Fixed-term Parliaments Bill

Lord Armstrong of Ilminster Excerpts

Wednesday 14th September 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I am grateful to the Minister for quoting my words from a different debate and I do not resile from a single word of that. None the less, I join my noble friends Lord Butler and Lord Pannick in hoping that the House will insist on this amendment, which has now already been passed twice by this House, by a larger majority the second time than the first.

I will be a little kinder to the Government than my noble friends have been. This proposal by the Government, the Commons amendment in lieu, does at least agree that there should be a review. But it is a rather scrawny baby that they have delivered to us, and they will not allow us to turn the tap on for the bath until 2020—nine years. The baby will look very scrawny at the end of that time, and the water may be rather cold.

If it is right that this be reviewed, as we think it is, and as the Government and the House of Commons now seem to think, then why should we have to wait until after the election after the next election? Surely it makes sense that we should review it as proposed in the amendment which we have already agreed, and which my noble friend Lord Butler has reintroduced, and look at it again at the end of the current Parliament. It can then be passed on to the next Parliament if that is what people want to do at that time. But at least it should be reviewed at the end of the Parliament, to take stock, and see where we go from there.

[Lord Grocott]

I cannot understand why the Government could not have done the simple thing for this House, and for the integrity of our constitution, and simply said yes to this amendment. What on earth would the Government have lost by saying yes? They would have had the five-year Parliament that they, for whatever motives—we will not go into those—want for this Parliament. If there is a Conservative or a Liberal Democrat Government or a Conservative-Liberal Democrat Government elected in five years’ time, they could ensure that this legislation remained on the statute book and that there was another five-year Parliament after that. It would have cost the Government nothing. The Government would have lost nothing and they would at least have shown that they were listening to some of the advice from this House.

I am not thrilled by this amendment, although I thought it was very ably moved, because I just do not like five-year Parliaments, and I do not like acknowledging that the Government, with a relatively flaky coalition, should be able to legislate for themselves to survive for five years in this way. But the reason I very much hope that the House sticks to its position, requiring any future Government or Parliament to look again at this issue, is that I am convinced that, should this Bill go without any amendment now and become an Act, we will have five-year Parliaments ad infinitum and no future Government will repeal this legislation. This gives the lie to the oft-repeated argument that somehow or other this is a Government giving something away. Why on earth would any future Government want to give up the security of a five-year term of office? Of course they would not; it is very convenient to Governments; it is very convenient to the Executive. This is the last chance. I hope that my own party will win the election, and I hope that it will have in its manifesto the decision to repeal this legislation, but I rather fear that it would be as attracted to the idea of remaining in office for five years as this Government. This is the safety net—that it requires Governments to make that decision.

I make an appeal to the Minister. It really is worth listening to what this House has to say on constitutional issues. We are just seeing the first fruits—I should say the second fruits—of the Parliamentary Voting System and Constituencies Act, which was so strongly opposed in this House. It was strongly opposed on the ground of the unnecessary nature of a referendum on the alternative vote system, which, incidentally, I have just discovered in a reply from the noble Lord, Lord McNally, cost us £97 million in total, at a time when we are supposed not to have two pennies to rub together. I was very pleased with the result, but it was not worth £97 million for a few of us in this House and a few million people in the country to be pleased. We told the Government that it was a waste of time and a waste of money—we were right. We also said that reducing the number of MPs by 50 would not bring an advantage to our democracy and that it would be deeply destabilising. I would love the Minister to give me his assessment of what he thinks Members of the House of Commons would have to say now on a free vote in a secret ballot. Would they think that a Bill that has destabilised every constituency in Britain was a terrific one? If I were to write the Government a little resumé or memoir, which I will not, of the activities in which some of us have indulged in the past 12 months or so, I would have to call it “I Told You So” or “It’s Boring Being Right” or something along those lines. On constitutional matters—let me put it modestly—we are at least worth listening to. I do wish that the Government would listen to us on this one.

