Fixed-term Parliaments Bill

Lord Cormack Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, the circumstances in which there can be an early general election is the outstanding critical issue in the Bill. If one looks at this problem, one sees yet further evidence of the Bill not having been thought out. I shall identify what appeared in Committee to be the three main problems with Clause 2.

The first was the involvement of the Speaker. We were privileged to hear speeches from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, both of whom made it clear, pretty well beyond argument, that the involvement of the Speaker was entirely wrong. The amendment which my noble friend Lord Howarth has put down along with the noble Baroness, the noble Lord and the noble Lord, Lord Pannick, would get rid of the involvement of the Speaker. The noble and learned Lord, Lord Wallace of Tankerness, has supported that. There appears, therefore, no longer to be an issue in relation to the involvement of the Speaker. I support my noble friend Lord Howarth in expressing gratitude to the noble and learned Lord for achieving that. It is typical of the way in which he has conducted himself in relation to this matter.

The second issue was the lack of a satisfactory definition of a vote of no confidence, as referred to in Clause 2(2). That had two separate aspects to it. First, you could not tell what was meant by a Motion of no confidence. Did it include anything that would be understood to mean a Motion of no confidence, or did it mean only something that said, “This House has no confidence in the Government”? That first bit of the problem has been solved by the amendment moved by my noble friend Lord Howarth because it makes it clear that the only sort of Motion of no confidence that would trigger an early general election is one that says, “This House has no confidence in the Government”. The amendment is good in that respect. However, it does not deal with the other problem in relation to Motions of no confidence; namely, that there are many Motions that could be passed by the House of Commons that would indicate that it had no confidence in the Government.

The first and most obvious is the House failing to pass a Motion of confidence in the Government. For example, Mr Major’s Government were defeated on Maastricht. They then put down a Motion of confidence in themselves. Had Mr Major’s Government then been defeated on the Motion of confidence in the House of Commons—which they were not—there could not have been a general election at that point, because the only possible trigger for a general election would have been a Motion of no confidence and not a failed Motion of confidence. After Mr Major’s Government had failed to win the Motion of confidence, the Opposition would then have had to put down a Motion of no confidence in the Government. If that had been won by the Opposition—that is, if a Motion of no confidence in the Government had been passed—that still would not be the end of it under this Bill, because there would then be a 14-day period in which either the existing Government of Mr Major could have sought to put together a majority to survive or an alternative Government could have emerged. So if the facts are taken and applied to an historical example, it produces a rather unsatisfactory result.

There are three other shots on the Marshalled List at how you deal with a Motion of no confidence. First, there is the amendment of the noble Lord, Lord Norton of Louth. He defines a Motion of no confidence as being either a vote of no confidence in the Government or a negatived vote of confidence; that is, the Government have put down a vote of confidence in themselves and it has been defeated by the House of Commons. The noble Lord then includes the 14-day period after that. It is in some ways better than a simple Motion of no confidence but it still keeps in the 14-day period. The noble Lord introduces another innovation in that his amendment allows for a general election if the Prime Minister resigns and a period of 60 days goes by in which no alternative Government emerge. The problem with that is that if you have a majority and you want to have a general election at any time, you simply resign, sit out the 60 days and then have a general election. That would be contrary to the purposes of the Fixed-Term Parliaments Bill and very unsatisfactory.

The next alternative is in the amendment put forward by the noble Lords, Lord Cormack and Lord Hamilton of Epsom. The difference between that amendment and the other amendments is that it seeks to define a vote of no confidence as including not passing the Second or Third Reading of a Finance Bill or the passing of a Motion of no confidence in Her Majesty’s Government. That is a third definition which also keeps in the 14 days. Or am I wrong about that? It does not keep in the 14 days.

[Lord Cormack]

My reference to 14 days relates to an entirely different matter, as I shall seek to explain.

[Lord Falconer of Thoroton]

The noble Lord, Lord Cormack, defines a Motion of no confidence as being either a Motion of no confidence or the defeat of a Finance Bill and gets rid of the 14 days.

