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Dissolution and Calling of Parliament Bill (Instruction)

Volume 700: debated on Monday 13 September 2021

Bill to be considered in Committee

Before the House resolves itself into Committee, I draw its attention to the motion on the Order Paper, in the name of the hon. Member for Rhondda (Chris Bryant), to allow the Committee to consider amendments relating to Prorogation. This is an admissible instruction on an out-of-scope but cognate matter. [Laughter.] If hon. Members do not understand that, I suggest they turn to “Erskine May” for an explanation. This is an out-of-scope but cognate matter. It is subject to selection by the Chair. Mr Speaker has decided to select the motion, so I call Chris Bryant to move it.

I beg to move,

That it be an Instruction to the Committee on the Dissolution and Calling of Parliament Bill, That the Committee have leave to make provision relating to the prorogation of Parliament.

Normally an instruction motion of this kind is tabled by the Government themselves when they decide that a Bill they have introduced does not quite stretch far enough to allow it to include some things that they would like to debate. The reason I tabled it—I hope the Government think it is always good to debate all these matters and would therefore want the motion to be carried, which would enable us to debate the matter of Prorogation in Committee—is that the 2019 Prorogation was perhaps the biggest constitutional crisis we have had in the past 20 to 25 years. I see the former Attorney General, the right hon. and learned Member for Torridge and West Devon (Sir Geoffrey Cox), is in his place. I think he as scars on his back from that period. [Interruption.] No, he never has scars on his back. Maybe they are on his front instead. The point is simple: the nation felt at odds with itself in part because of a phenomenal constitutional row between the courts and Parliament about the nature of Prorogation.

To remind the House what happened, on 28 August 2019, the Prime Minister secured a prorogation proclamation from the Queen proroguing Parliament from 9 September to 14 October, a longer Prorogation than there had been for more than 150 years. Normally they last for just six days; this would have been for 34 days. The subsequent (R) Miller v. The Prime Minister and Cherry v. Advocate General for Scotland case ended up in the Supreme Court, which decided unanimously on 24 September that the Prorogation was justiciable and unlawful.

When Parliament returned, never having been prorogued, the Prorogation ceremony was expunged from the Journal of the House of Commons. I think that was the first time the Journal had been altered since 1621, when the King was so angry with the House for having debated the matter of his son’s potential marriage that he ordered the Clerk of the House to bring the Journal to him and tore out the offending page. So I think that 1621 and 2019 are the two times that the Journal has been disturbed in that way. Business continued as if the ceremony had never happened.

The Prime Minister—this is important to my argument—then argued to the court in 2019 that Prorogation was analogous to Dissolution. At the time, of course, Dissolution was not a prerogative power because of the Fixed-term Parliaments Act 2011. None the less, the Prime Minister argued in court that the courts should not interfere in the matter because Prorogation was a prerogative power and should not therefore be justiciable. I think it is bizarre if the Government now want to say that they do not think that Prorogation is analogous to Dissolution and that it should not be debated today.

Incidentally, we also learned from the papers that the Prime Minister gave to the Court—I think under some duress—back in 2019 that he considered the September sittings of Parliament merely to be a

“a rigmarole…to show…MPs are earning their crust”.

So at least all the hon. Members who are here today are earning their crust, by the Prime Minister’s definition.

The Court found, first, that the issue of the Prorogation itself was justiciable because it is not a proceeding in Parliament. The Prime Minister and the Government had tried to argue that it was a proceeding in Parliament and, consequently, under article 9 of the Bill of Rights and the equivalent legislation in the Scottish Parliament, it could not be considered by a court. However, the Supreme Court decided, in paragraph 68:

“The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a ‘proceeding in Parliament’. It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is not something upon which the Members of Parliament can speak or vote.”

