That the Bill be now read a second time.
Relevant documents: 8th Report from the Constitution Committee
My Lords, if any noble Lords are concerned by the state of my voice, I should say that I have recently had a negative Covid test, but I have just had that cold which your Lordships will know all about. I would like to say how much I am looking forward to the contributions from everybody who is to speak, and congratulate my noble friend Lord Leicester, who was recently elected to this House, on making his maiden speech later; we all look forward to that.
It is a great privilege to open Second Reading on the Bill, which I trust will be welcomed by your Lordships’ House. Repealing the Fixed-term Parliaments Act 2011 was a manifesto commitment both of the Government and of the Official Opposition. As the Labour Party manifesto put it, the Act
“has stifled democracy and propped up weak governments”.
I agree, and look forward to unequivocal support from the Benches opposite today and in Committee—you always travel in hope in your Lordships’ House.
The 2011 Act fostered uncertainty and stasis in our democratic arrangements. It led to paralysis when the country needed decisive action. It undermined the effectiveness and responsiveness of our democratic system overall. The flaws of the Fixed-term Parliaments Act are understood and have been analysed by many noble Lords, including your Lordships’ Constitution Committee—I am pleased to see the name of the noble Baroness, Lady Taylor of Bolton, on the speakers’ list today. I am grateful for the depth of expertise and knowledge that your Lordships’ House has brought to bear on the scrutiny of the 2011 Act and that it will bring to bear on the scrutiny of this legislation.
The Bill seeks to return to the tried and tested position of the past over many centuries, replacing the 2011 Act with arrangements more in keeping with our best constitutional practices: delivering stable and effective government; upholding proper parliamentary accountability and public confidence in our democratic arrangements; and, above all, placing the British people at the heart of the resolution of any great national crisis.
The Bill will provide increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament. I emphasise at the outset that the Bill focuses on the Dissolution and the calling of Parliament only, not any other part of the constitutional process. Ensuring that these arrangements are clear, stable and widely understood underpins the integrity of our constitution.
Your Lordships’ Constitution Committee, in its report of December 2020, warned correctly that the “origins and content of” the 2011 Act
“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.
Indeed, the Act led to paralysis and uncertainty at a critical time for our country. An untenable situation arose in the last Parliament, when the Government were neither able to pass vital legislation through Parliament on their central policy nor call a new election and put the question to the people, who had already voted in a referendum for the very proposition Parliament was seeking to block. The result was deadlock and paralysis. The fact that Parliament had to introduce bespoke primary legislation in 2019 to bypass the Act in order to hold the necessary election was surely the final, damning indictment. In summary, the Fixed-term Parliaments Act is a political experiment that failed. It is neither credible nor effective and does not serve future Parliaments or Governments, whether they are majority or minority formations or coalitions.
I now turn to the details of the Bill. Before I begin, I reiterate my sincere thanks for the valuable work of Parliament, particularly your Lordships’ Constitution Committee, chaired by the noble Baroness, Lady Taylor, the Public Administration and Constitutional Affairs Committee in the other place, and the Joint Committee chaired by my noble friend Lord McLoughlin, who I am also pleased to see here in his place today. I also add my thanks for the Constitution Committee’s most recent report on the Bill, which was published on 19 November. The Government welcome its consideration of the Bill and I can give an assurance that they will respond to the report before this House goes into Committee. Its consideration of the 2011 Act and the Government’s Bill has been valuable and has informed our approach, as will become evident.
The Bill is short; its purpose is clear and its objectives are known, because the British people lived with the previous system for centuries. It is a focused Bill of six clauses and one schedule. It restores the status quo ante, except in a few cases, particularly where practical changes to election arrangements made since 2011 have proven beneficial to the smooth running of elections—although I am certain that we will discuss that aspect of the Bill. It returns us to the tried and tested constitutional arrangements that have served successive Parliaments and Governments and that are a feature of our constitutional system.
Clause 1 repeals the Fixed-term Parliaments Act. Clause 2 makes express provision to revive the prerogative powers relating to the Dissolution of Parliament and the calling of a new Parliament that existed before the 2011 Act. This means that, once more, Parliament will be dissolved by the sovereign at the request of the Prime Minister. Within the life of a Parliament, Prime Ministers will once more be able to call a general election. That is a tried and tested approach that throughout our history has served successive Governments of different configurations.
By returning us to the status quo ante, the Bill will enable the link between confidence and Dissolution to be restored so that critical votes in the other place can once more be designated as matters of confidence, which, if lost, would trigger an early election—circumstances which many of us well remember from 1979. The other place will therefore continue to play its expected and key role in holding Governments to account and demonstrating whether they have the confidence of the elected House.
This is the status quo ante that we are all familiar with and understand. Under that system, our nation weathered many a constitutional crisis and accomplished enormous social change and social improvement without conflict, revolution or civil strife. That is the position the general public understand and under which our liberties have long been guaranteed.
Clause 3 restates the long-standing position that the prerogative powers to dissolve and call Parliament are non-justiciable. I understand that some noble Lords question why this clause is necessary at all and say that, after all, these prerogative powers are recognised as outside the purview of the courts. Let me explain: Clause 3 is drafted with careful regard to developments in case law. As noble Lords will be aware, since the GCHQ case, some prerogative powers that were previously considered to be non-justiciable have been reviewed by the courts.
The recent independent review of administrative law, which was chaired by my noble friend Lord Faulks, noted that
“the direction of travel in favour of regarding more and more prerogative powers as reviewable in principle is undeniable and has existed for many years”.
This culminated in the decision of the Supreme Court in Miller/Cherry 2 in relation to Prorogation. So, with respect to those noble Lords who say that there is no risk of the courts reviewing a decision to dissolve Parliament, I cannot simply say that the case law would suggest that this risk can be discounted, and recent events, in particular, have underlined this.
Clause 3 has been drafted with great care, taking on board the position of the courts that the most clear and explicit words are needed. It provides that any decisions relating to the revived powers to dissolve one Parliament and call another are non-justiciable, as well as the exercise of the powers themselves. This is to ensure that any preliminary steps leading to the exercise of these powers, including any request to the sovereign to dissolve Parliament and any related advice, cannot be reviewed by a court or tribunal.
Clause 3 further provides that a court or tribunal cannot consider the exercise of those revived prerogative powers or any related decisions, even if the court considers they are invalid or, in the language used by the Bill, “purported”. Nor may a court consider the limits or extent of those powers. Again, taking into account the case law, this is to make as clear as possible the position that all elements of the process relating to the Dissolution and calling of Parliament are covered by Clause 3 and are not a matter for the courts.
Let me be clear: there would be no change to the involvement of the courts, as the Dissolution and calling of Parliament is not an issue that has, so far, ever been considered reviewable. This clause simply confirms that position, preserves it for the future and protects the judiciary from being drawn into political matters.
Ultimately, judgment on the Government’s actions in calling an election is a matter for the electorate at the polling booth. I remember well the wise words of the noble Lord, Lord Grocott, on this subject at Second Reading of the original Bill, that it is not axiomatic that the timing of an election serves the incumbent Prime Minister. As the Joint Committee affirmed,
“it is appropriate for Parliament to make clear where it thinks the constitutional boundaries lie”.
This clause was unamended in the other place, and while I recognise that your Lordships will have questions, we do, I think, mostly agree that the prerogative power for Dissolution is, and should, remain non-justiciable.
Before the Minister leaves Clause 3 —I am not a lawyer—will he explain the use of the word “purported” in two of the items? He has spent a lot of time on Clause 3, so I presume he is briefed on this to explain why “purported exercise” is also covered.
My Lords, I always seek to be brief, but one always aspires to be better briefed in your Lordships’ House. I anticipate that this will be the subject of some discussion in Committee, and I wanted to make some progress in this speech, but to answer the noble Lord, which is my duty, purported exercises of power or decisions refer to things that would be considered by a court to be invalid or a nullity and therefore not a real exercise of power or decision because they have been done on the basis of an error of law. The courts have noted that this could arise where, for example, a decision is made outside the limits of relevant power or without taking into account a relevant consideration.
The reference has been included to make it clear that all elements of the Dissolution and calling of Parliament process fall to the political and not the judicial sphere. The drafting takes account of previous judicial decisions, which I have no doubt we will discuss at some length in Committee. In particular in the case of Privacy International, the Supreme Court said that those drafting legislation should make clear whether such purported decisions are intended to be outside the jurisdiction of the courts. I am grateful to the noble Lord for his intervention, and I look forward to discussing this matter at some length—I hope not at some length—and I have no doubt that we will have a lively discussion in Committee, so I would like to make some progress, if I may.
Clause 4 provides a maximum parliamentary term of five years, calculated from the date of the first meeting of Parliament. This will ensure that elections are held at regular intervals by providing a longstop of five years, a maximum term which is of course still guaranteed by your Lordships through an explicit exception in the Parliament Acts. By reviving the prerogative powers, the Government could call an election either to resolve political deadlock, to seek a fresh mandate from the electorate or after a defeat on a major policy issue.
As I have set out, a Prime Minister will take a number of factors into account when choosing to call a general election. But of course, this would include— I can offer reassurance here—scheduled elections to the devolved legislatures. We recognise the practical administrative challenges of holding elections which are conducted under different arrangements simultaneously or in close proximity. A Prime Minister choosing to call an election would undoubtedly wish to take these matters into account.
Clause 5 introduces the Schedule, which sets out minor and consequential amendments. Clause 6 confirms that the territorial extent of the Bill is the UK, except for a very small number of amendments in the Schedule where the extent is more limited. The Schedule contains a number of minor and consequential changes, including to the parliamentary elections rules in the Representation of the People Acts 1983 and 1985, concerned also with the demise of the Crown and the Recall of MPs Act 2015. I would be happy to explain any of these in detail if your Lordships wished between now and Committee.
The Bill has undergone pre-legislative scrutiny. The Government are indebted to the work of the Joint Committee on the Fixed-term Parliaments Act. We have carefully considered the committee’s findings and amended the Bill in two respects, the first being the Title of the Bill. This small but significant change ensures the purpose and effect of the Bill is clear, reflecting its precise remit and its constitutional significance. Secondly, having reflected on the Joint Committee’s report, the Government agree that the trigger for the election process should be the Dissolution of Parliament. This amendment will give legal certainty that the election period will automatically follow on from Dissolution, providing a clear timetable leading to a defined polling date.
Let me conclude with the conventions which provide the flesh on the bones of the Bill. In restoring the status quo ante, conventions will once more govern the operation of the revived prerogative powers. Conventions can operate effectively only where there is shared understanding of them. That is why the Government published in draft their understanding of those conventions alongside the Bill for scrutiny—not only by the Joint Committee but by Parliament as a whole. We set out in that document:
“The circumstances in which a Prime Minister might seek a dissolution are underpinned by two core constitutional principles.”
“The Prime Minister holds that position by virtue of their ability to command the confidence of the House of Commons and will normally be the accepted leader of the political party that commands the majority of the House of Commons.”
“The Sovereign should not be drawn into party politics, and it is the responsibility of those involved in the political process to ensure that remains the case. As the Crown’s principal adviser this responsibility falls particularly on the incumbent Prime Minister.”
We recognise that the conventions on Dissolution are part of an interlocking picture. Therefore, in our response to the Joint Committee, we have provided fuller explanations of the conventions on confidence Motions, Dissolution and Government formation. It is intended to provide the basis for discussion and debate among parliamentarians, building our shared understanding in and across both Houses and all those represented in them.
The value of conventions is not that they should cover every single hypothetical scenario but that they provide guiding principles and are an effective deterrent —in particular, the imperative not to involve the sovereign in politics. We welcome further discussion in your Lordships’ House on the conventions. That is the best way to develop our shared understanding.
This Bill will deliver increased legal, constitutional and political certainty around the processes for the dissolution and calling of Parliament. It will restore tried-and-tested constitutional arrangements which have been understood by the electorate for generations and are underpinned by the core constitutional principle that the Government of the day draw their authority by commanding the confidence of the elected House.
I hope these constitutional arrangements that have served us well in the past will continue to serve future Parliaments and Governments of all parties, whatever they may be. The ability of a Prime Minister to call a general election for reasons of political or public necessity, to turn to the people to give their judgment, is an essential feature of our democracy. The Fixed-term Parliaments Act disrupted that relationship. This Bill, we submit, will restore the proper balance to our constitutional arrangements.
I look forward to a constructive debate on not only the Bill but the conventions. I commend the Bill to the House.
My Lords, I thank the Minister for his contribution and his endurance in getting through it—I have some cough sweets if they would be any use to him. I know how he feels; I once took a Bill through Committee while recovering from flu, with a lot of Lucozade under my desk. Given that he is not very well, I thank him for his contribution today. This is a relatively short Bill—six clauses and one schedule of what the Government describe as minor and consequential amendments. It is significant none the less, despite its brevity.
I was talking to a colleague the other day who described your Lordships’ House as the “custodians of the constitution”. That may sound a little pompous, but I think we take the constitutional responsibilities of Parliament very seriously. With that, I entirely concur with the Minister’s comments about the committees of both Houses, which have provided ample information and a very helpful backdrop to today’s debate.
Looking at the list of speakers in today’s debate, we have those who have served in government and at the highest levels of the Civil Service, colleagues from the law and constitutional experts. Some of our newer colleagues will contribute as well; I welcome and look forward to the maiden speech of the noble Earl, Lord Leicester. When he came to your Lordships’ House, he described it as
“the most effective reforming chamber in the … world.”
I hope we can live up to his expectations. I look forward to his contribution.
The Minister outlined this already, but I really think this Bill reinforces the traditional saying, “Legislate in haste, repent at leisure”. I am not staking any claim for the moral high ground for myself or my party, but it is essential when considering constitutional changes that there is a proper process of investigation, analysis and consideration. Otherwise, it is impossible to predict and fully understand all the implications of the changes proposed. There is an onus on parliamentarians from both Houses, from all parties and none, to ensure that any constitutional change stands the test of time. The answer to addressing such issues is pretty straightforward. Probably quite boringly, it is about having a process to ensure that all the relevant issues and consequences, intended and unintended, are fully understood.
As the noble Lord said, there is now little doubt that the Fixed-term Parliaments Act is badly drafted legislation. It is also rather ineffective, possibly because of its starting point. Despite the principle being discussed often—as he said, even in party manifestos—there had been very little detailed consideration. When the Bill was introduced, it was clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. That was understandable, given that we have little experience of coalition governments in our system, but it is an unavoidable irony that the coalition for which it was designed was clearly more robust than the Conservative Governments that followed, as ways then had to be found to circumvent the legislation. There is little disagreement that it is flawed and needs to be replaced. The question that remains is how to go about it.
When reading through the debates in the other place, I found it interesting how often ministerial comments and opinions were asserted as facts. If I were being generous, I would probably describe them as optimistic assertions. At Third Reading in the other place the Minister, Chloe Smith, stated:
“The Bill therefore repeals the 2011 Act and returns us to the tried and tested system whereby Parliament will automatically dissolve after five years, if it has not been dissolved earlier by the sovereign exercising that prerogative power at the request of the Prime Minister.”
She then asserted that the Bill will
“reset the clock back to the pre-2011 position with as much clarity as possible”,
but does it really do that? First, the Joint Committee that the Minister here referred to identified ways in which the then draft Bill did not do that, including through the inclusion of Clause 3 in the Bill before us today. This is the ouster clause that puts in statute that the decision to hold an election is outside any legal jurisdiction. If the “factory settings” were being restored to 2011, then surely such a clause would not be required. I heard what the Minister said but it did not really bring the clarity that we are looking for.
In the debate in the other place, the Minister then also declared that the Lascelles principles—through which a monarch has a constitutional power under the prerogative to refuse an election in three very limited circumstances—were ones that the Government “acknowledged” as a historical fact and that
“now is the time for the underpinning conventions of the prerogative power to be debated and, indeed, restated.”—[Official Report, Commons, Dissolution and Calling Of Parliament Bill Committee, 13/9/21; cols. 721-22.]
However, I am unconvinced that any of this provides the clarity we need for the legislation before us.
The key question is whether the prerogative can be restored by statute and, therefore, whether the Bill restores the prerogative powers as they previously existed, including the principles by which a monarch can refuse an election. If it is the Government’s view that that is the effect of the Bill, why is Clause 3—the ouster clause that would prevent any decision being judicially challenged—so essential? That is a very specific question, and it is important because Clause 3 implies that the Government consider that by seeking to revert to what they describe as the previous position by statute, the decision to call an election could be legally challenged.
When our own Select Committee on the Constitution, chaired by my noble friend Lady Taylor, examined this issue last year—albeit without the benefit of seeing the legislation now before us—it said:
“The possibility of legal challenge to the prime minister’s advice to the Monarch, or the Monarch’s decision to dissolve Parliament, must be avoided.”
I accept that, and I understand why the Government remain scarred by the attempt at an unlawful Prorogation that was successfully legally challenged in 2019. The Minister will recall that so great was my concern and that of the noble Lord, Lord Newby, that we refused to take part in the Prorogation ceremony, which was later in effect declared void.
As the Minister and I have discussed, there is a clear difference between Prorogation and Dissolution, but the wider and perhaps more relevant question is whether the way the legislation is drafted is the correct way to address the issue. There was a difference of opinion in the Joint Committee, yet even those who supported the Government’s approach in principle were concerned at how Clause 3 had been drafted—that is, its extent and future use as defined in Clause 3. My noble friend Lord Rooker picked up that issue and the Minister is right that it will have to be debated—perhaps for longer than he would like, although hopefully not too long. Still, it will have to be ironed out in Committee.
The use of the word “purported” has caused considerable concern because it appears that, in effect, Parliament is giving the Executive the power to do something that is not within their power, and there would be no legal redress whatsoever. I am not a lawyer—it probably shows—but from reading through the various reports and evidence to the Joint Committee and the Constitution Committee, it was obvious that if you ask two lawyers the same question, you get at least three opinions. Some said that they thought the ouster clause was clear, while some thought there was the potential for abuse. Others, including constitutional experts, considered that the courts would then seek to interpret the clause. I suspect that the potential for the latter two outcomes is undesirable and certainly not what the Government intended—so Clause 3, the ouster clause, may not even do what the Government intend.
So, what are the alternatives? I suggest that there are two options that we could consider and draw out in Committee. First, as invited by the Joint Committee, the Government could consider whether a more limited but clearer and more precise approach could be more effective. However, in the initial response to that invitation, the Government appeared to both agree and disagree. They accepted that clarity was necessary but disagreed that they needed to change anything.