The final definition—which is in every single respect perfect—has been tabled by the noble Lord, Lord Armstrong of Ilminster. It states basically that if there is a vote of no confidence there has to be a general election, and that a vote of no confidence occurs where the Queen’s Speech is defeated, a Motion of no confidence is passed, a Motion of confidence is negatived or the Prime Minister has indicated in advance that a particular vote is to be regarded as a vote of no confidence and that vote is defeated. The best example of that is when Mr Wilson was Prime Minister in 1976 and his public expenditure estimates were defeated one evening in the House of Commons, which was obviously a critical matter for his Government. He was keen to establish that the Commons had confidence in his Government and so he announced in advance that the next day’s Motion on the adjournment would be a Motion of confidence. That was treated by Parliament as a Motion of confidence in the Government; it went in favour of the Government and he survived.

What should the House do in the context of this galaxy of opportunities that has now been offered to it? I respectfully suggest that the House should do the following: respect the work that has been done by the noble Baroness, Lady Boothroyd, the noble Lords, Lord Martin and Lord Pannick, and my noble friend Lord Howarth and build on it; and knock out the 14 days, which is a total waste of time and contrary to what the House of Commons would do. No one supported it during the course of debate. The way to achieve that is to amend the amendment of the noble Baroness, Lady Boothroyd, and her colleagues and knock out the 14 days.

The one circumstance in which 14 days would be worth while is where a Government are formed after a general election and then immediately fail to get the confidence of the House of Commons. It would not be right to force a general election at that time. Everyone will remember the one example of that where Mr Baldwin headed the biggest single party after the election in 1923, Labour came second and the Liberals came third. The Conservatives under Baldwin produced a King’s Speech that was defeated the first time round and Labour was then given the opportunity to form its first Administration. That was a wholly appropriate working of the constitution.

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[Lord Falconer of Thoroton]

I completely agree with that but it does not change the basic principle that if the first party after a general election cannot form an Administration it should go to the next person most suitable to do it. That should be regarded as an exception.

What I would recommend to the House and what my party is going to do is to vote in favour of my amendments to the amendment moved by my noble friend Lord Howarth. Those amendments have the effect of knocking out the reference to 14 days but leaving in the option of discussing whether there should be a new Government if the Government are in the Baldwin situation whereby they have never gained the confidence of the House of Commons. It is not perfect and lacks the beauty and comprehensiveness of the amendment tabled by the noble Lord, Lord Armstrong. But it is a sensible, clear way in which to deal with the three problems—first, by knocking out the references to the Speaker and to 14 days and by at least giving us certainty about what is meant by a Motion of no confidence. For those reasons, that is the position of my party. I beg to move.

[Lord Cormack]

My Lords, we have made real progress. When the Bill was presented to this House on 1 March, there was a consensus across the House that it was very unsatisfactory legislation, that it had been very badly and in some respects carelessly drafted and that it was the duty of this House to try to make it better. During our Committee stage, we had some fascinating debates and we have, I believe, begun to make it better. That is signified by the presence of the name of my noble and learned friend Lord Wallace of Tankerness on the amendment, which was very eloquently moved by the noble Lord, Lord Howarth. The amendment has very significant support from some very distinguished Cross Benchers, including particularly two former Speakers of the House of Commons. So I am extremely glad that the last state is better than the first.

I have always been worried throughout my time in Parliament about the incomprehensibility of legislation to those who sent us to Parliament. It is my belief that legislation should be understandable to the ordinary, intelligent and well informed voter—and there are far more ordinary, intelligent and well informed voters than many would give credit for, as was made clear in the referendum that took place not so long ago. I have tried very hard in the amendments that I have tabled, first, to try to make this Bill more understandable and, secondly, in the third version of my amendment that is on the Marshalled List today, to try to reflect some of the understandable criticisms levelled at my original amendment in Committee. That in itself illustrates the general wisdom of this House, which will normally leave votes until Report. What I have tried to do in the amendment today is to heed what was said in the lengthy, fascinating and well informed debate that we had in Committee. Above all I have taken out, as have others, the reference to the Speaker of the House of Commons. The more we thought about and debated that, the clearer it became that it was neither necessary nor desirable so it does not feature in the amendment moved by the noble Lord, Lord Howarth, nor indeed in any of the others. That in itself is a significant step forward.