This, to me, is the absolutely key point: it is not something upon which Members of either House can speak or vote. That is why I have tabled an amendment that can only be considered during the Committee stage of the Bill if this motion is agreed, which would allow a vote in the House of Commons before Prorogation could proceed. Why that is important is that, quite rightly, lots of Members have wanted to say that the courts should not be interfering in politics. The best way of making sure that they cannot interfere in Prorogation is to introduce—[Interruption.] I can see that the hon. Member for Hazel Grove (Mr Wragg) is being very pregnant; I will take his intervention in a moment. The best way to make sure that no court could consider the matter of Prorogation is to make it a proceeding in Parliament, and the best way to make it a proceeding in Parliament is to allow a vote. The only way we can allow a vote is if we allow this motion to go through, and then we can debate it in the Bill Committee.

The hon. Gentleman is extremely kind in giving way, although perhaps not quite accurate in describing my condition. On the question of Prorogation, would he mind turning his thoughts briefly to whether that was contained or referenced in the Fixed-term Parliaments Act 2011 and how that Act relates to this Bill?

I am not sure that that is entirely relevant. Every time we introduce new legislation we choose to start, as it were, from scratch. It is true that this Bill repeals the Fixed-term Parliaments Act. I think the hon. Gentleman voted for that Act.

No, he did not—[Interruption.] He was still at school? I think that is a bit unfair on the hon. Gentleman. The point is that this was a major constitutional battle in 2019 and it would be odd of us not to consider it at all when we are dealing with these matters, which the Prime Minister himself declared were analogous.

The hon. Gentleman will know that many Government Members had serious concerns about Prorogation at the time of which he speaks, but does he not accept that we are now back in what we could describe as more normal times? That procedure, Prorogation, had never given this House any problems before and is unlikely ever to do so again.

Well now, for a start, I am not very keen on the concept of “normal” at all. I have tried to avoid that as much as I can in my 59 years. More importantly, I am not sure that we are living in normal times.

Are there ever normal times in political debate? Surely that is the whole point of constitutional settlements. We do them oddly in this country, because we do not have a written constitution, as the hon. Gentleman knows; we have bits and pieces of the constitution written in lots of different statutes. The danger of proceeding by statute law is that the constitution becomes a constant plaything of the Government of the day. I would always want our constitutional settlement to last at least a generation, if not several, but my anxiety is that we are fiddling with just one part of the equation, not all of it.

Some have argued, as the Government did before the Supreme Court, that a prerogative power is by definition limitless. That flies in the face of history. Successive cases across the centuries, starting in 1611, have proved that every prerogative power has to have a limit. Otherwise, Parliament would never sit; the Government could, in theory, say, “Right—we are going to use our prerogative power of Prorogation just to make Parliament never sit.” That was one of the key things that the Supreme Court found.

My anxiety is that if the Supreme Court has already determined, and it is settled law, that Prorogation is a justiciable matter, it will be justiciable again unless we introduce statute law to change it.

My hon. Friend is making an excellent and very interesting speech. One of the crucial issues is that we normally know that Prorogation is coming—it is generally known around here when it is likely to happen—but in his example it happened at the dead of night and it was very difficult to get information about it. He will know that, on a rumour, I phoned Buckingham Palace that very night to try to establish whether the Privy Council would be meeting the next day, as I had been told, in Scotland with Her Majesty. I discovered that the Leader of the House and others were quite likely to be on their way up to Balmoral; cameras were then sent to catch them at airports in the act of entering Scotland. It was done in a completely innovative way, and a future Government might decide to conduct themselves in exactly the same way.

The point is that other people might choose to bring other cases to the courts on the matter, unless Parliament chooses to discuss it and legislate on it. I would have thought it entirely in the Government’s interest to allow the debate later today and to come to a resolution on the matter.

I have no doubt that the hon. Gentleman is correct that if new clause 3—his amendment to allow a vote on Prorogation—were agreed to, it would render Prorogation non-justiciable in future, and that that is the intention. However, may I ask a more prosaic question? If the motion that he is now moving to allow debate on the amendment is passed, will it not render the programme for the rest of the day null and void, as we will have something brand new and rather substantial to consider?

No, I do not think that that is right, but if the House decided not to consider the matter, the courts could in future legitimately decide that Parliament had decided that Prorogation is justiciable. That is the problem for the Government.

Order. Before the hon. Gentleman gives way, let me say for the sake of clarity that the programme for the rest of the day would not be null and void. If the hon. Gentleman’s motion is carried by the House, his subsequent amendments and new clauses can be debated; if it is not, they cannot. The position is quite clear; we want to make sure that it is clear.