An alternative approach would be for the House of Commons to continue to have a vote on the issue. Given that the power has been with Parliament since the Fixed-term Parliaments Act 2011, it would not be a huge leap to consider that that position should continue. Otherwise, the effect of the changes proposed by the Government will not be just to set the clock back to 2011 but to increase the power of the Prime Minister not just beyond the current position but beyond what existed prior to 2011.
Let us face it: this Prime Minister has not exactly established himself as someone who could be constrained, or even guided, by the normal conventions of Parliament. Whether because of the unlawful Prorogation, for example, or his lack of support for the Ministerial Code, there are many who consider that the Prime Minister wants to find ways around the usual and normal ways of working rather than follow the rules. But, as we have already seen, he is not alone in the Government in appearing to consider the normal processes of checks and balances in our system as something of an inconvenience. Legislation has to be considered for all situations, not just one particular Prime Minister.
I am sure that most noble Lords in this House would agree that Parliament and the governance of our country work best when there is a balance between the Executive and Parliament, not when the Prime Minister thinks that they are one and the same. If the Government consider that the Lascelles principles still apply—and I am not convinced that they do—the monarch could, in future, again be placed in a difficult position: having to make a decision to either accept an inappropriate request for Dissolution or refuse the advice of a Prime Minister for an election. However, the ouster clause is a heavy-handed, inappropriate way of dealing with the issue.
A point made by Professor Andrew Blick of King’s College, London, is one that we would do well to heed, and perhaps look at in more detail in Committee. In his evidence, Professor Blick considered that maintaining a vote in the House of Commons would help to insulate the monarch from being put at the centre of a political and constitutional controversy. Many of us remain very concerned at the way the Leaders of both Houses went to Balmoral to ask the Queen to call for the Prorogation. So I favour this approach, but we will get into that in more detail in Committee.
There are other issues in the Bill, such as the number of days needed for a general election, that we may also want to probe further. I look forward to today’s debate, with the expertise and information we have in this House, and to our deliberations in Committee.
My Lords, I too offer my sympathies to the Minister for having to take forward this Bill under the duress of a heavy cold. I hope that my comments will not add too much to his coughing and spluttering.
This is an exceptionally short Bill but still a very significant one. The Act that it replaces was said by David Cameron to be
“the biggest transfer of powers from the Executive in centuries.”
If we accept his judgment, it follows that the repeal of the Act to return to the position that preceded its passage marks a major transfer of powers back to the Executive. So the key question before us is whether such a transfer is justified. On these Benches, we believe that it is not.
The purpose of the Fixed-term Parliaments Act was to provide a stable framework within which the coalition Government formed in 2010 could operate. In his Second Reading speech in another place, even Michael Gove accepted that it had been successful in achieving this and had prevented the Tories “collapsing the Government” early to gain a political advantage.
The reason we have this Bill before us today is that the previous minority Conservative Government were frustrated in calling an election because they did not have a parliamentary majority. Yet, even with the Act in place, Theresa May was able to call an election, having had a revelation while up a mountain, and Boris Johnson was able to call an election three years early in the wholly exceptional circumstances of 2019.
The advantages of having a fixed term are clear. It brings some certainty and reduces the advantage the Prime Minister has in choosing an election date that maximises his or her chance of victory. Research in the UK by Schleicher and Belu shows that, where elections have been called opportunistically before the statutory end point of a Parliament, it has given the incumbents an average increase in vote share of 3.5% over what might otherwise have been expected, which has translated into an 11% seat advantage. In circumstances where no party has a majority in the Commons—a highly likely scenario for the UK in the future—it gives the largest party a massive advantage.
Fixed terms also provide the parties with a more level playing field on electoral expenditure.
I am most grateful. What was the massive advantage in 2017?
My Lords, the massive advantage was perceived in the mind of the Prime Minister. The massive disadvantage was her judgment, not that she did not have the opportunity to exercise that judgment. We think the exercise of that judgment, on what was by any accounts if not a whim then a very short period of decision-making, is a bad idea for democracy.
As I was saying, fixed terms provide parties with a more level playing field on electoral expenditure. If the Government can plan for an early election, they can ratchet up spending in the year before the planned, but unannounced, date. Opposition parties will typically be unable to take the risk of planning and spending on the basis of an early election date. For these reasons, a fixed-term Parliament is the international norm. Some three-quarters of the world’s major democracies have a fixed term. So do the Scottish, Welsh and Northern Ireland legislatures. No doubt that is why Labour was so enthusiastically in favour of introducing a fixed-term Parliament in Gordon Brown’s manifesto in 2010. I am not arguing that every single aspect of the current Act is incapable of improvement, but I am seeking to defend the principle which lies behind it.
So if we are to reverse the biggest transfer of executive power from the Executive in centuries and hand it back to the Prime Minister, you would hope that there would be a compelling reason for doing so. In moving Second Reading in another place, Michael Gove said that this compelling reason was that
“it gives power to the people.”—[Official Report, Commons, 6/7/21; col. 788.]
This is pure doublespeak. It does not give power to the people; it gives it to the Prime Minster, pure and simple.
I suspect that this Prime Minster will not follow the precedent of his predecessor by having a revelation during a long mountain walk, but he might have it on the roundabout at Peppa Pig World and come back the next day and simply call an election. How do the people have any say in that decision? They clearly do not. They do have the power to vote the Prime Minister back or not at the subsequent election, but, if you really wanted to give power to the people, surely a Prime Minister would follow the public mood and, when it was supportive of an early election, call one. But that is exactly the time when a Prime Minister is least likely to call an election, because the people want elections when they want to change the Government, not retain them. So the democratic argument for prime ministerial discretion on calling an early election is entirely bogus.
This Bill seeks to put the clock back and reinstate prime ministerial powers over Parliament. But it goes further than that. With Clause 3, it seeks to increase prime ministerial power further by removing the power of the court to adjudicate on the way in which that power is exercised. As we saw in 2019, judicial oversight is not just a theoretical possibility but, as the noble Lord, Lord True, said, an actual possibility, and the Prime Minister simply wants to cut out this possibility in future.
If that is his aim, there is a much more satisfactory and democratic way of doing this, which is to make the calling of an election before the end of the full allotted span of a Parliament subject to a vote in the Commons. This reins in the executive power that the Bill seeks to give the Prime Minister, without unduly hobbling his or her ability to call an election—because, at the very least, the Prime Minister would have to consult Cabinet colleagues and persuade their party to vote for such an election.
In practice, it is unlikely that the Prime Minister will be denied an election by Parliament—by the Commons. Oppositions nearly always want elections and, if the Prime Minister is able to persuade neither their colleagues nor the Opposition to vote for one, the likelihood is that it would not be in the national interest. We will therefore support an amendment in Committee to make the premature calling of an election subject to a vote by the Commons. By doing so, we would remove the problem of the ouster clause and restrain prime ministerial power but allow MPs to decide whether it is in the national interest to have an election when the Prime Minister wants to call one. My colleagues will raise other aspects of the Bill both today and in subsequent stages, but, if the Lords can persuade the Commons to take back some control of the electoral process, I believe that it will have fulfilled its constitutional role.
To return to first principles, the British public do not elect a Government; they elect a Parliament, and an Executive are then drawn from that Parliament. Parliament is the servant of the people, and Parliament, not the Executive, should have the decisive vote on when the people should have their say.
My Lords, I support the Bill. While it appears that no one really wants to keep the Fixed-term Parliaments Act, there are obviously differing views about what should replace it. There seem to me to be three basic suggestions: first, that the Commons should have a vote; secondly, that the Prime Minister should decide, subject to the courts’ supervisory jurisdiction; and, thirdly, that the Prime Minister should decide but do so under a non-reviewable prerogative, which is what the Bill proposes. As I said, I favour the latter.
To clear the ground—the noble Lord, Lord Newby, has just done this—obviously, the three alternatives, if you can have three, are mutually exclusive. If the Commons has a vote, that decision is plainly unreviewable: Article 9 of the Bill of Rights plainly puts that out of court. It should further be noted that there is disagreement among lawyers as to whether, given that the FTPA earlier replaced the prerogative, the prerogative—certainly in an unreviewable form—can now be restored. My own clear view is that it can, and that is certainly the view of Lord Sumption and Mark Elliott, the leading Cambridge professor of public law, who advises the Constitution Committee and who supported the decision in Miller II.
With Clause 3 in the Bill, I simply cannot see any court, and certainly not the Supreme Court—now under new management, with a new president—contemplating reviewing the prerogative of the Prime Minister. Indeed, even without Clause 3, I do not think that it would have done so, but it is there for the avoidance of doubt. Indeed, one reason for having it there is to relieve the court of the embarrassment of being drawn reluctantly—believe me—into this rather sensitive area.
Let me explain now why I see no basic objection to an unreviewable prerogative here—it is, or would be, exercisable by Her Majesty not on the advice but at the request of the Prime Minister—and then I must explain why I do not think that the House of Commons should have a vote. As to an unreviewable prerogative power, I gather that there are those who worry that that could place Her Majesty in an invidious position if, for example, the Prime Minister did not like the result of a general election and thought he could get a better majority with an immediate further election. That sort of thing, besides being flatly contrary to the conventions set out and agreed on all sides, is really a purely theoretical risk. Any Prime Minister has to have regard to the obvious general good sense of the electorate, and we all know that electorates can see through that sort of thing extremely readily. Certainly, it does not to my mind suggest for a moment that the Prime Minister could be mad enough to reach a decision that would actually embarrass Her Majesty.
As to the Commons having a vote, I object to that because it would leave wide open the possibility that we could return to the selfsame intolerable position that arose under the Fixed-term Parliaments Act back in the late summer of 2019. Paragraph 86 of the report of March this year from the Joint Committee on that Act said:
“It would be possible to replace the Fixed-term Parliaments Act with a provision requiring a vote in the Commons before Parliament was dissolved. A minority of the Committee argues this would be the simplest and most obvious way of protecting the Monarch from being dragged into party political debate. The majority considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”
In a letter dated 12 August, the Minister gave a well-judged response to the suggestion from the Public Administration and Constitutional Affairs Committee for a convention that there should be a Commons vote. The letter said:
“To establish a convention that a resolution of the House must proceed an early dissolution would not be compatible with a return to the tried and tested arrangements for calling an election. Indeed, to create such an expectation would potentially only lead to a repeat of the circumstances of 2019 which this Bill seeks to avoid in repealing the 2011 Act and reviving the dissolution prerogative.”
The imperative, in my respectful suggestion, is to avoid any risk of returning to the position that arose then. In speaking in a debate on 5 September of that year, 2019, I deplored the situation brought about by the Kinnock Bill, an Opposition Bill to ensure that Boris Johnson could not pursue his essential policy of securing Brexit, even if necessary on a no-deal basis. Although I was certainly no supporter of the Prime Minister or of Brexit, and still less of a no-deal Brexit, I suggested that the Bill compelled the Prime Minister to go to Brussels cap in hand, not merely to seek but to obtain a further extension to that process. A little later, I said that
“those promoting this Bill are at one and the same time intent on compelling the deep abasement of our sitting Prime Minister and yet refusing the Government the opportunity by general election to reinforce its right to govern, which we generally take for granted.”—[Official Report, 5/9/19; col. 1177.]
The imperative of this Bill is that we do not allow that to recur. Let us return to the safe and sound position we used to have—let us pass this Bill.
My Lords, the House might allow me to mention that, in June 2014, a Labour Back-Bencher introduced the Fixed-term Parliaments Act 2011 (Repeal) Bill. I happen to have a copy of it with me here. Modesty prevents me mentioning the name of the person who introduced the Bill, but it got nowhere; the Government ignored it. Had they not, we would have saved ourselves an awful lot of time and trouble. At least this allows me to deploy my favourite parliamentary phrase: “I told you so”. The intentions of the Bill before us are clear: first, to scrap the Fixed-term Parliaments Act 2011 and, secondly, to return to the system of dissolving Parliament which existed prior to the Act. I very much agree with the first objective, but some significant improvement is needed to the second.
The Fixed-term Parliaments Act 2011 was a bad piece of legislation. It was a major constitutional Bill presented in haste, with no attempt at reaching consensus and no pre-legislative scrutiny. Perhaps most damning of all, the Bill was drafted in cynicism between two political parties, the Tories and the Liberal Democrats, that did not trust each other and wanted a mechanism that would keep them in office for a full five-year term. David Laws, in his book 22 Days in May, says it all:
“William Hague and George Osborne indicated that we needed a mechanism to build confidence in each other … That pointed to fixed-term parliaments”.
So much for David Cameron’s quote that it was a major transfer of power from the Government to the legislature. I was amazed that the noble Lord, Lord Newby, quoted that approvingly when, quite clearly and unarguably, the whole purpose of the Bill was to guarantee the Executive a five-year term. That is no way to make constitutional change. I would like to hear from the Minister on this; perhaps he could apologise on behalf of the Conservative Government at the time that this Bill was ever introduced, and say that no major constitutional change will be introduced without full cross-party debate and pre-legislative scrutiny as long as this Government are in office.
The 2011 Act led to serious damage to the way in which our democracy works. This was particularly evident during what I can describe only as the poisonous Parliament between 2017 and 2019. There were at least two deeply damaging episodes for which the Act was directly responsible. The first was in January 2019 when we had the first of the so-called meaningful votes on Brexit. The Government lost that vote by 432 votes to 203, with a majority against them of over 220. Prior to the Fixed-term Parliaments Act and the conventions that existed at the time, there is no conceivable way that a Government could have survived a defeat like that without either an immediate vote of confidence or by calling a general election.
An even more damaging consequence of the Act was in autumn 2019. This was when the Government had unarguably lost the confidence of the Commons, again on their European policy. Three times they tried to call an election to settle the matter and three times failed to achieve the two-thirds majority required by the Act. This meant that in our cherished parliamentary democracy, whose foundational building block is that Governments govern on the basis of the confidence of Parliament, we faced a situation in which a Government remained in office despite clearly having lost Parliament’s confidence. They could not pass their legislation nor enable the British people to vote in a general election. No wonder it is such a discredited Parliament.
What should we put in the Act’s place? I was privileged to be a member of the Joint Committee that examined the current Bill. There were two related issues that we must have spent half our time discussing. The first concerned the role of the monarch and the need to keep the Queen out of politics. The second was about the so-called Dissolution principles. These issues are fundamental to our democracy. They are, after all, questions about the circumstances in which the British people can exercise their most fundamental democratic right—the right to vote.
The Government’s answer to these questions is, on the surface, a very simple one. It is to return to the system exactly as it was before the Fixed-term Parliaments Act. This meant that, apart from in a very restricted number of conventions, a general election could take place whenever a Prime Minister requested that the monarch dissolve Parliament. But herein lies the rub: as we know, a request, as opposed to advice, from a Prime Minister means that the monarch still has discretion about whether to accept the request. Then inevitably you hit a serious problem. If you consider it essential to keep the monarch out of politics—I do—how on earth can you allow even the possibility of her deciding whether she can refuse a request from a Prime Minister for a general election? Such a decision would be a major constitutional crisis. There could hardly be a more politically charged subject.
There is a solution, which has been touched on by previous speakers. In my view it is a very simple one, and it is that a general election should be held not just when a Prime Minister goes to the monarch and requests one, but when a Prime Minister goes to the monarch armed with a House of Commons resolution and advises her to hold one. Remember that, in our constitution, advice from the Prime Minister is something that the monarch would accept. This simple requirement of a majority in the Commons solves every problem at a stroke. The Government get what they want because a Prime Minister—who of course would not be Prime Minister unless he or she enjoyed the confidence of the Commons—would get the necessary majority on such a fundamental issue. There would be no need for endless debates about Dissolution principles as the authority of Parliament is the only principle that you need. The Queen is kept completely out of politics; she is simply abiding by the supreme authority of a parliamentary majority.
There are other advantages. First, a resolution of Parliament would not be challenged by the courts, so the judiciary would be kept out of politics. Secondly, we would avoid the bizarre embarrassment of the Bill as drafted, which hands back power from Parliament to the monarch. The whole history of our democracy involves the steady transfer of prerogative powers from the monarch to Parliament. This Bill effectively says, “No, we don’t want these powers so please can the hereditary monarch take them back?” By the way, if the Minister when replying says that the whole purpose of the Bill is to give the power of Dissolution back to the Prime Minister to avoid the chaos of the last Parliament, the answer is simply this: on the three occasions when Boris Johnson wanted a general election, he would have got one under my proposal because a majority of MPs said yes. It was simply the requirement of a two-thirds majority that caused the chaos.
I also say to those who object to the idea of a simple majority of government-supporting MPs being able to call an election when it suits them, they can do that already. The Early Parliamentary General Election Act 2019 did just that with a simple majority. I am suggesting a solution that keeps both the monarch and the courts out of politics. It enables a Prime Minister with a majority in the Commons to secure a general election, just as Prime Ministers have been able to do in the past. It solves at a stroke all the problems of having to define Dissolution principles. All that is needed is to include in the Bill a provision that a Dissolution will take place when the Prime Minister arrives at the palace armed with a House of Commons resolution, which would then be granted automatically. I very much hope that the Minister can see that case when he winds up, and I look forward to his reply.
My Lords, that must have been a very satisfying speech for the noble Lord, Lord Grocott, to make—I can see that he enjoyed it. It might have been shorter if he had simply stood up and said, “I told you so.”
I support the support the Bill as well. Our lives would of course be considerably easier if all Bills were introduced like this, largely supported by the Opposition and unamended in the House of Commons. It puts a wrong right and takes us back to where we were before. It is admirably clear in its intention and impact. While I accept that there are some aspects of detail that are controversial, I hope that the Government will not be swayed from their course of action.
As part of the good will that existed at that heady time of excitement at the creation of the coalition, post the general election of 2010, I was persuaded that the Liberal Democrats had some ideas that needed to be tested by experience, and so the Fixed-term Parliaments Act was created. It was something that I supported, despite my earlier scepticism. However, the events of 2017 and 2019 showed that the Act was insufficiently flexible to meet our constitutional arrangements. It gave power to the courts and to the House of Commons, it created a muddle and it was also unnecessary. This Bill returns us to the clarity that we previously enjoyed. In this House, I believe that one of our overriding objectives should be to provide that kind of clarity and simplicity.
