Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I tabled an amendment in exactly the same terms as the noble Lord, Lord Norton of Louth. As he is your Lordships’ leading constitutional expert, I felt very good that I had arrived at the same idea, and I am extremely happy to appear on the Marshalled List as having signed up to his amendment.

The provision is so vaguely drafted as to be almost entirely without meaning. I know that it is borrowed from the Parliament Act 1911 but that does not mean that it is an appropriate precedent, particularly, as the noble Lord, Lord Norton of Louth, has just pointed out. In that Act, there is a clear definition of a money Bill, but there is no clear definition of a no confidence motion in this measure. The Clerk of the House of Commons, in giving evidence to the Select Committee in the other place, was of the opinion that the question of whether consultation was practicable would become a legal question. It would be open to legal challenge in so far as anything in the Bill is liable to be open to legal challenge. We had a full discussion of that in an earlier debate.

One observes that judicial reviews have been upheld again and again against the Government on the grounds that Governments had failed to consult properly. If it is a question of whether the Speaker may or may not have consulted properly according to the requirements in the Bill, I suppose that that, if anything, might give an opening to judicial intervention, although I am not seriously afraid that that is the case. The real concern about this provision is that it is almost meaningless. What does “so far as practicable” mean? What would be proper consultation in these circumstances? The requirement to consult does not oblige the Speaker to agree with the Deputies. The Deputies themselves might disagree. In fact, one might surmise that they are rather likely to disagree in the circumstance of a no confidence vote that will occur in the most fraught and complex political circumstances. There will be enormous pressure not only on the Speaker of the House but also on the Deputy Speakers if they are to be involved formally in this process. The Deputy Speakers have disclaimed their party allegiance in their new capacities but, none the less, it is only realistic to anticipate that they would come under immense political pressure from members of their own political parties. They would need to be very sturdy to ignore all that. In the previous debate, the noble Lord, Lord Martin of Springburn, and the noble Baroness, Lady Boothroyd, described how they would imagine the atmosphere to be in the House on the occasion of a no confidence vote. They gave us to understand something of the sort of pressures that would be brought to bear not only on the Speaker but, if this provision remains in the Bill, on the Deputy Speakers, too.

In the end, the Speaker will be on his own. It seems that this provision gives him no useful cover or protection against the political storm. A very sensible conclusion of the Constitution Committee, contained in its report at paragraph 159, was that, whether or not this turns out to be a legal question, an obligation on the Speaker to consult with the Deputy Speakers should be a matter of internal House of Commons procedure, should not be contained within the statutory provisions of the Bill and therefore should be omitted. Rather regrettably, the Government rejected this advice in their response to the report of the Constitution Committee at paragraph 60. The Government are quite keen to pray the Constitution Committee’s recommendations in aid when they agree with them. They have not done so on this occasion, however. They cite the precedent of the Parliament Act 1911, which, they say, has worked well. As we suggest, it is not a terribly useful precedent; certifying a money Bill is a matter of ascertaining fact and hardly contentious. Certifying a vote of no confidence would be a very different thing.

I hope that the Minister will agree to look again at this sensible recommendation of the Constitution Committee and that he will agree to the amendment proposed by the noble Lord, Lord Norton of Louth, and myself.

[Lord Falconer of Thoroton]

On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.

It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.

I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.

Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.

It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, my noble friend Lord Norton of Louth was quite correct, as other speakers in this debate have indicated, to draw attention to the provision in the Parliament Act 1911, which indicates:

“Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection”.

My noble friend inquired whether that was simply because of precedent and suggested that there are differences between the definition of a money Bill and what is required of the Speaker in the context of this clause. I accept that this arises from there being a precedent for such a requirement and acknowledge that there is a difference between determining what is a money Bill and the nature of the certification that would be required of the Speaker in the context of this Bill. What they have in common is that they are matters which have important constitutional consequences. That is why we thought it appropriate, given that there is a precedent for the Speaker to consult two very senior members—in the case of the Parliament Act, two members of the Chairman’s Panel and in this case Deputy Speakers—that we should follow that precedent.

