, was the cause of our difficulties between 2017 and 2019—the Government moved towards an idea of popular sovereignty. If we were to move towards a system of popular sovereignty, as she suggests, we would be moving towards the Swiss model. We would have a much more local democracy, with local as well as national referenda and a Government who were much less able to control anything much from the centre; Switzerland does not have much of a foreign policy as a result. That is a popular democracy. It would be a very different model from our constitutional democracy based on checks and balances between judiciary, Parliament and Executive.
What we risk having is a populist democracy with highly centralised government and a leader with a good deal of financial support behind him—occasionally her, but almost always him—who says that he speaks for the public without actually asking them what they say, who does his best to denigrate any sort of critical or independent media and who thus undermines the whole idea of a constitutional democracy. We have seen that happen in a number of countries in recent years and we do not want it to happen here. That is why we need greater clarity in our constitutional conventions, which is part of what we are concerned with in this Bill. I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Amendment 3
Tabled by
Lord Judge
3: Clause 2, page 1, line 9, at end insert—
“(1A) The powers referred to in subsection (1) must not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).(1B) The form of motion for the purposes of subsection (1A) is “that this present Parliament will be dissolved.””
Lord Judge (CB)
My Lords, it is rather fun to be clothed in the costume of a revolutionary who is about to tear down the constitution. I do not think anyone has ever thought of me in those terms, and my family will be absolutely fascinated by it.
I have found this an interesting debate on all sides. It is perfectly obvious that I shall have to read the debate, which I shall. It is also perfectly clear that there is nothing further that I can say in private meetings, in the Chamber or anywhere else that will enable me to persuade the Minister to change his mind or his position.
I remind noble Lords that we are simply asking that the House of Commons should have a chance to look again at the proposal before us so that it can make up its mind. Its Members had a debate, but when you read it you see that—this sounds discourteous, and I suppose in a way it is—the issue was hardly addressed. All that I am asking in this amendment is that they should be given a chance to think about it. I would be perfectly happy for them to reject it; that would be their decision. For today’s purposes, I shall withdraw the amendment, but I shall reflect on what should happen at the next stage.
Amendment 3 not moved.
Clause 2 agreed.
Clause 3: Non-justiciability of revived prerogative powers
4: Clause 3, page 1, line 17, leave out “or purported exercise”
Member’s explanatory statement
This amendment ensures that the ouster provision in clause 3 will not apply to the purported exercise of the powers to dissolve Parliament contained in clause 2.
My Lords, I shall also speak to my other two amendments in this group. The amendments would ensure that the ouster provisions in the clause did not apply to the purported exercise of the powers to dissolve Parliament contained in Clause 2. There are two principal arguments that I wish to develop in support of the amendments. The first is that they are necessary to give effect to the Government’s intention that the Bill restore the status quo ante. The second is that including the “purported” exercise of powers within the clause is objectionable in principle.
The purpose of the Bill is to restore the position to what it was before the 2011 Act was enacted. As paragraph 23 of the Explanatory Notes concedes, the purpose of Clause 3(c) is
“to address the distinction drawn by the Supreme Court … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”
As the Law Society of Scotland pointed out in its helpful briefing note, that takes us further than the pre-2011 status quo ante. It considers that extending the clause to the purported exercise of the Clause 2 powers, or a purported decision in relation to those powers, may go beyond the bounds of the previous law as expressed in the 1985 case of Council of Civil Service Unions v Minister for the Civil Service. As the note goes on to say:
“We take the view that the inclusion of ‘purported’ appears to be designed to address the decision in R (on the application of Privacy International) v Investigatory Powers Tribunal and others … where the absence of the word ‘purported” was treated as significant by some of the judges.”
Either the Bill restores the status quo ante or it does not. If the Government are to be consistent and achieve the situation as it existed prior to September 2011, the references to the “purported exercise” and “purported decision” of powers under Clause 2 need to be removed from the Bill.
The second and fundamental objection is one of principle. The use of “purported” means that the exercise might be beyond the power vested in Ministers. I am not in favour of Ministers having the capacity without it being open to challenge in the courts. The Minister in the Commons, Chloe Smith, said that the clause provided
My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.
Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.
We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.
The word “purported” is worth dwelling on. The noble Lord, Lord Rooker, whose name is also against this amendment but who has unfortunately left his place, raised this issue with the noble Lord, Lord True, at Second Reading. I am sure that noble Lords will remember that exchange quite well. The noble Lord, Lord True, explained exactly what the word meant: he said—I cannot put it better than he did—that it means an “invalid” exercise of the prerogative that is, therefore, not lawful. The question is whether, when you use the word, the power that is being exercised is within its lawful limits. This almost begs the question about whether that is a question of law that this clause is seeking to take away from the courts altogether. Like the noble Lord, Lord Norton of Louth, I think that this provision contravenes the rule of law and for that reason is objectionable in principle.
I make it clear that I take no objection to Clause 3(b) and (c) if the references to “purposed exercise” or “purported decision” are removed. In the interests of clarity, it is quite clear to just say that the court or tribunal may not question the exercise of the powers referred to in Clause 2—that would give clarity. I take no objection to those on the grounds that they are either unnecessary or objectionable in principle. It is Clause 3(c) and the reference to “purported exercise” that concern me.
In principle, my point is that every prerogative power has its limits. Over the centuries, the courts have protected parliamentary sovereignty from threats posed to it by the use of prerogative powers. So the sovereignty of Parliament would be undermined, as a fundamental principle of the constitution, if the Executive could, by using the prerogative, prevent Parliament exercising its legitimate authority for as long as they wish. The same point can be made about the principle that Ministers are accountable to Parliament. We need to be protected against the risk that a responsible Government may be replaced by an unaccountable one. In Miller, the court said that that would be the position if there were no legal limit on the power to prorogue, so the decision to prorogue would be unlawful if it were to have those effects.
I recognise that in this we are not dealing with Prorogation, which brings me to the second part of the point of the noble Lord, Lord Norton of Louth, on whether these provisions are necessary. In paragraph 4 of its judgment in Miller, the Supreme Court noted, in passing, that there are “conventional constraints” on what the Government can do during the Dissolution period. I take that as a signal that, if the issue of Dissolution were to be raised before the court, it would not entertain any argument about it. In the previous debate, we heard quite a lot about the Dissolution Principles and various constraints that would require any attempt to deprive the electorate of their opportunity to vote following a Dissolution to simply be a non-starter.
Indeed, in his letter to the Constitution Committee in December last year, the Minister developed these points. It was an admirable letter because it answered the Constitution Committee’s points in considerable detail, which is highly commendable and I hope will be followed by other Ministers in similar cases. As the noble Lord said in his letter, there are already checks and incentives for the Executive that have worked for many years, effectively compelling Parliament to be called as soon as possible after a Dissolution. Unduly and unnecessarily delaying the calling of a new Parliament is not in the interest of any Government seeking to make progress on the mandate that they have received through a general election. The Bill itself, in Clause 4, introduces an additional safeguard: an automatic Dissolution provision in the event that a Prime Minister fails to use his prerogative to request a Dissolution at all.
So where is the problem? These are draconian ouster provisions which are without precedent. I am talking about Clause 3(c) because I have not been able to find any precedent for this extreme exclusion at all. Strange things, of course, have been happening since this Prime Minister took office, but even he, I suggest, would find it very difficult to abuse this prerogative power. It seems to me that the possibility of the courts intervening in this context is remote.
Why do I object to these provisions? Parliament and, in its turn, the electorate to which it is answerable, are protected by the rule that questions of law are for the courts. It is very dangerous to undermine that principle in the way that is proposed here because of the example that this clause sets for the future. Clause 3(c), which states that a court may not question “the limits or extent” of the prerogative powers that are revived by the Bill, strikes at the heart of the rule of law. My concern is that, once used, this formula will appear again supported by the reasoning that, just because it was approved by Parliament in this case, it has become an established part of our constitutional lexicon.
I am grateful to the noble Lord, Lord True, for a very interesting discussion the other day in which he was good enough to listen to my arguments and explain the position he is taking to resist them. One of the points, which I fully recognise, is why he has been advised that the provisions should be framed in this way. That is because the courts have said that ouster clauses must be construed strictly, and that means that, if it is Parliament’s intention to take this jurisdiction away from the courts, it must do so in clear terms. The noble Lord made it very clear that that was the advice he had received and that is why the clause was drafted in this way. I understand the point, but it does not answer my point, which is whether he should be doing this at all. I assure him that my concerns about this are very real. Prerogative powers can do much damage if they are abused. To introduce this formula into our lexicon in a different context, as I fear will happen, would be very dangerous.
The Government have nothing to fear by the removal of these provisions if they wish to be free to exercise their prerogative powers in the context of Dissolution. I wonder whether the noble Lord can assure me that, if he insists on keeping these provisions in power, they are not to be a precedent for the future. As the way things are now, that is my principal concern because I do not see the court being involved in this issue about Dissolution being improperly exercised at all.
My Lords, the Committee has shown in the debate on this Bill so far that there is common ground that this Bill should provide clarity. The use of “purported” in Clause 3 seems to be a deliberate choice by the Government and the parliamentary draftsmen. It is not a word used much in everyday speech but is found in other Acts of Parliament. It is also used in judgments when an act has taken place or a decision has been taken, but a court has concluded after the event that the decision or act has no legal effect. Any well-informed draftsman in this context would have had well in mind the decision in the Anisminic case.
In Miller II, as it is generally referred to—the prorogation case—the Supreme Court concluded that despite the fact that the Prime Minister had gone through all the appropriate formalities to prorogue Parliament and Parliament had been, as a matter of fact, prorogued, the prorogation, or purported prorogation, was unlawful and was thus deemed not to have happened as a matter of law, with the result that Parliament was reassembled.
The purpose of Clause 3 is plainly to render the exercise of the power to dissolve Parliament non-justiciable. The first question is whether, as a matter of construction, it has that effect, and the second is whether such an ouster clause should be in the Bill at all. That is an issue in the stand part amendment in the name of the noble Lord, Lord Butler. If, for the sake of argument, the House were to conclude that an ouster clause was appropriate, why not include “purported” in the ouster clause? In its absence, a court could conclude that notwithstanding the apparent or purported Dissolution, because of the unlawfulness of the Dissolution—and the courts have shown considerable ingenuity on occasions in finding unlawfulness—the Dissolution never, as a matter of law, occurred. It would follow that Parliament would then be reassembled, campaigning might be halted, the date of an election vacated, with all the attendant chaos that would ensure, and it is even possible that the result of an election could be set aside. That seems to me to be a highly undesirable state of affairs, for two principal reasons: first, the uncertainly; and, secondly, the insertion of the courts into the political process.
The other objection I have to the removal or watering down of this ouster clause is the practical effect of a challenge to the power to dissolve. Even an unsuccessful challenge would cause delay and uncertainty. There are those who make no bones about their use of judicial review as a political tool. It is possible, or even likely, that a challenge would be forthcoming if some political advantage was perceived in mounting one. A successful challenge would cause really substantial uncertainty. It is sometimes said that the Miller 2 decision, and even the Miller 1 decision, did not cause that much disruption and did not prevent the Prime Minister calling a general election, but it must be remembered, as is cogently pointed out by Professor Ekins in his Policy Exchange paper on the Bill, that it was only because the SNP and the Liberal Democrats thought that an election would benefit them that he was able to do so. Otherwise, Parliament would have continued in a form of paralysis for a lengthy period as a result of the Supreme Court decision.
This Bill will provide a welcome degree of clarity. It will restore, or rather confirm, the status quo and, with this ouster clause, keep the judges out of politics. I pause to point out that, in a sense, as we said in the IRAL, this is not truly an ouster clause, since the Bill is not creating a new power and then ousting the jurisdiction of the courts. Rather, it is confirming the status quo as acknowledged so long ago by Lord Roskill in the GCHQ case. It is doing this in the interests of legal certainty, a point made by the Constitution Committee, of which I have the privilege of being a member. Our current Prime Minister is perceived by many in your Lordships’ House and outside as having rather little regard for the law. But personal antipathy to this Prime Minister should not result in our making unnecessary and undesirable amendments to this Bill.
My Lords, I shall disagree with the noble Lord who has just spoken by opposing the inclusion of Clause 3 in the Bill, but first I thank the noble Lords, Lord True and Lord Wolfson, for extending to me the courtesy of a virtual discussion on this. They failed to persuade me, but I appreciated the courtesy.
Last week, the Minister circulated a letter to your Lordships addressing the issues arising from the Bill. In it, he said:
“Clause 3: Restates the long standing position that the exercise of prerogative power”
in relation to the Dissolution and calling of Parliament “is non-justiciable”, and the noble Lord, Lord Faulks, has just said something similar. I have been around a long time, but I am not aware of any such long-standing position. There is the statement of Lord Roskill, but it did not bear directly on this. It is not surprising that this position has not been conclusively established, because no challenge to the use of the prerogative power has ever been made. Nor do I think it likely that it ever would be. If it was, I find it hard to imagine the circumstances in which a court would uphold such a challenge. So, in practice, I regard this clause as unnecessary, and dangerous.
Let us suppose, for the sake of argument, that a Government misused this prerogative power by asking the sovereign to dissolve Parliament in order to prevent Parliament causing the Government some inconvenience or in an attempt to overturn the result of a recent election. What safeguard would there be against such a misuse of power in the absence of the courts? The noble Baroness the Leader of the Opposition was absolutely right. She said that there were three possibilities. There is Parliament—the House of Commons—which we debated in the last group of amendments, there are the courts or there is the sovereign. Those are the only three possibilities. Again, I quote the Minister’s letter:
“The sovereign retains the power to refuse an improper dissolution and, in doing so, acts as a constitutional backstop in this context.”
