16:56 - Division on Motion A1 - Ayes: 251 / Noes: 219 - Motion A1 agreed.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that this House do not insist on its Amendments 1, 2 and 9. I am sorry—I beg to move that the Commons reasons be now considered.
Motion A
Lord Wallace of Tankerness
That this House do not insist on its Amendments 1, 2 and 9 to which the Commons have disagreed for their Reason 9A.
Lord Wallace of Tankerness
My Lords, what it is when one does not have the crib sheet Depending on which way we vote, if the opinion of the House is tested, we may—or may not—be approaching the home straight of this Bill. However, it is worth putting on record that it is exactly one year ago this week, on 22 July, that the Bill was introduced in the other place. By any reckoning, for a Bill of seven clauses and one schedule this is quite some time. We are now down to the fact that there is one remaining and outstanding issue. Your Lordships’ Amendments 1, 2 and 9 provide that the provisions of the Bill are subject to a sunset clause after the next general election, and each subsequent Parliament would have a choice whether to be a fixed-term Parliament or not. These amendments were passed by your Lordships’ House by a majority of six. The other place has considered these and has sent back a strong message in relation to this group of amendments, which they voted to disagree by 312 votes to 243. The reason on the Commons Disagreement and Reasons paper indicates that Commons disagreed because they,
“do not consider it appropriate that the continuing operation of the provisions of the Bill should be dependent upon periodic resolutions of each House of Parliament”.
I am, perhaps not surprisingly, in accord with this view.
It is worth remembering that the Government have been prepared to consider amendments which improve the Bill, and indeed we have taken on board a number of your Lordships’ suggested amendments. We were persuaded that the provision to allow the Prime Minister to move the date of the election earlier by order was unnecessary, and that if there was to be an order to delay by up to two months, it should be accompanied by a statement of reasons. We have tabled amendments to put back elections to the Scottish Parliament and Welsh Assembly from May 2015 to May 2016. This issue was of concern not only in the other place but also when the Bill came here for Second Reading. In particular, and thanks in many respects to the work done by and discussions between the former distinguished Speakers the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, and the noble Lord, Lord Howarth, who took the initiative with an amendment, and others, we redrew the architecture of the circumstances in which a vote of no confidence or of dissolution could trigger or lead in turn to an election. This indicates that the Government have been willing to listen, and on these points the other place has recognised that this House has done its task as a revising Chamber and has agreed to these amendments.
However, we were not prepared to support amendments that we believe undermine the fundamental purpose of the Bill—a purpose which was welcomed by the Political and Constitutional Reform Committee in another place and has obviously been supported there. That purpose is that the fixed-term Parliament is not for this Parliament only but, subject of course to the fact that any legislation can be repealed by a future Parliament, it should nevertheless apply to future Parliaments. Further, the purpose is to make fixed terms for the United Kingdom Parliament the norm, just as they are for local government, the devolved legislatures set up by this Parliament, and the European Parliament. This will deny the Executive the ability to choose a date for a general election to suit its own political ends. It will create certainty as to how long a Parliament should last. I ask your Lordships to recall that at Second Reading the noble Lord, Lord Hennessy, noted that we should not forget that the Prime Minister is surrendering a significant power in this Bill.
I also remind your Lordships about what my noble friend Lady Stowell said in Committee. She noted that this Bill will,
“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.]
In addition to this, many of your Lordships noted that the certainty of a fixed-term Parliament would create better facility to plan across Government, within Parliament, and beyond. By contrast, if these amendments are accepted, the electorate turning out in May 2015 will not know what they were voting for. Will they be giving the next Parliament a fixed and predictable term within which to govern or will they be handing to the leader of the next Government a trump card; namely, the ability to call an election whenever he or she thinks it is most opportune?
During the debates on this on Report, I indicated that the assumption behind these amendments must be that in the event a subsequent Parliament is not a fixed-term Parliament, the current rules about calling elections should apply to that Parliament. I again highlight what a somewhat anomalous and strange position this will result in. In particular, we presume that the drafters of the sunset—they are sometimes referred to as sunset or sunrise—provisions would mean that the royal prerogative power to dissolve Parliament would be summoned back into existence for that subsequent Parliament. I assume that that must be the intention, for how else would Parliament be dissolved other than by the prerogative unless the drafters intend Parliament only to end by reaching the five-year limit set in the revised septennial Act?