When I was listening to the noble and learned Lord, Lord Falconer of Thoroton, I was thinking that if we had not included this we would probably have been accused of not having thought this through. In the Parliament Act, there is provision for consultation with the Deputy Speaker and we would have been asked why we had not included a provision to consult the Deputy Speakers.

[Lord Falconer of Thoroton]

I feel that the noble and learned Lord is getting a bit paranoid. No, I would not have said that.

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

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[Lord Forsyth of Drumlean]

I was rather puzzled by the amendment, for the same reason the noble Lord, Lord Grocott, indicated: that this has never been an issue in the past. I have been thinking about what is driving this stuff. It appears to be the notion that the Prime Minister has some enormous advantage in being able to choose the date of the election and, if this amendment were agreed, its timing. For those Prime Ministers whom I have known and who have had to decide these things, it is an agonising decision. Have too long a campaign and you might lose because the public get bored; have too short a campaign and you might not get across your arguments or there may be an event which you are unable to control and which will affect voters’ views—for example, some trade figures. That there is some great advantage in the Prime Minister deciding the date seems to be what is driving this stuff. It is fundamentally misguided and takes away the flexibility which you need in the system to apply common sense.

Perhaps I may make one slightly partisan point. The Parliamentary Voting System and Constituencies Bill recently passed through this House. The Government moved heaven and earth to make sure that that Bill went through the House so that the referendum could take place on the same day as the Scottish and local government elections, thereby ensuring the turnout. Perhaps I may say to my noble friends in the Liberal Democrat party that it is inconsistent for them to argue, on the one issue, that the Executive’s power and patronage can be used to try to achieve a particular result, and then, on another issue such as this, to say, “Well, we can’t possibly have the Prime Minister deciding the timing of a general election campaign”. It is a power which Prime Ministers have sometimes tried to use to advantage in the past and it has turned out to be something of a curse.

The fundamental thinking behind the amendment, that there is some great defect in our system because of prime ministerial ability to choose the date and timing of a general election, is misguided. I agree with the noble Lord, Lord Grocott, that we end up trying to create a box-ticking culture for the conduct of our public affairs. It will come to grief, as we have seen in many other areas of our public life where this philosophy has been applied.

[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

[Lord Wallace of Tankerness]

My Lords, I readily understand the thinking behind the amendment moved by my noble friend Lord Marks. If the Bill is intended to remove the opportunity for the Prime Minister of the day to take a partisan view on the timing of the election, I can see why, the Prime Minister having lost a vote of confidence, you might then wish to restrict the Prime Minister's room for manoeuvre on setting the date—either to go too soon, which may give a campaigning advantage; or to delay unreasonably. Nevertheless, the amendment is unnecessary. More importantly, practical issues could flow from it.

If we take the case of delaying too long, in the context of Clause 2(6) and the Bill as a whole, it is clear that the Prime Minister would be required to recommend to Her Majesty a prompt election. If two-thirds of the House—the other place—had voted for an early election, one would imagine that the Prime Minister would be as anxious as anyone to get on with it. Likewise, although the Prime Minister may be less keen for an early election where there has been a motion of no confidence, and no other Government have been formed, that would also be a clear statement from Parliament that it expected to see change and an election. The electorate would share that view. This is pure speculation, but if the Prime Minister tried to pull a fast one and delay unduly, that decision could be subject to challenge.

On the other hand, there are limits as to how quickly the Prime Minister can move if he seeks an early polling day. Clause 3(1) dissolves Parliament 17 working days before polling day, so the timetable at Dissolution is fixed and is known to all sides. Therefore, there is no way that that could be cut short for advantage. There is already that backstop as to how an election could be called.

