House of Lords

Tuesday 10th May 2011 Lords Chamber

Tuesday, 10 May 2011.

14:30

Prayers—read by the Lord Bishop of Norwich.

Health: Cancer

Tuesday 10th May 2011 Lords Chamber

Question

14:37

Asked By

[Lord Davies of Coity]

To ask Her Majesty’s Government what steps they are taking to improve outcomes for kidney cancer patients.

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

My Lords, our cancer strategy sets out a range of actions to improve outcomes for all cancer patients. It shows how we intend to tackle preventable cancer incidence, improve the quality and efficiency of cancer services and deliver improved outcomes. We are providing £450 million to achieve earlier diagnosis of cancer, and we are working with a number of rarer cancer charities to discuss current barriers to early diagnosis of rarer cancers and possible solutions.

[Lord Davies of Coity]

My Lords, I thank the Minister for that Answer. Is he aware that each year more than 8,000 people in the United Kingdom learn that they have kidney cancer? That is approximately 22 people a day. Is he aware, too, that some of the treatment options contained in the UK guidelines for the systemic treatment of renal cell carcinoma have not been approved by NICE? Finally, will the Minister meet the James Whale Fund for Kidney Cancer and leading clinicians to explore methods and systems to improve the diagnosis of kidney cancer at the early stage?

[Earl Howe]

My Lords, I pay tribute, first of all, to the James Whale Fund for Kidney Cancer, which is an organisation that I know quite well, as the noble Lord is aware. It is doing tremendous work, not least in the field of specialist cancer nursing but also as regards its care line, on which I congratulate it. The noble Lord asked whether I would agree to meet the fund. For my own part I would be very happy to do so, but it may be more appropriate for my colleague in the department, who deals with cancer services, to do so as well. We recognise that more needs to be done to raise awareness of the signs and symptoms of rarer cancers such as kidney cancer. Our strategy for cancer sets out our commitment to work with a number of cancer-focused charities. Officials have already met such charities and more meetings are planned over the summer.

[Lord Alderdice]

My Lords, the noble Lord, Lord Davies, raised the question of National Institute for Health and Clinical Excellence approval of chemotherapeutic drugs. After a nephrectomy, not much else is available, because radiotherapy is generally not terribly helpful in renal cell carcinoma and other cancers of the kidney. The National Institute for Health and Clinical Excellence has to look, with these often quite expensive drugs, at how much benefit is being achieved for the cost of the drug. It is not an easy decision, which is why the noble Lord, Lord Davies, raised the question of some non-approved drugs. Is the Minister satisfied about the judgments being made by NICE about the benefit as against the cost? They are difficult judgments, but is he satisfied with the judgments being made?

[Earl Howe]

I am grateful to my noble friend. He is absolutely right; these are very difficult decisions to make. NICE issues final guidance on the use of a drug only after very careful consideration of the evidence and wide consultation with stakeholders. The noble Lord, Lord Davies, and, I am sure, my noble friend will be aware that one particular drug has been refused or not recommended by NICE. However, we have established the cancer drugs fund, which will enable individual clinicians on a patient-by-patient basis to apply to access drugs even though they have not been recommended by NICE.

[Baroness Masham of Ilton]

My Lords, will the Minister look at the problem of neuroblastoma, which is an aggressive type of child cancer? I have to declare an interest as I had a small cousin who had his kidney removed at five with a tumour. He had to go to America for treatment. Will the Minister ensure that the UK, which does not have a good survival rate for these children, looks with America at the research needed for them? There are only about 100 a year in the UK who have neuroblastoma.

[Earl Howe]

The noble Baroness raises an important issue, because these conditions are devastating even though they affect only a comparatively small number. There is a good deal of research going on into cancer, some of it funded by my department. I do not have details of whether that condition is the focus of any such programme but I will take away her concern and write to her if I have further information.

[Baroness Thornton]

My Lords, today the Cancer Campaigning Group, which represents dozens of cancer organisations including Kidney Cancer UK, has launched a survey of GPs in which 71 per cent agree or strongly agree that they will require specialist advice effectively to commission cancer services. Given that the cancer networks’ funding is not guaranteed beyond 2011-12, how will that commissioning support be provided? On an individual basis, how will support be provided to GPs when they have to tell a kidney cancer patient that they will not be able to afford to offer Afinitor? That is the drug the Minister referred to, which is not approved by NICE and which costs £200,000 per course of treatment.

[Earl Howe]

My Lords, there are drugs which NICE has recommended for kidney cancer, so Afinitor is not the only drug on the menu. GPs have a crucial role to play if we are to achieve earlier diagnosis of cancer and meet our ambition of cancer outcomes that are among the best in the world. The National Cancer Director, Professor Sir Mike Richards, is working with pathfinder GP consortia to understand how we can support them in commissioning services that deliver the best outcomes. He is clear, as are we, that cancer networks will have a central role in the reformed NHS as a place where clinicians from different sectors come together to improve the quality of care across integrated pathways.

[Baroness Knight of Collingtree]

My Lords, has my noble friend made any assessment of the difficulties of treating cancer patients, when the trouble is with the kidneys, because of lack of spare parts?

[Earl Howe]

I think I shall need to clarify with my noble friend what she means by spare parts in this context. I am aware that if we look at treatment options for kidney cancer, neither chemotherapy nor radiotherapy is generally appropriate. Usually, surgery is the preferred course of treatment. If my noble friend will allow, I will speak to her afterwards and investigate as appropriate.

Arts: Local Provision

Tuesday 10th May 2011 Lords Chamber

Question

14:44

Asked By

[The Earl of Clancarty]

To ask Her Majesty’s Government what steps they are taking to encourage the provision of arts at a local level.

[Baroness Rawlings]

My Lords, Her Majesty’s Government will invest more than £2.2 billion in the arts over the next four years via Arts Council England. This money will support artists and organisations working at every level, from small community arts groups to our major national institutions.

[The Earl of Clancarty]

My Lords, I thank the Minister for her reply. However, in view of the fact that we already have unacceptable levels of funding to the arts locally—100 per cent cuts have been made by some local authorities—and that we are just at the beginning of this, does the Minister agree that what is urgently required is the introduction of a statutory obligation on local authorities to provide proper funding of the arts and cultural services, since these are such a necessary part of the life of local communities?

[Baroness Rawlings]

My Lords, I understand fully the thrust behind the question of the noble Earl, Lord Clancarty, but we feel that imposing a statutory duty would also place added burdens upon local government at a time when deregulation is a priority. We want to continue to give the funding responsibility to local communities and local authorities so that they can take the decisions which are most appropriate for their area, rather than imposing a one-size-fits-all model of cultural provision.

[Baroness McIntosh of Hudnall]

My Lords, does the Minister agree that Arts Council England, to which she referred, has made a pretty good effort through the creation of its new national portfolio to ensure that there is coverage across England of arts organisations at all scales, as she mentioned? I should, perhaps, register an interest as the author of a report, three years ago, on its last effort, which was, perhaps, slightly less successful. Does she not agree, however, that the random nature of the way in which funding has been withdrawn by local authorities makes the Arts Council’s job a great deal more difficult and means that the available funds are used less well? It would be in the interests of the Government, as well as those of arts communities, for local authorities to be more consistent in the way they apply their funding to the arts and culture.

[Baroness Rawlings]

My Lords, the noble Baroness is absolutely right. The arm’s-length principle means that individual arts funding decisions are taken at arm’s length from government. To go back to the main part of her question, on 30 March Arts Council England announced its new national portfolio organisations. These are bodies which will receive regular funding over the next three years. As for the geographical breakdown, the spending will remain largely the same, so it will cover all areas.

[Baroness Gardner of Parkes]

My Lords, we hear a lot about National Lottery funds and the fact that the lottery gives money to the arts. Will the Minister say how that compares to the amount given by DCMS to the arts?

[Baroness Rawlings]

I thank the noble Baroness, Lady Gardner, for that. While grant in aid, just one part of the Arts Council overall income, is being reduced, we are reforming the lottery so that more money will go to the arts. An additional £80 million will go to the arts from the National Lottery each year from 2013.

[Lord West of Spithead]

My Lords, I declare an interest as the patron of the wonderful Docklands Sinfonia. In terms of the Cultural Olympiad planned for 2012, will we be picking up local arts activities within schools in the East End and also all the musical possibilities, rather than just going for stilt walkers and things like that—not that I have anything against stilt walkers?

[Baroness Rawlings]

The noble Lord brings up a very good point regarding the Cultural Olympiad, with which we in the department are all deeply involved. He is absolutely right and that is what we hope to continue to do.

[Lord Scott of Foscote]

My Lords, is it right that the Department for Communities and Local Government is preparing guidelines to assist local authorities in deciding what approach to take to proposed cuts in the fields of the arts, heritage and sports? If it is right, is it right also that these are proposed to be given statutory effect? Will the guidelines, once produced, come before Parliament for approbation?

[Baroness Rawlings]

To return to the actual funding, the Department for Culture, Media and Sport feels strongly that individual arts funding decisions must be taken at arm’s length through Arts Council England.

[Lord Roberts of Llandudno]

My Lords, there is immense talent throughout the United Kingdom. What is being done to encourage the exchange of art collections between Scotland, Wales, Northern Ireland and England? It is not just Arts Council England that is involved in this.

[Baroness Rawlings]

Decisions in the Welsh Assembly regarding the Arts Council, for example, are devolved. It is a devolved issue and does not come under Arts Council England.

[Lord Stevenson of Balmacara]

Does the Minister agree that in practice the situation facing local arts organisations is made much worse by the fact that, in addition to the 29.6 per cent cut in Arts Council funding over the next four years and the reductions in local authority funding, about which we have just heard, the RDAs, which significantly supported our creative industries and the arts right across the country, have been abolished? What progress are the Government making in replacing those lost funds before too much damage is done?

[Baroness Rawlings]

The Department for Culture, Media and Sport has negotiated a substantial settlement for the arts, and it is not true that they are facing major cuts. As your Lordships know, though, we need to contribute, like others, to reducing the deficit. In the longer term, our areas that rely on several different sources of funding will benefit, like elsewhere, from a strong economy and stable public finances. It is simply not an option to protect arts funding while cutting public spending in other areas, but in time much more money will be coming from the lottery, as the noble Lord knows.

[Lord Grade of Yarmouth]

My Lords, however regrettable and inevitable the cuts in funding for the vital arts in this country, unlike other sectors that are susceptible to cuts, the arts sector has the opportunity to find a new source of funding from charitable giving, which is the foundation of the thriving arts in the United States where there is no public subsidy whatever. It is time that we worked harder at finding incentives for charitable giving. Does the Minister agree?

[Baroness Rawlings]

I thank my noble friend Lord Grade for that question, which he knows is very near to my heart. We have announced a package of measures to boost charitable giving, including an £80 million matched funding pot. In the Budget of 23 March, the Chancellor of the Exchequer announced a significant package of new measures to support a drive towards greater charitable giving, worth around £600 million to charities. We would all like still more, and perhaps we should follow the American route a little more.

Children: Adoption

Tuesday 10th May 2011 Lords Chamber

Question

14:53

Asked By

[Lord Waddington]

To ask Her Majesty’s Government what steps they propose to take to ensure that children do not lose the chance of being adopted as a result of the closure of adoption agencies following the Equality Act (Sexual Orientation) Regulations 2007.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, the Government are committed to adoption where this is in a child’s best interests. We have been monitoring the effect of the introduction of the regulations, and have made it clear to local authorities that they should work with the voluntary sector to maximise the number of successful adoptions. My honourable friend Mr Loughton is leading a drive to speed up adoption and remove potential barriers—for example, for children from minority ethnic backgrounds.

[Lord Waddington]

I thank my noble friend for his reply, but in light of the Times report of 2 May that five of the remaining Catholic adoption agencies have gone out of business rather than abandon their Christian beliefs, with the likelihood that this will make it harder for some of the most vulnerable children to be found a home, should not common sense and tolerance come before political correctness? With gay couples able to go to any number of agencies specialising in gay adoption, should not the law allow the Catholic agencies the same freedom of conscience as was allowed to conscientious objectors during the war?

[Lord Hill of Oareford]

I understand the point made by my noble friend and know the strength of feeling that he brings to bear on this. The department has approached adoption from the point of view of what is in the best interests of children by trying to have as a wide a pool as possible of potential adopters. No one on this side of the House is keen to do things that are driven by political correctness. That is one of the reasons why we are looking, for example, at the adoption of minority ethnic children. I understand the points that my noble friend makes, but at the moment we have no plans to respond directly to them.

[Baroness Howarth of Breckland]

My Lords, in welcoming the Munro report today, which talks about some aspects of social work but has implications for the whole field, does the Minister agree with me that the complexity of the task that Mr Loughton is taking on involves improving social work practice and the practice of panels, reviewing the court processes, and ensuring that guardians move quickly? All of those things will take time and are much more significant than the matter being raised.

[Lord Hill of Oareford]

I very much agree with the point about the complexity of the issue and the need to look at all the issues in the round. The points that have been raised to do with court processes, finding suitable adopters, speeding up the process and tackling obstacles are all extremely important. As the noble Baroness will know, in responding to Munro my honourable friend Mr Loughton will take advice from an expert group on precisely these issues. He will come back later in the year to pull the various strands together and, I hope, come up with solutions. The whole House, irrespective of from where we are coming on some of these issues, will share the view that we need to find more good adoptions for the children who need them most.

[Baroness Benjamin]

My Lords, voluntary adoption agencies such as Barnardo’s—I declare an interest as a vice president—welcome the Government’s focus on adoption. However, for adoptive places to succeed there needs to be long-term commitment. Are there any plans to ensure that specialist therapeutic services and multi-agency support for adoptive families are made more widely available so that adoptive placements succeed, especially for older children who come from a traumatised or abused background?

[Lord Hill of Oareford]

I agree with my noble friend about the importance of support services and specialist support services. Part of a good solution to the problems of adoption is finding a bigger supply of adopters, speeding up the process and supporting those families who have adopted children. On her specific point about what support might be available, I will follow that up with my honourable friend Mr Loughton and respond to her in more detail.

[Lord Campbell-Savours]

Does the Minister recognise that the position taken by the noble Lord, Lord Waddington, may well be the position taken by the majority of people in this country? Should we not be listening to people?

[Lord Hill of Oareford]

My Lords, as I said, I understand the point of view expressed by my noble friend Lord Waddington and always listen to him most carefully, as I do to the noble Lord, Lord Campbell-Savours. However, there is not much that I can add to my previous reply to my noble friend Lord Waddington.

[The Lord Bishop of Norwich]

My Lords, a significant number of faith-based children’s agencies are still providing adoption services in compliance with the Equality Act, while others are now restricted in that area to providing services after adoption. Does the Minister agree that, taken together, all these faith-based children’s agencies provide a key service to vulnerable children—one that could be further extended?

[Lord Hill of Oareford]

I very much agree with that. As we have said in previous debates and exchanges about adoption, the role of the voluntary adoption agencies is extremely important in this. One of the issues that my honourable friend Mr Loughton is looking at is encouraging the take-up of the services provided by the voluntary adoption agencies. Some local authorities seem more resistant than others to using those services. One would want to tackle that because the range of different performances from one local authority area to another is very wide. It would be good to narrow it. The role of voluntary adoption agencies in that is an important part of coming up with a solution.

[Baroness Jones of Whitchurch]

My Lords, does the Minister agree that the application of the Equality Act, far from resulting in children losing the chance of being adopted, will open up new opportunities for a much more diverse group of prospective parents to offer a stable and loving home to children in care?

[Lord Hill of Oareford]

I reiterate my point that all sides of the House would agree that having a wide number of potential adopters—those with strong religious beliefs and those without—who can help children and provide loving and stable homes for them is what we would all seek to encourage.

Bahrain

Tuesday 10th May 2011 Lords Chamber

Question

15:00

Asked By

[Lord Ribeiro]

To ask Her Majesty’s Government what representations they have made to the Government of Bahrain following the arrest of doctors and nurses charged with crimes against the monarchy.

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

My Lords, we are deeply concerned about reports of the severe charges brought against a large number of doctors and nurses by a Bahraini military tribunal. It is essential that medical personnel can treat their patients free from political interference. Our ambassador raised the case with the Bahraini Minister of Justice on 4 May.

[Lord Ribeiro]

I thank my noble friend for his considered response. He has a list of 17 doctors who are currently detained, the majority of whom are surgeons. The accounts of torture and beatings reported in the Independent today confirm that the Government of Bahrain are failing in their duty of care to protect doctors and medical staff. The International Code of Medical Ethics, adopted in 1949 and amended in 2006, states:

“A physician shall give emergency care as a humanitarian duty”.

Will my noble friend join the leaders of the medical profession in condemning the attacks—as he has done, but more forcefully—and in seeking independent monitoring of any future trial?

[Lord Howell of Guildford]

The feelings of the Government are largely in line with those of my noble friend. The arrest of doctors and nurses seeking to perform their duties is clearly an appalling situation. I have to tell my noble friend that not all aspects of this case are clear at the moment, but we take the view that it is very important that the accused have proper access to legal counsel and be tried by impartial and independent courts. We take a strong view on that matter. Other aspects have been raised, and will continue to be raised, by our ambassador, but not all aspects of this case are clear at the moment.

[Lord Avebury]

My Lords, does the Minister agree that these arrests of doctors, nurses, ambulance workers and paramedical personnel are part of a massive sectarian purge of intellectuals throughout Bahrain that includes university teachers, journalists, the editor of a newspaper and two MPs? Should not the Government call in the Bahraini ambassador and inform him that, unless these detainees are released and the UN High Commissioner for Human Rights is permitted to carry out an impartial investigation, we will impose a travel ban on leading members of the regime and ask the prosecutor of the International Criminal Court to consider charges against the leaders of the regime for crimes against humanity?

[Lord Howell of Guildford]

At this present stage, we do not consider travel bans or other charges and moves of that kind to be a proper way forward. We are in constant contact, not merely with the ambassador here but, through my right honourable friend the Foreign Secretary, with the Foreign Minister of Bahrain and other Ministers, including the Minister of Justice. We continue to believe that the aim is to have a national dialogue to meet the problems of what my noble friend rightly calls an appalling situation of inter-regional strife between the Shia majority and the Sunni minority that represents the ruling group. This is an intense tension. Its effects are in danger of spreading to other parts of the Middle East, with all kinds of results that we do not want. Therefore, for the moment, we stick to the view that we must urge these countries, the ruling family and the leaders on both sides—the opposition and the ruling group—to move towards a national dialogue. That is what they say they want and that is what we are urging them to do as hard as we can at the moment.

[Lord Owen]

Will the Government ensure that, besides making very strong bilateral representations, we use our position in all the international bodies available, including the Security Council, the WHO and all the humanitarian bodies, to raise this issue at the very highest level? There is now very clear evidence of targeted action against individuals who are caring for people who come into hospital as a result of demonstrations. The Bahrain Government, who have had good relations with this country over many years, must now listen to those representations.

[Lord Howell of Guildford]

The representations we are making are strong. I have to repeat what I said to my noble friends: not all aspects of this issue and this whole case are entirely clear at the moment. Any evidence of deliberate maltreatment or withdrawal of treatment by medical personnel from people on religious grounds would be appalling. Any interference with those who are trying to dispense treatment—if they are arrested and treated as criminals—would be appalling. All those matters need very close investigation. Whether it is the right moment to raise them in all the bodies that the noble Lord mentioned, I am not yet convinced, but they are matters which we are watching very closely, and that time may come.

[Lord Triesman]

My Lords, I am sure that the statement made by the Minister about the intervention in respect of the medical staff will be welcomed by the House. Can he tell us of other instances of intervention in Bahrain and whether the Government believe that they have been successful in any of them?

[Lord Howell of Guildford]

I do not totally follow the generality of the question. If the noble Lord means to ask whether we have constant contact with Bahrain and whether we are putting considerable pressure on those with whom we have had close contact—because Bahrain remains a close ally and good friend of the United Kingdom, and vice versa—those interventions are going on all the time. Have they had effects? They have not had the effects we want by any means so far. On the contrary, we have seen a deterioration in the situation, which is very disappointing. The issue now is how we handle it: whether we put even bigger barriers between ourselves and the Bahraini authorities, or whether we use our former links to work very hard with them to change their ways and develop a dialogue—which earlier they said they wanted, in contrast to other countries where there has been a tendency towards civil war, mass killings and other violent and hard-line activities.

Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011

Tuesday 10th May 2011 Lords Chamber

Debt Relief (Developing Countries) Act 2010 (Permanent Effect) Order 2011

Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulations 2011

Representation of the People (Electoral Registration Data Schemes) Regulations 2011

Electoral Registration Data Schemes Order 2011

Taxation of Equitable Life (Payments) Order 2011

Motions to Refer to Grand Committee

15:07

Moved by

[Lord McNally]

That the draft regulations and orders be referred to a Grand Committee.

Motions agreed.

Fixed-term Parliaments Bill

Tuesday 10th May 2011 Lords Chamber

Report (1st Day)

15:07

Motion

Moved by

[Lord Wallace of Tankerness]

That the Report be now received.

[Lord Grocott]

My Lords, before we consider the Report of the Bill, I should like to put a couple of points to the Minister. We are about to embark on a major constitutional reform at Report, but since we considered the Bill in Committee, a matter of considerable constitutional significance has taken place. That is to say, there was a referendum on the alternative vote system which, I am delighted to say, was overwhelmingly defeated by the British public—including, I might say, a 72 per cent no vote in Telford and a Labour-control gain from the Conservatives in Telford.

It is normal, if significant national events occur after Committee or between any stages of the Bill, that there be some reaction and, perhaps, amendments to the Bill. I see the Minister looking a little startled and, I am sure, thinking, “What is the significance of the referendum to this Bill?”.

I put it to him that there is considerable significance. Many of us on this side of the House spent a lot of time, when we debated the Bill that set up the referendum, arguing strongly that this was not an issue that the British public wanted put to them in a referendum, and that it was certainly not at the top of their list of priorities. I suggest that the read-across ought to be that the Government, rather than concentrating on constitutional Bills for which there seems to be very little public support, should concentrate on bread and butter issues.

The Deputy Prime Minister has repeatedly said that the three Bills that we will consider—the Fixed-term Parliaments Bill, the constituency boundaries and referendum Bill, which we have already considered, and the Bill to reform the House of Lords—are part of the greatest reform package since 1832. Therefore, if one plank is shown to be fallible, one would assume that, even in the view of the Deputy Prime Minister, other parts would be as well. I do not know what the Minister's experience was when he canvassed, but after the canvassing that I did my judgment is that there is as little public support for, or interest in, the Fixed-term Parliaments Bill—and I predict the same for the Bill to abolish the House of Lords and replace it with a Senate—as the yes campaign garnered in the referendum.

I will put two questions to the Minister. First, what is the urgency to consider the Bill on Report, in particular as the Government have decided very wisely that a period of three months’ reflection is sensible between Committee and Report for the health Bill? That is a welcome development and—I think the Minister will agree—a clear precedent for doing a similar thing with this major constitutional Bill. Secondly, does the Minister, with his long political experience, have any grounds for thinking—perhaps I have missed something—that there is strong public demand for the Fixed-term Parliaments Bill and for the Bill to abolish the House of Lords in its present form? If he cannot answer those questions reasonably positively, it would make sense to have a period of reflection before we go on with constitutional Bills in which there is no public interest and for which there is no public support.

[Lord Cormack]

My Lords, I will briefly but thoroughly endorse what the noble Lord, Lord Grocott, said. When one talks to people in the country, they say that they are desperately concerned about matters of health, education, taxation and all of those things. At the moment, they are deeply concerned about events in the Middle East and in other parts of the world. They find it quite incredible that the two Houses of Parliament, and this one in particular, should detain themselves by debating measures that are of no possible benefit to the public good, are diversionary and—to most people, whether it be in the club or the Dog and Duck—are of very little interest or relevance.

Along with the noble Lord, Lord Grocott, I urge that we have a period of reflection. We should recognise that the constitution is the most important part of our democratic heritage. It should be the plaything of nobody, and certainly the consolation prize of nobody. Therefore, I hope that the Minister, who will shortly address the House, will recognise the strength of feeling not only in the House but in the country, and will discuss with government business managers how the House can more properly and sensibly address issues that are of real importance to the people of this country.

[Baroness Farrington of Ribbleton]

My Lords, will the Minister confirm that there is nothing at present, without the Bill, to prevent the Conservative-led Government from serving a term of five years? The Bill is not necessary to achieve that end, unless the Government were to implode from within.

15:15

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

My Lords, I have heard the comments of the noble Lord, Lord Grocott, my noble friend Lord Cormack and the noble Baroness, Lady Farrington. I am sorry to disappoint, but it is worth pointing out that this Bill was introduced in the other place on 22 July last year. It had its Second Reading in the other place on 13 September and was introduced in your Lordships’ House on 19 January this year. I do not think that, by any stretch of the imagination, it could be said that the Bill is being rushed through. There has been plenty of opportunity for scrutiny, and there will be further opportunity today and on a second day on Report in your Lordships’ House. This in no way diminishes the Government’s attention to the important issues facing this country—not least addressing the deficit that we inherited from the party opposite.

Report received.

Clause 1 : Polling days for parliamentary general elections

Amendment 1

Moved by

[Lord Falconer of Thoroton]

1: Clause 1, page 1, line 4, leave out from “election” to end of line 5 and insert “shall be 8 May 2014”

[Lord Falconer of Thoroton]

My Lords, the opportunity has not been taken, so we must now build on the work done by this House. I am very disappointed in the lack of interest in this rather staggeringly important constitutional Bill—which confirms that this House seems to have the same view as the people in the Dog and Duck to whom the noble Lord, Lord Cormack, referred. I will leave it to noble Lords to get to the Dog and Duck.

This is an important Bill: it will have an impact constitutionally. It is a Bill to take seriously in the course of this scrutiny at Report stage, which will last two days. I am grateful to the usual channels for providing two days, which seems entirely appropriate. It is time for this House to take decisions, building, I would respectfully submit, on the work that this House and the other place have done. When I say building on the work that has been done, I include the work done by the Select Committees in both Houses—the one chaired by Mr Graham Allen in the other place, and the one chaired by my noble friend Lady Jay. I am very glad to see my noble and learned friend Lord Goldsmith and other members of the committee in the Chamber today.

We as a party support fixed-term Parliaments. However, the investigations done by both Houses, including both Houses’ Select Committees, have increased Parliament’s doubts about fixed-term Parliaments. Our own committee, the House of Lords Select Committee on the Constitution, said that the case made by the Government for fixed-term Parliaments had “not been made out” to its satisfaction. A similar view was expressed by the House of Commons Select Committee.

There were three specific anxieties that underlay that view. The first was the length; both Select Committees concluded that four years was better than five. Secondly, both Select Committees concluded that the provisions could be abused by a Prime Minister who, with a majority in the House of Commons, could go for an election whenever he wanted. Thirdly, the Houses of Parliament were seeking to include in legislation the House conventions in determining when a Government lost the confidence of the House of Commons, which is a critical part of our constitution.

These anxieties were well expressed in good debates on Second Reading and in Committee in this House. In today’s Report stage we on this side of the House intend to try to address those specific anxieties, and to support the Government and other Members of the House who have tabled amendments to try to resolve them. However, resolving these specific problems will not deal with the underlying sense of anxiety which still exists in this House about the Bill.

In those circumstances, the opposition party—the Labour Party—intends to support the amendment to be introduced by a number of Cross-Benchers, including the noble Lords, Lord Pannick, Lord Butler of Brockwell and Lord Armstrong, and the noble Baroness, Lady Boothroyd. The effect of their amendment is that if there is to be a fixed-term Parliament after each subsequent election, it will have to be approved by a resolution of both Houses. That seems to us a suitable response to a constitutional Bill which is of such importance but which has been introduced without pre-legislative scrutiny, proper public consultation or an adequate response from the Government to the particular issues raised. So I preface my remarks by indicating our support for that amendment. It does not stop us going into the Bill’s detail or—in the context of a Bill with this provisional aspect—seeking to improve it.

The first three groups of amendments concern the length of a Parliament, the issue being whether it should be four or five years. We have evidence on this: I refer to the speech of the noble and learned Lord, Lord Lloyd of Berwick, in Committee. He completely demolished the argument that it is a matter of judgment—the implication being that if it is a matter of judgment, any period would do. If it is a matter of judgment, it is all the more important, as the noble and learned Lord pointed out, to analyse what the “good judges” have been saying about what the right conclusion is. The first judge, I would respectfully ask the Government to bear in mind, is the person who introduced the current arrangements, namely Herbert Asquith. When introducing them in 1911, he rightly said that a maximum of five years was likely to produce Parliaments lasting about four years, which is close enough to the previous election or the coming election to ensure that Parliament remained properly accountable to the people.

The weight of academic evidence given to both Select Committees was overwhelmingly of the view that a fixed-term Parliament should be four years rather than five. Professor Robert Hazell told the Commons Select Committee:

“The balance between four and five years is more even than folk memory might suggest. But those parliaments which lasted for five years did so because the government had become unpopular and did not want to hold an earlier election. The Prime Minister stayed on hoping that his or her party's luck might change. It did not, save for the case of John Major, who scraped through with a narrow majority in 1992”.

Professor Blackburn, who has done a lot of work on this, was quoted by the noble and learned Lord, Lord Lloyd of Berwick, in his speech. The Select Committee in the Commons reported:

“Professor Blackburn suggested to us that when governments have lasted five years between elections, ‘the last year of every one has been pretty awful’”.