Of course, there will be those who urge conditions on the workings of the Bill through the House of Commons—in the way that the noble Lord, Lord Grocott, has—and indeed the courts. I urge the Minister to ignore their blandishments, however elegantly they are made.
The Bill deals with the whole question of when elections are called. I believe that we should do nothing to put hurdles in the way of people using their vote. “Trust the people” might sound like a cheap political slogan, but it is the cornerstone on which our constitution is built. The noble Lord, Lord Grocott, put it very well when he said that there was a fundamental right to vote, but I part company with him after that.
We should do everything to make sure that our system of dissolving Parliament and calling an election is very clear and well understood by the people of this country. This Bill does just that and should be supported.
My Lords, it is no surprise that the noble Lord supports the Bill even though he had to offer an explanation for having supported the Fixed-term Parliaments Act in the first place. I am a supporter of the principle of fixed-term parliaments, but I served on the Joint Committee on the Bill and on this House’s Constitution Committee when it considered the Bill as then proposed. I pay tribute to my colleagues on both committees for their very careful consideration of the issues.
I was in the Commons at the time of the Fixed-term Parliaments Act, but, more significantly, I was in the Commons in 1974, when the old system was tested. We had elections in February and October of that year, and I had fought a by-election in November of the previous year, making it three elections in 11 months, with a majority still in two figures at the end of that process. The question that this raises is this: was Harold Wilson advised that to seek an immediate election after the outcome of the February 1974 election would be unreasonable? There was a decent interval of eight months before the next election took place—something that emerged from the process. We still do not know, and I look forward to someday finding the answer to that question.
Fixed-term parliaments are normal in most democracies. We are the exception. Fixed-term parliaments preclude, or limit, the ability of the Prime Minister to time elections to gain advantage or, worse, to create short-term policy inducements in order to secure a majority. That is essentially what Harold Wilson did in 1974. Fixed-term parliaments avoid the further problem that frequent elections and short Parliaments disrupt parliamentary scrutiny of the Executive. It is not always realised that a general election closes down the Select Committee system not only for the duration of the election but for what can be several months after the election. Back-Bench Members who succeed in the ballot for Bills lose their chance of getting their legislation through, and the threat of an early election is one of the devices that Government Whips use as they seek the votes of unwilling Back-Benchers in marginal seats. We might see more of that in this Parliament.
For Liberal Democrats—and, indeed, for Labour, until it changed its position—fixed-term Parliaments were a manifesto policy. A key factor in the coming into effect of the Fixed-term Parliaments Act was the need to maintain the coalition. As the Joint Committee points out, a future coalition may well make similar provision. It is misguided to assume that the so-called gridlock of 2019 was primarily caused by the Act or would be likely to occur again if the Act remained in force. It was a unique set of circumstances in which the majority in Parliament were opposed to the policy outcome of a no-deal Brexit that the Government favoured and could bring into effect by the mere calling of an election—not by the outcome of an election but by the mere calling of an election—during the timetable, before the clock reached midnight. By closing down Parliament for that period of the election the policy outcome of a no-deal Brexit could be secured. It is hard to imagine that set of circumstances happening again.
I recognise that both the Conservative and Labour parties went into the most recent general election committed to repealing the Fixed-term Parliaments Act, and I was therefore willing to be involved in detailed committee scrutiny of the Bill to ensure that it did not damage essential constitutional principles. I welcome the Government’s engagement with both committees and their willingness to make some modest, but not insignificant, changes, including the title, but also, more significantly, the language Ministers use to refer to the Prime Minister’s ability to request a Dissolution, rather than advise. The advice would be binding upon the sovereign; the request is not.
In order to return to the status quo ante, the ability of the monarch to refuse a Dissolution needs to be retained. There are very rare circumstances in which it might be used—for example, when a Prime Minister seeks a quick rerun of an election in the hope of getting a larger majority. But the essence of the matter is that the Prime Minister would be advised that he should not put forward such a request because it would be drawing the sovereign into political controversy. A power can be significant even when it is never directly used. That is the significance that I sought to draw from the 1974 experience.
The Joint Committee was very concerned, as noble Lords have been today, about Clause 3—the ouster clause—and particularly its wide drafting. There is general agreement, not just in politics but in the courts as well, that the calling of elections is not a matter in which it would be desirable for the courts to intervene, but inclusion of a “purported exercise” of those powers in the ouster is a worrying precedent, asserting that the Minister’s powers are what the Minister says they are, not what the law says.
Some Ministers, including the current Justice Secretary, appear to have declared war on judicial review, which is a very important restraint on a powerful Executive. This clause looks a bit like a trial run for ouster clauses on other matters. In this case, it is not necessary, as several have said this afternoon. A House of Commons vote in support of a Dissolution request would be proof against judicial review under the Bill of Rights. A minority of us on the Joint Committee favoured that provision being included in the Bill.
I will make one final point, which is drawn from the summary of the Commons Public Administration and Constitutional Affairs Committee’s report. It says:
“A mix of statute and convention remains the best way for this area to be governed, but requires the actors involved to act in ways which engender trust.”
Recent events underline the importance of those words. It is difficult to sustain trust when it appears that the Prime Minister and some of those around him easily forget that rules and long-established conventions apply to them and not just to the rest of us.
My Lords, I regret that I am going to share the self-satisfaction of the noble Lord, Lord Grocott. I believed from the outset that the 2011 Bill was misconceived. Partly through the not inconsiderable intervention of my noble friend Lord Pannick, who regrets that he cannot be here today, your Lordships’ House was twice persuaded to send the Bill back to the House of Commons for reconsideration. The concession eventually obtained was that the operation of the Act should be reviewed in 2020 by a Joint Committee. That was conducted under the chairmanship of the noble Lord, Lord McLoughlin, who I think I am right in saying should be congratulated on his birthday today.
The stated intention of the Fixed-term Parliaments Act was, as the noble Lord, Lord Newby, said, to ensure that the 2010 coalition lasted a full five years. But, with respect to the noble Lord, the Bill was not even sufficiently effective to do that. If either of the coalition parties had wanted to end the Parliament early, it is highly likely that, with the support of the Official Opposition, the necessary two-thirds majority in the Commons to bring the Parliament to an end would have been available.
A second aim of the Act was to remove from the Prime Minister the alleged advantage of being able to choose the timing of a general election. In my experience, the flexibility that Prime Ministers have is very limited in practice. No Prime Minister is likely to choose to put their Commons majority at risk before the last year of a Parliament unless they judge it essential in order to get their Government’s programme through. Experience also shows that, if the electorate sense that the Government are putting them to the trouble of a general election for opportunist reasons, they punish the party severely through the ballot box, as the intervention by the noble Lord, Lord Cormack, made clear. That is what Mrs May found in 2017.
I believe that the traditional arrangement by which the Prime Minister can ask the Queen to dissolve Parliament so that the Executive can seek a new mandate, in circumstances where they cannot rely on getting their programme through Parliament, is in the national interest. I therefore support this Bill. However, I greatly regret the inclusion of Clause 3. The noble Lord has argued that the Dissolution of Parliament is a matter properly dealt with by the electorate rather than the judiciary, but in my submission, this is a false argument. By the time the electorate have any say, Parliament will have been dissolved, the power will have been used and the Queen will have had to assent to it.
If the Bill gave a role to Parliament in the Prime Minister’s request for Dissolution, it would, as others have said, be a different matter. But the Bill does not allow any involvement by Parliament. Under the Bill, Dissolution is not something done by Parliament; like Prorogation, it is something done by the Executive to Parliament. Parliament does not authorise it or have any role in it. If the Executive misuse their power, in my view the exercise of that power should be subject to review by the courts.
But in this case, as has already been pointed out, there is an even more fundamental objection. Let us suppose that the Government do misuse the prerogative power in some way. All commentators agree that, at least in theory, such a situation could happen. What protection would exist if the courts cannot intervene? There is only one source of protection in that circumstance: the sovereign. The sovereign would have to refuse the Prime Minister’s request for Dissolution. That would require the sovereign to do what everyone agrees she should be protected from doing: intervening in party politics, and in the most contentious of circumstances. If it is necessary to have protection against the Prime Minister’s abuse of the power in this Bill, in my view it should be provided either by Parliament or the courts, not by the sovereign.
I end with a more general point. A recent article in the New Statesman, under the heading “Democracy’s Last Stand”, discussed how ex-President Trump’s attempt to subvert the result of a democratic election was thwarted by the courts. The article also pointed out how rapidly Hungary, Turkey and Brazil have seen their democracies strong-armed by repressive Governments. The article asked whether the United Kingdom’s constitutional safeguards are sufficient to prevent a slide in a similar direction. It reminded readers of the politically motivated Prorogation, the demonising of the courts and the BBC, and the attempts to override the findings of independent standards and appointments bodies. One could add the use of the Henry VIII powers to bypass Parliament’s scrutiny, highlighted by two Committees in your Lordships’ House last week, and now, the ouster clause in this Bill.
I suggest that those of us who value our democratic traditions must stand up against the Government’s attempts to remove oversight of their actions by Parliament and the courts. If Clause 3 is not amended, I shall vote against its inclusion in the Bill.
My Lords, it is an honour to make my maiden speech in your Lordships’ House. I will not dwell on the six generations of the Coke family who, in 162 years of taking their seat—or not—in this House, only mustered three speeches, two of them by my father, concerning the railways, in 1998 and 1999. As you can see, my family, who have the obstinate habit of spelling our name “Coke” and not, as it is pronounced, “Cook”, have not been over- talkative in this House.
An earlier antecedent, Sir Edward Coke, was a Member of Parliament and ultimately rose to become Lord Chief Justice to King James I. He is immortalised in one of the 12 bronze relief panels on the doors of the Supreme Court in Washington DC, where he is seen barring the King from entering Parliament. He defended common law against the divine right of the monarchy. This and other ideas of Coke’s were important to a fledgling republic; indeed, a number of them were written into the US constitution. In the English Civil War our family were, not unnaturally, Parliamentarians.
Perhaps my family was distracted from your Lordships’ House by the business of managing a large estate in Norfolk and seeing that proper use was made of its resources. We are still the custodians of that estate at Holkham, managing it sustainably and to sustain the myriad families that work there and rely on it. I have been up there for nearly three decades and have been wholly responsible for it for the last 15 years. Its prime activities are my main interests: the environment, agriculture, heritage and tourism.
In 2012 we resumed management of the Holkham National Nature Reserve from Natural England. It is arguably the most important NNR in the country. Through positive conservation and effective predator control, it yields large numbers of fledglings that survive to adulthood, and it outperforms many other sites. The greatest success has been the natural colonisation and fledging of more than 435 spoonbills, a species which became extinct in this country 400 years ago. The breeding population has doubled in the last two years. Our population of lapwings, a species that has seen a 57% decline across the UK, is back to what it was 20 years ago. This is all because of subtle management changes, trying different things and not sticking to rigid prescriptions.
While the Government have an ambition to halt declines, Holkham is reversing them. On the farm, the principles of regenerative agriculture have been put into practice this last decade. We are not organic, and probably will not ever be, though I have challenged the farm team to farm without artificial inputs by 2030. This year was the first that no insecticides were used. Nitrogen input on the potatoes was reduced by 22%, having been reduced by 10% in each of the previous two years, but they still, importantly, yielded good yields. With cattle extensively grazing the nature reserve and sheep grazing the cover crops in a six-course rotation, we are relearning the lessons that Coke of Norfolk espoused during the agricultural revolution.
I fervently believe that regenerative agriculture provides one of the main solutions for combating climate change. It is a shame that COP 26 appeared to miss the opportunity to focus on it. The woodland is actively managed for profit, amenity and increased biodiversity, using the principles of continuous cover forestry. One of my passions these last 25 years has been renewable energy. We have invested in ground source heat pumps, air source heat pumps, biomass boilers, solar and a large, 2.5-megawatt anaerobic digester that pumps gas directly into the national grid. We have not invested in wind power, principally for aesthetic reasons; anyway, there are plenty more effective wind turbines 15 miles off the Norfolk coast.
Living in Holkham Hall, one of the 10 treasure houses of England, still replete with a full and much-cherished collection from the Grand Tour, I hope to speak authoritatively on heritage matters. My degree at the University of Manchester was in history of art. After university, I spent six years in the Army. We still retain a great number of cottages, and for these we operate an ethical housing policy, letting to local people and key workers only as we attempt to retain social cohesion and village life in a popular holiday destination. The estate has embraced tourism and leisure in the last 25 years and operates a holiday park—the recipient of the David Bellamy gold award for over 20 years—and a small hotel, the Victoria Inn. We run events and cafes. I have worked in nearly all of them.
I am president of Visit East of England and a board member of ALVA, chaired by the noble Baroness, Lady Wheatcroft. None of this would be possible without the wonderful team we employ. They are our greatest asset—well trained, welcoming, espousing great values, employed for their attitude and empowered to make decisions. We have been a real living wage employer since 2017, with 290 employees on the payroll at the end of October. Personally, I tend towards a contrarian view and generally support the underdog, hence my dogged support of Norwich City Football Club. I like to challenge, and I often ask, “Why?”—perhaps too many times.
I apologise for the digression from the Bill we are discussing. I welcome the revival of the prerogative power to dissolve and call a new Parliament. This returns us to the best constitutional practices. Prerogative powers and constitutional conventions are a particular feature of our constitution. They provide the necessary flexibility and agility for our parliamentary democracy. The events of the 2017-19 Parliament demonstrated the negative impact the 2011 Act had on our parliamentary democracy and it led to paralysis. In these circumstances, the Government were unable to secure their business or return the issue to the electorate to break the deadlock because Parliament was unwilling to withdraw confidence or support an election. This meant bespoke legislation was needed in 2019 to have another election. The Bill seeks to put in place arrangements that deliver increased legal, constitutional and political certainty around the process for the Dissolution of Parliament and the calling of a new Parliament.
I am hugely grateful for the warm and kind welcome I have received from all quarters of this House, regardless of political hue. I thank the staff of the House, who have been without fail all hugely helpful to me, from the discretion of the doorkeepers to the forbearance of the dining room staff when I had forgotten to pay for my dinner. I thank all those who enabled me to be here today—my family and wife in particular, and the team I leave managing Holkham—as we strive to enact our vision to make it the most pioneering and sustainable rural estate in the UK. I hope your Lordships will approve that a Coke, after 174 years of near-total silence, should once again try to stir the broth of public debate in this House.
My Lords, some speeches come more easily than others and following my noble friend Lord Leicester’s maiden speech, I feel I have only one principal task and that is to congratulate him on his excellent first speech to this House and tell him how welcome he is here. Not even the arguments of the coming Friday debate can take away the sense that this House, and our Benches in particular, have gained by the active membership of the noble Earl. Those of us who live nearby know the impact that he has made on Holkham Hall and its estate. For 30 years, as he said, he has been a director of Coke Estates and for the past 15 years he has been very much in control of what is a real community asset for those in Norfolk and beyond. His hands-on approach to the great house and the estate means that we have a real expert who is able to speak with experience and authority about the responsibility that we have to the past of maintaining buildings in the best condition and at the same time making them relevant to the present and the future. Perhaps I can illustrate that by referring to the work he has done on one of the finest houses in England and on the Victoria, which he referred to in his speech, maintaining its function but creating one of the best restaurants with rooms in the country. We would expect the president of the Caravan and Motorhome Club to provide facilities for them together with the cottages and holiday facilities he talked of. Holkham is the model of how to restore and engineer amenity and of how to combine modern farming with nature conservation, and we have a chance to learn from a man who has done it and knows how to do it. Not for nothing is he president of Visit East of England. As chairman of the Midlands Engine APPG Visitor Economy subgroup, I share that interest in a key economic sector.
Perhaps I should now turn to the Bill. My first reaction was to go to the Library of the House, a source of great strength to all of us who find ourselves faced with legislation we know too little about. I was particularly interested to explore further the Second Reading of the Fixed-term Parliaments Bill, which I thought might be useful, for at the time I was the Whip in this House responsible for Cabinet Office matters and I thought I might find that I had words for eating—it can happen in politics, can it not, particularly if you have ministerial responsibilities? As it turned out, that role was left not to the noble Lord, Lord Wallace of Saltaire, who is in his place, but to the noble and learned Lord, Lord Wallace of Tankerness, who took the Bill through the House.
The principle of this Bill is to repeal that Fixed-term Parliaments Act and restore the prerogative procedure. I think that we are all agreed about that. However, I sense that Clause 3 is going to lead to considerable debate on how that procedure should be resolved. I am not entirely sure that I can agree with noble Lords who feel that just leaving it to the Commons to vote on the matter is to restore the constitutional convention to the status quo ante, but I believe that we have an opportunity in the Bill at least to discuss these matters, and it is good that we have noble Lords here who have experience of them from all different aspects.
Prerogative powers and constitutional conventions are a particular part of our constitution. They provide the necessary flexibility and agility for its delivery. We in this House have a welcome role in discussing the Bill, and I hope that the debates on it in Committee and further on will provide an opportunity for the interesting notions that have been presented to the House today to be further discussed and resolved. This House has a particular role to play on the shared understanding of the convention and I hope it continues to do so.
My Lords, I congratulate the noble Earl, Lord Leicester, on his excellent speech and welcome him to the House. I look forward to his insights on many worldly matters.
I am not a constitutional expert or a lawyer; nor am I a seasoned parliamentarian, as many others on the speakers’ list are. In many ways, I am an outsider and I offer an outsider’s perspective on the Bill. I believe that many of the concerns I will express may be shared by many lay people outside.
There is a broad public perception that Governments pass laws for their own convenience. The Bill ferments those concerns and reinforces them in many people’s minds. It does not enhance the power of the elected Chamber or the people. Possibly, it is all about enabling the Government to make a dash for an election before the glow of the coronavirus vaccine wears off and the consequences of their disastrous management of the economy and Brexit catch up with them.
The Minister referred to a desire to return to some glorious past. Perhaps that past was never really that glorious at all; if we look at the history, we see Governments cutting loose and seeking electoral advantage regardless of whether it was good for the country or not. We all know that the Fixed-term Parliaments Act 2011 was part of the coalition Government’s strategy to remain in office; there was nothing else to it really. The Minister kindly referred to the Labour Party manifesto, so I remind him of the Conservative Party’s 2015 manifesto, which referred to the FTPA as
“an unprecedented transfer of Executive power.”
Presumably now we have an executive grab for power, because all other centres of power are being weakened.
