House of Lords

Tuesday 29th March 2011 Lords Chamber

Tuesday, 29 March 2011.

14:30

Prayers—read by the Lord Bishop of Ripon and Leeds.

Health: Preventable Sight Loss

Tuesday 29th March 2011 Lords Chamber

Question

14:36

Asked By

[Lord Low of Dalston]

To ask Her Majesty’s Government what is their assessment of the level of preventable sight loss in the United Kingdom; and whether they will include that issue in the proposed Healthy Lives, Healthy People strategy.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government recognise that sight loss is a serious issue and that risks rise in an ageing population. The Health and Social Care Bill proposes that NHS sight testing will be the responsibility of the NHS Commissioning Board. The new public health system will help to prevent sight loss. We have proposed that Public Health England will design and fund some specific public health services, including diabetic retinopathy screening. We have also proposed that local authorities should have new responsibilities in relation to public health and health improvement.

[Lord Low of Dalston]

I thank the Minister for that response. However, given that half of the sight problems experienced by around 2 million people in the UK could be prevented by regular sight tests and early diagnosis and treatment, what plans do the Government have to communicate this important public health message to local commissioners, health and social care professionals and the public? Does the Minister agree with me that reducing such a high prevalence of avoidable sight loss through regular sight tests and better access to eye care services should be included in the public health outcomes framework, and that specific attention should be focused on minority ethnic groups who exhibit a particularly high incidence of some sight-threatening conditions?

[Earl Howe]

My Lords, I quite agree with the noble Lord that sight tests allow an invaluable opportunity to review all aspects of eye health, including investigations for signs of disease. The uptake of NHS sight tests is, I am glad to say, increasing. As regards messaging, the department has worked, and continues to work, with NHS Choices on the development of articles and videos to raise the profile of visual health and promote the importance of regular sight tests. Looking ahead, and as part of their new public health responsibilities, we propose that local authorities will have primary responsibility for the health improvement of their local populations. They could well choose, if they wished, to promote eye health and work to improve the wider aspects of health and lifestyle that contribute to improved eye health. We are currently consulting on the public health outcomes framework, as I am sure the noble Lord is aware. We are also consulting on the scope of the evidence base for public health and the interventions that will work best.

[Lord Kennedy of Southwark]

Does the noble Earl agree that one of the groups of people at risk of developing eyesight loss is people with diabetes? As part of the increased work to deal with diabetic retinopathy, should not everyone at risk have, in addition to their normal eyesight tests, annual eye screening? This service must not be cut but be expanded, as early detection and prevention is right for the patient, their family and ultimately the taxpayer, as thousands of pounds that would otherwise have to be spent on dealing with preventable complications will be saved.

[Earl Howe]

My Lords, the noble Lord makes some extremely important points. This is a good news story and very good progress has been made; more people with diabetes are being offered screening for retinopathy than ever before, and to higher standards. More people are being offered screening now than when the screening programme was announced in January 2003. At that time, 1.3 million people with diagnosed diabetes in England were being screened. The latest figures, for December 2010, show that 2.21 million people were offered screening.

[Baroness Jolly]

My Lords, given that sight loss will cost the economy £8 billion a year by 2013, will the Minister outline for the House the determining factors in extending free sight tests to all?

[Earl Howe]

My Lords, various categories of patients are eligible for free sight tests. Free tests are available under the NHS to a large number of people, including people aged 60 and over, children under 16 and people on low incomes. As I mentioned, the uptake of sight tests is increasing, which shows that people are continuing to get good access to NHS eye care services; but as regards an extension of the numbers, that will of course depend on available funding.

[Lord Walton of Detchant]

My Lords, does the Minister accept that one of the commonest causes of progressive visual failure in the elderly is macular degeneration? There are two forms: the dry form is currently not amenable to treatment, although research suggests that one day it may be; but the wet form can in many cases be arrested by expensive injections. Is he aware that some PCTs are allowing that particular form of treatment to be given only to one eye, allowing the other eye to deteriorate? Does he not agree that that—if he will forgive the pun—is an unfortunate and short-sighted policy?

[Earl Howe]

My Lords, the National Institute for Health and Clinical Excellence—NICE—has recommended treatment with Lucentis as a clinically effective and cost-effective use of NHS resources for patients with wet, age-related macular degeneration meeting specific clinical criteria. I am aware that, initially, the practice mentioned by the noble Lord was being reported, but I think that it is less true now. I will of course check whether what the noble Lord says continues to apply. I would just say that primary care trusts are legally required to make funding available to enable clinicians to prescribe Lucentis, which is the drug of choice for this, in line with guidance. The PCT allocations take account of expected growth in the drugs spending, including the impact of this type of technology.

[Baroness Thornton]

My Lords, last week the BBC programme “In Touch” asked the question, “Can the NHS cope with the demand for treatment for the UK’s most common cause of blindness?”—a question which follows on from the one asked by the noble Lord, Lord Walton of Detchant. The programme was made with the recently formed Macular Disease Society, which aims to raise awareness and money for both dry and wet macular disease. Will the noble Earl join me in welcoming the creation of this society, and will the Government ensure that the society is involved in the consultation process leading to the strategy for the early diagnosis and treatment of macular disease?

[Earl Howe]

My Lords, I join the noble Baroness in welcoming the formation of the Macular Disease Society, and I can assure her that my department will wish to engage closely with it; I think that it is a very positive development. Reducing avoidable sight loss is clearly an issue that we have to take seriously. The prevention of sight loss will be an aim of work undertaken across the new public health system, as I have indicated. At national level we are proposing that Public Health England will design some specific public health services including screening, as has been mentioned, and locally we propose new responsibilities for local authorities.

[Lord Naseby]

As financial resources are limited, is not avoidable sight loss an absolute public health priority? Is it not better to spend money on that than restricting small and large retailers further in terms of their display of tobacco in a market that is declining in any case?

[Earl Howe]

My Lords, I will simply say to my noble friend that public health clearly has an important contribution to make to reducing avoidable sight loss by addressing the obvious risk factors for sight loss, but also by delivering on our general public health outcomes, such as reducing smoking and obesity and diabetes, all of which are associated with the development of eye disease. The tobacco strategy has a direct bearing on this question.

Flooding: Defence

Tuesday 29th March 2011 Lords Chamber

Question

14:45

Asked By

[Baroness Quin]

To ask Her Majesty’s Government what discussions they have had with communities affected by flooding about their proposed flood defence allocations.

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

My Lords, the Environment Agency involves local communities and partner organisations from the earliest stages of a flood defence scheme’s life. The agency works with regional flood defence committees to agree the overall investment programme. Committees include local authority members and other local experts. Particular attention has been paid to working closely with communities to let them know spending decisions affecting 2011-12 and options for the future.

[Baroness Quin]

I thank the Minister for that reply but, as he knows, flood defence schemes in Leeds, York and Morpeth have been put on hold by the Government, as have other schemes. We have seen huge public concern in all these areas as a result. Are the Government prepared to look to reinstate these schemes and, if not, how do they propose to reassure the residents of those areas, who are worried both about being flooded and about not getting insurance cover for their homes in future?

[Lord Henley]

My Lords, I remind the noble Baroness that no schemes whatever have been cancelled. Some have been deferred, because obviously we have to make very difficult decisions about the money available. As I made clear in my original Answer, we will involve local communities in discussions, which is why we have consulted—and we are reviewing the consultation—about how we can see the money going further by allowing communities themselves to have an involvement in these schemes, and for communities themselves or for private money to come in to assist the public money that comes from Defra.

[Lord Hunt of Chesterton]

My Lords, I wonder whether the Government relate the flood defences to many other applications, such as agriculture and wind energy. As you cross the channel, you can see that all the major dykes in Holland have windmills on them. Do the Government agree that we need to move in that direction?

[Lord Henley]

My Lords, it is an interesting thought whether we should put windmills on all the dykes that we have to build for flood defences. I shall certainly take that on board and consider that matter, although there would obviously be planning considerations as well as to whether you would want windmills along all the dykes to which the noble Lord refers.

[The Lord Bishop of Blackburn]

My Lords, the joint working of churches together in Cumbria along with local Rotary and other volunteer organisations in the devastating floods of 2009 will be remembered for many generations. The Regional Resilience Forum is to be disbanded. I understand that it will be relocated with Leeds and other northern areas and focused on Leeds. I wonder whether the Minister shares the concerns of very many people that vital local knowledge and co-operation will be lost.

[Lord Henley]

I am grateful to the right reverend Prelate for his comments, particularly for his comments about the devastating floods in Cockermouth. As I told the House the last time we discussed these matters, I visited Cockermouth a year after those floods. I am very satisfied that the local knowledge is still there and that the resilience that that community had in Cockermouth is still there, and that local people are preparing to deal with floods in the appropriate manner, should they get them again. We want to ensure, as I made clear in my original Answer, that we have the appropriate local knowledge. That is why we want to involve local communities, and that is why we have consulted on ways of giving communities a bigger say in the decisions that affect them.

[Lord Filkin]

Does the Minister recognise that a deferment that does not lead to speedy action will be seen by local communities as a cancellation?

[Lord Henley]

No, my Lords, I do not accept that. There is a very big distinction between a cancelation and a deferment, and there have been no cancelations whatever. Each scheme that we look at, we will look at on its merits. That will involve the cost of the scheme and how many properties—just to give one example—that scheme will protect. There is no point in spending excessive amounts of money if one could deal with the problem in another way. There are also ways of looking at spending the money and consulting the local communities to get money in other than the money that comes centrally from Defra. That is what we are intending to do.

[Baroness Jolly]

My Lords, can the Minister assure the House that the funding promised to help these local communities with their community flood plans and provide community flood wardens will be forthcoming so that they will be protected?

[Lord Henley]

My Lords we are making some very small reductions to the annual expenditure on flood protection but I am satisfied that those reductions are very small and necessary in dealing with the deficit. We will continue to spend whatever money is appropriate. However much money was available, we would never be able to satisfy all the demands for all the schemes that are on offer.

[Lord Brooke of Alverthorpe]

What advice will the Government give to those who are having difficulties getting home insurance in the light of the deferment?

[Lord Henley]

My Lords, obviously insurance is a very difficult matter and we are discussing it with the Association of British Insurers. However, the Government should be wary of trying to interfere in the market because there are those who take a sensible attitude and insure themselves. There is no point in the Government offering guarantees to those who do not insure themselves. We will discuss these matters with the ABI and others as appropriate, but I do not think we should start interfering in the market itself.

[Lord Harrison]

Will the Government review the Pitt report on flooding and update it? Can the Minister report on the town of Tewkesbury, where I know many people were not rehoused for some 12 months after the terrible flooding that afflicted them?

[Lord Henley]

My Lords, the noble Lord is right to refer to Tewkesbury. I cannot comment on what happened under the previous Government following those floods. However, following the Pitt review, I can say that we are committed to a working-up of the findings of that review and we will do so in due course.

Petrol: Ethanol Content

Tuesday 29th March 2011 Lords Chamber

Question

14:52

Asked By

[Lord Steel of Aikwood]

To ask Her Majesty’s Government what is the timetable for implementing the increased maximum ethanol content in petrol; and what effect the change will have on the engines of classic and vintage vehicles.

[Lord Steel of Aikwood]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a non-financial interest as president of the Jaguar Drivers’ Club.

[Earl Attlee]

My Lords, petrol containing 10 per cent ethanol has been permitted from January 2011. Petrol containing up to 5 per cent ethanol is currently available and expected to be marketed until at least 2015. Petrol pumps dispensing petrol containing over 5 per cent ethanol must display a cautionary label. Research commissioned by the Department for Transport into the potential impact of ethanol on vehicle fuel systems showed that there could be compatibility issues for classic and vintage vehicles.

[Lord Steel of Aikwood]

My Lords, I am grateful to my noble friend for his answer. He has a delicate way of putting it. In fact, ethanol attacks fibreglass fuel tanks, bits of aluminium, fuel filters and so on. Therefore it is important that he gives an undertaking that the 5 per cent limit will be consistently available and not be superseded by the 10 per cent limit.

[Earl Attlee]

My Lords, I am well aware of these issues. I declare an interest in that, because of fuel compatibility issues, I have had to fit an electronic fuel-injection system to a 27-litre V12 tank engine.

I am also well aware of the problem with glass-fibre fuel tanks. One of the issues for classic vehicles is the availability of replacement petrol tanks and the difficulty of making an irregular-shaped fuel tank.

[Lord Rotherwick]

My Lords, the noble Earl is probably aware that I am an aviator. Is he also aware that there are new and old small aircraft that rely on car petrol without ethanol in it? What provisions are the Government making to ensure that there is a supply of this in the future?

[Earl Attlee]

My Lords, in the long term, I cannot give reassurances. I will write to my noble friend about the availability of zero ethanol for aviation.

[Lord Berkeley]

Will the noble Earl tell the House how many petrol-driven tank engines there are in the country? I thought they mostly ran on steam like Thomas does.

[Earl Attlee]

My Lords, the noble Lord is talking about the wrong type of tank. I am talking about a tank at the REME museum in Bordon.

[Lord Broers]

My Lords, is the Minister aware that these additives in marine fuels can cause even more problems than those in automobile fuels because their consequences can be far more serious?

[Earl Attlee]

I am sure the noble Lord is right. There is a difficulty with some types of equipment that are not used regularly, such as standby generating sets. There can also be problems with the formation of algae but there are well-understood procedures for avoiding this problem.

Yemen

Tuesday 29th March 2011 Lords Chamber

Question

14:55

Asked By

[Lord Chidgey]

To ask Her Majesty’s Government what is their assessment of the current security situation in Yemen; and what steps they are taking to protect British residents and officials.

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

My Lords, the security situation in Yemen is tense. There is political deadlock, there are violent protests and there is an already high risk of terrorist attack. As my right honourable friend the Foreign Secretary said on 24 March, the Foreign and Commonwealth Office advised all British nationals to leave Yemen immediately on 12 March. Since then, the situation has continued to deteriorate. We have detailed contingency plans but British nationals should leave Yemen now by the commercial airlines still flying.

[Lord Chidgey]

My Lords, I thank my noble friend for that reply. Is there not also a real danger of Yemen descending into chaos, with the vacuum being filled by the al-Qaeda terrorism in that country combining with counterparts in Somalia across the Gulf of Aden, so putting the 40 per cent of the West’s oil that passes through there at great risk? Do the Government have any plans to help to address the underlying problems in Yemen, which come from poverty and hunger? Forty per cent of people there live on less than $2 a day. Have we any plans to assist with the provision of food aid, as something like $225 million of food aid is needed this year alone to stave off starvation?

[Lord Howell of Guildford]

My noble friend is quite right to point to a number of very worrying dangers, including piracy and terrorism. We are in fact one of the largest donors to that very impoverished country and we are obviously concerned about how the political process should proceed. We hope that transition will be in a peaceful way and without too much bloodshed, but it is really for the people of Yemen and their present president to decide how that transition should go. As for outside support, rather than outside intervention, we think that the neighbouring countries are probably the best people to rally round and provide it. That may be working through the organisation Friends of Yemen, of which we are one.

[Lord Clinton-Davis]

How many people does the Foreign Office have in mind and how many, in particular, are employed at the embassy in Yemen?

[Lord Howell of Guildford]

On the noble Lord’s second point, at the moment we have 10 still there. The noble Lord is quite right to raise the subject because it is an extremely dangerous designation. There have been two life-threatening attacks on the British ambassador in the past year. I assure the noble Lord and the House that we have the most careful and detailed contingency plans for getting those people out safely, but it is a very dangerous situation. I do not have to hand the precise overall number of British nationals. It is not very many but I will provide him with the precise details if we can ascertain them, which is not easy.

[Lord Avebury]

Does my noble friend agree that with the defection of Major-General Ali Mohsen and other senior military commanders, the sooner that President Saleh steps aside and allows a transition to democratic government, the less blood will be shed? Does he also think that the United Nations might perform a useful role as the broker of such a transitional arrangement, bringing the military and the opposition movements into a common Government to aim at that transition to democracy?

[Lord Howell of Guildford]

My noble friend is right that that defection is significant. Those are influential people and that might help the move towards a peaceful resolution and a final decision by President Saleh on how and in what manner he goes in an orderly way. Concerning the UN, it has not recently played a significant role in Yemen. In most people’s view, the responsibility really lies with President Saleh openly to engage with all parties in a sustained and credible fashion. As I said earlier, we think the best kind of outside support should come from the countries immediately around, which are obviously as concerned as us about developments there.

[Lord Anderson of Swansea]

Does the Minister agree that it is difficult to avoid seeing any change in the administration as a potential threat to western interests? What is his assessment of the role of al-Qaeda among the many other causes—secessionist, tribal and so on—of the unrest? If there were to be an implosion, what is his assessment of the danger of the unrest moving across the frontiers to other countries?

[Lord Howell of Guildford]

Of course, as the noble Lord knows, these dangers are there all the time; there is no doubt about that. The al-Qaeda threat is there but is not the only threat. Al-Qaeda is most active in the north. Many of its members are being pushed over the frontier from Saudi Arabia. They are a problem and no doubt they are thinking of ways of exploiting any trouble or disturbance they can find. That is why it is essential that the president and the people of Yemen move away from the threats of violence and towards an orderly pattern of transition which they can decide for themselves.

[Lord Dykes]

I thank my noble friend for the care with which the British Government, other European Governments and America have handled these difficult situations with Arab countries. Bearing in mind that the evidence is now massively overwhelming that Arab populations want freedom, democracy and human rights, as in other countries—we have been told for decades that they did not want this and did not mind oppressive regimes—will my noble friend consider the British Government having some serious conversations with the Saudi Arabian Government to get rid of that oppressive regime and introduce some democracy there, including allowing women to drive cars?

[Lord Howell of Guildford]

These are all very serious social problems but I think my noble friend would agree that if there is to be change, the aim must be to achieve the most peaceful and bloodshed-free transition. That is what we want. Obviously, we are in talks with all our opposite numbers in the Arab world and in the Gulf countries, including Saudi Arabia, as my noble friend suggests. These matters have to be dealt with and we raise them, but if we can make progress in a peaceful, orderly way, that must be the best way forward.

[Baroness Symons of Vernham Dean]

My Lords, I am sure we all agree with the Minister that the most successful outcome is one that involves a peaceful and orderly transition. However, in the Government’s view, is that most likely to be attained through President Saleh stepping aside very soon or through his engaging in the sort of dialogue with dissidents elsewhere in Yemen that the Minister described a moment ago? The noble Lord talked about the support of neighbours. What support does he have in mind that Yemen’s neighbours might give? Might it be troops on the one hand or direct aid on the other?

[Lord Howell of Guildford]

President Saleh has already said that he will step down—we all know that—but it is a question of the timing and, no doubt, the question of to whom power should then transfer. These are obviously very sensitive and delicate questions inside Yemen. Sensible people, supporters and friends of the country and its people want to see the president step down as quickly as possible but in an orderly way. As to outside support, aside from the substantial aid which countries such as our own give to Yemen, the Friends of Yemen group has said that it is very ready to support training and to offer social support, all kinds of social programmes and a variety of other support. It has made clear that that is what it wants to see. However, I am afraid that it is from within Yemen—this is often the case in other Arab countries—that the movement has to come for an orderly transition of power, which is about to take place.

[The Lord Bishop of Ripon and Leeds]

My Lords, in that context, what is the Minister’s assessment of the danger of the protest movement in Yemen being taken over by people who are now opposed to President Saleh but whose record in conflict, particularly with the northern Houthis, is no more democratic than his is?

[Lord Howell of Guildford]

The danger is quite high. There is a danger of all kinds of elements, including the al-Qaeda franchise, other jihadists and the rebel groups that have been present for many years—there is nothing new in some of the matters that we are discussing—taking over and replacing the present unsatisfactory pattern with something equally unsatisfactory. We have to be realistic about this. All the progress throughout the Arab world will not automatically lead to a new dawn of liberal democracy, much as we hope it will.

[Lord West of Spithead]

My Lords, have the Government assessed whether al-Qaeda in the Arabian Peninsula within Yemen and al-Qaeda more widely have been caught out by this huge change across what I think Glubb Pasha called the “hinge of the world” from Tunisia through to Oman? It seems to me that they might have been and that, if we are quick on our feet, there is a real opportunity to use this to our advantage. I should be interested to hear the Minister’s thoughts on that.

[Lord Howell of Guildford]

When the situation is so fluid, it is very difficult to make these assessments, and I suspect that they vary vastly from country to country. We are talking here about the Yemen. Al-Qaeda is not the only threat to Yemen’s present stability; all kinds of different tribal gatherings and pressures are undermining the situation. It could be that al-Qaeda has not been at the forefront of many of these uprisings, protests and rebellions. On the other hand, we must have no illusions but that, where it sees trouble, it will seize every opportunity to intensify it and make it worse. As to our opportunity in this area, we have to move in a very agile and clever way, making sure that we combine the support of the western world and the whole comity of responsible nations in trying to encourage a sensible transition to democracy and a move away from all forms of extremism.

Building Regulations (Review) Bill [HL]

Tuesday 29th March 2011 Lords Chamber

Report

15:06

Report received.

Fixed-term Parliaments Bill

Tuesday 29th March 2011 Lords Chamber

Committee (3rd Day)

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

15:07

Clause 2 : Early parliamentary general elections

Amendment 34

Moved by

[Lord Howarth of Newport]

34: Clause 2, page 2, line 12, leave out paragraph (b)

[Lord Howarth of Newport]

My Lords, Amendment 34 would delete Clause 2(2)(b)—the provision that, if after 14 days following a motion of no confidence the House of Commons has not passed a motion expressing confidence in any Government of Her Majesty, there shall then be a general election. This provision is ambiguously phrased, as your Lordships’ Select Committee on the Constitution noted, and as was pointed out in written evidence from Dr Anne Twomey of the University of Sydney. In questioning the formulation in the Bill, she asked:

“Does this include a vote of confidence in a previous Government that has since resigned and been replaced? Does it refer only to the Government in existence at the time the motion is passed, whether the Government in which no confidence was previously expressed or a new Government? Does it refer to a prospective Government that does not yet exist?”.

She went on to comment:

“This is a critical issue. It is not clear from the provision whether it is intended that a Government that is subject to a successful vote of no confidence follows the customary practice and resigns, leaving Her Majesty to commission a new Prime Minister whose Government then needs a vote of confidence to survive. Alternatively, it could be intended that matters remain frozen once the vote of no confidence is passed and the existing Government remains in office until the end of the 14 days to see if the absence of confidence is reversed. If it is not reversed, then an election would be held. A third alternative is that it is intended that the House may pass a motion indicating its confidence in someone else to form a Government, even though it is not yet formally a ‘Government of Her Majesty’. Query whether this would oblige Her Majesty to commission that person as Prime Minister? The Bill ought really be clearer as to what is intended”.

Dr Twomey was quite right. What do the Government mean by that provision? Will the Minister tell us, and will he undertake that the Government will take this away and improve the drafting so as to impart clarity to the wording in the Bill?

Beyond the issue of the ambiguity of the provision as drafted, we should ask whether we want a 14-day provision at all. This is the smoke-filled rooms issue. Imagine the situation if a Government narrowly loses a vote of no confidence and the Prime Minister does not behave like Mr Callaghan in 1979; he does not make an immediate, dignified and clear-cut statement that his Government will take their case to the country. Indeed, under the provisions of the Bill he cannot do that. Up to 14 days have to be spent cobbling together a deal with the minor parties. Bribes will be offered, and inducements—perhaps a second Humber bridge or contracts to build parts of new frigates in particular constituencies. The US space programme was entirely constructed out of components made in marginal districts of Congress. Maybe there would be new constituencies outside the numerical norm, like Orkney and Shetland and the Highlands and Islands.

Deals are put together and the new cobbled-together Government, perhaps under the same Prime Minister, totters along just as unable to govern effectively. It appears that Ministers have not thought of that possible contingency, although it is surprising that they should not have done so. My noble friend Lady Jay, in the chair of your Lordships’ Select Committee, asked the Minister,

“would it be possible for that government to try to reconstitute themselves, perhaps in a slightly different way?”.

Mr Mark Harper, the Parliamentary Under-Secretary, replied:

“Rather than giving you a rushed answer, let me think about it”.

He later wrote to the Select Committee, saying:

“It is not our intention that the Bill should rule out the possibility”—

however unlikely—

“of the House changing its mind … and deciding nevertheless to support the current government”.

At present, if the Government lose a vote of confidence the convention is that they must either resign or seek Dissolution. This provision is just like the Government’s previous decisions in the Bill, such as whether the fixed-term Parliament should be four years or five years—they opted for five; or whether if there is an early election the clock should be reset so that there would be a whole new Parliament ahead—they opted for that. This provision similarly happens to advantage the incumbent Government. It allows them the opportunity to wriggle out of the implications of losing a vote of confidence.

Alternatively, there is not the sordid scene that I describe, but a new coalition is formed with a new Prime Minister and a new configuration of parties in government. The people have not voted for that, yet Mr Clegg and the coalition make much of their ambition to improve accountability and transparency in our politics and the ways in which Governments are formed. I do not think that accountability is improved by this set of provisions.

The Deputy Prime Minister, when he met your Lordships’ Select Committee on the Constitution on 13 October, laid out his general arguments on the need for major constitutional reforms—a series of reforming constitutional measures. He said:

“there are features of our present political arrangements that are secretive or centralised, in which people do not … feel that their voices or views are properly represented … That is why there is an emphasis in everything that we are proposing on greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people, and breaking up excessive concentrations of power and secrecy”.

15:15

[Lord Anderson of Swansea]

For examples of greater accountability, we do not need to look at the textbooks. We have a living example in the recent election in Australia, where the two major groups had 72 seats. There were four other seats and there was very much an auction as to how the votes of those four people would be bought, which was pretty unseemly and certainly not accountable.

[Lord Howarth of Newport]

I am afraid it was all too transparent and not satisfactory by any manner of means. My noble friend always brings his international perspective to bear most valuably on our debates. Clause 2(2)(b), as it is drafted, provides no remedy for the deficiencies that the Deputy Prime Minister so eloquently described.

Why 14 days in particular? What is the rationale for that figure? It would be helpful if the Government explained why they think that 14 days is the right amount of time to allow these processes to continue. It is inconsistent with what Parliament has provided for the Scottish Parliament and the Welsh Assembly, where the equivalent provisions allow for 28 days. Of course, they have different electoral systems that make it unlikely that any single party will have an overall majority. It might be argued that more time is needed, but in all events I would like to know why 14 days are thought sufficient for the Parliament of the United Kingdom, whereas 28 days are provided for the Scottish Parliament and the Welsh Assembly.

Beyond that, we also ought to ask: why legislate at all? Convention and practice are to allow an attempt to negotiate a coalition or a pact—a confidence and supply agreement or whatever—over an unspecified period of time. Precedent has shown that it need not take very long. There were three days of such discussions between the Conservative Party and the Liberal Party in March 1974, and five days in May 2010. Why is it necessary to legislate to allow up to 14 days for this kind of haggling and negotiation?

I do not think that what is provided in the Bill would produce any improvement. It could make things worse in our politics and our constitution. What I do know is that, during that period of 14 days, there would be no effective government and the country would be uncertain as to whether there was to be a general election. The reputation of Parliament or of politics would not be enhanced by this kind of process. Accountability would be weakened. Is it not better to stick to the understanding that we have: that if a Government are defeated on a vote of no confidence they call it a day and resign or go to the country? That would better fulfil the Deputy Prime Minister’s pledge to improve accountability. It is better that the electors, and not the political parties, decide who will form a Government. Governments are of course accountable both to Parliament and to the people, but accountability to the people should prevail. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the Committee that, if this amendment is agreed to, I cannot call Amendments 36 or 37 by reason of pre-emption.

[Baroness Hayter of Kentish Town]

My Lords, I want to group Amendment 37, which stands in my name, with Amendment 34. The officials have been advised. The Minister has also had a little notification of that.

Amendment 37 would replace 14 days with five days. The Constitution Committee accepted 14 days as reasonable. However, would the country accept it? A 14-day limbo seems excessive, not least to the bankers and to what we used to call the gnomes of Zurich—now the genomes of the internet or something. As everyone else discusses whether an election will take place, it could be a long wet fortnight. As David Laws acknowledges in his most helpful book on the five days, there has to be early reassurance of the market. In his wise words:

“neither the British media nor the financial markets nor the public would tolerate a prolonged period of uncertainty”,

as a,

“failure to form a stable government could have a real impact on the UK bond market and on the UK interest rates, as well as on confidence in the pound”.

He well describes how:

“The British press and the British people are used to seamless and swift transfers of power”.

He admits that, anyway, more time would not guarantee a better coalition agreement.

All this, of course, is without thinking about the implications of Ministers from a defeated Government going off to negotiate for Britain in key EU, G20 or IMF meetings over that period of 14 days. In her evidence to the Constitution Committee, Professor Oliver said that she thought that it was against the public interest for there to be no effective government of the country, and even the Minister for Political and Constitutional Reform, Mr Mark Harper, admitted that,

“it would become clear pretty quickly that the government could not put together an alternative government”.

Similarly, David Laws—I am sorry to quote him again, but he is very helpful—testified that David Cameron himself wanted negotiations to be over in days, not weeks, and preferably before the markets got jumpy. Nick Clegg believed at the time that the deal could be done in two to three days.

Therefore, I have to ask why the coalition, which was put together in just five days, thinks it needed longer for that task. Was it too pressed in May 2010 to take sensible decisions? Some of us would say, of course, that the evidence of the coalition agreement supports the idea that it is right in that assumption. Perhaps the chaos caused by the raft of unco-ordinated constitutional changes, of which I believe the present Bill is just one, is evidence of a rather over-hurried deal. Perhaps coalitions anyway should be about domestic and economic policy, not about the country’s constitution, which is far too precious for late-night bargaining.

Certainly, while the price for the Lib-Lab pact was electoral reform—the Lib-Conservative pact; I am sorry, I am too old, although they did not get quite so much out of us, I have to say—it is clear from David Laws that the issue of fixed-term Parliaments was not an end in itself as a real democratic need but was, to use his words,

“to avoid a second election”.

So is it uncertainty about their relationship that leads to this Bill and its 14 days? The coalition expressly does not want to rule out the possibility of a House changing its mind within 14 days. “Changing its mind”, of course, is a euphemism. I shall quote the noble Lord, Lord Howard of Rising, at Second Reading, as it is so good:

“As for introducing a 14-day cooling off period, the mind boggles ... imagine the cornucopia”—

a wonderful word—

“of inducements, together with the bullying, which a future Government might carry out during those 14 days. We might even get a few more Dukes in this House”.—[Official Report, 1/3/11; col. 1030.]

My noble friend Lady Taylor of Bolton, a former Chief Whip, said:

“Are we to have 14 days so that Government Ministers can offer jobs to rebels or inducements or threats”,

or is 14 days,

“simply designed as a mechanism for one partner in a coalition to try to persuade a different partner to enter a new coalition and form an entirely different kind of majority in the Commons without an election”.—[Official Report, 1/3/11; col. 1035.]

An academic rather than a practitioner of the dark arts, my noble friend Lord Plant contemplated,

“a series of coalitions arising during a fixed-term Parliament, without a straightforward appeal to the electorate, that would be club politics of the worst possible kind”.—[Official Report, 1/3/11; col. 1033.]

Is that what the coalition favours: a sequence of groupings, anything to keep in power? Is it knowing that five days will not suffice next time round? Only a coalition with parties bent on staying in office could have dreamt up the notion of two weeks of haggling to cling to power. The Conservative and Liberal Democrats commenced and consummated their relationship in just five days. They seem very happy, so are they repenting at leisure or do they feel that they needed more time for that coalition agreement? Perhaps they are beginning to worry about the commitment to early legislation to recall an MP, as Mr Clegg is somewhat unpopular in Sheffield. Is it because the commitment to the binding resolution in the other place that an election would be held in May 2015 has already fallen apart, and that has made them realise that they need more time? Is it perhaps the commitment to PR for the House of Lords, given that they have yet to even get a yes for AV in the Commons, and that they are now wondering whether they did that right? Or is it that they wanted time to include in the coalition agreement, “We will cause chaos in the health service and totally upset the BMA, patients and the public by unnecessary reorganisation”? Instead, of course, the agreement says that the Liberal Democrat and Conservative ideas are stronger when combined, such as on the NHS. The agreement states:

“Conservative thinking on markets, choice and competition and add to it the Liberal Democrat belief in advancing democracy at a much more local level, and you have a united vision for the NHS”.

I am not sure that the good noble Baroness, Lady Williams of Crosby, has read that.

Those are just some comments on the present coalition agreement. My worry is the essence of the 14 days, because democracy is about more than just numbers; it is about being able to vote out a Government. This measure seeks to entrench one. For that reason, it should be avoided.

I have two questions for the Minister. Why, when this coalition was put together in five days, does he now think that it would take 14 days to repeat the exercise? How does he think that markets and our allies, or indeed our foes, would respond to 14 days of dithering, bargaining and negotiation?

[Lord Cormack]

The noble Baroness, Lady Hayter, has made an interesting speech and has raised a number of fascinating questions. But there is a danger that we will have a bit of confusion because Clause 2 is concerned wholly and specifically with holding an “early parliamentary general election” during a fixed-term Parliament in the event of the Government of the day coming unstuck for some reason or other. Although the remarks about the time taken to form the present coalition are intensely interesting, this clause does not affect what happens after a general election when there could be—perish the thought—unlimited time.

I believe that this clause is wholly misplaced. It needs to be deleted and replaced with something far simpler, more specific and more precise. At a later stage in the Committee’s deliberations, I shall seek to move an amendment to that effect.

[Baroness Jay of Paddington]

Perhaps I may help the Committee by saying that when the Constitution Committee, to which my noble friend Lady Hayter rightly referred, appeared to support the notion of 14 days, this was an entirely constitutional judgment in the context of the Fixed-term Parliaments Bill. It was not a political judgment.

Perhaps I may draw the attention of the Committee to the exchange between my noble and learned friend Lord Goldsmith and Mr Mark Harper when he appeared before the Committee. My noble and learned friend suggested to Mr Harper that this was a complete change from the previous practice:

“For example, we could end up with Labour and Liberal Democrats. That could not happen under the present system, could it?”.

However, Mr Harper replied:

“That depends on the way people conduct themselves, but I think that it could”.

He said that if it was “early in a Parliament” that the Government were defeated, as the noble Lord, Lord Cormack, has just suggested,

“and there was a viable alternative government and—prior to having published this Bill—a Prime Minister had sought a dissolution, it is perfectly possible that a dissolution would not have been granted”.

My noble and learned friend Lord Goldsmith asked him if there was a recent example of that, to which the answer was no.

15:30

[Lord Newton of Braintree]

My Lords, first, I hasten to assure my Front Bench that this is my day of virtue and goodness—

[A noble Lord]

Too late.

[Lord Newton of Braintree]

—and for recovering ground that I may have lost yesterday.

Somewhat to my surprise, I find myself a little more distant than I usually am from the noble Baroness, Lady Hayter, and it is on her speech that I should like to concentrate. I have not yet fully digested the speech of my noble friend Lord Cormack but I am certainly not distancing myself from it until I have had a chance to think about what he said.

My comments, which I hope the Front Bench will not find unhelpful, are based on three points. First, the noble Baroness asked why you should need 14 days rather than five. I accept that either figure is a bit arbitrary but, given some of the things that have happened since—actually, my Front Bench may not welcome this—it might have been worth taking more than five days to complete the coalition agreement. Am I allowed to say that?

Secondly, the British electorate may like quick, seamless, one-day change, with the pantechnicons arriving at the back, or successively at the front, but I think they are going to have to get used to something else. When I started in the Conservative research department in 1960, we carried out what was called “cohort polling” —it was very expensive and we probably could not do it now—whereby we went back to the same people at intervals. It has been clear for 50 years that the old-style “I am red”, “I am blue” and “I am yellow” syndrome is breaking down. We saw the final conclusion of that at the last election. I do not boast about this, but people did not want anyone to win; they wanted to make us work together. I do not say that will always happen, but it will happen more frequently and the British public will have to get used to it.

My last point on the noble Baroness’s speech—I hope she does not think that I am being too unfriendly—is that the markets will have to get used to it as well, just as they get used to it in Germany. In most European countries, an election is followed by a prolonged period of negotiation—at the worst, horse-trading—before a Government emerge. In many cases it takes far longer than 14 days. I do not see them collapsing in a heap as a result.

[Lord Phillips of Sudbury]

I hate to interrupt because I agree with so much of what my noble friend has said. He speaks of other countries where 14 days has been exceeded; I believe Belgium is into its 11th month, is it not?

[Lord Newton of Braintree]

That may be a bit excessive, but then Belgium has some rather unique problems—which, so far, have not happened here—in terms of racial, linguistic and ethnic division. I take my noble friend’s point and I hope that he will take mine that most European countries do not expect to have the pantechnicons arriving on election day or the day afterwards. They have got used to it; why cannot we?

[Lord Norton of Louth]

My Lords, I agree with my noble friend Lord Newton of Braintree. He is right about the international position; we are extremely unusual in the period of transition from Government to Government. I shall come back to that on a later amendment.

The problem with Amendment 37—I shall speak also to Amendment 34—is the premise that there should be a delay for a set period following the election. It may be for only five days rather than 14, but there is a delay, whereas the noble Lord, Lord Howarth, seeks to make provision for an election to follow in the immediate wake of the loss of a vote of no confidence. Given a choice between the two, I incline to the amendment of the noble Lord, Lord Howarth.

However, the problem that I have with his amendment is that the loss of a vote of no confidence triggers an election as the only option. I believe that that should be, as now, one option rather than the only option. I shall come back to that issue in later amendments. Given the choice between the two I incline towards the amendment of the noble Lord, Lord Howarth. However, we still need a provision for Prime Ministers to be able to tender their resignation rather than automatically request that Parliament be dissolved.