The Bill seeks to make it the norm that we should have five years. I would respectfully ask this House, if it wishes to have a proper process of scrutiny, to acknowledge where the weight of evidence is from all those who have looked at the issue, including Members of this House. I also pray in aid the following people: Mr Tony Wright, who introduced a Bill saying four years; my noble friend Lord Rooker, who is greatly respected in this House, and who introduced a Private Member's Bill in the House of Commons saying four years; and Mr David Howarth, no longer an MP, who introduced a Bill for fixed-term Parliaments which said four years and had the support, as co-sponsors of the Bill, of Mr Simon Hughes, Mr Chris Huhne, Mr Nick Clegg, Mr Danny Alexander, Mr David Heath, Ms Lynne Featherstone and Mr Paul Burstow. I mention these names only because every single one of them, with the exception of Mr Simon Hughes, is now a Minister in a Government proposing five years. Furthermore, the noble Lord, Lord Plant, who is not in his place, conducted an inquiry into our constitution in 1991 and 1992 and he recommended that there should be fixed-term Parliaments. He also said four years. The Liberal Democrats, as they proudly point out, have said for many years that there should be fixed-term Parliaments and that they should be four years.

Perhaps I may say with respect that if you are responding to a proper analysis of the evidence, the conclusion would be four years, not five years. If it should be four years, should it be four years for this Parliament or should it be five years for this Parliament and four years for subsequent Parliaments? In Committee, the noble Lord, Lord Cormack, said—I suggest with a heavy heart—that it should be five years to give this Government their coalition agreement, but four years thereafter. As I made clear on 21 March at cols. 505 and 512, I do not support that siren song. I have three reasons for not supporting it.

First, if five years is wrong for the future, it must be wrong for this Parliament. Secondly, if the reason that five years is wrong is that you end up with an “awful” fifth year, to quote Professor Blackburn, imagine the circumstances that we are currently facing. We have a number of politicians, the Liberal Democrats, who are greatly respected by all in this House. Let us assume that they do what every other politician in their position—that is, facing defeat—does; namely, they cling on until the last moment. If we pass a Fixed-term Parliament Bill of five years, we will allow the Liberal Democrats to do what MPs have done since time immemorial—to cling on to the bitter end. We are going to have an awful fifth year. I strongly recommend not succumbing to the siren song of five years for this Parliament and four for the next.

The third reason that we should not succumb to the argument is this. I can imagine no worse precedent than a Government coming into power and setting in place special arrangements for how long the first Government should be and then changing the constitution for everyone else thereafter.

[Lord Phillips of Sudbury]

I commend the noble and learned Lord on the eloquence and persuasiveness of what he has been saying so far, but might it be the case that the fifth-year syndrome he has described, and to which Professor Hazell referred—that the fifth year is always difficult—might just be a final-year syndrome? Might it not then become the fourth year that would be misery hereafter?

[Lord Falconer of Thoroton]

No, I do not think it would. Can you identify a third or fourth year which has been as been as awful as the fourth or fifth year? I also refer to what was said during debates in Committee by the professor and noble Lord, Lord Norton of Louth, who sadly is not in his place. He said that it was extremely unlikely that any Government would have something proper to fill in their fifth year. So there is no historical precedent for the fourth year being as bad as the fifth year, nor do I think that if the fixed term were four years would the third to fourth year become awful. But that is a matter of judgment for this House to make. My own judgment of it is that the third to fourth year would not be remotely as bad as the awful fifth years that we have had on previous occasions.

We in the Opposition are going to vote for Amendment 1, which alters the date of the first election from five years from the date of the last election to four years, and we are then going to vote for four years thereafter. We are going to vote for what might be called the “Baroness Boothroyd, Lord Pannick, Lord Butler of Brockwell, Lord Armstrong” amendment because we do not think that the Government dealt effectively with the fundamental criticisms of fixed terms.

15:30

[Lord Rennard]

The previous Labour Prime Minister of course went for five years. If this legislation is passed in its current form, would a future Labour Government amend it to change back the fixed term from five years to four years?

[Lord Falconer of Thoroton]

I cannot commit a future Labour Government, but people should form their own view about whether fifth years have been good years. We should look at this in a non-partisan way. Do Mr Major or other Labour Prime Ministers in the past who have gone a fifth year fit the rubric of Professor Hazell; namely, people hanging on to the last moment and ending up in a situation where there is a pretty awful year? Four years is good, because it means that you are accountable to the electorate much more regularly. It would probably have meant three or four more general elections since 1945. Let us remember what the much revered Deputy Prime Minister told the Select Committees. He said that the reason for which these provisions were being introduced was to make politicians more accountable to the electorate. It is quite hard to see how you make politicians more accountable to the electorate by reducing the number of general elections. In those circumstances, we will vote for four years for this Parliament, for four years for the future and for the Boothroyd/Butler/Armstrong/Pannick amendment. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the House that if Amendment 1 is agreed to, I cannot call Amendment 2 by reason of pre-emption.

[Lord Lloyd of Berwick]

My Lords, I support four years rather than five years for the reasons which I spelt out in Committee and to which I had intended to return when we reached Amendment 3, but maybe I should address that a little earlier in view of certain observations made by the noble and learned Lord, Lord Falconer, with which I agree.

I put my name to Amendment 3 last week because it followed very largely the amendment which was debated at length in Committee. I was therefore surprised to receive an e-mail over the weekend informing me that the noble and learned Lord was seeking to withdraw Amendment 3 and to substitute Amendments 1 and 2, which we now have, and asking me whether I would support them instead. I say at once that I cannot support Amendment 1.

At Second Reading, the noble and learned Lord accepted that it is open to any Government at any stage to indicate the date of the next election. That can be done within existing constitutional arrangements, as I believe everybody accepts. It did not require an Act of Parliament to establish May 2015 as the date for the next general election, but that is the course that the Government have chosen to take. There is nothing as such that is wrong with that course; it is the date that they have chosen and have put in the Bill.

If, therefore, May 2015 was to be challenged by the Opposition, surely it should have been challenged in Committee and not left to the 59th minute of the 11th hour before Report. Far from challenging that date, the amendment in Committee built on Clause 1(2). It assumed May 2015 and then substituted in Clause 1(3) “fourth” for “fifth”, and that is the amendment which I supported and still support.

It is true that, in response to the noble and learned Lord, Lord Wallace of Tankerness, on 21 March at col. 508, the noble and learned Lord, Lord Falconer, said that it had always been the Opposition’s intention to challenge the date in Clause 1(2), but that was not what they did. It is true also that at the end of the debate in Committee, it was argued that if four years was to be the norm for future Governments, it should be the norm for this Government. I do not agree. The Select Committee pointed out in paragraph 17 of its report the crucial,

“distinction between ‘the immediate concern of the Government’”—

this Government—

“‘that it should continue for five years’ and ‘the long-term issue’”,

of what should be the norm for future Governments. Those are distinct issues and it is the long-term issue to which all the evidence given in the Select Committee was directed.

It is the same as the distinction that was drawn very clearly by the noble Lord, Lord Cormack. He accepted May 2015 as the date for this Government because that is the date that any Government could have fixed. He thought that it was unnecessary to include it in an Act of Parliament, but there it is. Nevertheless, he favoured four years thereafter.

[Lord Falconer of Thoroton]

Is it not right that the same restrictions apply to this Government in this Parliament up to 2015 as would apply after 2015? If the same restrictions on having a general election apply in this Parliament, why is five years okay for this Parliament but not the next?

[Lord Lloyd of Berwick]

I am grateful for the noble and learned Lord's intervention, but he is ignoring the crucial distinction between the two issues. One is the issue as to what this Government are going to do. He accepts as we all accept that this Government can choose 2015 if they want. The issue that we ought to be discussing is not for this Government but for future Governments. It is entirely consistent, if I may say so, for us to accept May 2015 for this Government yet to say that the norm hereafter should be only four years.

[Baroness Jay of Paddington]

I wonder if I could draw the noble and learned Lord’s attention to the conclusion of the Select Committee report. He is right that in paragraph 17 of our report we distinguished between the long and the short term. That was in the context of the broader discussion of the relevance of fixed-term Parliaments. But when we came to draw up our conclusions, we said that,

“the majority of the Committee consider that a four year term should be adopted for any fixed-term parliamentary arrangement at Westminster”.

We went on to write to the Minister, Mr Mark Harper, to say that our first conclusion stated that:

“We acknowledge the political imperative behind the coalition Government's wish to state in advance its intent to govern for the full five year term, but this could have been achieved under the current constitutional conventions”.

The noble and learned Lord has already drawn attention to that point. We did not get a response from the Government on it and I understand that there has been no particular response forthcoming. But I emphasise that the conclusion of the committee was that a four-year term was preferable.

[Lord Lloyd of Berwick]

I certainly had not read the report, which I read carefully, as having drawn the distinction that I am seeking to draw between what this Government are going to do now and what future Governments should do. I had certainly not understood the report as suggesting that the committee would support four years for this Government. Thus, I am setting aside what we all accept—that any Government can choose when they wish to go to the electorate. That is all I have to say on Amendment 1. If it is put to the vote—and it appears that it will be—I shall vote against it.

Since the noble and learned Lord has gone on to develop the whole argument in relation to Amendments 1 and 3, perhaps it would be convenient for the House for me to develop my reasons for saying why I agree with him that for subsequent Parliaments the norm should be four years rather than five. That was, as he said, the clear conclusion, which has been confirmed, of the Select Committee. The reason it gave was an obvious one: that five years,

“would be inconsistent with the Government’s stated aim of making the legislature more accountable”.

With that, I wholly agree. Indeed, it is obvious.

It is not surprising that the Select Committee reached that view, since it was the unanimous view of all the experts who gave evidence before the committee, including such acknowledged experts as Professor Dawn Oliver and Professor Vernon Bogdanor. Exactly the same was true of all the experts who gave evidence in the Political and Constitutional Reform Committee of the House of Commons, including Professor Robert Hazell and Professor Blackburn. As has been pointed out, Professor Blackburn is particularly important because he has made a specific study of this issue.

If some of this evidence had been one way and some the other, or indeed if it had been subjected to any sustained challenge when it was given, one could understand the Government sticking with their five years. However, the evidence was all one way and was virtually unchallenged. That evidence simply cannot be brushed aside or disregarded, otherwise there is really no point in having Select Committees, or them listening to evidence, because the witnesses would all be wasting their time. I cannot help thinking that if the Government had been aware of the expert evidence that was subsequently given, both in the House of Commons and here, they would not have chosen five years in the first place. Indeed, the point was almost conceded—as your Lordships may remember—by the Minister in charge of the Bill. When he was asked by the noble Lord, Lord Powell, in the course of his oral evidence, he said:

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

I simply cannot understand the logic of that reasoning. The question is what the norm is, not how it relates to the existing maximum.

Alongside all that weight of evidence, many noble Lords also spoke at Second Reading in support: the noble Lords, Lord Hennessy, Lord Grocott, Lord Norton and Lord Morgan, and the noble Baroness, Lady Taylor, were all in favour of four years. To that list we must now add the noble and gallant Lord, Lord Stirrup—I do not know whether he is in his place—who made a most impressive speech at Committee in favour of four years; as well as my noble friend Lord Martin, and of course the noble Lord, Lord Cormack, himself. All these noble Lords were well aware of the only argument that I know of in favour of five years, which is roughly as follows: it takes an incoming Government a year to get going and the last year is spent in preparing for the election, which leaves only three years of a five-year Government for implementing policy. If there is anything in that argument at all—and I suggest there is nothing—it is surely outweighed by the need to make Parliament more, rather than less, accountable to the electorate, The electorate should be able to get rid of Governments who are tired and unpopular, for whatever reason, after four years rather than five. That is why, while I will support the Government on Amendment 1, I hope that they will accept Amendment 3.

15:45

[Lord Cormack]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, will hardly be surprised that I find myself very much in agreement. I am sorry that the noble and learned Lord, Lord Falconer, suggested that I sang a siren song; I do not think that I did, but I will risk a siren encore. The noble and learned Lord, Lord Lloyd of Berwick, demonstrated with impeccable logic that there is nothing contradictory in the present Government, having said that they wish to serve for a full five years, doing that, and, having sent a piece of legislation to this House and asked for our opinion, in our saying, “Okay, if you want to do that, do it, but thereafter we believe that it should be four years”. That seems to be an entirely reasonable position to take.

Every moment of our debates on the Bill—and I have been present for almost all of them—has illustrated to me that this is an unnecessary and unfortunate exercise. I also think that every word uttered by the noble and learned Lord, as well as the intervention of the noble Baroness, Lady Jay, underlines the need for pre-legislative scrutiny of a Bill of this sort. Had the Government had the good sense to subject the Bill to such scrutiny, all the evidence to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred would have been heard and perhaps Mr Harper would have made up his mind rather differently. He might even have concluded by asking what the point of this exercise is.

The point of the exercise is that the Government, having brought themselves together as a coalition—I admire the courage of all the parties in doing that and I support the coalition, as I have made plain on many occasions—wanted to try to reinforce that position by making a statement or declaration that they would serve for five years. That declaration would of itself have been quite sufficient, and I am glad to see the noble Baroness, Lady Boothroyd, nodding assent at this point. We did not need to take up time with this legislation—a point already referred to by the noble Lord, Lord Grocott, and by me—and I regret that it is taking so much time. However, if we are to fulfil the constitutional duty of this House, we must try to put the Bill into somewhat better order than it was in when it came to us. That has not been an easy task with any of the Bills that we have recently had the privilege of examining, and the same will apply tomorrow.

Therefore, I will take the same line in the Division Lobbies, if it is necessary so to do, as the noble and learned Lord, Lord Lloyd of Berwick. I do not think that the position to which I referred at an earlier stage of the Bill was illogical or unsound, and I shall stand by that, but I shall certainly vote for the sunset clause that stands in the name of the noble Baroness and her noble friends on the Cross Benches.

[Lord Tyler]

The noble Lord has been a doughty defender of the constitution for many years in both Houses. I respect him very much for that and I have expressed that view previously. Can he explain to your Lordships why he now thinks, after 100 years of experience of a quinquennial maximum for Parliament, we should suddenly make a radical change to a maximum of four years? What particular experience over those 100 years has changed his attitude?

[Lord Cormack]

My memory does not go back throughout the whole of that century, as the noble Lord knows. In a sense, I have already answered that question because I do not think that we should be wasting our time with this Bill at all. I consider it to be unnecessary but, as the Government have determined that we should have fixed-term Parliaments, it is right that we should address the term. It is perfectly reasonable to say, “All right, you’ve made your statement that you wish to have five years. Please have them, but we believe, having weighed the evidence placed before committees of both Houses, that for the future it should be four years”. However, I know as well as the noble Lord and every noble Lord present today that no Parliament can bind its successor, and the first Act of a new Parliament could be to repeal the whole shooting match—it might be the best thing that it could do, but that is another matter entirely.

The point that I was about to make when the noble Lord intervened was that I believe there is a lot to be said in almost every constitutional measure for a sunset clause. It would provide the opportunity to take stock, to reflect and to say, “Is this really what we want to do? Is this really the way forward?” Therefore, unless my noble and learned friend Lord Wallace of Tankerness, who is a very fair-minded man, is able to meet us on that point, I would find myself in the illustrious company of the noble Baroness, Lady Boothroyd, and her friends at the appropriate time, but not before.

[Lord Goldsmith]

My Lords, but for one point, I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick. On the principal question of the term, he and my noble and learned friend Lord Falconer of Thoroton are right: all the evidence points one way—the evidence of international experience and of the experts who were before the Select Committee on the Constitution, on which I also had the privilege to serve—and all the history points in favour of four years.

The principle points are in favour of it as well. As has already been pointed out, the constitutional programme put forward by the coalition is supposed to be a programme of empowering the people, not disempowering them. It is worth reminding ourselves of what was said by the Deputy Prime Minister in his evidence to the Select Committee that,

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

Increasing the term of a Parliament so that it necessarily lasts for five years cannot conceivably meet those objectives, and I have never heard any explanation given by the coalition as to how it does. Nor, indeed, have we heard any explanation from the coalition as to why five years was chosen. The noble and learned Lord, Lord Lloyd of Berwick, pointed to the evidence that was given to the committee which illustrates that the figure was chosen before the evidence was there.

It is worth also spending a moment more on the purpose of pre-legislative scrutiny. It is not an answer, as the noble and learned Lord, Lord Wallace of Tankerness, said, to say, “We are scrutinising it”.

[Lord Falconer of Thoroton]

I apologise for interrupting my noble and learned friend Lord Goldsmith but he is obviously unaware that there is evidence as to how the five years came in. Mr David Laws’ book states that Andrew Stunnell pointed out that,

“trust and confidence was very important to us, and that we wouldn’t want to find the PM calling an election at a time that did not suit us. ‘That works both ways!’ said William Hague. We mentioned that our policy”—

this is the Liberal Democrats—

“was for four-year, fixed-term parliaments. George Osborne made the point that five-year parliaments were better, as they allowed governments to get into implementing their plans … We made no objection to this, and Britain was on its way to five-year, fixed-term parliaments for the first time in its history”.

I thought my noble and learned friend would like to know what the evidence was.

[Lord Goldsmith]

Noble Lords will notice from this that over many years, both in this House and at the Bar before, my noble and learned friend and I have made quite a good double act. I intended to come to that very point shortly but I do not blame him for trying to get in first. As an advocate, it is important always to make a point that you think is a good one before the other advocate does so.

On the point about pre-legislative scrutiny, it is not only a question of having an opportunity to scrutinise in this House; the committee asked the Minister responsible, “What do the people think about this? Have you asked the people what they think not only about the principle but also the term?”. As noble Lords will see in the evidence, that has never been done; there has been no attempt to consult on that kind of question. The Minister drew attention to two newspaper polls and a survey by the Scottish Youth Parliament, which were no doubt very worthy, but, as far as I am aware, they were not on the question of term but simply on the question of fixed-term Parliaments.

So the Government had nothing to support their view other—and we come now to the evidence to which my noble and learned friend Lord Falconer has drawn attention—than a political decision, a political compromise, that this Parliament was going to last for five years. We all agree in this House that that could have been done by a statement by the Government that they were going to do that and sticking to their guns. It did not need a Fixed-term Parliament Bill at all.

That brings me to the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should allow the Government to have five years this time round and four years thereafter. With respect, that makes no sense to me at all. The recommendation in the report from the Select Committee on the Constitution was not that it should be five years this time and four years thereafter. It was very clear in saying at paragraph 62 that,

“the majority of the Committee consider that a four-year term should be adopted for any fixed-term Parliamentary arrangement”.

When I put my name to this, I did not for a moment think that the report was saying that we should let the Government have five years this time and four years thereafter. They could have achieved that if they had done what the committee wanted, which was to spend the time during this Parliament to consult properly, reach a view, legislate for hereafter but not to rush this through in this way. So I have no hesitation at all in rejecting the shabby compromise that ended up with a five-year term in the discussions to which my noble and learned friend Lord Falconer has referred, and I would reject any compromise on four years. If it is to be four years for a fixed-term, it should be four years now and hereafter.

[Lord Lloyd of Berwick]

The noble and learned Lord will not have overlooked paragraph 17 of the report, which explains the important distinction between the Government’s immediate concern that they should continue for five years and the long-term issue of the fixed-term Parliament.

[Lord Goldsmith]

That is the point. The Government could have said that they had decided that they wanted the term to last for five years, that they would do that by making a commitment now for it to last for five years, unless there are unforeseen circumstances, and that they would legislate for future fixed-term Parliaments of a different level. It was not at all a question of the committee recognising that five years, as a legislative fixed-term as opposed to as a result of the exercise of prerogative, was right for this Parliament.

[Lord Pannick]

My Lords, I, too, support these amendments. If we are to have fixed-term Parliaments, a change to the constitutional practice over the past 100 years advocated by the noble Lord, Lord Tyler, then four years is manifestly preferable to five. The Constitution Committee, of which I, too, am a member, heard evidence from a vast number of witnesses who advocated four years. Almost all of them did so on one simple, fundamental ground: you do not enhance the accountability of Parliament to the people, which is the aim stated in the coalition agreement, by reducing in practice the length of time between general elections.

There was a further piece of evidence, which I add to that cited by the noble and learned Lord, Lord Falconer of Thoroton, which came from the Deputy Prime Minister himself. At paragraph 57 of our report, we quote the extraordinary evidence given to us by the Deputy Prime Minister last October, when we considered the Government’s programme for constitutional reform. Mr Clegg told us that he did not accept that,

“people are straining at the bit to vote in elections more frequently”.

He added that he had never met anyone who had said to him,

“‘Well, I kind of like voting every four years.’”

I can introduce the Deputy Prime Minister to many people in the Dog and Duck referred to by the noble Lord, Lord Cormack, who are very keen to exercise a right to vote in general elections at least every four years to determine who represents them in Parliament and what the policies of their Government should be.

It is quite bizarre that the Government's response to the diminution in public respect for Parliament and the search for methods of making Members of Parliament more accountable to their constituents should be to propose to insulate Members of Parliament so that there will be a longer period, in practice, before they are answerable at the ballot box. When the Minister responds to this debate, will he please tell the House how a five-year term promotes accountability?

15:59

[Lord Renton of Mount Harry]

My Lords, I must confess that I was in the minority on the report of the committee that the noble Baroness, Lady Jay, chaired. I was one of two people who felt that it would be incorrect to move towards always having four-year Parliaments. My reason for this was much as the noble and learned Lord, Lord Lloyd, a very old friend of mine, expressed it. It is just that if you only have four years for a Parliament, you spend your first year in power finding out what it is all about, getting to know your civil servants and how the Treasury works—how you squeeze a bit more money out of it and so forth. In four years, you then have just two years in which to put your thoughts, policy and plans for the future into effect. In the fourth year, you are quite simply back thinking, “How are we going to win the next one?”. That is wrong.

From my experience, five years would therefore give a Government at least three years in the middle to think what they want to do and how they will put it over, so that is the right way to go. To those who do not know me well—there are quite a few present today who do—the reason I came to that in our debate, which the noble Baroness, Lady Jay, chaired very well, was that I was in Parliament in the Commons for 23 years and have been in this House for 11 or 12. I served in three Governments and I therefore got a fairly and inevitably tough view of how difficult it is being in Government and getting on with your policies. I was also then a Government Chief Whip but that is another story—it is not like being a Minister at all.

[Lord Cormack]

Would my noble friend give way?

[Lord Renton of Mount Harry]

After my personal experience through those years, I therefore think that four years fixed for a Government is not enough. I would much rather see it for five years, whether it is fixed or can be changed by the next Parliament. I beg the pardon of my noble friend, who is someone I know very well.

[Lord Cormack]

Indeed, and I remember my Chief Whip with great affection, but would my noble friend not accept that the two most successful periods of Conservative Government in recent history were both of four years?

[Lord Renton of Mount Harry]

That is the start of a very good argument as to whether they were the most successful. It much depends, obviously, on who is the Prime Minister and who is the Chancellor. That will have an enormous effect and will make one Government better than the other, simply because the Ministers at the top are better.

[Lord Lea of Crondall]

Would the noble Lord like to reflect again on the doctrine that Governments tend to do nothing in their first year? Would he like me to enumerate how many major Bills—not just any little old Bills to do with the upkeep of the Battersea dogs’ home—have been done in this Government’s first year? Perhaps he has that in a list or perhaps the Chief Whip would like to enumerate it. It is exactly one year and I am sure it has been quite a busy one.

[Lord Renton of Mount Harry]

Yes, that is true and we know very well at the moment that this Government, despite having to be a coalition, have lots of thoughts planned, but there is a great deal of difference between planning in advance and getting on with the really difficult problems when you have got to know what the Treasury is promising you for money in the future, et cetera. I am not going to go on repeating myself, but I would very much like colleagues in this House to think carefully about the real advantages of having a five-year Parliament over a four-year one.

[Lord Richard]

My Lords, the noble Lord is dealing with this great difficulty of Governments coming in, getting to know their civil servants and all the rest of it. That, of course, assumes that there has been a change of Government at the election. If there has not been a change of Government at the election, surely you do not need that initial year.

[Lord Renton of Mount Harry]

I am sorry, but I do not really follow the point that the noble Lord is making.

[Lord Richard]

The noble Lord says that you need a five-year Parliament because you spend the first year getting to know your civil servants, finding out what the Treasury is going to say and generally getting your tackle in order. If there has not been a change of Government, if it is the same Government coming in as was governing before the election, surely none of that applies.

[Lord Renton of Mount Harry]

I think that is a perfectly fair point; I cede the point, but the fact is that Governments do change a great deal. We have seen it in recent years and it will go on. Others will win; they will come in for the first time. Without wishing to go into detail, I totally agree with the description by the noble and learned Lord, Lord Lloyd, of what a five-year Parliament could do, but I think that that is the right way to go and that this House should be very careful before backing a four-year Parliament.

[Baroness Farrington of Ribbleton]

My Lords, would the noble Lord care to ponder on the thought that the British public might wish to have a Government that is taking into account public opinion once every four years as opposed to once every five years? His argument is that the fifth year is the year when the Government of the day is having regard to the next election and public opinion. In my experience, the public form an opinion about Governments fairly quickly and to ask them to wait for five years before expressing that view is rather long.

[Lord Renton of Mount Harry]

I only make the point, before I give way to others, that it is very interesting to see just how many people voted on the AV matter and all that a few days ago: just 42 per cent. One may think that most of the public are longing and waiting to have a vote; it is not true. Most members of the public are very difficult to interest in politics and many members of the public would much rather only have to vote once every five years rather than every four.

[Lord Owen]

My Lords, I would like to inject, not legal points, but a few raw political questions. Why are we being asked for this legislation? It is because a coalition was formed. If we go back to the circumstances in which that coalition was formed, the general view was that the purpose of that coalition, above all else, was to deliver a programme, over a fairly long period, to deal with the very serious economic situation, namely, a structural fiscal deficit. It seems to me not an accident that in the discussions that took place—perhaps we should call them negotiations—the person who was in favour of five years was the present Chancellor of the Exchequer, according to the report we have had. I think that was a very reasonable assessment of how long it would take to deal with the economic problems. Given the present situation, where the Government’s forecasts are already not fulfilling the growth which they themselves predicted, we may well find that this goes on for longer than five years.

The political reality is that coalitions like fixed-term Parliaments. Why? Because they know that, unless there is a restriction on a Prime Minister’s right to call for an election, which by common precedent the Queen or monarch grants after a period of six months of government, in order to curb that one of the coalition partners, namely the most junior or smaller coalition partner, wants to be sure that the Prime Minister cannot cut and run when the opinion polls are in favour of the majority part of the coalition at the disadvantage of the minority part of the coalition. You can have all the legal arguments that you like but this seems to me purely practical, sensible politics. It would be quite wrong to deprive the coalition—if it wished it, which is what this is predominantly about—of the ability to exercise its right to go for five years, which is the constitutional precedent. It wishes to lock itself into a situation where only under rather exceptional circumstances can an election be called during the five-year period. That is perfectly legitimate. I am in favour of five years, as the Government wish, and in favour of a fixed-term Parliament as a mechanism for making coalitions successful. In Europe we have seen that coalitions can be successful but they need certain parameters, one of which is knowing how long they are likely to last.

The wider question, which is really the issue of debate, is: should the period be four years or five? I am not sure. The great advantage of the British constitution has been its flexibility. Most people consider five years the limit but, for a variety of very good reasons, Prime Ministers with large majorities, both Margaret Thatcher and Tony Blair, have chosen to go after four years—broadly speaking, for the benefit of the country as a whole. I am against putting restrictions on this, so I am open-minded about trying to retain some flexibility within a fixed-term Parliament. I am therefore not convinced by the argument that we should choose four years. I am attracted to an interesting amendment that is to be moved later, although I do not want in any way to pre-empt it.

My fundamental point about fixed-term Parliaments, if we are making this legislation for the future, is that this is a profound constitutional change. It deserves a referendum—a proper referendum. What we have just experienced was not a proper referendum but a rigged one. If we had had a proper referendum, there would have been three options on the ballot paper. I do not know what the right choice is for a referendum on fixed-term Parliaments; some people may say that it is three years, others four or five. Maybe there should be only two options. However, if there is a body of opinion in the country that thinks that, like Australia, you should have only a three-year term, that should be represented in a referendum.

Referendums are not to be part of a political fix; they are part of our constitutional future. If we are to have fixed-term Parliaments—I hope that eventually we do; I would support them—then let us have a proper referendum, let the period be something that people can reflect on and make their judgment, and let it not be handed down to them as a political fix. There is a big warning in the referendum that we have just gone through. The country spotted a manipulative political fix of a referendum. People knew and felt that they ought to have been given the choice of whether there should be proportional representation. Furthermore, they also spotted something else: they should have been given that choice after the coalition had been in office for at least a period of three to four years so that they could make a judgment on coalitions. Let us have an end to rigged referendums. Let us accept referendums on major constitutional questions, and let them be open and proper choices. Since I think that ultimately we will have to have another referendum on European entry—I do not particularly relish it, but I suspect that it is coming—let us learn that that referendum must be a proper choice too.

On the question of sunset clauses or anything like that, I see great flexibility when an incoming Government are formed. I like the idea that when they are formed they choose under what restriction they will operate. If they are a coalition, as likely as not they will choose that they wish to have the rigidity, if you like, of a fixed term, and let them choose whether it will be three years, four years or five. That seems to me to be their choice. If they come in with a large majority but do not want to have the inability to call an election earlier, I am not sure that that should not be part of the flexibility of the constitution. If they have a full majority, they can legislate for it anyhow. We might do better to recognise this.

