Justice and Security Bill [HL]
Lord Falconer of Thoroton Excerpts(12 years, 3 months ago)
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Lord Butler of Brockwell
I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,
“must have regard … to the objective of protecting the interests of justice and fairness”,
followed by subsection (b).
Lord Falconer of Thoroton
If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,
“overriding objective of protecting the interests of justice and fairness”,
as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.
Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,
“necessary to protect the interests of national security”.
The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.
Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.
Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.
Justice and Security Bill [HL]
Lord Falconer of Thoroton Excerpts(12 years, 3 months ago)
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Baroness Stowell of Beeston
I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk.
The important points of principle for certainty are generally dealt with on the face of the open judgment. When that is published, the certainty that the noble Lord looks for will be provided. Sensitive details of the case may not be released but this does not mean all details will be placed in closed judgments. Judges are well accustomed to considering what material is published in a final judgment. At the moment the media and the public do not get this information. Instead, they are left with accusations that have not been investigated.
Lord Falconer of Thoroton
From what the Minister said, I am not clear whether it is envisaged that the fact of an application being made for a closed material proceeding should be kept secret. I had not understood that that was the purpose of the Bill or that any rules of court could be made to make the fact of the application secret. What is the Government’s intention towards that process? Is it intended that there will be certain circumstances when even the fact of an application under Section 6 is to be kept secret?
Baroness Stowell of Beeston
As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public, but that does not mean that all applications would be kept secret. If necessary, I will come back to clarify that point for the noble and learned Lord.
On the points covered in proposed new paragraphs (d) and (e), to which all noble Lords have referred, about closed judgments and the point at which they may no longer be considered classified or secret and could be made public, I refer noble Lords to the extended debate in Committee last week when my noble and learned friend made the following point:
“The Lord Chancellor's code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives”.—[Official Report, 17/7/12; col. 209.]
However, we are considering this matter and will continue to do so between now and Report.
My noble friend Lady Berridge referred again to the database of closed judgments. I responded to her last week, I believe, that that issue is now in hand because of the useful contributions from the JCHR on this matter. She went on to ask whether it could go beyond the head notes to form cases. I do not have an answer for her at the moment but I will, of course, come back to her. As to the very specific points raised about the same issue by the noble Lord, Lord Pannick, I believe that I have already covered those in the remarks that I have just made.
In conclusion, we are discussing points of fundamental importance concerning freedom of the press and public trust in the justice system. I will come back to the noble and learned Lord on his point, but I hope that I have been able to demonstrate that the Bill will help to enhance transparency and public trust rather than undermine them, and in doing so we will reinforce the principles of open justice while protecting the UK’s national security.
I noticed the noble and learned Lord looking at me rather sceptically then. Before I sit down, I think that it is worth repeating that during this process only some material will be considered in closed proceedings. The material that will be in open proceedings will be accessible to the media, and there will be more than there is at this time. The arrangements being considered will ensure that the media will have access to the cases in a way that is consistent with their responsibility to report and to hold the Government to account, but, as I said at the start, they do not have a formal role in that process. Primarily what we are looking for in this Bill is that we are allowed to ensure that justice is done where it has not been seen to be done previously. That is an essential part of what we are trying to achieve. I hope that my noble friend feels able to withdraw her amendment.
Baroness Berridge
My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.
These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,
“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—
he means in the context of the Green Paper.
Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.
It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.
However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.
The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.
I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.
It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.
I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.
In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.
I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.
Lord Falconer of Thoroton
My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.
As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.
That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.
The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?
The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.
I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.
It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.
Lord Lester of Herne Hill
My Lords, the noble and learned Lord has expressed his opinion so clearly that I find it very difficult to ask him a question. The burden of what he is saying is that he thinks that the solution is an absolute ouster clause—something that makes the Minister’s certificate conclusive in all circumstances. My understanding is that that is not the position under the law of the United States. Even with its State Secrets Protection Act and its Patriot Act, it does not go that far.
The evidence in the Binyam Mohamed case that was given by Mr Morton Halperin was that intelligence services in both countries recognised that there are some rule-of-law exceptions. What troubles me is that there are cases now pending in the European Court of Human Rights with names such as al-Nashiri, I think, where the court is requiring States parties to disclose information where there are allegations of rendition and torture. Will the noble and learned Lord at least accept that the Bill could limit the power of the Secretary of State to certify so as to exclude the grossest cases of human rights violations so that it is not completely absent, that being an obligation on the Secretary of State that might or might not be traditionally reviewable?
Lord Falconer of Thoroton
There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.
On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.
If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.
Baroness Manningham-Buller
My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.
If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.
The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.
The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.
It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.
I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.
Lord Falconer of Thoroton
My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.
Lord Butler of Brockwell
My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.
I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.
Justice and Security Bill [HL]
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Lord Thomas of Gresford
I respect the views that the noble Baroness has just put forward, but I do not think that public confidence is improved if a closed judgment is given on closed material to the Government in a particular case. It is essential that the public know what is going on as much as is conceivably possible. The interests of national security can be invoked in only the smallest area of cases if confidence is to be maintained.
Lord Falconer of Thoroton
The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.
The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.
I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.
As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lord Hodgson of Astley Abbotts for putting forward these amendments and for indicating his concerns: that we should be seeking fairness and reflecting on the possible impacts upon society.
I repeat again the passage from paragraph 2.5 of the Green Paper, which is pertinent here, where the Government assert that the,
“appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
Inasmuch as we are testing this legislation, that is where this House serves an important part of our democratic procedures. Before the dinner break we tested it very well with all the points that were made. I hope that when my noble friend does the outreach he can say that, in trying to ensure no more than is strictly necessary to achieve the proper administration of justice, these tests have been applied and that there has been a very active engagement of Members of your Lordships’ House in trying to ensure that that outcome is reached.
If we are trying to ensure fairness and that there should be no in-built bias, there will be cases where the use of closed material proceedings means that people who might otherwise have been excluded get an opportunity for material to be heard which might well exculpate them. That may be more relevant to one of the later clauses.
The noble Baroness, Lady Manningham-Buller, made a point about fairness. Indeed, it might be important fairness in terms of how the public approach these matters. If the intelligence service, the Security Service, has a full answer to many of the allegations made against it, it is inherently wrong that it should be denied being able to put forward an answer. I perhaps can do no better than again to quote Mr David Anderson QC, much quoted in today’s deliberations:
“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
Bearing in mind these considerations too, I think that all parts of the House are trying to ensure that we find a way forward to achieve the objective.
My noble friend indicated the type of safeguards that he wished to put in. I will not go over them in any detail again but, in response to the previous debate, I think that I explained why the Government do not believe that an exhaustive use of PII before applying for a CMP is appropriate. There clearly will be cases when it could be futile to do so because it is very obvious that to exclude all that evidence by way of PII could render the case that a proper defence could not be put forward.
If my noble friend’s intention is to ensure that CMPs are used only in extremely rare circumstances, I am not persuaded that these amendments are the way in which to achieve that. The noble and learned Lord, Lord Falconer, indicated some of the difficulties inherent in the requirement that there should be no serious risk of injustice. The point to remember is that important safeguards are built into this Bill to ensure that national security is not claimed erroneously and that the fair trial rights of all parties are respected. The court will grant a declaration that a CMP may be used only where disclosure of relevant material would otherwise damage national security. As I indicated earlier, there is a second stage in which the court—with the full engagement of special advocates appointed to represent the interests of an excluded party—will adopt a painstaking process to ensure that only material heard in closed session will be material, the disclosure of which would damage national security.
In addition, I mentioned that the operation of the procedure is explicitly made subject to the right to a fair trial protected by Article 6 of the European Convention on Human Rights under Clause 11(5)(c). In a CMP, the court will make the necessary orders to ensure that the proceedings are conducted in a manner that complies with the article. The judge, with the assistance of the special advocates, will ensure that as much information as possible can be disclosed into open court. If the full document cannot be disclosed, the court will also consider whether it could be disclosed in part through redactions or whether a summary could be provided to the other parties without damaging the interests of national security.
If there is a serious risk of injustice of the kind which my noble friend describes, the court can take the steps which I have described. Equally, if the judge is not satisfied that a CMP has properly enabled the fair testing of closed material he will simply put no weight on it. That approach is the right one in the national security context. A court will grant a declaration under Clause 6 or permit material to be heard in closed session only on the extremely narrow ground that disclosure of material would damage the interests of national security and there are strong safeguards already available to the court.
It is important that we air not only some of the details of my noble friend’s amendment but look at the context in which he proposed it. However, I believe that these balancing considerations have been considered in the proposals before your Lordships’ House. While I do not in any way quibble that these amendments raise an important issue, I hope that I have explained why they are unnecessary, given the other safeguards in the Bill. I ask my noble friend to withdraw the amendment.
Lord Falconer of Thoroton
The noble and learned Lord referred to Clause 11(5), which states:
“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.
He referred to paragraph (c), but I am looking at paragraph (b). Does it mean that, in considering a PII application, the court cannot have regard to the subsequent possibility of a CMP application?
Lord Lester of Herne Hill
My Lords, perhaps I may ask a question related to the same provision. Subsection (5)(c) states that nothing in those sections,
“is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
I take it that what that means is, “in breach of the duty imposed by Section 6 of the Human Rights Act”, which requires courts to act in a way that is compatible with convention rights, including Article 6. One might think about amending that paragraph to make it clear that one is talking about not just the international treaty but domestic law, which imposes that duty under Section 6 of the Human Rights Act. Can thought be given to that?
Lord Wallace of Tankerness
Certainly, it could be thought about. We just wanted to make it clear in the Bill that Article 6 was pertinent. I am answering this to the best of my ability. The noble and learned Lord asked whether Clause 11(5)(b) ousted PII when a court was thinking about closed material proceedings. I am not sure if that was his question.
Lord Falconer of Thoroton
The noble and learned that Lord said before supper, “Oh, well. You could always bear in mind if a PII application was made that the court could say that it was not very keen on it. The much better course would be to apply for a closed material proceedings”. I read Clause 11(5)(b) as saying that you have to ignore the possibility of a CMP application when you are considering PII, because the clause states:
“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.
I am not therefore sure that it would be open to a judge to say, “I am not going to look at PII because I want you to do a CMP”.
Lord Wallace of Tankerness
My Lords, obviously we will reach Clause 11. My understanding is that concerns were expressed in some quarters that what we were proposing in some way ousted PII and that it was, as some of the more extreme comments suggested, dead in the water. The purpose of the provision was to make it clear that PII is not lost in time or space, and that the common-law rules relating to PII are not affected. If that is not a full answer, we can deal with this in more detail when we consider Clause 11.
Lord Thomas of Gresford
My Lords, I support this amendment. I have already made the point that the procedures of the court should be controlled by the judge and not by the Secretary of State. The words “rubber stamp” have been used on a number of occasions, not least by my noble friend Lord Lester, in relation to these provisions. It is a rubber stamp when one combines the provisions in Clause 6(2) with what the judge must do in determining the application, under the provisions of Clause 7(1)(c). This is a point that the noble and learned Lord, Lord Falconer, made in his original submission on an earlier amendment, and we have not followed it up very much. Clause 7(1)(c) states:
“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.
Now, who gives evidence about the interests of national security? It must be, by virtue of the nature of the proceedings, the uncontested evidence of those who are responsible for security. What exactly is meant by the interests of national security is something that I wish to pursue, perhaps at the next sitting of this Committee. In some definitions, it can refer to economic interests, and there are all sorts of others, as well as simply terrorism, which is the context in which we think of national security at the moment. We will need a better definition in due course.
The use of “must” in this clause reduces the judge’s power virtually to nil. The grounds put forward by the Minister may be reduced to the interest of national security, but as I have said, as the Bill is drafted those interests will be defined by the Minister himself. Clause 6(3) instructs the judge to ignore two very relevant considerations: first, that there may be no requirement on the Secretary of State to disclose; and, secondly, that the intercept evidence which the Secretary of State intends to put before him is inadmissible in the very proceedings he is supposed to be judging. If intercept evidence is inadmissible in open court, surely it is inadmissible in closed court. Intercept evidence would have to be normally regarded as inadmissible in such circumstances.
The word “may” will give the judge a discretion to decide what is proportionate and necessary in all the circumstances that come before him. It will give the judge control and power to manage proceedings, and the ability to decide how the procedure will be carried out and which type of procedure would be more appropriate. It will give the flexibility that I talked about in relation to the amendment that we debated earlier.
Lord Falconer of Thoroton
My Lords, this is a key amendment. It has to be read alongside Clause 7(1)(c). The effect of the amendment tabled by the noble Lords, Lord Hodgson and Lord Thomas of Gresford, would be that once it was established that a disclosure to a claimant would be damaging to the interests of national security, it would be open to the court, balancing all the factors for and against non-disclosure, to determine that the case should involve the option for the defendant to have a closed material proceeding. If the position were exactly as the noble Lord, Lord Thomas, suggested, and there was some damage to national security but it was extremely minor and only in respect of one document when there were millions of other documents whose disclosure would not do any harm at all, even if the Secretary of State certified that minor harm would be done, it would be open to the court to say, “Yes, we accept that there will be damage to national security but it does not warrant a CMP procedure”. That would give the judges some degree of control.
Currently, if the Secretary of State for Foreign and Commonwealth Affairs said, “I have spoken to the security services and they tell me that if you disclose this, it will damage national security, and I believe that to be true”, I find it very difficult to imagine that a responsible judge would be able to say no. Once the judge has said yes to that proposition, he or she would be obliged under Clause 6(2) to say, “This is now a case in which an application can be made”. The consequence of that is that Clause 7(1)(c) would apply. Rules of court would have to be made that would then allow the Secretary of State or the relevant party to make an application. If in respect of an individual document or piece of information the Secretary of State says, “I have spoken to the security services and they tell me that disclosure of these 25 documents would damage national security in quite a mild way”—they would not say that, but let us imagine that they did—the judge would have no discretion.
The correct course, if the case is made that we need to change the legal position, is that the judge should have a discretion. Again, I emphasise that what the Bill is trying to do is not protect national security—that can be protected by the case being pulled—but ensure a fair trial. I look to the noble and learned Lord to justify the fact that there is no balance and no discretion. Why is there an obligation to opt for CMP even if the damage to national security would be very mild? The noble Lords’ amendment would get round this and give the judges real discretion.
Lord Wallace of Tankerness
My Lords, I know my noble friends are trying to be helpful and I am sure that equally they will understand why I am not prepared to make a concession on the hoof, as it were. This is clearly something one would wish to consider and clearly we will also have the opportunity in good time to consider my noble friend’s Amendment 58. I am glad that he made the distinction between getting through the gateway—which is what Amendment 45 applies to—and the second stage. We are of the view that if the two tests in Clause 6(2) are satisfied to the discretion of the judge, the application for the closed material procedure must succeed and thereupon the detailed consideration of the documentation takes place under the rules of court, which are to be set out under Clause 7.