The key factor in the FTPA was that the House of Commons determined the timing of the Dissolution of Parliament. The Bill takes that away and gives the Prime Minister unconstrained power over when to call an election. If a Prime Minister can unlawfully prorogue Parliament, he can also abuse the Dissolution powers. Are there any safeguards in the Bill? It is hard to see any, especially when the courts are excluded and people cannot go to them for any help.
Under the Bill, Parliament can be dissolved by a Prime Minister who is shoehorned into office—in other words, not the leader at the general election and therefore not subject to an earlier verdict of the people. Parliament can also be dissolved by a Prime Minister whose party does not have a working majority in the Commons.
What if the Prime Minister chooses not to dissolve Parliament and to go over five years? Are there sufficient safeguards? I could not really see anything in there to assure me. At least a vote in the House of Commons offered some safeguards against abusive Dissolutions, but all that is swept away. There is nothing to prevent Prime Ministers from behaving as they did in the past: pass a very favourable Budget, bribe the people, and call a general election. We are really talking about returning to the days of electoral bribery without any consideration of the consequences for the economy or the country as a whole, which in itself is an abuse of the Prime Minister’s office.
The Explanatory Notes accompanying the Bill say that
“the Sovereign dissolved Parliament only when requested to do so by the Prime Minister, and in certain exceptional circumstances, the Sovereign could refuse to grant a dissolution.”
I hope that the Minister will tell the public at large what the “exceptional circumstances” are in which a Dissolution may be refused. When did the sovereign last override the Prime Minister’s advice? The Prime Minister basically seems to be in control. We have an adversarial political system, but which representative of the people will be called on to advise the sovereign on whether the circumstances are “exceptional” and therefore the Prime Minister’s request ought to be denied? Without suggesting democratic arrangements, the Bill leaves the sovereign open to a potential charge of political bias and subject to public opprobrium.
Clause 3, as many have referred to, is highly troublesome. It seeks to deny people access to the courts to rule on abusive Dissolutions. The inclusion of the clause suggests that the Government are concerned that people may challenge the Prime Minister’s decision, and that the Government are out to disempower the people. We live in a country where people have access to law and adjudication by the courts on most things, but on the vital issue of the Dissolution of Parliament and Prorogation the people will have no such right. Why are they being denied that right? The Minister referred earlier to elections being verdicts, but it has already been pointed out that the election comes some time after the event of Dissolution; the abuse has already taken place.
If the courts are precluded from adjudicating on the prerogative power of Dissolution, the only check on a rogue Prime Minister is the monarch. However, the Bill does not legislate on the monarch’s powers or offer any transparency or clarity on how those powers might be exercised. The only way to protect the sovereign from party politics and a charge of bias is really to empower the people to go to the courts and to empower the courts to intervene.
Overall, the Bill is part of a worrying trend of centralising power in the hands of the Executive and weakening the powers of Parliament, the courts and the people.
My Lords, the Bill gives more power to Boris Johnson and less to Parliament. It is therefore in my view a Bill that Parliament should oppose, and I remain surprised that it has so much support from the Labour Benches. When Labour left government in 2010, the Labour Party manifesto of that year was committed to the principle of fixed-term Parliaments. Labour’s opposition to the 2011 Fixed-term Parliaments Bill was clearly tactical, and the argument that it then made against it was that the proposed term should have been four years, not five.
No athlete in a race would be expected to fire the starting gun. The power to fire such a gun in the race to win seats in a general election is, I believe, a strong one. While criticising aspects of the 2011 Act, the Institute for Government said that
“for all its faults, the FTPA does stop an incumbent government from timing an election for maximum partisan advantage, resulting in a fairer contest.”
Those of us on either side of the debates on the Fixed-term Parliaments Act in 2011 were proved to be wrong in certain respects. Some of us thought that it would mean that Parliaments would generally last for five years in future. Others thought that Parliament would not be able to provide for early elections. But the general elections of 2017 and 2019 proved that we were both wrong. But I believe that the principle should remain that Parliament should decide whether there is to be an election outside an agreed regular timescale, and that a significant majority should be required for it to happen.
In our debates this afternoon, we have considered at some length issues of electoral advantage. I have great respect for the noble Lord, Lord Butler of Brockwell, and his experience as Cabinet Secretary, but, as I understand the political system, it was never the role of the Cabinet Secretary to run a party’s election campaign. Those of us who have run them would say that control over the timing of the election confers a very significant advantage to that party, and those of us who have run election campaigns with very limited war chests would say that you are at a very considerable disadvantage if you do not have control or knowledge of when the election will take place.
The principles introduced in the Fixed-term Parliaments Act have actually proved practical for the Parliaments and Assemblies in Scotland, Wales, Northern Ireland and London. I should point out that they were legislated for by the Labour Government after 1997. These principles also proved to be effective for every single local authority in the United Kingdom. The Parliament that agreed them for the governance of these places should agree them for itself.
The 2011 Act was not without faults, of course. As it was initially proposed, the 55% threshold for immediate Dissolution was a short-term fix to suit the coalition at the time—and I said so. It would have been better to have followed, straightaway, the rules that Parliament had previously set in Scotland and Wales, which require a two-thirds majority for an immediate Dissolution. Those rules have proved effective there, and the Fixed-term Parliaments Bill was changed before it become an Act.
Another problem with it was the lack of clarity over what would happen in the fortnight after a Government lost confidence when there was not a two-thirds majority for an immediate Dissolution. Again, the principle of elected Members electing the Prime Minister should have been adopted, as it was agreed by this Parliament under a Labour Government for the Parliaments of Scotland and Wales. This power might allow our Parliament to remove an incumbent Prime Minister. It might allow another Prime Minister from the same or another party to serve in their place.
I am sorry that the noble and learned Lord, Lord Clarke of Nottingham, is not in his place; were he here, I would have pointed out to him that, had we had such a rule in 2019, perhaps he might have achieved his childhood ambition and become Prime Minister. He might have been chosen by the Members of the House of Commons at that time. Perhaps it might have been possible for people in Britain to be offered the choice in a referendum of the reality of Brexit, as opposed to the glossy packaging that suggested that there were no downsides to it. As in Scotland and Wales, where the elected Members choose the First Minister, such an arrangement would, in my view, avoid the potential of dragging the monarchy into politics in an unfortunate way. Instead, we had a general election in 2019 on an entirely false prospectus—namely, that there was an “oven-ready” deal.
Another problem that we later identified with the 2011 Act was that it left in place the very short timetable of 17 working days for the conduct of an election campaign. This was no longer practical in the era of widespread postal voting, including from abroad, and with many people still needing to register to vote once a general election was called. This problem with the election timetable was eventually addressed in the Electoral Registration and Administration Act 2013, which introduced a timetable of 25 working days, and I am pleased that the Government recently accepted that this timetable must stay in place.
There were attempts in the other place to revert to the previous 17 working day timetable for general elections. Huge concerns were expressed by the bodies representing electoral registration officers and the suppliers of electoral materials such as ballot papers about a potential change to allow fewer than 25 working days to conduct general election campaigns. The Electoral Commission in its briefing on the Bill chose to highlight why a minimum of 25 working days is needed for general election campaigns. Postal voting has become much more widespread since it became an option for everyone in 2000. Many people need time to apply to vote by post, and virtually no local authorities accept electronic applications to do so. Time is needed for applications to vote by post, for postal vote packages to be sent out, and for them to be returned by polling day. This is especially true for UK voters living overseas, including members of our Armed Forces serving abroad.
A final reason why the longer timetable is needed is that, as the Electoral Commission has pointed out, 9 million people in the UK are not registered to vote and should be, or are incorrectly registered. Some 60% of people think that voter registration is automatic. They are wrong, but electoral registration should be automatic, as the right to vote is not something that you should have to apply for. Were we to introduce such a system, the calling of such elections and the fairness of them would be greatly improved.
My Lords, I will concentrate my remarks on Clause 3, the so-called ouster provisions. The clause is deceptively short and simple. There are three provisions here, as the Minister explained, and they had the support of the majority of the Joint Committee on the Fixed-term Parliaments Act, to which reference has already been made. But the chair of the Public Administration and Constitutional Affairs Committee in the other place described them as
“legally unnecessary and constitutionally unwise.”
The Joint Committee’s commentary tells us that first two provisions are there to confirm that the exercise or purported exercise of the powers relating to the Dissolution and calling of Parliament set out in Clause 2 are not to be questioned by any court. These two provisions may well be seen to be unnecessary, because that is the provision already. In the Council of Civil Service Unions case to which the commentary refers, Lord Roskill said that the prerogative power relating to the Dissolution of Parliament was not amenable to the judicial review process. As he put it, the courts are not the place to determine whether Parliament should be dissolved on one date rather than another. But in view of doubts as to whether prerogative powers can be revived, to which the noble Baroness, Lady Smith of Basildon, referred, the protection that the prerogative afforded may possibly not be available, because we would be dealing here with powers conferred by statute. So I can see that there is a case for providing the protection as to their exercise that a statutory power might not otherwise have. It is right that there should be no room for doubt on this matter, for the reason given by Lord Roskill.
The third provision in the clause is an entirely different matter. It seeks to extend the protection of non-justiciability to the “limits or extent” of those powers. As the commentary explains, it is designed to address the distinction drawn by the Supreme Court in Miller v the Prime Minister as regards the court’s role in reviewing the scope or extent of a prerogative power as opposed to its exercise. It seeks, as the commentary put it, “to clarify” that neither is justiciable in the context of decisions relating to Dissolution. This is the provision that was described by the chair of the Constitutional Affairs Committee, in what I would regard as a carefully worded understatement, as “constitutionally unwise.”
In its report, the Select Committee of this House on the constitution, of which I am a member, said that
“judicial review should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”
It went on to say:
“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”
I think that is what the chair of that committee was referring to.
I have no doubt that the Prime Minister felt aggrieved by what the Supreme Court did in Miller. So too, in a way, did I. As it happens, I was a member of the Commission that took part in the Prorogation ceremony. I felt that it was my duty, as convenor, to support the Lord Speaker’s decision to take part in the ceremony in response to Her Majesty’s command, while respecting absolutely the decision of the leaders of the opposition parties—the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby—not to do so. So it was a bit of a shock to the system to be told by the court of which I was previously the deputy president that the proceeding in which I took part was unlawful, null and of no effect. I did not see that coming.
The decision in that case was, of course, controversial. I will refrain from any comment one way or the other as to how the court applied the law to the facts that were before it and especially the remedy it chose. However, I have no doubts at all about its analysis of the law. Two fundamental principles of our constitutional law were at play in that case. The first was the principle of parliamentary sovereignty; the second was the role that the courts play in protecting parliamentary sovereignty from threats posed to it by the use of prerogative powers by the Executive. The court was entirely right to point out that the sovereignty of Parliament would be undermined, as the fundamental principle of our constitution, if the Executive could, through the use of the prerogative, prevent Parliament exercising its legislative authority for as long as it pleased. If parliamentary sovereignty is to play its role, particularly in extreme circumstances, it needs that protection.
That is what the case of Miller was all about. The crux of that decision was whether “the limits or extent”—those are the words of the third provision in the clause—of the prerogative power had been exceeded. It was not about whether, if it was within those limits, the prerogative power had been properly exercised. The commentary on this provision says that it “seeks to clarify” this point. Not at all—all the clarification one needs is to be found in Miller. What this provision seeks to do is remove that protection altogether. That is why it is not only unwise but dangerous.
I hope that I may be forgiven for quoting, as so many people do, the words of Dick the Butcher in “Henry VI, Part 2”. He said:
“The first thing we do, let’s kill all the lawyers.”
He did not like the idea that a few words scribbled by a lawyer on a parchment could undo a man’s reputation. That was just a throwaway line, perhaps in jest, but it serves as a warning about the risks to which democracies may expose themselves if they react in this way against decisions by the judges that they do not like.
I too read the article in the New Statesman to which my noble friend Lord Butler of Brockwell referred; it is well worth reading. There is a spectrum, as it put it, along which countries can move, gradually or suddenly, as the protections on which democracy itself depends are eroded, one by one. I agree with the noble Lord that gradual erosion is what seems to be going on here. Removing the protection that the courts provide in this context may seem relatively unimportant to those in this Government who would say that it is not needed anyway: “So let’s keep the judges out of it”, they are telling us. But the sovereignty of Parliament is fundamental to our democracy. Just as fundamental is the need for it to be protected against the Executive’s misuse of the prerogative, whatever it may be and whomsoever it may come from. Maintaining that protection is what the courts have been doing for centuries. We deprive them of that role at our peril. That is why I believe that the third provision in this clause should be removed from the Bill.
My Lords, as we have heard, the Bill is designed to repeal the Fixed-term Parliaments Act and put the constitutional position back to what it was before September 2011. The Fixed- term Parliaments Act was, as we have heard, designed as a short-term political fix but with significant constitutional consequences. As the Constitution Committee observed, the policy behind the Bill shows little sign of being developed with constitutional principles in mind. Instead of a “fixed-term parliament Act”, we ended up with a semi-Fixed-term Parliaments Act.
The Act has provisions which are constitutionally problematic and not well understood. Section 2(1)(b) of the 2011 Act confers, in effect, a veto power on the Opposition over the calling of an early election, as demonstrated in 2019, whereas Section 2(3)(b) potentially gives the Government a let-out provision in the event of losing a vote of confidence—something not possible under the convention on confidence that existed before 2011. Confusion as to its provisions has itself been part of the problem.
I turn to the provisions of the Bill before us. Let me begin by addressing what I shall term the silence of the Bill—that is, what it omits—before turning to the need for the omission to be extended. It is a short Bill, but it should be even shorter.
A Government rests for their continuance in office on the confidence of the House of Commons. That is not peculiar to the United Kingdom; it is a feature of parliamentary systems of government. The silence of this Bill on confidence motions enables the convention that prevailed before 2011 to be restored fully. The convention was not displaced by the 2011 Act, but parts of it disappeared.
Prior to 2011, the convention was that, if the Government lost the confidence of the House, they either resigned or requested the Dissolution of Parliament. A lack of confidence could be expressed by the House passing a vote of no confidence, by defeating a vote of confidence sought by the Government, or by defeating a Motion to which the Government had attached confidence. The 2011 Act cut off the capacity for the Prime Minister to request Dissolution in the event of defeat on the last two. The Prime Minister can still designate a Motion as one of confidence and, if defeated, tender the Government’s resignation, but cannot unilaterally trigger Dissolution.
The Joint Committee on the Fixed-term Parliaments Act recommended that the principles and conventions it set out should be adopted as the basis
“for creating a new shared understanding of conventions and practices.”
The understanding would certainly be new, as the report stated that a lack of confidence could be expressed by
“Defeating the Government on the Second or Third reading of the annual Finance Bill, or in the course of the Supply and Estimates process”.
The problem with this is that defeats in the course of the supply and estimates process occurred in the 20th century without the Government treating them as confidence issues. The Joint Committee’s interpretation would thus not only enshrine the concept of implicit votes of confidence but expand what fell within it.
It is a relief that the Bill does not seek to follow the Scotland Act 2016 in seeking to put a convention in statute. The 2016 Act included what purported to be a convention, the Sewel convention, thus creating a contradiction in terms—a nonsense recognised by the Supreme Court. The confidence convention is a convention. It has some fuzzy contours, but its defining principle is clear. The House of Commons can remove the Government by withdrawing its confidence. If the Government fail to recognise a vote as entailing confidence, it is open to the leader of the Opposition to move an explicitly worded vote of no confidence.
Should the silence of the Bill be extended? Given that the intention is to put the situation back to what it was prior to September 2011, do we need to include provisions governing the prerogative and the exclusion of the courts from any decision to seek Dissolution? I can see the argument for the first, but not the second. As Professor Mark Elliott has noted, nothing in the 2011 Act demonstrates that it sought to abolish the prerogative of Dissolution. The prerogative may be deemed to be in abeyance and, with the provisions of the Act removed, it comes back into play. Clause 2 seeks to remove doubt as to its existence but, by the very act of doing so, creates the question of whether it is now not a prerogative power but a statutory one.
In practice, the result either way is that the power of Dissolution rests with the Crown and is a personal prerogative. The sovereign retains the power to refuse a request for Dissolution. The Joint Committee felt that the Government should consider how best to articulate the role of the monarch in the process of granting or refusing a request for Dissolution. That, I contend, is more appropriately undertaken by bodies other than the Government. The Lascelles principles came from the source most appropriate for articulating them.
The Joint Committee also heard evidence that the Lascelles principles or related constitutional conventions should be referenced in statute. In my view, that would fall foul of my earlier observations. They would cease to be conventions and would be subject to judicial interpretation unless, as with the Sewel convention in the Scotland Act, the courts deemed them non-justiciable. The relevant convention here is that Ministers act in such a way as to not bring the sovereign within the realms of partisan controversy.
As we have already heard, Clause 3 is the most contentious provision and conflicts with the Government’s goal of restoring the position before 2011. The ouster clause is designed to ensure that Clause 2 does not fall within the scope of judicial review. This is constitutionally objectionable, especially in Clause 3(c) in respect of limits and extent, for the reason just given by the noble and learned Lord, Lord Hope of Craighead.
I recall the late Lord Simon of Glaisdale arguing against a provision designed for the removal of doubt on the grounds that there was no doubt to be removed. There are shades of that in this provision. In what circumstances does my noble friend Lord True envisage that the court could conceivably intervene in the granting of a request for the electorate to exercise their power to choose a new House of Commons?
These are all matters for Committee. The Bill is a manifesto commitment and the principle has been approved by the other place. Our task is one of detailed and critical scrutiny.
My Lords, I very much subscribe to the last observation of my noble friend Lord Norton. The detail of what should happen in the event of the previous Act being repealed is an extremely complicated matter. Clause 2 seeks to set out what should happen, but the question about whether a prerogative can be set up again once it has been destroyed is interesting and possibly important. If there are attempts to set this up as a statutory power from then on, it may have different effects from being merely a prerogative power. For one thing, it may contain more restrictions on its exercise than would be the case in a straightforward prerogative. There is a question to answer here about that, if one wants to go back to the situation which existed before the Act we are now seeking to repeal was passed. There is no doubt at all in my mind that, once that Act was passed, the prerogative power was certainly restricted, if not completely destroyed.
The option of going to a fixed Parliament apart from this situation is sealed, in a way, by the provision in Clause 4 that terminates a Parliament after five years. There is a fixed-term Parliament in that sense as it cannot be extended beyond five years. On the other hand, it can be reduced in length by the exercise of what was prerogative power. This is best discussed in detail in Committee because it seems to me essential that something fairly detailed is understood to be the purpose of Clause 2.
