House of Lords

Monday 21st March 2011 Lords Chamber

Monday, 21 March 2011.

14:30

Prayers—read by the Lord Bishop of Exeter.

Agriculture: Pigs

Monday 21st March 2011 Lords Chamber

Question

14:36

Asked By

[Lord Hoyle]

To ask Her Majesty’s Government what help they are giving to British pig farmers.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

We are committed to supporting and developing all British farming. This includes working with the pig industry to build on progress by the pig meat task force to improve relationships between farmers and retailers. At an EU level, we are working to improve the situation for producers in the medium term, including discussions in the Commission’s new enlarged pig meat advisory group.

[Lord Hoyle]

My Lords, I thank the Minister for that reply. Is he aware that pig producers are losing £20 on every pig sold, that the industry as a whole is losing £3 million per week and that at the same time supermarkets are making £60 million a week and processors are making £8 million per week? When are the Government going to set up a grocery ombudsman whose job will be not only to protect consumers but to ensure that producers, such as British pig producers, get a fair price for their product?

[Lord Henley]

My Lords, I am very grateful to the noble Lord for raising his Question. He is quite right to point to problems that the pig industry is facing as a result of the rise in the price of cereals and oil and the fact that our welfare standards, of which we ought to be very proud in this country, are a lot higher than elsewhere. As regards his principal question about the grocery code adjudicator, we have made it clear on a number of occasions in this House and in another place that we intend to bring forward legislation to create a grocery code adjudicator. We hope that we will be able to produce draft legislation later this year and take things further forward as we discuss that draft legislation.

[Lord Pearson of Rannoch]

My Lords, I am afraid it is the same old question, but it has to be because so little of our national law is now made in your largely redundant Lordships' House. The question is: to what extent are Her Majesty's Government in charge of aid to pig farmers and to what extent is it decided in Brussels?

[Lord Henley]

My Lords, the noble Lord is, for once, right to say that it is the same old question. We have heard it from him a number of times in the past. If he is asking whether we should subsidise pig farmers, I have to say that this industry has largely been unsubsidised and that is how the Government and the pig world would like it to continue. If he is saying that there are concerns about the welfare standards being higher here than elsewhere, well, welfare standards are higher here than elsewhere. That is something the previous Government brought in earlier than the rest of Europe, but the rest of Europe will be catching up with our standards by January 2013, which we welcome. At that point, there will be a level playing field in terms of welfare standards.

[The Countess of Mar]

My Lords, prior to foot and mouth disease in 2001, pig farmers were allowed to feed swill to their pigs. Is there any way in which Her Majesty's Government can reconsider the rules on swill feeding so that swill can be prepared centrally or regionally by approved swill cookers and then distributed to pigs? The cost of feeding pigs grain is tremendous and is frequently criticised.

[Lord Henley]

The noble Countess is right to point to that problem, which is why I highlighted the price increases in cereal. If the scientific evidence was such that pig swill could be made safe and reintroduced into the food chain, we would consider it. Obviously we will base any decision entirely on the scientific evidence put before us.

[The Lord Bishop of Exeter]

My Lords, is the Minister aware that a survey by the National Pig Association last month indicated that 77 per cent of producers have said that they will go out of production if the present situation continues? If that happened, there would be more imports of lower-welfare pork, some of which is produced in conditions that frankly would be illegal in this country. Will the Government consider bringing together producers, those who represent processors and the supermarkets to see whether we might together achieve a long-term sustainable supply chain agreement?

[Lord Henley]

My Lords, I am grateful to the right reverend Prelate for highlighting the problems in the whole supply chain. We accept that it is in the retailers’ interest to ensure the long-term survival of British producers of pork, and we will do all that we can to achieve that. There is very little that the Government can do directly, but there are a large number of things that we can do indirectly, which is why I referred to the groceries code adjudicator and why I talk about government buying standards and a whole range of other matters. They are all small things, but they should all help.

[Baroness Quin]

My Lords, in response to my noble friend Lord Hoyle, the Minister talked about a draft Bill on the adjudicator later this year. However, given the urgency of and indeed the cross-party support for this, can we have an assurance that the adjudicator’s office will be up and running this year? Is that the Government’s aim?

[Lord Henley]

My Lords, as the noble Baroness knows well, I cannot give the House that assurance. All I have said is that we will have a draft Bill this year, and we will take it from there.

[Lord Tomlinson]

My Lords, does the noble Lord still believe in the primacy of market forces?

[Noble Lords]

This side!

[Lord Brooke of Sutton Mandeville]

My Lords, if I may say so to the noble Lord, it was the turn of those on these Benches. I congratulate my noble friend on the usual high standard of his answers. Does his bloodline make him a kinsman of the late Earl of Emsworth?

[Lord Henley]

My Lords, that is a very difficult one. I am very familiar with the works of PG Wodehouse. Whether I am related to Lord Emsworth is another matter.

[Lord Tomlinson]

My Lords, may I now ask whether the noble Lord, or rather his party, is still committed to the primacy of market forces?

[Lord Henley]

My Lords, obviously market forces are very important, but there are other things that a Government can do. I made it clear earlier on that we do not believe that pig farming should be supported by subsidies. Nor does the pig farming world think that it should be supported by subsidies.

[Lord Borrie]

My Lords, the right reverend Prelate has drawn attention once more to the urgency of the matter of the groceries adjudicator. The Government have the opportunity to insert a provision into the Public Bodies Bill. They refused to do that a week ago. Surely they should do so now; the Bill is still going through the House.

[Lord Henley]

My Lords, I am sure the noble Lord will raise this matter on Report on that Bill, but I think my explanation to him in Committee was that we think it better that these things are discussed in greater detail when we can find time for an appropriate Bill. That is why we are committed to a draft Bill.

[Lord Cormack]

My Lords, does my noble friend accept that the draft Bill to which he refers would be a far more welcome addition to the legislative timetable than another draft Bill that has recently been talked about?

[Lord Henley]

My Lords, I think that we are going beyond my pay grade and I will not discuss the differences between draft Bills.

HMS “Endurance”

Monday 21st March 2011 Lords Chamber

Question

14:45

Tabled By

[Viscount Montgomery of Alamein]

To ask Her Majesty’s Government what plans they have to replace HMS “Endurance” as the Antarctic ice patrol vessel.

[Baroness Hooper]

My Lords, on behalf of the noble Viscount, Lord Montgomery of Alamein, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)]

My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Lance Corporal Liam Tasker from the Royal Army Veterinary Corps and Lance Corporal Steven McKee from the 1st Battalion The Royal Irish Regiment, who were killed on operations in Afghanistan recently, and Private Daniel Prior from 2nd Battalion The Parachute Regiment, who died of wounds sustained in Afghanistan. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.

I am pleased to confirm that a commercial ice-breaker, to be named HMS “Protector”, will provide the interim replacement ice patrol ship capability for at least the next three years while we consider the long-term future of HMS “Endurance”. We anticipate a contract for the ship’s lease and support being signed soon with the preferred bidder, GC Rieber Shipping. I will write to noble Lords who have an interest in this matter when the contract has been signed.

[Baroness Hooper]

My Lords, in thanking my noble friend for his reply, perhaps I may say that I feel sure that the noble Viscount, Lord Montgomery, will be greatly cheered to hear of this progress. He has, after all, been raising the issue regularly since the flooding accident suffered by HMS “Endurance” in the South Atlantic in 2008. Is my noble friend able to elaborate further about the past history of the new ice patrol ship to which he referred? Can he tell us why the name “Protector” has been selected?

[Lord Astor of Hever]

My Lords, the name “Protector” has a historic connection with Britain’s Antarctic commitment. It was the name of the ship which preceded the former “Endurance” in the Atlantic role. “Protector” was the sixth ship to bear the name and completed 13 Antarctic deployments from 1955 to 1968. A seventh ship of the name saw service as a Falkland Islands patrol vessel from 1983 to 1987. This is the eighth time that the name has been used. The intention is to lease MV “Polarbjorn”, a Norwegian ice patrol ship for an initial period of three years. She will arrive in Portsmouth in May where she will be fitted with specialist military equipment needed for her deployment. I have photographs of HMS “Protector”, which I can show to any noble Lord who is interested.

[Lord Tunnicliffe]

My Lords, I should like to associate these Benches with the condolences offered to the family and friends of Lance Corporal Liam Tasker, Lance Corporal Steven McKee and Private Daniel Prior. I should also like to associate these Benches with the very thoughtful tribute that the Minister has paid to the wounded.

Such a satisfactory Answer raises serious problems when asking a further supplementary, but this has been a very sad affair. It is more than two years since “Endurance” was damaged beyond repair and it will not be replaced until May. I gather that in the mean time the task is being carried out by HMS “Scott”. Does the Minister agree that that is not satisfactory since “Scott” is not an ice-breaker, does not carry helicopters and is not armed?

[Lord Astor of Hever]

My Lords, I am grateful to the noble Lord for his kind words. As he said, HMS “Scott” is not an ice-breaker and she was only able to undertake operations in areas clear of significant ice risk. We have yet to determine whether the long-term solution for delivering the ice patrol ship capability will be better met through replacing or repairing HMS “Endurance”.

[Lord Naseby]

Having just returned from Chile, I should like to know whether my noble friend is aware that there is considerable tension in South America, particularly in Argentina, Uruguay and Brazil, which recently refused to give naval bunkering? The news that there is a new ship to take on station is welcome so far as it goes, but will he confirm that HMS “Protector” will be armed equivalently to her predecessor in order to fulfil the particularly important function of looking after the Falklands and South Georgia?

[Lord Astor of Hever]

My Lords, the deployment of the new ice patrol ship is a separate issue from that of the security of the Falkland Islands. The permanent maritime presence in the Falklands is provided HMS “Clyde”, the Falkland Islands patrol vessel. The commander of British forces in the Falklands also has at his disposal either a frigate or a destroyer supported by a tanker.

[Lord West of Spithead]

My Lords, I have to take issue with the Minister on this. The “Endurance” plays a key part and, indeed, 29 years ago today, almost, we had a bunch of scrap metal dealers going on to some of the Antarctic territories. Therefore to think of it as not part of a cohesive package for the region is wrong. I am glad that the ship is being replaced. It is important that it has the right facilities, and it makes sense to look at the options for the future; I have no difficulty with that. I suppose my final statement is that the Minister referred to HMS “Protector”, which was a net layer, as historic. Since I went on board that ship as a young officer, I find that rather difficult, but I understand the background.

[Lord Astor of Hever]

My Lords, I am grateful to the noble Lord for his support regarding HMS “Protector”. On the defence of the Falkland Islands, as the Secretary of State for Defence has said, the situation now is very far removed from that of the early 1980s. First, we maintain a far more robust and capable force in the Falklands to act as a deterrent and to secure our interests there, and that force is able to be reinforced as the need arises. Secondly, Argentina is no longer ruled by a military junta that is repressive at home and aggressive abroad, but of course we maintain robust contingency plans for times of crisis, and there is no questioning our resolve to defend the Falklands whenever required and from whatever quarter.

Somalia

Monday 21st March 2011 Lords Chamber

Question

14:52

Asked By

[Lord Anderson of Swansea]

To ask Her Majesty’s Government what is their assessment of the political situation in Somalia.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, the political situation in Somalia remains fragile and its instability presents increasing threats to the region and beyond. We continue to work with the Transitional Federal Government and our international and regional partners to take forward the UN-led Djibouti peace process. We, together with the United States and others, have made clear to the transitional federal institutions that there can be no extension of their mandate without reform to make them more legitimate and representative in the eyes of the Somali people.

[Lord Anderson of Swansea]

My Lords, for the past two decades, Somalia has been a classic failed state, yet within its territory is the autonomous enclave of Somaliland, the old British protectorate. It is democratic, it co-operates with the international community as regards pirates, it seeks its own independence and international recognition, and wishes to be a member of the Commonwealth. Amid all the turbulence in the Arab world, surely now is the time for the Government to encourage African Commonwealth members to raise the matter in the African Union in the hope that there can be proper international recognition of what is a successful entity: the old British Somaliland.

[Lord Howell of Guildford]

The noble Lord is quite right to draw attention to this issue, and I recognise the stability and achievements of Somaliland. Indeed, that recognition is reflected in the specific aid for Somaliland that has been given. When it comes to recognition as an independent state, while that is something that the Somaliland people have sought, it really is a question of getting their neighbours to lead the way. At the moment there is no recognition of Somaliland as a separate state by any country in the world. It may be that it is through the African Union that a change of heart should come, but our position is that this is a matter that has to be settled by the Somali people themselves and their neighbours rather than unilaterally by us.

[Lord Avebury]

My Lords, three months ago, the UN Security Council authorised an increase in the strength of AMISOM from 8,000 to 12,000. Will my noble friend say what progress has been made in meeting that objective? Will he also identify the substantial gains in the territory controlled by the TFG and AMISOM as announced in an AU communiqué of 17 March, if necessary by publishing a map?

[Lord Howell of Guildford]

I will look into the question of publishing a map, but, as far as progress in upgrading the strength of AMISOM is concerned, I am informed that the first 1,000 additional troops, provided by Burundi, were deployed early this month. The remaining troops are being provided by Uganda and are expected to deploy before the summer. As for the substantial gains, AMISOM carried out an offensive in Mogadishu from 19 February to 6 March, during which it was able to secure new ground, including vital areas around Bakara market. We are aware of other fighting between TFG-aligned militias and al-Shabaab elsewhere in the country, including in and around Bulo Hawo.

[Lord Alton of Liverpool]

My Lords, have we not dangerously underestimated the reach and influence of al-Shabaab, not only in terrorising the people of Somalia but also in claiming responsibility for the deaths last year of 74 innocent people in Uganda? Should we not be doing more to highlight the depredations of al-Shabaab, which include the killing of Sufi and moderate Muslims, public executions, amputations, public flogging and stoning of women, the routine killing of journalists and the recruiting of child soldiers, some of whom have been responsible for some of the murders that I have mentioned? This has inevitably led to a large number of refugees leaving the country. What can the Minister tell us about the plight of those refugees, the human rights abuses and the export of al-Shabaab’s terror?

[Lord Howell of Guildford]

I can certainly confirm that, as the noble Lord said, al-Shabaab is a vicious and dangerous group which has been responsible for numerous terrorist attacks in Somalia and the killing of soldiers, AMISOM troops, innocent civilians and parliamentarians, and which shows no regard for human life. The noble Lord asked what we could do. Her Majesty's Government have a Somalia strategy which they are pursuing. We are working with the AU, the EU and other allied forces and we are doing everything we can to establish a political strategy for the area. It is called a “dual-track” strategy, whose objective is to encourage both the transitional Government, provided that they commit to the right degree of reforms, and the bottom-up development of responsible and constructive groups who can oppose these very unpleasant people. They are a real danger, and the noble Lord is absolutely right to draw attention to their vicious and unacceptable activities.

[Baroness Symons of Vernham Dean]

My Lords, may I press the Minister a little further on the question of reform? In his Answer, he said that there would be no extension of the transitional institutions’ mandate without reform to make them more legitimate in the eyes of their own people. What help is being given by DfID in this reform process and how is it being co-ordinated with help from the European Union?

[Lord Howell of Guildford]

I say in response to the second part of the noble Baroness’s question that we are supporting the European Union training mission, which trains up personnel and returns them to Mogadishu to assist policing and the upholding of law and order, such as it is in the area. We are working with it on a number of other programmes as well. As a result of the DfID review, the UK has agreed to provide up to £250 million—a very considerable amount indeed—in support of Somalia over the next four years, but we shall have a review of how that is going halfway through, in 2013. Our objective is to help support prosperity and tackle poverty across Somalia and to support efforts at peacebuilding and reconciliation at national, regional and, as I was saying a moment ago, at local level. It is the co-operation of the transitional Government and their commitment to this programme that are the conditions on which we base our support for them.

[The Lord Bishop of Exeter]

My Lords, is the Minister aware of the work being done by Missions to Seafarers Mombasa in providing counsel and support for seafarers who have been freed after having been hijacked by pirates off the coast of Somalia? Will he join me in affirming the wonderful work undertaken by Missions to Seafarers, not least through the promotion of an annual Sea Sunday, which this year, on 11 July, will highlight the problem of Somali piracy?

[Lord Howell of Guildford]

We are aware of this excellent work. It reminds us all of the much wider problem of piracy—which has been discussed in the House—which has been getting worse. The UK Government are taking the lead through the contact group and a variety of other co-operative links with the EU NAVOR Operation Atalanta, the Combined Maritime Task Force 151 and the Standing NATO Maritime Group 2. A co-ordinated effort is coming together to meet the overall piracy issue, the basic roots of which, given the instability of Somalia, lie as much on land as they do on the high seas.

Disabled People: Employment

Monday 21st March 2011 Lords Chamber

Question

15:01

Asked By

[Baroness Turner of Camden]

To ask Her Majesty’s Government what is their response to the decision of Remploy Ltd, the largest specialist employer of disabled people in the United Kingdom, to make redundancies among the workforce.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, voluntary redundancies are a matter for Remploy management and employees. Remploy will continue to examine how best to deliver its businesses within the existing five-year modernisation plan funding and will continue to fulfil its mission of transforming lives by providing sustainable employment opportunities for disabled and disadvantaged people.

[Baroness Turner of Camden]

I thank the Minister for that response. However, is he aware that I have received information from the unions that Remploy has been told by the Government to make 1,500 people redundant? They are very concerned about this because they fear that it may mean the closure of certain locations. As I said in my Question, Remploy is the largest specialist employer of disabled people in the country, working at 54 different locations. Surely it is in the interests of everyone, including the Government, to ensure that this facility is maintained because, in the light of the Government’s own policy, it is very important that disabled people should be able to work if they want to do so.

[Lord Freud]

My Lords, I can categorically reassure the noble Baroness that there is no such plan as has been suggested by the unions; we are looking at a voluntary redundancy plan. The next stage of what happens to Remploy will depend on the review that Liz Sayce is conducting into disability employment programmes, which is due to report in the summer.

[Lord Low of Dalston]

My Lords, I recognise that only voluntary redundancies are being sought at this stage, but does the Minister not agree that Remploy’s failure to meet its financial targets is, at least in part, attributable to the Government’s failure to meet their commitment to put work into the factories through procurement and otherwise? Can he assure the House that the Government will redouble their efforts to fulfil their side of the bargain contained in the five-year funding agreement of 2007?

[Lord Freud]

My Lords, the Remploy business plan was designed by Remploy management. It has failed to achieve its targets because, in retrospect, it was wildly overambitious to expect that public procurement could go up by 130 per cent. The cost of subsidising a disabled person in a Remploy job has now reached £23,000 a year, compared with the success of Remploy employment services in putting a person into an independent job for a one-off cost of £3,400.

[Lord Addington]

My Lords, will my noble friend expand on the work of Remploy employment services? Getting people with disabilities into jobs in the mainstream is surely the way forward. What guarantee is there of support for such schemes, which are in line with what most of us have been working towards for a long time.

[Lord Freud]

Yes, my Lords, the success of Remploy’s employment services is little less than extraordinary. It has now put some 24,000 people into jobs. In 2009-10 there were more than 10,000 people. It looks to get about 18,000 people into jobs this year and its target for 2012-13 is 30,000.

[Baroness Hollis of Heigham]

My Lords—

[Lord Davies of Coity]

My Lords—

[Noble Lords]

Hollis!

[Lord McNally]

My Lords, the House was calling for the noble Baroness, Lady Hollis.

[Baroness Hollis of Heigham]

Thank you, my Lords, I am grateful. We all agree, following the noble Lord, Lord Addington, that the best strategy for work for disabled people is to see them coming into mainstream jobs. Anything that can be done in this respect by the current Government, as was done by the previous one, is greatly to be welcomed. Yet, frankly, that strategy only works when there is low unemployment. At the moment, in my county of Norfolk where 32,000 people are chasing 4,000 jobs, I suspect that the opportunities for disabled people will shrink unless Remploy can ensure supportive employment. Could the Minister not at least work with Remploy to ensure that there are continuing opportunities for disabled people until we see the employment market open up again?

[Lord Freud]

My Lords, my last answer made clear the extraordinary success of Remploy in getting people with disabilities into jobs. That does not seem to have been affected by a very difficult employment market. I remind the House of the relative costs: the factory business of Remploy takes between 20 per cent and 25 per cent of the total that we as a country spend on disability employment programmes to support some 3,000 people.

[Lord Davies of Coity]

My Lords, while recognising that the policy of the coalition Government is to have voluntary separation and voluntary redundancy, does the Minister agree with me that even on a voluntary basis the number of job opportunities will be reduced for disabled people in the future?

[Lord Freud]

My Lords, I hope that I have made absolutely clear the exact opposite. The employment services strategy is working. Numbers are going up. It is looking to help 30,000 people per year by 2012-13 into mainstream jobs. A company such as ASDA has already taken on 1,000 disabled people. With this strategy we are delivering something that disabled lobbies and people want—to be in full, mainstream employment.

Wreck Removal Convention Bill

Monday 21st March 2011 Lords Chamber

First Reading

15:08

The Bill was brought from the Commons, read a first time and ordered to be printed.

Pensions Bill [HL]

Monday 21st March 2011 Lords Chamber

Order of Consideration Motion

15:08

Moved By

[Lord Freud]

That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 18, Schedule 4, Clauses 19 to 25, Schedule 5, Clauses 26 to 30.

Motion agreed.

Marine Licensing (Licence Application Appeals) Regulations 2011

Monday 21st March 2011 Lords Chamber

Marine Licensing (Notices Appeals) Regulations 2011

Waste (England and Wales) Regulations 2011

Motions to Approve

15:08

Moved By

[Lord Henley]

That the draft regulations laid before the House on 7 and 8 February be approved.

Relevant document: 16th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 16 March.

Motions agreed.

Arrangement of Business

Monday 21st March 2011 Lords Chamber

Announcement

15:09

[Baroness Anelay of St Johns]

My Lords, the Leader of the House will shortly repeat a Statement about Libya. The usual channels have agreed that the time for Back-Bench questions and answers today should be extended from 20 minutes to 40 minutes.

Libya

Monday 21st March 2011 Lords Chamber

Statement

15:09

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, with the leave of the House, I will now make a Statement about Libya in order to bring the House up to date, in light of United Nations Security Council Resolution 1973, the Prime Minister’s Statement to the other place of Friday 18 March and events that have taken place over the weekend.

It is now almost a month since the people of Libya first took to the streets to make clear their wish for a regime that is free of oppression and corruption. Since those initial protests, we have seen the situation deteriorate and the violence increase. In response to the need to protect vulnerable citizens, the UK has played a leading role in delivering EU action and UNSC resolutions.

On 23 February, the UN Secretary-General described the reported nature and scale of attacks on civilians as,

“egregious violations of international and human rights law”,

and called on the Government of Libya to,

“meet its responsibility to protect its people”.

He said later that more than 1,000 people had been killed and many more had been injured in Libya amid credible and consistent reports of arrests, detention and torture.

At the end of February, and at Britain’s instigation, the UN Security Council agreed Resolution 1970 to bring in asset freezes and a travel ban for Gaddafi’s top officials. Accordingly, the Foreign Secretary removed the exemption from UK immigration control that applied previously to Gaddafi, as head of state, and members of his household, thus preventing them from entering the UK. The Government also took action to freeze the assets of Gaddafi, members of his family, people acting on their behalf, and entities owned or controlled by them. We have prohibited the export of uncirculated Libyan banknotes without a licence from the UK.

The EU Council decision and regulation, adopted on 3 March, extended the scope of the travel ban and asset freeze to include additional individuals subject to EU measures. On 11 March, the European Council issued a declaration on developments in Libya, in which EU leaders called on Gaddafi to “relinquish power immediately”, as his regime had “lost all legitimacy”, and agreed to work with the UN, the Arab League, the African Union and international partners in responding to the crisis.

There has also been a clear desire by the international community to see Gaddafi’s regime held to account for its actions. On 1 March, Libya was suspended from the UN Human Rights Council. The UK was also instrumental in referring Gaddafi and his regime to the International Criminal Court, which opened its investigation on 3 March. Despite repeated calls to end their violence and, as the UN Secretary-General put it, for the Government of Libya to,

“meet its responsibility to protect its people”,

we saw only an escalation of state violence and an ever growing number of civilian casualties. We therefore supported the UN in a call for an immediate ceasefire and, if one were not forthcoming, for action to protect the civilian population.

A no-fly zone was authorised by UN Resolution 1973 on 17 March 2011. The resolution also called for an immediate ceasefire, an end to the violence, measures to make it more difficult to bring mercenaries into Libya and the tightening of sanctions. It also authorised the use of all necessary measures to protect the civilian population, including in Benghazi. Unfortunately, the Gaddafi regime did not heed this resolution and continued, and indeed stepped up, brutal military action against its own citizens over the following days, while pretending in public to be implementing a ceasefire. Therefore, on 19 March, a summit for support for the Libyan people was convened in Paris by President Sarkozy. It was attended by France, the UK, the USA, Spain, Germany, Canada, Qatar, Poland, Denmark, Italy, Greece, Norway, Belgium, the Netherlands, the League of Arab States, Iraq, the UAE, Jordan and Morocco, as well as the UN and EU. Leaders agreed to,

“act collectively and resolutely to give effect”,

to UNSCR 1973 and called on Gaddafi and his forces to,

“immediately end all acts of violence carried out against civilians, to withdraw from all areas they have entered by force, return to their compounds and allow full humanitarian access”.

Following that, on the evening of 19 March, UK Armed Forces under the authority of United Nations Security Council Resolution 1973 participated in a co-ordinated strike against Libyan air defence systems. The UK launched guided Tomahawk land-attack missiles from a Trafalgar class submarine. The RAF also launched Storm Shadow missiles from a number of Tornado GR4 fast jets, which flew direct from RAF Marham as part of a co-ordinated coalition plan to begin the international community’s enforcement of the Security Council resolution. HMS “Westminster” is currently off the coast of Libya and HMS “Cumberland” is in the region, ready to support operations.

Gaddafi made a television statement late on 19 March, in which he criticised military action and asked the Security Council and the international community for an “immediate” stop to the hostilities. Gaddafi claimed:

“Libya will be practising its right of self-defence according to clause 51 of the UN Charter”,

and threatened that,

“civilian and military targets in the air and sea will be liable to serious danger in the Mediterranean”.

UK and partner forces remain engaged in ongoing operations as we seek to ensure that Colonel Gaddafi and his forces understand that the international community will not stand by and watch them continue to kill civilians.

I am sure that all Members of the House will join me in expressing pride in our Armed Forces and admiration for the bravery and expertise of our service men and women as they complete their difficult work. We also pay tribute to the continuing work of British officials both at home and abroad as they, too, complete their tasks.

I want to make it clear that these are efforts to protect the Libyan population as called for by many Libyans throughout the country including the Libyan opposition, with whom we are in regular contact. The Libyan population wants freedom from oppression and to be able to choose its leaders. As the Prime Minister has said,

“what we are doing is necessary, it is legal, and it is right. It is necessary because, with others, we should be trying to prevent him”—

Gaddafi—

“using his military against his own people. It is legal, because we have the backing of the United Nations Security Council and also of the Arab League and many others. And it is right because we believe we should not stand aside while this dictator murders his own people”.

I will ensure that the Government keep the House updated as the situation develops.

15:18

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Lord the Leader of the House for the Statement that he has just given on Libya. Noble Lords will be aware that MPs in another place are debating and voting today on the UK’s involvement in military action by the United Nations-led coalition in Libya. Our role in this House is not that today, but this is a serious and important matter and it is right that this House should consider these matters today as well.

First, I echo the words of the noble Lord, Lord Strathclyde, about members of the UK’s Armed Forces who are engaged in that military action. We are and should be proud of what they do and of their ability, expertise and bravery. We share the concern of the families of service personnel at times of such action.

At a time of military engagement, it is particularly important to be clear about what is being done and what the strategy is, and about purpose and support. The Prime Minister said last week in relation to Libya and to the military action being taken by the UK and by UK forces that,

“what we are doing is necessary, it is legal, and it is right”.

We on these Benches agree with that. We support what the United Nations is doing, what Britain is doing with its allies in the coalition and what the Government here are doing in relation to Libya.

However, in addition to giving support, it is our job as an Opposition to maintain scrutiny and to hold the Government to account. That is what we must and will do. Strong support and rigorous scrutiny through this House are our clear job and responsibility as an Opposition, so, as I said, that is what we will do. We can all see from our television screens and other sources that the position on the ground in Libya and in the air above it is fast moving. It is in the nature of military action, especially in modern military engagement, that that is the case. The job of politicians in these circumstances is not to second-guess the military commanders—they are doing their job, on behalf of us all—but it is right that we should consider the broader position and the context for that military action. That is the job for both Houses of our Parliament today.

In relation to Libya and the current military action, I ask the Leader of the House about four principal areas: the action that Colonel Gaddafi is taking against his own people; our response to that action; our strategy for that response; and the position at and after the cessation of military activity.

In all this, the shadow of Iraq looms large. Iraq and the UK’s part in the military activity there were controversial at the time and remain controversial now. Inevitably, what happened in Iraq is bound to lead to hard questions about the wisdom, practicality and consequences of intervention, including this intervention in Libya. However, as my right honourable friend the shadow Foreign Secretary put it today,

“while Iraq should inform us, it should not paralyse us”.

That is right.

When Colonel Gaddafi announced that, in relation to 700,000 of his own countrymen and countrywomen in Libya who had sought freedom, as so many have done this spring across the Middle East, there would be “no mercy and no pity”, we have a clear responsibility to act. When Libyan government officials declare that there will be house-to-house revenge, we have a clear responsibility to act. When at least 1,000, probably many more, of Libya’s own people have been killed by the Gaddafi regime, according to the UN, we have a clear responsibility to act. Action over Libya was and is necessary precisely because of Gaddafi’s explicit actions—because of what he has done and what he proposed to do.

Will the Leader of the House confirm that action in these circumstances is action to protect the Libyan people? We should not forget that a responsibility to protect was agreed by the Security Council in the United Nations General Assembly following the atrocities in Kosovo and Rwanda, when the world community failed to protect. The United Nations Security Council resolution allows all necessary measures to maintain and restore international peace and security under Chapter 7 of the UN charter. Will the noble Lord confirm that regime change is not an objective, that the proper focus will be the protection of the Libyan people, that measures have to be measured and proportionate and that Gaddafi is not a target unless he becomes or acts as part of the command and staff of any particular action?

It is important that the Government as a whole speak with one voice on this issue. I would be grateful if the noble Lord could confirm that, although the comments made by the Secretary of State for Defence were perhaps unfortunate, they should not be taken as indicating that the Government have any intention of acting outside the confines of United Nations Security Council Resolution 1973.

I pay tribute to the former Leader of your Lordships’ House, the noble Baroness, Lady Ashton of Upholland, who in her role as the European Union’s High Representative for Foreign Affairs was, I know, closely involved in important discussions with the Council of Ministers, the Arab League and the G8. The noble Baroness sometimes gets a rough ride in the media. She is tough enough to take it, but she deserves credit, too, for what she does and what she is able to do in difficult circumstances such as these.

The important decision of the Arab League to support a no-fly zone for Libya and the decision of the United Nations Security Council in passing Resolution 1973 show clearly the strength of feeling and the strength of purpose in the international community. We all recognise that without that decision by the league there would have been no United Nations Security Council resolution.

Will the Leader of the House set out the form of the current coalition—the number of countries involved and the number that are likely to be involved? Britain, France and the United States have so far taken the lead. The US has made it clear that it does not wish to remain as the principal agent in the coalition, although it will strongly and forcefully both support it and play its own full part in it. Who will act as the principal agent in the coalition? Will that be a job for NATO? How will the coalition be organised in terms of relations with the members of the coalition? Will that be done by continuing international summits, such as the one convened in Paris last Friday that the noble Lord mentioned?

Could the Leader explain to the House what the UK Government judge to be the meaning of the phrase used in the United Nations resolution that “all necessary” force is now authorised to prevent the slaughter of the civilian population in Libya? Does that, in the Government’s view, include, as necessary and appropriate at some point in the future, the use of ground troops in addition to the airborne forces that we are currently deploying? In the coalition’s strategy, will the Leader confirm that there is no intent for coalition forces to be or to become an army of occupation? Could he say what will constitute success in Libya? Is the creation of a stalemate between the regime and those against it a legitimate objective for the coalition? How far have the UK, the UN or the coalition considered the issue of partition, and what might that mean in practice for those taking part in the coalition? What will constitute the end game?

In Iraq, much attention was focused on the legitimacy of the military conflict, but much attention was also concentrated on accusations that, in taking military action, insufficient attention was paid to what would happen when that military action was, in the main, over. What happens subsequent to the military action is of course dependent on the outcome of that action. Libya and the Libyan people will and must be dominant in that. However, the Arab League, the African Union and the coalition will also be important. No one would expect that, at the very moment that military action is taking place, equal attention could or should be given to what happens after the shooting stops. Equally, one of the ways in which Iraq should inform us is that, however difficult it is, attention must be given to what happens afterwards. If the humanitarian need to act is pressing now, a different kind of humanitarian aid will be pressing after the military action.

Britain is in a better position to consider these issues because of our values as a nation, a democracy and a country where both the rule of law and human rights are paramount. Humanitarian requirements are strong. Multilateralism is the best way to respond to them. That is why we support the United Nations overall and, specifically, in relation to Libya.

Can the Leader of the House give a commitment that this House will have the earliest possible opportunity to debate these issues in full in a day-long debate? Can business perhaps be so arranged that such a debate could take place this week or next week at the latest—maybe even on Friday 1 April? I am very grateful to the Minister for saying that he will keep us informed about Libya and the military action. I presume that the noble Lord means that he will do so through Statements and, perhaps, in briefings on a variety of bases for Members of this House.

Throughout the Middle East, the world is turning on its axis. The changes in some countries have been enacted differently. There has been violence in Bahrain, for example, and Yemen. There was certainly bloodshed in Egypt. The removal of President Mubarak was not carried out without blood being spilt. However, overall, Egypt managed to change without the kind of large-scale violence, murder and war crime that we have seen and are seeing in Libya. Change is possible without what is tantamount in Libya to civil war. However, Libya is different; it is a special case. In Libya, the leader of the country is making large-scale threats against his own people. He is enacting those threats by attacking and killing his own people on a massive scale. That demands a response—a proportionate and just response, but a clear response of the kind that the United Nations is giving. We support the Government in that response. We will maintain our responsibility to scrutinise what the Government are doing but, in seeking to protect the people of Libya, the Government, the coalition and the UK Armed Forces fighting there now, today, in our names, have our support.

15:29

[Lord Strathclyde]

My Lords, I begin with what the noble Baroness said in her closing remarks. We are witnessing, right across the Middle East, a great period of change. We are witnessing events sometimes changing very quickly on our television screens, dealing with frustrations that have built up over a long period. In each country these are manifested in different ways and may well end in different destinations. It is difficult for us to see exactly what those will be. Our role is to encourage the aspirations of individual countries’ peoples to be met and to enable change, where it happens, to be as peaceful as possible and provide for the long-term sustainability of individual nations.

I thank the noble Baroness for her reply and the way in which she expressed it. I thank her particularly for supporting the action that the Government have taken. She is completely right: this House should debate these great issues. The House was not sitting on Friday when the Statement was taken in another place and the usual channels deemed it too short notice to provide for a debate at the same time as the debate in another place. Through the usual channels we will continue to provide time for short debates and Statements, as they arise. If there is a need for a wider debate—I suspect that there will be—we will make time available for that and let the House know. Like the noble Baroness the Leader of the Opposition, I think that we should do that relatively soon—perhaps towards the end of next week.

The noble Baroness said that we needed to be clear about the purpose of this action and that there should be clear parliamentary scrutiny. I entirely agree with her. The purpose of this House is not only to inform another place but to inform the Government of the views of this House.

What has Colonel Gaddafi been doing and how has he breached Security Council Resolution 1973? Since Saturday evening, it is clear to us that Colonel Gaddafi’s forces launched an attack on Benghazi, shelling residential suburbs. There have been air strikes by the US, the UK and France to enforce the no-fly zone. I can announce to the House today that coalition forces have largely neutralised Libyan air defences and that, as a result, a no-fly zone has effectively been put in place over Libya. However, Colonel Gaddafi’s forces launched artillery and tank bombardments against Misurata over the weekend of 19 to 20 March, causing dozens of injuries and damage to electricity and water supplies. Under these circumstances, we are utterly clear about the legal basis for military action and the fact that the UN Security Council resolution has been comprehensively broken. Our strategy is, therefore, to enforce that resolution.

This action is being taken primarily to protect the civilian population in Libya. Regime change is no part of our objective, although we have made it clear, through the Prime Minister and as a Government, that we believe that Colonel Gaddafi no longer has the support and confidence of his people. I can also confirm that Colonel Gaddafi is not a target, as the Chief of the Defence Staff, General Richards, told the BBC. He said:

“It’s not allowed under the UN resolution”.

I believe that that is entirely in accordance with all that the Secretary of State for Defence has said.

I entirely agree with what the noble Baroness said about the noble Baroness, Lady Ashton, who has performed a difficult task under difficult circumstances. I know that she has the wholehearted support of this House.

The question is raised: who is running this military operation and what is NATO’s role? In other words, who is in charge? The operation is currently under US command, with high-profile French and UK involvement as well as close co-ordination with a range of other countries, including Arab states. We continue to discuss with partners the arrangements for the next phase of this military operation. Over the short term, we want a transition to NATO command of military operations as quickly as is feasible. That is also Turkey’s aim. We are working hard to get decisions in NATO to enable this to happen as fast as possible.

The noble Baroness asked a series of questions, some of which are hypothetical. For instance, she asked what happens next. It is very difficult to picture exactly what the next course of action will be, but we know that it will be a difficult and dangerous road ahead. We cannot determine the exact course of events. However, we are clear that already we have saved civilian lives from the violence of their own regime. We have prevented the fall of Benghazi, which is a substantial city of more than 1 million residents, and we believe that Libyan people have a better chance of determining their own destiny than before.

We are clear about the meaning of the Security Council resolution: “all necessary” force in enforcing the no-fly zone and protecting civilians means exactly that, but it does not mean that we can put military forces on the ground. We do not believe that that is allowable under the Security Council resolution.

I have said that we will have an opportunity to debate this. I will continue to update the House, as will my colleagues. The noble Baroness also made an interesting suggestion that we as a Government might be able to offer briefings to interested Peers. I would very much like to offer that. My noble friends Lord Howell of Guildford and Lord Astor of Hever will make time for interested Peers to be kept abreast of events as they unfold. Through the usual channels, we will find a way of bringing that to the attention of the House.

15:37

[Lord Hannay of Chiswick]

My Lords, will the Minister accept my thanks for the way that the Government have acted by putting down that resolution at the Security Council at the key moment? Will the Government give some consideration to getting the Security Council to authorise putting Libya’s oil resources into an escrow account and making a proportion of that account roughly proportionate to the size of the part of Libya that is under the control of the insurgents available to them for civil purposes? That, as the noble Lord will remember, was what happened in Iraq in 1991. It successfully supported the survival of the Kurdish part of Iraq, without in any way altering our respect for the territorial integrity and sovereignty of that country. That would be a way in which the insurgents could be helped. When dealing with some Governments around the world who have expressed doubts or even criticism of what we have done, will the Minister remind them that every single one of them subscribed in 2005 to the doctrine of the responsibility to protect? Will he ask them fairly robustly what they would do now to protect the civilians of Libya?

[Lord Strathclyde]

My Lords, I have noted previously that the noble Lord, Lord Hannay, brings his considerable experience and knowledge to bear in this House. It is immensely useful that he does so at this time. I very much welcome his words about the United Kingdom and France putting down the key resolution, and doing so at the right time—some would say in the nick of time. Certainly, if it had happened 24 hours later, we might have faced a very different situation in Libya.

The noble Lord makes an interesting suggestion—one that is based on precedent—about the oil resources and an escrow account. All these matters are under consideration in the United Nations and, of course, in the Security Council and in individual member states. As the noble Lord points out, such a measure would respect the integrity of international borders.

