Fixed-term Parliaments Bill

Lord Cormack Excerpts

Monday 18th July 2011 Lords Chamber

[Lord Rennard]

My Lords—

[Lord Cormack]

My Lords—

[Baroness Verma]

My Lords, perhaps the noble Lord, Lord Rennard, could carry on and the noble Lord, Lord Cormack, could speak after him.

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[Baroness Jay of Paddington]

My Lords, the committee’s position, and certainly my personal position, is that given the inadequate processes that have produced this legislation, some form of post-legislative scrutiny was needed. I do not remember whether the noble Lord was present when the noble Lord, Lord Pannick, led the previous debate on a similar subject, but the discussion included the issue of whether there was some way not perhaps of preventing the present Government fulfilling their five-year term, which the Constitution Committee certainly thought was the primary aim of this Bill, but of giving Parliament an opportunity to think again about whether this was an appropriate way for the constitution to be changed.

[Lord Cormack]

My Lords, I wish to make a brief speech in support of the noble Lord, Lord Butler of Brockwell, and to focus the House’s attention on one or two points. First, whatever our views on fixed-term Parliaments, we have debated that. The House, in its wisdom, has made its decisions and has not stood in the way of another place. We are to have a fixed-term Parliament and the next general election will take place in May 2015. That is not the issue this afternoon. However, we have also decided that it is entirely proper to seek to improve and amend what many of us consider to be an ill thought-out, unnecessary and bad Bill. That is what the amendment of the noble Lord, Lord Butler of Brockwell, seeks to do. I hope very much that we will support him if he decides to press his amendment to a Division, and that we will do so because we recognise the circumstances in which this Bill was produced.

This Bill is the creature of coalition. It came into being because of the coalition agreement. None of us has sought to deny the right of the Government to decide when the next general election will be. As I said, it will occur in May 2015. Attempts to bring forward that date were defeated—in my view, understandably, and probably rightly—when we sought to amend the Bill. However, because this Bill is the creature of coalition, there should be an opportunity for the next Parliament to consider whether it truly wishes to continue with this experiment. The next Parliament may well be one with a Conservative majority—I sincerely hope that it will be—but whether it has a Conservative majority or a Labour majority it is unlikely that it will be another coalition. This amendment merely gives the opportunity for the new Parliament to make its decision. Indeed, this has already been recognised on the Floor of this House by my noble friend Lord Howell of Guildford when he was dealing with the sunset clause on the European Union Bill. He pointed out that the two things were different. He said:

“As was explained in the debate”—

that is, the debate we had just had—

“one can see perfectly well why”,

our amendment had been passed. He continued:

“The coalition exists, and I hope that it continues to exist in strong fine form during this fixed-term Parliament, but after that we have a new landscape. Who knows who will govern? Who knows what the pattern will be? It made perfectly good sense for that legislation to have a limited life before coming to be re-examined”.—[Official Report, 25/5/11; col. 1861.]

My noble friend Lord Howell made a similar point when he wound up the debate on the sunset clause at Report on the European Union Bill.

We have before us the opportunity to say to the other place, “Please reflect on what you have done. Please recognise that we have not wrecked the Bill that you sent to us and that we have made no attempt to change the date of the next general election, but also recognise that what we have done is to give an opportunity for the Parliament elected in May 2015 to re-examine this matter and to decide whether, in the light of experience, it wishes to continue with fixed-term Parliaments”. We are giving that Parliament the opportunity to make that decision without burdening it with the necessity of introducing full-scale constitutional legislation at the beginning of a new Parliament if it generally desires to move away from what we have decreed.

As we know all too well, constitutional legislation takes a long time to get through Parliament. We may learn that lesson yet again in the not too distant future, so we are being exceptionally kind to the next Parliament in giving it that opportunity to ratify or nullify without long, protracted debate. Because of that, I very much hope that the noble Lord, Lord Butler of Brockwell, will be listened to and heeded, and that if he decides to put this to the vote the majority will be more than six this time.

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Tuesday 24th May 2011 Lords Chamber

[Lord Wallace of Tankerness]

That the Bill do now pass.

[Lord Cormack]

My Lords, I do not wish to detain the House long, because the next business before the House—

[The Countess of Mar]

I do not know whether the noble Lord is aware that paragraph 8.153 of the Companion states:

“The motion ‘That this bill do now pass’ is moved immediately after third reading has been agreed to or, if amendments had been tabled, as soon as the last amendment has been disposed of. The motion is usually moved formally. It may be opposed, and reasoned or delaying amendments may be moved to it, but in other circumstances it is not normally debated”.

[Lord Cormack]

Well, I will certainly be guided by the noble Baroness who sits on the Woolsack, but I was informed that it was entirely proper to make a brief speech at this point.

[Earl Attlee]

My Lords, perhaps I may assist the House. Of course the noble Countess is right, but it seems to me that the rule is honoured as much in the breach as in the observance.

[Lord Cormack]

Then perhaps I can join the breach. I will—

[The Countess of Mar]

In the first report from the Select Committee on Procedure of the House, which was agreed by the House, the recommendation was that:

“The motion ‘That this bill do now pass’ should be moved formally and should not normally be debated. Ministers should if necessary respond to points raised on the motion by other Lords. The motion should not be an occasion for thanking those involved in the passage of the bill”.

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[Lord Cormack]

My Lords, I am grateful to the noble Baroness. I want briefly to say two things. First, having taken part in all stages of this Bill, I thank the Minister for his unfailing courtesy, sensitivity and willingness to listen. Secondly, I express the hope that what was not a terribly good Bill but is now a slightly better Bill will come back from another place in the state in which it leaves this House. In other words, I hope that the Cross-Bench amendment passed a couple of weeks ago will remain in the Bill. It will give great encouragement and comfort to those of us who have had certain concerns about it.

[Lord Bach]

Following the very brave intervention by the noble Lord, Lord Cormack, I follow him briefly to thank the noble and learned Lord, Lord Wallace of Tankerness, who has conducted his part in this Bill with great skill and understanding. I speak on behalf of my noble and learned friend Lord Falconer of Thoroton, who led for the Opposition on this Bill, in saying that we hold him in the highest respect for the way in which he has dealt with this legislation. It does not stop us thinking that this is completely the wrong way of passing constitutional change in this country, and I believe that if there had been a free vote in this House—here I am looking particularly at Conservative Peers—there certainly would have been four years rather than five. My last hope is the hope that the noble Lord, Lord Cormack, expressed, which is that the Bill is accepted by the Commons as it leaves here today.

