My Lords, I will certainly seek to do so. I do not wish to pre-empt the Committee in any way. We obviously have other groups to come to. I anticipate that the debates on those will not be quite so lengthy but, given the importance of this amendment, I hope noble Lords will be forbearing if I address it in some detail to place these matters on the record,
mindful as we all should be that arguments put at length in Committee should not be repeated at length on Report.
I took it from what the noble Baroness opposite said that the Labour Party agrees with us that the courts should not come anywhere near this. Other people have obviously argued otherwise. She came out with that other elephant in the room, which was glinting quietly in the mists behind the argument from the noble Lord, Lord Butler. She criticises my right honourable friend Minister. The elements are mixed in my right honourable friend the Prime Minister. He has apologised for actions, and things are subject to inquiries. My right honourable friend the Prime Minister is subject to the most unprecedented campaign of personal vilification that I have been aware of in modern politics in my lifetime. Notwithstanding that, I do not think that that justifies ad hominem legislation of any sort. This point was addressed by the noble Lord, Lord Faulks.
The noble Lord, Lord Butler, based his argument on a claim that the Government sought “totalitarian” powers, with an advised plural. This matter concerns one process, as has been pointed out by several people who have spoken, and one process alone: the Dissolution of Parliament and the precipitation of a general election. I find nothing remotely totalitarian in a Government asking the public to be the Government’s judge.
Dissolution remains one of the most fundamental non-justiciable prerogative powers. Nobody has argued that it should be justiciable; some people said, “We do not need to have an ouster clause because it is obviously not”, et cetera. Dissolution is unique for two reasons. First, the constraints on it are democratic; the judgment on a Prime Minister’s decision to call an election is the electorate. There is no vacuum of accountability, as the noble Lord, Lord Grocott, said. What greater judgment and punishment can be meted out if a Prime Minister abuses that power than the loss of power, as the noble and learned Lord, Lord Brown, told us? It is the ultimate political reprimand. Secondly, the security of the process of calling an election, and the election itself, underpins the integrity and health of our democracy. It is critical that exercise of the Dissolution prerogative, including the preliminary steps leading to the exercise of the power, are not made insecure. This prerogative power is inherently political in nature and it is not suitable for review by the courts. There is no legal standard that the courts can usefully apply to review the preliminary steps and the Dissolution decision itself.
This has been the view of the courts, as we have heard. Lord Roskill, in the landmark GCHQ case in 1985, said the courts’ right of challenge must
“depend upon the subject matter of the prerogative power which is exercised”.
He agreed that the Dissolution of Parliament was not
“susceptible to judicial review because”
its
“nature and subject matter is such as not to be amenable to the judicial process.”
Furthermore, as Lord Justice Taylor noted in Everett:
“At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable.”
However, despite these clear directions from some of the most esteemed judicial authorities, in our judgment the direction of travel in the case law makes a clear and explicit statement of non-justiciability necessary.
As the Independent Review of Administrative Law noted—and I pay tribute to my noble friend Lord Faulks for his role in that and for his reasoned and intelligent approach in leading that review,
“the past 40 years or so have seen a steady retreat within the law on judicial review away from the view that exercises of certain public powers are by their very nature non-justiciable in favour of the view that the exercises of those powers are either justiciable or reviewable on some grounds but not others.”
It is this reality that makes it necessary to include this clause leaving no room for doubt. The clause has been carefully drafted, as the noble and learned Lord, Lord Hope, divined, respecting the message from the courts that only, in the words of Lord Justice Laws, with
“the most clear and explicit words”
can Parliament exclude their jurisdiction. I am afraid, therefore, that when noble Lords suggest that reviving the prerogative power would suffice—this touches on the point raised by the noble Viscount—as the courts would be excluded from reviewing a prerogative power, that does not take into account the direction of travel in the case law and would be to ignore the clear message of the courts themselves. That was the gravamen of the impressive speech of the noble Lord, Lord Faulks, with which, in substance, I agreed, and also the submission of the noble and learned Lord, Lord Brown.