On the criticism of some countries, the words of the noble Lord stand. They will be read and should be repeated to those countries that have sat by while so many others have done the work. In due course, the world will re-evaluate those who stood by and would have let a cataclysm occur in Benghazi.

[Lord St John of Fawsley]

My Lords, on behalf of all Back-Benchers in the House, perhaps I may express admiration for our gallant troops of both sexes in the war. It is not necessary for everybody to take up valuable time with that statement, so perhaps I may take it on myself to express it. Secondly, will the Minister use his influence to persuade the Prime Minister, who is universally and rightly recognised as a master of diplomacy, to use that gift to persuade as many Arab states as possible to come out openly in favour of this international coalition? What the Prime Minister has achieved permanently—I hope that the Minister will agree—is to make international affairs part of the national interest. Perhaps he or another senior Minister will write to Mr Tony Blair and quote the words of a great Prime Minister, Clement Attlee, who wrote to Harold Laski, then chairman of the Labour Party:

“A period of silence from you would be most welcome”.

[Lord Strathclyde]

My Lords, I join my noble friend, as I know the House does, in paying tribute to our troops who have reacted immensely quickly to the challenges put upon them and who even now are in action or redeploying—particularly the RAF—to a new forward base in southern Italy. My noble friend encouraged me to use my influence with the Prime Minister to urge him to encourage Arab states to stay on board. The Prime Minister needs absolutely no encouragement from me. He is actively involved in this work and is speaking by telephone to members of the Arab League continually. There were stories yesterday in the news that the Arab League was withdrawing its support because of civilian casualties. I can confirm that that is not the case. The Secretary-General, Amr Moussa, said:

“It is for the Security Council to take decisions as it sees fit. What we did in the Arab League is make an official request to impose a no-fly zone on military activities against the Libyan people”.

In creating these alliances and coalitions, a lot of people need to be brought together. This needs continual diplomatic work and the Prime Minister is at the forefront of that.

[Lord West of Spithead]

My Lords, perhaps I may carry on that theme by suggesting to the Leader of the House that it is not a question just of the Arab League giving diplomatic support. Will he assure the House that we will ensure that the Arab League takes part militarily in the operation—the more members, the better—and that if it does not, and if we find that Arab support evaporates, we will think very hard about extricating ourselves from this military action?

[Lord Strathclyde]

My Lords, the noble Lord makes an extremely good point. Qatar is sending military assistance. We anticipate further assistance from other Arab League members, although we are currently not in a position to say what form this will take. Arab partners made it clear that if the action was authorised by a Security Council resolution, they would contribute military assets. We are continuing to discuss this with them and to lobby our partners to contribute to a coalition force from both NATO and the wider international community.

[Lord Dholakia]

My Lords, we on this side support the credible and convincing case made by the Prime Minister in the other place. The legality of the action is not in question, because the systematic slaughter and violation of international and human rights law by Gaddafi against his own population demand action. The protection of civilians must be the top priority as the collateral damage would be exploited by Gaddafi. Perhaps I may ask the noble Lord three pertinent questions. The first concerns his statement about Amr Moussa’s interpretation of Resolution 1973. Are we absolutely sure that at this stage he understands our position? Is he able to help us, as Qatar is doing, in terms of military action against Gaddafi? Secondly, the role of the African Union should not be underestimated, particularly when mercenaries from some African countries are being used by Gaddafi. We still have to face the question of the large number of refugees who are now on the borders of Libya. Thirdly, the exit strategy must be clearly stated. Irrespective of the fate of the Libyan dictator, the solution must remain a matter for the Libyan people.

[Lord Strathclyde]

My Lords, I thank my noble friend for his opening remark that the legality is not in question. He is right in that. We have received the clearest possible advice on the legal basis. The Security Council resolution is extremely clear without any ambiguity and the breaking of that resolution is equally clear. I also agree with my noble friend that the most vital aspect of the work taking place under the auspices of that Security Council resolution is the protection of civilians in Libya. Within that, as I said to the noble Lord, Lord West, the support of the Arab League and the African Union is also extremely important. Diplomatic efforts are being vigorously carried out across the world. Finally, my noble friend asked about the exit strategy. We have made it very clear for a long time that we believe that Colonel Gaddafi has lost the support and confidence of his people. However, in the first place, we wish to see peace and for the people of Benghazi to be able to go about their lives in a peaceful manner. We will review the situation from time to time and will see how events unfold in the days and weeks ahead.

[Lord Howe of Aberavon]

My Lords, this episode, if I may call it that, which has given rise to discussion today, is characteristic of the unpredictability of foreign affairs and it indicates the way in which something very alarming has to be addressed urgently. I hope that the House will join me in welcoming the caution, comprehensiveness, clarity and courage with which this problem has been addressed, as well as our satisfaction that there is anything but complacency about it. We shall need to be careful and watchful. However, we can express great confidence in the decisions taken so far and extend our strongest support for the continuation of this approach to the problem.

[Lord Strathclyde]

I very much welcome what my noble and learned friend has said with all his experience and knowledge not just as a former Foreign Secretary but as someone who has witnessed many different international crises and events over a long period. I assure him that there is no complacency and I know that he understands that. I very much welcome his continued support and encouragement. I hope that he will avail himself of any briefing that we can offer so as to keep himself entirely up to speed.

[Lord Judd]

My Lords, it is immensely reassuring that the Government are showing determination that our courageous service men and women should operate within the context of international law and under the authority of the Security Council. I am sure that there is widespread support for that determination on the part of the Government. However, does the noble Lord agree that, ultimately, the long-term stability of Libya and of other Arab countries is dependent on the people being in control of their own destiny? It is their struggle and they have to find the solutions; and whether or not there should be regime change is in their hands. Is it not, therefore, essential for us to avoid at all costs being directly or indirectly seduced into what could be seen as political manipulation of the situation? Can the noble Lord also say a word about the predicament of the large number of refugees, many of whom are, in effect, stateless?

[Lord Strathclyde]

My Lords, I welcome what the noble Lord has said about us operating within the context of international law and with the full support of a UN Security Council resolution. The noble Lord is also entirely correct in talking about long-term stability being in the hands of the Libyan people. If the western powers—perhaps I can put it as loosely as that—were seen to be imposing some kind of solution on Libya, it would not work. I totally agree with what the noble Lord said: the future of Libya must lie in the hands of its people and they must decide how best to run their affairs. That is part of what all this is about: by protecting civilians, we give the people the ability to have a choice to aspire to change, as has happened more peacefully in other parts of the Middle East.

The noble Lord also asked about humanitarian aid for those who find themselves stateless. I suspect that that could easily become a growing problem but DfID has played a key role and has already provided tens of thousands of blankets, more than 1,400 family tents and charter planes which have returned more than 6,000 people to their countries. The number of arrivals in transit camps is now falling; as of 20 March, some 5,874 people remain at the transit camp and DfID, with many other partners, is continuing to work to reduce the number.

[Lord Elystan-Morgan]

My Lords, does the Minister agree that, if Gaddafi were to disappear from the scene tomorrow, he would leave behind him a non-functional community, and no continued imposition of a no-fly zone would of itself give any real protection at all to that community? In the circumstances, does he agree that the temptation may be very great for land forces to be used to bring about that very result? Will he endorse something that I think he has already touched on, in so far as Her Majesty's Government’s interpretation of the relevant resolution is concerned—after all it is a political and not a judicial decision—that he would abjure completely the possibility of land troops being used?

[Lord Strathclyde]

My Lords, however desirable it would be for Colonel Gaddafi to disappear tomorrow, I can confirm that this country will not be tempted to use land forces to bring that about.

[Lord Ashdown of Norton-sub-Hamdon]

My Lords, perhaps I can invite the Minister to clarify that point which might be open to misunderstanding. Although it is true that the UN Security Council resolution forbids or does not cover any invasion or occupation, there is nothing in that resolution which would inhibit us using military assets to do something like rescue a downed pilot.

[Lord Strathclyde]

Yes, my Lords, I regard that as a very different point and I am able to clarify that to my noble friend.

[Lord Kerr of Kinlochard]

My Lords, the House has heard an admirably clear account of how we got here. I was not as convinced by the way in which the noble Lord brushed aside the question of where we go next. I agree that it is hard to predict the future, but it is good to know where you want to go; that is called having war aims. It seems to me that, as of today, the analogy is with the first Iraq war when we had, as now, a very clear legal base in a Security Council resolution—new and specific—and we had widespread support in the region and in the Muslim world generally. I believe that that is the case now; I hope that it is. We also had very clear war aims. We were going to restore the independence of Kuwait. Therefore, the exit strategy was absolutely clear.

This time, it is so important to retain the support of the Muslim world and the Middle East that it is crucial that the Prime Minister, who moved with admirable speed last week, should move no less fast this week to agree war aims with the Defence Secretary and the Foreign Secretary, across the Government, with Paris and Washington and our other NATO partners and across the Middle East, so that we are clear where it is we want to go. I hope that the noble Lord will pass that message on.

[Lord Strathclyde]

That is a good point well made. The comparison with the clarity of the Gulf War involving Kuwait is a good one, but the timing was so different. We were faced last week with the possible annihilation of opposition forces in Benghazi. I accept the noble Lord’s implied criticism, which I know is meant in a constructive and friendly way, that clear objectives are harder to define. I hasten to add that I hope that I did not brush over that too much. The fact that we have saved civilian lives from the violence of their own regime already is a success and an objective. Enforcing the no-fly zone by damaging Libyan anti-aircraft assets is already a significant change. That means that coalition forces can fly over Libya to enforce the no-fly zone. We believe that that will lead to the Libyan people having a better chance of determining their own destiny than before.

[Lord Anderson of Swansea]

My Lords—

[Lord Trefgarne]

My Lords—

[Lord McNally]

There is another 20 minutes to go. My noble friend Lord Trefgarne was on his feet before.

[Noble Lords]

Oh!

[Lord McNally]

Noble Lords are behaving worse with 40 minutes than they did when they had 20 minutes.

[Lord Trefgarne]

My Lords, I am obliged to my noble friend. As someone who has been involved in Anglo-Libyan commercial relations for the past five or six years, I have, needless to say, received with the greatest distress what has been happening in Libya in recent weeks: the wholesale slaughter of civilians and the wounding of a great many more. I am bound to say, therefore, that I very much agree with the action that the Government took first at the United Nations and then in joining the military operations of recent days.

However, we have to be careful about the objectives that we are seeking, both military and political. The military objectives are surely simply to pave the way towards the political objectives; and the political objective seems clear, which is to provide for the people of Libya an opportunity to choose for themselves in a free and fair way who should be their leaders.

[Lord Strathclyde]

My Lords, I acknowledge my noble friend’s great understanding of Anglo-Libyan relations. I thank him for his support of the actions of Her Majesty's Government. I particularly agree with the clarity with which he put the objective, which is to provide for the people of Libya to choose their own future and political destiny.

[Lord Anderson of Swansea]

The noble Lord said that the primary objective is the protection of civilians. Surely under the terms of the UN Security Council resolution, that is the only objective, however tempted one might be to go further along that road and intervene in a civil war on one side or the other. The noble Lord has heard the concern about the position of the Arab League: unless and until it goes beyond words to action, there will be strains within the coalition. I hope that, with the Government, he will seek to impress on the Arab League that more is expected of it than just brave words and that it should be with us all the way.

Will the noble Lord say a little about the position of countries, perhaps in the Arab League, seeking to provide arms to the rebels? Does the UN arms embargo apply to both sides or would it be legitimate under international law for countries to provide arms to the rebels?

Finally, the noble Lord, Lord Elystan-Morgan, made it clear that there is very limited civil society in Libya. The European Union is experienced in providing and buttressing civil society and in providing aid, but clearly Arab nations will have to take the lead. Can the Minister give an assurance that we in the European Union are urgently looking at means of providing aid on political, economic and social infrastructure to help Libya look to a brighter future?

16:00

[Lord Strathclyde]

My Lords, the noble Lord raises useful and interesting questions. Under the Security Council resolution, there are two clear objectives. The first is to protect civilians and the second is to enforce the no-fly zone. They are enormously interrelated, but we believe that protecting civilians is a key objective. We have already discussed the wider coalition, the alliance across different nations and groups, including the Arab League. The Arab League has confirmed that it would be willing to offer military support, and I am sure that some members of it will do so.

The arms embargo is for the nation of Libya as a whole. Therefore, any arms shipped to the opposition or to rebel groups would be illegal under the Security Council resolution. On the EU role post conflict, I, too, believe that the EU has a substantial role to play. No doubt there are those within the EU working on how that might work in practice. It could only work with co-operation. I think it was the noble Lord, Lord Kerr, who talked about working in co-operation with the Muslim world. I agree with both noble Lords on that point.

[The Lord Bishop of Exeter]

My Lords, does the Leader of the House share my concern that in an increasingly volatile region there are already those who for their own ends are using somewhat inflammatory language and trying to construct a religious narrative around these unfolding events? In this account, a vulnerable Islamic population is being subjected to an opportunistic attack by a powerful Christian West. Not only does such a narrative have the power to destabilise the wider Middle East region, but it could impact very negatively on community relations in this country. Does this not underline the point that has already been made about the need not only to continue to work with but to retain the confidence of the council of the Arab League? Will the Leader talk about other ways in which the Government might be attempting to counter such a narrative and deny it the currency that it could begin to gain that would be so damaging to intercommunity relations here?

[Lord Strathclyde]

My Lords, the right reverend Prelate the Bishop of Exeter raises some extremely important points. We will have all seen in the press and on our television those who have used inflammatory language for their own ends. There is no religious angle here whatever. This country and the United Nations are motivated by a humanitarian desire to bring some sort of peace and opportunity to the people of Libya. The best way for us to put that message across, including to communities in this country, is to repeat it and to explain what is really happening. It is a very human approach across humanity that crosses religious boundaries that we should seek to work together to bring peace and stability to this region.

[Baroness Falkner of Margravine]

My Lords, given that it has taken 28 minutes for a Muslim, and indeed a woman, to get in on these questions, I wonder whether I, coming from the Muslim world, may ask my noble friend whether he agrees that, had we stood by and done nothing, it would have appeared to the 1.5 billion people in the Muslim world that our warm words were hypocrisy of the most egregious order.

My noble friend dealt with the questions asked by the noble Lord, Lord Anderson, by saying that he thought that the arms embargo applied to every entity in Libya. I refer him to Paragraph 4 of UN Resolution 1973, which seems to indicate that it is possible, under protecting civilians and civilian-populated areas, notwithstanding Paragraph 9 of UN Resolution 1970, for people to participate in giving armed assistance to the insurgents. Will he say whether the Government are talking to the Gulf Co-operation Council states to help financially, even if they are not prepared to do so militarily?

[Lord Strathclyde]

My Lords, I thank my noble friend for her useful intervention. She is quite right to talk about what would have happened if we had stood by and a massacre had taken place and about the countries and the peoples who would have accused us of allowing it to happen without raising a hand in protest.

My noble friend also talked about the Security Council resolution. My answer to the noble Lord, Lord Anderson of Swansea, is also correct and allows me to clarify the position. As I understand it, arms may be supplied, but—this is key—only with the express approval of the United Nations Security Council sanctions committee. That is a key hurdle. There is no ability simply to arm different parts of Libya at will; it has to be done with the agreement of the United Nations.

[Lord Campbell-Savours]

My Lords—

[Lord Alton of Liverpool]

My Lords—

[Lord Chidgey]

My Lords—

[Lord McNally]

My Lords, shall we hear from the noble and gallant Lord, Lord Craig of Radley, first?

[Lord Craig of Radley]

My Lords, I thank the Leader of the House for repeating the Statement. He mentioned that the Libyan air defence system had been knocked out—an essential prerequisite for setting up a no-fly zone. The cost of doing that is not inconsiderable; Tomahawks check out at about £500,000, and Sky Shadows for not much less. Hopefully there will be no need to use so many of those weapons in the future. Nevertheless, the cost already of these operations and the ongoing cost will not be inconsiderable. Will the Minister confirm that these costs will be met entirely from the contingency fund and not from the defence vote?

[Lord Strathclyde]

My Lords, much as I would like to, I cannot confirm that to the noble and gallant Lord. I can, however, confirm again that the air defences have been broadly knocked out. Of course the noble and gallant Lord, with all his considerable experience, understands the cost of these arms, but this is the kind of action that we would expect our Armed Forces to be able to deal with. If costs escalate substantially over the next few weeks, no doubt the Secretary of State for Defence and the Chancellor of the Exchequer will need to discuss where this money will come from.

[Lord Reid of Cardowan]

My Lords, the noble and gallant Lord referred to resources. Since the primary purpose of this is the protection of civilians, and since the regime is the biggest threat to civilians, in the absence of either a change of heart by the regime, which seems highly improbable, or a change of regime, we have to consider that this no-fly zone might be sustained for the long term as necessary. In Iraq, for instance, to protect the Kurds in the north and the Marsh Arabs in the south, one such zone lasted for 12 years. Will the noble Lord assure us that the Government not only have the resolve to stay the course on this but, following some of the comments that have just been made, that we have the resources to continue to play our part in it in the light of the recent defence review?

[Lord Strathclyde]

My Lords, the noble Lord, Lord Reid, asks an immensely good question. He is right to say that it might be for the long term, and none of us can say at this stage what the long term is. We have taken decisions over the course of the past few weeks on the need for a no-fly zone and we have constructed an international alliance. We will wish to maintain that and to get other countries to provide military assets. If we are successful in doing so then there is every reason to believe that the pressure that is being brought on the regime will prove a success. I think that all noble Lords listening to this exchange will have different views about what “long term” will mean. We will have to see how these events unfold before we can take a final decision on what the longest-term commitment from the United Kingdom will be.

[Lord Chidgey]

My Lords, if we are to learn the lessons of Iraq, is it not essential that, during the operations currently under way, we do everything that we can to protect the power stations, the water supply, sanitation—all the public sector infrastructure? In that context can the noble Lord tell us whether our cross-government stabilisation unit—not just DfID but also, across departments, the FCO and the MoD—is at the heart of the medium and long-term stabilisation planning? Is the stabilisation planning feeding into the decision-making now? We learnt from Iraq that it has to be a current process, not a past idea. Finally, will the UN lead stabilisation efforts in the medium and long term? We should play our part but, clearly, this needs to be an international concern.

[Lord Strathclyde]

My Lords, I agree with my noble friend that this is a concern. Of course, what has been happening is that it is Colonel Gaddafi and his troops and other armed forces who have been causing such difficulty and damage to electricity and water supplies, particularly in the town of Misurata. It is no part of the coalition’s objective to try to degrade those kinds of not just economic but humanitarian assets.

[Lord Alton of Liverpool]

My Lords, as regards Security Council Resolution 1973, would not the Leader of the House also agree that the decision of China two weeks ago to support the referral of Colonel Gaddafi to the International Criminal Court firmly puts human rights at the heart of this issue? In that regard, the Leader said in the Statement that Libya has been suspended from the United Nations Human Rights Council. Does he agree that it something of a paradox that a country that was responsible for the killing of WPC Fletcher, responsible for the Lockerbie bombing and responsible for the atrocities now being committed against its own citizens was ever a member of that body in the first place? As we come to review the membership of the Human Rights Council, should we not also review our arms policies? British arms are not only being used now in this theatre in Libya but also being deployed elsewhere in the Middle East against pro-democracy demonstrators.

[Lord Strathclyde]

My Lords, the noble Lord says that it is a paradox and he is entirely right—it is a paradox. We remember not only WPC Fletcher and the atrocity of Lockerbie but also the years of support for the IRA perpetrated by Colonel Gaddafi. We have a very robust arms policy in place. As I know the noble Lord believes and clearly understands, the aim of that policy is to keep continually under review what is exported and to which country it is exported.

[Lord Campbell-Savours]

My Lords, 95 per cent of Libya’s export earnings come from oil and gas, and 75 per cent of all Libyan oil is exported to western Europe. Surely the issue of oil flows and the destination of revenue must be a consideration in the mind of Governments when key decisions are taken on the way to proceed. We have a lot at stake in terms of oil.

[Lord Strathclyde]

My Lords, our overriding objective is to protect the civilian population in Libya; that is the purpose of the action that we have taken. But the noble Lord is right to say that regimes can be sustained by their revenues, including those from oil. This question is in the mind not only of the Government but of the United Nations.

[Lord Selkirk of Douglas]

Will my right honourable and noble friend bear in mind that very serious allegations have been made from within Libya that Colonel Gaddafi had foreknowledge of the Lockerbie outrage before it occurred? Will he also keep in mind that the Lord Advocate in Scotland has said that she may consider reopening the Lockerbie case?

[Lord Strathclyde]

My Lords, that is extremely important and valuable. I am sure that it is entirely right for the Lord Advocate in Scotland to keep the case closely under review.

[Lord Touhig]

My Lords, following the questions put by my noble friend Lord Reid and the noble and gallant Lord, Lord Craig, has any thought been given to British aircraft operating from bases in France? At present, they have to make a 3,000-mile round trip.

[Lord Strathclyde]

My Lords, British aircraft are currently relocating to bases in southern Italy.

[Lord Bates]

My Lords, while no one envies the grave task of my noble friend and my right honourable friends the Prime Minister and the Foreign Secretary in wrestling with these great decisions, can he confirm that the UN Security Council resolution was supported by only 10 members out of 15? The five countries that abstained included the likes of India, Germany and Brazil. Their reservations were that they felt that diplomatic channels had not been exhausted; that there was a risk that this action would galvanise support behind Gaddafi; and that military action would also pose a risk to civilians.

[Lord Strathclyde]

My Lords, different countries take different decisions at different times. No country voted against the Security Council resolution; 10 out of 15 voted in favour, and only nine votes were required for it to be carried. Events as they unfold demonstrate that it was right to take military action over the course of the weekend and to protect civilians on the ground.

Fixed-term Parliaments Bill

Monday 21st March 2011 Lords Chamber

Committee (2nd Day)

Relevant documents: 10th Report from the Delegated Powers Committee, 8th Report from the Constitution Committee.

16:17

Clause 1 : Polling days for parliamentary general elections

Amendment 11

Moved by

[Lord Falconer of Thoroton]

11: Clause 1, page 1, line 7, leave out “fifth” and insert “fourth”

[Lord Falconer of Thoroton]

My Lords, this amendment goes to the heart of the Bill in that it seeks to reduce the period of a fixed-term Parliament from five years to four years. This important Bill may well bring about a significant change to our politics by changing the position from a situation in which the norm for our Parliaments is to last around three years and eight months to four years—with a maximum of five years—to a norm for our Parliaments to last for five years, with the possibility of going below that period only in exceptional circumstances.

The reason why the proposal in the Bill has been advanced has been given on the basis of high principle. At Second Reading, the noble and learned Lord, Lord Wallace of Tankerness, said that:

“The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver”.

He went on to say:

“There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated”.—[Official Report, 1/3/2011; cols. 929-30.]

The noble and learned Lord is nodding helpfully. He is putting forward this Bill as part of that reinvigoration process.

His leader, Nick Clegg, has spoken in a similar vein. The Select Committee of this House which reported on the Fixed-term Parliaments Bill had the privilege of Mr Clegg appearing in front of it. Its report states:

“The Fixed-term Parliaments Bill is just one part of a package of proposed reforms intended by the Government to make the political system ‘far more transparent and accountable’. In his evidence, the Deputy Prime Minister told us that: ‘it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians’”.

The Deputy Prime Minister has also said that the time has come to stop people being allowed to,

“play politics with the dates of a general election”.—[Official Report, Commons, 7/6/10; col. 40.]

That is the high-flown basis on which the matter is put forward.

Happily, we have the account of the circumstances in which the five-year term was agreed, provided by Mr David Laws. I quote him from the introduction to his book:

“My intention in writing this book is not to describe an all-too-brief Cabinet career. It is instead to inform those who are interested in this important period of British politics and to make sure that an accurate account is left of what really happened in May 2010 before memories fade, myths grow and the evidence is lost”.

On page 98, he writes that Andrew Stunell pointed out to the Conservative negotiators that,

“trust and confidence was very important to us, and that we wouldn’t want to find the PM calling an election at a time that did not suit us. ‘That works both ways!’ said William Hague. We mentioned that our own policy was for four-year, fixed-term Parliaments. George Osborne made the point that five-year parliaments were better, as they allowed governments to get into implementing their plans before having to start worrying about the timing of the electoral cycle. We made no objection to this, and Britain was on its way to five-year, fixed-term parliaments, for the first time in its history”.

That is how the Liberal Democrats moved from four years to five years; they did it because of the problem of trust. We should look at the proposals that are being put forward by the coalition with a moderately jaundiced eye, particularly because of the disingenuous way in which it is being done.

However, that does not relieve this House from considering as a matter of principle for the British people whether the right period is five years or four years. We are clear that the evidence—and this should be decided on the basis of evidence—is strongly in favour of four years rather than five. A mistake that the coalition persistently makes, and made in relation to the Parliamentary Voting System and Constituencies Bill as well, is that because judgment is required in coming to a conclusion on whether a particular course should be taken, all evidence can therefore be ignored. One simply, for example, has a conversation with Mr Andrew Stunell which lasts 40 seconds, at which point you abandon the policies that one has adopted for the previous 20 years. That does not sound to me like the exercise of judgment; it sounds like playing politics with the date of the next election, which is precisely what the Deputy Prime Minister said should not happen.

We in this House have an especial responsibility in determining what the length of a Parliament should be. It is an area where the Parliament Act does not normally apply, although I accept that its being five years is not the reason for its not applying. Nevertheless, it is an area where this House has an especial responsibility to ensure that the matter is looked at on the basis of evidence.

What does the evidence show? The Select Committee looking at the Bill heard evidence, which did not happen in terms of pre-legislative scrutiny, and concluded unequivocally that the evidence showed that four years was the right answer rather than five. In her speech at Second Reading, the noble Baroness, Lady Jay, said:

“The weight of evidence from British and international experts to the committee was against a five-year norm as against a five-year maximum”.

We should remember that this legislation involves a change from a five-year maximum to a five-year norm. She continued:

“My noble and learned friend Lord Falconer has already quoted Democratic Audit, which expressed alarm that a five-year term would present, ‘a reversal of a long struggle for more accountable government’. Overseas experience, for example from Canada and Sweden, suggested, in the words of witnesses, that, ‘there seems to be a kind of natural rhythm around four years’, and, ‘four years is more consistent with voter expectations’, all of which appears inconsistent with the Deputy Prime Minister’s evidence to us that his ‘unambiguous aim’ is to, ‘make the legislature more accountable to the electorate and to introduce the mechanisms by which people can exercise greater control over politicians’. Our evidence suggests very clearly that this unambiguous aim may not be achieved by this Bill”.—[Official Report, 1/3/11; cols. 1005-1006.]

The noble Lord, Lord Hennessy of Nympsfield said:

“As well as the biorhythmic arithmetic, we need to consider the quality of government and political life in the fifth year of Parliaments that have gone to the wire. They have rarely been shining patches in the life of Administrations. Ministers are often tired and accident prone. The palette of the electorate becomes progressively more jaded. A kind of pre-electoral blight sets in. Of course it could be argued that the final year of a fixed-term four-year Parliament would be similarly blighted. Certainly, the press would succumb to its customary pre-election frenzy as the last year deepened. However, the blight is likely to be less pronounced towards the end of a four-year span than a five-year one, and accountability is more likely to be enhanced by a four-year cycle”.—[Official Report, 1/3/11; col. 935.]

My noble friend Lord Grocott said:

“There is no doubt that the fifth year of a Parliament, in our constitutional history and experience if not in theory, is nearly always a completely unsatisfactory year”.—[Official Report, 1/3/11; col. 958.]

The overwhelming view expressed during the course of the Second Reading debate, with the exception of the noble Lord, Lord Armstrong of Ilminster, and some Back-Benchers on the Government’s side, was that five-years as the norm is a bad idea. That was the weight of the evidence before the Select Committee and the experience of active politicians such as my noble friend Lord Grocott, so where is the evidence in favour of five years? I have looked hard to find it. I have read very carefully the speech of the noble and learned Lord, Lord Wallace of Tankerness, to see what arguments he advanced. He said that it would be possible to plan more easily if you had five-year terms. I fail to understand why planning cannot take place whether the norm is four years or five years. It is an entirely bogus argument.

Secondly, the point was made that you would have a longer time in which to implement your provisions. The throw-away remark of Mr George Osborne which appears in Mr Laws’s book appears to be the reason for five years. It states:

“George Osborne made the point that five-year Parliaments were better, as they allowed governments to get into implementing their plans before having to start worrying about the timing of the electoral cycle”.

Presumably, that would depend entirely upon the length of time their plans took in any individual case. It is therefore difficult to see the force of that argument.

As was said at Second Reading, when Asquith introduced the current arrangements he made it clear that he thought a five-year maximum would, in practice, lead to a four-year period of time, which he said was sufficiently close at some stages to the previous election and sufficiently near to the next election to lead to accountability. If the coalition were serious about trying to reinvigorate our politics, it would at least address that issue. The consequence of there having been a four-year fixed term is that there would have been four fewer general elections between now and 1945. If your aim is to connect more with the electorate, surely reducing the number of general elections rather than increasing them will have precisely the opposite effect of that which Mr Nicholas Clegg and the noble and learned Lord, Lord Wallace of Tankerness, put forward.

16:30

There is no doubt in anybody’s mind that this proposal is put forward as means of gluing the coalition together. Mr David Laws says that that is the reason. As I said at Second Reading, there is no need for an Act of Parliament, bogusly dressed up as a piece of high constitutional principle, in order to achieve that. All you need do is stick by your word if you are a Tory or a Liberal Democrat. I ask the coalition to please think again about our constitution. Is it genuinely better for Britain and for encouraging trust in our politicians to say that now there should be longer between elections than previously? I earnestly ask the coalition to consider whether the electorate might think that the coalition is doing this so that it can stay in power for as long as possible.

That sense is perhaps increased by the broken promises the coalition has made in relation to the conduct of the Bill. On 25 May 2010, Mr David Heath, the Deputy Leader of the House, said that there would be no guillotines—but there were. He said that he would favour pre-legislative scrutiny as long as it did not lead the Bill to go over into the next Session. Despite the fact that this Session was then extended until May 2012, he reneged on that particular promise. This is a matter of some importance and it is not too late for the coalition to rethink what is best for the British constitution and to perhaps accept the overwhelming weight of evidence from academics, active politicians, committees that have looked at it, the Minister’s own party, my party, my noble friend Lord Plant, the three respected Back-Benchers who over the 10 years since 1993 have introduced fixed-term Parliament Bills—Tony Wright, David Howarth and my noble friend Lord Rooker—all of whom have favoured four years.

Does the noble and learned Lord not think that maybe five years is the wrong length of time and that four years is right? If he is not able to persuade the coalition to change its mind, I hope that this House, having considered the evidence, will conclude that the right way to protect the constitution is to support the amendment and reduce the period of the fixed term to four years. I beg to move.

[Lord Lloyd of Berwick]

I will make a brief speech since I have put my name to the amendment. In the course of his reply at Second Reading, the noble and learned Lord, Lord Wallace of Tankerness, described the question now before the Committee as “the key issue”. He went to on to say that,

“there is no absolutely right or wrong answer in that regard—it is a judgment”.—[Official Report, 1/3/11; col. 1044.]

That point has been made by many noble Lords in the course of the debate. Unfortunately, to describe something as a question of judgment does not necessarily make the answer any easier but it does, I suggest, point the way to the right starting place. In this case, that must be to look at what other sound judges have said on the subject, especially those who have made a study of our constitution. That is surely a better approach than simply, for example, counting up the number of countries worldwide which have chosen five years rather than four, or four years rather than five.

I wish to start with two of the witnesses who gave evidence before the Select Committee, Professor Dawn Oliver and Professor Bogdanor. It happens that I know them both; they are both pre-eminent in the field of constitutional law and practice and they both say that they would choose four years rather than five. So did Professor Bradley—and I hope that the Committee will forgive me for simply mentioning their names, without quoting from them—along with Professor Padgett, Dr Milner and Dr Fox. None of those witnesses who gave evidence expressed a view in favour of five years. In the other place, Professor Robert Hazell preferred four years, as did Professor Blackburn, whose evidence is important because he is the man who has made a particular study of this very issue. So the professional evidence is really unanimous; it is certainly all one way. In the Constitution Committee, the noble Lord, Lord Renton, tested the witnesses giving evidence, but it is fair to say that they did not hedge in any way, or flinch from what they had said. So it is not surprising that the Constitution Committee came down as strongly as it did in favour of four years. In contrast, the Government’s reply to the committee’s report, in paragraphs 12 to 15, seems feeble in the extreme.

If academic evidence was all one way, so also with two or three notable exceptions were the views expressed at Second Reading in this House. I have in mind the noble Lord, Lord Anderson—again I shall simply list the names—and the noble Lords, Lord Hennessy, Lord Grocott, Lord Norton and Lord Morgan, and the noble Baroness. Lady Taylor. I would assume that the noble Lord, Lord Plant, was also of that view, having regards to the conclusions of the Plant commission, although he did not in fact mention this particular point in the course of his speech.

Of the notable exceptions, I regret very much not being able to agree with the noble Lord, Lord Armstrong, or the noble Lord, Lord Marks, who favoured five years rather than four because they thought that four years would not allow long enough for sensible policy-making and parliamentary debate. I accept that during the fourth year of a four-year Parliament the coming general election would begin to loom large but, even so, four years is surely long enough for the electorate to judge the Government’s performance to date. That is what in a democracy matters most and it is what Professor Oliver meant—I think it was her—when she referred to the democratic deficit if we chose five years rather than four. That is clearly what Professor Bogdanor meant when he said that five years would make Parliament less accountable to the public. In addition to those theoretical arguments from eminent experts, there is the practical argument that four years fits in better with the devolved institutions.

So what are the Government’s arguments in favour of five years? They are not altogether apparent. I looked carefully at what Mr Harper, the Minister in charge of the Bill, had to say on the subject when he was pressed by the noble Lord, Lord Powell of Bayswater. He said:

“If we had been starting with a clean sheet of paper, we might have reached a different conclusion, but we started from our existing position where the length of a Parliament is up to five years”.

He was saying that the Government might well have chosen four years but for the fact that five years is the current maximum under the Parliament Act 1911. I simply do not follow the logic of that argument. If we are trying to do our best to find the right number of years for a fixed term of Parliament by taking all relevant factors into account, surely of all the factors the current maximum is the least relevant, unless you take as your objective giving the Government of the day, whether they be Labour or Conservative, as long as possible within the existing maximum. The objective should be entirely different; to make the Government and, indeed, Parliament itself more accountable to the public.

In conclusion, briefly, what is before us today is a constitutional issue. It is not, perhaps, of the greatest importance but it is certainly of some importance and it would therefore be highly desirable to reach a consensus if we can. Unfortunately, there is no room for a compromise between four years and five years. We often reach a consensus in that way but no one, I think, suggests a fixed term of four and a half years. When the Government chose five years, they could not have had before them the evidence which is now before us so, like the noble and learned Lord, I hope very much that they will give way on this occasion and accept the amendment. If they do not and insist on their opinion in this matter, despite the great weight of opinion the other way, there will be little point in anyone ever giving evidence before Select Committees again. They will simply be wasting their time. For that reason, I will support the amendment.

[Lord Stirrup]

My Lords, a key argument advanced by the Government in favour of five-year fixed terms as opposed to those of four years is that it will improve overall government effectiveness, because there will be fewer elections and therefore less distraction to the Government in having to fight them. In mulling over this question, I have found it useful to think about the whole lifespan of a Government rather than the individual terms that go to make that up. Modern experience seems to be that most Governments serve for two or three terms. They occasionally serve for one or four but two or three seems to be the norm.

On that basis, modern experience is that a two-term Government will serve for about nine years and a three-term Government for about 13. That is because most Governments go to the polls every four years, except in their final term when they realise that the jig is probably up and hang on for as long as possible. Actual experience since the Second World War is that two-term Governments have served for even shorter periods, because of the narrowness of their initial victory and the need to go to the country early to try to secure a workable majority. Even setting that to one side, we have two-term Governments of nine years and three-term Governments of 13 years under the current system.

Under the proposals in the Bill, we would have Governments of 10 years or 15 years. However, in the second or third term of each Government, they seem to run out of steam. The toxins that are produced by reshuffled Ministers and disaffected and disappointed Back-Benchers build up to such a degree that the Government find it increasingly difficult to provide coherent and decisive leadership. They therefore end either their second or third term in a rather weakened state. It seems to me that these dynamics are likely to occur at about the same pace under whichever system we adopt so it seems likely that, under the Bill’s proposals, we would have weakened Governments limping on for about one or two years longer than they currently do. I find it hard to see how that can be construed as an overall increase in government effectiveness. Indeed, it seems quite the opposite; that four-year fixed terms would probably produce such an increase in effectiveness, rather than the reverse.

Perhaps I might make one final point. I may have a rather idiosyncratic view of this but the essential and, indeed, the defining characteristic of any democratic electoral system of whatever model is the unassailable power and right to remove incumbents. This is to say not that doing so at too frequent an interval is conducive to effective government but that one should be very cautious about extending the period at which that is customarily done. That seems to me to be inescapable under five-year fixed-term Parliaments.

16:45

[Baroness Hayter of Kentish Town]

My Lords, I am tempted to talk about the word “consensus”. I said on day one of the Committee that New Zealand had a three-year term of Parliament. When the cut in the number of UK seats was devised as a consensus between the two parts of the coalition, I think that one lot wanted to get rid of 60 seats and the other wanted 100 seats, so they went for a compromise of 50. On the basis of that, I say to the noble and learned Lord, Lord Lloyd of Berwick, that perhaps there could be a compromise here but it could be three years rather than four or five.

I turn more seriously to the question of four years. As the noble and learned Lord has reminded us, the Minister acknowledged at Second Reading that this was a judgment and there was no absolutely right or wrong answer. I feel that the Government have made the wrong judgment in going for five years rather than four.

There is a lot to quote from earlier debates. I have chosen the quote from Herbert Asquith that is in the report, partly because it was exactly 100 years and one month ago today when he said that we should be desirous of a House of Commons that is,

“always either fresh from the polls which gave it authority, or—and this is an equally effective check upon acting in defiance of the popular will—it is looking forward to the polls at which it will have to render an account of its stewardship”.—[Official Report, Commons, 21/2/1911; col. 1749.]

More recently, the noble and learned Lord, Lord Wallace of Tankerness, said on 1 March:

“as the election comes up accountability is a very, very strong thing indeed”.—[Official Report, 1/3/11; col. 1045.]

For any MP, he went on to say, an election is very effective for accountability.

The Deputy Prime Minister, who has already been quoted, claimed that the Government’s ambitious programme would transfer power away from Parliament and empower people. So we have to ask why the Government want to diminish accountability by extending the life of the other place from four years to five. It cannot be about increasing accountability. As the noble and gallant Lord, Lord Stirrup, has suggested, to think about two periods of five years—that is, 10 years —is what makes me think that the figure of five is wrong. Ten years seems to be too long. Someone just short of their 18th birthday might have to wait until they were 23 to vote, and they would be 28 before they could vote again. The period from 18 to 28 is the whole of the setting down of one’s life, but the Government are suggesting having only one vote during that time.

Similarly, imagine a Government with a small majority or indeed no overall control. It would be extremely hard to run the country like that, as I know, but the Government would be denied the right to go for a working majority, somewhat dreading every death or resignation and the resultant by-election—or maybe hoping for them so that they could then engineer a defeat on a confidence vote. Leaving it that way to call an election could mean that it would happen at the very worst of times: in the middle of a freezing winter, during school holidays, in a financial crisis or even at a time of national mourning, to say nothing of major international events or indeed the convenience of Her Majesty. Some of those questions are about the principle of a fixed-term Parliament, but they are far more likely to arise and be more acute with an over-lengthy five-year Parliament.