Lord Falconer of Thoroton
I understand that the noble and learned Lord is seeking to say that there is no discretion to determine whether the threshold is passed. However, something akin to a discretion is reached in Clause 7. Looking at the wording of it, the Clause 7 requirement is rules. Under Clause 7(1)(a), you are not allowed to have the claimant present when you are looking at the individual material. If the court is satisfied that there is damage to national security, it has give permission for it not to be disclosed. It is not a discretionary matter. It is simply determining, as the noble Lord, Lord Thomas, said, whether the threshold is met. If the threshold is met, there is no discretion. One additional power is given; namely, can a summary be given that does not give away the national security material? It is not a question of proportionality. It is exactly the same test in practice as that which is referred to in the gateway in Clause 6(1). If the Secretary of State says, “If you disclose that document I am advised by the security services that it will damage national security”, unless the judge thinks that the Secretary of State is irrational, which would be very rare, he will be obliged to give effect to that. It is not a question of discretion at all. There are no balancing factors. It is simply, “Right, the consequences are that I cannot disclose that. Can a summary be given?”. That is the only thing that a judge is allowed to consider under this Bill. Although I understand what the noble and learned Lord is trying to say, it is not really right to say that there is a gateway under Clause 6 and then some sort of discretion under Clause 7. There is not a discretion under Clause 7.
Lord Wallace of Tankerness
My Lords, I make the following point in response to what the noble and learned Lord says. He is right to say that Clause 7(1)(d) would give rise to gisting. However, under Clause 7(1)(c), it may well be that after representations, argument and debate a document is redacted, and of course the redaction may well be the material that should not be disclosed because it is the material which could be damaging to national security. However, once redacted, the remainder of the document might then be admitted to open proceedings. That is an important part of the process. It is not a blanket application to the document as a whole. It may be that the non-disclosure extends to only part of that document. Only part of that document would be a matter of damaging national security. For example, it could be that a document gives the name of an agent. If that was redacted, the rest of the document could well be admitted to open proceedings, but the name of the agent is something which quite properly should not be disclosed.
Lord Wallace of Tankerness
The noble and learned Lord says that it would not get through the gateway, but it is not a gateway for every document. It is a gateway to trigger the closed material proceedings. It may be a sample document saying, “Here is the kind of defence we want to mount. There is material here on which we will wish to rely but it cannot be put into the public domain because it would be damaging to the interests of national security”. If the judge agrees that there is documentation there that would satisfy that, the application is granted and thereafter the documentation or evidence is gone through page by page. It may be that you can take something out of a document and the rest of it would be quite safe from the point of view of national security to allow into open proceedings.
That is the process that we envisage being gone through at stage 2. It is an important part of the process, which means that only a small amount of material would be subject to closed material proceedings. However, to get to that process of going through material document by document, you must first get through the gateway. It is on getting through the gateway, if the two tests are satisfied, that the application should be granted. Going back to my noble friend’s amendment, he argues that there should be some discretion at that point. The Government’s position is that the two tests should be met but can be challenged. Special advocates can be involved at that stage to challenge whether the tests have been met. However, if they are met, we should get through the gateway and, thereafter, we can look at issues such as redaction and gisting. That is an important part of the stage 2 proceedings.
Justice and Security Bill [HL]
Lord Falconer of Thoroton Excerpts(12 years, 3 months ago)
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Lord Lester of Herne Hill
I am grateful to my noble friend for the way in which he introduced the amendments. It makes my task brief and rather less sophisticated. I will make a number of points. First, the report of the Joint Committee on Human Rights on the Green Paper summarised, in paragraph 97 onwards, the main differences between PII and CMP. It pointed out in paragraph 103:
“The Government’s position in the Al Rawi litigation”—
in which I appeared for a third party—
“was that it should be for the courts to make the determination and the Green Paper does not explain what has changed the Government’s position since that case”.
The Joint Committee emphasised the importance of a judge rather than a Minister making the determination. The germ of the idea of putting the horse before the cart rather than the cart before the horse—that is, putting the balancing of PII first and CMP second—came from Mr David Anderson QC in his evidence to the committee.
It is my impression that our allies in the United States are much more concerned about the Norwich Pharmacal point than they are about the closed material point. The closed material point is very much a matter of procedure in which it is not suggested that Wiley balancing, as it is known, would in any way jeopardise national security if it were considered to be the first step in that procedure.
The advantages of considering PII first are that it makes it less likely that there will be an unnecessary resort to CMP. I am agnostic—even though I am a party to our amendment—about the way in which this can be expressed. The noble Lord, Lord Hodgson, has another way of doing so, and no doubt it would be easy for the Government to find a way of doing so. I am concerned with the principle, which is that it should be for the judge and not the Minister to determine at the outset of a case whether to rush into the CMP procedure or to ask whether PII is desirable.
Lord Falconer of Thoroton
Perhaps I should put this question to the noble Lord, Lord Faulks. I very much applaud the efforts made to produce the amendment, for which I have considerable sympathy, but I am confused by one proposition. As I understand it, under the amendments tabled by the noble Lords, Lord Hodgson, Lord Faulks and Lord Lester, the court has to say, “We are not going to disclose under PII before we get to the possibility of a closed hearing”. In reaching that conclusion, the court has to exclude the possibility of a CMP hearing: it will approach the case on an ordinary PII basis. I can easily envisage a situation where a judge says, “It is a finely balanced case, but I have decided to order disclosure because a fair trial would be so damaged, even though significant damage will be done to national security”. Under the amendment of the noble Lords, Lord Lester and Lord Faulks, that fine balance would have to be struck before getting to CMP. It seems an odd conclusion. Am I right in my analysis of the amendment? If so, why is it put like that?
Lord Lester of Herne Hill
I did not understand it to impose that degree of rigidity. If it does, then I respectfully agree that some modification of the wording is necessary. I want to deal briefly with one or two other points.
The noble Lord, Lord Pannick, may want to say something himself about the Government’s response to the Constitution Committee’s report, which analysed the three flaws, as the committee saw it, in the existing scheme. I read and reread this government document and it gave me a headache because I simply did not understand what it was saying. It seems to be saying that there is very little difference between PII and a CMP, that there would be the same flexibility in a CMP as in PII, and that, having gone through a CMP, the judge can in any case go back to PII. It must be my fault but I simply do not understand what the Government’s settled position in that document really is. The Government say that the judge would have a number of important tools in a CMP to ensure that it was conducted fairly. They say that there is a similar level of flexibility to that available to the judge under PII. They say that it should be exceptional to use a CMP. All these points are certainly interesting but my basic point is on Wiley balancing. The noble and learned Lord, Lord Woolf, was responsible in his judgment in Wiley for articulating that Wiley balancing should be open to the judge first and that a CMP should be an exceptional procedure following it and that at all stages national security and other vital public interests should be preserved.
I have just one question for the Minister. Does he agree that there is no case in which an English or Scottish judge has breached national security or not shown the appropriate degree of deference to the executive branch of the security and intelligence services in his or her final adjudication? I ask that because I am very concerned that across the Atlantic there seems to have arisen a complete misunderstanding that our judges cannot be trusted with state secrets and national security. I do not know how that came about. My guess is that it arose in dialogue during the Binyam Mohamed case, especially at the Divisional Court level. However, it seems to me vital, as a matter of public record, that the Government make it absolutely clear that our judges can be trusted and have a fine record of trust of that kind.
Lord Pannick
The noble Lord is absolutely correct. In my experience of both civil and criminal cases, the relevant material is presented to the judge by the public authority that has possession of it. The claimant does not see the material. The judge will determine the PII application either by reference to a general description of what it contains or, in appropriate cases, the judge will privately see the material and determine the PII application. Therefore, the noble Lord is absolutely right. Other than in wholly exceptional cases, the claimant will not see it. The point, however, is that it is only if the judge decides that the information may be seen by the claimant—or the defendant in a criminal case—that the material is taken into account by the judge in determining the substantive issues in the case.
That is the advantage of PII: it avoids the case being determined on its substance by reference to material that only one side has seen. If the judge says that PII excludes this material, it is not made public, but equally it is not taken into account by the judge when he determines the case. The whole point of this amendment—as far as I am concerned; I cannot speak for my co-signatories—is that surely the law should seek to ensure that the PII process is gone through in order to identify whether it can provide a satisfactory solution, as it very often will, before we go to the wholly unsatisfactory in principle procedure of the judge deciding the case on its substance by reference to material that only one side has seen.
PII can ensure that even the most sensitive material can be seen by both sides in the case through this means. PII is often used in practice to ensure the redaction of sensitive material so that what is— properly—disclosed to the claimant is not the whole of the document but a redacted version; for example, the names of security agents are removed, or only the gist of the material is disclosed and the judge decides the substance of the case by reference to that document rather than the sensitive material. The amendment seeks to ensure that that process is gone through before there is any question of a closed material procedure.
The noble and learned Lord, Lord Falconer of Thoroton, says that in PII there is supposed to be a balancing process and the judge might decide that this is very sensitive material but the public interest outweighs the sensitivity, which would leave us in the same difficulty. There are two answers to this. The first answer is that as given by the noble Lord, Lord Lester of Herne Hill. Nobody can point to any case where the judge deciding a PII application has decided to reveal something that the security services or the public authorities in general regard as sensitive. Judges do this job with enormous sensitivity and with very considerable knowledge of what is required by the public interest.
Lord Pannick
We know that because there is absolutely no evidence of which I am aware of public authorities appealing against PII decisions and saying that it is unacceptable, because sensitive material or any other public information is going to be revealed by the judge.
However, there is a second answer to the noble Lord, which is that under a PII application, even if the public authorities take the view that the judge has balanced matters and decided to reveal that which is sensitive, the public authority has no obligation to reveal it. It can decide that it would rather lose the case than disclose this information. That is why we need a procedure for CMPs, because there may be cases where PII does not produce a satisfactory result for public authorities. I am prepared to accept this, not least because David Anderson QC, the independent reviewer, has concluded that there ought to be such a procedure. My point is that it ought to be a last resort, rather than a first resort. My fundamental objection—
Lord Thomas of Gresford
That is a matter for clarification by people who know about it and we will look into that later.
Lord Falconer of Thoroton
I am impressed by what has been said about the opportunistic opportunities that this gives. At the moment I am bewildered by what it is suggested the claimant would want to use closed material proceedings for. I can see the point about the appearance of equality of arms, but it strikes one initially as being a slightly odd conclusion to reach. I am sympathetic to the idea that the courts should make sure, as the noble Lord, Lord Pannick, is saying, that every other option has been tried, but I would be grateful if the noble Lord, Lord Thomas, would explain what are the circumstances in which the claimant—a man such as Binyam Mohamed in an ordinary civil litigation—would want to keep things secret. The noble Lord, Lord Lester, is going to answer.
Lord Lester of Herne Hill
I wonder whether this is helpful. In the case of Binyam Mohamed there was a parallel case in the district court of Columbia by another Guantanamo detainee facing a capital charge. This was a habeas corpus case and the question was whether Binyam Mohamed’s evidence, which had pointed to this man as an evil rogue, could be relied upon. The applicant in the habeas corpus case wished to show that Binyam Mohamed had been tortured, so the federal court had to decide that question. It was very much in the interests of the applicant for habeas corpus that that “closed”, secret material be placed before the court to exonerate him. In the end, Judge Kessler came to the conclusion, since it was not contested by the American Government, that he had been subjected to gross ill treatment and that this other man should be granted habeas corpus because Binyam Mohamed’s evidence was unreliable by being induced by torture. That is a real-life example in the context of habeas corpus in which it was in the interests of the applicant to rely upon that material.
Baroness Manningham-Buller
My Lords, I hesitate to rise in this very interesting debate, which has been monopolised by noble and learned Lords. I am not learned, so the point I would like to make is a practical one and very short. As the independent reviewer of terrorism has noted, there are a very few cases that are so saturated with extensive roomfuls of highly sensitive material that talking about the odd document and the residue will not work. I make that point because I think there are these very few cases where the whole case is substantially based upon highly sensitive material, and we need to be aware of that.
Lord Falconer of Thoroton
It has been an excellent debate. I would like to single out for special mention the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Manningham-Buller, the only two non-lawyers who participated. It is important that we put this debate into a non-legal context because normally the legal answer that follows comes from the facts.
In the next two days of Committee we shall deal with two completely different problems. The problem we are dealing with here is not ultimately the protection of national security; it is how there can be fairness in a trial brought by a claimant for damages when he alleges things against the Government to which they may well have an answer which if disclosed to the claimant would damage national security. I say that national security is not in play in this first group of issues is because ultimately the state can refuse to disclose that material in litigation. They can protect national security that way, and indeed they will, but at the cost, as they would see it, of unfairness to them in not being able to deploy their full case.
In this first group of amendments—those to Clauses 6 and 7—we are dealing with fairness in the context of a claim for damages or judicial review being brought against the state. Just picking up what the noble Baroness, Lady Manningham-Buller, said, which seems absolutely right, it is easy to envisage a situation where a Minister or government department has come to a conclusion based entirely on intelligence material which would in this hypothetical case reveal the reason they came to it, but they cannot disclose a word of it because it would damage national security. That is the situation that the first section of this debate is dealing with—fairness.
The second group of amendments—which we shall come to, perhaps, in five years’ time at the rate we are going at the moment, having had an hour and 38 minutes on this absolutely fascinating topic—is not ultimately to do with fairness but with national security. The amendments touch upon Norwich Pharmacal orders, where the court can order disclosure of information or documents to a claimant and the defendant is not able to say, “OK, we leave the pitch here and we do not agree to any of that”. They must, under the current arrangements, disclose things, and that has two potential affects—
Lord Lester of Herne Hill
I am just wondering whether it is right for the noble and learned Lord to put these issues into such neat boxes. Let us take the case of Binyam Mohamed and assume that there was closed material procedure so that the Government would not have had to pay a lot of money to settle the case. That would be a case saturated with national security on both sides. I am not speaking with any personal knowledge of the case, but Judge Kessler in the United States would have looked at the material showing serious ill-treatment. He would have wanted that material to be put forward. No doubt there would have been material within the intelligence and security service showing that Mr Binyam Mohamed was not an ideal citizen. Both sides would have been reliant upon heavily saturated material from the intelligence and security service. Therefore, I suggest national security would be involved in the first category as well as the Norwich Pharmacal one.
Lord Falconer of Thoroton
I have read the eight judgments in the Binyam Mohamed case and, although it was dressed up as a judicial review application at one stage, the case was essentially an application for a disclosure of documents and is therefore a Norwich Pharmacal case.
Lord Lester of Herne Hill
I am talking about when he was seeking damages in the civil claim after he had been released and brought back to this country. That is the process to which this would be relevant.
Lord Falconer of Thoroton
Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.
This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.
Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.
What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,
“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.
In relation to those cases, it was his view that,
“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,
except in closed proceedings.
David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.
In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.
I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.
Baroness Berridge
There is a slight update on the position of the Joint Committee on Human Rights. As a result of Mr David Anderson QC seeing those cases, he came back to give evidence to us. The suggestion was put to him that the special advocates look at those three cases. After he saw those cases and said what the noble and learned Lord has outlined, we received representations saying, “That is not a correct procedure. We need to go in as well to see those cases and to see whether they cannot be dealt with”. At the moment, I believe that the special advocates with security clearance have been invited to go in and look at those cases, so that we can have two views on whether those cases can be determined under the present system.
Lord Falconer of Thoroton
I was aware of that. The Joint Committee on Human Rights said:
“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.
So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.
On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.
There is a little bit of movement on the other side in relation to that. I say that because Clause 6(1) states:
“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.
There is no balancing of any sort before you get to the declaration of Clause 6(1).
Clause 7(1)(c) makes provision for rules of court and states that,
“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.
Once even the most minor damage to national security is established, the door comes down and you do not disclose.
I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.
The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.
What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.
Lord Lester of Herne Hill
The spirit of liberty is the spirit that is not too sure that it is right, but I tried to indicate agnosticism about the precise way of approaching it. I entirely agree with the noble and learned Lord, with the noble and learned Lord, Lord Woolf, and with my noble friend Lord Thomas of Gresford that flexibility is key and that if we can achieve that, we do not want to put it into a straitjacket. We simply produced a form of words that were an attempt to be formal but were not intended to be the last word at all.