However, I also tried to reflect the requests which came, particularly from the Liberal Democrat Benches, that the definition of a vote of confidence should be clearer and simpler. In my first amendment, I had a number of definitions not dissimilar from those listed in the amendment tabled by the noble Lord, Lord Armstrong of Ilminster. I am the first to admit readily that the noble and learned Lord, Lord Falconer, is correct in saying that none of us has got it absolutely right; there is no perfection in these matters. I also pay tribute to my noble and learned friend Lord Wallace of Tankerness, whom I have met on a number of occasions and who has been extremely anxious both to listen and discuss and to try and improve the Bill.

Having said that I will refer briefly, if I may, to the amendment in my name, which has the wonderful designation of Amendment 22ZA and which attempts to make the law a little more understandable. This amendment has been supported by my noble friend Lord Hamilton of Epsom and I am most grateful for that. It says that an,

“early parliamentary general election shall take place if … the House of Commons passes, by a two-thirds majority”,

of those voting,

“a resolution ‘That there shall be an early general election’.”

Frankly, I did not like the existing provision in the Bill that it should be two-thirds of the membership of the House. As it is bound to be a big vote, I can think how very unsatisfactory it would be if, because of some major problem with the weather or some accident in London that delayed Members getting to the House, there were a clear two-thirds majority in that big vote that was not quite two-thirds of those elected to the House—“including vacant seats”, as in the Bill—so I have made it a two-thirds majority of those voting.

My amendment also says—this is where my 14 days comes in—that,

“if the Prime Minister tenders the resignation of Her Majesty’s Government and within 14 days no new Prime Minister has accepted Her Majesty’s invitation to form a government”,

there will be an early general election. That is not a prescriptive 14 days. There need not be more than 14 hours. It might happen extremely quickly but it cannot drag on because across the House, at Second Reading and in Committee, there was almost universal distaste for long periods of bartering and horse-trading. There were many amusing references to what the Whips might get up to in another place—I am glad to see the noble Baroness, Lady Taylor, a distinguished former Chief Whip, indicate assent at this point—to try to reverse a vote that had taken place, so my amendment says that if there is a vote of no confidence, that should be sufficient to trigger a general election.

We have debated this extensively at Second Reading and in Committee. Many of us have cited the famous example of Lord Callaghan who, as Mr James Callaghan, the Prime Minister, resigned in March 1979 immediately upon being defeated in a vote of no confidence in that House. His exceptionally dignified words on that occasion have been quoted in this Chamber more than once. He said that the House of Commons had spoken and it was now for the country to decide. It is really that Callaghan principle that I have tried to translate into my attempt at a new clause: if the House of Commons passes a Motion of no confidence in Her Majesty’s Government, the Prime Minister shall forthwith submit to Her Majesty a request for a proclamation to dissolve Parliament and provide for a general election.

Then I have sought to give a simpler definition of a vote of no confidence, falling short of the number of definitions that I had in my first amendment in Committee and of the list provided for the House today by the noble Lord, Lord Armstrong of Ilminster, but saying that if the House denies a Second or Third Reading to a Finance Bill, that is clearly an expression of no confidence in the Government of the day because the whole purpose of voting supply is fundamental to the governing of our country. I also said that if a Motion of no confidence in Her Majesty’s Government, tabled by the Leader of Her Majesty’s Opposition, is passed, no matter whether the majority is one, as it was in 1979, or 101, that is it.

I suggest that, although the amendment is not perfect, it is a reasonable attempt to put into understandable language the provisions that could trigger a general election, allowing for more than just the vote of no confidence but clearly defining it. As I have said to the Minister on more than one occasion, when one tries to codify convention it is exceptionally difficult. I say again, as I have said before, that I would rather that we were not having to engage in this exercise but the Commons has decreed it and we must try, according to our rights and our duties, to make the Bill better. I suggest that the proposed new clause would make it better than what exists already.

Of course, if the House decided to approve the proposed new clause that has been supported by the Minister, either amended or unamended, there would be no opportunity to test the opinion of the House on this alternative. I will hold my fire on any votes that might take place beforehand to see whether we have the opportunity to vote on this one. Whatever happens today, though, I feel extremely pleased that the Minister has listened carefully and there is going to be an improvement in the Bill, in whatever precise form it leaves this Chamber today. We now have to let the debate follow its course and see what happens. As I sit down, I commend to your Lordships the idea of having a clause that is as understandable and comprehensive as can reasonably be expected.

