My Lords, I added my name to the amendments in the name of the noble Lord, Lord Norton of Louth, and to join the noble Lord, Lord Butler of Brockwell, in seeking to remove Clause 3 from the Bill. I agree with what the noble Lord, Lord Norton, said in both respects. He dealt with the point that the provisions he seeks to remove from the Bill are unnecessary and objectionable in principle. I will say a few words in support of what he said.
Like the noble Lord, Lord Norton, I cannot help feeling that references to “purported exercise” and what we see in Clause 3(c) are a reaction against, or motivated by, as the noble Lord said, the decision of the Supreme Court in Miller II, although that case was about Prorogation, not Dissolution. There is a very clear distinction between the two, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said at an earlier stage in our debates. It is also very important to bear in mind that the court in Miller made it absolutely clear that it saw its function as being to serve the interests of Parliament against the Executive. It sought to ensure that the Government did not use
the power of Prorogation to prevent Parliament carrying out its proper functions, including holding the Executive to account.
We have here a remarkable paradox. On the one hand, the court saw itself as under a duty to preserve parliamentary democracy against actions taken by the Executive. On the other hand, Parliament is being used here by the Executive to deprive the court of that power. I stress that because ouster clauses may seem to be a matter of concern only to lawyers, but that is not so in this context: their use here should be a matter of concern to all of us in this House who value the part that Parliament plays in our democracy.
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The word “purported” is worth dwelling on. The noble Lord, Lord Rooker, whose name is also against this amendment but who has unfortunately left his place, raised this issue with the noble Lord, Lord True, at Second Reading. I am sure that noble Lords will remember that exchange quite well. The noble Lord, Lord True, explained exactly what the word meant: he said—I cannot put it better than he did—that it means an “invalid” exercise of the prerogative that is, therefore, not lawful. The question is whether, when you use the word, the power that is being exercised is within its lawful limits. This almost begs the question about whether that is a question of law that this clause is seeking to take away from the courts altogether. Like the noble Lord, Lord Norton of Louth, I think that this provision contravenes the rule of law and for that reason is objectionable in principle.
I make it clear that I take no objection to Clause 3(b) and (c) if the references to “purposed exercise” or “purported decision” are removed. In the interests of clarity, it is quite clear to just say that the court or tribunal may not question the exercise of the powers referred to in Clause 2—that would give clarity. I take no objection to those on the grounds that they are either unnecessary or objectionable in principle. It is Clause 3(c) and the reference to “purported exercise” that concern me.
In principle, my point is that every prerogative power has its limits. Over the centuries, the courts have protected parliamentary sovereignty from threats posed to it by the use of prerogative powers. So the sovereignty of Parliament would be undermined, as a fundamental principle of the constitution, if the Executive could, by using the prerogative, prevent Parliament exercising its legitimate authority for as long as they wish. The same point can be made about the principle that Ministers are accountable to Parliament. We need to be protected against the risk that a responsible Government may be replaced by an unaccountable one. In Miller, the court said that that would be the position if there were no legal limit on the power to prorogue, so the decision to prorogue would be unlawful if it were to have those effects.
I recognise that in this we are not dealing with Prorogation, which brings me to the second part of the point of the noble Lord, Lord Norton of Louth, on whether these provisions are necessary. In paragraph 4 of its judgment in Miller, the Supreme Court noted, in passing, that there are “conventional constraints” on
what the Government can do during the Dissolution period. I take that as a signal that, if the issue of Dissolution were to be raised before the court, it would not entertain any argument about it. In the previous debate, we heard quite a lot about the Dissolution Principles and various constraints that would require any attempt to deprive the electorate of their opportunity to vote following a Dissolution to simply be a non-starter.
Indeed, in his letter to the Constitution Committee in December last year, the Minister developed these points. It was an admirable letter because it answered the Constitution Committee’s points in considerable detail, which is highly commendable and I hope will be followed by other Ministers in similar cases. As the noble Lord said in his letter, there are already checks and incentives for the Executive that have worked for many years, effectively compelling Parliament to be called as soon as possible after a Dissolution. Unduly and unnecessarily delaying the calling of a new Parliament is not in the interest of any Government seeking to make progress on the mandate that they have received through a general election. The Bill itself, in Clause 4, introduces an additional safeguard: an automatic Dissolution provision in the event that a Prime Minister fails to use his prerogative to request a Dissolution at all.
So where is the problem? These are draconian ouster provisions which are without precedent. I am talking about Clause 3(c) because I have not been able to find any precedent for this extreme exclusion at all. Strange things, of course, have been happening since this Prime Minister took office, but even he, I suggest, would find it very difficult to abuse this prerogative power. It seems to me that the possibility of the courts intervening in this context is remote.
Why do I object to these provisions? Parliament and, in its turn, the electorate to which it is answerable, are protected by the rule that questions of law are for the courts. It is very dangerous to undermine that principle in the way that is proposed here because of the example that this clause sets for the future. Clause 3(c), which states that a court may not question “the limits or extent” of the prerogative powers that are revived by the Bill, strikes at the heart of the rule of law. My concern is that, once used, this formula will appear again supported by the reasoning that, just because it was approved by Parliament in this case, it has become an established part of our constitutional lexicon.
I am grateful to the noble Lord, Lord True, for a very interesting discussion the other day in which he was good enough to listen to my arguments and explain the position he is taking to resist them. One of the points, which I fully recognise, is why he has been advised that the provisions should be framed in this way. That is because the courts have said that ouster clauses must be construed strictly, and that means that, if it is Parliament’s intention to take this jurisdiction away from the courts, it must do so in clear terms. The noble Lord made it very clear that that was the advice he had received and that is why the clause was drafted in this way. I understand the point, but it does not answer my point, which is whether he should be doing this at all. I assure him that my concerns about this are very real. Prerogative powers can do much damage if
they are abused. To introduce this formula into our lexicon in a different context, as I fear will happen, would be very dangerous.
The Government have nothing to fear by the removal of these provisions if they wish to be free to exercise their prerogative powers in the context of Dissolution. I wonder whether the noble Lord can assure me that, if he insists on keeping these provisions in power, they are not to be a precedent for the future. As the way things are now, that is my principal concern because I do not see the court being involved in this issue about Dissolution being improperly exercised at all.