The question is particularly pertinent for a coalition. A coalition is new to the electorate and therefore needs a vote sooner on its performance than five years. Also, because its manifesto was never put to the electorate or endorsed at a general election, it seems right that it should not be run for a full five years. Although in general four years is right, it is even more acute either for a Government with a small majority or indeed for a new coalition that four years down the line rather than five is the right time to involve the electorate in whether they wish that Government to continue.

[Lord Martin of Springburn]

I agree with the noble and gallant Lord, Lord Stirrup, about the length of the period between elections in normal times. If it is agreed that five years will be written into legislation, over a period of 20 years the electorate will be denied an opportunity to go to the polls to decide what form the Government will take and which Government will be returned. We had an opportunity last week to hear the Minister on this matter. The noble and learned Lord, Lord Wallace, was good enough to talk about it. He said that the present system gave awesome power to the Prime Minister of the day. However, what seems to have happened in the room that was talked about in the story from the autobiography of Mr Laws is that awesome power was given to the people around that table. It strikes me that many of the people around that table, who may be very good at economics and other matters, were not experienced parliamentarians. If they had been experienced parliamentarians, they would have said what I am saying today: four years is far better than five.

I ask the Minister to consider four years for the sake of the House and how it operates. I know what he said last week, when we had a warm-up and were able to hear some of his thinking. That is good; we could then think about what he had to say and come back, as we have today. I think the Minister said that his case was that in the fifth year Members of Parliament decide that they want to be in their constituencies. That is not because they are lazy—far from it. They want to work on the hustings; they know an election is coming up and want to be in their constituency. The Minister’s case was that they would do that in the fourth year. However, they would not do that because the Government would not run out of legislation in the fourth year. Therefore, if Members of Parliament missed three-line Whips, it would be duly noted in their constituency. Constituents would say, “Why was he or she here on a Tuesday, missing a three-line Whip?”. That is an incentive to keep Members of Parliament here in the fourth year, rather than in the fifth.

I bolster the case about Governments running out of legislation in the fifth year. The House of Commons Library tells me that in 2009-10 Session, there was not one vote taken on the Floor of the House of Commons on a Thursday. They had topical debates on a Thursday. Some were on very important matters but they were debates. On Thursdays we turned the House of Commons into a debating society, which meant there was no record of whether anyone turned up to represent their constituents. I reiterate what I said the other week. Tam Dalyell, an excellent parliamentarian, told me as a young MP, “Michael, if they want you, tell them you will be available on a Saturday or a Friday night. Don’t take the sleeper up to Glasgow and then get back down for the vote. Tell them that your job is to be in the House of Commons”. However, the Executive of the House of Commons at that time were pleased to have topical debates with no votes so that everyone who wanted to could get away, which meant that more power was put into the hands of the Executive. That is contrary to what the Liberals have said on the Floor of the House of Commons and, indeed, here. They have said, “We don’t want the Executive to get more power”.

Last week the Minister said what fantastic power we were giving to the Prime Minister by enabling him or her to call an election on a date of their choosing, when the polls looked good. The coalition comprises two parties that fought like cats and dogs in the House of Commons—I had to hold their jackets at times—because their policies were so different. However, the leaders of those parties said: “We are getting together to sort out the financial problems of this nation; that’s why we are together, but here’s the wee deal—that we get a five-year Parliament”. There are people with more knowledge of political history than I but I put it to the Committee that Ted Heath might have had the power to go to the country that the Minister talks about, but it did not work for him. Ted Heath said: “It’s me or the miners”, but the country did not re-elect him. He did not serve his full term. Therefore, the great power that he had did not work in his favour; nor did it work in Harold Wilson’s favour in 1970. I remember hearing as a young canvasser that Labour would win again, and the polls all said that. Harold Wilson was perceived as the winner, but during the 1970 election word came through that he would lose, and he did. The same happened with Jim Callaghan. Had Jim Callaghan gone to the country before the great winter of discontent, perhaps he would have won—who knows? The Prime Minister may have awesome power but it has been shown that that power does not always work in his favour.

The noble and gallant Lord spoke about disgruntled Ministers. I suggest that there will be a stack of disgruntled former Ministers. I can hear them now saying, when they were appointed, “Tony said I am the only one who can do this job”. Then they go on to Sky TV—the lovely thing about Sky TV is that if you cannot sleep in the middle of the night, you go on to Sky TV—and the same Minister says, “What a wonderful Prime Minister we have”. I do not know whether it was reported that one Minister said: “I would jump under a bus for the Prime Minister”. I would not jump under a bus for anybody. I do not know whether it was a moving bus or a stationary bus but it shows how much that Minister loved the Prime Minister. Then there is a reshuffle because the Prime Minister has a difficulty; he has to get fresh blood in because the Back-Benchers are saying, “They’ve had their turn at being Ministers; we want to be Ministers now”.

I do not want to mention names but it has been reported that the gentleman who wrote the book might get back into government. I say good luck and three cheers to him. However, there are too many Ministers on the Front Bench so somebody must fall off the end. The logic of that gentleman getting back into government is that someone else will lose their job and become a disgruntled former Minister. The lovely thing about that is that the same people, when they lose their jobs, do not say any more that the Prime Minister is a great person. They sidle up to you in the tea room and say, “He’s a rotter. He’s a bounder”. That gave me an opportunity to say, “But you were not saying that about him two years ago”. The media then make mischief because they have a pool of individuals who are willing to criticise the Government.

That then leads me to consider the people who matter—the electorate. They turn on their televisions, as do the politicians, and they say, “What is going on here? They are all fighting like cats and dogs”. They then think of the old saying in the Bible that a house divided against itself will surely fall, and they say to themselves, “We elected these people to be unified. They promised us unity and now they are fighting with one another”. That will happen in the fifth year. For the sake of running the House properly, four years is far better than this fixed five years.

17:00

[Lord Cormack]

My Lords, I am tempted briefly to intervene, partly because of what the noble Lord, Lord Martin, said. I always remember that one of his predecessors—the late, great Jack Weatherill, who many of your Lordships will remember from his time in this House—once said to me, “If you have any doubt, do not go in and listen to the debate; just stay out and vote”. I must say that I have heard every word in this debate and uttered one or two myself, but the more I look at the Bill and listen to what noble Lords say, the more convinced I am that this is a wholly unnecessary piece of legislation.

If the Prime Minister and the Deputy Prime Minister wish to make a binding undertaking to go to the country in May 2015, there is nothing in our current legislation that would stop them. I can well understand why the two leaders of the new Government—a coalition which is a new experiment in many ways—wanted a period of five years. God bless them, they can have five years, and I genuinely wish them success; but I am not so naive as to suppose that if there is some extraordinary rift or argument during those five years, all those protestations will not fall to the side and there will be an election. The Bill provides for an escape clause, in Clause 2, which we shall debate next week. I have tabled a significant amendment to delete it and to replace it with something else. However, I must not rehearse those arguments now.

The more I listen to this debate, the more two things come to mind. The noble Lord, Lord Martin, talked about the fifth year. Everything he said was correct. I was there for the five-year Parliaments that existed between 1970 and last year. It is quite true that, in every case, the fifth year was the least glorious. However, it would be a little naive to suggest that there would not be a concentration on the forthcoming election in the fourth year. One has only to look across the Atlantic at the ridiculous two-year cycles for the House of Representatives and the four-year presidential cycle to see that potential presidential candidates are already being lined up by the Republicans although the general election is a long time ahead. Of course that would happen here as well. Therefore, we in this House have to accept—in my case reluctantly—that the House of Commons has sent us the Bill. We have the ultimate power to reject it completely. However, that would not be an advisable course for your Lordships' House to take, even though we would be entirely within our rights to take it. Instead, we should decide whether the five-year term enshrined in the Bill is the right way forward.

The Prime Minister and Deputy Prime Minister have put themselves into a difficult position, because if we insert “four” rather than “five” into the legislation, their resolution made last year to serve five years will be blown apart. Of course, the House of Commons would send back the Bill. Therefore, I suggest that perhaps the best way forward is to accept, with whatever degree of reluctance but with total understanding, the five-year wish of the Prime Minister and Deputy Prime Minister, but then to look to the future beyond that to consider what should be the normal life of a Parliament. On that question, the noble and gallant Lord, Lord Stirrup, in an excellent speech, put his finger on a number of very important points. Beyond 2015, it would be prudent and sensible to listen to the advice not only of many theoretical experts and academics, but of others who have had practical experience of politics, and to say that if the Government insist on fixed-term Parliaments after 2015, the term should be four years.

[Lord Grocott]

My Lords, I am not sure that I would be happy with the proposal that the noble Lord, Lord Cormack, made, although I can see merit in it. However, I was very interested in what he said about the Bill laying bare the criticism that has been made of the Prime Minister for using as a defence of the five-year Parliament and of the Fixed-term Parliaments Bill the argument that somehow it will take away power from the Prime Minister. It will take away power from subsequent Prime Ministers. As David Laws's book and the noble Lord, Lord Cormack, spelt out clearly, it was the Prime Minister who decided, with the Deputy Prime Minister, that the next general election would be five years hence, and gave the precise date. He did it far longer in advance than previous Prime Ministers, but none the less he made the decision himself.

I will address a comment made by a number of noble Lords in various debates that deserves a response from people like me who do not like the Bill but feel that if we must have fixed terms, we would prefer four years to five. The criticism directed toward us is that the worries in the final year of a five-year Parliament are not significantly different from the difficulties that come at the conclusion of a four-year Parliament. The noble Lord, Lord Cormack, touched on that. The argument is that people will be electioneering for a full year, knowing when the election will come, that the Government will gear their legislative programme to the timing of the election, and that the situation will not be significantly different regardless of whether that election comes at the end of four years or five.

However, it is my experience, and that of many other noble Lords who have spoken, that a five-year Parliament historically has been less successful than a four-year Parliament, and that the fifth year is always a tired and weary year, when the authority of the Government is running down and may or may not get renewed. It is often a very bad-tempered year, with constant demands from the Opposition for the Government to resign and put their record to the electorate. I will not quote names, but many Ministers in the fifth year of a Parliament want to retire but know that it would be disloyal to the Government to quit when an election is coming at a proximate but indeterminate date. A Parliament gets tired and needs refreshing. It is almost a relief when the election comes and a new Parliament can, with renewed vigour, come into operation with a new Government, although not necessarily of a new party. All sorts of things contribute to that. Members of Parliament announce their retirement during the course of a Parliament, but there would be far more such announcements towards the end of a five-year Parliament than towards the end of a four-year one. I had better be careful how I say this but people who know that they are retiring do not give it quite the full welly as they would if they thought they might be sitting in the following term.

There is also a practical problem. This is probably rather an esoteric point but I think that many in the Chamber will recognise it. With fixed five-year terms, when you have to commit yourself to fighting the next general election, which is normally around half-way through a Parliament, you are committing yourself to remaining in Parliament for at least eight years—no one dares to call a by-election these days, or at least they do so only very rarely—and that is a very big commitment to make, certainly when you get to about your mid-50s.

Therefore, in terms of the last year, there is a significant difference between a five-year and a four-year Parliament. Of course, this country has the advantage of a wonderfully flexible constitution, so we are able empirically to compare what has happened in the past with four and five-year Parliaments. I hope that I have at least attempted to answer the criticism that it really does not make much difference whether it is a four or a five-year term.

The noble and learned Lord, Lord Wallace, may think that I am rather a sad figure but over the weekend I reflected on what he said in his response last week. He said something that threw me—I had not thought of it. I was arguing, as I am now, for a four-year Parliament—not of a fixed term but normally four years—and I challenged him on why on earth a Liberal Democrat within a Government would say that the electorate should be consulted less frequently, because I suggest to the Committee that that is what would happen. I suggested that since the Second World War there would have been 13 rather than 18 elections and the noble and learned Lord said, “Ah, you can’t really assume that that is the case because, under the provisions of this Bill, who knows how many elections there would have been. Some might have been instigated by the two-thirds rule”. On reflection, that is not the strongest of arguments. I hope that in responding to this debate he will at least concede that there could not have been more general elections than there would have been had his Act been in operation, because there is a maximum amount of time that a Parliament can sit. Therefore, it must surely be true that there would have been fewer. I think it is incredibly unlikely that the two-thirds provision would have precipitated an election. The only occasion when there was an early election due to parliamentary activity was when the Jim Callaghan Government lost the vote of confidence, and that would have applied under this legislation. In fact, it might not have applied and poor Jim Callaghan would have had to enter a 14-day cooling-off period, or whatever you call it. That has always struck me as an odd suggestion.

I have a final question for the noble and learned Lord, Lord Wallace. The defence that his leader gave of the proposal for a five-year Parliament is contained in the Second Reading debate of the Fixed-term Parliaments Bill. When challenged as to the justification for five years, he said:

“Leaving aside the very short Parliaments, half of all Parliaments since the war have run for more than four years, so five years is … in keeping with our current arrangements”.—[Official Report, Commons, 13/9/10; col. 625.]

I do not know what he did at university, but it was not logic. That is the equivalent of a batsman saying, “My batting average would have been 100 if you eliminate the ducks”. Basically that is what he is doing in terms of averages. We need from the noble and learned Lord, Lord Wallace, a better justification for five years than has been offered to the Committee so far.

17:15

[Lord Marks of Henley-on-Thames]

My Lords, accepting, as I suspect we all do, that this is a matter of judgment, I suggest to the Committee that the judgment referred to by the noble and learned Lord, Lord Lloyd of Berwick, is best made by a serious assessment of the balance between, on the one hand, the likelihood—although not the certainty under the provisions of the Bill—of less frequent elections and, on the other, the stability that a five-year Parliament offers and the opportunity for the electorate to bring a greater maturity of judgment because of the experience that they have of the Parliament and the Government after five years rather than four years. In making that judgment I suggest that the historical precedents since the war are of limited assistance, precisely because we have not had fixed-term Parliaments.

One complaint of those who argue for four years is that the Bill substitutes five years for a maximum of five years and a norm of four years. That is the effect of the Bill, but the complaint ignores the fact that the effect in practice of the 1911 Act has been that, where a Government have had a working majority, the Parliament has lasted five years if the Prime Minister has believed that he or she will lose, which means that he or she has stayed for the full term. The noble and gallant Lord, Lord Stirrup, and the noble Lord, Lord Martin, argued that the fifth year tends to be a lame-duck year—an ineffective year. The noble Lord, Lord Grocott, said much the same thing. It is an ineffective year because, it is said, in the case of five-year Parliaments, the Government is tired and expects to lose. However, you cannot deduce from that that, where everyone knows that the next election is fixed for the end of the five years, there will be similar exhaustion.

In the past, when a Prime Minister has expected to win, he or she has gone after four years. That analysis is borne out by the elections of 1964, 1979, 1997 and 2010. In each of those years, the election was held at the end of five years and the Government went on to lose. An exception is the election of 1992, when the Government expected to lose and were rather surprised to win. The only other exception to that analysis, although it is not a real exception, is the election of February 1974, which noble Lords will know was held for special reasons. However, that election gives us a useful analysis of whether it is true to say that there would have been four fewer elections or whether you can count the elections and say that there would have been that many fewer. I suggest that under the provisions of this Bill it is highly likely that there would in any case have been an election in 1974 because when the then Prime Minister said, “I want an election to determine the issue of who governs the country, the Government or the miners”, the then Opposition to Mr Heath would have accepted the challenge and voted for an election, so that Parliament would have been dissolved on a two-thirds majority basis. It is not possible to say how many fewer elections there might have been. The Bill makes the basis for Dissolution more logical and removes what we say is the unfairness of allowing the Prime Minister sole charge of when there is an election.

As we know, the average length of Parliaments since the war has been three years and 10 months. I suggest that the calculation of that average term is of no assistance. The principal point against the relevance of such an average is that it takes into account all those early elections called by the Prime Minister in the exercise of precisely the power that the Bill is designed to remove. Secondly, it takes into account the very early elections of 1951, 1966 and October 1974. In that sense, the noble Lord, Lord Grocott, is right to say that it leaves out the ducks, but those ducks are important to leave out because, in the calculation of a sensible term for a Parliament with a working majority, those Parliaments where the Government had no working majority and had to go to the country early are of no assistance.

[Lord Bach]

I am interested in the noble Lord’s arguments. He knows that his party’s policy for many years was, honourably, that there should be fixed terms for four years. Did he support that policy? If not, was he always a five-year man? If he did support that policy, when was it that he changed his mind to five years? Was it, by any chance, around the time that the coalition was formed?

[Lord Marks of Henley-on-Thames]

That is a perfectly fair question, because it is well known that it was Liberal Democrat policy to go for four-year fixed terms. However, it is quite clear that the formation of the coalition caused people to consider their policy and the arguments one way or the other. The coalition has put forward a programme for government. It is a considered view—which, I suggest, is no less right because it is a view come to after negotiation, the negotiations to which Mr Laws refers in the book that the noble and learned Lord, Lord Falconer, is now reading—that that period gives more stable government. The question for this House is, in the light of what has happened, to consider whether five years is better than four. The history of the Liberal Democrat policy on the point does not assist us. We have to bring a new and balanced judgment to the question now before Parliament.

[Lord Cormack]

Surely if five years is what the leaders of the coalition want—I fully understand that, as I have made quite plain—we do not need the legislation for that. How does the noble Lord answer that point? They can have that under current legislation.

[Lord Marks of Henley-on-Thames]

The noble Lord is quite right to point that out, but it has long been Liberal Democrat policy, with which I firmly agree and consider extremely important, that we should have fixed-term Parliaments in the long term, because they make a level playing field. The question that we are considering in the context of the Bill is whether those Parliaments should be for four years or five. It is of no assistance to say that we can fix a Parliament for five years now and decide later. We are determining the right period under the Bill. This Parliament cannot bind its successors, as the noble Lord plainly knows. If a future Parliament should take a different view, it is for that Parliament to legislate, as my noble friend pointed out. However, on consideration of this Parliament and what we should do now, we say that, as a matter of principle, it is right to go for five years.

Understandable concern has been expressed on all sides of the House and by the Constitution Committee about the need for pre-legislative scrutiny. If we accept that there is a need for pre-legislative scrutiny of important legislation, then the first year of a Parliament will generally be given over in respect of important legislation to that scrutiny.

[Lord Cormack]

Not this time.

[Lord Marks of Henley-on-Thames]

I accept that; it gives rise to the concern that has been expressed and that I am, for these purposes, accepting. If it be the case that enactment of legislation starts in year two of a Parliament, and given the point made by the noble Lords, Lord Martin and Lord Grocott, which I think we all accept, that the last year of a Parliament is given over to preparing for a general election, a five-year Parliament leaves a period of three years for positive legislation and a four-year Parliament leaves only two years, because we all accept that inevitably the imminence of Dissolution makes legislation more difficult, as the time is limited in the last year. I suggest to the House that the stability that is required for the convenient and sensible passage of legislation is better achieved with three whole years between the first and last years.

In terms of government rather than simply legislation, I also suggest that four years runs a danger of leading to short-term planning, which inhibits a strategic approach to all forms of activity in government. That point was well made by the noble Lord, Lord Armstrong of Ilminster, at Second Reading.

On the other side, of course it is the case that regular recourse to the electorate is at the heart of our democratic system of government. However, there is no doubt that Governments that are too driven by early electoral considerations may not be the best or most effective Governments. The four-year term in the United States is frequently and rightly criticised for its shortened electoral cycle and for the fact that from far too early in the term the Administration are looking for the prospects of re-election—all political eyes are firmly fixed on the next election.

The last point is this: a shorter term has the effect of depriving the electorate of the time to judge on mature reflection the effectiveness of government policy and legislation. That is particularly true of a reforming Government who reform the way in which the public services are delivered and taxes and benefits are administered, as this Government will and as may be the case with many future Governments. That is the case because the preparations for the Dissolution and an election come at a time when much of what the Government have done during the term, particularly after the first year of the term—this brings me back to the point about pre-legislative scrutiny—has not had time to take effect, so the electorate have not had the opportunity to judge what the Parliament and the Government have done during the term.

The noble and learned Lord, Lord Falconer, laughed when I talked about a matter of principle with reference to what I had previously described, and continue to describe, as a matter of judgment. Of course that is right, but I suggest that the better balance between four years and five years is the one that the Government have struck and incorporated in this Bill as unamended.

17:30

[Baroness Farrington of Ribbleton]

My Lords, I keep hearing the words, “It is a matter of judgment”. I heard them from the noble Lord, Lord Marks, on several occasions in connection with giving the electorate the power to decide. I just heard a reference to the importance of time for pre-legislative scrutiny and allowing people who are about to vote an opportunity to maturely evaluate the Government’s policy. I am beginning to feel as though we live in a different place, because we have a whole plethora of constitutional reforms before us, who have to vote on them, with no opportunity for pre-legislative scrutiny and no opportunity to see how the first bit, the second bit, the third bit and the fourth bit come together.

Then, in the middle of it all, is the bit of the Bill that perhaps worries me even more than the five and four years: who, how and in what circumstances the proposed five or even four years could be varied. I have heard a variety of ways in which a Prime Minister can decide that it is a good time for an election if he thinks it is in his interest, although I think that convincing the Opposition that it is a good time for an election will be quite a hard task. Having heard all these arguments, however, I am not allowed to see what this coalition Government propose to do. This is against a background of assurances that I keep getting that they know where they are going and they know who is going with them, but it sure ain’t me because they are not telling me where they are going.

I have been asked to vote on changing the system of votes, which is being put to the people in the AV referendum, without being told what is being proposed for people being elected to this House. All these things keep being thrown at me by people who say, “Oh well, it is a matter of judgment”. In the end, a bit like the dance of the seven veils, all will be revealed. However, I want to know the whole picture now before I am asked to start pulling apart some of the parts of the structure of our constitution. The argument is therefore surely that it would have been better if the coalition had concentrated on fewer Bills that made fewer changes to the constitution, had put them out for quick pre-legislative scrutiny and did not Christmas-tree them. Those who have been in government know that the minute the whole plethora of people in any department see a Bill looming, they start hanging little baubles on it, complicating it and muddying the whole picture. I am therefore uneasy.

On the use of the term “judgment”, I think that it is a bit arrogant of the coalition—a new form of government in this country for a long time—to say, “We are making a judgment about when you can vote to judge us, and we are restricting the way in which it is going to be done”. Perhaps, having a somewhat warped political mind, I can see that it is just possible, in reaching an agreement to form a coalition, that neither party trusted the other and so the five years had to be set in concrete in case either one pulled the rug from under the other. However, I am then assured that in the middle of the Bill is the opportunity for the Prime Minister of the day suddenly to pull the rug out anyway, although I suppose he would have to get his Deputy Prime Minister to support him.

On the argument about the length of time that it takes to bring in legislation, in my view the public out there have the right to expect to be able to voice their view on what happens in the future. It is just possible that, within the next two years, some people who are currently members of the coalition will not want to be tied to a fixed term of five years. They could be members of either party; it is not always the most adulterous one who ends up getting divorced.

I am concerned. Why cannot we have a big picture for all these constitutional changes? Why cannot we substitute this judgment that we ought to be laying in concrete an agreement of convenience for this particular Government? Why are we wasting our time legislating to set that in concrete? We are wasting our time because they can do that anyway. They do not need this Bill to do that, so why on earth are we being told that they do? I am beginning to get suspicious, because from certain Benches—from parties to this Government—I keep hearing, “Well, we are voting for this now. It is not what we really want, but we will get what we want next time”. I have met the odd person out there who has said to me, “Hey, I watched that debate, and the Lib Dems said that they do not really like AV, but it is better than what we have, and anyway it is a road to somewhere else”.

Finally, I cannot resist remembering when I sat on those Benches over there during the first stage of House of Lords reform. I heard a member of Her Majesty's loyal Opposition at the time—a former Home Secretary—come out with the words, “The wicked thing the Labour Government are trying to do is force an extension of the life of government”. Who is doing it? Not us. Can we please have the big picture, can we ask the British people what they think, and can we not patronise them by saying, “You need longer to be able to judge us”?

[Lord Wills]

My Lords, I think most would agree that there is merit in the arguments on both sides of the debate on whether the term of Parliament should be fixed. However, if there is merit in the argument for the term being fixed at five years, it is merit that passed by both the Conservative Party and the Liberal Democrats until the coalition agreement enlightened them. Nearly a year after that agreement, Ministers have still not managed to find a way of articulating that case persuasively.

The Government’s proposition is that they have a mandate for this proposal—this was one of the arguments used by the noble and learned Lord, Lord Wallace, on Second Reading—because an appetite for political reform was manifested at the last general election. That is a questionable proposition, to put it at its politest, because it conflates an arguable general distrust and dislike of politicians with a wish for a specific proposal for a five-year fixed term for Parliament. The Government’s argument that five years is somehow part of our political culture—the Deputy Prime Minister has made this argument—ignores inconvenient facts about the average length of post-war Parliaments. Of the last seven Parliaments, for example, four have lasted for about four years and three for five years. Moreover, the proposition, which Ministers have also advanced, that the Parliament Act somehow supports this proposal confuses setting a maximum term with fixing a norm. Then, of course, there is the selective quoting of international examples, nearly always in discussions of constitutional reform—a refuge for the intellectually desperate.

Does it matter that the Government have so inadequately made the case for a fixed term of five years? I think it does. This is not a matter of a finely balanced judgment one way or another, with there being really nothing very much to choose between a four-year term and a five-year term. Of course there is an element of judgment in these things, but, as the noble and learned Lord, Lord Lloyd, so eloquently set out, the overwhelming weight of expert opinion is in favour of four years. Anything longer inevitably—logically, inevitably—delays the calling to account of the Executive, and it creates an accumulating democratic deficit.

In the absence of any persuasive arguments for a five-year term, this flaw is toxic. It is particularly toxic because of the process by which this Bill has been brought before Parliament and the damaging perception that this has created the motivation behind the selection of five years as the fixed term for Parliament. Due process and perceptions of motivation matter especially for constitutional legislation because they can create public trust in the integrity of our constitutional arrangements or they can destroy it. A constitution which does not command the trust and respect of the citizens it serves is a constitution without value.

So what has been the process for this Bill? There has been no manifesto commitment to its key detail or any compelling argument for it. There has not been a Green Paper, a White Paper or public consultation. The process has consisted simply of ramming this hastily and poorly drafted Bill through Parliament as quickly as the business managers can get it through. This creates a perception which has been widely voiced. I am very grateful to my noble and learned friend Lord Falconer for telling the House about the account given in Mr David Laws’ history of the formation of the coalition agreement. I am sure that Mr Laws did not wish to be quite as unhelpful to his colleagues who remain in government as he has turned out to be. Nevertheless, the citizen might legitimately ask, “Why did the Government suddenly abandon a historic Liberal Democrat commitment to a fixed four-year term?”. Why would two parties which are locked in an uneasy embrace, trying to find a way to govern together that does not lead to an electoral annihilation for one or other or both of them, suddenly decide to extend the fixed term to five years?

My noble and learned friend Lord Falconer’s quote from Mr George Osborne tells us everything that we need to know about this. The Government have yet to come up with one good argument about why the motivation for this move to a five-year term is nothing more than the search for short-term, partisan, political advantage, seeking to stay in power, locked together, for as long as they possibly can. Sadly—I say sadly because I know that many Members on the Liberal Democrat Benches have long and honourable histories of espousing constitutional reform—this sort of short-term partisan manoeuvring is coming to characterise this Government’s constitutional legislation. It injects poison into the system. It creates suspicion where there should be trust and volatility where there should be stability. This really is no way to legislate for constitutional matters.

Accepting this amendment would help to neutralise this poison, but I fear that the Minister—characteristically amiably, no doubt—will try to find reasons for resisting it. I fear that the Government will ignore the reservations, which we have heard over and over again in this debate, which has gone on now for nearly one and a half hours, just as they have ignored all the other doubts about their constitutional legislation, and that they will just whip this Bill through. Despite that, I hope that the noble and learned Lord who moved this amendment will test the opinion of the House on the matter, if not now then at Report. This House should do its constitutional duty whatever view Ministers take of theirs.

[Lord Dobbs]

This House pursues this discussion with considerable passion and at times almost with an element of ferocity, which is how it should be. But I have to admit that it has left me rather confused. I have done my best to follow the arguments. Should it be four years or five years? Should it be three years and 10 months or some other figure? Statistics have been hurled around this House and given a mythical, almost mystical, significance and, at times, even an ethical significance. Some say that “this figure is right and that figure is wrong”, and not just wrong but downright wicked. It is enough to make a young chap giddy.

For better or worse, as a party official and a prime ministerial adviser, I was involved with the process of helping to choose one or two election dates in the 1880s and 90s.

[Noble Lords]

You said the 1880s.

17:45

[Lord Dobbs]

Did I? My memory does not go back quite that far but I thank noble Lords. I can confirm that there was nothing mythical or mystical about it and least of all could the process be described as ethical. There is only one reason why Prime Ministers choose this or that election date and that is because he or she thinks that the chosen date gives them the best possible chance of winning. For a party leader, elections are rather like the gunfight of the OK Corral. There is no future for the loser; they are likely to be dragged out of the arena feet first and never seen again. Prime Ministers sweat over these decisions—even the fragrant ones.

We keep hearing that four years is best. The question remains: why have Prime Ministers so often chosen to hold an election after just four years? The answer is very simple. Except in the most extreme circumstances they do not go earlier because there is nothing to be gained: they will only be accused of cutting and running. They do not often carry on beyond four years for fear of running foul of events or the economy or the private excesses of some wayward Cabinet Minister. I am afraid that these decisions have nothing to do with the astrological significance of the figures four or five. It has simply been a matter of self-preservation.

The noble and learned Lord, Lord Falconer, spoke about the natural rhythms. I think that in a previous debate we heard someone refer to the natural biorhythms of the British constitution, a point picked up in the Select Committee report. I admire the noble and learned Lord almost beyond expression. His knowledge of our constitution is profound but I fear that his romantic nature might have led him astray on this one. In my less than humble experience—Conservative chiefs of staff do not usually do humble or, if they do, they do not tend to survive—it has nothing to do with biorhythms: it is simply the uncertainty of that fifth year that leads Prime Ministers to opt for four—nothing else. But remove that uncertainty, as this Bill does, and I suspect that we will find that Prime Ministers are more than delighted to soldier on to the end with absolutely no complaint. They will carry on in Downing Street, their biorhythms entirely undisturbed. After all, Prime Ministers love office. They never know when to give up. They hang on as long as possible, and almost always too long, leaving their fingernails in the Downing Street carpet as they say goodbye.

Another argument, which was picked up by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Martin, is that somehow a fifth year is always unsatisfactory; that for some metaphysical reason the Government will run out of steam after four years. We have heard of the term, the lame duck—the least glorious of years—but it is only the uncertainty that causes distraction, which is what this Bill does away with. Give a Prime Minister a certain election date and, instead of confusion, there will be a reasoned, possibly somewhat reckless, campaign of tax cuts, heady promises and kissed constituency babies—in other words, business as usual.

Of course, another argument has been put forward; namely, that a five-year term deprives the electors of a more frequent choice than four years. The logic of that is, of course, indisputable. But, if the noble Lord will forgive me, it is also absurd. Follow that logic and we would end up with elections every three years or two years or perhaps every year. Looking at the US congressional system where politicians are constantly campaigning, I am inclined to suggest that there is no obvious connection between more frequent elections on the one hand and better government on the other. Above all else, it is better government that we should be seeking.

There is no democratic deficit of the sort suggested by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Grocott. There is no shortage of elections. We have more elections for more Parliaments than at any time in our history. But whether all those elections and elected politicians have given us better government I suspect is a matter to be discussed on another day.

The crucial point is this: should it be four years, should it be five, or three point something or other? Having dismissed the relevance of so many statistics, let me offer a few of my own. Looking back over the last eight elections, which takes us back an entire generation or more to the dark days of 1974, the average lifespan of a Parliament has been nearly four and a half years. To me that is just as legitimate as the figure which is so often quoted, that of three years and 10 months. But we are told that four years is what the people demand. If that is the case, where is the surge of public indignation, the outrage that our biorhythms have been disturbed and the voters left short-changed by four-and-a-half year or five-year parliaments? The argument about four years and only four years simply will not wash.

To garble the phrase, there are exaggerations, irrelevancies and political evidence. We have heard plenty of all three in this debate. If we are looking for a norm, it is four and a half years, not three years and 10 months, at least in our recent history. What should we read into that? Precisely nothing. Except that in every one of the last eight elections, the Prime Minister chose a polling date that was thought to be in his or her interest. It is self-interest, not the national interest, and there is no magic in a term of four years. That is because, of course, Prime Ministers have a terrible habit of stumbling to the conclusion that they are the national interest, and that is what lies behind these statistics, nothing more. Statistics will not resolve this issue for us; it is up to us.

[Lord Bach]

I am grateful to the noble Lord for giving way. He has mentioned the last eight elections. I may be slow in my arithmetic, but I think that would take us to 1979 as the first one he has chosen since there have been eight elections since then. I think he said that in the last eight elections, the Prime Minister has always chosen the date for his own benefit. I do not think that that is something James Callaghan could be accused of.

[Lord Dobbs]

I think it takes us back to 1974. I well remember Lord Callaghan, as he became. Indeed, he first introduced me to this House by giving me tea here. I owe him a great deal and I have the most profound respect for him. But I am surprised that the noble Lord should quote 1979 as being the pinnacle of constitutional principle. It was sheer self-interest based on the opinion polls, like it was for all other Prime Ministers.

[Lord Falconer of Thoroton]

I may be wrong, but my recollection is that Mr Callaghan went to the country because of a Motion of no confidence passed in the House of Commons. To describe him as choosing an election date seems, if I may say so, a little misplaced.

[Lord Dobbs]

The noble and learned Lord misunderstands me. The election date that he was going to choose was in the previous October, and that is where he got it wrong. In his own self-interest, he thought that he should soldier on, despite the evidence. Let me not be distracted, but I am surprised that the noble and learned Lord remembers 1978 and 1979 so fondly. I have to say that it is not an example that I would wish to follow.

Statistics will not resolve this issue. In the decision over whether it should be four years or five, I find myself, rather oddly, agreeing with the Deputy Prime Minister who, in a celebrated quote of his when asked if he thought 12 months here or there mattered very much, replied, “No, I do”. I think that he summed up the situation admirably. So let us have five years. I do not know if it is a matter of principle, as my noble friend Lord Marks says—I probably would not go that far—or of sheer practicality, but it is as close to the norm as four years. If any of the political parties find it somehow offensive, they are entirely at liberty to change it. All they have to do is to win an election, and because of this Bill they will have the immense benefit of knowing precisely when that election will be held.

Even taking the extreme position of supposing that every Parliament runs its full term, a premise that personally I doubt very much, surely extending the average length of a Parliament from the present four-and-a-half years to five does no great disservice to our constitution, and by enhancing the possibility of sensible, long-term government, it offers considerable benefits in compensation.

[Lord Desai]

My Lords, I have a brief point to make, but first I agree with the noble Lord who has just spoken that you cannot compare the frequency of Parliaments under a fixed-term arrangement with the frequency of Parliaments under a variable-term arrangement. They are not comparable things. I would also say to the noble Lord, Lord Marks, who expressed his distress that a Government would have only two years to legislate, not three, that if he had been in Parliament as long as I have, he would pray for fewer Bills to come from a Government rather than more. So I do not think that the quality of a Government is measured by the number of Bills they introduce; I think exactly the reverse.

I have one anxiety, which I shall explain. This Bill does not actually fix the term at five years, but at five years and two months. There is a distinct possibility that, again and again, a Prime Minister would be able to breach the standard convention that a term of five years is the limit. That is a fundamental part of our constitution. This Bill breaches that by allowing, in Clause 1(5), for an extra two months. We ought to take this very seriously. Prime Ministers can find good excuses to delay elections. As has been pointed out, if they see better a better chance two months hence, they will find a way of waiting. I do not care how long this goes on for—whether it goes on for 10-and-a-half years—but we should take the breach of a very fundamental political principle seriously. The advantage of my noble and learned friend’s amendment is that, even if a Prime Minister uses the two-month option, we would never breach the five-year rule. That is a telling argument in favour of the amendment.

[Lord Rennard]

My Lords, in 2005, together with my noble friend Lord Razzall, I was responsible for the Liberal Democrat general election campaign. The manifesto for that campaign contained a commitment to fixed-term Parliaments and specified terms of four years. Obviously I have changed my mind, and I should like to give the Committee three good reasons why I have done so. However, before I do that, I would point out to some noble Lords opposite that only last year they fought a general election on a manifesto promising that, if re-elected to government, the party would legislate for fixed-term Parliaments. The party has still not said how it would have legislated to “ensure” that there would be fixed-term Parliaments, and made no mention whatever of what the term of those fixed-term Parliaments would be. If the case for four years rather than five years was so absolutely clear cut, as suggested by some noble Lords opposite, I wonder why it was not included in the Labour Party manifesto of only last year.

The first reason why I think I have changed my mind is through simply looking at the balance of a five-year term for a Parliament and how much of that time might be spent governing or how much doing anything else. My noble friend Lord Marks of Henley-on-Thames referred to the case for more pre-legislative scrutiny. I feel quite strongly that in the circumstances we have in this year in this Parliament, our legislation would be rather better if there was more draft legislation and more pre-legislative scrutiny, and I hope that when fixed terms of five years become the norm, there will be more of a case for such scrutiny in the first year of a Parliament, which would be good for the governance of the country.

[Lord Falconer of Thoroton]

Knowing that this Parliament is going to last for five years, surely there is time for pre-legislative scrutiny of this Bill. Why does the noble Lord not support that position in relation to this Bill?

[Lord Rennard]

In this Bill, we do not necessarily know whether we will have five-year terms or not. If the noble and learned Lord has his way, we will have four-year terms, not five years.

[Lord Falconer of Thoroton]

Am I given to understand that the reason for not giving this Bill any pre-legislative scrutiny is fear that it may not get through?

[Lord Rennard]

No, indeed. There are many things that require considerable scrutiny. But it seems to me that the actual principle of a fixed-term Parliament has been considered a number of times in a number of ways. I happen to think, for the reasons I am trying to advance, that five years is more logical. The first reason is that the first year of a Parliament would, more normally in the future, provide more time for draft legislation and pre-legislative scrutiny. As we all know, the last year of a Parliament tends to be given over to government campaigns rather than legislation. If we had only four years and the first year was dominated more by pre-legislative scrutiny and the last year dominated more by campaigning, only two years of government out of the four would be effective. That, as my noble friend Lord Marks of Henley-on-Thames said, is the problem with the US system. There, the period is four years, but everybody knows that in the first two years the President governs and then, after the mid-term elections, the second two years are all about campaigning for re-election.

There are two other points which are quite significant. They have not been made in this debate and some noble Lords opposite may wish to address them.

18:00

[Lord Wills]

Before the noble Lord finishes telling us why he changed his mind, perhaps I may point out that all the considerations in favour of a five-year term that he is now advancing, and the issues that he has brought into play, have been well known for many years—in fact, all the years during which he was in favour of a four-year fixed term. Can he tell us now precisely why he changed his mind?

[Lord Rennard]

The first reason is one about which the noble Lord, Lord Wills, should know a great deal. I pay great tribute to him as a genuine constitutional reformer. He was responsible in the previous Parliament and in the previous Government for changing significantly some of the rules on party political expenditure. Noble Lords opposite shared my concern throughout much of the 13 years and the three Parliaments of the previous Government about the lack of a level playing field in this country in party financing, which gave too much opportunity to extremely wealthy individuals to influence an election, particularly in constituencies, in the immediate run-up to it. The noble Lord, Lord Wills, introduced legislation in the previous Parliament which provided for control of that expenditure after four years and seven months of a Parliament. There would be no controls before that; they would apply only after four years, seven months. I opposed that legislation on the ground that it would work logically only if you had a five-year fixed-term Parliament. Noble Lords opposite had no answer to that point, but decided that four years, seven months was how it should be. So, now, our legislation to regulate party political expenditure is entirely dependent on there being a five-year fixed-term Parliament and on those controls coming in after four years and seven months through to the 60th month of the Parliament, and no other period.