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Cormack]

My Lords, not for the first time the noble lord, Lord Grocott, has entertained the House with some good, robust constitutional common sense. I would just gently rebuke him. I am glad he has decided not to press Amendment 23, because he above all people must realise that the phrase “elected House of Lords” is a contradiction in terms. One cannot have an elected House of Lords; what the Government are, I believe, about to propose—and our suspense will be at an end tomorrow, I am told—is the abolition of the House of Lords and its replacement by a totally different sort of second Chamber. It behoves all of us in this place to recognise that reality and then to debate it on its merits or, as I believe, lack of them. We cannot allow ourselves to be deluded into talking about House of Lords reform when in fact we are going to debate House of Lords abolition. I am glad, therefore, that he is not going to move that amendment.

As to the amendment that he has moved, I am not sure how he could expect the Deputy Prime Minister to make a statement on the referendum. It is very difficult to make a statement when your face is covered in egg, and very difficult for the Prime Minister to make a statement when all he could do was echo a predecessor and say, “Rejoice, rejoice”. We know why there was no statement, but we are all glad at the result.

The noble Lord has placed before your Lordships’ House one very important question which it is important that my noble friend the Minister should seek to answer and which, for all his sensitivity, charm and many other qualities—and I do not say that in any sense facetiously—he has failed adequately to address until now. What are the criteria to determine a referendum? It cannot merely be what Parliament decides, because that means what is convenient for the Government of the day. Do not let us again delude ourselves into believing all the fine rhetoric surrounding this Bill. The Executive in our country are drawn from the legislature, and I do not object to that at all; I never have. It is the Executive who are the driving machine in all this. I personally do not like referenda, but they are in the system now. If our constitution, of which the noble Lord has spoken both eloquently and accurately, is to be safeguarded for future generations, it is important that we establish a principle that on major constitutional issues such as devolution, our continued membership in 1975 of the Common Market, as it then was, or the future of either or both of our Houses of Parliament, there should be the opportunity for the people, untrammelled by other considerations that inevitably crowd upon them during a general election, to be able to decide.

I hope that all those in government at the moment will reflect on that as we approach detailed debates in coming days, weeks, months and, I trust, years and determine what at the end of all that debate should happen. It is very important that we have a clear and coherent answer to that. It is unreasonable for us to suggest that my noble friend the Minister could give a comprehensive answer this evening. Of course he cannot—he has to consult his ministerial colleagues and superiors—but he can at least tell us that he has heard the words of the noble Lord, Lord Grocott, and that he recognises that there has to be an intellectually defensible set of criteria that determines what a major constitutional issue is and what it is not, and when there should be a referendum and when there should not.

Like the noble Lord, Lord Grocott, I am not implying that there should be a referendum on the Bill now before us, but I congratulate him on ingeniously using this opportunity to bring up a very important issue that gives us all a chance to reflect on it as we move towards an issue that truly will affect not only the future of this House but the future balance and stability of our constitution as a whole: the constitution about which the noble Lord spoke with such quiet passion and eloquence. Let us see what my noble and learned friend has to say before we end the Report stage of what is not the most glorious constitutional measure this House has been asked to consider.

[The Lord Bishop of Chester]

My Lords, briefly, I support the noble Lord on his amendment. I do not think that the constitution, or even our politics, is broken, but a certain amount of damage has been done. In my lifetime I have seen a tendency for participation rates in voting to fall, along with an increasing sense of weariness with modern politics and disrespect for politicians. I am on the record as saying, when the Constitution Committee published a report on referendums last year, that there is a place for them in building confidence. Interestingly, the participation rate in the recent referendum was really rather encouraging. It was higher than we thought it would be in the lead-up to it. A cautious but proper rediscovery of the place for referendums has a part in rebuilding political life in this country.

More substantially, I should like to try a thought experiment on your Lordships. Let us imagine that we had a Bill before us that proposed to extend the life of a Parliament from a normal term of five years to six years. Would we think that that required a referendum? We would probably think that it did because it would extend the maximum term from five years to six, but in practice we are going to extend the length of Parliaments by an average of about a year. Why is this not an issue on which there should be a referendum?

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[Lord Cormack]

I am most grateful to my noble friend. Would he not agree that the power of another place would be even further diminished if those elected to a second Chamber were on a 15 or 20-year term, were not eligible for re-election and were therefore not accountable to anybody?

[Lord Reid of Cardowan]

Well, of course, my noble friend is speculating. It is hard to believe that the other Chamber would bring forward proposals for the creation of a second House which would so hugely diminish its own powers by bringing in a new electoral system that would then be claimed in the second House to be more legitimate than that in the first; and for a period that was three times as long; for a House that was already widely recognised as being greater in its maturity and wisdom. That would be the greatest case ever of turkeys voting for Christmas.

Should such a proposal come forward, I think that many people in the House of Commons would be very reluctant to diminish their own position, particularly since they have just seen a campaign launched for changing the British constitution—this was the yes to AV campaign—on the basis that MPs were all lazy, cowardly laggards. I think that such a proposal would not be met with universal approval in the House of Commons. I say merely that, if by some mental aberration of that House, such proposals were brought forward and were to concern not only a subject for which one of the criteria had already been put to a referendum—that is, the voting system, which is elemental to the British constitution—but also the abolition of one of the Houses of Parliament and the diminution of the other, each of these individually would be reason for having a referendum. Taken together, there would be an absolutely compelling case for it. I am sure that the Minister in his straightforward fashion, and given that he is a man known for his neutral and objective position in all these matters, will be able to put this to his colleagues, up to and including the leader of his own party, bring it back and reassure us all on it.

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.

--- Later in debate ---

[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.

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Tuesday 10th May 2011 Lords Chamber

[Lord Grocott]

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

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

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

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

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

[Lord Cormack]

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

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

[Baroness Farrington of Ribbleton]

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

--- Later in debate ---

[Lord Cormack]

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

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

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

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

[Lord Tyler]

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

[Lord Cormack]

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

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

[Lord Goldsmith]

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

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

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

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

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

--- Later in debate ---

[Lord Renton of Mount Harry]

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

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

[Lord Cormack]

Would my noble friend give way?