My Lords, with a Supreme Court judge, the chairman of the most recent inquiry into the workings of judicial review—he did an extremely good piece of work on that—and a former Cabinet Secretary presenting views that differ in more than nuanced ways, the House will have to resolve this issue. Those of us who are deeply concerned about this clause cannot be accused of wanting to drag the judges into decisions about whether elections are being held. In my case, and in some of the other cases, we have offered two mechanisms that clearly make that very unlikely.
One is that the courts would be very unlikely to question or interfere in any way with the personal prerogative power, which we all agreed earlier is the nature of, if not the wording of the Bill, then of the re-establishment of the status quo ante. The second is that a significant number of us argued that a vote in the House of Commons is a desirable process. Were it there—were it a condition—it would entirely obviate any fear that the courts would become involved, because the courts would recognise the Bill of Rights’ prohibition on questioning the decision made in Parliament. We are not people seeking to drag the judges into this process.
The Government’s belief that they have to build a bulwark of some kind against judges becoming involved, all based on a particular recent experience that was about not Dissolution but Prorogation, has, I think, drawn them into doing something that, if we do it, we will come to regret very much in years to come. The phraseology of the clause should remind us of that: it is the
“purported exercise of the powers”
or the “purported decision”. What does that take us to? It takes us to the point where the Government are trying to ensure that the courts do not question whether the Prime Minister had the power to act in that way, or, if he had the power, that he is acting in ways covered by the legislation. I find it very hard to conceive of a case that could be made, if the processes of this legislation are followed, in which that could reasonably be advanced in front of or taken seriously by any court. What I see is an ouster clause that we will not see the last of and that we will see again in other legislation. Then it will be said that it is a perfectly acceptable ouster clause, as Parliament allowed it in legislation that repealed the Fixed-term Parliaments Act; that it is just a straightforward way of making it clear that this is an area in which we do not want the courts involved.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, my core concern regarding this group of amendments is for the future generation of judges—not just in the Supreme Court, but judges who, I suggest, must inevitably be troubled at first instance and so forth before things get to the Supreme Court—if there is there is the slightest glimmer of a prospect of anybody legally challenging any decision with regard to Dissolution. I find myself in total agreement with all that my noble friend Lord Faulks said and the legal analysis here. The courts have striven mightily to remove any possibility of ouster clauses having effect. With that, in most contexts, I totally agree, but this is in the context of Dissolution and of trying, with the utmost clarity, to return as whence we were, where there was no possibility of the courts entertaining a challenge.
To my mind, the courts would be grossly embarrassed and, of course, singularly unlikely to intervene. The noble Lord, Lord Beith is absolutely right: it is the last thing they would want to do because it would be so embarrassing and destructive of the current constitutional position of judges to allow themselves to be drawn into this field. However, the temptation for others to try to involve them must be removed. I suggest that this clause, as is, tries to dot every I and cross every T.
The reason for “purported” has been explained; I need not repeat it. The court has the principle that anything that is regarded as legally flawed is a nullity. Therefore, what was thought to be a judicial review of a decision is only the judicial review of a purported decision because X hypothesis has been set aside as a nullity. I see no reason why you cannot have the absolute clarity that this clause provides, which will discourage anybody from trying, as I see it, to embarrass the court.
Finally, my noble friend Lord Butler suggested that you must have Parliament, Her Majesty or the courts supervising in some shape or form so that the Prime Minister does not exceed the legal limits of his power. I suggest that there is a fourth body to ensure that: the public, whom the Dissolution process consults on this question. Brenda of Bristol and her like will make sure that the Prime Minister does not exceed this power.
My Lords, I will speak only on Clause 3 stand part and not on the more detailed amendments, because I am sure that my noble friend the Minister will reply in his careful way about how the wording was arrived at and what it is intended to do, as he did very carefully at Second Reading.
One does not have to be an expert on the constitution, which I am not, to know that judges should not interfere in politics, and decisions on calling elections are about as political as decisions ever get. I believe the Government are right to try to draft this Bill in such a way that the courts cannot interfere in that very political decision, and that is why I support Clause 3 standing part of the Bill.
The fact that the Government feel it necessary to include Clause 3 and draft it in such a complex way speaks volumes about how the judiciary has found many ways of getting involved in areas that would have seemed unthinkable only a few years ago, ones of which we would have assumed the courts would steer clear. The clause is necessary only because of the direction of travel taken by the courts in the way they have interpreted the areas they get involved in. I, for one, believe that we need no more surprises like the Miller judgments.
Clause 3 is confined to the specific and narrow issue of whether the prerogative power to dissolve Parliament is justiciable. I cannot conceive of any circumstances in which the involvement of the courts could ever be justified, and those who oppose Clause 3 have said that they cannot think of any either. Even the noble Lord, Lord Butler of Brockwell, who demonstrated the fertility of his imagination in the debate on an earlier group of amendments, could not come up with an example. We are legislating against shadows, against figments of the imagination.
The issue is about only the steps taken to allow a general election to be called. It is a very political decision. We cannot conceive of the courts ever getting involved in delaying an election, halting an election or even, as my noble friend Lord Faulks suggested, nullifying the result of a general election. It just seems too ludicrous a concept even to contemplate. However, we need it to be clear beyond peradventure in the law, and without this clause it may not be.
The noble Baroness and I agree that the circumstances in which this situation arises are unthinkable, so why should we have the dangerous precedent of this ouster clause in the Bill?
We have it because it is just possible that the courts could find a way in. We have seen them getting involved in areas that we never thought they would get involved in before. That is a fact of the way the judiciary has moved in recent years, and it is why the clause is there.
I do not accept that the clause sets a dangerous precedent. It is about this one very narrow issue. It is not about an ouster clause that would be put in every statute that came before Parliament. Of course, Parliament must decide at the end of the day how it wants to frame its laws. It has the right to do that, and the courts can then interpret those laws, but I do not believe that this will be seen as a precedent for a more general use of ouster clauses. If it is, I am fairly sure that Parliament would not accept them. We should see this clause in the narrow concept in which it is drafted and not try to extend it beyond that.
My Lords, if we are talking about our tried and tested constitution, we should remember that in the 17th century it was Chief Justice Coke and his defence of the rule of law against the extent of the royal prerogative which led to the development of some of the ideas of constitutional democracy at least as much as Parliament. The rule of law is an essential part of the way we work.
I say to the noble Baroness, Lady Noakes, that we all know that this clause is in the Bill because of the judgment on Prorogation in 2019. I was interested to hear that the Minister’s definition of Prorogation did not in any sense suggest that that use of the power came within an accepted definition. Perhaps he will change his definition next time he comes.
The Minister has said that the importance of the Bill is to restore the status quo, but this ouster clause is not the restoration of the status quo. I agree with the noble and learned Lord, Lord Hope, that it opens a window to its use on other occasions, which would be highly undesirable. It is much more radical than Clause 2 in changing our customs and practices. If we want to maintain the status quo while changing it a little—
The noble Lord says that the clause does not restore the status quo. Does it follow that, in his view, the power to dissolve would have been justiciable at common law by virtue of the conventions?
I find it hard to imagine a situation in which the power of Dissolution would be used in the way that the power of Prorogation was used in 2019, so I do not think it likely that the case would arise. That is my instant opinion.
The radical dimension of this is that it disturbs the balance between the judiciary and the rule of law, and Parliament and the checks that Parliament has on executive power and the Government. The conclusion of The Independent Review of Administrative Law says, as the noble Lord, Lord Faulks, will remember:
“The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers … It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … a degree of conflict shows that the checks and balances in our constitution are working well.”
I strongly agree with those sentiments. It is part of the proper process of constitutional democracy that each of those elements of our constitution should have a degree of tension with each other and hold each other in balance.
That is why I am in favour of amending this Bill to provide the simpler process of powers of Dissolution that Clause 2 provides—thus making Clause 3 unnecessary —and supplementing the desire for clarity of conventions by revising the Cabinet Manual to have a more fluent definition of Dissolution principles. If we do all three of those, we will substantially improve the constitutional value of this Bill.
My Lords, I would like to think that the Minister will find this argument conclusive. If he had accepted the amendment on Clause 2 that so many noble Lords thought was valuable—to have parliamentary resolution for a general election—we would not have needed this debate on the ouster clause and could have got home much earlier. But he has rejected it and that brings us to the debate about the ouster clause itself.
In normal circumstances, when eminent lawyers pronounce on issues of law and legality, those of us who are not lawyers intervene with some trepidation. I am relaxed on this issue, however, because the ghost in the room is the debate on Prorogation, not Dissolution, and that it went to the Supreme Court. We all know the debates surrounding that and those of us who are not lawyers are emboldened by the defence that the Divisional Court thought 100% in one direction and the Supreme Court thought 100% in the other. Whichever argument you pick, you will have a few top lawyers on your side.
In my view, that whole episode relates to that dreadful Parliament I keep referring to between 2017 and 2019. All that debate, which went to the Supreme Court, derived from the background of a dysfunctional Parliament—a bad case, if you like. So much of the debate we are having now is with that and the judgments that were made hanging over us. The list of dysfunctionalities of that Parliament knows no bounds. I mention one obvious point: there was a Speaker who, on the biggest debate of the day—the referendum result and its consequences—was highly partisan on one side of the argument. In those circumstances, all sorts of other undesirable things follow.
I, for one, very much regret that the Supreme Court decided to get involved in politics at the highest level. I know there are all sorts of disclaimers that it was not doing that, but that is precisely what happened. It is difficult to imagine a more dramatic, higher-profile political issue than that of leaving or not leaving the EU, and the Supreme Court came down decisively on one side of the argument, in practical terms. As soon as the courts are involved in these kinds of highly charged political areas, we are in trouble.
I regret the need for this ouster clause. I think a far simpler solution is a resolution of Parliament that would never be challenged in the courts. The example of all that happened over Prorogation was a very unfortunate set of circumstances, with the courts becoming involved in the issue, and I hope it is never repeated.
My Lords, I have been listening to this debate and it has been extremely interesting. I will not detain the House because it is late, but what I find interesting—I am talking more generally about Clause 3, although I fully accept some of the points made about the wording and mission creep—is that this Government are claiming that the Bill simply restores the status quo ante. In fact, it is rather more difficult to restore the status quo ante than you might think.
In my view, the reason why Clause 3 is in the Bill is the Miller cases. The noble Baroness, Lady Noakes, and I disagree on what you might call the direction of travel—we can have a conversation about that some other time—but the Government cannot have it both ways. They cannot claim that they are restoring the status quo ante and, at the same time, make the argument for Clause 3. When the Minister replies, it would be helpful if he at least acknowledged that the Bill does more than restore the status quo ante. I will leave it there, in view of the late hour.
My Lords, in this debate I find myself in the unusual position of agreeing with almost every speaker—agreeing with something they said and disagreeing with something they said.
I start with the point made by my noble friend Lord Stansgate. If the Bill is merely returning to the status quo ante, as was said, I am not quite clear why we need a clause such as Clause 3. I think it was the noble Lord, Lord Butler, who said that it seems inconceivable to him that the courts would insert themselves into a decision about a general election. As the noble Lord, Lord Faulks, said, the practical consequences of doing so are quite disastrous and it is hard to contemplate the impact that would have on a democratic decision to have a general election.
The elephant in the room that has been alluded to is that everybody, whatever side of the argument they are on, is scarred by the unlawful Prorogation. I appreciate that this is about Dissolution, which is very different to Prorogation, but because of the unlawful Prorogation the Government are concerned that the courts may insert themselves into this decision-making. So, even though they are telling us that it returns us to where we were prior to the Fixed-term Parliaments Act, they still feel the need for belt and braces. Yet there is also the view that it is a step too far and would never be needed anyway.
As the noble Lord, Lord Grocott, pointed out, a neater way of avoiding the courts involving themselves in a decision about a general election, and avoiding bringing the monarch into a controversial political decision—the noble Lord, Lord Butler, commented on this—is for the House of Commons to have a vote. If the Government are concerned that, because of the way the legislation is drafted without Clause 3, there would be a danger of the courts intervening—in my view, there is not a role for the courts to intervene, but the Government are concerned that there may be—they have this clause. That is the chilling effect that people are concerned about.
My Lords, I will certainly seek to do so. I do not wish to pre-empt the Committee in any way. We obviously have other groups to come to. I anticipate that the debates on those will not be quite so lengthy but, given the importance of this amendment, I hope noble Lords will be forbearing if I address it in some detail to place these matters on the record, mindful as we all should be that arguments put at length in Committee should not be repeated at length on Report.
I took it from what the noble Baroness opposite said that the Labour Party agrees with us that the courts should not come anywhere near this. Other people have obviously argued otherwise. She came out with that other elephant in the room, which was glinting quietly in the mists behind the argument from the noble Lord, Lord Butler. She criticises my right honourable friend Minister. The elements are mixed in my right honourable friend the Prime Minister. He has apologised for actions, and things are subject to inquiries. My right honourable friend the Prime Minister is subject to the most unprecedented campaign of personal vilification that I have been aware of in modern politics in my lifetime. Notwithstanding that, I do not think that that justifies ad hominem legislation of any sort. This point was addressed by the noble Lord, Lord Faulks.
The noble Lord, Lord Butler, based his argument on a claim that the Government sought “totalitarian” powers, with an advised plural. This matter concerns one process, as has been pointed out by several people who have spoken, and one process alone: the Dissolution of Parliament and the precipitation of a general election. I find nothing remotely totalitarian in a Government asking the public to be the Government’s judge.