[Lord Grocott]

My Lords, the noble Lord, Lord Newton, repeated an argument that has been used on many occasions, particularly by his noble friends on the Liberal Democrat Benches, that we are somehow in a new kind of politics now, having moved from the traditional two-party system to the less traditional three-party system, and that we therefore need to change huge swathes of our constitution, including changing the voting system and perhaps changing the mechanism for moving from one Government to another, in order to accommodate a fundamental change in our political system. I put it to him, and to them, that I do not take that view; I think that the fundaments of our politics are quite similar to what they were when I came into politics 50 years ago. I put it to them at least that, should any of the opinion polls be right—and we know that we should treat them cautiously—there is a fair bit of evidence that we are moving back towards more of a two-party system, which I for one would welcome. I would be interested to know whether all those who have been saying “New politics means new constitution” will now say that they want the constitution to revert to the way that it operated previously, should there be old politics after all—that is, fundamentally a choice between people who are broadly happy with the way things are and people who want to change them, which is basically what happens in democracies in the United States, here and in many countries of Europe—rather than a yes, a no and a don’t-know as we have at the moment. I make that point simply as an aside but it is worth considering.

This part of the Bill makes an extraordinary proposition. I think that we all more or less subscribe to the cliché “If it ain’t broke, don’t fix it”, but the Government seem not only to be rejecting that idea but also to be saying that, if it is working perfectly, we had still better fix it. My argument is very simply that the no-confidence system as has operated in this country works not just very well but perfectly. We have a test case: 1979. I am very pleased to see the noble Lord, Lord McNally, on the Front Benches; he remembers 1979 as well as I do. That was a perfect example of the no-confidence system, which is not written into our constitution, with there being no clear procedural rules that Jim Callaghan had to follow, working perfectly. He lost the confidence of the House on a motion of no confidence so he went to the country. Will someone please tell me what was wrong with that? One problem that the Government got themselves into in their five days in May, among many others, was trying to write in law aspects of our constitution which are perfectly well understood and which do not need writing in law. It is a bit like trying to write down prescriptively in legislation the procedures that the monarchy needs to go through in the event of a hung Parliament. That would be extraordinarily difficult, and what the Government thought was an incredibly simple Bill is not a simple Bill at all. It has serious complications, and this is the most serious of them.

I simply put this to the Minister. In respect of the 14 days, what is the problem that he is trying to resolve? I shall put it even more simply than that and ask him what Jim Callaghan did wrong. He lost a motion of no confidence; we all know what that is. He immediately went to the country. Under this Bill, he should have entered a period of 14 days’ negotiation, without any consultation with the British public. Worse still—at least from my perspective; nobody could accuse me of self-interest because I have mentioned to the Committee before that his decision resulted in me becoming unemployed—

[Lord Clinton-Davis]

Jim Callaghan did not immediately go to the country. There was a gap of some six weeks.

[Lord Grocott]

He immediately called the general election. My noble friend is quite right to correct me, but it amounts to the same thing. My point is that there was no negotiation. He announced the general election immediately, and the public and the parties knew where they were.

Unless the noble and learned Lord, Lord Wallace, can explain it to me, there is a double fault in the Government's position. Am I right in assuming, first, that the Government think that it was wrong for Jim Callaghan to go to the country when he did; and, secondly, according to other parts of the Bill, that the Government should have gone on for another six months until October 1974 without a majority to complete the five-year fixed-term period? That builds absurd rigidity into the system. I cannot see what they are trying to deal with. If the noble and learned Lord cannot answer those two specific questions about what Jim Callaghan did wrong, he ought to remove the provision.

I agree with my noble friend's amendment. To distil it, it simply says, “If a Government lose a motion of no confidence, there shall be a general election”. I would love it if someone would follow me to say, “It is a risky, false proposition that if a Government lose a motion of no confidence, they should go to the country”. Why fiddle about with it? What on earth are the Government doing? Why do they not save us all a lot of time and energy and just withdraw the provision?

[Lord Campbell of Alloway]

My Lords, very briefly, I have for a long time shared the concerns expressed by the noble Lord. Those concerns appear to me to be met by Amendment 50. Has he considered that?

[Lord Mackay of Clashfern]

My Lords, it is worth pointing out that the noble Lord’s Government introduced a fixed-term Parliament in Scotland with procedures if the incumbent Government lose a motion of no confidence. The Bill is dealing with a fixed-term Parliament on somewhat the same lines as the Labour Government did in the devolution legislation.

[Lord Grocott]

I am sorry, my Lords. I was sitting down thinking about having a cup of tea and suddenly realised that those were interventions on my speech.

The fundamental difference between this and the situation in the Scottish Parliament is that that document began from a blank sheet of paper—albeit a very well rehearsed blank sheet of paper. There is all the difference in the world between drawing up a new constitution and amending a constitution which has worked perfectly well. That is my answer to that question.

[Lord Falconer of Thoroton]

This is a fascinating debate. To pick up on what my noble friend Lord Clinton-Davis said, it has been mentioned before in this debate, but it is worth citing what Mr James Callaghan said in the evening after he lost the vote of no confidence. He said:

“Mr Speaker, now that the House of Commons has declared itself, we shall take our case to the country. Tomorrow I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up, and I shall then announce as soon as may be—and that will be as soon as possible—the date of Dissolution, the date of the election and the date of meeting of the new Parliament”.—[Official Report, Commons, 28/3/79; col. 589.]

Under the Bill, were it to be passed in this form, Mr James Callaghan would have said, “I shall now wait for 14 days while I offer the Ulster Unionists tunnels and money, and junior ministerial posts to Mr Bruce Grocott, in the hope that they might then support me”. Should Mr James Callaghan have been of that nature, he could under the Bill have used the 14 days to bribe and cajole to produce another Labour Government with confidence and supply support from the Ulster Unionists and come back 14 days later to say, “Ha, ha! I can return with a Labour Government and I will hold on until October 1979”. We should ask ourselves: would the public have had greater confidence in Mr Callaghan if he had behaved like that or did they have much greater confidence in him immediately accepting the consequence of what was happening and going to the country?

I ask that question because the right honourable Mr Nicholas Clegg says that we are going through all these contortions apparently to increase trust in our parliamentary system, despite the fact that Mr David Laws makes it clear that that is untrue. I give way to the noble Lord, Lord Rennard.

15:45

[Lord Rennard]

Does not the noble and learned Lord, Lord Falconer of Thoroton, recall that it was actually in the autumn of 1978 that the then Prime Minister, Mr James Callaghan, offered significant inducements to the Ulster Unionists to stave off his defeat by creating extra seats within Northern Ireland at the Westminster Parliament in order, under the existing system, to stay in office for longer? Furthermore, does not the noble and learned Lord recall that, wisely, the previous Labour Government introduced the Acts setting up the Scottish Parliament and the Welsh Assembly? In the Welsh Assembly, provisions were shown to have worked well when Mr Alun Michael lost a motion of no confidence, but there was no general election for the Welsh Assembly; nor do I recall any suggestion of that from noble Lords opposite or members of the Labour Party. All that happened was merely that Alun Michael lost the motion of no confidence; he had to stand down as First Minister; Mr Rhodri Morgan became First Minister; and a new coalition Government were formed who governed Wales very satisfactorily until the next election. Is that not a good model?

[Lord Falconer of Thoroton]

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so, and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote—although I cannot remember whether or not it was a vote of no confidence—but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals—not the Liberal Democrats—to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess—it is obvious that it is a mess—because the coalition is looking for a mechanism to hold itself together, as David Laws’s book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws’s book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either—14 days of nothing or the old Government coming back as a retread new Government within the 14 days—is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment—namely, the present system. A vote of no confidence normally allows for an election but is flexible enough to ensure that a Government emerge when appropriate.

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

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships’ House described it. I have not heard in any of our debates—either at Second Reading, in the other place or indeed in any of our Committee debates—anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration may be formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it were not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

[Lord Forsyth of Drumlean]

I am intrigued by the analogy that the Minister uses in respect of requiring a larger majority than a simple one as a safety valve. Is that not a bit like taking a boiler, setting the pressure 30 per cent higher and saying that is making the thing safer? Surely, a safety valve implies a lower trigger, not a higher trigger.

[Lord Wallace of Tankerness]

I was using the terminology used by your Lordships’ Constitution Committee. It is not one I would necessarily disagree with, but what was meant by the safety valve—and the chair of that committee is here—was that, rather than be completely locked into a rigid fixed-term Parliament, with no way out if Parliament was unable to continue, there be mechanisms to trigger an election. One of them is where most sides agree that there should be an election and they constitute the two-thirds majority that would lead to an immediate Dissolution. The other mechanism by which an election would be called is where there has been a vote of no confidence in the Government and, within a period of 14 days, no other Government have been able to command the confidence of the House of Commons. It is fair to say—

[Lord Forsyth of Drumlean]

Surely, given how the noble and learned Lord has explained it, the safety is being provided for the Executive in order to stay in office, which contradicts the whole thrust of this Government’s position that this Bill is about handing more power back to Parliament. The safety valve is being provided for the Executive.

[Lord Wallace of Tankerness]

My Lords, maybe “safety valve” leads to a misleading impression of what is meant. It is not a safety valve for the Executive; it is a safety valve for Parliament. If Parliament recognises that it is no longer able to function, there is one mechanism for finding a way out of that breakdown, and that is by calling an election. That is certainly not to the Executive’s advantage. Alternatively, where a Government have lost the confidence of the House of Commons and no other Government can be established, again, there is a mechanism for an election to be called. I do not believe that in any way helps the Executive.

[Baroness Jay of Paddington]

I go back to my point about the use of the phrase “safety valve”, which I think appears throughout the Constitution Committee’s report in quotation marks. The question about whether it is for the Executive or the legislature is not one we pursued. In response to the exchanges we have just heard between the Minister and the noble Lord, Lord Forsyth, one is brought back to the question raised by my noble friend Lord Grocott: “Why make this so complex? Why not just stick with the present position?”. Everything that the Constitution Committee said about this was in relation to the complexity of the provisions in this Bill.

[Lord Wallace of Tankerness]

My Lords, I think it is also fair to say that the general trigger mechanisms, if I can call them that, were generally supported by the Constitution Committee which had a lot of negative things to say about this Bill.

[Baroness Jay of Paddington]

My Lords, I am sorry to interrupt the noble and learned Lord again but that is precisely the point I was making earlier. Those were the understandings within the context of this Bill and not the political judgments which have been expressed, rightly, in this debate.

[Lord Wallace of Tankerness]

I am grateful to the noble Baroness for confirming that in the context of this Bill these were identified as the correct mechanisms. As I indicated, if passed into law, this Bill will certainly bind this Government and this Parliament, and it will also look to the future.

The problem of the position being abused also engaged the concern of the Constitution Committee, and much of the noble and learned Lord’s Second Reading speech was devoted to that. Again, if you just had a straightforward, simple Dissolution which could be conjured up by the Government of the day, that would drive a coach and horses through a Bill which was intended to lead to a fixed-term Parliament. If the Prime Minister could conjure up a vote of no confidence knowing that would trigger a general election, it would restore the power of Dissolution with the Prime Minister.

[Lord Campbell of Alloway]

I have a very short question. Will my noble and learned friend deal with the argument of the noble Lord, Lord Grocott, which appeared to me to be totally acceptable? Can he say what is wrong with the constitution? If there is nothing wrong with it, what are we doing messing about with it?

[Lord Wallace of Tankerness]

My Lords, I am trying to address the arguments advanced by a number of noble Lords and will certainly come to the point made by the noble Lord, Lord Grocott. He asked what was wrong with the position in 1979. Under our constitution as it then was and as it stands today, the Prime Minister followed a course of action which was constitutionally acceptable. We are looking at a situation where that would not be the framework within which the Prime Minister was acting—he would be acting within the framework of a Parliament elected for a fixed term. The then Prime Minister had the choice of whether to resign or immediately call a general election. He chose to seek a Dissolution. Resigning would not be possible under the amendment moved by the noble Lord, Lord Howarth. What we are seeking to do is take away the power of the Prime Minister to call an election. I think my noble friend was trying to get in earlier—

[Lord Cormack]

Yes I was. I am most grateful to my noble friend, who is the most conciliatory of men—but. The two devices of the 14 days and the two-thirds majority are in this Bill to protect whoever is the Prime Minister and whoever are the Executive, and there can be no getting away from that. Surely, allowing a Prime Minister, having lost the confidence of the House of Commons, 14 days, or allowing two-thirds of its elected Members—not two-thirds who are necessarily there at the time—to vote for a Dissolution, is a protective device and one that gives time for the powers that be, the Whips Office and elsewhere, to work on Members. It will make for a thoroughly undignified situation, and it will only add power to the Executive and take it away from Parliament, where it rightly belongs.

[Lord Wallace of Tankerness]

My noble friend Lord Lamont has also been trying to get in. If he wishes to ask a question, I shall deal with it and then press on.

[Lord Lamont of Lerwick]

At Second Reading, my noble and learned friend said that the advantage and the public interest in having a fixed-term Parliament was predictability and continuity, as a Government could then complete their programme over a five-year period. I understand that argument. However, what public good is produced when a Government with a wafer-thin majority lose the confidence of the legislature and then artificially try to create a situation in which a new type of Government with new allies might be formed? Why is that in the public interest? Why have these two devices to try to create a new Government in place of the previous one? I do not see the public interest in completing five years with two different Governments.

[Lord Wallace of Tankerness]

As has been pointed out, what happened in Wales was that, after Mr Alun Michael resigned—he did not actually face a vote of no confidence but there was one on the horizon—a new Government were formed who quite successfully saw out their term of office. The point that I am trying to make is that with fixed-term Parliaments there is that certainty.

Equally, it has been widely recognised that there must be some mechanism that allows an election to take place if it is no longer possible for a Parliament to continue. That is why I do not agree with my noble friend Lord Cormack that these are devices that somehow are to help the Executive; they are devices for where Parliament can no longer function. If these rules had been in place in 1979 and the then Prime Minister, Mr Callaghan, had decided that calling an election was the right thing to do, I rather think that the then leader of the Opposition, Mrs Thatcher, might well have agreed with him and there would have been a two-thirds majority for a dissolution. Alternatively, as happened in 1924, it was possible for one Government to resign and for another to come in and form an Administration.

[Lord Norton of Louth]

What I have to say is fundamental to what my noble and learned friend is saying. In the present situation, if a Government lose a vote of confidence, the Prime Minister has the option either of calling an election or of resigning. The Government go. Under the phrasing of this Bill, the Government do not have to go; they can be reformulated. In that sense, the provision protects the Government as the present situation does not.

[Lord Wallace of Tankerness]

They could if they commanded a majority in the House of Commons. It would require them to face the House of Commons and command a majority there. It is no good for the noble and learned Lord, Lord Falconer of Thoroton, to say, “Well, we have these two situations, as happened with Mr Baldwin in 1924, and somehow we have to find a means for that to happen”. This provision tries to find a means by which that could happen. He may say that this is not the best means of trying to do that; I have not yet heard from him how he would seek to do that, given that his party also believes in fixed-term Parliaments and does not believe that they should be rigid. If he thinks that there should be a mechanism for a Government to resign and a new Government to be formed without an election, we would certainly be open to hearing how he would devise the means by which that could be done. It is certainly not done by the amendment to which he put his name, moved by the noble Lord, Lord Howarth.

On the amendment tabled by the noble Baroness, Lady Hayter, with regard to the period of 14 days, as my noble and learned friend Lord Mackay of Clashfern said, with the devolution settlements a period of 28 days is allowed for a new Government to be constituted after a Government in Scotland or Wales lose a vote of confidence. We took the judgment—and I accept that it is a judgment—

[Lord Maxton]

My Lords—

[Lord Wallace of Tankerness]

I am sorry, but I have been very generous. It is important that we make progress.

We took the judgment that 14 days was the appropriate time to allow for another Government to be formed. I pick up on the point made by my noble friend Lord Newton of Braintree, who said that more than five days might have been better in May last year. I leave that thought hanging. We have a culture here of doing it in one day, with the pantechnicons rolling up into Downing Street and furniture being taken out. That may not be healthy, particularly if we are in a situation where there may well be more elections that do not produce an outcome with an overall majority for one particular party.

The position with the devolved Administrations is not always comparable, but I simply reflect that in 1999, after the election to the Scottish Parliament, there was a situation where no party had a majority. The pressure on those of us who were negotiating to try to establish a Labour-Liberal Democrat coalition was quite intense for that to be done in a relatively short period time. By the time of the 2003 Scottish election, where again there was no overall majority, there was not the same pressure. We were able to deliberate longer before finalising a coalition agreement; because of our experience in 1999, we had changed the expectation, as it were. I believe that is what would happen, as there would be a change of expectation and there would not be the same level of pressure to rush into an agreement. As my noble friend Lord Newton indicated, places like Germany seem to take a bit longer than we do without necessarily causing great upheavals there.

That is why we took the view that 14 days was right. It is not just 14 days to establish a Government but 14 days during which a new Government would have to be established and a vote of confidence in that Government to have been passed by the other place. Therefore, it is not simply the formation of a Government. It could well be that during that period of time it became blindingly obvious to everyone that no Government would be formed. In those circumstances the sensible thing might be to have a dissolution motion, agreed by all parties, so that an election could be triggered rather than waiting the 14 days. Equally, if a new Government were formed very promptly, we would not have to wait 14 days either for that period of relative uncertainty, as it was described, to be over.

As the noble Lord, Lord Clinton-Davis, who is no longer in his place, pointed out, in 1979 there was a period of five weeks before the Government were defeated. The point I would make is that, in trying to arrive at the 14 days, we wanted to look at the fact that there was a period then, and there would also have to be an election period after it. We did not want to make it too long, but equally we felt that too short a period might not allow the appropriate level of time. A balance has to be struck. I take the point made by the noble Baroness, whose Constitution Committee did not make a political judgment; nevertheless its constitutional judgment was that the Government got it right constitutionally in allowing a period of 14 days.

A similar amendment was considered in the other place, where I think it was defeated overwhelmingly. Indeed, Mr Chris Bryant indicated that he was very much with the government Front Bench on the matter. I think that the amendment would lead to restoring the power of the Prime Minister to trigger a general election when he or she wished it to happen through a vote of no confidence. The noble and learned Lord, Lord Falconer of Thoroton, expressed concern that even with the 14 days that could happen. I believe it could happen even more easily with the amendment proposed by the noble Lord, Lord Howarth. That would drive a coach and horses through the principle of having a fixed-term Parliament and taking away the power from the Executive. Therefore I urge him to withdraw his amendment.

[Lord Howarth of Newport]

Will the noble and learned Lord tell the Committee whether he intends to take away the subsection in order to redraft it to eliminate the ambiguities which expert academic commentators have drawn attention to and which I think are significant?

[Lord Wallace of Tankerness]

I apologise to the noble Lord, as I think that was his very first point, which was also picked up in the report of the Constitution Committee. In the light of that, we have considered the wording and we do not believe that it leads to ambiguity. We are not looking to a situation where there is, as it were, an investiture or a notional vote on whether someone should be recommended to Her Majesty the Queen to be Prime Minister; a Government would have to be formed. However, in the light of his comments and those of the Constitution Committee, I am willing to look again to see whether the matter can be even further clarified. However, having considered it at some length, we think that the wording actually says what it means on the face of the Bill. Nevertheless, I undertake to consider the point that the noble Lord made.

[Lord Howarth of Newport]

I thank the noble and learned Lord for his willingness to look again to see whether the drafting could be clarified. I think that is important.

The debate that we have just had shows that this question of whether there should be a 14-day provision following a vote of no confidence is a subject that has been very well worth our while to consider. The Minister denied that the provision is a contrivance, but if it is not that in itself, it is the product of a contrivance—a contrivance to keep the coalition in place for the longest possible time. On this policy of fixed-term Parliaments, the more we examine it in this Committee, the more we realise that there are much greater difficulties attaching to what appeared to be a simple and beguiling proposition than were recognised at the outset by the framers of manifestos in various political parties and by Ministers as they prepared this Bill.

The noble Lords, Lord Cormack and Lord Norton of Louth, underscored how, among the risks contained in the provisions in Clause 2, there is the risk that the provisions will, perversely, serve to protect the position of the Government. I acquit the coalition of having that motive, perhaps, but that may be the consequence of the provision. The noble Lord, Lord Newton, was of course right to remind us that politics does not stand still and that we may well continue to see rather different electoral outcomes from those that we were accustomed to seeing in past decades. The constitution, of course, always needs to respond flexibly, pragmatically and appropriately. That is one great virtue of not having a written constitution and one reason why I worry that this Government are so keen to write into statute great chunks of a new constitution. That is a difficult thing to get right; it may well be impossible.

My noble and learned friend Lord Falconer and my noble friend Lord Grocott described graphically the absurdities that would have occurred had this Bill been on the statute book in 1979, or indeed in 1940, with the undignified and chaotic situation that that would have produced in Parliament.

[Lord Wallace of Tankerness]

On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.

[Lord Falconer of Thoroton]

The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.

[Lord Howarth of Newport]

My Lords, if I may say so, that was another worthwhile exchange. It would not be my intention to prevent the possibility of resignation. This clause could be amended fairly easily to incorporate that possibility. One would simply have to say that a parliamentary general election may also take place if the Speaker of the House issues a certificate. Against that background and against the noble and learned Lord’s undertaking to reconsider the specific drafting of the subsection, I beg leave to withdraw this amendment.

Amendment 34 withdrawn.

House resumed.

Justice: Civil Litigation Reform

Tuesday 29th March 2011 Lords Chamber

Statement

16:19

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, with the leave of the House I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice:

“With permission, Mr Speaker, I wish to make a Statement. I have today laid before Parliament two documents: the Government’s response to our recent consultation on Lord Justice Jackson’s recommendations for reforming no-win no-fee arrangements, and a fresh consultation document on proposals to overhaul the civil justice system. Copies of both documents will be available in the Vote Office and on the Ministry of Justice website. I hope to bring forward legislation on the Jackson reforms as soon as parliamentary time allows.

To many people in this country, the prospect of legal action is an expensive, daunting nightmare. One of the worst features of our compensation culture is that our justice system has increasingly become closed to vast rafts of the ordinary public by legal costs out of all proportion to the dispute or the claim. The proposals I am announcing today will, I hope, begin to restore proportion and confidence in our system of justice for both claimants and defendants.

First, following careful consideration of the consultation responses, I have decided to reform no-win no-fee arrangements to stop the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right. I can therefore announce that the Government will seek to legislate to return the no-win no-fee system to first principles. We plan to end the recoverability of success fees and insurance premiums which drive up legal costs, award claimants a 10 per cent uplift in general damages where they have suffered loss, and then ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyers’ success fee. We will also bring forward our plans to encourage parties to make and accept reasonable offers, to protect the majority of personal injury claimants from paying a winning defendant’s costs and to allow claimants to recover the cost of expert reports in clinical negligence cases.

Secondly, I am publishing a consultation paper which I believe paves the way for the most effective and efficient delivery of civil justice after 15 years of stagnation. The current system is slow, stressful and expensive and change is long overdue. My aim is to help people avoid court wherever possible while reducing costs where that is unavoidable. We are proposing that small-value cases should automatically be referred to mediation so that many people are able to avoid the experience of court entirely; the maximum value for small claims will be raised from £5,000 to £15,000 to enable more cases to be heard through the simple small claims process rather than a more costly, complicated trial; to increase the value below which claims cannot be brought in the High Court to £100,000 so that the county court jurisdiction is extended and the High Court is reserved for only genuinely complex or high-value cases; new measures which will improve the ability of courts to tackle those who evade payment of their debts even though they have the means to do so, while ensuring that those who cannot pay continue to be protected—for example, by setting a minimum level of consumer debt at which property could be put at risk for non-payment—and, my final example, the extension of a successful online system to cut waiting times and legal expenses in personal injury cases, as recommended by my noble friend Lord Young of Graffham.

We have a duty to deliver a civil justice system which is more equitable, accessible and just. Resorting to the law need not be the long, drawn-out, expensive nightmare which so many people experience today. It could become a sensible, affordable way of resolving disputes in a proportionate manner. I believe these reforms will help to restore those fundamental values of proportion and fairness in our civil justice system. I commend this Statement to the House”.

My Lords, that concludes the Statement.

16:23

[Lord Bach]

I begin by thanking the Minister for repeating the Statement made by his right honourable friend and for giving us advance sight of it. We have a number of questions, mainly around the first part of the Statement. We look forward to the second part on the commencement of the consultation period, and broadly welcome the fact that there is to be a consultation period on those issues.

As regards the first part, we of course accept that costs in civil proceedings are very much worth investigating; indeed, we did so when in government. I am sure we all agree that those suffering injury through the negligence of public and private bodies and who cannot afford to fund actions privately must have recourse to the civil justice system. Our fear is that these plans go so far in trying to keep down costs that some claimants with good cases will find it difficult, if not impossible, to find a lawyer who will take on their case. Of course, the devil will be in the detail of today’s announcement, and I ask when it is intended that legislation will be introduced. Will it be part of a Bill that is rumoured to be coming from the Ministry of Justice within the next few months?

To justify his announcement, the Justice Secretary refers in his Statement to Lord Justice Jackson’s monumental report. However, have Her Majesty’s Government taken into account Lord Justice Jackson’s view that his proposals should be seen as a package and should not be subject to cherry-picking, although is that not exactly what the Government have done in this announcement? Will he also take into account Lord Justice Jackson’s strong desire to keep civil legal aid for clinical negligence and housing cases, which are currently very much under threat from the Government’s proposals? I quote from page 70 of his final report:

“I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility”.

Is it fair to allow claimant solicitors to recover up to 25 per cent of their costs from the damages that a claimant recovers when the increase from defendants to claimants in compensation will be only 10 per cent and will apply only to general damages, which as the House will know, are sometimes only a fraction of the total damages? Why should someone who has suffered the trauma of an injury at work be told that some of the money they have justly received to compensate them is to go to their lawyer? Do we really want to go down the route of contingency fees? I know that they existed under our law for a short time but they no longer do. I think that at some stage the House will want to debate the whole issue of contingency fees and whether they are an appropriate course for the English and Welsh legal system.

Has the Justice Secretary had a chance to assess the road traffic accident portal scheme introduced by the previous Government to reduce costs? This uses fixed fees and efficient processing to limit costs, and it came into force in March 2010. Does the Minister accept that it has reduced by half the cost of 75 per cent of personal injury cases? Expanding the scheme to cover personal injury claims would, we believe, save costs. Do the Government agree?

The Government have said that an aim of the reforms is to reduce the costs that defendants have to pay. Of course, many defendants are insurance companies. In the light of the reforms, can the Minister say what reductions the Government expect in insurance premiums? Can he confirm whether there is an impact assessment of how the changes will affect access to justice, costs to defendants and reductions in insurance premiums?

Next, is the Minister concerned that, although there will be limitations on claimants’ ability to bring a case and on the costs incurred by their solicitors, there will be no such controls on a defendant in defending a case? Does that not raise the question of possible inequality between the two sides in a case?

In this House we all agree that a fundamental principle of our justice system should be proper access to justice. As a Government, we agreed with senior judges such as the noble and learned Lord, Lord Judge—the Lord Chief Justice—as well as Lord Justice Jackson and others, that the costs of civil litigation were sometimes excessive. We would all like reduced litigation costs and, very importantly, alternatives to litigation and particularly to the courts to be found wherever possible.

Our fear is that the proposals could restrict access to civil justice, particularly for those who do not have their own means of funding—rather like the Government’s proposals on cutting legal aid in social welfare law. It could reduce access to justice rather than the opposite, which is our desire—to improve it. It will be on that key issue of access to justice that we will hold the Government’s actions to account.

16:31

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Bach, both for his welcome for the discussion on the county court proposals and for the general level of his questioning. I think that if we are to touch a system like this, there is bound to be some concern about whether there will be a reduction in access to justice. We are looking at that carefully in our impact assessment and in other approaches. On the question of legislation, we intend to legislate as soon as possible and as soon as there is a suitable vehicle.

I do not think that we have cherry-picked Lord Justice Jackson’s report. We have retained a certain hold-back on protecting clinical negligence claimants in the help that they will get. Lord Justice Jackson made 109 recommendations, and the Government are taking the reform of conditional fee agreements as a matter of priority because of the potential cost saving for the Government and others. He conducted a year-long review of current arrangements and considered the likely impact of these proposals. Much of the necessary data are held in private hands by lawyers and defendants in civil litigation. Data were provided during Sir Rupert’s review and further data were received by the Government during the consultation. The Government’s initial impact assessments were published alongside the consultation and comments were specifically sought on the assumption. A final impact assessment was published alongside the Government’s response. Our impact assessment shows that successful claimants in personal injury cases will generally end up in a similar position to now, although overall most will gain.

As the noble Lord said, the road traffic scheme, to which the noble Lord, Lord Young of Graffham, also referred in his report, seems to have been a considerable success, and we are examining ways of how it could be extended. On the impact on insurance it is difficult to be precise, but it is interesting that today the Association of British Insurers has issued a statement saying that it expects insurance costs to fall as a result of these reforms.

Why should claimants pay? Claimants with meritorious claims will still be able to bring them. The Government believe that it is important that people with serious injuries should be able to receive compensation for negligence. That will continue. Indeed, the general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent under these proposals and there will be an incentive to reduce costs compared with now, such as improving incentives to settle. This will improve justice overall.

As the noble Lord will know, one of the main criticisms of the post-2000 operation of this scheme was that claimants had no real incentive to put a check on their legal costs on the assumption that they would never be responsible for it. The Government also believe that damage-based agreements will provide an additional method of funding for claimants. Like conditional fees, they are a type of no-win no-fee agreement under which lawyers are not paid if they lose a case but may take a percentage of the damages awarded to their client if their case is successful.

I hope that I have covered most of the points that the noble Lord covered. If I have not, I will give him opportunity to intervene again. In aid of these proposals, I call upon two statements. One was made by Mr Jack Straw, who originally commissioned the Jackson report.

[Lord Bach]

No, he did not.

[Lord McNally]

Did he not? Sorry. You were there; I was not. Thank you very much. Mr Straw said that the Jackson proposals,

“are designed to reduce the costs of civil litigation overall. Those costs have risen too high, and that is a bar to proper access to justice”.—[Official Report, Commons, 9/2/10; col. 740.]

Perhaps he was pointing to what the noble Lord, Lord Bach, just said. As the noble and learned Lord, Lord Neuberger—the Master of the Rolls—commented:

“Critics do not appear to have been able to provide an alternative model for a comprehensive package to tackle what seems universally acknowledged to be a non-sustainable problem of rising civil litigation costs. The time for analysing the problem has come to an end. The time for action has come”.

The Lord Chancellor has brought these proposals forward in that spirit.

16:37

[Lord Lloyd of Berwick]

My Lords, I welcome the review of civil justice. One problem with the civil justice system is that we have, over the past 10 years or so, succeeded in creating what amounts to a parallel system of criminal justice enforced by the civil courts, thus adding to the burden that already exists for the civil courts to discharge. I have in mind in particular the serious crime prevention order and the violent offender orders. Those are just examples of what we are doing; there are many others. Would it not be better for what are essentially matters of criminal justice to be dealt with in the criminal courts and not in the civil courts, thus relieving the pressure on the civil courts? Could the Minister see his way to somehow looking again at the serious crime prevention orders and the violent offender orders and repatriate them, if that could be done, to the criminal courts rather than the civil courts?

[Lord McNally]

My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.

[Lord Thomas of Gresford]

My Lords, centuries of English law produced a position whereby, in civil and criminal cases, it was a principle that the lawyer should not have a personal interest in the outcome of the case. In other words, he would be paid whether he won or lost. That was mitigated to ensure that there was proper access to justice by the introduction of the legal aid scheme. It was on that principle that during the previous Government’s period we on these Benches opposed the introduction of no-win no-fee schemes.

It is interesting to look at this Statement to see what are now said to be the problems resulting from the change from the basic principle that we had had for so long. The Statement refers to,

“the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right”.

The proposals are also said to,

“begin to restore proportion and confidence in our system of justice”.

What has happened in the mean time, over the past 10 or 12 years, is that advertising has been allowed to proliferate and non-lawyers have collected and farmed claims. By advertising, they have drawn to themselves hundreds and thousands of claims and have then farmed them out to various firms of lawyers. All these ills have done nothing to improve the lot of the claimant who has been injured or who has a grievance that he wishes to be resolved.

It is because I have such a basic objection to no-win no-fee that I cannot completely endorse these proposals, but they are undoubtedly an improvement on what has gone before and they redress some of the problems that have arisen. Success fees and insurance premiums are recoverable; that is to say that I as a claimant can insure myself against losing the case and then charge the insurance premium, which I know can be tens of thousands of pounds, to the defendant, provided that I am successful. I can do that not if the case goes to court but if the case is settled at some stage, so the cost of litigation has been a huge problem that has faced defendants and insurance companies.

Another problem that arises because of that is that a plaintiff has very little interest in the amount of costs in the case. He is insured against paying the defendant’s costs, he will recover if he wins and if he loses, and he has none of his own costs to pay. It has been very damaging to permit no-win no-fee cases to go in the way that they have. The proposal to ensure that claimants have an interest in the result and are restrained from allowing their lawyers to run up massive bills of cost, as proposed, is something that I, unlike the noble Lord, Lord Bach, think is a way forward.

The second part of the Statement dealing with the consultation paper on the improvement and efficient delivery of civil justice is also to be welcomed. The proposals to give greater jurisdiction to small value cases, for small claims cases to be heard through the simple small claims process and to increase the threshold for going to the High Court are all to be welcomed.

[Lord De Mauley]

I draw my noble friend’s attention to the fact that Statements are supposed to be the occasion for brief comments and questions.

[Lord Thomas of Gresford]

I accept that rebuke and will leave it at that.

[Lord Newton of Braintree]

My Lords, I apologise. I was thinking it was a debate.

[Lord McNally]

In fact, we are trying to cut out the middle man, as my noble friend Lord Newton is now.

I could listen to my noble friend Lord Thomas of Gresford all day on these matters. On his comments about no-win no-fee, I recall very well the debates about that and about the removal of the principle of no self-interest on the part of the lawyer in the outcome and of it simply being a matter of delivering a professional fee. Against that was the very real motivation that the system could and would provide access to justice that might not otherwise have been there.

On balance, as I said in my response to the noble Lord, Lord Bach, we are trying to get the system back more to how it was when my noble and learned friend Lord Mackay of Clashfern introduced the system in the early 1990s and to avoid some of the inflation that has occurred in the past 10 years. For reference, a general liability insurer has indicated that in 1999 claimants’ solicitors’ costs were equivalent to just over half the damages agreed or awarded at 56 per cent. By 2004, average claimant costs were 103 per cent of damages. By 2010, average claimant costs represented 142 per cent of the sums received by the injured victims. The insurer also indicated that, while average damages paid had increased since 1999 by 33 per cent, average claimant costs paid, including disbursements and insurance premiums, have increased 234 per cent. It is that kind of inflation that we are trying to tackle in these proposals.

On the other point made by my noble friend, we are aware of concerns about referral fees. This matter was raised in a recent report by the House of Commons Transport Committee on the costs of motor insurance. The committee called for greater transparency in referral fees. The Government are now awaiting the legal services report on referral fees, which is due shortly.

[Lord Beecham]

My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.

In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.

The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?

[Lord McNally]

My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.

I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.

I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.

I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:

“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.

That is one way of representing its members, but I would not describe it as research.

[Lord Newton of Braintree]

My Lords, first, in the light of what has been said, I declare an interest as the chair of a health trust. I have a good deal of sympathy with what has been said both on that front and about mediation. Secondly, I declare my solidarity with those on both Front Benches as they seem to agree that the underlying issue is access to justice. That means looking at the small print alongside the proposals for legal aid.

I have two, perhaps three, questions. First, do these proposals relate only to the civil courts or to other bodies that are, in effect, part of civil justice—namely, employment tribunals, land tribunals and others? Secondly, do they apply in any way to the great raft of tribunals that involve citizen v state and have not normally been seen as civil justice? Thirdly, how many people have recourse to the civil courts and how many people have recourse to tribunals?

[Lord McNally]

My noble friend is right that the proposals will be linked in with those for legal aid. The Government have still not made their final decisions on the legal aid package on which they have been consulting, although they have indicated that they want to make cuts on the civil side of legal aid and how they want to make them.

We are trying to reduce the cost of our legal services by reforming court procedures, by introducing mediation, which may avoid the greater costs of court, and by following Jackson and putting some responsibility on claimants for managing legal costs. I had better come clean with my noble friend about how far the proposals extend into the world of tribunals. I shall write to him on that, because I am not quite sure of the answer. I would imagine that they do, but I had better make sure and write to my noble friend.

[Lord Laming]

My Lords, the noble Lord, Lord Thomas, and the Minister referred to the rather seductive advertisements that appear very frequently in many places—the Minister gave a vivid illustration of one such advertisement. Is there anything in these proposals that will have an impact on that kind of advertising?

[Lord McNally]

No, not in these proposals, but, as I said earlier, we are waiting for a report on that matter. It must be at least 10 years ago, and perhaps more, that I raised from the Benches opposite the fact that you have only to watch the television any afternoon at home—I know that noble Lords do not often do that—to see those adverts, which make the winning of a case seem akin to winning the lottery. You see a smiling client with a large cheque, having successfully referred their case to some organisation or another, without the general public being aware that the organisation with which they were in contact would not have dealt with their case but farmed it out to a solicitor, thereby only adding to the costs. My right honourable friend the Lord Chancellor is very well aware of this and we await the report. I suspect, knowing him as I do, that he will want to take action on something which irritates and angers a lot of people.

The third question of my noble friend Lord Newton was how many people have recourse to the civil courts. In 2009, some 1,460,000 money claims were issued. I hope that helps my noble friend.