[Lord Renton of Mount Harry]

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

[Lord Cormack]

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

[Lord Renton of Mount Harry]

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

--- Later in debate ---

[Lord Cormack]

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

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

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

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

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

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

[Lord Butler of Brockwell]

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

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

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

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

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

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Tuesday 29th March 2011 Lords Chamber

Moved by

[Lord Cormack]

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

[Lord Cormack]

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

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

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

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

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

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

Secondly, if the House of Commons,

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

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

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

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

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

Then, if the House of Commons passes,

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

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

The case is similar if the House of Commons,

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

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

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

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

[Lord Wigley]

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

--- Later in debate ---

[Lord Cormack]

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

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

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

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

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

[Lord Forsyth of Drumlean]

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

[Lord Cormack]

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

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



Amendment 51 (to Amendment 50)

Moved by

--- Later in debate ---

[Lord Howarth of Newport]

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

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

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

“Our view is that the Speaker would make it very clear before such a vote took place whether it was a vote on which he would issue his certificate”.

[Lord Cormack]

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

[Lord Howarth of Newport]

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

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

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

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

[Lord Cormack]

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

[Lord Howarth of Newport]

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

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

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

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

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

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

--- Later in debate ---

[Lord Cormack]

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

[Lord Tyler]

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

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

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

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

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

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

--- Later in debate ---

[Lord Falconer of Thoroton]

Is that right, because the wording in the amendment is:

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”?

The noble Lord is obviously right, but what about the position in relation to the Egyptian Motions to which I referred, or the Motion in which Mr Attlee, lambasting the Conservative Government in 1952, did not use the words “censure”, “Motion” or “confidence” once, yet regarded it as a motion of no confidence?

We already have a well understood definition of no confidence. The phrase is well known. What it means at any particular time depends on a consensus view that emerges from the Commons. The Commons understands when there is a Motion of no confidence. What it means is not something that is capable of being written down in a statute. I respect what the noble Lord, Lord Cormack, is trying to do in trying to define it, as it obviously is not working the other way. The Government’s problem is that they use the phrase “a Motion of no confidence”, as if it is a single, static thing that can be defined at any moment. Is not the obvious difficulty that it is not a static thing? One moment something will be a Motion of no confidence and 10 years later it will not because political circumstances have changed. As a consequence of what the Government are seeking to do, they are in effect changing the basis and moving it on from a political judgment made by the House of Commons to a legalistic issue that has to be resolved by the Speaker of the House of Commons. That is a fundamental change.

[Lord Cormack]

Much of what the noble and learned Lord says about the deficiencies of the Bill is completely right. The amendment seeks imperfectly—I made that point from the word go—to make the Bill less bad than it is at the moment by giving a definition of a vote of no confidence and by relieving the Speaker of the day of the invidious position of having to make a political judgment. We might have tabled the amendment imperfectly, and I am sure that there is room to improve it, but the general consensus in the House tonight appears to be that this is an improvement on what we have in front of us in the Bill.

[Lord Falconer of Thoroton]

I am not sure. I think that there are two alternatives. The one is to be lured into the trap that the Government are laying of the legalistic route; the other is to take the route that the noble Lord, Lord Forsyth of Drumlean, seeks, or that of the noble and learned Lord, Lord Howe of Aberavon, who has somewhat confusingly put his name to the amendment, although he also said to rely more on conventions, which I found quite forceful.

Let us suppose that instead of proposed new subsections (2), (3) and (4) we simply had one proposal which stated: “An early parliamentary general election may take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”. You would end up in the position whereby the Speaker is not being asked. You preserve the current position of allowing the Commons to determine whether it is a motion of no confidence, which has not caused a problem in the past. By using “may” rather than “is to”, you also deal with the problem of the Queen’s Speech being defeated before the Government ever get going, and you deal with the Narvik situation. You effectively and essentially pass a Bill that is not drawn into difficult and damaging legalism, which is the danger that the noble Lord, Lord Cormack, is trying to avoid.

I wait to hear what the noble and learned Lord, Lord Wallace of Tankerness, says. The noble Lord, Lord Cormack, is right that there is a considerable sense around the House that his amendment is better than the honourable but rather ineffective try that the Government have made. However, is it not better to try to preserve, as much as possible, the current arrangements that work rather than ending up in a legalistic situation with great difficulties about interpretation? I see the noble Lord, Lord Norton of Louth, shaking his head. I am willing to be persuaded that I am wrong. However, using the phrase,

“passes a motion of no confidence”,

twice drags him into a situation where he is freezing the definition of something that cannot be defined. I am open-minded as to the right answer but I am not at all sure that the submission of the noble Lord, Lord Cormack, is it.

I identify two other difficulties. As drafted, the amendment of the noble Lord, Lord Cormack, does not deal with the defeat of the Queen’s Speech before the Government have got going, which he acknowledges. It does not deal with the Narvik situation, where you have a strong sense within Parliament that the Government should fall because they are defeated in a vote of no confidence and a new Government should emerge. Assume that in the Narvik example the Government are defeated because Parliament wants, say, Winston Churchill to become Prime Minister and a national Government to run the war. It would not be appropriate in these circumstances to force a general election. The effect of the amendment of the noble Lord, Lord Cormack, is that there would have to be a general election whenever there was a defeat in a vote of no confidence. However, I see I am wrong.

[Lord Cormack]

The noble and learned Lord is trying to rewrite history in the most peculiar way. During the war, each year a Bill was passed so that there would not be a general election. General elections did not take place for 10 years. This agreement was in force at the time of Narvik. There was no question of the Government falling. The Prime Minister lost so much support on his own side that he felt that he had to resign and Mr Attlee made it quite plain that he was not prepared to serve under Lord Halifax, who appeared to be the preferred choice at the time, so we had the Government of Churchill and we all know what happened after that. To try to rewrite history in the way that he is doing is not exactly helpful to any of us.

[Lord Falconer of Thoroton]

The account of history given by the noble Lord, Lord Cormack, is entirely accurate. However, if you are passing a Bill that is intended to set out what our constitution is, what happens when there is not a suspension of elections and the Commons wants rid of a particular Government because it, quite legitimately, wants a national Government? The effect of the amendment of the noble Lord, Lord Cormack, is that you are not allowed to have a situation where you cannot avoid an election. I envisage circumstances in which a vote of no confidence might well reflect both a Commons view and a national view that the Government of one party be changed, for example, into a national Government. We have to be able to deal sensibly with this. The current arrangements allow for a defeat in a vote of no confidence followed by a replacement of the national Government, which the amendment does not deal with. It is not a comprehensive definition of motions of no confidence and so leaves the Speaker as exposed under these arrangements as he is under the old arrangements. I share the desire of the mover of this amendment to get to a point where the Speaker is not exposed in the way that he is at the moment. I do not believe that the amendment quite succeeds in doing that. I am open-minded about the other efforts to do it, but currently, I can see force in the sort of amendment that I suggested.