Dissolution remains one of the most fundamental non-justiciable prerogative powers. Nobody has argued that it should be justiciable; some people said, “We do not need to have an ouster clause because it is obviously not”, et cetera. Dissolution is unique for two reasons. First, the constraints on it are democratic; the judgment on a Prime Minister’s decision to call an election is the electorate. There is no vacuum of accountability, as the noble Lord, Lord Grocott, said. What greater judgment and punishment can be meted out if a Prime Minister abuses that power than the loss of power, as the noble and learned Lord, Lord Brown, told us? It is the ultimate political reprimand. Secondly, the security of the process of calling an election, and the election itself, underpins the integrity and health of our democracy. It is critical that exercise of the Dissolution prerogative, including the preliminary steps leading to the exercise of the power, are not made insecure. This prerogative power is inherently political in nature and it is not suitable for review by the courts. There is no legal standard that the courts can usefully apply to review the preliminary steps and the Dissolution decision itself.
I turn to the amendments tabled by my noble friend Lord Norton. I shall explain why the references to “purported” are needed. I think it was the noble Lord, Lord Rooker, who questioned “purported” in Committee; as a lay man, I must say that “purported” sounds an interesting word, to put it no finer. We heard an explanation of it earlier from my noble friend Lord Faulks.
As I said, the ordinary standards of administrative law as applied by the courts are simply not a suitable framework against which to judge the exercise of these prerogative powers or decisions relating to them. That applies particularly in the use of “purported” as understood by administrative law. It should not fall to the courts to assess a request to dissolve Parliament by reference to whether relevant considerations have been taken into account or irrelevant ones have been discounted; by reference to whether the request is rational or has been made for a proper purpose; or by reference to whether a fair process has been followed or whether there has been a failure to satisfy a legitimate expectation. That would be to ask the wrong questions in the wrong forum.
The word “purported” has been included in response to two cases in particular. I know that many noble Lords will be very familiar with the cases but perhaps it is useful to consider their particular relevance to the drafting of this clause. In the case of Anisminic Ltd v Foreign Compensation Commission, the Foreign Compensation Act 1950 contained a so-called ouster clause that provided that a “determination” made by the Foreign Compensation Commission shall not be
“called into question in any court of law”.
However, the House of Lords held that the ouster clause did not prevent it inquiring into whether the commission had made an error in law—in that case, by proceeding on a misconstruction of the order. It held that a determination invalidated by an error of law was not a determination at all; rather, it was merely a “purported” determination, or a nullity. The simple reference in the ouster clause to a “determination” of the commission did not cover purported determinations and therefore did not prevent the court looking at whether the commission had made a correct determination in law on the question of eligibility to claim compensation.
In that case, Lord Reid explained that
“it is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly—meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”
If Parliament had intended the ouster clause to cover purported determinations, Lord Reid said, he would have expected to find something much more specific than a “bald” reference to a determination. That is an important consideration to bear in mind. It is for that reason that we cannot rely in Clause 3 on a bald reference to the exercise of the revived powers and decisions relating to those powers. References to “purported” are required to make plain the intention that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.
That position is underlined by the recent case of Privacy International v Investigatory Powers Tribunal in 2019, in which the Supreme Court ruled that an ouster clause in the Regulation of Investigatory Powers Act 2000 did not oust the court’s jurisdiction to review a judgment of the Investigatory Powers Tribunal for error of law. Here, Lord Lloyd-Jones remarked that it was a striking feature that the ouster in the 2000 Act did not mention purported decisions, given that the drafter must have been aware of Anisminic. He expressed an expectation that those drafting legislation would have regard to the case law and make it clear if “purported decisions” are intended to be outside the jurisdiction of the courts. We submit that in this context, and based on the clear views expressed by the courts, it is reasonable that the Government should seek to draft Clause 3 in this clear and unequivocal way.
In short, we have included “purported” in Clause 3 to give effect to the principle that matters concerning the Dissolution and calling of Parliament are best judged by the electorate, not by the courts. This wording is essential to achieve that point.
I am sorry to interrupt the Minister, and I am grateful for the detail that he is going into. I am not a lawyer, but I am not the only person in your Lordships’ House tonight who is not. Can the Minister say, in lay man’s language, what he understands a “purported decision” to be? Can he give an example?
My Lords, as noble Lords know, I am a lay man. I have read out the legal advice that I have been given that it should not fall to the courts to assess by reference to whether relevant considerations have been taken into account or irrelevant ones have been discounted. I said that earlier in my speech. I will write to the noble Baroness if the words that I have put before Parliament are not sufficient, but they are the words that I have on advice.
My Lords, I suspect that those words are sufficient for lawyers, but I think the Minister’s understanding of this might be as great as mine at the moment, so I will perhaps take advice between now and Report so that I fully understand the implications of what he saying—because I do not think he is able to give me further detail either.
My Lords, I seek to put into the record the points put to me by those who argue and maintain that this is necessary.
I will further address the specific question of bad faith that was raised. This touches on another area around “purported”. Bad faith was mentioned by Lord Reid in Anisminic as one of the ways in which a decision may be treated as a nullity. Case law suggests that, if an exercise of power by a public body is taken in bad faith, it is unlawful and will be quashed by the court. A decision is taken in bad faith if it is taken dishonestly or maliciously, although the courts have also equated bad faith with any deliberate improper purpose. Therein lies the challenge. Again, there is no suitable standard by which a court can judge what an “improper purpose” is. By what standards can the courts assess the legitimate or illegitimate purpose—
I want to clarify something. Clearly, one reason to include the word “purported” is to deal with the annulling of decisions that have begun to be put into effect. But the Minister referred earlier to the importance of protecting the political space for the particular decision involved in this legislation: the calling of an election. Is it his understanding that this is quite unlike any other exercise of executive power? If it is not, I shall be even more worried because it would bring about situations in which it is generally publicly accepted that the courts were right to annul, for example, a bad faith decision or a decision that has taken none of the processes that should go with it.
I heard what the noble and learned Lord, Lord Hope, and the noble Lord, Lord Beith, said and I was going to, and will, come on to this point. I am trying to put a considered position on the record for the benefit of the House between Committee and Report.
By what standards would a court assess the legitimate or illegitimate purpose, or for that matter the impropriety or propriety, of a Dissolution decision by a Prime Minister? Is a Government calling a snap election because that may be to their advantage in some way an improper purpose? Where is the line to be drawn? Ultimately, these are matters that political actors and the electorate, not, I respectfully suggest, judges and lawyers, are best placed to opine on.
Therefore, although bad faith is suitable in the context of behaviour seen as, for example, commercially unacceptable or a deliberate improper exercise of an ordinary discretion by a public authority, it is not a term that is apt in the context of the Dissolution and calling of Parliament. This is something that is inherently political or, in the words of Lord Justice Taylor, a matter of “high policy”. Dissolution is simply not amenable to these legal tests.
I turn to the second part—a further amendment to delete “limits or extent” from the clause. Again, I am grateful to my noble friend and the noble and learned Lord, Lord Hope, for meeting me prior to Committee to explain their thinking. I hope that what I am about to say reassures your Lordships’ Committee of the necessity and proportionality of Clause 3(c).
As with the inclusion of “purported”, the words “limits” and “extent” are also a necessary response to case law. Clause 3 is drafted in response to the judgment of the Supreme Court in Miller II; that is clear. By reference to certain constitutional principles, the Supreme Court established a legal limit on the power to prorogue Parliament and concluded that it had been exceeded. The point we want to make is that by framing the issue in Miller II as being about the limits of the power to prorogue Parliament, the court was able to put the arguments about non-justiciability to one side.
This may be an observation intended to help the Minister. Since the Bill was drafted, the Judicial Review and Courts Bill has been introduced. It contains an ouster clause, but one that is qualified as opposed to absolute, so the argument that this is being used as some form of basis for future ouster clauses seems to be defied by recent legislative practice.
I will come to that particular piece of legislation—definitely—since it has been raised. To complete what I was saying, the prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing its future and power into the hands of the people. We therefore believe that Clause 3 is appropriate and necessary, as judgment on the Government’s actions in such matters should be left solely to the electorate at the polling booth. I stress that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. The Judicial Review and Courts Bill, by way of contrast, contains an ouster clause to prevent the judicial review of decisions of the Upper Tribunal to refuse permission to appeal decisions of the First-Tier Tribunal.
I turn to the potential consequences of the amendments proposed. Deleting the wording or the clause would undoubtedly make the dissolution prerogative more susceptible to potential litigation. In effect, the decisions in Anisminic, Privacy International and Miller II potentially offer a route for a court, or more precisely a mischievous litigator, to derail an election process by taking the Government to court for calling an election for political imperatives with which they may disagree. The suggestion by noble Lords to delete “purported decisions” is equally disagreeable, for it would arguably provide litigators with a route to try to delay an election through a court case that could examine why an election has been called on one date rather than another. This, I think, we can all agree would be entirely undesirable.
The clause prevents political litigation about the timing of elections; litigation that I am sure your Lordships dread as much as I do and—I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood—I am sure much of the judiciary would dread. Let me emphasise what it is that we are trying to protect: it is nothing less than the legal certainty of our elections, which underpins our democracy. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn, as the noble Lord, Lord Faulks, said, into making decisions and weighing political imperatives that they are not equipped to do.
My Lords, I very much agree with the noble Lord, Lord Beith, that it has been a very good debate in light of the quality of the contributions that we have heard. I think it demonstrates the value of this House in being able to hear and rehearse these arguments.
I noticed yesterday when the noble Baroness, Lady Fookes, was presiding over our proceedings and the Minister was at the Dispatch Box that the Minister resigned. When I saw that the noble Baroness, Lady Fookes, was in the Chair this evening and the Minister was at the Dispatch Box I wondered for a moment whether something might happen.
My noble friend Lord True will not be surprised to hear that I do not agree with the argument that he has advanced. I retain my points in opening that this clause, particularly the use of the word purported, does not restore the status quo ante and is objectionable on principle. I have previously quoted the late Lord Simon of Glaisdale, who once opposed an amendment being brought forward for the avoidance of doubt on the grounds that there was no doubt to be avoided. I think we may be in a similar situation here. It is quite clear that the courts would not get involved in this, despite what has been claimed about the direction of case law recently. I do not think the issue really arises, in part for the reasons given by my noble friend Lord True. The problems he adumbrated a few moments ago would be reasons why the courts would stay completely clear of entertaining any case relating to this.
My objection is really on the grounds of principle. I do not think it appropriate to try to limit the power of the courts because one disagrees with particular decisions of theirs. It is objectionable on principle. The argument has been advanced that it sets a precedent; my noble friend Lord True said, “No, this does not set a precedent; it is a bespoke solution.” The problem, I fear, is that on future occasions, Governments will find a bespoke solution based on what is included in this Bill.
I maintain my position. I hear what the noble Lord, Lord Faulks, said about the purpose being to keep the courts out of politics, but my fear is that putting “purported” in is designed to keep the courts out of the law. So I am not persuaded by what my noble friend Lord True said. I am sure that we will come back to this on Report but, for the moment, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Amendments 5 and 6 not moved.
Clause 3 agreed.
Clause 4: Automatic dissolution of Parliament after five years
7: Clause 4, page 2, line 2, leave out “If it has not been dissolved earlier,”
Member’s explanatory statement
This is a probing amendment aimed at debating the expectation of how long a Parliament should be in normal circumstances.
My Lords, before I speak to Amendments 7 and 9, I want to say one or two things about the conditions for Report. Here we are, late at night. We have just listened to the Minister make what I think is the longest speech I have ever heard to sum up in Committee, at 30 minutes, and there are still some important issues to debate. I appreciate that the length of his speech reflected the complexity and importance of the issues in a constitutional Bill; that being the case, we will need the time on Report, with a full House and without the enforcement of unusually short speeches, to discuss them further.
The House of Commons went through the Committee, Report and Third Reading stages of this Bill in less than two hours—not good for a constitutional Bill. This House is going through its Committee stage in a few hours, stretching late into the night. I very much hope that, when we come to Report, the usual channels will ensure that we start in prime time and address the very important issues, particularly in Clauses 2 and 3, at length and with the House listening.
Amendments 7 and 9 are probing amendments on the balance between frequent elections and regular elections and, secondly, about what time of the year they should be held if possible. I speak as someone with experience of having fought two elections in one year, the first in February and the second in late October. Yesterday, I talked to a former Conservative MP who said that he remembered having the impression of being damp for an entire month during a winter election. It is good for democracy if we have elections on a regular basis and in good weather in the summer; that is why I suggest that, where possible, we should have elections in June.
It is also good because regular elections allow for a longer period to know when controlled expenditure should be imposed and when the Opposition are entitled to talk to the Civil Service to prepare for a potential change of government. The prime ministerial prerogative to jump elections when they think is most to their advantage—we have not yet talked about incumbency advantage—deprives the Opposition of the advantage to prepare properly for governance afterwards. Good governance matters to an effective constitutional democracy.
My Lords, I have found the debate fascinating today. I thank the Minister for the detailed responses he has given. I have not changed my mind on any of the issues, and I very much support the noble Lords, Lord Norton and Lord Butler, and my noble friend Lord Grocott on the issues they have raised.
I looked around the House and realised I was probably the only person present who fought and won both the elections in 1974. I have been sitting here thinking what the weather was like. I know what it was like. On 28 February, it was snowing as I was still knocking up at 9.30 pm out in the constituency; it was a very important period in my life. My noble friend Lady Taylor asked me during one of the debates whether I would have supported a quick election a month after I had won in 1974. I was physically whacked at that point. Therefore, I was quite content, because the message came through after we all assembled that there would have to be another election later in the year. But that is not really what I want to raise.
I am going to devalue the debate; I am sorry about that. In respect of the length of a Parliament, I accept that the Bill restores the status quo; that is probably the least important part of the Bill. But in my view that is no excuse not to put the issue on the record for the future. I am going to repeat much of what I said on Second Reading. Five years is not the norm for general elections in the UK, to start with. I am no academic and no expert, but I know in the past that there was a legal maximum of three years, and there was a period where there was a legal maximum of seven years. I think the maximum has been five years since the Parliament Act 1911, but five-year Parliaments are rare.