Of course, that brings me immediately to Clause 3. If anything requires discussion in Committee, this certainly merits it because it has profound effects. For one thing, it is a new phraseology which, so far, I think has not been the subject of a judicial decision. There is a certain amount of talk in a case suggesting that something of the kind may be necessary if you are going to get a real ouster clause. I think the great effect of the Anisminic judgment is that it really makes it impossible to set up a protection for a decision that is not in accordance with a statutory provision in statutory cases and, of course, something of the kind may be necessary in prerogative cases as well. That sort of principle is an extremely difficult one to get round. When I was Lord Chancellor, I was of the view that it was not possible to devise a completely sacrosanct ouster clause because it was always possible to get round it by the Anisminic principle. People have sought to devise more of them since then and they may or may not be successful, but that matter really requires to be discussed fairly fully in Committee.
Therefore, it seems to me that at present the precise result of what we—certainly the Official Opposition and the Government—are agreed on is that the Fixed-term Parliaments Act should be repealed, without any desire to keep it partly in place. What replaces it and how it should be replaced is really the question. The detail that requires to be considered is such that we should prefer to do that in Committee, rather than trying to do it at Second Reading when it is the principle of the Bill that is in issue. The principle of the Bill is mainly concerned with the repeal of the Fixed-term Parliaments Act. I thoroughly agree with that. I have never understood fully how it was supposed to work. Maybe it is unnecessary to consider that further, so long as one agrees that it should no longer have effect. Precisely how to replace it is a difficult matter and would be best left, in accordance with our procedures, to Committee.
My Lords, my theme will essentially follow the closing remarks of the noble Lord, Lord Butler. I want to start with a quote:
“the government has moved to cement its grip on power. It’s taking action against the courts, shrinking their ability to hold the ruling party to account, curbing citizens’ right to protest and imposing new rules that would gag whistleblowers and … restrict freedom of the press. It’s also moving against election monitors while changing voting rules, which observers say will hurt … opposition groups”.
That is how Jonathan Freedland, in early October, thought the BBC World Service might describe—if it was not us—the antics of Viktor Orbán’s Hungary: but it was us. Now, with this Bill restoring the unfettered right of the Prime Minister to fix the election date, it is part of a pattern, open and in front of our eyes. The reform of judicial review to stop the courts overturning unlawful decisions; the new powers for Ministers to suppress almost any protest; the widening of the scope of the Official Secrets Act; the removal of the public interest defence for journalists and sources; taking powers over the elections referee; giving Ministers powers to order the Electoral Commission to impose penalties on campaigning groups; and the open attempts to control the media via Ofcom—all are out of the Trump playbook.
In his Shirley Williams Memorial Lecture, Lord Puttnam added to the list
“an Education Bill that seeks to reduce … academic freedoms in the area of Teacher Training”.
Interestingly, in the early 1970s he recorded his conversations with Albert Speer, who had been Hitler’s architect and Armaments Minister and served 20 years in Spandau. Lord Puttnam came to understand
“‘the fascist play book’—the way democracy can be corrupted and overturned by a few malevolent but persuasive politicians, those who are prepared to exploit divisions in society with simple populist messages.”
There are many criticisms of the failure of our Prime Minister, but Johnson is clearly not out of his depth when it comes to taking a harder line on making it difficult for his Government to lose power. Now comes the personal power to fix the election date, dressed up as prerogative powers, and ruling out powers of scrutiny by the courts, under Clause 3. I am not a lawyer, but I am told that this is a super ouster—beyond an ouster clause. It even covers Ministers acting in bad faith; they cannot be challenged when acting in bad faith. So, continual vigilance is required, and this House has a major role to play. Indeed, Speer told Lord Puttnam that there is a need to develop a form of
“‘moral vigilance’ required to recognise … evil for what it is.”
Are we willing to see the pattern created by the Johnson Government to frustrate the bodies designed to keep a check on government, ignoring and overturning long-operated conventions, all to tighten his grip on power? Because that is what is happening. This pattern is formed of tiny bits, each of which, on its own, can be made to look quite reasonable, dressed up in simple slogans. Of course, nobody will admit there is a plan. All we get is a smile, deliberately tousled hair and soft tones. But there is a plan and others have seen and discussed the framework. Well, I am not buying it.
I was always in favour of fixed-term Parliaments, even when we had Mrs Thatcher in government. It seemed sensible; other countries do it with checks and balances. I freely admit, and I share some of the views of my noble friend Lord Grocott on this, that it did not work in practice. That does not mean you scrub the system; it means you change what you think has gone wrong, in the light of experience. Other nations with a decently run constitution with checks and balances can cope with fixed dates for elections. The real problem is that we are losing our checks and balances, and the unwritten nature of our constitution is being abused in front of our eyes.
This Bill is an abuse of the electoral system, designed to help rig membership of the elected House. I cannot think of a nobler cause than for this House to say that it is a step too far and we are not having it: we will change the Bill and send it back. I hope that if they send it back to us, we will send it back again, because this is a step too far and part of a pattern. It is no good saying, “Oh well, it’s only this Bill; the other things don’t matter”. The other things are coming this way, and we have to see them as part of a pattern.
Before I sit down, I want briefly to congratulate the noble Earl, Lord Leicester, on his maiden speech. I have to say, he sounded too good to be true. I freely accept what he said, but as I say, it sounded too good to be true. I welcomed his speech, and I think the House did too. He was followed by the noble Lord, who congratulated him on his practical knowledge of what happens in Cambridgeshire and the Norfolk area.
My Lords, what a pleasure it is to follow the noble Lord, Lord Rooker, with all his passion, and to hear from him that he will, like us, push this Bill back over and over again until it is gone.
I had always understood that once a prerogative power of the Crown is lost, it is lost for ever. This Bill asserts a highly controversial and novel proposition that, by Act of Parliament, it can be declared that a previous Act of Parliament never existed; that we return to the status quo ante. Rather than enact new legislation that could not avoid the scrutiny of the courts, government policy is to obliterate the Fixed-term Parliaments Act: it never was; it never existed; Carthago delenda est. I occasionally like to speak a language that the Prime Minister might understand.
We have heard today from the noble and learned Lords, Lord Hope and Lord Mackay, about the considerable conflict among lawyers and academics over whether you can revive a prerogative power. That will lead to inevitable litigation unless, by Act of Parliament, you can exclude the courts from considering it at all. The Government exercise the prerogative powers of the Crown, but not in an absolute way. All prerogative power is subject to the law; that is part of the common law of this country. The constitutional settlement of this country is that the Executive are subject to the law, that the power to make and unmake the law is exercised through Parliament, not the Executive, and that it is the exclusive right of the judiciary to determine what is the law. That is what is called a liberal democracy. Since the civil war, this country has not been an absolutist country where the Executive pass whatever laws they wish.
In a liberal democracy, there are two overriding principles: the separation of powers and the rule of law. They have proved to be an effective protection of the safety, dignity and human rights of the people of this country. A view was expressed by a majority in the Joint Committee on the Fixed-term Parliaments Act, which considered these proposals in 2021, that Parliament should be able to designate certain matters as ones which are to be resolved in the political sphere, rather than the judicial sphere, so that Parliament should be able to restrict, and, in rare cases, entirely to exclude, the jurisdiction of the courts. This challenges fundamentally those two principles—the separation of powers and the rule of law. Noble Lords will note the committee’s view that
“Parliament should be able to designate”
which side of the line it falls. Parliament should be able to set the boundaries of what is and is not within the political sphere.
If a Prime Minister abuses the power of Dissolution, as this Prime Minister abused the power of Prorogation, the Bill seeks to ensure that the courts would be unable to exercise any control over his or her action. Clause 3(c) prevents a court examining even the “limits or extent” of the powers of Dissolution. As the Explanatory Notes say in terms:
“This is to address the distinction drawn by the Supreme Court in Miller … as regards the court’s role in reviewing the scope of a prerogative power, as opposed to its exercise.”
In other words, it would prevent a court finding that the Prime Minister had exceeded his powers in requesting a Dissolution, or in any related advice that he had acted ultra vires. This tries to get rid of any control at all over the Prime Minister.
Why do the Government want to revive the status quo? In his evidence to the Joint Committee, the Minister, the noble Lord, Lord True, said:
“The long-standing position is that the exercise of the prerogative power to dissolve is not reviewable by the courts and that had been the understood position since the Bill of Rights. And obviously judgments on any Government’s action should then lie with the people rather than with anybody else”.
That is an impressive statement, but what is the “understood position” based on? I am not aware of any precedent, ever, where the point at which the Dissolution cannot be reviewed by the courts ever came up. There was no precedent for the actions of the Prime Minister when he prorogued Parliament, yet the courts did intervene and held his action to be unlawful. If the purpose of this Bill is to return to the status quo ante, that status did not anywhere justify the Minister’s assertions to the Joint Committee that it has been
“the understood position since the Bill of Rights”—
it has never been discussed.
The Constitution Committee said in its report on the Bill:
“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”
There is a school of legal jurisprudence called legal positivism, which claims that law is a human construct with no connection to morality or even justice. If the legislature, however it is elected, has passed a law, it must be obeyed. That is so if it is unjust, unwise or immoral. That is the positivist approach. It may be a bad law by some standard, but if it was added to the system by a legitimate authority, it is still a law. I am glad to see that the noble and learned Lord, Lord Etherton, is in his place, because his lecture at Gray’s Inn—the Birkenhead Lecture—pointed out that it was the defence of German judges in the Nuremberg trials that they were only applying the laws passed by their leader as the embodiment of the executive; he had of course abolished the president, the legislature and judicial review.
The common law, under which we enjoy our freedoms, derives from the traditions of natural law, as exemplified in the Bill of Rights, the American Bill of Rights, the UN convention and many other laws and human rights conventions. I was very pleased to hear the noble Earl, Lord Leicester, refer to his ancestor, Sir Edward—whom we must always call “Coke” hereafter, as I understand it—because he was one of the founders of our view of the common law.
We said we would never look back. Statutory power is what we want, clearly defined, and the consent of Parliament to its Dissolution—and that can be put before the Queen, without ever involving her in political controversy.
My Lords, I congratulate the noble Lord, Lord McLoughlin, on his chairing of the Joint Committee and the magisterial report that it produced. It was a pleasure to give oral evidence to that committee, and also, with my noble friend Lord Butler of Brockwell, to the Constitution Committee and the Public Administration and Constitutional Affairs Committee in the House of Commons.
The Bill now before us lays the FTPA to an unregretted rest. It also seeks to restore the status quo ante by what might be called a willing suspension of disbelief—whether that will be successful is another issue. But I suggest that, in its short life, the FTPA may have damaged constitutional expectations in a way that may not be easy to repair. This was explored in some detail in the excellent speech by the noble Lord, Lord Norton of Louth.
The expectation of what might be a matter of confidence used to be fairly wide: a Government that lost the Queen’s Speech in the Commons, or lost on an amendment central to the Speech or a Second Reading of a Finance Bill, would either have to secure a demonstrative vote of confidence or ask Her Majesty for a Dissolution—and of course the official Opposition could of course take the initiative. But under the FTPA, the agreement by two-thirds that there should be an early general election immediately relegated the big confidence issues to the second division. A Government could suffer a severe defeat, but unless the FTPA was engaged, or they lost the formal Motion of confidence envisaged in the Act, they could shake the defeat off.
My concern is that the FTPA has reset expectations on what is a matter of confidence in a way that cannot now be fully restored. The Minister said in opening the debate that of course a Prime Minister can designate an issue as being a matter of confidence, and Mr Gove said something similar in the Second Reading debate in the House of Commons, but it is not quite the same thing.
I have no doubt that the applicability of the Lascelles principles will figure in Committee, and indeed we have heard something of those this afternoon. Those who are uneasy about replacing the Commons’ statutory power under the FTPA with a purported revival of prerogative power will no doubt argue for a Dissolution to be triggered only by a vote in the House of Commons —with, no doubt, a simple majority, rather than the baneful two-thirds majority. Without, at this stage, expressing a view, might I offer a word of caution? If your Lordships decide that the decision should rest with the House of Commons rather than with the monarch upon an unconstrained request from the Prime Minister, it will be essential to specify the words to which the Commons must agree.
When in my former life I saw an early draft of the Bill for the FTPA, I was horrified. It said that only defeat on a Motion of confidence should be the electoral trigger. But how was a Motion of confidence to be defined? If it carried conditions, would it still be a Motion of confidence? I could see no more certain way of inviting judicial interpretation of whether a statutory requirement had been fulfilled, Article 9 or no Article 9. For that to happen in the charged circumstances of a looming general election would be disastrous.
I am glad to say that that problem was cured during the passage of the Bill, but it follows that, should your Lordships see fit to put the finger of the House of Commons on the trigger, there must be an explicit form of words in the Bill, with nothing left to interpretation. If your Lordships do wish to empower the House of Commons in that way, I suggest that the provision must be capable of doing two things: first, a check on a Prime Minister who is inappropriately seeking a Dissolution; and, secondly, a means of getting Parliament out of a situation where the Government of the day are simply treading water.
There is widespread unease about Clause 3 of the Bill, in respect not only of its intent but whether, as a matter of law, it can achieve exactly what it says. I do not see how a resilient argument can be made that a prerogative power, removed by statute and then restored by statute, can be a prerogative power of exactly the same character as the abolished power. I will study my noble and learned friend’s views on that very closely indeed.
It seems from proceedings in the House of Commons that the parliamentary authorities have taken the view that the matter of Prorogation is outside the scope of the Bill. That view was expressed by the Deputy Speaker in the chair on 13 September last year, and it meant that Mr Chris Bryant had to move for an instruction to the Committee of the whole House in order to discuss a new clause on that subject—on which proposal he was unsuccessful.
Having spent a while as one of those authorities, I was a little surprised at that view. Scope, or relevance, as noble Lords will know, does not depend on the Long Title of a Bill; it depends on what is in the Bill and what is very closely associated with what is in the Bill. I make no criticism whatever of the learned minds who came to that view—it is always tiresome to have the old and bold trying to second-guess you—but it seems to me that there are two factors that bring Prorogation very close to this Bill. The first is that in the FTPA, which of course was an Act about Dissolution, it was nevertheless thought necessary to include in Section 6(1) a saving for Prorogation. If the Bill now before us is resetting the clock, for Prorogation to be out of scope may thus be thought curious. I should say to noble Lords that I have no cunning plan for Committee or Report on how Prorogation might be covered by the Bill, but it seems to me that this is something which needs exploring a little further.
The second factor is that in normal times—if any of us now has a clear recollection of what normal times were like—it was not unusual to prorogue Parliament and then dissolve during the period of Prorogation, so the two processes were intimately related. This may indeed be something to explore further, and I much look forward to Committee on the Bill.
My Lords, it was a real pleasure for me to listen to the noble Lord, Lord Lisvane, reversing the pattern of some 40 years in the other place when he had to sit and listen in silence to me. While I support this legislation, I confess I do so with mixed feelings. As Leader of the House in the other place in the 2010 Parliament, I had hoped to leave behind an important legacy of constitutional reform with three pieces of legislation. The first was reform of your Lordships’ House, which secured a large majority on Second Reading but bit the dust when the Labour Party refused to agree to a programme Motion. The second was reducing the number of MPs and equalising the constituency boundaries, which was scuppered by the Liberal Democrats when they broke the coalition agreement. The third and final piece of my legacy was the Fixed-term Parliaments Act, now being repealed by my own party. So when my grandchildren ask what I did in that Parliament, the answer will now be “Very little”.
In agreeing with repeal, I think it important to put the Act in a slightly different context from that which we have heard so far in this debate—at times a rather cynical context. I think there is common ground that, over recent years, the Executive have claimed for themselves more and more power at the expense of Parliament with the extensive use of Henry VIII clauses, the introduction of guillotines, programme Motions and deferred Divisions in the other place and the extensive use of patronage—a theme developed by the noble Lord, Lord Rooker, in his excellent speech, although I got off his train before it arrived at the destination.
In 2010, we tried to redress the balance and shift the terms of trade away from the Executive and back to Parliament. We introduced elections for the chairmen of Select Committees, breaking the grip of the Whips, we introduced a Back-Bench Business Committee, breaking the monopoly of the Government on the business of the House, and, as part of that package of restoring power to Parliament, we took away the right of the Prime Minister to dissolve and gave it to Members of Parliament. I prefer to put the Act in that context, assigning slightly better motives than the more cynical ones perhaps ascribed by the noble Lord, Lord Grocott.
The Fixed-term Parliaments Act had other advantages. It enabled me, speaking purely selfishly as Leader of the House, to plan a package of Bills over a five-year Parliament, rather than, as previously happened, finding that in year three of four, half way through, the Prime Minister would dissolve and a whole series of Bills would be lost. In 1983, I had to introduce the same Bill twice because Parliament was dissolved half way through. The fixed-term Parliament was popular in financial circles—they do not like uncertainty—and, as has been said, it brought us into line with other democracies. However, as noble Lords have explained, it clearly has not worked. At the foot of the bed of the 2107 Parliament was a notice saying “Please Do Not Resuscitate” —but the Fixed-term Parliaments Act officiously kept it alive. So I accept that we should repeal the Act, but I put that plea of mitigation in context.
However, I paused when I reached the ouster clause in the Bill which, to use an economist’s phrase, hit me right on my indifference curve. On the one hand, I understand why the Government are concerned about judicial activism. The Minister mentioned the direction of travel of legislation and the Supreme Court decision in Miller, and I see why my noble friend and the Government want to insure themselves against such intrusion when it comes to this Bill. I see from the helpful report from the Joint Committee ably chaired by my noble friend Lord McLoughlin that the Government’s view has support from, for example, the former First Parliamentary Counsel, Sir Stephen Laws.
But there are a number of arguments to the contrary, which we have heard, and I shall mention just two. First, as the report says, non-justiciability is determined by the courts themselves and is not imposed by statute. As the noble Lord, Lord Lisvane, and Sir Malcolm Jack pointed out in their evidence,
“the courts will themselves interpret clause 3 of the draft Bill.”
So to that extent it seems to be self-defeating.