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[Lord Tyler]

No, my Lords; I think that that is over-simple. It does not give the House of Commons a proper, responsible role and I think that there would be circumstances in which it certainly would not be appropriate.

[Lord Cormack]

Would not the circumstances where it would not be appropriate, to which my noble friend has just referred, almost certainly be coalition circumstances? Is not the real fear of many of us that the Bill has been designed to perpetuate the opportunity of coalition? Would not the public have the right to feel cheated if, as I devoutly hope does not happen, the present coalition collapsed and the leaders of the Liberal Democrat Party and the Labour Party sought to form a pact and a Government—a Government who would certainly not have commanded the support of the majority of the country last year? Do we not have to bear that in mind? Has not this been devised in a coalition climate to perpetuate a coalition climate?

[Lord Tyler]

I can only say to my noble friend that I was advancing the case for precisely this legislation long before there was ever the possibility of a coalition. It is extremely important to come back to my absolute core principle that the arithmetic of the House of Commons should be of issue. If, for example, the circumstances to which my noble friend refers occurred and there were in the House of Commons a solid majority for a change of Government in the midst of the present economic crisis, in order for that change of Government to take place without a general election it would be the House of Commons that decided whether the Government had the confidence to continue. Therefore, I do not think that that circumstance is an appropriate or proper reason for changing Amendment 20, which I think would be a useful amendment to the Bill.

The Bill recognises that, if it were acceptable or even necessary to call an early general election, the final decision should be left to Parliament and not to the individual whim of one party leader who happened to occupy No. 10. Even if there were not near unanimity among MPs, the safeguards in the Bill would ensure that, in the circumstances I have described, a vote of no confidence would lead to an early poll once it became clear that no alternative Government could be established and enjoy the confidence of the House of Commons. Amendment 20 deals very well with this problem. It deals with the questions that were raised last week, although clearly some people on that occasion and now might say, “Well, we know what a Motion of no confidence looks like when we see it”. Frankly, I think that the amendment deals with the problem of definition rather better than that.

I think it was my noble friend Lord Forsyth who made the point that in almost all the circumstances that have been described—defeat on a Finance Bill or some big issue of that sort—the leader of the Opposition would be likely immediately to table a Motion of no confidence in the Government. Therefore, to some extent, the suggestions that have come from other parts of the House may be superfluous. I and my colleagues tabled a probing amendment suggesting that such a Motion should always be in the name of the leader of the Opposition, which would reflect that point, but in the real world that will almost always be the person who tables the Motion.

The Government have moved substantially and my noble friend has put his name to Amendment 20. I think that the very serious problems enunciated earlier by previous Speakers of the other place have been dealt with, and removing the Speaker from a potentially very invidious position is very important.

I turn to the other amendments briefly because I suspect that they are not going to be pursued with quite the same enthusiasm as Amendment 20. The amendment in the name of my noble friends Lord Cormack and Lord Hamilton seems largely to enshrine the status quo. However, I do not think that the status quo is acceptable, as it involves all sorts of problems. I suggest that under their amendment a Prime Minister, instead of simply going to the Palace, as now, could engineer a vote of no confidence and therefore cut and run for an early election, which would destroy one of the major objectives of the Bill.

The proposal maintains the unfair partisan advantage conferred on one party leader as opposed to another. It is remarkable that when faced with the prospect of the first Prime Minister in history prepared to give up this important power to Parliament there seem to be some people in your Lordships’ House who say, “We do not want to be given this power. We would rather you kept it, Prime Minister. We do not want the responsibility”. I think that that would be a retrograde step.