The noble and learned Lord, Lord Wallace, very wisely did not mention among his justifications for five-year fixed Parliaments, or Parliaments of any fixed period, that they enable Governments sensibly to introduce legislative programmes over their period of office. I would like to challenge him to state that the Government are on course for doing that. Here we have five years, which is a year longer than any Government normally have for certain, and a two-year Session, but I would not say—again, I shall put it as kindly as I can—that we see a Rolls-Royce legislative planned operation going through. So I ask him not to use that as a defence of security of tenure and security of planning. But, above all, I ask the Minister, not with great hope or expectation, to acknowledge that we were not completely unworthy of being listened to over previous constitutional legislation and, even at this late date, not to commit the country to five-year fixed-term Parliaments ad infinitum as this legislation assuredly will—because that is precisely what any Government would want.

Fixed-term Parliaments Bill

Lord Armstrong of Ilminster Excerpts

Monday 18th July 2011 Lords Chamber

[Lord Armstrong of Ilminster]

As one who put his name to the amendment on Report, I rise briefly to add to the comments of my noble friend Lord Butler of Brockwell and others. I do not need to go through the defects of and objections to the Bill again. For all the reasons given in earlier stages, and again by my noble friend Lord Butler now, I share his view that the Bill is neither necessary, nor desirable, nor satisfactory.

There is something very rummy about a Bill in which one clause decrees that a Parliament should last for a full term of five years, and the next clause tries to provide for the circumstances in which, despite the first clause, it may be dissolved prematurely. It is all Lombard Street to a China orange that the time will come when a premature Dissolution would be to the manifest benefit of the country, in circumstances which have not been foreseen or provided for by the legislation. The Prime Minister will have to resort to some artificial device to enable him to request a Dissolution from the Queen—for instance, by calling for a vote of confidence in Her Majesty’s Government, and advising his supporters to abstain or even vote against it.

As the noble Baroness, Lady Jay, has pointed out, the Bill has been introduced as part of the glue to allow the coalition to stick together and stay in office as long as possible while it takes through the unpalatable measures required to restore a measure of stability in the finances of the Government, and a climate more conducive to growth in the economy.

It is said that the legislation is intended to deprive Prime Ministers of the opportunity to request a premature Dissolution for the sake of supposed party-political advantage. If Prime Ministers are so deprived then, as the noble Lord, Lord Forsyth, has pointed out, they will be forced to trim the timing and the quality of their policies to the electoral timetable. They will defer good news, such as tax benefits, until near enough the election to affect the result. That may not be in the best interests of the country. Either way, the Prime Minister is going to retain some form of discretion about how he or she responds in these circumstances. Therefore, in reducing—though not, I suspect, eliminating—one risk, there is reason to fear the risk of unforeseen and adverse consequences. One devil—if it really is a devil—may be stunned, if not slain outright, but seven other devils may be released.

After the next general election, a new Government and a new Parliament should be obliged to review the arrangements for and against legislation of this kind, decide whether to be bound by the provisions of this legislation in future, and consider the case for reverting to more flexible arrangements of the kind that have prevailed until now. Passing this amendment would ensure that that would happen, so I hope that your Lordships will vote accordingly, if they are asked to divide, and invite the other place to think again.

[Lord Marks of Henley-on-Thames]

My Lords, the other place has rightly rejected these amendments because they rest on a fundamental misconception that, merely by enacting legislation that is not time-limited, Parliament is seeking to bind its successors by passing permanent legislation. That proposition needs only to be stated to demonstrate its falsity. The Bill contains no entrenching provisions. It does not seek to restrict in any way the power of any subsequent Parliament to amend or repeal it. If the next or any future Parliament wishes to reconsider the provisions of this Bill when enacted it is free to do so, relying on the normal processes by which we consider and pass legislation. In 1885, Dicey defined the doctrine of parliamentary sovereignty on this point as the right,

“to make and unmake any law whatsoever”.

Nothing in this Bill as unamended infringes that principle.