Lord Falconer of Thoroton
I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.
With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.
Lord Woolf
I was saying that PII should be left flexible. I was not suggesting that you could do without legislation.
Lord Falconer of Thoroton
That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.
Lord Thomas of Gresford
I think I made precisely that point—that it was not equality of arms but a step towards equality of arms, and it was better than the present situation.
Lord Falconer of Thoroton
Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.
Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.
Lord Wallace of Tankerness
My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating all who have taken part in the debate. It has been very helpful. I certainly welcome the spirit in which various proposals were put forward.
Perhaps I may deal first with the noble and learned Lord, Lord Falconer, who said that he remains to be convinced. I noted that most other contributors to the debate thought that there were cases, albeit a small number, where closed material proceedings would be required. He quoted David Anderson QC, who has had access to some of the material and has been satisfied. There is only a small number of cases. No one is claiming that there is a huge number, and I will come on to that in a moment. There is the experience of people such as the noble Baroness, Lady Manningham -Buller, who have seen the kind of cases where this issue could arise. I generally agree with the analysis where the noble and learned Lord, Lord Falconer, indicated at the outset of his speech that there were two different issues here—fairness in civil proceedings that by their nature are not of the Government’s instance, and other cases that we will consider later in Committee with regard to Norwich Pharmacal.
We are trying to secure fairness. The Bingham Centre for the Rule of Law, which has been quoted and referred to in this debate, said, in its response to the public consultation that,
“we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law”.
We are seeking to ensure that there is material there and, if so, that it can be placed before a judge, obviously subject to safeguards, and that if national security issues are involved they would not be prejudiced by the material coming into the public domain.
I detected in the debate a sharing of that objective. It is perhaps worth reminding the Committee that in the Green Paper that the Government published last year, we made it clear in paragraph 2.4 that:
“CMPs should only be available in exceptional circumstances, and where used, every effort is and should continue to be made to have as much material considered in open court as possible. But in the small number of cases where sensitive material is crucial to the outcome, it is better that the court should be able to decide the case, despite the additional complexities a CMP might create, than—in a worst case—that the case should not be tried at all”.
We also said in paragraph 2.5:
“An appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
I hope that that provides reassurance to a number of my noble friends; the noble and learned Lord, Lord Woolf, emphasised the importance of it—as did the noble and learned Lord, Lord Falconer.
Perhaps I may first address the amendment of my noble friend Lord Faulks. It would introduce a system of statutory public interest immunity for national security material only. I fully recognise that the purpose of the amendment is, as it were, as a precursor to Amendment 40. As the noble and learned Lord, Lord Woolf, indicated, nevertheless it would represent a change from a situation where public interest immunity has proceeded on a common-law basis. Putting it on a statutory footing would be a significant change. We obviously need to put closed material proceedings in civil cases on to a statutory footing, because in Al Rawi the Supreme Court indicated that there was no common-law basis for them. We are dealing with two different things in that respect.
PII is a principle that the courts have developed over a number of years to deal with the handling of sensitive material, and a wide and flexible range of public interests falls within its ambit. However, I have concerns that to change all these things may lead to more difficulties than the problem the change was intended to resolve. The Government ruled out a statutory PII in the Green Paper because it would offer little advance on the current system in providing clarity on the applicable principles, stability and certainty. If you start to create a statutory presumption in relation to national security when PII is asserted, it would start to raise questions when PII is claimed and sought in respect of some other grounds.
However, I accept that the primary purpose of the amendment was to prepare the way for Amendments 40 and 47, on which my noble friends Lord Faulks and Lord Thomas raised important issues about the relative benefits and interaction of closed material proceedings and public interest immunity.
My noble friend Lord Faulks asked whether Clause 6(5) was a tick-box exercise. It is important to emphasise that it is a statutory duty. The Secretary of State would consider whether a claim for PII should be made before applying for a CMP on the basis that it is a statutory duty and a legally binding obligation. Were someone to apply for judicial review of that exercise, the Secretary of State would in practice need to show the court that he or she had in fact properly considered PII as an alternative to a CMP application. That entails giving the matter serious consideration, taking into account all relevant considerations, ignoring irrelevant ones, and coming to a rational conclusion on the facts of a particular case.
The statutory duty would mean that, were PII successfully claimed, for example, the Secretary of State would consider factors such as what this would mean in terms of exclusion of materials which CMPs would otherwise allow the court to take into account. It may relate to the volume of national security material, or only one piece of evidence in the case might be relevant. Why go through the requirement for PII if indeed there is only one piece of evidence or—at the other extreme, and this is the term that has been used—if it is saturated? It may also relate to how relevant or sensitive the national security material is to a particular case. However, it is not a tick-box exercise.
Lord Wallace of Tankerness
The noble and learned Lord, Lord Woolf, talked about trying to square the circle. By the time I come to the end of my remarks, I will perhaps suggest that the circle is not as far from being squared as may appear from some of the comments that have been made. The noble Lord, Lord Pannick, is a member of the Constitution Committee of your Lordships’ House, and its report did not go so far as to recommend that the Bill require PII to be exhausted before a CMP declaration is sought from the court. The report stated:
“We can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to CMP”.
Therefore, the idea that we should exhaust PII beforehand has some practical difficulties. Amendment 47 of my noble friend Lord Thomas of Gresford may try and avoid that, but I am not sure that it would because it still appears to require an exhaustive process. My noble friend referred to the Guantanamo civil damages claims, where there were 250,000 potentially relevant documents for which PII might have to be considered. We are talking about having to go through all that.
I come on to the two stages of the closed material procedures, an important part of what I wish to say to your Lordships. There is what might be described as the gateway application—basically covered by Clause 7—and then there is detailed consideration of the documents once a CMP has been granted. Of course, on the detailed consideration of the documents, not quite the same test would apply, and we would have to go through all these documents again to see if a CMP should apply to each one individually. That could take considerable time and cause delay to the claimant, which is of quite considerable importance as well.
My noble friend Lady Berridge asked if the court should have gone through PII in the Al Rawi case because it could have resulted in a balancing act and things might have gone into open court. The point is that if the court had overturned the PII certificates on Wiley grounds, the result would not necessarily have been disclosure of the material in open court, if disclosure would have damaged national security. The Government would have to seek to have the material removed from the litigation by making concessions or by seeking to settle. Indeed, that is one of the issues that we are trying to address with these proposals.
Some have suggested that under public interest immunity more material would be heard in open court than in a CMP. We do not believe this to be the case. Nothing heard in open court now should be heard in secret in consequence of these provisions. In practice—and for the very reason I have just given to my noble friend Lady Berridge—claimants will have access to the same level of information, because, where the court declares that the case is one where closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. As with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court.
This painstaking exercise has sometimes been overlooked. The noble and learned Lord, Lord Falconer, said that the Clause 6(3) test is passed and the door closes. That is not the case. The Clause 6(3) test is only that the CMP may be used in principle, and there is then a detailed assessment at stage 2 with regard to the provisions that are available, with the rules of court to be promulgated under Clause 7. I hope this addresses some concerns. The noble Lord, Lord Pannick, and my noble friend Lady Berridge made a point about the second stage of the process. The decision to go into closed material procedures is an in-principle decision, and there is no equivalent with regards to PII. That is stage 1.
In stage 2, in Clause 7, the court considers what might then be done with the material. It may be on a document-by-document basis. It could lead to redaction, and it could lead to gisting. It would be quite possible for every piece of material relevant to proceedings to be partially disclosed, redacted or gisted, If this could be done without damaging national security. I hope that that gives reassurance that there is a stage which, although not exactly the same, is a very similar test and process to PII. As we said in the Green Paper, we wish to be in open court as much as possible, and we believe that that can be facilitated by going through a stage 2 process.
My noble friend Lord Faulks asked about the points made by our noble and learned friend Lord Mackay of Clashfern on Second Reading with regard to Clause 7(3). The importance of Clause 7(3) is that it follows Clause 7(2)—obviously—and covers circumstances where if the court refuses permission for particular evidence to be heard in closed proceedings, and the Government elect not to disclose that material, the court has the power to direct that that material should not be relied on and should be excluded from the proceedings, or to give directions that concessions must be made. These are very important safeguards.
Lord Falconer of Thoroton
My understanding of the point made by the noble Lord, Lord Thomas, is that the Government can choose to go for PII and get the material out completely or, if it helps them, to say, “Let’s have it in secret without the other side seeing it”. The Government can make that choice and nothing in the Bill would make it wrongful for them to make their choice by reference to what would give them the best prospect in litigation.
Lord Wallace of Tankerness
Certainly I am aware of that concern. It was perfectly legitimate for the noble and learned Lord to raise it, because it motivated the amendments tabled by my noble friends Lord Thomas and Lord Hodgson.
For the sake of completeness, I will indicate that it is important to remember that the court will need to be satisfied that disclosure of that material would damage the interests of national security, and that any obligations under Article 6 of the European Convention on Human Rights are met. Of course the court will have the assistance of special advocates representing the interests of excluded parties in testing whether these conditions are met. I endorse what was said by the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, that perhaps special advocates have sometimes undersold themselves. I think it was in the case of M v Home Office that the noble and learned Lord, Lord Woolf, indicated that he had been very impressed by what the special advocates had done in challenging evidence.
I move on to the point about the Secretary of State and the important amendment spoken to by my noble friend Lord Hodgson. It raises an important issue that the Constitution Committee flagged up with very seductive arguments that we should consider. I am aware that there is concern about the potential unfairness of the Secretary of State being the only party to proceedings who can make an application. However, I will explain to the Committee that we heard that the motivation behind the amendment was concern that there would be too much control in the hands of the Government, and that were they to apply for PII to exclude material from the case, the other party would not be able to request a CMP so that the information would be put before a court. As I indicated, this matter was picked up by the Constitution Committee.
There is an important constitutional point here. Under our system of government, the Executive are the guardian of the United Kingdom’s national security interests. The courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used when the sole criterion is that of national security. There would have been stronger arguments if some of the other grounds that were floated in the Green Paper had been included—but we confined this purely to national security. We believe that the courts can play an essential role.
Lord Wallace of Tankerness
My Lords, that is not what I said. I did say, however, that the judge at the first stage has to be satisfied that two tests are met before he even opens the gateway to closed material proceedings. There has perhaps been some misunderstanding that when you pass through the gateway, everything suddenly becomes subject to closed material proceedings. That is not the case. It is at that stage that individual pieces of evidence are looked at. That is a materially different position from the one which has sometimes been suggested that the gateway is the be-all and end-all and once you go through the gateway the doors and the shutters came down. That is not what is proposed but obviously if noble Lords do not believe that is properly reflected in the drafting, I am more than happy to try to find a way in which we can proceed.
Lord Falconer of Thoroton
My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.
Lord Thomas of Gresford
Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.
Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 3 months ago)
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Lord Falconer of Thoroton
My Lords, this has been an extremely good debate. If I may respectfully say so, the opening speech from the noble Lord, Lord Butler of Brockwell, said almost everything that could be said and I support everything that he has said in relation to this.
We support this amendment because we think the Bill is a bad Bill. We respect the right of the coalition, because of the relationship between the Commons and the Lords, to have what they wish—which is a Parliament that ends on 15 May 2015—but if you analyse the detail, this Bill damages rather than improves the constitution. Mindful of our obligation to respect the primacy of the Commons, we suggest that we give the Commons what they wish but do not affect the constitution further than is necessary. Before I come to the detail of that argument, I will just get rid of some of the truly appalling points that have been taken against the amendment.
First, I turn to the point that the provision is badly drafted. It was drafted by the noble Lords, Lord Pannick, Lord Butler of Brockwell, and Lord Armstrong of Ilminster, and supported by the noble Baroness, Lady Boothroyd. I do not think you could have a more powerful team in relation to this. What the amendment says—and it says it incredibly clearly—is:
“The polling day for the next parliamentary general election after the passing of this Act is to be 7 May 2015”.
It then says,
“If, but only if, a resolution to this effect”,
is passed, then the next one will be five years after that, and if a resolution is not passed, the other provisions do not apply. It could not be clearer. Please ignore all false remarks made in the other place. With respect to the noble and learned Lord, there is nothing wrong with the drafting of this.
The second point that has been made is that it is suggested there is something unconstitutional about this provision. First, it is said a sunset clause is inappropriate. We know that there have been sunset clauses in what may be described as constitutional Bills, for example the EU Bill and the control order Bills. The idea that a sunset clause in a constitutional Bill is inappropriate has been rejected by this House on a number of occasions and accepted by the other place.
The third particularly bad argument is that the provision increases the power of this place by allowing it to defeat orders. Yes, we can defeat orders, and the Parliament Act does not apply, but we always behave responsibly, and I would expect us to behave responsibly should the Commons indicate after the next general election that they want to have a fixed-term Parliament. If, however, that was the objection to this provision, then speaking for myself I would readily agree to an amendment to deal with that.
The final particularly appalling technical argument that has been advanced is that this is contrary to the Salisbury/Addison convention. I have never heard this being said until this afternoon. The Salisbury/Addison convention effectively says if the electorate have indicated it supports something this House should not resist it. I do not know if Members remember the election in 2010, but the one thing I can tell you, and it pains me to say it, is the one party that unquestionably lost the election was the Labour Party. Yes, a fixed-term Parliament was in our manifesto, but the public appeared very unattracted to it, so I do not think the Salisbury/Addison convention can be relied on by anybody remotely sane.
We know why this has been put in because we have had the privilege and the pleasure of Mr David Laws’s book, which was read many times on the Floor of this House during debates. Noble Lords will recall that Mr David Laws, who happily for this House was present during negotiations, gave us an account of how we got the Fixed-term Parliaments Bill. It is lovely to hear the highly principled noble Lord, Lord Rennard, and the splendid noble and learned Lord, Lord Wallace of Tankerness—neither of whom were there and neither was I—but have I got news for you. It was not on the basis of a desire to change the constitution; it was because the Tories and the Liberal Democrats did not trust each other to hold on to the convention. As David Laws explained, that is why they said that there had to be a Bill.
I respect the decency of the noble Lord and the noble and learned Lord to whom I have referred but that was not the reason given by David Laws for why this has been done. It is because of the coalition agreement. I could not put it better than Mr Shepherd, the Member for “somewhere”. He is facing a House of Commons laughingly about to pass this Fixed-term Parliaments Bill without the sunset clause. He says:
“I hope that this cheerful Chamber will look askance at the Minister and his colleague, the Deputy Leader of the House, who are sitting on the Front Bench and trying to seduce us into thinking that there is some immaculate constitutional conception behind the Bill. There is not. It is the raw politics of ‘We want to be there for five years, in the hope that something turns up at the end of the fifth year’. That is what it is about, and we know it. I urge the House to vote for the Lords amendment, and damn them”.—[Official Report, Commons, 13/7/11; col. 378.]
I do not think he meant damn the Lords; I think he meant damn the coalition.
Lord Rennard
My Lords, does the noble and learned Lord, Lord Falconer, also recall that during the very same debate Richard Shepherd said that,
“the Lords make the absurd proposition that it should have a role, as an unelected House, in determining when an election should be”?
He also described these proposals as,
“ridiculous proposals from the House of Lords … the body of the House … feels that this is almost an impertinence”.—[Official Report, Commons, 13/7/11; col. 377-78.]
Those were the context of his remarks last week.