I wish to make two points about this. First, is it right that the existence of a royal prerogative be dependent on resolutions of each House not being carried? It seems very undesirable to the Government that the prerogative power may sometimes not exist and sometimes be revived in this way. Secondly, if this is the intention of the drafters, it is not at all clear that it has been achieved in the drafting that they have provided. In particular, the presumption in Section 16 of the Interpretation Act is that where an enactment of a temporary duration, which the provisions abrogating the dissolution prerogative appear to be, expires, it does not ordinarily revive anything not in force at the time of the expiry. Admittedly, that may seem to be a technical point but I urge noble Lords to consider that what is being proposed here is far from straightforward and hidden complexities abound. We should be very careful before giving our approval to what, perhaps at the very least, can be described as a constitutional novelty.
As I have indicated, it is important to note that this Parliament did not include sunset clauses when legislating for the fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Indeed, in this Bill we are extending the fixed term of this parliamentary term for the Scottish Parliament and the Welsh Assembly but doing so by primary legislation. I have heard no convincing arguments to explain why we should sunset the fixed terms of the United Kingdom Parliament.
Is a sunset clause necessary to ensure that the issue of fixed terms, and the merits of this piece of legislation, are properly reviewed? Arguably, it is not. This Bill has received thorough scrutiny by four Select Committees—your Lordships’ Constitution Committee, the PCR in the other place, the JCHR and the Delegated Powers Committee. It has had all of its stages on the Floors of the respective Houses and the Government have reflected during the progress of the Bill and, as I have indicated, have made amendments where they feel that these improve the overall package.
If a future Parliament decides that it wishes to move away from fixed terms, or if it wishes to amend what we have provided for, we cannot bind its hands. Perhaps it has not been said in this Chamber but it has been said in some of the commentary that somehow we are trying to bind the hands of future Parliaments. Perhaps I may make it clear that that is not the case, nor is it the intention. It is clear that we believe that, if there is to be a change, it should be done through primary legislation, and can be done by means of primary legislation.
A change to the fundamental structure of Parliament is not a small matter and we believe that it should be subject to the full scrutiny of Parliament. It should not be a default option if a resolution fails to be tabled or passed to sunrise provisions for fixed terms. Many noble Lords have expressed concern about what these amendments would mean for the relationship with the other place. Arguments have been made that by providing that the Bill could be revived only with a resolution of both Houses, we could be undermining the primacy of the other place. This House would be given a power to veto the will of the other place on this matter. I would ask your Lordships to recall comments made by the noble Lord, Lord Armstrong of Ilminster, who has contributed notably in our debates on this Bill, when he spoke in the debate on 22 June on the reform of your Lordships’ House. I think that what he said would be echoed by noble Lords across the Chamber.
“We are a revising Chamber and a debating Chamber, and valuable in both functions, but we cannot prevail against the House of Commons if it wishes to insist. The House of Commons is sovereign in the matter of law-making”.—[Official Report, 22/6/11; col. 1257.]
In the case of this Bill, the other place has clearly indicated that it wants to establish fixed terms as a rule that applies equally to each Parliament. Both your Lordships’ House and the other place finally decided that it would not be appropriate to include a sunset provision in the European Union Bill. In the final debate on that Bill, my noble friend Lord Lamont of Lerwick wisely noted that a sunset provision was not appropriate because it would provide for primary legislation to be reversed by a simple resolution. That is the same effect as the sunset amendment would have on this Bill, turning important amendments to the statute book on and off, perhaps somewhat akin to a light switch. It is also worth noting the report of the European Scrutiny Committee in the other place on the European Union Bill. Again, I quote:
“All Parliaments legislate for the future. Laws passed by one Parliament do not contain a sunset clause at the Dissolution. The real point is whether a government can, in law, make it difficult for a future Parliament to amend or repeal the legislation it has passed; in our view it cannot. Our conclusion therefore is straightforward—that an Act of Parliament applies until it is repealed”.
That should be said also of the Fixed-term Parliaments Bill. Should a future Parliament wish to amend or repeal the legislation, it can do so, but it should do so through the normal legislative process, not simply by passing a resolution.
I repeat that, in a number of respects, this House performed valuably the revising and reforming function to legislation which is at the core of your Lordships’ business and that the Government responded to these proposals, but the amendments run contrary to the spirit of the Bill and raise more questions than they answer. Your Lordships have raised a matter of concern and have asked the other place to reconsider its position. The other place has done so. Consistent with the role of your Lordships under our parliamentary system, a role which many noble Lords have been at pains to suggest does not amount to the making of law but only to its scrutiny, I urge your Lordships to accept the verdict of the other place and not to insist on the amendments. I beg to move.
Amendment to the Motion
Baroness Verma
My Lords, perhaps the noble Lord, Lord Rennard, could carry on and the noble Lord, Lord Cormack, could speak after him.
