Lord Norton of Louth:

Moved by Lord Norton of Louth

1: Clause 2, page 1, line 6, after “Her Majesty’s” insert “personal”

My Lords, the Government have a manifesto commitment to get rid of the Fixed-term Parliaments Act. The Opposition also have a manifesto commitment to repeal it. This Bill repeals the Act and seeks, as we have just heard, to restore the status quo ante. Like my later amendments, Amendment 1 is designed to ensure that the Bill does precisely that.

Amendment 1 makes it explicit that the prerogative power to dissolve Parliament and call a new Parliament falls within the personal prerogative of the sovereign. Since the 17th century, the powers that remain with the Crown and have not been displaced by statute have come to be exercised in the name of the Crown or by the monarch, acting on the advice of Ministers. There are three personal, or reserve, prerogative powers remaining—that is, where the monarch does not act on advice—although two are governed by conventions of the constitution. Until the enactment of the Fixed-term Parliaments Act, the power to dissolve Parliament was a prerogative power that was not exercised on advice. A Prime Minister requested Dissolution but the monarch was not bound to accede to the request. Although the practice was to grant the request, there were circumstances in which it could be envisaged that the monarch could refuse it.

As is well known, there was some uncertainty as to what those circumstances may be. In 1950, the King’s private secretary, Alan Lascelles, wrote anonymously to the Times identifying circumstances in which a request for a Dissolution may be refused. Prime Ministers were not able to take it as given that a request would be granted. My understanding is that, in 1993, No. 10 contacted the palace to check that, in the event of the Government being defeated on the Motion on the social protocol of the Maastricht treaty, which the Prime Minister had made a vote of confidence, a request for Dissolution would be granted. As the Joint Committee on the Fixed-term Parliaments Act reported:

“As far as we can tell, since the Second World War, UK Prime Ministers only requested a dissolution once it was very clear the Monarch would grant it.”

There is an argument that the power to dissolve Parliament should not be within the sovereign’s gift. There is an argument that it should be. I believe it important that a Prime Minister does not have the capacity in all circumstances to determine the date of a general election. This, however, is not the occasion for that argument. If the Bill is to restore the status quo ante, it is not a question of whether the power should reside with the sovereign but, rather, a case of ensuring that the Bill puts it beyond doubt that it does so.

This amendment would, therefore, put on the face of the Bill that the prerogative to dissolve Parliament and call a new Parliament is a personal prerogative. The motivation for it stems from the Government’s initial list of Dissolution principles, referring to the sovereign acting on advice. As the Joint Committee recommended:

“If the Government wishes to restore the Monarch’s personal prerogative fully, it needs to revise the language in its dissolution principles, so that it is clear the Prime Minister has no power to advise a dissolution, but only to request one. The Government should replace references to ‘advice’ on dissolution with ‘requests’ for dissolution since the Monarch must accept Prime Ministerial advice.”

The Government took this on board; the Explanatory Notes to this Bill refer to the sovereign granting Dissolution

“on the request of the Prime Minister.”

However, it is worth quoting what the Government said in their response to the Joint Committee’s report:

“In repealing the FTPA, we are returning to a position whereby the power to dissolve Parliament is exercised solely by the Sovereign as a ‘personal prerogative power’. We are grateful to the Committee for its scrutiny of how this is described in the dissolution principles paper, and agree that the better description is that the Prime Minister ‘requests’ a dissolution.”

The wording rings an alarm bell. “Requests” is not a “better description”. It is a correct statement of the constitutional position that pertained prior to the enactment of the Fixed-term Parliaments Act in September 2011. To say that “requests” is a “better description” than “advice” is to convey that it is simply a choice of words to convey the same thing. If the Government accept that the power to dissolve is a “personal prerogative power”, it is not a power exercised on advice. The wording of the Government’s response does not instil confidence in the grasp of Ministers and officials of the principles governing our constitutional arrangements.

Given that, I believe that there is a case for putting it beyond doubt that it is a personal prerogative power. At the very least, this debate provides an opportunity for the Minister to put it on the record at the Dispatch Box that it is a personal prerogative power. However, I see no reason why it should not be in the Bill. The Government are committed to restoring the position as it stood prior to the Fixed-term Parliaments Act taking effect. The amendment does not challenge that; rather, it would ensure that it is achieved. I beg to move.

My Lords, the House is indebted to the noble Lord for elucidating this issue and tabling the amendment. In the Joint Committee, it was worrying that the Government did not initially seem to understand the distinction between requesting a Dissolution and advising a Dissolution, advice that would be binding on the sovereign. I entirely exempt the ministerial reply today from that criticism—the Minister is indeed a former member of the Constitution Committee, which also considered this—but we certainly considered it necessary to explore a little more fully and to criticise the wording of the Dissolution Principles document, the one-page analysis of the issue that made the specific mistake to which the noble Lord made reference.