Secondly, on judicial activism and the Miller case, Prorogation could not be more different from Dissolution. The Executive’s decision to prorogue a sitting Parliament against its will so that the Executive could not be held to account during a critical time in the nation’s history was outrageous—so outrageous that it obliged me for the first time in 23 years as a Minister to leave the Government, and I had swallowed quite a lot of indigestible stuff before. The Supreme Court rightly held the action to be illegal, and it was an affront to democracy—but that is totally different from a decision to dissolve Parliament so that Parliament can be refreshed by the electorate. Indeed, what could be more democratic than such a decision? I am not a lawyer, but the noble and learned Lord, Lord Brown, is and he said it would be inconceivable for the courts to intervene. Far from being an affront to democracy, as in Prorogation, it would be the very assertion of democracy.
So, while I am supportive of the Bill, the Minister will have some work to do to persuade me of the necessity of Clause 3.
My Lords, I am late in the speaking order today, and I have therefore decided that I shall fillet the comments that I was going to make, because many of them have already been made—but I will identify those whose comments I particularly agree with.
First, I observe that it would appear that it is a good idea to distribute a magazine free of charge to all Members of the House, because I have rarely heard the New Statesman quoted so often by so many speakers.
Briefly before I come to the crux of my observations, I will return to the comments made by the noble Lord, Lord Rennard, in relation to shortening or not shortening an election period. In paragraph 2.15 the Joint Committee said:
“We would like to see a significant reduction in the election timetable, insofar as this is compatible with ensuring the register is up to date and proxy and postal votes are possible”.
I share the concerns of the noble Lord, Lord Rennard, about any form of shortening of the timetable unless there are substantial changes to election law as it currently stands—and I do not see that happening, as he did not either.
I return to the other part of the main thread of the debate: Clause 3, the ouster clause. I should of course favour this legislation. Removal of the Fixed-term Parliaments Act will allow a certain Lord Hayward to appear on radio and television any number of times, guessing what the election will result in in terms of a majority for whom and in whatever form—so it is great to abolish this legislation. What I do not understand in relation to Clause 3 is that, in the autumn of 2019 and in December 2019, had there been an election without the Supreme Court decision, the Government would not have secured a majority of the size they did, because they were able to achieve a deal and therefore were in a very different position. Therefore, why Clause 3 should be there saying “Well actually, we want to penalise the judiciary for having taken action which produced—in my mind—a larger Conservative majority” makes no sense whatever.
More importantly, as other Members of this House have said this afternoon, it seems to be bad law to set about saying, “We are going to say that these things cannot be considered by the judiciary.” As has been pointed out, it is downright difficult to achieve that phraseology anyway, but I am afraid that I agree with the vast majority of noble Lords who have spoken, including the noble and learned Lord, Lord Hope, my noble friend Lord Norton, the noble Lord, Lord Lisvane, and, albeit using different phraseology, the noble Lord, Lord Rooker, that it is unacceptable for us to try to go down that route. One of the pillars of the British democracy is the strength of our judiciary working along- side Parliament. Long may it continue to be so.
My Lords, I congratulate my noble friend Lord Leicester on his excellent maiden speech and what he has done at Holkham. I have spent many happy times there. Well, they were sort of happy. I was with my 13 year-old son trying to spot lapwings. I am not a bird-watcher and it was very cold, but it was very enjoyable—apart from us not seeing anything at that point.
If anyone wants to know why constitutional reform matters, one has only to listen to this debate and consider the rather miserable history of the Fixed-term Parliaments Act 2011. I am sorry to tread on the toes of my noble friend Lord Young but I share a belief in what he may see as a slightly cynical rationale behind this, which others have spoken of. For proof of that, one need only consider how and where this Act was born. It was conceived in the heat of the rose garden romance, and it was born in the political back room of the deal that was done around the coalition. Sir Oliver Letwin, the midwife of that coalition, has testified that the Act
“was to enable the coalition to be formed. One of the principal demands of the Liberal Democrat side of the coalition, when we came to discuss the whole proposition, was that there should be no ability for the larger of the two parties—the Conservative Party—within a coalition Government to spot the moment when it would be convenient to ditch the coalition by seeking a dissolution.”
With due respect to my noble friend, I see that deal as a dark day for our Conservative Party, which I thought would not treat the constitution as a bargaining chip in political horse-trading.
Of course, some tried to give the Act more credibility, as others have today, by dressing it up in the clothes of constitutional theory. The best example of this was Mr Nick Clegg, former representative of the hard-working people of Sheffield Hallam, now representing the billionaires of Silicon Valley. It is worth reminding ourselves of what he said when he presented the then Fixed-term Parliaments Bill at Second Reading:
“There will be no more feverish speculation over the date of the next election, distracting politicians from getting on with running the country. Instead everyone will know how long a Parliament can be expected to last, bringing much greater stability to our political system. Crucially, if, for some reason, there is a need for Parliament to dissolve early, that will be up to the House of Commons to decide. Everyone knows the damage that is done when a Prime Minister dithers and hesitates over the election date, keeping the country guessing. We were subjected to that pantomime in 2007. All that happens is that the political parties end up in perpetual campaign mode, making it very difficult for Parliament to function effectively. The only way to stop that ever happening again is by the reforms contained in the Bill.”—[Official Report, Commons, 13/9/10; col. 621.]
I only hope that Mr Clegg gives Mr Mark Zuckerberg better predictions, for we all know what happened two years later: feverish speculation over the date of the election, distracted politicians unable to get on with running the country, and no one sure how long the Parliament would last. What was the reason for that parliamentary gridlock? As others have said, before the Fixed-term Parliaments Act reared its head we had a simple system, which my noble friend Lord Norton set out. In essence, when a Prime Minister lost the confidence of the other place, there would be a general election and, if the Prime Minister chose to call a general election, we would have one. Those two simple thoughts fuse into one big point, which my noble friend Lord Strathclyde made: trust the people. If the people’s representatives lose confidence in the Government, or if the Prime Minister wishes to renew the Government’s mandate, it is the people who are put back in control. No faction in Parliament or judge in a court could prevent that from happening.
That was the system which we had before. Therefore, it is entirely right that we should go back to it. I agree that trying to turn the clock back—or, perhaps more aptly in this case, trying to put the toothpaste back in the tube—obviously raises all manner of legal questions which I know set racing the pulses of noble Lords, and especially noble and learned Lords. On a matter as important as this, of course it is right that we kick the tyres of what is proposed. At first, I was quite queasy, as others are, when I read of the ouster clause. However, the more I read—not as a lawyer—the more I sensed that this is an exceptional issue on which an ouster makes sense.
I hear the points about Article 9 of the Bill of Rights, but in this case, we should leave it beyond all doubt that the courts cannot thwart an election. To achieve that aim, I have yet to hear any credible alternatives to the ouster clause as written in the Bill, so I would keep it as it is. Sir Stephen Laws told the Joint Committee:
“It would be nice to have neatly focused ouster clauses that you could justify in relation to what they actually apply to. But that is not a thing that is possible anymore, because if you try and draw some distinction as to where the ouster clause will or will not apply, you will end up with the courts using that distinction in order to circumvent the ouster you are intending to create.”
The Dissolution Principles document strikes me as also obviously necessary, and I was pleased that the Government have accepted that the Prime Minister requests a Dissolution. The document’s simplicity is critical. Trying to enshrine the Lascelles principles, or codify what is to happen in a multitude of scenarios, would create complexity and uncertainty, and could do what we all wish to avoid: drag the monarch into politics.
Let me end where I began. A previous Government ran headlong into constitutional reform, riding roughshod over processes and conventions that may have had flaws but maintained that clear link between Parliament and people. The sooner we get back to the previous system and restore that link, the better.
My Lords, I am very glad to follow my noble friend and like him, of necessity, I come to bury the Fixed-term Parliaments Act, not revive it. It has been a privilege to listen to so many excellent speeches this afternoon, not least the maiden speech of my noble friend Lord Leicester. As a fellow East Anglian, I too have much enjoyed visiting the Holkham estate in years past. We look forward to his contributions here as well.
As we get towards the latter stages of this debate, I have reached three hesitant conclusions for Second Reading, which should take us towards thinking about the Bill further in Committee. If the Government believed that the prerogative was in abeyance, they should simply have repealed the Fixed-term Parliaments Act. Lo and behold, the personal prerogative of the sovereign would be revived in the way that it existed previously. Clearly, they did not believe that, which is why we have the legislation in the form that it is rather than a simple repeal. Therefore, we must conclude that we are seeking to set statutory provisions around a defined personal prerogative of the sovereign. We all want the personal prerogative of the sovereign to be responsible for the Dissolution of Parliament and to be untrammelled and not interfered with, but equally we want it to be so precisely delineated that the sovereign is not drawn into political controversy as a consequence.
My reason for participating in this debate is that we looked at the question of the prerogative at length during debates on the Trade Act. The position I come to it from is this: every time Parliament comes into contact with the prerogative in statute, we should not necessarily abolish it because, as with the Trade Act, we may think it quite right for there to be an executive responsibility, but we then have to make it accountable. So my second conclusion is that, here we are, putting a statute in place to govern the exercise of a prerogative—particularly the exercise of it by the Prime Minister, of course, rather than the monarch—and we should hold the Prime Minister accountable to Parliament, because that is where the authority comes from. We have to defend the sovereignty of Parliament.
Therefore, what does that accountability look like? It ought to be a simple majority of the House of Commons. We can dispense with some of the more unhelpful arguments about the Fixed-term Parliaments Act and the supermajority. We will not go back to gridlock as a consequence of that because there is no supermajority. A simple majority gets us to precisely the position that we want—namely, where a Prime Minister who has a majority in the House of Commons will get his or her way, and that should be the case. However, we also have to say that if a Prime Minister has not got a simple majority in the House of Commons, they should not necessarily get their own way. Therefore, my third conclusion is that we should put such a simple majority into the Bill.
I encourage noble Lords not to think about the last coalition, which I think history will treat more kindly than it has so far, but to think forward to the next one. Let us imagine a day when there is a coalition where the Prime Minister comes from a party that has significantly less than a majority in the House of Commons but has created a coalition. Should that Prime Minister be able to go to the palace and ask for a Dissolution without any scrutiny whatever? Would this not be an abuse? Is it not essential that any such coalition in the future—we have to anticipate that there may be such a thing—would have to re-enter exactly this territory? Would we not future-proof the Bill if we put a simple majority in the House of Commons into it? Would we not create the constitutional environment in which a coalition could be formed if needed? Coalitions ought to be about exactly that kind of situation; otherwise, I do not think that we have properly done our job in anticipating the circumstances that this legislation may pertain to and preparing it for that possibility.
My Lords, in my time in your Lordships’ House, two periods stand out as painful memories, and both are addressed by the Bill. The first is of the period of coalition government between 2010 and 2015. While these Benches rejoiced at the end of the period of Labour rule, many of us found it hard to support the coalition wholeheartedly. In particular, the coalition agenda had a disproportionate focus on constitutional reform, which inevitably sapped energy away from more important things. I was very sorry to hear my noble friend Lord Young of Cookham, who is leaving his place at the moment, claiming some credit for that. Of course, there was Nick Clegg’s futile attempt to reform the House of Lords, which fortunately ran into the sand and never got past a Second Reading in the other place. The time of both Parliament and the country as a whole was wasted on a referendum on the alternative vote system. The wheels came off that when the British public had their say.
At the time, the Fixed-term Parliaments Act did not seem to be the worst of the constitutional measures that sailed under the convenience flag of the coalition, but its weaknesses emerged over time. As we have heard, it has produced only one five-year fixed-term Parliament, and that was in order to hard-wire the coalition in. Whether or not that was, on balance, a good thing for the country is a moot point at best. After 2015, we had two elections in less than five years—so the Act failed in its initial purpose.
The 2017 election was an act of self-harm by my own party—I freely admit that—but the second, in 2019, is the source of my second painful memory. Its final result, when it was finally called, was a triumph for democracy and the good sense of the British people, whose message was clear, and that included getting Brexit done. But the journey to that election was truly painful and laid bare the flaws of the Fixed-term Parliaments Act.
The requirement for a supermajority and the narrow path laid out for a no confidence Motion in the other place before an election could be called led to chaos in Parliament in 2019. The Government could not get their business through, could not call a general election and were harried at every turn by both Houses of Parliament, set on defying the outcome of the 2016 referendum. I still bear the scars of what happened in your Lordships’ House, as I am sure my noble friend the Minister does, and I certainly hope never to experience its like again in my remaining time here. For these reasons, the Bill has my wholehearted support. We must never again risk the mayhem of late 2019. That is why I fully support Clause 1, which removes the Fixed-term Parliaments Act from the statute book—it can be written out of our history.
The logical next step is to reinstate the status quo ante. As we have heard, Clause 2 does this through the revival of the royal prerogative. I believe that anything that diverts from that straightforward aim, including fettering the royal prerogative with parliamentary processes, runs the risk of unintended consequences. It is conceivable that a Government might not have a majority, could not get a vote through the other place and could be held to ransom, as they were in 2019, by a Parliament set on thwarting their will. That year showed us that the unthinkable can indeed happen. The previous system worked well for Governments of all parties, and I am confident that it will work well again. We should simply revive the royal prerogative and not invent something else around it.
I also support Clause 3 of the Bill, which expressly provides for non-justiciability. I do not believe that it should be seen as an ouster clause, because it is generally accepted that the likelihood of the courts challenging the monarch’s personal prerogative is very small. There should be nothing to oust. But a small likelihood is not a zero possibility, and recent judgments should make us wary of where the courts might want to go in future—we clearly cannot rule out future judicial activism. I believe that we should put that question beyond any doubt by enacting Clause 3.
The other place has already expressed its clear view on this short and simple Bill. When it debated it, it did so in the light of all the relevant issues that were surfaced by the excellent Joint Committee on the Fixed-term Parliaments Act, its report and the Government’s response. It also did so in the light of the points raised by the Public Administration and Constitutional Affairs Committee in the other place, and I do not believe that any new issues have been raised by your Lordships’ Constitution Committee in its recent report, although I look forward to hearing the noble Baroness, Lady Taylor of Bolton, in due course.
Your Lordships’ House is always entitled to ask the other place to think again, but I suggest very gently to noble Lords that doing so when the result is not likely to change is not a good use of your Lordships’ time. I hope that this House will not impede the Bill’s journey to Royal Assent.
My Lords, I always enjoy following my noble friend Lady Noakes. I frequently disagree with her, and I am afraid I will disagree on certain issues this afternoon, but she is a meticulous parliamentarian and we are very fortunate to have her with us.
I speak with a certain sense of nostalgia. I made my maiden speech in your Lordships’ House on the Fixed-term Parliaments Bill. I damned it with faint praise, but of course, as a new Conservative Back-Bencher, always anxious to be compliant, I gave it my support.
No Parliament can ever bind its successor. What we are doing is not in any sense without precedent and it is entirely acceptable that we should seek to take this unhelpful legislation off the statute book. I would have preferred a straightforward repeal. That I could have supported without any real reservations. After all, in the 2010 general election, all parties but the Conservative Party pledged themselves to fixed-term Parliaments and even the Conservative Party was not outright hostile to them. In 2019, both the major parties —Conservative and Labour—pledged themselves to repeal. That would have been good.
Of course, in the old system which we are seeking to return to, there was no magic wand for any Prime Minister. I intervened on the noble Lord, Lord Newby, to remind him that 2017 was not exactly a resounding success for our party. I have vivid memories of 28 February 1974, which was the first election at which I had to defend the seat I had won in 1970. If noble Lords remember, there was great controversy as to whether that election should take place. I remember attending and speaking at two heated meetings of the 1922 Committee in another place. In the first meeting, everybody seemed to want a general election on 14 February, apart from Sir Stephen McAdden and me. At the next meeting, we had withdrawn our opposition, knowing we had lost, and the election was called for the 28th. The Prime Minister of the day was roundly criticised for his slogan, “Who governs the country?”. “You do”, he was told, “That is what you were elected to do on 18 June 1970.” We all know what happened: an inconclusive election but a real defeat for Edward Heath, who never came back as Prime Minister.
While in this context I can accept this Bill and give it my support as far as the abolition of fixed-term Parliaments is concerned, unlike my noble friend Lord Bridges of Headley, whose speech I listened to with fascination and much approval, I cannot support Clause 3. William Wragg, the chairman in another place of the Public Administration and Constitutional Affairs Committee, had it right that this is unnecessary. To me, it smacks of the naughty schoolboy who has been rapped on the knuckles by his teacher then pulling the teacher’s chair away so that he falls to the ground. It is an act of spitefulness at worst, humorous revenge at best, but constitutionally, it is unacceptable and wrong. I was glad to hear my noble friend Lord Lisvane—I deliberately call him that—in his excellent speech make some very powerful points in this context.
If this clause remains in the Bill unamended, like the noble Lord, Lord Butler, I will not support it, because it has dangerous precedence. The reason why I think that is in effect summed up by three reports published by your Lordships’ committees in the last 10 days. I here associate myself very much with some of the sentiments of the noble Lord, Lord Rooker. There is the report from the Constitution Committee, about which the noble Baroness, Lady Taylor, will speak later, on the Dissolution and Calling of Parliament Bill. However, the title of the report from the Secondary Legislation Scrutiny Committee says it all: Government by Diktat: A Call to Return Power to Parliament, as does the report from the Delegated Powers and Regulatory Reform Committee: Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. We are at a dangerous crossroads. There is a real danger of Parliament becoming the creature of government. The noble Lord, Lord Thomas of Gresford, talked in his very interesting speech about the separation of powers. We do not have separation of powers such as they have in the United States; here the Executive are drawn from the legislature. Therefore, there is in every parliamentarian’s thinking, “Do I go against my Government? Do I break ranks with the Official Opposition?” The most troubling development of my 51 years in Parliament has been that what was a vocation to public service has become a job. Far too many entering Parliament do so feeling that they will fail if they do not get on to the Government Front Bench. There is that dichotomy and tension. In that tension, it is easy for a Government to try to use Parliament rather than be accountable to it. There is an enormous difference between those two states.
We should never forget, in the immortal words of Edmund Burke, that the price of liberty is eternal vigilance. We in Parliament have a duty to be eternally vigilant, to hold the Government to account. We in this House, quite rightly, have very limited powers; we can seek only to ask people to think again. However, while I accept the basic premise of this Bill without opposition, Clause 3 is fraught with danger. When we come to Committee, we must ask the other place to reflect on it and what it implies, and to think again.
My Lords, like the noble Lord, Lord Lansley, I have noted the mood of the House that we have genuinely come together today to bury the Fixed-term Parliaments Act, not to praise it. Many noble Lords tell your Lordships’ House that they support this Bill and the burial of the Act in the interests of democracy. I am sure that they are honourable men and women, who support the status quo in our society and say they want to restore things to just the way they were.