Lord Rennard
My Lords, the noble Lord, Lord Butler, will no doubt recall very well from the period in early 1992 that there was much speculation about the likely timing of the general election then due. Options of April, May and June were all under consideration by John Major, and his choice was based simply on when was most likely to favour his party in what was expected to be a very close contest. Indeed, it was a very close contest that was well described in the book I much enjoyed by the noble Lord, Lord Hill of Oareford, entitled Too Close To Call. It was clear from that account that the advantage of being able to choose polling day possibly made a decisive difference.
At the time I was involved in helping to prepare the campaign led by my noble friend Lord Ashdown. I was quite shocked to receive a call one day in the run-up to that election from someone who ran a printing firm.
Lord Falconer of Thoroton
I recall that but he voted in favour of the amendment. So I think you can say where his heart lay in relation to this.
Moving away from the technical points to the point of this Bill, let us think about history for a moment. In 1924, the Labour Government were defeated in a vote because the Labour Prime Minister had interfered with the Attorney-General in the exercise of his discretion. The moment he was defeated on the Floor of the House of Commons, there was a general election and the Conservative Party was returned to power. Imagine if Mr Ramsay MacDonald had been faced with the Fixed-term Parliaments Bill in 1924: first, being defeated on the proposition that he had interfered with the Attorney-General would not have led to a general election. There would had to have been a vote of no confidence put down by the Opposition. Let us assume that that had passed but that would not have been the end of it. Mr Ramsay MacDonald would then have had 14 days to try to cobble together a bit of support. Let us remember that he had a small majority in relation to this. He could have tried to survive on that basis. Is it seriously being said that that sort of behaviour would have led to the public having more confidence in the Government?
Moving forward in time to 1974, Mr Edward Heath perfectly legitimately wanted to test who governed the country because the country was in a major crisis in relation to the miners’ strike. Despite the fact that he legitimately wanted to go to the country, he could not have gone because he would not have been allowed to under this Bill unless he had tabled a vote of no confidence in his own Government. I think it was the noble Lord, Lord Hamilton, who said that perhaps he could have done that. But what would people think of a Government who put down a Motion of no confidence in themselves?
Finally, the father of my noble friend Lady Jay in 1979 was defeated in a vote of confidence on the Floor of the House of Commons. The most quoted extract from political history in the course of this debate was what Mr James Callaghan said when he was defeated. He said, “I have been defeated in the House of Commons. I must now take my argument to the people”. After this Bill has been passed he would have to say, “Now that I have been defeated on a vote of no confidence, I must see if I can scrabble together a majority to stay in power because this beastly Act gives me 14 days in which to try to do it”.
Okay, I say to the coalition, have your miserable Act so that you can stick together until 5 May 2015, because we respect your right to force that upon us. However, there is nothing unconstitutional in saying that it is appropriate for this House to stick with the principle that says, after that, let the next Parliament decide whether it wants to continue with what I say is a terrible Act. We will support the noble Lord, Lord Butler of Brockwell, in his excellent sunset clause.
Lord Wallace of Tankerness
My Lords, once again on this subject, we have had a very full and interesting debate, and I thank all noble Lords who have made important contributions to it.
It is clear that a number of noble Lords who spoke in the debate approached the amendment on the basis of whether they supported fixed-term Parliaments. My noble friend Lady Stowell and my noble friend Lord Dobbs gave compelling reasons why they believe in fixed-term Parliaments, whereas the noble and learned Lord, Lord Falconer, departing from his party’s manifesto at the last election, indicated that he is now not quite so sure about them. When the House was debating whether the fixed term should be four or five years and the noble and learned Lord was asked whether, if five years was passed rather than four, a future Labour Government would try to bring it back to four, I remember his not being able to give an answer. If this Bill is passed and the amendment which we are currently debating is not included, I cannot see a future Government trying to repeal it either.
Back in 1992, as my noble friend Lord Rennard reminded us, fixed-term Parliaments was a policy of the Labour Party on which it fought the election; it is a policy which my party has espoused for many years; and it is a policy of the coalition. The argument that the legislation was meant to last only until 5 May 2015 is nonsense. The coalition agreement makes a clear commitment to legislate for fixed-term Parliaments in the future. The title of the Bill refers to fixed-term Parliaments in the plural, so it was never intended simply to be a fix for the current Parliament. Many of the arguments brought forward, particularly when we were debating four or five years, related to the ability to plan government business over a period of time. Whether one could test the feasibility of that in this first Parliament, when we do not have the Bill on the statute book, is doubtful.