Going early is a clear advantage to the sitting Government. That is why, during the 1970s, 1980s and probably 1990s, I became convinced that I was in favour of a fixed-term Parliament, because I could see the manipulation that was going on and the temptation for Governments to manipulate the economy, basically. In some ways, I regret that the Fixed-term Parliaments Act 2011 failed. It was designed to fail, almost. I accept it is going, and I am not trying to bring it back, but there are some difficulties with going back to the status quo ante.
My Lords, I very much enjoyed the speech of my noble friend, for whom—I hope he will allow me to say—I have a great deal of affection. I am very interested in the list that he has and will use again; there is great merit in much of it.
I remember the weather on 28 February 1974, and it was shocking—appalling. I think my noble friend said that there was snow where he was; in the constituency where I was working it was solid rain, but I will say that the turnout improved compared to the previous election because it was an election that people thought mattered. The other thing about the weather, referred to by a noble Lord when he talked about the time of year that he would like elections to be held, is that I remember the weather in June 1970—it was gorgeous where I was. As I am about to tell the House on Friday, I cast my first vote in the election of June 1970. It was wonderful weather and it was an election called early by the then Prime Minister—and he lost. That was my first recollection of general elections: you can be very disappointed.
I hope my noble friend will not press his Amendment 8 to a vote, but I would find it difficult to join him if he did, because there is an element of flexibility in this. For more than 100 years, five years has been the standard length of a Parliament, and there is no reason to go beyond that. As he says, in his own experience—he has had a great deal of experience in another place in here—the period between elections averaged about four years. Therefore, without legislating, I think you will find that if you keep the period of five years, in practice events will unfold in such a way as to make it an average of about four years over a period of many Parliaments.
My Lords, I rise briefly, if only to remind your Lordships’ House that the Labour Chief Whip, the noble Lord, Lord Kennedy, and I were not able to vote in 1974, but that is probably not a good reason for rising to the Dispatch Box at this time of night.
I am grateful to my noble friend Lord Rooker for raising a number of issues that have concerned this House as a whole. I think it was my noble friend Lord Coaker who, during the debate on the police Bill last Monday, reminded the House that we were discussing measures to curtail protests that even Margaret Thatcher would not have contemplated during the worst times—as she would have seen it—of the miners’ strikes. We have moved a long way in what we think of as acceptable.
I point out that in 1838 the Chartists had six demands. All have been met, and we have gone beyond on some, such as the universal male suffrage that they wanted—we have improved on that—except for the one demand of theirs that has never been met, which is for annual elections. I am not making that case.
I thank noble Lords; I am very grateful to the noble Lords, Lord Wallace of Saltaire and Lord Rooker, for tabling these amendments, which have initiated what has been an interesting short debate, if not necessarily always on the amendments. In 1974, I remember pushing a pushchair and delivering literature, though not necessarily for the Labour Party of the noble Lord, Lord Rooker.
If noble Lords do not mind, I will stick to the amendments and not answer any further questions. The Bill makes express provision for Parliament to automatically dissolve five years after it has first met. This is the most straightforward way to calculate the five-year term. It also remains the case that your Lordships’ House has an absolute veto on legislation to extend the life of any Parliament.
I first turn to the question of the length of parliamentary terms. I have heard the argument for a four-year term, and I heard from the noble Viscount, Lord Stansgate, that he does not necessarily agree with the noble Lord, Lord Rooker, on this. However, the Government remain of the very strong view that five years is the right maximum length for any Parliament.
A maximum five-year term allows the Government time to undertake and implement their programme without having to start any electioneering. This is an important issue that I do not think the noble Lord, Lord Rooker, took into account as he did not mention it. Any Government have to deliver on the programme that is in their manifesto. Five years is a maximum period which I and the Government believe balances sensible, long-term government with ensuring that a Government and Parliament are accountable to the electorate in a timely manner.
In fact, we can that see parliamentary terms have developed their own effective and flexible rhythm. 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 for political necessity rather than choice, to put a policy or political question to the electorate or to resolve a political crisis. Moreover, shorter maximum terms invariably mean earlier speculation about whether a Parliament will see out its full term. This speculation does not serve Parliament, the public or businesses well. The former Cabinet Secretary noted in evidence at PACAC that longer-term Parliaments and longer-term tenures for both senior civil servants and Ministers would all be very good for Governments, who are increasingly having to face up to very long-term issues, as we have seen recently.
10: Clause 6, page 2, line 13, leave out subsection (3) and insert—
“(3) This Act comes into force when a revised Dissolution Principles document has been laid before Parliament and—(a) the revised Dissolution Principles document has been approved by a resolution of the House of Commons; and(b) the House of Lords has debated a motion to take note of the revised Dissolution Principles document. (3A) The Dissolution Principles document under subsection (3) must be revised to refer to a “request” from the Prime Minister to the Sovereign to dissolve Parliament.”Member’s explanatory statement
This amendment seeks to implement a recommendation from the Joint Committee on the Fixed-term Parliaments Act to revise the Dissolution Principles document.
My Lords, the purpose of the two amendments in this group is to draw attention to recommendations made in the Joint Committee report and in a number of other parliamentary reports to which the Government have responded weakly and inadequately.
Paragraph 15 of the Joint Committee report states:
“The move to reduce executive dominance in key parts of the UK constitutional arrangements … was accompanied by a desire to clarify and make public the understanding of constitutional conventions.”
It then references the White Paper, The Governance of Britain, of 2007, and the drafting of the Cabinet Manual. The Constitution Committee’s report, Revision of the Cabinet Manual, published last July, stated at paragraph 35:
“We recommend that a draft update of the Cabinet Manual should be produced as soon as possible, and not later than 12 months from the date of this report.”
Paragraph 44 states:
“We note the open and constructive engagement which took place between the then Government and parliamentary committees on the first draft of the Cabinet Manual in 2010–11.”
Paragraph 45 goes on:
“We recommend that future drafts, including draft individual chapters, should be shared with our Committee and the relevant committee in the House of Commons for comment. This can help to achieve consensus”—
a word the Government do not seem fully to understand—
“on the text.”
It added that the next draft should commit to regular revision at the beginning of each Parliament—a summary of conventions, so that there is clarity and these things are understood.
On Dissolution principles, the Joint Committee at paragraphs 227 and 228 says that
“legislation—by definition—does not create or restore conventions … there needs to be a political process to identify, and to articulate, what those conventions are … The overwhelming consensus of those who gave evidence to the Committee is that the Dissolution Principles document falls short.”
My Lords, I very much agree with the noble Lord about the need for a revision of the Cabinet Manual.It is long overdue. I see the point of his amendment is to try to spur that, so I put on record the importance of bringing it up to date and incorporating quite a lot of material that needs putting in.
I am a bit wary of the noble Lord’s amendments, particularly Amendment 10, because he is trying to get Parliament to approve something which is really in the gift of government. The Dissolution Principles are those which would govern the Prime Minister in requesting a Dissolution, and that really is a matter for government and the principles that will govern that. It might be laid before Parliament, but there really should not be a requirement for it to be approved by a resolution of the House of Commons.
There should be an update of the Cabinet Manual,but it is important to remember that the Cabinet Manual is not something that needs to be endorsed by Parliament. It is distinct from Parliament and draws together the provisions, as we understand them, and the conventions, but it is a manual for government to which we can have recourse. Yes, there should be dialogue with committees and consultations so that we can feed into that, but at the end of the day it is within the remit of the government. It is a government document, not one to be endorsed by Parliament.
My Lords, I agree with the noble Lord, Lord Norton, that it does not have to be agreed by Parliament, but the Cabinet Manualis a really interesting document. I remember when it came out; other noble Lords might remember it as well. I believe it was triggered and inspired by the then Government and the then Cabinet Secretary, who is a Member of this House. It is a pity that he is not here because he could play a big part in the short debate that we are having on this question.
For those who have never seen it, it was a fascinating document because it encapsulated the conventions that had existed for many years but had never been codified in any way. It was very useful. I feel very sorry, incidentally, that, for a debate such as this, the noble Lord, Lord Hennessy of Nympsfield, is not here to take part. Our debates would be hugely enriched by having him here; of course, he coined one of the phrases of recent times, the “good chaps theory of government”. Many of the things that we have been discussing have illustrated ways in which people feel that we are departing from that theory and we are discovering that our constitution is capable of being abused. I do not want to go back over history, but we would not have had the discussion that we had about Clause 3 and references to the Miller case without that being an obvious example, and there are others.
Of course, this will not be pressed to a Division tonight, but a great deal more attention should be paid to the Cabinet Manual. I am rather unclear as to how it could be revised and who would be involved in doing it. A noble Lord said earlier that we were talking about where power lies in our constitution. When I visited a school recently, I recommended that the students read the Cabinet Manual, or at least have it to hand, because if they wanted to understand our constitution, that was an essential part of it. The sixth-formers looked at me rather blankly and I do not blame them in the slightest. That does not mean to say that I was wrong, because it still is very important. I am not sure how it could be updated, but it would be a very good thing. It is rather like when Gandhi was asked what he thought of civilisation in Britain and he replied, “Well, I think it would be a very good thing.”
I just want to say how much I enjoyed my noble friend’s speech. I very much agree with his points and those of the noble Lord, Lord Norton of Louth. The Cabinet Manual is an important document. It is a government document, not a parliamentary one, but we need to ensure that it is used properly and respected. That is a very important point to make.
My Lords, I think that we have had a slightly longer and more interesting discussion on this than we anticipated at the start. The noble Lord, Lord Wallace, made a very valid point, not least because we have spoken a lot tonight about the normal conventions and practices of parliamentary politics. It remains to be seen whether the actions of this Government and this Prime Minister, in ignoring so many of them, will become the norm or whether, once he has gone, whenever that might be—it might be sooner than he anticipates—we will return to the normal way of abiding by the conventions.
I wonder whether the Cabinet Manualwill be amended to say what happens or what should happen. I was amused earlier today when I read the section on the principles of collective Cabinet government. Paragraph 4.2 says:
“The Cabinet system of government is based on the principle of collective responsibility. All government ministers are bound by the collective decisions of Cabinet”,
which seems a remote concept at the moment, but perhaps we will return to those days as well.
Even though it is not within the power of Parliament to say that these documents should be updated, as with the Ministerial Code—the introduction to which now seems so dated and irrelevant in many ways because what is referred to in it has largely passed—there should be this regular updating. If we are to have a dynamic Parliament and a dynamic constitution, we need to update as appropriate.
My Lords, the noble Lord, Lord Wallace, has frequently looked forward to that fabled day when the Liberal Democrats will again have, as he sees it, a balance of power in government. Perhaps a manual could be published on what would be the likely behaviour of the Liberal Democrats in the event they had such constitutional authority.
Jokes apart, I am grateful to the noble Lord for raising these points. They are two fundamentally important documents, which, as my noble friend Lord Norton of Louth and the noble Lord, Lord Kennedy, pointed out, are government documents. We published a Dissolution Principles document because we are aware that principles can operate effectively only when they are commonly understood and, yes, when there is tacit agreement that they should be respected, irrespective of the particular political challenges and circumstances of the day. There has been substantial discussion and scrutiny of the principles, including by the Joint Committee chaired by my noble friend Lord McLoughlin, by PACAC in the other place, and in dialogue back and forth.
As others have said, Amendment 10 proposes that there should be a process for Parliament to scrutinise a restatement of the principles in the form of a vote in both Houses, which has the difficulties that my noble friend Lord Norton of Louth and others referred to. The Government have reservations that this would be a step towards a codification of principles and conventions, just as we saw that the 2011 Act, which we have discussed, was not necessarily helpful because of the need for flexibility. In fact, Lord Sumption recognised in principle the challenges of codification when he gave evidence to the Joint Committee. He argued:
“One should be careful not to start codifying conventions, because their practical value is that they represent experience and practice … what is required to make Parliament work is not necessarily the same today as it was half a century ago.”
That will be so in the future. The Government believe that a careful balance needs to be struck between ensuring that there is a tacit agreement that these principles should be upheld—I acknowledge the duty to be mindful of the views of people inside and outside politics—and leaving space for these conventions to move in line with the political context.
My Lords, the question really is: where are these documents and when are they going to be published? There were some very critical comments from various committees of both Houses, including the Joint Committee, about the lack of quality in what is currently provided in the Dissolution Principles and about the outdatedness of the Cabinet Manual, particularly the part of it that deals with Government formation.
There may be an overall majority for one party at the next election, which would be easier, but we need to future-proof the Bill as we take it through and to prepare for other eventualities. The Joint Committee marks that we are more likely to have non-majoritarian outcomes from elections in the coming years than we have had in the last 50. Perhaps the Minister will be prepared to talk between now and Report about being able to provide some statement on Report about a rather more definite timespan than “in due course”, which, as we know, means “kicked into the long grass for the next year or two”.
We need to have, as far as we can, some shared assumptions, some cross-party agreement, about these crucial conventions in our constitution. That requires trust. Trust is currently in very short supply; trust in this Government and this Prime Minister, if the opinion polls are correct, is currently going through the floor. Where trust is lacking, one needs written rules. Where written rules are challenged, we end up requiring statute. Yes, we would perhaps prefer the flexibility of shared assumptions, but in that case we need to talk about what they are and make sure that we all share similar assumptions, before we slide into a situation that could be another critical outcome or contested set of procedures around the next election.
I look forward to talking further with the Minister, and I may or may not wish to bring these amendments back in some form on Report. For the moment, I am happy to beg leave to withdraw the amendment, and I wish all your Lordships a very pleasant evening.