16:15

When the noble and learned Lord speaks at the end of this debate, I urge him to think hard about this, and maybe go away and consult before taking a final position. The Government have got themselves into quite a mess and alienated a lot of their friends over some of these constitutional provisions. The case for pre-legislative examination has been made very strongly. Above all, the Government should recognise that they are entitled to put this box around their own negotiations. They had to listen to some people who said, “You can’t possibly give up the right of the House of Commons to pass a vote of no confidence”. That was, again, a foolish suggestion but they moved away from it. Any pre-legislative committee would certainly have exposed that that was not workable. The more flexibility that is put into fixed-term Parliaments, the more likely they are to get general acceptance, and the more likely they are to win support in a referendum.

[Lord Wills]

My Lords, I rise briefly to support this amendment, primarily because it will give the Government a chance to reconsider a key part of the Bill. The case for a fixed term of four years is not beyond argument, although my noble and learned friend Lord Falconer and many other noble Lords have made a good case for it being so. However, I agree with what the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading: whether a term should be of four or five years is in the end “a question of judgment”. That judgment should be informed by principle. I have struggled hard to find any principle advanced by the Government in favour of the Bill. Indeed, the noble and learned Lord, Lord Wallace, at Second Reading seemed to base the argument primarily on precedent—on what had happened in our recent history, in several countries in the Inter-Parliamentary Union, and so on.

However, there is a principled argument for the Government’s position. It was put forward, for example, from the Cross Benches, by the noble Lords, Lord Armstrong and Lord Butler, from all their experience of serving the state over many years. It is an argument rooted in the importance of stability for the governance of this country. This is not a negligible argument, but it comes up against the argument that accountability should be paramount. That is a judgment that I support. More importantly, it is a judgment that almost all noble Lords who have so far spoken in these debates have favoured. It is overwhelmingly, as we have heard, the view of all the experts who have given evidence to both Houses of Parliament. The search for an accommodation between the principles of accountability and stability is fundamental to the constitutional arrangements of all modern democracies. The question that still has not been adequately addressed in all the parliamentary scrutiny of this legislation is: who should make the decision about how best to make that accommodation?

Today we have heard the case for greater consultation. Even if the Government did not take the decision in favour of five years quite as casually and self-interestedly as the account given by Mr David Laws MP suggests, it is still a fact that there has been no public consultation on this fundamental issue. This legislation seeks to determine the shape of future Parliaments, yet those most affected by it—the voters of this country—have not yet been asked what they think about the judgment that the Government have made. They should be asked. We have heard a great deal about the views of academic experts and politicians; what about the people we all serve? I am not in favour of referendums in general. I am certainly not in favour of a referendum on this point. However, I am in favour of the Government embarking on one of the many forms of public engagement that already exist—exercises in deliberative democracy and so on. They are available to the Government, who should now take advantage of them.

Listening to all the rhetoric of the Deputy Prime Minister and the Prime Minister, you would think they believed in the greater engagement of the public in policy formation between elections. Here is an opportunity for them to put some substance into all this airy rhetoric. If your Lordships support this amendment, I fear it will not change the Government’s mind on how long a term should be. This Government have shown very little inclination to listen to your Lordships’ House on all their measures of constitutional reform. However, the amendment will at least provide an opportunity for taking a pause. My noble friend Lord Grocott made this case persuasively at the start of this debate.

If the Government can take a pause to consult widely on measures such as NHS reform—profoundly important as they are—surely they can do the same with this important measure of constitutional reform. I hope that your Lordships will give the Government an opportunity to do so.

[Lord Rennard]

My Lords, I set out in Committee three reasons why I felt strongly that a fixed-term Parliament of five years was more appropriate than one of four years. I shall not repeat those arguments at length. However, since I made the first argument there has been even more discussion about the principle of pre-legislative scrutiny, and there has been a considerable demand in this House and elsewhere for more pre-legislative scrutiny. A five-year fixed-term Parliament in many ways incentivises a Government to have more pre-legislative scrutiny than has previously been the case. If a Government feel that they may be in for only four years, and there was a four-year fixed-term Parliament, we would have rather less pre-legislative scrutiny than would happen if they knew they would last for five years.

I agree with the noble Lord, Lord Renton, who said earlier that there is a clear danger that a four-year Parliament would not provide much time in the first year for pre-legislative scrutiny, and we all know that in the last year of almost any Parliament there is perhaps more attention on campaigning than on legislating. This would mean that in a four-year fixed-term Parliament perhaps only two years would be devoted to serious legislative work. Many people believe that in the model of the United States, which has a four-year fixed-term, there are only two years of effective governing and two years of campaigning.

Secondly, I pointed out in Committee—I thought that perhaps the noble Lord, Lord Wills, would have said something about this—that there should be consistency in the way in which you conduct elections in terms of how you regulate constituency election expenditure. The previous Labour Government brought in rules that kick in four years and seven months after a general election and last for 60 months after the previous general election. In other words, the rules last to control expenditure at constituency level in general elections only for the final six months of a five-year Parliament. As we said in debates a year or two ago, it is not logical to have rules controlling constituency expenditure in that last six months of a five-year Parliament unless there is a five-year fixed-term Parliament.

My third argument relates to our recent debates of great controversy. However, we decided in legislation that reviews of parliamentary constituency boundaries would take place every five years. The principle of revising constituency boundaries to take into account shifting population is recognised by all parties. However, the frequency with which that takes place is the subject of some dispute. Revising constituency boundaries more frequently than every five years would have many disadvantages and would certainly be unpopular in another place. The reviews of constituency boundaries should be synchronised with general elections.

There is, however, an additional argument that points in favour of a five-year fixed term. The Scottish Parliament and the Welsh Assembly are about to begin five-year terms, and this is likely to become the norm for future elections to the Scottish Parliament and Welsh Assembly. There is no appetite at all in Scotland and Wales—

[Lord Martin of Springburn]

I thank the noble Lord, but it is my understanding that the five years was a facility given by this Government so that there would be no clash with other elections. Four years was the norm. The five years was an accommodation that suited this Government.

[Lord Rennard]

In response to demand from the Scottish Parliament and the Welsh Assembly not to have a clash in 2015, the Government said that they would facilitate whatever was required to postpone the elections to the Scottish Parliament and the Welsh Assembly for a five-year, rather than a four-year, term. My understanding is that that will now become the norm in Scotland and Wales, and that people in Scotland and Wales have no desire for their parliamentary and Assembly elections to coincide with Westminster elections.

A year ago, in the general election campaign, both the Labour Party and the Liberal Democrats said in manifestos that they wanted fixed-term Parliaments, but neither of them said for how long they should last. David Cameron said before the general election that he would seriously consider the principle of fixed-term Parliaments, but again did not say how long the period should be. So none of the three main parties specified a year ago during the general election campaign what period would be appropriate for fixed-term Parliaments.

For all the reasons I have given—the fact that there will be more pre-legislative scrutiny; we will tie in constituency election expenditure; we will tie in the boundary reviews; and we will tie in processes with the Scottish and Welsh Parliaments—I think that a fixed-term Parliament of five years is most appropriate.

[Baroness Farrington of Ribbleton]

Before the noble Lord sits down, I hope that he will forgive me for feeling that he might be using a slightly cynical argument. I have listened carefully, because I know how experienced he is in politics, but given that the coalition Government came in and announced that there would be a five-year term and then produced major constitutional change legislation without pre-legislative scrutiny, I find that argument hard to take. The noble Lord referred to his experience in the referendum campaign. My experience was that more people were saying, “When can we have a general election?” than even were fired up on AV. Those who claim that the number of people turning out in the referendum on AV is an indication of how strongly people feel about the Government may be wrong.

[Lord Rennard]

With great respect to the noble Baroness, I did not refer in my remarks to the events of last week in the referendum. I was simply making the point that so many people here argue for more pre-legislative scrutiny. I believe that there would be more pre-legislative scrutiny in a five-year fixed term Parliament than there would in a four-year one, because in a four-year one, the Government would be so anxious to do so much that they would not have as much pre-legislative scrutiny.

[Lord Goldsmith]

Before the noble Lord sits down, as I think that he is the first Liberal Democrat who has spoken on Report, is it his party's position that fewer general elections increases democratic accountability?

[Lord Rennard]

It is the position of my party that general elections in which people get what they vote for is the most fundamental democratic reform. I agree with the noble Lord, Lord Owen, that if those people who support other systems, such as first past the post, really had the courage of their convictions, they would have allowed proportional representation to be on the ballot paper last week, as I believe that one day it will be.

[Baroness Farrington of Ribbleton]

My Lords, my recollection is that the noble Lord’s party voted against alternatives being put forward in the referendum alongside AV. Many of us felt very strongly that the public were being given about one-third of a question in the referendum rather than the whole question, which would have given them a choice. For the noble Lord now to claim that somehow the Liberal Democrats are in favour of the widest possible consultation is a bit hollow.

[Lord Rennard]

We are rather going off the subject of the Fixed-term Parliaments Bill. Briefly, I remind the noble Baroness that her party's manifesto promised a referendum on AV but no other subject. The Conservative Party promised as part of the coalition negotiations to have a referendum on AV but on no other subject. The Liberal Democrats won only 57 out of 650 seats and were therefore not in a position to insist on what we really wanted, which was a referendum on proportional representation.

[Lord Dobbs]

I have listened to this debate and the previous one with fascination. We have gone today from Herbert Asquith in 1911 to Mr Chris Huhne and Mr David Laws—and other notorious parliamentary double acts. We have been from the dog to the duck and all the way to Battersea Dogs Home. We have heard that this is a matter of high principle. Perhaps that is right. I can just imagine the scene when Mr Gordon Brown in 2007 was urged to go for an early election. Did he say, “No, Miliband. Get behind me with your temptation. It has been only two years since the last election and I must soldier on to the end as a matter of principle?”. It might have been like that, but I thought that it was my task in my other life to ask for the suspension of disbelief. Certainly it was not like that with John Major in 1996. The question then was simple; can we win in four? “No? Okay, we’ll try five”. Of course, I was not with Jim Callaghan in 1978 or Alec Douglas-Home in 1963, but I suspect that the conversations in No. 10 were along much the same lines.

16:30

The noble and learned Lord, Lord Falconer, talked earlier of the possibilities for abuse by Prime Ministers that might be brought in by the Bill. Perhaps I have a surprise for him; it is under the present system that Prime Ministers, when they have decided on election timing, have rarely been known to touch the fair brow of Principle, let alone grab her by the waist. Rather, getting Prime Ministers to give up office is rather like asking a squirrel to give up his nuts.

The Bill gives us stability and certainty. They are very powerful principles. This is a rare example of a Prime Minister giving up powers: no longer able to manipulate the electoral system for his own personal benefit. No other Prime Minister has had the courage to do that. Yet the new system is not as fixed and rigid as the title of the Bill suggests. There are safety valves. Every one of what we might call the early elections of the past 75 years—in 1951, 1966, and two in 1974—could have taken place under the provisions of the Bill. The Bill does not mean five years inflexibly, unnaturally and no matter what.

What are the arguments for four or five years, which is essentially what we are arguing about here? The arguments that I have heard for four years have been desperately thin. All sorts of statistical averages have been offered to us, but that is all that they are: statistical averages. There is nothing natural in the figure of four, apart from the natural inclination of Prime Ministers not to get unnaturally caught out by events or to run out of options. I am delighted to see that the noble Lord wants his party to meet the electorate sooner rather than later. Perhaps he is being more romantic than ruthless or calculating, but that does not make it right.

Of course, the fifth years of previous Governments have been pretty terrible under the present system, but that is precisely what the Bill, with its certainty, is trying to put behind us. Four years or five years? There is no magic in either figure. Either way, the world will not crumble, nor democracy disappear down an abyss. Let us put aside the pretence that this is a matter of principle; it is a matter of practicalities.

I was delighted to hear the noble Lord, Lord Wills, talk about accountability to the people and about what the people want. That is what we should be worried about. However, people never complained when Mrs Thatcher or Mr Blair chose four years rather than five because they thought that they might win. Neither did they complain when John Major, Gordon Brown and Alec Douglas-Home chose five rather than four years on the basis that they might not win after four. People seem to be happy, in this instance at least, to leave decisions to the politicians.

Should it be four or five? Noble Lords must forgive me if I am not entirely swayed by the argument that four is right simply because it was in the Lib Dem manifesto of an earlier era, and least of all because Mr Chris Huhne recommended it. I am inclined to five rather than four because it is the present system; we have a five-year term, so why change? If there is to be change from five to four, there must be a real and compelling reason rather than just a recitation of statistical averages. I also think that five rather than four will have advantages because we live in an increasingly short-term world of Twitter, Facebook and rushing to judgment. Five years might give us in this country the advantage of being able to lay foundations that might be properly assessed and will have a chance to endure. Of course, a five-year term encourages those vital twin pillars of success: stability and certainty.

We have had much discussion on the need for more pre-legislative scrutiny on matters such as this, and that is a point that I respond to—but that is not the issue at this point. The issue is simply four or five, and I see absolutely nothing wrong with five.

[Lord Morgan]

I listened with great fascination to the entertaining speech we just heard, which included the argument, “Why should we change? The present system works perfectly well”. That seems to be an interesting litany on the entire programme of constitutional reforms, which have been introduced on very thin intellectual foundations time and again. I am, however, glad to hear a voice for continuity on the Conservative Benches.

I am driven very much to the view, after listening to very interesting speeches, that there is an overwhelming case for flexibility. It would be highly desirable, in my view, to allow circumstances to develop without a fixed term being announced. One could think historically of a large number of instances where, long before four years let alone five, the useful work of a Government has been done and there should be recourse to the people. Such was the case with the Eden Government, who lasted only two years and were—mercifully, in a sense—terminated by the Suez invasion, which let the Government off a very nasty domestic predicament.

So I think there is a case for flexibility, but historically, in recent decades, the argument has been overwhelmingly for four years. All Governments who have actually gone on for five years—the Callaghan Government in 1978, the Major Government in 1996, the Gordon Brown Government in 2009—have been Governments who were struggling, where their continuation led to economic and other difficulties, was a sign of weakness and led to significant parliamentary malaise. That is something on which we might want to reflect.

Much has been made by the noble Lord, Lord Rennard, and others—and I respect the point—about the very long time it takes to get things going, meet the civil servants and organise things. Many of these arguments rest on the experience of this coalition. This coalition was formed in very curious circumstances: it was not the result of success at the general election; the voters did not vote for it. They certainly did not vote for the Liberal Democrats being in coalition with the Conservatives. The coalition was a result of a coalition agreement concocted in hectic circumstances, and that is why we have had so many measures that have required legislative scrutiny—not only on the constitution, but as we have seen very spectacularly, on health and other matters currently being considered in the House of Commons.

I feel there is a strong case for flexibility, but I also feel there is a very strong case for the argument put forward by my noble and learned friend Lord Falconer. I believe it is entirely possible to accept the general principle of flexibility but to say that, if there is a choice—and nobody has argued for Parliaments lasting beyond five years, as they did before 1911—then there has to be a terminal point and there is a good case for four years. I normally listen to the noble and learned Lord, Lord Lloyd, with great approval, and I frequently have voted and spoken with him on issues in your Lordships’ House. I was disappointed in the line he took today. He seemed to have two arguments for not supporting the amendment moved by my noble and learned friend Lord Falconer. The first was, in a sense, a debating tactic: that he was going to support Amendment 3 and was now being asked to support Amendment 1. I did not think that was sufficient to reject the important case made by my noble and learned friend.

Then there was the important distinction made by many noble Lords between this Parliament and future Parliaments. It was said, quite correctly, that this Government have the right, as any Government have, to determine their own length. The question is not whether the Government have the right to determine their own length, but whether they should do it by statute. That is what we are debating. This Bill lays down in statute at the beginning of a Parliament, for purely party-political reasons which David Laws’s book exposed, that it was determined at a very early stage that there should be a Parliament whose length would be determined by statute. Furthermore, it is not only this Parliament. This Parliament is deemed to be setting the template for future Parliaments, and it follows logically one from the other. I therefore think that the case goes together, as my noble and learned friend Lord Falconer said, with whether this Parliament and future Parliaments should or could be considered differently.

The main point about this proposal goes beyond that. This is a very disreputable Bill. It purports to strengthen the power of the legislative over the Executive. It does not. Like many of the Bills we have had, it weakens the power of Parliament. Later, we are going to debate when a general election could be held, but here we have the Executive laying down by statute at the beginning of a term that a Parliament should last for five years and no longer. It weakens the control of Parliament, as many noble Lords have said. It also weakens popular involvement and popular control. Every inquiry we have had—the Power inquiry chaired by my noble friend Lady Kennedy and others—has testified to the evidence from people that they want regular control and authorisation of what is being done and that the Government and the House of Commons should be truly accountable. This is a way of obstructing that and making Parliament very much less accountable. At a time when the repute of Parliament has, by general consent, degenerated and when people feel that politicians are doing things of which they strongly disapprove politically and perhaps morally and that their control over Parliament is diminishing, this is exactly the wrong way to do it. Therefore this Bill—it purports to be on the basis of high principle but has, like all these other constitutional Bills, been produced for disreputable, partisan reasons—is the strongest reason why we should support the amendment moved by my noble and learned friend Lord Falconer.

[Baroness Stowell of Beeston]

My Lords, I support the principle of fixed-term Parliaments and, since the start of scrutiny of the Bill, I have supported terms of five years, not because five-year terms or fixed-term Parliaments themselves offer some kind of trendy radical change but because they offer the electorate certainty. Right now, people elect a Government for up to five years, but a Prime Minister gets to decide that the Government will serve for fewer if it means that his party has a better chance of serving for more. If this Bill passes, people will elect a Government in exactly the same way as before and they will know two things for sure: that the Government and their opponents will have to face the electorate on a predetermined date, whatever the political conditions at that time, and that it will happen once every five years.

Let me expand further on why I support five-year terms. In my Civil Service career, I spent five years in 10 Downing Street. I was very lucky that my time in No. 10 coincided with the tenure of the noble Lord, Lord Butler of Brockwell, as Cabinet Secretary, and I am pleased to see that he is in his place. I was never as distinguished as the noble Lord, but like him and the noble Lord, Lord Armstrong of Ilminster, I have served at the heart of government in periods immediately before elections—in my case, before two general elections—and I know how Ministers and the machinery of government become distracted by them.

The noble Lords, Lord Armstrong and Lord Butler, do not support the principle of fixed terms; indeed they are supporting the sunset clause, which we will debate later. However, at previous stages in the passage of the Bill they voiced their view that, if we are to have fixed terms, they should be for five years in order that the country receives effective government for more than four of those five years. As a former civil servant, I wholeheartedly share that view.

16:45

My support for five-year terms goes beyond that. I listened carefully to the arguments for four years put forward by the noble and learned Lord, Lord Lloyd of Berwick, on the second day in Committee. I agree absolutely with the point he made at the time about how we should determine the length of a fixed term. He said:

“The objective should be … to make the Government and, indeed, Parliament itself more accountable to the public”.—[Official Report, 21/3/11; col. 481.]

He was concerned that five-year terms would reduce the frequency of elections. I take a different view. To achieve the objective outlined by the noble and learned Lord, Lord Lloyd, we need terms that allow each Government to create new and additional opportunities to give the public a greater say in the decisions that affect them. The noble and learned Lord rejected the view of the noble Lord, Lord Butler, that the British public did not want more general elections, and referred him to the Power commission as evidence to the contrary.

I took it upon myself to read the Power report, which was published in 2006 following an extensive study into declining participation and disillusion in the political system. It was chaired by the noble Baroness, Lady Kennedy of The Shaws. I do not agree with all the recommendations, but the analysis of why people feel disengaged is very interesting. The central point of the report is that what underlines a wide range of frustrations among the electorate is this: people feel that they do not have enough influence over the decisions that affect them. As the noble Baroness, Lady Kennedy, summarised in her introduction to the report:

“The disquiet is really about having no say. It is about feeling disconnected because voting once every four or five years does not feel like real engagement”.

The report does not say that people want more general elections, but that they want more influence.

The problem identified by the Power commission will not be addressed by an election every four or five years. It will be addressed by Governments introducing change like that which we are scrutinising in the House at the moment. I refer to issues such as elected police and crime commissioners, local referenda, referenda on European matters and so forth. In fact, the Power commission’s analysis of the public is similar to the evidence I referred to at Second Reading, that of the Populus poll commissioned by the Times in 2009 at the height of the expenses scandal. It showed that 74 per cent of the public supported fixed-term Parliaments as a change to improve the political system. The only measures ranking higher among a list of 13 possible reforms were a recall of MPs found to have broken parliamentary rules, national referendums on major constitutional issues, and local referendums on local issues where interest warranted them. In my view, the answer to the noble and learned Lord’s objective is fixed terms which allow time for people to have influence over the decisions that affect them.

Five-year fixed-term Parliaments are not a radical change to our constitution. To me, they are a concession made by politicians. If we make it, it will show some real respect for the electorate. If all Governments now and in the future use fixed five-year terms to give the British people a greater say in the decisions that affect them, this small concession might start to feel like something meaningful to the electorate. I support five-year, fixed-term Parliaments and I do not support the amendment tabled by the noble and learned Lord.

[Lord Blencathra]

My Lords, I rise, as far as it is necessary, to make a few observations on this Bill. I support the five-year term. I hope that your Lordships will not consider it impertinent of me to speak on this measure since I was not in the House when it was first debated. I have had an opportunity to read the Select Committee reports and so on, and I can only offer what is perhaps the doubtful benefit of 27 years’ experience in another place as an elected Member of Parliament. I went through six Parliaments in the other place, three Parliaments of four years and three of five years. I must say that, at the time, I did not feel that the five-year Parliaments were somehow depriving the British people of some fundamental human right or a great opportunity which they had missed because we had gone beyond four years.

Arguments have been made today that four is better than five. I do not accept that and see no great body of evidence for it. I accept that there is a considerable weight of opinion for it. Some of the opinion which has been given to your Lordships’ distinguished Select Committees is learned, some is notable and a lot of it is tremendously experienced, but it is still opinion. I would not say that it is firm evidence which this House is therefore bound to follow and pass judgment on.

Perhaps I may deal with a point raised by the noble and learned Lord, Lord Falconer. He pointed out that the evidence was that every time a Prime Minister went beyond four years, it was pretty awful. I would not entirely disagree with that, but it was not the fact that the Prime Minister went beyond a magic four-year trigger that made it awful. I was privileged, honoured and proud to serve in John Major’s Government right up until 1997, but the difficulties that the Prime Minister experienced did not materialise in 1996 because he had passed four years; they materialised after the ERM problems. From then on, it became difficult for the Prime Minister; indeed, it became a bit bloody for him. Moreover, he had a low majority. One has to look at the majorities that Prime Ministers have to determine whether their last year will be difficult. That may happen after two years, three years or four years.

Where Prime Ministers went to the polls after four years it was not because they wished to give the people a chance to make their Government accountable; it was not through some great constitutional issue of principle. In fact, they breached our 100-year, five-year norm because they thought there was a dashed good chance they would win, and good luck to them. Margaret Thatcher did that exceptionally well and so did Tony Blair. But let us not pretend that those four-year Parliaments came about as a result of some issue of principle or great conscience, or moral wish to give the British people more accountability. Therefore, I do not accept the argument that going beyond four years is somehow bad for the Government and nothing can be done. Considerable things were achieved towards the end of those five-year terms in office.

There has been discussion on whether the people want four or five years. I was for 27 years the Member of Parliament for Penrith and The Border, the largest constituency in England. I do not a recall a Dock and Duck there, but in The George, where I had regular surgeries, I would constantly meet constituents who, within weeks of an election, irrespective of who had won, would say to me that it was time to get rid of the Government, or that they wished they would continue for 20 years. I never met a single constituent who had a view on whether it should be a five-year term or a four-year term. All they wanted was that, in due course, at some point, not more than five years, they would have the chance to express their view and for it to be taken into account.

I hope that your Lordships do not consider it too impertinent of me to comment on a Bill where I was not here for the Second Reading nor able to participate in the early stages, but it was my experience in 27 years in the other place that five-year Parliaments were no less accountable to the people than four-year ones. I accept the point of the noble Lord, Lord Pannick, that if we move to fixed five-year terms, over a period of many years, the public will have slightly fewer general elections, but I submit once again that having an election every five years instead of every four years does not somehow remove accountability and give the British public less say in the Government whom they want. Therefore, I support the five-year term.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lords who have taken part in this debate. It has been a very full debate with some thoughtful and challenging contributions and strong arguments on both sides. I hope that the noble and learned Lord, Lord Falconer, will not object if, in dealing with his amendment, I take account of Amendment 3, to which the noble and learned Lord, Lord Lloyd of Berwick, spoke. It gives a different perspective and a different choice.

The position taken by the noble and learned Lord, Lord Falconer, is that if you are going to have four-year fixed-term Parliaments we should start with a four-year fixed-term Parliament, whereas the noble and learned Lord, Lord Lloyd of Berwick, takes the view that this Parliament, elected for five years one year ago, should be allowed to complete its five-year term and thereafter move to four years. Clearly there is a distinction. The noble Lord, Lord Owen, gave a good explanation as to why five years for this Parliament is proper—the fact that very difficult decisions have to be taken. There is accountability, too, in being able to make a better judgment at the end of five years than might be possible at the end of four years.

As a Government we believe that it is not just five years for this Parliament but that there should be five years for subsequent Parliaments as well. In saying that, I was getting slightly confused with the arguments that I had to address. I understood, and I apologise if I got it wrong, that the noble and learned Lord, Lord Goldsmith, said that the Government could have five years if they wanted and thereafter four. I may have misunderstood what he said.

[Lord Goldsmith]

That is the position under our present arrangements, which do not provide for a statutory term for Parliament other than the maximum term. If that is what the Government had wanted they could have had that without the fixed-term Bill. They could simply have said, “This is what we are going to do”. History and time would have told us whether that was actually what would happen. That is what I was saying.

[Lord Wallace of Tankerness]

I apologise. I misunderstood the noble and learned Lord. I thought that he was arguing for four years subsequently. But the noble and learned Lord, Lord Falconer—as one of the three key reasons why he said it should be four and four—said that it would be wrong if the Government had one set of rules for the first Parliament and a different set of rules for the others. Of course the Government are not seeking to do that. We are seeking to be consistent with five years both for this Parliament and for subsequent Parliaments. Therefore, he cannot hold that argument against the Government.

[Lord Falconer of Thoroton]

My Lords—

[Lord Wallace of Tankerness]

I will just finish the point and then give way to the noble and learned Lord.

If the Government had come forward with a proposal for five years for this Parliament and four years thereafter, I can imagine the criticism that would, with some merit, have been directed at us.

[Lord Falconer of Thoroton]

So if this House decided that it should be four years for subsequent Parliaments, the right course would be for the Government to say that it should be four years for this Parliament as well?

[Lord Wallace of Tankerness]

I have made the point that it is not the Government who are proposing four years for subsequent Parliaments; we are proposing five years. I indicated that if we had proposed five years for this Parliament and four years subsequently, that would have been the subject of legitimate criticism. But that is not what we propose—we propose a consistency of five years. I will come on to argue why we believe that five years is right for subsequent Parliaments as well.

[Baroness Jay of Paddington]

I understand the noble and learned Lord’s point. However, as I tried to ask on previous occasions, does he take the point that a five-year term for this Parliament and this Government could have been achieved in a way that did not involve this Bill?

[Lord Wallace of Tankerness]

Clearly the Government could have continued for five years, but the point is that the Government are seeking to introduce the principle of fixed-term Parliaments. In wishing to introduce that principle, we believe that it should apply to this Parliament as well. It is not just the length of time; it also involves the trigger mechanisms for an election other than at the end of the five years. In terms of consistency, we are saying that what is right for the future—and we are self-evidently legislating for the future—is something that this Parliament should equally be obliged to have regard to and, indeed, to be bound by. I hope that I can make some progress.

[Baroness Farrington of Ribbleton]

My Lords, surely the point is that this Government could have determined and announced that they were going to last for five years. They could then have produced legislation for the future, were that their wish, on which there could have been pre-legislative scrutiny—which the noble Lord, Lord Rennard, believes, and I share his view, we would all have been the beneficiaries of. So why on earth are we doing this Bill now, dealing with the future?

17:00

[Lord Wallace of Tankerness]

The answer is the same as I gave a moment ago to the noble Baroness, Lady Jay—we believe there should be fixed-term Parliaments for the future and that this Parliament should be subject to the same rules, including of course the rules that would trigger an early election. Of course, there is no guarantee that either of the coalition parties will be in power after 2015 and that is why we reject the case that this is somehow our own self-interested political fix. We believe that this ought to be implemented for future Governments, including ones where we may not be in power. It was very interesting that when my noble friend Lord Rennard challenged the noble and learned Lord, Lord Falconer, as to whether, when this Bill is enacted with the five years as proposed, a future Labour Government would amend it to four, he was not able to give a definitive answer that they would.

However, it must be recognised, too, that even under fixed terms, Parliaments come under pressure, both in their earlier and in their later years. We have had a number of speeches to that effect. At the beginning of the term, new Governments are understandably keen to start implementing their ideas, but there is increasingly a tension between that and the desire to allow more parliamentary scrutiny. If we go back to the 1970s and 1980s, there was very little pre-legislative scrutiny. We have come under some considerable criticism for not having had more pre-legislative scrutiny in our first year and it is inevitable that we are going to move to having more. If that is the case, it will limit the ability of the Government of the day to bring forward more legislation during the first year of their term of office.