[Lord Campbell of Alloway]

My Lords—

Fixed-term Parliaments Bill

Tuesday 29th March 2011 Lords Chamber

Committee (3rd Day) (Continued)

17:00

Amendment 35

Moved by

[Lord Norton of Louth]

35: Clause 2, page 2, line 12, leave out paragraph (b) and insert—
“( ) the Prime Minister has decided to request a dissolution in place of offering his or her resignation.”

[Lord Norton of Louth]

I shall speak also to Amendment 38. I very much agreed with the arguments advanced earlier by the noble and learned Lord, Lord Falconer of Thoroton, but that is largely because they all supported my amendments rather than the one that he was addressing. Perhaps, given that he has now left the Chamber, he was trying to get his arguments in first in support of my amendments.

My amendments are designed to maintain features of our existing constitutional arrangements while addressing the problem for which the Bill makes no provision: that is, the Government opting to resign without having been defeated on a vote of confidence.

Amendment 35 would maintain the present constitutional convention that if the Government lose a vote of confidence in the House of Commons, the Prime Minister resigns or requests that Parliament be dissolved. The precedent was established in 1841 and has been maintained since. As we have heard, in January 1924, the Baldwin Government met the new Parliament, were defeated in two Divisions of confidence and resigned. In October of the same year, the MacDonald Government were defeated in two Divisions deemed matters of confidence and requested that Parliament be dissolved. As we have heard about in some detail, in 1979, the Callaghan Government were defeated on an explicit vote of confidence and requested the Dissolution of Parliament.

The advantage of the current situation is that it allows some flexibility in order to respond to the conditions of the time—the point made earlier by the noble and learned Lord, Lord Falconer of Thoroton. If it is clear that there is no prospect of an alternative Government being formed, there seems little point in waiting. If one takes the situation in March 1979, can one really claim that the Prime Minister should not have requested the Queen to dissolve Parliament and hold an election? There was demonstrably no case for waiting. Under the Bill, there would have been a delay of two weeks before an election was triggered.

I see no grounds for not allowing the Prime Minister to recommend an election if the Government have been defeated on a vote of confidence. Stipulating the 14-day gap serves no obvious purpose. It does not provide a disincentive for the Government of the day to manipulate a vote of no confidence. If the Government are able for their own purposes to persuade their supporters to vote for a Motion of no confidence, they can presumably also use them to ensure that no alternative Government can muster a majority for a vote of confidence. That just delays matters by 14 days.

My other amendment provides that if the Government opt to resign and no alternative Government are formed and achieve a vote of confidence, an election will be triggered after the passage of a set period. In my amendment, it is 28 days. That is in line with what is in the devolution legislation. That may appear too generous. The amendment of the noble Lord, Lord Howarth, stipulates 14 days. It may be that 14 days is preferable to 28; it may be that the period should be shorter. As I mentioned earlier, we are unusual in the United Kingdom in having a rapid transition from one Government to another. However, whatever the period, we need at least to stipulate a clear time limit, however unlikely it is to be utilised.

A Prime Minister is not expected to resign unless it appears that an alternative Government can be formed. Only in the event of the implosion of the Government is such a provision likely to be necessary, although in those circumstances it may be that the Opposition could muster sufficient support to pass a Motion of no confidence. However, my amendment covers the highly unlikely, but not impossible, situation of a Prime Minister resigning; the House failing to pass a Motion of no confidence or to mobilise the 400 votes out of 600 necessary for a Dissolution Motion; and the Leader of the Opposition, or some other figure, being unable to form a Government. Under the Bill, there could be stalemate until the election at the end of the five-year period. As we have heard, Belgium is presently setting the record for the length of time for which no Government has been formed. I am not suggesting that we will ever be in that situation. My amendment ensures that such a situation will not arise.

In essence, my amendments seek to maintain the benefits of the present arrangements within the context of fixed-term Parliaments. I beg to move.

[The Deputy Chairman of Committees (Lord Haskel)]

I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 36 or 37, because of pre-emption.

[Lord Howarth of Newport]

My Lords, I rise to speak to Amendment 39, which fits into this group covering various contingencies in relation to the resignation of the Prime Minister. My amendment would provide for an early general election if the Prime Minister resigned and, after 14 days, there had been no vote of confidence in any Government of Her Majesty.

This issue was raised by my noble friend Lady Jay during the proceedings of the Select Committee on the Constitution. She asked the Minister, Mr Harper, whether, if a Government resigned without losing a vote of confidence, that would trigger the 14-day provision. Mr Harper replied:

“If the government resigned and we were without a government, you would then have to have a process of government formation. I believe that we think that would be the case”.

That is not quite pellucid and it hardly inspires confidence that Ministers had thought rigorously about this legislation.

Mr Harper then wrote again to the Select Committee, stating that:

“There is nothing in the Bill that prevents a government resigning; the Bill is about the length of a Parliament. If a government decided to resign when the Speaker had indicated that he was not minded to issue such a certificate, then the 14 day period would not be triggered although, as I said to the Committee, a period of government formation would obviously follow. It would just not be time-limited”.

Your Lordships may consider that it should be time-limited and that we should not allow ourselves to get into the Belgian or Iraqi situation whereby a Government cannot be formed for very long periods.

Amendment 38 of the noble Lord, Lord Norton, specifies 28 days. As he anticipated, I think that 28 days is too long. His Amendment 35 does not specify any time limit, but just removes the 14-day provision altogether. It will be no surprise to your Lordships, following a previous debate, if I confide in you that that is a much more attractive provision. However, supposing we accept that time should not be unlimited in such circumstances. If we provided for 14 days before an early general election takes place, following the resignation of the Prime Minister, it would integrate provision for the contingency of the Prime Minister’s resignation with the provisions in the Bill for other early departures of a Government.

It may be wise to provide a clear remedy, given that we have the Bill. The Bill would abolish the royal prerogative of Dissolution. Currently, with the prerogative—as the noble Lord reminded us—if the Prime Minister resigns, the Queen takes soundings to see whether another party leader can form a Government. If he cannot do so, she dissolves Parliament. That remedy is removed by the Bill. The Bill allows resolution of the impasse only if two-thirds of MPs vote to dissolve Parliament. However, that is not a sure remedy, because the Opposition might prefer not to take their chances at an immediate general election—they might not co-operate to secure that two-thirds vote.

It is worth considering what might have happened in historical situations that some of us can at least dimly remember. In the Government of Mr Attlee in 1951, he chose to go to the country. Aneurin Bevan and Harold Wilson had resigned from the Cabinet, having disagreed with the Government’s budget. The Labour Party had a majority of five, and Mr Attlee judged that he could not carry on. Under this Bill, Mr Attlee could not have gone to the country. Under this Bill, Mr Heath could not have gone to the country in February 1974. Of course, Mr Attlee or Mr Heath might have appealed to the other leaders and secured a two-thirds vote of the House of Commons for Parliament to be dissolved and for there to be a general election. However, what might have happened in October 1974, when Harold Wilson chose to go to the country? Would the Conservatives, at that stage, have been ready to agree to a general election? We shall never know, but the answer is uncertain.

It may be as well to provide a clear remedy, although I anticipate that the Minister will point out that it would drive a coach and horses through the central purpose of the Bill, which is to prevent a Prime Minister from seeking an early general election. However, in such situations as I have sketched, it may be desirable and in the public interest for there to be an early general election. The fact that we have to debate these amendments once again shows the unwisdom of seeking to legislate for fixed-term Parliaments.

[Lord Tyler]

My Lords, I have the greatest respect for my noble friend Lord Norton of Louth, who has unrivalled academic expertise and authority in matters of this sort. I am a mere practitioner, so my contribution to this debate is very much probing, rather than definitive. I am generally concerned about the drift that would appear to be the theme of this group. The Committee is provided with three options. One would remove the 14-day period for the formation of a new Government if the existing one falls; one would extend that period to 28 days; and the other would keep it at 14 days but change the process by which it would happen. We therefore have a spectrum of three amendments, representing a scale: one with no period at all in which another Government could be formed; one with a 14-day period; and one with a 28-day period. Those of us of a centrist disposition might be naturally inclined towards the middle option—Amendment 39 in the name of the noble Lord, Lord Howarth of Newport. However, strictly speaking, Amendment 39 is not necessary, since it barely departs from the principle that the Government have already adumbrated in the Bill itself.

Therefore, I will concentrate principally on Amendment 35, which is the “back me or sack me” amendment. It would offer a Prime Minister who had lost the support of his or her party in the Commons the opportunity to go to the country instead of to the Palace. There is nothing wrong with that in principle. It might have provided some clear guidance to Thatcher, Major and Blair at moments when factionalism was on the cusp of becoming fratricide. However, again, the amendment is surely unnecessary. The Bill already allows for the Prime Minister to resign or for a new Prime Minister and a new Government to be appointed. What the amendment does is to take away from Back-Benchers in the House of Commons the power actively to insist on the replacement of the Prime Minister with another. That is the principle behind this change. Instead, it places the decision on going to the country, as now, back with the incumbent of No. 10. I thought Members on all sides of your Lordships’ House thought that was not necessarily the best result.

Under the Bill as it stands, a Prime Minister could effectively be disposed of, as Labour wanted to do with Blair for so long. A clear period would then exist for a new Government to be formed. Members of the Committee can imagine that, when Tony Blair eventually stepped down, the Bill’s provisions would have allowed Gordon Brown to form what he called a new Government, in much the same way that John Major did when Margaret Thatcher resigned. It is not, therefore, clear to me whether my noble friend seeks a move away from the principle that votes of confidence in the Government need not precipitate an election—the status quo—if another Government can be formed. Here is the nub of a very important principle. I wonder whether my noble friend is trying to move away from the principle that the Prime Minister must have the authority and confidence of the House of Commons to continue; and whether he is, therefore, moving towards a principle that there ought, automatically, to be an election if there is a change of Prime Minister.

In February 1974, Mr Heath said, “Who governs Britain?”. He did not say, “Back me or sack me”. We have referred to that election on several occasions in your Lordships’ House in recent months; it is one that many of us recall very well. I have no doubt that my noble friend could find much public support for that principle. However, on balance, I have always thought that British Governments should depend simply and solely on the confidence of the House of Commons to remain in office. That is a parliamentary democracy, not a presidential one.

[Baroness Farrington of Ribbleton]

Will the noble Lord explain to me why I am mistaken in recollecting that Mr Heath did say, “Back me or sack me”? That is my recollection of the interpretation that everybody I knew had of what he said.

17:15

[Lord Tyler]

He may well have said that, but actually what he put on the table before the electorate in 1974, which I remember very well, was that his Government were challenging the country to say whether his Government—and the elected representative Members of the House of Commons who gave confidence to his Government—or the miners should continue to govern the country. That was the issue that he put before the country.

This is, surely, what the Bill seeks to enshrine: that we are a parliamentary democracy, not a quasi-presidential democracy. It is not clear that the noble Lord’s amendments, or any of the options before us in this group, would actually improve it. Unless we intend to complete the process from a parliamentary to a presidential form of government—which I assume my noble friend does not support—surely the change he appears to recommend would be premature. I believe in a parliamentary democracy, and I believe it is the House of Commons that gives confidence to a Government. If that were to change, we would be making a very considerable and dramatic alteration to the basis of our whole constitutional settlement.

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

[Lord Forsyth of Drumlean]

I merely seek some advice from the noble and learned Lord. He said that the Prime Minister would have the choice of either resigning or going to the country. Is the constitutional position not actually that it resides with the monarch whether to grant a Dissolution? There might be circumstances where a Prime Minister wished to go the country but there was someone else who was capable of forming a new Administration, and a Dissolution might not be granted.

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton of Louth for his amendments and the noble Lord, Lord Howarth of Newport, who again has made some interesting and constructive contributions. Amendments have been tabled, not least the amendments in the name of my noble friend Lord Cormack, regarding procedures in the Bill concerning motions of no confidence, what the consequences of those might be and whether they need to be more tightly or more widely specified to cover different situations. I repeat what I said at the start of some of our amendments on the second day in Committee relating to the Dissolution provisions in Clause 2. We are willing to listen to what noble Lords have to say on these matters. I particularly note the point made by the noble and learned Lord, Lord Falconer of Thoroton. I understand that the thrust of his comments at Second Reading was that the Bill would be open to abuse by a Prime Minister who might wish to contrive a situation to get a Dissolution at the time of his or her choosing and therefore defeat the purpose of a fixed-term Parliament. I would want to consider what he proposed in the light of that and whether it might make dealing with the potential for that abuse simpler; and, on the specific amendments, whether the choice of having a Dissolution or a resignation that could lead to another Government being formed, as happened in 1924, should remain solely in the hands of the Prime Minister or whether Parliament should have a role, as we would seek to provide.

[Lord Falconer of Thoroton]

The noble and learned Lord is absolutely right that I regard the position of there being a contrived vote of no confidence as quite easy under this Bill, but I do not think that there is any dispute about that. The noble and learned Lord accepted it, the committee chaired by the noble Baroness, Lady Jay, accepted it, and I have asserted it. So it appears to be agreed on all sides. I do not think that there is anything that can be done about that. Indeed, as I made clear, it would have been right for Mr Heath to have insisted on there being an election through a vote of no confidence if the Opposition had not agreed to an election in 1974 and if there had been a fixed-term Parliament. I see that as indicative of the fact that you are not taking away much power from the Prime Minister. My problem is the idea that the more rigid you make the measure, the more you allow a Prime Minister and a Government to stay in power when it is perfectly plain that the Commons wants to see the back of them and there should be a general election. I see that as the much more dangerous aspect of the Bill.

[Lord Wallace of Tankerness]

I am interested in the noble and learned Lord’s comments, and I shall reflect on this matter. The second point that I made was whether the choice between seeking a Dissolution or there being a resignation with the possibility of an alternative Government being formed should be entirely the choice of the Prime Minister alone or whether, as we seek to do, there should be a role for Parliament when no other Government can be formed and 10 days have elapsed without a confidence motion being passed by Parliament. As I understand it, however, the objective is much the same. In a situation when you have a fixed-term Parliament and it becomes obvious that there is a logjam or deadlock, there must be some means of breaking it and triggering an early election.

The same argument applies to a point made my noble friend Lord Norton of Louth. I assume that he sees Amendments 35 and 38 as being taken together as part of a package. Under one of his earlier amendments, Amendment 27, he said that if the Prime Minister’s discretion over the date of the election were removed, as would happen with a fixed-term Parliament, it should be provided,

“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”.—[Official Report, 21/3/11; col. 564.]

Although this is a technical problem that could be looked at, as presently constructed the proposal could mean that the Prime Minister of the day might choose neither to seek Dissolution nor to resign. I am sure that that is not the intention behind the amendment as it would create a very difficult situation. However, it could be a consequence of the amendment. I do not want to make too much of a technical point as I am sure that that is not a scenario that my noble friend seeks to advance.

At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.

Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—

17:30

[Lord Falconer of Thoroton]

My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.

[Lord Wallace of Tankerness]

My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.

I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter of judgment, but it does provide for a period for that second outcome of another Government being formed to actually happen. We have debated this issue already and we are due for another debate on an amendment tabled by the noble Lord, Lord Kennedy, on whether 14 days is right. However, the provision does allow for a period for that to happen and, if it does not happen, for us to proceed to an election.

[Lord Grocott]

Can the noble and learned Lord answer this question? It has been raised on a number of occasions but I have never heard a specific answer to it. Under the Bill, if the Liberal Democrats decide at some time in the next four years that they cannot support the present Government, the Government lose a motion of no confidence and, during the subsequent 14 days, the Liberal Democrats decide to support the Labour Party—which would not give many of us a great deal of joy—an entirely new Government could be formed without any reference to the British people whatsoever. Is that the position?

[Lord Wallace of Tankerness]

It is a very hypothetical situation. Any new Government, as the noble Lord suggests, would have to be subject to a positive vote of confidence. The noble Lord, Lord Grocott, says that they would get it. That does not necessarily follow because clearly the two parties do not command a majority in the House of Commons. It is hypothetical but, if the other Government were formed, possibly involving the Liberal Democrats and the Labour Party, and it commanded the confidence of the House of Commons, which is crucial, the fixed term would continue to its natural conclusion.

[Baroness Jay of Paddington]

My Lords, I hesitate to repeat the quotation that I gave from the Constitution Committee’s proceedings in the last debate, but surely the answer to the question put by the noble Lord, Lord Grocott, is the one that Mr Mark Harper gave to the noble and learned Lord, Lord Goldsmith, in response to exactly the same question—hypothetical though the noble Lord, Lord Grocott, suggests it is—which was that it depended on the circumstances,

“but I think that it could”.

The noble and learned Lord, Lord Goldsmith, asked him whether it could produce a Liberal Democrat and Labour Government, and that was the answer that Mr Mark Harper gave.

[Lord Wallace of Tankerness]

There is the important qualification that, if we were in a scenario where this Bill was law, it would also require that there had been a vote of confidence in that Government by the House of Commons. Subject to that qualification, I think the answer is exactly as the noble Baroness indicated.

[Lord Tyler]

My Lords, this is not new. Surely in a parliamentary democracy the Government require the confidence of the House of Commons. If they have that confidence, they can then continue.

[Lord Wallace of Tankerness]

That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a formal coalition with the then Liberal Party and they were able then to win a vote of confidence. You may say it was a Government of a different nature who proceeded to govern after that day because they were engaged in a formal pact and were not a new Administration, but they were different from the Government who had existed up to that date, who had not had a formal pact with one of the opposition parties.

[Lord Howarth of Newport]

In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.

[Lord Wallace of Tankerness]

I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.

[Lord Grocott]

If this game of musical parties were to occur—more specifically, if the Liberal Democrats were to decide which party they wanted to operate with—it would be very difficult for Mr Clegg to continue his argument that this was reconnecting Parliament with the public.

[Lord Wallace of Tankerness]

If that was the scenario—a purely hypothetical one—I think my party would have a challenging time making the argument as to why things had changed. However, I do not suppose for a moment that the noble Lord—who probably was in the Commons in 1977—complained too much about an arrangement falling short of a coalition with the then Liberal Party, which actually sustained a Labour Government in power. Obviously the Liberal Party had to answer to the electorate for what it did then, and that is the political reality. These things are all considered in a political context. There is the political reality again, taking the point made by the noble and learned Lord, that if a Prime Minister of the day sought to try and abuse or contrive a vote of no confidence, that would be judged in a political context. It may be thought in some circumstances that it was right to do so, in others that it was duplicitous; the ultimate determination of whether it was right or wrong is one for the electorate, and so it should be.

The period in my noble friend’s amendment is 28 days. He indicated that he took it from the arrangements that had been made for Scotland and Wales in the event of a resignation of a First Minister. There are sufficient differences in the position between the Scottish Parliament, the National Assembly for Wales and the United Kingdom Parliament that would make 28 days an inappropriate period. That is why we have exercised our judgment and said in the Bill that 14 days is more appropriate.

The amendment tabled by the noble Lord, Lord Howarth, would provide that an early general election could be triggered where the Prime Minister has resigned and 14 days have elapsed without the House of Commons passing a motion expressing confidence in a Government. Again, my point would be that in establishing fixed terms, we are seeking to deny the Executive their ability to decide if and when there should be an election. This amendment places one of the triggers for an early Dissolution within the hands of a Prime Minister. That is the problem which we would have with it. The noble Lord mentioned 1951 but it is generally accepted—indeed, I think Mr Jack Straw accepted this on Second Reading—that the circumstances there would almost certainly have triggered the two-thirds majority for Dissolution, because there was common ground that an election should take place. The problem with the noble Lord’s amendment, as I indicated, is that in an effort to try and take away the power from the Executive and put it into the hands of Parliament, it would return it to the Prime Minister.

However, subject to what I said in my opening remarks in response to the constructive point made by the noble and learned Lord, Lord Falconer, and in wishing to look at the important contributions that have been made, I certainly intend to reflect on what has been said in this debate and in earlier debates on the same subject. I have no doubt whatsoever that these matters will be returned to on Report but I ask my noble friend to withdraw his amendment.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have taken part in this short debate. It has been extremely helpful in elucidating problems with the Bill. On a rather small point, I have to correct the noble Lord, Lord Howarth: it was actually me putting the questions to Mark Harper as I was in the chair of the Constitution Committee on that day, which is one reason I am pursuing the issue today.

I have two points to make to my noble friend Lord Tyler. One is on drafting. It has to be about the Prime Minister resigning, not the Government, because when the Prime Minister resigns the Government go. The other point is much more substantive and relates to what we were saying earlier. Parliament is stronger under the present arrangements than under this Bill, because the key point is that under its provisions the Prime Minister gets a second bite of the cherry if he loses a vote of confidence.

On the observations made by the noble and learned Lord, Lord Falconer of Thoroton, my point is that if the Prime Minister resigns having lost a vote of confidence, formally the Government are out. In those circumstances, the Queen sends to whoever she believes could form a Government. Formally, that could include the outgoing Prime Minister but that is the present constitutional position anyway—one thinks to some extent of the circumstances of 1931. I would argue that what I have put forward is better than what is in the Bill because, as I indicated, my amendments are designed to maintain the benefits of the existing arrangements. However, I very much agree with the noble and learned Lord that they reflect the problems of trying to codify existing conventions. That underpins the problems with the Bill.

I am grateful to my noble and learned friend Lord Wallace for his response. He is quite right that the intention was to take these two amendments together. On his point about the example that I gave of 1972, if Edward Heath had said, “This is a matter where the Government cannot sensibly continue”, but the Speaker had not certified it as a confidence motion and if he had lost and a good number of Conservative MPs were not prepared to vote for Dissolution—not necessarily to vote against it but not to vote for it, so that it would have been difficult to mobilise 400 votes out of 600, although there was a slightly different percentage at that time—then you get into a stalemate.

I am grateful for what he said, particularly because I did not hear any strong arguments against my amendments. The Minister queried the 28-day provision; as he says, there are sufficient differences with the devolved Assemblies. I accept that and would like to apply it to the rest of the Bill.

17:45

[Lord Wallace of Tankerness]

I am interested because I made this point in response to the comments by the noble and learned Lord, Lord Falconer. Will my noble friend accept that there is perhaps this issue? If there is a choice between immediate Dissolution and a resignation with the possibility of another Government being formed, who exercises that choice? In a Bill where we seek to take power away from the Prime Minister, should that choice lie with the Prime Minister or does my noble friend accept that we should look at ways in which what happened would not be the Prime Minister’s choice alone?

[Lord Norton of Louth]

I do not really accept the premise of my noble and learned friend’s question in that the Bill does not take away the Prime Minister’s power where the Government are defeated on a vote of confidence. The Government are trying to limit the Prime Minister’s prerogative to request Dissolution at the time of the Prime Minister’s choosing, rather than in the context of the Government losing a vote of confidence. The Bill does not actually limit the Prime Minister on losing a vote of confidence; as I say, it gives him a second bite of the cherry. That is what my amendments are really trying to get at. I accept the point made about 28 days or 14 days, which is a matter for discussion, but my point is that to avoid an ongoing stalemate you need some cut-off point. That was the argument of principle there.

My overall proposition is that the benefits of existing arrangements outweigh those in the Bill which, in the context of a vote of confidence, do not limit the Prime Minister. As I say, the Government are trying to limit the Prime Minister’s prerogative to foreshorten an election when it is in the gift of the Prime Minister, rather than when Parliament is in effect seeking to take it out of the hands of the Prime Minister through a vote of confidence. I am advancing the argument that the Bill gives Prime Ministers a second chance—more so than under existing arrangements. I am grateful for my noble and learned friend’s willingness to reflect upon what has been said from all parts of the Committee. In the light of that, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Amendments 36 to 40 not moved.

Amendment 41

Moved by

[Lord Falconer of Thoroton]

41: Clause 2, page 2, line 14, at end insert—
“( ) An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election.”

[Lord Falconer of Thoroton]

My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,

“collectively introduces the mechanisms by which people can exercise greater control over politicians”,

as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.

I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.

Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House of Commons, or in the Narvik-type situation. My amendment does not provide for the Narvik-type situation, although it should. I should be interested to hear what thought the Government have given to the extent to which, if you have a defeat in the House of Commons on a confidence issue, this promotes people’s belief that they can “exercise greater control” over their politicians if a new Government are formed from within the House of Commons rather than by being selected by the people. Does that not have precisely the opposite effect to that which the Deputy Prime Minister wanted? Have the Government given thought to the circumstances in which they would prefer there to be an election rather than a new Government being formed? Are they not worried that by building in 14 days in every case they are encouraging the confidence-sapping haggle? I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

[Lord Falconer of Thoroton]

I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,

“if no Government had obtained a vote of confidence since the last general election”,

would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.

[Lord Wallace of Tankerness]

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.

18:00

[Lord Wallace of Tankerness]

My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I welcome the thoughts of the noble and learned Lord but I invite him to withdraw his amendment in the light of my comments.

[Lord Falconer of Thoroton]

Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.

With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.

Amendment 41 withdrawn.

Amendment 42

Moved by

[Lord Howarth of Newport]

42: Clause 2, page 2, line 15, at end insert “and ought not be impeached or questioned in any court”

[Lord Howarth of Newport]

My Lords, after the words in Clause 2(3)—

“A certificate under this section is conclusive for all purposes”—

my Amendment 42 would add the words,

“and ought not to be impeached or questioned in any court”.

Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible way, be saying to the judges, “Do not consider advancing your tanks on to our lawn”. Therefore, my amendment seeks—amateurishly, I am sure—to reinforce the protection that Clause 2(3) already seeks to provide for parliamentary privilege.

I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said:

“My concern is with the way in which provisions of the Bill impinge upon Parliamentary privilege and which may bring the Courts and Parliament into conflict … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates”.

Then he said that the provisions of Clause 2(2),

“make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts”.

The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides:

“Although the provision in 2 (3), that the Speaker’s certificate is conclusive for all purposes, is meant to mitigate challenge or questioning in the courts, it cannot be a protection against the courts interpreting statute either in the UK or in Strasbourg ... embodying these internal proceedings in statute radically changes their status since, by reason of being embodied in statute law, they become questions which are ultimately to be determined by the judiciary rather than by members of the legislature”.

He continued by saying that history provides,

“no basis for concluding that the courts will keep out of this new statutory territory”.

He explained that the,

“possible areas of challenge are wide-ranging. For example, any interested party … could challenge whether a motion for dissolution had been correctly worded or processed, whether the decision had been correctly reached and recorded”.

He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth.

I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded:

“The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was,

“extremely unlikely that the court would entertain a challenge”,

but that,

“you can never be entirely sure what the courts will say when faced with very eloquent advocates with good arguments both ways”.

Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated,

“a huge discussion about justiciability”,

and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring.

Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued:

“It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised”.

He concluded by saying that,

“it may well be that the practical scope for the scope of Article 9 being affected by judicial enquiry into the validity of a certificate is small”,

but he thought that it ought to be taken into account.

David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence:

“The statutory escape mechanisms create a risk that the courts will intervene”.

He elaborated by saying:

“The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act”.

Again, he also said,

“The risk is admittedly small”.

I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past.

Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope, in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter.

I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn, said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.

The noble and learned Lord, Lord Hope of Craighead, said:

“But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”

The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues.

18:15

However, this is not a static scene and my fear is that appeals to traditional constitutionalism may over time fall on deaf judicial ears. The more we write new constitutional legislation and the more we encode the constitution, the more the judges will feel impelled to interpret. The more things are statutory, the less binding will be the conventions. The committee of your Lordships’ House that reported on the conventions governing the relations between the House of Commons and House of Lords—we all assented to its conclusions—was of the view that, as and when we have a statutorily created elected second Chamber, the traditional conventions will not apply as previously. It is something of a choice between laws and conventions.

Mr Harper, the Minister, was remarkably assured in the note that he deposited in the House of Commons Library in September. He said that,

“the Bill will not in any way open up parliamentary proceedings to the jurisdiction of the courts”.

He thought that the Clerk’s memorandum,

“contains a fundamental misunderstanding about the effect of the Bill”.

The suggestion that the Bill could bring parliamentary matters before the European Court of Justice and the European Court on Human Rights was, Mr Harper said, “wholly without foundation”. He continued in somewhat contemptuous terms that the Clerk,

“appears to confuse political controversy with legal risk”.

In his oral evidence to the Constitution Committee, Mr Harper was equally bullish. He said that the Speaker’s certificate was,

“a tried and trusted formulation … If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the Government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention …It would just mean that the Speaker would be making those conventions more explicit”.

He spoke of a certificate as a “mechanism”—his metaphor conveying a simple faith in the automaticity of its effect.

Dr Jack, the Clerk of the House of Commons, having considered all this evidence put to both Select Committees, provided further written evidence, which is given on pages 12 and 13 of the evidence section of the Select Committee report. He did not retreat. He continued to consider that,

“incorporating the provisions of Clause 2 in the Standing Orders of the House remains the safest course”.

He noted that the circumstances of Bradlaugh v Gossett in 1884 were different from the circumstances of today, for example, in respect of human rights. He was sceptical about the self-restraint of the courts and noted,

“the not infrequent need in recent years for interventions by the Speaker of the House of Commons to protect parliamentary privilege in the courts”.

The Clerk of the House of Commons also noted,

“the attitude of the European Court of Human Rights, which has heard cases that British courts would not consider on the grounds that they fell within the area of parliamentary jurisdiction”.

In one such case, two judges had expressed reservations about the lack of remedies against the exercise of parliamentary privilege in the United Kingdom system. Dr Jack suggested that Parliament might be wise at least to wait for the promised draft Parliamentary Privileges Bill.

Professor Bradley equally did not recant after he had read Dr Jack’s supplementary evidence. Whom should we believe? Should we believe the Minister or sundry distinguished academics? Should we rely on the assurance given by your Lordships’ Select Committee? I know that your Lordships will attach great weight to its conclusions. Or should we pay very considerable regard to what the Clerk said in his carefully considered and repeated warning?

This issue is massively important for Parliament and it matters very much that we get it right. I beg to move.

[Baroness Boothroyd]

My Lords, I regret that I was unable to be here for the Second Reading of the Bill but I say at the outset that I endorse the criticisms of it in many of the speeches made in that remarkable debate, which showed this House at its very best.

I wish to focus my remarks on the change to the role of the Speaker of the Commons under the Government’s provisions, which has not been touched on in any great detail until the amendment that has just been moved this evening. As the provisions stand, they extend the Speaker’s authority in a way that affects much more than his position as a presiding officer. They give him the statutory power to trigger a general election in critical situations, the intensity of which the Government too lightly glosses over. It is left to the Speaker to decide what constitutes a motion of no confidence in the Government.

The legislation brushes aside the reasoned warnings by the Clerk of the Commons of the possible legal dangers of the sweeping changes that are being proposed. As it stands at the moment, it will not do. We all know that it is our duty to make this legislation fit for purpose if it is to command confidence and withstand the test of time. We all know that Parliament has suffered too many self-inflicted wounds to its reputation in recent years to accept a half-baked Bill to enable the coalition to remain in power until May 2015. Parliament is still in the convalescent stage after the trauma of the expenses scandal. We cannot afford a botched attempt to change the way that Governments can be forced from office when they lose the confidence of the House of Commons.

The evidence of the Minister for Political and Constitutional Reform to your Lordships’ Select Committee on the Constitution is an example of the Government’s wishful thinking on how the Speaker is supposed to fulfil his responsibilities in this brave new world of fixed-term Parliaments. The noble Lord, Lord Norton of Louth, to whose expertise I pay tribute, put it to the Minister, Mr Mark Harper, that the Speaker would be in some difficulty if he had to decide what was, and what was not, a vote of no confidence on the basis of his own interpretation. The Minister replied that the Speaker should make his position clear before the debate and before the vote. He said that,

“everyone would be clear about what was going to happen as a result of it”.

He went on:

“In practice, I do not think that that would be a serious problem”.

I must disabuse the Minister, Mr Harper. The Speaker’s role as the sole adjudicator of whether the Government are in danger of losing their life would quickly become a very serious political problem for him and Parliament. Whatever he decided on his own responsibility would lead to ceaseless points of order and unruly outrage in the Chamber. When contentious issues were debated, he would come under intense pressure from all sides—as I know from personal experience. The Speaker’s authority would be as much at stake as the Government’s. In such a situation, a Speaker who lost control would have to decide instantly whether to name Members who defied his ruling, risk losing the vote to enforce their suspension and, thereby, lose his own authority or suspend the House in the hope of resuming the contentious business after taking soundings from all sides.

I dealt with sporadic outbreaks of unruly behaviour and know the heat that they can generate when Government, Opposition and individuals blame each other. The noble Lord, Lord Howarth, commented that this could happen in the Commons. Misconduct in the Division Lobbies reached such a pitch in the 1992-93 Session that Ministers complained of a constitutional outrage. Without amendments, disturbances likely to arise from thrusting the Speaker into the political cockpit in the way that is proposed in the legislation would undoubtedly be at the top of the Richter scale and would not move far from the courts.

The Commons Speaker has very few formal powers other than those embedded in convention, enshrined in standing orders or specified by legislation relating to the certification of money Bills and the operation of the Parliament Act. No Speaker with the best interests of Parliament at heart would accept any extension of his authority likely to jeopardise his independence and impair his responsibilities to defend the rights and reputation of Parliament against all comers. The great Speaker Lenthall—whose portrait is out there—immortalised the golden rule against which Clause 2 should be judged:

“I have neither eye to see, nor tongue to speak here, but as the House is pleased to direct me”.

Speaking on Second Reading, the noble and learned Lord, Lord Wallace, said,

“there is a lot of meat for the House to get its teeth into”.—[Official Report, 1/3/11; col. 1048.]

We all say hear, hear to that. His acceptance of the importance of the scrutiny that we are applying to this Bill in its remaining stages is welcome. However, the noble and learned Lord doubted the need for a specific definition of a no-confidence motion on the grounds that,

“one recognises an elephant when one sees it”.—[Official Report, 1/3/11; col. 1046.]

Fortunately, we do not inhabit a zoo—although many of our critics may think otherwise. Accepting the elephantine analogy, the Speaker, if these amendments were not accepted, would have to decide whether a motion of confidence or no confidence is akin to a charging elephant that can scatter a Government or a placid animal—the sort that carries children on its back. In either case, I do not believe that it is a fit and proper question for the Speaker. Other amendments will come later this evening that underline and give this area much more strength.

To be frank, I am very sceptical about the need for legislation at all, but we must make sense of what we can and send this package back to the Commons in better shape. The Government’s response so far has been to insist on the authority of the Speaker’s certificate to validate a vote of no confidence and empower a new Government or trigger an immediate general election. Clearly, the Speaker’s certificate is seen as the trump card against any challenge or interference by the courts. The Minister, Mr Mark Harper, wrote a dismissive note about the warnings of Dr Malcolm Jack, the Clerk of the Commons, about the possibility of such a challenge in the courts. The Minister wrote:

“The Government sees no reason why the courts would not continue to defer to”,

the normal rules and principles that protect internal parliamentary proceedings from the scrutiny of the courts. I beg to differ. The Minister referred to the Speaker’s certificate as a further defensive weapon against interference by the courts. His note quotes from Article 9 of the Bill of Rights and added:

“This position is reinforced by the role which the Bill gives to the Speaker in certifying whether certain events have occurred. In other words, these are matters to be decided by the presiding officer of the House of Commons and not the courts”.

I know feelings run extremely high in Parliament when contentious issues are debated. Normally rational people do uncharacteristic things. Imagine what would happen if some judges seized on accusations of obstruction in the Division Lobbies and other improper behaviour that could be said to have prevented a fair and orderly vote on an issue of no confidence in a Government. This was mentioned earlier by the mover of this amendment, the noble Lord, Lord Howarth. It seems that the judiciary is stronger and Parliament somewhat weaker than it was when I entered the Commons 37 years ago.

Contrary to the Government’s claim, the European court is not indifferent to the way Britain runs its constitutional affairs. As Speaker in 1999, I ruled that Sinn Fein could not take their seats without taking the oath of allegiance. Sinn Fein claimed that I had infringed their rights under the European Convention on Human Rights and took my ruling to the European Court. Sinn Fein lost the case, but its appeal was not dismissed out of hand as being none of the court’s business, which the Government would have us believe is the automatic response. The court’s seven judges published a lengthy judgment that stated that the protection of effective democracy,

“must equally extend to the protection of the constitutional principles which underpin a democracy”.

The court’s judgment in my favour aroused little interest. I have been in public life long enough to know that a British win is a non-story; the British media will not report it. However, this demonstrated beyond any doubt the court’s willingness to examine the case. This is the most important point I need to make. The Minister, Mr Harper, would have us believe that this could not happen, but he is wrong.

18:30

I have two observations to make. If, according to the Minister, the inviolability of Commons proceedings is already assured by the Bill of Rights, why does it need the further protection that he thinks is advisable? As I have argued, if the Speaker cannot be exposed to the invidious position that the Minister, Mr Harper, wishes to put him in, where does that leave Clause 2? I believe that we have no option but to scrap it and to accept amendments that are precise and do not leave us open to court proceedings.

Dr Jack’s doubts about the Government’s belief that parliamentary proceedings are entirely off-limits to the courts reinforces my suspicions. He underlined the importance of subsection (3), which states that the Speaker’s certificate under Clause 2 is “conclusive for all purposes”. The layman may think that means that a Speaker’s certificate cannot be challenged on any grounds whatever, but it can, as Dr Jack makes clear. The words are a legal formula that obliges the Speaker to observe the exact procedures set out in Clause 2. If he does not, for whatever reason, the piece of paper he signs may be invalid and Parliament could find itself in a tussle it might well lose in the courts. Dr Jack warned that our Supreme Court has,

“not yet got its teeth into this kind of thing”,

but it might. We are on notice by the Clerk of the Commons, whose advice on this subject I tend to rate more highly than that of the Minister, Mr Harper, that if a constitutional matter were ever to reach the courts,

“the process would be in their jurisdiction and not in ours”.