Noble Lords raised concerns with the specific wording of the clause, in particular the words “purported”, “limit” and “extent”, which I will address in detail. First, I emphasise that this clause says what is necessary and no more. Each of its words is necessary, in our judgment, to preserve the non-justiciability of the prerogative of Dissolution. Drafting this clause has been a technical challenge for counsel, and it has required a response to a range of case law. The purpose of the clause is to be as clear as possible about the “no-go” sign around the Dissolution and calling of Parliament, to preserve the sphere of political decision-making that provides the context for the exercise of the prerogative power of Dissolution and the preliminary steps leading to the exercise of that power. The Independent Review of Administrative Law, which had the benefit of seeing the Government’s clause, did not find it disproportionate but rather agreed that it can be regarded as a “codifying clause” which
“simply restates the position that everyone understood obtained before the Fixed-term Parliaments Act 2011 was passed”.
I can tell the noble Viscount that it was the view of the Independent Review of Administrative Law that the clause restates the position.
9.30 pm
I turn to the amendments tabled by my noble friend Lord Norton. I shall explain why the references to “purported” are needed. I think it was the noble Lord, Lord Rooker, who questioned “purported” in Committee; as a lay man, I must say that “purported” sounds an interesting word, to put it no finer. We heard an explanation of it earlier from my noble friend Lord Faulks.
As I said, the ordinary standards of administrative law as applied by the courts are simply not a suitable framework against which to judge the exercise of these prerogative powers or decisions relating to them. That applies particularly in the use of “purported” as understood by administrative law. It should not fall to the courts to assess a request to dissolve Parliament by reference to whether relevant considerations have been taken into account or irrelevant ones have been discounted; by reference to whether the request is rational or has been made for a proper purpose; or by reference to whether a fair process has been followed or whether there has been a failure to satisfy a legitimate expectation. That would be to ask the wrong questions in the wrong forum.
The word “purported” has been included in response to two cases in particular. I know that many noble Lords will be very familiar with the cases but perhaps it is useful to consider their particular relevance to the drafting of this clause. In the case of Anisminic Ltd v Foreign Compensation Commission, the Foreign Compensation Act 1950 contained a so-called ouster clause that provided that a “determination” made by the Foreign Compensation Commission shall not be
“called into question in any court of law”.
However, the House of Lords held that the ouster clause did not prevent it inquiring into whether the commission had made an error in law—in that case, by proceeding on a misconstruction of the order. It held that a determination invalidated by an error of law was not a determination at all; rather, it was merely a “purported” determination, or a nullity. The simple reference in the ouster clause to a “determination” of the commission did not cover purported determinations and therefore did not prevent the court looking at whether the commission had made a correct determination in law on the question of eligibility to claim compensation.
In that case, Lord Reid explained that
“it is a well-established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly—meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”
If Parliament had intended the ouster clause to cover purported determinations, Lord Reid said, he would have expected to find something much more specific than a “bald” reference to a determination. That is an important consideration to bear in mind. It is for that reason that we cannot rely in Clause 3 on a bald reference to the exercise of the revived powers and decisions relating to those powers. References to “purported” are required to make plain the intention that it is not for the courts to examine a Dissolution and calling of Parliament against our administrative law framework.
That position is underlined by the recent case of Privacy International v Investigatory Powers Tribunal in 2019, in which the Supreme Court ruled that an ouster clause in the Regulation of Investigatory Powers Act 2000 did not oust the court’s jurisdiction to review a judgment of the Investigatory Powers Tribunal for error of law. Here, Lord Lloyd-Jones remarked that it was a striking feature that the ouster in the 2000 Act did not mention purported decisions, given that the drafter must have been aware of Anisminic. He expressed
an expectation that those drafting legislation would have regard to the case law and make it clear if “purported decisions” are intended to be outside the jurisdiction of the courts. We submit that in this context, and based on the clear views expressed by the courts, it is reasonable that the Government should seek to draft Clause 3 in this clear and unequivocal way.
In short, we have included “purported” in Clause 3 to give effect to the principle that matters concerning the Dissolution and calling of Parliament are best judged by the electorate, not by the courts. This wording is essential to achieve that point.