[Lord Tyler]

I wonder whether my noble friend recalls that not only the noble Lord, Lord Wills, but all his political colleagues in another place promoted that legislation in terms precisely of the Political Parties, Elections and Referendums Act and the control of the expenditure of political parties. Why have the noble Lord and all his colleagues changed their minds? I notice that the noble Lord, Lord Bach, is back in his usual place. Perhaps he would like to explain why he has changed his mind, having teased my noble friend on this point.

[Lord Rennard]

My Lords, I am sure that noble Lords opposite will have an opportunity to explain their points. Perhaps I may briefly explain the third reason for my having decided that five years is better than four years. It is again a question of consistency. We agreed relatively recently and after lengthy debate—the longest that we have had in the time that I have been here—on the system for parliamentary boundary reviews. It has been established that there will be five-year reviews of constituency boundaries. It would be madness to say that one should redraw the constituency boundaries every five years but then not to have general elections every five years. To have a general election every four years but to redraw the boundaries every fifth year would put the two processes completely and quite unfairly out of sync. On that basis, I decided that five years rather than four was more logical and more democratic.

[Baroness Farrington of Ribbleton]

Would the noble Lord, Lord Rennard, care to comment on the fact that the first reason he gave for changing his mind applied before he espoused and promoted his manifesto for the election? Between his saying, “Vote Liberal Democrat; we’re in favour of four years” and reaching the conclusion that it should be five years, the people went and voted thinking that it was four. The noble Lord knew about the legislation that had been passed by the previous Government. I see a pattern however. I am grateful to him for his comment on five-yearly parliamentary boundary reviews and I shall go away and think about that very seriously.

[Lord Rennard]

I thank the noble Baroness, particularly for her latter point. In response to her first point, about how I should have known all this before 2005, I say very honestly that if all of us ignored all the evidence and all that we had learnt during the past six years, this place would be a poorer place and our legislation the poorer for it. I have reflected over the six years and have been convinced by many people that there should more pre-legislative scrutiny and more draft legislation. In 2005, I did not feel so strongly about that. Some of the more recent evidence points me in the direction of being strongly in favour of five-year, rather than four-year, fixed-term Parliaments.

[Lord Howarth of Newport]

My Lords, if we are to have a fixed-term Parliament, and I believe that we should not, we will do less damage if we fix it at four years rather than at five. I rather agree with the noble and learned Lord, Lord Lloyd of Berwick, and with my noble friend Lord Wills that there is little advantage to be gained when we are considering how to reform our own constitution, which has grown out of our distinctive political and constitutional tradition, in looking over the way to see how such matters are organised in other countries. I do not think that when de Tocqueville engaged in such an exercise he was intellectually desperate; it was quite a fruitful exercise. It is worth noting that there is no advanced country with which we can sensibly be compared that fixes the terms of its Parliament for as long a period as five years. France has a fixed term of five years, but it has presidential government; Italy has a fixed term of five years, but Italy is a byword for governmental instability; Malta and Luxembourg have fixed five-year terms, but we cannot sensibly compare ourselves to them. I do not think that there is an advanced democracy abroad which sets the term of its Parliament at five years which should encourage us. If we look inwards at our own affairs, we should remind ourselves that the terms of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly are set at four years. It is therefore incumbent upon the Government to explain why they have taken such an eccentric view. It is all the more so because setting the term at five years, notwithstanding what the noble Lord, Lord Marks of Henley-on-Thames, said, seems to be at odds with the principles that the Liberal Democrats have professed.

If we fix the term of Parliament, for whatever duration, we insulate Members of Parliament and, significantly, Ministers from public opinion. The longer the term, the worse that effect; the shorter the term, the more accountability and democratic engagement are brought into play. In the light of all the professions that the Deputy Prime Minister has made about the whole thrust of the constitutional reforms being brought forward by the coalition Government being to improve accountability and democratic engagement, it seems very odd that they should have decided on five years rather than four. It was Mr Mark Harper, the Parliamentary Under-Secretary, when he was giving evidence to your Lordships Select Committee on the Constitution, who used the phrase, “it is an issue of judgment”. It should not perhaps surprise us very much that the judgment that the Government took was that which best suited the political interest of the coalition parties. I hope that the noble and learned Lord, Lord Wallace of Tankerness, will be able to persuade us that the Government have some better reason.

[Lord Butler of Brockwell]

My Lords, I decided to intervene briefly in this debate because I felt that the arguments advanced by my noble friend Lord Armstrong at Second Reading had not been given voice and because he was not in his place. He now is in his place and I think that he could put them a lot better than I can. They have been referred to, but I should like to reinforce them.

Like other noble Lords, I do not like this Bill. It is an unnecessary Bill. As the noble Lord, Lord Cormack, said, if the Government had wanted to commit themselves to a five-year Parliament, they could have done that under the old legislation. For that reason, as the noble Lord, Lord Grocott, said, this is not a Bill that binds the present Government so much as it does future Governments. There has been a lot of speculation in the debate about the Government’s motives for what they have done. I do not want to enter into that, because I agree with the noble and learned Lord, Lord Falconer, that what this House should do is decide on principle what is better for the country. On that issue, I come down in favour of the view expressed by my noble friend Lord Armstrong at Second Reading. I do so for a reason which I am sure will be dismissed as a Sir Humphrey-esque argument, as a bureaucrat’s argument, but I am not ashamed of that. Those of us who have seen government from the inside—the noble Lord, Lord Dobbs, made this point, rather unexpectedly from my point of view, but from a political perspective—have reason to put to the House that too frequent elections are not good for the government of the country. Terrible things are done in the lead-up to a general election. Decisions are put off or are made in budgets which are designed to attract voters and are not in the interests of the country. For example, it will be in your Lordships’ memory that the Personal Care at Home Bill, which was introduced by the previous Government before the general election, was a blatant piece of electioneering. I made the point then that, in the economic conditions of the country, it was irresponsible to the highest degree. So to have elections more often than we need to have is not in the best interests of government.

Some people may say that I am against democracy, but that would be unfair. Of course there have to be elections. However, if there is a choice between every four years or five years, I would argue in favour of a five-year term.

[Lord Lloyd of Berwick]

Can the noble Lord comment on the point that all the experts who gave evidence, both in the House of Lords committee and in the House of Commons, came down in favour of four years? These were experts on our constitution, both in law and in practice.

[Lord Butler of Brockwell]

I should like to comment on that because the experts were, for the most part, either politicians or distinguished academics; they were not people who had seen government from the inside. That is why I am anxious to express this alternative point of view.

[Lord Falconer of Thoroton]

First, a number of the politicians had been Ministers. Does the noble Lord regard that as government from the inside—or were they kept from the inside by Sir Humphrey on a regular basis? Secondly, on the basis of the argument he has made, if the noble Lord was given a choice between five and six years, I assume he would choose six years because there would be even less wearisome elections then.

[Lord Butler of Brockwell]

The noble and learned Lord tempts me.

[Lord Falconer of Thoroton]

Please be tempted.

[Lord Butler of Brockwell]

A balance has to be struck and I would strike it at five years.

On the previous day in Committee, the noble Lord, Lord Grocott, urged a referendum on the question of the day of the week that polling should take place. In his speech today, he did not urge a referendum on going to a four-year term, which is a greater constitutional change than a change in the day of the week for voting.

[Lord Grocott]

My Lords, it is precisely the same issue. This is about whether the election should be every four years or five years—I am happy to accept that there may be failings in the wording of the amendment—but the principle is exactly the same: it is to enable the electorate to choose between whether the term of a Parliament should be five years or four years.

[Lord Butler of Brockwell]

I take it that, if the amendment is passed, the noble Lord would also want a referendum on the question of whether a fixed-term Parliament should be for four or five years.

[Lord Grocott]

Yes.

[Lord Butler of Brockwell]

Thank you. That makes my point. It has been argued that the merit of a four-year term is that it gives the electorate more ability to hold the Government to account because they can do so more frequently. People like us and experts on government argue about what is good for the people and what the people want. If this was put to a referendum, I doubt whether there would be popular support for four-year rather than five-year terms. Elections are not very popular in this country; people do not like having their television dominated by politics for five or six weeks at a time. One of the arguments in favour of a four-year term is that we are giving the public what we think they ought to want, but I doubt they want it themselves.

18:15

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for introducing the amendment. It has given rise to considerable debate in all parts of the House and a number of important and interesting arguments have been put for and against. The duration of the parliamentary term proposed in the Bill has been discussed not only at Second Reading but in some of the earlier amendments we debated on the first day in Committee. It has also been debated in the other place where, it is worth noting, amendments similar to those tabled by the noble and learned Lord were debated and rejected.

On the debates in the other place, I should indicate to the noble Lord, Lord Wills—who, at one point, suggested that the business managers were ramming the Bill through—that the Bill was introduced on 22 July 2010; it had its Second Reading in the other place on 13 September; it had two and a half days in Committee in November and December; Report and Third Reading were on 18 January; and it was introduced into this House on 19 January. We are now on the second day in Committee on 21 March and, with the best will in the world, we would be unlikely to reach Third Reading of the Bill before the Easter Recess. That does not sound like ramming a Bill through. I shall come later to the point the noble Lord made about the partisan nature of the Bill, which I strongly reject.

The noble and learned Lord, Lord Falconer, suggested that I had indicated that the issue of four or five years was one of high principle, and I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for quoting what I did say. I indicated that I did not believe there was a right or wrong answer. I think that there is a matter of important principle in terms of a general constitutional reform package. I have always strongly believed in the argument for a fixed-term Parliament, and I thought that the Labour Party supported that argument as well at the last general election.

The noble and learned Lord, Lord Falconer, went on to say that he considered this a matter of high principle, although many of us are waiting to hear exactly what that principle is. I did not discern it in any of his remarks. He put forward arguments on the basis of practicality and why he felt four years was better than five. The noble and learned Lord, Lord Lloyd of Berwick, cited a number of academics and politicians who had given evidence to that effect as well. However, my noble friend Lord Rennard quite properly pointed out that the legislation on candidate expenses which the noble Lord, Lord Wills, took through the other place under the previous Government—which, I assume, the noble Lord, Lord Bach, was responsible for in this House—presumed that there would be a five-year Parliament. Indeed, that legislation would have been otiose if there was a four-year Parliament. No doubt we could amend that legislation but it is an insight to what the Labour Party was thinking at the time. Therefore, to elevate this to a matter of high principle is overegging the cake.

However, it is a matter of principle that the constitutional reform that the Government are working hard to achieve should have a framework for strong and stable government that can deliver results to the electorate. This Bill and a fixed five-year term would help to ensure that.

Perhaps I can now address some of the issues and explain why a five-year term would be beneficial. The current constitutional position is that any Government who retain the confidence of the other House may, if they wish, stay in office for a full five-year term. We should not kid ourselves that curtailing the length of time would be a significant change beyond simply the important change to fixed terms. On the point raised by the noble Lord, Lord Desai, that the Bill made provision for five years and two months, that would be the case only if an order was brought forward in unusual circumstances—for example, if there was an outbreak of foot and mouth—and it would require a resolution of both Houses of Parliament to be implemented. Amendments will be introduced later—this evening, I hope—which will require the Prime Minister to give an explanation to both Houses as to why he or she was doing this. In fact, a Parliament need not be dissolved until five years after it is called but it is certainly possible under our existing constitutional arrangements to go beyond the five years. Under the Bill, unless there is the exceptional circumstance to which I referred, it would not be possible to go beyond five years. I understand the noble Lord’s concern but hope that he, on listening to the later debate when this comes up, will be reassured on that point.

I take the stricture of my noble friend Lord Dobbs about the dangers of trading figures. It is the case that most Parliaments since the Second World War, some 10 out of 17, have lasted at least four years. Three of the last five have lasted almost five years. Some have pointed to examples of Parliaments that have lasted closer to four rather than five, making the argument that four is somehow the norm and five is only for Governments who are clinging on to power. Yet, as was well put by my noble friend Lord Marks, those who point to the examples where the fifth year has been, if one wished to use the term, a lame duck almost make the point. These arose because the Prime Minister of the day looked at the runes, did the calculation and estimated that it would not be worth going to the electorate because he was probably not going to win. The very nature of the Government being in that position means that they are almost inevitably limping into their fifth year. That is a different situation from Governments knowing that there is a five-year fixed term and having to plan accordingly.

The noble and learned Lord also mentioned what Mr Asquith said back in February 1911. We could have a legitimate debate on what Mr Asquith was actually saying. He is quoted in the Official Report as saying that reducing the Parliament from seven years, as it previously was, to five would,

“probably amount in practice to an actual legislative working term of four years”.—[Official Report, Commons, 21/2/1911; col. 1749.]

He clearly did not say that the term would be for four years but that the practical legislative working term would be for four years. That is an important point and one I will pick up later in light of the comments made at Second Reading by the noble Lord, Lord Armstrong of Ilminster. As I said, the fact that an election is called before the end of the fifth year of a term has often been cited as the Prime Minister of the day seeking to give his or her party a political advantage. The noble Lord, Lord Martin, gave examples where a Prime Minister has exercised that power and it has not come off. It is fair to say that those Prime Ministers were mightily surprised and upset by that. They could not have foreseen it: it was their wrong judgment. That cannot get away from the fact that that is what they were trying to do. My noble friend Lord Dobbs made it clear from his inside track that that is precisely what Prime Ministers try to do in those circumstances.

At Second Reading, the noble Lord, Lord Armstrong of Ilminster, said—although I accept that he indicated his objection to fixed-term Parliaments as a whole—that there are merits, if you are having fixed-term Parliaments, to a term of five rather than four years. The noble Lord, Lord Butler of Brockwell, made the same point today. I remind the House what the noble Lord, Lord Armstrong, said:

“If legislation were to set a fixed term of, let us say, four years, that period would be reduced to more like three years. That would not leave enough room for sensible policy-making and good parliamentary debate before the imminence of the forthcoming election began to cast its distorting shadow. So I hope that, if this Bill becomes law, the fixed term will be five years, as is proposed in the Bill, and not some shorter term”.—[Official Report, 1/3/11; col. 971.]

That echoes the point made by Mr Asquith about what would practicably be the working life of the Parliament. Many commentators—politicians and the public—would argue that Governments can be too short term in their planning and decision-making, a point made by the noble Lord, Lord Butler. Many major decisions and investments often take a significant time for their consequences to appear. We want—I hope there is a consensus in the country that people also want—to encourage future Governments to take that longer-term view rather than always to be looking for the short-term advantage, be that from being able to pick the date of the election or shortening the length of the Parliament.

[Lord Wills]

The noble and learned Lord said earlier that he was not quite sure what the high principles were that are at stake here. He has just set out one of them—the interest of stability and good government. The noble Lord, Lord Butler, also made the case for this. Against that has to be traded the principle of accountability, which has informed a lot of the remarks on this side of the House. The noble and learned Lord has just referred to what the British public might want. The noble Lord, Lord Butler, also referred to this. Why precisely have the Government taken so few steps to consult the British public on this? There is no Green Paper or White Paper as far as I am aware, and no going out to the country to ask the British people how they think these respective principles of accountability and stability should be weighed in the Bill. Why have the Government not done this?

[Lord Wallace of Tankerness]

I take seriously the issue that somehow democratic accountability is being reduced. The noble Lord, Lord Grocott, made the point in speaking to his amendment on the first day of Committee—the noble and learned Lord, Lord Falconer of Thoroton, also expressed this view—that if we had had fixed-term, five-year Parliaments there would have been a reduced number of elections. I cannot accept that that automatically follows. Taking up the point of democratic accountability, the noble Lord, Lord Grocott, cannot ignore the possibility—or, more, the probability—that there would have been Parliaments that did not run their full term of five years. Perhaps February 1974 would have been an example, or October 1974, or the 1951 election.

My noble friend Lord Marks of Henley-on-Thames also indicated that it is important to put the ducks—as they were described by the noble Lord, Lord Grocott—in perspective. It is almost inevitable that during the past 65 years some Parliaments would not run their full course. You cannot say that every Parliament would automatically run the five years. Indeed, that is why we have the provisions in Clause 2 of the Bill.

[Baroness Armstrong of Hill Top]

The Minister seems to be making some of the points that I know colleagues have been anxious about. Governments and Parliament have to respond to what is going on in the outside world and with the electorate, so it is difficult to be absolutely precise in legislation as to when things should happen and be rigid about that. That is the objection of many people to the Bill. In a constitution which has evolved and which develops, the Government are trying to bring absolute certainty, when democracy does not bring certainty and should not be expected to. That is why we are having such interesting times in the Middle East at the moment.

[Lord Wallace of Tankerness]

The noble Baroness’s final point is a huge leap. As I explained at Second Reading—as did the noble Baroness, Lady Jay of Paddington—there is a spectrum between the complete flexibility that you have under the present system, which is subject to a maximum term, and the system in, I think, Norway, where there are quite rigid terms in which there is no way out if anything happens. There was a consensus that if we moved to fixed-term Parliaments, as I believe is right and as is proposed by the Bill, there should nevertheless be a mechanism to call an early election if certain circumstances arose. There was some degree of consensus on that. When we come to Clause 2, we will debate those mechanisms. I merely observe that the Constitution Committee thought that the mechanisms were fit for purpose in terms of what we are dealing with.

[Baroness Farrington of Ribbleton]

We have heard in this debate references to all former Prime Ministers using their judgment in their own party-political interests and that of their own futures. How do I explain to people outside that the present Prime Minister and Deputy Prime Minister, arriving on the figure of five years, were not doing the same thing?

18:30

[Lord Wallace of Tankerness]

My Lords, I think that one can readily do so, because five years was what this Parliament was elected for. If this legislation gets through, the Prime Minister will not be able to substitute another date or another judgment, unless there are other issues. He has put that date so far away that he cannot be accused of using it—

[Noble Lords]

Oh!

[Lord Wallace of Tankerness]

Well, he can be accused, because noble Lords opposite will accuse him. But any reasonable person would see that, in setting the basis for a fixed-term Parliament, one could not take account five years out of the possible political vicissitudes, waves and currents in the intervening five years. If this Bill becomes law, the Prime Minister will be locked in, as will any other Prime Minister in future.

I was going to make this point later, but this is an opportune time to make it. I thought that a large part of the noble and learned Lord’s argument was that this measure is the glue that holds the coalition together. However, unless I am mistaken—and I stand to be corrected if I am—the terms of his amendment would still leave standing the election to take place on 7 May 2015. The noble and learned Lord shakes his head.

[Lord Falconer of Thoroton]

I want to correct that, because it is certainly not my intention, which is to have four years, four years, four years and so on. It is certainly not to have five years and then four years. There may be an issue with the drafting, but this is intended to set four years as the term, so be under no illusion.

[Lord Wallace of Tankerness]

I am grateful for that clarification because I had interpreted his amendment as leaving 7 May 2015 to stand and that thereafter there would be four years. I am grateful to hear the noble and learned Lord say that that was not the intention, because that was going to be the answer that I gave to my noble friend Lord Cormack. I accept that it may well be an error in the drafting.

The point that I would make is that this Parliament was elected for a maximum of five years, so in moving to a fixed-term Parliament regime we are embodying that in the Bill—and then thereafter also to have five years. That is the point that I make to the noble Lord, Lord Butler. Of course it is right and it goes without saying that no Parliament can bind its successor. The noble Lord and others say that there is no need for this legislation, but what we are seeking to do is to have fixed-term Parliaments on into the future. Other Parliaments can repeal that, but obviously it would take primary legislation to repeal a system of fixed-term Parliaments. I would very much hope that, having established the principle of fixed-term Parliaments, in the same way as we have fixed terms for devolved Assemblies, for local government and for the European Parliament, fixed terms would become the norm.

I take the point made by my noble friends Lord Marks and Lord Rennard with regard to pre-legislative scrutiny. I have been at the receiving end of many complaints about the lack of such scrutiny. There is an issue about the first year of a Government, because when they come into office they want to get on and start dealing with things. One can readily imagine the criticism that would come from the Opposition if a Government were not doing anything. However, there has been a move over the years to having more pre-legislative scrutiny, which has the effect of increasing the workload on both Houses. It is not fanciful to imagine that, following the election in 2015, a Government of whatever colour will not be able to commence their first Session of legislation with more substantive Bills until there has been a considerable amount of pre-legislative scrutiny. So we are talking about the beginning of 2016 as the time when some key pieces of legislation are introduced, having properly been looked at beforehand.

The final year, whether the term is four years or five years, is always going to be one when those seeking re-election look to their constituencies. That would reduce by some way the effective time for legislation by a Government. My noble friend Lord Norton made the point in one of our debates on the first day in Committee that Governments might run out of steam in the fifth year. Allowing for pre-legislative scrutiny and knowing that there will be five years allows for the legislative programme to be planned more effectively. The fifth year, particularly if it is a full year, not one starting at the end of November with a wash-up in the middle of March, would then be used much more effectively.

I defer to the huge experience of the noble Lord, Lord Martin, as he was Speaker of the other place and has an understanding of the parliamentary process. However, the final year, be it the fifth or the fourth year, would inevitably be one when the shadow of the coming election loomed. I also point out that my understanding is—although I may be corrected—that now Thursday debates in the other place are very often chosen by a Back-Bench Committee and that the Government have given power to the Back-Bench Committee to determine the subject matter for debate. I would be interested to know how many Divisions there have been on Thursdays in the first Session of a Parliament, as the noble Lord made the point about how few there were in the fifth Session. That is another measure that this Government have taken to put more power in the hands of Parliament rather than the Executive.

[Lord Martin of Springburn]

I cannot speak for what is going on in the other place at the moment. However, if my memory serves me correctly, the Minister followed Jo Grimond into the House of Commons in 1983, so he will appreciate as a former Scottish Member that on a Thursday there were votes more often than not, because we had to take the sleeper home. The other thing is that the Minister has had more experience of four-year Parliaments than five-year ones. In the last Session of a five-year Parliament, there were no votes whatever on the Floor of the House of Commons on a Thursday. That is what happened in the last Session of Parliament before the general election—there were no votes at all. The Minister has never had the experience of when that was the case.

[Lord Wallace of Tankerness]

I agree that it was never my experience. One thing that I am glad that I do not have responsibility for is how Parliament under the last Government was arranged in its final year. The point that I was making was that I believe that, be the term four or five years, the final year will be taken forward under the looming election. If one goes to four years and one has pre-legislative scrutiny, that cuts down the effective time for the Government to introduce their measures, let alone for their measures to be judged.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord was not in the Chamber for the whole debate. He knows that I normally give way. Perhaps I can just—

[Lord Foulkes of Cumnock]

The Minister is having difficulty finding his place. I am only trying to help him.

[Lord Wallace of Tankerness]

The noble Lord is always trying to help. I cannot remember who it was in the last debate—it may have been my noble friend Lord Brooke—who said that one should always beware of the help that comes from certain quarters.

One treats with caution foreign comparisons because, as the noble Lord, Lord Howarth, said, there are different circumstances. However, noble Lords mentioned the fact that there are fixed terms of four years in the United States. I happened to note, reading a copy of the Economist from earlier this month, some comment that for the Republican Party people have not yet been clearly identified as taking part in the primaries. That is just two years and two months since the inauguration of President Obama. It is in order for a Government who receive a mandate to be able to fulfil their programme over a planned period and I believe that five years is more likely to assist that than four years.

[Lord Foulkes of Cumnock]

That was not very convincing.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, will get an opportunity in future to intervene. I am sure that he will make a speech on another set of amendments, to which I shall be more than happy to reply.

At the moment, we have a system that allows up to a maximum of five years. In fact, three of the past five Parliaments have gone for five years. To remove that possibility requires a more compelling argument than we have heard. To move for four years would leave the effective working life of a Parliament and a Government sufficiently curtailed that they would not be able to implement their manifesto provisions. Therefore, I ask the House to support the idea of a five-year fixed term and ask the noble and learned Lord in those circumstances to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I will of course withdraw my amendment at the end of the debate because the purpose of debate at this stage was in order to probe and examine the arguments. The noble and learned Lord’s speech was well delivered but disappointing because it ultimately did not address the central argument being put against him: that the effect is to change our constitution, where there is a five-year maximum but the norm is around four years, to one where the norm becomes five years save in exceptional circumstances.

What everyone around the House was asking him was: why are you making this change if we have to make the judgment on what is in the best interests of good governance in this country? The Minister never answered that question at all but it is at the heart of the debate. This is not a party-political point. The reason that the noble and learned Lord cannot answer the question is that good old Mr Laws, in order to make it clear that the record should not be perverted in any way, has explained why it is five years. I do not know why the noble and learned Lord, who is an honourable man, is weaving and dodging on this. Just say, “They wouldn’t do a deal with us unless we agreed five years”. Do not try and make it something that it is not.

One of the other things that emerged so strongly from this very powerful debate was the sense that the more one talked about it, the more this House felt uneasy about being locked into this straitjacket that the Bill brings. I am in favour of fixed-term Parliaments, in the sense that I can see it to be appropriate that Parliament should in some way endorse what the Prime Minister has decided about an election. However, the Government are saying, “You have to choose between five years and four years”. I detected a real sense of unease around the House on this, but the Government are putting it that we have got to make this choice. Therefore, looking at the arguments, let us see which the best choice is. The noble and learned Lord himself said what the reason is that the Government are doing this.

Now, I cannot find my note. That would give my noble friend Lord Foulkes an opportunity to ask me a question, but I do not think that he wants to ask me any questions. I am sorry about that.

[Lord Foulkes of Cumnock]

My noble and learned friend is aware that I have just spent the last year of a four-year term in the Scottish Parliament. We happen to have been legislating right up to the very last day of that Parliament. There has been none of the kind of lassitude, or the feeling that the noble and learned Lord, Lord Wallace, described as an end-of-term—what word I am I looking for?

[Lord Howarth of Newport]

Fatigue.

[Lord Foulkes of Cumnock]

There has been none of that fatigue in that Parliament, which has been legislating right up to the wire, and no lame dog—

[Noble Lords]

Lame duck!

[Lord Foulkes of Cumnock]

Yes, I mean lame duck; I knew I would get it eventually. I can tell my noble and learned friend Lord Falconer that one of the architects of the four-year fixed-term Parliament in Scotland was the noble and learned Lord, Lord Wallace of Tankerness.

[Lord Falconer of Thoroton]

How grateful I am for all that. I know that the Minister will have listened to it all.

To go back to my point, the noble and learned Lord is making us choose between five and four years, but the arguments that his Government put forward are all on the accountability side. That is what makes the case being advanced so absurd. Again, in the evidence that the Deputy Prime Minister gave to the examination of the Bill, he said in justifying it that,

“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians”

How could he have been trying to justify the Bill as giving more accountability in a process that left the electorate with less ability to get rid of Governments, because there would be fewer general elections? What is so odd about the Government’s position is that they rely upon accountability and then propose something that produces less of it.

18:45

We heard a number of very impressive speeches. I particularly mention the speech that the noble and learned Lord, Lord Lloyd of Berwick, made. He went through the evidence and, with respect to everyone else, demolished the case in favour of a norm of five years. By my calculations there were five speeches, apart from that of the Minister, in favour of five years. I include in them that of the noble Lord, Lord Cormack, who I detected was in fact in favour of four years but said it should be five years for the first term. I respectfully suggest that we should not listen to his extremely well put siren song. To paraphrase the noble Lord, Lord Cormack, he was saying that we will just have to succumb to this awful argument that is being advanced. He is not nodding but I feel a sense coming across the Room on that. Do not be persuaded by that argument; if five years is wrong for the future, it is certainly wrong for the present.

The noble Lord, Lord Marks, described it as a point of principle. I remind noble Lords that the point he referred to was not on whether we should have fixed terms but on whether they should be of five years. To quote David Laws again, he says that Andrew Stunell,

“mentioned that our own policy was for four-year… Parliaments. … Osborne made the point that five-year parliaments were better … We made no objection to this”—

a point of principle lost in a second. What will their point of principle be tomorrow on it? I would not rely heavily on it.

[Lord Marks of Henley-on-Thames]

Is the noble and learned Lord, Lord Falconer, not prepared to concede that it may just be that, in spite of the frivolous tones in which he dismisses the arguments, my right honourable friend Mr Osborne may just have been right?

[Lord Falconer of Thoroton]

He might have been, but I would not rely on anybody whose point of principle—this one was adopted for years by the Liberal Democrats—evaporates in the course of one sentence in a negotiation. Say that it is a compromise or a deal done to benefit the country, but do not say that it is a point of principle which switched in the course of negotiations. That is the weakness of the argument, in my respectful submission, that the noble Lord, Lord Marks of Henley-on-Thames, was making.

The noble Lord, Lord Dobbs, made an impressive speech. I have never heard statistics more blatantly abused than by him. Perhaps I might draw attention to two particular points. First, he chose his starting point as October 1974 to ignore the February to October 1974 point, as he explained. Secondly, the difficulty with the fact that there was one election where the date was forced upon the Prime Minister by a Motion of no confidence was simply obliterated from his mind completely, so that he focused only on 1978. What he said was accurate in that, obviously, in choosing the date that they have for elections Prime Ministers are motivated by the chances of winning. That is the basic reason why one has a fixed-term Parliament but it does not really assist in determining between four and five years.

The speech made by the noble Lord, Lord Butler of Brockwell, was the most admirable. I say that genuinely, having worked with him. He was the Cabinet Secretary in 1997 when we took power and, having seen the talent of the noble Lord, I can genuinely understand how he would find the elected politicians quite wearisome to start with, particularly when they come into power with no experience of any sort of government. If I were him, I would have the least often elections as possible but, as people have made the point, this debate is just as much about accountability as about stable government. The reason that the Bill is being brought forward—this is the Government’s defence—is because the public are fed up with the politicians and want more accountability and more mechanisms to have control over them. The idea that you do that by extending the length of a Parliament, which is the effect of this, seems, with the greatest respect, to be nonsense. Nothing could be better designed to reduce confidence in government than the disingenuous explanations that have been put forward for the Fixed-term Parliaments Bill in the course of this debate. I will withdraw my amendment, but it will be back. I beg leave to withdraw the amendment.

[Lord Butler of Brockwell]

Before the noble and learned Lord sits down, since he had a go at me, can he quote one piece of evidence that the public generally want four-year elections?

[Lord Falconer of Thoroton]

Can the noble Lord quote one bit of evidence in favour of five years? I suspect that the public have no view on whether it should be four years or five; it is for us to judge.

[Lord Lloyd of Berwick]

I shall answer on the noble and learned Lord’s behalf. The evidence given to the Power commission was clearly in favour of more elections rather than fewer, not more than four years apart.

[The Deputy Chairman of Committees (Baroness Pitkeathley)]

My Lords, I remind you that the amendment is being withdrawn.

Amendment 11 withdrawn.

Amendments 12 and 13 not moved.

Amendment 14

Moved by

[Lord Howarth of Newport]

14: Clause 1, page 1, line 8, at end insert “except if an early parliamentary general election has occurred under section 2”

[Lord Howarth of Newport]

My Lords, the effect of my amendment would be to remove the provision for “resetting the clock”, as the phrase goes. If the amendment were incorporated into the Bill, and were there to be an early general election under either of the two provisions in Clause 2, that early general election would not be followed by a new full fixed term of the subsequent Parliament. Only the balance of the term left over from the previous Parliament would be served by the new Parliament, and a general election would take place at the end of five years—or, if at Report we adopt a four-year fixed term, at the end of four years—as established before the early general election took place.

The provision for resetting the clock is an important element in the Bill and we should have the opportunity to think about it in Committee. I understand that in Sweden, if an early general election is called, the electoral cycle none the less remains unaltered; they have the provision that I am proposing in the Bill. Of course, Parliament legislated that there should be four-year fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. That legislation provides for the possibility of an exceptional early election but does not provide that the clock is reset in Scotland, Wales or Northern Ireland, and one might say that sauce for the goose should be sauce for the gander.

If we are to have fixed-term Parliaments, why do we not have genuine fixed terms? That would enable the benefit of the discipline of fixed terms to be fully experienced and everyone would know where they stood. It would remove the incentive for a Government to contrive an early general election by, for example, engineering a vote of no confidence in themselves. The requirement would be less significant if in due course the House approves one of the amendments that provides that only the Leader of the Opposition may table a Motion of no confidence, but without that amendment we must recognise that there is a possibility, and it could be an attractive one, for the Government to engineer such a Motion in order to achieve an early general election. It would discourage the parties from colluding to take advantage of the two-thirds provision for an early general election, and would lead to the benefits of full five-year terms being more surely secured, as no doubt the noble Lords, Lord Armstrong of Ilminster and Lord Butler of Brockwell, would wish. It would keep the rhythm of the boundary reviews in sync with the electoral cycle, the importance of which the noble Lord, Lord Rennard, stressed in our previous debate.

When Mr Harper, the Minister, gave evidence to your Lordships’ Constitution Committee, he was rather equivocal on this point—he simply said that it was a judgment issue whether or not the provision for resetting the clock should be built into the legislation. He said,

“on balance we have taken the view that resetting the clock is the right one”—

that is, the right decision. Once again, as with the issue of judgment as to whether the fixed term should be for four years or five, the coalition’s judgments just happen to favour its own interests in staying in office. Again, I ask the Minister whether the Government have any better reason for having incorporated the provision for resetting the clock in the event of an exceptional early general election.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth, for the amendment. I was initially puzzled about its effect, which would be that it would provide that the next scheduled election was not held following an early general election under Clause 2. This gives me an opportunity to say something about subsections (3) and (4), as he has indicated that with this amendment he is seeking to ensure that the clock is not reset. His closing remarks indicated that this is a matter not of high principle but of judgment.

Subsections (3) and (4) of the clause provide that, where an early election occurs, the polling date for the next election will be the first Thursday in May in the fifth year of Parliament, unless the early election falls on a date before the first Thursday in May, in which case the length of the ensuing Parliament will be calculated as four years from the next first Thursday in May. That will deliver certainty as to when the next election will be, but—this is a crucial point—it also gives the incoming Government as close to a five-year term as possible. It eliminates the need for the electorate to return to the polls in quick succession, as the clock is effectively reset.

The Constitution Committee examined this aspect of the Bill. In its report it concluded that if there is an early general election, a Government elected at that poll should have a full term, or as near a full term as possible, in which to develop their policies and take their legislative programme through Parliament.

Some noble Lords may nevertheless have the concerns expressed by the noble Lord about the term of the Parliament after an early election. I know that some consider that it would be preferable for an early election not to affect the date of the ordinarily scheduled election, but that could well mean that a Parliament was given only a relatively short period of time. It may be that a Government would be elected with a substantial majority, and it would be difficult to explain to an electorate in these circumstances why it would be necessary to return so quickly when it might appear that a Government had been elected relatively recently with a mandate. They might be surprised and somewhat confused by that approach.

Not to allow an incoming Government to serve a full term would lead to a system with potentially two types of Government: those entitled to a full term to implement their policies, and those who would have to make do with the time left to them before the next scheduled election. That could also alter the nature of the elections themselves. Why should the mandate provided at one election be any different from the mandate provided at another?

I note the points made about the devolved Administrations in both Scotland and Wales. There is a difference; I think that the Northern Ireland Assembly is much more akin to what is proposed in the Bill. It is also the case that, given the proportional systems that are in place for elections to the Scottish Parliament and the Welsh Assembly, it is unlikely that you are going to get a Government elected with a large single-party mandate. If a party had not been elected with such a mandate, people would not think it so odd that it did not have a full term.

We gave consideration to this matter, but the balance comes down in favour of resetting the clock. I am grateful to the noble Lord for his amendment. It has been an opportunity for us to air this important aspect of the Bill. I hope that he will agree that there is merit in resetting the clock and, on that basis, will withdraw his amendment.

[Lord Howarth of Newport]

I am grateful to the Minister for explaining the Government’s case slightly more fully than the debate at Second Reading gave him the opportunity to do. After all the excitement of the previous debate, the House has not been particularly zestful about embarking on an exhaustive debate on this topic, but this provision in the Bill is significant and it is right that the House has received the explanation that the Minister has given.

If my amendments were incorporated, however, they would provide greater certainty. The Minister seemed to suggest that there would be greater certainty if we had a resetting of the clock. There would be greater certainty about the duration of a Parliament if we did not have that provision, but I do not want to quibble. I also accept his point about proportional representation making a difference. I am grateful to him for correcting my appreciation of the position in Northern Ireland.

I agree that, on balance, it is better to include the provision to reset the clock. One could make a reasonable case for not including that provision, or for not applying it, if the early general election were to occur in the first half of a fixed term of Parliament. It might be accepted that, if there was more than half of the fixed term still to go, it would be sufficient and the benefits of discouraging early elections would be felt. However, I certainly agree that if there were an early general election later in the Parliament, it would not make sense not to start a new fixed term. If we were to elect a new Government, they would need a decent span of time in which to govern. I also do not think that the need to have two general elections in rapid succession would be well received by voters if this was the only reason why there had to be another election. I am glad that we have been able to look at this issue and beg leave to withdraw the amendment.

Amendment 14 withdrawn.

19:00

Amendment 14A

Moved by

[Baroness Hayter of Kentish Town]

14A: Clause 1, page 1, line 8, at end insert “unless this date coincides with an election to a reformed House of Lords”

[Baroness Hayter of Kentish Town]

My Lords, this amendment would mean that an election to the other place could not take place on the same day as an election to this House. The Political and Constitutional Reform Committee in the other place suggested that the Fixed-term Parliaments Bill should be discussed with the draft Bill on reforming the House of Lords so that the two fundamental constitutional issues could be considered alongside each other. Indeed, that somewhat wise committee noted:

“Elections to a reformed House of Lords may well prove a further complicating element”.

Let us pause for a moment to see what considerations and complications might arise. There are two assumptions. The first is that the elections to the other place and to your Lordships’ reformed House would take place on the same day. If that is the correct assumption, I assume that the elections to this House would also be for the same five-year fixed term—if that, rather than a term of four years, is accepted. One has to assume that the term would be shortened should an election be triggered in the other House. In the mean time, what should happen? Will Members of this House be able to resign, for example, to fight a seat in the Commons? Maybe they will be able to resign from this House, having been elected here, for any other reasons via—presumably—the equivalent of the Chiltern Hundreds. If so, what if the following by-elections to this House changed the composition of this House so that the Government in the Commons could no longer get their programme through this House but were unable to call an election in the other place because that is not allowed for in this Bill?

The second assumption is that elections to the two Houses would take place on different days. It is interesting then to ask the question: for how long would Members elected to this House sit and would that be for a fixed term, regardless of what elections were to take place in the other place? What will be the gap between the general elections in which people are elected to the two Houses? On the assumption that they are held on different days, halfway through a Commons parliamentary term your Lordships’ House could change hands so that there was stalemate, but with the upper House perhaps claiming the legitimacy of a fresh mandate and—if elected by proportional representation—a more representative mandate. If this House claimed a fresh mandate in light of current affairs, where would that leave the Commons—unable to challenge it or to refresh itself by virtue of a new election and mandate? Could the equivalent of a no-confidence vote in this House then trigger a response in the other House, to enable it to call an election?

It is worth recalling that our Select Committee on the Constitution noted that, in regard to the triggering of an early general election for the Commons, the Bill should contain a form of safety valve in case the Government lost,

“the confidence of the Commons or where a political or economic crisis … affected the country”.

However, either of those, should they happen, might be felt most quickly in your Lordships’ House—should an election here come swiftly after, or even during, such a crisis—and change its composition so that this House felt it more truly reflected the current views of voters. The new elected House might then almost make things ungovernable if it felt that it had to restrain the Commons from action that the electorate had demonstrated would displease it.

These are exactly the sort of questions that will in due course be debated with regard to the plans for this Chamber. However, it seems odd that we will entrench the date for the elections to one part of Parliament without any reference to elections to the other part. Perhaps, therefore, at the very least, the Minister will simply clarify whether the first tranche of the elections to this place is also envisaged for 7 May 2015, and the next tranche for May 2020. If not, what are the ideas about the harmony of the two Chambers, given the provisions of the Bill? I beg to move.