Amendment 10 withdrawn.
Amendment 11 not moved.
Clause 6 agreed.
Schedule agreed.
House resumed.
Bill reported without amendment.
House adjourned at 10.47 pm.
There is an argument that the power to dissolve Parliament should not be within the sovereign’s gift. There is an argument that it should be. I believe it important that a Prime Minister does not have the capacity in all circumstances to determine the date of a general election. This, however, is not the occasion for that argument. If the Bill is to restore the status quo ante, it is not a question of whether the power should reside with the sovereign but, rather, a case of ensuring that the Bill puts it beyond doubt that it does so.
This amendment would, therefore, put on the face of the Bill that the prerogative to dissolve Parliament and call a new Parliament is a personal prerogative. The motivation for it stems from the Government’s initial list of Dissolution principles, referring to the sovereign acting on advice. As the Joint Committee recommended:
“If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to ‘advice’ on dissolution with ‘requests’ for dissolution since the Monarch must accept Prime Ministerial advice.”
The Government took this on board; the Explanatory Notes to this Bill refer to the sovereign granting Dissolution
“on the request of the Prime Minister.”
However, it is worth quoting what the Government said in their response to the Joint Committee’s report:
“In repealing the FTPA, we are returning to a position whereby the power to dissolve Parliament is exercised solely by the Sovereign as a ‘personal prerogative power’. We are grateful to the Committee for its scrutiny of how this is described in the dissolution principles paper, and agree that the better description is that the Prime Minister ‘requests’ a dissolution.”
The wording rings an alarm bell. “Requests” is not a “better description”. It is a correct statement of the constitutional position that pertained prior to the enactment of the Fixed-term Parliaments Act in September 2011. To say that “requests” is a “better description” than “advice” is to convey that it is simply a choice of words to convey the same thing. If the Government accept that the power to dissolve is a “personal prerogative power”, it is not a power exercised on advice. The wording of the Government’s response does not instil confidence in the grasp of Ministers and officials of the principles governing our constitutional arrangements.
Given that, I believe that there is a case for putting it beyond doubt that it is a personal prerogative power. At the very least, this debate provides an opportunity for the Minister to put it on the record at the Dispatch Box that it is a personal prerogative power. However, I see no reason why it should not be in the Bill. The Government are committed to restoring the position as it stood prior to the Fixed-term Parliaments Act taking effect. The amendment does not challenge that; rather, it would ensure that it is achieved. I beg to move.
There are ways of addressing this issue but they do not seem likely to find their way into the legislation as it will eventually be passed. We will discuss Motions of the House of Commons later. They would provide some restraint on a Prime Minister but not very much. Considering that this might not find its way into the final legislation, it is even more important that we protect the ability of the sovereign to decline to give a Dissolution in exceptional circumstances.
Of course, a power like that is more important for what happens behind the scenes than for any possibility that it would be fully exercised and the sovereign would actually have to do it. We are talking about a situation in which the Prime Minister would be advised that it would be unhelpful, inappropriate and potentially damaging to the position of the monarchy to raise the issue at this precise point and, if it was going to be raised, it would be much better to raise it later or at a better moment. Those are the kinds of conversations that surround the few personal prerogative powers that still exist.
The system depends on something that is sadly lacking at the moment, which is a great deal of trust. The Public Administration and Constitutional Affairs Committee in the Commons said that
“some mix of statute and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.”
That has not been happening very much lately, so we should look at this with some care.
The noble Lord, Lord Norton of Louth, has done the right thing by tabling the amendment. I am not entirely persuaded that it makes a difference because my view is that it is a personal prerogative and, unless Parliament legislates it away, it is still there. However, first, it is highly desirable that it becomes clear that the Government understand the position that it is a request, not advice; and, secondly, if there is a general feeling in the House that it needs to be included in the Bill, we can do so. If not, we simply recognise that this is the position and that it has not been changed if we revert to the status quo ante.
Turning specifically to Dissolution, the Government have recognised in response to the Joint Committee, for whose work we are extremely grateful, that this personal prerogative is exercised by the sovereign on the request of the Prime Minister, not on their advice. I am pleased to reassure your Lordships that the Government fully accept this accurate characterisation and are grateful for the Joint Committee’s considered conclusions on that point and the submissions made in the debate.
I hope that very clear statement on the record will gratify and ease the concerns of my noble friend Lord Norton and others. I therefore thank him again for tabling the amendment as it has given the Government an opportunity to clarify this point in Parliament, and given this Committee the opportunity to debate this aspect of the constitution. I hope my statement has provided sufficient clarity on the nature of the Dissolution prerogative so that my noble friend may feel able to withdraw his amendment.
As I said in opening, I was keen to get the Minister to put on record at the Dispatch Box that it is a personal prerogative power. Therefore, that is a necessary condition. I will need to reflect on whether it is a sufficient one, but for the moment I beg leave to withdraw the amendment.
I ask the Minister in general terms for an assurance that a revised edition of the Cabinet Manual, which I hope is now well under way, will clarify that there is now a well-established convention—tried and tested, even—over the last century that Prorogation is now a prerogative power available for use only in marking the short recess period between parliamentary Sessions, and that this should not be used as a prelude to a request for Dissolution that has not been communicated to nor approved by Parliament. Nor should it be used, as it has not been for the past century, as a means of avoiding parliamentary scrutiny, proposals or decisions over any extended period.
Perhaps I may be permitted to say a little about the broader issues behind this debate since my amendment is linked to the broader amendment which follows. The desirability of reaching as wide a consensus as possible has been stated in a range of reports relating to this Bill. The 2004 committee report said that the case for the reform of ministerial executive power is “unanswerable”. Indeed, opposition Conservatives including William Hague gave evidence to that committee in support of further limits on executive power. Perhaps the young Nicholas True wrote some of the evidence which he gave; I do not know.
The Minister’s response to the Constitution Committee last December said, rather more weakly, I thought:
“Political consensus is of course valuable when possible”
without, so far as I am aware, promoting any active cross-party consultations on the constitutional issue. I regret that. This is a major constitutional Bill; therefore there needs to be as much consensus as we can achieve.
The fact is that, week by week, we begin to approach the idea that this Government might not necessarily be in power beyond the next election, which could conceivably produce a Parliament in which no single party has a majority. We are concerned not just with addressing the flaws in the 2011 Act but with future-proofing, as various committees have talked about, so that we are prepared for a situation that we might face with the outcome of the next election.
In answer to one or two of the matters raised in the noble Lord’s Amendment 1, whether the theory is that the Prime Minister gives Her Majesty—the monarch, rather—advice or a request, it seems to me, and here I agree with the noble Lord, Lord Grocott, absolutely impossible to understand that the monarch of the day would be prepared to enter into tempestuous political controversy, threatening the very existence of the monarchy, if the prime ministerial advice or request was rejected. It seems inconceivable. It might have been possible when the Lascelles letter was written to the Times in 1950. It was never put to the test; it never arose. In my view, it is inconceivable. If my view is right, here in the 21st century, the current legislative proposal in this Bill is that the decision whether Parliament should be dissolved would be vested exclusively in the Prime Minister of the day. Today, in a modern democracy, an uncurbed power to have Parliament dissolved—it is rather astonishing to think about it.
Of course, as was said in an earlier debate, it is perfectly true that the Prime Minister, in making his or her decision, has to be mindful of the possible adverse reaction of the electorate if they choose to think that his or her idea of having an election is a bad one. Of course it is, but whether the public do or not, general elections are about the next five years. The election arrives and a decision is made on the health service, the education system, the Armed Forces. It is not just about this single decision made by the Prime Minister. So I go this far with the argument against me: okay, the Prime Minister would take into account possible adverse reactions from the electorate if the electorate do not want an election. But this is not a principle; it is simply a matter of prime ministerial judgment. It is not constitutional control; it is the Prime Minister making a purely political decision: “Where does the balance of advantage to me and my party lie?”
It will also be suggested—it has been suggested to me and I have read it pretty frequently—that recent events in the Commons in the context of Brexit underline the need for this prime ministerial power. The Brexit debates were hardly a model of clarity but let us remember what they reflected: a huge parliamentary and, indeed, national divide, splitting parliamentary parties themselves, in the context of the constitutional aberration of a referendum, with the Dissolution process itself governed by the requirement for a two-thirds majority rather than a simple majority, which, as I said a moment ago, altered parliamentary processes and, indeed, strategies. In constitutional terms, the Brexit shambles demonstrated the folly of a two-thirds majority being superimposed on the result of a referendum that was not welcome to a majority in the House of Commons. That is not a sufficient justification for reviving or creating—it does not matter what you call it—this unrestricted power over the length of the life of the Parliament for the Prime Minister of the day.
These arguments overlook something so obvious that it is not merely in danger of being overlooked, it is being overlooked. I am not going to let it be overlooked. The Dissolution of Parliament eradicates the choice made by millions of citizens when they cast their votes at the previous election and chose who would represent them in the House of Commons. That sounds over- dramatic, but I invite your Lordships to think about it, because that is what it means.
To ensure continuing democratic involvement, to ensure that we live in a democracy and to enable us all to reflect on where power should lie, of course there has to be a finite time for each Parliament. That is a necessity in a democracy. But when the Dissolution is not a consequence of the effluxion of time but is simply based on a unilateral prime ministerial decision, the votes at the earlier general election are wiped out. The earlier democratic decision is revoked. One vote trumps millions of votes. To me, in a democracy there is a certain level of absurdity about such a principle. If this Bill passes unamended, the effect of those votes will be revoked by—and I am choosing a word used recently by the Delegated Legislation Committee—diktat. If you do not like “diktat”, call it decree, call it command, call it whim, call it fancy. I do not mind what you call it. but it is one person’s decision—unconstrained and unrestricted—by an assessment of political advantage.
Surely in the 21st century the exercise of power to change and to ditch the democratic vote should at least be subject to a modicum of control. The amendment from the noble Lord, Lord Norton, offered the possible control of the monarch and, for the reasons I have given, I respectfully suggest that that is not sufficient. Surely we should rest some responsibility on the House of Commons of the day—the elected representatives. That is what the Commons is there to do: to control and to keep an eye on the Executive and to keep a particular eye on the accreting power of the Prime Minister.
This is something that we cannot just accept on the basis that a prerogative power is being revived. This is going to be a statute.
Amendment 3 also enables that to happen. That is not the issue.
Secondly, the Joint Committee put forward the proposition that constitutional change should secure
“as wide a degree of cross-party agreement as possible”.
My personal view is that Amendment 3 would enable that to happen. It is supported by parties in this House. Although it will not commend itself to my noble friends on these Benches, it would be supported by the Scottish nationalists, who are not represented here; they said so in the other place. However, I was rather disappointed that when the Government responded to the Joint Committee, they did not address that point; they did not say that they were looking to secure as wide a degree of cross-party support as possible.
What we have to do, which the Joint Committee asked for, is expose the Bill to the fullest possible scrutiny. Looking at the debate in the other place, I do not think that this issue, which seems central, received that, so I am pleased that we are giving it an opportunity to be thought about very carefully.
I recall that the Fixed-term Parliaments Act and its implementation fell down on the two-thirds majority. We should remember that there were three occasions in 2019 on which a Motion was presented in the other place and secured a simple majority but not a two-thirds majority. That immediately begs the question: was that the extent of the problem? Certainly, a simple majority enables us to start to think about how crises should be resolved and by whom, but it is that fundamental point about “by whom” that I come back to. The noble and learned Lord, Lord Judge, put it extremely well, but I shall put it in my own terms.
If a Prime Minister were requesting a Dissolution of Parliament and calling an election in circumstances where that would not be supported by a majority in the House of Commons, on what authority would he or she be doing that? If people cannot tell me what that authority is, we should put into the statute now that a Prime Minister should act with such authority. In all normal circumstances, based on our past experience, a Prime Minister will command a majority in the House of Commons and be able to secure a simple majority for such a Motion, and they would be able to have a Dissolution of Parliament at a time of his or her choosing.
However, I do not think that we can turn the clock back to past conventions and assume that they will be readily or easily applied to future circumstances. For example, coalitions have happened and may do so again, and they may be quite complicated. If we were in circumstances where a Prime Minister did not have a majority based on his or her own party and we were in the relatively early stages of a Parliament, by what authority would they circumvent the fact that an alternative Government was available?
“The Fixed-term Parliaments Act very clearly fulfilled its immediate political purpose. Not only did the Parliament last the full term, so did the Coalition Government that was formed at the beginning of it.”
I simply say to the other parties that they should be careful what they wish for. The time may come when they seek to form a Government with others and both sides need some guarantee that the Government will not be torpedoed early in its existence.
Of course, the Government eventually got their Early Parliamentary General Election Act through and, by then, the Labour Party had decided to support it. But we will never know whether it would have been possible for the Government to have reached the simple majorities required in these amendments at an earlier stage—but it is entirely possible that they would not have done so. A number of my party’s MPs had lost the Conservative Whip during those unhappy days and would not, therefore, have been able to stand as Conservative candidates if an election had been called. Would the turkeys really have voted for Christmas? I think not.
Many noble Lords in this House might choose to forget the result of the 2019 election because it was not to their taste, but I remind them that it was a resounding thumbs up for the Government’s Brexit policies, which Parliament was seeking to harass and destroy at the time. These amendments could well have prevented that decisive view of the country from being expressed at the time, and we would have been the poorer for it.
Minority Governments with small majorities but fractious Back-Benchers capable of frustrating a vote on a general election are not figments of my imagination; they are a real part of our political system. I say this especially to the Benches opposite because, if they have any hopes of again forming a Government, they need to reflect on whether a zombie Parliament could affect them as well. They might also reflect on whether the minority Wilson Government in 1974, which the noble Lord, Lord Beith, referred to in the debate on the earlier group of amendments, would also have resulted in an election. Is it absolutely clear that the Wilson minority Government could have called the second election in that year if he had had to cope with what this amendment would have landed him with? These amendments could be a very dangerous part of our constitutional arrangements and should be rejected.