The refusal of a Dissolution is the only remaining restraint on the ability of a Prime Minister to foreshorten a Parliament in circumstances that might be either entirely appropriate or, in some cases, at least questionable. Subsequent government writing, such as appears in their response to the Joint Committee, indicates that the Government recognise that there are circumstances in which it might be inappropriate to grant a Dissolution, such as a Prime Minister seeking a rerun of an election that has not quite gone according to plan and has not delivered the overall majority that was sought.

Another possibility is the 1974 situation, which I remember vividly because I was elected first in October 1973 and then in February 1974. Ted Heath was unable to establish a coalition, because we did not want to form a coalition with him, so Harold Wilson became Prime Minister. Was he advised that it would be premature to go to the palace and seek an immediate Dissolution? I have no idea, but he did not do so. He took the rather shrewder step of spending about nine months trying to demonstrate that you could have a sanitised Labour Government who did not do any of the things that people worry about Labour Governments doing, and was therefore able to go to the country in a slightly stronger position in October that year. Thankfully, I was re-elected but with a majority of only 70-odd, if I remember rightly; I survived to tell the tale another day. There are circumstances like that in which the issue is a questionable one, and that is why it is important to defend the personal prerogative power.

There are ways of addressing this issue but they do not seem likely to find their way into the legislation as it will eventually be passed. We will discuss Motions of the House of Commons later. They would provide some restraint on a Prime Minister but not very much. Considering that this might not find its way into the final legislation, it is even more important that we protect the ability of the sovereign to decline to give a Dissolution in exceptional circumstances.

Of course, a power like that is more important for what happens behind the scenes than for any possibility that it would be fully exercised and the sovereign would actually have to do it. We are talking about a situation in which the Prime Minister would be advised that it would be unhelpful, inappropriate and potentially damaging to the position of the monarchy to raise the issue at this precise point and, if it was going to be raised, it would be much better to raise it later or at a better moment. Those are the kinds of conversations that surround the few personal prerogative powers that still exist.

The system depends on something that is sadly lacking at the moment, which is a great deal of trust. The Public Administration and Constitutional Affairs Committee in the Commons said that

“some mix of statute and convention is the best way for this area to be governed, but this requires the actors involved to act in ways which engender trust.”

That has not been happening very much lately, so we should look at this with some care.

The noble Lord, Lord Norton of Louth, has done the right thing by tabling the amendment. I am not entirely persuaded that it makes a difference because my view is that it is a personal prerogative and, unless Parliament legislates it away, it is still there. However, first, it is highly desirable that it becomes clear that the Government understand the position that it is a request, not advice; and, secondly, if there is a general feeling in the House that it needs to be included in the Bill, we can do so. If not, we simply recognise that this is the position and that it has not been changed if we revert to the status quo ante.

My Lords, I agree with much of what the noble Lord, Lord Beith, said and with the amendment tabled by the noble Lord, Lord Norton. I am not sure it is hugely important but, because the issue of “advice” as opposed to “request” has reared its head as early as this, I want to make what seems to me to be a self-evident unarguable point, although I have been unable to persuade everyone that it is. Although the assumption prior to 2011 was that the Prime Minister went to the monarch with a request—in other words, it gave the monarch the decision as to whether or not to accept the request for Dissolution—the overwhelming evidence in my lifetime, and that of others of similar age in this Committee today, is that in practice it is inconceivable that an elected Prime Minister could go to the monarch and say, “I think we should go to the country” and the monarch would say no. Incidentally, that is hardly a disastrous request; the notion sometimes seems to come out in these discussions that asking for a general election is somehow an affront to democracy.

It is inconceivable to me that the monarch would say no, and historically, at least in modern times, it has just never happened. There may have been chats behind the scenes but there is no doubt that it would be a constitutional crisis of enormous magnitude if the Prime Minister of the day went to the monarch and said, “Please can I have a general election?”—or, to put it more accurately, “Please can the people resolve this difficulty that Parliament is in?”—and the hereditary monarch, who we must at all costs keep out of politics, said no. That is about the most politically contentious decision that any monarch could make.

It has always been an assumption of most people in these debates that at all costs we must protect the monarch from making those kinds of decisions. To me, it is a slam-dunk case that the monarch in modern times has had advice from the Prime Minister because in practice it has been inconceivable that the monarch would ever say no.

My Lords, we are very much indebted to the noble Lord for his background in this matter. It is important to remember that there are Dissolution principles to be settled before this situation arises. From time to time they have been revised, but I do not think they have been revised for some time now, and obviously it is appropriate that they should be before a further action is required.