Lord Falconer of Thoroton
I recall that but he voted in favour of the amendment. So I think you can say where his heart lay in relation to this.
Moving away from the technical points to the point of this Bill, let us think about history for a moment. In 1924, the Labour Government were defeated in a vote because the Labour Prime Minister had interfered with the Attorney-General in the exercise of his discretion. The moment he was defeated on the Floor of the House of Commons, there was a general election and the Conservative Party was returned to power. Imagine if Mr Ramsay MacDonald had been faced with the Fixed-term Parliaments Bill in 1924: first, being defeated on the proposition that he had interfered with the Attorney-General would not have led to a general election. There would had to have been a vote of no confidence put down by the Opposition. Let us assume that that had passed but that would not have been the end of it. Mr Ramsay MacDonald would then have had 14 days to try to cobble together a bit of support. Let us remember that he had a small majority in relation to this. He could have tried to survive on that basis. Is it seriously being said that that sort of behaviour would have led to the public having more confidence in the Government?
Moving forward in time to 1974, Mr Edward Heath perfectly legitimately wanted to test who governed the country because the country was in a major crisis in relation to the miners’ strike. Despite the fact that he legitimately wanted to go to the country, he could not have gone because he would not have been allowed to under this Bill unless he had tabled a vote of no confidence in his own Government. I think it was the noble Lord, Lord Hamilton, who said that perhaps he could have done that. But what would people think of a Government who put down a Motion of no confidence in themselves?
Finally, the father of my noble friend Lady Jay in 1979 was defeated in a vote of confidence on the Floor of the House of Commons. The most quoted extract from political history in the course of this debate was what Mr James Callaghan said when he was defeated. He said, “I have been defeated in the House of Commons. I must now take my argument to the people”. After this Bill has been passed he would have to say, “Now that I have been defeated on a vote of no confidence, I must see if I can scrabble together a majority to stay in power because this beastly Act gives me 14 days in which to try to do it”.
Okay, I say to the coalition, have your miserable Act so that you can stick together until 5 May 2015, because we respect your right to force that upon us. However, there is nothing unconstitutional in saying that it is appropriate for this House to stick with the principle that says, after that, let the next Parliament decide whether it wants to continue with what I say is a terrible Act. We will support the noble Lord, Lord Butler of Brockwell, in his excellent sunset clause.
Lord Wallace of Tankerness
My Lords, once again on this subject, we have had a very full and interesting debate, and I thank all noble Lords who have made important contributions to it.
It is clear that a number of noble Lords who spoke in the debate approached the amendment on the basis of whether they supported fixed-term Parliaments. My noble friend Lady Stowell and my noble friend Lord Dobbs gave compelling reasons why they believe in fixed-term Parliaments, whereas the noble and learned Lord, Lord Falconer, departing from his party’s manifesto at the last election, indicated that he is now not quite so sure about them. When the House was debating whether the fixed term should be four or five years and the noble and learned Lord was asked whether, if five years was passed rather than four, a future Labour Government would try to bring it back to four, I remember his not being able to give an answer. If this Bill is passed and the amendment which we are currently debating is not included, I cannot see a future Government trying to repeal it either.
Back in 1992, as my noble friend Lord Rennard reminded us, fixed-term Parliaments was a policy of the Labour Party on which it fought the election; it is a policy which my party has espoused for many years; and it is a policy of the coalition. The argument that the legislation was meant to last only until 5 May 2015 is nonsense. The coalition agreement makes a clear commitment to legislate for fixed-term Parliaments in the future. The title of the Bill refers to fixed-term Parliaments in the plural, so it was never intended simply to be a fix for the current Parliament. Many of the arguments brought forward, particularly when we were debating four or five years, related to the ability to plan government business over a period of time. Whether one could test the feasibility of that in this first Parliament, when we do not have the Bill on the statute book, is doubtful.
I want to put to rest the idea that the Bill was meant to be for only one Parliament. It is very clear in the coalition agreement that it was intended for future Parliaments, subject crucially to the fact that no Parliament can bind its successor, as the noble Lord, Lord Elystan-Morgan, said. The important point here is that if a Parliament cannot bind its successor and future Parliaments do not want fixed-term Parliaments, they should bring forward legislation. That would be the proper way of scrutinising whether the fixed-term Parliament has worked. As things stand with this amendment, no resolution whatever would be required if one did not wish to continue with fixed-term Parliaments. There would be no post-legislative scrutiny, no opportunity to consider whether the idea had delivered what those of us who support it claim it would. If one had to bring forward a Bill repealing the legislation, it would provide ample opportunity to debate the pros and cons.
I say with all due respect to the noble and learned Lord, Lord Goldsmith, that the idea that, somehow, Acts of Parliament should be suspended or ended at Dissolution and that, if you wanted to continue them into a future Parliament, you should bring back a new Bill to do it, rather than what we have thought for years, which is that if you wish to repeal an Act of Parliament you do so by primary legislation, was a very novel constitutional proposal which I certainly would not like to argue before the Constitution Committee if it became an act of faith.
Privacy Injunctions
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for repeating the Attorney-General’s Statement. I agree with a great deal of it. As far as this side is concerned, we agree that there should be a privacy law. Of course, the privacy law has to respect free speech. It involves striking a balance between an individual's right to privacy and the need for free expression.
That, basically, is the law currently. It requires an independent, neutral figure to strike the balance between freedom of speech and an individual's right to privacy. Nobody else can do that apart from the judges, and the judges who have been doing that have been doing it in accordance with the law, not through some invented new law that they are creating.
I completely understand and respect that individual Members of Parliament are entitled to wreck privacy injunctions because they think that they know better, but our system has worked well over the years, with Parliament dealing with laws and the judges dealing with individual cases. I have no idea of the detailed balance involved in relation to the Fred Goodwin case or the case that has been brought to public attention today. I do know that I know a lot less than the judges involved and that they were applying the law. I have no idea, for example, of the extent to which the families of the plaintiffs in those cases were thought to be affected by the terms of the injunction.
I welcome the creation of the Joint Committee. The matter should be looked at. We are getting close to a Rubicon in relation to this. The law is as it is. It is unlikely to be changed substantially because of the European Convention on Human Rights. There should not be this excited state about injunctions that have been granted. Instead, people, including parliamentarians, should comply with their spirit. There is something quite ugly about unpopular people being named in Parliament despite the fact that a judge has thought that they are entitled to privacy.
I have a few questions for the Advocate-General. First, do the Government agree that there needs to be a law on privacy? Secondly, do they agree that such a law must comply with the European Convention on Human Rights? Thirdly, does the Advocate-General agree that the judges are currently simply applying the law as determined by Parliament through the Human Rights Act 1998? Fourthly, what advice does the Advocate-General give to Members of Parliament—Peers or MPs—in relation to wrecking injunctions that have been made by the judges? Would his advice be the same as mine that perhaps it would be better to leave the courts to decide those issues rather than deciding for oneself whether a person should be entitled to what is currently his or her legal right?
Lord Thomas of Gresford
We on these Benches welcome the report, which recognises that where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. We also welcome the provision of notice to the press of an application of this type and the requirement of an openly available judgment. Does my learned friend—my noble friend—
Lord Thomas of Gresford
Does my noble and learned friend accept that Article 10 of the European Convention on Human Rights, which provides for the right to freedom of expression, is qualified? It is that the exercise of that freedom,
“carries with it duties and responsibilities”,
and,
“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.
It specifically refers to,
“the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
Would he agree with me that judicial authority must be maintained? As the noble and learned Lord, Lord Falconer, said, the court sees the evidence and comes to a balanced judgment, and any attempt to interfere with that, even by the use of parliamentary privilege, simply because a politician cannot agree with the judgment when he does not know the facts, is to be deplored?
Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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Lord Grocott
I am responsible for all sorts of things, but I am happy to say that, by my choice—who knows what might have happened now—I retired from the Front Bench. One reason why I wanted to retire from the Front Bench was to have the sheer joy of discussing these constitutional issues without any inhibition.
Lord Falconer of Thoroton
What the Front Bench would have said is that we accept the will of the people.
Lord Grocott
That is absolutely right. Just to correct a mathematical point, the Labour Party was not split down the middle. There was a majority of Labour MPs and Peers, a huge majority of Labour councillors and, so far as we know, activists and a colossal majority among voters. I see my noble friend Lord Reid in his place. He took an identical view to me and many other members of the Labour Party on the issue.
If the intervention was intended to embarrass, it has merely prolonged my remarks and enabled me to put the record straight on what the Labour Party did in practice in a referendum. The commitment of the Labour Party was to hold a referendum, not to tell people what to do, although I must admit that some of us in the Labour Party tried to influence the outcome. There has been a news blackout on this referendum, and I think I have explained the reason why.
The obvious question to ask is: what is the significance of this reference to the referendum in the Bill before the House? I think it is very significant indeed. The first point is to remind everyone of the colossal majority, by any reasonable expectations, in the referendum. It was passed in every voting district in the United Kingdom except, I think, seven. In most of the polling districts, between two-thirds and three-quarters of those asked said they did not want any change. I draw at least a couple of lessons from that that are significant to this Bill. It tells us pretty clearly that the public have very little appetite for major constitutional change. Many of us have argued that time and again in vain. Some of us did so through long periods of the night and were much criticised for it. We tried to point out to the Government and others that the public were just not raising these issues. There was no appetite for them whatever. If anyone is in any doubt that should a referendum be held, let us say, on fixed-term Parliaments—which of course reduce the power of the public; I will come to that in a moment—I have very little doubt that the outcome in that referendum would be similar to the outcome in the referendum that we have recently held.
The other thing I want to mention is something that I might be able to convince the House on. The outcome gives the lie to the oft repeated—in fact, ad nauseam repeated—comment, particularly by the Deputy Prime Minister, although others are guilty as well, that somehow or other we have a broken constitution, a broken politics, in this country. I have heard that word “broken” time and time again. One or two people who take close interest in these issues might be able to repeat that. I do not see any evidence, certainly not based on the result of that referendum, that that is what the people of this country think. They make all sorts of criticisms about politicians and politics, which is a healthy thing to do, but when it comes to the basic democratic construction of our constitution, the public’s involvement in it, their ability to speak to and canvass their Members of Parliament, their ability to participate in elections and the freedom with which any conceivable opinion can be expressed, this country’s constitution, far from being broken, works remarkably well in comparison with—I would go so far as to say any country in the world—certainly the vast majority of countries in the world.
Please may I urge a little rethink, particularly on the part of the Liberal Democrats, on this constantly repeated phrase about a broken constitution? It does this country no favours—obviously—and it happens not to be true in the eyes of the electorate. If there were a broken constitution, my word, you could rest assured that the members of the public who constantly canvass their MPs—write to them, e-mail them, visit them at their constituency offices and so on—would be letting their Members of Parliament know. If any former MP is going to stand up and tell me now that the public are deeply concerned about broken aspects of the constitution, please do so and I will readily give way, but that is not my experience.
I know there is no great mood in the House to set forth on another referendum, but, as I said, this is the only basis on which I could introduce this subject, which was also raised in Committee. I ask the Minister on what basis, if any, he thinks the public want this huge change to their constitution. When he answers that question, I would like him to confirm—he owes it to this House, as this has been raised on many occasions, but we have not yet, as far as I can recall, and I have been here most of the time, had a clear answer to this question—that if this Bill passes in the way the Government want, there will be fewer general elections in this country; the public will be consulted less frequently. I regard that as a step backwards. We all know about problems with turnout, and I do not want to overstate my case, but I find a general election day as an awe-inspiring event if you think about it—I do not normally think about it in these terms because I am so busy. We have had all the opinion polls and all the chatter, and then there is a curious calm on election day when the public decide, and we never quite know what they are going to decide or the basis on which they make their decision.
If this Government are proposing, as they are, that there will be fewer general elections in the future—my calculation is that there would have been three fewer since the Second World War—could they at least acknowledge that this is the case and that they are going into this with their eyes wide open? It is very important that they do. I would like the Minister to tell us what the evidence is that the public want this change. Do they know the significance of what the Government are proposing? Furthermore, given that again we are being repeatedly told that all these constitutional changes are part of a coherent whole—the Bill we just considered, this Bill and the one that is coming down the track on House of Lords reform—I really would like to know what criteria the Government use to determine whether a constitutional Bill is of sufficient significance to be put to the people in a referendum. When I asked the Minister that in Committee, although he is a very honest man and good at dealing with this Bill he did not give a particularly straightforward answer. He said:
“The noble Lord, Lord Grocott, asked my noble friend Lord McNally which issues would be submitted to a referendum, and my noble friend replied: ‘the Government believe that Parliament should judge which issues are the subject of a national referendum’… Indeed, it will be possible for Parliament to make that judgment on any legislation”.—[Official Report, 15/3/11; col. 193.]
It is not a very straightforward answer, let us be absolutely honest, to say that Parliament will judge when there is a heavy Whip—we all know perfectly well that this recent referendum would never have gone through the House of Commons on a free vote. That applies to the other half of that Bill, which increased the size of constituencies, so may we please have other criteria, aside from saying that it has to go through Parliament? Of course legislation has to go through Parliament. I want to know the basis on which the Government decide whether major constitutional Bills such as this one or the House of Lords reform Bill should be subject to referendums. What made the proposed change in the voting system subject to a referendum but, unless the Government have had second thoughts, not these other constitutional Bills? I beg to move.
Lord Higgins
My Lords, I apologise to the House for missing the first few minutes of this debate. However, fortunately, I have heard enough of what has been said since to be provoked into speaking.
Throughout the whole of my parliamentary career in another place I had a passionate feeling that Edmund Burke was right—that Members of Parliament were representatives not delegates—and that there was a danger that the use of a referendum could undermine that basic principle. I therefore have a word of caution about what has been said today, although I agree wholeheartedly with everything that my noble friend Lord Norton and the noble Lords, Lord Pannick and Lord Reid, have said. However, one or two caveats ought to be made, particularly in the light of the recent referendum where the result was rather good. Having said that, it was also in some ways—particularly in London—rather surprising. None the less, if there is any contemplation of future referendums, it is very important to write in provisions both in regard to turnout and majority, and that it ought not to be mandatory in the sense that after the result has been declared it does not come back to Parliament. It is very important that that should be so.
To whatever extent one can limit the range of referendums—I much prefer “referendums” to “referenda”; it is the gerund—we should make sure that the line is clearly drawn. To say, “We will have referendums only on constitutional matters”, will not, I suspect, satisfy one’s constituents. I always explained to my constituents that I was not concerned with what a majority of them might think. I would take account what a majority of them thought but would then take into account the debates which took place in the House of Commons and various other arguments I might hear. Constitutional issue or not, it is still the case that one needs to take other matters into account and not only what a simple majority of the population believes. I have considerable qualms about this.
If you asked what referendums the public would really like to have, I have no doubt that, despite the enormous change in social issues over the past half a century, it is still the case that they would like a referendum on capital punishment—and I have little doubt which way such a referendum would go. Therefore we must be very hesitant about going down the route proposed today. However important the individual issue may be—and to some extent we have mixed up the issue of House of Lords reform—we should consider very carefully the idea of spreading referendums wider and wider.