I want to put to rest the idea that the Bill was meant to be for only one Parliament. It is very clear in the coalition agreement that it was intended for future Parliaments, subject crucially to the fact that no Parliament can bind its successor, as the noble Lord, Lord Elystan-Morgan, said. The important point here is that if a Parliament cannot bind its successor and future Parliaments do not want fixed-term Parliaments, they should bring forward legislation. That would be the proper way of scrutinising whether the fixed-term Parliament has worked. As things stand with this amendment, no resolution whatever would be required if one did not wish to continue with fixed-term Parliaments. There would be no post-legislative scrutiny, no opportunity to consider whether the idea had delivered what those of us who support it claim it would. If one had to bring forward a Bill repealing the legislation, it would provide ample opportunity to debate the pros and cons.
I say with all due respect to the noble and learned Lord, Lord Goldsmith, that the idea that, somehow, Acts of Parliament should be suspended or ended at Dissolution and that, if you wanted to continue them into a future Parliament, you should bring back a new Bill to do it, rather than what we have thought for years, which is that if you wish to repeal an Act of Parliament you do so by primary legislation, was a very novel constitutional proposal which I certainly would not like to argue before the Constitution Committee if it became an act of faith.
Lord Goldsmith
It is the answer to the point that is being made. The amendment as it stands enables future Parliaments to decide whether to go the same way without having to go through the full process. The objection that is raised is that that might lead to the Commons taking one view and the Lords another, to which I say, in those circumstances, one should pass an Act. The Parliament Act could be used and the Commons could have its primacy through that proper route.
Lord Wallace of Tankerness
My Lords, the more appropriate approach is in the ABC of constitutional law, whereby, if one does not like legislation passed by a previous Parliament, one brings forward primary legislation to repeal it and does not simply let it lapse, particularly on matters of such constitutional importance.
Lord Howarth of Newport
I said there was no evidence of this power having been abused. Indeed, would not the noble and learned Lord agree that Prime Ministers who have attempted to string things out, who have dithered, hesitated and dragged out the life of their Governments until the last possible moment, have usually been heavily punished by the electorate for doing so?
Lord Wallace of Tankerness
Prime Ministers have tried to divine the times to see when would be the best time to call an election. Indeed, in an earlier debate I quoted from the book of my noble friend Lord Lawson, The View from No. 11: Memoirs of a Tory Radical. He 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”.
In other words, a partisan political judgment was clearly being made. As my noble friend reminded us, in September/October 2007, Mr Gordon Brown did a calculation in the third year of that Parliament as to whether or not it would be in his party’s best interests to go to the country. There is more to this. The power that the Prime Minister is giving up as a result of this Bill, as noted by the noble Lord, Lord Hennessey, at Second Reading, is important.
The noble Lord, Lord Butler, said that it was not much of a power, and then he said that no Prime Minister would have a straight face in trying to reverse the situation in the future. He is absolutely right. If a fixed-term Parliament became law, it would be very difficult for someone to come before the House and say that they wanted to revert to the position where the Prime Minister could choose the date of the election because of party advantage. They would get pretty short shrift—it would be difficult to do—but no one denies that, constitutionally, it is perfectly possible. It would be perfectly proper for them to seek to do it and to argue their case. However, my point is that they should do it by proper means through primary legislation and not in the way proposed by the amendment to the Motion.
Lord Forsyth of Drumlean
Why does my noble and learned friend use the phrase “because of party advantage”? What happens if a Prime Minister thinks it is the country’s advantage—as happened in 1974 when the Prime Minister felt that the issue of the power of the unions needed to be settled? Why take that away? Secondly, I struggled with the speech of my noble friend Lady Stowell when she said that having a fixed-term parliament would restore people’s trust in Parliament. How does giving people absolute job security for five years help to restore people’s trust? Can my noble and learned friend explain that to me?
Lord Wallace of Tankerness
My Lords, the answer is the same to both parts of my noble friend’s question. On the position in February 1974, which has been raised in the debate, if the Conservative Prime Minister of the day believed that it was necessary for an election, it is beggaring belief to suggest that the Labour Party would not also have agreed to an election and that the 75 per cent majority for a dissolution would not have been achieved. This does not mean absolute job security for five years because, if a Government lose confidence, the Bill contains within it mechanisms which can lead to an election. This can also happen if there is an agreement—as I believe would have been the case in March 1979. The then Prime Minister, Mr James Callaghan, could have said that he had lost a vote of confidence and that the following day he would table a Motion for dissolution, which I am sure would have been overwhelmingly carried by more than the majority required under the Bill. To suggest that he would have had to go scrabbling around trying to find a means of living on until October would not have been the case. There are mechanisms in the Bill to deal with that kind of situation.
