Dissolution and Calling of Parliament Bill — House of Lords, 2022-02-09
Topic: Government Operations
Frederick Butler (Crossbench, Unknown): My Lords, I will speak to my Amendment 5, to exclude Clause 3 entirely from the Bill, which has been grouped with the amendments in the name of the noble Lord, Lord Norton. I do not need to take much of your Lordships’ time. We have just passed an amendment that would provide a restraint on the Executive in calling an election, so for that reason Clause 3 becomes unnecessary. It may be thought, therefore, that I should not move to have it excluded, but I will, because I anticipate that the House of Commons may remove the clause that we have just inserted in the Bill, and at ping-pong I would still like the opportunity to come back to get rid of the ouster clause, which I regard as objectionable My first contention is that it is unnecessary. In Committee, the noble Baroness, Lady Noakes, who I am glad to see in her place, did not agree with me on all aspects of the matter, but she said that she could not imagine any circumstances in which the courts could be involved in a petition to dissolve Parliament. Her phrase was that this clause is "legislating against shadows, against figments of the imagination."—[Official Report, 25/1/22; col. 227.] I agree. So why is the clause there? We all know why: it is because of government pique that the courts were involved in the application to prorogue the last Parliament, and the courts ruled against the Government. That is why the Government have thought it necessary to put this clause in the Bill. This is a Government who do not like restraints on their freedom of action and, in that respect, I suppose they are like all Governments, but, in a democracy, restraints on executive power are necessary If, in real life, it is unthinkable that this clause could have any practical effect, does its inclusion in the Bill matter? I think it does, and I will explain why. My submission is that it is wrong in principle for the Government to take an important constitutional power and to say that they will not allow any challenge to its use. This was a point that we debated in a debate on the previous amendment. We all recognise that there are three possible sources of restraint: the courts, the House of Commons and the Queen. We are all agreed that it is undesirable to put the sovereign in the position in which she has to make a highly political decision to refuse a Dissolution, so either Parliament or the courts must exercise control. We have just passed an amendment that gives Parliament the power to exercise that control, but at the same time we have recognised that there are some dangers in that. The danger is the situation in which the Government are hamstrung, unable to govern and unable to seek a fresh mandate. The amendment we have just passed is a solution, but it is a second-best solution, in my submission I anticipate that the Minister will say that there is one more source of restraint—the electorate, who will punish a Government who call for an improper or unjustified Dissolution. That may well be correct, but with great respect that is not the point. What we are discussing is the power to dissolve Parliament. By the time the electorate have a say, the power will have been used, so it amounts to trying to shut the stable door after the horse has bolted. It is like giving an irresponsible person a gun and saying that it does not matter because that person will be punished if the gun is used. The person needs to be restrained before that situation arises This is my case: in practice, this clause is unnecessary. To go back to the noble Baroness, Lady Noakes, it is legislation "against shadows", but, at the same time, it is wrong in principle, and it is a bad precedent. It should be omitted from the Bill.