[Lord Cormack]

My Lords, the noble Baroness has done us a real favour in introducing her amendment. It is a mischievous one, as she knows, but she has brought before us a subject that may come again. Personally, I hope it does not. As one who believes strongly in the virtue and value of a non-elected second Chamber, I hope that this Chamber will not be abolished and replaced by another. The noble Baroness has indicated the sort of things that could happen if there were two elected Chambers. There is the challenge over which is the more legitimate, and the challenge as to whether you can possibly—even though you may wish to—retain the supremacy of the other place if a second Chamber here is elected. Many of us believe that you cannot. Many of us believe that it is far simpler, better and less ambiguous to have one mandate held by one House, rather than a mandate divided between two.

It will be interesting to see whether my noble and learned friend the Minister can give us some of the answers that the noble Baroness sought. He ought to reflect, as should others in government, on the wise words of Ernest Bevin, one of the greatest Foreign Secretaries that our country has had in the past century. Talking of some political problem, he said:

“If you open that Pandora’s box, you never know what Trojan horses will jump out”.

I urge the wisdom of those words on my noble and learned friend before he replies.

[Lord Falconer of Thoroton]

I agree with the noble Lord, Lord Cormack: we are grateful to my noble friend Lady Hayter for raising these issues. It is important to emphasise that the Government have put forward these proposals for constitutional reform so that they are all part of a package. The three parts of the package are the Parliamentary Voting System and Constituencies Bill, the Fixed-term Parliaments Bill and the House of Lords Reform Bill. It is important for the noble and learned Lord to give at least some answers to what my noble friend Lady Hayter has said, but there is a more important underlying point. At Second Reading, the noble Lord, Lord Rennard, said to my noble friend Lord Rooker, “Oh, you can’t say that, because we voted for the Parliamentary Voting System and Constituencies Bill on the basis that it is a five-year fixed term”. I very much hope that we will not hear any more of that sort of talk from the Government, because they were given the opportunity to put the Fixed-term Parliaments Bill together—

[Lord Rennard]

My Lords—

[Lord Falconer of Thoroton]

I am not going to give way, if you do not mind. As I say, the Government were given the opportunity to put these things together but they did not take it. It seems to me that the consequence of not taking that opportunity is that when Parliament debates these issues again on the Fixed-term Parliaments Bill or on Lords reform, we will not regard ourselves as bound by the previous decisions that have been made—for example, we might conclude that four years was better than five for a fixed-term Parliament—because the Government explicitly refused the opportunity to put these constitutional reforms together despite the fact that they were urged to do so not just by the Opposition but by the cross-party constitutional committees in both Houses of Parliament.

I shall be interested to hear the noble and learned Lord’s view on how we deal with possible inconsistencies between one of the Government’s constitutional reform package Bills and another. Presumably, that is done by amending the later Bill when we see what the right answer is. I now give way to the noble Lord, Lord Rennard.

[Lord Rennard]

I wonder whether the noble and learned Lord is being consistent in his arguments. There seemed to be a lot of criticism of the fact that in previous legislation two items were put together—the voting referendum and the constituency boundaries. Now he is suggesting that the third item—this Bill—and House of Lords reform should all be put in the same package. I do not understand his argument. I was simply suggesting that when we have decided things we should try to be consistent about them.

[Lord Falconer of Thoroton]

As regards the AV referendum and the parliamentary boundaries, we saw what was proposed in relation to both of those. The issue was whether they both needed to be included in one Bill. We knew what the proposals were.

19:15

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness, Lady Hayter, for this interesting amendment, which has given rise to a number of interesting questions. As the Committee well knows, a cross-party committee has been considering reform of this House and the Government intend to publish a draft Bill shortly. I could not possibly comment on what will be in that draft Bill as it will be subject to pre-legislative scrutiny. We hope that that will be done by a Joint Committee of both Houses. I am sure that some of the important issues which the noble Baroness raised will be brought before that Joint Committee. My noble friend the Leader of the House answered questions on some of the issues she raised regarding the relative standing of both Houses last week, if not the week before. However, I do not think that it is appropriate to deal with them in the context of this Bill.

[Lord Bach]

The noble and learned Lord says that that draft Bill will be subject to pre-legislative scrutiny. That is great to hear, but why was that not the case with this Bill?

[Lord Wallace of Tankerness]

My Lords, we have gone down that path many times and have indicated that we intended this should be a first-term Bill. I have made it very clear on a number of occasions when this has been raised that we believed it was important that at a very early point in this Parliament we should establish that it would run to a particular fixed date, and that we wanted to ensure the principle of fixed-term Parliaments. However, no one can say that there has not been ample opportunity, in the length of time which I described in responding to an earlier amendment, for both Houses to have plenty of opportunity to look at a relatively short Bill.

[Lord Cormack]

My noble and learned friend talked about the scrutiny committee of both Houses. Can he give an absolute assurance that on that committee there will be Members who do not believe in a fully or partially elected House so that it can reflect the wide range of opinions in both Houses of Parliament?

[Lord Wallace of Tankerness]

My Lords, I am in no way trying to dismiss the suggestion that my noble friend makes. I am not in a position to indicate how that committee will be established. No doubt there will be nomination procedures from both Houses. I suspect that it would be rather odd if a contrary view or two was not expressed on it, but I am not in a position to indicate that ahead of the Bill being published. I assure the Committee that the timings of elections to the reformed second Chamber has been considered carefully by the Government and the proposals will be in the draft Bill.

I certainly take my noble friend’s point that, having spent most of the time on the Parliamentary Voting System and Constituencies Bill listening to the Opposition saying that the Bill should be split, it is somewhat intriguing then to be told that not only should it be split but that two other Bills should be added on to it. I do not think that the experience of the CRAG Bill in the previous Parliament, where numerous constitutional principles were put together under the one heading of a constitutional reform Bill, was necessarily the most satisfactory experience.

The noble Baroness mentioned entrenching the election date for one House while the other was pending. At least it will be known when this Bill has got on to the statute book what Parliament has agreed with regard to a fixed-term election. If this Bill had not come forward and we did not have fixed-term Parliaments, an election to the other place could have happened at any time. The potential for some of the confusion and concerns to which the noble Baroness referred would have been multiplied many times over if it was proposed that this House should have a fixed term while the other place could have elections as and when the Prime Minister of the day thought best to call them. Therefore, when the Joint Committee of both Houses considers the draft Bill, it will do so in the knowledge of what Parliament has passed in the context of fixed-term Parliaments. This Bill deals with dates of the general election to the other place. These should be set before we consider the dates of elections to the reformed second Chamber. There will be ample opportunity to discuss elections to this Chamber when the Bill is published in draft form and, I suspect, plenty of further opportunities to discuss it when the reality of the Bill comes before the other place and your Lordships' House. I invite the noble Baroness to withdraw the amendment.

[Baroness Hayter of Kentish Town]

I thank the Minister and the other speakers for their contributions. The Minister said that it was an interesting amendment, rather like the Chinese proverb, “May you live in interesting times”. I am not sure about the noble Lord, Lord Cormack, calling it mischievous. It was seriously meant because it is about a package of reforms, as my noble and learned friend said. I do not think that means putting them in one Bill but rather having a real idea of where we are taking our constitution before we tackle any one bit of it, so that we see it in the round. Nevertheless, given the comments that have been made, I beg leave to withdraw the amendment.

Amendment 14A withdrawn.

Amendment 15

Moved by

[Lord Grocott]

15: Clause 1, page 1, line 8, at end insert—
“( ) Each five-year parliament shall include a minimum of five parliamentary sessions.”

[Lord Grocott]

My Lords, I am very conscious of the fact that we probably have only about 10 minutes before we ought to break for dinner. These things fall as they do, but I hope that I may be presumptuous enough to suggest that this is an important amendment. It is a simple one and says straightforwardly that if we are to go down the road of fixed-term Parliaments over five years—I am opposed to that—there is a very strong case indeed for saying that there should be annual Sessions of Parliament, and that it should not be within the remit of government, having fixed the Parliament, then to be allowed absolute flexibility over the length of Sessions.

I perhaps would not have thought it necessary to put this amendment down and in effect legislate for the Session of a Parliament were it not for the very bad experience of the current practice whereby, to my amazement, last September the Government announced that the first Session of this Parliament would last for two years. So far as I know, this was done without any consultation, although the noble and learned Lord, Lord Wallace, can correct me on that. That was an extraordinary unilateral decision to make. The only defences of it that I have heard are, “This is the first Session, so we have a lot to do”, or the rather feeble defence that it is only five months longer than the first Sessions of Parliament have often been in the past. Speaking as a former Chief Whip, I can say only that if you had said to me, “It is only five months”, five months longer for a Session of Parliament for any Government is absolute gold dust. It is a discipline on Governments who are putting in their legislative programme to do that within a 12-month period. I remind the House of the current situation before I explain why it is essential, when faced with this fixed-term Parliament, that we legislate to ensure that Sessions are at least annual.

At present, Governments normally decide around September each year—perhaps a little earlier—the date of the Queen’s Speech. I do not know the details of the negotiations between No. 10 and the palace, but I know, as the Committee knows, that we all understand that normally there will be a Queen’s Speech in November each year. Occasionally, it has drifted into December. That is excepting the Queen’s Speeches that come after general elections, which can come at any time—although they cannot come at any time if the Bill becomes an Act. We know that Governments work within a parameter, which is usually some time in November. There is the usual argy-bargy whereby if a Queen’s Speech comes too early, it is because the Government do not have enough legislation and are running out of steam; or if the Queen’s Speech comes too late it is because the Government have lost control of their legislative programme. However, the parameter means that there is a discipline that gives a big advantage to the Opposition—because parliamentary time is valuable, as we know only too well—and the Government really have to get their act together, manage their programme, and finish it within the 12-month period. To extend unilaterally the normal length of a Session is an abuse and is certainly to the massive advantage of the Government.

I do not know whether I should say this in anger or in envy, because anyone involved in managing a Government’s legislative programme every year has the nightmare period of October and early November when you are trying to fit a quart into a pint pot, you know that you have to do it and that you have to observe the conventional gaps between the stages of Bills—or at least you used to have to observe them; this Government do not have a good record on that aspect of our constitution. However, you know that there is a discipline within which you have to work. Moreover, both Houses—the Commons and the Lords—have recognised this process as important. Both Houses have procedures to enable Bills to be carried over. We have all been familiar with the debates that allow, in exceptional circumstances, individual Bills to follow a recognised constitutional procedure—if I may put it as grandly as that. Motions have to be passed and so on. There is a recognition that either House of Parliament can breach the annual sessional understanding only if the Government obey certain rules in relation to individual Bills and do not do that as regards their overall programme.

I do not know whether I should be angry or envious about the fact that the Government have unilaterally given us a two-year Session. I just wish that I had thought of it. When we were in government I wish that I could have thought, “Blimey, I don’t need to worry about getting these Bills through in 12 months; let’s just postpone the Queen’s Speech for another year or however long—whenever it is convenient to the Government to decide when the Queen’s Speech should take place”. Given that we have had all this hyperbole from the noble and learned Lord, Lord Wallace, and others—not very convincingly—about the Government or the Prime Minister giving away power regarding fixed-term Parliaments, I hope that he will acknowledge, if he believes that argument, that they should give away the power of unilaterally being able to decide when a new Session of Parliament should begin.

By having this two-year Session, the Government have breached an important convention of both Houses. It is reasonable for those of us who are concerned about this to say that we now need to enshrine the proposal in my amendment in legislation. I cannot think of any good argument against, if you know when general elections are going to be, why you should not also determine when the Sessions should be. I beg to move.

[Lord Cormack]

My Lords, briefly, I agree with what the noble Lord, Lord Grocott, said. I very much hope that my noble and learned friend will be positive in response. There is nothing that we can do about this extended Session. It will last until May next year. I regret that. Sessions should last as near as possible for a year, and if we are to move to fixed-term Parliaments, the obvious thing is to have the state opening for each Session in the May of each year. I hope that my noble and learned friend will give me some comfort when he responds.

[Lord McAvoy]

My Lords, I rise briefly in support of the principle in my noble friend’s amendment, because it would bring a discipline into what has happened ever since this Government took power, which has been the continual tampering with the constitution for petty party-political advantage. That is a fact of life. I do not like to be provocative, but I am trying to find the words that would best describe this matter. I have mulled over words such as “sleazy”, but if I continued, my words would probably be unparliamentary, and I would not wish to be responsible for any more damage to the office furniture. However, as a former business manager in the Commons, I consider that we are dealing with a completely foolhardy approach to the constitution. We have conventions here, but ever since the advent of this coalition, particularly for the party advantage of one of the partners in the coalition, the majority party opposite is being driven along to stay in power. Precedents are being set that are damaging to the conventions of this House, the other House and the constitution. I appeal to Conservative Members of the coalition, such as the noble Lord, Lord Cormack, whose comments are welcome, that it is past the time that they should put a stop to the roughshod treatment of the constitution.

[Lord Falconer of Thoroton]

My Lords, I support what my noble friend Lord McAvoy said; I support the amendment of my noble friend Lord Grocott; and I support the approach taken by the noble Lord, Lord Cormack. It is worrying when everyone who knows anything about this says—and I do not include myself; I refer to three distinguished ex-Members of the other place—that the effect of there being no control over the Government on how long a Session lasts means that they can play fast and loose with however long it takes them to get the legislation that they want through Parliament. That weakens the power of Parliament. A lot of the constitutional rhetoric of this Government was on strengthening the power of Parliament.

I wish to ask a specific question, because it would appear that the Government understood this position on 25 May 2010, when the Deputy Leader of the House of Commons said in relation to the Bill:

“There is a strong case for pre-legislative scrutiny, but I do not want to extend the consideration of this legislation into the following Session, because that would not be appropriate”.—[Official Report, Commons, 25/4/10; col. 152.]

He understood the importance of Sessions. He said that on 25 May 2010. Happily for him, on 13 September 2010, the Session was then extended until May 2012, thereby getting rid of the one problem that stood in the way of pre-legislative scrutiny. Can the noble and learned Lord specifically answer as to why the Deputy Leader of the House broke that promise? “Promise” may be overstating it. Perhaps the noble and learned Lord should characterise what the Deputy Leader meant. Was it wild musing as to what might happen? Why did he not go ahead with what he had said?

19:30

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Grocott, for his amendment, which would provide for a minimum of five parliamentary Sessions in every five-year Parliament. I have a lot of sympathy with the spirit of what is proposed, but I will explain why I do not think that it should be enshrined in statute. I accept that having five annual Sessions in a five-year Parliament makes considerable sense. Indeed, under this Bill is it likely that the Parliament elected in 2015 will have five Sessions. The only reason that this Parliament is likely to have four—I will deal with this in more detail in a moment—is the transition to fixed terms and spring state openings. It would not be appropriate to put the amendment into statute; the current arrangements should remain. As the noble Lord, Lord Grocott, recognised, even if the Bill did not exist, it would still be possible to change the length of a Session.

I will answer the point made by the noble and learned Lord, Lord Falconer. It was very obvious that the decision to move to spring 2012 was not taken in the early days of this Government. By the time the announcement was made in September, the Bill had already been published. I cannot remember the exact date; it must have been around the time the Bill got its Second Reading. I am being told that in fact it was the same day. That might explain why the Bill did not have pre-legislative scrutiny. I know that I have not answered this point to the satisfaction of the Opposition, who will come back to it time and time again. However, we wished to have this Bill in the first term. It was not in order to get this Bill through that we decided to extend the Session. It is very clear that the reason for the extension was that we wished to move to an annual Queen's Speech in May and therefore an adjustment was required.

We could have reduced the length of this Session, but to have done so half way through would have caused a number of difficulties. That is why it was decided, as a one-off, to extend this Session until spring 2012. There is nothing sinister in that. Most of our legislation would have been passed in any event. The noble Lord, Lord Grocott, indicated that there is provision for carry-over. I pause to reflect that the fact that this Session is longer may bring a ray of hope—with reference to the previous debate, I believe that hope was the last thing to come out of Pandora's box—to Members whose Private Members’ Bills are so often frustrated because there are not enough Fridays in the Session to get them through. To suggest that this is a sinister plot on the part of the Executive is grossly misplaced. The purpose is to get into a position where we can have annual Sessions that begin in May. It will be our intention thereafter to have Sessions that run from spring to spring.

It is not appropriate to enshrine this in statute because there may be a case where, if the Bill is enacted, an incumbent Government lost a vote of no confidence and a new Government was formed within 14 days. It is possible in such a scenario that it would be felt that the Session should come to an end and that there should be a new Queen's Speech. Nobody would think that that would be unreasonable in the circumstances. It might be very difficult then to fit in five Sessions. That is why it is better not to stipulate in statute that there should be five Sessions in any one Parliament. A Session might begin after an election in February and come to an end in May, which would not make much sense. It would have to be brought artificially to an end to ensure that the requirement of five Sessions was met.

Having annual May-to-May Sessions will ensure that the final Session of the Parliament is more likely to be much more meaningful and worth while than one which, for example, begins in late November and lasts until the wash-up in late March. The noble Baroness, Lady Armstrong, says, “We’ll see”, but nothing could be less exciting or satisfying than what we experienced in the wash-up last year when we tried to deal with so many Bills that had barely got anywhere. Parts of the Constitutional Reform and Governance Bill, which had had only a Second Reading in this House, were passed with only the briefest scrutiny. It had some pre-legislative scrutiny, but no scrutiny in this House. I hope that noble Lords would agree that at the end of the day actual legislative scrutiny is more important than pre-legislative scrutiny.

[Lord Bach]

It is best to have both; I quite agree. That Bill had enormous pre-legislative scrutiny, but should have had more legislative scrutiny. There, I have said it. Now perhaps the noble and learned Lord will admit that his Government, too, are in error. More importantly, they are passing legislation now, so they should learn from any mistakes that we may have made.

[Lord Wallace of Tankerness]

This legislation is having ample legislative scrutiny and I suspect that in times to come we will move towards having much more pre-legislative scrutiny. That is why I argue for five-year fixed terms; there will be more opportunity for pre-legislative scrutiny as well as legislative scrutiny. I simply make the point that to truncate one Session into two or three months would not be sensible. Future Sessions will last for only 12 months. What is happening in this Session is a one-off adjustment so we can get into the pattern of spring to spring Sessions that would fit the election timetable of fixed-term Parliaments with elections in May. For these reasons, I invite the noble Lord to withdraw his amendment.

[Lord Grocott]

My Lords, I do not know whether the noble and learned Lord, Lord Wallace, is getting tired or whether I am. He has ample reason for getting tired because he has been heroic as the only Minister dealing with this vital constitutional Bill. However, I simply did not understand what he said. We had a general election in May last year and he said that in order to adjust to the situation where we know the date of the next general election, which will be five years from last May, the length of this Session of Parliament had to be adjusted to accommodate that. I do not understand that argument.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for giving me an opportunity to explain it. It was clear from the comments made by the Deputy Leader of the other place in May of last year that the decision to extend the Session to spring 2012 was not made in the early days. The working assumption was that we would go forward as we normally do after an election in May and have the first Session running through to the following October or November. It is not giving away any state secrets to say that that was the assumption. We then considered whether it was better to move to a situation where, if we were going to have fixed-term Parliaments, the Sessions should run annually, May to May. An announcement was made in September, which would normally have been between a third and half way through the Session. There was an option to truncate the Session about now, but it was thought that the best thing to do was to go to next year. There is nothing sinister in that; we were totally open. However, this is a one-off change and from next year, Sessions will go from May to May. That is the right way to proceed. I hope the noble Lord will accept that there was nothing sinister in this, but that it was an adjustment made in-year, given that the original expectation was to go through until the autumn of this year.

[Lord Grocott]

I am not saying that it is sinister; I am just saying that it is illogical. If the Government decided in those five days in May that there were to be five-year fixed-term Parliaments, why was it not plain as a pikestaff that in normal circumstances that would mean five annual Sessions? No adjustment was required. A year would take you to the following May, then the May after that and so on. I do not need to go through it. With respect, it seems obvious to everyone in the House apart from the Minister that that is the logic of a five-year Parliament.

I am very grateful to noble Lords for their contributions, which have been 100 per cent on the side of those who agree with the amendment.

[Lord Wallace of Tankerness]

We did not, in those five days in May, think about moving from one year to one year to one year. That is the simple answer and I hope that the noble Lord will accept it at face value.

[Lord Grocott]

Of course I accept that and I shall not labour it further if the Minister assures me that the coalition was not going to tamper with that aspect of our constitution. However, I emphasise the sheer inconsistency of rejecting this amendment when the whole rationale—if there is one, although I doubt it as every day passes—of the Government’s comprehensive constitutional reform programme is to provide a degree of predictability and take away powers from the Executive. My amendment simply tests the Government’s sincerity and commitment to that by requiring them to correct their very inadequate and unsatisfactory decision unilaterally to make it much easier for the Government to legislate.

I fear that there is a tendency by the Minister—it is understandable when you are taking a complicated and important Bill such as this through the House on your own—to assume that, if any amendment is put down, particularly by the opposition Benches, the duty of the people in the Box is to find reasons for saying no to it. If the Minister were to put a cold towel over his head and think in as dispassionate a way as he is allowed—I do not mean “allowed” in any sense other than that this Government seem to be totally locked into their constitutional reform programmes, which do not seem to be thought out in a coherent way—he would come to the conclusion that, once the deal had been sealed between the Prime Minister and the Deputy Prime Minister, there would be no flexibility on that Bench to make any adjustments whatever.

Before I beg leave to withdraw the amendment, perhaps I may appeal to the Minister to tell those of a higher pay grade that this really is a sensible proposal, which, so far as we have tested the opinion of the Committee, has 100 per cent support from everyone but the Government, and that, if they are to be consistent in their principles, about which, as I said, I am not thrilled, they really ought to see the logic and sense of having fixed annual Sessions within five-year fixed Parliaments. With that, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 and 17 not moved.

House resumed. Committee to begin again not before 8.43 pm.

European Council Decision: EUC Report

Monday 21st March 2011 Lords Chamber

Motion to Approve

19:43

Moved By

[Lord Howell of Guildford]

That, in accordance with Section 6 of the European Union (Amendment) Act 2008, this House approves Her Majesty’s Government’s intention to support the adoption of draft European Council Decision EUC 33/10.

Relevant document: 10th Report from the European Union Committee.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, this Motion is a necessary part of the process leading to a treaty change required by the member states of the European Union in the eurozone. I shall explain the purpose of, and need for, the Motion in detail in a moment. However, at the outset I observe that it is very much in the United Kingdom’s national interest that this House, under the terms of the European Union (Amendment) Act 2008, which we all recall, should approve this Motion without amendment so that the Prime Minister may support the adoption of the draft European Council decision to amend Article 136 of the Treaty on the Functioning of the European Union at the European Council meeting scheduled for 24 and 25 March.

As the Leader of the House made clear in his Statement following the December European Council, no one should doubt that stability in the eurozone is important for the United Kingdom. A large proportion of our trade is with the eurozone and London is Europe’s international financial centre. It is because of this interrelationship that the UK’s financial institutions and companies, both big and small, have huge exposure to the banks and businesses based throughout the eurozone. Worsening stability is therefore a real threat to the UK economy, as I am sure all your Lordships appreciate.

In explaining the background, I begin by reminding the House of the conclusion drawn on this proposed treaty change by the European Union Sub-Committee on Economic and Financial Affairs and International Trade at its meeting on 1 February. In his letter to the Minister for Europe, the chairman of the Select Committee on the European Union said:

“We fully support your view that it is in the UK’s interest to support a stable and prosperous Eurozone. Given that this Treaty amendment would not apply to, or have any financial risks for, the UK, we support your intention to vote in favour of this amendment. We have agreed to clear this document from scrutiny”.

From that background quotation I move to the reason why are we having this short debate this evening. First, Section 6 of the European Union (Amendment) Act, arising of course from the Lisbon treaty, requires that when a draft decision under the simplified revision procedure—that is, Article 48(6) of the treaty—is proposed, a Minister must introduce a Motion and have it passed by both Houses without amendment before the Prime Minister can signal his agreement to the adoption of that draft decision at a subsequent European Council. Secondly, if the House approves this Motion, it authorises the Prime Minister to agree to this draft decision and this draft decision alone at the European Council. Should there be any amendment to the draft decision at the European Council, the Prime Minister could not agree to it at the European Council without first coming back to another place and this House for additional approval. Therefore, the draft decision referred to in this Motion will be the version that is agreed at the European Council. There can be no other without the further approval of this House in a further debate such as the one that we are having tonight.

If the draft decision is adopted by the European Council under Article 48(6), all 27 member states must then also approve the treaty change in accordance with their respective constitutional requirements before the decision can enter into force. This means that the treaty amendment itself will not come into effect until the UK and all other member states approve or ratify the adopted decision.

However, if the European Union Bill, which has just been introduced to this House and will have its Second Reading tomorrow, becomes law, this treaty change will also be subject to Parliament’s approval by Act before the UK can ratify it. We have made it clear that we shall proceed in accordance with the provisions of that Bill. In other words, there will be a full further opportunity for your Lordships to debate this matter when the treaty change comes forward in due course for ratification, which under our new procedures will require the full processes of primary legislation. That is an important change from the position in the past.

I turn to how the proposed treaty change came about. As your Lordships will know, it originates from the need for a permanent mechanism to be established by the member states of the euro area to safeguard the financial stability of the euro area as a whole. That is an obvious need. In May last year, the European Union established two emergency instruments to respond to financial crises. The first is the European financial stability facility. This is a temporary facility established intergovernmentally by euro area member states to provide loans to euro area member states in difficulty. It is a limited fund and is due to end in June 2013. The second is the European financial stability mechanism, which the coalition Government, of whom I am a member, inherited from the previous Government. Under this mechanism, the Council can agree, by qualified majority, to the Commission providing assistance using money raised on the financial markets, backed by the EU budget. It therefore creates an indirect liability for the United Kingdom. That is a very important point.

Against the backdrop of continued uncertainty in financial markets, the members of the European Council agreed in December to amend Article 136 of the Treaty of the Functioning of the European Union to provide that member states of the eurozone may establish a permanent stability mechanism. This mechanism, the European stability mechanism or ESM, will provide a necessary means for dealing with cases that pose a risk to the financial stability of the euro area as a whole, so it is important to us given the extent of our trade with it. This is what we are dealing with tonight.

The details of how the ESM will operate are being discussed in Brussels. In accordance with the conclusions of the December European Council, member states whose currency is not the euro can be involved, on a voluntary basis, in finalising work on the design of the ESM, which will be established by intergovernmental arrangement among the eurozone member states. My colleagues at the Treasury are responsible for overseeing the UK input to these discussions.

I stress that although we are involved on a voluntary basis in the design of the mechanism—it is very much in our interest to be so—we cannot and will not be part of it. In fact, we could not be part of it unless we joined the euro area. As the whole House is aware, this Government will not join the euro and, if the EU Bill becomes law, any future Government who wished to do so could join only with parliamentary approval by Act of Parliament and the British people’s approval by referendum. I should like to reassure your Lordships that the proposed treaty change does not and will not transfer any competence or power from the United Kingdom to the European Union. As I said, this treaty change is in our national interests. Instability in the eurozone has direct implications for the UK and all the other economies in the single market and beyond.

On top of that, the Prime Minster negotiated successfully two important objectives. First, as the conclusions of the December European Council confirm—that is the so-called recitals—once the ESM is established to safeguard the stability of the euro area, Article 122(2), on which basis the old EFSM was established, will no longer be used for such purposes. Our liability for helping to bail out the euro area through European Union borrowing backed by the EU budget will cease. It is crucial to our interests that it does cease. Secondly, securing a tight budget for the future is our highest priority. At the last two European Councils, Britain led an alliance of member states in limiting the 2011 EU budget increase to 2.91 per cent, as your Lordships have already discussed and debated in this House. In moving forward, working alongside key partners such as France, Germany, the Netherlands and Finland, we are committed to a real-terms freeze in the EU budget from 2014 to 2020 and we have written to the President of the European Commission setting out our position.

Without this Motion this evening, the consequences would be serious and damaging for Britain. The Prime Minster would not be able to signal his support for the draft decision at the March European Council next week and the decision then could not be adopted, as like all other treaty changes it requires unanimity. This means that, if it failed, Britain would remain indirectly liable for eurozone bailouts through the EFSM, as it would not have been replaced by the ESM. By supporting the adoption of this treaty change at the March European Council, the UK will be supporting the members of the eurozone to establish a permanent mechanism, which will make clear the responsibilities of all the members of the eurozone to each other and to the overall stability of the euro area.

That means that we will ensure that our current indirect liability for eurozone bailouts comes to an end in 2013. As this new mechanism is established using the treaty provisions specific to members of the euro area, it will not apply to non-euro area member states and cannot confer any obligations on them. I hope that I have provided your Lordships with an explanation of the mechanisms, which I agree are not simple, and the purposes for passing this Motion tonight. I beg to move.

[Lord Harrison]

My Lords, the importance of this debate is that the decisions will be made by the European Council at the end of this week, on 24 and 25 March. I speak as the chair of the Economic and Financial Affairs and International Trade Sub-Committee, which has had correspondence with the Government on this. The matter has also gone to your Lordships’ European Union Select Committee for scrutiny. It was thought appropriate in the light of the importance of this debate that this report should be provided on amending Article 136 of the Treaty of the Functioning of the European Union in order to help colleagues to come to a decision.

The noble Lord has rightly pointed out the origins of the problem and the creation of a response to the financial crisis brought about by our Greek colleagues. That relates to the establishment of the European financial stability facility, which is agreed by member states within the eurozone, and the EFSM, the separate mechanism that draws on the European Union budget and, therefore, involves the United Kingdom.

As the Minister said, the matter was raised under Article 122(2) of the European Union treaty, which points out that, in exceptional circumstances that are beyond the control of any one member state, action can be taken to help out that member state. We wrote to the Government and asked whether they felt that that conflicted with Article 125, which is the no-bailout clause, but the Government replied to us insisting that the EFSM provided loans not bailouts and that, therefore, there is a distinction. Incidentally, we have also drawn on the report, which we hope will be cleared by the Select Committee tomorrow, on EU economic governance. Within that report we interviewed many experts on these matters in looking at the basis for the decisions made. There is agreement that this was the right and proper way forward.

We arrive at a situation where a new permanent crisis mechanism has to be created at the end of 2013 when the mechanism and the facility are abandoned. On 16 and 17 December 2010, the European Council decided on the new mechanism, which is to be called the European stability mechanism. It is also the case that Article 122(2), the exceptional circumstances clause, is no longer to be used. Instead—I think that it is true to say that there was pressure from Chancellor Merkel of Germany, who wanted not to fall foul of the German constitutional court—there was insistence on having a treaty change and hence an amendment to Article 136 as printed in the document that we have submitted and which is being proposed now. The process is that, under Article 48(6) of the European Union treaty, amendments to part 3 of the Treaty of the Functioning of the European Union, which includes Article 136, the subject of the debate this evening, can be appropriate. Therefore, as the Minister has explained, we have the simplified revision procedure as the mechanism for achieving that. Perhaps we should say that this is the first use of that procedure.

20:00

The amendment was agreed in the European Council. The effect of the simplified procedure is that an intergovernmental conference, a convention of national parliaments or a convention of Governments, the European Parliament and the European Central Bank is not convened. Instead, it requires that the European Parliament and the Commission are consulted and that, because of the exceptional circumstances, the European Central Bank is also consulted. As the Minister explained, that has to be ratified by all member states. Hence we have a separate Motion in each House.

Mention has been made of tomorrow’s Second Reading of the EU Bill. It is perhaps unusual for us to look prospectively as far as it touches on this matter, but it is probably right to do so. We have to attain parliamentary approval for voting on treaty amendments. Then we have to ask whether a referendum to be ratified by the British people would follow. We think that the amendment of Article 136 does not fall foul of that provision, under Clause 4. The Government, as is their obligation, have stated that it does not apply. The Government’s Explanatory Memorandum also points out that the new mechanism will not apply to non-euro states. The amendment does not involve an increase of the European Union’s competences, as we understand it. The amendment therefore provides for action solely in the euro area. The mechanism is set up by euro members and hence separates the United Kingdom from involvement.

It is a matter of urgency to support the setting up of the European stability mechanism, which must be ratified by all member states. The Prime Minister and the Foreign Secretary both said at the outset of their tenure that the viability and support of the euro was important for Britain’s financial future. That, too, must be underlined. I hope that the short document produced by the European Union Select Committee, on advice from Sub-Committee A, has been useful for this debate.

[Lord Lamont of Lerwick]

My Lords, I thank my right honourable friend for introducing the measure before the House. I accept 100 per cent that the provisions do not apply to us. I entirely support the Government's attitude that they should not in any way obstruct the setting up of the ESM. I thank the noble Lord, Lord Harrison, for the helpful report published by the Select Committee. I just have two brief questions for my right honourable friend.

[Noble Lords]

Noble friend.

[Lord Lamont of Lerwick]

My noble friend, my right honourable and noble friend, as he always is and always will be.

As the noble Lord, Lord Harrison, mentioned, at paragraph 6 of the report the Select Committee commented—admittedly, it was talking about the EFSM rather than the ESM—that it did not conflict with the no-bailout provisions in the original Maastricht treaty, now incorporated in the TFEU. Of course, I know only what I read in the report about how it was argued by witnesses before the committee that that did not constitute a bailout because the EFSM did not assume responsibility for the debts. The same arguments must arise with the ESM.

Does the Minister seriously, with a straight face, believe that that does not constitute an infringement of the “no bailout” provisions? It seems extraordinary to say that just because loans are being extended, if there is a rescheduling of debts, that does not constitute a bailout. I do not think that that is what the Germans had in mind at the time, when they argued against bailouts and for a “no bailout” provision in the Maastricht Treaty. Bear in mind that the new facility, the ESM, will, like the EFSM, issue securities which will be guaranteed by the member Governments of the EU. I know that this is a sideshow for our Government, but it is extraordinary to describe that as not conflicting with the “no bailout” provisions.

The second question I want to ask my right honourable and noble friend is more directly germane to the UK. When the German Government agreed to support the ESM, part of the package they insisted on, from what I read in the newspapers, was something called the competitiveness pact, which covered a whole range of policies including: the indexation of wages as applied to countries such as Belgium; the retirement age; and having a uniform system of corporate tax. All that was put forward as part of a quid pro quo that the German Government wanted in exchange for agreeing to the ESM, to which there was some resistance on the part of the German public.

As my right honourable and noble friend may have noticed, fears have been raised in the Economist magazine that those provisions could have an impact wider than the eurozone and might affect us and other non-euro members of the EU. I entirely support the Government’s policy of allowing what is happening with the establishment of the ESM to go ahead; for us to have nothing to do with it but to allow it to go ahead; but I am concerned by the points made by the Economist about how that could spill over into measures that would have an effect on competition and the competitiveness of the rest of the EU. The magazine argued that the competitiveness of the whole might be undermined by protectionist measures taken under the rubric of the competitiveness pact. I hope that my right honourable and noble friend follows my point. I would like to be assured that that is not the case. I would like to be told how the competitiveness pact will be given legislative effect and how we will ensure that it does not have adverse repercussions on us, and other countries not in the eurozone.

[Lord Pearson of Rannoch]

My Lords, it will come as no surprise to your Lordships that I rise to speak against the Motion. The heart of the Government's case is that it is in our national interest to help the countries in the eurozone, so we should not withhold our consent to the proposed European stability mechanism. To justify that, the Government even trot out the tired old propaganda about half of our trade being with the eurozone, which is irrelevant nonsense, as I have often pointed out.

The Government are really asking us to agree that the euro should be propped up, which is a very different and risky thing to do. I say that because the euro is so badly designed that it may be un-prop-up-able, certainly in the long term, probably in the medium term and possibly, if one looks at what is happening now in Portugal—not to mention Greece, Ireland, Italy and perhaps Spain—in the short term. The euro's main design faults, as some of us have been trying to point out since before it was born, are that it is a currency area without a federal budget. There is no mechanism for sending support from rich areas in the zone to the poor areas. Its different economies also suffer from a single interest rate and exchange rate with the results we are already seeing in the countries I have mentioned.

The Government’s answer to that in this Motion tonight seems to be that there is nothing to worry about because this new ESM means that the poor old Germans will pay and so will the French, the Dutch and the other countries that already donate to keep the whole unfortunate project of European integration afloat. The question is: will they? For how long? How much? Even if the cosy European political class thinks it is all a splendid idea, what about real people? What about the massive public protests in Portugal over the weekend and those we have seen in Greece? What about Marine Le Pen in France? Indeed, what about UKIP in the recent Barnsley by-election? [Laughter.] Well, I had to put that plug in.

What about another thing? This is a question to the Minister. What about the vote in the German Bundestag last Thursday, when five out of the six main parties gave their consent to the ESM but only with some strings attached? I know this is only a European Parliament, which is made irrelevant, as we know, under the project of European integration. It is not the European Union, but nevertheless, those strings are important. They included strengthening the stability and growth pact, guaranteeing the independence of the European Central Bank, guaranteeing that the EMS would be activated only in emergency cases, a restructuring procedure that would include private creditors and a guarantee that the eurozone would not turn into a transfer union. This last string looks something like shutting the stable door to me, but perhaps the Minister will care to opine. Does the ESM in effect set up a transfer union in clear breach of Article 125 or does it not?

The noble Lord, Lord Harrison, agreed with the Government that it does not breach Article 125, so perhaps it is worth putting on the record, very briefly, the key part of Article 125, which states:

“The Union shall not be shall be liable for or assume the commitments of central governments … A Member State shall not be liable for or assume the commitments of central governments”.

I agree with my noble friend—if I may call him that—Lord Lamont. Of course this does that. At the very least, even for Article 122, so roundly abused just before the present Government came to power, which was designed to help out with natural disasters and things like that, surely a loan which is not repaid becomes a commitment. Here with this ESM, we are in the clearest possible terms breaching Article 125. I would like the Minister to tell us: are we are helping to setting up a transfer union or are we not?

The Bundestag’s third condition—that the ESM should be used only in emergency cases—also looks a bit optimistic. It reflects the proposed additional paragraph to Article 136 which states that the ESM will be activated only if it is indispensable to save the stability of the euro as a whole. I think the Minister told us that this detail has not yet been worked out. We are voting for something that we do not know how it will work. Can he tell us who or what will decide when the use of the ESM has become indispensable? Will it be the Council, in which we sit, and if so will we have a vote, or will it be the Commission and/or the central bank? Will the IMF be involved, which again concerns us? In short, can the Minister tell us how the new European stability mechanism will be activated?

20:15

To conclude, I submit that it is really not in this country’s interest to prop up the euro. The quicker it disintegrates the better, with countries that cannot afford to be part of it going back to their national currencies. Only then will they be able to start trading their way out of the colossal debts into which the euro and the project of European integration have led them. Mr Van Rompuy has just said that the EU will collapse if the euro fails. I fear he may be wrong and that the juggernaut of European integration could continue without the euro and would indeed do so, but if he turns out to be right, what a pleasant prospect greets us: no Commission, no Committee of Permanent Representatives, no Council of Ministers, no European Court of so-called Justice, no EU Parliament, none of the colossal fraud, waste and overregulation which weigh us down at home and in our competition and trade with the rest of the world. We would be left with a Europe of democratic nations freely trading and collaborating. It is to those sunlit uplands that the Government should be leading this country and the rest of Europe. That is where the national interest lies, not in this grubby instrument of doubtful legality.

[Lord Newby]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Pearson of Rannoch, because I always think that debates in your Lordships' House are much better when we are not all agreeing with each other. He wants the euro to fail. We on these Benches want it to succeed, and therefore we support the Motion before us this evening. Without having a huge discussion on the history of the euro, it is perhaps worth reminding ourselves that the euro has survived the worst financial crisis certainly in our lifetimes, and has survived many naysayers over the past two or three years who very confidently and regularly predicted that it was about to collapse. It is quite clear that the euro is not going to collapse and that the eurozone is going to continue. Indeed, it is likely to be strengthened as a result of the decisions which are currently being finalised.