Moving to the final year of a term of office, my noble friend Lord Renton of Mount Harry indicated that in his experience five years was right, given all the pressures that were on a Government, in order to get a legislative programme through. There are real advantages, therefore, to five years. I regret that what we have been asked to do in some respects with four years is to fit a quart into a pint pot, with a squeeze at both ends. At the other end of the term, the predictability of the election date may limit some of the hurly-burly of anticipation that up until now has inevitably attended the speculation as to when an election will be called. However, at Second Reading the noble Lord, Lord Armstrong of Ilminster, albeit opposing the principle of fixed-term Parliaments, made it clear that if there were to be a fixed-term Parliament, he thought that a four-year term would not leave enough room for sensible policy-making and a good parliamentary debate before a forthcoming election began to cast what he described as its distorting shadow.

The noble Lord’s concern was that if we had a four-year term, it would start to disrupt the parliamentary business as we approach the end of three years. The noble Lord, Lord Butler—who is in his place, and I hope I am not misrepresenting him—has also expressed strong reservations about the principle of fixed terms, and indicated that his experience also lends him to the view that five years would be more effective than four. That experience was shared by my noble friend Lady Stowell, when she was in government as an official.

Clearly, if we have four years, it shrinks the time available to Governments to deliver their programme; especially if we are going to have even more pre-legislative scrutiny. Some of the arguments against five years insist that precedent in our own system favours a four-year term. In fact, if we exclude the elections since the war that took place after less than two years, the average, I think, is between four and a quarter and four and a half years. The fact of the matter is that elections that are called at the end of four years are often examples of the Prime Minister of the day seeking to give his or her party a political advantage. It was not that they thought four years was the appropriate length of time, or that the term had come to its natural break, but that it was a judgment for them—as my noble friend Lord Dobbs indicated—as to when they thought they could win. If they thought they could, that was when they went. Indeed, on the second day in Committee, my noble friend Lord Dobbs said:

“I am afraid that these decisions have nothing to do with the astrological significance of the figures four or five. It has simply been a matter of self-preservation”.—[Official Report, 21/3/11; col. 495.]

I think that when an election has been held after four years, it has been because it has been more electorally convenient for the party in power than for any great reasons of measuring accountability or suiting the political biorhythm—a view that I think is shared by my noble friend Lord Blencathra. In holding up this practice as a standard for fixed terms, the advocates of four years are arguing strongly for the very enemy that the Bill is seeking to combat—that of political expediency triumphing over the national interest, with parties holding an election after four years when they see it as expedient to do so. We are trying to take that power out of the hands of the Prime Minister and give it to Parliament. Indeed, as the noble Lord, Lord Hennessy, said at Second Reading, for that reason this is a “collector’s item” of a Bill. The noble Lord, Lord Morgan, clearly wishes to intervene.

[Lord Morgan]

Is that not a totally false distinction? Do not a Government necessarily equate their party interest with the national interest? Is that not precisely what the Liberal Democrats have done by serving in this Government?

[Lord Wallace of Tankerness]

My Lords, I am not sure that last Thursday would necessarily have been thought to be in my party’s interest. I shall not rehearse all the arguments for the coalition but we heard the comments of my noble friend Lord Dobbs, who has been there when some of these decisions have been taken. As he indicated, the question has been: can we win? No doubt all parties think that they are right for the country but clearly the decision is taken for partisan reasons—when they think they can win. If one looks at 1983 and 1987, it is interesting that Mrs Thatcher, as she then was, did not hold an election exactly after four years—or at least she did in 1987—but she made the decision in 1983 after the local election results had come through. If I recall correctly, that was when I was first elected. The Dissolution took place the week after the local government election results in the first week in May, when she quite clearly saw that that would be to her party’s advantage.

It is also suggested that Parliaments that have gone to five years have been destabilising—I think that the noble and learned Lord, Lord Falconer, used the expression “an awful fifth year”—but in many respects the term has been self-selecting, as my noble friend Lord Blencathra indicated. There have been fifth years under Governments who did not have the confidence to go to the country after four years because they did not think that they could win, having run out of steam and lost their way. No doubt they thought that if they carried on for a final year something might just turn up. That is not a very good argument for saying that five years would not work. I shall pay a passing compliment to the Government of whom the noble and learned Lord, Lord Falconer of Thoroton, was a member. I suspect that if the Government elected in 1997 had gone into a fifth year, that year would still have been very purposeful. The noble and learned Lord shakes his head but I think that he may be doing a disservice to his party.

As my noble friend Lord Rennard pointed out, it is also interesting that when the Government gave the devolved Parliament in Scotland and the Assembly in Wales the opportunity to change their election date to avoid a clash with an election in 2015—the offer was to hold an election between the first Thursday in May 2014 and the first Thursday in May 2016—in each case they opted for a five-year term. They could have gone for four years and six months or three years and six months but they opted for five years, and that Motion was, I think, assented to by the leaders of all parties, including the Labour Party, in both the Parliament and the Assembly.

The question that has been raised, not least by the noble Lords, Lord Wills and Lord Pannick, is: how do we ensure accountability? Accountability can come in many ways. It is not just in parliamentary general elections that parties and politicians are accountable. My noble friend Lady Stowell talked about some of the ideas that came out in the Power inquiry to try to engage ordinary people in the political process. The point was made by the noble Lord, Lord Owen, in what I thought was a very thoughtful contribution, that five years is very often required for an assessment to be made of the effectiveness of a Government’s early policies and for people to make a proper and informed decision after there has been an opportunity for those policies to feed through.

[Lord Wills]

I am grateful to the noble and learned Lord for his espousal of these methods of public engagement. I, too, was pleased to hear that espousal from his noble friend Lady Stowell. Can he explain to the House why they have not taken advantage of one of these methods of public engagement to ask the public what they think about this measure?

[Lord Wallace of Tankerness]

My Lords, in the Constitution Committee, the noble and learned Lord, Lord Goldsmith, asked my honourable friend Mr Mark Harper about opinion polls which showed public support for establishing fixed terms. These are not old opinion polls: the Populus survey conducted for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms; a poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported the establishment of fixed terms; and a survey by the Scottish Youth Parliament conducted in August 2010 found that 76.4 per cent of the young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament. I accept that the question as to whether it should be four or five years was not put, but there was clearly in the surveys support for the principle of fixed-term Parliaments.

My noble friend Lord Dobbs talked about the opportunity for policies to mature and to be assessed. Therefore, there is an opportunity for accountability because the electorate can see what has been delivered, not only by this Government in the present Parliament, where it may take some time for the necessary remedial measures to work through, but by other Parliaments. It is possible for a Government coming into office at the beginning of five years to plan their legislative programme and the other things that do not require legislation, and at the end of which the public can make their decision and judgment on the effectiveness of the Government over those years. That will help accountability.

Practical issues were raised by a number of noble Lords, not least by my noble friends Lord Renton and Lord Blencathra. The questions of stability, practicality and allowing for accountability point to five years.

[Lord Bach]

Something is troubling me. If the noble and learned Lord has all these strong arguments against four years rather than five, why was it that his party went into the 2010 general election supporting a fixed-term Parliament of four years? What changed? When did the noble and learned Lord change his mind?

[Lord Wallace of Tankerness]

My Lords, if the House will bear with me, I shall find the quote from the Liberal Democrat manifesto of last year. It states:

“Introduce fixed-term parliaments to ensure that the Prime Minister of the day cannot change the date of the election to suit themselves”.

As my noble friend Lord Rennard indicated, there is not a reference to four years. However, in the past the party has supported—

[Lord Bach]

Is the noble and learned Lord really suggesting that the Liberal Democrat party was in favour of five-year fixed Parliaments at the time of the general election of 2010? We know about the Private Member’s Bill that was supported by many of those who are now prominent in Government. Liberal Democrat policy has always been four years. Why has it changed so suddenly?

[Lord Wallace of Tankerness]

What the noble Lord claimed was in the Liberal Democrat manifesto was inaccurate. I am not shying away from the fact that four years had been Liberal Democrat policy, but everyone knows that you have to have negotiations if you want to get the outcome of a fixed-term Parliament, and that was the negotiation. I have listened to the argument and, heaven forfend, I am persuaded by it. The arguments that have been made for five years are very compelling indeed.

On the point made by my noble friend Lord Blencathra, although there has been a great deal of opinion in favour of four years, we have heard in today’s debate—and from the noble Lords, Lord Armstrong and Lord Butler, in Committee—that the evidence points in favour of five years. I urge the noble and learned Lord to withdraw his amendment.

[Lord Goldsmith]

The Minister confirmed a moment ago—I am grateful to him—when he spoke about opinions that none of the three surveys asked the people what they thought about the precise length of term. Can he say why it is—he did not address this in his remarks—that the experts, I think without exception but certainly the vast bulk of them, who came to the Select Committee spoke in favour of four not five years, and none of them supported five? Why is that?

[Lord Wallace of Tankerness]

My Lords, I am not here to speak on behalf of these experts. In my closing remarks, I picked up the point made by my noble friend Lord Blencathra that there has been a lot of opinion on this from people who have had experience, including former Cabinet Secretaries and Chief Whips as well as those in the Scottish Parliament and Welsh Assembly who favoured five years when given the opportunity to do so. Some of them have indicated that they would quite like five years to be put on a more permanent footing. The evidence suggests that they have had practice and five years is what they have concluded is probably the right period of time. So again I invite the noble and learned Lord to withdraw his amendment.

17:15

[Lord Falconer of Thoroton]

My Lords, it has been a good and a very important debate. If what the noble and learned Lord says is right about trying to engage the public more in politics and if the Deputy Prime Minister is right when he says, describing the suite of Bills, that,

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

surely the minimum that this Government should do is to respond to Parliament’s independent view about these issues, not put on a party-political basis. Both Select Committees, which contain a majority of people from the coalition, said that five years was wrong and that four years was right. If this Government are going to demonstrate their sincerity about new politics, should they not abandon simply doing things on the basis of what their own whipped majority wants and listen to what Parliament says? Parliament has said on an independent basis that four years and not five years is right. If the Government do not listen to that, I have to say that it puts in doubt their repeated statement, in particular through their Deputy Prime Minister, that they want to give more power to the legislature.

I shall not repeat the arguments in support of four years. For my own part, the independent evidence supports it very strongly. The only point that I shall refer to is the one made by the noble and learned Lord, Lord Lloyd of Berwick, that you could have five years for this Parliament and four for the next. Myself and the noble and learned Lord, Lord Wallace of Tankerness, are in agreement on the principled position in relation to that. If it is to be four or five years for the future, it should be the same for this Parliament, because this Bill introduces fetters and difficulties in having an election before the end. So I agree with the Government when they say that it should be the same now as for the future.

For all the reasons given, in my respectful submission the right answer is four years. Sadly, I shall not accept the invitation of the noble and learned Lord, tempting as it is. I wish to test the opinion of the House.

17:18

Division 1

Ayes: 209

---

Labour: 172
Crossbench: 30
Independent: 1
Plaid Cymru: 1

Noes: 257

---

Conservative: 144
Liberal Democrat: 69
Crossbench: 35
Ulster Unionist Party: 2
Independent: 1
Labour: 1

17:33

Amendment 2

Moved by

[Lord Falconer of Thoroton]

2: Clause 1, page 1, line 5, leave out from “be” to end of line 8 and insert “on the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister, and subsequent parliamentary general elections shall be every four years thereafter”

[Lord Falconer of Thoroton]

My Lords, I do not think that the House has any appetite for long debates on any of these next votes, but they are alternatives to the vote that we have just had. This next vote, which is on Amendment 2, involves the following: instead of this first Parliament being fixed for five years, the position should be left as it is. In effect, if the Government want to go on for five years, they can do so and the arrangements should be left as they are, and a fixed-term Parliament can be introduced for the future. I detect some support for the view that, this first time around, the Government should be able to last for five years if they want. If that is the Government’s position, they do not need to amend the law to do that; they can just do it by agreement and all that is required is trust.

I do not intend to go through the arguments about four years or five because the basis of this proposition is that we end up in a situation where we do not change the law for this Parliament but leave it as it is, which would allow the Government to go for five years if they wanted to, but then I will be arguing that it should be four years for the future when we come to those votes. I therefore invite the House to reach a compromise position of no change for the first Parliament and four years for the subsequent ones.

[The Lord Speaker]

I have to inform the House that, if this amendment is agreed to, I cannot call Amendments 3 to 7 inclusive by reason of pre-emption.

[Lord Wallace of Tankerness]

My Lords, in the spirit in which the amendment was moved, I do not wish to detain the House. We have had a full debate about the arguments about four years and five, but I shall simply talk about how the Government would prefer the position to be determined with regard to this Parliament. I think that I indicated in my reply to the previous debate that if we are going to have fixed-term Parliaments, it makes sense if we oblige this Parliament to move into the same rules as those governing what will happen in future Parliaments. I understood the noble and learned Lord to say that he thought there was some merit in that consistency.

While I have no doubt that this Government will carry on in our measured fashion up to an election in May 2015, if something is not fixed at that date it is inevitable, as one knows only too well, that speculation can start running rife, and the measure not being in place would perhaps give more grounds for speculation. That would actually hinder the productivity of this Parliament in its latter years when there might be more focus on opinion polls than on the legislative programme, something that the Bill is intended to avoid. We would be far better knowing definitely when the next election would be—namely, the first Thursday in May 2015. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

Persuasive an advocate though the noble and learned Lord is, I wish to test the opinion of the House.

17:36

Division 2

Ayes: 200

---

Labour: 165
Crossbench: 27
Independent: 2
Plaid Cymru: 1

Noes: 253

---

Conservative: 144
Liberal Democrat: 69
Crossbench: 29
Ulster Unionist Party: 3
Labour: 1
Independent: 1

17:52

Amendment 3

Moved by

[Lord Falconer of Thoroton]

3: Clause 1, page 1, line 6, leave out subsection (3) and insert—
“( ) Following the next parliamentary general election after the passing of this Act, the polling day for each subsequent parliamentary general election is to be the first Thursday in May in the fourth calendar year following that in which the polling day for the previous parliamentary general election fell.”

[Lord Falconer of Thoroton]

My Lords, the final amendment in this sequence is the only combination left, and although it proposes five years for this Parliament—I have been cruelly rebuffed in my two attempts to avoid that—it proposes four years for the future and will, I think, unite the House on my side, apart from a very few noble Lords who I regard as outliers. There is no point in debating the amendment again, because we have done so for the past two hours. I beg to move.

[The Lord Speaker]

If this amendment is agreed, I cannot call Amendments 4 to 7, by reason of pre-emption.

[Lord Wallace of Tankerness]

My Lords, this is what the noble and learned Lord, in earlier discussions, described as the “five-four-four” amendment. The Government are opposed to it for reasons that have been advanced and I do not propose to repeat. I am sure that it will be to the noble and learned Lord’s great disappointment that we cannot accept the amendment. If he wishes to test the opinion of the House, I should make it clear that we believe there should be consistency and that there should be a term of five years for this Parliament and for ensuing Parliaments.

17:54

Division 3

Ayes: 199

---

Labour: 161
Crossbench: 30
Independent: 2
Plaid Cymru: 1

Noes: 244

---

Conservative: 143
Liberal Democrat: 71
Crossbench: 20
Ulster Unionist Party: 3
Independent: 1

18:07

Amendment 4

Moved by

[Lord Pannick]

4: Clause 1, page 1, line 6, at beginning insert “If, but only if, a resolution to this effect is approved by each House of the Parliament in question,”

[Lord Pannick]

My Lords, the amendments are in my name and those of the noble Baroness, Lady Boothroyd, and the noble Lords, Lord Butler of Brockwell and Lord Armstrong of Ilminster. The noble Lord, Lord Armstrong, regrets that he is unable to be in his place because he is chairing a Joint Committee.

The purpose of the amendments is to address the deep unease on all sides of the House, as expressed at Second Reading and in Committee, as to whether it is appropriate to confine the circumstances in which a general election may be called within a five-year term. The amendments would ensure that the coalition Government will have their way as to the criteria governing this Parliament, but would leave future Parliaments to decide for themselves whether to apply the provisions in the Bill. That sunrise provision would thereby limit what many noble Lords regard as the constitutional damage which would be caused by this unhappy Bill. The amendments do not touch on the distinct question of the length of any fixed-term Parliament, which we have just debated.

I want to make four points. First, the Bill would not in fact introduce fixed-term Parliaments. There is general agreement on all sides, and it is embodied in the Bill, that it is essential to allow for early general elections in some circumstances. The dispute concerns in what circumstances and by what means. Many noble Lords believe that it is impossible satisfactorily to define in legislation the circumstances in which an early election is appropriate. Such matters are far better left to convention and practical politics than to legalistic constraints. Your Lordships’ Constitution Committee heard compelling evidence to that effect, in particular from Professor Vernon Bogdanor. It is easy to envisage circumstances in which an early general election may well be appropriate, whether or not the criteria in Clause 2 are satisfied—for example, a change of Prime Minister; a change of coalition partner; or a new policy, such as Asquith’s in 1910 to gain popular approval for Lloyd George's Budget and then popular approval for limiting the powers of this House.

Clauses 2 and 3 are worthy but necessarily cumbersome attempts to allow for early general elections in some circumstances. Such is the splendid unpredictability of politics that no one can foresee all the circumstances that justifiably lead to an early general election. That is the first point.

Secondly, many noble Lords on all sides of the House have doubted the premise of the Bill, which is that the power of the Prime Minister to call an early general election is a political advantage for him or her. The evidence is very weak that this power has assisted Prime Ministers who would otherwise have lost subsequent general elections. Many noble Lords have spoken from experience of the agonies of decision-making caused to Prime Ministers with whom they have worked closely. Our political system has worked well; people can and should be trusted to decide whether to penalise a Prime Minister who calls what the people regard as an unnecessary or inappropriate early general election.

Thirdly, it is of special importance—we heard discussion of this earlier—that a constitutional measure of this sort should be grounded in public consultation and in pre-legislative scrutiny. There was none. The Government should recognise that one reason why the referendum campaign on AV—I say nothing of the result—was so unsatisfactory was that there was no process of prior analysis of the options for change and of the merits and demerits of different voting systems. The absence of public consultation and pre-legislative scrutiny in this Bill is even more troubling, because there will be no opportunity for the public to express a view by way of a referendum. Unless and until there is proper public consultation on the issue, in a referendum if appropriate, we should do no more than legislate for this Parliament.

Fourthly and finally, we should identify why this Bill is before Parliament. No one could seriously dispute the conclusion of your Lordships' Constitution Committee, which stated in paragraph 20 that,

“the origins and content of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

I recognise that the Liberal Democrats have been arguing for fixed-term Parliaments for some time. However, they could not dispute seriously that the inclusion of this measure in the coalition agreement is due solely to the desire of the two parts of the coalition to ensure that their union lasts for five years and does not end in tears before then. That is a short-term political need. I do not deprecate it, but it does not justify a long-term alteration to the constitution of this country.

18:15

What should the House do? I suggest that we should accept, with more or less enthusiasm, as noble Lords wish, the political reality that the coalition wants a binding commitment for this Parliament, but that we should stand firm in our belief—held on all sides of the House—that the case for general constitutional reform simply is not made. Indeed, the case for opposing the long-term constitutional reform contained in the Bill is very strong. This sunrise clause would recognise that the legislation inevitably suffers from substantial defects as it seeks to constrain what should be left to practical politics, convention, experience and the views of the electorate. If a future Parliament wishes, for political reasons of its own, to adopt a similar approach, perhaps because there is another coalition Government, it will be able to do so. In the mean time, the legislation would apply only to this Parliament. I beg to move.

[Lord Howarth of Newport]

My Lords, I congratulate the noble Lord, Lord Pannick, and his hugely distinguished co-signatories, on the amendment. It is elegant, precise, effective and clever. I am very attracted to it, because I take the view that the principle of fixed-term Parliaments is misguided. The more I have listened to debates on the subject in your Lordships' House, the more convinced I have become that the course on which the Government have set themselves is ill judged and will be damaging. Fixed-term Parliaments are anti-democratic and reduce accountability. Moreover, there is no evidence of public dissatisfaction with the state of affairs that we have. It is a good maxim in constitutional matters that if it ain't broke, don't fix it.

In this unelected second Chamber, we accept—often with reluctance—that we should not oppose the central purposes of government Bills and should not vote them down at Second Reading, particularly if they are sent to us after being endorsed by the elected Chamber. Therefore, this House has conducted itself with restraint and responsibility. The beauty of the amendment that the noble Lord moved is that it would allow the coalition to achieve its political purpose of providing an arrangement whereby the two parties are handcuffed together for the duration of this Parliament, giving themselves a five-year term or a very good chance of one. The noble Lord spoke of the possibility of the coalition ending in tears. It has already reached the stage of curses and maledictions such as I can rarely, if ever, recall in politics, but we cannot be certain that it will not totter through the full five-year term. However, it is not respectable for the coalition Government to hijack the constitution for their political convenience.

The amendment provides the opportunity for a subsequent Parliament to prevent the constitution being damaged in perpetuity. It would allow the next and subsequent Parliaments to reconsider the principle of a fixed term, or to reconsider particular features of the legislation such as whether four years or five years is the right length for a fixed term, or whether the two-thirds or 14-day provisions should be retained, in the light of the experience that by then we as a country shall have had, and not just in the light of preconceptions or deals put together for short-term political advantage. In that sense the amendment offers the possibility that the whole experience of this Parliament—here in both Houses of Parliament, and the experience in the country—would effectively provide an opportunity for pre-legislative scrutiny, because the opportunity would be provided for the legislation to be revisited and approved or not approved at the beginning of a subsequent Parliament. I think that the amendment would not permit future amendments to the legislation: it would either have to be accepted as a whole or rejected as a whole for the Parliament to come. However, I do not worry too much about that because, as I say, I am not in favour of fixed-term Parliaments and I am not sure that trying to patch the legislation would make it any more acceptable.

I do have a worry that it would be too tempting—too attractive—to an incoming Prime Minister armed with a good majority, or to a coalition which had patched together a majority, to seize the opportunity to assure themselves of another five-year term. That possibility would be fairly seductive. So I worry that the vote at the beginning of a Parliament which would be provided for by the legislation if it were amended as the noble Lord has proposed, would become like other ritual Motions which are passed in the opening Session of a Parliament. None the less, I think that this is an attractive and a good amendment. To me, it is preferable to the options that we have considered in the three previous debates this afternoon. I very much hope that the House will pass it.

[Baroness Boothroyd]

My Lords, this is the Bill’s first outing in this House since last week’s referendum, so I think we are entitled to take stock of the coalition’s position in the light of the electorate’s aversion to radical reform. Clearly, as the noble Lords, Lord Cormack and Lord Grocott, strongly said before we opened the Report stage today, the referendum casts fresh doubt on the wisdom of persisting with major constitutional measures that lack popular support. Ministers have changed tack on the timetable for this Bill before, and I suspect there would be few tears shed on the Conservative Benches if they took another look at it even at this late stage. However, we have to proceed and we have to deal with what is before us this afternoon.

I imply no criticism when I observe that the new politics that the coalition claimed to represent in its early days has lost a bit of its sheen. Ministers would be wise to take account of reasoned objections in this House to some of the Bill’s more doubtful features. It is in the light of this that I support and commend the amendment moved so ably by the noble Lord, Lord Pannick. The amendments in this group do not challenge the Government’s intention to hold the next election in May 2015 or 2014, whatever may finally be decided. Nor do they challenge the Government’s proposal to introduce legally binding procedures to make an early election unlikely. However, as currently written, this legislation goes much further than the lifetime of this Parliament in a way that I believe is unwise and unjustified. This legislation seeks to bind future Parliaments to the same legal restraints intended primarily for the lifetime of this coalition Government and this Parliament. These restraints are destined to last “henceforth” according to Mr Clegg, the Deputy Prime Minister.

I understand perfectly the coalition’s wish to serve for a fixed period of years, to tackle the current economic situation and to see that its programme is enacted. However, I reject the same imposition being placed on the freedom of action of future Parliaments, and this will be the situation without these amendments. Without them, the constitution is being blighted permanently and unnecessarily. The amendments allow future Parliaments to accept or reject the Bill’s provisions after every election as they see fit and to do so by means of a resolution of both Houses. Mr Clegg disagrees with me on this: we disagree on a number of things, but certainly on this. Last year, he described the Bill as,

“a constitutional innovation of significant proportions”.

He argued that it would be “bizarre” to confine it to one Parliament. These amendments do not propose that it should be left to one Parliament only. Importantly, they propose that future Parliaments should decide for themselves.

We know that countries with written constitutions have the kind of entrenched laws that the Deputy Prime Minister appears to want—but Britain is not one of those. The Government would do well to remember that. As far as I can recall, at the last election the country did not exactly clamour for fixed five-year Parliaments. If I interpret the public mood correctly—as did the noble Lords, Lord Grocott and Lord Cormack, with whom I entirely agree—people in this country want honest politics. They want good government and greater scrutiny of what Governments are doing in their name. They do not want an assortment of ill considered proposals to turn Parliament upside down to suit a political elite.

Your Lordships will not be surprised to know that I do not regard this legislation with great affection at all. In fact, I believe it is quite unnecessary. This House is charged with the responsibility and the role of examining legislation and scrutinising it. As a Member of this House, I reckon I have to make the best of what I think is a very bad job. The amendments before us today would preserve the freedom of future Parliaments to face their own challenges in their own way and in the circumstances of the time. I strongly support them and hope that many of your Lordships will do likewise.

[Lord Tyler]

The noble Lord, Lord Pannick, and his distinguished collaborators have, as ever, tabled very interesting, very seductive, amendments. I examined them with great care because I respect their expertise. Reluctantly, I believe the amendments are flawed. The purpose of the Bill is to do one very simple thing: to remove from the Prime Minister—the leader of a political party—and, by extension, from the governing party, the right to time elections for their own political convenience. I give credit to the present Prime Minister: he has been the first Prime Minister to accept the logic of that position.

Hitherto, Prime Ministers—leaders of political parties—have been able to look at the polls and see if they look good in order to be able to say yes to an early general election or no to postponing it. The Government’s objective is to remove that question of when elections should be held from routine partisan political advantage and its consideration. After all, that is already the case in local government; it is the case in the devolved Assemblies and Parliaments throughout the United Kingdom. This Parliament has insisted that that should be the case, and clearly that is right.

This Parliament has recognised in primary legislation time and again that elections are the mechanism by which political parties are held to account. It surely cannot be right, then, that any one party or collection of parties should be able to contrive to time the election for a moment which is propitious for their own advantage. That is the clear principle and objective of this Bill.

I invite your Lordships to look very carefully at Amendment 25 in this group. This would undermine the central objective of the Bill by setting up a routine for Governments to instruct their newly elected majorities in the Commons after 2015 as to whether they particularly fancied a fixed-term Parliament or not—for their own party advantage, not in the interests of good governance. There would be an immediate return to the worst feature of prime ministerial prerogative. If the Bill were amended, it would be not a fixed term but a semi-fixed term, subject to the machinations and inclinations of the Prime Minister and party leader of the day, the exact opposite of what the Bill seeks to achieve and what the other place has already voted to do. This Bill is already more flexible than some of us would like. I would favour a superglue fix in the fixed-term Parliament, without extensive opportunities for early Dissolutions, but I accept that a sensible middle way has been achieved.

18:30

There are already, as we have previously debated, two substantial escape hatches in the Bill allowing for early elections: one where there is a two-thirds majority in the Commons for an early election and one where there is a simple majority vote of no confidence, but no alternative Government come forward within 14 days and receive the confidence of the House of Commons. We have already downgraded the fix to something no more adhesive than Sellotape.

The amendments take us even further down the scale. They would turn the Bill into the Blu-Tack Bill or the Post-it note Bill and would not be a fix at all. If we favour fixed-term Parliaments—I was very interested to hear the noble and learned Lord, Lord Falconer of Thoroton, say earlier that he and his party still do—we should reject these amendments because they simply put the status quo, where there is no fixed term and it is left to the party leader, back into law.

The noble Lord, Lord Pannick, quite rightly reminded your Lordships that no Parliament should be able to bind its successor, and I am sure that the noble Baroness, Lady Boothroyd, joins me in thinking that that is absolutely right. If there is a completely new situation in a new Parliament, of course the long-standing current position will continue, and it continues under this Bill. This Bill does not wipe that away. The position is still exactly as it has been for many hundreds of years. We cannot restrict future Parliaments in that respect, and therefore I suppose it could be said that the amendment is superfluous because in due course, if another Parliament decided to take a different view, it could legislate so to do. The principle of parliamentary sovereignty is not to say that one Parliament cannot make law which will continue to have effect after it has left office. In the past, as we all know, Bills have very often set targets for future Governments. I recall that the previous Government wanted to legislate for future Governments to reduce the deficit by 50 per cent in four years. That was, in a sense, trying to commit a future Parliament. The Climate Change Act, which spent many hours in your Lordships' House, set carbon emissions targets that are deliberately binding on future Governments, although I suppose it could be said that they do not bind Parliament as such.

This Bill is similar in its effect in that it takes power away from the Government and leaves it with Parliament. In that sense, it binds Governments, and Prime Ministers in particular, by giving power and flexibility to Parliament. This group of amendments does the opposite, in that it allows a Government to veto a fixed term which does not suit its party advantage. That would surely be a retrograde step. Allowing such a veto is not necessary to maintain the principle that Parliaments do not bind their successors because Parliament could not and will not be bound by this Bill in perpetuity. A future Parliament could amend the Act if it wanted. Surely we should not legislate now for Governments to be able to wriggle out of fixed terms just because it is in their party-political interests to do so. That is the crucial distinction between the Bill as brought forward by the Government and this group of amendments.