One of the most notable things after the outcome of the case was that the Prime Minister did not express any remorse for having unlawfully prorogued Parliament, so I would not be so confident that he would not try it again. What initially worried me slightly about the hon. Gentleman’s new clause was that the current Prime Minister, with his huge majority, could seek to prorogue Parliament for a dubious purpose. However, I note that the hon. Gentleman has put in a requirement that it cannot be for more than 10 days. Of course, what was so objectionable about the last Prorogation was that it was so lengthy and came at a time when Parliament had very important matters to debate, so I presume that the hon. Gentleman put that in to guard against the possibility of the current Prime Minister using the rather large majority that he has, at least in England, to force through another dubious Prorogation.

The hon. and learned Lady—who was, of course, the Cherry on the top of the icing in this case; it must have been one of her bigger successes in terms of parliamentary democracy—has read my mind better than I know it myself.

All that we have to bear in mind is what the Supreme Court said in its judgment on what the limit on the power to prorogue would be:

“A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

So everyone who votes against my motion, or against my new clause later if we are able to reach it, will be saying, basically, “Yes, courts, carry on. That is exactly what you should do. You should consider these matters. You should decide at every Prorogation whether the Government are acting lawfully or not.”

I agree entirely with the hon. Gentleman. Does he share my concern at the fact that the Government Benches are filling up so rapidly, which suggests that many Members may be intending to vote against the motion? Perhaps if he takes a few more interventions it will give Members who want to vote in favour of his motion, so that we can actually have this debate, a bit more time in which to do so. It would be very ironic if the Government started quashing debate at this stage, not even allowing a debate to happen.

I have to say that in my 20 years in this House, I have quite often known Governments to quash debate. [Interruption.] The Government Deputy Chief Whip is pointing at me in a rather vulgar and insinuating way—and I can see through that mask! However, there is a serious point here. I am not going to go on for much longer, Madam Deputy Speaker, you will be glad to know—[Hon. Members: “Hear, hear.”] You see, Madam Deputy Speaker: I know how to unite the Chamber.

Why does Prorogation matter? Although people—not hon. Members, but many others—often confuse it with a recess or an Adjournment, they are completely and utterly different. Prorogation suspends all business. It means that the Government are allowed to put again a question on a motion that has already been decided during that Session, and secure a different outcome if that is what they are trying to do. We know that that was one of the reasons why the 2019 Prorogation happened.

Prorogation suspends all questions. Any written questions that have not yet been answered have to be tabled again. Normally, for four weeks beforehand Ministers do not bother to reply, because they know that Members will have to submit the questions all over again.

Prorogation means that no Select Committee or other Committee of the House can meet or take evidence. That, incidentally, must surely be something we should be able to change. It means that the Parliament Act can be engaged. Of course that is what the Labour Government did in the 1945 to 1950 Parliament—to get through legislation under the 1911 Act. Unlike a recess, which is voted on, Prorogation is not voted on, but the Government still have all the power over it, because just as with a recess, only a Government Minister can table a motion or, indeed, table an amendment. No other Member is allowed to table an amendment to a Government motion for a recess.

So many different elements of the way we do our business which guarantee Back Benchers and Opposition Members an opportunity to engage in and initiate legislative processes are entirely reliant on Standing Orders. When the Government decide to suspend a Session, that starts the clock all over again, but it means that they are entirely in control of how many private Members’ days, Backbench days or Opposition days are provided. We know from our experience last week that the Government can suddenly pull an Opposition day because they do not want a vote on, for instance, universal credit and the cut of £20.

I thought that the hon. Gentleman was getting towards the end, so I wanted to ask him to clarify something. Did I understand him correctly to say that if those on the Government Benches vote against his having the opportunity to put forward the new clause, they will be voting in favour of continued judicial scrutiny of Prorogations? Does that not rather go against the normal pattern on the Conservative Benches, which is to vote against judicial scrutiny in this Parliament? I doff my cap to the hon. Gentleman for being so smart!

I would not bother with that.