These amendments, with their ungainly hybrid of a sunset provision and what might appropriately be called a Lazarus clause—rather than a sunrise clause—would kill off the effective provisions in the Act after the next general election automatically and without any parliamentary consideration whatever, contrary to the assertion of my noble friend Lord Cormack. They would then allow one or any number of future Parliaments, by simple resolution of both Houses, to reinstate the legislation for a single Parliament at any time and at any stage of the Parliament in question. That would not then be a fixed-term Parliaments Bill; it would be no more than an unedifying muddle with no clarity for the electorate—or for parliamentary candidates, for that matter—when they go to the polls.

The amendments offend against constitutional principle on three main grounds. It is notable that your Lordships’ Constitution Committee, led by the noble Baroness, Lady Jay, did not at any stage suggest a sunset and sunrise clause in the form proposed. The first offence against principle is that the amendment threatened to remove from Parliament the right to insist on full and detailed consideration of any proposal to repeal or re-enact the legislation by introducing a mechanism for re-enactment by resolution of both Houses. That re-enactment, as my noble and learned friend Lord Wallace of Tankerness pointed out in opening, would apply to the Schedule, which contains historic and important repeals, and would apparently be reversible by a resolution of both Houses.

Secondly, the amendments would increase the power of your Lordships' House beyond that generally permitted by the Parliament Acts because they would give this House the power to thwart the will of the other place, not merely to delay its implementation, if a resolution were passed by the House of Commons but denied passage by the House of Lords.

Thirdly, the amendments would offend against the Salisbury/Addison convention, if not in the letter certainly in the spirit. Both the Labour Party and the Liberal Democrats had commitments to fixed-term Parliaments in their manifestos, which were then agreed by the Conservatives in the coalition agreement. The settled view of the House of Commons, expressed on two occasions, is that this Bill should pass. Yet these amendments seek to time-limit it in a way that would remove its impact altogether. I say that because as the noble and learned Lord, Lord Falconer of Thoroton, and a number of other Lords pointed out at earlier stages of this Bill's passage, no legislation whatever is required for this Parliament to last until May 2015.

As always, the noble Lord, Lord Butler of Brockwell, put his argument seductively and persuasively, but the reality is that far from being asked to act in this House as guardian of the constitution by these amendments, we are in fact asked to challenge the primacy of the elected House and to usurp the revising and scrutinising role of this House by effectively emasculating this Bill.

Fixed-term Parliaments Bill

Lord Armstrong of Ilminster Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I hope that the House will forgive me. I have to chair a committee upstairs at 4 pm so I rise perhaps a little prematurely to commend to your Lordships my Amendment 22ZB. The noble and learned Lord, Lord Falconer, has already described what the amendment is intended to do; I do not need to repeat that, as he did so better than I could do myself. It loses the Speaker and the 14 days. It lays down precisely what is to happen if there is a vote of no confidence, and lays upon the Prime Minister the first duty to seek a dissolution of Parliament in the event of a vote of no confidence being passed. It defines with clarity what shall be regarded as a vote of no confidence for the purpose of triggering that Motion. That seems to be clear, simple and practicable. I strongly commend it to your Lordships as a way of resolving these problems in a simple and clear way and establishing a sensible procedure for the duration of the Bill if it becomes an Act.

[Lord Butler of Brockwell]

My Lords, I raise one question with my noble friend about his amendment. Under subsection (2)(a) of the proposed new clause, the Prime Minister would be bound to submit to Her Majesty a request for a proclamation leading to a general election if the Queen’s Speech had been rejected. Would not that go against what happened in 1924, when there was indeed a defeat on the Queen’s Speech, but one which had been expected, and an alternative Government was then appointed? Would it not be regrettable to make it inevitable that there should be a general election in a circumstance such as that?

[Lord Falconer of Thoroton]

Let me assist by saying that I think that the noble Lord is right. To add another prong to that argument, we have tabled an amendment to the amendment of the noble Lord, Lord Armstrong of Ilminster, which covers that precise position.

[Lord Armstrong of Ilminster]

My Lords, my thought was that that sort of situation would be covered by the fact that the Prime Minister would be submitting a request for a Dissolution to Her Majesty. In all normal circumstances, of course, Her Majesty could act upon such a request. However, there could be circumstances in which Her Majesty might wish to say, “Before accepting this request, I wish to consider whether a Dissolution is the right course of action to pursue at this time”. She could then have consultations with political leaders to find out whether that is the case.

