Amendment 2

Part of Dissolution and Calling of Parliament Bill - Committee – in the House of Lords at 7:30 pm on 25th January 2022.

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Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office), Shadow Spokesperson (Cabinet Office, Constitutional and Devolved issues) 7:30 pm, 25th January 2022

My Lords, this has been a long and really interesting discussion, and it sums up the very reason for this amendment. When I spoke on the amendment from the noble Lord, Lord Norton, at the beginning, I said that one of the reasons I thought he had brought his amendment forward was to bring some clarity, and it is the same with this amendment in so many ways.

When I looked through the Hansard for the other place, one of the things that struck me—I mentioned this at Second Reading—was how often Ministers asserted as fact something that was really a ministerial opinion or judgment, and not actually a fact. The most crucial one was that the Bill will

“reset the clock back to the pre-2011 position with as much clarity as possible.”—[Official Report, Commons, 13/9/21; col. 721.]

If it was that clear, we would not have the amendments before us tonight. It is not clear, and that lack of clarity has caused concern.

The comments made by the noble Lord, Lord Lansley, about having a practical view of how this works in practice were really important. As the noble Baroness, Lady Taylor, said, one of the problems of the Fixed-term Parliaments Act is that it did not stand the test of time. It was probably flawed at the beginning, and the Minister was kind enough to quote me at the very beginning when I said that the legislation was brought in for a specific purpose, which was to protect the coalition. It outlived its usefulness pretty quickly.

On all this, I start from the basis that a Government must have and retain the confidence of the House of Commons. A Government derive their authority from those elected to the House of Commons. Without that authority, a Prime Minister is unable to govern, unless they can command the support of the House of Commons. In some ways, the 2017 to 2019 Parliament is not a good starting point from which to look at how Parliament operates. We had the Long Parliament and the Rump Parliament; that was the dysfunctional Parliament in so many ways. We need to accept that.

The honourable Lady in the House of Commons kept saying we would “reset” this back to pre-2011. The noble Lord, Lord Lansley, made the point that that is not clear at all. Can you reinstate a royal prerogative by statute? Does the royal prerogative—a point made by the noble and learned Lord, Lord Judge— really work in practice today? It seems there are two options. Either we remove the ouster clause, which would allow the courts to intervene to say whether they think a general election being called by a Prime Minister is appropriate, or we have a separate mechanism of the House of Commons and Members of Parliament voting.

I understand the comments made by the noble Baroness and others that MPs would have a vested interest in whether there is an election. That is 650 vested interests, but a Prime Minister has one vested interest in whether to have an election. I struggle to understand why it can be acceptable for the Prime Minister just to call an election on their judgment, as in the Bill—it is moot whether it restores the position back to pre-2011—but not for Parliament to vote on it. MPs have a vested interest in every single piece of legislation passed and in governing the country. That is what we expect them to do in the interests of their constituents and the nation, so to deny them a vote on the one thing that allows the public to have a vote is difficult.

The noble Baroness, Lady Noakes, said MPs would be denying the people a say in a general election. That is not the case, because there will be a general election within five years. Only if a Prime Minister wishes to have an early election would there have to be endorsement by those elected to Parliament. In this system we do not elect a Government. We elect individual Members of Parliament, who then choose a Prime Minister and the Prime Minister chooses the Government.

I have some sympathy with the comments made by the noble Lord about what would be an inappropriate decision by a Prime Minister to call an election. When a Prime Minister calls an election, it may be to increase their majority. That seems to me a perfectly legitimate reason for a Prime Minister to call an election. Because they are worried the other side might win is also a reason not to call a general election, but at the end of the day that is why we have term limits. No Prime Minister can put off an election for ever, because there is a term of office within which they have to call a general election. We all know that when you do not have fixed terms, Prime Ministers and Parliament will choose an election date to the benefit of their party, and I do not think that an illegitimate way to proceed.

The noble Lord, Lord Beith, in some ways trespassed on the next amendment as well, which I understand because the two go hand in hand, and it is far preferable to have Parliament making the decision than to remove Clause 3 from the Bill.

I would not dare to suggest that the noble Lord, Lord Lisvane, has his “shalls” or “wills” wrong on this, but it highlights a point—the same one made by the noble Lord, Lord Norton. The noble Lord, Lord True, said at the very beginning of our discussions on the Bill that because the House of Commons did not make any amendments your Lordships’ House should not make any amendments. That is not a good justification for not doing so. I read the debates and looked at the discussions they had on whether the House of Commons should have a final say on whether there should be a general election. It did not seem that there was much detailed debate on that, and I wonder whether those Members of the House of Commons who debated this really understood the power they were giving away or what they were giving away. Our democracy works on a system of checks and balances, and I am far more comfortable with those checks and balances being held by elected Members of the House of Commons than by the courts, or by dragging Her Majesty into political discussions. The Lascelles principles are clearly outlined on paper, but I am not sure they have stood the test of time.

I do not think it is possible just to reset the clock by passing the Bill as it is. We have a duty to ask the House of Commons to have a look at this again. It is a matter for MPs. They should debate and consider it and see whether they think it is appropriate that we hand the power straight back to the Prime Minister so that the decision is vested in one person. Ministers have said previously that this increases democratic legitimacy but handing it to one member of the Executive in the House of Commons does not do that. No one is saying that the Prime Minister—he or she—would not be capable of making a decision, but democracy is served better when decisions are taken in the House of Commons in the normal way.

My noble friend Lord Grocott knocked back the point made about the two-thirds majority by explaining why that is so difficult. I am sorry that the noble Baroness, Lady Noakes, did not listen to the comments of the noble Lord, Lord Lansley, earlier, because he gave the circumstances in which the House of Commons did vote for an election, but because it was not a simple majority but a two-thirds majority it did not happen then. It did eventually happen, but a simple majority, in the same way as we decide every other piece of legislation, would be the best way forward.

I support Amendment 3 in my name and those of the noble and learned Lord, Lord Judge, and the noble Lords, Lord Newby and Lord Lansley, and I hope the Minister will not just dismiss it out of hand but will be happy to enter into further discussions to see whether it could be a helpful way forward, particularly when we get to the next debate, on Clause 3.