Lord Falconer of Thoroton
My Lords, characteristically, my noble friend Lord Grocott has proposed an amendment which has caught the interest and imagination of the House. This has been a very good debate—almost the best in relation to the Bill. I strongly support what my noble friend Lord Grocott has said. My noble friend Lord Reid made a brilliant speech, which indicated what a loss to the leadership of both the nation and the Labour Party he is. I agree with what the noble Lords, Lord Newton, Lord Norton of Louth and Lord Pannick, have said. I think it is important to indicate why we are here. The way that you can change the constitution in this country is simply by an Act of Parliament. By and large, Parliament has been responsible in changing the constitution. Let us take, for example, our attempts to change the role of the Lord Chancellor, which got very short shrift from the House of Lords; there was a two-year delay, and it was substantially changed. The experience of the last 12 months in relation to constitutional reform has indicated a fundamental change in how constitutional reform is looked at by Parliament.
This is the second of three Bills in a suite of parliamentary reform. The first Bill reduced the number of Members of Parliament, which had not been done by Parliament by almost 100 years, because it was thought that it should be dealt with by an independent group. It proposed and passed a referendum on AV, which no political party wanted—save, possibly, the Liberal Democrats, faute de mieux—and the public did not want. That change was not introduced on the basis that people thought that it was the right thing to do for the constitution; it was introduced as a result of a deal done between two political parties. Parliament passed it, so Parliament in effect was willing to give approval to something that was not in the interests of the country, necessarily, but reflected what two political parties wanted. The reason Parliament did that, inevitably, was that unusually, because of the coalition, those two political parties controlled both the Commons and at that stage the Lords.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I am sure that the noble and learned Lord will want to complete the picture and remind the House that the proposal for a referendum on AV was also in the Labour Party manifesto at the last election. He seems to have ignored that fact.
Lord Falconer of Thoroton
I do not know whether the noble and learned Lord noticed, but we lost the election. In a sense, I would not have been able to say that we would have had much credibility in putting that forward as the losing party—but you might think that that illustrates my point. The AV referendum was defeated, and the party that proposed it was defeated; the Liberal Democrats did not propose it and the Tories did not propose it. Because of the deal that was done and because of the influence that the coalition has on both Houses of Parliament, it is possible for such a constitutional change to get through both Houses of Parliament. An even more interesting point is that I do not think, although the noble and learned Lord will know better than I, that the AV constitutional change—if we ignore the referendum result for the moment—would have actually passed through Parliament; the only way that an attempt could be made to get it on to the statute book was by using the referendum route. The Conservatives would not have voted for it and half of my party would not have voted for it; all the Liberal Democrats would have voted for it, but I do not think that that constitutes a majority.
Most countries have some sort of entrenched or embedded position to protect the constitution, because most countries believe that if their constitution is working it should be more difficult to change it than other provisions. The heart of our constitution is in our democratic arrangements, such as how long Parliaments last, how we elect Members of Parliament, how we determine what the constituencies are and how many constituencies there are. All those arrangements have been fundamentally changed by the first two Bills, except that the AV referendum was defeated. The significance of the defeat in the AV referendum is that it indicates that the public are not interested in, or particularly keen on, a particular change in those particular systems. Before this series of Bills was introduced, my inclination would have been to be more trusting of Parliament to stop changes that go to the heart of the constitution and do not have popular support. Inevitably, in the light of what the coalition has done, one’s faith in Parliament’s ability to resist, because of the coalition, goes down.
The importance of what my noble friend Lord Grocott is proposing in this amendment, which I doubt he will push to a vote—but it is an incredibly important debate to have—is that, if parliamentarians are prepared to play with the constitution in the way that the coalition has done, as simply a counter to be given away in order to get into power, Parliament needs to look at how you protect the constitution against backroom deals in smoke-filled rooms. I am not aiming that particularly at the Liberal Democrats or the Conservatives; I am saying what the consequence is of coalitions.
I end with a reference to the noble Lord, Lord Tyler. I do not know whether noble Lords remember the excellent contribution that he made to the Parliamentary Voting System and Constituencies Bill, but he was an enthusiast for all of it. I happened to read in my Observer after the AV thing was lost, where the noble Lord said words to the effect that, “Now the AV vote has been lost, I should remind the Conservatives that there still yet needs to be a vote on the new constituencies that are being drawn”. I took that to mean that it was all basically politics that was going on, that it as just a deal that was done, and that if the Liberal Democrats did not get AV they might look askance at what they had previously said was a major constitutional change. I understand why constitutional change. I understand why the noble Lord did it, but does that not suggest that we need to build in a few more protections in relation to major constitutional change? It would appear that this House, which has previously been good at stopping major constitutional change, is now faced with a coalition that has not viewed constitutional change with the same degree of responsibility as previous Governments.
I take the point made by the noble Lord, Lord Newton. He is absolutely right that from time to time we did propose constitutional changes, but we got drawn up short by Parliament. That has not happened with this suite of constitutional measures. That is what my noble friend Lord Grocott is saying needs very careful thought. It might not be a referendum that is needed, but something is certainly needed to give a bit of strength to Parliament to resist the possibly politically motivated constitutional changes that the coalition has brought forward—as opposed to in the national interest.
Lord Tyler
I wonder whether in the course of his rewriting of history, the noble and learned Lord could just indicate which proposals for changing our constitution during 13 years of Labour Government, many of which he himself was responsible for, he ever suggested should be put to the public in the form of a referendum.
Lord Falconer of Thoroton
The Welsh Assembly, the Scottish Parliament, the Mayor of London—those are the ones that come to mind immediately.
Lord Brooke of Sutton Mandeville
I was out of the Chamber so I did not speak, but in the light of the noble and learned Lord’s response to the noble Lord, Lord Tyler, will he comment on the fact that the three referendums that he described were all done one after another—and one had the sense that the policy was being made up as they went along. Only when those three had been done were we allowed a referendum Bill itself.
Lord Falconer of Thoroton
I think that the referendums Bill came between those on Scotland and Wales and the London Mayor, but I may be wrong about that. However, I agree with the underlying thrust of the question. Once we started on the route of referendums we realised that we needed some principles, but those principles guided only the process for a referendum; they did not determine when there should be a referendum and when there should not. Maybe it is that issue that we now need to move on to.
Baroness Farrington of Ribbleton
My Lords, before my noble and learned friend sits down, may I draw to the House’s attention that there was also a referendum in Northern Ireland?
Lord Falconer of Thoroton
Thank you very much indeed for that. I also draw to the attention of the noble Lord, Lord Tyler, that there was also the referendum on a north-east regional assembly. No doubt before I leave the room there will be 53 other referendums that I shall refer to.
Lord Wallace of Tankerness
First, my Lords, as I think the noble and learned Lord, Lord Falconer of Thoroton, said, we owe a debt to the noble Lord, Lord Grocott, for moving his amendment and stimulating an interesting and thought-provoking debate. The noble Lord, Lord Grocott, said that he was not going to move or speak to his Amendment 23 regarding your Lordships’ House. Although he did not, it was certainly the subtext of a number of the contributions—and sometimes not even the subtext, as the clever speech made by the noble Lord, Lord Reid, indicated. When I listened to what he was inviting me to do or not to do, phrases such as “Greeks bearing gifts” seemed to come to mind from time to time. However, there will be ample opportunity to reflect on the issues in relation to the future of your Lordships’ House over many weeks and months to come.
Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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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.
Lord Morgan
On the Baldwin point, it is quite important to know that in 1924 there was, as it were, an understood majority in waiting. It was not a random resignation by Baldwin. Therefore, it was clear what the outcome would be.
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.
Lord Falconer of Thoroton
Let me assist by saying that I think that the noble Lord is right. To add another prong to that argument, we have tabled an amendment to the amendment of the noble Lord, Lord Armstrong of Ilminster, which covers that precise position.
Lord Armstrong of Ilminster
My Lords, my thought was that that sort of situation would be covered by the fact that the Prime Minister would be submitting a request for a Dissolution to Her Majesty. In all normal circumstances, of course, Her Majesty could act upon such a request. However, there could be circumstances in which Her Majesty might wish to say, “Before accepting this request, I wish to consider whether a Dissolution is the right course of action to pursue at this time”. She could then have consultations with political leaders to find out whether that is the case.
Lord 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.
Lord Falconer of Thoroton
I can assure the noble Lord that he is not being stupid. It is my failure for not explaining it adequately. Where there has just been a general election and a Government do not obtain the confidence of the House, the right course in those special circumstances, as in the case of Mr Baldwin in 1923, is that what the electorate may well have wanted from the election is somebody other than, as it were, Mr Baldwin. That is why those amendments are there.
Lord Tyler
That is a very interesting point and I shall contemplate it.
I come to another point. It would seem that the noble and learned Lord has a problem with the two-week thought process—the cooling off period that the noble Baroness referred to. I would like to know whether he stands by the statement by Mr Christopher Bryant in the other House, who said:
“We quite like the provision for two weeks—it seems sensible if an alternative coalition or Government could be formed”.—[Official Report, Commons, 24/11/10; col. 361.]
He also said:
“The Government—I think rightly—want to say that after a motion of no confidence, there could be two weeks during which the House could, if it wanted, pass a motion of confidence in either the same Government, presumably, or another Government, with either the same Prime Minister or a different Prime Minister, with a different set of ministerial colleagues”.—[Official Report, Commons, 24/11/10; col. 359.]
That flexibility was very admirable and a great deal more supportive, if I may say so, of the Government’s position than would be implied by what the noble and learned Lord, Lord Falconer of Thoroton, has said. It may be that he or one of his noble friends may wish to come back and say whether Mr Bryant was misled, or whether I was misled by that interpretation.
Amendments 20C and 22ZD have so many negatives that I am in something of a spin, even after the noble and learned Lord, Lord Falconer, explained them to me. If the intention is to make a major change in the circumstances immediately following an election, there is a good case for that: it is a very attractive proposition. The fact that the leader of the party who seeks to form an Administration should bring both the Administration and his or her programme to the House of Commons for it to be endorsed at the outset of a Parliament would emphasise that we are not electing a Government but a House of Commons, which in turn gives responsibility and power to a Government. However, it may be rather too late in the passage of this Bill to introduce changes of that scale and radical intent.
The noble Lord, Lord Norton, as usual gave us a very interesting attempt to define and pin down the issues, but I think that he conceded that Amendment 20 may be the right way ahead.
We have made huge progress. As others have said, this is very much to the credit of my noble and learned friend, Lord Wallace of Tankerness. Again, it illustrates some very important points that we should all take account of. First and foremost, we have maintained intact the principle of the Bill that was sent to us by the other House. Secondly, if we pass the amendment and introduce a new Clause 2, that will remove any possibility of any weakening of the neutrality of Speakers of the House of Commons. That is obviously desirable. Thirdly, it still removes an important extra power from Prime Ministers and their Whips simply to decide that an issue of detailed policy is a matter of confidence. All three of these achievements are truly welcome. I hope that the House will support Amendment 20.
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.
Lord Wallace of Tankerness
In these circumstances, yes. Had this Bill been in place, that could have happened. Perhaps I may reassure my noble friend Lord Cormack that 14 days is a maximum, but if there is consensus in the House that there should be an immediate election, it would be possible the following day for a Motion commanding the support of two-thirds of Members for an early election to be passed and there would be no need to wait for 14 days. I hope that is clear. It is an important point that perhaps has not always been fully appreciated; there may have been an impression that after every Motion of no confidence there would have to be a period of 14 days before there could be an election.
The proposed new power in the amendment for the other place to vote explicitly for an early Dissolution deals with the circumstances in which it would be appropriate to move directly to a Dissolution and a general election, as I have said, and there may be other circumstances. There has been some suggestion that the situation in 1951 could have led to that happening.
Lord Falconer of Thoroton
My Lords, it has been a very important debate. It is absolutely clear what the critical issue is in the debate—the 14 days. As ever, the noble Baroness, Lady Boothroyd, expressed our constitution exactly accurately when she said that the Commons should be able to boot out the Government and the electorate should then determine who should be the Government. Under what this Bill proposes—the 14 days—when the Commons told Mr James Callaghan that he had to go to the country he could have said, although of course he did not, “Hold on a minute, I’ll see if I can get some Ulster Unionist support or some support from these rebels and see if I can hold on for a few more months”. That would have been absolutely contrary to the basic principles of our constitution which the noble and learned Lord says he wants to reflect in this new Bill.
The genesis of this Bill, if we believe Mr Nicholas Clegg—and we do believe him on this—came from his wanting to increase confidence in politicians and in Parliament. He said that one way in which it could be done would be by the public having more control over politicians. It is hard to imagine anything undermining confidence in politicians more than a situation such as the one at the beginning of 1979 when the Government were defeated, which has been described, and the Government then seeking to put together something to allow them to hold on between March and October 1979. That would, I suspect, have made the public feel that the politicians wished to hold on to power for longer. Not only does that 14-day period mean that that would be possible; it requires, in effect, that that period should be gone through.
We on the Labour side have had no part to play in putting together the variety of amendments that have been put down. I have discussed them with various people but they have, in effect, been tabled in relation to the individual views of the House. Yes, we were not so worried in the Commons about the 14 days, but we had not had the benefit of a Committee stage on the Bill in which where there was real focus on those issues. Because I detect quite a strong feeling around the House against the 14 days, the only way in which it can go wrong this afternoon is if by not choosing our amendments carefully we end up with the Government getting their way without the 14 days being there. I respectfully advise Members of the House, as I will advise my own group, to vote for my amendments, because they will ensure that the 14 days goes—except in relation to a Government who have never obtained the confidence of the House of Commons. If the 14 days is removed, I can see real force in the Government's amendment. It gets rid of the Speaker and creates some certainty about what a Motion of no confidence is, so that many of the problems will have been resolved.
If the proposed new clause were put in, as amended with my provision, the House would then be asked to vote on adding in more clauses. If the new clauses proposed by the noble Lords, Lord Norton of Louth, Lord Armstrong and Lord Cormack, were put in, we could have more than one Clause 2 at that point—an unusual result, it seems to me, but one that appears to be possible in the light of what the Lord Speaker said. That is what the House authorities are saying, but that result would seem to be possible only on the basis that, at Third Reading, we would have to make a choice between the various Clause 2s that were in. However, I recommend simplicity to the House: do not get us into that complication but vote for the amendment to get rid of the 14 days, which is the first vote that will be had. Then we can all comfortably rally around Amendment 20.
Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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Lord Falconer of Thoroton
My Lords, the opportunity has not been taken, so we must now build on the work done by this House. I am very disappointed in the lack of interest in this rather staggeringly important constitutional Bill—which confirms that this House seems to have the same view as the people in the Dog and Duck to whom the noble Lord, Lord Cormack, referred. I will leave it to noble Lords to get to the Dog and Duck.
This is an important Bill: it will have an impact constitutionally. It is a Bill to take seriously in the course of this scrutiny at Report stage, which will last two days. I am grateful to the usual channels for providing two days, which seems entirely appropriate. It is time for this House to take decisions, building, I would respectfully submit, on the work that this House and the other place have done. When I say building on the work that has been done, I include the work done by the Select Committees in both Houses—the one chaired by Mr Graham Allen in the other place, and the one chaired by my noble friend Lady Jay. I am very glad to see my noble and learned friend Lord Goldsmith and other members of the committee in the Chamber today.
We as a party support fixed-term Parliaments. However, the investigations done by both Houses, including both Houses’ Select Committees, have increased Parliament’s doubts about fixed-term Parliaments. Our own committee, the House of Lords Select Committee on the Constitution, said that the case made by the Government for fixed-term Parliaments had “not been made out” to its satisfaction. A similar view was expressed by the House of Commons Select Committee.