The hon. and learned Lady is absolutely right. This is the irony—or the hypocrisy—of the Government’s position. [Interruption.] I said “of the Government’s position”; I am being very careful.

I find it incomprehensible that the Government would not want to proceed in the direction of my new clause. It is the simplest way of making sure that Prorogation is a proceeding in Parliament, and there would be no need for the ouster clause in the Bill, which many people have suggested to us is unlikely to work and is a nugatory piece of legislation.

We should also bear in mind that the Commonwealth has shown us plenty of examples of Prorogation being fiercely contested. In Australia in 1975, the Governor-General, John Kerr, removed the Labor Prime Minister, Gough Whitlam, and then prorogued Parliament before the House of Representatives, which was controlled by the Labor party, could pass a motion of no confidence in Malcolm Fraser. That was a deliberate use of the Prorogation process to prevent proper scrutiny. In Canada in 2008, the Conservative Prime Minister of a minority Government, Stephen Harper, ordered a Prorogation to avoid a no confidence motion in himself—yet another example of the use of a process which I think is a means of trying to prevent proper parliamentary scrutiny.

One of the ironies of the situation that we have in the British constitution is that if the Bill goes forward as the Government plan and without the measure relating to Prorogation, there will be no real requirement that Parliament should ever sit. The Meeting of Parliament Act 1694 says that we should have Parliaments every three years; that is all that we would be relying on as a legislative means. It is true that the Bill of Rights requires taxation to be subject to Parliament’s sitting, and also requires that a standing Army must be endorsed every five years. However, the Supreme Court made the very good point that these practical considerations are scant reassurance, because Parliament could just sit very briefly to deal with those matters.

In short, Madam Deputy Speaker—or “in long”, actually—my point is simple: the best way to ensure that Prorogation is not abused by the Executive, and to ensure that the courts do not interfere in political processes that should remain within the political sphere, is to ensure that there is a vote in Parliament before Prorogation. The only way we can have that vote in Parliament before Prorogation is to debate it later today, and the only way we can do that is to vote in favour of my motion of instruction.

It is a pleasure to serve under your chairmanship at this stage of the proceedings, Madam Deputy Speaker, when so much more still awaits us if only we have the chance to get to it.

The first point to make is that this is not the right place to debate Prorogation. This is a short and narrowly focused Bill concerning the ending of one Parliament and the beginning of a new one, and the process of getting from one to the other, not the ending of a parliamentary Session. Therefore, the Government’s view is that expanding the Bill to cover Prorogation would not be appropriate.

I just wanted to ask a brief question. If this is not the right place for this topic to be debated, where is the right place for it to be debated?

How wonderful to be pre-empted on a core remark that I was going to make anyway. What I ought to say first, however, is that while there is some similarity between the concepts of Prorogation and Dissolution—as the Clerks have observed in calling them “cognate matters”—in that they are both prerogative acts affecting the sitting of Parliament, they are, beyond that, quite distinct. Dissolution is the end of a Parliament before a general election, providing an opportunity for the electorate to exercise its judgment on the Government of the day. Prorogation is simply the formal ending of a parliamentary Session. The Public Administration and Constitutional Affairs Committee wrote to me recently saying that there was

“no read across from prorogation and dissolution”,

and I agree with that.

The Fixed-term Parliaments Act 2011 expressly did not affect the prerogative power to prorogue Parliament. Our Bill to repeal that Act, which is what we are considering today in Committee, therefore does not touch on matters of Prorogation. To do that would significantly widen the scope of the Bill beyond the manifesto commitments of this side of the House and those of the other side of the House, who were clear in their manifesto that they wished to repeal the Fixed-term Parliaments Act. It would even go beyond the short title of this Bill. Therefore, it is inappropriate to put such measures in the Bill.

I am grateful to the Minister for giving way, but it is not wholly accurate to say that the Bill does not relate to Prorogation. If she has regard to clause 3 and its inclusion of the words “or purported” in relation to the exercise of prerogative powers, she will be aware that there are some who feel that that raises the question of justiciability in relation to the Miller and Cherry cases. Is that not in fact an instance where the Bill does touch on Prorogation?