In any event, surely, the constitutional position is that citizens vote for someone to represent them in Parliament, not for a Prime Minister. In my political lifetime, there have been five occasions on which the Prime Minister has changed during the lifetime of a Parliament without triggering a new election in any case. So voters have ended up with a Prime Minister who was not a prime ministerial candidate at the previous election and who has no personal, direct mandate from the electorate. MPs, by contrast, will be held to account by their electorates if they trigger an early election and so, in my view, the decision on whether to do so should rest with them.
I was going to respond to the noble Baroness in terms of what happened in 2019, but the noble Lord, Lord Grocott, has done that extremely comprehensively. I would just say, going back to 1974, that the same arguments apply. Does anyone believe that in the autumn of 1974, if the House of Commons had been asked whether there should be an election, Harold Wilson would have been denied one? The noble Lord, Lord Grocott, gave the reasons. Oppositions are there to oppose, and they do not vote to keep their opponents in office—it is in the name. The key question which the noble Lord, Lord Lansley, raised is by what authority does a Prime Minister decide, uniquely, when an election should be held, particularly, as I said earlier, if that Prime Minister was not the candidate for Prime Minister at the preceding general election? In my view, authority on when an election should be held should rest with the people who have been elected to run a Parliament. That is why I support this amendment.
I submit to your Lordships that we had in existence for many years a system under which there was no vote in the House of Commons at all. As far as I remember, apart from the Wilson year there was really no difficulty about the responsibility of calling an election. You just have to think what a responsibility the person who calls an election has. We had a slight example of that not long ago, when an election was called and the result was that the Prime Minister had a smaller majority—indeed, no majority at all—having started off with a majority. I do not think for a minute that the Prime Minister thought that was going to happen—it would be extraordinary if she did—but it did happen, and that is the responsibility of the Prime Minister.
I find it very difficult to see how that can be properly shared with anybody else. He or she has to take the responsibility to consult the public—the people. It is an executive call to start a general election, and surely the responsibility for doing that should be on the Prime Minister and not on the House of Commons. All Members of the House of Commons will have some kind of interest in what is going to happen. It does not necessarily follow that they want the good of the general population, although it might be disguised in that way. For example, I could see that as people age—as I certainly am—they may feel that they do not want to continue, whereas others are very anxious to keep their position. One has to have that kind of consideration in mind.
I have great difficulty in disagreeing with the noble and learned Lord, Lord Judge, with whom I have agreed many times in the past, but this is a fundamental point. My principal reason for thinking that this is not an appropriate amendment is that the responsibility of the Houses of Parliament is primarily to legislate and to keep account of the Government, but not to control an executive act except by legislating. This is not in any way a legislation; it is just a decision in the House of Commons that has no effect except as an executive decision.
I submit that the first problem is that this is not the simple solution that some noble Lords have implied. In fact, a vote in the other place on Dissolution would be complicated and challenging to effect. To highlight one area of difficulty, what will be the likely consequences for constitutional conventions, including the conventions on confidence? Some of your Lordships will recall that this was a question that very much exercised this House in the debates on the 2011 Act.
The amendment would undoubtedly repeat the mistakes of the 2011 Act: it would undermine the fundamental conventions on confidence—by virtue of which a Government hold office—by divorcing them from practical effect and, even worse, making the consequences of a loss of a confidence vote ambiguous. The amendment is dangerously silent on the status and practice of the conventions associated with confidence. That silence is unclear and ambiguous, and could undoubtedly lead to fractious debate, uncertainty and delay at a time when timely action might be needed. In particular, in the event that a Prime Minister lost a vote on a Motion designated as a matter of confidence, they would not be able to request a Dissolution without the prior approval of the House.
It is unclear, therefore, how the amendment would interact with conventions on confidence in practice. Does it mean that the Prime Minister would be expected to table the Motion provided for in this amendment straight away, or would they be able to try to regain the confidence of the House? Would some other Member of the House be able to table the Motion? What happens after the loss of a vote on confidence? We saw with the 2011 Act, which tried to codify what would happen after the loss of a vote of no confidence, that efforts to partially prescribe how essentially political processes are played out leads only to ambiguity and uncertainty.
With respect, rather than introducing a process that would arguably preclude the Prime Minister reflecting on the view of the House after a defeat on a designated issue, the amendment does not provide a clear and unambiguous process, yet it also serves to restrict the ability to flexibly respond. The amendment is silent on these fundamental points of principle and practical implementation and therefore risks us repeating the mistakes of the 2011 Act. I agree with my noble friend Lady Stowell of Beeston: lack of clarity is risky.
Your Lordships have suggested that a simple majority is the silver bullet, preventing deadlock and stasis. However, I submit that, with the benefit of history—from not so long ago; we do not have to have grey hair to have lived through the disastrous Parliament of 2017-19—we can see that the real risk of a vote, even a simple majority one, as I will argue shortly, is a repetition of the deadlock and paralysis of the 2017-19 Parliament.
I agree with the submission of the majority that this would be
“counter to the public interest.”
In short, far from making things simple, the very thing that the noble Lord, Lord Grocott, said he wished to achieve, it could still lead to stasis.
The most detrimental aspect of a vote in the other place, and potentially allowing that to be used to frustrate an election, is that general elections are sometimes called when the existing Parliament has proven to be unviable. The statutory requirement for a vote in the other place would only compound that problem, and in such a case, as we have discussed or I have submitted, with part of his own party potentially voting against a Prime Minister—circumstances that the noble Lord, Lord Butler, suggested could happen—even a simple majority would be too high.
Past Governments, and potentially future Governments, have often worked within turbulent political and economic contexts, trying to deliver ambitious and significant agendas and sometimes with small majorities. It is in these circumstances, above all, that the flexibility of the system which the two major parties in this country pledged to revive and which we are seeking to revive through this Bill matters most. In these scenarios, a Prime Minister should be able to be decisive and request a Dissolution to try to resolve a parliamentary stalemate or test their mandate to govern.
My noble friend Lord Lansley asked by what authority a Prime Minister might act. I think my noble friend and learned friend Lord Mackay of Clashfern answered that. The Prime Minister, acting as the Sovereign’s principal adviser, is able to request a Dissolution by virtue of an ability to command the confidence of the other place. In the case of a minority Government or a confused House of Commons, the agreement to a Dissolution might be difficult to secure—as it proved three times in 2019. I submit that not many new MPs—some noble Lords have been slightly disrespectful of what might be the motives of people in another place—would rush to face the electorate in a matter of months if given the chance to have a say.
It is by no means certain, as noble Lords have suggested, that past minority Governments would have secured opposition support for an election had this system operated. I agree with the powerful interventions of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes on this point. Some noble Lords seem to forget the experience of 2017-19. A vote in the House of Commons might have meant other minority Governments and similar ones having to limp on like that one, unable to deliver their priorities. The revival of the prerogative power to dissolve Parliament is, in our submission, the most effective way for a Government to be permitted to put important questions to the people, resolve stasis and secure the mandate to govern effectively. It is a system of constitutional practice that has worked; I urge noble Lords not to seek to add complexity where previously, before 2011, there was none.
I must address briefly the amendment in the name of the noble Lord, Lord Wallace of Saltaire. It would go further in the development of a statutory process by making express provision that, when Parliament stands prorogued, a Dissolution cannot be sought. The amendment seeks to set a condition that a Parliament must be “recalled”—or rather summoned—for the purpose of the passage of a Dissolution approval Motion.
Prior to the Dissolution of Parliament, a short Prorogation may be necessary to allow the swift conclusion of business; of course, it should be as short as possible. This has happened on several occasions, most recently in 1992, 1997, 2005 and 2010. In 2010, Parliament was prorogued from Thursday 8 April until Monday 12 April, whereupon Dissolution was proclaimed. Among other things, this enabled the general election to take place on a Thursday, as has been usual practice. Although the concepts of Prorogation and Dissolution may be superficially similar in that they are both prerogative acts, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, they are distinct. Prorogation is the formal ending of a Session; Dissolution provides an opportunity for the electorate to give their verdict.
I have heard the arguments in favour of a Commons vote on this matter in the circumstance of a Prorogation also but, respectfully, the Government believe that this is undesirable and risks repeating some of the worst aspects of the 2011 Act. In our submission, providing for the requirement that a prorogued Parliament must be summoned serves only to build in additional delay and undermine the ability of the Prime Minister to act decisively. The risk that the noble Lord alluded to in seeking to strengthen the role of the Commons raises that fundamental question: who should be the ultimate judge on the Government’s decision to call an election? As many noble Lords have said, the answer is clear: the electorate. As the Joint Committee said, they are
“the ultimate authority in a democratic system”.
Like my noble friend Lord Sherbourne of Didsbury, I simply do not understand the idea of a rogue or outrageous Dissolution because it is the fundamental act of humility by the Executive to place their future in the hands of the electorate, who should be the final arbiter of whether a Prime Minister has called an election legitimately. I acquit the noble Lord, Lord Wallace of Saltaire, of this but I have found it strange to hear noble Lords say that they want to repeal the FTPA but return to some of the worst aspects of it. I think that there is a further complication in what the noble Lord suggested.
I am sure that the House wishes to move on. We will have further opportunities in the debate on the next group to discuss sovereignty and controls on Parliament, but I ought to say in preamble that noble Lords have suggested that a Commons vote increases parliamentary accountability and acts as a check on the Executive. It is not our view that the prerogative system diminishes parliamentary sovereignty and the Executive’s accountability to Parliament. Rather, by reviving the prerogative powers, we are restoring the link between confidence and Dissolution. If a Prime Minister loses the confidence of the elected House, they can either resign, seek a Dissolution or seek to recover the confidence of the House. The other place has the nuclear option of a Motion of no confidence and a plethora of means of holding the Executive to account. It does not require further prescriptive statutory measures to do so effectively.
Notwithstanding the gentle chiding of the noble Lord, Lord Newby—I am grateful to him for taking the time, or wasting it as he seemed to argue, to read the letter that I sent to noble Lords—I ask your Lordships to consider carefully the potential, unknown, long-term consequences of this amendment, which flow out of some of the problems that we have discussed in this debate. A vote in the Commons would disrupt the equilibrium in finely balanced, historical constitutional arrangements and could have an impact on the role of the sovereign. In reviving the prerogative power to dissolve Parliament, the Government have clearly acknowledged that this power is exercised by the sovereign on the request of the Prime Minister, as we discussed in the first group.
“an opportunity to Parliament to be absolutely clear on whether it thinks that such things should be outside the jurisdiction of the courts.”
She went on to say that
“the check on the exercise of power is for the electorate to decide on rather than the courts.”—[Official Report, Commons, 13/9/21; col. 723.]
“Purported” decisions might conflict with the rule of law. The Minister in the other place was effectively saying that it was not for the courts to determine whether Ministers were acting beyond their powers. I do not think that the letter from my noble friend Lord True really engaged with that point.
It is important to stress that the clause should not be viewed as an attempt to restrict the courts from encroaching on the position of Parliament. That might be how Ministers wish to convey it, but the senior courts have been exercised by the use of powers by Ministers, not by Parliament. Indeed, the most recent high-profile cases that appear to have motivated the Government to use this wording were ones in which the courts sought to protect, not undermine, the position of Parliament in relation to the Executive. In this clause, the Government seek to confer on Ministers wide-ranging powers in a way that I consider dangerous.
The wording of the clause might also be counterproductive. There is no evidence that the courts would want to encroach on the exercise of the prerogative in dissolving Parliament and calling an election.
With these amendments, we are also discussing whether Clause 3 should stand part of the Bill. My contention is that if there is an ouster clause, it needs to be true to the purpose of the Bill, which is to restore the position to what it was before 2011, and that it should omit provisions—in this case reference to “purported exercise” and “purported decision”—that are constitutionally objectionable. If the Government persist in wishing to retain such wording, that serves to reinforce the case for removing the clause. I beg to move.
I entirely appreciate the distinction between Prorogation and Dissolution, but before Miller 2 most lawyers would have considered that Prorogation was non-justiciable. I dare say that the advice was given by the Attorney-General or the Government Legal Department that when Mrs Miller and others brought their judicial review it was non-justiciable. That is not such an unreasonable point of view, given the unanimous decision of the Divisional Court, a court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. That court concluded that, without in any way expressing approval of the decision of the Prime Minister, it was a matter of politics, not law. In other words, the power was non-justiciable.
Why did the Supreme Court disagree with the reasoning of the Divisional Court? Unfortunately, we do not know, because it made no mention of the decision of the lower court. This departure from the normal engagement with the reasoning of the lower court could certainly be regarded as something of a discourtesy, to put it mildly.
There are differing views as to whether the Supreme Court in Miller 2 came to the right conclusion. The Government’s view may well have been a factor in the setting up of the independent review of administrative law, which I had the privilege of chairing. I do not purport to speak on behalf of the panel today, but I can point out to the House that we concluded that the decision might be regarded as something of a one-off and should not of itself lead to any fundamental changes in the scope of judicial review. The combination of a minority Government, no agreement in government on the right approach to Brexit, and the rigidity of the Fixed-term Parliaments Act, with its requirement of a super-majority, created something of a perfect storm.
On the one hand, the case was a magnificent demonstration of the checks and balances in our constitution working well, even if you do not agree with the conclusion. As it happens, I do not agree with it, but other views are available. I do not favour the decision because of the involvement of judges in a political matter. In conversation with constitutional experts in the United States, I have encountered considerable surprise at the decision. An equivalent challenge in the United States would fall foul of the political questions doctrine, and the claimants would not be able to establish that they had standing to bring such a challenge. In this jurisdiction, points on standing are rarely taken. We pointed this out in the IRAL and suggested that they should be taken more often, even by the court of its own motion, since it is a jurisdictional matter.