[Lord Norton of Louth]

My Lords, it is a delight to follow a former chancellor of the University of Hull. I speak to my own Amendment 21, and also to all amendments in this group.

My starting point, like other noble Lords, is that all the amendments are an improvement on Clause 2. The clause seeks to translate a convention into statute, which is extremely difficult to do as my noble friend Lord Cormack mentioned, and is for that reason very rarely attempted. The Government rest on the confidence of the House of Commons. If that is withdrawn, the Prime Minister by convention has the option of resigning or seeking the Dissolution of Parliament. The circumstances in which the Commons can demonstrate a lack of confidence are varied, as the noble and learned Lord, Lord Falconer of Thornton, has quite clearly adumbrated.

As we have heard, Clause 2 seeks to maintain these conditions but, in so doing, requires the Speaker of the House of Commons to be custodian of our present understandings of the convention. As we heard in Committee, that puts the Speaker in an untenable situation, having to make a decision that may be highly contentious politically, potentially sealing the fate of the Government.

The alternative, therefore, is to move away from flexibility to certainty or some degree of certainty. All these amendments, as we have heard, seek to do that. The one that comes closest to maintaining the current conventions is Amendment 22ZB of the noble Lord, Lord Armstrong of Ilminster, in that it retains the power for the Prime Minister to designate any Motion as one on which defeat will be treated as a matter of confidence. The others are more restrictive.

It strikes me that there are four, not necessarily compatible, criteria by which we can assess the amendments before us. First, to what extent do they retain the existing conventions? As I have said, the amendment of the noble Lord, Lord Armstrong, comes closest, putting flesh on the bones of what Clause 2 seeks to achieve. If we wish to retain the flexibility of existing arrangements, that is the most desirable amendment. It does not replicate precisely the existing convention, as it precludes the option of resignation as an alternative to the Dissolution of Parliament, though in that respect it follows what has been recent practice.

My amendment is a close second in two respects. First, like Amendment 22ZB, it retains the capacity of the Prime Minister to move that the House has confidence in the Government. This enables the Government to seek the confidence of the House in the event of uncertainty, such as, for instance, following the loss of a vote on a major item of Government policy. Secondly, in the event of the House withdrawing its confidence in the Government, it retains the option, unlike Amendment 22ZB but in common with the other amendments, for an alternative Government to be formed without the need for an election.

As we have heard, all the amendments bar Amendment 22ZB include the 14-day provision. The noble and learned Lord, Lord Falconer of Thoroton, in his amendment seeks to remove that provision. I was not quite clear as to why, and certainly was not persuaded by the arguments he adduced in favour of removing that provision. If you remove it you create a problem, which he recognises by the tabling of Amendment 20C, which essentially corrects the problem created by his Amendment 20A, for which I do not see a particularly strong case in any event.

Secondly, do the amendments meet a test of certainty? In other words, are the conditions under which the Government are deemed to have lost the confidence of the House clear beyond peradventure? The existing clause clearly fails the test. All the amendments before us come close to meeting the test. As far as I can see, Amendments 20, 21 and 22ZA are sufficiently clear as not to require adjudication, thus eliminating the mischief inherent in the existing provisions of the clause. The only possible ambiguity in Amendment 22ZB rests in subsection (2)(d) in the form of the declaration made by the Prime Minister. Is it to be in writing and laid before the House? Is it to be made in advance of the vote on the Motion or before the Motion is debated?

Thirdly, do they cover all eventualities? The amendments of the noble Lords, Lord Howarth and Lord Armstrong, do not address what happens if the Government resign without having lost a Motion of confidence or an early election Motion being passed by a two-thirds majority. This is what may be called the Belgian question. If a Government fall apart and the Prime Minister tenders the resignation of the Government but under conditions where the Opposition are not ready for an election and cannot realistically form an Administration, what happens? The Bill makes no provision for such an eventuality. Subsection (3) of my amendment seeks to cover such a situation, as does my noble friend Lord Cormack in subsection (1)(b) of his amendment. My amendment provides that if, after 60 days, no Government have been formed an election shall take place. My noble friend provides a 14-day limit. I prescribe a substantial time to limit the opportunity for exploitation. A lot can happen in 60 days. However, for the moment, my argument is that we need to cover such an eventuality.