That is not my position. Like the noble Lord, Lord Newby, I know that the good is being buried with the bad with the abolition of the Fixed-term Parliaments Act. As the noble Lord said, the majority of the world’s democracies have fixed-term Parliaments—countries with modern, functional, democratic constitutions. None of those adjectives can be applied to the UK constitution, with or without the Fixed-term Parliaments Act. A Prime Minister who can call an election, with or without the support of a parliamentary majority that put him or her in place, has the advantage. As the noble Lord, Lord Hayward, said, shortening the election period would only magnify that advantage.
Of course that advantage can be lost, as the noble Lord, Lord Cormack, pointed out to the noble Lord, Lord Newby. But it is usually significant and often decisive and gives great benefits, particularly in fundraising, which is so important to the outcome of our elections—the country gets the politics that the few people pay for—and in planning, given the costs to opposition parties, which must plan just in case without the clarity of a known timetable. My political memory goes back to Gordon Brown’s election that wasn’t, and a living room filled to the ceiling with paper that was bought in case of the need for freepost leaflets that were never used for that purpose. That is the practical politics of a growing challenger party.
None the less, I am not going to go further down the route of arguing against the sense of set election times; that is not an argument I am going to win today. I will turn instead, as many noble Lords from all sides of your Lordships’ House have, to focus on Clause 3. Many expert legal minds have chewed over the detail and will continue to do so. I want to focus more on the principle. Why are the Government so concerned about their behaviour being judged against the standard of law? Surely that is what the rule of law is all about. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that Clause 3 would ensure that the courts were relieved of the embarrassment of being drawn into a sensitive area. Surely protecting the people, the constitution and the country from unlawful decisions is the role of the courts; we do not need them for the easy stuff. That they have become, as some see it, more active is, I suggest, because of the law-breaking at the centre of government becoming more extreme, the Executive chafing against the limits of control from the rights won by the people over centuries of campaigning—human rights that the Government are keen to destroy. This is not judicial activism but judicial defence of the law.
The noble Lord, Lord Grocott, noted that it was the poisonous distrust among the coalition partners that created the Act that we are working today to abolish. I do not need to quote the opinion polls. It is a well-known fact that poisonous distrust is also the people’s attitude towards our politics and politicians—a distrust that led to the desperate desire to “take back control” in 2016, a desire very clearly continually being frustrated by the lack of a democratic constitution and the concentration of power and money in Westminster. Unlike the noble Lord, Lord Thomas of Gresford, I do not regard “novelty” as a negative term. I desperately want the novelty of democracy in the UK.
Why are our politics so poisonous? I draw your Lordships’ attention to the recent coalition negotiations in Germany, where three parties from very different ideological starting points negotiated the formation of a Government and a platform for it. Yes, it took a little while. Talks proceeded and talks were concluded. I note the important comments of the noble Lord, Lord Lansley, about how British politics might look different—a little more like Germany’s in future—without even a change of electoral system. Around the country, there are 13 local councils where Greens are part of what are known as rainbow coalitions, the very kinds of structures that he was imagining. That is functional, grown-up, democratic politics—not something we have much experience of here in Westminster. Here we have a see-saw from one side to the other, and parties seeking power without principles or policies attached to them.
It is tempting to blame individuals—I promise you that I do—but this culture has persisted over many years. My thesis is that the problem is the system. The checks and balances in the UK are deliberately weak, because we have a feudal monarchy with occasional bits of democracy bolted on, scraps that were thrown to the people when the pressure became too great over centuries. The whole Bill is an attempt to knock off a bit of that bolted-on democracy and to test how far the Government can get away with taking back power from Parliament, the courts and the rule of law. The noble Baroness, Lady Noakes, rather gave the game away when she spoke about the events of the past—about Parliament defying the will of the Government.
The Minister acknowledged that it was only after pre-legislative scrutiny that it was ensured that the law provided that Dissolution was an automatic trigger for a defined polling date. But what happens if there is an emergency, real or created, such as a pandemic or a war? What if it is said that an election cannot be held in these emergency conditions—which are all too likely to be real, or easily created, in this age of shocks? Maybe this would be an act of obvious bad faith. But then redress against actions in bad faith is explicitly excluded by Clause 3. I can sense the scoffing, although my comments very much take the direction of those of the noble Lord, Lord Rooker. But would it be so surprising from a Prime Minister who advised the monarch to unlawfully suspend Parliament; from a Prime Minister who planned to break international law, and was stopped from doing that only by this unelected Chamber; and from a Prime Minister looking in the policing Bill to end the right to protest, in the Elections Bill to take over the Electoral Commission and suppress the votes of his opponents, and in a promised judicial review Bill to further reduce the rule of law?
The Turkish thinker Ece Temelkuran, speaking about the West, said that,
“some … choose to believe that their mature democracy and strong state institutions will protect them”
from dictatorship. She warns of “dark dawns”, such as Turkey has experienced, being experienced possibly anywhere. We do not have a mature democracy, we do not have strong state institutions and we are not protected, and, if Clause 3 remains in the Bill, we will be even more vulnerable.
My Lords, the government Bill before us today restores the democratic nature of how our parliamentary system works and how elections can be called. We are the custodians of democracy, and elections are pivotal to this. The Bill makes provision for the Dissolution prerogative to be revived and, in doing so, ensures legal, constitutional and political certainty around the process for dissolving Parliament in future. It is a return to the tried and tested traditions that worked so well in the past, before the Fixed-term Parliaments Act.
The process of dissolving Parliament and calling a new Parliament was changed in 2011 to help make the coalition Government more resilient. It was brought in under specific circumstances, providing us with relative political stability at a time when the country was facing economic uncertainty. However, over the past decade, the political and economic landscape has changed significantly and has rendered the Act unfit for purpose and redundant. We must not risk the future return of a zombie Parliament such as we saw between 2017 and 2019, which caused exasperation in the general public. If there is gridlock in the other place, it is only right that the question is taken back to the people, ensuring that the country is not once again held in a state of paralysis by a few hundred individuals.
The Fixed-term Parliaments Act served its purpose. However, politics and time have moved on. As there was no sunset clause included in that Act, it is only right that we take steps to repeal it. It is for this reason that I welcome the return to a robust system.
I understand that some are concerned about the powers that the Bill returns to the Prime Minister, theoretically allowing the Prime Minister of the day to call elections when it is most politically convenient to them. On this I have two points. First, the Bill limits Parliament to five-year terms, so places a time restraint on the Government. Secondly, I remind noble Lords of the outcome of the 2017 general election, which some on this side of the House will remember with a shudder, while I suspect others may have fonder memories. Elections are risky endeavours and should not be taken lightly, and the Bill does not change that. The Bill strengthens our democracy, making both Parliament and the Government more—not less—accountable to the British public.
There is another consideration that I wish to raise. The Bill was part of the Government’s manifesto. The 2019 general election gave the Prime Minister the mandate to deliver on his promise to the British people that their express instruction would never again be perversely frustrated by factionalism within Parliament. The mandate given to the Government to deliver on their pledge of repealing the Fixed-term Parliaments Act is unassailable. Given the swift passage of the Bill through the other place by those who will be directly affected by it once it is given Royal Assent, I hope that others here will share my view that it is not for us to frustrate it.
We enjoy a privileged position that we should endeavour to use in the pursuit of strengthening and safeguarding our democracy. The Government’s Bill gives us an opportunity to do so and I will therefore be supporting it.
My Lords, I very much welcome the Bill. I was never a fan of the Fixed- term Parliaments Act and, indeed, never a fan of fixed terms, whatever the manifesto said at any particular time.
We should start by reminding ourselves of how we got that legislation in the first place. It was a simple, blatant political fix between the Conservatives and the Liberals, between Cameron and Clegg—I do not know how many other people were consulted. As a former Chief Whip I have no problems with a political fix, but please do not dress it up as some constitutional principle because it was never that in the first place.
The Constitution Committee, which I currently chair, was very temperate in its language at the time. It said, as the Minister reminded us, that the Fixed-term Parliaments Bill
“owed more to short-term political considerations than an assessment of constitutional principles.”
I think that is the polite way of saying “a political fix”. Clearly, the committee was quite right in assessing the longevity of that legislation. As we have seen, it was proven that it was possible for a Government—for a Prime Minister—to get around the provision, so the Minister was quite correct when he said it was a political experiment that failed.
So, here we have the withdrawal of that legislation and, as I say, I welcome that. However, the repeal is the easy part—we can all agree that that is simple; we are now entering new territory. In the Constitution Committee’s report we say that it
“touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament.”
Before I go into the conflict and the details, particularly Clause 3, I say at the outset that we should all welcome the clarity of a five-year term for any Parliament; I think most of us will be happier with that. In respect of other parts of the Bill, it is not a case of being happy with them so much as hoping that they are workable.
There has been a lot of discussion about whether it is possible to return to the pre-Fixed-term Parliaments Act provision. Can a prerogative that has been abolished be reinstated? In some respects the Government have adopted a belt-and-braces attitude: they have a statutory provision and the ouster clause. That aspect of Clause 3 is clearly causing not just academic concern but concern on all sides of this House, and it will have to be addressed in Committee.
I think we all agree that we need to keep the Monarch out of all the potential political considerations. I remind the House what the Constitution Committee said about Clause 3, because it is extremely relevant to the discussions we will have later:
“The use of ouster clauses to restrict or exclude judicial review of executive decisions touches the bedrock of the constitution, particularly the precise balance between the rule of law, the separation of powers and the sovereignty of Parliament. On the one hand ouster clauses should provide legal clarity about the ability of the executive to make decisions which may be considered more appropriate to political rather than judicial deliberations. On the other hand, judicial review”—
this is important—
“should provide a backstop against exceptional use of an executive power which significantly erodes a fundamental principle of the UK constitution.”
We go on to say:
“There is a risk that a Prime Minister might abuse the power of dissolution if the courts are unable to exercise control over the limits and extent of this power, particularly in exceptional circumstances.”
To build on what the noble Lord, Lord Butler, was saying, the experience of the last few years tells us that exceptional circumstances and events are not as exceptional as we might have expected. We need to consider how to make sure that the balance that is required is maintained and workable. There are dangers there. They have been highlighted in the debate today, and they will be looked at in great detail in Committee.
There are just three other points that I want to make. The most important concerns the issue raised by my noble friend Lord Grocott. I was very surprised that the House of Commons gave up any say whatever in the calling of an election. As I say, I did not like the Fixed-term Parliaments Act but it did give MPs that power and that say—although not to the extent that many people suggested—so I was surprised that the House of Commons did not reinstate at least some kind of confirmatory vote in the House, should the Prime Minister decide to call an election. I am not sure how much difference it would have made, but in the exceptional circumstances that we can all perhaps envisage, it could have been possible.
Secondly, I welcome what the Minister said about taking on board the concerns of the Scottish and Welsh Governments about possible clashes of election dates. That needs restating and underpinning in some way because it could create some significant problems.
Thirdly, in early September the Constitution Committee published a report on the need to review and update the Cabinet Manual. The Minister indicated when he will respond to our report on the Bill, but he has not yet responded to that report. The Government’s response is significantly overdue, and I hope we can get some indication of when that review will take place. But it is also important that we get an acknowledgment that Parliament and parliamentary committees should have some say on the content of the Cabinet Manual. It is important that the Dissolution principles we have been discussing on the fringes of this debate are part of that, that they can be discussed by Parliament and that Parliament can have some influence there.
Finally, I remind the House that the Constitution Committee has long emphasised that constitutional change should be able to stand the test of time. The Fixed-term Parliaments Act did not do that. I hope this House can make sure that this Bill is in a fit state to pass that test.
My Lords, as the final Back-Bench speaker, I cannot help wondering whether I have been so placed because I supported the Fixed-term Parliaments Act when the Bill came through your Lordships’ House. While it may have been a political convenience for the coalition Government, as some have argued in this debate today, I believed in it, and I spoke up for it at every stage, as a Back-Bencher and a new Member of your Lordships’ House. I did that not because I particularly favoured fixed-term Parliaments—I do not. I supported the Bill because I saw that it was one of the few structural changes that we could make to our political system to show the public that we were serious about putting their interests before our own. This was, in my view, essential following the financial crash of 2008, the expenses scandals of 2009 and the crises in public confidence across all aspects of politics and institutions that are meant to serve the public interest. Indeed, I was not alone: fixed- term Parliaments featured in the Labour and Lib Dem 2010 general election manifestos, broadly for the same reasons—although it seemed to me that, once the Bill arrived in your Lordships’ House, the Labour Party seemed less convinced about them by then.
To me, alongside behavioural changes, we politicians needed to identify some meaningful structural changes that would favour the public interest, even though, from the perspective of parliamentarians, they were not broken—and I say that again. I made it clear during the passage of the fixed-term Parliaments legislation that the system for calling elections that we had before was not broken; the reason to change it was to give up some power for the benefit of the electorate.
All that said, I am not going to argue against the Government’s decision to repeal the Act. It has not worked, and I think that it needs to go. However, if we are not to perpetuate the problem which fixed-term Parliaments were meant to help solve—at least according to my view and that in the Labour and Lib Dem 2010 manifestos—we must make sure we understand why it did not work and learn the correct lessons.
I pay tribute to my noble friend Lord McLoughlin and the Joint Committee, which considered this matter in detail, as well as the other committees of your Lordships’ House, particularly the Constitution Committee, chaired by the noble Baroness, Lady Taylor of Bolton. But even with the benefit of those committees’ work and all the constitutional experts and lawyers in your Lordships’ House who have spoken today, our biggest risk is failing to see the bigger picture. We must not lose sight of that as we scrutinise this Bill in detail.
As the final Back-Bench speaker, allow me to paint with some broad brushes. The value to the voters of fixed-term Parliaments was some certainty that the Government and political parties would not be distracted by a general election, at least for a while, and certainty that the Government of the day and all political parties would have to face the electorate on a predetermined date, whatever the political conditions at that time—something that has already been said by other noble Lords today. Although fixed-term Parliaments meant certainty for the electorate in principle, in practice, as we have heard, the legislation meant the Prime Minister relinquishing power to Parliament—or, more specifically, to Members of the Commons—to decide when it would be in the public interest to undo that certainty to achieve greater clarity from the voters. Once enacted, MPs were given the power to override what the electorate had determined at the general election by way of a vote of no confidence or a two- thirds majority in favour of an early election.
The basic safeguard was our assumption, I guess, that in order not to scupper voters’ impending support via the ballot box, MPs would not seek to force a general election unless it made sense to the electorate that they did so—in other words, if there was a problem which was preventing effective governance of the country which could not be resolved without clarity from the electorate. That principle seemed to work okay in 2017, when Theresa May, as Prime Minister, could see that getting the necessary legislation through Parliament to enable Brexit would be near-on impossible. The opposition parties might not have agreed with her intentions about Brexit but, in line with all expectations and like all opposition parties throughout the ages, they did not give up the opportunity of an election when it was offered to them by the Prime Minister.
As we all know, things did not work out quite as Theresa May planned. I believe that that was not because, as some have argued already, she was opportunistic but because during the campaign the voters were left uncertain and unsure about the various party leaders and what they offered, and delivered a result that was even less clear than before. That lack of clarity from the voters was a message to the political class to sort ourselves out, but instead, we all turned inwards: Parliament and the Executive engaged in battle, and parliamentary gridlock ensued. Whatever anyone thought of Mrs May’s Government or her attempts to secure Parliament’s agreement to her Brexit deal, I think she was vindicated in her belief that, without a clear majority, Parliament would not deliver the will of the people.
By the time Boris Johnson succeeded her in 2019, normal parliamentary rules and political conventions had collapsed. It was clear that a general election was needed, but Parliament refused. Whatever noble Lords think about Boris Johnson’s tactics when he succeeded Mrs May, his efforts to force a general election were rewarded with clarity from the electorate.
Unlike most other noble Lords who have spoken, the reason why I think the Fixed-term Parliaments Act needs to be repealed is not that there is anything wrong with the legislation in principle, although I am sure that some points of detail could have been improved, but, sadly, that Parliament sought to use the legislation to its own advantage when it was out of step with the majority of the electorate—not just those who had voted to leave the European Union but the many other voters who just wanted Brexit to be dealt with, so they could move on. That is a dreadful indictment on us all, and it is the lesson that I think we need to show that we have learned.
As much as I regret the demise of a structural change to our system which I believed was in part a response to voters’ lack of confidence in Parliament, I think the only way forward now is to go back to what we had before and concentrate on behavioural changes which show how we are motivated by serving the public interest. That is why I hope very much that noble Lords, however well intentioned, do not bring forward amendments during the passage of this Bill to give the House of Commons the power to decide whether a Prime Minister can dissolve Parliament and call a general election. In my mind, that would not improve matters of public confidence in Parliament; it would make matters worse, because it would appear that this House is driven by its opinion of the current Prime Minister, not by what best serves the long-term interests of the public at large.
My Lords, I take issue with the repetition of the phrase “tried and tested” by the Minister and others to defend prerogative power. The British people, the Minister declared, lived with the previous system for centuries. For several of those centuries, this country was at best semi-democratic. In the 17th century, as the noble Earl, Lord Leicester, reminded us, Chief Justice Coke stoutly defended the rule of law against the royal prerogative. Parliament’s resistance to the royal prerogative led to civil war and the execution of the king, followed 40 years later by the expulsion of his second successor and the invitation to his Dutch son-in-law to become king instead. Our 18th century political system was highly corrupt, with bribery and patronage underpinning government. I hope that that is not a tried and tested system to which anyone would like to return us.
Reform in the 19th century made for higher standards and greater democracy, almost always against the entrenched resistance of the Tory party. Throughout the past 400 years, as the noble Lord, Lord Grocott, remarked, the whole history of Parliament has been the transfer of powers from the monarch to Parliament. I challenge the Minister to list for the House the occasions on which Parliament has legislated to restore prerogative powers.
Two new reports from committees of this House have expressed deep concerns relevant to this debate. The Delegated Powers Committee last Thursday published a report called Democracy Denied? The Urgent Need to Rebalance Power Between Parliament and the Executive. It said that parliamentary democracy is
“founded on the principles of … parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament … The shift of power from Parliament to the executive must stop.”