There were three specific anxieties that underlay that view. The first was the length; both Select Committees concluded that four years was better than five. Secondly, both Select Committees concluded that the provisions could be abused by a Prime Minister who, with a majority in the House of Commons, could go for an election whenever he wanted. Thirdly, the Houses of Parliament were seeking to include in legislation the House conventions in determining when a Government lost the confidence of the House of Commons, which is a critical part of our constitution.
These anxieties were well expressed in good debates on Second Reading and in Committee in this House. In today’s Report stage we on this side of the House intend to try to address those specific anxieties, and to support the Government and other Members of the House who have tabled amendments to try to resolve them. However, resolving these specific problems will not deal with the underlying sense of anxiety which still exists in this House about the Bill.
In those circumstances, the opposition party—the Labour Party—intends to support the amendment to be introduced by a number of Cross-Benchers, including the noble Lords, Lord Pannick, Lord Butler of Brockwell and Lord Armstrong, and the noble Baroness, Lady Boothroyd. The effect of their amendment is that if there is to be a fixed-term Parliament after each subsequent election, it will have to be approved by a resolution of both Houses. That seems to us a suitable response to a constitutional Bill which is of such importance but which has been introduced without pre-legislative scrutiny, proper public consultation or an adequate response from the Government to the particular issues raised. So I preface my remarks by indicating our support for that amendment. It does not stop us going into the Bill’s detail or—in the context of a Bill with this provisional aspect—seeking to improve it.
The first three groups of amendments concern the length of a Parliament, the issue being whether it should be four or five years. We have evidence on this: I refer to the speech of the noble and learned Lord, Lord Lloyd of Berwick, in Committee. He completely demolished the argument that it is a matter of judgment—the implication being that if it is a matter of judgment, any period would do. If it is a matter of judgment, it is all the more important, as the noble and learned Lord pointed out, to analyse what the “good judges” have been saying about what the right conclusion is. The first judge, I would respectfully ask the Government to bear in mind, is the person who introduced the current arrangements, namely Herbert Asquith. When introducing them in 1911, he rightly said that a maximum of five years was likely to produce Parliaments lasting about four years, which is close enough to the previous election or the coming election to ensure that Parliament remained properly accountable to the people.
The weight of academic evidence given to both Select Committees was overwhelmingly of the view that a fixed-term Parliament should be four years rather than five. Professor Robert Hazell told the Commons Select Committee:
“The balance between four and five years is more even than folk memory might suggest. But those parliaments which lasted for five years did so because the government had become unpopular and did not want to hold an earlier election. The Prime Minister stayed on hoping that his or her party's luck might change. It did not, save for the case of John Major, who scraped through with a narrow majority in 1992”.
Professor Blackburn, who has done a lot of work on this, was quoted by the noble and learned Lord, Lord Lloyd of Berwick, in his speech. The Select Committee in the Commons reported:
“Professor Blackburn suggested to us that when governments have lasted five years between elections, ‘the last year of every one has been pretty awful’”.
The Bill seeks to make it the norm that we should have five years. I would respectfully ask this House, if it wishes to have a proper process of scrutiny, to acknowledge where the weight of evidence is from all those who have looked at the issue, including Members of this House. I also pray in aid the following people: Mr Tony Wright, who introduced a Bill saying four years; my noble friend Lord Rooker, who is greatly respected in this House, and who introduced a Private Member's Bill in the House of Commons saying four years; and Mr David Howarth, no longer an MP, who introduced a Bill for fixed-term Parliaments which said four years and had the support, as co-sponsors of the Bill, of Mr Simon Hughes, Mr Chris Huhne, Mr Nick Clegg, Mr Danny Alexander, Mr David Heath, Ms Lynne Featherstone and Mr Paul Burstow. I mention these names only because every single one of them, with the exception of Mr Simon Hughes, is now a Minister in a Government proposing five years. Furthermore, the noble Lord, Lord Plant, who is not in his place, conducted an inquiry into our constitution in 1991 and 1992 and he recommended that there should be fixed-term Parliaments. He also said four years. The Liberal Democrats, as they proudly point out, have said for many years that there should be fixed-term Parliaments and that they should be four years.
Perhaps I may say with respect that if you are responding to a proper analysis of the evidence, the conclusion would be four years, not five years. If it should be four years, should it be four years for this Parliament or should it be five years for this Parliament and four years for subsequent Parliaments? In Committee, the noble Lord, Lord Cormack, said—I suggest with a heavy heart—that it should be five years to give this Government their coalition agreement, but four years thereafter. As I made clear on 21 March at cols. 505 and 512, I do not support that siren song. I have three reasons for not supporting it.
First, if five years is wrong for the future, it must be wrong for this Parliament. Secondly, if the reason that five years is wrong is that you end up with an “awful” fifth year, to quote Professor Blackburn, imagine the circumstances that we are currently facing. We have a number of politicians, the Liberal Democrats, who are greatly respected by all in this House. Let us assume that they do what every other politician in their position—that is, facing defeat—does; namely, they cling on until the last moment. If we pass a Fixed-term Parliament Bill of five years, we will allow the Liberal Democrats to do what MPs have done since time immemorial—to cling on to the bitter end. We are going to have an awful fifth year. I strongly recommend not succumbing to the siren song of five years for this Parliament and four for the next.
The third reason that we should not succumb to the argument is this. I can imagine no worse precedent than a Government coming into power and setting in place special arrangements for how long the first Government should be and then changing the constitution for everyone else thereafter.
Lord Phillips of Sudbury
I commend the noble and learned Lord on the eloquence and persuasiveness of what he has been saying so far, but might it be the case that the fifth-year syndrome he has described, and to which Professor Hazell referred—that the fifth year is always difficult—might just be a final-year syndrome? Might it not then become the fourth year that would be misery hereafter?
Lord Falconer of Thoroton
No, I do not think it would. Can you identify a third or fourth year which has been as been as awful as the fourth or fifth year? I also refer to what was said during debates in Committee by the professor and noble Lord, Lord Norton of Louth, who sadly is not in his place. He said that it was extremely unlikely that any Government would have something proper to fill in their fifth year. So there is no historical precedent for the fourth year being as bad as the fifth year, nor do I think that if the fixed term were four years would the third to fourth year become awful. But that is a matter of judgment for this House to make. My own judgment of it is that the third to fourth year would not be remotely as bad as the awful fifth years that we have had on previous occasions.
We in the Opposition are going to vote for Amendment 1, which alters the date of the first election from five years from the date of the last election to four years, and we are then going to vote for four years thereafter. We are going to vote for what might be called the “Baroness Boothroyd, Lord Pannick, Lord Butler of Brockwell, Lord Armstrong” amendment because we do not think that the Government dealt effectively with the fundamental criticisms of fixed terms.
Lord Rennard
The previous Labour Prime Minister of course went for five years. If this legislation is passed in its current form, would a future Labour Government amend it to change back the fixed term from five years to four years?
Lord Falconer of Thoroton
I cannot commit a future Labour Government, but people should form their own view about whether fifth years have been good years. We should look at this in a non-partisan way. Do Mr Major or other Labour Prime Ministers in the past who have gone a fifth year fit the rubric of Professor Hazell; namely, people hanging on to the last moment and ending up in a situation where there is a pretty awful year? Four years is good, because it means that you are accountable to the electorate much more regularly. It would probably have meant three or four more general elections since 1945. Let us remember what the much revered Deputy Prime Minister told the Select Committees. He said that the reason for which these provisions were being introduced was to make politicians more accountable to the electorate. It is quite hard to see how you make politicians more accountable to the electorate by reducing the number of general elections. In those circumstances, we will vote for four years for this Parliament, for four years for the future and for the Boothroyd/Butler/Armstrong/Pannick amendment. I beg to move.
The Lord Speaker (Baroness Hayman)
I have to inform the House that if Amendment 1 is agreed to, I cannot call Amendment 2 by reason of pre-emption.
Lord Lloyd of Berwick
My Lords, I support four years rather than five years for the reasons which I spelt out in Committee and to which I had intended to return when we reached Amendment 3, but maybe I should address that a little earlier in view of certain observations made by the noble and learned Lord, Lord Falconer, with which I agree.
I put my name to Amendment 3 last week because it followed very largely the amendment which was debated at length in Committee. I was therefore surprised to receive an e-mail over the weekend informing me that the noble and learned Lord was seeking to withdraw Amendment 3 and to substitute Amendments 1 and 2, which we now have, and asking me whether I would support them instead. I say at once that I cannot support Amendment 1.
At Second Reading, the noble and learned Lord accepted that it is open to any Government at any stage to indicate the date of the next election. That can be done within existing constitutional arrangements, as I believe everybody accepts. It did not require an Act of Parliament to establish May 2015 as the date for the next general election, but that is the course that the Government have chosen to take. There is nothing as such that is wrong with that course; it is the date that they have chosen and have put in the Bill.
If, therefore, May 2015 was to be challenged by the Opposition, surely it should have been challenged in Committee and not left to the 59th minute of the 11th hour before Report. Far from challenging that date, the amendment in Committee built on Clause 1(2). It assumed May 2015 and then substituted in Clause 1(3) “fourth” for “fifth”, and that is the amendment which I supported and still support.
It is true that, in response to the noble and learned Lord, Lord Wallace of Tankerness, on 21 March at col. 508, the noble and learned Lord, Lord Falconer, said that it had always been the Opposition’s intention to challenge the date in Clause 1(2), but that was not what they did. It is true also that at the end of the debate in Committee, it was argued that if four years was to be the norm for future Governments, it should be the norm for this Government. I do not agree. The Select Committee pointed out in paragraph 17 of its report the crucial,
“distinction between ‘the immediate concern of the Government’”—
this Government—
“‘that it should continue for five years’ and ‘the long-term issue’”,
of what should be the norm for future Governments. Those are distinct issues and it is the long-term issue to which all the evidence given in the Select Committee was directed.
It is the same as the distinction that was drawn very clearly by the noble Lord, Lord Cormack. He accepted May 2015 as the date for this Government because that is the date that any Government could have fixed. He thought that it was unnecessary to include it in an Act of Parliament, but there it is. Nevertheless, he favoured four years thereafter.
Lord Falconer of Thoroton
Is it not right that the same restrictions apply to this Government in this Parliament up to 2015 as would apply after 2015? If the same restrictions on having a general election apply in this Parliament, why is five years okay for this Parliament but not the next?
Lord Lloyd of Berwick
I am grateful for the noble and learned Lord's intervention, but he is ignoring the crucial distinction between the two issues. One is the issue as to what this Government are going to do. He accepts as we all accept that this Government can choose 2015 if they want. The issue that we ought to be discussing is not for this Government but for future Governments. It is entirely consistent, if I may say so, for us to accept May 2015 for this Government yet to say that the norm hereafter should be only four years.
Lord Goldsmith
My Lords, but for one point, I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick. On the principal question of the term, he and my noble and learned friend Lord Falconer of Thoroton are right: all the evidence points one way—the evidence of international experience and of the experts who were before the Select Committee on the Constitution, on which I also had the privilege to serve—and all the history points in favour of four years.
The principle points are in favour of it as well. As has already been pointed out, the constitutional programme put forward by the coalition is supposed to be a programme of empowering the people, not disempowering them. It is worth reminding ourselves of what was said by the Deputy Prime Minister in his evidence to the Select Committee that,
“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people … collectively introduces the mechanisms by which people can exercise greater control over politicians”.
Increasing the term of a Parliament so that it necessarily lasts for five years cannot conceivably meet those objectives, and I have never heard any explanation given by the coalition as to how it does. Nor, indeed, have we heard any explanation from the coalition as to why five years was chosen. The noble and learned Lord, Lord Lloyd of Berwick, pointed to the evidence that was given to the committee which illustrates that the figure was chosen before the evidence was there.
It is worth also spending a moment more on the purpose of pre-legislative scrutiny. It is not an answer, as the noble and learned Lord, Lord Wallace of Tankerness, said, to say, “We are scrutinising it”.
Lord Falconer of Thoroton
I apologise for interrupting my noble and learned friend Lord Goldsmith but he is obviously unaware that there is evidence as to how the five years came in. Mr David Laws’ book states that Andrew Stunnell pointed out that,
“trust and confidence was very important to us, and that we wouldn’t want to find the PM calling an election at a time that did not suit us. ‘That works both ways!’ said William Hague. We mentioned that our policy”—
this is the Liberal Democrats—
“was for four-year, fixed-term parliaments. George Osborne made the point that five-year parliaments were better, as they allowed governments to get into implementing their plans … We made no objection to this, and Britain was on its way to five-year, fixed-term parliaments for the first time in its history”.
I thought my noble and learned friend would like to know what the evidence was.
Lord Goldsmith
Noble Lords will notice from this that over many years, both in this House and at the Bar before, my noble and learned friend and I have made quite a good double act. I intended to come to that very point shortly but I do not blame him for trying to get in first. As an advocate, it is important always to make a point that you think is a good one before the other advocate does so.
On the point about pre-legislative scrutiny, it is not only a question of having an opportunity to scrutinise in this House; the committee asked the Minister responsible, “What do the people think about this? Have you asked the people what they think not only about the principle but also the term?”. As noble Lords will see in the evidence, that has never been done; there has been no attempt to consult on that kind of question. The Minister drew attention to two newspaper polls and a survey by the Scottish Youth Parliament, which were no doubt very worthy, but, as far as I am aware, they were not on the question of term but simply on the question of fixed-term Parliaments.
So the Government had nothing to support their view other—and we come now to the evidence to which my noble and learned friend Lord Falconer has drawn attention—than a political decision, a political compromise, that this Parliament was going to last for five years. We all agree in this House that that could have been done by a statement by the Government that they were going to do that and sticking to their guns. It did not need a Fixed-term Parliament Bill at all.
That brings me to the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should allow the Government to have five years this time round and four years thereafter. With respect, that makes no sense to me at all. The recommendation in the report from the Select Committee on the Constitution was not that it should be five years this time and four years thereafter. It was very clear in saying at paragraph 62 that,
“the majority of the Committee consider that a four-year term should be adopted for any fixed-term Parliamentary arrangement”.
When I put my name to this, I did not for a moment think that the report was saying that we should let the Government have five years this time and four years thereafter. They could have achieved that if they had done what the committee wanted, which was to spend the time during this Parliament to consult properly, reach a view, legislate for hereafter but not to rush this through in this way. So I have no hesitation at all in rejecting the shabby compromise that ended up with a five-year term in the discussions to which my noble and learned friend Lord Falconer has referred, and I would reject any compromise on four years. If it is to be four years for a fixed-term, it should be four years now and hereafter.
Lord Wallace of Tankerness
I apologise. I misunderstood the noble and learned Lord. I thought that he was arguing for four years subsequently. But the noble and learned Lord, Lord Falconer—as one of the three key reasons why he said it should be four and four—said that it would be wrong if the Government had one set of rules for the first Parliament and a different set of rules for the others. Of course the Government are not seeking to do that. We are seeking to be consistent with five years both for this Parliament and for subsequent Parliaments. Therefore, he cannot hold that argument against the Government.
Lord Wallace of Tankerness
I will just finish the point and then give way to the noble and learned Lord.
If the Government had come forward with a proposal for five years for this Parliament and four years thereafter, I can imagine the criticism that would, with some merit, have been directed at us.
Lord Falconer of Thoroton
So if this House decided that it should be four years for subsequent Parliaments, the right course would be for the Government to say that it should be four years for this Parliament as well?