Parliament should set out now what we think are the constitutional principles now and in the future. Surely in this House we are not seriously arguing that Governments should be given the opportunity regularly to manipulate Parliament, after every election, into choosing whether or not to be subjected to a fixed-term rule. The Bill as drafted provides for a constitutional lock on the length of Parliaments, to take politics out of election timetables. That is its purpose, and it is a purpose I strongly support. By contrast, I fear that the amendments add more politics to election timetables. Imagine the party pressures immediately after a general election when the country and the parties have been subjected to extraordinary partisan argument and controversy. We would be right back into the simple party-political advantage game immediately after that peculiarly partisan situation. On that basis, however seductive the amendments and however distinguished the authors, the amendments, though doubtless very well intentioned, are flawed and I hope your Lordships will reject them.

[Baroness Jay of Paddington]

Before the noble Lord sits down, will he help me with the force of his argument about the imposition of party politics on the kind of provision that the noble Lord, Lord Pannick, and his associates have suggested to the House when that will take place, as I understand it, immediately after a general election? It is not, as it was in the circumstances which he describes, something that Prime Ministers could calculate towards the end of a Parliament was to their party advantage, or was not, as the case may be.

[Lord Tyler]

The noble Baroness may recall that I was elected on 1 March 1974, and given the convention—it was referred to earlier—that normally it is six months before another election is agreed to by the monarch, that would have been precisely the situation. It was entirely wrong that the Prime Minister of the day decided for party advantage that he would ignore all the big economic problems of the summer of 1974, did nothing to disturb the popularity of his Government, carried on to the autumn without taking important strategic decisions about the future of the country and then went to the country in the autumn. That is the sort of situation that we should certainly avert because party advantage could, very soon after a general election, be uppermost in the mind of a party leader who would therefore take advantage and destroy the fixed-term legislation for his or her own party advantage.

[Lord Hamilton of Epsom]

My Lords, as a Conservative, I am extremely reluctant to see Parliament at any stage fiddling about with our constitution, and I very much agree with the noble Lord, Lord Howarth of Newport, that if it is not bust, why fix it? Having said that, the coalition quite clearly finds it necessary as part of its agreement to have a five-year fixed Parliament, and if that is what it wants to do, so be it. I have a little trouble in understanding how a Government continue to govern when they no longer have a majority in the House of Commons, but that is another issue. I do not think there is any strong reason why this legislation should go through in perpetuity. I do not see what is wrong in returning to the status quo ante. There seemed to me to be nothing wrong in the way the system worked, and I do not know why we should therefore be trying to commit future Governments to five-year fixed Parliaments just because it is convenient for this coalition Government to have a five-year Parliament this time round. Therefore, I will be more than happy to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Grocott]

My Lords, I strongly agree with the comments made by the noble Lord, Lord Hamilton. I want to make a pretty brief point. The trouble is that when I listened to the noble Lord, Lord Tyler, he almost tempted me to a Second Reading observation. I was astonished by his last argument, as I understood it—he must stop me if I am factually wrong at any point—that he was elected in February 1974. Did he lose his seat in October 1974?

[Lord Tyler]

Yes.

[Lord Grocott]

I thought so, so his view is that after the February 1974 election there should have been a fixed, five-year Parliament. I can see where he is coming from, but I know he is a Liberal Democrat, so I know his argument will be based on deep principle rather than on any short calculation. I think he needs to think again about the repeated mantra that this measure strengthens Parliament, weakens Governments and strengthens the people. I cannot understand that argument. How on earth a Government who are guaranteed five years, except in the very tightly drawn exceptions, can in any sense be said to be weakened in respect of Parliament, much less weakened in respect of the public as a whole, by this Bill is beyond me.

Surely we can agree on one factual point, and I would beg the noble and learned Lord, Lord Wallace, to concede this. The Bill will obviously reduce the number of general elections. By law, it certainly cannot increase them. The possibility for the public to express their opinion on the Government will be reduced; that is surely unarguable. We now know enough after five days of debate that this Bill is designed to strengthen the Government. It is in the national interest because it would give them a secure five years. No wonder the Chancellor of the Exchequer wanted it.

You are subject to paranoia quite early if you are a lifelong member of the Labour Party, but I cannot help being a little paranoid about the commentariat, if that is the right word, who had only one story in town under the last Labour Government, which was: “This Government are too strong. We must strengthen Parliament and the public. Governments these days are too domineering and powerful”. But on the day of the general election, the whole argument suddenly shifted and the chatterers were absolutely convinced that the crucial thing was strong government. “We must not have too much of this democratic stuff. We need a strong Government so we will bring in a Bill to guarantee them five years, barring some convoluted exception in Clause 2”. Those exceptions include the absurd one that even if the Government lose a vote of confidence, they can still chatter on for another 14 days to see whether they can survive.

I want to make a simple point. As far as I can see, the objective behind the Bill is that, somehow or other, over the years Prime Ministers have been abusing the power to call general elections. For those who like looking at tables, as I do because in this House we are all anoraks to varying degrees when discussing issues of this kind, I refer them to British Electoral Facts by Colin Rawlings and Michael Thrasher. On page 139, there is a table headed:

“Reasons for Holding General Elections 1832 to 2005”.

It is pretty comprehensive. Looking at the list indicating when Prime Ministers have determined to hold general elections, I defy anyone to find a frivolous or absurd reason why they called an election when they did. Let me quote briefly from the list. In 1931, we had an early general election:

“Resignation of the Labour Government and formation of a National Government by James Ramsay MacDonald who six weeks later asked for a Dissolution in order to obtain a new mandate”.

Is that stupid or frivolous? Obviously, I think it was a pretty disastrous period in our history and he is not my favourite Labour Prime Minister. In 1955:

“Sir Winston Churchill resigned as Prime Minister and was succeeded by Anthony Eden who immediately asked for a Dissolution”.

Is that a stupid or indefensibly partisan reason for calling a general election? In 1966 there was a:

“Request by the Prime Minister for a Dissolution to obtain a renewal of the electors’ confidence in the Government and an adequate parliamentary majority”.

That is a perfectly valid and sensible thing to do. Again, I defy anyone to find anything in this list that is a bad reason for calling a general election.

Finally, I shall say why I strongly support this amendment. I would have much preferred that the Bill had not been introduced. I would have much preferred that we could at least have agreed on four years, but this is a compromise in the classic tradition of the Cross-Bench Peers. It simply provides that if after the next general election, which obviously I hope will deliver a majority Labour Government, the Government want to persist with this procedure that we are probably going to be forced to accept, they will need a resolution of both Houses in order to do so. I would love my party, should it be re-elected, to commit itself to abolishing this legislation. But as my noble friend Lord Howarth made perfectly plain, I am realistic enough to see the temptation for an incoming Prime Minister to say, “Yippee, I’ve got five years”, under the Bill as it stands. Why on earth would he want to get rid of that power? What is all this stuff about the Bill being about weakening the powers of Prime Ministers? It would be very difficult indeed, particularly since all incoming Governments have ambitious legislative programmes and want to get cracking quickly. So it is very unlikely that unless my party commits itself to repealing the Bill, we will indeed go on with it for ever and ever.

This amendment is a clever proposal. It gives the Government what they want, which is something I do not find easy to accept, but it requires every subsequent Government to make a conscious decision to stick by this piece of legislation as a requirement of our new constitution. I strongly support the amendment.

18:45

[Lord Cormack]

My Lords, not for the first time today I find myself very much in sympathy with the noble Lord, Lord Grocott. I cannot say that I share his aspirations regarding a future Labour Government, but apart from that, he has spoken very persuasively and sensibly, as he always does. The noble Lord is a constitutionalist and thus, in the constitutional sense, a true conservative. As I listened to him, I thought of my dear friend, the late, great Jack Weatherill. He used to say, “I am all in favour of progress so long as it does not mean change”. I think that Members from all sides of the House to some degree view this Bill in that spirit. I have never been totally opposed to the concept of fixed-term Parliaments, and indeed I made that plain in my maiden speech. But I must say that the more I have heard of the debates as they have gone along, the more I am convinced, as I said earlier today, that this is unnecessary legislation which is taking up a lot of our time and need not do so.

Some exceptionally distinguished Cross-Benchers—I pay tribute to them all, particularly the noble Baroness, Lady Boothroyd, a former Speaker of the House who has unparalleled experience—have put down an amendment that, in a sense, saves us from ourselves. It is a wise and sensible amendment in the best traditions of this House because it accepts, however reluctantly, that it is the will of the Government to have a fixed-term Parliament Bill. I have never for a moment challenged the right of a Government to serve for five years and have said repeatedly that I applaud that desire. I do not think that this legislation is necessary for it, but I applaud the desire. I am pleased to support the coalition Government and I hope that they do survive for five years. I hope that, as the years go by, they become more and more politically mature, less and less bent on messing up the constitution, and then more and more inclined to concentrate on those issues which truly concern the people of this country, wherever they may live.

What the amendment does is recognise the right of the Government to do what they are seeking to do, but enshrines in the legislation one of the principles of our unwritten constitution, which is the right of every new Parliament to determine which way it will go. That does not in any way inhibit future Governments. If, after the next general election, there is a majority Conservative Administration, which I personally would like to see, or a majority Labour Administration, which the noble Lord, Lord Grocott, would understandably like to see, it matters not. If the Government wish to continue with the fixed five-year term, they can do so, but they have got to say to Parliament, “Let us look at this”, as one of their very first acts after the election.

I can imagine that in 1974, because I was there, it would have been difficult for Prime Minister Harold Wilson to have got through the necessary clause to create a five-year Parliament. I am exceptionally sorry, of course, that that would have prevented the noble Lord, Lord Tyler, or Paul Tyler as he was then, serving out the five years which he had hoped to serve, but to have a Government with a tiny majority or, in that case, no majority at all, enshrined for five years would have been a legislative and constitutional nonsense. Of course, Harold Wilson had the right to go to the Palace in the late summer/early autumn of that year, to ask for Dissolution and to have another general election, which had as a catastrophic by-product the loss of the services of the noble Lord, Lord Tyler, but was nevertheless the right thing constitutionally to do.

All that this amendment does is to recognise reality and it ought to command a degree of support from those of us in all parts of the House who truly treasure our constitution. I said earlier today that it is the most important part of our democratic heritage. The Government are not damaging it irrevocably by producing this Bill, but we are putting in a safety clause. We are giving an opportunity for future Parliaments not automatically to be saddled with this but to have to face up to the question: do we want it? I was delighted that my noble friend Lord Hamilton made the brief and telling speech that he did. I think that he spoke for many who share our views and our prejudices—because we all have them. This is an amendment which ought to commend itself to my noble and learned friend Lord Wallace, for whom I have a genuine regard and who has always handled matters in this House extremely sensitively and considerately. I hope that he will say that he can commend the amendment, just as he has put his name to another amendment lower down the Marshalled List.

The amendment paves the way for the important debates next week when we have to decide the circumstances in which an early election can be called, all of us having recognised that there must be a proper, comprehensible and simply expressed formula which can provide for that. For the moment, we are dealing with this amendment and it should command widespread support.

[Lord Butler of Brockwell]

My Lords, I and, I am sure, my noble friends are very grateful for the generous things which have been said about this amendment. They have been said so well that I need speak only briefly, but I hope that brevity will not disguise from your Lordships the constitutional importance of the principle which underlies the amendment.

I do not question or doubt for a moment the sincerity of the noble Lord, Lord Tyler, and his colleagues who believe in a fixed-term Parliament. I do not agree with them, largely for the reasons that were so well put by the noble Lord, Lord Grocott, because there are circumstances in which it is in the national interest for a Prime Minister to seek an early general election and a new mandate. The circumstances which the noble Lord described bear that out. I simply do not think that it is true that all Prime Ministers who go for an early election do so for their party advantage. There are very often national circumstances, as there certainly were in my experience, which make that desirable.

Perhaps I may state some propositions on which I think we can all agree. The first is that to go from flexible-term Parliaments to an arrangement for fixed-term Parliaments is a constitutional change. As the noble Lord, Lord Owen, said, it is a major constitutional change; arguably, it is more important than the change to the alternative vote system on which the country had a referendum. Secondly, I think that it is unarguable that the Government do not have a mandate for this proposition. It was in the coalition agreement, but it was not in the Conservative Party manifesto and it is not something on which the public voted at the last general election. Thirdly, as was said, there has been no pre-legislative scrutiny of the Bill. It has been introduced very quickly; I think that one could say that aspects of it were not properly thought out. That is not the way that a major constitutional change of this sort ought to be introduced.

As has been said, the Government have a perfect right to commit themselves to a fixed term for the present Parliament, provided that they continue to maintain the confidence of the House of Commons. As the noble Lord, Lord Cormack, and others have said, it is not necessary to have legislation for that purpose, but if the Government want such legislation, to bind themselves with hoops of iron, I regard that as their business; I do not challenge it. What I do challenge is their right by making a permanent constitutional change to bind future Parliaments. Certainly, they do not have the right to make a permanent change to our constitution to meet the convenience of a temporary coalition.

As has been said, this amendment seeks to deal with this situation in a reasonable way. It does not defeat the Bill. It allows it to apply to the present Parliament, which is the Government’s wish. It allows the legislation to remain on the statute book in case a future Government or coalition wish to bind themselves similarly. However, while giving a future Parliament that choice, it avoids a permanent change to our constitution. I urge noble Lords in all parts of the House, whether they agree with a fixed-term Parliament or not, to uphold the principle that we do not make permanent changes to our constitution without more consideration than has been given in this instance and that we do allow future Parliaments to apply this legislation to themselves if they choose it.

[Lord Marks of Henley-on-Thames]

My Lords, like my noble friend Lord Tyler, I agree that these amendments are clever and elegantly drawn, and the quality of the speeches in favour of them supports that. However, upon analysis, one sees that the effect of the amendments is to undermine the entire Bill from the next election. Having listened carefully to the speeches that have been made in support of them, it is plain to me that that is the desire of those who have made them. The effect of the amendments is that a resolution of both Houses would be required to make any subsequent Parliament fixed term. As has been rightly pointed out, this and any Government already have the power to decide the date of the next election, which they can, if they wish, fix. That being the case, with these amendments, this Bill would add nothing to the existing law.

The Bill, which has been extensively debated, is intended to legislate for the principle of fixed-term Parliaments for the long term. To the extent that it is enacted and stays in force, it will ensure that the power to dictate the timing of elections is removed from the Prime Minister of the day. That is, however, subject to the provisions in Clause 2 for early elections. Much humour has been made of the loss to the House of Commons of the noble Lord, Lord Tyler, in October 1974. It is likely that this Bill would not have saved the noble Lord’s career then, because the House would probably have been dissolved in any event pursuant to the early election provisions had this Bill been in force.

16:59

The real fallacy of these amendments is the suggestion that by this legislation the Government seek to bind future Parliaments. Parliament cannot bind its successors. That is the fundamental principle, but it is expressed in the practice that any subsequent Parliament can legislate to amend or repeal existing legislation. That is how we work. The law stays the law until it is amended or repealed. These amendments seek to derogate from that principle. If a subsequent Parliament wishes to change this Act, it may do so. There is no attempt in the Act to entrench the legislation in any way.

[Lord Butler of Brockwell]

Since it is agreed that the legislation is not necessary to bind the present Government, what purpose can it possibly have except to bind future Governments?

[Lord Marks of Henley-on-Thames]

My Lords, that is an important point, but the answer is that if you legislate on the principle, as this Bill when an Act will seek to do, the electorate will be entitled to know what it is voting for at any election. Will it get a fixed-term Parliament unless the legislation is amended or repealed, or will the Government and the Prime Minister retain the right to choose when to go to the country? If the Government decide to repeal the legislation or amend it, they are likely to put that in their manifesto. On the basis of these amendments, the Government will have the right after the election to determine what the electorate has given them. That, in my respectful submission, is wrong in principle.

Furthermore, the amendments are inconsistent with the Parliament Act 1911. By that Act, the House of Commons can insist on legislation that does not extend the life of a Parliament and this does not extend the life of a Parliament, with the exception of the possible two-month extension, and we do not know what will happen to that. This House can only delay legislation. By these amendments, because of the provision for a resolution of both Houses, the power of this House would be there to deny passage to a resolution that the House of Commons wished to pass. That again is contrary to the principle and militates against these amendments.

The so-called sunrise clause in Amendment 25 would cause chaos. By way of example, under Amendment 25, the schedule would come into force only to the end of the first meeting of the next Parliament, but that schedule is the one that would repeal the Septennial Act 1715 among other things. Would that suddenly come back into force after the next election?

The amendments are understated in their presentation. They hand straight back to the Prime Minister and the Government of the day, with no need for legislation, the power to choose the timing of the next election. That is the answer to the point made by the noble Baroness, Lady Jay, when she intervened on my noble friend Lord Tyler.

[Lord Gilbert]

I have listened very carefully to the noble Lord’s speech. Over and again I heard him say that the Prime Minister would have total power to choose the general election date. Has it never occurred to him that the monarch has a say in that? The noble Lord finds that funny, but I do not.

[Lord Marks of Henley-on-Thames]

We plainly take a different view of the constitutional arrangements. The monarch has a say in certain very limited circumstances but, by and large, in a constitutional monarchy she takes the advice of the Prime Minister and is very careful to avoid becoming embroiled in constitutional disputes of this sort.

[Lord Gilbert]

Is the noble Lord actually advancing the proposition that the monarch has no discretion whatever as to whether she actually accedes to a request for a dissolution?

[Lord Marks of Henley-on-Thames]

Noble Lords will have heard me say that her discretion is very limited and that she seeks to stay out of controversy of this sort where she possibly can. Plainly, sometimes, the monarch’s role is to get involved and sometimes that is unwisely exercised, as with the dismissal by Sir John Kerr of the Government of Gough Whitlam in Australia. That was not the monarch directly, but it was the monarch’s representative and that shows the danger of the monarch becoming involved. Controversy has raged ever since in Australia and elsewhere about that exercise of the royal prerogative. It is a dangerous one.

My point is that if you read these amendments carefully, a resolution of both Houses would be required for this legislation to survive beyond the first meeting after the next election. That is wrong. If Parliament wishes to change the law, it needs to pass new law to do so.

[Lord Falconer of Thoroton]

My Lords, as I indicated earlier, I support this suite of amendments. They are important in relation to the position of Parliament and this Bill for three reasons. First, such a series of clauses might well be appropriate in any constitutional legislation that makes a significant change. I do not think that anybody doubts that, because that is how the Government are putting it. I agree with other noble Lords who have said that this is potentially a significant constitutional change. In my respectful submission, before we commit ourselves irredeemably to this change it is sensible to see what happens. For that first reason, I support the amendments.

Secondly, we broadly know—there is no real dispute—the provenance of these constitutional changes. There is no suggestion that there is a widespread desire among constitutionalists or the public for this particular change. It is an insider’s deal in relation to politics, which suits two political parties. As far as one can see, it has no broad political support beyond the two political parties. I venture to suggest that, if the public's interest could be engaged in this and one explained to the public that we might have a situation under the Bill where the Government could be defeated on the Finance Bill, then defeated on a vote of confidence that they put down and they would still not have to have a general election—or that the Government could be defeated on a vote of no confidence put down by the Opposition and they would still not have to leave because they could spend 14 days bribing a variety of rebels and other small parties to join them, so they could hold on in Government—the public might not find this Bill worth supporting. It is an insider's Bill, which does not feel particularly attractive to me.

There is a third reason of importance. I have found in the course of these debates in the Commons and in your Lordships' House that people think that, in relation to a significant constitutional change, there should be public consultation, a desire to find consensus and pre-legislative scrutiny. Indeed, on 25 May, David Heath, the Deputy Leader of the House of Commons said that he favoured pre-legislative scrutiny for this Bill. His only concern was that such scrutiny might lead to the Bill being forced into the next Session of Parliament. Noble Lords will remember that the coalition in the Commons then extended this Session by approximately nine months thereby making it clear that there could be no clash. There was still no pre-legislative scrutiny.

Therefore, I think most people who have debated this would agree that this Bill has not gone through the appropriate procedures for a Bill of this importance constitutionally. Is there no price to be paid for this? Is Parliament to be absolutely supine in relation to this? It is a big opportunity for the coalition Government to put their money where their mouth is. They say they believe in new politics and they say they believe in reaching out for consensus; I cannot see any reason why the noble and learned Lord cannot say, on behalf of the Government, that he agrees with what has been said and that we should see whether the way that the Bill operates between now and the next election gains public support and, if it does, Parliament can form a view about whether to pass the resolution next time around. That would not cost the Government anything, because they would have the Bill they want.

[Lord Rennard]

The noble Lord is of course a very clever lawyer, so perhaps he could just explain to the House, for the purposes of clarification, how he considers supporting an amendment that says that each Parliament, after each general election, should meet to consider how long the Parliament should last, is compatible with the Labour Party manifesto commitment a year ago, which said that if the party returned to government, it would legislate for fixed-term Parliaments?

[Lord Falconer of Thoroton]

What you do here is you have a Bill for fixed-term Parliaments, you see how it works and, if it works, you determine whether, as a Parliament, you should continue with it.

[Lord Elton]

Can he answer the points made by my noble friend Lord Marks, in particular those relating to the Parliament Act and the lapse in the schedule?

[Lord Falconer of Thoroton]

With respect, the Parliament Act is a total red herring. The noble Lord, Lord Marks of Henley-on-Thames, says that by allowing the decision to depend on a resolution of both Houses, we—Parliament—are giving the power back to a Government with a majority. Of course we are, but we are doing that anyway because they could pass a repealing Act. Surely it must be right for this House to express its disapproval of the way that the Bill has been brought forward by supporting the amendment tabled by the noble Lord, Lord Pannick, the noble Baroness, Lady Boothroyd and the noble Lords, Lord Butler and Lord Armstrong, and to say, “Yes, you can have your Bill, but let us see whether or not a major constitutional change like this—which is very much an insider’s Bill—works, let us see whether or not it is something worth continuing and let the next Parliament decide”.

[Lord Marks of Henley-on-Thames]

I do not understand how what the noble Lord has said answers my point that in order to revive the Fixed-term Parliaments Act after the next election, you would have to have a resolution of both Houses, while ordinary legislation could be insisted upon by the House of Commons after a delay of a year.

[Lord Falconer of Thoroton]

Parliament could use its majority to get the repealing Act through, just as it could use its majority to pass the resolution. In my respectful submission, there is no difference between the two.

[Lord Turnbull]

Can the noble Lord explain my one reservation about a provision I otherwise support, which is about the point in the next Parliament when this option has to be exercised. Can it be exercised at any time through that Parliament, or does it have to be done early on? If it is not early on, is it fair that you do nothing for, say, two or three years, then when it looks as though you might quite like the protections of this Act, you decide in about the third year to revive it? Should there be some point at which you have got to place your bet?

[Lord Falconer of Thoroton]

I understand the amendment tabled by the noble Lord, Lord Pannick and the noble Baroness, Lady Boothroyd, to be governed by Amendment 25 in this respect. What happens is that this Bill continues only up until the first meeting of the next Parliament, and I assume that the resolution can be passed at any time thereafter. I hope that satisfies the noble Lord, Lord Turnbull.

[Lord Turnbull]

I think it satisfies me as regards the explanation, but I am not sure that it satisfies me as to whether that is the right outcome.

[Lord Falconer of Thoroton]

I would have thought it is sensible for Parliament to decide when it wants to consider the resolution—it might well want to consider it early on, or it might well want to consider it later on. I do not see any purpose, as far as the amendment is concerned, in restricting the time as to when the resolution needs to be considered. In my respectful submission, the key point in relation to this is that this is a bad piece of constitutional legislation, in the sense that the process used is agreed by all to be a bad process. Putting aside the argument that says all constitutional legislation should be subject to a sunrise clause, it is right, if we are going to make a change to our constitution of this importance, that there should be some protective measures. This seems, with respect, to be a very sensible protective measure. If we see our role as being to protect the constitution, and we can do that without denying the Government what they want politically, then I respectfully suggest we should take that opportunity. I am grateful to the noble Lord, Lord Pannick, and the other co-signatories to the amendment for giving us that opportunity.

19:15

[Lord Tyler]

The noble Lord has made a very important point about protecting the constitution. Has he considered the consequences, in terms of a very considerable constitutional crisis, if, under the wording of this amendment, one House votes in one way and the other House votes in the other way? That would raise huge problems in terms of the primacy of the other place.

[Lord Falconer of Thoroton]

In the situation where you have a proper constitutional arrangement, whereby we protect the constitution here, if you took the view that we were not going to support such a resolution, that is the way that our constitution works. We have been good as a House in determining when we defer to the other place. We do not defer only when we think a real constitutional principle is in issue; if we did not defer to the other place on an issue like that, we would be assuming—I would be assuming—that an important constitutional principle was at stake. What is wrong with that? What is our purpose if a part of it is not to defend important constitutional principles?

[Lord Gilbert]

Is not the danger to which the noble Lord, Lord Tyler, has just referred only likely to arise if both Houses are elected? [Laughter]

[Lord Falconer of Thoroton]

It is very difficult to answer that question, and I will not try.

This is an important opportunity for the Government to show their sincerity in relation to the way that constitutional legislation should be done and to accept the amendments. If they do not, I will support the movers of the amendment if they put it to the vote.

[Lord Wallace of Tankerness]

My Lords, as we have heard, Amendments 4, 5 and 25, tabled by the noble Lord, Lord Pannick, with the support of the noble Baroness, Lady Boothroyd, and the noble Lords, Lord Butler and Lord Armstrong, provide that the Bill’s provisions would be subject to a sunset clause combined with a potential sunrise clause after the next general election. As my noble friend Lord Tyler said, these amendments are both interesting and seductive. It is also fair to say that they are somewhat complex.

I want to take a moment to set out what the amendments seem to be designed to achieve. They would enable the next parliamentary general election to be on the date set out in the Bill, namely 7 May 2015. After this parliamentary election, however, the apparatus in the Bill—the date of general elections after the 2015 election; the process for calling early elections, and it is important to remember that there is a process for calling early elections which has sometimes been overlooked; and the consequential matters in the Bill—would all cease to apply unless revived. It could be revived by a resolution of each House of Parliament—a sunset clause combined with a sunrise clause. I think that the noble and learned Lord, Lord Falconer of Thoroton, gave an accurate and factual answer to the noble Lord, Lord Turnbull, when he said that that resolution could take place at any time. It could add to the uncertainty, and I do not think that that is a particularly happy arrangement.

In bringing forward this Bill the Government sought to put in place a provision that we hoped would become part of our constitutional arrangement—fixed terms for the United Kingdom Parliament, just as there are fixed terms for local government, for the devolved Parliaments and Assemblies and for the European Parliament. Two of the Bill’s key provisions are: to deny the Executive the ability to choose a date for a general election to suit their own party political ends, and to deliver certainty about how long a Parliament should last. On Second Reading, the noble Lord, Lord Hennessy, remarked on the importance of these provisions. I think that he also called them a collector’s item, not least because the Executive, and specifically the Prime Minister, were surrendering a long-held power.

If these amendments were accepted, the position would not be clear not only in the Parliament elected after May 2015 but, indeed, in subsequent ones. Again, the political parties would be able to choose whether Parliaments should have a fixed term, in which case all the arrangements would be in place, or whether to return to the default position of the Prime Minister of the day choosing at some stage during the five years, assuming the quinquennium was revived, when to hold an election. That would mean that in each Parliament the Government of the day could have the allegation levelled against them that they were in some way operating for a partisan advantage.

It has been suggested not just in this debate but in a number of debates that the whole purpose of the Bill is to make arrangements for this Parliament. However, it is clear that it is intended that the fixed-term Parliament should, as I said, become part of our constitutional arrangements. That is what the Labour Party said in its manifesto and my own party has argued that for some time. I thought I heard the noble and learned Lord, Lord Falconer, say that that was still the Labour Party’s policy but I fear that supporting this amendment, as he does, puts that into question. It would allow the Government of the day elected after 2015 to decide, if they had a majority, whether to table the Motion or resolution to re-establish fixed-term Parliaments or whether to revert to the situation that existed prior to this Bill.

[Lord Falconer of Thoroton]

If we discovered that these provisions did not work well or reduced confidence in our constitution, would it not then be right not to prolong them?

[Lord Wallace of Tankerness]

My Lords, in spite of all the criticisms that the Constitution Committee of your Lordships’ House made of these proposals, it thought that the architecture of Clause 2 and the double triggers for Dissolution were suitable and appropriate. However, if it were felt that other mechanisms were required, clearly amending legislation could be brought forward, and later I shall say something about the importance of using legislation.

In establishing fixed-terms, we are providing that the Government and the Opposition have to face the electorate on a set day. As my noble friend Lady Stowell said on the first day in Committee,

“it would ensure that the Government and the Opposition had to face the electorate on a predetermined date, whatever the political conditions are at that time. That is the most compelling thing about fixed-term Parliaments”.—[Official Report, 15/3/11; col. 223.]

If this amendment were passed, we would allow the situation to revert to the status quo and, as a number of my noble friends have indicated, it would mean that the fixed term would apply only to this Parliament. When this Parliament established fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, a sunset clause was never suggested, and indeed no one in any of the devolved institutions has ever suggested that we should revisit the idea of fixed-term Parliaments. No one is suggesting that Mr Alex Salmond should be able to choose to call an election to suit the best interests of the SNP some time over the next five years. I accept all the caveats that it is not possible to make a complete comparison between this Parliament and the devolved institutions; nevertheless, fixed-term Parliaments for legislatures have worked and no one is suggesting that that should change.

