My Lords, quite a lot of what we will discuss this evening is how far we need to put into statute the sort of things the noble Lord, Lord Norton of Louth, has been thinking about, or whether a revised version of the Cabinet Manual would be sufficient to set out the conventions agreed by the parties. We will come back to that later.
Looking through the 2004 report of the Commons Public Administration and Constitutional Affairs Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, I note that there was a memorandum from the Treasury Solicitor’s Department on the royal prerogative, which listed as one of the prerogatives
“the summoning, prorogation and dissolution of Parliament” as a single interconnected power.
The Government have said that Prorogation is outside the scope of the Bill and is an entirely separate car. The reasons, going back to why in 2010-11 Prorogation was taken out, seem relatively clear. The Lords Constitution Committee then said that
“the risk of abuse of the power of prorogation is very small”.
The Government said in the debates on the Bill that
“The conventions of this House are sufficiently strong”—[Official Report, Commons, 18/1/11; col. 768.]
to make inclusion of the power of Prorogation on a statutory footing unwise and unnecessary. Opinions would now differ. As the noble Lord, Lord Lexden, pointed out, no Prime Minister has asked improperly for a Dissolution, but the question of whether a Prime Minister has asked improperly for a Prorogation is very much open.
The noble Lord, Lord True, and other Ministers have enjoyed referring to our tried and tested constitutional system. If one looks back at arguments over Prorogation, there were riots throughout the country in 1820 against Prorogation. In 1831, when the Lords were about to debate whether there should be a Motion to prevent Prorogation, William IV jumped into a rather inferior carriage and came down personally to prorogue Parliament. In 1854, an MP proposed an address to the Queen against Prorogation, which Lord Aberdeen as Prime Minister made a matter of confidence in order to prevent. “Tried and tested” is, perhaps, a little strong.
I ask the Minister in general terms for an assurance that a revised edition of the Cabinet Manual, which I hope is now well under way, will clarify that there is now a well-established convention—tried and tested, even—over the last century that Prorogation is now a prerogative power available for use only in marking the short recess period between parliamentary Sessions, and that this should not be used as a prelude to a request for Dissolution that has not been communicated to nor approved by Parliament. Nor should it be used, as it has not been for the past century, as a means of avoiding parliamentary scrutiny, proposals or decisions over any extended period.
Perhaps I may be permitted to say a little about the broader issues behind this debate since my amendment is linked to the broader amendment which follows. The desirability of reaching as wide a consensus as possible has been stated in a range of reports relating to this Bill. The 2004 committee report said that the case for the reform of ministerial executive power is “unanswerable”. Indeed, opposition Conservatives including William Hague gave evidence to that committee in support of further limits on executive power. Perhaps the young Nicholas True wrote some of the evidence which he gave; I do not know.
The Minister’s response to the Constitution Committee last December said, rather more weakly, I thought:
“Political consensus is of course valuable when possible” without, so far as I am aware, promoting any active cross-party consultations on the constitutional issue. I regret that. This is a major constitutional Bill; therefore there needs to be as much consensus as we can achieve.
The fact is that, week by week, we begin to approach the idea that this Government might not necessarily be in power beyond the next election, which could conceivably produce a Parliament in which no single party has a majority. We are concerned not just with addressing the flaws in the 2011 Act but with future-proofing, as various committees have talked about, so that we are prepared for a situation that we might face with the outcome of the next election.
The Joint Committee says at paragraph 14 that there has been
“a clear direction of travel to bring prerogative powers under greater democratic control, usually through greater Parliamentary scrutiny or approval, or by giving statutory force to rules that previously relied on prerogative powers, executive discretion and constitutional conventions.”
The Faulks administrative law review makes much the same point. Conventions are based on trust and executive restraint. Where trust is weakened, statutory authority has to replace convention. I therefore move my amendment, which links Prorogation to Dissolution, because that is part of making sure that we share an understanding of some of these basic constitutional principles.