In his response to the IRAL report, the then Lord Chancellor, Sir Robert Buckland, as he now is, said that he was anxious to protect judges from politics. I think he had a point. Unlike in the US, our judges have, for the most part, skilfully avoided involvement in political matters. As a result, and in sharp distinction to their counterparts in the United States, our judges are not well known to the general public and their views are not a matter of general public interest, in the non-technical sense, and long may that continue.
This Bill would protect judges from political controversy by reason of the terms of Clause 3. I think a number of judges would be perfectly happy with that outcome, but even if they were not there would be an acceptance that Parliament is entitled to legislate to exclude the courts from considering the legality of the power to dissolve Parliament. The IRAL concluded that it was constitutionally open to Parliament to pass an ouster clause of this sort, and unless you reject the doctrine of parliamentary sovereignty, I do not believe that this is in any way controversial.
Is this a position in which we would wish to place the sovereign? It would do precisely what we are all agreed we should not do: namely, to require the sovereign to intervene in what are likely to be, as the noble Lord, Lord Grocott, said, the most highly charged political circumstances. Therefore, if anyone is to prevent the Government misusing the power, and the Government are determined to oppose the House of Commons being given a vote, I submit that it should be the courts rather than the sovereign.
Of course, if the high court of Parliament—the House of Commons—has authorised the use of the power, that would put it out of the reach of the courts. That is the virtue of the amendment moved by my noble and learned friend Lord Judge and the noble Lord, Lord Wallace of Saltaire, but the Government are opposed to that. There are dangers in leaving it to the House of Commons, which were described at length in the last debate, so it is either the courts or the sovereign. I submit that in those circumstances, it has to be the courts.
There is a more fundamental objection to Clause 3. These are the words of the clause:
“A court or tribunal may not question—
(a) the exercise or purported exercise of the powers referred to in section 2,
(b) any decision or purported decision relating to those powers, or
(c) the limits or extent of those powers.”
I find those words chilling. They amount to saying, “We will take these powers, but we will not allow any interference by the judicial system in the way we exercise them.” That is the language of an authoritarian —some might even say totalitarian—Government.
It is because the present Government have shown signs of seeking to override any challenge to the use of their powers that this ouster clause is such a dangerous precedent, as my noble and learned friend Lord Hope has said. I suggest that this House should stand against that precedent. I shall not seek the opinion of the Committee today on excluding Clause 3 from the Bill, but I reserve the right to move an amendment on Report to remove it.
The power of judicial review, which was carefully analysed by the noble Lord, Lord Faulks, and the team he led, is an essential way in which the citizen is protected from the abuse of power by the Executive. There are many kinds of Executive, not just the national Government we are thinking of today; local authorities and private sector organisations have powers of various kinds. If they act beyond those powers, the courts are the proper place to challenge that misuse of power. Once we give currency to the idea that a Minister can say in relation to a purported action or purported decision that they have decided they have the power to do this and may not be challenged, that is a reversal of the entire system of judicial review.
The process described in Clause 3 will never be engaged in relation to what we are talking about—the calling of a general election. There are so many barriers against it—not least, of course, the desire of the judges not to get into that political process at all—but once we have got this on to the statute book, we will not have seen the last of it. I think we have created a highly dangerous model for ouster clauses. I am disappointed, in a way: I think the noble Lord, Lord Faulks, resisted pressures to come up with foolish decisions in his review, and I would welcome him being on my side on the issue, which is about the longer-term importance of judicial review for the purpose for which it was intended. One can raise questions about some ways in which it has been used in the past. One can raise questions about whether there are some limitations, such as the Cart issues raised by the review by the noble Lord, Lord Faulks. It is vital in the protection of our citizens and I see it threatened by the existence of this clause.
We need to get this into perspective. Clause 3 does not diminish the role of the courts in the constitution; it is about this one narrow area that before, when we simply rested on the prerogative, no one thought the courts could ever get involved in, but because of other developments in the law we now feel it necessary to be quite explicit about it.
I can certainly see the need for this ouster clause, but I regret the need for it because we should have dealt with this in the simple way of a parliamentary majority. We keep hearing about the three pillars of the constitution: the judiciary, the Executive and the legislature. In my book, and perhaps I am biased, one of those is greater than the other two—a first among equals—and that is Parliament, which is answerable to the public in a way the other two are not.
This highlights the fact that the Government are not confident that their own legislation does reset. I agree with the noble Baroness, Lady Noakes, which probably surprises her as much as it surprises me, that it is legislation that tries to deal with shadows, because it is something we all hope will not happen. We have to look at this, and we need some more explanation from the Government as to why they feel it is necessary. It is hard to understand how the courts could and would insert themselves into a decision on a general election. I come back to the amendments in group two, particularly Amendment 3, being a better way to deal with this.
Could the noble Lord also address two things when he replies? Although there are the normal checks and balances of conventions, Parliament and parliamentary behaviour, one of our concerns, which comes back, sideways, to the unlawful Prorogation, is that we have a Prime Minister at the moment who does not really stick to the normal conventions of parliamentary behaviour that we expect. The noble Lord and I have had numerous discussions on this across the Dispatch Box—his face shows no emotion at the moment; I do not want to embarrass him. For example, I think that Prime Minister is the first Prime Minister to have ignored findings on the Ministerial Code, and the first to reject the advice of the House of Lords Appointments Commission and do what he wanted to do. In the same way as the 2017-19 Parliament, which my noble friend referred to as the dysfunctional Parliament, and the unlawful Prorogation influenced our decision, we are affected by the Prime Minister’s behaviour when we look at this. It is the same consideration.
Something is still needed to restore checks and balances. I am not convinced that it is this clause, but I would like to hear some more from the Minister, because most of us would be appalled that the courts would be involved in parliamentary sovereignty, for both practical and political reasons.
Could I get the noble Lord to address one final thing when he responds? I am still not clear about the word “purported”. I looked again at the Joint Committee’s report. Various lawyers, such as the noble and learned Baroness, Lady Hale, and Lord Sumption also commented that, basically, if the Government did something that was outwith their powers, we could do anything about it. If that is the intention behind clause, that is quite damaging. I would find it helpful if the noble Lord could explain why the word “purported” is in there and why it needs to be. I genuinely do not understand why it should be. That seems more dangerous than the clause itself.
This has been the view of the courts, as we have heard. Lord Roskill, in the landmark GCHQ case in 1985, said the courts’ right of challenge must
“depend upon the subject matter of the prerogative power which is exercised”.
He agreed that the Dissolution of Parliament was not
“susceptible to judicial review because”
its
“nature and subject matter is such as not to be amenable to the judicial process.”
Furthermore, as Lord Justice Taylor noted in Everett:
“At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable.”
However, despite these clear directions from some of the most esteemed judicial authorities, in our judgment the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.
As the Independent Review of Administrative Law noted—and I pay tribute to my noble friend Lord Faulks for his role in that and for his reasoned and intelligent approach in leading that review,
“the past 40 years or so have seen a steady retreat within the law on judicial review away from the view that exercises of certain public powers are by their very nature non-justiciable in favour of the view that the exercises of those powers are either justiciable or reviewable on some grounds but not others.”
It is this reality that makes it necessary to include this clause leaving no room for doubt. The clause has been carefully drafted, as the noble and learned Lord, Lord Hope, divined, respecting the message from the courts that only, in the words of Lord Justice Laws, with
“the most clear and explicit words”
can Parliament exclude their jurisdiction. I am afraid, therefore, that when noble Lords suggest that reviving the prerogative power would suffice—this touches on the point raised by the noble Viscount—as the courts would be excluded from reviewing a prerogative power, that does not take into account the direction of travel in the case law and would be to ignore the clear message of the courts themselves. That was the gravamen of the impressive speech of the noble Lord, Lord Faulks, with which, in substance, I agreed, and also the submission of the noble and learned Lord, Lord Brown.
Noble Lords raised concerns with the specific wording of the clause, in particular the words “purported”, “limit” and “extent”, which I will address in detail. First, I emphasise that this clause says what is necessary and no more. Each of its words is necessary, in our judgment, to preserve the non-justiciability of the prerogative of Dissolution. Drafting this clause has been a technical challenge for counsel, and it has required a response to a range of case law. The purpose of the clause is to be as clear as possible about the “no-go” sign around the Dissolution and calling of Parliament, to preserve the sphere of political decision-making that provides the context for the exercise of the prerogative power of Dissolution and the preliminary steps leading to the exercise of that power. The Independent Review of Administrative Law, which had the benefit of seeing the Government’s clause, did not find it disproportionate but rather agreed that it can be regarded as a “codifying clause” which
“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.
I can tell the noble Viscount that it was the view of the Independent Review of Administrative Law that the clause restates the position.
In analysing the importance of Miller II, the Independent Review of Administrative Law observed that
“it creates the potential for the courts to circumvent the ‘no-go’ signs currently mounted around the exercise of prerogative powers in relation to ‘matters of high policy ... [such as] … dissolving Parliament”.
Therefore, Clause 3(c) seeks to make it clear that in the context of the Dissolution and calling of Parliament, the “no-go” signs should not be circumvented in this way.
My second point is about what standards or limits a court may seek to impose. In Miller II, the Supreme Court considered that two principles of constitutional law were relevant in establishing the relevant limit on the power to prorogue; namely, parliamentary sovereignty and parliamentary accountability. The Prorogation of Parliament is of course different from the Dissolution and calling of Parliament, as we have heard more than once tonight. In particular, the latter enables the electorate to deliver their verdict on the incumbent Government.
However, one might conclude that a court could look to impose a limit on the revived prerogative powers to dissolve and call Parliament, analogous to the limit imposed on the power to prorogue Parliament in Miller II, and in effect require in law a Government, of whatever persuasion and under whatever lead, to have a reasonable justification for calling an election in certain circumstances.
To paraphrase the independent review, in the case of Dissolution, deleting the words “limits” and “extent” would allow the courts to impose
“various conditions on when such a power can be said to have been validly exercised”,
and then declare
“that the power has not been exercised at all if those conditions are not observed.”
The Government consider that this would be an entirely inappropriate limit on the revived prerogative powers.
As I have argued, the Dissolution and calling of Parliament are inherently political decisions that are entirely unsuitable for review by the courts. More specifically, with relevance to Clause 3(c), we do not believe that it is appropriate for the courts to impose legal limits of this sort on when a Parliament may be dissolved and a general election called.
In reply to the noble and learned Lord, Lord Hope, we contend that this clause is not contrary to the rule of law. The Government agree with the independent review, which said:
“It is … for Parliament to decide what the law … should be, and it is for the courts to interpret what Parliament has said.”
The majority of the Joint Committee also concluded that it is
“not inherently incompatible with the rule of law”
for Parliament
“to designate certain matters as ones which”
should
“be resolved in the political … sphere”.
I come now to the point of precedent raised by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Hope, for whose conversations I was very grateful. They asked a specific question and voiced their concerns that this clause sets a precedent. It is not so. As I have explained, Clause 3 is a very specific clause drafted with a particular purpose in mind; namely, to confirm a widely shared view of the nature of the prerogative powers to dissolve and call Parliament. For this reason, it is more accurately described, to use the phraseology of the independent review, as a “codifying clause”—a clause that in effect seeks to prevent the courts in future declaring something to be justiciable that is already currently understood to be non-justiciable.
In this case, it is seeking to ensure the non-justiciability of the prerogative powers for the Dissolution and calling of Parliament, which traditionally the courts have had no role in reviewing—nothing more. This is a bespoke exclusion to address this precise task.
If there is an intervention, is the election timetable then suspended? Are the people to be informed that a court might deny them the right to have their democratic say? If the court process moves slowly, could the situation arise where a court then dismisses or questions an election result? Asking the courts to review a Dissolution decision is to ask them to weigh the political merits and imperatives of the decision; it is inherent in the nature of the question. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn into making decisions and weighing political imperatives.
More practically, we must consider the risk that we might send a signal to mischievous and politically motivated litigators that they can disrupt the process with vexatious and frivolous claims against Dissolution. Even the threat of such a court case would be disruptive to the process, drag our judges into the political fray and cause huge expense and delay and a frustration of the democratic process. There is no surer way of risking the reputation of the judicial system among many sections of the British people, no surer way for the courts to be seen as a political institution, and no surer way to drag the sovereign into politics. These are not scenarios for which your Lordships can possibly wish. It is wise to take all the necessary steps to be absolutely certain, without a shadow of doubt, to ensure that these scenarios do not occur.
Finally, let me directly confront the case put by the noble Lord, Lord Butler of Brockwell, that, by removing a judicial oversight, this clause allows a licence for the Executive—far from it. The exercise of the prerogative power is a question for the political, not the judicial, sphere, and the remedies and constraints are in that political sphere.
Our constitution has for centuries proved well able to avoid extremities and has provided for accountable checks on the Executive, and these checks are both pre and post hoc. In terms of pre-hoc checks, a Prime Minister requests a Dissolution of the sovereign which, in exceptional circumstances, can be refused. In parallel, the core constitutional principle that the sovereign must not be drawn into party politics acts as an important deterrent to improper requests being made. That is an immense latent force in our constitutional arrangements. Furthermore, the Government, in response to the Joint Committee, amended the Bill prior to its introduction to Parliament so that the statutory election period will be triggered automatically by the Dissolution of Parliament. This will ensure that the theoretical possibility of a Dissolution without an ensuing election period is eliminated.
