My Lords, the noble Lord, Lord Butler, is right to pursue his amendment because it seems quite possible that the House of Commons will decline the invitation to accept the amendment that your Lordships’ House so recently voted in favour of. I will address a number of questions briefly, because I did have the pleasure of being here in Committee.
First, is this really an ouster clause at all? I accept that it is not easy to imagine circumstances in which a Dissolution is challenged in the courts, but the noble Lord, Lord Butler, wants at least to keep open that possibility—apart from anything else, as I understand it, to save potential embarrassment to the sovereign. The noble and learned Lord, Lord Hope, does not want this ouster clause, if it is so described, to act as a precedent, and the noble Lord, Lord Norton of Louth, does not like the word “purported”.
It is probably not, strictly speaking, an ouster clause at all. During the deliberations of the Independent Review of Administrative Law, which I had the privilege of chairing, we looked at this clause. We thought that there was a distinction between Parliament creating a power and, at the same time, including a provision that limits or absolutely prevents the courts’ powers from challenging that.
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However, this is not really that sort of situation at all. It is not, truly speaking, an ouster clause; it is simply restoring the status quo. As the noble Lord, Lord Norton, pointed out—and Lord Roskill so long ago expressed the view—it is simply a no-go area for the courts, so that we are not ousting anything that they would normally consider but simply saying that this is the position.
If this is an ouster clause, and I doubt whether it is, is it justified here in order to preserve the status quo? Why leave open the possibility, however remote, of the courts challenging a Dissolution? Potential chaos would follow a challenge—campaigns might be halted and results might even be overturned; even a threat of a legal challenge or an unsuccessful challenge could cause some serious temporary chaos. We all know that the courts are astute at identifying what has been described as politics by other means, but applications might be made, as the noble Lord pointed out, for collateral reasons. There are those who, quite frankly, say that they would be prepared to weaponise judicial review for political advantage.
Will this ouster clause be a precedent? The argument in Committee was that this will simply be followed by the parliamentary draftsmen and by a Government eager to restrain executive power. Of course, the Judicial Review and Courts Bill, which we were debating on Monday, contains a different ouster clause; it is a qualified ouster clause. Surely our job as Parliament is to look very carefully at any ouster clause in any Bill;
they need justification. I entirely accept an ouster clause but it is not appropriate for the Executive automatically to oust the jurisdiction of the courts. I have faith that Parliament will be vigilant about this. Parliament has a vital role to prevent the Government routinely using such clauses.
Dealing with the question of “purported”, Boris Johnson plainly purported to prorogue Parliament. He went through all the customary processes and, as a matter of fact, Parliament was prorogued. Frankly, if you as a Government or parliamentary draftsman had read the decision in Anisminic or Privacy International, you would be negligent not to include the word “purported”, otherwise you are simply inviting the courts in.
Finally, the House generally agrees that it is very unlikely that the courts would want anything to do with this, but that might well have been the view that the Government took in relation to Prorogation, and that might have been the advice that was given to the Prime Minister and the Government. After all, a divisional court declined to accept the beguiling submissions of the noble Lord, Lord Pannick, that this was justiciable and decided unanimously that it was not. It is not inconceivable that these situations may arise.
In my respectful submission, this has been very carefully considered. In Committee, the noble Lord, Lord Wallace, very kindly referred to some of the conclusions of the Independent Review of Administrative Law and said that Parliament should think “long and hard” before ousting the jurisdiction of the courts. That is what we thought, and I entirely adhere to what we said then. But the position is that there has been careful consideration by us—I hope—the Joint Committee, the House of Commons and your Lordships’ House. We have looked long and hard at this ouster clause. In my respectful submission, it is one that stands the analysis we have given it and should remain in the Bill.