My biggest concern is practical. The Government decided not to set specific limits that inadvertently tied hands in circumstances which could lead to a situation such as that described by the noble and learned Lord, where the election campaign might be some time between 18 December and 16 January. It is almost inevitable that if we were to try to fix those times, the first example would be when it fell in a period where campaigning would be very difficult. We should allow flexibility to allow a general election to be called on a date—which, one would assume, would be consulted on among the parties—to minimise disruption in a Christmas period or summer vacations.

Therefore, the amendment is neither necessary—provision is already there which would stop a Prime Minister calling an election too soon; he would clearly be challenged if he tried to delay unduly—nor practical in trying to tie hands. That might run into more problems than the amendment is intended to solve.

[Lord Falconer of Thoroton]

The noble and learned Lord said something important there. He said that the Prime Minister would be subject to challenge if he sought to delay. Interestingly enough, it is a statutory power whereby the Prime Minister is obliged to recommend a date. Is it challengeable by way of judicial review?

[Lord Wallace of Tankerness]

It could be challengeable by judicial review if he was abusing his decision on a recommendation. That is why there is a safeguard there, which would mean that it would not be possible to delay in an unacceptable way.

[Lord Falconer of Thoroton]

Just to pursue that: the Government envisage a situation that could not arise now—because there is absolute discretion on the part of the Prime Minister—whereby the Prime Minister recommends to the Queen that the date of the general election be, say, 1 May 2013, and other parties can take the Prime Minister to court, arguing that that is an unreasonable exercise of his discretion and ask the court to fix the date of the general election, which it could set to take place two weeks earlier or two weeks later. Is that what the Government envisage as a possibility?

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

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[Lord Wallace of Tankerness]

My Lords, I readily recognise where the noble Lord, Lord Howarth of Newport, is coming from on this. As the Committee will know, the Parliamentary Voting System and Constituencies Act 2011 requires boundary review reports to be published on a five-yearly timetable, starting in October 2013. Once this Bill is enacted, general elections will occur at five-year intervals, starting in May 2015. In the absence of any early elections, the effect would be that boundary reviews generally would be published 18 months before each general election. Our debates on the previous Bill were about allowing an opportunity for the political parties and electors to become familiar with new boundaries and, importantly, for the electoral administrators to gear up accordingly.

I understand that the intention behind this amendment is to realign the five-year cycle for boundary reviews in the event that an early election causes them to get out of sync. Unfortunately, the amendment does not achieve this. It relates only to when the order is submitted to Parliament; there is no provision made to adjust the cycles that the Boundary Commissions themselves will work to. That is not simply a technical objection but an important and fundamental one. Broadly, I have sympathy with what the amendment is trying to do to ensure that there is one boundary review in each Parliament so that constituencies remain of roughly equal size and votes remain of equal weight. We looked at the interaction between the boundary reviews and the provisions of the Bill. The conclusion that we reached, which may be an echo of what some Members said in earlier debates, was that we simply could not legislate for every scenario under a fixed-term Parliament provision. This is one where it would be far better for judgments to be made by future Parliaments, in possession of knowledge of the circumstances, depending on when the early election—if such there was—took place.

I give a brief example. If, for the sake of argument, an early election was to occur before a full boundary review had been completed—say, in early 2018, when the report from the Boundary Commission would not be due before October that year—this amendment says nothing about what should happen to that boundary review, which would be well under way and ready to report in October 2018. It says simply that the next order should not be brought into force until 2022—that is, before the election of 2023. That raises questions about whether the review that was due in 2018 should be implemented in 2022, which would mean that the boundaries could become out of date. Is it the intention that the first review after an early election should have a 2022 deadline, in which case additional provision would be required to define which register that review should use? Without that additional provision, the commissions would have to use the December 2020 register, which would give them a very short time in which to conduct the review.