I believe that the noble Lord, Lord Butler, sought to dismiss the suggestion that there could not be tensions between the two Chambers, although I do not think that he actually denied that that was a possibility. However, he did say that this House would not stand in the way of a newly elected Government who sought to establish a fixed-term Parliament. Part of the problem with the noble Lord’s answer, apart from suggesting that this House might simply rubber-stamp the Bill—heaven forbid—is that the amendment does not say that the resolution would be brought forward by a newly elected Government. It actually says that it would have to be brought forward at some time during the Parliament. Therefore it might be brought forward some years into the Parliament. At that point, who is to say that this House might not think that they were at it at the other end, bringing forward the resolution for partisan advantage? This House might take a different view about that in those circumstances. Therefore it does change the balance.
My noble friend Lord Forsyth asked whether this does not parallel the position in the Parliament Act when Parliament was extending the lifetime of a Parliament. The point is that the exception in Section 2 of the 1911 Act is to,
“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.
There is a crucial difference between a Bill that extends a Parliament beyond five years and a resolution as to whether there should be a fixed-term Parliament. In that respect, it is not proper that this House should be given a veto in these circumstances.
I have already indicated that this course can be revived in each succeeding Parliament. It is not just a case of seeing how the Parliament from 2010 to 2015 would go. It may not happen under the amendment here—there may not be a fixed-term from 2015 to whenever—but it could be revived in the following Parliament. It is another unsettling uncertainty about this Bill that it can switch on and off fundamentally important constitutional proceedings.
There has been considerable debate on this Bill. As I indicated, it was introduced a year ago this week. It had its Second Reading in another place in September last year, extra time was made available in Committee, and Report and Third Reading in the other place took place in January. In your Lordships’ House, the Bill was introduced in January, Second Reading took place in March, the Committee sat on three days in March, Report was heard on two days in May and Third Reading also took place in May. It has been very fully debated. I note that the noble Baroness, the chair of the Constitution Committee, referred to the committee’s report on the process of constitutional change, which I believe was published overnight. One of the conclusions was as follows:
“We stress the importance of proper parliamentary scrutiny of all bills”—
and this Bill has been subject to considerable parliamentary scrutiny for a Bill of only seven clauses and one schedule—
“but we do not recommend that any new parliamentary procedures such as super-majorities should apply to significant constitutional bills”.
I cannot think of any more noted significant new parliamentary procedure than the one that is promoted by this amendment. If the Constitution Committee is sceptical about using new parliamentary procedures with regard to even very sensitive and important constitutional Bills, this is one about which we certainly should be very sceptical. I do not believe the view of the noble Lord, Lord Butler, that we are doing a service to the constitution by saying that we do not have to go to the length of repealing. Repealing is what we do if we do not like legislation that was passed by previous Parliaments. If we depart from that principle on a matter of constitutional importance, I believe we should only do so with very great caution. I would urge your Lordships not to insist on the amendment because I do not believe that the case has been made for such a serious constitutional departure.
Lord Butler of Brockwell
My Lords, I agree that this has been a very good debate. I do not need to go over the arguments again except perhaps to assure the Minister and the noble Lord, Lord Rennard, that, like Mark Twain’s death, reports of the advantage to a Prime Minister of being able to decide when to call an election in the last year are greatly exaggerated. Certainly such reports did not prevent the noble Baroness, Lady Thatcher, from packing her bags on the morning of a general election in preparation for the election not going the way she expected.
I am very grateful to the noble Baroness, Lady Jay, and the noble and learned Lord, Lord Goldsmith, who spoke about the report from your Lordships’ Select Committee on the Constitution. The Minister quoted one of its conclusions in his last remarks, but I would like to quote the two main conclusions. The Minister said that the Select Committee on the constitution in another place endorsed the proposal, but I shall quote what your Lordships’ committee said. If I may say so, your Lordships’ committee contains distinguished constitutional lawyers from all parties, who trump those who are members of the constitution committee in another place. They said:
“We take the view that the origins and contents of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.
The committee continued by saying that,
“the balance of the evidence we heard does not convince most of us that a strong enough case has yet been made for overturning an established constitutional practice and moving to fixed-term Parliaments”.
There could hardly be two more damaging sentences.
Our national constitution is too important to be tinkered with as a bargaining chip in the negotiations of a temporary coalition. The British people have decisively prevented that from happening to the voting system for the House of Commons. They are not to be given a chance to express a view on this constitutional change, so it falls to your Lordships to insist that the Government and the House of Commons refrain from making a permanent change and give future Parliaments and Governments the opportunity to make these decisions for themselves. I would like to seek the opinion of the House.