It is one of the long-standing features of our view of the EU and the euro that at every point they were about to collapse and, indeed, that the European venture was about to stall, and at every point it has moved forward in its peculiar but almost inevitable way. There was a typical example of this attitude just last week when the FT, reporting on the eurozone summit on this mechanism, had as its headline “Leaders cut surprise deal on key reforms”. The history of European development has been leaders predictably cutting surprise deals when nearing a deadline, which is exactly what has happened here.

I do not intend to attempt to dissect the speech of the noble Lord, Lord Pearson, in great detail, but I point out to him that member states are not donating anything to anyone via this mechanism. The Irish are paying 6 per cent on these loans and are grumbling mightily about them, so just as the British Government are getting a good return on the loans that they are making, member states that are making loans under this mechanism will be getting a pretty good return.

[Lord Pearson of Rannoch]

My Lords, I did not suggest that this Government were donating to any other member state through this mechanism; I merely pointed out that we donate generally to the coffers of the European Union—to the tune this year of £17.6 billion gross and £8.3 billion net. That is net cash that we are sending to Brussels and that goes down the drain there—a figure, I might say, that we are struggling to cut from our own public expenditure.

[Lord Newby]

My Lords, I apologise to the noble Lord. I misheard him. I distinctly wrote down that he said that a donation was involved in this process.

My one question to the Minister springs from my concern about the way in which the eurozone is developing, which is simply that the UK’s role in relation to it is extremely strange. We are obviously not part of it, so we are not in many of the meetings. Yet from time to time we are allowed to have a say. What worries me is that with the passage of time that say gets less and less over a whole raft of economic decisions across the EU. In the current exercise, we were allowed to help in the design of the ESM, which presumably means that Treasury officials went to meetings to talk about how it was going to work. What worries me is that, once it is established, those Treasury officials will be told that they have been extremely helpful, that their advice has been most valuable and that they can now go back to London and let the rest of the eurozone implement the policy. As the noble Lord, Lord Lamont, has pointed out, there are a whole raft of secondary consequences for the competitiveness pact, which will undoubtedly have an impact on the UK and on which, as far as I understand it, we will have no say at all in the future.

Will the Minister explain whether, once the ESM is established, there will be any further role for the UK Government and their officials in the design of the conditions that might be required or suggested from time to time to apply in particular cases when member states are being bailed out? These changes could be extremely worrying, not necessarily because they or the conditions are bad in themselves but because, although we are affected by them, we will have had no say in the way in which they are put together.

[Lord Stoddart of Swindon]

I suppose I could just say that I agree with everything that the noble Lord, Lord Pearson, has said and sit down, but I will not do that.

I thank the noble Lord, Lord Howell, for explaining very complicated legislation to us. I think I understand it a bit better now that he has explained it. Nevertheless, I believe that it is a serious matter that we are discussing. I think I am right in saying that, during debates on the Lisbon treaty, the then Official Opposition considered Article 48(6)to be an unnecessary and perhaps dangerous measure that could be used to extend European Union power without proper parliamentary scrutiny. I feel that that was their position at the time. Now, even though they have been in power for only 10 months, they are using this provision to extend the power of the eurozone. I do not know what has happened. Perhaps the Liberal part of the coalition is having more influence than it should.

There has not been an IGC, which has been pointed out already. The Motion received only one and a half hour’s debate in the House of Commons and a dinner hour debate in this House. We are not really having the sort of discussion that we should have before the Prime Minister goes to Europe to make a decision. It may be that we will have further discussions in due course but this Motion is to give the Prime Minister the power to act under Article 48(6). It is the first time that that has been done and it is therefore a serious matter. Although we are not at present members of the eurozone and ESM will not affect us, it will nevertheless become part of the European Union’s powers across the board. If this country should join the eurozone, this provision would automatically apply to us. That surely is right. If it is not right, perhaps the noble Lord will say that it is not right and why it is not right.

Furthermore, this first use of the simplified revision procedures is likely to be the thin end of the wedge. This will not be the first time that it will be used. Once a provision is used, it sets a precedent and it will be much easier to use it on other occasions in the future. It is claimed that when the European Union Bill, which we will discuss tomorrow, becomes law, it will prevent Article 48(6) from being misused. But can we be certain of that? Will the noble Lord say that there will never be any conditions under which Article 48(6) cannot be used without parliamentary procedure or perhaps even a referendum? Since the measure has to be agreed by a unanimous vote, the United Kingdom at present has a veto.

During the election, the Conservatives said that they wanted to repatriate to this country a range of measures which they believed were inimical to the best interests of the United Kingdom. Why then are the Government not using this factor—the fact that they have a veto over this provision being discussed tonight—to renegotiate parts of the treaties which are inimical to British interests, especially those relating to industry and commerce? I am also puzzled as to why the eurozone nations cannot agree a system of control that does not involve a treaty change. Is it perhaps because Germany wishes to use this procedure to strengthen its position as leader of the European Union?

The Government state that maintaining the eurozone as a stable and fully functioning entity is in the United Kingdom’s interest and the European Union Committee endorses that view. I do not believe that that is necessarily so. I am not at all sure that the eurozone is necessary for this country to prosper. Indeed, I could probably, if there was time, produce an argument to show that the eurozone works against this country’s interests. It should be no part of this country’s policy to maintain the eurozone in being no matter what the circumstances are.

Let us not forget that the experience of the eurozone so far has not been a happy one. At least four of its members are in dire financial and economic trouble, needing massive tranches—that is what this debate is about—of bail-out money. Interest rates in the eurozone have been kept at an artificially high rate, thus resulting in lower growth in many of its member states and very high unemployment. That is something this country should deplore, wherever it occurs.

Being in the eurozone does not affect our trade in the way that the Minister outlined. The fact is that we are in Europe and we are part of the single market, and whether the eurozone exists or not, the single market will still be there, as it was there before we joined the eurozone. What I believe is that being within the European Union and within the single market in fact damages our ability to export to the much wider world than the European Union represents. Already we see the Chinese and the Indians making great inroads into markets in Africa and elsewhere which, untrammelled by the European Union, this country could be exploiting. I have some doubts about this measure, although I suppose it is going to go through. But I hope that the assurances which have been given by the Minister will be carried out.

20:31

[Lord Liddle]

This debate has been a curious experience for me because, having listened to the contributions of the noble Lords, Lord Pearson of Rannoch and Lord Stoddart of Swindon, I am perhaps a much stronger supporter of what the Government are doing than I think I ought to be. I believe that the Government are right to support this measure and I think that both noble Lords are completely wrong in thinking that somehow it would be in the British national interest to pull the house of the euro down, causing currency chaos and economic disruption on a huge scale in order to pursue their own hatred and fanaticism in their opposition to the European Union.

[Lord Stoddart of Swindon]

My suggestion was not that we should pull the eurozone down but that it is not necessary for us to take these measures to bolster the eurozone at all.

[Lord Liddle]

Of course I accept what the noble Lord says, but the implication was that the euro would come tumbling down, and I think that the economic consequences for us, with our trade and economic links to Europe, would be very serious. Further, the instability that would be created by a German mark soaring and a Greek drachma plunging would be too horrendous to contemplate.

What I want to do in my brief remarks is to declare that I support what is being proposed, but with two qualifications. First, what we have seen tonight is an excellent example of parliamentary accountability. This motion has been put to the House and, before it is approved by the European Council, we have an opportunity to say whether we agree with it or not. If I may anticipate the debate tomorrow on the EU Bill, this is in sharp contrast to what will be proposed under the new arrangements. What we are going to have there is a requirement for the Government somehow to argue that, under the proposed criteria, a referendum would not be justified for this measure. I am totally opposed to multiple referenda and will be arguing that tomorrow, but on the basis that the Government are arguing, it seems extraordinary to suggest that what we have before us with the European stability mechanism is somehow not a big extension of competence and is not significant. It is extremely significant.

Indeed, I would argue that what is happening in the eurozone at the moment is as significant a development for the strengthening of its governance as we have had since the establishment of the single currency and the single market in the 1980s. It is a far more significant development than the Treaty of Lisbon or the constitutional treaty that preceded it. It is for European integration very significant.

One cannot argue that this is of no relevance to Britain. For one thing, the ESM will be one pillar of a new regime of economic governance that includes macroeconomic surveillance and a competiveness pact. I do not argue that these measures are perfect; in fact, they are far less than ideal and this should be very much work in progress. However, integration of economic governance is certainly proceeding.

The Government make the crucial error of thinking of this question in terms of a transfer of power to Brussels from the United Kingdom. They argue that, because Britain is not in the eurozone, there is no transfer of power. However, what in fact is going on within the whole of the European Union at the moment is a very big shift in the balance of power, with the likely creation of a eurozone bloc that has a much bigger influence on the economic policies of the whole of the EU. It is about this important change in the balance of power that we should really be concerned, instead of going on about transfers of power.

Perhaps I may cite one example that is directly related to the subject of the ESM: the issue of financial regulation. If we have a sovereign debt crisis in a eurozone member country and it is necessary for there to be a restructuring of the debt, it will logically lead to problems in the banks which own the bonds that have lost much of their face value. That will in turn require new rules on the capital adequacy of banks and on banking mergers. If there are to be in future stages restructurings of Greek and Irish sovereign debt, there will also be grave consequences for financial regulation and the banking system. We are exposing ourselves to real loss of influence on these matters, because it will be a eurozone bloc that decides in terms of its own interests what those regulations should be. We will turn up at the Council of Finance Ministers with that decision in practice having been taken, with majority voting there in the Council of Finance Ministers, and with very little opportunity for us to influence it. When one thinks that the City of London is one of our key interests, one realises that this is quite a serious threat to us.

Of course, the new regime is not ideal and it is work in progress—I dare say that my noble friend Lord Eatwell will say something about this. My strong view is that if something is not ideal we should use our maximum influence to try to change it. Obviously, there is no immediate prospect of us joining the euro and becoming part of the ESM, but we should try to involve ourselves intimately in the discussions that are taking place. I am worried that the Government, as far as I can see, are not doing that. Mrs Merkel, as I understand it, made an offer to the British Government whereby they could be part of the competitiveness pact that she was trying to negotiate. Apparently the British Government have said that they do not wish to be part of that pact, whereas Poland, which is equally not a member of the euro area, is anxious not to be excluded from these decisions on economic governance questions which go wider than the eurozone.

There is a significant problem here for the United Kingdom and the Government ought to recognise this. They should also recognise that something of fundamental importance to our economic future and, indeed, to our sovereignty is happening here.

[Lord Eatwell]

My Lords, as noble Lords will be aware, this is the first time that a Motion of this sort has been debated in your Lordships’ House. We are, as the noble Lord, Lord Stoddart, said, creating a precedent, although I am not entirely clear how long the precedent will last with respect to the discussion that we will have tomorrow. However, it clearly is important that we should define the criterion that we ought to apply to our assessment of the Motion.

The Government’s Explanatory Memorandum suggests that they have clearly applied the criterion of the “UK national interest”. In support of this Motion to give the green light to the establishment of the ESM, the memorandum states emphatically:

“We therefore support this draft proposal to amend the Treaty to make clear that the euro area Member States can establish a permanent ESM. The UK will directly benefit”—

directly benefit—

“from increased stability of the euro area brought about by the ESM, without being part of the new mechanism or having any obligations under it”.

The noble Lord, Lord Howell, repeated at some length the idea that this is directly in Britain’s benefit. Indeed, so important is the ESM deemed to be to the UK that, as the Explanatory Memorandum tells us, and as the Minister confirmed, the Chancellor of the Exchequer eagerly proposed UK participation in the design of the mechanism—participation which has apparently taken place.

This repeated emphasis on the importance of the ESM to the UK and of UK participation in the design process sits rather uncomfortably with the other theme of the Explanatory Memorandum:

“The ESM established by the proposed treaty change will be set up by the euro area countries for euro area countries with no financial liability on the non-euro area Member States or the EU budget. There are therefore no direct financial implications associated with agreeing the draft decisions to amend the TFEU to establish the ESM”.

So on the one hand we have a direct benefit, but on the other hand there are no direct financial implications.

It is, of course, entirely possible to hold these seemingly contradictory positions at the same time. For example, the policies of the United States Government have a direct economic impact on the UK, and yet we have no responsibility for their financial implications. However, the key difference here is that we do have a direct responsibility—we have actually participated in the design of this mechanism. This Government have both a primary and a secondary responsibility for the mechanism agreed: primarily because we participated in its design; and secondarily because, as has frequently been acknowledged, the performance of the ESM is of direct national interest to the UK.

In his introduction the Minister told us nothing whatever about the ESM itself. It really is essential that, when he sums up, he remedy that failure and answer some of the pertinent questions about the impact of the ESM on the UK. He quoted my noble friend Lord Harrison, saying that we should support a stable and prosperous eurozone, which of course we should; but when my noble friend wrote that letter in February he could not have known what we know now. In the early hours of the morning of Saturday, 13 March, eurozone leaders reached agreement on the structure of the ESM, to be ratified by the European Council this week. The assessment of whether the agreement of 13 March is or is not in the best interests of the UK is the key issue and it should be based on one clear criterion: will it work? That is the fundamental question, which the Minister has not even bothered to address this evening.

20:45

The purpose of the ESM is to provide a mechanism for managing debt crises within the eurozone. There is no doubt that that would be a good thing, in the words of 1066 And All That. There are two ways of managing a debt crisis: either by a bailout—the provision of funds or guarantees; or by restructuring—or, to give it its proper name, default. The crucial factor in the design of the ESM which distinguishes it from previous mechanisms is that it provides a mechanism for default—something essentially impossible today without falling foul of the German constitutional court, since Germany, under current mechanisms, would have to make good on the guarantees that it has provided. The default mechanism works by making the loans and guarantees made by the ESM senior to those made by all other investors in euro-country bonds. So the private investors are at risk, but the ESM is at far less risk.

There is a catch in this: the private investors will notice. Indeed, today’s private investors will notice what is coming in two years’ time and, even now, will be far less willing to support the bonds of Governments who are likely to get into trouble. That is how financial markets work. So the device does not actually get the German Government off the hook. Will the German Government be willing to push for systemic default when they are no longer on the line, when they have only senior debt and others are forced into a junior position? The likely answer is no, because the opprobrium would be too great for the eurozone to survive. Instead, with this design of the ESM, there will just be more bailouts and more onerous conditions imposed on the long-suffering citizens of Greece and Ireland, and perhaps Spain and Portugal, with damaging political consequences for the European Union and, crucially, damaging economic consequences for the UK. In other words, the proposed ESM neither creates an effective default mechanism nor provides for a fresh flow of funding to countries in the grip of a debt crisis. Indeed, it will weaken that flow. This mechanism will not work. Therefore, it is not in the best interests of the UK that it be implemented.

When the Minister sums up, will he confirm that my description of the proposed working of the ESM agreed last week is accurate? What do the Government expect the impact to be of defining ESM debt as senior on private debt markets? Have the Government assessed the impact of that measure on current interest rate premiums? Will he say precisely why Her Majesty’s Government believe that the likely outcome of the proposed mechanism will be to the benefit of the UK? Will he explain to the House why Her Majesty’s Government are prepared to ratify a change to the treaty that is likely to have damaging economic consequences for the UK? He said that not to ratify would expose the UK because of the continuation of the EFSM, but the EFSM is reviewed every six months. There is no unconditional continuation of that particular mechanism and no continuing exposure of the UK.

I said in my opening remarks that we are creating a precedent. It would be unfortunate if that precedent were to be that Motions are agreed by this House on the nod, without proper scrutiny. I fully understand and sympathise with the noble Lord that many of the technical aspects of the ESM were agreed only a week ago. But it was a full week ago. Surely we could have considered what those mechanisms were, and the Government could have made a report to this House explaining the mechanisms which have been agreed and assessing their impact on the UK. If we are unable to assess the actual measures precisely, then—if the noble Lord really has respect for this House—he should withdraw this Motion and bring it back with proper documentation so that we can fully assess the impact of the actual mechanism which we are being asked to agree.

[Lord Howell of Guildford]

My Lords, I am grateful to all those who have spoken on this Motion and applied their—in many cases—extremely acute learning and expertise to the various issues that arise. The noble Lord, Lord Eatwell, who has just spoken with the tremendous skill of a professional economist, if I may dare call him that—but anyway an expert—made some very acute points. He seemed at one point to come very near to questioning the whole future virtue of the euro and the eurozone and asking me to describe details of the ESM system, of which of course the design is not yet complete. He is asking me to produce something that simply does not exist yet and, much as I am anxious to please him, I cannot do that this evening. The ESM has yet to be completed. The British Government will be involved in input to that design, but we will not actually be part of it—so I am not quite sure how I can describe something that has not yet been put together yet. I would love to try, but I am not sure how I can do it.

[Lord Eatwell]

Would the Minister explain why he is asking this House to agree to a Motion that he asserts is going to be in the best interests of the UK when he does not even know the mechanism that the Motion will create?

[Lord Howell of Guildford]

For the obvious reason that, in order to go ahead with the design of the ESM, there has to be first this Motion and then the alteration of the treaty, which under our new provisions of the EU Bill will also be debated in this House. We have to start the process off. If the proposition is that we cannot start until we know everything and that we are not going to know everything until we start, the noble Lord is asking me to go around in circles. That is often the fate of those in government, but in this case I prefer to begin to proceed on a process. Of course, I cannot stand here and say that what is going to emerge for the ESM and members of the eurozone will all be wonderful and work perfectly and that the eurozone will be happy for ever. The noble Lord could not reasonably expect me to be able to say that. I have no idea, as there are major issues of a geopolitical, political and economic nature lying ahead for the organisation of a financial structure for the eurozone, and none of us can be dead certain how these things will turn out. What one can say is that this is a move in the direction of trying to stabilise the eurozone, which the Government believe is in the interests of the United Kingdom. The noble Lords, Lord Pearson of Rannoch and Lord Stoddart, took different views, but that is what we believe and that is the Government’s position.

[Lord Pearson of Rannoch]

The Minister is confirming what the noble Lord, Lord Eatwell, said and what I asked him in my few remarks. We are being asked to agree something when we do not know what it will be. Why cannot we agree to the next phase going ahead and then make a final decision when we know what we are talking about? Why cannot we do it that way around?

[Lord Howell of Guildford]

Perhaps the noble Lord has not understood. That is exactly what your Lordships are being asked to do—to go ahead with the next phase. The Motion is required under the Lisbon treaty legislation; there will be a full debate on the new primary legislation, which we will start debating tomorrow. This is the next phase. The alternative is obviously to stand pat and do nothing, which the Government believe very strongly would be a serious and damaging step, which might lead, although I cannot guarantee it, to very serious damage for this country. So it seems right to take the next step forward. That is what both Houses of Parliament have been asked to do in order that the Prime Minister can take the necessary measures at the European Council later this week. Noble Lords are quite right—I said next week but I meant this week.

One or two of the points that have been raised are complex and important. The noble Lord, Lord Harrison, referred to the excellent Select Committee report which confirmed a number of the points that I have made, including the very important one that Article 122(2), which is the one governing the EFSM, will no longer be used. That is just as well because it had a liability for the UK.

My noble friend Lord Lamont of Lerwick asked two questions. The first was on whether Article 125 was compatible with having no bailout. He asked whether I, with a straight face, could make various assertions on that matter. I will give him what is in the brief before me, which has some strong validity. Article 125 of the treaty provides a clear assurance that no member state shall receive a bailout. However, it does not preclude the EU or member states from providing loans to one other. The EU’s balance of payments facility has already provided medium-term financial assistance to a number of member states. Article 2(1) of the EFSM regulation makes it clear that the financial assistance it envisages is strictly confined to either a loan or a credit, so that would need to be paid back. That is the explanation. I am a little worried about the straightness or otherwise of my face, yet that makes reasonable sense to me. It has been a matter of lively debate in other countries, such as in the Bundestag, but that is the answer that I have to his question.

[Lord Pearson of Rannoch]

My Lords, surely the Minister must agree that when a loan is not repaid it becomes a commitment?

[Lord Howell of Guildford]

All I can say is that this is how the debate has gone and these are the decisions that have been taken by those in the eurozone, which does not include us, who decided to go ahead and move from the EFSM to the ESM. The noble Lord has a different opinion of the financial aspects and is a financial expert of no small degree, so he may be right. However, that is not the view taken by the German Government or by the other Governments of the eurozone area.

My noble friend Lord Lamont also asked about the competitiveness pact. I can tell him that the latest draft of the pact makes it clear that:

“The Pact will fully respect the integrity of the Single Market”.

I am then advised that non-eurozone countries—such as us, among others—have been invited to join the pact and that we are assessing whether we should do so. I add that many of these points tonight point in the same direction and that we are really getting into the issues which we will be discussing on the new EU Bill tomorrow, when we shall have its Second Reading.

[Lord Liddle]

The noble Lord said that the Government were still considering whether to join the competitiveness pact. Is that the position: that this matter is still open?

[Lord Howell of Guildford]

That is different from what the noble Lord said, so he is not quite right that that is the position. I was going on to say that under the provisions of the EU Bill, which has its Second Reading tomorrow, any question of a movement of competence or powers from the UK to the European Union arising from any of these things is subject to the most rigorous procedures—in many cases, a referendum procedure but certainly an Act of primary legislation—which make it more or less impossible for them to be, as it were, slipped by or to be involved in any kind of competence creep. That is the position in answer to my noble friend Lord Lamont.

The noble Lord, Lord Pearson, took a familiar position and did not think that we should be propping up the eurozone at all. I admire his concern for the German taxpayer, as he is clearly worried about our German friends and the amount of tax that they might have to pay if liabilities arise. He asked if we were setting up a transfer union. My judgment—this is from outside because we are not a member—would be that the eurozone members are not setting up a transfer union because that would require a far bigger budget at the centre than anything that operates under the present European Union organisation and rules. I think that the answer is no, but really that is a question that was posed by German Bundestag Members and answered by the German Government.

21:00

My noble friend Lord Newby was worried, as was the noble Lord, Lord Liddle, about our role in the eurozone and whether it was becoming progressively weaker. I have described the conditions under which we will have a perfectly straightforward role in the design of the future ESM. I have to take a stand on the whole question of whether, as we stand outside the eurozone system, we are really weakening ourselves and putting ourselves in a disadvantageous position, as the noble Lord insists. I am not a rugby player but quite often standing outside the scrum places you in a much better position than being in the middle of it.

That is a much bigger issue that we will debate under the EU Bill: whether we are, as many experts assert, somehow marginal to the development of the European Union generally and of the eurozone or whether in fact we are one of the most active and influential players in the whole system by virtue of our excellent positioning. We shall talk about that during the whole process of the European Union Bill, and I would rather leave that bigger debate for tomorrow. It is there, though, behind all these issues.

The noble Lord, Lord Stoddart, asked whether, if we join the eurozone, we will be part of the ESM. The answer is yes—if we were to join the eurozone. However, there is no proposition or intention under this Government to do so, so that is the country of hypothesis in a very big way. It is not going to happen under this Government. We are not going to join the eurozone.

The noble Lord talked about the passerelle procedure, as did the noble Lord, Lord Eatwell. It is perfectly correct that at the time of the Lisbon treaty—I cannot deny the fact that he remembers it well—I stood on the Benches opposite saying that I did not like the smell of it. Times changes, though, and here we are with the situation with which we are presented: a proposition comes forward that does not technically or indeed actually involve the United Kingdom, and the passerelle procedure is used. He will learn, and I am sure that this will be to his satisfaction in the days ahead, that under the new EU Bill very rigorous controls are going to be applied where there is any suggestion of a movement of power or competence from the UK to the EU under the passerelle procedure, any other ratchet procedures or any other treaty-change procedures proposed in future by the European Union or even by the British Government.

The noble Lord asked what we are getting in exchange. In my opening remarks I covered the two considerable successes that the Prime Minister secured, one of which, I have said repeatedly, is that we are getting out from under the EFSM liability. So we got something in exchange.

Is a stable eurozone really in our interests? The noble Lord did not think that it was, but of course markets think that it is. When the eurozone has run into major troubles in the recent past and when measures have been taken to try to address the troubles of the future, one can see the markets reflecting precisely those trends: they go down if they feel that the eurozone is in deep trouble and go upwards, or strengthen, when they see some kind of efforts being made to stabilise it. Markets think that it is in our interests, even if the noble Lord does not.

The noble Lord, Lord Liddle, came back to the issue of loss of influence. We dealt with participation in the future design of the ESM. The noble Lord, Lord Newby, also took the view that we are somehow marginal. This is a very familiar theme. I always think that there is an element of defeatism in it. It implies that unless we go along with the mob, move with the crowd and are tucked into the system, we will somehow lose influence. Past experience over many years and future prospects in the totally new international landscape do not point in that direction. It portrays a yesterday view of how blocs such as the European Union or the Atlantic community, or superpowers such as America, operated in the 20th century. We are not in that century any more; we are not within that distribution of power. Different modalities apply and we are in a different paradigm. I shall argue that in much more detail when we come to the EU Bill tomorrow, in Committee and on Report. I have dealt with all the issues, although certainly not to the satisfaction of all.

[Lord Eatwell]

My Lords, I want the eurozone to succeed. That is why I was particularly concerned about the structure of the ESM, as agreed last weekend. I asked several rather technical questions about that. I am content if the noble Lord does not feel that it is appropriate to answer those questions this evening, but I wonder if he would undertake to write to me and answer them.

[Lord Howell of Guildford]

I will undertake to write if I can get hold of the propositions that the noble Lord is asking about. If he is asking me to describe exactly how the ESM will work, I cannot yet do so because it has not been designed. We are taking a step towards the point where design of the ESM can begin. The noble Lord, Lord Pearson of Rannoch, would rather we did not take that step forward. However, the noble Lord, Lord Eatwell, who is extremely expert in this field, and his party want this to go ahead. We should take this first step. I know I will not be able to satisfy the noble Lord, Lord Eatwell, in describing the exact design of the ESM system because the mechanism is under construction.

The noble Lord also had some fun—it was rather enjoyable—by asking how we could hold two views that he believed to be contradictory. One is that the ESM would directly benefit the UK or, to put it negatively, that failure to go ahead with the ESM would greatly damage the UK. At the same time, we were not involved in it. The remark of, I think, an American philosopher passed through my mind: the mark of an intelligent mind is to be able to hold two contradictory thoughts at the same time. It may be that it is the mark of an intelligent Government to do the same. It is of course possible to argue, as I have this evening and I stand by it, that standing in the way of this next step is standing in the way of a step that may lead to better things and greater stability for the eurozone. We judge, contrary to the views of the noble Lord, Lord Stoddart, that this is an improvement and is good for the British economy, British prosperity and the British people.

That is not the same as saying that we are involved in the powers, competencies and arrangements of the ESM. We are not. We have been in the EFSM and we were liable. We will cease to be liable in the future, once we can get this system in place. The first step is now required and it is one that the Prime Minister wishes to take, quite rightly, in the interests of this nation at the European Council meeting at the end of this week.

There will be, I repeat, a second opportunity to debate this treaty change during ratification, in line with the provisions of the EU Bill once it becomes law. Your Lordships will be addressing their minds to it at Second Reading tomorrow. Under the EU Bill, all treaty changes require primary legislation to be ratified, so this is not the end of the matter by any means. It is a start and it is a good start—the right start in the interests of this nation.

Motion agreed.

Fixed-term Parliaments Bill

Monday 21st March 2011 Lords Chamber

Committee (2nd Day) (Continued)

21:10

Amendment 18

Moved by

[Lord Howarth of Newport]

18: Clause 1, page 1, line 14, leave out subsection (5)

[Lord Howarth of Newport]

My Lords, Amendment 18 would remove the flexibility for the Prime Minister to have the general election up to two months earlier or two months later than the five-year term. Amendments 22 and 23 in my name would delete just the power to call the general election two months earlier.

I thought it was important that we should have the opportunity to scrutinise this provision. In the Explanatory Notes, the Government explain that they have put this in,

“to accommodate short term crises or other conditions which might make it inappropriate to hold the election on the scheduled date, for example, a repeat of the foot and mouth crisis which led to the postponement of the local elections in 2001”.

One can see that there could be some sense in allowing for such possibilities but I wonder how carefully the Government have thought this provision through. The foot and mouth epidemic ran for some considerable time and it was possible for the Government to react in the way that they did in postponing the local elections in that year. However, could other disasters be anticipated so that the Prime Minister would know that he needed to call a general election earlier than the prescribed date or, indeed, later? Might not the power to call a general election two months earlier be open to abuse? I am not suggesting that this Government would abuse it but we are legislating for the indefinite future.

A Government might anticipate disastrous figures that were about to be published. I seem to remember that Harold Wilson was of the view that he lost the election in June 1970 because there were bad trade figures—something to do with airplanes, if I remember aright. Indeed, this Government might anticipate that some terrible figures might come out on unemployment or they might anticipate that there was going to be a major social protest, as is due to occur next Saturday. As time goes on and the Government pursue their deflationary and contractionary policies more and more ruthlessly, who is to say what protests may not emerge? Therefore, the Government might think that it was not expedient to hold an election when they were liable to encounter such expressions of public opinion and might contrive an excuse to get the election in just a bit ahead of the unfortunate event that they anticipate. Might not the power to defer the general election by up to two months equally be capable of abuse? A crisis might comprise the governing parties doing badly in the opinion polls and the turkeys wanting to postpone Christmas.

Should not the clause be amended? If the Government have a majority in both Houses, I worry that they will very easily secure their majority for the order to bring the election forward or to postpone it. We need to tighten up these provisions. I suggest that we should take out entirely the provision for the Prime Minister to bring the general election forward by two months. Amendments 22 and 23 would do that. We should remove that temptation to manipulate the arrangements. We should also tighten up the drafting to specify the kind of circumstances that would constitute a genuine crisis and justify the postponement of the election by a couple of months—perhaps as a result of an epidemic, a natural disaster or the outbreak of war; although our warrior Prime Minister might be tempted to declare another no-fly zone over Brussels to attract the Eurosceptic vote and achieve some kind of Falklands effect. You never know.

Amendment 24, in the name of the noble Lord, Lord Norton of Louth, indeed attempts to address this problem. I suspect that his amendment is not stringent enough. It is expressed with a high level of generalisation and may need to be amplified and expressed in greater detail. The Liberal Democrat amendment, Amendment 25, also seeks to address this problem, but would drag in the Speaker and require a super-majority of two-thirds. Those would certainly be safeguards against abuse, but there are other difficulties with that. The Government’s amendment, Amendment 26, states that the Prime Minister must give reasons when he lays the order, but that would add nothing in practice. The Prime Minister is hardly going to lay the order and say to Parliament, “I am not going to tell you why”.

These provisions need further thought and tightening up. If the Government cannot satisfy the House today, we may need to revisit this issue on Report. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes)]

Perhaps I may point out that if the amendment were to be agreed, I could not then call Amendments 20 to 24, by reason of pre-emption.

21:15

[Lord Norton of Louth]

My Lords, I added my name to the amendments of the noble Lord, Lord Rooker, to remove the words “earlier or” in order to press the Government as to the circumstances they believed could possibly arise that would make it necessary to bring forward a general election by up to two months. I can understand delaying an election, for reasons that I shall come on to, but I am not sure to what extent one could anticipate a situation, presumably a crisis, that would justify an early election. There may be such circumstances and, if there are, it would be helpful to hear from the Minister as to what they are.

However, I wish to devote my principal comments to Amendment 24, to which the noble Lord, Lord Howarth, referred, which stands in my name. The amendment deals with an important point of principle that distinguishes it from the rest of the Bill. Under the Parliament Act 1911, the maximum duration of a Parliament is set at five years. Within that period, the Prime Minister may exercise his discretion to advise the monarch to dissolve Parliament, or he may be forced to resign or request a Dissolution in the event of the House of Commons passing a vote of no confidence in Her Majesty’s Government. The principal purpose of the Bill is to remove the Prime Minister’s discretion within that five-year period. As the law stands, it is not within the Prime Minister’s discretion to advise Her Majesty to extend the life of a Parliament beyond five years. An extension requires an Act of Parliament, and such an extension has been treated as exceptional. That is why this Bill is subject to the Parliament Act, and falls into that category because of the provisions of subsection (5). The only occasions on which extensions have been made by statute have been during wartime. During the Second World War, parliamentary elections were postponed on an annual basis by a Prolongation of Parliament Act.

Subsection (5) thus engages an important principle that is not engaged by the rest of the Bill. Whether or not we have a flexible or semi-fixed maximum term is not relevant to the issue raised here. The question is whether we should permit the term itself to be breached. The importance of the principle is in effect conceded by the Government in Amendment 26. That recognises that the Prime Minister must make clear the reasons for seeking to change the date of the election. My amendment seeks to define the reasons.

The Elections Act 2001 was enacted in order to delay the local elections of that year because of the foot and mouth crisis. During Second Reading of the Bill, I said that we needed to generate clear criteria that would justify the postponement of elections. I advanced four criteria that must be met in order for Parliament to postpone an election. First, there must be a clear and recognised national crisis. Secondly, there must be a situation that affects the capacity to conduct the election. Thirdly, there must be an agreement between the parties that there is a case for delay. Finally, there must be proper parliamentary debate. Although there may be a case for speed, it should not be at the expense of parliamentary scrutiny. All four conditions were met in wartime and in 2001.

Those criteria should apply to any attempt to postpone elections. I appreciate that in the context of this Bill, the period involved is short. It is not equivalent to what was undertaken in wartime, although it is on a par with the situation in 2001. In the war and the foot and mouth crisis, elections were postponed through primary legislation. Here, provision is made for a postponement through secondary legislation. That will be debated, but it is not on a par with what is possible with a Bill. If subsection (5) is to remain, any exercise of the power to postpone an election must be on the basis of the criteria that I detailed.

My amendment provides that:

“The Prime Minister shall only lay an order … when he … is satisfied that there is a situation that renders holding an election”,

within the set term,

“impractical or injurious to the economic, social or public health of the nation or a part thereof”.

The Government's Amendment 26 provides that the Prime Minister must state his reasons for proposing a change of polling day when laying a draft order before Parliament. However, it leaves open the possibility, alluded to by the noble Lord, Lord Howarth, of the Prime Minister proffering a reason that is politically acceptable to a government majority but that does not meet what I regard as the necessary criteria for taking such a serious step.

I suspect that the Minister will remind us, as he did earlier, that at the moment there may be more than five years between general elections. I appreciate that two months may not seem an exceptional period of time; but eight weeks can make a significant difference to electoral fortunes, and a fundamental issue of principle is engaged by this provision. That is why I regard my amendment as necessary if subsection (5) is to remain in the Bill. I appreciate and support government Amendment 26, but I consider it necessary but not sufficient. More stringent constraints must be built in to the Bill. I believe that the choice is either to accept Amendment 24 or to omit subsection (5). The Bill cannot remain as presently worded.

[Lord Rennard]

My Lords, I will speak first in support of the principle behind Amendments 22 and 23, tabled by my noble friend Lord Norton and by the noble Lord, Lord Rooker, who is not with us this evening. The amendments deal exclusively with the power of the Prime Minister to bring forward the date of the general election by two months. I speak on the basis that I have yet to hear any substantive or convincing reason for giving this power to a Prime Minister in a context in which we are supposed to be taking away from the Prime Minister the power to determine the date of a general election.

I cannot see how one could anticipate unforeseen and extraordinary circumstances that will occur in two months’ time, and thereby justify bringing forward an election by two months in order to avoid the unforeseen and extraordinary event. It was said that Nancy Reagan used her knowledge of astrology to influence the timing of some of President Reagan's decisions; I do not believe that our constitutional principles should be based on star gazing and prophecies about future disasters. If we can foresee such an event and there are extraordinary reasons for bringing forward an election by two months, there are procedures in the Bill that will let Parliament decide to do that. I believe fundamentally that the power to bring forward an election by two months, if it is necessary, should lie with Parliament and not with the Prime Minister, and that a change to the five-year rule should be made only when there is a transparent and justifiable reason that can be properly debated and considered in Parliament.

I recognise that there is a much stronger case for saying that it may sometimes be necessary to postpone an election by two months, as effectively happened in 2001 with the outbreak of foot and mouth disease. Therefore, I am not convinced that it is right to remove completely the flexibility for a two-month delay, as proposed in Amendment 18 by the noble Lord, Lord Howarth.

With my noble friends Lord Tyler and Lord Marks, I have suggested in Amendment 25 that a two-month delay, if necessary, should be subject to a two-thirds majority in the House of Commons and a majority in this place. We believe that that brings in sufficient safeguards to prevent a Prime Minister abusing his power, which is the principal intention in the Bill.

We note that the noble Lord, Lord Norton, is attempting in Amendment 24, as he has just said, to put a legal restriction on the use of the Prime Minister’s power to vary polling day to situations where it would be impossible to hold an election because it would be,

“impractical or injurious to the economic, social or public health of the nation or a part thereof”.

However, it seems to me that we might get into a very lengthy and quite detailed legal argument about what constitutes such circumstances. In our opinion, it is better to leave to Parliament’s discretion the question of what circumstances are appropriate. I am confident that such support would have been forthcoming in the case of a big national crisis, such as the foot and mouth epidemic of 2001, and I hope that during the passage of this Bill the Government will be able to accept that principle.

To my mind, it is better to subject the power in Clause 1 to vary polling day to a political restriction, requiring political consensus, than to a potential legal argument that may leave polling day to be decided in the courts rather than in Parliament. I accept that the question of whether Amendment 24 or Amendment 25 provides the best safeguard against the misuse of power to vary polling day is a matter of debate, but I think that noble Lords will be very attracted to one option or the other. I also believe that many of us will agree that the potential prime ministerial power to bring forward an election by two months should simply not remain in the Bill.

In conclusion, it seems that there is a fundamental flaw in the logic of this part of the Bill in relation to varying the date of elections. I say that because it makes no provision for varying the fixed date of the local council elections. As we are legislating for general elections to be held in the first week of May, and as council elections every year in much of the country are held on the first Thursday in May, if it were necessary for whatever reason to vary the date of the general election, surely it would be equally necessary to vary the date of the local council elections. There are of course provisions to vary the date of the Scottish Parliament or Welsh Assembly elections but only by one month. Therefore, why should the Westminster general election be varied by perhaps two months when elections in Scotland or Wales can be varied by only one month?

[Lord Foulkes of Cumnock]

I commend the noble Lord, Lord Rennard, for very effectively pointing out one of the problems of this Bill. Can he also contemplate the position that would exist with elections to this Chamber? Would they be on a fixed-term basis? Would they all be on the same day? Could they be moved, and on what basis would they be moved? Would it be two weeks or two months forward or two months later? Would that not be an additional complication?

[Lord Rennard]

My Lords, I have absolutely no doubt that that precise matter will be the subject of considerable scrutiny during the passage of the Lords reform Bill in the pre-legislative scrutiny of the draft Bill and in the Joint Committee of both Houses.

However, for the moment we are dealing with the legislation as it is, and legislation at the moment provides for council elections to be held on the first Thursday in May every year. Therefore, it seems quite illogical for the Government to argue that we may need to vary the date of the general election and to give exclusive power to the Prime Minister to vary the date of a general election by two months when the council elections will not be varied except, as in 2001, by primary legislation. The Government accept that primary legislation can vary the date of the council elections. Therefore, primary legislation could, if necessary, vary the polling date of the general election.

The Bill could provide for a more sensible mechanism for varying the polling day in general elections by requiring any such variation to have a two-thirds majority in the House of Commons and a majority in this place.

[Lord Foulkes of Cumnock]

The noble Lord, for whom I have great respect, having known him for a long time, makes a very good point. However, I was trying to make the point that, by legislating piecemeal on these constitutional matters, a lot of problems are building up, just as he has described, and those problems are going to apply a fortiori—I am not sure whether that is exactly the right term—or almost ad infinitum when we come to legislate for House of Lords reform. Does that not point to the fact that it is very unwise to introduce constitutional legislation in this piecemeal manner?

21:30

[Lord Rennard]

My Lords, not long ago the noble Lord argued quite passionately that it was too much for your Lordships to consider together the two items of the voting system for Westminster and constituency boundaries. If he is now suggesting that the alternative to piecemeal legislation would have been a more comprehensive piece of legislation dealing with those two issues and the issues of fixed-term Parliaments and House of Lords reform, he is rather contradicting the argument that he made not very long ago.