As I indicated, while it would be preferable—and may still be possible for the dates of some early elections—to continue the cycle of reviews that is there, it is far better left to a future Parliament to deal with the specific circumstances if it felt that boundary reviews were not keeping pace with the cycle of elections. In any event, even without doing anything, future elections are likely to be fought with more up-to-date registers than was the case for England in 2010. I welcome what I am sure is the well intended purpose of the noble Lord’s amendment, but I do not believe that it achieves that purpose. I therefore ask him to withdraw it.

[Lord Falconer of Thoroton]

Does the Minister envisage Parliament dealing with the issue by primary legislation each time?

[Lord Wallace of Tankerness]

As things stand, it probably would have to be by primary legislation. It might be a very simple Bill, but I think in trying to be too prescriptive at this point you could run into difficulty. As I have said, there may well be circumstances in which the early election, should it occur, would nevertheless be one in which the actual scheduled date would still fit in quite readily and allow a reasonable time for the political parties and electoral administrators to make the necessary arrangements. That is why I do not think we can predict what is going to happen and it is better to leave it to the future—to see whether it would in fact be necessary—in the belief, and indeed the knowledge, that even under the present system, without anything further, we are likely to be fighting elections on more up-to-date electoral rolls than was ever possible prior to the passage of the 2011 Act.

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[Lord Falconer of Thoroton]

My Lords, this has again been an important debate. I pay particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again.

I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a Motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons.

The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words “Motion of no confidence” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was.

Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A Motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use “confidence” or “censure”. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, “This is a Motion of confidence”. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though “confidence” or “censure” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down.

This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: “We censure the Government for their determination to sell off the forests”. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states:

“That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order”.—[Official Report, Commons, 1/11/1956; col. 1631.]

That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated:

“That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues”.—[Official Report, Commons, 11/12/1956; col. 845.]

Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue.

Clause 2(2), as drafted, says:

“An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)”.

Is it intended that the phrase,

“a motion of no confidence”,

should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”.

That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states:

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

the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”.

Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states:

“That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country”.—[Official Report, Commons, 4/12/1952; col. 1783.]

Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.

[Lord Forsyth of Drumlean]

The noble and learned Lord is giving examples of Motions that were treated as confidence Motions. Am I missing something here? Surely the context has changed. Those Motions are in the context in which a Prime Minister can say, “I am putting this policy to the House. I regard it as a matter of confidence. If I don’t have the support of the House, I’ll go to the country”. However, the Bill, as the noble and learned Lord has pointed out, removes the Prime Minister’s ability to call a general election—to go to the country and take his case to the people ahead of the conclusion. In that context, what would constitute a Motion of confidence is quite different from the position in which the Prime Minister cannot go to the country, and I think that the reason why my noble friend has had to fall back on a specific Motion that says that the House has no confidence in the Government arises from that. Therefore, the Erskine May examples arise from a situation in which the Prime Minister can call a general election at any time in order to secure support in the country.

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[Lord Falconer of Thoroton]

If the noble Lord is right, a massive constitutional change is being proposed. I did not realise that that was the intention. Is it intended that the fundamental principle of our parliamentary democracy—that if you lose the confidence of the Commons, you have to resign—should go? If that is so, then the principles underlying a Motion of no confidence presumably remain the same as they are referred to in Erskine May. It would be extraordinary if they did not, because the phrase that is being used is precisely the same as the phrase used in the Bill for determining whether there will be either Dissolution or a resignation. A Motion of no confidence is a well recognised phrase in Erskine May and there must be a reference to that in the Bill. The fact that there would not necessarily have to be a general election does not change the fundamental principle in our constitution that if you lose the confidence of the Commons you have to go. That, as I understand it, is what is intended by this provision.