--- Later in debate ---

[Lord Wallace of Tankerness]

We debated this under Amendments 35 and 39. I said then and as part of our general debates that, in my understanding, if the Prime Minister resigned—nothing in the Bill stops the Prime Minister resigning in those circumstances—the Queen would invite another Member of Parliament to form a Government. If that other Member of Parliament tried to form a Government but there was a motion of no confidence in that Government, there would be an election. Alternatively, the Prime Minister may have resigned and it may be evident to everyone that there is stalemate and that the sensible thing—with agreement across all parties—is to have an election. In that case, two-thirds of Members could vote for an early Dissolution.

[Lord Cormack]

My Lords—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I think that it would be for the convenience of the Committee if the noble Lord, Lord Howarth of Newport, were first to respond on his amendment, as it is an amendment to that of the noble Lord, Lord Cormack.

Amendment 51 (to Amendment 50) withdrawn.

[Lord Cormack]

First of all, I apologise for jumping the gun ahead of the noble Lord, Lord Howarth. I echo his remarks to my noble and learned friend Lord Wallace of Tankerness on his constructive response to an interesting and important debate. I did not claim at the beginning, and I do not claim now, that the amendment I tabled with the support of my noble friends is perfect—of course it is not—but it has focused attention on a number of important issues, and I am extremely grateful to all noble Lords who have taken part in the debate.

There has been a surprising degree of consensus. Almost everyone who has spoken would agree that in most circumstances—I am trying to choose my words carefully, accurately to reflect what has been said—a vote of no confidence should be enough to see a Government resign. There is fairly widespread distaste in all parts of the House for 14 days of horse-trading. There is a degree of scepticism in the House on the two-thirds majority, although I of course note what my noble and learned friend said on that subject.

There is total opposition to involving the Speaker of the day in contentious matters. My amendment certainly did not seek to do that, but sought, by implication, to equate the certificate with the sort of certificate that is already applicable to money Bills. I am very grateful to my noble friend Lord Norton of Louth for his constitutional expertise and for the things that he has been able to point out.

Like the famous Irishman, I would rather that we had not started here. The Bill is not a great adornment to our constitution. It is a real threat to many parts of our constitution. I do not want to repeat what has been said by so many, but almost no one in this House would oppose the notion of the Prime Minister of the day expressing a determination to see through a full five-year term. However, there is also an overwhelming consensus that, fixed-term Parliament or not, one has to have an escape clause.

I tried to approach the Bill, not as one who loves it, but as one who accepts that we have a Fixed-term Parliaments Bill. I want to make it as workable as possible, I want it to inflict as little damage as possible upon our constitution, and I want it to allow as much flexibility as possible to remain. I hope that in the discussions that I trust will take place, formally and informally, between now and Report stage, we will be able to consolidate the consensus that has been implicit in much that has been said tonight, and that the noble and learned Lord, Lord Wallace of Tankerness, will come forward with a Clause 2 that is far more acceptable than the present clause in the present Bill. I beg leave to withdraw the amendment.

Amendment 50 withdrawn.

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Tuesday 29th March 2011 Lords Chamber

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

[Lord Cormack]

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

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

[Lord Marks of Henley-on-Thames]

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

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

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

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

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Tuesday 29th March 2011 Lords Chamber

[Baroness Hayter of Kentish Town]

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

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

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

as a,

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

He well describes how:

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

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

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

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

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

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

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

“to avoid a second election”.

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

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

a wonderful word—

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

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

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

or is 14 days,

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

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

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

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

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

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

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

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

[Lord Cormack]

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

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

[Baroness Jay of Paddington]

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

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

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

However, Mr Harper replied:

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

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

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

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

--- Later in debate ---

[Lord Wallace of Tankerness]

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

[Lord Cormack]

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

[Lord Wallace of Tankerness]

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

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Rennard]

My Lords, not long ago the noble Lord argued quite passionately that it was too much for your Lordships to consider together the two items of the voting system for Westminster and constituency boundaries. If he is now suggesting that the alternative to piecemeal legislation would have been a more comprehensive piece of legislation dealing with those two issues and the issues of fixed-term Parliaments and House of Lords reform, he is rather contradicting the argument that he made not very long ago.

[Lord Cormack]

My Lords, I am delighted that the noble Lord, Lord Rennard, was not drawn by the somewhat mischievous question of the noble Lord, Lord Foulkes. Many of us hope that it will be a very long time indeed before we debate elections of any sort to the Second Chamber. When that day comes, we hope that those proposals, whatever they may be, will be seen off.

For the first time, I find myself almost wholly in agreement with the noble Lord, Lord Rennard, in the substance of his speech proposing the amendment. As he says, it seems quite extraordinary that, in a Bill which is supposed to be clipping the wings of the Prime Minister, we should be giving the Prime Minister such tremendous power. Unless we are to appoint a soothsayer to the Prime Minister—“Beware the Ides of March”—for the life of me, I do not see that any Prime Minister could conceivably be able to forecast so accurately that he could bring forward the date of an election by two months. As the noble Lord, Lord Rennard, has said and as the noble Lord, Lord Howarth, and my noble friend Lord Norton have indicated, that should certainly be deleted from the Bill.

On the postponement of an election, one can understand that there could be a great national emergency or tragedy—one sincerely hopes that there will not be—when it would be quite improper, totally insensitive and wrong to plough ahead with a general election on a specific day. I will not rehearse the sort of things that could happen but we have talked about the foot and mouth crisis of 2001. I was one of those in the other place who strongly supported Prime Minister Blair when he came to the House and proposed that the local elections should be postponed. That was entirely right. God forbid that there should be some disaster like 9/11, but in such circumstances one understands that it would be right to postpone the date of an election.

It is important that the spirit of the amendment of my noble friend Lord Norton should be taken on board by the Government and that there should be a clear specification of the sort of circumstances. I also think it is important, as the noble Lord, Lord Rennard, has said that such a proposal should be put to and approved by both Houses of Parliament. I was delighted that he made that point so clearly and forcefully. Of course, we shall not be voting on this tonight but I hope that my noble and learned friend Lord Wallace of Tankerness will be able to give us a very positive and encouraging reply. He is a man of infinite resource and he is always genial and helpful to the House, but if he could not give us a real promise on this point of significant change to the current wording in the Bill, then I think on Report there would be amendments which many of us would feel obliged to support.