The report of the Secondary Legislation Scrutiny Committee, in parallel, is entitled Government by Diktat: a Call to Return Power to Parliament. It declares:
“A critical moment has now been reached when that balance”—
between Parliament and the Executive—
“must be re-set: not restored to how things were immediately before these exceptional recent events”—
by which it means Brexit and Covid—
“but re-set afresh”.
Both of these committees remind us that limited government—or liberal democracy—depends on checks and balances among three constitutional actors: Parliament, elected and representing the people; the judiciary, safeguarding the rule of law; and government, wielding executive power.
In the exceptional circumstances of 2017 to 2019, both Theresa May and Boris Johnson claimed to represent the will of the people against Parliament: direct democracy, with the leader speaking for the masses against the elites. The noble Lord, Lord True, has faithfully repeated their claim, adding on several occasions that the December 2019 election showed decisively that the Government do speak for the people—if necessary, against Parliament—having won 43.5% of the popular vote.
Lord Hailsham many years ago warned that the UK’s constitutional arrangements allowed for an effective “electoral dictatorship” between elections, with executive power escaping parliamentary scrutiny and judicial oversight. What we have glimpsed in the past four years is the shadow of authoritarian populism breaking through the conventions of our unwritten constitution. Michael Gove argued in the Commons Second Reading debate on this Bill that Parliament in 2019 was
“frustrating the will of the people”—[Official Report, Commons, 6/7/2021; col. 789.]
which he believed a new Prime Minister—who had scarcely appeared before Parliament since taking office—nevertheless authentically represented. The will of the people is the cry of populist demagogues, not of constitutional democrats.
I re-read last week the 2019 report by the noble Lord, Lord Hennessy, for the Constitution Society: Good Chaps No More? It denounces the willingness of our current Prime Minister to break the rules and misrepresent evidence in his first months in office. He says:
“A key characteristic of the British constitution is the degree to which the good governance of the United Kingdom has relied on the self-restraint of those who carry it out … If general standards of good behaviour among senior UK politicians can no longer be taken for granted, then neither can the sustenance of key constitutional principles.”
Sadly, good behaviour by senior politicians cannot be taken for granted, so I say to the noble Lord, Lord Bridges, that codification is therefore needed. As the Secondary Legislation Scrutiny Committee has just put it, we now need a reset, not a restoration of the previous status quo.
The noble Lord, Lord True, has defended the Government’s abandonment of their manifesto promise of a broader approach to reform through a constitutional commission. He told the House the other week that he also opposed piecemeal reform. So now he is supporting a piecemeal reactionary Bill—a Bill that restores prerogative power and weakens the judiciary. I look forward to hearing how he manages to defend that.
The Select Committee on the Constitution reminded us that
“prerogative powers are an exception to the sovereignty of Parliament.”
Successive reports from committees of both Houses over the last 20 years have noted that the direction of travel has been to reduce the extent of prerogative powers, and to extend parliamentary oversight. This Bill would reverse that direction.
We will therefore attempt to amend this Bill. We will support the replacement of Clause 3 by a requirement for an affirmative vote in the Commons before the Prime Minister requests a Dissolution. We will also seek to include a parallel requirement for this before Prorogation. Moving the Second Reading in the Commons, Michael Gove made it entirely clear that Clause 3 had been included because of the Supreme Court’s decision on Prorogation in 2019. Lord Sumption indicated in his evidence to the Joint Committee that the Prime Minister
“was effectively attempting to rule without Parliament”
for as long as possible. That surely brings the issue of Prorogation within the scope of this Bill.
We will wish to gain assurances from the Government —and here I strongly agree with the noble Baroness, Lady Taylor of Bolton—that a draft revised version of the Cabinet Manual will be published before this Bill becomes an Act, and will be presented to the appropriate committees of both Houses for review, as has been strongly recommended by her Select Committee. The Cabinet Manual provides a directory of our constitutional conventions—if you like, a shadow constitutional document.
We will also wish for assurances on a revised version of the Dissolution Principles, which should also appropriately cover the process of government formation. The draft principles and conventions on confidence, Dissolution and Government formation on pages 61 to 65 of the Joint Committee report are far better and fuller than the one-page sketch that the Government provided.
The Joint Committee draft also wisely deals with the issue of Government formation in the event that an election does not produce a single-party majority. Opinion polls over the past six to nine months have consistently shown between 25% and 30% of voters supporting parties other than the Conservatives or Labour. This suggests that the result of the next election might well be again a Parliament without a single-party majority. Any form of future proofing, as others have said, would therefore need to take this into account. I recognise that the Conservatives will attempt in the Elections Bill to bias our electoral system further to their advantage, but it is still possible, despite their huge advantages in funding and office, that they will not retain power.
We have just witnessed a well-managed change of government in Germany, during which the outgoing Government stayed in office for eight weeks after the election, while three parties carefully negotiated a detailed agreement as the basis for a stable coalition. We may need to develop a similar approach here and should anticipate the likelihood of its occurrence.
Since we are discussing some fundamental issues of democracy, I will add a further question for the Minister. In 10 days’ time, the President of our most important democratic ally, the United States, is convening a virtual summit of democracies to discuss the challenges and dangers that they now face, to which several noble Lords have referred. The UK sees itself as one of the world’s oldest democracies, yet the Government have so far said nothing about this summit: whether they plan to take part, which Minister will lead, and what we might contribute. Will the Minister provide this House, before 9 December, with a Statement on what part, if any, the Government plan to play in President Biden’s summit of democracies? We should never take democracy for granted: it needs to be defended.
My Lords, indeed we should never take democracy for granted—although I have noticed over the years, with advancing age, that whenever the party on those Benches is resoundingly defeated at any election, whether by the Labour Party or the party on these Benches, it cries “Populism!”, “Foul!”, “Unfair!”. We have just heard an extraordinary suggestion that an ideal constitution would involve months and months of negotiation, presumably involving the Liberal Democrats, probably on a statutory basis. I have to say that I do not think that that is a way forward that would commend itself to many in this House.
It has been an outstanding debate, and, of course, I must congratulate my noble friend Lord Leicester on his outstanding maiden speech. All of the House found it entrancing: it was deeply rooted in history, traditions and a sense of place, cherishing the best of our past and showing a love and knowledge of the environment. It was also so forward-looking in embracing new technologies and ideas for the future. My noble friend said he liked a challenge. Well, I think we will all relish the challenge that he set out, based on the charm and wisdom that he displayed. By the way, at the age of four I wanted to see a spoonbill and I still never have seen one. That is not a request for an invitation, but I congratulate him on bringing those birds back to these shores.
Also in preamble, I was asked by somebody, possibly the noble Lord, Lord Rooker, to apologise for the 2011 Act. Actually, like my noble friend Lady Noakes with whose speech I much agreed, I was no enthusiast for the 2011 Act. Indeed, I remember coming out of a victorious local election campaign in Richmond in 2010—I will not say who the defeated party were—to be telephoned by my noble friend Lord Strathclyde, who said that he had been summoned to a meeting of the Shadow Cabinet to approve negotiations for coalition, which included some of the ideas that we have heard today. I was not entirely enamoured of that. In fact, if you look in the Division lists on the ping-pong on that Bill, you will not find my name. I was a very new Member of the House, but that was my first mini revolt; I rather fear that one or two others followed. I do not commend that behaviour to my noble friend Lord Leicester, but I will not apologise for the 2011 Act, because, I repeat, it was a political experiment. Some, like the noble Baroness, Lady Taylor, have said that it was a political expediency. That is correct; hopefully your Lordships will accept that it should be gone and gone swiftly.
We have had a very informed debate on an important constitutional Bill. As I had expected, we have had a large number of insightful speeches based on your Lordships’ varied expertise and experience. I will try to answer as many points as I can. I was sorry that one or two of the speeches suggested that there was an authoritarian approach behind this Bill—I think I even heard the word “fascist” at one point, which is not a helpful word to play at political opponents. That was certainly not the Government’s intention or an approach that I would ever commend from this Dispatch Box. On the other hand, I have been very grateful for the support of many of my noble friends; for example, my noble friends Lord Strathclyde, Lord Taylor of Holbeach, Lady Pidding and others.
I was slightly discouraged by the noble Lord, Lord Lisvane, casting a fly over the House on the matter of Prorogation. In my humble submission—I used to look at Bills to see how I could amend them to cause trouble for the party opposite over many years—it does not look to me from the Long Title that Prorogation should come into this Bill. I emphasise that the Bill is not, and was never intended to be, about Prorogation. The Government made it clear at the time that they were disappointed with the judgment on Prorogation but, in the event, the Supreme Court noted that its decision rested on the case’s exceptional facts. What we have in this Bill is not in relation to that Prorogation issue, and the Government will not support attempts to bring that procedure into scope. We should concentrate on the matters before us.
I was asked by the noble Lord, Lord Rennard, and my noble friend Lord Hayward about the 25-day election period. It has not been the main subject of debate, but I know that it is a matter of concern to many. I can say that the Government wish to retain the 25-day working period. This was acknowledged; we have made that clear. We believe that any reduction would have adverse effects on all those involved in elections: political parties, electoral administrators and, most importantly, the electors. As both noble Lords said, modern elections are complex operations, including postal and overseas voting. The Government’s position is that we should retain the current system. I hope that we will not detain ourselves too long on that question in this Bill as, obviously, we will have a larger Bill on elections coming forward.
Many referred to the constitutional conventions and principles that lie alongside the Bill. My noble friends Lord Norton of Louth and Lord Bridges of Headley were wise to advise against too much codification; in that, I disagree with the noble Lord, Lord Wallace of Saltaire. I note the point made by the noble Baroness, Lady Taylor, about the Cabinet Manual, which I will take away. I can offer her no specific response in advance beyond what I have said to your Lordships before.
Conventions are important. If the Bill revives the prerogative powers to dissolve one Parliament and call another, as we believe, then prerogative powers will once more be governed by convention. As I said in my opening speech, it is critical that there is a common understanding of how they will operate. I have no doubt that we will have valuable discussions on those matters.
I was asked to address a question about whether the prerogative can be revived—a point raised, from different perspectives, by a number of noble Lords, including the noble Lord, Lord Lisvane; indeed, the noble Lord, Lord Wallace of Saltaire, asked for an example. I do not particularly want to go back to the 17th century. The centuries that I was referring to were rather more recent, but I would think that 1660 was a fairly significant example of the royal prerogative being revived.
The Government are confident that the prerogative powers can be revived but, as was said by a number of noble Lords, to make express provision to do so is the intent and effect of Clause 2. The Government believe there is a sound legal basis for this position. The courts have said that a revival of prerogative powers is possible. For example, the Supreme Court said in the first Miller case:
“If prerogative powers are curtailed by legislation, they may sometimes be reinstated by the repeal of that legislation, depending on the construction of the statutes in question.”
That was put more strongly in the case of Burmah Oil when Lord Pearce in 1965 observed that, if a statute that restricts the prerogative is repealed, then
“the prerogative power would apparently re-emerge as it existed before the statute”.
This would be subject to words in the repealing statute, as was referred to in the GCHQ case.
As the noble Baroness, Lady Taylor, reminded us, the Joint Committee reserved its position on this question but concluded that the Bill is sufficiently clear to give effect to the Government’s intention of returning to the prior constitutional position. As the former First Parliamentary Counsel Sir Stephen Laws said in evidence to the Joint Committee, this academic debate is a “red herring”. He said that it
“is perfectly plain that the intention of the Act is to restore the situation to what it was before the 2011 Act, and therefore the law will then be indistinguishable from what it was before”.
Of course, many noble Lords on all sides, as I readily anticipated, raised important points about Clause 3. I will address them briefly, although my noble and learned friend Lord Mackay of Clashfern was quite right to say that these matters will need to be probed and discussed in depth in Committee. I think there is general consensus in the House on that, to which I accede, and I look forward to those discussions.
We believe that the clause is necessary and proportionate, for the avoidance of doubt, and will preserve what I still contend, with respect to the noble Lord, Lord Thomas of Gresford, is the long-standing position that the prerogative powers to dissolve one Parliament and call another are non-justiciable. Prerogative powers to dissolve are inherently political in nature and, as such, we maintain, are not suitable for review by the courts. Certainly, that was the view as expressed by Lord Roskill in the GCHQ case in 1985, as the noble and learned Lord, Lord Hope of Craighead, reminded us. The courts are not the place to determine whether Parliament should be dissolved on one date or other.
This clause seeks to underline that position. The Independent Review of Administrative Law in March noted that Clause 3 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”.
Several noble Lords questioned why the clause is necessary at all, if the recognised position is that prerogative powers are non-justiciable. I hope that what happened to my noble friend Lord Young of Cookham does not happen to me in my ministerial career: finding that everything I do is reversed, although that has happened to me in other contexts. I hope that I will be able to reassure him that, in our judgment, the clause is necessary to take account of the direction of travel in case law, and has been drafted carefully in recognition of, and to address, that fact.
Over the years since the GCHQ case, some other prerogative powers previously considered non-justiciable have been held by the courts to be justiciable. So, the purpose of this clause in this case is to be as clear as possible about the no-go sign around the Dissolution and calling of Parliament. It is carefully drafted, respecting the message from the courts in Cart that only
“the most clear and explicit words”
can exclude their jurisdiction. Therefore, while the Government agree that the revived powers of Dissolution are non-justiciable, we are making provision to confirm and preserve this position for the future.
Noble Lords, including the noble and learned Lord, Lord Hope of Craighead, made reference to the judgment of the Supreme Court in respect of the review of the scope of prerogative power to dissolve Parliament. The Government have drafted Clause 3 with regard to case law, including Miller II. It is a proportionate response that seeks to put beyond doubt that Dissolution is not a matter for the courts. The independent review on administrative law noted this judgment, and the distinction it draws creates the potential for the courts to circumvent no-go signs currently mounted around the exercise of prerogative powers. The Clause seeks to make it clear that, in the context of the Dissolution and calling of Parliament, the no-go signs should not be subverted in this way. The democratically elected House of Commons is constituted as a clear expression of the will and judgment of the public, and the ability of the electorate to judge the record of the Government and their decision to call an election as well. That is the continued safeguard which protects Parliament.
Some noble Lords spoke of a concept of an improper Dissolution or an abuse of Dissolution. That concern is misplaced. There are a number of sufficient and appropriate restraints in our constitutional arrangements. First is the convention that the sovereign should be kept out of politics; this in itself is a powerful deterrent to making any improper request. Nevertheless, the sovereign may in exceptional circumstances refuse a request to dissolve Parliament. The noble Lord, Lord Beith, had some important and interesting reflections on this point. I too would like to know the answer to his question about 1974.
That is not all. In response to the report by the FTPA Joint Committee, we have amended the Bill 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. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling of a new Parliament would negatively impact on the authority of the Government. Control by the Commons of tax and expenditure is a further compelling necessity for any new Government to call a new Parliament as soon as possible. One final test is the common sense of the electorate. Any attempt by a Government to manipulate the system would be clear to the electorate, and that Government would be punished in an election.
Many noble Lords—the noble Baroness opposite, the noble Lords, Lord Newby, Lord Grocott, and Lord Thomas of Gresford, my noble friend Lord Lansley, the noble Baroness, Lady Taylor, and many others—suggested that there should be a role for the House of Commons in approving a Dissolution. I anticipate that we will discuss this issue at some length in Committee. The noble Lord, Lord Lisvane, with his great experience, offered important cautionary notes here. I found the analysis of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, as clear as it was compelling, and I agreed with his analysis. The Government disagree with that approach: reviving the flexibility of the previous system undermines the entire purpose of the Bill. The creation of prescriptive statutory arrangements represented a significant departure from our previous constitutional arrangements, eroding the flexibility that is an essential part of our democracy.
The evidence is before us. My noble friend Lady Stowell set this out very clearly: we have to see the broad picture. The experience of the 2011 Act demonstrates that statutory systems can perpetuate political instability. The reality was skated over by the noble Lord, Lord Grocott, in his speech. He said that under the model he proposes, the Prime Minister in 2019 could have had an election three times and had a majority. He forgets the reality of those times. I hope he is never the man with the three cards on Westminster Bridge. The reality is that the Labour Party did not want an election at the time. They could avoid it by simply sitting on their hands, which would not have been possible. The Labour Party could still have avoided an election, even under his proposal.
When the 2011 Act is repealed, it will be vital that the link between confidence and Dissolution is restored in order that critical votes can again be designated as matters of confidence which, if lost, would trigger an early election. Therefore, the House of Commons will continue to play a key role. The claim by the noble Lord, Lord Rooker, that this debate was a battle to prevent the rigging of the membership of the Commons was a very odd characterisation of the Bill’s central intent, which is to prevent interference with the remittance of great political questions to the people—to allow them to choose their elected representatives. I remind noble Lords that the Joint Committee gave this matter detailed consideration and a majority—I respect the alternative opinions—concluded that the House of Commons should not retain a say over Dissolution. Finally, as my noble friend Lady Pidding reminded us, the other place considered and dismissed amendments to enable it to retain a statutory role. I very much hope that your Lordships will not “go there”, as they say, but I suspect I may be disappointed.
Noble Lords have suggested that the Bill limits the accountability of the Prime Minister. I must agree to disagree with that too. There have been and will remain two vital checks, which again have been widely forgotten by many who have spoken in this debate: the House of Commons and the electorate. It was not the case that under the prerogative system, the Commons was unable to hold the Executive to account. The Bill restores the position whereby a Government hold office by the virtue of their ability to command the confidence of the House of Commons. In that respect, the House of Commons will continue to play a key role. Yes, a Prime Minister will once again be able to call an election at a time of his or her choosing, but elections are an expression of democracy. I believe in democracy. As the Joint Committee put it,
“ultimately elections ensure the electorate—the ultimate authority in a democratic system—has the opportunity to exercise its judgment.”
Again, any attempt by a Government to manipulate the system, as we have seen in recent history, would be likely to be punished.
I thank all those who have spoken for their valuable contributions. I will read Hansard extremely carefully and reflect on the many important and challenging things that have been said. I am pleased we have had such a stimulating debate, which has attracted so many of your Lordships. I look forward to being at the service of your Lordships in the period between now and Committee, and indeed, through the whole passage of the Bill. When we are here, my door will always be open. I met a large number of Members prior to today’s debate, and I look forward to further opportunities to engage and, I hope, persuade. I am sure we will continue to have lively and robust discussions as we take this important Bill through its remaining stages. I believe there is broad consensus for repeal of the Fixed-term Parliaments Act, and I commend this Bill and the way it is accomplished to the House. I beg to move.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 7.30 pm.