That is a situation in which I do not wish to find Parliament.

[Lord Martin of Springburn]

I have heard the Minister say on earlier amendments that if they were withdrawn, he would take them back and give serious consideration to the views that had been expressed. The amendments tabled by the noble Lord, Lord Howarth, are similar. Perhaps they can be taken back and considered seriously, considering what my noble friend Lady Boothroyd said and what I am about to say. I hope I can give some advice to this House.

This is not about Dr Jack the individual; it is about the Clerk of the House of Commons. I have experience of previous Clerks: Sir William McKay and Sir Roger Sands. They are all people of the highest calibre. I can give the House an insight into what would happen before the Clerk of the House delivered this advice. He would not just pluck these words out and put them on paper for anyone to consider; he would take soundings from constitutional experts, get someone to be devil’s advocate and put the contrary point of view, and Speaker’s Counsel would listen to the arguments. These people would give their point of view. Therefore, the words of Dr Jack would be the collective point of view of the constitutional experts we have in the House of Commons. The amendment is the property of this House, but I think it would be good idea for the Minister to take back what has been said tonight.

There is a tendency for courts to—I do not think the right word is interfere—look at matters which they would not have looked at 30 or 40 years ago. I am glad that the Court of Human Rights is there, but many Members who were disciplined in the other place said that they would like to take their case to the Court of Human Rights. Some officers of the House, while they did not encourage them or give any view, privately said that if their case went to the Court of Human Rights, with people’s civil liberties as they are at the moment, they might have won it because of the way in which our standards commissioner conducts his affairs without representation, with hearsay evidence and with people making accusations without substantiation. Although this has not been tested, some of the disciplinary measures that were taken in the other place could well have been taken to the Court of Human Rights, and who knows what would have happened?

Pressure is put on Speakers behind the scenes. I worry about the certificate. I recall a situation—forgive me, there might be some military Members in the Chamber—in which a battalion of Royal Marines was to be moved to Afghanistan in the early days of the Afghanistan problem. The Opposition tabled a Motion to put aside the business of the day to allow that matter to be debated. I felt that the Opposition had a case, and I allowed the Motion to be debated, as was the Speaker’s right. Behind the scenes, a government Whip came in—it was always a Whip who came in with the nasty news—and said, “You had no right to do that. You shouldn’t have done that”. This is the pressure that is put on Speakers. I said, “Excuse me a minute. Why shouldn’t I have done that?”. “Because those Marines weren’t going into combat”. The point I made was that if you are moving 500 highly trained members of an elite organisation into an area where they would come to no harm, they should not have been put there. They should have been back on leave in Catterick, Plymouth or wherever they were based. This was the type of abuse—complaining, if I can put it that way—that you got behind the scenes after the event. Before the event was even worse. So what is it going to be like when there is a vote of no confidence and it is down to the Speaker to decide whether a Government have to go to the country? There will be pressure from every side.

We talked about things changing with regard to the courts. Things have changed with regard to the pressure on Speakers. We have spoken about Ted Heath, his Government and how he had to go to the country. I had the honour of having Ted Heath come up as a friend to Speaker’s House to have a private chat with my wife Mary and me. I remember him telling me stories of when he was a Chief Whip. In passing, I asked him how often he came to see the Speaker, because at that time I had to see the government Chief Whip, the opposition Chief Whip and the Liberal Chief Whip on a weekly basis. He said, “I never bothered the Speaker. The Speaker was too busy to bother with the Chief Whip”. Since that time, things have changed, and terrible pressure is put on the Speaker, so I say with the best possible intentions that this is one of those amendments that get an airing in Committee and then the Minister takes the matter back and looks at it.

[The Earl of Onslow]

I was never Speaker but I am descended from three Speakers. I have never heard of a more awful choice having to be made. If the courts are allowed to interfere, that will have a catastrophic effect on the role of the Speaker. If they are not allowed to interfere, it will have a catastrophic role on the role of the Speaker. I cannot think of anything worse than that. I do not know whether to vote enthusiastically for the amendment or to vote enthusiastically against it. Whatever we do on this amendment will be nothing short of catastrophic.

[Lord Williamson of Horton]

My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and Lord Martin have fully covered the key elements about the defence of Parliament, which is a vital element underlying this amendment, in my view.

Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.

[Lord Forsyth of Drumlean]

My Lords, the speeches that we have heard from the former Speakers speak very eloquently for themselves. I congratulate the noble Lord, Lord Howarth, on his amendment. I do not know whether it deals with the issue but two points strike me. Like the noble Baroness, Lady Boothroyd, I could not be here at Second Reading. One thing that concerns me enormously is that the advice of the Clerk of the House can be brushed aside in what, quite frankly, is an almost arrogant way.

Our institutions are very important, although things might have changed. I never really had a reputation in the other place as someone who was easily cowed or very respectful but I respected the Clerk of the House, the institution of the House and the Speaker’s office. For a variety of reasons, the House and the Speaker’s office have come under considerable attack, which is a great source of anxiety. In responding to this amendment, I hope that my noble friend will give us some assurance that he will look at this again because these are very serious considerations. Ministers might believe that the risk is limited but I am with the Clerk of the House and I would not take any risks with this institution. It is a very precious baby and it seems to me quite extraordinary that we have reached this pass.

18:45

The noble Lord, Lord Martin, referred to his conversations with Ted Heath about when Ted Heath was Chief Whip. In 1983, when I went to the House of Commons, my Whip was my noble friend Lord Lang. He said to me, “I am your Whip”. I said, “What does the Whip do?”. He said, “I will give you advice from time to time as to how I would like you to vote. If for any reason you feel unable to take that advice, I would be very obliged if you could just tell me in advance”. It was very polite and respectful. There is a tendency now for executives—I think the previous Government set a particular standard in this—to push through legislation without giving due consideration to perhaps well considered institutional advice.

I do not know whether this amendment will work in the way that the noble Lord, Lord Howarth, suggests, but I certainly think that this issue should be addressed. I can think of nothing worse, as the noble Lord, Lord Williamson, has said, than the courts becoming involved in whether we should have a general election. That would be a car crash of enormous implications, which is easily avoided by not making a change, particularly in the face of advice from the Clerk of the House, whose job it is to put up warning signs. I can only imagine that for the Clerk to do this, and to maintain his position, a great deal of courage is required of the kind about which the noble Lord, Lord Martin, spoke. He would not do this if he did not think that there was a real danger. It is a risk that we should not be taking.

[Lord Cormack]

My Lords, I very much agree with what has been said so far. We will have an opportunity later to debate this clause in its entirety, and I believe that it should be replaced by something that is much more carefully and thoughtfully drawn up. To bring the Speaker into this position would be a cardinal political sin, in my view. We have heard from two former Speakers, who were clear in their advice to this House. In doing so, they were able to speak from the experience of working with the Clerk of the House that none of us can rival, and nor can any Minister in the Government.

While the Minister in charge of this Bill in another place is an extremely able and industrious young Minister, who I am sure has a glittering future ahead of him, he is not the world’s greatest constitutional expert. This Bill is deficient in many respects. It has many aspects, some of which I will touch on later, that should give any constitutional expert real cause for alarm. However, if there is one thing above anything else that is devastating in its implications, it is the politicisation of the role of Speaker. The noble Lord, Lord Howarth, has done the House a signal service in drawing specific attention to this. The House has been singularly fortunate too to be able to hear from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, who were able to speak from very real experience. I beg the House—although of course we will not vote on this tonight—to stand firm. I very much hope that the Minister’s response will indicate that we will not need to proceed into the Content and Not Content Lobbies on this one, but if we do we should send a real signal to the other place that this is something up with which we will not put.

[Lord Marks of Henley-on-Thames]

My Lords, I rise with some diffidence in view of the speeches from the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin, and others that we have heard. First, I think we all believe that the notion that the courts should be able to interfere with the Speaker’s certificate when this Bill is enacted, if it is enacted in its present form or in something similar to it, is one that we would abhor. No one is suggesting that that is a desirable or acceptable outcome in any way.

In moving his amendment, the noble Lord, Lord Howarth, discussed the evidence before the Constitution Committee in some detail. I do not propose to rehearse that evidence. However, I would point out that Professor Bradley, an old friend with whom I would be hesitant to disagree, expressed the conclusion that the judiciary would surely accept that this was an area for political judgment which the courts were not qualified to make. That was the conclusion of your Lordships’ Constitution Committee.

This is not simply a matter of the evidence of Mr Harper, which has been dismissed in quite strong terms by others who have spoken. In the light of the careful note of the Clerk of the House of Commons, the Constitution Committee spent a great deal of time analysing all the evidence on this point. The conclusion to which it came was that the risk of judicial interference was very small. It went further in concluding that it was so small that it was not sufficient to warrant the rejection of Clause 2. The assessment of what risk might or might not be acceptable is a difficult area. I align myself with the view expressed by the majority of the legal evidence to the effect that the chances of interference by the courts would be so small as to be insignificant.

That is not to say that we can ever stop anyone bringing a misguided application. However, as Professor Bradley also pointed out, misguided applications can be dealt with quickly and given short shrift. That is what I believe and would expect to happen. The result is that in theory an initial challenge could be brought to the Speaker’s certificate. However, it is the judgment of the Constitution Committee, which I invite your Lordships’ House to accept as well founded, that that challenge would not lead anywhere—a judgment that was made in the face of, and on consideration of, the evidence of the Clerk of the House of Commons, to which a great deal of respect was given.

[Lord Forsyth of Drumlean]

My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?

[Lord Marks of Henley-on-Thames]

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

[Lord Falconer of Thoroton]

My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.

It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:

“A certificate under this section is conclusive for all purposes”.

As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.

Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote of no confidence, but I have decided that it is not. Therefore, even if the vote is defeated in the House of Commons, there will be no resignation of the Prime Minister and there will be no general election”. I leave it to the House to seek the views of the two ex-Speakers as to what effect on Parliament that would have.

I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:

“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.

Mr Harper replied:

“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .

19:00

That was Mr Mark Harper, the Minister of State—

[Lord Bach]

Parliamentary Secretary.

[Lord Falconer of Thoroton]

I make it clear that my error is in no way intended to undermine him. He is the Parliamentary Secretary responsible for political and constitutional reform. It is his view that the Government appear to take in relation to these issues. It is a matter for this House as to whether it is guided more by the views of the two ex-Speakers or by the evidence of Mr Mark Harper. Speaking entirely for myself and having heard the two ex-Speakers, I found the evidence of Mr Harper wholly unconvincing. It suggests to me that not enough thought has been given to this provision.

[Lord Martin of Springburn]

Mr Harper perhaps overlooks the fact that any Speaker always has at his or her side the Clerk of the House and takes their advice. I grant that it is advice and that, at the end of the day, it is the Speaker who has to make the decision. However, the Clerk of the House is always there. Here we have a situation where the Clerk of the House has taken the very serious step of giving written evidence that he is deeply concerned about this matter.

[Lord Falconer of Thoroton]

I completely understand what the noble Lord, Lord Martin of Springburn, is saying. My own view is that the courts would try to avoid getting involved, but the consequence of their not doing so is that the Speaker of the House of Commons—who, though I have never been a Member of the House of Commons, I understand should be above the party fray—would ultimately decide whether there would be a general election. Let us imagine the level of emotion that there might be in the House of Commons at that point. Is this not another illustration of the grave error in trying to prescribe in a Bill the working of a process that has previously worked by convention? I am very glad to see the noble and learned Lord, Lord Howe of Aberavon, in his place. He has always said that constitutional conventions may be better in certain circumstances. My view in relation to this part of the Bill is that the more we talk about it and the more we try to provide artificial certainty or precision—treating it as if it were a statute where you could see whether you have registered your home properly or whether certain ticks are in the boxes—the more it becomes a wholly inappropriate way to deal with the issue of whether Parliament should be dissolved and there should be a general election.

The more we debate it, the more the best solution feels like a provision that simply says that where there is a vote of no confidence there may be a general election. I do not think that my noble friend Lord Howarth would say that his amendment gives 100 per cent protection from the court; it certainly does not give the Speaker any protection from getting involved in the fray, which is so significant to their independence. I anticipate that my noble friend will say that he has put down the amendment simply in order to test the proposition. I would urge the noble and learned Lord to go back to the drawing board and see how he can construct a provision that is intended not to be a tick-box provision but instead to be a much broader constitutional provision. That will make it clear that the courts are not to be involved. Equally, it will not draw the Speaker into a political fray that could be fatal to their standing either in the House of Commons or, more damagingly, with the public at large. This is another indication that the Bill requires a lot more thought.

[The Earl of Onslow]

Has not the noble and learned Lord, Lord Falconer, actually made a speech suggesting that we should use some of the remaining powers left to us under the Parliament Act to sling this rotten Bill right out hook, line and sinker?

[Lord Falconer of Thoroton]

Do not tempt us.

[The Earl of Onslow]

I may be tempted to tempt.

[Lord Falconer of Thoroton]

The noble Earl is right to identify that the Bill is not covered by the Parliament Act. The more we debate it, the more it seems an appalling mess. If major surgery is not applied to it, a point may be reached where the House might think, very unusually, that it messed up the constitution to such an extent that it should contemplate not giving it a Third Reading. I am sure that a Minister such as the noble and learned Lord, Lord Wallace of Tankerness, will persuade the Government to apply major surgery to the Bill.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.

A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.

The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.

With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to include those words to achieve the aim, as the words have their own significant pedigree. They were based on the Parliament Act 1911, where Speaker’s certificates are equally conclusive for all purposes. It follows the language used in the House of Lords Act 1999, under which the certificate of the Clerk of the Parliaments is conclusive. The effect of those words in the Bill and those Acts is to make clear that parliamentary privilege applies to the matters being certified. Accordingly, we do not believe it necessary to make further provision along the lines suggested. As ever, making further provision may cast doubt on earlier enactments which do not include those words. I do not think that any of us want to go there.

The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.

I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,

“the weight of the evidence we received being against the view that a Speaker’s certificate would be justiciable … The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

[Lord Forsyth of Drumlean]

I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?

[Lord Wallace of Tankerness]

It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no confidence and that 14 days have elapsed without any vote of confidence in a new Government having been passed.

There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.

19:15

[Lord Forsyth of Drumlean]

Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?

[Lord Wallace of Tankerness]

I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for having an election not on the date which would otherwise be the case have been met.

[The Earl of Onslow]

Can the noble and learned Lord give me any precedent where a specific motion of no confidence in the Government has been passed, followed two, three or four days by another motion saying, “Actually, we made a boo-boo and we do have confidence in the Government”? I cannot think of one in the 19th century, or, probably, in the 18th century; and certainly not in this century. Or am I being stupid, like my noble friend Lord Forsyth?

[Lord Wallace of Tankerness]

I would never say that my noble friend is being stupid; I take the blame myself for perhaps not explaining this clearly. It may not necessarily be the same Government. More often than not, it will be as happened in 1924, when there was a motion of no confidence, or the Government of the day lost on the Queen's speech, and a new Government came in that carried the confidence of the House. That was a circumstance where a new Government was in place with the confidence of the House. Therefore, there are circumstances in which it could happen.

[Lord Tyler]

We should look at the precedent for such certification, which is surely the Parliament Acts. Equally, that is a factual situation, but certification is to put it beyond the shadow of doubt that a certain process has taken place within a particular timeframe. That will then be, one would hope, conclusive. Presumably that is the purpose of the provision.

[Lord Wallace of Tankerness]

It is for the purpose of making it legally certain that the circumstances have been met, that the conditions have been fulfilled, under which an early election could be called and that the next election should not be on the date on which it would otherwise be under the Bill. That is the purpose. If it is of a factual nature, that should not cause any problem or place pressure on the Speaker. I acknowledge that where the Speaker has to decide whether a matter is a vote of no confidence or not, other factors come into play, and we have certainly listened to what has been said.

[Lord Martin of Springburn]

I thank the Minister for being patient with me. The noble Lord, Lord Marks, was kind enough to say that proceedings shall not be challenged. It is important that the Minister goes away to consider this and perhaps consults the noble Baroness, Lady Boothroyd, and myself on our experience. I am talking from memory, but the signing of a certificate is not necessarily regarded by the courts as a proceeding of Parliament. Decisions are proceedings of Parliament, but the signing of a certificate by the Speaker is different and is not necessarily regarded as a proceeding of Parliament. I throw that one in, and it is important that the Minister goes away to think about this.

[Lord Wallace of Tankerness]

My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.

Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.

The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.

In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of Parliament leading to the Hunting Act being passed had been complied with. The House of Lords in its judicial capacity did not look behind the Speaker’s certificate and did not question the internal proceedings of Parliament. It indicated that it would not and could not look at the internal proceedings adopted in Parliament in enacting the Hunting Act 2004.

The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.

I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.

Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care.

Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government stop in their tracks. She spoke about the unsuitable extension of the Speaker’s role and, in particular, the requirement of certification. We will have an opportunity to discuss that matter later this evening when we debate Amendment 50, in the name of the noble Lord, Lord Cormack, and my amendment to that, Amendment 51, which would delete the subsections that require Speaker’s certification—precisely because I share the noble Baroness’s view that this is a dangerous innovation.

The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled.

The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation?

We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has “not yet got its teeth into these matters”. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so.

Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave.

19:30

The noble Earl, Lord Onslow, the descendant of three Speakers, spoke with deep feeling and concern about these matters, tempting us to contemplate using the powers that remain to this House under the Parliament Act. We will all be immensely cautious about that, but he underlined the seriousness of the matter at issue. The noble Lord, Lord Williamson, in speaking of the defence of Parliament, reminded us also that there are implications for the privilege of this House as well as for the House of Commons if the courts are unable to advance further into questioning of proceedings in Parliament. The noble Lord, Lord Marks, sought to reassure us but he, too, allowed that there is a difficult judgment to be made here.

What risk ought we to take, if any? I suggest that we should err on the side of great caution and continue to consider whether it may be possible to frame an amendment to increase the protection that the Bill genuinely seeks to provide for parliamentary privilege. I am the first to accept that, as I said in my opening remarks, my amateurish amendment may not achieve the purpose. Can that objective be better achieved by those who are far more competent than me in the drafting of legislation? We need to meet the concerns that have been put forward by the Clerk of the House of Commons. He is intensely concerned that the formulation that the Government have provided in the Bill is not sufficient to protect parliamentary privilege.

We are left with that very serious warning and all sorts of practical problems. I acknowledge that the Government will face these if the device of the certificate is found to be wanting in the sense that it makes proceedings in Parliament vulnerable to questioning in the courts in a way that Parliament has never previously permitted, the courts have never previously wanted and we all seek to avert. The Clerk’s advice is that we do not have that protection. The Clerk considers, contrary to what the Minister said, that human rights issues could arise in the circumstances, which it would be the duty of the Speaker to certificate. They would therefore, in principle, be justiciable in the European Court of Human Rights.

Against the background of all these considerations in this important debate, I do not seek to press my amendment. However, I hope that Ministers will reflect very carefully on this hugely important issue, to which we will return on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

House resumed. Committee to begin again not before 8.34 pm.

Agriculture: Regulation

Tuesday 29th March 2011 Lords Chamber

Question for Short Debate

19:34

Asked By

[Baroness Byford]

To ask Her Majesty’s Government what steps they are taking to reduce regulatory burdens on British agriculture.

[Baroness Byford]

My Lords, the creation of Richard Macdonald’s task force on the reduction of regulation is most welcome. Its report is due shortly, so I know the Minister will be limited in his ability to respond to our individual comments. However, I still consider that a debate of this nature will be valuable. I look forward to hearing from noble Lords and thank them for their participation in this short debate. I should remind the House of my family’s farming interests and my membership and support of farming organisations and charities. I also record my thanks to the NFU, the CLA, the National Pig Association and the CPRE, all of which sent me briefing papers in advance of this debate.

My main concern is with regulations that affect agriculture, but I should point out that we all suffer from the increase in regulation and the resulting bureaucracy that was the hallmark of the previous Government. Only last Thursday, the noble Viscount, Lord Trenchard, stated that,

“the previous Government produced more than 1 million … mainly unproductive jobs in the public sector”.—[Official Report, 24/3/11; col. 881.]

These post holders implement regulations, process an ever increasing tide of forms, and analyse the questionnaires. We have to fill in those forms and questionnaires, and often waste our time at the end of the telephone because government departments do not appear to read or answer our letters. Speak to any small or medium-sized business and they will tell you of the excessive time given to keeping up with the ever increasing bureaucracy. In a recent NFU farmer confidence survey, farmers cited regulation as the issue of most concern to their businesses.

Farmers suffer just as we do, but are also subject to regulation specific to them and to time constraints that do not affect many of us when we have to respond. Weather is all important. Getting the hay in at certain times is critical, just when regulations say that the registration of the birth of livestock is required. Delay in providing such required information usually results in penalties that are excessive by any standards. The NFU Pro magazine last April noted that failure to supply a specific food chain information form prior to the slaughter of any animal may result in the carcass being condemned as unfit for human consumption. There are aspects of livestock control that are important. They should be regulated and the regulations strictly enforced. Other factors should be subject to guidelines, backed up by punishment of those who deliberately flout them. However, why should a farmer who has a number of fields dotted around a village have to fill in forms—movement records—for transferring his sheep from one of those fields to another? Can the Minister tell us whether these existing rules are likely to be reviewed?

Another aspect of regulation that fills me with despair is the lack of computerised information-sharing between Defra and other agencies, resulting in yet more unnecessary form-filling. For instance, in June farmers will be required to complete the census, even though three-quarters of the information is already held on their SFP application forms. This brings to mind the constant barrage of complaints from the farming community about faulty computer systems. The best known culprit is surely the Rural Payments Agency’s single farm payment system. My right honourable friend the Minister, Jim Paice, has recently acknowledged that the thing is so faulty that even he cannot make it work within the timetable he had set himself. His statement on 4 March acknowledged that there had been 140 fixes to that computer system. Many farmers are still awaiting their single farm payments, not just for this year but for previous years, and the Farm Crisis Network is overburdened with requests for help. The net effect on our farmers has been little short of disastrous. Talk to the Farm Crisis Network about the despair that it has to deal with. Look at the statistics on these disadvantaged people and on suicides within agriculture.

The original choice of how to interpret the European edict was always going to make implementation difficult, but Germany—the only other country to make the same choice—has managed it successfully. I wonder what lessons can be learnt there. Our systems, on the other hand, have cost the taxpayer billions of pounds in administration alone. On top of that, financial penalties have been levied by Europe for our failure to pay within the required timeframes. British farmers are let down by regulation in other ways, as well as through the RPA. The EU promulgates its directives and member Governments translate them into national legislation. The UK has been in the habit of ensuring that every agricultural and environmental directive is fully incorporated, by letter and in spirit, and gold-plated. Other Governments have not been so fastidious.

Our farmers, for instance, have to comply with a number of welfare standards introduced following European legislation that has not been enforced by other European countries. Many shoppers in the UK know full well that our pigs and poultry are produced in more humane circumstances than in our continental neighbours. Many retailers in the UK are, however, happy to purchase cheaper European products, slaughter and process them, pack them and label them—fully in compliance with existing regulations—as produced in the UK. This is not fair. It matters very much, as farmers who produce food compete in a global market. When someone undercuts their required price, they either accept less and take a loss or fail to make the sale—and take a loss. Good regulation would not allow this to happen, and I hope the Minister will be able to tell us when the grocery ombudsman will be introduced. This appointment is urgently needed.

Labelling is key to giving the consumer the right information on which they make their purchases. At a minimum, country of origin should be clearly stated on each product, along with assurance scheme logos. It is surely not right that Thai chicken comes from farms that have not been inspected by the EU for years. Beef comes from countries where FMD is endemic, but we may not inspect it before we accept it. The WTO will not allow us to exclude from our trading agreements livestock, or livestock products, produced under poor or non-existent welfare standards. There has to be a wholesale change in our culture. Instead of multiple regulations contained in multiple instruments of turgid prose, laying out the musts and the must-nots for our farmers, there should be guidelines in simple English. Instead of multiple on-farm and in-abattoir inspections for all, there should be a regime of spot checks and proportionate punishment for wrong-doing.

Richard Macdonald’s task force will identify ways to reduce the regulatory burden through the review of the relevant regulations and their implementation, as well as advise how best to achieve a risk-based system of regulation in the future. I hope that it will also consider achieving improvements to farm systems through the use of voluntary agreements. The Campaign for the Farmed Environment is just such a step. I hope that farmers will respond positively, or we may be faced with introducing yet another regulation.

We need a sea change in attitude between farmers and Government. We need to develop a culture of trust: trust of our farmers by officialdom and trust of Government by the agriculture sector. Regulation must be reduced. Regulation should be proportionate and reviewed regularly. Inspection must be reduced for those farmers involved in assurance schemes—they have surely earned their recognition. A clear labelling scheme should be introduced and trust restored.

If we are to meet the challenges of feeding the growing population, we must free up businesses from overregulation and allow them to innovate. I hope that the task force review will herald a new era of working together for the benefit of all.

19:44

[Lord Grantchester]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Byford, and to welcome her return to your Lordships’ House following her recent illness. We have missed her contributions, and once again she has demonstrated her acumen by securing this important debate tonight, as also illustrated by the number of speakers it has attracted.

Reducing the regulatory burden on agriculture has been a challenge to all Administrations and each has initiated programmes to tackle the problem. It was unfortunately inaccurate of her, in her opening remarks, to try to single out the previous Administration in this respect. The impact on agriculture cannot be overstated. The noble Baroness referred to the recent NFU farmer confidence survey, where regulation was cited, at 64 per cent, as the highest negative impact on business. Anecdotally, one of my neighbours cited it as the reason behind his decision to quit farming.

I declare my interest as a dairy farmer in Cheshire. One part of my business was the import and export of cattle, which was brought to an end over the winter of 1995-96, and finally on 20 March 1996, by the announcement from Stephen Dorrell, Secretary of State for Health in the other place at the time. The effect and cost of that announcement was immeasurable. This present Government’s recognition of the problem was immediate, and demonstrated by the establishment of the Task Force on Farming Regulation, led by Richard Macdonald. It is due to report this summer. For the farming community, nothing short of a fundamental reanalysis is demanded. This must start with the analysis of the scope of each EU directive, policy initiative and UK programme objective. In this review, the influence that can be brought to bear by the supply chain, and especially the retailers, must be harnessed. I refer here to the various sector assurance schemes, freedom food initiatives and other marketing ploys that are demanded of agriculture. Mention should also be made of the proposed supermarket ombudsman.

Both government and industry should turn the telescope round and look at the regulation from agriculture’s point of view—the compliance costs, the information that has to be researched and retained, the added load on the business agenda and the incentives and benefits to be derived. Agriculture needs to be able to identity the relevance of the activity to operational improvements, business development and value added. Tackling regulation is often to tackle the symptom, when we really need to tackle the cause. Cutting red tape by introducing a one-in one-out rule is a case in point. Rather, I ask the Minister whether there should be a sunset clause imposed on each regulation, so that the need and relevance of each is systematically reviewed—I suggest five years as a suitable length.

The Conservative-led Government define their objectives in terms of cutting the deficit. I suggest to the noble Lord that nothing less than the effort that is put into that is demanded from agriculture to cut red tape. Has the noble Lord’s department interpreted activities in relation to deficit reduction by focusing on the costs of implementing regulations to government, of complying with regulation to industry and interpreting regulation to consumers? I very much look forward to the task force review and whether it can rise to the challenge of remapping the landscape.

[Lord Taylor of Holbeach]

I apologise to the noble Lord but we are under a lot of pressure for time. Three minutes is the limit, and we are now well in to the third minute.

[Lord Grantchester]

I have finished.

19:48

[Lord Cameron of Dillington]

My Lords, I also declare an interest as a farmer. In my allotted three minutes, I have two points to make. First, there is no doubt that regulation has helped UK consumers to develop greater confidence in the quality of their agricultural products and the way that we, as farmers, produce them. Taken individually, most regulations and audits have the sensible purpose of protecting the environment and reassuring the public, who are our customers. It is right that nothing should be taken for granted.

However, my second point is: why does there need to be so much duplication? Just to give some examples: a neighbour of mine starts a chicken business and he has to pay someone to help him get through the Environment Agency’s integrated pollution prevention and control clearance. Nowadays, you have to employ a professional who knows how to prove you are doing the right thing—doing it yourself simply will not work. Anyway, no sooner has my neighbour got the all clear from the Environment Agency than he has to pay for an environmental impact assessment for the planning authority, which asks all the same questions. One has to wonder why the planning authority will not accept the IPPC—which it would not—and why the form is not the same. There must be ways of consolidating them into one.

On our farm—and I used it as an example, because I do not think we are atypical—we also have numerous inspections and audits. We have comprehensive audits from our buyers such as Waitrose and Tesco. We have local council hygiene standards checks, national dairy scheme checks, combinable crops assurance scheme checks, Freedom Food checks, health and safety checks, HOPS and Cedex checks for our student employment, assured produce checks, Environment Agency checks on both our abstractions and discharges, and of course the Soil Association checks on almost everything. They are all probably justifiable in their own way but put together they are a complete waste of everyone’s time.

In an ideal world there would be one inspector who came on to my farm and really got to know how we work and went through everything everybody wanted to know or to test on the farm. He or she would be under contract to all the government bodies, all the associations and all the supermarkets to impose whatever standards they required on whatever farm. Even if the process took two days on each farm, and involved subsequent random checks, it would be a considerable saving in man-hours all round.

I feel sure my approach is simplistic, but I do hope that Richard Macdonald’s working party will come up with something along these lines.

19:50

[Lord Plumb]

My Lords, we all await the result of the Task Force on Farming Regulation led by Richard Macdonald, but I congratulate my noble friend Lady Byford on securing this time for a preliminary debate. As she said, every sector of society suffers from excessive burdens of red tape, rules and regulations, not all from Brussels, but in agriculture the time spent complying with a data request is increasing.

Regulations cost money—money that is being spent unnecessarily in times of recession. Under the previous Government, the Better Regulation Programme measured the administrative cost alone of meeting regulations in the private sector to be £458 million. This does not include the compliance cost of the general regulatory burden on business. The Institute of Directors estimates the cost of business regulations to be almost £112 billion, of which farmers are very much a part.

In this short debate there is no time to speak of the specific areas. I appeal to my noble friend the Minister and I hope he will agree that we end the so-called gold-plating of EU rules; that we reduce the number of forms needed to register a business and move towards a one-click registration model; that we cut red tape by introducing a one-in, one-out rule; that we end the tick-box regulation culture and target inspections on high-risk organisations and improving professional standards; and that we do as the noble Lord, Lord Grantchester, said and impose a sunset clause so that regulations can be regularly reviewed.

The burden of regulation, as we know, is at its heaviest with inspections, and different agencies have been found to inspect to different standards, bringing the looming risk of penalty and appeals on the understanding that regulatory requirements become crystallised.

Finally in the context of overregulation, planning authorities often cause problems, sometimes determined not by Government but by national parks and very much by local authorities through the localised Bill, and we need quicker and more positive decisions. Successful businesses need helpful understanding from planning authorities, particularly as agriculture moves into production energy and makes good use of waste.

19:54

[The Lord Bishop of Ripon and Leeds]

My Lords, I too am particularly grateful to the noble Baroness, Lady Byford, for pressing this question and enabling us to have time to discuss it. I want to make two points.

First, I know from my contacts just how pressurised an industry farming is. Clergy in the dales area of Ripon and Leeds—Swaledale, Wensleydale, Nidderdale and so on—report consistently on the pressure, sometimes desperation, felt by farmers, and mental illness has become a significant factor in the life of many agricultural communities. I pay tribute to the work done by clergy and ministers in helping to speak to farmers and to share the real pastoral concerns of farmers in those areas. Farm Crisis Network in particular helps those in difficulties and tries to give advice to those who have become entangled in the regulatory process.

No one doubts that regulation and inspection are needed in the farming industry as elsewhere, but the experience of inspection can often appear punitive rather than encouraging. How will the Government ensure that the inspectorate is helpful rather than punitive in its approach? There is a widespread feeling that the inspection regime is not proportionate or consistent, and this damages the health and well-being of the whole rural community. There is a need for better training of the inspectorate.

Secondly, can the Minister tell us how the independent role of the rural advocate is going to be expressed, given the abolition of that post? For more than a century a rural advocate in one form or another has been part of the countryside scene. I have heard nothing but praise for the way in which Dr Stuart Burgess has been able to express the voice of our rural communities. It remains crucial that there should be an independent way of informing policy-making, because the agricultural industry is particularly complex. The pressures are distinctive; the rural communities are very far from the concerns of London, or Leeds for that matter.

I have two questions. What do the Government have in mind to reduce stress on farmers by better training for inspectors, and how is the independent voice of the rural advocate going to be expressed in the future?

19:56

[Viscount Brookeborough]

My Lords, first I declare an interest in that I farm in a small way and have about 120 acres of trees. To add to the basic agriculture, I wish to refer to the regulatory burden on private commercial forestry, which is an important part of many farming enterprises.

The state, through the Forestry Commission, produces nearly 70 per cent of UK timber production, which is almost a monopoly, but it is also the regulator, which is an unhealthy situation for us all. For example, as a landowner you currently need to apply for permission to put new land into forestry and also to take land out of forestry, as that is a change of use. However, the Forestry Commission presumably does not have to ask itself this and it can do what it wishes. A landowner, having gained permission to plant and probably doing so with a grant of public funds, produces a crop ready for harvesting after at least 40 years. This time, he now has to apply to the state for a felling licence to harvest a crop that the state grant-aided specifically for that purpose when it was planted. This appears to be madness and jobs for the boys.

This brings in another issue—the distortion of the timber market—as the time taken in obtaining felling licences restricts the ability of producers to react to the changing demand and prices of timber in the short term. This does not apply to a grain producer who can sell where he likes. However, the private timber producer has to gain permission from a monopoly state producer and is therefore likely to miss the boat. In addition, the state producer is hide-bound by five-year plans. For example, during last year timber prices rose by more than 50 per cent for some packages. The sawmills that we use were screaming for more timber. A few weeks ago I was talking to a state forest harvesting manager and I asked him why they did not fell some very suitable timber that I knew of at this high price. His answer was that he could not do it as it was not programmed within that year of his five-year plan.

There are two points. First, it is no wonder that our state forests are so uneconomic if they cannot be more flexible. Secondly, the price logically became as high as it did as a result of demand and inflexible supply. Therefore in a period of low prices and oversupply the opposite might occur. State forests will continue felling and oversupplying and the price will go even lower. The forestry section of agriculture in the UK is not being allowed to operate in a free market. The burden of state regulation, control and interference in this sector is far too great, and I ask the Minister what the Government are going to do about it. Privatisation of some state forests at the right price might well be a good option, but the whole business operation needs looking at.

20:00

[The Earl of Caithness]

My Lords, globally, agriculture faces some long-term trends. As my noble friend Lady Byford said, there is a growing population, climate change, changing diet and competition for agricultural land. One would have thought that there were good opportunities for agriculture in the EU, but the EU is going backwards compared with the rest of the world. Our yields are flat. They are growing in America, Brazil and almost everywhere but in the EU due to overregulation. It was madness of the EU to bring in the regulation on chemicals and pesticides when there was no alternative. As a result, billions of pounds of investment and innovation money has gone out of the EU, and particularly out of the UK, which was so advanced in this field, and has gone to America and Canada. Jobs and some of our best brains have gone there—and one cannot blame them when one lives in this highly regulated environment, as we do as a result of the EU.

In the report on innovation in agriculture that we are undertaking in Sub-Committee D, we have evidence from Rothamsted Research, that:

“The disjunction between restrictive regulation in the EU and the lack of resources for agricultural research and innovation is probably the biggest threat to the long-term viability and competitiveness of EU agriculture”.

My noble friend Lord Henley has a huge job to turn that round.

More locally, could my noble friend tell me whether there are any plans to change the highly overrestrictive sheep regulations as a result of foot and mouth disease? Having tags in both ears has caused huge problems, including animal welfare problems, as some of the lambs are running around without ears, having been tagged too early. I have just heard that on Exmoor the tags that have been used, which had been authorised, are now no longer acceptable and farmers have to buy new tags.

I agree with my noble friend Lady Byford and the noble Lord, Lord Cameron, about farm inspections. They are highly costly and need to be restructured. But perhaps the greatest threat to farmers is the draconian subsidy penalties, whether for cross-compliance or anything else. Small farmers cannot tolerate that; they make mistakes quite innocently sometimes, and they are not the people to be persecuted, but sadly that is what happens. I hope that the Macdonald report will bring that to the fore and that the Government will change many of the regulations and the severe penalty regime that are currently in force.

20:02

[Lord Rogan]

My Lords, I, too, thank the noble Baroness, Lady Byford, for initiating this timely debate. Agriculture is a devolved matter, but we are speaking about British agriculture, and I trust that a few words and examples from Ulster are germane to the wider debate. Although it has been many years since agriculture was a mainstay of the British economy, even in a rural region such as Northern Ireland it is still an important source of employment and wealth creation. Indeed, during the recent recession and ongoing economic turmoil, Northern Ireland's agri-food sector has been one of the few industries to continue to grow and prosper. It has grown and prospered despite the best efforts of regulators in Belfast, London and Brussels to smother it in red tape.

Ridding the sector of unnecessary and burdensome bureaucracy is, as we have discovered in Northern Ireland, no easy task. We do not need a bonfire of red tape; rather, we need to adopt that robust, age-old farming practice of slash and burn. Two years ago, after not inconsiderable effort, the Ulster Farmers Union welcomed a report from the Better Regulation Task Force, a creation of the Northern Ireland Assembly, which was apparently going to stop the pernicious spread of farm bureaucracy. In particular, there were concerns about burdens caused by farm inspections, the single farm payment scheme, the administrative stress induced by TB policies, and the stupefying complexity of guidance notes and terms and conditions issued to farmers for every scheme and regulation imaginable under the sun. What, you may wonder, happened to such laudable ambitions? What, indeed. One year later, the Ulster Farmers Union was bemoaning the abject absence of action by Northern Ireland's Department of Agriculture. Despite having accepted nearly all the recommendations identified the year before, the department was making slow headway in actually removing any red tape. Indeed, the most tangible outcome appears to have been the creation of that great oxymoron of government, the working group, to consider further action.