There are also post-hoc checks and incentives on the Executive that have worked for many years, effectively compelling Parliament to be called as soon as feasible after an election. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling or meeting of a new Parliament is not in the interest of any Government seeking to make progress on the mandate it has received at a general election. Most importantly, the Dissolution and calling of Parliament are powers that pave the way to a general election and a new Parliament. Again, as the noble and learned Lord, Lord Brown, reminded us, the actions of the Prime Minister and the Government are subject to the judgment of the electorate and, in due course, to that of a new Parliament.
If a Prime Minister acts—as we alleged one might—nefariously, even if a Prime Minister acts contrary to prior expectations and past practice, that will be judged by the electorate. It is also available to that new Parliament to undertake the nuclear option of passing a Motion of no confidence on the new Government, almost immediately, if it wishes, on an amendment to the Queen’s Speech. These practical constraints on the Executive have served us well for many generations. As we see, the checks on Dissolution are practical and political; they should not be legal.
I apologise for speaking at such length, but I hope noble Lords will understand the importance of putting these points on the record for your Lordships to consider between now and Report. If any other points have been raised in the debate, I will, of course, write. I sincerely hope that noble Lords will reconsider their amendments and urge them to join the view of the other place to not permit the entry of the courts and support this clause
I am also concerned about the effective monitoring and administration of campaigns. I go and talk to my local electoral registration team from time to time; my ear has been bent on the difficulties of running election campaigns at short notice. I heard anger in Bradford some months ago about Conservative MPs saying, “There is no problem—all it requires is for staff to work harder if it comes to it”.
I tabled the amendments to test the question: how often do we want to have elections, and do we wish to leave it entirely open as to whether they are in December, January or June? In my opinion, the default should be June, not coinciding with the May elections or devolved national elections. The exceptions should be at times of the year not including winter. That is the purpose of my amendments.
There have been 20 general elections since 1945. Thirteen have been early, and the sitting Prime Minister won 10 out of those 13. Those 20, between 1945 and the last general election, were within 74 years, so we are talking about an election just under every four years. My experience in the other place was of seven general elections, and I sat for 27 years, so we averaged just under four years.
It was worse, in a way, not knowing when elections were going to be. My party was not a rich party. We had no offices in the city. Each time, I had to find somewhere for a headquarters, not knowing when the election was, and get phones in. It was difficult in those days, but nevertheless it was a joy to be in the other place for so long.
Giving the Prime Minister the choice of date is an advantage in the electoral system, and that is what I am against. I realise that building the checks and balances is not easy, because for every check there are disadvantages either way. But I do not think that it should be built into the system. As I said, I accept that we are abandoning the fixed term that we brought in in 2011. What I object to is the maximum length, which should be more like what we are actually used to, which is four years rather than five. There is some support for this view. People think that Governments run out of steam after four years, and there is some evidence for that but my point is not about it. My objection is quite different. Governments that seek to rig the electoral system, as this one is attempting to do, should be more limited as to how long it is before they meet the electorate. I want to shorten the time. I almost put an amendment down for three years to strengthen the point that I wanted to make—which I made at Second Reading, but when you have a good story to tell it is worth repeating.
This is nothing personal to any of the Ministers either here or in the other place, but there is a pattern whereby the Government are attempting overall to rig the electoral system. There is a succession of Bills and regulations before Parliament or due to come before Parliament, and I have a little list, which is not exhaustive, of their intentions: voter suppression, straight out of the Trump playbook, which we are about to get; action against the courts, shrinking their ability to hold the ruling party to account—that is the reality— curbing citizens’ right to protest; restricting the freedom of the press by removing the public interest defence; moves against election monitors and the referee in a concerted attack on the Electoral Commission, whose powers have never been as strong as I thought they should have been; widening the scope of the Official Secrets Act; and open attempts before our eyes to control the media via Ofcom.
There is a pattern here. We deal with each little bit as it comes along and have debates like we have had today, of a very high quality and forensic in looking at what is a very small Bill with massive implications—but the debate is in the context of this Bill. We have arguments already flattened by the noble Lord, Lord Faulks, who said, “No, the ouster clause won’t be used as a precedent, because there’s another Bill that hasn’t got the same ouster clause in.” This can make the point, as the noble Lord, Lord Norton, did, that the draftsman will find a way. I am very disappointed that the draftsmen have co-operated with all this, because they have operated under instructions. There are all these issues and others, which I will not go over. I quoted Lord Puttnam at Second Reading, who gave a couple of further examples.
It all makes it harder for a Government to lose power. That is what the pattern actually creates. Would a four-year limit stop this? No. I am just trying to shorten it from five. Would it limit the damage? Well, maybe. Is it worth raising? Oh yes, because I intend to raise it at every possible opportunity; not just on this Bill, but on all the others as they come. I am not alone. There are the Select Committees that were mentioned earlier, the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee. We have had two incredibly powerful reports published just before Christmas from this House—the unelected House—about the threats to our democratic process, which is really important.
This is where the tragedy is in some ways. I would love to be able to switch off from what I have now and pop back to the other place for a couple of years and say, “By the way, it’s not quite like we think it is. Things have got bad—it’s a little bit back in time.” That is not possible, however, because I came to this place ignorant of its powers, even though I had been down there and was a Minister as I swapped over. There is massive ignorance among the Members of both places about our roles and what we are doing.
I do not have a solution to this because the argument is always, “You’re unelected, you don’t count.” But because we are unelected and we do not have a vote in a general election, we are disinterested in some ways. I see no problem in this place saying to the other place to think again, because we are only a sub-committee of the other place. All our powers are to ask it to think again. At every opportunity, the House of Commons rightly has the last word. It does not matter what happens—it has the last word in every case.
I know that in extremes the Parliament Act can be used, but it been used only twice in my time. It is still the case, however, that the Commons has the final word. That is the case I always put across when doing the Peers in Schools programme. Our powers are incredibly limited, but they mean we can say, “Think again”. Sometimes we say, “And again”. I think there are a couple of examples where it was three times, then this place—obviously, as it is unelected—said, “You’ve had a good think about it, we’ll leave it alone.” That is our function. The fact is that they did not change that in the Bill.
There is an interchange sometimes when Ministers talk about Parliament but are actually talking about the Government. Government and Parliament are interchangeable—well, to Ministers they might be, but to the rest of the population they are not. Ministers say that Parliament has decided, but they mean that the majority controlled by the Government in the other place has decided. It is the Government who have decided. The whipping system and the timetable system have decided. In some ways I greatly regret the timetabling system used down there, but we had good reasons. I have lived through guillotines and I know what the rules were. What was it—100 hours to get a guillotine for wasting time upstairs in Committee? That is why timetabling was brought in.
The fact is that we receive Bills in this place that have not been thoroughly examined in the elected Chamber and that is a tragedy. There was a time when I tried, as a Minister, to suggest that we ought to have Bills with the bits that had not been discussed highlighted, but it is incredibly complicated to say which sections were not debated or looked at; you just cannot do it. We have to use our common sense and gumption.
The fact is that they are not doing their job in the Commons. That is the reality. Their job is to keep an eye on the Government and to question what the Executive are doing—and they are simply not doing it. They are distracted by other things, such as trying to do the job of local councillors for a start. It is easy for me to say that because it was not like that. I do not want to say that those were the good old days and throw back, but the House of Commons is not doing its job of scrutinising the Executive and we are receiving legislation that has not been properly scrutinised. Then, unfortunately, the Government say, “Oh, it’s the House of Lords, always defeating the Government.” We are not; we are simply saying that we want the Commons to do its job. That is what we are asking them to do.
In this case, I would be astonished if Clause 3 is still in the Bill when it leaves this place. There is the amendment supported by the Cross Benches and the noble Lord, Lord Butler, about letting Parliament decide on Dissolution; if you have one, you do not need the other. It is simple. Keep the judges away—I absolutely agree with that—but there is an easy way to do it: let the elected House do it.
I have made my point, but I shall keep coming back. For each Bill and regulation that comes along, I will recite the same list, because there is a pattern and the penny has to drop at some point.
Finally, this question was reviewed by the Joint Committee, which did not question the starting premise that five years is the appropriate duration for parliamentary terms and the life cycle of a Parliament.
I will now address the amendment proposed by the noble Lord, Lord Wallace of Saltaire, on the timing of elections. The noble Lord has reflected on the experience of the electorate in December 2019 and observed that winter elections are not desirable. I hope your Lordships will allow me to relate Stanley Baldwin’s comments on the impossibility of finding a time for an election that suits everyone. On 23 October 1935, when seeking a Dissolution, Mr Baldwin observed on the timing of elections:
“Therefore I have long come to the conclusion that you must rule out the spring and summer months because of financial business. You must rule out August and September because of the holidays. You are left with the autumn, but in no circumstances must you run into any interference with the Christmas trade.”—[Official Report, Commons, 23/10/1935; col. 154.]
Those light-hearted remarks contain an important kernel of truth.
Certainly, outside times of political tumult when exceptional elections are necessary, it may well be the case that a Prime Minister would prefer not to call on the public to venture out to cast their vote in the depths of winter. I share the noble Lord’s sentiment that winter elections do not provide the most ideal conditions for queuing at a polling station or canvassing from door to door. The election in 2019 was, of course, exceptional and was called to bring an end to a period of extended parliamentary deadlock.
Nevertheless, the purpose of the Bill is to provide for a system that will serve successive Governments. As the 2011 Act has taught us, we should not draft our constitutional arrangements in response to one event. There is no guarantee that, in the future, an election will not again be required in December—or February, as in 1974, which we have heard about. So it would not be wise to legislate in the long term for an event that was an exception to the rule. Our arrangements need to be adaptable. That is the important point.
The challenge of the approach set out in the amendment of the noble Lord, Lord Wallace, is that it prevents the flexibility necessary for a Government to respond to particular circumstances. As such, I suggest to the noble Lord that to subject the timing of elections to this particular constraint—even if Parliaments do not normally run their full term—would run counter to that objective.
The purpose of the Bill is to revive arrangements that have stood, and will continue to stand, the test of time. I am grateful to the noble Lords, Lord Wallace and Lord Rooker, for stimulating this fascinating discussion but I hope that your Lordships’ Committee will agree with me that Clause 4, unamended, is the most suitable approach to achieve that aim. I therefore urge the noble Lord to withdraw his amendment.
Given that the Dissolution document as produced by the Government has received fairly universal criticism and very little approbation, it is quite remarkable that the Government have not yet provided a draft. I hope that the Minister will be able to say that a draft is now well under way and will shortly be provided. I say this with particular emphasis because we may well come out of the next election without a single-party majority. It is quite likely that there will be at least four parties which have two dozen MPs and another two parties which have perhaps a dozen, so there could be a very complicated outcome. At that point, we will need some clear guidance, understood by all those likely to be involved, about how government will be formed in a difficult situation.
The Public Administration and Constitutional Affairs Committee in July 2021 pressed the Minister to issue a revised Dissolution principles document, which has not yet been provided, and the Minister in the other place, Chloe Smith, told the Commons on 13 September that there was
“ongoing dialogue to be had”—[Official Report, Commons, 13/9/21; col. 751.]
on Dissolution conventions. I hope the Minister will be able to tell us how that dialogue is going on, when it might conclude and whether he thinks it is appropriate for this Bill to become an Act before those necessary documents to mark and clarify our conventions, which should accompany it, have been published and agreed with Parliament. I beg to move.
Nevertheless, I support the spirit of the amendment and I would be interested to know whether we are going to come back to this on Report. If so, I hope to play a modest part in the debate at that stage.
In practical terms, on this and the next amendment, the Government would be concerned that this amendment means that the provisions of the Bill would only come into effect once both Houses had considered and voted on a Dissolutions principle. That risks creating uncertainty around the coming into force of the Act and, therefore, the arrangements for calling any election, which we have all agreed today should be avoided.
The same applies to Amendment 11. As noble Lords have emphasised throughout the debates today, constitutional conventions have a vital role to play in our parliamentary democracy. I am conscious that the separate tradition of the Liberal Democrats, which I respect, is that they wish more and more to be written down. The Cabinet Manual, alongside other authoritative texts such as Erskine May, is an important point of reference and reflection for how conventions are understood—but iterations enable evolution.
The noble Lord, Lord Wallace, is quite right to say that it will be necessary to revisit these sections of the Cabinet Manual once the 2011 Act is repealed. TheCabinet Manual recognises that conventions continue to evolve, and the Government will in due course respond to the report of the Constitution Committee and set out their intentions with regard to updating the Cabinet Manual. We are grateful to the committee for its considered review of the manual and its thoughtful identification of the key issues that ought to be considered in terms of any update. I am acutely aware that the Government’s response is long overdue, and I have humbly apologised for this to the noble Baroness, Lady Taylor. We are carefully considering those recommendations and will respond in due course.
To continue on the amendment, the Government agree that the Cabinet Manual should be an accurate reflection of our constitutional arrangements, but we are of the view that this amendment for a parliamentary vote is unnecessarily restrictive, for the reasons given by my noble friend Lord Norton of Louth and others. But the Government are particularly concerned that the provisions of the Bill would only come into force once a revised version of the Cabinet Manual has been published. Such an undertaking would necessarily require a considerable amount of work. Tying the provisions of the Bill to such a project risks creating uncertainty, which, again, we wish to avoid.
Both these amendments would run the risk of fixing our understanding of these conventions at a point in time—that is point one—undermining the flexibility that is essential to our constitutional arrangements. On the matter of the Cabinet Manual, I urge the noble Lord to withdraw his amendment, which would add complications because of the Catch-22 situation: the Cabinet Manual draws its authority from its ability to accurately reflect our arrangements, but we have not yet determined in Parliament what the successor arrangements to FTPA should be.
While obviously accepting the importance of both the principles and the manual as well as their relevance across party, beyond party and beyond this Parliament, I hope that the noble Lord will be content to withdraw his amendment.