A fixed-term Parliament will deliver certainty. We debated earlier whether better planning is achieved over four or five years, but we believe that a fixed term will facilitate better planning across government. The nation will no longer be left on tenterhooks or have to deal with wild speculation about whether the Prime Minister will go to the country or how the opinion polls are going. In introducing his amendment, the noble Lord, Lord Pannick, talked about Prime Ministers agonising over the decision, and sometimes they got it wrong. Harold Wilson arguably got it wrong when he called an election in June 1970. However, let us not kid ourselves: the agony is over whether it is going to be in the best interests of their party. As my noble friend Lord Dobbs has said on more than one occasion during our debates, the key question is, “Can we win?”. It is not unreasonable for a political party to want to win but that is not necessarily the same thing as national advantage. In his book, The View from No. 11: Memoirs of a Tory Radical, my noble friend Lord Lawson said about the then Prime Minister, now the noble Baroness, Lady Thatcher:

“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.

Noble Lords may say that that is stating the obvious but that is what the Bill tries to change. There will be a fixed term and it will not be possible for the Prime Minister of the day to choose the moment that will be to the party’s partisan advantage.

I should be interested to know how the proposers of the amendment would react if the change were made by repealing legislation rather than having an affirmative order. How would they react if a Minister came to the Dispatch Box of your Lordships’ House and argued that the Government wanted to return to the Prime Minister of the day being able to make a decision to suit his party interest rather than sticking with fixed terms? Perhaps in his reply the noble Lord, Lord Pannick, will tell us how he expects all this to work. The schedule of consequential amendments contains quite important and weighty matters—for example, the repeal of the Septennial Act, changes to the Regency Act 1937 and provisions relating to the demise of the Crown. Does he see those being revived, having been repealed? He will know that there are provisions in the Interpretation Act concerning the revival of an Act that has been repealed. However, I think that there is some uncertainty about whether these would be revived.

The other point that has been made is that not much has changed from the present situation, in which a Government have come to power and introduced a maximum fixed five-year term. I do not think it is fair to say that that is analogous to the situation that would be in place after 2015. The present system is uncertain for the voter and we think that that uncertainty should be removed by introducing fixed terms. However, these amendments would add an entirely new layer of uncertainty for voters. Not only would they not know, when voting, when a subsequent general election might be but they would not even know the legal system under which the next Parliament would operate and how the next general election date would be chosen. I do not believe that that is fair or sensible for the electorate.

It has also been pointed out that the Bill alters the apparatus for calling elections. The crucial difference is that the Government propose moving to fixed terms through an Act of Parliament subject to all the safeguards that that implies. We have heard much in this debate about the importance of our constitution. The noble Baroness, Lady Boothroyd, talked about the fact that we do not have a written constitution. However, if the constitution is changed, it is done through an Act of Parliament rather than through a special procedure, and people have cherished the idea of parliamentary sovereignty.

It is not the case that this Parliament, through this Bill, is trying to bind its successors. That point was made forcefully by the noble Lord, Lord Butler of Brockwell, but it was answered by my noble friends Lord Tyler and Lord Marks. We do not seek to entrench these provisions. We cannot bind a future Parliament. However, we can say that this important constitutional change has been brought into the law of our land through an Act of Parliament—by First Reading, Second Reading, Committee, Report and Third Reading in the House of Commons and by the procedures that we know in this House of First Reading, Second Reading, Committee, Report and Third Reading and by Her Majesty giving Royal Assent. That is how we change our constitution—by Act of Parliament.

Surely, if we were being true to our constitutional heritage, we would say that any change to that heritage should also be carried out through an Act of Parliament. It would have to have the same scrutiny as this Bill has clearly had and Ministers would, in the other place and this place, have to argue their case for making the change. I do not think that we can just sweep aside the concerns raised by my noble friend Lord Marks. With the exception of amendments to the Parliament Acts, with this amendment a resolution of the House of Commons could be overturned or at least thwarted by a resolution of this House. It is a unique situation and we should think long and hard before going down that route. If we do go down it, one can imagine the tensions there would be at some stage if the other House had voted for a fixed-term Parliament but this House decided it would not. I fully understand and associate myself with the concerns about our constitutional procedures and heritage, but we change the constitution by Act of Parliament and not by simple resolution. A very new venture is embodied in these amendments.

19:30

I accept and fully anticipate that there will be scope for post-legislative scrutiny. I am not sure whether the right time to do it would be at the end of this Parliament, because we did not start on the basis of a fixed-term Parliament and the Government did not come in with a five-year programme that they had planned beforehand. I am therefore not sure how we can—to use the words of the noble and learned Lord, Lord Falconer—see what happens after just one Parliament. As I said, there has been no suggestion that the fixed-terms should be changed in any of the devolved institutions. There will be an opportunity for post-legislative scrutiny, and if some of the mechanisms for early elections are found not to have worked, there will be an opportunity, through legislation, to reform them.

I do not think that the uncertainty inherent in this amendment or the unusual constitutional solution being proposed will improve the Bill; nor will it increase the scrutiny that the Bill receives once it is passed. In the light of these considerations and concerns, I ask the noble Lord to withdraw his amendment.

[Lord Mackay of Clashfern]

Can my noble and learned friend tell me whether he knows of any mechanism by which an Act of Parliament which has come into force can have its force suspended for a given period?

[Lord Wallace of Tankerness]

I cannot readily think of one off the top of my head. However, there are enough people in the Chamber and, if there is such a mechanism, I am sure that one of them will be able to tell us. My noble and learned friend, who has wide experience, might be able to think of one, but I cannot. However, the “sunsetted and sunrisen” approach is very novel.

[Lord Falconer of Thoroton]

My recollection is that we put sunrise or sunset clauses into a significant amount of the terrorist legislation, the result being that they would continue to have an effect only if there had been a resolution in both Houses of Parliament to carry on with them. I think that that is an answer to your Lordships’ question.

[Lord Mackay of Clashfern]

With respect, that is not an answer to my question. The terrorism provisions end the Act of Parliament unless it is continued by a resolution, whereas this proposal, as I understand it, would suspend the operation of this Bill, supposing that it becomes an Act, for a certain period without repealing it. At the moment—I am willing to be taught—I cannot think of that having happened before. However, novelty is perhaps the watchword of the season.

[Lord Falconer of Thoroton]

The noble and learned Lord is right. There is a difference between an Act lapsing and not being revivable and the situation under this provision where if it lapsed for the first Parliament because it was not passed in resolution, it could be revived for the second Parliament. In practice, however, the difference may not be that great.

[Lord Wallace of Tankerness]

My Lords, I stand to be corrected, but as far as I am aware it is a novel approach. Not only could it lapse and be put in suspension; it could be revived, lapse again and be revived again. We are not switching on and off light bulbs. There are quite important issues here and I am not sure that these procedures are designed to give them proper weight. That is why we argue that primary legislation should be the way of dealing with the issue, if it is felt that the provisions for a fixed-term Parliament are not working and should not be the basis for the future.

[Lord Pannick]

My Lords, I am grateful to all noble Lords who have spoken in this interesting debate and for the support that has been expressed on all sides of the House. My answer to the noble and learned Lord, Lord Mackay of Clashfern, is that we are dealing with an exceptional Bill which is being brought forward by the coalition Government to deal with a particular short-term political problem. In the light of that, we should think very carefully before we embody on the statute book, as a permanent measure introducing permanent constitutional change, a measure which has at best a short-term political purpose.

I respect the views expressed by the noble Lords, Lord Tyler and Lord Marks, and by the Minister. I respect their views because they and the Liberal Democrats strongly believe in fixed-term Parliaments as a matter of principle. However, their difficulty is that large numbers of noble Lords on the government Benches do not agree with fixed-term Parliaments as a matter of principle. They are rightly concerned about the constitutional implications of such a measure, as so eloquently expressed by the noble Lords, Lord Hamilton and Lord Cormack, in this debate. They are particularly concerned about this matter in the absence of any public consultation on this issue, in the absence of any pre-legislative scrutiny and given the lack of any evidential basis for the new constitutional principles we are about to enact.

The inescapable reality is that the Government and large numbers of noble Lords on the government Benches are supporting the Bill not because they believe in the constitutional principle but because it is part of the coalition agreement, and it is part of the coalition agreement because of the political needs of this coalition Government to remain together for five years. I repeat: I do not deprecate that; it is a perfectly proper political position to adopt as a basis for legislation which applies to this Parliament. However, it is not an acceptable basis for general constitutional change, as the noble Lord, Lord Butler, has pointed out.

The noble Lord, Lord Turnbull, asked whether under the amendments a future Parliament could approve a resolution at any time during that Parliament. The answer is yes, and the reason the amendment is so drafted is that it would be inappropriate to limit the events and the circumstances that may occur during a future Parliament. It is quite possible that a coalition Government might be formed part of the way through a future Parliament. The noble Lord, Lord Marks, and the Minister were concerned about the Parliament Act, but of course a future Parliament could at any time enact primary legislation on this subject.

The Minister asked a fair question—all his questions were fair, of course, but he asked me to address this one in my reply—about how this will work in the future. My belief, my expectation, is that no future Government will want to apply the provisions in this Bill as they are unless there is another coalition Government with similar political demands to this one. I hope and expect that after the next general election, if there is a desire in principle for fixed-term Parliaments, the relevant responsible Government will bring forward new primary legislation that will be based upon proper consultation and pre-legislative scrutiny and in the light of experience.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the noble Lord, but what is his answer to my point and to that of the Minister that there should be proper, full parliamentary consideration of primary legislation to amend or appeal this Bill rather than the odd mechanism proposed in his amendments.

[Lord Pannick]

If this amendment were to be approved by this House and if it were to be approved by the other place, that would be the parliamentary consent to the provisions of this Bill. That is no different in principle from any other circumstance where both Houses approve a particular procedure.

The issue before the House is very simple. Accepting, as these amendments do, that the coalition Government can have their way for this Parliament, should we as a House enact constitutional change for the future on a permanent basis when, to put it at its very lowest, the case for permanent constitutional change has not been made out? I wish to test the opinion of the House.

19:41

Division 4

Ayes: 190

---

Labour: 133
Crossbench: 42
Conservative: 6
Independent: 3
Bishops: 1

Noes: 184

---

Conservative: 114
Liberal Democrat: 62
Crossbench: 3
Ulster Unionist Party: 2

19:53

Amendment 5

Moved by

[Lord Pannick]

5: Clause 1, page 1, line 6, leave out “each” and insert “a”

Amendment 5 agreed.

Consideration on Report adjourned until not before 8.53 pm.

Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011

Tuesday 10th May 2011 Lords Chamber

Motion of Regret

19:54

Moved By

[The Countess of Mar]

That this House regrets that it has been given insufficient information to understand the policy objectives of the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (SI 2011/688), how the scheme will work and whether claimants’ prospects of obtaining employment will be improved.

Relevant document: 27th Report from the Merits Committee.

[The Countess of Mar]

My Lords, in moving this Motion I may cover some of the ground to be covered by the noble Lord, Lord Knight of Weymouth, in his Motions. The 27th report of the Merits of Statutory Instruments Committee draws our attention to the fact that:

“Although there is a considerable amount of paper attached to this instrument the information it contains is … vague”.

The committee makes it plain that it has asked for clarification on the regulations from the Department for Work and Pensions and that very little has been forthcoming. The committee points to several inconsistencies between the Explanatory Memorandum and the departmental memorandum to the Social Security Advisory Committee. Like the SSAC before it, the Merits Committee is particularly concerned because,

“the sanction on the individual claimant for failing in any element”,

of the scheme,

“is the loss of 3 months’ benefit”.

It also points to how:

“The degree of flexibility and discretion built into the arrangements causes the Committee to question how it can be delivered with any degree of consistency”.

Noble Lords have always been assured by Ministers that primary legislation lays down the framework and that the detail would be provided in secondary legislation. In this statutory instrument, we have little detail. We are told that the Department for Work and Pensions does not intend to provide detailed guidance on the criteria within the regulations, as it believes the best way to select participants is via adviser discretion. It admits that it has limited evidence for the effectiveness of the four-week placement in mandatory work activity and that that activity is a new scheme. In other words, it is making the rules on the hoof—rules for which there will be no scrutiny and no appeal for the claimants.

I have the greatest sympathy with anyone not versed in legislation who may need to refer to it for a particular purpose. I feel that I almost fell at the first post when I tried to find Section 17A(10) of the Act for the meaning of “jobseeking conditions”, as referred to in the last footnote on page 3 of the statutory instrument. I have a copy of the Jobseekers Act 1995 with a Section 17 but no Section 17A, let alone Section 17A(10). There is no indication of when or under which legislation Section 17A(10) was inserted. I would have thought that I would find Section 17A on the internet, but no such luck. With the help of the wonderful staff in the Printed Paper Office, I was led to Section 1 of the Welfare Reform Act 2009—but still no luck. I found that “jobseeking conditions” means conditions set out in Section 1(2)(a) to (c) of the Jobseekers Act 1995. Why on earth could the footnote not have read just that? I can imagine that a member of the public would be enraged at having to spend an unnecessary £18 for a copy of the Welfare Reform Act in addition to the £7.70 for the Jobseekers Act simply to find the definition that is pivotal to the statutory instrument.

Regulations 4 and 5 are clear in so far as they go. Noble Lords will be aware that I am concerned with a number of charities that represent people with CFS/ME, but may not know that this week is ME Awareness Week. The Department for Work and Pensions seems to be singularly unaware of and indeed determined to ignore the disabling symptoms of this fluctuating condition. It seems odd to me that the World Health Organisation and the Department of Health recognise it as a neurological condition, while the former Chief Medical Officer, Professor Sir Liam Donaldson, told the BBC online on 11 January 2002 that CFS/ME should be classified alongside multiple sclerosis and motor neurone disease. The National Institute for Health and Clinical Excellence recognises it to be as disabling as multiple sclerosis, rheumatoid arthritis, congestive heart failure and other chronic conditions.

I note from a Written Answer that the Department for Work and Pensions refers to chronic fatigue syndrome when my Questions relate to chronic fatigue syndrome/ME. The two are entirely different conditions, defined by different sections of the International Classification of Diseases in ICD-10. It is high time that the department recognised this, for its failure to do so by applying unjustifiably harsh sanctions which seek to force people with CFS/ME back to work before they are ready could be counterproductive, resulting in a deterioration of their health or delaying their recovery.

I have recently been sent correspondence from a person helping claimants with CFS/ME who are being transferred from incapacity benefit to employment and support allowance. She explains that the claimants are first sent a letter, as outlined in Regulation 4 of the statutory instrument, and states:

“This tells them briefly about the start of the process and that they’ll be contacted by ’phone”.

The time period appears to be about two weeks. She says:

“When the claimants get the ’phone call they are read a statement outlining the process. This appears to be read from a script. The claimants are also given the opportunity to ask questions. I'm aware of several claimants who say the statement is lengthy and due to their cognitive problems, they have been unable to remember the content of it. One claimant asked for a written copy of the statement to be sent to her but was told this wasn’t possible as ‘they were doing it this way’ i.e. verbally”.

She says:

“I feel this highlights the inadequacy of the DWP in catering for those with conditions that involve cognitive problems and further underlines just how these problems are being ignored and poorly understood by this Government department”.

She goes on to say that her contacts are from Kent and the Midlands,

“so they cannot say they are dealing with the process differently—my contacts were both read the same statement over the phone”.

20:00

Regulation 4 deals only with what must be done in writing. There is no mention of any verbal statement given over the telephone. There is no indication of the procedure for dealing with a person who cannot understand or take in what has been read to them and my example would seem to indicate that, far from being a flexible and tailor-made service, the process is designed to catch the innocent and the unwary. Action for ME has commented for some time that the DWP does not properly understand the impact of ME on the individual’s capacity to work. In its response to the call for evidence for the independent review of the work capability assessment, it reported that there is unfounded scepticism towards the diagnosis of ME, set within a broader cultural perception within the benefits system that applicants are fraudsters until proven otherwise and that the system lacks recognition of barriers to work which are not patently visible, including cognitive problems and fatigue, particularly when the applicant “looks well”. There is insufficient understanding of and training in up-to-date data on ME by assessors and decision-makers, including medical staff, and unrealistic expectations on claimants with ME to find and sustain work over time.

Another correspondent, Mr Keith Anderson, who is a CFS/ME nurse in Fife, wrote:

“My anger is growing because I can see no reason why this group of patients is being singled out other than deliberate removal from benefits because the DWP staff do not believe the condition exists, or they recognise many will not appeal due to the stress and illness it will cause them”.

I had another letter today, which I will send to the Minister, on precisely that fact. The nurse continues:

“Patients are suffering greater symptom impact, relapse in their condition management, exacerbation of any mental issues and, of course, a huge increase in the workload for me”.

He maintains that the oath “First, do no harm” is not being adhered to by DWP doctors.

I understand that claimants will be given placements that last up to four weeks and will be expected to work for up to 30 hours a week. We are not told the type of work they are to be given. There is no indication as to what will happen to a person with a fluctuating condition who has been found by Atos doctors to be fit for some work, but who finds they cannot sustain the work allocated for the number of hours expected, except that they will fail to meet the jobseeking conditions and suffer sanctions. After all, is it not the case that those with CFS/ME need to change their attitude and behaviour—nothing a little cognitive behaviour therapy won’t cure?

I find it extraordinary that so much is left to the discretion of DWP personal advisers and private providers. I wonder whether the Minister saw an article in the Guardian of 1 April 2011—not a joke, I understand. It details how, in order to meet targets, vulnerable jobseekers are being tricked into breaching the rules so that benefits can be held back. A Jobcentre Plus adviser is quoted as saying:

“Suddenly you’re not helping somebody into sustainable employment, which is what you’re employed to do. You’re looking for ways to trick customers into ‘not looking for work’”.

We know that we must not believe everything we read in the papers, but if there is so much as a grain of truth in the contents of this article, it is extremely worrying. I would be grateful if the Minister will categorically assure the House that there are no targets applicable to the DWP, Jobcentre Plus or private providers.

The Social Security Advisory Committee and the Merits Committee are highly critical of the sanctions system. They appear sceptical that sanctions will achieve the results they are designed to achieve. The Merits Committee points out that the department’s own research indicates that,

“there is little evidence that workfare increased the likelihood of finding work”,

unless conditions are as close to work as possible. The DWP admits that it has not even asked bidders to specify the placements that they propose to find. The reasoning behind this is that contractors will be allowed as much flexibility as possible to consider what will best support customers. If I place a contract with an individual or a company, I expect to know in detail exactly what they propose to do. I expect my Government to do the same for me and my fellow citizens.

The Merits Committee tells the House that these regulations bear similarities to the Work for your Benefit regulations considered last year but not implemented, and which are revoked by the current regulations. It explains that:

“One of the key concerns at the time was that the providers should not exploit participants as a source of cheap labour and that participants should gain relevant skills from the experience. These concerns remain for the replacement scheme set out in the current regulations. The Work for your Benefit Scheme differed in that it was based on a randomised selection process and was a small pilot scheme with a clear evaluation plan aimed at examining whether mandatory work activity had demonstrable benefits”.

It went on to say, tellingly:

“That evidence was not obtained, but the mandatory work activity scheme is being introduced nationally from the start of May 2011”.

I readily acknowledge that there is a small proportion of benefits claimants who are work-shy and lack the disciplines required to obtain and sustain viable employment. I contend that sanctions are probably unnecessary for people with CFS/ME. A survey by Action for ME in 2008 found that people with ME want to work, and that when people with ME do not work it is because they are physically and mentally unable to sustain paid employment. Action for ME would prefer to see a system based on incentives and support, rather than sanctions. I recognise that there are also others in the population with mental and physical health problems that may not be immediately obvious and who are, in fact, very vulnerable. How does Her Majesty’s Government propose to ensure that their policies will not do irreparable damage to minds and bodies?

I would like to see these regulations taken away and returned to us as a complete picture, rather than a sketch, but of course that depends upon the flexibility of the Minister. I regret that he has ignored the advice of the SSAC and the Merits Committee. I beg to move.

[Lord Knight of Weymouth]

My Lords, it is a pleasure to follow the noble Countess and I am very supportive of what she has said and of her Motion, but I am now speaking to the Motions standing in my name on the Order Paper. In that context, it is probably as well for me to explain to your Lordships why I thought it necessary to add to her Motion by tabling two of my own.

I am only too aware that it is exceptional for your Lordships to agree an annulment. In this case, I am not opposed in principle to the subject of the regulations, to mandatory work activity—I was a Minister when we proposed a pilot of something similar, just referred to by the noble Countess. I was therefore very reluctant to seek to annul these regulations. What I was after was a mechanism that required the Government to take back the regulations and return with them, in improved form, with the necessary evidence to support their introduction on a national scale, much as the noble Countess has said she would like. In this, I too was informed by the 27th report from the Merits Committee that she referred to.

As I understand it, the regret Motion in the name of the noble Countess effectively reprimands the Government, but does not prevent the regulations from proceeding. Given the extent of criticism from the Social Security Advisory Committee and then from the Merits Committee, it seems appropriate to offer your Lordships the option of requiring the Government to address the concerns of those committees and come back with sufficient information before the instrument is agreed, but giving an indication orally that if they have such evidence the instrument will of course be passed. I was therefore delighted to discover a 2006 report from a Joint Committee on conventions to your Lordships. On page 63 of the report, at paragraph 232, it says:

“In the absence of a power to amend SIs, the most constructive way for the Lords, as the revising chamber, to reject an SI is by motion (or amendment) incorporating a reason, making it clear both before and after the debate what the issue is”.

I therefore tabled such an amendment in this spirit, incorporating a reason, and it was initially accepted. It was quickly then unaccepted, because such a Motion was without precedent. After further discussion, it was then accepted again before finally being rejected by the Clerks. The Clerks were then very helpful in splitting my Motion into the two we have before us tonight. The first is a traditional annulment and the second regret Motion is the explanation. I am most grateful to them for their assistance, but I have to say to your Lordships that I think the current situation a little odd. The way my two Motions sit on the Order Paper is not in the interests of transparency and has elicited a number of media enquiries as to what I am up to. I am therefore writing to the Procedure Committee to suggest that the recommendation of the 2006 committee be accepted so that we can be clearer in future on the Order Paper.

I turn to the substantial issue. As we have heard, the regulations allow the Secretary of State to introduce mandatory work activity for customers in receipt of jobseeker’s allowance from April of this year—that is, last month. Each placement consists of up to 30 hours’ activity per week and lasts for up to four weeks. Participants will at the same time be expected to be actively seeking work, attend fortnightly interviews and be available for work. If they fail to meet these conditions, they can lose 13 weeks’ benefit for the first offence and 26 weeks’ benefit subsequently.

While there is an appeal process for the sanction, there is no appeal for being mandated on to the scheme. There will be around 10,000 places per year and customers will not be able to volunteer to take up these places. An enthusiast would therefore have to persuade their adviser to make them go on the scheme. The DWP does not plan on issuing detailed guidance, as we have heard, but wants to give flexibility to Jobcentre Plus in how it uses this new weapon in its armoury. I was an early evangelist for local flexibility but I worry that this is all left a little too vague, given the seriousness of the sanctions that I have set out.

As I have said, I am not against the general principle; when in government, we legislated for a pilot to mandate Work for your Benefit. However, I am concerned about proceeding with a national scheme without evidence. If this Government had proceeded with the pilot for Work for your Benefit, they would have that evidence on whether this will work.

As the Social Security Advisory Committee has said in paragraph 4.2 of its report,

“published evidence is at best ambivalent about the chances of ‘workfare’ type activity improving outcomes for people who are out of work. The Department’s research indicates that ‘there is little evidence that workfare increases the likelihood of finding work’ unless conditions are as close to work as possible. The evidence suggests that the mandatory work activity must be carefully tailored to an individual’s specific needs and carefully timed to be of maximum effectiveness”.

In the light of that clear statement from the department’s independent experts, how does this four-week work activity differ from the work done on, say, community punishments? How will advisers be trained to tailor it to the individual’s needs and timed to be most effective?

As the Merits Committee said, the purpose of the mandatory work activity is not clear. Is it, as the Explanatory Memorandum says, to require extra support to help customers refocus their approach to job search? Or is it more, as the department’s memorandum to the Social Security Advisory Committee says, to give jobcentre advisers another intervention to deal with those doing only the bare minimum to comply with the requirement to seek work? The SSAC is concerned about the,

“precedent set by appearing to punish claimants who are satisfying the conditionality rules but who in the view of the Personal Adviser appear to display the ‘wrong attitude’”.

Is the committee not right that this is an extension of the conditionality rules by the back door, by negative instrument, and with no evidence to support it?

Why not delay the regulations and proceed with the pilot to ensure that the 10,000 work experience places are an effective use of taxpayers’ money in helping people into work? How would the Minister respond to those who suggest that this is going to end up just being a way of parking 10,000 customers and generating a few headlines in the Daily Mail, but not actually helping anyone?

Then there are the concerns about certain groups being able to do the activity and fulfil the other conditionality rules. I shall quickly run through those, and if he has time perhaps the Minister could address them too. Rural residents may be sent to work at some distance, at their own transport cost, and potentially a long way from the local office for signing on. Will the requirements be relaxed to allow them to sign on by phone during the period of the placement?

What about participants with children? According to the SSAC report, their childcare has to be funded from their benefits. Can that be right? Does that not put them in a position of choosing to use all their benefit for 30 hours’ childcare leaving nothing to live on, to lose a benefit sanction of three months, or to take risks on the reliability of informal childcare, which might mean that they were unable to get to work? What will that do to their experience of work as a positive activity? Remember, they have no appeal on the mandation. The Minister could assist greatly by being clear now that advisers will put the interests of children first in applying these regulations, and that parents will be mandated on to the scheme only if the childcare arrangements are adequate and affordable.

20:15

What about ethnic minorities, those with caring responsibilities, those with disabilities, those with ME and those with learning difficulties? DWP evidence shows that these are the people most likely to be sanctioned for not actively seeking work; they are therefore those most likely to be mandated on to this scheme and therefore at greatest risk of these punitive sanctions.

As ever, I have asked a lot of questions. I apologise. I know it is a better tactic in Opposition to stick to just one or two in the hope that it forces the Minister to answer them. However, there are a lot of questions. That is why everyone who has looked at these regulations wants more information. I found it shocking to discover just this evening on the Merits Committee website that it has published an exchange of letters between itself and the Minister of State in the department, Chris Grayling MP. In the first letter on 11 April, the committee said:

“Our 27th report made it clear that we found the case for the Mandatory Work Activity Scheme Regulations to be vague, unquantified and lacking in practical detail”.

The committee took oral evidence from Mr Grayling, which,

“did not add significant detail about the numbers of places actually needed, or the cost benefit assessment. We gained the impression of an experimental scheme, with little clear accountability to the taxpayer, or to claimants who might find themselves required to perform a very wide range of activities, the scope of which remains unclear”.

Mr Grayling replied on 19 April:

“I do not believe that the Department should be criticised for not providing information on all these issues in the explanatory memorandum that accompanied the Regulations”.

He continued, saying that,

“the function of the Committee is to examine whether a statutory instrument will effectively achieve the stated policy objectives, not to examine whether those policy objectives are themselves desirable. In my view some of your detailed questions, including that regarding Jobcentre Plus resources, suggest that the Committee is straying further into questioning the policy itself than it should do”.

The committee replied—understandably, in some outrage—on 4 May:

“The Committee felt strongly that your letter was an inappropriate response to legitimate concerns expressed by a Parliamentary Select Committee … It is for the Department to give a coherent explanation for the legislation it proposes—the Committee’s task should not be to undertake research to piece information together”.

The committee goes on to say that if it is not satisfied, it will invite the Secretary of State for Work and Pensions, together with the most senior officials from the department, to give oral evidence to the committee. It is clearly very unhappy with the way that Parliament is being treated by the Minister of State.

In conclusion, I know the Minister takes his work here very seriously. Perhaps, by speaking in this debate tonight, we will help him to persuade his colleagues in the department that getting secondary legislation right is essential and not just an irritant. I look forward to his response and urge your Lordships to send a strong message to Ministers about the importance of Parliament, the Merits Committee and accountability by supporting at least the Motion of the noble Countess, Lady Mar.

[Baroness Thomas of Winchester]

My Lords, I, too, am glad to have the opportunity to debate briefly the thinking behind this order, which raises some important questions. I am not unsympathetic to the whole scheme. It has been introduced, we are told, because Jobcentre Plus staff wanted a tool to enable them, in the words of the Minister, Chris Grayling, when he gave evidence to the Merits Committee, to refer someone on JSA for a period of full-time activity to instil the discipline of work, and re-energise, refocus and remotivate them to enter or re-enter the world of work. This sounds reasonable until one looks at the process. It is very rare for the Merits Committee, of which I used to be a member, to draw the special attention of the House to an order using the following words:

“The Committee considers it unacceptable that the House has been given insufficient information to understand the policy objective of the scheme; to determine how the scheme will work; and effectively to assess whether the outcome will help claimants to improve their prospects of obtaining employment”.

Since then, the noble Lord, Lord Knight, has told us what the up-to-date situation is, which I had not heard about. I am glad he has given us that news.

It is important to say that this mandatory work activity scheme is not work-related activity, which is a very different scheme for those on the employment side of ESA. However, there is a similarity between the two schemes—not just between their names, which is unfortunate. Both are supposed to help unemployed people prepare for the world of work and both carry a sanctions regime, although neither is a sanction in itself.