The issue is also present in Amendment 22ZB in the name of the noble Lord, Lord Armstrong, who has explained why he is not able to be here. Amendment 22ZB contains an extraordinary provision that any vote deemed a vote of no confidence by the Prime Minister, and party leader, should be a vote of no confidence. Rightly, the Bill and, indeed, Amendment 20 seek to avoid that. Those in your Lordships’ House who lived through the Maastricht debates in the other place, particularly former Conservative MPs, will remember the pressure that was brought to bear night after night by the Whips threatening that it could be deemed a Motion of confidence that could bring the Government down and trigger an immediate general election. MPs should have the capacity to vote down the details of legislation they disapprove of without being pressurised by a Government trying to force them to take a view that is not truly theirs. I fear that Amendment 22ZB could be defective for that reason, if for no other.

There is a definite problem with that amendment since it might well be open to judicial challenge. The judicial challenge to the role of the Speaker would be very difficult but when the head of the Executive takes a decision, I think a judicial review might well be a prospect that we would have to face. I mentioned that in Committee previously and a number of Members of your Lordships’ House, who are much more learned in the literal sense than me, seemed to agree with that. There is also an implication for Clause 3 and the issue of how a Dissolution should take place in the amendment of the noble Lord, Lord Armstrong.

I am slightly baffled by the amendments in the name of Members of the Labour Party and the noble and learned Lord, Lord Falconer. I may just be being stupid but it seems to me that perhaps quite a major constitutional change is in prospect. The burden of their amendments seems to be that when a Government are newly elected—or, strictly, a Parliament—some special mechanism should be introduced in the days following the election.

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[Lord Wallace of Tankerness]

My Lords, I begin by thanking all noble Lords who have taken part in this debate—not just for their contributions to the debate on the Floor of your Lordships’ Chamber today but for all their comments and amendments, which have reflected a view to try to find a way forward. As I indicated originally at Second Reading, and certainly in Committee, the Government were willing to listen to the views of your Lordships’ House. In the debate on Second Reading, I think it was the noble Baroness, Lady Jay, who mentioned that you could have absolutely rigid fixed terms or the complete flexibility that we have at the moment. The rigid fixed term brings its own set of difficulties, but if you are going to have something less rigid, you have to have the mechanisms in place to provide for an early election. That is what we grappled with during our deliberations in Committee and has been reflected in our debate today.

Amendment 20 was tabled by the noble Lord, Lord Howarth, with the support of the noble Lords, Lord Martin and Lord Pannick, and the noble Baroness, Lady Boothroyd. It sets out an alternative version of Clause 2 and addresses a number of issues of concern, not least the Speaker’s certificate and the certainty of the wording of a Motion of no confidence, both of which were raised in Committee. I am particularly grateful for the constructive way forward that has been devised by those who I know do not like the idea of fixed-term Parliaments but who nevertheless have accepted that the role of this House is to improve and revise and to bring forward amendments in that spirit. I was pleased to be able to consult not only the noble Lords, Lord Howarth and Lord Pannick, but particularly with the two former Speakers. This House has had the advantage of having their experience related to us both in Committee and in the debate this afternoon. On that basis, I have been willing to add my name in support of the amendment on behalf of the Government.

The amendment would retain the two triggers for an early general election and has clarified what a Motion of no confidence should say, and in that regard would not require a Speaker’s certificate. There was also a suggestion in an earlier iteration of the amendment that perhaps there should be some reference to the journal. Having considered it, we did not think that was appropriate either because it might then reflect other things in the journal that would be somewhat undermined by making it specific in this one. I think that that consultation bore fruit. We certainly have no desire to draw the Speaker of the House of Commons into political controversy, and therefore, given that the architecture for an early election is drawn up with a degree of certainty with no need of a Speaker’s certificate, the Government are willing to support the amendment.

I will come back to the amendments to this amendment that were moved by the noble and learned Lord, Lord Falconer of Thoroton, because they raise issues that were raised by other noble Lords, but first it is important that I should address the points made by noble Lords in speaking to their amendments in the group.

Amendment 21, tabled by my noble friend Lord Norton, again would provide an alternative version of Clause 2 and retains some of the basic architecture. It sets out a mechanism to allow for an early general election in the event of a two-thirds majority on a Motion, and one to provide for an early election in the event that the Government lose the confidence of the other place and no Government who hold the confidence of the House are formed within 14 days. Having listened to the concerns expressed in this House, it is clear that there is a certain shared sense of the direction in which we have been moving. However, my noble friend seeks to provide that the failure to pass a Motion of confidence in the Government—an important distinction—should have the same effect as passing a Motion of no confidence.