[Lord Desai]

My Lords, I have already raised my worries about the extension power that a Prime Minister has beyond five years. On this group of amendments I am aware that there is a problem, but I am not as worried as my noble friend Lord Howarth about the Prime Minister's ability to go to the country earlier than five years. I do not mind that.

I very much worry about the two-month extension beyond the five years. It would be very reassuring if the Minister took away, for example, the amendment of the noble Lord, Lord Norton, and produced a schedule of possible circumstances. I know that nothing is certain—there can always be the black swan which we cannot anticipate—but if we were told under what circumstances a Prime Minister could be permitted to go to Parliament about a postponement, that would put my mind at rest.

In a sense, this power goes beyond the 1911 Act, and we should take it very seriously. I calculate that, given the current date of election in the Bill, there will be 61 days in the two-month delay; 61 is not a perfect multiple of seven, so the Prime Minister may be tempted to go for 63 days. One can go on like that. We need some idea of the circumstances in which a Prime Minister could claim.

Secondly, as the noble Lords, Lord Rennard and Lord Cormack, said, the provision should be brought to both Houses of Parliament. We have a constitutional position in this question, and it should not be left to the other place alone. I can envisage circumstances under which a Government with a two-thirds majority could arbitrarily give themselves authority to extend the election for two months. I would be very worried about that.

We should have safeguards in the Bill to make sure that both Houses are consulted, that we know the possible circumstances under which the Prime Minister can exercise the power and that we can be certain that such powers will be used only in exceptional circumstances.

Fixed-term Parliaments Bill

Lord Cormack Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Cormack]

My Lords, I am tempted briefly to intervene, partly because of what the noble Lord, Lord Martin, said. I always remember that one of his predecessors—the late, great Jack Weatherill, who many of your Lordships will remember from his time in this House—once said to me, “If you have any doubt, do not go in and listen to the debate; just stay out and vote”. I must say that I have heard every word in this debate and uttered one or two myself, but the more I look at the Bill and listen to what noble Lords say, the more convinced I am that this is a wholly unnecessary piece of legislation.

If the Prime Minister and the Deputy Prime Minister wish to make a binding undertaking to go to the country in May 2015, there is nothing in our current legislation that would stop them. I can well understand why the two leaders of the new Government—a coalition which is a new experiment in many ways—wanted a period of five years. God bless them, they can have five years, and I genuinely wish them success; but I am not so naive as to suppose that if there is some extraordinary rift or argument during those five years, all those protestations will not fall to the side and there will be an election. The Bill provides for an escape clause, in Clause 2, which we shall debate next week. I have tabled a significant amendment to delete it and to replace it with something else. However, I must not rehearse those arguments now.

The more I listen to this debate, the more two things come to mind. The noble Lord, Lord Martin, talked about the fifth year. Everything he said was correct. I was there for the five-year Parliaments that existed between 1970 and last year. It is quite true that, in every case, the fifth year was the least glorious. However, it would be a little naive to suggest that there would not be a concentration on the forthcoming election in the fourth year. One has only to look across the Atlantic at the ridiculous two-year cycles for the House of Representatives and the four-year presidential cycle to see that potential presidential candidates are already being lined up by the Republicans although the general election is a long time ahead. Of course that would happen here as well. Therefore, we in this House have to accept—in my case reluctantly—that the House of Commons has sent us the Bill. We have the ultimate power to reject it completely. However, that would not be an advisable course for your Lordships' House to take, even though we would be entirely within our rights to take it. Instead, we should decide whether the five-year term enshrined in the Bill is the right way forward.

The Prime Minister and Deputy Prime Minister have put themselves into a difficult position, because if we insert “four” rather than “five” into the legislation, their resolution made last year to serve five years will be blown apart. Of course, the House of Commons would send back the Bill. Therefore, I suggest that perhaps the best way forward is to accept, with whatever degree of reluctance but with total understanding, the five-year wish of the Prime Minister and Deputy Prime Minister, but then to look to the future beyond that to consider what should be the normal life of a Parliament. On that question, the noble and gallant Lord, Lord Stirrup, in an excellent speech, put his finger on a number of very important points. Beyond 2015, it would be prudent and sensible to listen to the advice not only of many theoretical experts and academics, but of others who have had practical experience of politics, and to say that if the Government insist on fixed-term Parliaments after 2015, the term should be four years.

[Lord Grocott]

My Lords, I am not sure that I would be happy with the proposal that the noble Lord, Lord Cormack, made, although I can see merit in it. However, I was very interested in what he said about the Bill laying bare the criticism that has been made of the Prime Minister for using as a defence of the five-year Parliament and of the Fixed-term Parliaments Bill the argument that somehow it will take away power from the Prime Minister. It will take away power from subsequent Prime Ministers. As David Laws's book and the noble Lord, Lord Cormack, spelt out clearly, it was the Prime Minister who decided, with the Deputy Prime Minister, that the next general election would be five years hence, and gave the precise date. He did it far longer in advance than previous Prime Ministers, but none the less he made the decision himself.

I will address a comment made by a number of noble Lords in various debates that deserves a response from people like me who do not like the Bill but feel that if we must have fixed terms, we would prefer four years to five. The criticism directed toward us is that the worries in the final year of a five-year Parliament are not significantly different from the difficulties that come at the conclusion of a four-year Parliament. The noble Lord, Lord Cormack, touched on that. The argument is that people will be electioneering for a full year, knowing when the election will come, that the Government will gear their legislative programme to the timing of the election, and that the situation will not be significantly different regardless of whether that election comes at the end of four years or five.

However, it is my experience, and that of many other noble Lords who have spoken, that a five-year Parliament historically has been less successful than a four-year Parliament, and that the fifth year is always a tired and weary year, when the authority of the Government is running down and may or may not get renewed. It is often a very bad-tempered year, with constant demands from the Opposition for the Government to resign and put their record to the electorate. I will not quote names, but many Ministers in the fifth year of a Parliament want to retire but know that it would be disloyal to the Government to quit when an election is coming at a proximate but indeterminate date. A Parliament gets tired and needs refreshing. It is almost a relief when the election comes and a new Parliament can, with renewed vigour, come into operation with a new Government, although not necessarily of a new party. All sorts of things contribute to that. Members of Parliament announce their retirement during the course of a Parliament, but there would be far more such announcements towards the end of a five-year Parliament than towards the end of a four-year one. I had better be careful how I say this but people who know that they are retiring do not give it quite the full welly as they would if they thought they might be sitting in the following term.