The two sanctions regimes are very different. Work-related activity for ESA claimants carries a relatively mild sanctions regime, whereas this scheme—although placements under it last for only four weeks—has a much tougher regime. As we have heard, if someone defaults without good cause there will be a fixed sanction of 13 weeks. If this happens twice within 12 months, the sanction will be of 26 weeks. No wonder the SSAC considered this disproportionate. It was also critical of the fact that the sanction could not be overturned or shortened by a claimant re-engaging with the process, thus turning the whole placement, in this circumstance, into nothing much more than a punishment. How do we know what a good cause is for this particular scheme? We do not; it is left, presumably, to the decision-makers in Jobcentre Plus. Why? It is apparently felt that prescribing in regulations what constitutes good cause will limit the circumstances in which it can be applied, although it is prescribed for other sanctions regimes. Does this mean that there is likely to be inconsistency up and down the country in how good cause is judged? Yes, this is bound to happen, which must surely be why these regulations, as drafted, are unacceptable and leave Parliament unsighted as to how the scheme will work in practice.

One matter I am puzzled about is the nature of the placements under the scheme. The Minister in his evidence said that placements would be in the not-for-profit sector. He cited the examples of work in a charity shop or on a conservation project. However, nowhere is it spelt out in the regulations that these placements will be in the not-for-profit sector. Clearly there are all kinds of implications if placements are to be made in ordinary businesses, including the danger of exploitation. I wonder why this is not stated in the regulations. Many other questions are raised by the order. Perhaps two, crucially, are: is the balance right between what the Secretary of State lays down and what is left to local determination; and what will success look like?

All in all, Parliament is being asked to buy a pig in a poke with these regulations, framed the way they are. As I said at the beginning, I am not against the policy of trying to engage perhaps recalcitrant jobseekers with the world of work, but the lack of information we are given in these regulations leaves me with no option but to vote for the regret Motion of the noble Countess.

[Lord Rix]

My Lords, this is the first time that I have been in your Lordships’ House since the debate on disability last Thursday, when it was announced that the noble Lord, Lord Freud, had had an unfortunate accident. I am glad to see him back in his place and I hope that he is fully recovered.

I start by stating that I am, of course, in support of the principles behind universal credit—namely, making work pay and helping more people into employment, if they are able to work. I doubt that anyone in the Chamber opposes that. However, the means by which this is achieved must be sensitive to the wide-ranging needs and abilities of potential jobseekers. It is within these parameters that any assessment of the fairness and value of the Mandatory Work Activity Scheme must be considered to ensure that people are not disproportionately disadvantaged. I intend to focus on the impact that this regulation would have on disabled people and, as President of Mencap, especially on those with a learning disability, because I fear they stand to lose most as a consequence of these regulations.

Recently, the Employment Minister claimed that three-quarters of incapacity benefit claimants have now been found to be fit for work. Coupled with the removal of the exempt group, which means that people with a learning disability are not automatically exempt from the work capability assessment, this could result in a significant number of disabled people being found to be fit for work and migrated onto benefits, most likely JSA, where they will be subject to conditions such as the Mandatory Work Activity Scheme.

This holds many challenges—primarily the risk of imposing unreasonable demands on people who might struggle to fulfil them because of their disability or those who might not fully grasp the requirements made upon them. A failure to attend a mandatory interview, for example, may be as a consequence of an individual’s lack of understanding of what was expected of them, rather than a deliberate act of non-compliance. Indeed, the Social Security Advisory Committee has warned that:

“Evidence from the Department’s Equality Impact Assessment and DWP research shows that ethnic minority claimants and those with a learning difficulty tend to be disproportionately sanctioned for not actively seeking employment. This, alongside other societal factors, could lead to these groups being disproportionately referred to this scheme and, as a consequence, at even greater risk of sanction”.

I seek assurances from the Minister that the correct protocols will be put in place to ensure that people with a learning disability fully understand the obligations they must meet. It is also vital that these obligations are reasonable and that individuals are provided with appropriate support. This is particularly important because disabled people are statistically more likely to live in poverty and will often be unable to cope with the sanctions.

Additionally, I am very concerned about the precedent being set to punish people for having the “wrong attitude” when it comes to job seeking. It is imperative that the Government are clear about the intention of the scheme. If the aim is to incentivise work, I would suggest that there are better ways of monitoring how proactive people are being when in search of employment, rather than penalising them if someone determines that they are not looking hard enough. The truth might be that an unsuccessful passage into work might not be as a result of a lukewarm motivation but because of a lack of available opportunities to work.

People with a learning disability have very specific and individual support needs when seeking employment. With the increased likelihood of disabled people moving onto jobseeker’s allowance come the increased responsibilities to ensure that these people are properly supported in getting a job and are not given the added onus of unfair sanctions or conditionality if they are unable to do so. Equally, there seems to be no detail about a complaints procedure in the event of this support not being available. Given the significant evidence of prejudice that befalls many disabled people when seeking a job, what assurances can the Minister provide that this will be adequately addressed in the scheme?

As I said before, my concerns arise out of a lack of clarification from the Government about the details of the scheme and I hope that the Minister will be able to allay my concerns by assuring me that disabled people, especially people with a learning disability, will not lose out under these regulations; but, frankly, I fear the worst.

20:30

[Baroness Lister of Burtersett]

My Lords, being new to the House, I am no connoisseur of Merits Committee reports, but on reading its 27th Report over Easter, it struck me as being damning in its conclusion that the lack of information attached to the regulations was unacceptable. The noble Baroness, Lady Thomas of Winchester has confirmed that view.

I am rather more familiar with the reports of the Social Security Advisory Committee, having read many of them over the years. Its report on these regulations, to which the Merits Committee refers, is at the more critical end of the spectrum of SSAC statements. Its key recommendation was that mandatory work activity should not proceed. Nevertheless, it is proceeding on the basis of regulations deemed inadequate by the Merits Committee for their lack of clarity of purpose. As the committee underlines, these are important regulations, the effects of which could have serious implications for the livelihood of thousands of unemployed people. As we have heard, where sanctions are imposed, JSA will be withdrawn for 13 or 26 weeks and, if further primary legislation is passed, we could be talking about loss of benefits for 156 weeks for a third so-called offence from April 2012.

The evidence suggests that it is often the most vulnerable who are subjected to sanctions. Both the Merits Committee and SSAC comment on the ambiguities surrounding the scheme's purpose. The department denies any punitive intent, emphasising how the scheme is supposed to help customers develop behaviours and attitudes required to get and keep work, yet it is adamant that sanctions must be applied to those who do not comply. I do not find the department's response to SSAC’s concerns very convincing. The velvet glove and warm words about support surrounding the iron fist of sanctions look rather threadbare.

I am reinforced in that view by my reading of a recent systematic review of international evidence on the impact of benefit sanctions published by the Joseph Rowntree Foundation. The review questions the efficacy of sanctions in changing claimants’ motivation or attitude towards work. It suggests that although sanctions may have a short-term effect in shortening unemployment spells, the longer-term effects can be counterproductive in jobs and earnings progression. It is worth citing the report's conclusion:

“this report brings into focus the gulf between the rhetoric of welfare reform and the evidence of the effects of sanctions … policy-makers continue to justify the extension of sanctions (and sanction-backed conditionality) on moral philosophy grounds while taking an ambivalent attitude to the evidence … with evidence being marginalised by discussion of principles and what can be expected of claimants in return for benefits”.

I fear that, in a moral crusade against the supposed welfare dependency, Ministers read the evidence through a distorting lens. As the TUC warned in its submission to SSAC, these regulations seem to move employment policy further away from an evidence-based approach. The SSAC report comments:

“The evidence on the efficacy of ‘workfare’ schemes is, at best, mixed”,

as the noble Countess has already pointed out.

Personally, I was unhappy about the previous Government's work-for-your-benefit proposal, but at least, as the Merits Committee notes and my noble friend pointed out, it was to be a pilot scheme with a clear evaluation plan aimed at examining whether mandatory work activity had demonstrable benefits. These regulations introduce mandatory work activity nationwide without any such evidence.

That makes all the more important the monitoring of placements to ensure that, among other things, participants are treated properly and are not used to replace waged workers. I am pleased that the department has accepted SSAC’s recommendation on that point, and I would welcome more information from the Minister about the placement monitoring system. However, as the Child Poverty Action Group points out—I declare an interest as its honorary president— there are no guarantees of minimum standards that can be expected from employers. I regret that the department has rejected SSAC’s recommendation that detailed guidance should be given to employers about placements.

My other main concern, which was also picked up by the Merits Committee and SSAC and was commented on by the noble Countess, is the question of discretion. The Merits Committee questioned how the scheme can be delivered with any degree of consistency given the degree of flexibility and discretion built into it. In its 28th report, drawing attention to oral evidence provided by the Minister for Employment, the committee observed that,

“The targeting of the Mandatory Work Activity Scheme is to be left almost entirely to the discretion of Jobcentre Advisers, and the Minister is sanguine that there will be local variation and a lack of consistency in the way that the Advisers apply their judgment”.

That is just one example of how discretion is being extended in the social security system, and I find it worrying.

Flexibility sounds very positive, but its flip side is a lack of clear rights and the danger of arbitrary and inconsistent decision-making and lack of transparency. Moreover, the JRF review suggests that the administration of sanctions is not rational or equitable and can lead to bias, including racial bias. Important decisions with implications for a claimant's livelihood will be taken on the basis of what SSAC refers to as the

“views and opinions of the personal adviser”—

views and opinions about attitudes and motivations that will require considerable skill to interpret correctly. I would be grateful if the Minister would tell us about the kind of training that advisers will receive to make these decisions, and whether all advisers will have received this training by later this month when the scheme is introduced.

Will the Minister also clarify the department's response to SSAC's recommendation that,

“detailed information is provided to potential participants about the criteria for selection”?

In its response to SSAC’s report, the department says that it accepts the recommendation, but in explaining how it accepts it the department does not state explicitly that potential participants will be told the criteria for selection. I would be grateful if the Minister would confirm whether they will be told.

Another extension of discretion lies in the refusal to prescribe in regulations factors to be taken into account when deciding whether someone has good cause for failing to take part in the scheme when required to do so. This point was made by the noble Baroness, Lady Thomas of Winchester. The department's response to SSAC, namely that doing so risks limiting the circumstances in which good cause could be applied, again is unconvincing. Clear good-cause provisions in the regulations would provide a safeguard for claimants, without necessarily limiting the circumstances to those listed.

In conclusion, the Merits Committee complains about the vague and insubstantial basis on which we are expected to assess whether the regulations will achieve their objective. On the basis of research evidence, I fear that the regulations will do more harm than good. I support my noble friend's prayer that they be annulled, and the Motion of Regret tabled by the noble Countess.

[Lord Kirkwood of Kirkhope]

My Lords, the House owes a debt to the noble Countess, Lady Mar, for raising these regulations this evening. As always, it also owes a debt to the Merits Committee and the Social Security Advisory Committee for their excellent work. The debate highlights very important points, many of which have already been made.

The first thing that I will say relates to the initial observations about procedures made by the noble Lord, Lord Knight. I would support him in pursuing the clarity that we need to enable the House to demonstrate and exhibit displeasure to the department without necessarily seeking to completely torpedo and annul regulations. The Motion in front of us in the name of the noble Countess, Lady Mar, is well judged. It is not always a Minister's fault—indeed, I completely absolve my noble friend from some of the worst excesses of this order. However, we should have the ability to make it clear that if there is insufficient detail, and if we do not feel that it is safe to endorse proposals that are brought to the House by the department via Ministers, we should have a method of expressing that in a grown-up way, and we should be able also to test opinion in the Division Lobbies. I encourage the noble Lord to pursue that line of thought.

Secondly, my noble friend must have bigger fish to fry. I have spies everywhere and they tell me that this is an £8 million scheme. That does not mean that it is not important—there are important principles here—but he has much more important things to worry about, such as universal credit and the work programme, which are both crucial. I also understand that we have managed to get such a keen price out of the contractors that we have been able to double the number of places for the mandatory work activity scheme and are now thinking about 19,000. That raises questions about the quality of the schemes that will be provided. I have a calculator, and I can divide 19,000 into £8 million and see that it works out at something like £430 per four-week placement. These figures need to be confirmed; otherwise, we will all be confused. The point I am making is that, if we have four-week schemes that are costing £430 to provide, one wonders about the disproportionate sanctions referred to by colleagues earlier in this debate of £1,800 or thereabouts, being equivalent to 26 weeks’ benefit at £67.50. There is a disproportionality about some of this, as well as the question of whether the quality can be delivered on a four-week scheme for £430. We need to keep this in context, but there are some really important questions that worry me about these regulations that are creating potential precedents. These deserve attention.

First, if I understand it right, contributory JSA benefit claimants are covered by these regulations. Contributory benefit claimants are different from means-tested JSA benefit claimants. They have been paying national insurance contributions to enable them to be entitled to this benefit, at least in the first year, before they go into the work programme, as I understand this scheme as it is going to be rolled out. They are going to be tapped on the shoulder by some Jobcentre Plus personal adviser and be told that they are going to be subject to the mandatory work activity scheme. People who make contributions through the national insurance system should be in a different place from those on a means-tested JSA regime. I would like the Minister to comment on whether that is correct.

I also worry greatly about the way we are potentially interfering with the well-established legal definition of “actively seeking work”. The way I read this—and again, I would like to be corrected if I am wrong—being able to do just enough to satisfy JSA legal entitlement requirements is not going to be enough anymore under this scheme, because if you are only undertaking activity that is just enough to satisfy your personal adviser, you can still be mandated to be put on this mandatory work activity scheme. So I think we are stretching some of the well-established concepts. What people really clearly understand about “actively seeking work” has been built up over years in case law. We interfere with that at our peril, and I hope the department is thinking carefully about that.

I also concur with the comments made about adviser discretion, which is unappealable, to nominate candidates for this scheme. Obviously, the decision about a sanction is appealable and that is understood, but the noble Baroness, Lady Lister, was right to draw attention to giving discretion to advisers, as other colleagues have done in terms of local flexibility to contractors.

Part 6 of these regulations causes me some concern because I do not know that I have ever seen anything like this, but I may be wrong. Part 6 talks about “contracting out certain functions in relation to the scheme”. If we are starting to contract out certain functions of the scheme—I understand that does not include sanctions—that is new territory as far as I am concerned. We have to be very careful about what Jobcentre Plus staff and personal advisers can do, as well as some of the providers of these schemes.

20:45

Local flexibility for contractors raises questions about quality, and I agree with them. I think there are disproportionate levels of sanctions, and I agree with my noble friend Lady Thomas of Winchester about good cause suddenly being undefined. Good cause has always been defined ad longam in legislation before. I understand that the department is suddenly saying, “Let’s look at it. Let’s be more flexible because we can deal with clients better”, but I remain to be convinced about that. That is one of the biggest omissions in terms of the department’s inability to persuade people that we have enough information to take sensible decisions about these regulations this evening.

Benchmarking was mentioned by the noble Baroness, Lady Lister of Burtersett. The guidance should be public. Although it may be technical, I understand that it will be searchable under freedom of information, and if it is, I do not know why it has not been made public. It will be kept within the department unless people ask for it. Benchmarking and targets become interchangeable, and staff in Jobcentre Plus offices will start making sure that they achieve the targets. I do not think they have been worked out. I am not convinced that we have had enough discussion about when a benchmark is a target and when it is not. There are all sorts of problems in some of these things.

Finally, coming from a rural area of south-east Scotland, I am really concerned about how transport costs and childcare costs are dealt with in rural areas. My honest opinion is that the £8 million would have been better spent on training schemes, but if we are going to do this, we are entitled to seek more detail. I think that as things stand, these schemes are of doubtful value. The sanctions are very severe, and I will need some persuasion by the Minister not to support the Motion moved by the noble Countess, Lady Mar, if she presses it to a Division this evening.

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

My Lords, thank you for giving me the opportunity to clarify the objectives of the mandatory work activity scheme and to explain further how the scheme will operate.

Before I go into that, I want to say that the department takes the concerns raised by this House very seriously. The concerns raised here and by the Merits Committee tell the ministerial team in the department that something has gone wrong. I am aware that this is not the first time in this Session that the department’s instruments have been called to the attention of this House, and we find that very serious. The full ministerial team is in agreement that providing the Merits Committee and the House with all the necessary information is of central importance, and we all regret—I particularly regret—any occasion when the Committee felt it received inadequate information. We are working hard to improve on this. We have arranged for senior officials to meet with the committee’s advisers this week in order to take a serious look at how we are falling down, and they will work with the committee team to ensure that the House is in future supplied with all necessary information. I can assure noble Lords that I am going to make sure that there is a process in the department that makes sure that the right information goes to the committee. This will not continue in this way.

Let me now offer some assurances about this particular instrument. The mandatory work activity scheme represents a new approach. I understand why some noble Lords feel that we should have conducted a pilot before introducing the scheme nationwide. Such an approach may have been the norm in the past, but there has been a change of philosophy in this area. The problem with small, limited pilots is that in the mean time they leave you with a moribund system. Central to the new philosophy of the department is that it is best to provide the freedom to allow initiatives to flourish into success. That is what the structure of the work programme is designed to do. It provides our own staff with the freedom to innovate. Advisers are given greater flexibility to make decisions on what help an individual needs in order to find work. It is one of a range of available support options that can be considered.

The budget is set by a central contracting process, but it will up to Jobcentre Plus to decide whether to use it and in what numbers. It will depend on whether there are claimants in a particular Jobcentre Plus area whose characteristics suggest that they would benefit from this intervention. Contracted providers will not be paid for places we do not use, so there is no incentive to use places that customers do not need. My noble friend Lord Kirkwood’s maths on his calculator is more or less spot on. We have the money for up to 19,000 places costing £8 million, which on the calculation of my team in the Box comes to £421. That is close enough to my noble friend’s answer of £423. How he got that discrepancy suggests that it is obviously a Hewlett Packard calculator.

It is important to recognise that we are not undertaking this work without assessing its place in the wider picture. We intend to learn from how mandatory work activity is used and what impact it has on the customers who are referred to it. I shall come back to precisely how we plan to report to the House on that.

I should also like to take this opportunity to address some of the other concerns that have been raised in the debate. It is vital to recognise that this support was asked for specifically by Jobcentre Plus personal advisers themselves. After all, they are the people best placed to understand what help those struggling to find work really need. During the summer, ministerial colleagues went out, listened and gathered opinions from Jobcentre Plus advisers. The consistent message was that they wanted a tool like this to engage a particular group of people. So the introduction of the mandatory work activity programme has been driven by the grass roots. The programme is aimed at a particular, rather small group of people who have become disengaged and stuck in a rut in their search for work. By getting them involved in mandatory work activity within their local communities, the aim is to give them the confidence they need to approach finding employment proactively as well as the basic disciplines that any employer would expect.

The noble Lord, Lord Rix, was particularly concerned about people with learning disabilities. We aim to replicate all the existing protections in referring people. JCP advisers are not looking for customers in this group. Equally, I shall pick up the concerns of the noble Countess, Lady Mar. Customers in poor health are absolutely not the target group for this scheme, which is aimed at those whose key barriers to work are the disciplines of employment. We know that every customer’s circumstances are different. As much as possible, we are giving discretion to Jobcentre Plus advisers on when to refer customers to mandatory work activity.

Although we are not being prescriptive, we are providing guidance to JCP so that it can provide a framework and achieve continuity of approach across the country. The guidance will indicate the type of characteristics that we expect claimants who benefit from this provision to display. As a department, we are choosing to trust those who have day-to-day experience of working with jobseekers. They are, after all, the people who are asking for greater freedom in how to help customers.

The noble Lord, Lord Rix, was concerned about the complaints procedure. A clear, independent complaints procedure exists through the independent case examiner. If providers are at fault, a hefty fine will be attached. The noble Countess, Lady Mar, expressed concern about trickery and quoted from an article in the Guardian. I can assure her that there are no targets in place to deliver sanctions, either in JCP or among providers. The noble Lord, Lord Knight, was concerned about costs. We have taken on board the recommendation of the SSAC that we pay childcare costs. Lack of suitable childcare is good cause for failing to attend. Therefore, there would be no sanction. We also pay transport costs under the programme. More detailed guidance will be available to JCP advisers. The guidance will be internal for them, so it would not make much sense to publish it.

We have now completed the procurement process and are able to discuss the suggestions of those who participate in the scheme. That may be helpful in clarifying how mandatory work activity will help customers as they look for employment. The noble Lord, Lord Knight, and the noble Baroness, Lady Lister, said that research shows that workfare is not effective. We must make it clear that this is not workfare; it is a short, supportive and personalised programme. That is why flexibility is built into it. The noble Baroness said that that can be looked at in two ways, but the intention here, given the brevity of the programme, is to be supportive.

We have not asked contracted providers to give us details of every placement, but, as an example, several organisations have suggested that they will place people with charities that renovate old furniture to be used in social housing or by low-income families. The noble Baroness, Lady Thomas of Winchester, spoke of benefiting the community. Examples of placements include improving local green spaces, improving community cohesion by working with excluded groups, maintaining cultural spaces and helping the development of social enterprises. Our aim is not only to provide visible benefit for local communities but also to give people the chance to develop skills that they can take forward when looking for work in the future. Most importantly, they will be expected to turn up for work every day for four weeks. They will be expected to work with their colleagues and to complete tasks that they have been set in a timely way.

In response to the concerns of the noble Baroness, Lady Lister, about placement monitoring, we will monitor placements through direct relationships with providers. It is clear in the contracts that placements must not replace current or future employees. We are seeking in this programme to instil essential work disciplines. Research with employers has consistently shown that they value such characteristics highly. A short experience of the workplace can help that development.

My noble friends Lady Thomas and Lord Kirkwood were concerned that there was no indication about how we would operate good cause. We will explicitly include good cause in the guidance in a similar way to that in other regulations. The noble Lord, Lord Knight, was concerned about there being no appeal for mandation. The decision to refer is an administrative decision subject to judicial review if it is unreasonable.

I thank noble Lords for allowing me this opportunity to try to explain these regulations more than we seem to have done to the Merits Committee. I hope that I provided some enlightenment. I recognise that some noble Lords hold deep concerns and I respect and acknowledge those. But in response to those concerns, I assure noble Lords that as well as monitoring the management information generated by the scheme from day one, we will be conducting an impact assessment in November 2012 to assess how mandatory work activity has changed outcomes for individuals.

On top of that, we have set aside £150,000 to conduct external independent research in February 2012 to learn about the experience that customers have while on the scheme, and the difference that it makes to the approach that customers take on their job searches. That will report in summer 2012. Any decisions about the future of the scheme will be based on the outcome of those reports. In order to ensure that the House has the opportunity for further scrutiny of any future changes, I commit that these reports will be laid before the House and noble Lords will be alerted that that has occurred allowing for further debate at that time. I hope that those offers are satisfactory and I urge noble Lords not to press their Motions.

[The Countess of Mar]

My Lords, I am grateful to the noble Lord, Lord Freud, for going to so much trouble, and I have no doubt about his sincerity. I doubt that any noble Lord in this House is completely against these regulations. We agree that some people need to be offered the discipline of work. But we are not happy about the sanctions and the noble Lord has made no effort to justify these draconian sanctions—they are very severe.

I am very grateful to all noble Lords who have taken part. I will not go through their speeches individually because I know that everybody is hungry and will want to go to dinner. I am not satisfied despite the Minister's efforts that he has filled in all the gaps. We have a statutory instrument before us that is not clear and I wish to test the feeling of the House.

21:04

Division 5

Ayes: 122

---

Labour: 93
Crossbench: 15
Liberal Democrat: 8
Independent: 2
Conservative: 1
Ulster Unionist Party: 1

Noes: 155

---

Conservative: 108
Liberal Democrat: 40
Crossbench: 3
Ulster Unionist Party: 1
Labour: 1

Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011

Tuesday 10th May 2011 Lords Chamber

Motion to Annul

21:14

Tabled By

[Lord Knight of Weymouth]

That a Humble Address be presented to Her Majesty praying that the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011, laid before the House on 14 March, be annulled (SI 2011/688).

Relevant document: 27th Report from the Merits Committee.

Motion not moved.

Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011

Tuesday 10th May 2011 Lords Chamber

Motion of Regret

21:14

Tabled By

[Lord Knight of Weymouth]

That that this House regrets that in relation to the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011, laid before the House on 14 March (SI 2011/688), “the House has been given insufficient information to understand the policy objective of the scheme; to determine how the scheme will work; and effectively to assess whether the outcome will help claimants to improve their prospects of obtaining employment”, and calls on Her Majesty’s Government to make new Regulations when these concerns have been met.

Relevant document: 27th Report from the Merits Committee.

Motion not moved.

Fixed-term Parliaments Bill

Tuesday 10th May 2011 Lords Chamber

Report (1st Day) (Continued)

21:15

Amendments 6 and 7 not moved.

Amendment 8

Moved by

[Lord Grocott]

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

[Lord Grocott]

My Lords, this is a very simple amendment with a very simple objective which I hope the Government will be able to accept. As the House knows, I find the Bill entirely unattractive and wish that we were simply getting rid of it, but if we are to have a Bill where there are fixed five-year Parliaments, then it follows, as night follows day, that there ought to be a rule governing the number of Sessions within the fixed five years.

It is very odd trying to put our constitution into a straitjacket, but the Government seem intent on doing so. This amendment was considered in Committee but not very satisfactory answers were given. The reason I have been inspired to table it is that whereas we normally know that a parliamentary Session will last about a year—with the exception of the first year of a Parliament, which can frequently be 18 months, from, say, May in one year until November the following year—I am sorry to say that this Government have unilaterally decided that there would be a two-year Session to begin this Parliament.

If we were following the normal conventions of our democracy then we would not be debating the Report stage of a Bill now, we would be having a Queen’s Speech. It is a year since the general election and that is the normal length of a Session of Parliament. The Government have already told us that the next general election will be in May 2015, so it seems an incredibly simple proposition that there should be five Sessions of one year each. Normally it would be completely unnecessary for me or anyone else to move an amendment requiring that this should be the case, but the Government have broken the normal rules. I do not know where the decision to have a two-year Session came from. I ask the noble and learned Lord, Lord Wallace, what consultation the Government had with the Opposition or anyone else when they decided that we should have a two-year Session of Parliament.

As we all know, the sessional discipline is part of the delicate balance between Government and Opposition. Oppositions get stronger, in a sense, as the Session progresses because the Government know that they are up against the deadline of a Queen’s Speech; and we have had, quite properly, to establish precise mechanisms to enable a Bill to be carried over from one Session to the next. I say “quite properly” because we have all recognised in the past—although apparently not now—that it would be quite wrong for a Government simply to be able to extend at their convenience the periods between Queen’s Speeches.

As I say, I do not like translating conventions into rules, but it is necessary in this case. Why are we not having a Queen’s Speech now? Why are the Government not bringing the first year of this Parliament to a conclusion in the normal way, after 12 months, making concessions on Bills—which is what Governments do towards the end of a Session—and then preparing for the next statement of the Government’s policies and legislative objectives, which of course is what we get with a new Queen’s Speech? If the Government are intent on having five years after five years after five years ad infinitum—although I am obviously delighted with the amendment that has been passed that will require any new Government to think again about this—what could conceivably be the objection to insisting in this legislation, which provides us with the opportunity, that there should be a minimum of five Sessions in a five-year Parliament?

I looked in vain, having reread the Committee stage when this was discussed, but no one spoke against it except the noble and learned Lord, Lord Wallace. Maybe it was wishful thinking on my part, but I got the feeling that he was not wildly enthusiastic about speaking against it. The only objections that he offered were that this could present problems should there be a Dissolution of Parliament under the terms of this legislation in less than five years. We all know that that is a possibility; again, it is a part of the Bill that not many of us like, but there are precise provisions for saying how Parliaments can be of a period of less than five years. If the Government have found the mechanism for dealing with a Parliament that lasts less than five years, surely it is not difficult to find a mechanism for dealing with the consequences for parliamentary Sessions. It is unfortunate that we have to go down this road but, if we have, it cannot be beyond the skill of parliamentary draftsmen to deal with that objection.

The only other case that the noble and learned Lord, Lord Wallace, offered in Committee comes in col. 526 of Hansard on 21 March. He explained why the Government decided that it would be not a one-year Session but a two-year Session; it was announced unilaterally to Parliament last September without consultation, as far as I know—although I would be delighted to be proved wrong in that respect. The explanation that was given was as follows:

“An announcement was made in September, which would normally have been between a third and half way through the Session”.

He is referring to the last Session, which should have concluded this May, as I have suggested.

“There was an option to truncate the Session about now”—

he was speaking in March—

“but it was thought that the best thing to do was to go to next year”.

The Minister is very precise with words; he is a lawyer and is careful what he says. It is not exactly truncating a Session to suggest that it should be for a year, however. It really is a fairly loose use of the word.

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

Does the noble Lord not recall that the normal practice has been for the first Session after a May election—indeed, I think that it happened with almost every Government elected when Mr Blair was Prime Minister—to last not a year but until the following autumn? So when I say truncated, I mean that there would not normally have been a Queen’s Speech this May; it would still have been in November. The first Session would probably have gone 18 months, so to have had a Queen’s Speech in March or April would have been to truncate the normal practice after a May general election.

[Lord Grocott]

The problem with that argument is that, yes, it is true that if the election is in May then normally you have the Queen’s Speech the following year, in November. But if there is an election in October—and one that I vividly remember is the one in October 1974, because it was when the noble Lord, Lord Tyler, went out and I came in—the Queen’s Speech is the following November. The convention is that the Queen’s Speech is in November and if the sequence of elections means that that does not happen, it is quite right that there is a long Session of 18 months. There is a bit of a case for that, I suppose; all Governments are wild with enthusiasm when they come in and have lots of exciting things to propose, such as Fixed-term Parliament Bills, and so on. So it goes for a longish Session. But this was a choice for the Government, once they had decided that there would be a five-year Parliament, between having a year Session or a two-year Session. If he thinks there is not much to choose between an 18-month Session, which as he rightly says obtains when there is a May election, and a two-year Session, let me say that it would have been heaven to me as Chief Whip to have had a two-year Session. There is no pressure on you and no trouble; you can spend as long as you like on Committee and Report stages, and so on. So I do not think that that argument held up very well.