Following on the specific points made about this in the Constitution Committee’s report, we certainly did reflect on this long and hard. The reason why we came down against it in the end has been anticipated by my noble friend. It is that one of the objectives is to try to minimise the opportunity for manipulation. I accept, as the noble Baroness, Lady Jay, has indicated the Deputy Prime Minister has accepted, that there is no way this is going to be foolproof, but there are some things you can do to make it more difficult. We have reached the judgment that a Motion of confidence would be easier for the Government of the day to table and then have voted down than for the Government to lose a Motion of no confidence. The noble Baroness also mentioned Germany in 2005. The position there was that there was a general consensus for an election but that they did not have a trigger mechanism to do so. However, we do provide for it where there is consensus for a Dissolution that is supported by a two-thirds majority of Members of Parliament.

My noble friend Lord Norton wishes to add a third mechanism leading to an early general election. Where a Prime Minister felt unable to continue in government, his or her resignation could bring about an early election. The Bill does not prevent a Prime Minister from resigning or tendering a resignation on behalf of the Government, but, under the Bill as it stands, an early election would not follow automatically. As I have indicated, should there be a consensus that an early election should take place, the Bill provides for this under a two-thirds Dissolution vote. However, if there is no consensus, the alternative provision—for a no-confidence vote followed by a period of 14 days’ government formation—prevents a situation in which a Government stagger on without the confidence of the House.

My noble friend has suggested a government formation period of 60 days following the Prime Minister tendering the resignation of the Government. That could undermine the principle of fixed-term Parliaments by allowing the Prime Minister to trigger the government formation period at any stage in the Parliament. If one is looking at ways of minimising the opportunity for manipulation, that is one reason why we would not wish to go down that road. I also believe that 60 days is too long a period for there to be no effective Government in place. I hope that on reflection my noble friend will not—I think he indicated that he had some sympathy for the amendment tabled by the noble Lord, Lord Howarth—press his amendment.

The amendment tabled by my noble friend Lord Cormack and supported by my noble friend Lord Hamilton of Epsom is a further variation that suggests the exact wording of the Dissolution Motion and frames the 14-day government formation period in a different way from that proposed in the Bill. It provides for two scenarios that would determine a Motion of no confidence. Where a no-confidence Motion is passed in those circumstances, the Prime Minister must request Her Majesty to dissolve Parliament.

There may be circumstances in which, within a fixed-term period, a viable, legitimate Government may be formed from the composition of the House after a no-confidence Motion. As my noble friend Lord Tyler reminded us, it is Parliament that is fixed; it is not the Government who are intended to be fixed by the legislation. The Government can exist only if they enjoy the confidence of the other place. That is why Clause 2 provides for a vote of no confidence to trigger a period of 14 days for possible government formation. If the Government have not been able to secure the confidence of the House of Commons, Parliament will be dissolved. At present, the Prime Minister decides whether, after the loss of confidence, to ask Her Majesty for Dissolution, as in 1979, or, as my noble friend Lord Norton pointed out, to resign, thereby creating the opportunity for another Government to be formed from the existing House, as in 1924.

[Lord Cormack]

I know that the Minister is trying very hard, but some of us remain very concerned about this 14-day haggle period, as I would call it. Would he be prepared to insert at Third Reading, “a maximum of 14 days”?

[Lord Wallace of Tankerness]

My Lords, I am not sure that it is necessary to insert “maximum”. Perhaps I can assure my noble friend that 14 days is a limit; it is not an expectation or a requirement. Let us take as an example the situation in 1979, after Mr James Callaghan was defeated on that famous evening in March. If, rather than saying, under existing constitutional arrangements, that he was going to the Queen to seek Dissolution and take his case to the country, he had said that he would table a Motion for Dissolution the following day and that if it was supported, as inevitably it would have been, by both parties and had two-thirds of Members voting for it, there would have been no need to wait for 14 days before the election took place. The noble and learned Lord, Lord Falconer, looks perplexed by that. Mr Callaghan could have tabled a Motion for Dissolution the following day and two-thirds of Members could have agreed.