Talk, as they say, is cheap, and farmers in Northern Ireland want action, not words. They had been promised that the administrative burden on farmers and agri-food businesses would reduce by 25 per cent by 2013, saving them upwards of £15 million in the process. I rather fear that they will have to wait somewhat longer. There is nothing sedate or comfortable about the fiercely competitive market in which farmers operate; we are all part of the global village, with every possible foodstuff available in and out of season. There is no fat in the industry and no capacity to carry unnecessary administrative burdens. I commend the noble Baroness for securing the debate and encourage those responsible for regulating to pause before putting pen to paper and to consider the anxiety and annoyance that they spread in farmhouses throughout the length and breadth of the British Isles.

20:06

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend Lady Byford for securing this debate and express my own delight to see her back in harness. I declare my interest as a partner in the family farm, a member of the NFU and a board member of the Countryside Alliance. It seems almost a national condition to embrace bureaucratic regulation, gold-plate it and then complain about the red tape that we have to endure. We need to focus on trusting people more and, whenever possible, to have a much lighter touch. Of course we all recognise the need to have high standards, especially with public and animal health in the spotlight. Yet regulation must be fair and proportionate and take into account that British farmers already have some of the highest standards of animal welfare in the world.

We must create an environment in which small businesses across the country in every farm can recognise a helping hand and not a heavy one. Tomorrow the Countryside Alliance rural awards will be held in your Lordships' House. The winners will be beacons of rural excellence, yet across the board regulation is identified as stifling initiative and enterprise.

One of the biggest regulatory issues facing British livestock farmers is the complex and ever-changing rules surrounding animal movements. Rather than evaluating and improving existing regulations, layers of regulation have been overlain by further layers, in many cases involving complex duplication. Until recent changes implemented by the Government, the bizarre situation existed whereby farmers had to notify cattle movements either on line or by post within three days. Many were based in uplands where there is still limited internet access and the returning envelope was supplied by second-class postage. For some of the most remote areas of the country, this is an awful lot to expect from our postal service. What is more absurd is the fact that EU rules state that national Governments may set their own limits on notification between three and eight days, yet Britain opted for the shortest possible time. My intention is not to make a partisan point in highlighting that example, but how on earth did we get ourselves in that position when we had the ability to be more flexible and yet chose the most draconian option? Flexible regulation can result in a significant reduction in the amount of paperwork for farmers. This flexibility will assist a sustainable and profitable farming sector and help British farmers to continue to produce the top-quality meat and produce for which they are justly renowned.

20:09

[The Earl of Sandwich]

I declare an interest as an owner and joint manager of farmland in West Dorset.

Two out of three farmers complained to the NFU last year that red tape was their greatest concern—greater than prices or the economy or the CAP. Defra admitted that the cost of its regulations had reached £458 million, with the greatest impact on farmers. The good news is that common sense seems to have arrived, and the new Minister, Jim Paice, believes that more trust should be vested in farmers, because they know which practices work best and which do not—and he is one.

I am amazed at the stamina that farmers and owners have displayed in coping with so many rules. The culture of political correctness has to change, and I am sure that the Minister will set that out in his reply. We need a new official attitude that states that if we do not need it, we do not want it. Rules intended as improvements have become burdens. With our economy under pressure we cannot afford the luxury of unthinking legislation. There must be no gold-plating of EU rules, especially when it is known that other member states do not comply, as the noble Baroness said.

Does the Minister agree with the NFU that the impact assessments, while they may include a section on rural proofing, are,

“too often ignored or not considered fully”?

I support the Commission’s new proposals on the progressive greening of the CAP and more sustainable agriculture, but I am also concerned about the duplication among the various environmental agencies. We have small tracts of woodland and pasture, including SSSIs, that involve at least four agencies: Natural England, the Countryside Agency, the Forestry Commission and Defra. Can the Minister assure us that designations need not involve so much bureaucracy in future?

Finally, I turn to badgers. Here I can draw directly on our experience in West Dorset. When are we going to follow the Welsh—subject to the court case—and issue farmers with licences for four-year culls in definable areas of the south-west? I know that this is not without problems. They have been outlined in an excellent Commons briefing paper.

Furthermore, can Defra further simplify the bovine TB testing procedure? One farmer whom I know complains that Defra is not collecting animals fast enough, perhaps because of the shortage of vets. The noble Baroness has already mentioned a review of the movements of the animals. Once they are tested positive, too much time elapses, they are kept in isolation longer than necessary and the risk on the farm remains. On top of that, under the 60-day test, four more months of quarantine mean that animals still have to be fed and there can be no sales.

Is the Minister aware that the testing rules are applied differently from county to county? For instance, in Devon, tested animals with the correct ear tags and showing fitness to travel are collected faster because they do not require an inspection, so much more must be done online, and this of course is the most welcome form of deregulation.

20:12

[Baroness Quin]

My Lords, normally when winding up for the Opposition, I would hope to be able to acknowledge most, if not all, of the speeches. However, given that I have only three minutes, as others do, I think that even if I attempted to list all the names of speakers I would run out of time. Therefore, I hope that noble Lords will excuse me for not picking up on many of the excellent points that have been made in this debate. I would like to compliment all noble Lords who have spoken on having been able to make quality speeches within such a restricted timeframe. I join others in congratulating the noble Baroness, Lady Byford, both on securing this debate and, given that she first tabled it some time ago, on showing patience and tenacity in managing to bring the debate forward today.

The issue of the burden of regulation in agriculture has been around for a long time, as my noble friend said. Indeed, I remember complaints about the gold-plating of EU directives from the days when I sat on the European Parliament’s agriculture committee, so ably chaired by the noble Lord, Lord Plumb, so I know that these issues have been around a long time. I believe that the previous Labour Government were involved in a number of efforts to seek to reduce the regulatory burden in agriculture from 1998 onwards. Indeed, there was the Hampton review, the Better Regulation Task Force report, Regulation—Less is More, the attempts by Defra to try to simplify regulations and legislation, and some results that the department achieved in consequence.

From these Benches I certainly do not oppose the current Government’s efforts to tackle this problem and indeed wish the Macdonald review every success. I would like to ask the Minister a little bit more about the timing of the review. In the initial announcements of the task force, it was intended to report early in 2011. I also know that issues of significant concern were supposed to be raised with Ministers as soon as they arose through that process. It would be good to know from the Minister whether any such issues have been raised up to now and whether he can give us an update on when the report will be published. Finally, in order to respond fully to the comments that have been made in this valuable debate today, I ask the Minister to ensure that we will have a debate at much greater length once the review is published and its recommendations have been established.

20:15

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

My Lords, I declare my interests as set out in the register. First I will deal with the last point made the noble Baroness, Lady Quin. Obviously that will be a matter for the usual channels, but I am sure that she and others will find a way of debating Mr Macdonald’s report when it comes through in due course. As regards the timing of the report, I appreciate that there has been slippage, as there often is on these matters. However, it is very important that these things are got right, as it were, before they come out. The current plans are that the report will appear in May—this year, I stress—and I look forward to discussing it at that time.

I also thank my noble friend for bringing forward this debate in the dinner break, and I thank all other noble Lords who have spoken. I think all noble Lords will appreciate that I will not have time to deal with all the questions that have been put to me; nor would it be appropriate for me to respond to all of them as quite a lot are matters that Richard Macdonald will be considering in his report. I will briefly run through some of the suggestions that have been made, then say a word or two about the Government’s general attitude to regulation, about the Macdonald review and how it was set up, about what it is proposed should be done, and a little more about the timescale. I hope that will satisfy noble Lords who have spoken.

As I said, there have been a large number of questions put to me. For example, my noble friend Lady Byford, talked about the lack of proper IT communication between Defra and its various agencies. I accept that we do not always get these things right and we could do more. She also talked about the groceries code adjudicator and when we were likely to see legislation on that. I dealt with that matter a day or two ago in relation to the Public Bodies Bill. It is in hand and we hope to be able to produce something in due course. The noble Lord, Lord Grantchester, talked about the need for more sunset clauses in all regulations, again something that we would like more of. However, I cannot make any categorical assurance about that, particularly in advance of the report. The noble Lord, Lord Cameron, spoke of there being far too much duplication. Again, we should look at that and I very much hope that Richard Macdonald has it in hand.

My noble friend Lord Plumb spoke of having no gold-plating, which the noble Earl, Lord Sandwich, echoed. We all think that is right and we do not want gold-plating of matters that come from Europe. My noble friend also talked about the need for more one-click registration modelling. Again, I accept that point, as it ought to be looked at. He also talked about targeting inspection on high-risk people rather than on others, which he made a good case for. I am sure that Richard Macdonald will look at it. He also made the good point that we should make more good use of waste. I assure him that I have very much been involved with our waste review, which is due out in May or June this year. I hope that my noble friend looks forward to the publication of the waste review, which obviously goes much wider than farming, in due course.

The right reverend Prelate spoke of the need for better training of the inspectorate. Obviously, we can always improve the training and I, again, take that on board. I also note his comments on the role of the rural advocate, although I think that I dealt with that when I spoke only last Wednesday on this matter on the Public Bodies Bill. On forestry the noble Viscount, Lord Brookeborough, talked about the conflicts between the dual roles of the Forestry Commission. Again, we have highlighted that in the past and the new panel on forestry announced by my right honourable friend the Secretary of State will look at that in due course.

My noble friend Lord Caithness looked at some of the problems facing sheep farmers with EIDs. I can assure him that my right honourable friend the Minister for Agriculture, Jim Paice, certainly highlighted this matter to Commissioner Dalli when he came over to England. I suggested that it might be quite a good idea—I think this suggestion originally came from my noble friend the Duke of Montrose—if we took Commissioner Dalli off to one of the big sheep markets such as Longtown, which is very near me, to show him what confusion EIDs were causing and what chaos there was with just how many were falling off the sheep.

I am also very grateful to the noble Lord, Lord Rogan, for reminding us that although I am a mere English Minister in these matters, the debate was related to British and UK agriculture. I note what he said about the position of Northern Ireland and the other devolved parts of the United Kingdom. We certainly discuss all these matters with our devolved counterparts. At the moment, we are in rather a strange phase in that although they are still in office, we do not know who they will be in a short while, but we will resolve that in due course.

My noble friend Lord Gardiner spoke about animal movement regulations. Yes, I agree that they are very important for disease control, as my noble friend made clear, but that is something which we have to get right. Again, I hope that Richard Macdonald will look at that in due course.

The noble Earl, Lord Sandwich, raised that perennial and very tricky question about badgers and bovine TB. All I can say is that any decision we make will be based on the scientific evidence put in front of us. We will obviously watch carefully what happens in Wales and examine it. The important thing is that we make the right decision at the right time, based on the evidence put before us. I and my colleague Jim Paice have already taken advice from our scientific adviser and the Chief Scientific Adviser to the Government. That advice will be listened to and studied when we make the appropriate decision.

I want to say a word or two about the Government’s general attitude to regulation before I get on to Richard Macdonald and his review. Only a week ago, my right honourable friend the Chancellor of the Exchequer made the importance of better regulation quite clear in his Budget Statement. I stress “better regulation” rather than deregulation; the important matter to get across is of getting regulation right. He made clear the importance of that in supporting growth and a green economy. That goes much wider than agriculture and across the whole of industry.

In doing so, the Chancellor spoke of our commitment to reducing red tape on businesses to allow them to grow and to support our economy. That was supported by proposals for regulatory reform. To support that objective, as we know, my right honourable friend the Minister for Agriculture announced the establishment of the industry-led task force on agriculture last year. I stress that an independent, industry-led task force to deal with these matters. I regret to say to the noble Lord, Lord Rogan, that its remit covered purely England but I am sure that the devolved Administrations will want to look at the matter. The task force was set up to look at ways of advising the Government on improving approaches to regulation affecting farmers, growers and food processors. The key to this is that the task force is both independent of government—we await its report with interest—and led by industry. As I said, it was set up in June last year. The Government want to understand what farming and food processing business are concerned about and what the solutions to their problems might be. That is why we have asked the task force for advice. I understand that the chair and members are now in what one might refer to as the home straight and are preparing for their final meeting on 4 April, which is next week. We hope that they will publish their report later in the spring. We are looking to see that happen in May, just after the local elections.

I can inform the House what we have asked of the task force. We invited the chair and members to be bold in ambition and wide-ranging in vision. We have made clear to the task force that the context for its work was—I quote from its terms of reference—

“In support of a more competitive farming sector that contributes to the economic recovery”.

We asked the task force to,

“identify ways to reduce the regulatory burden on farmers and food processors through a review of relevant regulations and their implementation, and advise on how best to achieve a risk-based system of regulation in future”.

We asked the task force to do so—I stress this element of its remit—

“whilst maintaining high environmental, welfare and safety standards”.

I give an assurance to the House that this review is not about compromising on outcomes or standards. It is not a “bonfire of regulation” that some have demanded and others have decried. It is a way of maintaining standards while moving towards a more risk-based approach of doing business. It is about better regulation—I again stress those words.

To address three aspects of the task force’s terms of reference, it has focused on three main types of problem. First, it has set out to identify disproportionate and overcomplex process, implementation or enforcement, with a view to changing to a simpler, risk-based and outcome-driven approach. Secondly, the task force has looked at unnecessary or outdated measures with a view to revocation or, where they are EU-based, renegotiation. It is important to remember that it is always possible to renegotiate matters in Europe, difficult though it might seem at times. Thirdly, it has aimed to identify the gold-plating of regulations in the past with a view to making recommendations for alternative approaches and the removal of unnecessary burdens.

The farming industry has risen to the challenge of collecting evidence and has provided ample food for thought. More than 350 responses have been received from individual farmers, trade associations and non-governmental organisations. Because this is an independent report it is not for me to pre-empt what the task force will say but it has made it clear that the main thematic areas of its review are farm animals, growing and crops, food processing, business and management, paperwork, environment and land management, and the single payment scheme and cross-compliance. Looking at overlaps and duplication between inspection processes is also an important part of the review.

I do not think that I ought to try to pre-empt what might come out of that review or—this is equally important—how we will respond to it. However, I welcome this opportunity to have said a little about how we set up the review and what we hope will come of it. I again thank my noble friend for introducing the debate.

20:28

Sitting suspended.

Fixed-term Parliaments Bill

Tuesday 29th March 2011 Lords Chamber

Committee (3rd Day) (Continued)

20:34

Amendment 43

Moved by

[Lord Norton of Louth]

43: Clause 2, page 2, line 16, leave out subsection (4)

[Lord Norton of Louth]

My Lords, this amendment is designed to probe the reasons for the Speaker having to consult the Deputy Speakers before issuing his certificate. So far as I can see, there are two possible, if incompatible, reasons for the inclusion of this provision. The first is because of the provision of Section 1(3) of the Parliament Act 1911, which requires the Speaker, before certifying that a Bill is a money Bill, to consult, if practicable, two members of the Chairmen’s Panel. The Government may thus see the provision of the Speaker’s certificate as analogous to a certificate under the Parliament Act.

The second reason is that the Government recognise that the situation is not strictly analogous. As I pointed out at Second Reading, there is a statutory definition of a money Bill. There is no definition in this Bill of a motion of no confidence. There is therefore the prospect, as we have already heard, of the Speaker being dragged into political controversy. It is possible at the moment for the Speaker to be drawn into controversy over the certification of a money Bill. We saw a recent example in your Lordships’ House. That arose because some Members were ill informed about the provisions of the Parliament Act. However, that perhaps emphasises the point that the potential for controversy is even greater in a politically charged atmosphere where the fate of a Government may be involved, and there is no statutory guidance that would offer the Speaker a protective shield. It may thus be that, recognising that potential, the Government wish to provide some protective cover for the Speaker by involving the Deputy Speakers in the decision. Because the Deputy Speakers will be drawn from different parties, it provides a modicum of cover.

Whichever it is, neither justifies the provision. Ultimately, whatever consultations are held, the decision will be that of the Speaker and be seen as such, as is the position with money Bills. If one seeks to provide some degree of protection for the Speaker, the answer is not to require him to consult the Deputy Speakers but, rather, to provide a clear statutory definition of what constitutes a motion of no confidence. We shall come in due course to the amendment tabled by my noble friend Lord Cormack. That is the way we should be going. I appreciate that his amendment is not incompatible with subsection (4) but, whereas there is a clear, and I believe compelling, case for defining what we mean by a vote of no confidence, I am not clear that there is a compelling case for subsection (4). What value is added by consulting the Deputy Speakers? They are not necessarily experts on the subject. What if they disagree with one another? If the Speaker is to consult, why not give him scope to consult those who appear to him to be appropriate to consult? In practice, he could presumably consult whom he wishes, so there is no obvious need for the provision. Ultimately, if there is to be a Speaker’s certificate, it is the Speaker’s responsibility. He cannot pass it on to others. I am therefore unclear why this provision is necessary. I look forward to hearing from the Minister why it is in the Bill. I beg to move.

[Lord Howarth of Newport]

My Lords, I tabled an amendment in exactly the same terms as the noble Lord, Lord Norton of Louth. As he is your Lordships’ leading constitutional expert, I felt very good that I had arrived at the same idea, and I am extremely happy to appear on the Marshalled List as having signed up to his amendment.

The provision is so vaguely drafted as to be almost entirely without meaning. I know that it is borrowed from the Parliament Act 1911 but that does not mean that it is an appropriate precedent, particularly, as the noble Lord, Lord Norton of Louth, has just pointed out. In that Act, there is a clear definition of a money Bill, but there is no clear definition of a no confidence motion in this measure. The Clerk of the House of Commons, in giving evidence to the Select Committee in the other place, was of the opinion that the question of whether consultation was practicable would become a legal question. It would be open to legal challenge in so far as anything in the Bill is liable to be open to legal challenge. We had a full discussion of that in an earlier debate.

One observes that judicial reviews have been upheld again and again against the Government on the grounds that Governments had failed to consult properly. If it is a question of whether the Speaker may or may not have consulted properly according to the requirements in the Bill, I suppose that that, if anything, might give an opening to judicial intervention, although I am not seriously afraid that that is the case. The real concern about this provision is that it is almost meaningless. What does “so far as practicable” mean? What would be proper consultation in these circumstances? The requirement to consult does not oblige the Speaker to agree with the Deputies. The Deputies themselves might disagree. In fact, one might surmise that they are rather likely to disagree in the circumstance of a no confidence vote that will occur in the most fraught and complex political circumstances. There will be enormous pressure not only on the Speaker of the House but also on the Deputy Speakers if they are to be involved formally in this process. The Deputy Speakers have disclaimed their party allegiance in their new capacities but, none the less, it is only realistic to anticipate that they would come under immense political pressure from members of their own political parties. They would need to be very sturdy to ignore all that. In the previous debate, the noble Lord, Lord Martin of Springburn, and the noble Baroness, Lady Boothroyd, described how they would imagine the atmosphere to be in the House on the occasion of a no confidence vote. They gave us to understand something of the sort of pressures that would be brought to bear not only on the Speaker but, if this provision remains in the Bill, on the Deputy Speakers, too.

In the end, the Speaker will be on his own. It seems that this provision gives him no useful cover or protection against the political storm. A very sensible conclusion of the Constitution Committee, contained in its report at paragraph 159, was that, whether or not this turns out to be a legal question, an obligation on the Speaker to consult with the Deputy Speakers should be a matter of internal House of Commons procedure, should not be contained within the statutory provisions of the Bill and therefore should be omitted. Rather regrettably, the Government rejected this advice in their response to the report of the Constitution Committee at paragraph 60. The Government are quite keen to pray the Constitution Committee’s recommendations in aid when they agree with them. They have not done so on this occasion, however. They cite the precedent of the Parliament Act 1911, which, they say, has worked well. As we suggest, it is not a terribly useful precedent; certifying a money Bill is a matter of ascertaining fact and hardly contentious. Certifying a vote of no confidence would be a very different thing.

I hope that the Minister will agree to look again at this sensible recommendation of the Constitution Committee and that he will agree to the amendment proposed by the noble Lord, Lord Norton of Louth, and myself.

[Lord Falconer of Thoroton]

On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.

It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.

I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.

Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.

It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.

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

My Lords, my noble friend Lord Norton of Louth was quite correct, as other speakers in this debate have indicated, to draw attention to the provision in the Parliament Act 1911, which indicates:

“Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection”.

My noble friend inquired whether that was simply because of precedent and suggested that there are differences between the definition of a money Bill and what is required of the Speaker in the context of this clause. I accept that this arises from there being a precedent for such a requirement and acknowledge that there is a difference between determining what is a money Bill and the nature of the certification that would be required of the Speaker in the context of this Bill. What they have in common is that they are matters which have important constitutional consequences. That is why we thought it appropriate, given that there is a precedent for the Speaker to consult two very senior members—in the case of the Parliament Act, two members of the Chairman’s Panel and in this case Deputy Speakers—that we should follow that precedent.

When I was listening to the noble and learned Lord, Lord Falconer of Thoroton, I was thinking that if we had not included this we would probably have been accused of not having thought this through. In the Parliament Act, there is provision for consultation with the Deputy Speaker and we would have been asked why we had not included a provision to consult the Deputy Speakers.

[Lord Falconer of Thoroton]

I feel that the noble and learned Lord is getting a bit paranoid. No, I would not have said that.

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not see the irony in arguing the case for this on the basis that it is a tried-and-tested procedure while turning upside down the whole tried-and-tested procedure of how we decide when we are going to have a general election?

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken in this short debate, which is an important debate to be had. I am still left wondering what value is added by this provision. My noble and learned friend has confirmed that, of the two definitions I offered, the first was correct. The Government have looked at the Parliament Act in which there is a provision that has been carried over. That seems to be the sole reason.

In terms of the argument, I am not quite sure why the provision should be there. The noble and learned Lord, Lord Falconer of Thoroton, was right. The Speaker is quite capable of consulting those whom he wishes to consult. If the provision was not in the Bill, it would avoid the legal problems to which the noble Lord, Lord Howarth of Newport, referred. The more we can do to reduce the prospect of legal challenge, the better. As the noble Lord, Lord Howarth, pointed out, there is a problem with the position of the Deputy Speakers, who are neutral figures as Deputy Speakers but seek re-election as party candidates.

The Minister’s argument is that this is based on precedent, as it is in the Parliament Act, which also has a definition of a money Bill. I am not quite sure why we are following the precedent of consultation but not following the precedent of having a definition as the basis on which that consultation takes place. Either one follows precedent and does both or one does neither. I cannot see the argument for saying, “Well, this is in the Parliament Act, so we’re lifting that” and “This is in the Parliament Act, but we’re not lifting that”, even though the definition, to which we will come, is far more important. That is essential in this Bill and I do not see why we need Clause 2(4).

I hope that my noble friend will reflect on that. He has heard the arguments and I think that he has recognised the value of them. I hope that it is something he might consider between now and Report. But in the interim, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Amendment 44 not moved.

Amendment 45

Moved by

[Lord Marks of Henley-on-Thames]

45: Clause 2, page 2, line 21, leave out from “(2),” to second “day” and insert “polling for the election is to be conducted on a day, or two consecutive days, no earlier than four weeks and no later than eight weeks after the date of the certificate issued under subsection (1) or (2), and on a”

[Lord Marks of Henley-on-Thames]

My Lords, the amendment addresses two issues. I do not propose to deal with the question of possible weekend voting because we have discussed that already.

The first issue is that the Bill as drawn omits to provide for a timetable for an election to take place after a vote for a Dissolution or a vote of no confidence. The existing provision in the Bill is for an election to be held on the day appointed by Her Majesty, by proclamation, on the recommendation of the Prime Minister. The Bill therefore leaves it to the defeated Prime Minister to decide on the advice he gives to the Queen as to how long should elapse before a general election is held in the event of a vote of no confidence. To leave the date of the election as open as that would be unsatisfactory and open to abuse.

Secondly, the timescale suggested in the amendment—that an election should be held no earlier than four weeks after the Speaker’s certificate and no later than eight weeks after the certificate—is intended to strike a sensible balance. On the one hand, it is important to avoid an unholy rush to judgment, with a squeezed timetable for candidate selection, for nominations and for postal votes; on the other hand, it should not be possible to delay an election under either of the provisions for an early Dissolution for too long. It is also important not to permit an unduly long campaign to enable a Prime Minister to bolster an unpopular Government’s position. Keeping the period reasonably short is particularly important when there is a vote of no confidence because the Government who have just been rejected by the elected House would remain in power following that vote until replaced after the election.

However, the period allowed also has to be long enough to make it possible for a reasonably full campaign to take place, even where the Speaker’s certificate comes just before a holiday period. The timing of any early Dissolution may be unpredictable and inconvenient and that may happen. For this reason, while it might at first blush seem desirable to opt for a shorter period of six or seven weeks as the longest period permissible, we feel that eight weeks is about right.

It will be interesting to hear what other noble Lords think about the appropriate period, but it would not be sensible for the Bill to be enacted with no timetable at all. I beg to move.

[Lord Grocott]

My Lords, this is a characteristic of trying to solve a problem that has never existed. The only occasion on which this system has been tested—we keep going over the same ground and I do not need to repeat it—was when Jim Callaghan lost a vote of no confidence. I can remember absolutely no dispute, argument, difficulty or sense of abuse about the period between the defeat of the Government and the general election being held. However, now, as with fixed-term Parliaments and a number of other provisions in the Bill, we seem to need to write into statute law what has historically always operated perfectly satisfactorily.

In particular I am concerned that, unless we can improve the Bill, in addition to the two-week period when the Government are being formed, there is now to be up to eight weeks—10 weeks in all—between the defeat of the Government in a motion of no confidence and the general election. The longest election period in the time that I was fighting elections was six weeks, in 1997. I think that there was universal agreement that that was at least two weeks too long. The public get bored—I do not blame them—pretty rapidly. I shall not go over those arguments again because they are conclusive. I simply say that this is yet another example of an attempt to impose a straitjacketed legal constraint on something which has worked perfectly well and requires no change whatever. At its worst, it could lead to a general election campaign effectively lasting for 10 weeks, which is at least six weeks too long.

21:01

[Lord Forsyth of Drumlean]

I was rather puzzled by the amendment, for the same reason the noble Lord, Lord Grocott, indicated: that this has never been an issue in the past. I have been thinking about what is driving this stuff. It appears to be the notion that the Prime Minister has some enormous advantage in being able to choose the date of the election and, if this amendment were agreed, its timing. For those Prime Ministers whom I have known and who have had to decide these things, it is an agonising decision. Have too long a campaign and you might lose because the public get bored; have too short a campaign and you might not get across your arguments or there may be an event which you are unable to control and which will affect voters’ views—for example, some trade figures. That there is some great advantage in the Prime Minister deciding the date seems to be what is driving this stuff. It is fundamentally misguided and takes away the flexibility which you need in the system to apply common sense.

Perhaps I may make one slightly partisan point. The Parliamentary Voting System and Constituencies Bill recently passed through this House. The Government moved heaven and earth to make sure that that Bill went through the House so that the referendum could take place on the same day as the Scottish and local government elections, thereby ensuring the turnout. Perhaps I may say to my noble friends in the Liberal Democrat party that it is inconsistent for them to argue, on the one issue, that the Executive’s power and patronage can be used to try to achieve a particular result, and then, on another issue such as this, to say, “Well, we can’t possibly have the Prime Minister deciding the timing of a general election campaign”. It is a power which Prime Ministers have sometimes tried to use to advantage in the past and it has turned out to be something of a curse.

The fundamental thinking behind the amendment, that there is some great defect in our system because of prime ministerial ability to choose the date and timing of a general election, is misguided. I agree with the noble Lord, Lord Grocott, that we end up trying to create a box-ticking culture for the conduct of our public affairs. It will come to grief, as we have seen in many other areas of our public life where this philosophy has been applied.

[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

[Lord Wallace of Tankerness]

My Lords, I readily understand the thinking behind the amendment moved by my noble friend Lord Marks. If the Bill is intended to remove the opportunity for the Prime Minister of the day to take a partisan view on the timing of the election, I can see why, the Prime Minister having lost a vote of confidence, you might then wish to restrict the Prime Minister's room for manoeuvre on setting the date—either to go too soon, which may give a campaigning advantage; or to delay unreasonably. Nevertheless, the amendment is unnecessary. More importantly, practical issues could flow from it.

If we take the case of delaying too long, in the context of Clause 2(6) and the Bill as a whole, it is clear that the Prime Minister would be required to recommend to Her Majesty a prompt election. If two-thirds of the House—the other place—had voted for an early election, one would imagine that the Prime Minister would be as anxious as anyone to get on with it. Likewise, although the Prime Minister may be less keen for an early election where there has been a motion of no confidence, and no other Government have been formed, that would also be a clear statement from Parliament that it expected to see change and an election. The electorate would share that view. This is pure speculation, but if the Prime Minister tried to pull a fast one and delay unduly, that decision could be subject to challenge.

On the other hand, there are limits as to how quickly the Prime Minister can move if he seeks an early polling day. Clause 3(1) dissolves Parliament 17 working days before polling day, so the timetable at Dissolution is fixed and is known to all sides. Therefore, there is no way that that could be cut short for advantage. There is already that backstop as to how an election could be called.

My biggest concern is practical. The Government decided not to set specific limits that inadvertently tied hands in circumstances which could lead to a situation such as that described by the noble and learned Lord, where the election campaign might be some time between 18 December and 16 January. It is almost inevitable that if we were to try to fix those times, the first example would be when it fell in a period where campaigning would be very difficult. We should allow flexibility to allow a general election to be called on a date—which, one would assume, would be consulted on among the parties—to minimise disruption in a Christmas period or summer vacations.

Therefore, the amendment is neither necessary—provision is already there which would stop a Prime Minister calling an election too soon; he would clearly be challenged if he tried to delay unduly—nor practical in trying to tie hands. That might run into more problems than the amendment is intended to solve.

[Lord Falconer of Thoroton]

The noble and learned Lord said something important there. He said that the Prime Minister would be subject to challenge if he sought to delay. Interestingly enough, it is a statutory power whereby the Prime Minister is obliged to recommend a date. Is it challengeable by way of judicial review?

[Lord Wallace of Tankerness]

It could be challengeable by judicial review if he was abusing his decision on a recommendation. That is why there is a safeguard there, which would mean that it would not be possible to delay in an unacceptable way.

[Lord Falconer of Thoroton]

Just to pursue that: the Government envisage a situation that could not arise now—because there is absolute discretion on the part of the Prime Minister—whereby the Prime Minister recommends to the Queen that the date of the general election be, say, 1 May 2013, and other parties can take the Prime Minister to court, arguing that that is an unreasonable exercise of his discretion and ask the court to fix the date of the general election, which it could set to take place two weeks earlier or two weeks later. Is that what the Government envisage as a possibility?

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the consideration that has been given by noble Lords and my noble and learned friend to the amendment. The problem that it sought to address was simply the question of the lack of a timetable. I am bound to say that the exchange we have just heard between the noble and learned Lord, Lord Falconer of Thoroton, and my noble and learned friend illustrates that there is—in theory, at least—scope for an abuse of power by a Prime Minister that could, perhaps in extreme and unlikely circumstances, lead to a challenge, because executive action of this sort might be justiciable and there is room for an abuse of power. The amendment simply seeks to address that.

Of course we are open to consideration of that time, but the noble Lord, Lord Grocott, talked of James Callaghan; it does not follow that because James Callaghan behaved well on that occasion everyone else necessarily would do so. As regards the number of weeks, it is right that there is a window of only a month, and that could involve a holiday period. However, the corresponding argument is that it may be undesirable for a vote of confidence in June to lead to an election being deferred until September or October, on the basis that holidays would intervene. We took the view that is worthy of consideration that it is more important to have an election than it is to avoid the holiday periods and allow them to be an excuse for not holding an election. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Amendments 46 to 48 not moved.

Amendment 49

Moved by

[Lord Howarth of Newport]

49: Clause 2, page 2, line 24, at end insert—
“( ) If an early parliamentary general election occurs under any of the provisions of this Act an order approving the next review of parliamentary constituencies shall not be submitted to Parliament until after the fourth anniversary of the start of the new Parliament.”

[Lord Howarth of Newport]

My Lords, the amendment seeks to ensure that in the event of an early general election the constituency boundary review would remain synchronised with the cycle of general elections, and new constituencies would be approved by Parliament only at the latest practicable time in the life of a Parliament.

We were told when we were debating the Parliamentary Voting System and Constituencies Bill that this was a sacred principle for the Government. They made great play of the importance of the provision in that legislation to ensure that there were boundary reviews every five years and that their timing should bear a sensible relationship with the date of the next general election. Although many of us argued that there were other factors that the Government ought to bear in mind about registration and the undesirability of destabilising constituencies and political parties at such frequent intervals, the Government stuck to their guns and said that it was very important to have a five-yearly cycle of boundary reviews.

However, on this legislation the Government take a very different position. When the Minister, Mr Mark Harper, appeared before the Constitution Committee he was asked:

“Do the Government envisage amending the review period if the two cycles move out of synch in the future?”,

I was struck by what he said:

“We thought about this carefully … We did not think that it was absolutely necessary to synchronise them. You will know that the Parliamentary Voting System and Constituencies Bill sets out that we want boundary reviews once every five years—broadly once per Parliament—but I do not think that it is that important that they are absolutely synchronised. We will see how it works … we did not think it important to align them or make provision in this Bill or in the Parliamentary Voting System and Constituencies Bill to tie the two together”.

It is fairly odd that such contradictory positions have been taken by the Government in two concurrent pieces of constitutional legislation. I would be grateful if the Minister could tell us more. I beg to move.

21:15

[Lord Wallace of Tankerness]

My Lords, I readily recognise where the noble Lord, Lord Howarth of Newport, is coming from on this. As the Committee will know, the Parliamentary Voting System and Constituencies Act 2011 requires boundary review reports to be published on a five-yearly timetable, starting in October 2013. Once this Bill is enacted, general elections will occur at five-year intervals, starting in May 2015. In the absence of any early elections, the effect would be that boundary reviews generally would be published 18 months before each general election. Our debates on the previous Bill were about allowing an opportunity for the political parties and electors to become familiar with new boundaries and, importantly, for the electoral administrators to gear up accordingly.

I understand that the intention behind this amendment is to realign the five-year cycle for boundary reviews in the event that an early election causes them to get out of sync. Unfortunately, the amendment does not achieve this. It relates only to when the order is submitted to Parliament; there is no provision made to adjust the cycles that the Boundary Commissions themselves will work to. That is not simply a technical objection but an important and fundamental one. Broadly, I have sympathy with what the amendment is trying to do to ensure that there is one boundary review in each Parliament so that constituencies remain of roughly equal size and votes remain of equal weight. We looked at the interaction between the boundary reviews and the provisions of the Bill. The conclusion that we reached, which may be an echo of what some Members said in earlier debates, was that we simply could not legislate for every scenario under a fixed-term Parliament provision. This is one where it would be far better for judgments to be made by future Parliaments, in possession of knowledge of the circumstances, depending on when the early election—if such there was—took place.

I give a brief example. If, for the sake of argument, an early election was to occur before a full boundary review had been completed—say, in early 2018, when the report from the Boundary Commission would not be due before October that year—this amendment says nothing about what should happen to that boundary review, which would be well under way and ready to report in October 2018. It says simply that the next order should not be brought into force until 2022—that is, before the election of 2023. That raises questions about whether the review that was due in 2018 should be implemented in 2022, which would mean that the boundaries could become out of date. Is it the intention that the first review after an early election should have a 2022 deadline, in which case additional provision would be required to define which register that review should use? Without that additional provision, the commissions would have to use the December 2020 register, which would give them a very short time in which to conduct the review.

As I indicated, while it would be preferable—and may still be possible for the dates of some early elections—to continue the cycle of reviews that is there, it is far better left to a future Parliament to deal with the specific circumstances if it felt that boundary reviews were not keeping pace with the cycle of elections. In any event, even without doing anything, future elections are likely to be fought with more up-to-date registers than was the case for England in 2010. I welcome what I am sure is the well intended purpose of the noble Lord’s amendment, but I do not believe that it achieves that purpose. I therefore ask him to withdraw it.

[Lord Falconer of Thoroton]

Does the Minister envisage Parliament dealing with the issue by primary legislation each time?

[Lord Wallace of Tankerness]

As things stand, it probably would have to be by primary legislation. It might be a very simple Bill, but I think in trying to be too prescriptive at this point you could run into difficulty. As I have said, there may well be circumstances in which the early election, should it occur, would nevertheless be one in which the actual scheduled date would still fit in quite readily and allow a reasonable time for the political parties and electoral administrators to make the necessary arrangements. That is why I do not think we can predict what is going to happen and it is better to leave it to the future—to see whether it would in fact be necessary—in the belief, and indeed the knowledge, that even under the present system, without anything further, we are likely to be fighting elections on more up-to-date electoral rolls than was ever possible prior to the passage of the 2011 Act.

[Lord Howarth of Newport]

My Lords, I am not at all surprised to be advised that my amendment is defective, as these are indeed knotty matters, and it takes specialists to formulate legislation to get it right. However, if the Government think—and I have much sympathy with that point of view—that it is desirable to align the boundary reviews with the cycle of elections, maybe they would go back and think a little bit further about this and see whether they can find a better means to do it. I do not think that the Minister’s optimism that primary legislation from time to time in Parliament to get the relationship back in to a reasonable synchronicity would be straightforward, because whenever Parliament debates boundary review matters, a lot of Members become intensely interested in that and these proceedings are never very short or straightforward. If the Government wish to hold consistently to the principle they articulated in the Parliamentary Voting System and Constituencies Bill, I hope they will go back and do some more work on this. In the mean time, I beg leave to withdraw the amendment.