It seems there is an academic argument about whether, once the prerogative powers are stopped as they were by the original Act, they can be revived—and this academic discussion occupies quite a lot of pages. So far as I am concerned, if Parliament says, “You go back to where you were before we did this”, that seems perfectly possible and should be followed. I therefore agree with my noble friend Lord Norton of Louth that it is desirable to put that in the Bill. I do not think it is at all likely that anything of the sort that the noble Lord, Lord Grocott, has mentioned is likely to arise, because the Dissolution principles make that very plain. It is in the form of a request because of its importance, but it will be taken in accordance with principles that are well settled. I very much support this proposal and the basis on which it rests.

My Lords, if I may intervene in this debate, I think it is still important that what used to be the custom and convention be clarified on paper. This is for a very simple reason. While I agree with the noble Lord, Lord Grocott, that it is inconceivable that a monarch could refuse the request of a Prime Minister, there is always a possibility. For example, in India, which has a constitution based very much on British lines, the president is elected by the Parliament, and very often he or she is a partisan person and would be unable to refuse the Prime Minister under any circumstances. We have to reserve the power of the monarch. If what the Prime Minister is saying does not smell good when he or she is asking for a dissolution, the monarch should have the power to say no.

My Lords, I agree with all those who have said that my noble friend Lord Norton of Louth has done us a very considerable service. He reminded us of the formidable words of Alan Lascelles, private secretary to George VI in 1950. We should, at all times, keep those Lascelles words in mind:

“It is surely indisputable (and common sense) that a Prime Minister may ask—not demand—that his Sovereign will grant him a dissolution of Parliament; and that the Sovereign, if he”— or, we should add, she—

“so chooses, may refuse to grant this request.”

It is the existence of this power that has ensured, and will continue to ensure, that no Prime Minister has asked improperly for a dissolution in our history.

May I just ask, what would be an improper dissolution?

I do not think I could make a list of the possibilities. One can conceive of them, but we trust to the existence of this power and the wisdom of the monarch to ensure that no improper dissolution is likely ever to be brought forward.

My Lords, I intervene briefly because this is a very interesting debate and I am grateful to the noble Lord, Lord Norton of Louth, for having tabled his amendment. We are all here because we recognise that the 2011 Act was a mistake. However, I am a little puzzled by the noble Lord’s amendment because he prefers to insert the word “personal” when, up to now, we have simply referred to it as the royal prerogative. Indeed, I am grateful to the Minister, who in a Written Answer to me yesterday defined the royal prerogative; I have it in front of me but do not need to read it out. The Minister refers to the royal prerogative just in those terms and not in any way as “personal”. Therefore, when the noble Lord, Lord Norton, responds to this debate, I would be grateful if he—or indeed the Minister—could tell us whether there is any difference between the phrases “royal prerogative” and “personal prerogative”.

While I am on my feet, I join other noble Lords in saying that, when I listened to the noble Lord, Lord Beith, it brought back to me what happened in 1974. However, I do not think that anyone would expect the monarch to refuse a dissolution, although it is inherent in the nature of this Bill that the monarch might take that fatal step.

My Lords, the answer to the question of the noble Lord, Lord Grocott, may be that, if something was clearly in contradiction to the dissolution principles, it would be wrong. The idea must be that the Prime Minister would exercise his power to request within the framework provided by the dissolution principles.

My Lords, I rise to speak only briefly. This short debate shows how, although we have five groups of amendments, they are all quite interdependent: they are all involved with the same issue. The noble Lord, Lord Norton of Louth, has done us a service tonight. He has indicated what the Government say they are trying to achieve: to reset the clock to where we were prior to the Fixed-term Parliaments Act. The reason why we have amendments down tonight is the lack of certainty that the legislation as drafted actually achieves that. I do not think there is any difference across the House about where we are trying to get to; rather, the issue is whether the vehicle being used does what it says on the tin, and that is why I am grateful to the noble Lord.

The reason why I am speaking now is that I may not have to speak on other amendments, because they are very much a part of the same issue. The dissolution principles have been identified several times. There is a later amendment, from the noble Lord, Lord Wallace, on the recommendation of the joint committee that these principles be revised and updated. I am sure that the Minister will respond to that later.

On the Lascelles principles, it is clear there that there are three areas where the sovereign could refuse a request—they would not have to, but they could—if those conditions were met. I suspect, as some noble Lords have said, that there would be a discussion prior to that point before any request was formally made.

I hope the Minister will take on board the comments we have made. I know he said that he does not want to see any amendments to the Bill, but as we have heard today, the amendments noble Lords have put forward seek to achieve what the Minister and the Government want to achieve via the Bill. I am grateful to the noble Lord, Lord Norton, for doing that. What we need is clarity, which is what many of the amendments before us today seek to achieve. Where there is a lack of clarity, they seek to ensure that the Bill does what the Government want it to do. I am sure that we will return to this issue, but I hope the Minister will not rule out accepting this amendment or having a discussion with the noble Lord, Lord Norton, to see if it could help the Government to achieve their objectives.