Lord Falconer of Thoroton
My Lords, it has been a good and a very important debate. If what the noble and learned Lord says is right about trying to engage the public more in politics and if the Deputy Prime Minister is right when he says, describing the suite of Bills, that,
“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians”,
surely the minimum that this Government should do is to respond to Parliament’s independent view about these issues, not put on a party-political basis. Both Select Committees, which contain a majority of people from the coalition, said that five years was wrong and that four years was right. If this Government are going to demonstrate their sincerity about new politics, should they not abandon simply doing things on the basis of what their own whipped majority wants and listen to what Parliament says? Parliament has said on an independent basis that four years and not five years is right. If the Government do not listen to that, I have to say that it puts in doubt their repeated statement, in particular through their Deputy Prime Minister, that they want to give more power to the legislature.
I shall not repeat the arguments in support of four years. For my own part, the independent evidence supports it very strongly. The only point that I shall refer to is the one made by the noble and learned Lord, Lord Lloyd of Berwick, that you could have five years for this Parliament and four for the next. Myself and the noble and learned Lord, Lord Wallace of Tankerness, are in agreement on the principled position in relation to that. If it is to be four or five years for the future, it should be the same for this Parliament, because this Bill introduces fetters and difficulties in having an election before the end. So I agree with the Government when they say that it should be the same now as for the future.
For all the reasons given, in my respectful submission the right answer is four years. Sadly, I shall not accept the invitation of the noble and learned Lord, tempting as it is. I wish to test the opinion of the House.
Lord Falconer of Thoroton
My Lords, I do not think that the House has any appetite for long debates on any of these next votes, but they are alternatives to the vote that we have just had. This next vote, which is on Amendment 2, involves the following: instead of this first Parliament being fixed for five years, the position should be left as it is. In effect, if the Government want to go on for five years, they can do so and the arrangements should be left as they are, and a fixed-term Parliament can be introduced for the future. I detect some support for the view that, this first time around, the Government should be able to last for five years if they want. If that is the Government’s position, they do not need to amend the law to do that; they can just do it by agreement and all that is required is trust.
I do not intend to go through the arguments about four years or five because the basis of this proposition is that we end up in a situation where we do not change the law for this Parliament but leave it as it is, which would allow the Government to go for five years if they wanted to, but then I will be arguing that it should be four years for the future when we come to those votes. I therefore invite the House to reach a compromise position of no change for the first Parliament and four years for the subsequent ones.
The Lord Speaker
I have to inform the House that, if this amendment is agreed to, I cannot call Amendments 3 to 7 inclusive by reason of pre-emption.
Lord Wallace of Tankerness
My Lords, in the spirit in which the amendment was moved, I do not wish to detain the House. We have had a full debate about the arguments about four years and five, but I shall simply talk about how the Government would prefer the position to be determined with regard to this Parliament. I think that I indicated in my reply to the previous debate that if we are going to have fixed-term Parliaments, it makes sense if we oblige this Parliament to move into the same rules as those governing what will happen in future Parliaments. I understood the noble and learned Lord to say that he thought there was some merit in that consistency.
While I have no doubt that this Government will carry on in our measured fashion up to an election in May 2015, if something is not fixed at that date it is inevitable, as one knows only too well, that speculation can start running rife, and the measure not being in place would perhaps give more grounds for speculation. That would actually hinder the productivity of this Parliament in its latter years when there might be more focus on opinion polls than on the legislative programme, something that the Bill is intended to avoid. We would be far better knowing definitely when the next election would be—namely, the first Thursday in May 2015. I therefore invite the noble and learned Lord to withdraw his amendment.
Lord Falconer of Thoroton
Persuasive an advocate though the noble and learned Lord is, I wish to test the opinion of the House.
“( ) Following the next parliamentary general election after the passing of this Act, the polling day for each subsequent parliamentary general election is to be the first Thursday in May in the fourth calendar year following that in which the polling day for the previous parliamentary general election fell.”
Lord Falconer of Thoroton
My Lords, the final amendment in this sequence is the only combination left, and although it proposes five years for this Parliament—I have been cruelly rebuffed in my two attempts to avoid that—it proposes four years for the future and will, I think, unite the House on my side, apart from a very few noble Lords who I regard as outliers. There is no point in debating the amendment again, because we have done so for the past two hours. I beg to move.
The Lord Speaker
If this amendment is agreed, I cannot call Amendments 4 to 7, by reason of pre-emption.
Lord Marks of Henley-on-Thames
Noble Lords will have heard me say that her discretion is very limited and that she seeks to stay out of controversy of this sort where she possibly can. Plainly, sometimes, the monarch’s role is to get involved and sometimes that is unwisely exercised, as with the dismissal by Sir John Kerr of the Government of Gough Whitlam in Australia. That was not the monarch directly, but it was the monarch’s representative and that shows the danger of the monarch becoming involved. Controversy has raged ever since in Australia and elsewhere about that exercise of the royal prerogative. It is a dangerous one.
My point is that if you read these amendments carefully, a resolution of both Houses would be required for this legislation to survive beyond the first meeting after the next election. That is wrong. If Parliament wishes to change the law, it needs to pass new law to do so.
Lord Falconer of Thoroton
My Lords, as I indicated earlier, I support this suite of amendments. They are important in relation to the position of Parliament and this Bill for three reasons. First, such a series of clauses might well be appropriate in any constitutional legislation that makes a significant change. I do not think that anybody doubts that, because that is how the Government are putting it. I agree with other noble Lords who have said that this is potentially a significant constitutional change. In my respectful submission, before we commit ourselves irredeemably to this change it is sensible to see what happens. For that first reason, I support the amendments.
Secondly, we broadly know—there is no real dispute—the provenance of these constitutional changes. There is no suggestion that there is a widespread desire among constitutionalists or the public for this particular change. It is an insider’s deal in relation to politics, which suits two political parties. As far as one can see, it has no broad political support beyond the two political parties. I venture to suggest that, if the public's interest could be engaged in this and one explained to the public that we might have a situation under the Bill where the Government could be defeated on the Finance Bill, then defeated on a vote of confidence that they put down and they would still not have to have a general election—or that the Government could be defeated on a vote of no confidence put down by the Opposition and they would still not have to leave because they could spend 14 days bribing a variety of rebels and other small parties to join them, so they could hold on in Government—the public might not find this Bill worth supporting. It is an insider's Bill, which does not feel particularly attractive to me.
There is a third reason of importance. I have found in the course of these debates in the Commons and in your Lordships' House that people think that, in relation to a significant constitutional change, there should be public consultation, a desire to find consensus and pre-legislative scrutiny. Indeed, on 25 May, David Heath, the Deputy Leader of the House of Commons said that he favoured pre-legislative scrutiny for this Bill. His only concern was that such scrutiny might lead to the Bill being forced into the next Session of Parliament. Noble Lords will remember that the coalition in the Commons then extended this Session by approximately nine months thereby making it clear that there could be no clash. There was still no pre-legislative scrutiny.
Therefore, I think most people who have debated this would agree that this Bill has not gone through the appropriate procedures for a Bill of this importance constitutionally. Is there no price to be paid for this? Is Parliament to be absolutely supine in relation to this? It is a big opportunity for the coalition Government to put their money where their mouth is. They say they believe in new politics and they say they believe in reaching out for consensus; I cannot see any reason why the noble and learned Lord cannot say, on behalf of the Government, that he agrees with what has been said and that we should see whether the way that the Bill operates between now and the next election gains public support and, if it does, Parliament can form a view about whether to pass the resolution next time around. That would not cost the Government anything, because they would have the Bill they want.
Lord Rennard
The noble Lord is of course a very clever lawyer, so perhaps he could just explain to the House, for the purposes of clarification, how he considers supporting an amendment that says that each Parliament, after each general election, should meet to consider how long the Parliament should last, is compatible with the Labour Party manifesto commitment a year ago, which said that if the party returned to government, it would legislate for fixed-term Parliaments?
Lord Falconer of Thoroton
What you do here is you have a Bill for fixed-term Parliaments, you see how it works and, if it works, you determine whether, as a Parliament, you should continue with it.
Lord Elton
Can he answer the points made by my noble friend Lord Marks, in particular those relating to the Parliament Act and the lapse in the schedule?
Lord Falconer of Thoroton
With respect, the Parliament Act is a total red herring. The noble Lord, Lord Marks of Henley-on-Thames, says that by allowing the decision to depend on a resolution of both Houses, we—Parliament—are giving the power back to a Government with a majority. Of course we are, but we are doing that anyway because they could pass a repealing Act. Surely it must be right for this House to express its disapproval of the way that the Bill has been brought forward by supporting the amendment tabled by the noble Lord, Lord Pannick, the noble Baroness, Lady Boothroyd and the noble Lords, Lord Butler and Lord Armstrong, and to say, “Yes, you can have your Bill, but let us see whether or not a major constitutional change like this—which is very much an insider’s Bill—works, let us see whether or not it is something worth continuing and let the next Parliament decide”.
Lord Marks of Henley-on-Thames
I do not understand how what the noble Lord has said answers my point that in order to revive the Fixed-term Parliaments Act after the next election, you would have to have a resolution of both Houses, while ordinary legislation could be insisted upon by the House of Commons after a delay of a year.
Lord Falconer of Thoroton
Parliament could use its majority to get the repealing Act through, just as it could use its majority to pass the resolution. In my respectful submission, there is no difference between the two.
Lord Turnbull
Can the noble Lord explain my one reservation about a provision I otherwise support, which is about the point in the next Parliament when this option has to be exercised. Can it be exercised at any time through that Parliament, or does it have to be done early on? If it is not early on, is it fair that you do nothing for, say, two or three years, then when it looks as though you might quite like the protections of this Act, you decide in about the third year to revive it? Should there be some point at which you have got to place your bet?
Lord Falconer of Thoroton
I understand the amendment tabled by the noble Lord, Lord Pannick and the noble Baroness, Lady Boothroyd, to be governed by Amendment 25 in this respect. What happens is that this Bill continues only up until the first meeting of the next Parliament, and I assume that the resolution can be passed at any time thereafter. I hope that satisfies the noble Lord, Lord Turnbull.
Lord Turnbull
I think it satisfies me as regards the explanation, but I am not sure that it satisfies me as to whether that is the right outcome.
Lord Falconer of Thoroton
I would have thought it is sensible for Parliament to decide when it wants to consider the resolution—it might well want to consider it early on, or it might well want to consider it later on. I do not see any purpose, as far as the amendment is concerned, in restricting the time as to when the resolution needs to be considered. In my respectful submission, the key point in relation to this is that this is a bad piece of constitutional legislation, in the sense that the process used is agreed by all to be a bad process. Putting aside the argument that says all constitutional legislation should be subject to a sunrise clause, it is right, if we are going to make a change to our constitution of this importance, that there should be some protective measures. This seems, with respect, to be a very sensible protective measure. If we see our role as being to protect the constitution, and we can do that without denying the Government what they want politically, then I respectfully suggest we should take that opportunity. I am grateful to the noble Lord, Lord Pannick, and the other co-signatories to the amendment for giving us that opportunity.
Lord Tyler
The noble Lord has made a very important point about protecting the constitution. Has he considered the consequences, in terms of a very considerable constitutional crisis, if, under the wording of this amendment, one House votes in one way and the other House votes in the other way? That would raise huge problems in terms of the primacy of the other place.
Lord Falconer of Thoroton
In the situation where you have a proper constitutional arrangement, whereby we protect the constitution here, if you took the view that we were not going to support such a resolution, that is the way that our constitution works. We have been good as a House in determining when we defer to the other place. We do not defer only when we think a real constitutional principle is in issue; if we did not defer to the other place on an issue like that, we would be assuming—I would be assuming—that an important constitutional principle was at stake. What is wrong with that? What is our purpose if a part of it is not to defend important constitutional principles?
Lord Gilbert
Is not the danger to which the noble Lord, Lord Tyler, has just referred only likely to arise if both Houses are elected? [Laughter]
Lord Falconer of Thoroton
It is very difficult to answer that question, and I will not try.
This is an important opportunity for the Government to show their sincerity in relation to the way that constitutional legislation should be done and to accept the amendments. If they do not, I will support the movers of the amendment if they put it to the vote.
Lord Wallace of Tankerness
My Lords, as we have heard, Amendments 4, 5 and 25, tabled by the noble Lord, Lord Pannick, with the support of the noble Baroness, Lady Boothroyd, and the noble Lords, Lord Butler and Lord Armstrong, provide that the Bill’s provisions would be subject to a sunset clause combined with a potential sunrise clause after the next general election. As my noble friend Lord Tyler said, these amendments are both interesting and seductive. It is also fair to say that they are somewhat complex.
I want to take a moment to set out what the amendments seem to be designed to achieve. They would enable the next parliamentary general election to be on the date set out in the Bill, namely 7 May 2015. After this parliamentary election, however, the apparatus in the Bill—the date of general elections after the 2015 election; the process for calling early elections, and it is important to remember that there is a process for calling early elections which has sometimes been overlooked; and the consequential matters in the Bill—would all cease to apply unless revived. It could be revived by a resolution of each House of Parliament—a sunset clause combined with a sunrise clause. I think that the noble and learned Lord, Lord Falconer of Thoroton, gave an accurate and factual answer to the noble Lord, Lord Turnbull, when he said that that resolution could take place at any time. It could add to the uncertainty, and I do not think that that is a particularly happy arrangement.
In bringing forward this Bill the Government sought to put in place a provision that we hoped would become part of our constitutional arrangement—fixed terms for the United Kingdom Parliament, just as there are fixed terms for local government, for the devolved Parliaments and Assemblies and for the European Parliament. Two of the Bill’s key provisions are: to deny the Executive the ability to choose a date for a general election to suit their own party political ends, and to deliver certainty about how long a Parliament should last. On Second Reading, the noble Lord, Lord Hennessy, remarked on the importance of these provisions. I think that he also called them a collector’s item, not least because the Executive, and specifically the Prime Minister, were surrendering a long-held power.
If these amendments were accepted, the position would not be clear not only in the Parliament elected after May 2015 but, indeed, in subsequent ones. Again, the political parties would be able to choose whether Parliaments should have a fixed term, in which case all the arrangements would be in place, or whether to return to the default position of the Prime Minister of the day choosing at some stage during the five years, assuming the quinquennium was revived, when to hold an election. That would mean that in each Parliament the Government of the day could have the allegation levelled against them that they were in some way operating for a partisan advantage.
It has been suggested not just in this debate but in a number of debates that the whole purpose of the Bill is to make arrangements for this Parliament. However, it is clear that it is intended that the fixed-term Parliament should, as I said, become part of our constitutional arrangements. That is what the Labour Party said in its manifesto and my own party has argued that for some time. I thought I heard the noble and learned Lord, Lord Falconer, say that that was still the Labour Party’s policy but I fear that supporting this amendment, as he does, puts that into question. It would allow the Government of the day elected after 2015 to decide, if they had a majority, whether to table the Motion or resolution to re-establish fixed-term Parliaments or whether to revert to the situation that existed prior to this Bill.
Lord Falconer of Thoroton
If we discovered that these provisions did not work well or reduced confidence in our constitution, would it not then be right not to prolong them?
Lord Wallace of Tankerness
My Lords, in spite of all the criticisms that the Constitution Committee of your Lordships’ House made of these proposals, it thought that the architecture of Clause 2 and the double triggers for Dissolution were suitable and appropriate. However, if it were felt that other mechanisms were required, clearly amending legislation could be brought forward, and later I shall say something about the importance of using legislation.
In establishing fixed-terms, we are providing that the Government and the Opposition have to face the electorate on a set day. As my noble friend Lady Stowell said on the first day in Committee,
“it would ensure that the Government and the Opposition had to face the electorate on a predetermined date, whatever the political conditions are at that time. That is the most compelling thing about fixed-term Parliaments”.—[Official Report, 15/3/11; col. 223.]