I appreciate the argument that has been advanced by the noble Lord, Lord Howarth, who argued that such a situation is so unlikely that the provision is likely never to be invoked. The same argument can be advanced in respect of the provision for an early election Motion. The circumstances in which one is likely to need and be able to mobilise a two-thirds majority or a unanimous vote are likely to be extremely rare. However, neither situation is impossible. It is possible for the House of Commons to fail to agree on any option, as happened in 2003 in the votes on the various options for the future of this House. It may, therefore, be desirable to cover all eventualities. In terms of covering all eventualities, subsection (1)(a) of Amendment 22ZA presupposes that the Motion will be passed on a Division. Subsection (1) of the amendment of the noble Lord, Lord Howarth, originally did likewise, but has now been changed to cover such a Motion being passed without a Division.

The amendments to Amendments 20 and 22ZB, tabled by the noble and learned Lord, Lord Falconer of Thoroton, seek to cover the situation following the meeting of a new Parliament and the Government’s losing a vote of confidence. I can see why his Amendment 22ZD is desirable but, as I have said, I cannot see the argument for why his earlier amendment is required.

Fourthly, do the amendments limit or eliminate the opportunity for the Government to engineer an early Dissolution for their political benefit? The purpose of the Bill, as we have heard, is to ensure that there are fixed terms and that there is an early Dissolution only in exceptional circumstances. Those circumstances do not include enabling the Government to trigger an election at a time that is politically beneficial. If they did, it would undermine the whole purpose of the Bill. I know that, as the noble and learned Lord has said, he would find that quite attractive.

Fixed-term Parliaments Bill

Lord Armstrong of Ilminster Excerpts

Tuesday 29th March 2011 Lords Chamber

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

[Lord Armstrong of Ilminster]

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

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

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

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

[Lord Tyler]

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

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

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

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

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

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

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

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

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

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

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

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

Fixed-term Parliaments Bill

Lord Armstrong of Ilminster Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I echo those who have expressed their pleasure at the arrival of the noble Lord, Lord Cormack, in this House and welcome him here among us. I did not have the pleasure of working with him in the other place, but I have enjoyed his friendship for a number of years and I believe that he will add greatly to the light as well as the enlightenment of our proceedings.

None of your Lordships would query the need for a statutory limit on the maximum term of a Parliament, even if there is room for disagreement on how long that maximum term should be. However, the case for a statutory fixed term seems to be much less clear. It would have been beneficial to have had much more pre-legislative scrutiny of these proposals, although that would mean that we would be talking about something else today.

If one introduces statutory provisions for fixed-term Parliaments, one immediately has to try to define, and prescribe for, the circumstances in which, despite that provision, political conditions make it necessary for there to be Dissolution before the end of the statutory fixed term. It is almost certainly impossible to define in the statute all the possible circumstances in which premature Dissolution should be permitted. As the noble Lord, Lord Lea of Crondall, has just reminded us, there were two elections in 1974, during both of which I was the Principal Private Secretary to the Prime Minister, first to Mr Heath and then to Mr Wilson. I have been scratching my head to think how those elections could have been fitted into the straitjacket of this Bill. Would Mr Heath have had to engineer a vote of confidence in the House of Commons by instructing a number of his members to abstain on the vote so that he lost it? Is that how Mr Wilson would have had to deal with the matter in October 1974? It is difficult to see how a situation of that kind could have been fitted into the provisions of this Bill. That suggests to me that more consideration needs to be given to this whole matter.

