Dissolution and Calling of Parliament Bill — House of Lords, 2021-11-30
Topic: Government Operations
Philip Norton (Conservative, Centre-right): 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.