If this amendment were passed, we would allow the situation to revert to the status quo and, as a number of my noble friends have indicated, it would mean that the fixed term would apply only to this Parliament. When this Parliament established fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, a sunset clause was never suggested, and indeed no one in any of the devolved institutions has ever suggested that we should revisit the idea of fixed-term Parliaments. No one is suggesting that Mr Alex Salmond should be able to choose to call an election to suit the best interests of the SNP some time over the next five years. I accept all the caveats that it is not possible to make a complete comparison between this Parliament and the devolved institutions; nevertheless, fixed-term Parliaments for legislatures have worked and no one is suggesting that that should change.
A fixed-term Parliament will deliver certainty. We debated earlier whether better planning is achieved over four or five years, but we believe that a fixed term will facilitate better planning across government. The nation will no longer be left on tenterhooks or have to deal with wild speculation about whether the Prime Minister will go to the country or how the opinion polls are going. In introducing his amendment, the noble Lord, Lord Pannick, talked about Prime Ministers agonising over the decision, and sometimes they got it wrong. Harold Wilson arguably got it wrong when he called an election in June 1970. However, let us not kid ourselves: the agony is over whether it is going to be in the best interests of their party. As my noble friend Lord Dobbs has said on more than one occasion during our debates, the key question is, “Can we win?”. It is not unreasonable for a political party to want to win but that is not necessarily the same thing as national advantage. In his book, The View from No. 11: Memoirs of a Tory Radical, my noble friend Lord Lawson said about the then Prime Minister, now the noble Baroness, Lady Thatcher:
“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.
Noble Lords may say that that is stating the obvious but that is what the Bill tries to change. There will be a fixed term and it will not be possible for the Prime Minister of the day to choose the moment that will be to the party’s partisan advantage.
I should be interested to know how the proposers of the amendment would react if the change were made by repealing legislation rather than having an affirmative order. How would they react if a Minister came to the Dispatch Box of your Lordships’ House and argued that the Government wanted to return to the Prime Minister of the day being able to make a decision to suit his party interest rather than sticking with fixed terms? Perhaps in his reply the noble Lord, Lord Pannick, will tell us how he expects all this to work. The schedule of consequential amendments contains quite important and weighty matters—for example, the repeal of the Septennial Act, changes to the Regency Act 1937 and provisions relating to the demise of the Crown. Does he see those being revived, having been repealed? He will know that there are provisions in the Interpretation Act concerning the revival of an Act that has been repealed. However, I think that there is some uncertainty about whether these would be revived.
The other point that has been made is that not much has changed from the present situation, in which a Government have come to power and introduced a maximum fixed five-year term. I do not think it is fair to say that that is analogous to the situation that would be in place after 2015. The present system is uncertain for the voter and we think that that uncertainty should be removed by introducing fixed terms. However, these amendments would add an entirely new layer of uncertainty for voters. Not only would they not know, when voting, when a subsequent general election might be but they would not even know the legal system under which the next Parliament would operate and how the next general election date would be chosen. I do not believe that that is fair or sensible for the electorate.
It has also been pointed out that the Bill alters the apparatus for calling elections. The crucial difference is that the Government propose moving to fixed terms through an Act of Parliament subject to all the safeguards that that implies. We have heard much in this debate about the importance of our constitution. The noble Baroness, Lady Boothroyd, talked about the fact that we do not have a written constitution. However, if the constitution is changed, it is done through an Act of Parliament rather than through a special procedure, and people have cherished the idea of parliamentary sovereignty.
It is not the case that this Parliament, through this Bill, is trying to bind its successors. That point was made forcefully by the noble Lord, Lord Butler of Brockwell, but it was answered by my noble friends Lord Tyler and Lord Marks. We do not seek to entrench these provisions. We cannot bind a future Parliament. However, we can say that this important constitutional change has been brought into the law of our land through an Act of Parliament—by First Reading, Second Reading, Committee, Report and Third Reading in the House of Commons and by the procedures that we know in this House of First Reading, Second Reading, Committee, Report and Third Reading and by Her Majesty giving Royal Assent. That is how we change our constitution—by Act of Parliament.
Surely, if we were being true to our constitutional heritage, we would say that any change to that heritage should also be carried out through an Act of Parliament. It would have to have the same scrutiny as this Bill has clearly had and Ministers would, in the other place and this place, have to argue their case for making the change. I do not think that we can just sweep aside the concerns raised by my noble friend Lord Marks. With the exception of amendments to the Parliament Acts, with this amendment a resolution of the House of Commons could be overturned or at least thwarted by a resolution of this House. It is a unique situation and we should think long and hard before going down that route. If we do go down it, one can imagine the tensions there would be at some stage if the other House had voted for a fixed-term Parliament but this House decided it would not. I fully understand and associate myself with the concerns about our constitutional procedures and heritage, but we change the constitution by Act of Parliament and not by simple resolution. A very new venture is embodied in these amendments.
Lord Wallace of Tankerness
I cannot readily think of one off the top of my head. However, there are enough people in the Chamber and, if there is such a mechanism, I am sure that one of them will be able to tell us. My noble and learned friend, who has wide experience, might be able to think of one, but I cannot. However, the “sunsetted and sunrisen” approach is very novel.
Lord Falconer of Thoroton
My recollection is that we put sunrise or sunset clauses into a significant amount of the terrorist legislation, the result being that they would continue to have an effect only if there had been a resolution in both Houses of Parliament to carry on with them. I think that that is an answer to your Lordships’ question.
Lord Mackay of Clashfern
With respect, that is not an answer to my question. The terrorism provisions end the Act of Parliament unless it is continued by a resolution, whereas this proposal, as I understand it, would suspend the operation of this Bill, supposing that it becomes an Act, for a certain period without repealing it. At the moment—I am willing to be taught—I cannot think of that having happened before. However, novelty is perhaps the watchword of the season.
Lord Falconer of Thoroton
The noble and learned Lord is right. There is a difference between an Act lapsing and not being revivable and the situation under this provision where if it lapsed for the first Parliament because it was not passed in resolution, it could be revived for the second Parliament. In practice, however, the difference may not be that great.
Lord Wallace of Tankerness
My Lords, I stand to be corrected, but as far as I am aware it is a novel approach. Not only could it lapse and be put in suspension; it could be revived, lapse again and be revived again. We are not switching on and off light bulbs. There are quite important issues here and I am not sure that these procedures are designed to give them proper weight. That is why we argue that primary legislation should be the way of dealing with the issue, if it is felt that the provisions for a fixed-term Parliament are not working and should not be the basis for the future.
Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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Lord Grocott
The problem with that argument is that, yes, it is true that if the election is in May then normally you have the Queen’s Speech the following year, in November. But if there is an election in October—and one that I vividly remember is the one in October 1974, because it was when the noble Lord, Lord Tyler, went out and I came in—the Queen’s Speech is the following November. The convention is that the Queen’s Speech is in November and if the sequence of elections means that that does not happen, it is quite right that there is a long Session of 18 months. There is a bit of a case for that, I suppose; all Governments are wild with enthusiasm when they come in and have lots of exciting things to propose, such as Fixed-term Parliament Bills, and so on. So it goes for a longish Session. But this was a choice for the Government, once they had decided that there would be a five-year Parliament, between having a year Session or a two-year Session. If he thinks there is not much to choose between an 18-month Session, which as he rightly says obtains when there is a May election, and a two-year Session, let me say that it would have been heaven to me as Chief Whip to have had a two-year Session. There is no pressure on you and no trouble; you can spend as long as you like on Committee and Report stages, and so on. So I do not think that that argument held up very well.
I do not suggest evil intent on the part of the Minister or anyone else in the Government in this respect at all. I am simply saying that not much thought went into what was in fact a quite substantial shift of power between Government and Opposition. As I said, that is a pretty delicate matter in our parliamentary procedures in both Houses, because it shifted the balance of power substantially in favour of the Government. I thought that the Minister really gave the game away in this second sentence:
“There was an option to truncate the Session about now, but it was thought that the best thing to do was to go to next year”.—[Official Report, 21/3/11; col. 526.]
The question from where I am standing is: the best thing to do for whom? In whose interest was it unilaterally to determine that there should be a two-year Session?
I simply put two questions to the noble and learned Lord, Lord Wallace. First, was there any consultation through the normal channels about the Government's decision unilaterally to decide, for the first time in the past 30 or 40 years—I am sure that the historians could go much further—on a two-year Session which is massively to the Government’s advantage? Secondly, I really would like to know, once it was determined to be the “best thing to do”, in whose interest the decision was thought to be made. I beg to move.
Lord Falconer of Thoroton
My Lords, we support this amendment. It goes to the heart of this Government’s claim that they wish to empower the legislature as against the Executive. The reason it matters, as my noble friend Lord Grocott said, is that where there is a restriction on the time to get legislation through, there is a huge incentive for any Government, whatever their hue, to reach agreement with the Opposition on as many issues as possible. If they do not reach agreement on those issues, the consequence is that their legislation is delayed.
Parliament is disempowered if a Government feel able, as this one did, to double the length of a Session. This Government did so on a whim, as there was no consultation. It appears from the speech of the noble and learned Lord, Lord Wallace of Tankerness, that they simply decided to go for two years without giving any justification. This House is entitled to hear the Government's opinion on the number of Sessions there should be in a Parliament and their commitment in relation to that. Do they understand the importance of empowering the Chamber in each House by having a limit on the time available to them for the passage of legislation?
If satisfactory answers are not given, this should be put to the vote. It is an important issue. The answers must include one to the question which my noble friend Lord Grocott put, because that is really the litmus test of how committed the Government are to the idea of there being a year-on-year Session. This is another opportunity for the Government to put their money where their mouth is. Are they true exponents of what they describe as the new politics, or are they simply motivated by a desire to make their life as easy as possible—that is, the worst sort of Executive?
Lord Brooke of Sutton Mandeville
My Lords, I apologise for speaking at this late hour but I made it clear in Committee that if anybody referred to Mr Asquith again, it would stimulate me into speaking. Although I was not here to hear the reference to him at the beginning of this afternoon's proceedings, it was alluded to later in the debate on Amendment 1. Therefore, here I am, on my feet.
Your Lordships’ House will recall the Sherlock Holmes case where the great detective pointed out to Dr Watson the significance of the dog not barking in the night-time. Those of your Lordships who were here to listen carefully to the powerful speech by the noble Lord, Lord Morgan, on Amendment 1 will have noticed that he omitted from his list of five-year Parliaments in the post-war era the period from 1945 to 1950. He thus omitted the great achievements of the Labour Government of the Earl Attlee of that period.
In generosity, I take it that the noble Lord, Lord Morgan, realised that it required a five-year Parliament to produce the achievements of what I understand the Labour Party has always thought was the greatest Labour Government of them all. As to the reason he omitted it, I suggest that it was considered either that it would be sacrilege ever to run the risk of toppling the Attlee Government’s record from its plinth or that Labour had given up hope of ever challenging the Attlee Government’s record and felt that Labour should conceal the dilemma I am describing by limiting the life of any future Labour Government to, at most, four years as a self-immolating, self-denying ordinance. The noble Lord, Lord Morgan—not to mention the noble and learned Lord, Lord Falconer—was prudent enough not to announce which of the cases I have adumbrated was correct and now we shall never know.
Lord Pannick
My Lords, both the noble Lords, Lord Norton of Louth and Lord Rennard, proceed on the basis that the power to bring forward or postpone a general election would be exercised only in circumstances of crisis. It is very difficult—or impossible—to foresee such a crisis. I give noble Lords a possible example of when one would need to use such provisions where there is no crisis. Suppose that this country is awarded the Olympics or the World Cup. Each of those events will occupy a period of two weeks, for the Olympics, or four weeks, for the World Cup. One would know of such events years in advance, so there would be no crisis, but it would be entirely appropriate for a general election not to take place by consent of all concerned during such events.
Lord Falconer of Thoroton
I had thought before hearing the debate that I would tend to support the noble Lord, Lord Rennard, but I found what the noble Lord, Lord Norton of Louth, said powerful. Everyone appears to agree that the election is unlikely to be called early anyway; if there is sufficient consensus for it to be called early, that can be dealt with by the two-thirds provision. If it is to be up to two months late, that is a moderately massive exception and if it is to be done, there needs to be consensus. If there is that degree of consensus, it is extremely likely that emergency legislation can be got through in order to achieve it. We are much better off being certain. Having not intended to take this view, I am afraid that I found what the noble Lord, Lord Norton, said, rather powerful. I invite the Government to reflect on what the noble Lord said and perhaps bring the issue back at Third Reading. If the Minister brings back the issue at Third Reading in a way that reflects the arguments of the noble Lord, Lord Norton, or alternatively says, either now or at Third Reading, why the noble Lord is wrong, I would not support the noble Lord. However, if he does not, my inclination is to support the noble Lord, Lord Norton, either now or, as seems more sensible, after the Government have had an opportunity to reflect and come back at Third Reading.
Lord Wallace of Tankerness
My Lords, as has been indicated, the purpose of the operation of the order-making power in Clause 1(5) is to provide, by a resolution of both Houses, for a Parliament to be extended by two months or for an election to be brought forward by up to two months because of an emergency or unforeseen circumstance. The Bill provides for five-year fixed terms and it is envisaged that elections would happen on the first Thursday in May every five years. However, we are conscious that there could be a short-term crisis that would mean that it would not be practicable to hold the election on the prescribed date. As was discussed in earlier debates and again this evening, such a scenario occurred in 2001 when an outbreak of foot and mouth disease meant that it was necessary to delay the date of the local elections in England, which were set by statute, and primary legislation was required. As it was only four years into the Parliament, it did not theoretically affect the date of the general election, although the widely anticipated date of the election was postponed because of the outbreak.
The power would allow the Prime Minister to vary the date by affirmative order by two months, earlier or later. It is worth bearing in mind that the Delegated Powers and Regulatory Reform Committee examined this power and concluded that it,
“does not consider the power to be inappropriate in principle”.
However, it recommended that the Bill should be amended to require that a statement setting out the Prime Minister's reasons for proposing the change of polling date must be laid before both Houses at the same time as the draft order. The Government considered and listened to the recommendation and the case made by the committee and, as noble Lords will recall, made the appropriate amendment in Committee, which indicated that we were ready and willing to respond to the committee.
The power is deliberately framed to be non-prescriptive. It is intended to be used in emergencies when we cannot predict what situation will arise, and to deal with a variety of scenarios. When including this power in the Bill, as my noble friend Lord Norton indicated, we looked at powers in the devolution Acts that allow for the dates of general elections to the devolved institutions to be delayed or brought forward. In the case of the foot and mouth outbreak in 2001, there would have been no point in bringing forward the election.
I accepted earlier that I had struggled to find a reason why we might want to bring forward an election. The noble Lord, Lord Pannick, suggested that the Olympics or the World Cup might be such occasions. We considered these as well. We know that the Olympics are unlikely to be awarded again to Britain for the foreseeable future, given that they will happen here next year. Regrettably, England did not succeed in its bid for the World Cup, and I am not sure that Scotland, Wales or Northern Ireland have a bid in preparation. I offer as a piece of political trivia that, such is the importance of the World Cup, the one parliamentary election in recent times not to be held on Thursday was the Hamilton by-election in 1978, which was held on a Wednesday so that it did not clash with Scotland's opening match in the World Cup in Argentina. I am not sure that it did Scotland much good.