There is also a practical problem. This is probably rather an esoteric point but I think that many in the Chamber will recognise it. With fixed five-year terms, when you have to commit yourself to fighting the next general election, which is normally around half-way through a Parliament, you are committing yourself to remaining in Parliament for at least eight years—no one dares to call a by-election these days, or at least they do so only very rarely—and that is a very big commitment to make, certainly when you get to about your mid-50s.

Therefore, in terms of the last year, there is a significant difference between a five-year and a four-year Parliament. Of course, this country has the advantage of a wonderfully flexible constitution, so we are able empirically to compare what has happened in the past with four and five-year Parliaments. I hope that I have at least attempted to answer the criticism that it really does not make much difference whether it is a four or a five-year term.

The noble and learned Lord, Lord Wallace, may think that I am rather a sad figure but over the weekend I reflected on what he said in his response last week. He said something that threw me—I had not thought of it. I was arguing, as I am now, for a four-year Parliament—not of a fixed term but normally four years—and I challenged him on why on earth a Liberal Democrat within a Government would say that the electorate should be consulted less frequently, because I suggest to the Committee that that is what would happen. I suggested that since the Second World War there would have been 13 rather than 18 elections and the noble and learned Lord said, “Ah, you can’t really assume that that is the case because, under the provisions of this Bill, who knows how many elections there would have been. Some might have been instigated by the two-thirds rule”. On reflection, that is not the strongest of arguments. I hope that in responding to this debate he will at least concede that there could not have been more general elections than there would have been had his Act been in operation, because there is a maximum amount of time that a Parliament can sit. Therefore, it must surely be true that there would have been fewer. I think it is incredibly unlikely that the two-thirds provision would have precipitated an election. The only occasion when there was an early election due to parliamentary activity was when the Jim Callaghan Government lost the vote of confidence, and that would have applied under this legislation. In fact, it might not have applied and poor Jim Callaghan would have had to enter a 14-day cooling-off period, or whatever you call it. That has always struck me as an odd suggestion.

I have a final question for the noble and learned Lord, Lord Wallace. The defence that his leader gave of the proposal for a five-year Parliament is contained in the Second Reading debate of the Fixed-term Parliaments Bill. When challenged as to the justification for five years, he said:

“Leaving aside the very short Parliaments, half of all Parliaments since the war have run for more than four years, so five years is … in keeping with our current arrangements”.—[Official Report, Commons, 13/9/10; col. 625.]

I do not know what he did at university, but it was not logic. That is the equivalent of a batsman saying, “My batting average would have been 100 if you eliminate the ducks”. Basically that is what he is doing in terms of averages. We need from the noble and learned Lord, Lord Wallace, a better justification for five years than has been offered to the Committee so far.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

That is a perfectly fair question, because it is well known that it was Liberal Democrat policy to go for four-year fixed terms. However, it is quite clear that the formation of the coalition caused people to consider their policy and the arguments one way or the other. The coalition has put forward a programme for government. It is a considered view—which, I suggest, is no less right because it is a view come to after negotiation, the negotiations to which Mr Laws refers in the book that the noble and learned Lord, Lord Falconer, is now reading—that that period gives more stable government. The question for this House is, in the light of what has happened, to consider whether five years is better than four. The history of the Liberal Democrat policy on the point does not assist us. We have to bring a new and balanced judgment to the question now before Parliament.

[Lord Cormack]

Surely if five years is what the leaders of the coalition want—I fully understand that, as I have made quite plain—we do not need the legislation for that. How does the noble Lord answer that point? They can have that under current legislation.

[Lord Marks of Henley-on-Thames]

The noble Lord is quite right to point that out, but it has long been Liberal Democrat policy, with which I firmly agree and consider extremely important, that we should have fixed-term Parliaments in the long term, because they make a level playing field. The question that we are considering in the context of the Bill is whether those Parliaments should be for four years or five. It is of no assistance to say that we can fix a Parliament for five years now and decide later. We are determining the right period under the Bill. This Parliament cannot bind its successors, as the noble Lord plainly knows. If a future Parliament should take a different view, it is for that Parliament to legislate, as my noble friend pointed out. However, on consideration of this Parliament and what we should do now, we say that, as a matter of principle, it is right to go for five years.

Understandable concern has been expressed on all sides of the House and by the Constitution Committee about the need for pre-legislative scrutiny. If we accept that there is a need for pre-legislative scrutiny of important legislation, then the first year of a Parliament will generally be given over in respect of important legislation to that scrutiny.

[Lord Cormack]

Not this time.

[Lord Marks of Henley-on-Thames]

I accept that; it gives rise to the concern that has been expressed and that I am, for these purposes, accepting. If it be the case that enactment of legislation starts in year two of a Parliament, and given the point made by the noble Lords, Lord Martin and Lord Grocott, which I think we all accept, that the last year of a Parliament is given over to preparing for a general election, a five-year Parliament leaves a period of three years for positive legislation and a four-year Parliament leaves only two years, because we all accept that inevitably the imminence of Dissolution makes legislation more difficult, as the time is limited in the last year. I suggest to the House that the stability that is required for the convenient and sensible passage of legislation is better achieved with three whole years between the first and last years.

In terms of government rather than simply legislation, I also suggest that four years runs a danger of leading to short-term planning, which inhibits a strategic approach to all forms of activity in government. That point was well made by the noble Lord, Lord Armstrong of Ilminster, at Second Reading.

On the other side, of course it is the case that regular recourse to the electorate is at the heart of our democratic system of government. However, there is no doubt that Governments that are too driven by early electoral considerations may not be the best or most effective Governments. The four-year term in the United States is frequently and rightly criticised for its shortened electoral cycle and for the fact that from far too early in the term the Administration are looking for the prospects of re-election—all political eyes are firmly fixed on the next election.

The last point is this: a shorter term has the effect of depriving the electorate of the time to judge on mature reflection the effectiveness of government policy and legislation. That is particularly true of a reforming Government who reform the way in which the public services are delivered and taxes and benefits are administered, as this Government will and as may be the case with many future Governments. That is the case because the preparations for the Dissolution and an election come at a time when much of what the Government have done during the term, particularly after the first year of the term—this brings me back to the point about pre-legislative scrutiny—has not had time to take effect, so the electorate have not had the opportunity to judge what the Parliament and the Government have done during the term.