I do not suggest evil intent on the part of the Minister or anyone else in the Government in this respect at all. I am simply saying that not much thought went into what was in fact a quite substantial shift of power between Government and Opposition. As I said, that is a pretty delicate matter in our parliamentary procedures in both Houses, because it shifted the balance of power substantially in favour of the Government. I thought that the Minister really gave the game away in this second sentence:

“There was an option to truncate the Session about now, but it was thought that the best thing to do was to go to next year”.—[Official Report, 21/3/11; col. 526.]

The question from where I am standing is: the best thing to do for whom? In whose interest was it unilaterally to determine that there should be a two-year Session?

I simply put two questions to the noble and learned Lord, Lord Wallace. First, was there any consultation through the normal channels about the Government's decision unilaterally to decide, for the first time in the past 30 or 40 years—I am sure that the historians could go much further—on a two-year Session which is massively to the Government’s advantage? Secondly, I really would like to know, once it was determined to be the “best thing to do”, in whose interest the decision was thought to be made. I beg to move.

[Lord Falconer of Thoroton]

My Lords, we support this amendment. It goes to the heart of this Government’s claim that they wish to empower the legislature as against the Executive. The reason it matters, as my noble friend Lord Grocott said, is that where there is a restriction on the time to get legislation through, there is a huge incentive for any Government, whatever their hue, to reach agreement with the Opposition on as many issues as possible. If they do not reach agreement on those issues, the consequence is that their legislation is delayed.

Parliament is disempowered if a Government feel able, as this one did, to double the length of a Session. This Government did so on a whim, as there was no consultation. It appears from the speech of the noble and learned Lord, Lord Wallace of Tankerness, that they simply decided to go for two years without giving any justification. This House is entitled to hear the Government's opinion on the number of Sessions there should be in a Parliament and their commitment in relation to that. Do they understand the importance of empowering the Chamber in each House by having a limit on the time available to them for the passage of legislation?

If satisfactory answers are not given, this should be put to the vote. It is an important issue. The answers must include one to the question which my noble friend Lord Grocott put, because that is really the litmus test of how committed the Government are to the idea of there being a year-on-year Session. This is another opportunity for the Government to put their money where their mouth is. Are they true exponents of what they describe as the new politics, or are they simply motivated by a desire to make their life as easy as possible—that is, the worst sort of Executive?

[Lord Brooke of Sutton Mandeville]

My Lords, I apologise for speaking at this late hour but I made it clear in Committee that if anybody referred to Mr Asquith again, it would stimulate me into speaking. Although I was not here to hear the reference to him at the beginning of this afternoon's proceedings, it was alluded to later in the debate on Amendment 1. Therefore, here I am, on my feet.

Your Lordships’ House will recall the Sherlock Holmes case where the great detective pointed out to Dr Watson the significance of the dog not barking in the night-time. Those of your Lordships who were here to listen carefully to the powerful speech by the noble Lord, Lord Morgan, on Amendment 1 will have noticed that he omitted from his list of five-year Parliaments in the post-war era the period from 1945 to 1950. He thus omitted the great achievements of the Labour Government of the Earl Attlee of that period.

In generosity, I take it that the noble Lord, Lord Morgan, realised that it required a five-year Parliament to produce the achievements of what I understand the Labour Party has always thought was the greatest Labour Government of them all. As to the reason he omitted it, I suggest that it was considered either that it would be sacrilege ever to run the risk of toppling the Attlee Government’s record from its plinth or that Labour had given up hope of ever challenging the Attlee Government’s record and felt that Labour should conceal the dilemma I am describing by limiting the life of any future Labour Government to, at most, four years as a self-immolating, self-denying ordinance. The noble Lord, Lord Morgan—not to mention the noble and learned Lord, Lord Falconer—was prudent enough not to announce which of the cases I have adumbrated was correct and now we shall never know.

21:30

Your Lordships’ House knows my tremendous admiration for the noble Lord, Lord Grocott. It is an index of my forgiveness of the fact that I am never going to know the answer as to why the Attlee Government was omitted from the analysis of Amendment 1 that I say to my noble and learned friend on the Front Bench that I think he has a question to answer from the noble Lord, Lord Grocott.

[Lord Norton of Louth]

My Lords, I had not planned to speak on this but, reflecting on what has been said, I am rather torn. I accept the logic of what the noble Lord, Lord Grocott, has said—I think that the argument he has advanced is impeccable—but I am reflecting on the value of the sessional cut-off, keeping it to a year, as has been advocated. It is quite right that the sessional cut-off is a discipline on the Government and it gives some leverage to the Opposition—capital “O”, and sometimes small “o”—because of the pressure. I am not sure that compression within one year as the length of the Session necessarily benefits Parliament, because legislation has to be got through in that time and it limits the two Houses in the amount of time they can devote to deliberation in Committee. In the Commons, there is a problem now with Public Bill Committees, because there is very little time between taking evidence and having then to consider the Bill in the normal way.

I am just reflecting on the fact that, while I accept the logic of what the noble Lord has said, maybe we need to think a little more imaginatively about how long each Session actually lasts. In a five-year Parliament, maybe we should think about a three or four-Session Parliament. There needs to be some discipline, but one has to try to get the balance on that right. I am grateful to the noble Lord, Lord Grocott, because he has prompted me to think about that. We perhaps ought to reflect a little more seriously about it; there is a problem with the nature of rushed legislation of this sort, when perhaps we should be sitting back and thinking a little more constructively about how we want our Parliament to be run to the benefit of Parliament. As I say, there is that balance to be met between giving leverage to the Opposition and benefiting Parliament so that it has proper time to thoroughly scrutinise what the Government are bringing forward.

[Lord Howarth of Newport]

I suppose we could do what the Scottish Parliament does, which is to have no sub-division into annual Sessions within a four-year term—apparently shortly to be a five-year term in the Scottish Parliament. I think that we should either go the whole way in abolishing parliamentary Sessions and having some kind of continuing, rolling process of legislation, or have a rational, predictable, orderly division of the time available in a Parliament.

The amendment in the name of my noble friend Lord Grocott should not be necessary. It is clearly undesirable to legislate on internal proceedings in Parliament, but we have been driven to it by the behaviour of the coalition Government in awarding themselves a two-year Session in which they should have been able to get anything at all through. Their potential abuse of parliamentary strength has been mitigated only by their incompetence in failing to take advantage of the situation that they created for themselves. In the early months of this Session, we had almost no legislation introduced; we then had an immense amount of time spent on constitutional legislation, which the public did not want, culminating in the fiasco of the AV referendum. We now have the pause in the NHS legislation. I am given to understand that there are going to be new Bills introduced at Second Reading this summer, so that even with a two-year Session, they may run out of time to complete their programme; it really is pretty chaotic.

My noble friend does the House, and indeed Parliament, a service in drawing attention to this consideration. While I would not wish to see his amendment get on to the statute book, he very properly challenges the Government to think carefully about how they handle proceedings within this House. I do not want a written constitution but I want respect for the unwritten constitution.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Grocott, for affording the House a further opportunity to consider and scrutinise this point, which, as has been indicated, he first raised in Committee. At that point I indicated that the two-year Session that we are currently in was intended as a transitional situation so that we could get into a position where we had 12-month parliamentary Sessions that fitted in, should Parliament pass a fixed-term Parliament Act.

I draw your Lordships’ attention to the Written Ministerial Statement made by my right honourable friend the Leader of the other place, Sir George Young, on 23 March. He reiterated the Government’s decision to extend the current Session of Parliament to spring 2012,

“in order to ensure a smooth transition towards five, 12-month Sessions over a Parliament, which would be a beneficial consequence of Parliament agreeing the Fixed-term Parliaments Bill”.—[Official Report, Commons, 23/3/11; col. 57WS.]

I hope that the House and the noble Lord will be assured that it is our intention that there should normally be five Sessions in a five-year Parliament. While the expectation is that future Sessions will last for 12 months, it remains inappropriate to enshrine that in statute; indeed, I think that I understood the noble Lord himself to indicate that he would prefer that working practices and conventions were not enshrined in statute. It is our intention that in future Parliaments there should be five 12-month Sessions.

In the Bill we have sought to do only what is necessary to establish fixed-term Parliaments for the United Kingdom. I am not convinced that the case has been made for legislating for the number of Sessions. The Bill does not abolish the prerogative power to prorogue Parliament, which will continue to be used to set parliamentary Sessions, nor does the Bill affect the powers of each House to adjourn. It is worth noting that the Constitution Committee has endorsed our decision not to abolish the prerogative power to prorogue.

Future Sessions after this one will last for only 12 months. The noble Lord asked me about the points that I made in Committee. When I talked about truncating this Session, that was on the basis that, as he acknowledged, when elections have been held in May or June it has been customary for that first Session to continue through to the following October or November. To have had a Queen’s Speech around now would therefore have meant truncating what had been expected at the outset.

I have made it clear that the decision to go for two years and thereafter to have 12-monthly Sessions was taken not in May last year but at a later stage. I am not aware that there was any consultation—I accept that criticism—but this was intended to be a transitional measure. By that stage, the Government’s legislative programme had been announced and it would have been very difficult if we had moved immediately to a 12-month Session for the first Session, although that could have been done if it had been thought about at the outset. I hope that the House will accept that that is the purpose of this being a two-year Session. It is not intended that this should be repeated. My right honourable friend the Leader of the other place has indicated that it would now be our intention to move to five 12-month Sessions in a Parliament.

I take the point made by my noble friend Lord Norton about this always being in the interests of Parliament. My experience in your Lordships’ House in the run-up to the most recent general election is that, with the final Session starting in November and finishing in March in order to accommodate a May election, we have tended to have a short Session that I do not believe allows proper scrutiny of legislation. This led to a very unfortunate situation in the wash-up where large parts of Bills were ditched, some of which are now on the statute book but certainly did not have the kind of scrutiny that we would normally expect. Having five 12-month Sessions will allow for proper planning of legislation. While it would be unwise to say that there will never be any kind of wash-up at the end of the final Session, one hopes that there will be far less than has been the case hitherto. One of the advantages of a fixed-term Parliament is that it will be possible to plan a legislative programme in a way that will not lead to these log-jams at the end, when much legislation is virtually nodded through.

The decision having been taken to move to fixed-term Parliaments, and since we seem—for better or worse—to have moved into a situation where elections are held in May, the Bill provides for elections in May. Therefore, it makes sense that we should have annual May-to-May Sessions. I repeat: the current two-year Session is a transition. No doubt what we gain here is that there is only a finite amount of legislative time in the Parliament as a whole if it lasts for five years. It would not be appropriate to put that in the statute. I am grateful to the noble Lord for giving me an opportunity to reiterate the position and to flag up what my right honourable friend the Leader of the other place has said on this matter. With these reassurances, I hope the noble Lord will be prepared to withdraw his amendment.

[Lord Grocott]

I am grateful to the noble and learned Lord, Lord Wallace, for that response. He simply holds a fundamental view on the constitution. So do I, but it is a different one. He is comfortable with a legislative programme being neatly sliced and organised over a fixed-term Parliament, whereas I have been straightforward with the House in saying that I am not at all comfortable with that. I like the flexibility that normally obtains with our parliamentary system. I do not even have the problem that he has with the last Session of a four-year Parliament quite frequently being a five or six-month pre-election Session. All that the Bill will do is make sure that it is a 12-month pre-election Session instead of a six-month pre-election Session. It will also lead to a lot of uncertainty.

I was straightforward with the House in saying that I was, in some respects, very uncomfortable with my own amendment. For the reasons I have already set out, I do not like putting our constitution in any more of a straitjacket than it needs to be. I am very grateful for the contributions that have been made. As ever, I find myself agreeing with the noble Lord, Lord Brooke, on most things, particularly his reference to the 1945 to 1950 Labour Government having been the greatest Labour Government. I would go marginally further and say that it was the greatest peacetime Government in the history of this country; there is only a word’s difference between us.

I was taken with the point made by the noble Lord, Lord Norton. I agree with him that maybe a year is not necessarily the best period. Maybe it is worth discussing that. I strongly believe in the convention that we have. If a Government are unable to contain their legislative programme within an agreed period of time, there should be an agreement by either House to carry a Bill over from one Session to the next only after the most rigorous tests. However, I take the noble Lord’s point. I must admit that I was stopped in my tracks by my noble friend, who reminded me that it was against the philosophy of several of us to try to put the proceedings of this Parliament into too strong a legislative framework.

The point has been made, as the noble and learned Lord, Lord Wallace, has acknowledged. It is written in blood in Hansard that there will be 12-month Sessions for the remainder of this Parliament until the happy day when it comes to a conclusion and a Labour Government can repeal the whole of this legislation. In light of what has been said, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendments 9 and 10 not moved.

21:45

Amendment 11

Moved by

[Lord Norton of Louth]

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

[Lord Norton of Louth]

My Lords, I shall speak also to Amendments 15 and 17. These amendments remove the provision that enables the Prime Minister by statutory instrument to vary the date of the general election by two months either way. We discussed subsection (5) in some detail in Committee and, in the light of that discussion, I came to the conclusion that rather than trying to build in safeguards or qualifications, as I sought to do on that occasion and as my noble friend Lord Rennard seeks to do today, it would be best to remove the provision altogether.

The principal reason why subsection (5) is included is because it is in the devolution legislation. It appears to have been included without much thought. I have still not been able to find anyone who can think of a circumstance in which the provision to bring the election forward by two months could apply. What sort of emergency can one anticipate before it has happened? Is there really any prospect of the Prime Minister announcing that the election should be brought forward by two months because the Government anticipate that there may be a foot and mouth outbreak at the time of the election?

It is also not clear why the subsection is needed, given the provisions of Clause 2. If there is all-party agreement that the election should be brought forward by one or two months, one can introduce an early election motion under Clause 2(1). That would cover it. The only difference between this subsection and utilising a motion under Clause 2(1) would be that this subsection provides a role for this House, because both Houses have to approve the order, but I do not see why we should be empowered to block an election being held up to two months early when we cannot exercise a similar power over a motion to hold it some time in the preceding four years and 10 months. I also doubt that we would wish to challenge the will of the House of Commons on this matter. I thus favour the removal of the provision for the Prime Minister to bring forward a statutory instrument to bring forward the date of the election by up to two months. My noble friend Lord Rennard seeks to do likewise.

I also favour removing the other half of the subsection. Enabling the election to be delayed by two months is an arbitrary provision. Why two months and not three? A delay needs to be determined in relation to the particular crisis that prompts it. Given that, and the likelihood that any delay will be required only in the most exceptional circumstances, I suggest leaving it to the enactment of a specific Act tailored to the needs of the time, as happened with the foot and mouth crisis in 2001.

The requirement for an Act also emphasises that it is exceptional and does not, as this provision may do, tempt a Prime Minister to use his parliamentary majority to approve an order to delay the election for the purposes of political gain. Two months can make quite a difference. This House would be the only potential block on the provision being used in this way, but we may wish to avoid the potential for a major clash between the two Houses.

My noble friend Lord Rennard seeks to retain the provision but subject it to similar safeguards to those that apply under Clause 2(1) in relation to an early election. If one were to retain the provision to delay an election by two months, I would very much support his amendment. However, on balance, we may as well remove the whole subsection. There is no need for the “before” provision, and the “after” provision is likely to be so exceptional—and may require a delay of more than two months—that we should leave it to Parliament at the time to craft a measure appropriate to the nature of the crisis. I beg to move.

[Lord Rennard]

My Lords, I rise to speak to Amendments 12, 14 and 16 in my name and those of my noble friends Lord Tyler and Lord Marks of Henley-on-Thames. Amendments 12 and 14 reflect the position that I set out in Committee, when I made plain that I could not see any justification for a provision to bring forward polling day in a general election by two months, in the way that the Bill originally suggested. In all my consideration of the debates here and in another place, I have yet to hear advanced any argument for why it might be sensible to say that a Prime Minister might be able to foresee circumstances in which he needed to bring forward the election by two months.

As the noble Lord, Lord Norton of Louth, said, no Prime Minister could be so prescient as to foresee such events and decide to bring forward the election in anticipation of them. I simply do not see the justification for the provision. However, there will remain in the Bill and in the detail now in Amendment 20, which we will come to later, a power for Parliament to have elections early if MPs vote for it by a two-thirds majority and this House endorses that proposal. I have no doubt that if there is reasonable political consensus on the need to bring forward polling day and have an early election, that will happen.

Amendment 16 deals with a power for which, I accept, there is a rather stronger case. That is the power for delay by two months. The commonly cited example of how a general election planned for one day might be postponed for a short while is our experience in 2001, when the foot and mouth epidemic broke out. Everyone knew that we would probably have an election in May. We had planned to have local elections in May. Those local elections were postponed and the general election, expected to coincide with them in May, was also postponed. I am therefore content that some power remains in the Bill for a delay and am now fairly convinced that there is at least some provision in the Bill to safeguard against abuse. That safeguard is this House, which would be asked to approve such a delay.

I was seeking through Amendment 16 to have a further safeguard built in for that—also a two-thirds majority in the House of Commons—but I now look at the changes that the Government have made by accepting Amendment 20. That dispenses with the role of the Speaker’s certificate. On that basis, I am prepared to accept that Amendment 16 is no longer appropriate, and I will not press that case; but the case for Amendments 12 and 14 remains strong. They simply retain the principle that if polling day is to be brought forward, it is Parliament by reasonable consensus and not the Prime Minister who should decide to bring forward the election.

The whole purpose of the legislation is to fix parliamentary terms at five years, notwithstanding the amendment which this House narrowly approved some hours ago. We need to remove from the Prime Minister the privilege of being able to hold the starting pistol in a race where he is also one of the runners. Amendments in the same form as Amendments 12 and 14 received substantial support from across the House when they were tabled by the noble Lords, Lord Norton of Louth and Lord Rooker, in Committee. I therefore hope that the Minister will have had time since Committee to reflect on those amendments and to consider them favourably.

[Lord Pannick]

My Lords, both the noble Lords, Lord Norton of Louth and Lord Rennard, proceed on the basis that the power to bring forward or postpone a general election would be exercised only in circumstances of crisis. It is very difficult—or impossible—to foresee such a crisis. I give noble Lords a possible example of when one would need to use such provisions where there is no crisis. Suppose that this country is awarded the Olympics or the World Cup. Each of those events will occupy a period of two weeks, for the Olympics, or four weeks, for the World Cup. One would know of such events years in advance, so there would be no crisis, but it would be entirely appropriate for a general election not to take place by consent of all concerned during such events.

[Lord Falconer of Thoroton]

I had thought before hearing the debate that I would tend to support the noble Lord, Lord Rennard, but I found what the noble Lord, Lord Norton of Louth, said powerful. Everyone appears to agree that the election is unlikely to be called early anyway; if there is sufficient consensus for it to be called early, that can be dealt with by the two-thirds provision. If it is to be up to two months late, that is a moderately massive exception and if it is to be done, there needs to be consensus. If there is that degree of consensus, it is extremely likely that emergency legislation can be got through in order to achieve it. We are much better off being certain. Having not intended to take this view, I am afraid that I found what the noble Lord, Lord Norton, said, rather powerful. I invite the Government to reflect on what the noble Lord said and perhaps bring the issue back at Third Reading. If the Minister brings back the issue at Third Reading in a way that reflects the arguments of the noble Lord, Lord Norton, or alternatively says, either now or at Third Reading, why the noble Lord is wrong, I would not support the noble Lord. However, if he does not, my inclination is to support the noble Lord, Lord Norton, either now or, as seems more sensible, after the Government have had an opportunity to reflect and come back at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as has been indicated, the purpose of the operation of the order-making power in Clause 1(5) is to provide, by a resolution of both Houses, for a Parliament to be extended by two months or for an election to be brought forward by up to two months because of an emergency or unforeseen circumstance. The Bill provides for five-year fixed terms and it is envisaged that elections would happen on the first Thursday in May every five years. However, we are conscious that there could be a short-term crisis that would mean that it would not be practicable to hold the election on the prescribed date. As was discussed in earlier debates and again this evening, such a scenario occurred in 2001 when an outbreak of foot and mouth disease meant that it was necessary to delay the date of the local elections in England, which were set by statute, and primary legislation was required. As it was only four years into the Parliament, it did not theoretically affect the date of the general election, although the widely anticipated date of the election was postponed because of the outbreak.

The power would allow the Prime Minister to vary the date by affirmative order by two months, earlier or later. It is worth bearing in mind that the Delegated Powers and Regulatory Reform Committee examined this power and concluded that it,

“does not consider the power to be inappropriate in principle”.

However, it recommended that the Bill should be amended to require that a statement setting out the Prime Minister's reasons for proposing the change of polling date must be laid before both Houses at the same time as the draft order. The Government considered and listened to the recommendation and the case made by the committee and, as noble Lords will recall, made the appropriate amendment in Committee, which indicated that we were ready and willing to respond to the committee.

The power is deliberately framed to be non-prescriptive. It is intended to be used in emergencies when we cannot predict what situation will arise, and to deal with a variety of scenarios. When including this power in the Bill, as my noble friend Lord Norton indicated, we looked at powers in the devolution Acts that allow for the dates of general elections to the devolved institutions to be delayed or brought forward. In the case of the foot and mouth outbreak in 2001, there would have been no point in bringing forward the election.

I accepted earlier that I had struggled to find a reason why we might want to bring forward an election. The noble Lord, Lord Pannick, suggested that the Olympics or the World Cup might be such occasions. We considered these as well. We know that the Olympics are unlikely to be awarded again to Britain for the foreseeable future, given that they will happen here next year. Regrettably, England did not succeed in its bid for the World Cup, and I am not sure that Scotland, Wales or Northern Ireland have a bid in preparation. I offer as a piece of political trivia that, such is the importance of the World Cup, the one parliamentary election in recent times not to be held on Thursday was the Hamilton by-election in 1978, which was held on a Wednesday so that it did not clash with Scotland's opening match in the World Cup in Argentina. I am not sure that it did Scotland much good.

[Lord Bach]

The noble Lord should not forget 2026 for the World Cup.

[Lord Wallace of Tankerness]

My apologies. I am not sure that the World Cup has traditionally been at this time of year. It would clash with the exciting climax to the Premiership and the build-up to the FA Cup final, the Scottish Cup final and the Scottish Premier League, whatever shape or form they may be in by 2026. My point is that we have struggled and we cannot readily think of a situation in which one might wish to bring forward an election.

It was our intention to future-proof the Bill, but, with regard to Amendments 12 and 14 in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks, I do not believe that by accepting them we undermine what we seek to achieve in the Bill. As has been pointed out, if it was necessary to bring forward a scheduled general election because the unforeseen event that none of us can think of actually happens, it would be open to the other place to pass a Dissolution Motion with the support of at least two- thirds of all MPs to trigger an early general election. That point was made by my noble friend Lord Norton. In the light of that, the Government would be willing to support these amendments and I hope your Lordships’ House would be willing to accept them.

22:00

Amendment 16, also in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks, provides that an order made by the Prime Minister under Clause 1(5) must be approved by a two-thirds majority in the other place. That amendment also provides a role for the Speaker of the House of Commons in certifying that the order was approved in a Division and had the support of at least two-thirds of all MPs.

I can see the thinking behind these amendments, as Clause 2 provides that a vote on an early Dissolution in the other place will require the support of at least two-thirds of all MPs. This measure in the Bill is designed to ensure that an early general election can take place where there is cross-party consensus on this. The two-thirds majority will put this power beyond the reach of a Government, since no Government since the Second World War have enjoyed a two-thirds majority, and the technical specifics of this mechanism have been broadly endorsed by the Constitution Committee of your Lordships’ House.

However, the order-making power of Clause 1(5), which allows the Prime Minister to vary the date of a scheduled general election by up to two months, is somewhat different. Unlike the power the Bill would give the House of Commons for an early Dissolution, this power is limited to varying the date of a poll by up to two months. The key difference is that there are different safeguards applied to the order-making power. First, any order to vary the date of a scheduled general election would be subject to the affirmative procedure in both Houses of Parliament—a point picked up by my noble friend Lord Rennard. It means that an order would have to be debated and approved by this House as well as the other place. Also, it must be accompanied by a statement from the Prime Minister setting out the reasons for seeking to vary the date of the poll. In this Bill, as I have indicated on previous occasions in response to earlier amendments, we wanted to do what was strictly necessary to establish fixed terms. Crucially, we have sought not to set out in statute parliamentary procedures where it was not absolutely essential to do so. I do not believe that this amendment falls within that category.

I also think it is important to note that this amendment would utilise the mechanism of the Speaker’s certification. No doubt we will return to this matter when we consider Clause 2 of the Bill. At this stage, I will flag up to noble Lords that I have added my name to an amendment in the names of the noble Lords, Lord Howarth, Lord Martin and Lord Pannick, and the noble Baroness, Lady Boothroyd, which would remove the Speaker’s certification in the context of Clause 2. I do not believe it would be appropriate to reinforce it here. In the light of the safeguards attached to the order-making power, I hope my noble friends will agree that this amendment is not necessary and will agree to withdraw it.

I now turn to the amendments in the name of my noble friend Lord Norton. The first would omit the order-making power from Clause 1 altogether; the subsequent amendments are consequential. My noble friend has reiterated concerns that he raised in Committee that the power in Clause 1(5) involves an important issue of principle—whether the Prime Minister should be able, by means of statutory instrument, to extend the life of a Parliament by up to two months. At the moment, it would require an Act of Parliament to extend a Parliament beyond the five-year limit set out in the Septennial Act as amended by the Parliament Act 1911. In Committee, my noble friend tabled amendments to say that such an extension could occur under the new regime of a fixed-term Parliament only if the Prime Minister were satisfied that the situation rendered holding the election at the scheduled time impractical or injurious to the economic, social or public health of the nation. As he indicated in moving this amendment, he now believes it would be better not to have it at all.

It is clear that the purpose of this Bill is primarily that we expect Parliaments ordinarily to last five years. However, for reasons which, again, we have highlighted and discussed, it may not be possible or desirable to hold the election on the scheduled date. If primary legislation had to be taken to move the date of the scheduled election in an emergency, then as long as that Bill had the consent of your Lordships’ House there would be no limits to extending the lifetime of the Parliament. It could go beyond two months, as happened during the Second World War. If the particular emergency arose which required that, no doubt legislation would have to be crafted, as my noble friend said. We are envisaging an extension for a very short period. We believe that it is properly contained by the requirement for a majority in both Houses of Parliament and by the fact that we have accepted the recommendation that it will require the Prime Minister to set out the reasons for it. I reiterate that having considered these matters, the Delegated Powers and Regulatory Reform Committee did not consider the power to be inappropriate in principle. Against that background, I hope that my noble friend will be prepared to withdraw his amendment.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have taken part in the debate. In response to the noble Lord, Lord Pannick, I was thinking along similar lines trying to anticipate possibilities. I thought about things such as the Olympics, but although they are not a crisis, neither are they an unforeseen circumstance. The same is true for the World Cup. They are not something that would necessarily get in the way, and those events would not require us to delay the holding of a general election in any event. To bring a general election forward, the provisions of Clause 2(1) could be utilised in any event.

My noble and learned friend Lord Wallace has accepted the provision that the Prime Minister would have to make a statement about why this power should be used, but I would have thought that if the Prime Minister planned to delay an election or bring it forward, he would in any event explain why. That really confirms what would be the practice. I cannot imagine the Prime Minister deciding to delay the election and not telling us why.

I do not want to respond on behalf of my noble friend Lord Rennard, but I am in a position where I suspect I might have to. An affirmative order requires just a simple majority, so that does not address the problem and the point made by my noble friend still holds. The only problem with his amendment is, as he admitted, in terms of drafting to refer to the Speaker’s certificate rather than to the principle that he advanced. I still maintain the argument I advance, for which I am most grateful to the noble and learned Lord, Lord Falconer of Thoroton, who I have clearly persuaded on this matter. My noble and learned friend really did not provide a convincing argument in response to what I said. Primary legislation could be introduced and could provide for quite a long delay, but that is true in any event as long as you have a parliamentary majority. You could then craft it to the particular crisis of the time. He mentioned wartime when Parliament had to pass an Act each year extending its life.

The circumstances would be so exceptional that they would need a response crafted to the particular exception rather than just allowing a situation where a Prime Minister could come along and announce that he is bringing forward an SI to delay the election by two months and all that would be required is a majority in the House of Commons. We would then be in a position, if necessary, to block it, but I am not sure that the House would wish to invite a major challenge with the Commons, particularly on a matter of this nature, so I would be very wary about that. I would far prefer that there was all-party agreement and that legislation was introduced. If it was an emergency, you would require all-party agreement to get it through, and if you did not have it, you could not do so. I think that is entirely appropriate. I hope that my noble and learned friend will take up the invitation of the noble and learned Lord, Lord Falconer, to reflect on this and to think further because I remain unpersuaded that this subsection should remain in the Bill. In the interim, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12

Moved by

[Lord Rennard]

12: Clause 1, page 1, line 16, leave out “earlier or”

Amendment 12 agreed.

Amendment 13 not moved.

Amendment 14

Moved by

[Lord Rennard]

14: Clause 1, page 1, line 17, leave out “earlier or”

Amendment 14 agreed.

Amendments 15 to 18 not moved.

Consideration on Report adjourned.

House adjourned at 10.09 pm.