When a situation arises that is not covered by the statute, politicians will be obliged to devise some clever way of stretching the statute and precipitating the Dissolution of Parliament and a general election. While that process is going on, no doubt in an atmosphere of crisis, there will inevitably be doubt and uncertainty. I would be inclined to argue, therefore, that a fixed term for a Parliament is a political objective that can be considered only in the political circumstances of the time. If with a statutory fixed term in place that objective became for whatever reason unattainable, in circumstances in which the statute did not permit Dissolution, the Government would presumably have to introduce emergency legislation to override the statutory provision and take whatever time was required for that: or, conceivably, the Sovereign would have to be requested by the Prime Minister, or perhaps by Parliament, to grant Dissolution despite the legislation.

It is argued that the present system, which confers on the Prime Minister the right to request the Dissolution of Parliament at a time of his choosing, gives an incumbent Prime Minister an unfair advantage over his political opponents. As one noble Lord suggested, this is a matter as much, or more, of media speculation as of reality. In practice, the issue is rarely as simple as that. For one thing, a Prime Minister who exercised that right prematurely and purely to seek political advantage over his political opponents would run the risk of being punished by the voters for his opportunism. The exercise of the right imposes upon a Prime Minister, as I have seen, an agonising choice, in deciding upon which he puts his party's future in government and his own political career on the line. In practical terms, whether and when to exercise the right to request Dissolution must always be a very complex question. It is a lonely decision, but one that can be taken only after extensive consultation.

I recognise why it suits the present Government to create a presumption that the next general election will not be held until May 2015, but I question whether that justifies the introduction of this legislation. The objective could be just as effectively achieved by a commitment in a White Paper or even a Statement by the Prime Minister in the House of Commons that for the duration of this Parliament he will not exercise his right to request Dissolution before the end of the maximum period that he has stated unless ineluctable circumstances arising from unforeseen changes in parliamentary or political circumstances oblige him to do so.

I take some consolation in the thought that, even if this Bill is passed and this Parliament runs its full statutory course, no Parliament can bind its successors. The next Government and the next Parliament will not be bound by this statute if they do not want to be; they will be able to repeal it and revert to traditional practice. I therefore suggest to your Lordships that the question whether and, if so, when a Parliament should be dissolved before the end of its statutory maximum life should be determined pre-eminently by political process and is not really amenable to statutory provision.

If this proposal for a statutory fixed term goes forward, there is then the question of how long that term should be. I share the view expressed by the noble Lord, Lord Grocott. Experience shows that the imminence of a general election casts its shadow over government and Parliament for many months. Even with a term of five years, that shadow extends over the last year of the term and tends to reduce to no more than four years the period during which government policy-making and parliamentary debate can effectively be pursued without too much looking over the shoulder at electoral considerations. If legislation were to set a fixed term of, let us say, four years, that period would be reduced to more like three years. That would not leave enough room for sensible policy-making and good parliamentary debate before the imminence of the forthcoming election began to cast its distorting shadow. So I hope that, if this Bill becomes law, the fixed term will be five years, as is proposed in the Bill, and not some shorter term.

Parliamentary Voting System and Constituencies Bill

Lord Armstrong of Ilminster Excerpts

Wednesday 16th February 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, before coming to the House today—and I hesitated before intending to speak—I felt that I should go back and look at the figures for the electorate of the whole of the UK and try to do some modelling on the sums. My conclusions have been based on fairly simple maths. It may be that we are where we are, but it is clear that we have lost 25 per cent of MPs from Wales and that Wales, Scotland, Northern Ireland and England will have their own areas. There have been arguments about Cornwall and rural constituencies in particular. I wanted to look at whether there might be unintended consequences of the legislation. In other words, are we really legislating for what we want to do, or do we run a risk of an unintended consequence? My noble friend Lady O’Neill put it succinctly. The point of the amendment is to allow a margin, in exceptional circumstances, so that the Boundary Commission is not locked into a difficult situation by the legislation if it comes across circumstances where the population has moved or the size of the electorate has changed and where it is suddenly faced with a constituency which does not fit within the relatively narrowly margin of 5 per cent. The principle of equality was in some ways abandoned over the Isle of Wight. That was a decision of both Houses. It was agreed that exceptional circumstances applied there. This amendment is about exceptionality. It would put a safety margin in the Bill. It would not undermine the Bill’s overall principles of a more equal distribution of votes and a reduction in the other House’s size.