The noble and learned Lord, Lord Falconer, laughed when I talked about a matter of principle with reference to what I had previously described, and continue to describe, as a matter of judgment. Of course that is right, but I suggest that the better balance between four years and five years is the one that the Government have struck and incorporated in this Bill as unamended.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, this amendment would mean that an election to the other place could not take place on the same day as an election to this House. The Political and Constitutional Reform Committee in the other place suggested that the Fixed-term Parliaments Bill should be discussed with the draft Bill on reforming the House of Lords so that the two fundamental constitutional issues could be considered alongside each other. Indeed, that somewhat wise committee noted:

“Elections to a reformed House of Lords may well prove a further complicating element”.

Let us pause for a moment to see what considerations and complications might arise. There are two assumptions. The first is that the elections to the other place and to your Lordships’ reformed House would take place on the same day. If that is the correct assumption, I assume that the elections to this House would also be for the same five-year fixed term—if that, rather than a term of four years, is accepted. One has to assume that the term would be shortened should an election be triggered in the other House. In the mean time, what should happen? Will Members of this House be able to resign, for example, to fight a seat in the Commons? Maybe they will be able to resign from this House, having been elected here, for any other reasons via—presumably—the equivalent of the Chiltern Hundreds. If so, what if the following by-elections to this House changed the composition of this House so that the Government in the Commons could no longer get their programme through this House but were unable to call an election in the other place because that is not allowed for in this Bill?

The second assumption is that elections to the two Houses would take place on different days. It is interesting then to ask the question: for how long would Members elected to this House sit and would that be for a fixed term, regardless of what elections were to take place in the other place? What will be the gap between the general elections in which people are elected to the two Houses? On the assumption that they are held on different days, halfway through a Commons parliamentary term your Lordships’ House could change hands so that there was stalemate, but with the upper House perhaps claiming the legitimacy of a fresh mandate and—if elected by proportional representation—a more representative mandate. If this House claimed a fresh mandate in light of current affairs, where would that leave the Commons—unable to challenge it or to refresh itself by virtue of a new election and mandate? Could the equivalent of a no-confidence vote in this House then trigger a response in the other House, to enable it to call an election?

It is worth recalling that our Select Committee on the Constitution noted that, in regard to the triggering of an early general election for the Commons, the Bill should contain a form of safety valve in case the Government lost,

“the confidence of the Commons or where a political or economic crisis … affected the country”.

However, either of those, should they happen, might be felt most quickly in your Lordships’ House—should an election here come swiftly after, or even during, such a crisis—and change its composition so that this House felt it more truly reflected the current views of voters. The new elected House might then almost make things ungovernable if it felt that it had to restrain the Commons from action that the electorate had demonstrated would displease it.

These are exactly the sort of questions that will in due course be debated with regard to the plans for this Chamber. However, it seems odd that we will entrench the date for the elections to one part of Parliament without any reference to elections to the other part. Perhaps, therefore, at the very least, the Minister will simply clarify whether the first tranche of the elections to this place is also envisaged for 7 May 2015, and the next tranche for May 2020. If not, what are the ideas about the harmony of the two Chambers, given the provisions of the Bill? I beg to move.

[Lord Cormack]

My Lords, the noble Baroness has done us a real favour in introducing her amendment. It is a mischievous one, as she knows, but she has brought before us a subject that may come again. Personally, I hope it does not. As one who believes strongly in the virtue and value of a non-elected second Chamber, I hope that this Chamber will not be abolished and replaced by another. The noble Baroness has indicated the sort of things that could happen if there were two elected Chambers. There is the challenge over which is the more legitimate, and the challenge as to whether you can possibly—even though you may wish to—retain the supremacy of the other place if a second Chamber here is elected. Many of us believe that you cannot. Many of us believe that it is far simpler, better and less ambiguous to have one mandate held by one House, rather than a mandate divided between two.

It will be interesting to see whether my noble and learned friend the Minister can give us some of the answers that the noble Baroness sought. He ought to reflect, as should others in government, on the wise words of Ernest Bevin, one of the greatest Foreign Secretaries that our country has had in the past century. Talking of some political problem, he said:

“If you open that Pandora’s box, you never know what Trojan horses will jump out”.

I urge the wisdom of those words on my noble and learned friend before he replies.

[Lord Falconer of Thoroton]

I agree with the noble Lord, Lord Cormack: we are grateful to my noble friend Lady Hayter for raising these issues. It is important to emphasise that the Government have put forward these proposals for constitutional reform so that they are all part of a package. The three parts of the package are the Parliamentary Voting System and Constituencies Bill, the Fixed-term Parliaments Bill and the House of Lords Reform Bill. It is important for the noble and learned Lord to give at least some answers to what my noble friend Lady Hayter has said, but there is a more important underlying point. At Second Reading, the noble Lord, Lord Rennard, said to my noble friend Lord Rooker, “Oh, you can’t say that, because we voted for the Parliamentary Voting System and Constituencies Bill on the basis that it is a five-year fixed term”. I very much hope that we will not hear any more of that sort of talk from the Government, because they were given the opportunity to put the Fixed-term Parliaments Bill together—

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, we have gone down that path many times and have indicated that we intended this should be a first-term Bill. I have made it very clear on a number of occasions when this has been raised that we believed it was important that at a very early point in this Parliament we should establish that it would run to a particular fixed date, and that we wanted to ensure the principle of fixed-term Parliaments. However, no one can say that there has not been ample opportunity, in the length of time which I described in responding to an earlier amendment, for both Houses to have plenty of opportunity to look at a relatively short Bill.

[Lord Cormack]

My noble and learned friend talked about the scrutiny committee of both Houses. Can he give an absolute assurance that on that committee there will be Members who do not believe in a fully or partially elected House so that it can reflect the wide range of opinions in both Houses of Parliament?

[Lord Wallace of Tankerness]

My Lords, I am in no way trying to dismiss the suggestion that my noble friend makes. I am not in a position to indicate how that committee will be established. No doubt there will be nomination procedures from both Houses. I suspect that it would be rather odd if a contrary view or two was not expressed on it, but I am not in a position to indicate that ahead of the Bill being published. I assure the Committee that the timings of elections to the reformed second Chamber has been considered carefully by the Government and the proposals will be in the draft Bill.

I certainly take my noble friend’s point that, having spent most of the time on the Parliamentary Voting System and Constituencies Bill listening to the Opposition saying that the Bill should be split, it is somewhat intriguing then to be told that not only should it be split but that two other Bills should be added on to it. I do not think that the experience of the CRAG Bill in the previous Parliament, where numerous constitutional principles were put together under the one heading of a constitutional reform Bill, was necessarily the most satisfactory experience.