[Lord Cormack]

My Lords, I am delighted that the noble Lord, Lord Rennard, was not drawn by the somewhat mischievous question of the noble Lord, Lord Foulkes. Many of us hope that it will be a very long time indeed before we debate elections of any sort to the Second Chamber. When that day comes, we hope that those proposals, whatever they may be, will be seen off.

For the first time, I find myself almost wholly in agreement with the noble Lord, Lord Rennard, in the substance of his speech proposing the amendment. As he says, it seems quite extraordinary that, in a Bill which is supposed to be clipping the wings of the Prime Minister, we should be giving the Prime Minister such tremendous power. Unless we are to appoint a soothsayer to the Prime Minister—“Beware the Ides of March”—for the life of me, I do not see that any Prime Minister could conceivably be able to forecast so accurately that he could bring forward the date of an election by two months. As the noble Lord, Lord Rennard, has said and as the noble Lord, Lord Howarth, and my noble friend Lord Norton have indicated, that should certainly be deleted from the Bill.

On the postponement of an election, one can understand that there could be a great national emergency or tragedy—one sincerely hopes that there will not be—when it would be quite improper, totally insensitive and wrong to plough ahead with a general election on a specific day. I will not rehearse the sort of things that could happen but we have talked about the foot and mouth crisis of 2001. I was one of those in the other place who strongly supported Prime Minister Blair when he came to the House and proposed that the local elections should be postponed. That was entirely right. God forbid that there should be some disaster like 9/11, but in such circumstances one understands that it would be right to postpone the date of an election.

It is important that the spirit of the amendment of my noble friend Lord Norton should be taken on board by the Government and that there should be a clear specification of the sort of circumstances. I also think it is important, as the noble Lord, Lord Rennard, has said that such a proposal should be put to and approved by both Houses of Parliament. I was delighted that he made that point so clearly and forcefully. Of course, we shall not be voting on this tonight but I hope that my noble and learned friend Lord Wallace of Tankerness will be able to give us a very positive and encouraging reply. He is a man of infinite resource and he is always genial and helpful to the House, but if he could not give us a real promise on this point of significant change to the current wording in the Bill, then I think on Report there would be amendments which many of us would feel obliged to support.

[Lord Desai]

My Lords, I have already raised my worries about the extension power that a Prime Minister has beyond five years. On this group of amendments I am aware that there is a problem, but I am not as worried as my noble friend Lord Howarth about the Prime Minister's ability to go to the country earlier than five years. I do not mind that.

I very much worry about the two-month extension beyond the five years. It would be very reassuring if the Minister took away, for example, the amendment of the noble Lord, Lord Norton, and produced a schedule of possible circumstances. I know that nothing is certain—there can always be the black swan which we cannot anticipate—but if we were told under what circumstances a Prime Minister could be permitted to go to Parliament about a postponement, that would put my mind at rest.

In a sense, this power goes beyond the 1911 Act, and we should take it very seriously. I calculate that, given the current date of election in the Bill, there will be 61 days in the two-month delay; 61 is not a perfect multiple of seven, so the Prime Minister may be tempted to go for 63 days. One can go on like that. We need some idea of the circumstances in which a Prime Minister could claim.

Secondly, as the noble Lords, Lord Rennard and Lord Cormack, said, the provision should be brought to both Houses of Parliament. We have a constitutional position in this question, and it should not be left to the other place alone. I can envisage circumstances under which a Government with a two-thirds majority could arbitrarily give themselves authority to extend the election for two months. I would be very worried about that.

We should have safeguards in the Bill to make sure that both Houses are consulted, that we know the possible circumstances under which the Prime Minister can exercise the power and that we can be certain that such powers will be used only in exceptional circumstances.

[Lord Bach]

That was a most interesting, if short, debate on an important series of points. From the Front Bench, I thank all those who have taken part and who have drafted and spoken to their amendments.

I will be very short. The case has been made out that an earlier calling of an election should not be in the Bill at all. I very much look forward to hearing the noble and learned Lord, Lord Wallace of Tankerness, explaining to us the circumstances in which that might be even feasible under a fixed-term Parliament. I am absolutely with those who have spoken on that and tabled amendments on it.

As for postponement, the Committee should be grateful to the noble Lords, Lord Norton and Lord Rennard, and others on those Benches who have tabled Amendments 24 and 25. We see the strength of what they argue. I just add one caveat and invite them, before we get to Report—because this is a very important matter, as the noble Lord, Lord Cormack, said, and might well be divided on then—to see whether their wording is absolutely right. I am sure that they intend to.

In 2005, under our present system and four years into a Parliament—not five years into a five-year fixed Parliament—his Holiness the Pope died. As I understand it, the general election plan for a certain date was postponed for a week because of that fact. No doubt various considerations were thought about very carefully: some people were grieving; others had things on their mind. That was considered and made public—it was not hidden away by politicians as a calculation.

[Lord Rennard]

My Lords, in my recollection of 2005, the general election happened on the same day as the council elections, which had been agreed and planned for years. There was no postponement in 2005, not even by one week.

[Lord Bach]

My understanding is—and if I am factually wrong of course I apologise—that all elections were put back one week in that year for that reason. I use it by way of example if it is not factually correct. In other words, if something has happened that is important to many millions of potential voters, does it fall in to Amendment 24, tabled by the noble Lord, Lord Norton? If it does not, should some account be made for such unforeseen circumstances that might affect turnout or a number of issues? That may not be the best example, but one can think of other examples of the same kind.

[Lord Tyler]

Is that not a very good argument for adopting the solution that we are proposing that it should then be a political decision and that we do not try to foresee unforeseen circumstances? I speak as somebody who fought a by-election at the height of the Falklands war. That was unforeseen, but I did not think that that was an improper occasion to hold an election. What was significant about 2001 and foot and mouth was that it was impractical to ask people to go to the poll in large areas of the country, including my own. That was what was particular about those circumstances. Therefore, I think the solution that we are proposing from these Benches is preferable. A political consensus across the two Houses of Parliament is preferable to trying to write in advance circumstances that are by nature unforeseen.

[Lord Bach]

The Committee will see the powerful nature of the argument the noble Lord, Lord Tyler, makes, but whether that absolutely precludes some amendment of the type that the noble Lord, Lord Norton, has put before the Committee tonight, I am not so certain. To have both would be a kind of double of lock that would not exist if we just relied on Parliament in this instance. There may be other instances that are not covered by Amendment 24 that the noble Lord, Lord Norton, might want to consider. That is our position at the moment. We are slightly sceptical that the solution has yet been found.

How wonderful it is to see the noble Lord, Lord Rennard, in such fighting form on this Bill. We missed that fighting quality so much in the weeks and months that we spent on the previous Bill. Keep it up.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I think my noble friend Lord Rennard, with his spirit on the previous Bill, managed to get some concessions out of the Government. Who knows what might happen?

Before addressing the amendments that have been spoken to in this group, I shall briefly speak to Amendment 26, which is a government amendment and implements a recommendation made by the Delegated Powers and Regulatory Reform Committee. In common with the other amendments in this group, it concerns Clause 1(5), which confers a power on the Prime Minister to vary the date of a general election by up to two months earlier or later by order, subject to the affirmative procedure.

I am sure the House will be grateful to the committee for the careful scrutiny it generally gives to legislation but has specifically given to the Bill. In its report, the committee concluded that the delegated power taken in Clause 1 was not inappropriate in principle and recommended that, when seeking to vary the date of an election under the power in Clause 1(5), a Prime Minister must lay a statement before both Houses setting out the reasons for proposing the variance of the date.

The committee itself recognised that it would be unrealistic to specify a constraint which would embrace all the possible circumstances in which it would be appropriate to change the polling day. Instead, this is why the committee focused on the importance of ensuring that each House is fully aware of the reasons why the Prime Minister has proposed changing the polling day. That is an approach with which the Government agree. I am sure that your Lordships will be pleased to hear that the amendment implements the committee’s recommendation and provides that a statement must be laid before both Houses of Parliament setting out the reasons for proposing a change to the date of a scheduled general election. I certainly urge your Lordships to accept this amendment when the time comes.

21:45

When the noble Lord, Lord Howarth, moved his amendment, he said, absolutely properly, that the powers in the Bill are important and that it is important in turn that they are scrutinised. His amendment would omit the order-making power from Clause 1(5), which allows for a Prime Minister to vary the date of a scheduled general election. The noble Lord clearly considers that in spite of the Delegated Powers Committee’s conclusion that the power was not inappropriate in principle, he is probing whether it is desirable to have this order-making power at all. I will set out to noble Lords why the Government consider it proper and necessary to have such a power.

I do not think there is any doubt that the expectation is that Parliaments should last only five years and that elections will happen on the first Thursday in May but, as has been alluded to in the debate, there can be short-term crises that make it impracticable to hold an election on that date. The outbreak of foot and mouth disease in 2001 is the example that is very often given, when it was necessary to delay the local elections in England, Wales and Northern Ireland that were scheduled to take place in May. De facto it delayed the general election, although the fact that we were not up against the quinquennium meant that there was no need for any legislation; the Prime Minister simply delayed a date that had been widely expected. Foot and mouth obviously could not have been foreseen.

Clause 1(5) provides that the Prime Minister will be able to alter the date of a general election to a day that is no more than two months earlier or later. Crucially, this can be done only by an order that requires the affirmative resolution of both Houses. In that respect, I entirely agree with my noble friend Lord Cormack, who emphasised the importance of both Houses being involved. If, however, your Lordships accept the Government’s amendment in this group, the Prime Minister will also be obliged to lay a statement before both Houses setting out the reasons for proposing the variance of the date. Without this power, primary legislation would have to be passed, as indeed happened with the local elections in 2001, if the date of the scheduled election had to be moved.

Noble Lords might well ask why it would not be more appropriate for primary legislation to be taken forward in these circumstances. The difficulty with primary legislation is that it could move the date of a scheduled election in an emergency. Provided that it had the consent of your Lordships' House, it could move such an election by more than two months. The fact that we are talking about a situation in which we are up against only the fixed term of five years means that we do not think it appropriate to bring about circumstances in which primary legislation could be brought forward that would take the lifetime of the Parliament more than two months beyond the five years. Therefore we see a limited order-making power that requires the approval of both Houses as appropriate in these circumstances.

It is also important to note that the power might well have to be used at very short notice, when even an emergency Bill might not be possible. If we are to establish fixed terms, it is right that we put into place procedures that can be used to permit a very modest degree of flexibility, in the same way that procedures were put into legislation for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, although those Parliaments do not determine that themselves. In the case of the Scottish Parliament it is the Presiding Officer, and in the case of the Welsh Assembly it is the Secretary of State for Wales. I cannot immediately remember the position in Northern Ireland, but the matter is not in the hands of its parliament.

It is important to emphasise that we are proposing not a wide-ranging Henry VIII-type of order-making power but a power that is very limited. As I have said, I hope that the amendment that the Government have tabled will help to reassure noble Lords about the circumstances in which the power could be used.

I do not think that Amendment 20, in the name of the noble Lord, Lord Rooker, was spoken to.

Amendments 22 and 23, in the names of the noble Lords, Lord Rooker and Lord Howarth, and my noble friend Lord Norton of Louth, was spoken to by my noble friend Lord Norton and supported by my noble friend Lord Rennard. The amendments would alter the power in Clause 1 so that an order to vary the date of election could be made only to defer an election and not to bring it forward. There was clearly a deferral in the foot and mouth example, but it is not inconceivable that a general election might need to be brought forward if we had prior warning of a significant event of national importance, during which time it would not be sensible to hold a general election. My noble friend Lord Rennard pressed me on this at Second Reading and I wholly acknowledge that I have yet to come up with a credible event—although I could think of some incredible ones—that would trigger this power. Nevertheless, a power such as this is to deal with crisis contingencies and, very often, that would be in the very circumstances that you cannot foresee—perhaps, as the noble Lord, Lord Desai, said, a “black swan” event. I would wager a bet that if these amendments were carried and the “earlier or” was deleted, at some stage in the next 15 to 20 years an event would happen to make one say, “If only that had stayed in”.

It is sensible to put in the same principle of flexibility that exists with regard to the devolved institutions. Perhaps I may remind your Lordships that that is counterbalanced with safeguards—the time limit on the power, the requirement to provide reasons and the agreement not just of the other place but of your Lordships’ House. If this amendment should be agreed, it is true that a scenario could arise where it is accepted that the election has to be brought forward. Obviously, under the powers in Clause 2, it would be possible for the House of Commons to resolve, with a two-thirds majority, to dissolve early. My concern about that is that it would not involve your Lordships’ House. We are trying to make an arrangement that would involve both Houses. In this Bill we are setting out procedures that we hope will become an established part of our constitutional framework.

However, I would say to noble Lords who have spoken about this that I am prepared to go away and consider whether I could bring forward concrete examples as to where the power to have an earlier election might be appropriate. In turn, I would ask your Lordships who support this to consider whether, given the safeguards and the fact that very often the unforeseen does happen—the so-called “black swan” event—any damage is done by having this provision in the Bill and whether it may prove to be useful in the event of an unforeseen circumstance. I certainly am willing to consider this further.

Amendment 24, in the name of my noble friend Lord Norton of Louth, indicates that the Prime Minister could not lay an order to vary the date of a scheduled general election by up to two months earlier or later unless he is satisfied that there is a situation that renders holding a scheduled general election,

“impractical or injurious to the economic, social or public health of the nation or a part thereof”.

I fully acknowledge the point made by my noble friend that this is an important clause. Its constitutional significance is certainly not lost on the Government or on your Lordships’ House. It could extend the length of the Parliament beyond the quinquennium and, hence, this Bill would not be subject to the Parliament Act. However, in the light of the amendment that the Government have tabled, I question whether Amendment 24 is necessary.

I share the recollection of my noble friend Lord Rennard: I do not think that the date of the 2005 election was changed. But, putting that to one side, I agree that the example given by the noble Lord, Lord Bach, of the death of Pope John Paul II—an event of international significance—is the kind of event that could in certain circumstances prompt a change. We are talking about a period of up to two months, but it does not need to be as long as two months. It may be thought fitting to change the date by one or two weeks in these circumstances. That would not necessarily fall into any of the categories set out by my noble friend. Equally, it is almost inevitable that the statement that the Prime Minister would have to make to set out his reasons for moving a general election would in all likelihood reflect the kind of concerns that my noble friend sets out in his amendment.

I do not usually take drafting points at this stage but in this situation my concern goes further than just a drafting point. It may be something on which my noble friend would wish to reflect; I would be happy to discuss it. This goes beyond a simple drafting issue because it begs the basic question as to the basis on which a Prime Minister would come to the view that holding a scheduled general election would be,

“impractical or injurious to the economic, social or public health of the nation or a part thereof”.

What criteria would the Prime Minister be expected to bear in mind? What is the threshold for whether a scheduled election should be held or not? Could it result in a threshold that is too low because it would enable an election to be moved because of some sort of administrative problem? Is it a decision that conceivably could be subject to judicial review?

The other point is that the test is that of whether holding the election is injurious. It is hard to see where we might be trying to grapple with injury caused by an election as opposed to circumstances that would cause difficulty for the election. The foot and mouth outbreak was such an example. The election was not going to cause any difficulty, but it would have been difficult to hold the election because in certain parts of the country the regulations in place meant that people could not go out and canvass. I would ask my noble friend to reflect on whether the criteria may have got things the wrong way around, or whether this may be a “both/and” point in that there may be circumstances in which holding the election could be damaging but there may also be circumstances that make holding an election difficult.

[Lord Norton of Louth]

That is why the amendment says “impractical or”, not “impractical and”.

[Lord Wallace of Tankerness]

My Lords, it still refers to the fact of the holding of the election being,

“impractical or injurious to the economic, social or public health of the nation”,

as opposed to external circumstances that, while not being injurious to the election, certainly could make it impractical to hold it. However, I do not think that my noble friend’s amendment covers the circumstances where the external event could make it difficult actually to hold the election. I think that that is more than just a technical point, quite apart from what criteria the Prime Minister would use and what the threshold would be.

I have raised these points because they go beyond normal technical difficulties. They also illustrate the difficulties that arise when you devise formulas to try to address situations that, by their very nature, are unforeseeable. The technical matters point to the general principle agreed by your Lordships’ Delegated Powers and Regulatory Reform Committee. It said that,

“it would be unrealistic to specify in the Bill a constraint which would embrace all of the possible circumstances in which it might seem appropriate to change a polling day”.

Problems arise when you start specifying circumstances. You can bet your life that a circumstance will come along that is glaringly obvious to everyone but was not covered when the legislation was going through. The greatest safeguard on the use of the power is the fact that it must be approved by both Houses and must be accompanied by a statement setting out the reason for seeking to vary the date of the general election.

That brings me to Amendment 25, tabled in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks. It provides that an order made by the Prime Minister under Clause 1(5) would have to be approved by a two-thirds majority in the other place. It also provides a role for the Speaker to certify whether the order had been approved by a Division and had the support of at least two-thirds of all MPs. I recognise the logic behind the amendment, as the Bill provides that a vote on an early Dissolution of the other place would require the support of at least two-thirds of all MPs. That measure is designed to ensure that an early general election can take place where there is cross-party consensus, a point emphasised by my noble friend. However, the order-making power in Clause 1(5) is somewhat different from the power for early Dissolution. Unlike the power to force an early Dissolution, it is a power to vary a scheduled general election and is limited in terms of time. Also, my noble friend may have sought to put in something to avoid abuse, but I believe that the circumstances are such that that would not occur, given the safeguards in place.

However, I am grateful to my noble friend for clarifying that this House would still have a role to play. As I understood it from some of the things that he said at Second Reading, it was not clear whether this House would still have a role to play. Given the comments that have been made by a number of noble Lords, that is important. In the light of that, I want to consider the amendment. I will consider, too, the fact that this provision would again involve the Speaker of the other place. That has raised issues where it appears later in the Bill, so I would want to reflect before agreeing to something that again would give the Speaker a role. It is something that I would want to have an opportunity to discuss with the authorities in the other place. Therefore I am certainly willing to consider it in the light of his assurance that this House would still have a role to play and what the implications might be for the other place.

The other point that my noble friend made was on local elections. There might be circumstances where it would be desirable to move a general election date but where local elections could continue as scheduled. However, and more important, this Bill focuses solely on what is strictly necessary to establish fixed-term Parliaments. To try to introduce other issues could lead to complications.

These are important issues and I hope that I have given assurances that the Government’s mind is not closed to them. I believe that there are safeguards in the Bill, which I hope will be added to by noble Lords agreeing to government Amendment 26. In the mean time, I invite the noble Lord, Lord Howarth, to withdraw his amendment.

22:00

[Lord Howarth of Newport]

My Lords, this has been a thoughtful debate about what has been recognised on all sides of the Chamber as a genuine conundrum. The noble Lord, Lord Cormack, drew our attention to the irony of a Bill that is intended, as he put it, to clip the wings of the Prime Minister actually proposing to confer on him the extraordinary additional power of extending the life of a Parliament beyond the five years that have been enshrined in legislation since 1911. That alone should give us pause and make us think pretty carefully about what we are doing. We all recognise that there is a significant decision to be made. I think that we all recognise, too, that there is a problem; there cannot be doubt about that. My amendment is intended only as a probing amendment. When I tabled an amendment proposing that subsection (5) be deleted, it was certainly not because I thought that this was a problem that we should ignore. We need if we can to provide satisfactorily for the contingencies that noble Lords have suggested could occur.

The noble Lord, Lord Norton of Louth, with his characteristic lucidity and incisiveness, set out the criteria that he thought the House should have in mind as we frame this legislation. He desires to be rigorous. I suggest to him, as I did in my opening remarks, that his wording needs to be tightened up and made more rigorous, and not just in the technical drafting sense to which the Minister drew our attention. The noble Lord suggested that the choice was either to adopt the wording of his Amendment 24, perhaps strengthened, or to drop subsection (5), as Amendment 18 requires, and simply remove altogether from the legislation the power to bring forward or defer a general election in an emergency.

The noble Lords, Lord Rennard, Lord Tyler and Lord Marks of Henley-on-Thames, like the noble Lord, Lord Norton, commendably went further than I had done and tried to propose a constructive solution. Rather than trying to find wording that would encompass even in fairly general terms all the possible contingencies that ought to trigger such a power, they suggested a procedural device that, without attempting to anticipate all the varieties of emergency that could occur, would respond adequately to an emergency of that kind if it occurred. There is a lot of merit in that approach.

For reasons with which I shall not detain the Committee by explaining now, I have my worries about bringing in the Speaker on the lines that the noble Lords’ amendment proposes, but we shall talk about a Speaker’s certificate when we come to other amendments in due course. However, the noble Lord, Lord Rennard, was quite right to insist on the desirability of consistency in the legislation that determines this option not only for the Parliament of the UK but also for the Scottish Parliament, the Welsh Assembly and local government. My noble friend Lord Foulkes rightly drew attention to the possibility that, if we had an elected House of Lords, we would need equally to provide for such powers to apply in relation to elections to it. He rightly warned us once again of the dangers of engaging in piecemeal and ill prepared legislation on the constitution.

I am grateful to the noble and learned Lord for his exceptionally full and reflective response to the debate. He has brought forward government Amendment 26, which simply requires that, if the Prime Minister proposes an order to alter the date of the election in an emergency situation, he must set out his reasons. That is not sufficient. I know that the Government were encouraged to bring forward a remedy in these terms by the Select Committee on the Constitution, but this debate has shown that this Committee of the Whole House is not satisfied that simply requiring the Prime Minister to give reasons meets the needs of the case.

I am grateful for the willingness that the Minister has signified to think further about this issue and about how we can come to a better solution to the problem. On that basis, I beg leave to withdraw my amendment.

Amendment 18 withdrawn.

Amendments 19 to 25 not moved.

Amendment 26

Moved by

[Lord Wallace of Tankerness]

26: Clause 1, page 1, line 20, at end insert—
“( ) The draft laid before Parliament must be accompanied by a statement setting out the Prime Minister’s reasons for proposing the change in the polling day.”

Amendment 26 agreed.

Clause 1, as amended, agreed.

Clause 2 : Early parliamentary general elections

Amendment 27

Moved by

[Lord Norton of Louth]

27: Clause 2, page 1, line 22, leave out subsection (1)

[Lord Norton of Louth]

My Lords, Amendment 27 seeks to leave out subsection (1) of Clause 2. My purpose is to tease out the reasons for this provision.

Although this is termed the Fixed-term Parliaments Bill, it is not a measure providing for fixed-term Parliaments. It stipulates a fixed term unless certain conditions are met. There may be deviations from the set term of five years under Clause 1(5) and Clause 2(1) and (2). The Bill thus seeks to move from a flexible to a semi-flexible or, if one prefers, a semi-fixed Parliament in terms of its duration within a maximum life of five years.

The Bill proposes two safety valve mechanisms enabling a parliamentary election to be held prematurely. One is the Dissolution Motion introduced by Clause 2(1) and the other is the vote of confidence covered in Clause 2(2). In evidence to the Constitution Committee, Professor Robert Hazell, director of the Constitution Unit at University College London, said that he was,

“slightly puzzled why the Government sees the need for a dual threshold”.

Although the committee concluded that it was appropriate to include two different safety mechanisms, I wish to probe why we need this particular mechanism.

I know the argument that this provision ensures that the House, in the event of some unbreakable deadlock, does not have to engineer a vote of no confidence in order to ensure an early election. However, the problem with this provision is that it sets the bar at a high level and, as a result, the Bill fails to deal with the situation where there has been a breakdown within the Government but the Opposition are not prepared to support a Dissolution Motion. The Opposition may not be able to muster enough votes to pass a Motion of no confidence, but they may find it politically advantageous not to vote for a Dissolution. If the Government resign without either a no confidence Motion or a Dissolution Motion having been passed, then the 14-day trigger is not engaged. We could have a period of instability, with no Government but with no election in prospect either. I appreciate the situation is unlikely but, as long as it is not impossible, we need to consider it.

I am not clear why there needs to be the two-thirds hurdle in the context of the Bill. I am familiar with the fact that some legislatures have a two-thirds provision, but to what extent does this exist in the context of a dual as opposed to a single safety valve? Is it not the case that the two-thirds provision in other legislatures applies more often than not in respect of a confidence Motion? Perhaps my noble and learned friend can tell us which other national legislatures utilise an extraordinary majority for the passage of a Dissolution Motion.

[Lord Empey]

I am grateful to the noble Lord. If my memory serves me correctly, the Northern Ireland Assembly needs 70 per cent of its Members to vote to bring the life of the Assembly to a conclusion, albeit subject to the assent of the Secretary of State.

[Lord Norton of Louth]

I choose my words carefully and refer solely to national legislatures. If we are to have two mechanisms for triggering an election, then we could usefully explore the alternatives to what it proposed. Do we need the subsection at all? In evidence to the Constitution Committee, David Howarth noted that if there is all-party agreement that a situation has arisen necessitating an early election, then it would be relatively straightforward to pass an amending Bill. If the measure was introduced for political advantage then this would, he argued, deny the measure the necessary broad support and it would make slow progress in the Lords.

Adopting such an approach would avoid the problems associated with the artificial hurdle created by the subsection. My view is that the most appropriate way to proceed, if we wish to remove the Prime Minister’s discretion as to when an election is to be held, is to provide that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed. My amendments 35 and 38 seek to achieve that and I shall develop the arguments for those shortly. They overcome the problem I have identified with the Bill in respect of the Government resigning without having been defeated on a vote of confidence.

I know that the principal argument for this provision is that it is in the coalition agreement. The problem with that assertion is that the provision is not in the coalition agreement. The agreement said that a binding Motion would be introduced in the House of Commons and a Bill brought forward providing for a Dissolution Motion to be passed if 55 per cent of MPs voted for it. In the event, there has been no binding Motion and the extraordinary majority to pass a Dissolution Motion is now two-thirds of all MPs. We know from David Laws’s book, 22 Days in May, which has already been quite extensively quoted from, that the figure of 55 per cent was the product of political calculation. It is a threshold utilised by no other national legislature. Given that, the case for the subsection must rest on more than its inclusion in the coalition agreement. I am not convinced that the case for it relative to the alternatives is compelling. I beg to move.

[Lord Howarth of Newport]

My Lords, I too, put my name to the amendment to remove the two-thirds provision. This was an improvisation when the coalition’s original proposal—that 55 per cent of Members of Parliament should be able to require an early general election—was greeted with widespread derision and, indeed, anger. It was noted, even before Mr Laws underlined it in his book, that the Conservatives and Liberal Democrats together had 56 per cent of the votes in the House of Commons. The Liberal Democrats and Labour had less than 55 per cent, and so this deal would have guaranteed that Parliament could only be dissolved at the wish of both partners in the Conservative/Liberal Democrat coalition. They could not get away with that, so they built in the two-thirds requirement. They certainly did so with a continuing view of protecting their hold on office.

This two-thirds figure has not been adequately considered. It is argued in its support that no post-war Government have commanded two-thirds of the votes of the House of Commons, but it has also been noted that the National Government of 1931 did command two-thirds of the votes of the House of Commons. We cannot rule out the possibility that there could be another landslide general election. It is admittedly unlikely that one party could secure quite such a large proportion of seats in the House of Commons, but it is not inconceivable.

What is more reasonable to anticipate is that a new coalition could be formed. Perhaps this coalition could seduce other minority parties to join it. It would need only another 10 per cent of Members of Parliament to get to the magic figure required. This is a constitutional innovation of major significance that is quite unheralded, unconsulted upon and undebated by academics and the public. It is true that under its own standing orders the House of Commons does in certain situations stipulate that certain numbers of Members of Parliament must vote, for example, for a quorum or a closure. So it is not entirely novel as a principle of Commons procedure, but it is certainly novel constitutionally. If a super-majority is felt to be preferable, why does it have to be provided for in legislation? Could it not be provided for in the Standing Orders of the House of Commons? Indeed, why should we not accept—this is after all the status quo—that a simple majority for an early general election would be sufficient in the House of Commons?

22:15

If it is convenient to the House, I shall speak to Amendments 28 and 29 in the course of the same remarks, although if noble Lords wish those amendments to be debated in the separate group as is set down on the list, I shall defer to the wishes of the House. However, the subject is sufficiently germane.

Amendment 28 would allow a general election to occur on 51 per cent of the vote in the House of Commons—a majority of one. That is the status quo, although I am not aware that events have ever worked out like that. Of course, we would have to fear that a provision of that kind would be open to abuse by the coalition. However, I was always happy to trust the Prime Minister’s word. When he declared last May that he would not seek a solution before May 2015, I had no reason whatever to doubt his sincerity or integrity. That seemed quite sufficient; it was not actually necessary to legislate. We did not even need a binding resolution, let alone the contrivance of a requirement of a two-thirds majority.

Amendment 29 introduces another variant to assist noble Lords, I hope, to think through the implications of the Bill. It replaces the two-thirds requirement for an early Dissolution with a 75 per cent requirement. If there is to be a super-majority, should it not be big enough to ensure that even after a landslide victory the governing party could not in due course when it suited it seek an early election and obviate the purpose of this fixed-term Parliaments legislation to remove the power of the Prime Minister to determine the date of the election in his own and his party’s interests? It is not entirely unimaginable that there could be a landslide election that would produce a majority in excess of two-thirds. Noble Lords will recall that in October 1993, Kim Campbell, the Prime Minister of Canada and leader of the Progressive Conservative Party, called an election. Her party suffered the most extraordinary defeat; previously, it had held 169 seats and after the election it held only two seats. She resigned and Jean Chrétien of the Liberals became Prime Minister and was then in office for 10 years. You never know what will happen and it is entirely possible that, if the coalition Government govern wisely and well and if we have a statesmanlike Budget on Wednesday and the land flows with milk and honey and there is a sustained boom and crime disappears from our country and the lion lies down with the lamb, after some years of this benign state of affairs the people of this country would be so reconciled to coalition government that they would enthusiastically vote in huge numbers for its recreation following the next election and that they would win a landslide victory. I do not think that it is going to happen, but we cannot rule out any even implausible contingency. However, dream as noble Lords opposite might, it is very unlikely that they would get beyond 75 per cent, as happened in Canada. So I think that that would be a safe limit to set.

More realistically, there might be another coalition in the future that is composed of bigger parties or of more parties so that its votes in the House of Commons would surpass the two-thirds. So I think that 75 per cent might be safer, and, of course, if the general mood of the House of Commons was that it was time for a general election, then a 75 per cent vote would indeed be obtainable.

[Lord Phillips of Sudbury]

I have slightly lost the noble Lord’s argument. Is he arguing in favour of a bare majority or a 75 per cent majority?

[Lord Howarth of Newport]

I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.

[Lord Falconer of Thoroton]

My Lords, again, Mr Laws explains how we got here. But when you see how we got here, it is difficult to understand why we are here. Perhaps I may read a paragraph that has not yet been quoted:

“There was a debate for thirty minutes or so on arrangements for dissolving a parliament before the end of its five-year term. This was an issue which we raised, but William Hague soon realised that the main risk lay with the Conservatives. Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

He continues:

“Huhne originally suggested that there should be a 66% threshold for dissolving parliament before its full term was up, in line with the situation in Scotland. George Osborne said he thought that 66% was rather high and that 55% or 60% was closer to the mark. After some work on Ed Llewelyn’s calculator, and consideration of by-election risks, it was decided that a 55% vote of MPs would be required to provide for a dissolution. This was just greater than the combined opposition and Lib Dem parliamentary parties, thereby safeguarding the Conservative position”.

It is absolutely plain from what Laws is saying there that they were trying to guard against Dissolution, including a no-confidence vote. There is no doubt about that, because he says:

“Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

That must be referring to a vote of no confidence. It is therefore plain from Laws’ book that it was envisaged that you could not get rid of the Government with an ordinary vote of no confidence and that the only provision intended to allow for an early end—that is, before the five years—was if the super-majority was satisfied, and that could not be delivered by the Lib Dems coalescing with Labour.

I think that that was to be put into a binding resolution, whatever that may mean, in the House of Commons. Pressure was then placed on the Government in the public debate which followed, and they changed this in two respects: the figure of 56 per cent became two-thirds, and they agreed to a vote of no confidence as a way of getting rid of the Government. Why are they both there? Which two separate situations are they trying to cover? It looks as though the coalition agreed to the 56 per cent to prevent the possibility of being voted out on a vote of no confidence. I am pretty sure that that is what happened, but they were pushed off it by public pressure and had to agree to a vote of no confidence. They retained the super-majority as a fig leaf in order to try to give some justification for it. That is what Mr Laws’ book is suggesting. Could the Minister say whether I am wrong about that analysis? No other factual analysis is being offered for why we are in the extraordinarily unusual position where both a simple majority and a super-majority can get rid of the Government by way of a vote in the House of Commons. It looks as if the analysis that I have given is the reason.

We are entitled to an explanation for this. The point made by the noble Lord, Lord Norton of Louth, who is respected throughout the House as a constitutional expert, is significant: no other national parliament has this extraordinary provision in it. If it is in there only because it was part of a negotiation that then got shot away by public pressure, why are the Government keeping it in? It is important that the noble and learned Lord gives us some information about it, because at the moment the only explanation on the record is the one that I have given. It is discreditable for the Government to reform our constitution simply on the basis that an idea that was floated in the coalition agreement got shot away but they kept it in, in order to preserve I am not sure what.

A second and separate point that the Minister needs to deal with is: what happens when the Government resign and no one else wants to form a Government? On the basis of the Bill, it appears—again, the noble Lord, Lord Norton, has made this point and I have not heard an answer to it—that you have no Government and no Dissolution. I would be grateful to know what happens to our nation’s Government at that point.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton for opening up the debates on this clause, which raises important issues regarding the mechanisms that would trigger an early election or indeed a change of Government, and I am grateful to all noble Lords who have taken part. It is important to recognise that there are two mechanisms that can trigger an early election: either a Dissolution on a 66 per cent majority—or, more accurately, with two-thirds of Members voting for it—or a vote of no confidence passed by a simple majority and, after 14 days, no Government having a vote of confidence. They are distinctive.

I cannot endorse the speculative analysis by the noble and learned Lord Falconer. He admitted that he was speculating—

[Lord Falconer of Thoroton]

I am not speculating. This is what a person who was there at the negotiations said. For the Minister to describe this analysis as speculative when he is not offering an alternative explanation is wholly unfair.

[Lord Wallace of Tankerness]

My Lords, it will be obvious that the proposals in the Bill are not the ones described in the book. The noble and learned Lord asks us why we have the proposals that we do, and obviously he was speculating about why they are there. If I were presenting to the House a Bill that had a 55 per cent majority and that was it, that would be a reasonable basis on which to say, “This is how we arrived at 55 per cent”. Clearly, that is not what is proposed in the Bill, and I will address that in the course of my response to this debate.

Subsection (1) provides the House of Commons with a new power to vote for Dissolution following a process that I believe is robust and transparent. My noble friend has indicated that he has his own further amendments about what might follow, including the point raised by the noble and learned Lord, Lord Falconer, about what would happen in the event of a Prime Minister resigning, and we will address these when we come to my noble friend’s amendments.

The point is that if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence, particularly where confidence in the Government is not necessarily the issue and may not be what is driving the need for an early election. We believe that it would not be right or proper to conjure up a vote of no confidence in these circumstances. That is why the Bill seeks to prevent that with our proposal for a two-thirds vote.

In the case of Germany, Governments have in the past had to engineer no-confidence votes even where there was a consensus in favour of an early general election, because there was no provision in its constitution analogous to the procedure for a Dissolution vote in this Bill. At that time there was no alternative to engineering a no-confidence vote.

22:29

My noble friend reasonably asked about other nations. I spotted what he said about national parliaments, as opposed to the devolved Parliament and Assemblies, which have a provision that is very similar to what is set out here. I am unable to answer now but if I get information I will certainly write to him. The point was made in an earlier debate by the noble Lord, Lord Howarth, that it is sometimes difficult to translate what happens in other countries to what happens here. This is where we reach a position that answers the question of the noble and learned Lord, Lord Falconer of Thoroton, about why we have two mechanisms. He is right about why the coalition agreement mentioned 55 per cent.

[Lord Falconer of Thoroton]

I understand what the Minister said earlier. Is he now saying that this is a product not of the coalition agreement but of some other arrangement?

[Lord Wallace of Tankerness]

I might be missing something somewhere. The coalition agreement referred to the 55 per cent that the noble and learned Lord has described. At the same time, he gave a plug to my right honourable friend’s book, for which I am sure he is very grateful. However, that is not in the Bill; I am describing what is in the Bill. Of course it is a product of the coalition. It is a coalition Bill that is before your Lordships’ House.

I recall sitting in this House during Questions and listening to many noble Lords on all sides of the House criticise that 55 per cent provision. The noble and learned Lord nods his head in agreement. It was a provision that received considerable criticism. There was a criticism that it meant a vote that could lead to a Dissolution. People asked about votes of no confidence. At the same time, there was the issue of whether there ought to be a higher majority to trigger a Dissolution automatically. The two mechanisms that provide the trigger in the Bill as it stands address the criticisms that were made. I make no apology for saying that the Government listened to the criticisms that were made, tried to take them on board and came forward with what is proposed here. It may be unique to the United Kingdom but it addresses some of the concerns.

We will come later to the issue of no-confidence votes but at present this House and—it is fair to say —other commentators and people in the other place said that there was an important point about the vote of no confidence on a simple majority having a consequence. The Government listened to that. Historically, there have been two possible outcomes. In 1924, when there was a vote of no confidence in Mr Baldwin’s Government, Mr Baldwin resigned and a new Government was formed under Ramsay MacDonald. In 1979, as has often been mentioned in our debates on this Bill, when Mr James Callaghan’s Government lost a vote of no confidence, he then proceeded to seek a Dissolution and an election was held.

When we come to the next part of this clause, that is what we will be discussing. We will no doubt debate what constitutes a no-confidence vote. We seek to reflect what has been the constitutional position of the outcome of a no-confidence vote on a simple majority. Equally, we took the view that there were circumstances in which it would be more appropriate, if there was a consensus that a Parliament should be brought to an end, to have a trigger mechanism that was more than a simple majority, such as a two-thirds majority.

[Lord Lamont of Lerwick]

I apologise for not having been here earlier but I have heard everything since my noble friend Lord Norton spoke. The Minister referred to 1979. Would he describe for the benefit of the Committee how the provisions of this legislation would apply to the conditions of 1979? If there had been a vote of no confidence in Mr Callaghan’s Government under the provisions of this Bill, would he have been able to wait a fortnight, give jobs to the Irish nationalists and re-form his Government, thereby avoiding an election?

[Lord Wallace of Tankerness]

Hypothetically, if he was able to do that, it could have happened. In a Parliament with less than six months to go, it is highly unlikely that that would have happened. There has to be a political reality. It was quite clear that that Government had run their course and there was a general view that an election was needed. Therefore, I think it highly unlikely that a new Government would have been formed, and no new Government having received a vote of confidence within 14 days there would have been a Dissolution. That is one set of circumstances. However, there ought not to be a vote of no confidence if that is not the reason behind the consensus that Parliament needs to come to an end and for there to be a general election. Rather than contrive a vote of no confidence, one should have it as a solution but with the threshold set at such a level that it cannot easily be obtained by a single party for political advantage.

In much of the noble and learned Lord’s speech at Second Reading, his main agony about this Bill was that it would be possible for a Government to abuse the procedure and seek a Dissolution, which would defeat the whole purpose of having fixed-term Parliaments. Therefore, we believe that it is appropriate that the Dissolution should be set at a level which has not been achieved by any governing party since the Second World War. I fully accept that we departed from the 55 per cent figure because that was clearly not going anywhere. It was roundly criticised in this House and, indeed, in other places. As I say, I make no apology for having listened to that criticism, reflected on it and come forward with a proposal which still maintains that there should be a vote which could trigger a Dissolution, but one where the percentage figure is much higher to the extent that it would not be achieved by one party alone. That is why that first trigger mechanism—the subject matter of this amendment—is there. The two-thirds majority that is proposed is the same majority required for a Dissolution vote in the devolved legislatures, as set out in the relevant legislation.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble and learned friend but I think that three times now he has referred to a two-thirds majority. However, it is not a two-thirds majority because that would be two-thirds of the votes cast in the Division. This is two-thirds of the number of Members, including vacant seats. Will he set the record straight?