It was the relative brevity of the debate in the other place that prompted me to pull out and go through the figures last night and early this morning. I have come to the conclusion that we should supply the Boundary Commission with a safety margin for it to provide workable constituencies so that the people of this country are well represented in the other place. Therefore, I support the amendment.

[Lord Armstrong of Ilminster]

My Lords, as one who also attached his name to the amendment of the noble Lord, Lord Pannick, I support him in inviting the House of Commons to think again. The amendment does not fundamentally undermine the principle of equality of constituencies. It does not undermine the 5 per cent margin in any serious way. As the noble Baroness, Lady Finlay, just said, it provides a safety margin should cases arise that we do not now foresee of the kind which have caused the coalition Government to make exceptions for Orkney and Shetland, the Western Isles and now for the Isle of Wight. We cannot exclude the possibility that such circumstances will arise. The extra discretion which the amendment would allow may never need to be used, but it should be in the Bill as a safety valve because I do not think that we would want the two Houses to come back to the matter in a single case. I therefore hope that the House will support the noble Lord, Lord Pannick, and invite the House of Commons to think again.

[Lord Mackay of Clashfern]

My Lords, I appreciate the efforts of the noble Lord, Lord Pannick, in connection with the amendment. The result has been an amendment which has been drafted as precisely as possible. On the other hand, it has practical consequences to which I shall come in a moment. I support what the noble Lord said in relation to the responses—or the lack of responses—of the Government to the two Select Committees to which he referred. This is deplorable and it is right that this House should express that view. I hope the Minister will take back from the House the opinion that that conduct should not be repeated and that, in future, we expect the Government to respond within the time that, after all, they have set for responding to Select Committees so that reports and the Government’s response can be considered within an appropriate time. I also agree that pre-legislative scrutiny and public consultation can be of considerable assistance.

I understand, and the noble Lord, Lord Pannick, has made it clear that he understands, that at the beginning of this Parliament we hoped to get something in place in time for the next election—the suggestion is that that will be five years from the original election, although some people think it may be quicker—and the Boundary Commission has said that the task it has been set in the Bill is within its capability, although it is a tight schedule. However, the circumscribed discretion which the noble Lord, Lord Pannick, has drafted and which was approved by this House on Report, contains a quite considerable possibility for argument. Suggestions have been made about what these arguments might be, but I consider that the margin given in the discretion is very much subject to argument. The result of that will be—as the noble and learned Lord, Lord Scott of Foscote, said on Report and which I support—that the chances of judicial review in relation to this kind of discretion are much greater than they are in respect of the 5 per cent. This is because there is argument available about the precise meaning of the limitations contained in the discretion.

I know that these limitations are as precise as we can make them, but no one who has had any experience of judicial review would rule out the possibility of ingenious constructions being mooted and seriously considered by judges on judicial review. If the amendment were to remain in the Bill, there would be a greater risk than before that the Boundary Commission will not be able to complete its work within the period before the next election. Although I was not here on the previous occasion when the amendment was voted on, I was very much taken with the efforts of the noble Lord, Lord Pannick, as he knows. However, having considered the matter as carefully as I can, I have come to the conclusion that one of the consequences of the amendment may well be that the Boundary Commission would not be able to complete its task before the next election. For that reason, we would be wise to accept the decision of the House of Commons.

I admit that the system in the House of Commons requires a guillotine. Fortunately, our self-restraint is such that we do not require such a device or a timetable of the kind used in the other place, which, as has been said, was instituted some time back. However, it has been continued and, although it is not for me to tell the House of Commons how to go about its business—I have enough to do to conduct my own—it might be for the advantage of Parliament generally if a reconsideration of these timetable arrangements was introduced. At least the amendment of the noble Lord, Lord Pannick, received longer consideration than the previous amendment of the noble Lord, Lord Rooker, so we should be thankful for that.

I am not in favour of sending this amendment back to the House of Commons for a second time.