Amendment 49 withdrawn.

Amendment 50

Moved by

[Lord Cormack]

50: Clause 2, leave out Clause 2 and insert the following new Clause—
“Early parliamentary general elections
(1) An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government.
(2) A vote of no confidence will have been deemed to have been passed if the House of Commons—
(a) passes an amendment to the motion thanking Her Majesty for the Gracious Speech which would have the effect of negating it;(b) denies a second or third reading to a Finance Bill or any Bill defined by the Prime Minister of the day as being essential to his or her administration continuing in office;(c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition; or(d) defeats a motion of confidence tabled by the Prime Minister.(3) If the provisions of subsection (2) are met, the Speaker of the House of Commons will issue a certificate to certify this.
(4) A certificate under this section is conclusive for all purposes.”

[Lord Cormack]

My Lords, I am delighted to be able to move this amendment. I have listened with great care to all the debates today on Clause 2 and, as I have listened, I have become more and more convinced of two things: first, that there are tremendous advantages in having an unwritten, flexible constitution; secondly, that Clause 2 is, frankly, incapable of proper improvement and should be deleted and replaced by something else. It is in that spirit that I have tabled this amendment, ably supported by—and I am most grateful to them—the noble Lords, Lord Armstrong and Lord Norton of Louth, and the noble and learned Lord, Lord Howe of Aberavon, all three of them constitutional experts of great eminence. We all feel very strongly not that this amendment is necessarily perfect in every particular but that it offers a better and clearer approach to a problem that the Government themselves acknowledge needs to be addressed.

The Government feel there must be an escape clause in the Fixed-term Parliaments Bill. If we are to have a Fixed-term Parliaments Bill—and again I have become more and more convinced that we really do not need one—then the escape clause must be clear, simple, understandable, not capable of misinterpretation and, in the light of that very interesting debate that we had shortly before the dinner break, not something that places the Speaker of the day in an intolerable position. I am attempting in this amendment to clarify and simplify, and to remove the Speaker from that invidious position about which the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, spoke so eloquently.

I am trying with this amendment to define a vote of no confidence. The noble Lord, Lord Norton of Louth, has already referred in the earlier debate that we had just a few moments ago to the fact that in the Parliament Act there is a clear definition of a money Bill. He asked very sensibly why, if the Government are picking, they do not have, as a precedent, both the Deputy Speaker provision and the definition. Why did they choose the one and not the other? My noble friend the Minister has already in a number of remarks today given me some quiet encouragement, and I hope that that will be confirmed when he replies to this debate because he has indicated that there is merit in having a definition of a no-confidence Motion.

I have sought here to list the occasions on which there clearly would be an issue in the House of Commons where the Government of the day had forfeited the confidence of the other place. The first is if the House of Commons,

“passes an amendment to the motion thanking Her Majesty for the Gracious Speech which would have the effect of negating it”.

I believe that that particular provisional clause could be slightly improved in the light of what we have said earlier today. Maybe we should say, “In the second or later Session of a Parliament”, because I accept that if a Government have not had any programme and their Queen’s Speech is rejected within weeks of the election, that is slightly different, as it was in 1924. However, if the Government have been in power, have governed for a Session on the Queen’s Speech, and lose the confidence at any time, there can surely be no doubt that that is an absolute rejection of them.

Secondly, if the House of Commons,

“denies a second or third reading to a Finance Bill”,

no Government can continue. My noble friend Lord Forsyth referred earlier today to the prime function of the other place to grant supply. If they are not in a position to do that, the Government of the day cannot continue to provide the government. It is therefore self-evident that if a Finance Bill is rejected on Second or Third Reading, there really can be no future for that Government.

I have also put into proposed new subsection (2)(b) in the amendment,

“any Bill defined by the Prime Minister of the day as being essential to his or her administration continuing in office”.

At Second Reading a number of noble Lords referred to Mr Edward Heath saying at the time of the Bill that took this country into what was then the Common Market that if that Bill was rejected at Second Reading his Government could not continue. Every Government have a flagship Bill, and if they lose on it they really cannot continue in office. Again, that is generally self-evident.

Then, if the House of Commons passes,

“a motion of no confidence tabled by the Leader of Her Majesty’s Opposition”,

and if that sort of Motion is carried, it is clear that Members on the government side, or Members who normally support the Government, have withdrawn their support. Many of us in the debates on the Bill have referred to March 1979, the defeat of the then Labour Government led by James Callaghan, and his exceptionally dignified conduct in defeat. His words have been quoted yet again today. He said that his Government had lost the confidence of the House and must now take their case to the country. It was clear cut, it was simple and everyone understood it.

The case is similar if the House of Commons,

“defeats a motion of confidence tabled by the Prime Minister”.

Many of us will remember that John Major tabled a Motion of confidence in his Government. However, it was carried, so the Government carried on. Had it been defeated, they could not have carried on.

If we seek to have a definition of a vote of no confidence along these lines, we are improving this Bill very considerably. How undignified is all this business of having 14 days in which to scrabble around to try to save a Government who have clearly become discredited in the eyes of Members of the House of Commons. Then there is the business of the two-thirds majority of the Members of the House of Commons, not of those who vote. In a House of 600, as it probably will be after the next general election, 400 have to vote. At Second Reading, in a very amusing and wry speech, the noble Lord, Lord McAvoy, said in effect that the Whips have means of making you vote. Of course, he knows that better than most people; he practised the dark arts with a consummate artistry that has rarely been rivalled. If in March 1979, after the Government had lost by one vote, there had been a period following that, I doubt very much whether a few would not have changed their minds, either when being offered inducements or maybe even by being not so gently threatened. The noble Lord is laughing in assent; he knows that that is the case. We all know that these things can happen.

Those of us who were there in March 1979, on the very rare occasion of a Government being defeated, on a vote of no confidence, all know what happened. I referred to it in my maiden speech. We had the wonderful spectacle of Frank Maguire coming to abstain in person. We know that the Welsh and the Scottish nationalists, disgruntled with the Government following the devolution votes, were not going to support them. I am delighted to see my noble friend—and I call him that deliberately—Lord Wigley on the Benches over there, because he remembers that as well as I.

[Lord Wigley]

I am very grateful to the noble Lord. On that occasion, he is right to say that my Scottish friends voted against the Government but, after concessions on pneumoconiosis, we were persuaded to support the Government. Those are examples of what happens in such circumstances.

[Lord Cormack]

I am deeply grateful both for the correction and for the explicit example. Of course, we all know, too, that the Ulster Unionists voted both ways, because they did not want to be seen either to have propped up an unpopular Government or to have defeated a Government who had given concessions in Northern Ireland. All these things can happen.

A clear-cut defeat followed by the dignified recognition of that defeat and taking the case to the country is how we do it in the United Kingdom and it is how we should continue to do it.

In proposed new subsections (3) and (4) in this amendment, I say:

“If the provisions of subsection (2) are met, the Speaker of the House of Commons will issue a certificate to certify this”.

This is not a discretionary thing; it is on a par with the money resolutions. I took clerkly advice when I was drafting this amendment and was assured that this provision would in no sense place the Speaker in an invidious or difficult position. The Speaker of the day would have no choice other than to sign the piece of paper. The noble Lord, Lord Howarth, has an amendment to delete subsections (3) and (4) in my amendment, but while I admire his vigilance I do not think that the deletion is necessary, because the Speaker is not being put into a difficult or invidious position.

[Lord Forsyth of Drumlean]

Can my noble friend help me if I ask the same question that I asked of my noble friend on the Front Bench? Why is the Speaker’s certificate necessary?

[Lord Cormack]

I was advised by the clerks that this would be the tidy way of doing it—the certificate is issued, it is automatic and it would be expected. However, I am not desperately wedded to this proposal. What is truly important is the first part of the proposed new clause, subsections (1) and (2). I was merely saying that proposed new subsections (3) and (4) do not place the Speaker in the same invidious position that the provisions that we were debating earlier today do. I hope that your Lordships’ House will feel that this clause or something very similar—because, as I said, it is not perfect—would be a vast improvement on what we have, which is complicated, convoluted and thoroughly unnecessary.

If we are to have a Fixed-term Parliaments Bill, it is the duty of this House to try to ensure that it is as compatible with our constitutional arrangements in this country as it can be. Many of us feel that all that was really needed was a declaration of intent to serve until May 2015. I, for one, applaud that declaration of intent. However, if it is to be given legislative form, for whatever reason, let it be a legislative form that is both comprehensive and comprehensible; let it be a legislative form that people can understand in both Houses and in the country beyond. Do not let us connive in any arrangements that would allow a discredited Government to indulge in endless days of horse-trading to try to sustain themselves in office. Do not let us give to those who might practise the dark arts of sinister persuasion a power to redress a vote that the House of Commons has already passed. I beg to move.



Amendment 51 (to Amendment 50)

Moved by

[Lord Howarth of Newport]

51: Clause 2, line 15, leave out subsections (3) and (4)

[Lord Howarth of Newport]

My Lords, my amendment to the new clause tabled by the noble Lord, Lord Cormack, and his very distinguished co-signatories would delete subsections (3) and (4) of his new clause, which require the Speaker to issue a certificate and assert that the Speaker’s certificate shall be conclusive.

I have three grounds for proposing to the Committee that we should delete these provisions. There is the difficulty of defining a vote of confidence or of no confidence. The noble Lords’ new clause goes some way to achieving this but I do not think that it is the whole story. Notwithstanding the reassurance that the noble Lord, Lord Cormack, just offered, I believe that there is a risk to the Speaker that he would be placed in a damagingly contentious role. There is the risk of intrusion by the courts into parliamentary proceedings, which we debated very fully on Amendment 42, and I do not propose to say any more about that in this debate. I do question the wisdom of the attempt, made with the very best of intentions by the noble Lord, Lord Cormack, and his co-signatories, to specify and define in this new clause the varieties of no confidence vote that there could be. I fear that the more we try to write down the constitution, the more specific and detailed we need to be. We shall be chasing our own tails in more and more circles, yet the task is impossible to accomplish.

I do think that the new clause is an improvement on what the Government have provided in Clause 2. The Government’s Clause 2 is vague. It appears to elide a no-confidence motion with a confidence motion. My noble friend Lady Jay asked Mr Mark Harper, when he was before the Select Committee, whether votes in various circumstances could be confidence or no-confidence votes. The Minister replied:

“I think the intention is that the Bill would encompass those examples”.

Yet the Government’s drafting does not make it clear, for example, whether a defeat on a motion or an issue of confidence would count as a vote of no confidence.

The conventional no-confidence vote is entirely obvious. It is what it says on the tin:

“That this House has no confidence in Her Majesty’s Government”.

No problem would arise with that variety of no-confidence vote, but after that it gets harder. There is an excellent note on confidence motions and votes provided by the House of Commons Library, which I commend to everybody. It says that,

“despite their central importance, there is no certainty about the rules on the form and applicability of confidence motions in the UK Parliament, as it is established by convention rather than by statute or standing order of the House”.

The note goes on:

“Broadly speaking there are three main types of motion which act as tests of the House of Commons’ confidence in the Government: ‘confidence motions’ initiated by the Government; ‘no confidence motions’ initiated by the Opposition; and other motions where because of the particular circumstances can be regarded as motions of censure or confidence … There is no standard formulation for confidence motions”.

Apart from motions of confidence and of no confidence, there are,

“Other motions put down by the Government or the Opposition treated by the Government (whether expressly declared as such or not) as, or because of the particular circumstances can be regarded as, motions of censure or confidence”.

Examples of all the motions and votes of confidence that have taken place over a long period—the whole of the 20th century, I think—are described in that brief. There were, for example, substantive motions of no confidence during the Suez crisis. On 1 November 1956 the Prime Minister, Mr Eden, spoke but the leader of the Opposition, Mr Gaitskell, did not, so you cannot necessarily define a motion of no confidence in the terms that the party leaders speak on it. In the debate on 5 and 6 December of that year, Mr Gaitskell spoke but Mr Eden did not—admittedly, because he was ill and unable to do so. On a much earlier occasion, there was a motion in 1895 to reduce the salary of the Secretary of State for War which led, after a short delay, to the resignation of the Rosebery Government.

There have also been motions to adjourn. On 11 March 1976, following the defeat of the Government on its public expenditure White Paper Mr Wilson, the Prime Minister, did not take defeat on that matter of central importance to the Government’s programme as a vote of no confidence. He used a vote on the adjournment the next day as a device to avert his resignation and during the course of that Parliament of October 1974 to 1979 Mr Wilson, in very specific terms, narrowed the interpretation of confidence motions. He advised the House that the Government would only regard a motion as a confidence motion if every Member was aware in advance of the vote that that was its status. It was as well for him and the Labour Government that they did, because they were defeated 17 times in the short 1974 Parliament and 42 times in the October 1974 to 1979 Parliament.

Practice has evolved and there is not a set orthodoxy in these matters. Previously, historic Governments accepted defeats on major policy items as votes of no confidence. Yet how assured can we now be when it is now the case that only votes specifically stated by the Government to be matters of confidence or by the Opposition to be matters of no confidence count? I think that is the latter-day view.

The Clerk of the House of Commons, giving evidence to the Political and Constitutional Reform Committee, said:

“I think that what is a confidence motion—other than the very straightforward one, ‘There is no confidence in Her Majesty’s Government’—is an ambiguous matter”.

Would not votes on intensely controversial issues such as tuition fees and going to war now be widely regarded by the public as confidence votes, and perhaps the more so with coalitions?

The tendency in our politics appears to be that we shall have more coalitions because of the declining proportion of the vote for the major parties. Certainly, if we get the alternative vote, it seems likely that we will have more coalitions and more minority Governments. At the same time, we are very properly encouraging increased public engagement with and accountability of Parliament. Petitions submitted by members of the public may in certain circumstances now be debated in Parliament in a way that they never were before. The Government are about to introduce legislation to provide for the recall of Members of Parliament.

In these new developing political and constitutional circumstances, can we not expect that the public will take a very much closer interest and that they will not necessarily be content to leave it to the party leaders or the traditional authorities to define a confidence motion? In these much more confused circumstances that I think we can reasonably anticipate, is it fair and sensible to legislate to require the Speaker to adjudicate on whether a particular vote will be, is or has been a vote of no confidence or, indeed, of confidence?

21:46

[Lord Forsyth of Drumlean]

Perhaps I have this wrong, but my understanding of the present position is that the Government may be defeated on a serious matter such as whether to go to war and may take the view that it is not a confidence motion. However, in such circumstances, the leader of the Opposition would table a confidence motion, which takes precedence over all business. If there is an argument about whether the issue is a confidence motion, it is up to the Opposition to bring forward a confidence motion on which there will be a vote, so why is this such a big problem?

[Lord Howarth of Newport]

I would very much like to be comforted by the noble Lord’s suggestion, but we are in an evolving state of affairs. I am not as confident as he is that the traditional formulations and conventions will necessarily be the only ones that the public will find acceptable in the future.

We have to think of what the role of the Speaker will be when it is contentious whether a particular vote may have this status. Let us imagine what would have happened if the Speaker had been required to issue a certificate as to whether, on 18 March 2003, the House of Commons had passed a motion of no confidence in Mr Blair’s Government, had that Government been defeated in the vote on the Iraq war. Mr Blair said later that he regarded that vote as a confidence vote, and that had he been defeated he would have resigned. How could the Speaker have certified in advance in those circumstances when the Prime Minister himself had not made it clear in advance that that was to be a confidence motion?

However, that is what the Minister, Mr Harper, confidently expects would happen. He said to the Constitution Committee:

“Our view is 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”.

[Lord Cormack]

The noble Lord is repeating the earlier debate because in this new clause the Speaker does not have that discretion. He may say that what I have put in is superfluous to requirements, but nevertheless it is not a question of putting the Speaker in the invidious position of having to determine the matter because, if one of those conditions is fulfilled, the Speaker has no option.

[Lord Howarth of Newport]

The noble Lord is assuming that all the circumstances that he has specified in the four categories that he has set out in his subsection (2) would be the only circumstances that would be regarded as a vote of confidence. Subsection (2) states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons”,

passes amendments in the various terms set out. I am suggesting that, in political reality, there may be other votes which are not included in his survey of the possibilities but which would be regarded as votes of confidence.

The situation in March 2003, had the Government been defeated, illustrates the point quite well. I do not see how, as the Government expect, the Speaker could have certified that in advance, nor am I sure that the Prime Minister would have said in plain terms there and then when the result was announced that he treated it as a confidence matter. If he had not, was the Speaker to make a judgment there and then and certify that the Government had lost the confidence of the House, or perhaps some time later was he to issue a certificate that would have had the effect of bringing down the Government? It seems that the Bill as drafted leaves open these possibilities. I am not entirely confident that that would be avoided if it were amended by the noble Lord’s proposed new clause.

[Lord Cormack]

However, the amendment removes the existing Clause 2. I agree with the noble Lord that that should be removed and that the Speaker should not be put in that position. However, my new clause, imperfect as it may be in other respects, would not put him in that position.

[Lord Howarth of Newport]

If the provisions of subsection (2) in the noble Lord’s new clause are met, the Speaker is required to issue a certificate to certify that. Therefore, it seems that the certification requirements in the new clause are closely similar to, if not the same as, those already in the Bill. The merit of the noble Lord’s new clause is that it makes a brave attempt to define what would be motions of no confidence.

Let us take the case of Libya. The House of Commons voted with a very large majority to support military intervention in Libya. However, let us suppose that the intervention drags on, that the mood of the country turns sour, that sentiment in the country becomes as hostile to our military engagement with Libya as it has in relation to Iraq and Afghanistan, and that in due course the Government are defeated on a motion relating to the continuation of military engagement with Libya. Mr Cameron insists that it is not a confidence motion and Mr Miliband insists that it is. Is the Speaker to be required to adjudicate between the two of them? Is he to be required to umpire? In another circumstance, which the Committee has certainly recognised could occur under the legislation as the Government have produced it, what is the Speaker to do if the Government engineer a vote of no confidence? Is he to collude with the Government in that process?

Speakers of the House of Commons have to be sturdy people—they are always being shot at—but is it reasonable or realistic to expect such preternatural wisdom, courage and authority on the part of the Speaker if he is placed in what will inevitably be this very invidious position? That was certainly the view of the former Speaker, the noble Baroness, Lady Boothroyd, who spoke in our previous debate. I have not only great respect but personal affection for Mr Speaker Bercow, but can we assume that every future Speaker will have this wisdom, courage and authority? I think that laws and institutions are best not predicated on an assumption of individual perfection. Even if the Speaker is such a paragon of all the relevant virtues, I think that the burden that certification places on him is excessive. A decision taken by the Speaker in the best of conscience could still be so contentious that it would damage the authority of the office of the Speaker. How would an individual Speaker who issued a certificate that was contested by the defeated party and resented by that party and its supporters in the country ever recover his personal authority?

I suggest that another consideration is that, if a certificate is issued in advance, as the Government advocate and foresee, that process will in effect pressurise Back-Benchers to rally to their party Whip. The Speaker, contrary to the role that we expect of him, would in effect be suppressing Back-Bench discontent. He would be suppressing the honest expression of individual views on great issues that the House was considering. He would be acting as a recruiting sergeant for the Whips. The Constitution Committee went some way towards recognising that. It foresaw a temptation for a Government in a position of political weakness to press the Speaker to certify that minor issues, or issues that were controversial within the party that came to the vote, were votes of confidence.

The Government assert that there is nothing new in the provisions. In their response to the Select Committee in the other place they talked of the traditional mechanism of no confidence motions and foresaw it as being straightforward. But creating legal consequences of no-confidence motions is new and potentially very important. As to the position of the Speaker, as we have noted, the Parliament Act requires certificates to be issued in quite different circumstances, as does the freedom of information legislation.

This Bill, as presented by the Government, places the Speaker in a new constitutional role which risks being highly politicised and which I believe will have disastrous implications. This all arises out of the Government’s desire to create escape hatches from the trap that fixed-term Parliaments create. It is one more instance of the dangers of making constitutional legislation in a hurry. If we damage the Speaker, who personifies Parliament, more than ever in an age of broadcasting, to the people and the world, we damage Parliament, and the reputation of Parliament is fragile. I do not think that we need this legislation. The evolving conventions have worked well, as they did in 1979. The House of Commons knows an issue of confidence when it faces it and knows how to deal with it, but an issue of confidence depends on the political context; it cannot be defined in advance. At least let us not put the Speaker in an impossible and damaging position.

[Lord Howe of Aberavon]

My Lords, I have listened to the discussions today—and indeed on this subject—with anything but joy in my heart. I have been struck by the contribution that this Bill is making to the pile of legislation that this coalition Government have already brought to Parliament and which we are still ploughing through. The Attlee Government at one time had the record for the number of Bill pages in legislation presented in one year—2,288. I am sorry to say that the Thatcher Government some years later outstripped that with 2,581. My fear is that the present Administration may well be running well ahead of that. It is not only for that reason that I am very unenthusiastic about the Bill—all the more so when I see the problems that we are now getting deeper and deeper into.

I shall comment on those quickly. I respect the extent to which the noble Lord, Lord Howarth, has taken part in well considered detail in all the discussions. However, his last point does not take account of the fact that the proposed new clause moved by my noble friend Lord Cormack specifies in clear terms that the provisions are beyond doubt to be recognised as no-confidence motions. Moreover, they are so cast that they do not impose any real burden of judgment on the Speaker at all. He is certifying something that is as plain as a pikestaff as already set out. Even so, I commend the provisions in the proposed new clause as being better than those in the Bill, but I wonder whether we need to be going through any of this at all. The attempt to define in detail what it has to fulfil reminds me of the task of definition and how difficult that is. It is now 15 years since I chaired the steering committee of the Tax Law Rewrite Project. We were engaged in the task of rewriting, reclassifying and redefining almost everything on the existing tax statute book. I know from that experience how harsh it is.

We really need not put ourselves into this morass. The impact of the no-confidence motion has always been recognised. I cannot think of a past example in which somebody has repudiated the attempt to dissolve a Parliament because of the passage of a no-confidence resolution. You can sometimes get into great mistakes by trying to define too much in too much detail too often. I have no enthusiasm for the fixed-term Parliament proposition, but, if we have it, I do not see the need for this kind of detailed definition. Let me go one stage further back. We have survived many decades and a whole series of varying circumstances, but without any equivalent of the fixed-term Parliament provision. On different occasions, the Prime Minister, the nation and Parliament have had to make up their own minds as to whether the circumstances being exercised or exploited have been properly reacted to. This has worked.

22:00

I hope that I may not astonish the House still further by drawing attention to a completely different episode in my past. I found myself in Mumbai in the Indian state of Maharashtra at a time when the governor—who most of us will know—was considering the circumstances in which he would choose the winner of the next election. The situation that he faced was not a two-party competition, but a three-party competition, between the Congress Party, the BJP and a third party which was operating in semi-partnership with the BJP. He had to decide on what basis a victory was to be judged and which of the winners he was to invite to form the next Government if it came to that. The point is that he spent an entire evening with me discussing the precedents facing Her Majesty in the 19th century in handling quarrels between the two major parties and the Irish as the third party. He found his study of those precedents valuable in guiding him to judge what might or might not emerge.

It is easy to laugh and ask, “What on earth is Lord Howe up to, asking us to apply our attention to Indian constitutional precedents?”. However, it is a serious point; the governor was building upon the experience that has enabled us to recognise a decision of no confidence. It is more clearly specified in the amendment proposed by the noble Lord, Lord Cormack. However, I doubt we need any of it at all. I doubt whether we need to have a fixed-term Parliament. It might be a security guarantee for a coalition, which we are not very accustomed to. I cannot now invite us to revisit the Second Reading of this Bill. It is here. We have to try to keep it as simple and as straightforward as possible and to that extent the amendment proposed by my noble friend Lord Cormack is better than the alternative. I am not very happy with either of them. However, I do not think that we will gain much profit by examining the detail to that extent.

As the noble and learned Lord, Lord Falconer, pointed out, conventions can be very valuable. Conventions enable us to decide which way in the end to go, in the light of our past experiences. I suggest we approach this much more safely and wisely upon the basis of conventional judgments in the light of our experience as parliamentarians over a very long period. It is upon that basis that I do not have much enthusiasm for any of the provisions in this Bill. The one to which my name is attached—though not much of a qualification —is the most sensible so far. Upon that basis I commend it as being the least unattractive of what we have before us.

[Lord Armstrong of Ilminster]

My Lords, I have put my name to this proposed new clause because it provides greater clarity and certainty than Clause 2 in its present form. It defines clearly and unambiguously what constitutes a vote of confidence in the other place for the purposes of this legislation. It is not a total definition of all votes of confidence but of what would constitute a vote of confidence for the purposes of triggering an early parliamentary election. It may not be perfect, but I think it is a very good shot at that. It provides the additional safeguard of a certificate by the Speaker that a vote is indeed a vote of confidence within the meaning of the Act, but I hear the noble Lord, Lord Howarth, on that subject, and we can consider whether that needs to be retained, as the noble Lord, Lord Cormack, suggested.

This proposed new clause also specifies clearly the consequence that is to follow the defeat on a vote of confidence, as defined, in the Government in another place: that there is to be an early and immediate parliamentary general election. It does not provide, as the existing Clause 2 would provide, for a cooling-off period of a fortnight between the vote and the decision to dissolve Parliament and hold an election. That seems to me an improvement, not a weakness, as compared with the provision in the Bill. That fortnight would be, as has been pointed out, a period of prolonged political uncertainty, not to say crisis, and of paralysis in government, which would be better avoided.

I suppose that that provision is intended to allow for the possibility that after a defeat on a vote of confidence a new Administration might be formed, perhaps under a different Prime Minister, which could carry on government without the need for a general election. I suggest that this possibility is more theoretical than real. In real life, if a Government were faced with the prospect of a vote of confidence, the loss of which would certainly trigger a dissolution of Parliament and a new election, they would do their utmost to try to ensure that they did not lose the vote. If they failed to do so, it would be clear enough that a Government who had lost a vote of confidence as defined had run out of time and political credit to such an extent that the only realistic remedy for the problem would be a Government with a new electoral mandate.

As the noble Lord, Lord Cormack, has suggested, the drafting of this amendment could well be improved or tidied up in various ways by further consideration and refinement but, for the reasons I have indicated, it seems to me that a new Clause 2 to the effect proposed by this amendment would be a marked and useful improvement to the Bill, if we have to have the Bill.

[Lord Tyler]

My Lords, the authors of this amendment are so distinguished that I speak with even more trepidation than usual. They have shown characteristic confidence in proposing a complete removal of Clause 2 and its replacement with their own model. However, I suggest to the Committee that their self-confidence may in this case be misplaced.

The Bill, if we are entirely candid, does not fix parliamentary terms; it codifies how long they should last, but also provides for them to be foreshortened in very specific circumstances with very specific safeguards, and it is those safeguards that we are looking at this evening. Indeed, for all the debate in this House about how a simple majority vote of confidence should precipitate an election, the Bill already has, just about, that provision in it, albeit with a 14-day government-formation period, referred to by the noble Lord as a cooling-off period. I think it is actually going to be a hotting-up period if the media are camped on the green outside waiting to see what is going to happen.

I suggest that if we were to accept Amendment 50, we would be going even further in negating the principle of a fixed-term Parliament. That may be what some Members wish to do, but it is not, I think, the view of the Official Opposition, nor is it the position of the Government.

There are several veterans in your Lordships’ House of the long debates about the Maastricht treaty. Therefore, I want to draw the attention of the Committee to the way in which that was handled in the other place. I happened at that stage to be largely on the side of the Government. There was a sort of informal Lib Dem/Conservative alliance but there were also many people on the Conservative Party Back Benches who were opposed, in principle, to the Bill. That was a matter of policy but it was turned into a matter of confidence in the Government. Philip Stephens, a distinguished Financial Times columnist, wrote subsequently that,

“the rebels understood the choice was between supporting ratification of Maastricht and certain defeat at a general election four weeks later. Major won the confidence vote comfortably”.

In those circumstances, MPs were effectively circumscribed in their judgment by virtue of a prime ministerial power to make MPs choose between incumbency and defeat.

Amendment 50 codifies that power in proposed new subsection (2)(b), suborning matters of controversial policy to raw short-term political objectives. That same subsection also sets up a lawyer’s paradise. I am not a lawyer, but from the legal advice that I have been given the amendment is more likely to be justiciable, for reasons that I will come to in a moment, than the situation previously described very eloquently by two distinguished former Speakers, because it is about a Prime Minister’s entirely subjective definition of a Bill,

“being essential to his or her administration continuing in office”.

That is a sort of papal absolute, which could be questionable in court or subject to judicial review—a point to which I will come back—because that is an executive decision. It is not the decision of the Speaker of the House of Commons. It is the decision of a Minister in a political role in an executive position. At the time of Maastricht, the Major Government could have continued in office without the Maastricht treaty. They would have lurched even more absurdly from crisis to crisis if they had but they could have survived.

Why and how should a Prime Minister—the very person from whom the whole point of the Bill is to remove that absolute power—be accorded an absolute right to define those Bills which he or she thinks should be the subject of this provision? Why would not a Prime Minister use it for every substantial piece of legislation?

It seems to me that the provisions of this amendment could encourage unnecessary brinkmanship when there are perfectly legitimate disagreements, whether they are among coalition parties or within majority Governments, which we all know are coalitions anyway. I invite your Lordships to look carefully at the amendment in the names of my noble friends Lord Cormack and Lord Norton of Louth, my noble and learned friend Lord Howe of Aberavon, and the noble Lord, Lord Armstrong of Ilminster. My noble friend Lord Cormack was very fair in saying that he thought that it could be improved but proposed new subsection (2)(a) and (b) would give extraordinary executive opportunity to the Prime Minister of the day. It might remove from the Speaker the invidious role that was described earlier so eloquently by the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, but it could create in its own way even more difficult circumstances.

Let us suppose that the Prime Minister of the day, under proposed new subsection (2)(b), decides that a particular Bill and a vote on that Bill is essential to his or her Administration continuing in office. Under the amendment as it stands, the Speaker would have to specify that to be the case. I agree with the noble Lord, Lord Howarth, on the fact that the Speaker would have to specify that that was the case—that the Prime Minister had said it, so it is the case. But that decision of the Prime Minister of course could be subject to judicial review, perhaps several days after the Speaker’s certification. What situation does that place the Speaker in? It is not his decision that has been challenged. It is the decision of the Prime Minister. Nevertheless it puts the Speaker in an extremely invidious position. Unfortunately, the noble Baroness is no longer in her customary seat but the strictures that were being applied earlier to your Lordships’ House in terms of putting the Speaker in an invidious position would be even worse under this amendment.

22:15

[Lord Cormack]

Who is going to challenge the decision of the Prime Minister? Will it be the Leader of the Opposition? Will it be one of his own supporters? If the Prime Minister has come to the conclusion that particular legislation is essential to the Government’s survival, it is hardly likely that he will be taken to court over that.

[Lord Tyler]

I do not agree with the noble Lord. There are people who will always want to subject the decisions of a Prime Minister to judicial review. As I understand it from the legal advice that I have received, such applications are much more likely to be considered by a court and to take time. That is the situation described earlier in the Committee. I hope that everyone will accept that the certification by the Speaker is a parliamentary act, but the executive, political decision of a Prime Minister to say that he or she considers a particular Bill to be a matter of confidence is open to much greater interpretation by the courts.

The noble and learned Lord, Lord Falconer of Thoroton, quite rightly said earlier that we should avoid artificial certainty of definition. I fear that that is precisely what the distinguished authors of the amendment have produced. For example, how many parliamentary Questions would be tabled along the following lines: “Will the Prime Minister define the Miscellaneous Provisions Bill as essential to his continuing in office under Section 2(2)(b) of the Fixed-term Parliaments Act?”. Would the Prime Minister always say no? What would he say? There could be endless entertainment in the other place on this position.

I am sure that the amendment is well intentioned but it will take us down a dangerous route. I accept what the noble Lord, Lord Howarth, says about the subsequent decision of the Speaker following such a decision by the Prime Minister in an attempt to force a vote of confidence, but I still think that the amendment, with or without his subsequent amendment, is extremely damaging and potentially dangerous.

I noted what my noble and learned friend Lord Howe said about not being particularly enthusiastic about the amendment to which he had put his name, any more than he was about the Government’s position. I accept that there is some lack of enthusiasm for the amendment, even by its authors, but it is a dangerous route for us to take. It would be justiciable and challenged in the courts—and that would be extremely dangerous.

I and my colleagues have put forward an alternative which is a great deal simpler. It is that rather than trying to codify the status quo, as the amendment attempts to do, we should have one specific rule—that the Motion of no confidence should be tabled by the Leader of Her Majesty’s Opposition. It is difficult to think of any circumstance—even when the second and third parties are of comparable size—when the Leader of Her Majesty’s Opposition would not in practice have to table that Motion. It would be so firm and clear that it would ensure that Governments could not use such a vote as a way of cutting and running early. That is one of the key purposes of the Bill. The cut-and-run tendency is not good for the governance of our country, but we have seen it happen in the past.

The amendment undermines the purpose of and hollows out what is an already modest Bill. Some noble Lords on these Benches, and perhaps in other parts of the House, think that the fixed term should be even firmer than it is under the Bill—after all, it operates perfectly well in the United States. The Bill is already a compromise from that position; I suggest there is no need to compromise it further.

[Lord McAvoy]

The noble and learned Lord, Lord Howe of Aberavon, has described better than I ever could the Alice in Wonderland nature of the debate. I can understand my noble friend Lord Howarth of Newport picking credible holes in the amendment brought forward by the noble Lord, Lord Cormack, and it is certainly easy for the noble Lord, Lord Tyler, to do so.

We are holding this debate against a background of a Bill which is unnatural and is opposed by an overwhelming majority of Members of this House. A party which lost seats in the previous general election is blackmailing its partners in a coalition to accept constitutional change. We shall all end up being twisted and contorted by trying to take part in a debate on a Bill which is utterly flawed and goes against the natural flow of political events in this country. It is easy to criticise, but we are taking part in a debate on a Bill which is a strange and unnatural beast in British politics.

The noble Lord, Lord Cormack, has tried within the context of that debate to play the constructive, revising role that people in this House look for and to make the Bill better. I do not think that he supports the Fixed-term Parliaments Bill, but we have got it in front of us and it is what he is trying to improve.

Subsection (2) of the proposed new clause outlines the instances in which a vote of no confidence will be deemed to have been passed. They would amount to votes of confidence anyway. They are issues where, if a vote goes against the Government, Parliament is entitled to pass a vote of no confidence; that is the new world. Paragraph (b) states,

“denies a second or third reading to a Finance Bill”.

We all know that a Government need a Finance Bill to be passed. I take the point about a Prime Minister defining it, but that is his or her judgment as the Prime Minister of the country. Paragraphs (c) and (d) state,

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition; or … defeats a motion of confidence tabled by the Prime Minister”.

The noble Lord, Lord Cormack, is using real life to bring forward instances which determine whether there is a general election in this country. I, too, was in another place at the time of Maastricht. It is not the first time that people have combined in quite such dishonourable—in some ways—alliances.

I presume that the noble Lord, Lord Tyler, supported the 14-day provision. I think that the noble Lord, Lord Cormack—I had better not call him my noble friend for the purpose of this debate—was paying me compliments in talking about black arts and sinister persuasions. That 14 days would allow all sorts of things to take place. There would definitely be no physical violence, but imagine the sheer pressure that you can generate by being able to say to somebody that you hold in your hand the power to determine whether, in my case, a Labour Government fall, or a Conservative Government, in the case of other people.

This is really nonsense, but we are all being forced to discuss it because we are being led by the nose—I hesitate to say anything that would upset or insult noble Lords on the Conservative Benches—by a comparatively small group of people, the Liberal group, who are hell bent on changing the constitution of this country. They are tinkering with it and coming up with all sorts of ill thought-out, ill advised and quite nonsensical proposals. In the likes of the noble Lords, Lord Norton of Louth and Lord Cormack, and my noble friend Lord Grocott, we have people here who are prepared to listen to ideas for change but to take the best of this place to keep it going. We are in an unnatural situation where we are all discussing something which we know is not right and not practical.

I was particularly struck by a phrase used by the noble Lord, Lord Cormack, which was that he was trying to get a comprehensible Bill. That sounds to me like common sense. As long as we are forced to discuss a Bill such as this, we will all come forward with positions that we do not really believe in or like in a vain attempt to make a better Bill. We know full well in our heart of hearts that a majority of people in this House know that the Bill is nonsense; but as long as we are prepared to discuss in an Alice in Wonderland way, we can pick holes in reasonable suggestions.

[Lord Martin of Springburn]

I am very interested in the amendment and agree a great deal with the noble Lords, Lord Cormack and Lord Armstrong, and the noble and learned Lord, Lord Howe. A common argument put here is that we did not need a Fixed-term Parliaments Bill. I come from engineering. My foreman used to say, “Michael, if it works, do not fix it; do not touch it”. There is nothing to stop the present Administration, the alliance, going for five years if they want to; but, as others have said, we are past that point now. I remember when the Labour Party decided that it would have mandatory reselection of MPs and that was made part of its constitution. We were warned that if you kick a ball into the constitution park, it can roll in many ways. That is what we are seeing here, when we do not need a change. Now people are attempting to fix it by ensuring that the legislation is watertight.

On the idea of a Speaker signing a certificate, the fact is that every decision of the House of Commons is then put in the Journal of the House. There is a dedicated Clerk to the Journal who makes sure that the Journal records the decisions of the other place and of this place. Perhaps the legislation should have a mechanism whereby someone would be presented with the Journal, which, as the noble Lord, Lord Forsyth, said, stated that a decision had been made by a two-thirds majority or that a vote of no confidence had been carried.