I thank the right hon. Gentleman for that thoughtful point, but I think he is incorrect. In my view, clause 3 does not do that. The intention of the clause is much more specifically related to Dissolution decisions, and it is my entire argument here from the Dispatch Box that we are dealing today with Dissolution, not with Prorogation, and that the two should be kept quite separate.

That being the case, why do the Government’s own explanatory notes on the Bill refer to the Miller and Cherry cases?

Because clause 3 is careful, as the explanatory notes set out, to absorb recent case law, as I am sure the right hon. Gentleman would want us to do. I know that the hon. Member for Rhondda thinks that that is important, because he has given us a tour de force of the history in this area. The point still stands, none the less, that clause 3 is about Dissolution, having had regard to relevant case law. That does not make it about Prorogation, as much as the right hon. Member for Orkney and Shetland (Mr Carmichael) might wish it to. It is not about Prorogation.

I ought to take this moment to reflect on what we are actually voting on today. The hon. Member for Rhondda has suggested that there might almost be a trap here. I hesitate to suggest that he is laying a trap for Government Members to vote on. That would hardly be in his character, I am sure. However, a few suggestions have been made in the Chamber this afternoon that, if Government Members were to vote against his motion right here, right now, we would be saying that Prorogation was in fact justiciable. I think I can answer that one fairly clearly in saying that we are voting on an instruction to this Committee here today that we should have leave to make provision relating to the Prorogation of Parliament. I am really doing nothing more there than reading from the Order Paper, so we can be quite clear what today’s vote consists of.

I wonder whether the Minister might just indulge the House and express the Government’s opinion on the hon. Member for Rhondda’s amendment, given that the Government seem to oppose our getting a chance to discuss it?

Order. The hon. Gentleman knows that this is a very narrow debate on the instruction. The Minister can of course speak about the content of the instruction on the matter of Prorogation, but not on the amendment itself.

Thank you. The question then is: if not now, when? That has still not been answered. If we are not to debate the matter today, I presume that the Government still believe that Prorogation should not be justiciable, so when are we going to discuss legislative measures to deal with Prorogation?

Well, indeed. “If not now, when” is always a good question, and better people than me have put it. This instruction has been laid by the hon. Gentleman, who goes back a long time in this House. He and I have had constitutional battles on the Floor of the House for about 10 years, and I am always delighted to do battle with him. I may concede to him in some cases that he is a better hon. Gentleman than I am. However, the point today, in answer to his question, is that his instruction seeks to widen the scope of the Bill considerably and at this stage I do not think that hon. Members could be fully clear about the extent of his vision for such a change. I do not think it is clear, beyond just the one amendment today, what he may have in mind to discuss about Prorogation. I do not think it is fully clear from this half hour of quite warm-tempered debate what other hon. Members and right hon. Members have in mind to change about Prorogation. This instruction could leave the field of Prorogation open of course to further debate—that is its point—amendment and qualification. Of course, that must be its point, but all of that is somewhat larger than is revealed by today’s amendment. I would be a little surprised if hon. Members wanted to vote with him on a motion that does not give any more time than that for consideration of a very important area of our constitution.

Let me point out how much time we have taken to get to what we are doing today on Dissolution. There have been manifesto commitments from both sides of the House, as I have said. There have been detailed reports from Committees of this House and the other place, as well as a high degree of consensus and many years of reflection on the operation of the Fixed-term Parliaments Act. I do not believe that a great deal of realistic notice, ahead of the amendment and this instruction, exists in respect of Prorogation. For that reason, I suggest that now is not the time for that debate, and it is not for me to suggest another time for such a debate.

The hon. Member for Rhondda raised some other points that ought to be answered. There are compelling practical reasons why we do not need to go into the territory raised here today. He raised the spectre of a Government using Prorogation simply to keep on going, but the point needs to be made that any Government would want a new parliamentary Session to begin as soon as possible to pass their Queen’s Speech at the earliest opportunity and to have supply. Quite rightly, no Government can operate without supply and they therefore need Parliament to be in existence. No Government, whether the Government of the day or a future Government, would want to introduce hurdles between the end of one parliamentary Session and another. Their purpose would be to move the legislative programme forward so that they could deliver on their commitments to the electorate. These are fundamentally important points about how Governments and Parliament work together, and I think that that is a quite reasonable answer to the points that have been made today about whether a Government could indeed prorogue forever and whether they ought to be stopped in some way.

