I will come to that particular piece of legislation—definitely—since it has been raised. To complete what I was saying, the prerogative power to dissolve Parliament is the ultimate expression of humility on the part of the Executive, placing its future and power into the hands of the people. We therefore believe that Clause 3 is appropriate and necessary, as judgment on the Government’s actions in such matters should be left solely to the electorate at the polling booth. I stress that we are asking Parliament to consider these arguments and endorse this clause in this Bill—nothing more. The Judicial Review and Courts Bill, by way of contrast, contains an ouster clause to prevent the judicial review of decisions of the Upper Tribunal to refuse permission to appeal decisions of the First-Tier Tribunal.
I turn to the potential consequences of the amendments proposed. Deleting the wording or the clause would undoubtedly make the dissolution prerogative more susceptible to potential litigation. In effect, the decisions in Anisminic, Privacy International and Miller II potentially offer a route for a court, or more precisely a mischievous litigator, to derail an election process by taking the Government to court for calling an election for political imperatives with which they may disagree. The suggestion by noble Lords to delete “purported decisions” is equally disagreeable, for it would arguably provide litigators with a route to try to delay an election through a court case that could examine why an election has been called on one date rather than another. This, I think, we can all agree would be entirely undesirable.
The clause prevents political litigation about the timing of elections; litigation that I am sure your Lordships dread as much as I do and—I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood—I am sure much of the judiciary would dread. Let me emphasise what it is that we are trying to protect: it is nothing less than the legal certainty of our elections, which underpins our democracy. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn, as the noble Lord, Lord Faulks, said, into making decisions and weighing political imperatives that they are not equipped to do.
If there is an intervention, is the election timetable then suspended? Are the people to be informed that a court might deny them the right to have their democratic say? If the court process moves slowly, could the situation arise where a court then dismisses or questions an election result? Asking the courts to review a Dissolution decision is to ask them to weigh the political merits and imperatives of the decision; it is inherent in the nature of the question. If the courts can vitiate a Dissolution decision, the principle of the legal certainty of our elections is violated and the courts are inescapably drawn into making decisions and weighing political imperatives.
More practically, we must consider the risk that we might send a signal to mischievous and politically motivated litigators that they can disrupt the process with vexatious and frivolous claims against Dissolution. Even the threat of such a court case would be disruptive to the process, drag our judges into the political fray and cause huge expense and delay and a frustration of the democratic process. There is no surer way of risking the reputation of the judicial system among many sections of the British people, no surer way for the courts to be seen as a political institution, and no surer way to drag the sovereign into politics. These are not scenarios for which your Lordships can possibly wish. It is wise to take all the necessary steps to be absolutely certain, without a shadow of doubt, to ensure that these scenarios do not occur.
Finally, let me directly confront the case put by the noble Lord, Lord Butler of Brockwell, that, by removing a judicial oversight, this clause allows a licence for the Executive—far from it. The exercise of the prerogative power is a question for the political, not the judicial, sphere, and the remedies and constraints are in that political sphere.
Our constitution has for centuries proved well able to avoid extremities and has provided for accountable checks on the Executive, and these checks are both pre and post hoc. In terms of pre-hoc checks, a Prime Minister requests a Dissolution of the sovereign which, in exceptional circumstances, can be refused. In parallel, the core constitutional principle that the sovereign must not be drawn into party politics acts as an important deterrent to improper requests being made. That is an immense latent force in our constitutional arrangements. Furthermore, the Government, in response to the Joint Committee, amended the Bill prior to its introduction to Parliament so that the statutory election period will be triggered automatically by the Dissolution of Parliament. This will ensure that the theoretical possibility of a Dissolution without an ensuing election period is eliminated.
There are also post-hoc checks and incentives on the Executive that have worked for many years, effectively compelling Parliament to be called as soon as feasible after an election. The Government of the day must be able to command the confidence of the elected House. Unduly and unnecessarily delaying the calling or meeting of a new Parliament is not in the interest of any Government seeking to make progress on the mandate it has received at a general election. Most importantly, the Dissolution and calling of Parliament are powers that pave the way to a general election and a new Parliament. Again, as the noble and learned Lord, Lord Brown, reminded us, the actions of the Prime Minister and the Government are subject to the judgment of the electorate and, in due course, to that of a new Parliament.
If a Prime Minister acts—as we alleged one might—nefariously, even if a Prime Minister acts contrary to prior expectations and past practice, that will be judged by the electorate. It is also available to that new Parliament to undertake the nuclear option of passing a Motion of no confidence on the new Government, almost immediately, if it wishes, on an amendment to the Queen’s Speech. These practical constraints on the
Executive have served us well for many generations. As we see, the checks on Dissolution are practical and political; they should not be legal.
I apologise for speaking at such length, but I hope noble Lords will understand the importance of putting these points on the record for your Lordships to consider between now and Report. If any other points have been raised in the debate, I will, of course, write. I sincerely hope that noble Lords will reconsider their amendments and urge them to join the view of the other place to not permit the entry of the courts and support this clause