[Lord Forsyth of Drumlean]

Under the present rules, it is perfectly possible for a flagship policy to be lost in the Commons and for the Prime Minister of the day to move a Motion of confidence that wipes the slate clean. Therefore, it is not as straightforward as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

The noble Lord may or may not be right. He has been in the Commons, I have not, so he will understand the situation better than I do. I do not have the experience of the noble Lords, Lord Martin and Lord Forsyth, but from looking at the history books it would appear that, by a process of general consensus, the Commons understands what is and is not a Motion of confidence. The best example of what was not a vote of confidence occurred on 10 March 1976, when the Labour Government’s public expenditure plans were defeated. I should have thought that the Government would have had to go on that basis, but they did not.

The next day there was a vote on whether the Adjournment was a confidence Motion. Presumably the Prime Minister said, “I’m treating this vote on the Adjournment as a vote of confidence”, and the Commons understood it to be such. How is the Speaker supposed to determine that a vote on the Adjournment as a legalistic matter is a vote of confidence? He could not, either under the Bill as drafted by the noble and learned Lord, Lord Wallace of Tankerness, or under the proposals of the noble Lord, Lord Norton of Louth.

[Lord Norton of Louth]

As the Bill now necessitates, instead of saying that we are on the Adjournment and that this will be treated as a Motion of confidence, one would put down explicitly worded confidence. That would be the essential change.

[Lord Falconer of Thoroton]

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

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

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

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

[Lord Cormack]

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

[Lord Falconer of Thoroton]

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

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

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

“passes a motion of no confidence”,

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

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

[Lord Cormack]

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

[Lord Falconer of Thoroton]

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

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

--- Later in debate ---

If we are in a situation where we have a framework of a fixed-term Parliament and we are envisaging a situation where there could be an early election, it is important that it is very clear what will constitute the trigger mechanism for that early election. Simply leaving it to a consensus is not sufficient in these circumstances.

[Lord Falconer of Thoroton]

I completely understand that it is different under the Fixed-term Parliaments Bill but remember that the consequence now of the Government losing a vote of confidence is that they at the very least have to resign and at the very most have to have a general election. There is a very high price to be paid now in relation to losing a vote of confidence or no confidence. Can the noble and learned Lord identify historically any occasion where there has been a dispute over whether something is a vote of confidence?

[Lord Wallace of Tankerness]

I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.

--- Later in debate ---

Debate on whether Clause 2 should stand part of the Bill.

[Lord Falconer of Thoroton]

My Lords, our debates on Clause 2 have been very significant. Would it be possible for the noble and learned Lord, Lord Wallace of Tankerness, to suggest some process? He has been accommodating and conciliatory, and he has broadly shared the aim, expressed all around the House, of there being no uncertainty about the circumstances in which an election would be triggered. As I understand it—I may have misunderstood—the Minister is not seeking to dislodge the basic principle that, when a Government lose the confidence of the House of Commons, that Government have to go.

Could I invite the noble and learned Lord to convene a meeting of all interested parties—I do not mean political parties—from all over the House to discuss this, with a view to agreeing a Clause 2 that reflects the concerns that he appeared to share? The noble and learned Lord—I hope that this will not be a case of “once bitten, twice shy”—was accommodating in indicating during the Parliamentary Voting System and Constituencies Bill that he would come back with things, and he is leaving me with the impression that he shares many of our concerns. Perhaps the way to move forward is for those who are interested to meet him to try to agree a clause that reflects the sort of principles he just went through. Does that suggestion find favour with the noble and learned Lord?

[Lord Wallace of Tankerness]

I am certainly more than willing to meet. I will need to discuss with ministerial colleagues—it will not be just I who have to reflect on this—but I am certainly willing to meet, although I do not know whether that can be done constructively with a large number, or whether it is better done with a smaller number. The noble Lord, Lord Martin, has already suggested that he and the noble Baroness, Lady Boothroyd, would be willing to meet. I have said that I would welcome that opportunity, although that would be to deal with a discrete part of the Bill. I am sure that, through the usual channels, we can devise some way of meeting, either individually or by convening a much larger meeting. I am sometimes sceptical about how far you can get without convening a larger meeting. I will work out the best way to take that forward, with an undertaking to meet and include those—without, I hope, being exhaustive—who have made an important contribution to our deliberations in Committee.

