Dissolution and Calling of Parliament Bill — House of Lords, 2022-01-25
Topic: Government Operations
Edward Faulks (Non-Affiliated, Unknown): My Lords, the Committee has shown in the debate on this Bill so far that there is common ground that this Bill should provide clarity. The use of "purported" in Clause 3 seems to be a deliberate choice by the Government and the parliamentary draftsmen. It is not a word used much in everyday speech but is found in other Acts of Parliament. It is also used in judgments when an act has taken place or a decision has been taken, but a court has concluded after the event that the decision or act has no legal effect. Any well-informed draftsman in this context would have had well in mind the decision in the Anisminic case In Miller II, as it is generally referred to—the prorogation case—the Supreme Court concluded that despite the fact that the Prime Minister had gone through all the appropriate formalities to prorogue Parliament and Parliament had been, as a matter of fact, prorogued, the prorogation, or purported prorogation, was unlawful and was thus deemed not to have happened as a matter of law, with the result that Parliament was reassembled The purpose of Clause 3 is plainly to render the exercise of the power to dissolve Parliament non-justiciable. The first question is whether, as a matter of construction, it has that effect, and the second is whether such an ouster clause should be in the Bill at all. That is an issue in the stand part amendment in the name of the noble Lord, Lord Butler. If, for the sake of argument, the House were to conclude that an ouster clause was appropriate, why not include "purported" in the ouster clause? In its absence, a court could conclude that notwithstanding the apparent or purported Dissolution, because of the unlawfulness of the Dissolution—and the courts have shown considerable ingenuity on occasions in finding unlawfulness—the Dissolution never, as a matter of law, occurred. It would follow that Parliament would then be reassembled, campaigning might be halted, the date of an election vacated, with all the attendant chaos that would ensure, and it is even possible that the result of an election could be set aside. That seems to me to be a highly undesirable state of affairs, for two principal reasons: first, the uncertainly; and, secondly, the insertion of the courts into the political process I entirely appreciate the distinction between Prorogation and Dissolution, but before Miller 2 most lawyers would have considered that Prorogation was non-justiciable. I dare say that the advice was given by the Attorney-General or the Government Legal Department that when Mrs Miller and others brought their judicial review it was non-justiciable. That is not such an unreasonable point of view, given the unanimous decision of the Divisional Court, a court consisting of the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division. That court concluded that, without in any way expressing approval of the decision of the Prime Minister, it was a matter of politics, not law. In other words, the power was non-justiciable Why did the Supreme Court disagree with the reasoning of the Divisional Court? Unfortunately, we do not know, because it made no mention of the decision of the lower court. This departure from the normal engagement with the reasoning of the lower court could certainly be regarded as something of a discourtesy, to put it mildly There are differing views as to whether the Supreme Court in Miller 2 came to the right conclusion. The Government’s view may well have been a factor in the setting up of the independent review of administrative law, which I had the privilege of chairing. I do not purport to speak on behalf of the panel today, but I can point out to the House that we concluded that the decision might be regarded as something of a one-off and should not of itself lead to any fundamental changes in the scope of judicial review. The combination of a minority Government, no agreement in government on the right approach to Brexit, and the rigidity of the Fixed-term Parliaments Act, with its requirement of a super-majority, created something of a perfect storm On the one hand, the case was a magnificent demonstration of the checks and balances in our constitution working well, even if you do not agree with the conclusion. As it happens, I do not agree with it, but other views are available. I do not favour the decision because of the involvement of judges in a political matter. In conversation with constitutional experts in the United States, I have encountered considerable surprise at the decision. An equivalent challenge in the United States would fall foul of the political questions doctrine, and the claimants would not be able to establish that they had standing to bring such a challenge. In this jurisdiction, points on standing are rarely taken. We pointed this out in the IRAL and suggested that they should be taken more often, even by the court of its own motion, since it is a jurisdictional matter In his response to the IRAL report, the then Lord Chancellor, Sir Robert Buckland, as he now is, said that he was anxious to protect judges from politics. I think he had a point. Unlike in the US, our judges have, for the most part, skilfully avoided involvement in political matters. As a result, and in sharp distinction to their counterparts in the United States, our judges are not well known to the general public and their views are not a matter of general public interest, in the non-technical sense, and long may that continue This Bill would protect judges from political controversy by reason of the terms of Clause 3. I think a number of judges would be perfectly happy with that outcome, but even if they were not there would be an acceptance that Parliament is entitled to legislate to exclude the courts from considering the legality of the power to dissolve Parliament. The IRAL concluded that it was constitutionally open to Parliament to pass an ouster clause of this sort, and unless you reject the doctrine of parliamentary sovereignty, I do not believe that this is in any way controversial.