I think that it is on the steps of the Mansion House that someone comes out to say, “Hear ye, hear ye, hear ye”—there is going to be a general election. There is a delay while it goes up to Edinburgh because in the old days, someone went by horse and the announcement was made in Edinburgh a bit later—a lovely tradition. If I had my way, I would rather that that certificate did not have to be issued by the Speaker. It is different with Money Resolutions and other matters that the Speaker has to deal with.

I would rather that the provision be left out; if it is to be left in, I would rather that subsections (2)(a) and (b) be left out, because, as the noble Lord, Lord Cormack, said, what would happen if the gracious Speech was defeated and negated by a brand-new Government elected by the people? It would be hard for people to understand and very difficult for a Speaker to sign off a certificate in those circumstances. But what would happen if he or she denied the certificate? An element in the country would say, “Oh no, you have it in legislation. Sort that out”. I certainly would be uncomfortable. I agree with the noble Lord, Lord Tyler, that paragraph (b) is open to interpretation. For a Prime Minister to say, “Get this through or it is a vote of confidence in me”, is not the way things should go. However, a Speaker would be in a difficult position.

I mentioned earlier about the pressures on modern Speakers. I used to read some of the lovely stories in the beautiful books in Speaker’s House telling us what previous Speakers had to worry about. In one case, the Speaker had to worry about the price of coal being delivered to Speaker’s House. That was a big worry, and I wish I had had that worry. In the old days, perhaps in Edwardian times, the Speaker stayed in the big house, and would then go to his constituency or a place in the country. No one would bother him. Even if people wanted to apply pressure on him outside parliamentary hours, there was not the modern technology that we have just now. Nowadays, there is texting, e-mails and the mobile phone. As a result, I can envisage a situation in which, even if the period in which a Speaker had to sign this certificate was only 48 hours, he would be pursued and the pressures that would be put on him would be enormous. Forgive me, this applies also to lady Speakers.

The black arts of the Whip have been mentioned, and there are many black arts. There is the direct approach, when the Chief Whip comes in and gives the Speaker the rough edge of their tongue; or there is a more subtle way, when the pal of the Speaker is used. Bear in mind that the Speaker is elected from the ranks of the House of Commons, and he has friends. The pal is sent up and says, “You know, Michael, everyone in the Tea Room is worried”; but it is not everyone in the Tea Room who is worried—the Whips sent him. You get the friendly approach and then the Gypsy warnings, and so on.

There is another thing that we have to remember in these modern times—the 24/7 media. I mentioned the Edwardian Speaker who went away to the countryside. When I got to my home at weekends, if there was anything controversial going on, there were people at my door from the media, and they were not very nice at all. In fact, it is rule and convention of the House that the Speaker does not make statements anywhere other than in Parliament. A spokesman phoned me and said, “If you do not give a statement, this newspaper will doorstep you”. I said, “ I am bound by the rules of the House”. While I was speaking to that spokesman at 9 am on a Saturday, two reporters from a Sunday newspaper were outside in a car. The caller said, “I will phone the editor back and say that you are not going to speak”. One of the two reporters went to the side door of my home and the other went to the front door and battered it so hard. That is not a decent way to carry on. Had I or any of my family been in bed at the time, I would have thought that there was something very serious going on. I would have rushed to the door, opened it and been confronted by a newspaper editor.

I tell you that the pressures are tremendous. There is worry in every city about housebreaking. I even had a situation when a clown was outside my door—I describe him as a clown, although he called himself a journalist—from Sky TV, using big satellite television equipment. There he was, outside the house while I was in London. He said, “We cannot get him; the house is empty”. Anyone who is involved in security will tell you not to advertise that you are away from home, but here was somebody broadcasting live television, saying that my house was empty. That is the type of pressure I am talking about.

Something else must also be remembered. I was appalled when I heard that the Prime Minister of the day had a spin doctor whose only job—he had other spin doctors—was to put out negative stories about people in other parties and anyone else who was felt to be a danger to the Prime Minister. I do not wish to use the privilege of this House to mention his name. That person was sacked. It was public knowledge that he was putting out nasty, negative stories about members of the shadow Cabinet and their families. It absolutely horrifies me that the public purse was paying for this man and that the Prime Minister of the day was willing to employ him. Despite all my differences of agreement with Margaret Thatcher, I do not think she would have employed someone like that. Jim Callaghan would not have employed someone like that, and Ted Heath would certainly not have employed someone like that. That spin doctor was not the only one putting out negative stories, but he was paid by the Prime Minister of the day. If the Speaker of the House was going to do something that the Prime Minister was not happy about, there would be tough pressure on him with these people around.

We must also consider the public. We represent the people of this country. We must make sure that, if there is a vote of no confidence, the people understand what is happening. We are the anoraks of politics: we live and breathe politics; we look at politics in our spare time. However, there are other men and women who say, “We’ll leave that to the politicians”, although they want to know what is going on. They would not necessarily understand A and B.

[Lord Glentoran]

I have listened to the noble Lord with great care. He is somebody I have respected for a long time. However, I wonder where he is taking us in this debate, which is on an amendment to a very serious Bill. We have listened for 10 or 15 minutes to the experiences of a Speaker in the House of Commons. The evening is moving on and we have a lot of business to get through. Will the noble Lord, as an experienced former Member of Parliament, be good enough to tell us in a short sentence the point that he is trying to make?

[Lord Martin of Springburn]

If the House wants me to cease speaking I will do so. I am sorry—the noble Lord has put me off, but I think he will get my point in a moment. I will try not to take so long the next time I speak.

If a Speaker has to sign a certificate, it should be simple. I agree with the noble Lord, Lord Tyler, that the public outside should know exactly what is being voted on in the House. It will be very clear if it is a vote of no confidence: a clear resolution or Motion will have been put down, saying, “We have no confidence in Her Majesty’s Government”. If that was voted on, at least the Speaker would be in the position of knowing what he or she was going to sign. A vote of no confidence will have been carried, the House will have made a decision, and the Speaker will be conveying the wishes of the House and putting that on a certificate. I hope that has helped the noble Lord.

[Lord Norton of Louth]

My Lords, I have added my name to the new clause as well. I will just begin by disagreeing with my noble friend Lord Tyler, because I do not agree that this new clause undermines the Bill—quite the reverse. The Bill as presently drafted requires the Speaker to certify whether a vote of no confidence has been passed. However, there is no definition in the Bill of what constitutes that. This new clause seeks to adumbrate what constitutes a vote of no confidence as presently understood. If the Speaker is required to determine a vote of no confidence, all he has to go on is present understandings; otherwise he has to devise a definition of his own, which would be a sure recipe for undermining, if not destroying, the office of the Speaker.

What constitutes a vote of no confidence is a serious concern, and one that has been acknowledged by Ministers. When the Deputy Prime Minister appeared before the Constitution Committee of your Lordships’ House to discuss the Government’s constitutional reform programme, he conceded,

“this is a really important area and it is a classic example of where we could perhaps work away at the Bill if necessary, to strengthen or clarify it”.

He went on:

“In a sense, we have provided the tramlines in this draft Bill, but at the same time, I clearly want to retain as much flexibility and autonomy as possible for the House to decide for itself how it then interprets that. That is exactly the kind of thing that now needs to come out in the scrutiny that the Bill will receive”.

The problem with the present provision is that it does not leave it to the House how it interprets a vote of confidence—it is left to the Speaker to determine what constitutes a vote of confidence. As we have heard, unlike with money Bills, there is no statutory definition to guide the Speaker and there is an obvious ambiguity with the current wording. Defeating a motion of confidence is not the same as passing a vote of no confidence. Last week, the Minister referred to the case of Germany, where he said the Government had engineered a vote of no confidence in order to trigger an election. I pointed out that they had not engineered a vote of no confidence; they had contrived to be defeated on a motion of confidence. What happens if the Government consider that a Division on a major issue of policy is one of confidence and the Speaker takes a contrary view? Worse, what if it is the other way round?

As we have already heard, the danger is that the Speaker will be dragged into political controversy. In the event of an expected close vote on the Second Reading of a major government Bill, the Speaker could, in effect, be holding the fate of the Government in his hands. The potential to damage the office of Speaker is immense, and it should be avoided. If we are to have a Speaker’s certificate—and I say “if”—then we need to define what constitutes a vote of no confidence in the Government. As we have heard, there is a statutory definition of a money Bill, and I believe a statutory definition is required of a vote of no confidence. My noble friend's amendment seeks to provide that.

Last week, the Minister mentioned that I had undertaken research of all votes of confidence. In fact, my research was of government defeats in the House of Commons in the 20th century and, as part of that research, I was able to determine what were deemed to be votes of confidence—and, equally, what were not. In essence, as has already been touched on, there are three types of vote in which the House of Commons expresses its lack of confidence in the Government. First, there are Motions that stipulate that the House has or does not have confidence in Her Majesty's Government. The House may carry a Motion of no confidence or negate one expressing confidence in Her Majesty's Government.

Second, there are Motions on measures that the Government consider so central to their programme that, if defeated, they cannot sensibly continue. Confidence has therefore attached to some Second Readings and on occasion particular provisions of Bills. I have previously cited—again, this has been touched on—the example of the Second Reading of the European Communities Bill in 1972, when the Prime Minister stated that, if defeated, the Parliament could not sensibly continue. As an aside, I would mention that, if one went down the route where the Speaker did not certify it as a vote of confidence, it would still be open to the Prime Minister to say that the Government could not sensibly continue.

The third category is that of implicit votes of confidence. A small number of issues are taken to be confidence votes even if not explicitly worded as such and without the Government having declared them to be so. This is essentially a residual category deriving from the Government’s need for supply—my noble friend Lord Forsyth touched upon it earlier. Failure to grant supply is regarded as the traditional means by which the House can demonstrate its lack of confidence in the ministry.

My noble friend’s amendment seeks to encapsulate these categories in his new clause. It provides the clarity I would regard as necessary for the Speaker. I have some sympathy for the amendment of the noble Lord, Lord Howarth. It may be that the definitions provided are such that no verification from the Speaker is required because, if a Government attempted to argue that a particular defeat, say, on an amendment to the gracious Speech, was not one of confidence, then it would be open as now for the leader of the Opposition to table an explicit vote of no confidence.

22:45

I believe that my noble friend’s new clause is drawn sufficiently tightly to encapsulate what is normally understood to constitute a declaration by the House of Commons that it lacks confidence in the Government. I appreciate that it could be argued that it is too tightly drawn. Under the amendment, votes of no confidence can be moved only by the leader of the Opposition. As I mentioned in Committee last week, one of the most celebrated Motions of no confidence was moved in wartime by a Conservative Back-Bencher, Sir John Wardlaw-Milne, who triggered a two-day debate on 1 and 2 July 1942 on the Motion that the House had no confidence in the central direction of the war. It may be that it should not be restricted to the leader of the Opposition, though it would be unlikely for a Motion of no confidence to be carried without the support of the Opposition.

I think my noble friend has produced a new clause that provides the basis for determining what constitutes a Motion of no confidence. I believe it is essential that we should include such a provision in the Bill. It injects the necessary clarity and avoids miring the Speaker in controversy. If my noble friend the Minister is not able to accept the new clause, it is incumbent on him to come up with an alternative that improves on it. Given a choice between my noble friend’s new clause and the Bill as it stands, it is a case of no contest. This amendment, or one close to it, is essential.

[Lord Forsyth of Drumlean]

My Lords, the hour is late so I have no wish to detain the House. First, I would like to congratulate my noble friend on this amendment, which I think is a great improvement on Clause 2. I have been reading Clause 2 again and it is like some kind of pre-nuptial agreement. If you look at the reasons behind it, clearly this is a clause put together by two parties who are not quite sure whether this marriage is going to work out. The reason we have the provision of more than a simple majority is clearly because the Liberal partners in the coalition were worried about the Prime Minister cutting and running and calling an early election when they were very unpopular. You can see how the architecture of this Bill has been created and it has nothing whatever to do with the proper functioning of the House of Commons.

Clause 2 is completely unnecessary, but I respect my noble friend’s very constructive attempt to try to go with the grain and not be too confrontational, as perhaps I am being now, about this clause. I also agree with the noble Lord, Lord Howarth, that my preference would be to leave out the proposed new subsections (3) and (4) for the reason that, as the noble Lord, Lord Martin, has so eloquently explained, we should not be putting the Speaker in a position where he is involved in this.

Throughout the evening my noble and learned friend Lord Wallace has been very patient and very good and very constructive. I have asked him on several occasions why we need to have the certification process at all. It goes back to the pre-nuptial agreement. Normally, if the Prime Minister wants to call an election, people accept that, but people have thought we cannot have the Prime Minister doing it so we have to have somebody else. You can see them sitting in a room thinking, “Well, who could we have? Well, we will have the Speaker”. It has not been thought through. It is not necessary. We do not need the Speaker to sign a certificate saying that a Motion of no confidence has been passed.

Where I take slight issue—I support my noble friend’s amendment, but it is not perfect—is with the list of what constitutes a Motion of no confidence. As has been pointed out by the noble Lord, Lord Howarth of Newport, I do not think that you can have a Bill,

“defined by the Prime Minister of the day as being essential to his or her administration continuing in office”.

My noble friend Lord Tyler is absolutely right about that. If a Bill that was central to the Government’s programme, a flagship Bill, was defeated in the House of Commons, any leader of the Opposition worth his salt would the very next day table a no-confidence Motion, which would take precedence over all other parliamentary business under the rules and conventions of the House of Commons. Presumably, Members would either vote for or against that Motion. I do not see the need for this list.

In my noble friend’s amendment, I like the bit that says, “Leave out Clause 2” and I like the bit that says:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”,

but then I think, “Why do we need any of the rest?”. I would be very grateful if, during the course of these proceedings, we could answer these very simple questions. You do not need the Speaker to sign a certificate and, if the House of Commons can pass a Motion of no confidence, that Motion does not need to be moved by the leader of the Opposition. But if the House of Commons no longer has confidence in the Government, there has to be a general election. That is a tried and tested thing that has continued for years.

I agree, too, with those who have said, “What is the point of this Bill?” If a Prime Minister wants to have a fixed-term Parliament, he can say, “I am not going to call a general election till the fifth anniversary of the previous election, or the last possible moment”—and there we have it. Normal conventions will apply.

We have this Bill, but it is a muddle, and if we are going to proceed with it we need something like my noble friend’s amendment, which leaves out Clause 2. If we could do away with the list or reduce its scope—perhaps continuing to include the Finance Bill but certainly taking away the requirement on the Speaker to issue a certificate—we would end up back where we started. The great advantage to where we started is that we know that it has worked and it has worked for centuries.

[Lord Norton of Louth]

Before my noble friend sits down, I shall answer his question about the list. The reason why we need the list is because it has been our understanding about what a vote of confidence is for about a century. He is now being extremely radical in trying to limit the list in saying that only in certain circumstances would there be an explicit vote of no confidence. That is quite a constitutionally radical proposal.

[Lord Forsyth of Drumlean]

I stand corrected by my noble friend, who is very expert on these matters. However, a Motion that says, “This House has no confidence in Her Majesty's Government” is absolutely clear, and it would trigger an election. In the context of this Bill, with a fixed-term Parliament, it is going to change. I accept that, because the nature of the Parliament will have changed. But I would much prefer something clear-cut, simple and explicit. If you want to bring down the Government, you have to pass a Motion of no confidence. That is absolutely clear. If such a motion is passed, the Prime Minister has to go to the country.

I was going to sit down, but my noble friend has set me off again. To turn to a point made by the noble Lord, Lord Tyler, the idea that a Prime Minister should somehow be prevented from going to the country to get the consent of the people for what he is trying to do, to call a general election, is also a deeply worrying change to our constitutional pattern. But I sit at the feet of the noble Lord, Lord Norton of Louth, and I am perfectly prepared to alter my view and go along with this amendment, at least in part under his instruction, because it is a far better thing than Clause 2 as it stands.

I hope that my noble and learned friend Lord Wallace of Tankerness will accept the good advice that has been given him tonight and that at a later stage we will be able to discuss something that is more practical and workable and does not threaten the integrity of the office of Speaker of the House of Commons or the ability of the House to hold the Executive to account.

[Lord Maclennan of Rogart]

This debate has demonstrated the need for the Government to reconsider Clause 2. I am very grateful to all my noble friends and all those who have supported the amendment for raising the issue again and in a different context from the previous debates. The intention is to remove the opportunity for Governments to fiddle with arrangements in any way, and that is a desirable purpose. The amendment also seeks to clarify the circumstances in which a vote of no confidence is deemed to justify the holding of an election. However, although noble Lords have raised the debate, I do not think they have concluded it. There are defects in the drafting of Amendment 50 that need to be considered. No one has suggested that this is a perfect drafting, but I would like to suggest two or three points that could be considered when the Government come forward at a later stage.

The first point is that proposed new subsection (2) states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons”,

does certain things, but those things do not appear to be an exclusive list. It would still allow other circumstances to occur that enabled it to be said after the event that there had been a vote of no confidence. The rubric of statutory interpretation that springs to my mind is the Latin tag, “inclusio unius est exclusio alterius”. That might be the answer to this if that were still the law and still the rule of statutory interpretation, but it is not sufficiently clearly the case to avoid the possibility of a further circumstance being deemed to have been a vote of no confidence.

It also seems to me that there has been a slight conflation between a vote of no confidence and the inevitability of a Government’s fall followed by an election. I listened to the noble Lord, Lord Norton of Louth, with great respect, as I always do, but it seems to me that, even if the Wardlaw-Milne Motion of no confidence had been carried—and of course it was not—it would have been perfectly understandable in wartime if that had led to the demise of the particular Prime Minister or a significant change of Government without any election being held. I think the constitution was sufficiently flexible at that time to make it likely that that would have been the outcome. What we are considering here is the circumstances that trigger an election, and I think that needs to be put beyond doubt. I do not believe, even in the case of the European Community Bill in 1972, that despite what the Prime Minister of the day said it would have inevitably resulted in an election. It seems to me that it might have led to the departure of the then Prime Minister. However, he could easily have been told that there were others who would have been prepared to take his place and preside over the parliamentary majority that existed.

If we want an escape clause—and clearly an escape clause is necessary, even with a fixed-term Parliament—in a constitution that is prime ministerial and not presidential, we must have the possibility of having a vote of no confidence. However, I think the better solution to that is the one proposed already by my noble friend Lord Tyler, which is that the Motion of no confidence should come from the leader of the Opposition. If the Government appear to the party in government itself to be in a shambolic condition, it does seem highly probable that a leader of the Opposition would seize the opportunity to declare that the House has no confidence in the Government. I hope that that is the line that will be taken by the Government in reconsidering this clause, but that the case for reconsidering it is strong I have no doubt. Clause 2 as it stands is ill defined and gives no certainty on what the circumstances are within that two-week period which could lead to the holding of a general election. Amendment 50 is a good stab at trying to clarify which issues need to be addressed. The debate tonight will have given my noble and learned friend Lord Wallace of Tankerness a lot to think about and to discuss further with his colleagues, as I believe is definitely necessary.

23:00

[Lord Falconer of Thoroton]

My Lords, this has again been an important debate. I pay particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again.

I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a Motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons.

The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words “Motion of no confidence” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was.

Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A Motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use “confidence” or “censure”. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, “This is a Motion of confidence”. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though “confidence” or “censure” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down.

This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: “We censure the Government for their determination to sell off the forests”. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states:

“That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order”.—[Official Report, Commons, 1/11/1956; col. 1631.]

That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated:

“That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues”.—[Official Report, Commons, 11/12/1956; col. 845.]

Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue.

Clause 2(2), as drafted, says:

“An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)”.

Is it intended that the phrase,

“a motion of no confidence”,

should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”.

That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states:

“A vote of no confidence will have been deemed to have been passed if”,

the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”.

Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states:

“That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country”.—[Official Report, Commons, 4/12/1952; col. 1783.]

Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.

[Lord Forsyth of Drumlean]

The noble and learned Lord is giving examples of Motions that were treated as confidence Motions. Am I missing something here? Surely the context has changed. Those Motions are in the context in which a Prime Minister can say, “I am putting this policy to the House. I regard it as a matter of confidence. If I don’t have the support of the House, I’ll go to the country”. However, the Bill, as the noble and learned Lord has pointed out, removes the Prime Minister’s ability to call a general election—to go to the country and take his case to the people ahead of the conclusion. In that context, what would constitute a Motion of confidence is quite different from the position in which the Prime Minister cannot go to the country, and I think that the reason why my noble friend has had to fall back on a specific Motion that says that the House has no confidence in the Government arises from that. Therefore, the Erskine May examples arise from a situation in which the Prime Minister can call a general election at any time in order to secure support in the country.

[Lord Falconer of Thoroton]

If the noble Lord is right, a massive constitutional change is being proposed. I did not realise that that was the intention. Is it intended that the fundamental principle of our parliamentary democracy—that if you lose the confidence of the Commons, you have to resign—should go? If that is so, then the principles underlying a Motion of no confidence presumably remain the same as they are referred to in Erskine May. It would be extraordinary if they did not, because the phrase that is being used is precisely the same as the phrase used in the Bill for determining whether there will be either Dissolution or a resignation. A Motion of no confidence is a well recognised phrase in Erskine May and there must be a reference to that in the Bill. The fact that there would not necessarily have to be a general election does not change the fundamental principle in our constitution that if you lose the confidence of the Commons you have to go. That, as I understand it, is what is intended by this provision.

[Lord Forsyth of Drumlean]

Under the present rules, it is perfectly possible for a flagship policy to be lost in the Commons and for the Prime Minister of the day to move a Motion of confidence that wipes the slate clean. Therefore, it is not as straightforward as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

The noble Lord may or may not be right. He has been in the Commons, I have not, so he will understand the situation better than I do. I do not have the experience of the noble Lords, Lord Martin and Lord Forsyth, but from looking at the history books it would appear that, by a process of general consensus, the Commons understands what is and is not a Motion of confidence. The best example of what was not a vote of confidence occurred on 10 March 1976, when the Labour Government’s public expenditure plans were defeated. I should have thought that the Government would have had to go on that basis, but they did not.

The next day there was a vote on whether the Adjournment was a confidence Motion. Presumably the Prime Minister said, “I’m treating this vote on the Adjournment as a vote of confidence”, and the Commons understood it to be such. How is the Speaker supposed to determine that a vote on the Adjournment as a legalistic matter is a vote of confidence? He could not, either under the Bill as drafted by the noble and learned Lord, Lord Wallace of Tankerness, or under the proposals of the noble Lord, Lord Norton of Louth.

23:15

[Lord Norton of Louth]

As the Bill now necessitates, instead of saying that we are on the Adjournment and that this will be treated as a Motion of confidence, one would put down explicitly worded confidence. That would be the essential change.

[Lord Falconer of Thoroton]

Is that right, because the wording in the amendment is:

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”?

The noble Lord is obviously right, but what about the position in relation to the Egyptian Motions to which I referred, or the Motion in which Mr Attlee, lambasting the Conservative Government in 1952, did not use the words “censure”, “Motion” or “confidence” once, yet regarded it as a motion of no confidence?

We already have a well understood definition of no confidence. The phrase is well known. What it means at any particular time depends on a consensus view that emerges from the Commons. The Commons understands when there is a Motion of no confidence. What it means is not something that is capable of being written down in a statute. I respect what the noble Lord, Lord Cormack, is trying to do in trying to define it, as it obviously is not working the other way. The Government’s problem is that they use the phrase “a Motion of no confidence”, as if it is a single, static thing that can be defined at any moment. Is not the obvious difficulty that it is not a static thing? One moment something will be a Motion of no confidence and 10 years later it will not because political circumstances have changed. As a consequence of what the Government are seeking to do, they are in effect changing the basis and moving it on from a political judgment made by the House of Commons to a legalistic issue that has to be resolved by the Speaker of the House of Commons. That is a fundamental change.

[Lord Cormack]

Much of what the noble and learned Lord says about the deficiencies of the Bill is completely right. The amendment seeks imperfectly—I made that point from the word go—to make the Bill less bad than it is at the moment by giving a definition of a vote of no confidence and by relieving the Speaker of the day of the invidious position of having to make a political judgment. We might have tabled the amendment imperfectly, and I am sure that there is room to improve it, but the general consensus in the House tonight appears to be that this is an improvement on what we have in front of us in the Bill.

[Lord Falconer of Thoroton]

I am not sure. I think that there are two alternatives. The one is to be lured into the trap that the Government are laying of the legalistic route; the other is to take the route that the noble Lord, Lord Forsyth of Drumlean, seeks, or that of the noble and learned Lord, Lord Howe of Aberavon, who has somewhat confusingly put his name to the amendment, although he also said to rely more on conventions, which I found quite forceful.

Let us suppose that instead of proposed new subsections (2), (3) and (4) we simply had one proposal which stated: “An early parliamentary general election may take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”. You would end up in the position whereby the Speaker is not being asked. You preserve the current position of allowing the Commons to determine whether it is a motion of no confidence, which has not caused a problem in the past. By using “may” rather than “is to”, you also deal with the problem of the Queen’s Speech being defeated before the Government ever get going, and you deal with the Narvik situation. You effectively and essentially pass a Bill that is not drawn into difficult and damaging legalism, which is the danger that the noble Lord, Lord Cormack, is trying to avoid.

I wait to hear what the noble and learned Lord, Lord Wallace of Tankerness, says. The noble Lord, Lord Cormack, is right that there is a considerable sense around the House that his amendment is better than the honourable but rather ineffective try that the Government have made. However, is it not better to try to preserve, as much as possible, the current arrangements that work rather than ending up in a legalistic situation with great difficulties about interpretation? I see the noble Lord, Lord Norton of Louth, shaking his head. I am willing to be persuaded that I am wrong. However, using the phrase,

“passes a motion of no confidence”,

twice drags him into a situation where he is freezing the definition of something that cannot be defined. I am open-minded as to the right answer but I am not at all sure that the submission of the noble Lord, Lord Cormack, is it.

I identify two other difficulties. As drafted, the amendment of the noble Lord, Lord Cormack, does not deal with the defeat of the Queen’s Speech before the Government have got going, which he acknowledges. It does not deal with the Narvik situation, where you have a strong sense within Parliament that the Government should fall because they are defeated in a vote of no confidence and a new Government should emerge. Assume that in the Narvik example the Government are defeated because Parliament wants, say, Winston Churchill to become Prime Minister and a national Government to run the war. It would not be appropriate in these circumstances to force a general election. The effect of the amendment of the noble Lord, Lord Cormack, is that there would have to be a general election whenever there was a defeat in a vote of no confidence. However, I see I am wrong.

[Lord Cormack]

The noble and learned Lord is trying to rewrite history in the most peculiar way. During the war, each year a Bill was passed so that there would not be a general election. General elections did not take place for 10 years. This agreement was in force at the time of Narvik. There was no question of the Government falling. The Prime Minister lost so much support on his own side that he felt that he had to resign and Mr Attlee made it quite plain that he was not prepared to serve under Lord Halifax, who appeared to be the preferred choice at the time, so we had the Government of Churchill and we all know what happened after that. To try to rewrite history in the way that he is doing is not exactly helpful to any of us.

[Lord Falconer of Thoroton]

The account of history given by the noble Lord, Lord Cormack, is entirely accurate. However, if you are passing a Bill that is intended to set out what our constitution is, what happens when there is not a suspension of elections and the Commons wants rid of a particular Government because it, quite legitimately, wants a national Government? The effect of the amendment of the noble Lord, Lord Cormack, is that you are not allowed to have a situation where you cannot avoid an election. I envisage circumstances in which a vote of no confidence might well reflect both a Commons view and a national view that the Government of one party be changed, for example, into a national Government. We have to be able to deal sensibly with this. The current arrangements allow for a defeat in a vote of no confidence followed by a replacement of the national Government, which the amendment does not deal with. It is not a comprehensive definition of motions of no confidence and so leaves the Speaker as exposed under these arrangements as he is under the old arrangements. I share the desire of the mover of this amendment to get to a point where the Speaker is not exposed in the way that he is at the moment. I do not believe that the amendment quite succeeds in doing that. I am open-minded about the other efforts to do it, but currently, I can see force in the sort of amendment that I suggested.

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

[Lord Howe of Aberavon]

With great respect to my noble and learned friend, he said we are trying to set up a situation in which, with fixed-term Parliaments, we can trigger an early election. That seems to be something that we are all groping for. We already have a fixed-term structure in the sense that there is a maximum term with the existing pattern of being able to trigger it for different reasons. I emphasise the significance of what he said, I think not per incuriam. We are working in a fixed-term situation but finding a way in which we can trigger an early election. If that is what he is after, we are not far away from it as we are.

[Lord Wallace of Tankerness]

That is indeed what I said because there is a difference between a fixed term, as set out principally in Clause 1, and recognising that you could have a situation, as they do in Norway, where the term is fixed and nothing can allow an early election, even if the Government were to lose the confidence of their Parliament. That is not what anyone has argued for in our deliberations. There is a distinction between a fixed term and a maximum term during which, under the present system, the Prime Minister of the day can opt to have an election at a time of his choosing for partisan advantage. We do not disguise the fact that that is what we are seeking to move away from.

23:30

I return to the point that I was about to address with regard to the way in which we have structured this provision. In recognising some of the examples that the noble and learned Lord gave, we accept that no confidence motions over the years have taken many different forms and the desire of the Bill was not to restrict flexibility. It was to avoid confusion that we suggested that a Speaker’s certificate would confirm that the House of Commons had passed a no-confidence motion. I have heard and listened to the arguments. We had good debates earlier about the merits or otherwise of the Speaker’s certificate and I have clearly undertaken to reflect on whether that is the best way of doing it.

That was why we felt that there was a need to have the Speaker’s certificate. Votes of no confidence historically have taken a number of different forms. The noble and learned Lord referred to those which took place against the backdrop of the Suez crisis. We have tried to allow that flexibility while at the same time having the certainty which we believe is necessary to trigger an early election because there are consequences. Having an early election in a situation where you have a fixed term requires some clarity about what will trigger it. I do not believe that we could get that clarity by allowing, as the noble and learned Lord seems to suggest, a sort of consensus to emerge in the House of Commons.

It may well be that, if a particular Government had lost what might be interpreted by many to be a vote of no confidence, they could drop that consensus by saying “Well, we did not consider it as a vote of no confidence”. That is why I do not believe what I thought the noble and learned Lord was suggesting—that we will recognise votes of no confidence when we see them and that there will be a general consensus in the House of Commons that there was one and that there will be an election.

If we are in a situation where we have a framework of a fixed-term Parliament and we are envisaging a situation where there could be an early election, it is important that it is very clear what will constitute the trigger mechanism for that early election. Simply leaving it to a consensus is not sufficient in these circumstances.

[Lord Falconer of Thoroton]

I completely understand that it is different under the Fixed-term Parliaments Bill but remember that the consequence now of the Government losing a vote of confidence is that they at the very least have to resign and at the very most have to have a general election. There is a very high price to be paid now in relation to losing a vote of confidence or no confidence. Can the noble and learned Lord identify historically any occasion where there has been a dispute over whether something is a vote of confidence?

[Lord Wallace of Tankerness]

I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.

[Lord Howarth of Newport]

It was earlier in this debate. It has been going on for so long, it is difficult to remember. The point was that the House accepted, it appears, the redefinition that the Prime Minister had proposed to the House at that time and recognised the political circumstances in which that Labour Government had a tiny majority. It did not really have a workable majority.

[Lord Wallace of Tankerness]

Perhaps the House accepted it because it was quite clear that if the Prime Minister had decided that he was not going to go to the country it could have tabled a motion of no confidence. Indeed, my noble friend Lord Forsyth keeps coming back to what seems to be a very straightforward way of addressing this issue: that if there is any doubt, the Leader of the Opposition or someone could table a motion of no confidence. The more one thinks about it, it tends to be the motion which has no ambiguity and is very clear, about which something further might want to be said.

The amendment in the name of my noble friend Lord Cormack would replace the entirety of Clause 2 and therefore would not allow the provision of the trigger mechanism of a Dissolution if two-thirds of the House of Commons was voting for a Dissolution. We have had debates on this in the past but if at some date in the future, in a fixed-term Parliament, there is a consensus in the House of Commons that there should be an election—and 1951 has been identified as a possible example when this may have happened—I would rather the option remained for the Dissolution to be triggered on a cross-party, consensual basis rather than having a motion of no confidence brought forward simply to achieve a Dissolution which two-thirds of Members believe is necessary. That option is lost by my noble friend’s amendment, but it is a worthwhile provision to maintain.

On the question of what constitutes a motion of no confidence and whether it should automatically trigger an election, I recall that in our earlier debates my noble friend Lord Norton of Louth indicated that that should not necessarily be an automatic consequence. However, a consequence of the amendment is that there would be an election. The noble and learned Lord, Lord Falconer of Thoroton, suggested a way round it and, in introducing his amendment, my noble friend Lord Cormack suggested that if it was after the Queen’s Speech in the first Session there could possibly be other ways.

It is important, therefore, that we reflect on circumstances in which an election should not automatically be triggered, the most obvious one being immediately after a general election when a party does not yet have the confidence of the House and there is still an opportunity for another Government to be formed. Equally—I cannot say this is a Narvik situation because it is not—there may perhaps at a time of extreme national crisis be a view that a Government should not continue and that there is a case to be made for a national Government. Indeed, it occurred to me that the Bill as drafted would provide for that. There could be a motion of no confidence and a period of time—we can debate whether or not it should be 14 days—for a new Government to be established which could in such circumstances enjoy the confidence of the House of Commons. I find my noble friend’s amendment defective in that regard because there are circumstances where the automatic triggering of a general election would not necessarily be the right way to proceed. I will not elaborate on the point about an incoming Government after an election and the fact that we do not want election after election after election.

A number of colleagues have indicated that there are problems with the amendment. As I have indicated, I do not want to take technical issues— it used to annoy me greatly in opposition if Ministers said there were technical problems—unless they are very fundamental.

On the second branch of what would constitute a vote of no confidence—namely, a Bill defined by the Prime Minister of the day as being essential to his or her Administration continuing in office—my noble friend Lord Tyler expressed scepticism; the noble Lord, Lord Martin, felt it would be unwise and was concerned about the Speaker; and my noble friend Lord Forsyth also expressed concern about that. Quite apart from trying to get a definition of what constitutes a Motion of no confidence, a Government facing a problem with their own Back-Benchers could simply decide that they would make a particular vote a matter of confidence—the black arts may well come into play—for the purpose of imposing party discipline. As we are trying to initiate a switch from the Executive to Parliament, that would be a regrettable consequence of that trigger point for a general election. Likewise, as my noble friend Lord Tyler indicated, that would be a decision of the Prime Minister and not of Parliament or the Speaker, and therefore it would be an Executive decision which, in certain circumstances, could conceivably be open to challenge.

I know my noble friend Lord Forsyth has strong reservations on fixed-term Parliaments—I probably understate his position—but he made an important point in his exchange with the noble and learned Lord, Lord Falconer of Thoroton. He said that the examples the noble and learned Lord was giving were not operative within the framework of a fixed-term Parliament. If that is the case and we are to have fixed-term Parliaments, the rules will change. As he pointed out, the simplest thing in these circumstances may be to say that a motion of no confidence is what it says. On what constitutes confidence or no confidence in the question of supply, my noble friend Lord Norton said in his article of 1978, Government Defeats in the House of Commons: Myth and Reality:

“The most effective means whereby the House could declare its lack of confidence would be through an explicitly-worded motion of no confidence”.

I did say that we were in listening mode—and, indeed, reading mode. That was an important point.

The noble Lord, Lord Howarth, spoke of his concerns about the Speaker’s certificate. I do not wish to rehearse our earlier debate; I undertook then to reflect on that. However, what I found difficult was his suggesting that the more we try to write down and define matters, the more difficult it is, yet seeming to have an objection to the Government’s position where they did not seek closely to define. That seemed to be a contradictory view. My noble and learned friend Lord Howe said that we should keep it as simple as possible. That is what we have sought to do by setting a background where it is possible to recognise a motion of no confidence rather than trying to define it. This matter has been looked at many times, including in the other place. Whenever efforts are made to bring some definition to it, other than perhaps a very simple one, one seems to conjure up more difficulties.

I said at the outset that I wanted to hear the arguments about structure and definitions. Members on both sides of the Committee have expressed a number of views. I clarify again that I shall speak with my colleagues on these matters. The principles that we wish to establish are that, within a context of having a fixed term, there should nevertheless be a mechanism to trigger an early election if there has been deadlock in the other place, if a Government lose confidence, and if no Government can be formed who maintain confidence. There is an argument for having consensus about Dissolution and proper provision being made for it, as well as for trying to minimise the potential for abuse of the trigger on the part of the Executive and to get clarity as to what constitutes a vote of confidence. There may well be circumstances in which a vote of no confidence does not necessarily have to trigger a general election. How do we clarify those circumstances in a way which is acceptable? These are the general principles and issues which I want to put flesh on. Various ways as to how we might do that have been suggested. The amendment moved by my noble friend Lord Cormack has been very helpful in suggesting one way. It has a number of problems to it, but the comments that it has triggered will help shape our thinking as we move to the next stage of the Bill.

I reflect that perhaps we have got it right because these are very complicated matters, but I undertake to give serious consideration not only to what was said in response to this amendment but also to earlier amendments and those which were heard on the second day of Committee. On that basis—

[Lord Norton of Louth]

I understand the argument that my noble and learned friend is developing. One of his objections to my noble friend’s amendment was that it seeks to encapsulate what is the current position, where the Prime Minister can say, “Well, if we lose on this Second Reading of a major government Bill, we cannot continue; we make it a question of confidence”, and uses that to mobilise government supporters.

My noble and learned friend is objecting to maintaining the current provision, whereby the Prime Minister can simply say: “If we lose, we go”. I touch on the point that it is still open to the Government to resign. If the Prime Minister says, “This is crucial to our programme; if we lose, we resign”, and therefore goes to the Palace in the wake of that to tender the Government's resignation, under the Bill, what happens?