[Lord Falconer of Thoroton]

I am very grateful to the noble and learned Lord. One of the things that very much infused the debate on Clause 2 is the question of what the Government have in mind when they use the phrase “motion of no confidence”. For example, it was never clear—I am sure this is my fault for not listening; it is very late—whether a motion of no confidence includes being defeated on a motion of confidence. Does a motion of no confidence include things that are not explicit? Does the definition of a motion of confidence in Erskine May apply in helping us to construe the reference to a motion of no confidence in Clause 2? We need to know the answers to those questions. If the noble and learned Lord does not want to answer now, I am more than happy for him to write. However, we do need clear answers to those questions.

[Lord Wallace of Tankerness]

My Lords, I tried to answer on this in response to the previous debate, when I indicated that we recognised that no-confidence motions could take and have taken many different forms, and that our desire in the Bill was not to be prescriptive and not to restrict flexibility. That is where we started from and that is what we sought to do. I think a vote of no confidence would not include a vote of confidence, but it would not be beyond the wit of a leader of the Opposition to table an amendment inserting the word “no”. That is clearly part of the discussion that we can have. The noble and learned Lord asked what our proposed statutory definition of a motion of no confidence was. In response to the earlier debate, I said that we recognised the many different forms that it could take, as he himself illustrated in his speech. Our desire was not to restrict flexibility. We will enter the discussion, as I have said, bearing in mind the comments that have been made from various parts of your Lordships’ Chamber.

[Lord Falconer of Thoroton]

There was just a flicker there, in that the noble and learned Lord said a vote of no confidence would not include a vote of confidence. Therefore, you could have the strange situation where the Government are defeated on a vote of confidence but do not resign at that point. Indeed, there could not be a general election under those circumstances; under this Bill, there would then have to be a vote of no confidence at that point. How nutty is this Bill?

Clause 2 agreed.

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Moved by

[Lord Falconer of Thoroton]

52: After Clause 2, insert the following new Clause—
“Parliamentary general elections coinciding with scheduled elections to a devolved institution
(1) A parliamentary general election shall not be held within 30 days of a general election to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly (“the relevant devolved institutions”).
(2) Should an early general election be called under section 2 of this Act such that it would occur within 30 days of scheduled general elections to the relevant devolved institutions, the Prime Minister shall, after consultation with all of the relevant devolved institutions, lay orders before Parliament to move the date of either the parliamentary general election or any of the general elections to any of the relevant devolved institutions so as to ensure compliance with subsection (1) of this section.
(3) Any order laid by the Prime Minister under this section shall not move any of the general elections either to Parliament, or to the relevant devolved institutions, by more than 35 days from the date on which they would otherwise have taken place.”

[Lord Falconer of Thoroton]

My Lords, this amendment deals with the question of the potential coincidence between elections for the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Our draft gives the Prime Minister the ability to lay an order to ensure that a general election must take place at least 30 days apart from the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly elections, to avoid a coincidence of these occurring on the same day.

I put my amendment down to probe the Government’s position on this. Everybody understands that the first general election under any Fixed-term Parliaments Act is likely to occur at or near the same date as the elections for the institutions I have referred to. Subsequent to my putting my amendment down, the Government, in consultation with the relevant institutions, have now reached some sort of agreement and have now put their amendments down, as Amendments 55B and 55C. Would it be convenient to your Lordships if we heard what the Government have proposed first, because I do not fully understand it? Once we hear what the Government have proposed, it would then be possible to see whether we need to proceed with our probing amendments.

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

[Lord Falconer of Thoroton]

The Minister says that people will know. Does he envisage that the Bill will be passed by 5 May 2011?

