My Lords, the noble Lord, Lord Butler of Brockwell, was kind enough to quote me from when I spoke in Committee on this. I want to underline that what I said was:
“I cannot conceive of any circumstances in which the involvement of the courts could ever be justified”.—[Official Report, 25/1/22; col. 227.]
That is the important point. What Clause 3 is trying to do is to put this question beyond doubt.
Without Clause 3, we potentially do not rule out the courts trying to get themselves involved in challenging the use of the royal prerogative, doubtless with the help of very clever lawyers such as the noble Lord, Lord Pannick. Indeed, in the noble Lord’s remarks just now, he rather wanted to keep the door open for noble Lords such as himself to encourage the courts to get involved in cases such as the use of the royal prerogative.
Our understanding before the introduction of the Fixed-term Parliaments Act was that the courts would not get involved in the use of the royal prerogative. Since then, there have been some surprising judgments—perhaps not surprising to the noble Lord, Lord Pannick—such as Miller 2, which have made many people doubtful about whether or not the settled understanding of where the courts would go was indeed that settled. That is what the noble Lord, Lord Pannick, has underlined for us today.
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I believe Clause 3 is necessary to put this issue beyond question. Judges must not get involved in politics, and there is no more political decision than when to hold an election. I do not think that judges should ever stand between the people and the ballot box.
I wish to underline what other noble Lords have said about whether or not this is a precedent. If this ended up on the statute book, it would, in a technical sense, be a precedent for a future parliamentary draftsman to put into a draft Bill. But that is all parliamentary draftsmen do: they draft something into a Bill, they do not make it law. Parliament makes laws, and it will be for Parliament to ensure that there was not an inappropriate use of ouster clauses. I do not think that it has ever been asserted that ouster clauses are unconstitutional; they are certainly permitted in specific circumstances where justified and should be justified on their merits in each case. In this case, Clause 3 is there to ensure that we can go back to the prior understanding in relation to this one specific example of the royal prerogative.