[Lord Wallace of Tankerness]

I am happy to do so. I think that I corrected myself the first time I got it wrong. I am grateful to my noble friend for reminding me of that. As I say, since the Second World War no Government have been able to command two-thirds of all the seats. This means that Parliament can choose to dissolve itself but Government cannot dissolve Parliament for their own political advantage.

The noble Lord, Lord Howarth, asked why the two-thirds requirement should not be set out in Standing Orders rather than in statute. The two-thirds requirement is set out in legislation as opposed to Standing Orders so that any change to the requirement would have to be made by fresh primary legislation, which would require the consent of both Houses of Parliament, whereas Standing Orders of the other place would require only one House of Parliament to determine that and probably could be amended or revoked by a single simple majority in the other place, and therefore could defeat the purpose of the measure. It is better to have the two-thirds vote set out in statute, which means that it has to be changed by statute. That would involve this House rather than the other place simply determining it by means of its own Standing Orders. It is not appropriate that a significant detail of reform affecting Parliament as a whole with implications for our prerogative should be amended by Standing Orders of one House of Parliament.

The noble Lord, Lord Howarth, very helpfully indicated that he would speak to his Amendments 28 and 29 at the same time. The first of those would omit the requirement for a two-thirds majority while the second would increase the figure to three-quarters of all MPs voting in favour of the measure instead of two-thirds. The reason why we are opposed to the simple majority—it would be a majority in that case—for the Dissolution is because it would undermine one of the purposes of the Bill: namely, establishing a fixed term and removing the Executive’s ability to decide when Parliament should be dissolved. Noble Lords may recall that at Second Reading mention was made of the late Lord Holme of Cheltenham and his analysis of arrangements whereby the Prime Minister can choose the timing of the election. Lord Holme described a general election as,

“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 1/3/11; col. 1007.]

I have reflected why he would not have his running shoes on, but he would certainly have the starting pistol in his hands. Unfortunately, Amendment 28 of the noble Lord, Lord Howarth, would preserve the Executive’s ability to decide when a Parliament was dissolved, by providing that a Dissolution motion could be passed by a simple majority.

At the other end of the scale, the noble Lord suggests a majority of 75 per cent of Members who vote. Again, it is not an unreasonable proposition, but I believe that, on balance, the threshold of two-thirds strikes the right balance in providing a safeguard against abuse of the power, while ensuring the effectiveness of the Bill’s provisions. This Parliament passed similar provisions in relation to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.

I have sought to explain why there are two mechanisms and how they are different. I indicated clearly that the 55 per cent originally proposed did not find favour. Therefore, it was only right and proper that the Government listened to those views, and we have come forward with two trigger mechanisms—one for when there should be an election, if there is a consensus, and another for when the Government have lost the confidence of the House of Commons. They are different issues that are dealt with separately. Interestingly, the Constitution Committee, whatever other concerns it may have had, thought that the Government’s proposals on the two trigger mechanisms were an appropriate way forward. In those circumstances, I ask my noble friend to withdraw the amendment.

[Lord Norton of Louth]

My Lords, I am grateful to noble Lords who have spoken in the debate which, despite the late hour, has been quite useful and has teased out the reasons for the provision. Perhaps I may begin by briefly correcting my noble and learned friend Lord Wallace of Tankerness on his reference to the German example. He said that the Government there had engineered a vote of no confidence in themselves. In fact, they engineered defeat of a motion of confidence, which is not the same thing and is relevant to discussions that we will have later on how one defines a vote of confidence.

Reference was made earlier to the Constitutional Reform and Governance Act and pre-legislative scrutiny. I served on the Joint Committee on the draft Constitutional Renewal Bill, as it then was. The title was later changed because I and others pointed out that nothing was being renewed by the Bill. My point is that the Joint Committee met for two hours twice a week for nearly three months. The more we discuss this Bill, the more convinced I am that it would have benefited from extensive pre-legislative scrutiny. The problem with much of the Bill is that it is not grounded in evidence. It is not exceptional in that respect but, as we have heard, this part of the Bill was the product of negotiations by politicians who are not necessarily noted for their knowledge of our constitutional arrangements.

Subsection (1) is highly unusual—certainly in comparative perspective. My noble and learned friend said that he would write to me with details of where this provision applies elsewhere. It may be helpful if I tell him that I can save him a letter. The noble and learned Lord, Lord Falconer of Thoroton, thought that we were unique in this provision. That is not quite the case. Lithuania, Mongolia, Tajikistan and Turkmenistan have a similar provision. I wanted confirmation that the Government were unaware of that.

[Lord Falconer of Thoroton]

My Lords, I apologise for misleading the House in that respect, and I accept the helpful correction of the noble Lord, Lord Norton of Louth.

[Lord Norton of Louth]

I am grateful to the noble and learned Lord; I am glad he found that helpful, although my remarks were directed far more at the Government and to put the issue in comparative perspective. It is that sort of information from which the Government should have started when looking elsewhere to draw up the provisions. In terms of being unique, the noble Lord, Lord Howarth of Newport, will not be surprised to know that if his three-quarters proposal were to be implemented, it would render us unique.

However, my point is that measures of this type need to be better grounded in thorough evidence before we proceed with them. This provision needs scrutiny that deserves far more consideration than we are able to give it this evening, and we may wish to reflect on that between now and Report. For the moment, I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

Amendments 28 and 29 not moved.

Amendment 30

Moved by

[Lord Marks of Henley-on-Thames]

30: Clause 2, page 2, line 10, leave out “of” and insert “tabled by the Leader of the Opposition in the House of Commons declaring that the House of Commons has”

22:45

[Lord Marks of Henley-on-Thames]

My Lords, the effect of the amendments in this group, tabled by my noble friends Lord Rennard and Lord Tyler, and by me, is to refine Clause 2(2), which covers the provision for an early dissolution in the event of a vote of no confidence on a simple majority followed by a period of 14 days in which no Government is formed that enjoy the confidence of the House of Commons.

At Second Reading, the noble and learned Lord, Lord Falconer of Thoroton, in what he described sotto voce a moment ago as one of his “many agonies”, made the point that under the clause it would be theoretically possible for a Prime Minister to engineer a vote of no confidence in his or her Government by his or her side so as to secure an early dissolution at a time of his or her choosing. That would deprive the Bill of its intended very beneficial effect of removing from the Prime Minister precisely that power.

The criticism cannot be made of Clause 2(1), which requires a two-thirds majority of all the seats in the House of Commons to trigger an early dissolution, so that in practice cross-party support would be required, given that no Parliament in recent history has enjoyed such a majority. However, in relation to Clause 2(2), the criticism made by the noble and learned Lord is technically accurate. At Second Reading, the response was made that any Prime Minister engineering a vote of no confidence in his or her Government in such a Machiavellian way would be punished at the ballot box. However, I and others suggested that the problem might need to be addressed at later stages of the Bill. The need to address the point made by the noble and learned Lord is given added weight by the fact that, in Germany, Governments have resorted to the device of engineering defeat on votes of confidence, as the noble Lord, Lord Norton of Louth, correctly pointed out. It was done by Chancellor Brandt in 1972, by Chancellor Kohl in 1982 and by Chancellor Schroeder as recently as 2005.

The way in which Amendment 30 addresses the problem is simple. By requiring that a Motion of no confidence under Clause 2(2) must be tabled by the leader of the Opposition, the mischief is effectively addressed. The position of the leader of the Opposition is constitutionally recognised. He or she would inevitably be—and historically invariably has been—the person who would move a genuine Motion of no confidence. It follows that requiring that he or she be the mover of such a Motion if it is to have effect is a simple way to achieve the intention of the Bill. It would also provide a certain symmetry. Given that the purpose of the Bill is to remove from the Prime Minister the power to call an election at a time of his or her choosing, who better to be responsible for the trigger for an early election when all-party consensus is absent than a Member of the House who seeks to replace him or her as Prime Minister?

I note that Amendment 33, proposed by the noble Lord, Lord Howarth of Newport, is to the same effect. It gives me great confidence in our amendments that this is the first time since I joined your Lordships' House that I have had the pleasure of expressing agreement with the noble Lord in a debate on a constitutional matter.

I will make one final point. A further effect of Amendments 30 and 31 is that they contain a simple definition of a vote of no confidence. A Motion of no confidence would be a Motion declaring that the House of Commons had no confidence in Her Majesty’s Government. That would mean that, once any vote went against the Government on an issue that would or might be seen as a confidence issue, the leader of the Opposition would have a chance to table a Motion of no confidence in those terms. If it were passed, the Speaker’s certificate would follow and the 14-day period provided for by Clause 2(2) would be triggered. If the Motion failed, that consequence would not follow. That arrangement would avoid doubt or argument, and it would avoid the need for any complication in the definition of what did and what did not constitute a vote of no confidence. I beg to move.

[Lord Howarth of Newport]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has just noted, it is remarkable that I have tabled an amendment which seeks to achieve exactly the same purpose as the amendments in this group tabled by the Liberal Democrat noble Lords. It is a nice example of how our parliamentary dialectic can be fruitful. The public notice all this adversarialism—they notice that we are always disagreeing with each other. However, if one takes a longer view, we find that all this debate and argument tends to produce a new consensus. Until recently, the Liberal Democrats wanted immediately to move on to discover new truths and interest us in new suggestions. They have been the grit in the oyster, endlessly introducing new ideas into our public debates. I hope that they will be able to continue to do so now that they have joined the governmental establishment. We shall see.

We have heard a certain amount about Germany from the noble Lords, Lord Norton of Louth and Lord Marks. I think that it was in 1983, although the noble Lord, Lord Marks, suggested it was 1982—the noble Lord, Lord Norton, will tell us who is right—that Chancellor Kohl deliberately contrived to defeat a Motion of confidence in his Government. As I understand it, the reason was that he wanted an election because he had come to power in the previous year by means of a parliamentary vote and not by means of popular endorsement at the election. He lacked a popular mandate and he wanted one. I do not think that he was punished at the ballot box, so I am not sure that the safeguard that the Government have suggested exists against the cynical use of the no-confidence provisions in the Bill to contrive an early election by an unscrupulous Prime Minister would necessarily work. On that occasion at least, Chancellor Kohl did not suffer at the election.

It is at least a possibility that Mr Cameron, too, not having won an election and feeling that he lacks popular endorsement, might, if he thought that he had an opportunity to do better in an early general election, be very tempted to go for that. It is hard to foresee that but who knows? If the 14-day provision that we are about to debate on another amendment were taken out, it would be even more important to guard against the Prime Minister being able to contrive a vote of no confidence. If immediately following a vote of no confidence he could go to the country, it would be that much more attractive to him.

I think we can see why the Liberal Democrats are keen for the Bill to be amended to provide that only the leader of the Opposition can table a Motion of no confidence. It is, sadly, because they do not trust their coalition partners and the Prime Minister. They worry that, as the Liberal Democrats become more unpopular—and we will perhaps see evidence of that after the local government elections and in the AV referendum—and as the cuts, which those who voted for them did not expect them to support, start to bite, Mr Cameron may ditch them and cut and run. Unless this amendment is in the Bill, the supermajority lock may not do the trick for them and keep the Deputy Prime Minister and his colleagues in office by postponing the evil day when he has to face the electors of Sheffield and the Liberal Democrats have to face the electors of the United Kingdom.

I note that an amendment of this kind would be less necessary if we were to have proportional representation as that would make it less likely that any party would win an overall majority in an early election and, therefore, it would be less tempting for the Prime Minister to contrive an early general election. However, we are where we are. The Liberal Democrats failed to secure a referendum on proportional representation and we have a referendum on the alternative vote only. I hear different views as to what the alternative vote might produce: some say that it is a majoritarian system of election that tends to reinforce the swing and others say that it is more likely that the alternative vote will produce an endless series of coalitions. Whatever the outcome proves to be in practice, with that electoral system it would be more important to have the safeguard which the noble Lord, Lord Marks, and others have proposed. I hope we do not have AV and some of us will do our best to ensure that we do not have it.

I see one significant argument against these amendments. We might have a situation, which the noble Lord, Lord Norton of Louth, has adumbrated and which the Government have already played out, in which the Government lost a vote on a key Bill, they were incapable, for whatever conjunction of circumstances, of governing effectively, and their majority had fallen as in 1951 or 1996, but the Opposition reckoned that it was in their political interest to defer the election to allow the Government to continue to stew in their political juice for a little longer. In that situation they would not want to table a Motion of no confidence just yet. Of course, that would be bad for the country.

These are all hypothetical possibilities. It is very difficult for us to provide for every contingency that might arise, but I think it would be sensible to incorporate an amendment of the kind moved by the noble Lord and of the kind that my Amendment 33 provides.

23:00

[Lord Norton of Louth]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer of Thoroton, will speak to Amendment 40, but perhaps I might anticipate that one as well. I suspect that my noble and learned friend Lord Wallace of Tankerness will be advising the House against these amendments and I thought that at this hour of the night I might bring him some joy by saying that I shall agree with him in doing so.

I shall quickly adumbrate the problems that I foresee with the amendments. I understand what they seek to achieve, but I have concerns. I understand the motivation for limiting the Motion of no confidence to be moved by the leader of the Opposition. As we have heard, it is to limit the Government so that they do not engineer a vote of no confidence. However, it does exclude other Members of the House from the opportunity to move a vote of no confidence. The circumstances in which that is likely to happen may be exceptional but in historical terms they are not unknown. One of the most important debates that took place in wartime happened on a vote of no confidence which was not moved by the leader of the Opposition. It is unusual but I am not sure that should be excluded. I have certain concerns about the way in which that amendment is drawn. I can see the reasons for trying to prevent the Government doing that, but there are problems if it is solely confined to the leader of the Opposition.

My second problem with the amendment is the way in which it is drawn in relation to what constitutes a Motion of no confidence. It limits it to the House passing a Motion expressing no confidence in the Government. That narrows it in relation to what we presently understand to be a confidence Motion in the House of Commons and it narrows it unduly. Therefore, because of Amendment 50, to which we shall come on the next day in Committee, I would prefer to go down the route that seeks to preserve, as far as possible, our existing understanding of what constitutes a vote of confidence rather than narrowing it in the way that the amendment proposes.

I now anticipate Amendment 40, to which the noble and learned Lord, Lord Falconer, will speak. I suspect that, had my noble friend Lord Cormack been here, he might have accused the noble and learned Lord of tabling it on a mischievous basis. I am sure that the noble and learned Lord will say that it is serious. Perhaps we could compromise and say that it is serious but mischievous. The amendment states that,

“a vote of no confidence cannot be a valid mechanism to precipitate an early general election if the Speaker of the House of Commons has reason to believe that it is called with the support or collusion of the Government and issues a certificate to that effect”.

I have problems with the existing wording of the Bill in relation to the Speaker. As drafted, it could draw the Speaker into political controversy in issuing a certificate. If he can be drawn into controversy under the Bill as presently drawn, he would be drawn into it in spades under Amendment 40. We can just imagine what would happen if the Speaker said, “No, no, the House has passed a Motion of no confidence, but I think that the Government has probably colluded in it”. One can imagine the uproar that would be caused. The noble and learned Lord may be proposing his amendment to tease out that very fact; we shall hear shortly. On the face of it, as it is worded, his amendment exacerbates what I consider to be an existing problem in the Bill. Although I appreciate the reasons behind the amendments relating to the leader of the Opposition and votes of confidence, I cannot support them and will be quite happy to support my noble and learned friend in resisting them.

[Lord Falconer of Thoroton]

First, on the amendment of the noble, Lord Marks, I agree with the noble Lord, Lord Norton of Louth. It fails to deal with two particular problems. First, when a Government lose a vote that is obviously a vote of confidence—if the Government had been defeated on the Motion authorising the use of force in Iraq, that would plainly have been a vote of confidence—it would be wholly wrong if there then had to be a vote of no confidence thereafter.

Equally, there have been votes which the Government lose, for example, the vote on Maastricht in 1992, which they then followed—in my view, entirely correctly —with a Motion tabled by the Prime Minister on a vote of confidence in the Government. If that vote had resulted in the Conservative Government being defeated on the vote of confidence, which was the traditional method of dealing with that, the consequence should have been not that there then needed to be a vote of no confidence from the Opposition—which, as I understand it, is the view of the noble Lord, Lord Marks—but that there should be a general election, or a 14-day delay, which we shall debate later.

Those two examples would not be covered by the proposal of the noble Lord, Lord Marks, and therefore lead to dealing, on one view, with the collusion argument but strengthen the other risk in the Bill, which is that a Government who genuinely have lost the confidence of the Commons are able to stay in power. Just as the noble Lord, Lord Marks, gets one piece of the wallpaper on the wall, another falls off.

On my amendment, I could not have asked for more from the noble Lord, Lord Norton of Louth. It is my view that in relation to a vote of no confidence, there is no possible mechanism one could adopt which would allow anyone to go behind the motivation of why a particular group of people voted in favour. That is an impossible task. It is like the vote of 100 in the Commons voting for an all-elected House of Lords. It has been suggested that that was a vote in order for there not to be an all-elected House of Lords. But one cannot go behind the vote; one must accept it at face value.

I tabled the amendment simply to illustrate the correctness of the conclusion of the committee on which the noble Lord, Lord Norton of Louth, sits, chaired by my noble friend Lady Jay, that there is no ability to control a vote of confidence and that a Prime Minister with a majority can, if he or she wishes, engineer a situation where he or she loses a vote that is a vote of no confidence, even if not so called.

I have a third objection to the amendment tabled by the noble Lord, Lord Marks. Is it such a bad thing that, had these provisions been in place, it would have been open to, for example, Mr Heath to go to the country not by engineering in some deceitful way but by simply saying that he thought that the Government needed to have the confidence of the people to go on with the particular stance they were taking? He would therefore have put down a Motion of confidence in his own Government with a view to there being an election. Is that a bad thing? What is the view of the Government on that? These are probing amendments in Committee. The amendment tabled by the noble Lord, Lord Marks, covers one situation, but it leaves a lot of others uncovered. I agree with the noble Lord, Lord Norton of Louth.

I tabled my amendment simply to establish the point made by the noble Lord, Lord Norton. You cannot go behind people’s motivation, which means that the Select Committee is probably right. The Government of the day can always have an election whenever they want on a majority of one. Do the Government think that is necessarily a bad thing?

[Lord Wallace of Tankerness]

My Lords, this is the first of a series of groups of amendments dealing with the trigger mechanism from no-confidence Motions. I thank my noble friend who tabled this amendment and noble Lords who have tabled subsequent amendments. A general view has been expressed, particularly at Second Reading, that there is some merit in having certainty. A number of those who have contributed to this debate have made the point about the potential for abuse.

As I have indicated, the Government believe that the package of the two trigger mechanisms is sensible and straightforward. However, I accept that there has been considerable interest in the handling of the no-confidence Motions in particular. When the Bill passed through another place, there was some detailed debate on this, but it was not amended. The more one looks at it, the more one finds that perhaps the balance that has been struck in the Bill is right. However, the function of this Chamber is to be a revising Chamber to improve legislation and I want to make it clear to noble Lords that, in our deliberations on this amendment and the subsequent amendments, the Government are willing to listen carefully and to reflect on what noble Lords have to say with regard to trying to address the issue of certainty about what constitutes a no-confidence Motion and ways of trying to eliminate abuse.

It is to address certainty and to eliminate abuse that the amendment moved by my noble friend Lord Marks provides that only a Motion of no confidence tabled by the leader of the Opposition would trigger the procedure in Clause 2(2)—namely, the 14-day period. The amendment spoken to by the noble Lord, Lord Howarth, seeks to achieve the same result. We have always been clear that this Bill is not a new constitution. It is intended to bring in an important provision—fixed-term Parliaments—having proper regard to existing constitutional arrangements and conventions. On the whole, the purpose of the Bill is to replace existing conventional democratic controls with legal controls in the context of a fixed-term Parliament. The only foolproof way in which to prevent an Executive from manipulating the rules to engineer a premature general election would be to remove those rules entirely—in other words, to provide for rigid fixed terms. The mood of the House at Second Reading—and I have not heard anything to contradict it since—was that there was very little support for having such rigidity. The Bill therefore provides procedures that allow for an early general election where one is clearly required. All the debates that we have had in this House and the other place confirm that this is regarded as a necessity. I think that we are in the territory of assessing whether the procedures in the Bill are satisfactory, rather than whether we should have these procedures at all. The purpose of these amendments is to see whether they can be improved on.

It is the case that the Bill does not say who may table a Motion of no confidence. That concurs with current practice. As was mentioned by my noble friend Lord Norton and the noble and learned Lord, Lord Falconer, there is no restriction on who may table in the House of Commons a Motion of no confidence. As it happens, in practice, these have been tabled by opposition parties and almost always by the leader of the Official Opposition. The background note prepared by the Library in the other place sets out a history of confidence Motions. I am acutely aware that my noble friend Lord Norton of Louth has made an in-depth academic study of confidence and no-confidence Motions. Since 1895, not a single Motion has included the words “no confidence” other than in the name of the leader of the Opposition. As noble Lords are well aware, a decision by the leader of the Opposition to support or to table a no-confidence Motion automatically takes precedence over that tabled by any other party.

The question then is whether there is reason to deviate from current practice for the purposes of this legislation. I have listened carefully to what has been said about potential abuse, but I come back to the point that it would be obvious if the Government had set out to subvert the standard procedures of the other place. I take the view that it can in no way be excluded altogether but that there would almost certainly be retribution by the electorate. On the other hand, the electorate might decide that there was to be no retribution and that they fully supported the Government of the day—at the end of the day, the electorate are right.

The no-confidence procedures in the Bill as drafted would be activated only if the House of Commons had voted to the effect that it had no confidence in Her Majesty’s Government. One has to reflect that, even if a Government tried to contrive it, if they went to the country with the Opposition saying that the House of Commons had no confidence in the Government, they might have a presentational problem on their hands. For the moment, I put it no higher than that. Those who think that the safeguard is meaningless are perhaps trying to nail down a political process with legal certainty. I have, I hope, been quite up front in these debates when I have said that if the Government were absolutely determined to try to abuse the rules, as I think the Constitution Committee itself accepted, although it would be possible to abuse them, there would be consequences to that. I rather suspect that, as the idea of a fixed-term Parliament and the rules set down by a fixed-term Parliament became more and more part of what people were accustomed to, there would be consequences over time if it was thought that a particular Government were trying to bend or get around the rules. The political consequences would be more damaging.

The amendments would have certain unintended consequences. The first of these is that the proposal is out of step with the process of rebalancing that is going on in the other place between the Front-Benchers of all parties and the Back-Benchers. My noble friend Lord Norton of Louth made that point. In the past few years, there have been a series of reforms in the other place that have been designed to give Back-Bench MPs a greater voice. Part of this involved the report by the Reform of the House of Commons Committee, sometimes known as the Wright committee after its chairman Dr Tony Wright, the long-standing chairman of the Commons Public Administration Select Committee, and the establishment of the Backbench Business Committee. Amendment 30 would be counter to the general trend of these reforms by allowing the no-confidence procedures in the Bill to be triggered only by the leader of the Opposition.

The amendments would put in place a statutory provision that excluded the Back-Benchers and entrenched the dominance of those on the Front Benches. I am not sure that most Members of the other place would necessarily welcome the inclusion of such a provision when we returned the Bill to them. It is interesting that a similar amendment was tabled and debated in Committee in the other place, but I think that it is fair to say that it did not receive a warm welcome and was not even pushed to a vote. The amendments also leave open a number of unanswered questions, most notably what would happen if there had been a successful no-confidence vote in the Government but the leader of the Opposition failed to table a Motion of no confidence.

Finally, Clause 2 has been drafted in a way that is sensitive to the Commons having control of its internal procedures. Only the bare essentials of the new mechanisms have been put in place—there needs to be a two-thirds vote in favour to trigger a Dissolution vote, and the 14-day period commences on the passing of a no-confidence vote—but is it right to go further than this? Is it right to use legislation to tell the other place who is permitted to table a Motion or indeed to devise the precise words that should be used in a Motion for it to have legal effect?

As I said, I fully understand and indeed sympathise with the underlying motivation to these amendments, and I have indicated that we are willing to consider them, but there would be serious practical problems, and indeed constitutional problems, for the role of Back-Benchers. The alternative of letting the Commons develop its own practice and for the Speaker to inform the outside world whether this practice has been complied with through the Speaker’s certificate is preferable. We believe that the procedures that we have put in place to trigger early Dissolution are robust and transparent, and I ask your Lordships to reflect on the conclusions of the Constitution Committee on the trigger mechanisms for an early election. The Constitution Committee did have concerns about the definition of no-confidence Motions, which we have discussed and to which we will return, but it broadly endorsed that there should be two trigger mechanisms and that the sort of manipulation which noble Lords are concerned about would be seen as,

“an abuse of the Act’s provisions”.

23:15

The Government’s view is that the Bill steers an appropriate line between the concerns that have been expressed in this debate and those which I anticipate coming from my noble friend Lord Cormack on our next Committee day, when we will debate his amendment. It does not seek to outlaw or prescribe any form of no-confidence Motion, but provides sufficient clarity for it to be obvious when the Government were seeking to subvert the processes. No doubt, we will have ample opportunity to discuss this further.

Amendment 40 from the opposition Front Bench is aimed at similar concerns about manipulation. I think that it was proposed in the spirit of trying to tease out where we are on this. It would provide a further condition on the circumstances in which there is to be an early election. That further condition would be that the Speaker of the House of Commons would have to assess whether the vote of no confidence had been secured with the support or collusion of the Government. If it had, the Speaker would certify that fact and there could not be an early election.

Again, as I think was identified by my noble friend Lord Norton, the amendment would seem wholly undesirable because of the position in which it would place the Speaker. He would have an important role to play under the Bill as presently drafted. But to suggest, in addition to that, that he would have to look at the motivation of those who had pursued the Motion is of a completely different order. He would have to assess whether an election had been called with the support or collusion of the Government, which would seriously risk the Speaker becoming involved in matters of political controversy. He would be required to consider basically what was going on behind closed doors to discover how the Government were supporting the Motion of no confidence. How could he distinguish between genuine dissent from government Back-Benchers or a government-led plot? I believe, and I am sure that the House would agree, that this is a matter on which the Speaker should be neutral.

I know that the noble and learned Lord has concerns about the misuse of no-confidence Motions. As I indicated earlier, if we can find an acceptable way of trying to eliminate the potential for abuse, we are certainly open to these suggestions. I do not believe that this is one of the ways of doing it. But, ultimately, and particularly after rules on fixed-term Parliaments become part of our constitutional architecture, the idea of a Government trying to subvert the rules for their own benefit would be seen through by the electorate. As I have indicated, the Government are willing to consider proposals to amend the procedures on no-confidence Motions if we believe that they meet the criteria of providing certainty, but not doing so in a way which could lead to more unintended consequences.

[Lord Falconer of Thoroton]

As regards the third question—let us assume that this Bill applied and that the Opposition did not support a general election—would the Government be willing for Heath, for example, to have a general election in those circumstances? Would they be against it? Is that an abuse?

[Lord Wallace of Tankerness]

Just to be clear about what I am being asked, as I understand it the noble and learned Lord has asked me whether, in February 1974, when Mr Heath wanted an election, if the Opposition had been against it he could have contrived a situation to do it. Clearly, under these circumstances, it would have been possible to contrive. He might not have had the election on the date on which he wanted it if it had had to be 14 days after he had lost a confidence Motion. He may well have found in weighing that up whether it was the right course of action. It may have saved him from what happened in the end.

I believe that it would be possible but, again, it would be a matter of judgment. Indeed, the electorate did make a judgment at the time on a Prime Minister who chose to go before his term of office was anywhere near complete. If he had also contrived the means of doing that, the consequences for him might well have been greater. That is pure speculation. We will never know. On that basis, I ask my noble friend to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the indications given by the Minister that there will be some flexibility in consideration of how to deal with no confidence Motions. The Minister should know that I and my noble friends who proposed these amendments fully support the two triggers and the basis on which no confidence Motions are dealt with in the Bill, subject to the proposition mentioned at Second Reading by the noble and learned Lord, Lord Falconer of Thoroton. Indeed, it gave me great pleasure to agree with the noble Lord, Lord Howarth of Newport, in relation to this amendment, but it gave me less pleasure to hear him suggest that the only reason the Liberal Democrats are moving the amendment is because they do not trust their Conservative colleagues not to rat on the coalition and go to the country. I invite noble Lords to accept that the reason for the amendment is simply to address the problem that the noble and learned Lord, Lord Falconer of Thoroton, identified in the Second Reading debate, which was that the Prime Minister could technically engineer a dissolution and that that was the mischief at which this Bill is aimed.

I turn to the history of no confidence Motions. I had understood from the Library note, as had my noble and learned friend Lord Wallace of Tankerness, that since 1895 all Motions of confidence or no confidence have been moved by the leader of the Opposition, or at least if not initially, then taken over by him after others had moved such Motions. The reason why that is an attractive proposition is that it is simple and it vests in the alternative Prime Minister the power to move the Motion of no confidence. In tabling the amendments as we did, my noble friends and I considered carefully the question of balance between Front-Benchers and Back-Benchers in the other place, to which the Minister referred. However, if one does not specify that it should be for the leader of the Opposition to move a Motion of no confidence, inevitably the field is opened in such a way as to make it possible for the Prime Minister to collude with another Back-Bench Member of Parliament, not of his own party, in the moving of a Motion of no confidence. That is undesirable because it increases the danger to which the noble and learned Lord, Lord Falconer of Thoroton, originally referred.

On the question of the definition of a vote of no confidence, I accept, as I suspect do most Members of the Committee, that traditionally in the House of Commons, Motions on issues considered to be issues of confidence may take many forms. But, at the margins, such Motions do not necessarily amount to Motions of no confidence and I do not accept that the desirable way to deal with those Motions on the margins is by requiring the Speaker to certify that they are Motions of no confidence. If this Bill is enacted, we are moving into a new era in this field, that of fixed-term Parliaments with a statutory code for early Dissolution. It is, I would suggest, appropriate that there should be a new procedure, a new clarity, in the statutory code on the question of votes of no confidence. In moving the amendment, it seems to us that the sensible way to proceed is for a Motion on a confidence issue that may be at the margins or may be dubious to be followed by a clear, declaratory Motion of no confidence about which there could be no doubt. It is for that reason that the simplicity and, I suggest, the elegance of the solution whereby the leader of the Opposition has that responsibility, should be accepted.

The idea that a certificate of non-collusion should be the way forward, as suggested in the amendment proposed by the noble and learned Lord, Lord Falconer of Thoroton, carries with it endless difficulties that make the solution unattractive. I see that the noble and learned Lord is nodding in agreement. It would involve the Speaker in value judgments, which would be thoroughly undesirable, would be difficult to make and would require him to conduct a single-handed assessment of the evidence before him of collusion or non-collusion. I note that the noble and learned Lord appears to agree with that.

I urge the House in passing this Bill to have regard to the central mischief at which it is aimed. In so doing, I invite a robust answer to the question of the noble and learned Lord, Lord Falconer, about the conundrum facing Mr Heath in 1974. He wanted Dissolution on the basis of testing who governed the country, the Government or the trade unions. Had he been able to get a majority, as I suspect he would have done, of two-thirds—in other words, the agreement of the Opposition to go to the country on that issue—that would have been all well and good. Had he been unable to get the agreement of the Opposition, I suggest that it would not have been appropriate to allow him the option of engineering a vote of no confidence in his own Government in those circumstances, because what should have happened was that either the House agreed, the Opposition agreed or the Opposition moved the Motion.

In so saying, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Amendment 31 not moved.

Amendment 32

Moved by

[Lord Howarth of Newport]

32: Clause 2, page 2, line 11, at end insert—
“( ) the Speaker of the House of Commons had in advance of the motion in question being debated certified that the motion was to be regarded as a motion of no confidence, and”

[Lord Howarth of Newport]

My Lords, this amendment deals with the requirement for the Speaker to issue a certificate. This is one of the most important and difficult issues in the Bill. I was very interested to hear the noble Lord, Lord Marks, speak thoughtfully about this problem in his concluding remarks just now. It seems to me, if I may venture to suggest this to the Committee, quite unsuitable that we should embark upon this very major debate at this hour of the evening, but if that is its wish, I shall very briefly sketch the issue that I think we should return to—which we will be able to do, for example, on Amendment 51, which I have tabled as an amendment to Amendment 50 in the name of the noble Lord, Lord Cormack.

Amendment 32 would require the Speaker to have certified in advance that a Motion was to be regarded as a Motion of no confidence if it were to lead to an early general election. The legislation requires the Speaker to issue a certificate establishing that a Motion of no confidence has been passed on a Division as a precondition of Dissolution and an early general election. The idea of a Speaker’s certificate was lifted from the Parliament Act 1911, which requires the Speaker to certify that a Bill is a money Bill before it goes to the House of Lords. That certification is of a relatively ascertainable fact. The characteristics of a money Bill are clearly described in the preceding subsection of the Parliament Act.

The introduction of the concept of a Speaker’s certificate is entirely novel, I think, in the context of Motions of no confidence, and I believe that it needs extremely careful consideration for three reasons. First, there is the difficulty of defining a Motion of no confidence, a Motion of confidence or vote of confidence—what exactly is the Bill talking about? Secondly, through this procedure, the Speaker would be liable to be placed in extremely contentious political circumstances and to have to play an extremely contentious part in them. Thirdly, the statutory requirement for the Speaker to issue such a certificate may lay him open to legal challenge in the courts, either those of this country or the European Court of Justice. That is a major hazard apprehended by the Clerk of the House of Commons. For all these three reasons, I believe that we need to proceed with the utmost caution and that what is drafted in the Bill carries with it very considerable risks.

23:30

I would prefer frankly to lay out my arguments more fully when we come to Amendment 51, when I think the Committee expects to address these major concerns about the nature of a Motion of no confidence and the Speaker’s role. For now, I shall say only that among the reasons why I have tabled this amendment is that the Minister, Mr Harper, in giving evidence to the Select Committee on the Constitution, said that it was the Government’s view that,

“the Speaker would make it very clear before such a vote took place whether it was a vote on which he would issue his certificate”.

We need to examine that thought very carefully.

There would be immense difficulties for the Speaker in certifying in advance that a Motion was to be a vote of no confidence. It is plain sailing where it is a classic vote of no confidence, in which the expression “no confidence” is explicitly articulated and there is no ambiguity—the House is entirely accustomed to this convention. However, it gets more difficult where the Speaker has to certify that a Government defeat on a major measure was, in effect, a defeat on a Motion of confidence. With defeats on the Queen’s Speech, on Budget resolutions or on the Second or Third Readings of a Finance Bill, again the House knows where it stands on votes of those kinds and the difficulties would not be too great for the Speaker. However, there are other categories of potential Government defeats, which may be regarded as votes of confidence, where it is dangerous, unreasonable and altogether excessive to require the Speaker to certify that the vote which has just taken place is a vote whereby the Government forfeit the confidence of the House of Commons and the Government must therefore fall and there must be a general election.

I shall say no more about these very important major issues now because it is late in the evening and we will have other opportunities. They deserve to be considered by a better attended House than we have at the moment, which is no reflection on the quality of scrutiny of those noble Lords who are conscientiously present at this late hour. I beg to move.

[Lord Falconer of Thoroton]

I completely endorse what the noble Lord, Lord Howarth, has said about the importance of this issue. It is no one’s fault, but starting this debate at 11.28 pm is a little odd. As the noble Lord, Lord Howarth, said, we shall obviously have to return to this when we debate both the amendment tabled by the noble Lord, Lord Cormack—Amendment 50—and the amendment to Amendment 50 tabled by the noble Lord, Lord Howard, to leave out subsections (3) and (4). Unless other noble Lords have remarks to make, the best thing may be to move straight to the Minister and hear his response. The important point that the noble Lord, Lord Howarth, made about Mr Mark Harper’s comments that he could envisage the Speaker certifying in advance will obviously have to be debated when we come to the amendment tabled by the noble Lord, Lord Cormack.

[Lord Norton of Louth]

My Lords, I plan to be extremely brief, as I have classes to teach in Hull shortly after 9 o’clock in the morning.

I wish to raise one point arising from what the noble Lord, Lord Howarth, has said. I have considerable sympathy with the argument that he is developing that either the Speaker’s certificate goes out of the Bill completely or, if it stays in, it needs to be refined. He was teasing out the point made by the Minister that the Government would expect the Speaker to indicate in advance whether he would certify a Motion as one of confidence. So, on the basis of that expectation, I wish to raise this question. One could raise it on any serious Bill but I have used before the example of the European Communities Bill in 1972, where the Prime Minister, Edward Heath, said, “If we lose this, the Government cannot sensibly continue”. If, in a situation like that, the Speaker took a contrary view and declined to certify the Bill as one of confidence but the Prime Minister said, “This is essential to our programme and, if we are defeated, we shall resign”, what would happen?

[Lord Wallace of Tankerness]

I appreciate the concern of the noble Lord, Lord Howarth, about the lateness of the hour. I always understood that this evening’s proceedings were going to go late. We tried to accommodate that by finishing somewhat earlier last time. Nevertheless, it is an important point, as he indicated, that there will be the opportunity at a later stage with a subsequent amendment to perhaps explore this further, including the point raised by my noble friend Lord Norton of Louth.

The effect of the amendment would be to require the Speaker to issue two certificates before an early election is triggered on account of a no-confidence vote. The clause already provides for the Speaker certifying that there has been a no-confidence Motion, and a Motion of no confidence in the Government during the ensuing 14-day period. The amendment, as moved by the noble Lord, Lord Howarth, would require an additional, earlier certificate issued in advance of a debate as to whether the Motion is to be regarded as a Motion of no confidence.

This again arises out of the concern that the House of Commons may not always know whether it is voting on a Motion of no confidence. It is highly unlikely that the House of Commons, in its ordinary business, would pass a resolution which was perhaps contrary to a matter of policy and the wishes of the Government of the day, but a matter on which no one had ever actually thought that there was any great store set, and then at the end of the 14-day period the Speaker unexpectedly issues a certificate. I have heard that concern expressed but it is not a realistic scenario.

The point was made that my honourable friend Mr Mark Harper indicated that in all likelihood a future no-confidence Motion would not only take the form that it did when a Motion was last passed but also, in the event of it happening, the Speaker of the House of Commons would be able to inform Members before they vote. For example, if it was on an amendment to the Queen’s Speech, the Speaker would inform Members of the House of Commons before the vote that, in the event of the Motion being passed, the Speaker would regard it as a no-confidence Motion for the purposes of Clause 2.

That is a simple and straightforward process. The Speaker advises the House of Commons on other procedural matters before it. I understand the point that has been made and, clearly as I indicated in my introductory remarks to the previous set of amendments, we will reflect on all these points. Yet we find it difficult to accept that there should be an additional layer of complexity to the process. One wonders how much time there would be to allow such a certificate to be issued if it was a pressing debate. It would be regrettable if such a debate was somewhat held up while the Speaker was engaged in the process of considering whether a certificate should be issued and that is then done.

We share the goal behind the noble Lord’s amendment—that the Commons should be well informed before it votes on confidence matters. The idea of an ambush is unfounded but I hear what the noble Lord says with regard to trying to import that greater degree of certainty. It is an issue to which we will return, one we will certainly reflect on and one we will perhaps have a wider debate on—perhaps with more participants—in the subsequent Amendment 51. On that basis, for the moment I ask the noble Lord to withdraw his amendment. Perhaps when we come to the later debate, we will address the questions that my noble friend Lord Norton of Louth has also raised.

[Lord Howarth of Newport]

I thank both the Minister and the Committee and beg leave to withdraw my amendment.

Amendment 32 withdrawn.

Amendment 33 not moved.

House resumed.

House adjourned at 11.39 pm.