--- Later in debate ---

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

[Lord Wallace of Tankerness]

My Lords, I sometimes wonder if the noble and learned Lord listened to what I said. I have answered those three questions, but perhaps, with respect, I did not explain clearly enough, so I shall try again.

The first question was with regard to whether we would have a four-year or a five-year Parliament. Clearly that is a debate that we will come to at Report, and I am not going to rehearse again the arguments why I believe the five-year option is preferable to the four-year one. If the Committee agrees today that these amendments in my name should be passed, I believe that they should stay because people who will be voting on 5 May should at least get some indication of what the length of the Parliament or Assembly that they are electing is likely to be.

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that it would be four years or five years?

[Lord Wallace of Tankerness]

I am saying that they would still get five years. I do not think it would be right to elect people on the basis that they believe they are getting five years and then to say, “By the way, you’re not”. The noble Lord, Lord Bach, shakes his head. I think we would attract even greater criticism if there was an expectation of five years, and then we said, “Oh, by the way, we’ve changed our minds. You’re not getting your five years. You’re being cut back to four”. That would be the source of some legitimate criticism. Of course, if that is what happens and we do have four years—I will not again emphasise the reasons why we should not—the chances of it recurring are probably less likely, because then you could get yourself on to a four-year cycle, depending on whether there was an early election.

The noble and learned Lord asked what would happen in the longer term. I did seek to explain that we have also indicated that, subject to these amendments being accepted, in the longer term we would carry out a detailed assessment of the implications of having two sets of elections coinciding on a later date. Obviously the Electoral Commission would be involved in that. In the light of that, we would consider whether to conduct a public consultation on whether in devolved institutions the term should permanently be extended to five years. We do not proceed to do that in the context of this Bill, but we have indicated, as I have done in earlier debates, that that is our proposal. I hope that I have made it clear on this occasion that that is what has happened.

The noble and learned Lord also raised a question about Northern Ireland. I thought that I had answered that but, for clarity, the situation there is that there was correspondence with the parties in Northern Ireland on this issue. Northern Ireland Office Ministers concluded that it would be better to await the outcome of combined polls scheduled for 5 May this year before taking a decision on whether special provision would be needed in the future for Northern Ireland. It was a reflection of the dialogue that had taken place within Northern Ireland, and I see nothing wrong with this Parliament being sensitive to the views expressed in different parts of our diverse United Kingdom. I think that is to our credit, so I do not think that it would have been appropriate to have made provision for Northern Ireland if that was not the feedback that we were getting in the consultations that had taken place.

[Lord Falconer of Thoroton]

It was my fault for not having heard that. Having heard what the noble and learned Lord said now and understood it—having been so dim-witted in not picking it up before, for which I apologise—perhaps that indicates that this Government should not have come forward quite so hastily with this Bill, but instead should have consulted on those issues, which are very important, before bringing forward the Bill. It is not too late.

Amendment 52 withdrawn.

--- Later in debate ---

[Lord Norton of Louth]

I thought that I would speak briefly on the amendment. I can see the argument that it drives a coach and horses through the intention of having fixed-term Parliaments and I can see that it may attract some support in the House for that reason. I have problems with how the amendment is drafted, as it says:

“Parliament may otherwise be dissolved”.

Who determines that? It may otherwise be dissolved if Her Majesty appoints another Prime Minister. Is it the incoming Prime Minister who determines that there should be a dissolution? It also states that,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”.

One can see how any Prime Minister could have a fairly minor change of policy and decide, “I’d rather like to have a general election”, and it could be used as an excuse presumably for triggering the election. There is no requirement here; it has to be a major change in public policy. There are obvious drafting problems because I am completely unclear as to who would be responsible for triggering a Dissolution. That is my problem with it, but some may find that quite attractive since, in effect, it would undo the whole Bill.