23:45

[Lord Wallace of Tankerness]

We debated this under Amendments 35 and 39. I said then and as part of our general debates that, in my understanding, if the Prime Minister resigned—nothing in the Bill stops the Prime Minister resigning in those circumstances—the Queen would invite another Member of Parliament to form a Government. If that other Member of Parliament tried to form a Government but there was a motion of no confidence in that Government, there would be an election. Alternatively, the Prime Minister may have resigned and it may be evident to everyone that there is stalemate and that the sensible thing—with agreement across all parties—is to have an election. In that case, two-thirds of Members could vote for an early Dissolution.

[Lord Cormack]

My Lords—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I think that it would be for the convenience of the Committee if the noble Lord, Lord Howarth of Newport, were first to respond on his amendment, as it is an amendment to that of the noble Lord, Lord Cormack.

[Lord Howarth of Newport]

My Lords, noble Lords who have spoken in this debate are people of great political experience, experience of government and profound knowledge of the constitution. It has been a very helpful debate. I share the regret of the noble and learned Lord, Lord Howe of Aberavon, that we have to grapple with these issues. The noble Lord, Lord Maclennan of Rogart, caught the sense of the debate very well when he said that at least there is widespread agreement around the Committee that Clause 2 needs careful reconsideration.

The intervention of the noble Lord, Lord Martin of Springburn, was, as in our earlier debate, of the utmost importance to the House. We should not lose sight of the eminently simple and practical point that he drew to our attention: the Journal of the House records the Divisions of the House. That may well be the authoritative point of recourse that would satisfy the legalistic requirements created by the conception of the Bill. In that way, we might avoid the need for the Speaker to issue certificates. The noble Lord, Lord Martin of Springburn, explained to the House the pressures under which a Speaker may come in the ordinary day-to-day circumstances of modern politics—how very unpleasant and intense they are. That is a foretaste of the pressure that a Speaker might experience were the Speaker to be required, as the Bill proposes, to certify motions of no confidence.

If the definitions in the new clause proposed by the noble Lord, Lord Cormack, are clear and comprehensive, certificates might not be needed, but I fear that events might not be as cut and dried or mechanistic as it suggests. I suspect that other votes, beyond those that he itemises in his new clause, might be regarded as confidence votes—in which case, if the Speaker is to issue certificates, it will be contentious and dangerous, as two former Speakers of the House of Commons have warned us this evening.

My noble and learned friend Lord Falconer explained that it is incredibly difficult to tie down a motion of confidence, or of no confidence, in legal terms; I suggest that it is impossible. That is why I like the simpler solution suggested by my noble and learned friend.

I am most grateful to the noble and learned Lord, Lord Wallace of Tankerness, for the tone of all his remarks, for his recognition of the reality of the problems that noble Lords have sought to identify, and for his willingness to reflect on whether there may be better ways than the requirement that the Speaker should issue a certificate to enable the Government to pursue their purposes in the Bill. I beg leave to withdraw my amendment.

Amendment 51 (to Amendment 50) withdrawn.

[Lord Cormack]

First of all, I apologise for jumping the gun ahead of the noble Lord, Lord Howarth. I echo his remarks to my noble and learned friend Lord Wallace of Tankerness on his constructive response to an interesting and important debate. I did not claim at the beginning, and I do not claim now, that the amendment I tabled with the support of my noble friends is perfect—of course it is not—but it has focused attention on a number of important issues, and I am extremely grateful to all noble Lords who have taken part in the debate.

There has been a surprising degree of consensus. Almost everyone who has spoken would agree that in most circumstances—I am trying to choose my words carefully, accurately to reflect what has been said—a vote of no confidence should be enough to see a Government resign. There is fairly widespread distaste in all parts of the House for 14 days of horse-trading. There is a degree of scepticism in the House on the two-thirds majority, although I of course note what my noble and learned friend said on that subject.

There is total opposition to involving the Speaker of the day in contentious matters. My amendment certainly did not seek to do that, but sought, by implication, to equate the certificate with the sort of certificate that is already applicable to money Bills. I am very grateful to my noble friend Lord Norton of Louth for his constitutional expertise and for the things that he has been able to point out.

Like the famous Irishman, I would rather that we had not started here. The Bill is not a great adornment to our constitution. It is a real threat to many parts of our constitution. I do not want to repeat what has been said by so many, but almost no one in this House would oppose the notion of the Prime Minister of the day expressing a determination to see through a full five-year term. However, there is also an overwhelming consensus that, fixed-term Parliament or not, one has to have an escape clause.

I tried to approach the Bill, not as one who loves it, but as one who accepts that we have a Fixed-term Parliaments Bill. I want to make it as workable as possible, I want it to inflict as little damage as possible upon our constitution, and I want it to allow as much flexibility as possible to remain. I hope that in the discussions that I trust will take place, formally and informally, between now and Report stage, we will be able to consolidate the consensus that has been implicit in much that has been said tonight, and that the noble and learned Lord, Lord Wallace of Tankerness, will come forward with a Clause 2 that is far more acceptable than the present clause in the present Bill. I beg leave to withdraw the amendment.

Amendment 50 withdrawn.

Debate on whether Clause 2 should stand part of the Bill.

[Lord Falconer of Thoroton]

My Lords, our debates on Clause 2 have been very significant. Would it be possible for the noble and learned Lord, Lord Wallace of Tankerness, to suggest some process? He has been accommodating and conciliatory, and he has broadly shared the aim, expressed all around the House, of there being no uncertainty about the circumstances in which an election would be triggered. As I understand it—I may have misunderstood—the Minister is not seeking to dislodge the basic principle that, when a Government lose the confidence of the House of Commons, that Government have to go.

Could I invite the noble and learned Lord to convene a meeting of all interested parties—I do not mean political parties—from all over the House to discuss this, with a view to agreeing a Clause 2 that reflects the concerns that he appeared to share? The noble and learned Lord—I hope that this will not be a case of “once bitten, twice shy”—was accommodating in indicating during the Parliamentary Voting System and Constituencies Bill that he would come back with things, and he is leaving me with the impression that he shares many of our concerns. Perhaps the way to move forward is for those who are interested to meet him to try to agree a clause that reflects the sort of principles he just went through. Does that suggestion find favour with the noble and learned Lord?

[Lord Wallace of Tankerness]

I am certainly more than willing to meet. I will need to discuss with ministerial colleagues—it will not be just I who have to reflect on this—but I am certainly willing to meet, although I do not know whether that can be done constructively with a large number, or whether it is better done with a smaller number. The noble Lord, Lord Martin, has already suggested that he and the noble Baroness, Lady Boothroyd, would be willing to meet. I have said that I would welcome that opportunity, although that would be to deal with a discrete part of the Bill. I am sure that, through the usual channels, we can devise some way of meeting, either individually or by convening a much larger meeting. I am sometimes sceptical about how far you can get without convening a larger meeting. I will work out the best way to take that forward, with an undertaking to meet and include those—without, I hope, being exhaustive—who have made an important contribution to our deliberations in Committee.

[Lord Falconer of Thoroton]

I am very grateful to the noble and learned Lord. One of the things that very much infused the debate on Clause 2 is the question of what the Government have in mind when they use the phrase “motion of no confidence”. For example, it was never clear—I am sure this is my fault for not listening; it is very late—whether a motion of no confidence includes being defeated on a motion of confidence. Does a motion of no confidence include things that are not explicit? Does the definition of a motion of confidence in Erskine May apply in helping us to construe the reference to a motion of no confidence in Clause 2? We need to know the answers to those questions. If the noble and learned Lord does not want to answer now, I am more than happy for him to write. However, we do need clear answers to those questions.

[Lord Wallace of Tankerness]

My Lords, I tried to answer on this in response to the previous debate, when I indicated that we recognised that no-confidence motions could take and have taken many different forms, and that our desire in the Bill was not to be prescriptive and not to restrict flexibility. That is where we started from and that is what we sought to do. I think a vote of no confidence would not include a vote of confidence, but it would not be beyond the wit of a leader of the Opposition to table an amendment inserting the word “no”. That is clearly part of the discussion that we can have. The noble and learned Lord asked what our proposed statutory definition of a motion of no confidence was. In response to the earlier debate, I said that we recognised the many different forms that it could take, as he himself illustrated in his speech. Our desire was not to restrict flexibility. We will enter the discussion, as I have said, bearing in mind the comments that have been made from various parts of your Lordships’ Chamber.

[Lord Falconer of Thoroton]

There was just a flicker there, in that the noble and learned Lord said a vote of no confidence would not include a vote of confidence. Therefore, you could have the strange situation where the Government are defeated on a vote of confidence but do not resign at that point. Indeed, there could not be a general election under those circumstances; under this Bill, there would then have to be a vote of no confidence at that point. How nutty is this Bill?

Clause 2 agreed.

Amendment 52

Moved by

[Lord Falconer of Thoroton]

52: After Clause 2, insert the following new Clause—
“Parliamentary general elections coinciding with scheduled elections to a devolved institution
(1) A parliamentary general election shall not be held within 30 days of a general election to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly (“the relevant devolved institutions”).
(2) Should an early general election be called under section 2 of this Act such that it would occur within 30 days of scheduled general elections to the relevant devolved institutions, the Prime Minister shall, after consultation with all of the relevant devolved institutions, lay orders before Parliament to move the date of either the parliamentary general election or any of the general elections to any of the relevant devolved institutions so as to ensure compliance with subsection (1) of this section.
(3) Any order laid by the Prime Minister under this section shall not move any of the general elections either to Parliament, or to the relevant devolved institutions, by more than 35 days from the date on which they would otherwise have taken place.”

[Lord Falconer of Thoroton]

My Lords, this amendment deals with the question of the potential coincidence between elections for the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Our draft gives the Prime Minister the ability to lay an order to ensure that a general election must take place at least 30 days apart from the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly elections, to avoid a coincidence of these occurring on the same day.

I put my amendment down to probe the Government’s position on this. Everybody understands that the first general election under any Fixed-term Parliaments Act is likely to occur at or near the same date as the elections for the institutions I have referred to. Subsequent to my putting my amendment down, the Government, in consultation with the relevant institutions, have now reached some sort of agreement and have now put their amendments down, as Amendments 55B and 55C. Would it be convenient to your Lordships if we heard what the Government have proposed first, because I do not fully understand it? Once we hear what the Government have proposed, it would then be possible to see whether we need to proceed with our probing amendments.

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wigley]

Before he sits down, can the noble and learned Lord, Lord Wallace, confirm that the Government’s amendment covers everything that had arisen in discussion with the National Assembly for Wales and in the debate that took place on this matter there? When he says that this is a one-off solution, how might this be handled in future? Does it mean going through all this again every time there might be a coincidence or is there some agreement to get some stable basis ongoing for however long?

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

[Lord Falconer of Thoroton]

The Minister says that people will know. Does he envisage that the Bill will be passed by 5 May 2011?

[Lord Wallace of Tankerness]

People will know our intentions. I stand corrected by the noble and learned Lord. We thought it was important that we flagged up that intention, subject to these amendments being carried this evening and in the Bill itself. If the Bill is not passed there will not necessarily be a coincidence but there still could be a coincidence of elections on 7 May 2015.

Subject to these amendments being accepted, in the longer term we would then need to carry out a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of this we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions should permanently be extended to five-year terms. While the 2015 general elections to the Scottish Parliament and Welsh Assembly will be deferred by one year, these will be treated as ordinary elections and subject to the usual rules. For instance, a subsequent ordinary general election will be scheduled to be held on the first Thursday in May in the fourth calendar year following the deferred election. Additionally, the power to vary Assembly or Holyrood general elections by one month earlier or later under Section 2(5) of the Scotland Act 1998 or Section 4 of the Government of Wales Act 2006 will apply. In both instances Holyrood and the Welsh National Assembly may still vote for an early dissolution with the two-thirds majority, in line with the existing provisions in the respective devolution Acts. Such an early general election does not affect the subsequent ordinary general election unless the extraordinary election was in the six months prior to the scheduled election.

A number of noble Lords have expressed the view that if the Government had proposed a four-year term for this Parliament then the problem would never have arisen. We have debated at length the Government’s reasons for preferring the five-year term and I do not propose to rehearse them now. It was recognised when the debates took place that we were willing to look at future possible coincidence of elections and, on the back of that, to look at the possibility of extending to five years the lifetime of the devolved Parliament and Assembly. We do not believe that it would be proper to do that on a permanent basis without having that further discussion. I also ask your Lordships to bear in mind that there is always the possibility of the coincidence happening in any event. This has allowed an opportunity to address the possibility now rather than finding ourselves in April, May or March 2015 seeing that a coincidence was about to happen.

Following correspondence with parties in Northern Ireland on this issue, Northern Ireland Office Ministers concluded it would be better to await the outcome of the combined polls scheduled for May this year before taking a decision on whether special provision would be needed for Northern Ireland.

I am happy to stop there and allow the noble and learned Lord to speak to his amendment before going on. I simply observe that it is possible at the moment for the Presiding Officer of the Scottish Parliament or the Secretary of State for Wales to move the election by 30 days. Whether 30 days would be enough to get a proper disjunction of the different election campaigns remains to be seen. I look forward with interest to what the noble and learned Lord says about that. The problem was identified. We engaged with the respective institutions and sought their views on what they would wish their response to be, and these amendments deliver on the way forward agreed with the respective Parliament and Assembly.

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

[Lord Wallace of Tankerness]

My Lords, I sometimes wonder if the noble and learned Lord listened to what I said. I have answered those three questions, but perhaps, with respect, I did not explain clearly enough, so I shall try again.

The first question was with regard to whether we would have a four-year or a five-year Parliament. Clearly that is a debate that we will come to at Report, and I am not going to rehearse again the arguments why I believe the five-year option is preferable to the four-year one. If the Committee agrees today that these amendments in my name should be passed, I believe that they should stay because people who will be voting on 5 May should at least get some indication of what the length of the Parliament or Assembly that they are electing is likely to be.

12:15

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that it would be four years or five years?

[Lord Wallace of Tankerness]

I am saying that they would still get five years. I do not think it would be right to elect people on the basis that they believe they are getting five years and then to say, “By the way, you’re not”. The noble Lord, Lord Bach, shakes his head. I think we would attract even greater criticism if there was an expectation of five years, and then we said, “Oh, by the way, we’ve changed our minds. You’re not getting your five years. You’re being cut back to four”. That would be the source of some legitimate criticism. Of course, if that is what happens and we do have four years—I will not again emphasise the reasons why we should not—the chances of it recurring are probably less likely, because then you could get yourself on to a four-year cycle, depending on whether there was an early election.

The noble and learned Lord asked what would happen in the longer term. I did seek to explain that we have also indicated that, subject to these amendments being accepted, in the longer term we would carry out a detailed assessment of the implications of having two sets of elections coinciding on a later date. Obviously the Electoral Commission would be involved in that. In the light of that, we would consider whether to conduct a public consultation on whether in devolved institutions the term should permanently be extended to five years. We do not proceed to do that in the context of this Bill, but we have indicated, as I have done in earlier debates, that that is our proposal. I hope that I have made it clear on this occasion that that is what has happened.

The noble and learned Lord also raised a question about Northern Ireland. I thought that I had answered that but, for clarity, the situation there is that there was correspondence with the parties in Northern Ireland on this issue. Northern Ireland Office Ministers concluded that it would be better to await the outcome of combined polls scheduled for 5 May this year before taking a decision on whether special provision would be needed in the future for Northern Ireland. It was a reflection of the dialogue that had taken place within Northern Ireland, and I see nothing wrong with this Parliament being sensitive to the views expressed in different parts of our diverse United Kingdom. I think that is to our credit, so I do not think that it would have been appropriate to have made provision for Northern Ireland if that was not the feedback that we were getting in the consultations that had taken place.

[Lord Falconer of Thoroton]

It was my fault for not having heard that. Having heard what the noble and learned Lord said now and understood it—having been so dim-witted in not picking it up before, for which I apologise—perhaps that indicates that this Government should not have come forward quite so hastily with this Bill, but instead should have consulted on those issues, which are very important, before bringing forward the Bill. It is not too late.

Amendment 52 withdrawn.

Clause 3 : Dissolution of Parliament

Amendment 53

Moved by

[Lord Kennedy of Southwark]

53: Clause 3, page 2, line 26, leave out “17th” and insert “21st”

[Lord Kennedy of Southwark]

My Lords, my amendment is very straightforward. It allows for four extra working days from the Dissolution of Parliament to the general election. Why is that important? My amendment allows a few extra days to get everything right. People have quite rightly expressed serious concern when things have gone wrong in the electoral process. Seventeen working days is a very short period in which to deal with all the matters that need to be dealt with in the time from Dissolution to polling day.

Many noble Lords will have contested elections in the past or been involved in elections and be aware that you have to get your nomination papers completed and submitted, and in some cases pay a deposit—certainly for all parliamentary elections. Printed materials can be prepared to some extent in advance, but often the cut and thrust of the campaign will determine how your campaign goes. Having a few extra days is of great benefit to candidates and parties. I also contend that it is of benefit to the public to have a slightly longer look at who they are being asked to vote for locally, as often the campaigns as reported by the broadcast media and national newspapers focus on the bigger picture and the leadership of the respective parties.

We should also place particular emphasis on the administration of the election. Running any sort of election places a big responsibility on returning officers and their staff. Giving them a few extra days to prepare and ensure that everything is correct is most desirable. The printing of ballot papers, the sending out of postal votes and getting everything ready for polling day can be done only when an election is under way. I can see no reason why this amendment should not have wide support across the Committee.

If the Government are not going to support the amendment today, I hope that the Minister can give a detailed reason why. My only motivation in moving it is to have well run and well managed elections where citizens can exercise their rights to participate in elections and choose their representatives. I hope the Government will see my amendment in that light and accept it. I beg to move.

[Lord Rennard]

My Lords, briefly, I support the broad principle of extending the election timetable, largely for the reasons given by the noble Lord, Lord Kennedy of Southwark. In particular, I feel strongly that we have too short a timetable for elections, which denies many service voters the opportunity to vote because of problems with issuing postal votes, getting them back and so on. However, it seems to me that the length of election timetables should be dealt with for all elections—council, European et cetera—not just Westminster general elections. However, while the problems that he suggests are very real, they will be addressed for general elections if we establish the principle of fixed-term Parliaments, which is the primary purpose of the Bill.

[Lord Bach]

My Lords, in supporting my noble friend on his amendment I invite the Government to think very carefully indeed before rejecting it, if that is what they intend to do. I speak from personal experience: in a former life, my noble friend was the regional secretary of the Labour Party in the east Midlands, so I worked extremely closely under him for many years and I can speak to his expert knowledge about running elections. I dare say that the Minister could talk about other individuals whom he worked with in that capacity and, no doubt, those from the Conservative Party could as well, while the fame of the noble Lord, Lord Rennard, goes before him. When you have such experts as my noble friend and the noble Lord, Lord Rennard, speaking with one voice, it behoves the Government to think carefully before rejecting what they suggest.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for his amendment. Clearly, it seeks to dissolve Parliament 21 working days ahead of polling day rather than 17 working days. It is fair to point out that a 21-day timetable would be novel. It is not currently used in local or parliamentary elections; that in itself raises issues. I understand that the Electoral Commission, with which I know the noble Lord has an association, has previously suggested that the electoral timetable might be extended to 25 days. That would, not least, support participation by service voters. The commission has highlighted problems caused by the current election timetable and its associated deadlines for electors, candidates, political parties and electoral administrators. Those were reflected in the experiences that the noble Lord, Lord Kennedy, mentioned. My noble friend Lord Rennard also has experience of them.

The Electoral Commission notes that this change should not be made without a review of further changes that might then be required to the electoral timetable. I assure the Committee that the Government agree that this is an important issue. My right honourable friend the Deputy Prime Minister indicated during Second Reading in the other place that we believe there is merit in exploring an extension to the timetable. I note that, at present, there are different timetables for the elections to the Scottish Parliament, the National Assembly for Wales and, I think, the Northern Ireland Assembly. Therefore, there is merit in looking at this not just in relation to this Bill and future elections to the House of Commons but in looking generally at the election timetable.

The Electoral Commission has pointed out that the matter requires a thorough review to ensure that any change is coherent across the piece. There are practical issues and consequential complexities that have to be considered. It is not as simple as omitting “17” and replacing it with “21”. There are issues about the judgment on where particular milestones would best fall within an extended election timetable. For example, there may be competing views as to when they should fall with regard to nominations. We are anxious that, if we are to extend the timetable, we should find the most effective solution. The deadline for registering to vote is another important issue, as are the current deadlines for postal and proxy votes.

As I have indicated, we do not have experience of a 21-day timetable but the Government agree that this is an important issue and we want to set out our proposals on how we might address it in the future. In asking the noble Lord to withdraw his amendment, I hope he will accept that the Government recognise that there are much wider issues to deal with here, and that 21 days is perhaps not the appropriate length of time. We should look at the totality of a longer electoral timetable, but it would not be appropriate to amend it in this Bill.

[Lord Kennedy of Southwark]

I thank the noble and learned Lord for his response. I also thank the noble Lord, Lord Rennard, and my noble friend Lord Bach for their comments. I am happy to beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Amendment 54 had been withdrawn from the Marshalled List.

Amendment 55

Moved by

[Lord Howarth of Newport]

55: Clause 3, page 2, line 28, at end insert—
“( ) Parliament may otherwise be dissolved if—
(a) Her Majesty appoints another Prime Minister;(b) a Government of a different coalition is formed;(c) the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy;(d) the Prime Minister considers a Parliament not to be viable;(e) the number of MPs in receipt of the governing party’s or governing coalition’s whip falls below a majority of 10 over the combined members of the other parties in the House of Commons.”

[Lord Howarth of Newport]

My Lords, I do not detect a huge zest in the Committee for considering the remaining amendments on the Marshalled List at this time of the morning. However, if that is what the usual channels have agreed and wish to insist on, it is not for the rest of us to argue.

In moving Amendment 55, I wish to speak also to Amendment 55A. Both these amendments would widen the range of circumstances in which Parliament may—not must—be dissolved beyond the two contingencies that are provided for in the Bill, which are the eventuality of the two-thirds majority and that of a vote of no confidence. My first suggestion is that if a new Prime Minister is appointed by Her Majesty, there should be the possibility of a general election quickly following that. I do not think that when Mr Major replaced Mrs Thatcher in 1990, and certainly when Mr Callaghan replaced Mr Wilson in 1976, there was widespread public demand that there should be a general election. It was accepted that it was reasonable and appropriate that the Government should be headed by a new Prime Minister without a general election taking place. On the other hand, when Mr Brown replaced Mr Blair in 2007, there was a very discernible feeling in the country that there should have been a general election. Professor Bogdanor has suggested that that may be because our politics had become more presidential by that time, but I think that when Mrs Thatcher was our counterpart to President Reagan our politics were already fairly presidential, so I am not sure that that is the explanation. Be that as it may, there was that feeling in the country.

It is also interesting that before the recent election Mr Cameron proposed that a new Prime Minister taking office should be required to go to the country within six months of doing so. It would be helpful if the Minister was able to cast any light on why that proposal was dropped and is not incorporated in the Bill. Perhaps the Liberal Democrats thought that it was a bad idea for whatever reason—I do not know. However, it was an interesting suggestion and one that should not be forgotten. If we are likely to have more frequent hung Parliaments, and there are indications that that may be so, it follows that there is a greater likelihood that there will be a change of Prime Minister within the Parliament. If we are to have a situation in which one Prime Minister gives way to another but there is no election, that raises questions about accountability, not least in the context of the coalition’s own insistence that its reforms are designed to improve the accountability of politicians to the people. That is one set of circumstances in which it would be appropriate to allow a general election.

I then propose in the amendment Dissolution if a Government of a different coalition are formed, so we are not just talking about a new Prime Minister of the same party continuing in government. However, if we get a new coalition, I suggest that again accountability to the people should require at least the possibility of a new election without having to resort to devices such as Motions of no confidence and so forth, or indeed getting a two-thirds majority in the House of Commons, which might still be difficult.

Thirdly, I have suggested that if,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”,

it should be legitimate for him to go to the country. At this time of night, my memory is rather failing me, so perhaps the noble Lord, Lord Lexden, can help me. Did Mr Baldwin go to the country on tariff reform? I think that that may have happened, and in fact I see nods from better informed noble Lords on the other side of the Chamber. Had Mr Heath, when he performed the famous U-turn and adopted an incomes policy in 1972, thought that it was appropriate to go to the country, I do not think that anyone would have objected. If a similar situation were to develop now, surely that, too, would be appropriate. It should be possible for a major change of policy to presage an election in which the Prime Minister seeks the endorsement of the country for that new course of policy.

Fourthly, I have suggested that, if in the view of the Prime Minister a Parliament is no longer viable, again he should be able to seek Dissolution and go to the country. We talked in an earlier debate about just such a judgment made by Mr Attlee in 1951. Had this fixed-term Parliament legislation been in place, that Labour Government might have had to struggle on unable, by the Prime Minister’s own acknowledgement, to govern effectively unless it had been reprieved by a two-thirds majority. I think that there should be a surer way to provide that an election can take place in those circumstances.

My final suggestion is a bit arbitrary, if not even possibly whimsical. It is that where,

“the number of MPs in receipt of the governing party’s or governing coalition’s whip falls below a majority of 10 over the combined members of the other parties in the House of Commons”,

again it should be possible for a general election to take place. That is, in a sense, a variant of the situation in which a Prime Minister judges that a Parliament is not viable. However, in this case it would not necessarily be just the opinion of the Prime Minister that would count.

Amendment 55A is a little different. It picks up a suggestion made by Mr Gordon Brown that a Parliament may, not must, be dissolved if the House of Commons approves by a simple majority a Motion that the Prime Minister should request Dissolution from the Queen. This seems to be an elegant and simple solution to what the Government have stated as the key issue that they wish to resolve through this legislation. They think it is objectionable that the Prime Minister of the day should have the power to call the election whenever he wishes. Gordon Brown suggested that the Prime Minister should no longer have the power to seek Dissolution on his sole judgment—a power which I think was originally assumed by Lloyd George and which has rested with subsequent Prime Ministers. The Prime Minister would have to go to the House of Commons and secure a vote there before he could go to the Palace and request Dissolution. This would solve the main problem that the Government have set out to solve. It could be legislated for, although I do not think that it really needs legislation; it could be accepted as one of the conventions under which Parliament operates. I beg to move.

[Lord Norton of Louth]

I thought that I would speak briefly on the amendment. I can see the argument that it drives a coach and horses through the intention of having fixed-term Parliaments and I can see that it may attract some support in the House for that reason. I have problems with how the amendment is drafted, as it says:

“Parliament may otherwise be dissolved”.

Who determines that? It may otherwise be dissolved if Her Majesty appoints another Prime Minister. Is it the incoming Prime Minister who determines that there should be a dissolution? It also states that,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”.

One can see how any Prime Minister could have a fairly minor change of policy and decide, “I’d rather like to have a general election”, and it could be used as an excuse presumably for triggering the election. There is no requirement here; it has to be a major change in public policy. There are obvious drafting problems because I am completely unclear as to who would be responsible for triggering a Dissolution. That is my problem with it, but some may find that quite attractive since, in effect, it would undo the whole Bill.

[Lord Falconer of Thoroton]

I am not sure that it would. There are drafting issues and the noble Lord is right about that, but there has been a mood around the House that when John Major replaced Margaret Thatcher or Gordon Brown replaced Tony Blair, it might have been appropriate to have a general election. I understand that my noble friend Lord Howarth is saying, “Let’s define some circumstances which don’t say you have an absolute discretion, which is the current position, but there are certain defined circumstances”.

I agree that some of them, such as,

“the Prime Minister considers a Parliament not to be viable”,

and,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”,

are a little vague. Would it be a change in any government policy, including where we stand in relation to the Forestry Commission? That might be a little bit unjustifiable, but if you wanted the Brown-Blair, Thatcher-Major; a change in the complexion of the Government; the Heath situation; and the October 1974 situation—there is a broad consensus round the House that those would not be bad—it is not necessarily a bad idea to say that tightly drafted provisions should be included at the end of Section 3.

We are dealing not with the safety valves but specific occasions when the nation would think it appropriate for there to be an election. I do not see that as being necessarily inconsistent with a fixed-term Parliament. As the noble and learned Lord rightly said, we are not in the Norwegian-type situation where it is X years come what may, and you soldier on to the end, come what may. You are identifying certain circumstances when the norm, whether four or five years, can be departed from. It is when there is a vote of no confidence, or questions when certain well recognised events occur, which justify the then Government seeking the endorsement of the electorate, even though there was no vote of confidence and even though there was no two-thirds vote, which would be, as I understand it, a Prime Ministerial discretion.

What the noble Lord, Lord Norton, is getting at is that if it is a Prime Ministerial discretion, you go straight back to where you were before. Let us suppose that the provision said that the Prime Minister—meaning the new Prime Minister—can go to the country if he takes over mid-Parliament. That would not be an absolute discretion; it would be a very constrained discretion, usable only when there was a change in Prime Minister. That would not strike me as driving a coach and horses through the Bill, although I can see that the noble Lord is dying to tell me why I am wrong.

[Lord Norton of Louth]

Yes, I was going to suggest that he is. In circumstances that he suggested that it is the incoming Prime Minister who can opt to do that, as with Anthony Eden in 1955, presumably it will be used to the Prime Minister’s advantage. When the noble and learned Lord suggested that the mood of the nation perhaps favoured a change, one can see situations in which the very last thing an incoming Prime Minister plans to do is call an election.

[Lord Falconer of Thoroton]

Think, like the right honourable Nick Clegg, about giving the public more control over their politicians. There is always a sense of frustration that comes when a new Prime Minister comes in and the public get no say in whether this change is right. This would reflect this mood and give the public more control.

The noble Lord is right. I cannot think how I would have taken over as Prime Minister and at the same time been unpopular. It is an unlikely scenario. However, it is a way of avoiding lots of clubhouse politics, where you move from one to another. It does not necessarily drive a coach and horses through the Bill. It would do so if the viability provision or the change in policy were there. It would, however, be worth the Government thinking of a circumstance in which, for example, a Government totter on with a majority of one and want to have a general election but the Opposition will not give them a two-thirds vote. Why should there not be a general election in those circumstances? It might well be that the country is not assisted by there being weak government in those circumstances.

I completely understand why the Government would wish to knock out the very general reasons for Dissolution. However, if the Government are serious about trying to improve the constitution, it is worth them considering whether or not there are more specific reasons of the sort proposed by the noble Lord, Lord Howarth of Newport, that might be worth including in Clause 3(2) of the Bill that says that,

“Parliament cannot otherwise be dissolved”,

except in those situations that we have dealt with before, which is the two-thirds majority, the expiry of the fixed term or a motion of no confidence.

Amendment 55A says that Parliament cannot otherwise be dissolved,

“unless the House of Commons has approved on a division a motion tabled by the Prime Minister that the Prime Minister should request Her Majesty to dissolve Parliament”.

The effect of that provision is that it would not be in the discretion of the Prime Minister alone, which is the current position. Put aside everything else. Assume no Motion of no confidence. Assume no two-thirds vote. Assume no change to the Bill to allow any special measures. The Prime Minister could nevertheless table a Motion that says, “I think there should be a general election”, and, if Parliament backed him by a simple majority, there could be a general election. This is probably the position anyway because, as the noble and learned Lord, Lord Wallace of Tankerness, says, there is nothing to stop the Prime Minister from procuring a vote of no confidence to get rid of himself so that, for example, in the Heath situation, he could have an election to deal with a particular crisis that had struck the Government. Would it not be more sensible for there to be a straightforward mechanism that allowed that to happen? If it can happen by the back door, why should it not be allowed to happen by the front door? It does not offend against the Fixed-term Parliaments Bill because its stated purpose is to take away the right to call a general election from the Prime Minister and give it to Parliament. Amendment 55A does not offend against that principle

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.

I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.

I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.

On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I was quite wrong. This has been a very zestful debate—positively sparkling. I congratulate all noble Lords who have spoken on their effervescence at this time of the night.

I tabled these amendments because I think that the Government have restricted the Bill to permitting elections to happen before the end of the fixed term in too limited a range of circumstances. I think there are circumstances in which it would be in the interests of politics and of the country that there should be an election. I apparently differ from the Government in thinking that elections are a good thing. I do not think that it is desirable to stave them off so that they can happen only once every five years, if you can get away with it. A general election is a great moment in the life of the country, and we should be willing to recognise that there will be situations in which an election would be a thoroughly positive thing that would be welcomed by the country and that would be good for our politics, for the quality of government and for our democracy. It may well be that I have not sufficiently tightly defined all these circumstances, and given that the noble Lord, Lord Norton of Louth, and the Minister have drawn attention to the palpable inadequacies of drafting in Amendment 55, I beg leave to withdraw it.

Amendment 55 withdrawn.

Amendment 55A, in substitution for Amendment 54, not moved.

Clause 3 agreed.

Amendments 55B and 55C

Moved by

[Lord Wallace of Tankerness]

55B: After Clause 3, insert the following new Clause—
“General election for Scottish Parliament not to fall on same date as parliamentary general election under section 1(2)
(1) This section applies in relation to the ordinary general election for membership of the Scottish Parliament the poll for which would, apart from this section and disregarding sections 2(5) and 3(3) of the Scotland Act 1998, be held on 7 May 2015 (that is, the date specified in section 1(2) of this Act).
(2) Section 2(2) of the 1998 Act has effect as if, instead of providing for the poll for that election to be held on that date, it provided (subject to sections 2(5) and 3(3) of that Act) for the poll to be held on 5 May 2016 (and section 2(2) has effect in relation to subsequent ordinary general elections accordingly).”

55C: After Clause 3, insert the following new Clause—
“General election for National Assembly for Wales not to fall on same date as parliamentary general election under section 1(2)
(1) This section applies in relation to the ordinary general election for membership of the National Assembly for Wales the poll for which would, apart from this section and disregarding sections 4 and 5(5) of the Government of Wales Act 2006, be held on 7 May 2015 (that is, the date specified in section 1(2) of this Act).
(2) Section 3(1) of the 2006 Act has effect as if, instead of providing for the poll for that election to be held on that date, it provided (subject to sections 4 and 5(5) of that Act) for the poll to be held on 5 May 2016 (and section 3(1) has effect in relation to subsequent ordinary general elections accordingly).”

Amendments 55B and 55C agreed.

Amendment 55D not moved.

Clause 4 : Supplementary provisions

Amendment 56

Moved by

[Lord Howarth of Newport]

56: Clause 4, page 3, line 12, at end insert “except that Parliament may not be prorogued for more than 14 days”

[Lord Howarth of Newport]

My Lords, it is me again, but this is the last time. The Bill abolishes the monarch’s power to dissolve Parliament but not the monarch’s power to prorogue Parliament. If the monarch is removed from the dissolution process, should she continue to exercise other prerogative powers, such as the power of prorogation or the power to summon Parliament? It is a question worth pausing on and it would be helpful to hear the Government’s account of why they have sought in this Bill to remove one very important prerogative power but to leave others in place.

I am not a great believer in consistency in constitutional matters. A constitution breathes and relaxes through its anomalies and is able to be responsive to the complex circumstances of the different parts of a country through the very existence of anomalies. I am rather of the view of Ralph Waldo Emerson who said:

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”.

I think that we would all reject such consistency—I hope so.

At a practical level, the Bill leaves a loose end. The continuing power of prorogation is, in principle, open to abuse. If a Prime Minister were to be defeated on a vote of no confidence he could, under the terms of the Bill, ask the Queen to prorogue Parliament to get around the 14-day constraint. There was such an incident in Canada not very long ago. Following his re-election, the Canadian Prime Minister asked the Governor General to prorogue Parliament. The Prime Minister was seeking to avoid losing a threatened vote of confidence. Parliament was prorogued for two months. By the time it came back, the threat of that vote of confidence had pretty well gone away, so his continuing lease on power was ensured. The Constitution Select Committee thought that the likelihood of such an abuse occurring in the circumstances of this country was very low, with which I agree. I think that if any Prime Minister were to attempt to manipulate and abuse the power of prorogation, it would certainly backfire on him politically.

This amendment seeks to provide a safeguard against prolonged prorogation if a Prime Minister did seek to avoid the consequences of a no-confidence vote and get the election deferred to benefit himself or his party. The amendment should probably have been framed to guard equally against an abuse of the power of adjournment. Without such an amendment, the only safeguard that would remain would be the refusal of the monarch to accede to a request for prorogation. I think that we would all take the view that it is not a good idea to place the monarch in a politically contentious position. There is a loose end to be tidied up here and I should like the Minister to explain why the Government have left the power of prorogation as it is. I beg to move.

[Lord Falconer of Thoroton]

My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.

The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.

An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.

The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.

These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I draw much comfort from what the Minister has just said. Indeed, we need not be too scared of the possibility of an abuse of the power of prorogation and, subject to what my noble friends consider in the mean time, I anticipate that we will not need to return to this issue on Report.

I am grateful for what my noble and learned friend said and for the tolerance of the House. If I have been a little overzealous it was because, very shortly before the first day of Committee on the Bill, only a small handful—perhaps not more than eight—amendments had been tabled. As we have all acknowledged, this is a constitutional reforming measure of first-rate importance. We attach great importance to the role of this House as a revising Chamber and it is appropriate that we have had a good range of amendments to consider and have given the measure useful scrutiny in Committee. I apologise that the House has had to put up with the sound of my voice for far too long. However, we have done a good job, as we shall again when we get to Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Clause 4 agreed.

Schedule agreed.

01:00

Clause 5 : Final provisions

Amendments 57 and 58 not moved.

Amendment 59 had been withdrawn from the Marshalled List.

Clause 5 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 1.02 am.