My Lords, your Lordships will recall that, over the centuries, Parliaments have been given nicknames to reflect their character. In 1388, there was the Wonder-Working Parliament—if only. In 1404, the Dunces’ Parliament was so called because—this will please my noble and learned friends—upon the instructions of King Henry IV it contained no lawyers.
So what shall we call the 2017 Parliament? Possibly the Gridlocked Parliament, but it was also a Parliament which saw well-established constitutional conventions and understandings ignored or trashed, the actions of a Prime Minister in the high duty of advising his Sovereign found to be unlawful and, in the House of Commons, the explicit wording of certain Standing Orders made subject to imaginative reinterpretation. We do not yet know what long-term damage has been done to our constitutional arrangements but of one thing we can be sure: there are some expensive noises coming from the engine.
I will swiftly touch on four issues. First, I warmly welcome the undertaking in the gracious Speech that the Fixed-term Parliaments Act will be repealed. That Act will go unlamented to its legislative grave but, in doing so, it may pose an interesting problem. The Act removed the discretionary prerogative power of dissolution; presumably, that must be restored in terms. I shall be very interested to see how the repeal Bill defines the nature and extent of those prerogative powers and whether there are implications for other aspects of the prerogative.
My second issue is the routine surrender of parliamentary power to the Executive by the extent of delegated powers granted to Ministers. This is a sad story which will no doubt be continued by the many Bills foreshadowed in the gracious Speech: extensive powers delegated to Ministers, including powers to amend primary legislation, often with little effective parliamentary scrutiny, often to achieve ends which are not made explicit to Parliament when the powers are granted, and all too often upon the criterion that a Minister thinks that such provision is “appropriate”—that baneful word—not “required”, not “necessary” but merely upon the unsupported judgment of a Minister of the present Administration, or of any future Administration, while the powers remain upon the statute book.
Your Lordships are sensitised to these issues, particularly by the excellent work of the Delegated Powers Committee, but there appears to be no similar sensitivity at the other end of the building, so the legislative power of Parliament continues to drain away. Let us hope that in this Parliament—an appropriate expression has just come to mind—we might consider “taking back control”.
Noble Lords, especially noble and learned Lords, have considered, and will consider, the implications of the Supreme Court judgment on prorogation. Tempted as I am, I will take only one aspect of that judgment for my third issue. For some years in my previous life, I was closely involved in protecting “proceedings in Parliament”, in the words of Article 9 of the Bill of Rights, from incursion or encroachment by the courts. This often involved complex issues.
As the Supreme Court quite rightly pointed out, the Bill of Rights is statute law and so falls to the courts to interpret but, of course, there is room for more than one opinion on the matter. It is a close call but, on balance, I think the court, in paragraph 69 of the judgment, was right to conclude that it was not precluded by Article 9 from considering the validity of the prorogation. I did, though, have the mischievous thought as to what the situation would be if, the ceremony of Prorogation not being considered by the Supreme Court to be a proceeding in Parliament, a Member of your Lordships’ House were, during that ceremony, to interrupt proceedings with words which were not only disorderly but actionable. Would he or she be protected by absolute privilege, as in a proceeding in Parliament? Perhaps it would be best for such a thing to remain in the realm of hypothesis.
My final issue is the preservation of the union. This is becoming a matter of increasing concern, and the centrifugal forces pulling our nation apart are ever greater. Noble Lords may recall that, in the last Parliament, I introduced the Act of Union Bill. That Bill resulted from the extensive work of the Constitution Reform Group, founded and chaired by the distinguished former Member—indeed Leader—of your Lordships’ House, Lord Salisbury.
The Bill sought a new devolution settlement—indeed, a new constitutional settlement for the United Kingdom —with the sharing of powers and responsibilities on a bottom-up, not top-down, basis and avoiding what I have described as the imperial condescension of Whitehall. The group has continued and broadened its work and, in addition to its membership from several parties and from none, it now also draws upon the help and advice of some senior figures in the world of finance and, I am glad to say, former First Ministers of Scotland, Wales and Northern Ireland, as well as of a great number of conferences and seminars.
I hope to introduce a new and improved version of the Bill in the present Parliament. I hope that, at the very least, it will support continuing serious debate about the future of the union and that, at need, it will provide a plan B; with the passing months this seems ever more necessary.