The noble Baroness mentioned entrenching the election date for one House while the other was pending. At least it will be known when this Bill has got on to the statute book what Parliament has agreed with regard to a fixed-term election. If this Bill had not come forward and we did not have fixed-term Parliaments, an election to the other place could have happened at any time. The potential for some of the confusion and concerns to which the noble Baroness referred would have been multiplied many times over if it was proposed that this House should have a fixed term while the other place could have elections as and when the Prime Minister of the day thought best to call them. Therefore, when the Joint Committee of both Houses considers the draft Bill, it will do so in the knowledge of what Parliament has passed in the context of fixed-term Parliaments. This Bill deals with dates of the general election to the other place. These should be set before we consider the dates of elections to the reformed second Chamber. There will be ample opportunity to discuss elections to this Chamber when the Bill is published in draft form and, I suspect, plenty of further opportunities to discuss it when the reality of the Bill comes before the other place and your Lordships' House. I invite the noble Baroness to withdraw the amendment.

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[Lord Grocott]

My Lords, I am very conscious of the fact that we probably have only about 10 minutes before we ought to break for dinner. These things fall as they do, but I hope that I may be presumptuous enough to suggest that this is an important amendment. It is a simple one and says straightforwardly that if we are to go down the road of fixed-term Parliaments over five years—I am opposed to that—there is a very strong case indeed for saying that there should be annual Sessions of Parliament, and that it should not be within the remit of government, having fixed the Parliament, then to be allowed absolute flexibility over the length of Sessions.

I perhaps would not have thought it necessary to put this amendment down and in effect legislate for the Session of a Parliament were it not for the very bad experience of the current practice whereby, to my amazement, last September the Government announced that the first Session of this Parliament would last for two years. So far as I know, this was done without any consultation, although the noble and learned Lord, Lord Wallace, can correct me on that. That was an extraordinary unilateral decision to make. The only defences of it that I have heard are, “This is the first Session, so we have a lot to do”, or the rather feeble defence that it is only five months longer than the first Sessions of Parliament have often been in the past. Speaking as a former Chief Whip, I can say only that if you had said to me, “It is only five months”, five months longer for a Session of Parliament for any Government is absolute gold dust. It is a discipline on Governments who are putting in their legislative programme to do that within a 12-month period. I remind the House of the current situation before I explain why it is essential, when faced with this fixed-term Parliament, that we legislate to ensure that Sessions are at least annual.

At present, Governments normally decide around September each year—perhaps a little earlier—the date of the Queen’s Speech. I do not know the details of the negotiations between No. 10 and the palace, but I know, as the Committee knows, that we all understand that normally there will be a Queen’s Speech in November each year. Occasionally, it has drifted into December. That is excepting the Queen’s Speeches that come after general elections, which can come at any time—although they cannot come at any time if the Bill becomes an Act. We know that Governments work within a parameter, which is usually some time in November. There is the usual argy-bargy whereby if a Queen’s Speech comes too early, it is because the Government do not have enough legislation and are running out of steam; or if the Queen’s Speech comes too late it is because the Government have lost control of their legislative programme. However, the parameter means that there is a discipline that gives a big advantage to the Opposition—because parliamentary time is valuable, as we know only too well—and the Government really have to get their act together, manage their programme, and finish it within the 12-month period. To extend unilaterally the normal length of a Session is an abuse and is certainly to the massive advantage of the Government.

I do not know whether I should say this in anger or in envy, because anyone involved in managing a Government’s legislative programme every year has the nightmare period of October and early November when you are trying to fit a quart into a pint pot, you know that you have to do it and that you have to observe the conventional gaps between the stages of Bills—or at least you used to have to observe them; this Government do not have a good record on that aspect of our constitution. However, you know that there is a discipline within which you have to work. Moreover, both Houses—the Commons and the Lords—have recognised this process as important. Both Houses have procedures to enable Bills to be carried over. We have all been familiar with the debates that allow, in exceptional circumstances, individual Bills to follow a recognised constitutional procedure—if I may put it as grandly as that. Motions have to be passed and so on. There is a recognition that either House of Parliament can breach the annual sessional understanding only if the Government obey certain rules in relation to individual Bills and do not do that as regards their overall programme.

I do not know whether I should be angry or envious about the fact that the Government have unilaterally given us a two-year Session. I just wish that I had thought of it. When we were in government I wish that I could have thought, “Blimey, I don’t need to worry about getting these Bills through in 12 months; let’s just postpone the Queen’s Speech for another year or however long—whenever it is convenient to the Government to decide when the Queen’s Speech should take place”. Given that we have had all this hyperbole from the noble and learned Lord, Lord Wallace, and others—not very convincingly—about the Government or the Prime Minister giving away power regarding fixed-term Parliaments, I hope that he will acknowledge, if he believes that argument, that they should give away the power of unilaterally being able to decide when a new Session of Parliament should begin.

By having this two-year Session, the Government have breached an important convention of both Houses. It is reasonable for those of us who are concerned about this to say that we now need to enshrine the proposal in my amendment in legislation. I cannot think of any good argument against, if you know when general elections are going to be, why you should not also determine when the Sessions should be. I beg to move.

[Lord Cormack]

My Lords, briefly, I agree with what the noble Lord, Lord Grocott, said. I very much hope that my noble and learned friend will be positive in response. There is nothing that we can do about this extended Session. It will last until May next year. I regret that. Sessions should last as near as possible for a year, and if we are to move to fixed-term Parliaments, the obvious thing is to have the state opening for each Session in the May of each year. I hope that my noble and learned friend will give me some comfort when he responds.

[Lord McAvoy]

My Lords, I rise briefly in support of the principle in my noble friend’s amendment, because it would bring a discipline into what has happened ever since this Government took power, which has been the continual tampering with the constitution for petty party-political advantage. That is a fact of life. I do not like to be provocative, but I am trying to find the words that would best describe this matter. I have mulled over words such as “sleazy”, but if I continued, my words would probably be unparliamentary, and I would not wish to be responsible for any more damage to the office furniture. However, as a former business manager in the Commons, I consider that we are dealing with a completely foolhardy approach to the constitution. We have conventions here, but ever since the advent of this coalition, particularly for the party advantage of one of the partners in the coalition, the majority party opposite is being driven along to stay in power. Precedents are being set that are damaging to the conventions of this House, the other House and the constitution. I appeal to Conservative Members of the coalition, such as the noble Lord, Lord Cormack, whose comments are welcome, that it is past the time that they should put a stop to the roughshod treatment of the constitution.