More broadly, the Sovereign exercises the prerogative power to prorogue Parliament on the advice of the Prime Minister and that has always been the case. What I think is coming into this debate on the instruction, and may come into the discussion later if this motion were to be passed, is the concept of introducing prescriptive statutory approaches into our flexible constitutional arrangements, and I would call that unnecessary and undesirable. The whole scheme of what we are doing in the Committee for this Bill is to remove constraining and inflexible schemes and return to flexible arrangements that work well.

Is it not the case that those who wish to reopen this issue are revisiting a very dark chapter in the history of our Parliament, when Parliament decided to stand against the wishes of the British people expressed in a democratic referendum? It required the British people to reassert their will and their decision in a general election to clear the air, but is it not great that we cleared the air?

The point is that we have an opportunity to clear the air in regard to legislation that is highly prescriptive and has not worked. That is the aim of today; it is not to extend at relatively short notice into a very large subject for debate, for which the ground has not been properly prepared by the hon. Member for Rhondda, although I admire his spirit in trying to do so. Instead, we ought to be able to move past this instruction to change the scope of the Bill and conduct our work through Committee, thus discharging at least two manifesto commitments from either side of the House and returning our constitutional arrangements to a form of stability that works.

I will not detain the House for long but, because I was not able to intervene latterly on the Minister’s speech, I wish to put on record that the motion of the hon. Member for Rhondda (Chris Bryant) is required to be passed for this House to debate this matter today. In the event that the Bill gets its Third Reading, it will go to the other place, where very different rules apply. In the other place, it is required only that the House should determine that the matter is in scope, whether or not the ex facie scope is achieved.

Essentially that means that, when the Bill goes to the other place, the unelected Chamber will be able to debate this matter. It is surely perverse that the Government should deny the elected Chamber the same opportunity.

I am sorry not for the tone but for the content of what the Minister said, not least because she is the only person who can grant additional time for debate. I cannot do it. I note that she has not provided any—

Order. I am going to pause the hon. Gentleman for a moment. Once again, because of the screen that is in the way, I could not see the hon. Member for Lancaster and Fleetwood (Cat Smith) on the Opposition Front Bench. If she wishes to comment on these matters, it is better that she does so before the hon. Member for Rhondda (Chris Bryant) concludes.

I rise to support my hon. Friend the Member for Rhondda (Chris Bryant), as the House should be able to debate these issues. He started by saying he is Billy No Mates, but he will find he has an awful lot of mates in the House today.

There is no getting away from the fact that the 2019 constitutional crisis caused by the unlawful Prorogation of Parliament was a warning shot that we should legislate in this area to ensure that the courts cannot interfere in matters of Parliament. The most obvious way to do that is to debate and support my hon. Friend’s new clauses and amendments.

The Minister says it is not her place to decide when these matters should be decided, but that they are certainly not in this Bill. What is the point of having a Minister for the Constitution if she cannot decide that such an important constitutional matter be decided today?

Now for the second part. The Minister is also wrong to suggest that somebody else should be devising time for us to debate, on a legislative measure, the issue of Prorogation. In all honesty, the only people who can do that are Government Ministers. It would be entirely inappropriate for such legislation to come from the Back Benches or in a private Member’s Bill.

It is important that we discuss these matters. We not only had a constitutional crisis in 2019; we had one in 2010, too, which led to the coalition Government. We had not had a coalition Government for a long time, and the truth is that in politics everything that everybody thinks can never happen nearly always does end up happening in some shape or form. That is what constitutions should be ready for. The Minister says she could not imagine a Government would ever do a whole series of different things, including allowing a lengthy Prorogation. Well, there was one. It was in 2019 and it was led by the present Prime Minister, who wanted to prorogue Parliament for 34 days for illegal parliamentary reasons. That is why we got into that pickle in 2019.

Question put.