My Lords, I thank all those who contributed to what has been an important and interesting debate. I am grateful to my noble friend Lord Norton of Louth for bringing it forward, and I also welcomed the opportunity to talk to him about it. What I am going to say on the record is, I hope, a response to that discussion and to matters raised in this debate. I was struck by the fact that the noble Lord, Lord Beith, in an elegant and thoughtful contribution, envisaged circumstances where the reserve power could apply. The noble Lord, Lord Grocott, said that it was inconceivable. The reality is, as we will discuss later, that the Government’s belief, and the traditional practice, is that the reserve power has an important constitutional role.

The noble Lord, Lord Grocott, had a little go at another Second Reading speech at the start. I agree, of course, with what he said and with what my noble friend Lord Lexden said. I also agree with what the noble Baroness, Lady Smith, said last time around. It is absolutely true that the 2011 Act was, in her words, clearly designed for a specific purpose at a specific time: to protect the coalition Government from instability. I freely acknowledge the wisdom and accuracy of those words.

There is general support for the Bill, and I welcome that. I cannot encourage the noble Baroness opposite to think that all the amendments are clarifying. I think some of the discussions we have had would involve driving a coach and horses through the Government’s intentions on the Bill, as I hope to persuade the House later.

Turning to the amendment of my noble friend Lord Norton, I repeat that I am grateful to him for tabling it. Clause 2 was carefully drafted to put beyond doubt that the prerogative powers relating to the dissolution and calling of Parliament will be revived. As my noble friend Lord Norton outlined, these are prerogative powers that are personal or reserve prerogative powers, meaning that they belong to the person of the sovereign, acting in the sovereign’s individual capacity. The noble Lord has also sought to place on record and beyond doubt that the dissolution prerogative power is not exercised on the advice of the Prime Minister but is instead a request made to the sovereign. I can assure him that that is the Government’s position.

Turning specifically to Dissolution, the Government have recognised in response to the Joint Committee, for whose work we are extremely grateful, that this personal prerogative is exercised by the sovereign on the request of the Prime Minister, not on their advice. I am pleased to reassure your Lordships that the Government fully accept this accurate characterisation and are grateful for the Joint Committee’s considered conclusions on that point and the submissions made in the debate.

I hope that very clear statement on the record will gratify and ease the concerns of my noble friend Lord Norton and others. I therefore thank him again for tabling the amendment as it has given the Government an opportunity to clarify this point in Parliament, and given this Committee the opportunity to debate this aspect of the constitution. I hope my statement has provided sufficient clarity on the nature of the Dissolution prerogative so that my noble friend may feel able to withdraw his amendment.

My Lords, I am extremely grateful to everyone who has spoken. It has given rise to a very valuable debate with some very helpful interventions. I take the point of my noble and learned friend Lord Mackay of Clashfern that there is an extensive academic argument about whether the prerogative can be revived. I am very much in favour of academic debates taking place, since if they did not, I would be out of a job. From my point of view, the one good thing that came out of the Fixed-term Parliaments Act was the number of articles I managed to publish on the subject.

Today, however, is the occasion for that debate about the prerogative being revived. I accept that the Bill achieves what it is designed to do: to provide that the prerogative comes back and to put it beyond doubt because of that academic debate about whether it could or could not. This establishes that it does. That has to be our starting point because, as the noble Baroness, Lady Smith, said, it is designed to restore the status quo ante. Therefore, the purpose of my amendment is to achieve clarity of that purpose and that it is a personal prerogative, the distinction I drew —in response to the noble Viscount, Lord Stansgate—in opening. It is one of only three prerogative powers that the monarch does not exercise on advice.

I deliberately quoted the report of the Joint Committee, which the noble Lord, Lord Beith, referred to, in relation to the point that the noble Lord, Lord Grocott, raised: the practice is that the monarch has acceded to requests for Dissolution. I was also trying to touch on the fact that No. 10 has contacted the palace in advance to make sure that it will be granted. I always think that is a useful deterrent; it makes the Prime Minister think about it. There is now the convention that Ministers do not act in a way that would embarrass the Crown, so there is some restraint there. There is a useful purpose in its existing in the same way that, formally, the monarch does not appoint the Prime Minister. That, again, is one of the powers not exercised on advice. There are certain elements there that remind Ministers that there is a higher authority to which they are responsible. There is a purpose in it and a useful role, but that is a wider debate. My starting point is that the purpose of the Bill is to restore the status quo ante and my amendment is focused on that. It is working within the purpose of the Bill and what it is designed to achieve.

As I said in opening, I was keen to get the Minister to put on record at the Dispatch Box that it is a personal prerogative power. Therefore, that is a necessary condition. I will need to reflect on whether it is a sufficient one, but for the moment I beg leave to withdraw the amendment.

Amendment 1 withdrawn.