[Lord Falconer of Thoroton]

I am not sure that it would. There are drafting issues and the noble Lord is right about that, but there has been a mood around the House that when John Major replaced Margaret Thatcher or Gordon Brown replaced Tony Blair, it might have been appropriate to have a general election. I understand that my noble friend Lord Howarth is saying, “Let’s define some circumstances which don’t say you have an absolute discretion, which is the current position, but there are certain defined circumstances”.

I agree that some of them, such as,

“the Prime Minister considers a Parliament not to be viable”,

and,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”,

are a little vague. Would it be a change in any government policy, including where we stand in relation to the Forestry Commission? That might be a little bit unjustifiable, but if you wanted the Brown-Blair, Thatcher-Major; a change in the complexion of the Government; the Heath situation; and the October 1974 situation—there is a broad consensus round the House that those would not be bad—it is not necessarily a bad idea to say that tightly drafted provisions should be included at the end of Section 3.

We are dealing not with the safety valves but specific occasions when the nation would think it appropriate for there to be an election. I do not see that as being necessarily inconsistent with a fixed-term Parliament. As the noble and learned Lord rightly said, we are not in the Norwegian-type situation where it is X years come what may, and you soldier on to the end, come what may. You are identifying certain circumstances when the norm, whether four or five years, can be departed from. It is when there is a vote of no confidence, or questions when certain well recognised events occur, which justify the then Government seeking the endorsement of the electorate, even though there was no vote of confidence and even though there was no two-thirds vote, which would be, as I understand it, a Prime Ministerial discretion.

What the noble Lord, Lord Norton, is getting at is that if it is a Prime Ministerial discretion, you go straight back to where you were before. Let us suppose that the provision said that the Prime Minister—meaning the new Prime Minister—can go to the country if he takes over mid-Parliament. That would not be an absolute discretion; it would be a very constrained discretion, usable only when there was a change in Prime Minister. That would not strike me as driving a coach and horses through the Bill, although I can see that the noble Lord is dying to tell me why I am wrong.

[Lord Norton of Louth]

Yes, I was going to suggest that he is. In circumstances that he suggested that it is the incoming Prime Minister who can opt to do that, as with Anthony Eden in 1955, presumably it will be used to the Prime Minister’s advantage. When the noble and learned Lord suggested that the mood of the nation perhaps favoured a change, one can see situations in which the very last thing an incoming Prime Minister plans to do is call an election.

[Lord Falconer of Thoroton]

Think, like the right honourable Nick Clegg, about giving the public more control over their politicians. There is always a sense of frustration that comes when a new Prime Minister comes in and the public get no say in whether this change is right. This would reflect this mood and give the public more control.

The noble Lord is right. I cannot think how I would have taken over as Prime Minister and at the same time been unpopular. It is an unlikely scenario. However, it is a way of avoiding lots of clubhouse politics, where you move from one to another. It does not necessarily drive a coach and horses through the Bill. It would do so if the viability provision or the change in policy were there. It would, however, be worth the Government thinking of a circumstance in which, for example, a Government totter on with a majority of one and want to have a general election but the Opposition will not give them a two-thirds vote. Why should there not be a general election in those circumstances? It might well be that the country is not assisted by there being weak government in those circumstances.

I completely understand why the Government would wish to knock out the very general reasons for Dissolution. However, if the Government are serious about trying to improve the constitution, it is worth them considering whether or not there are more specific reasons of the sort proposed by the noble Lord, Lord Howarth of Newport, that might be worth including in Clause 3(2) of the Bill that says that,

“Parliament cannot otherwise be dissolved”,

except in those situations that we have dealt with before, which is the two-thirds majority, the expiry of the fixed term or a motion of no confidence.

Amendment 55A says that Parliament cannot otherwise be dissolved,

“unless the House of Commons has approved on a division a motion tabled by the Prime Minister that the Prime Minister should request Her Majesty to dissolve Parliament”.

The effect of that provision is that it would not be in the discretion of the Prime Minister alone, which is the current position. Put aside everything else. Assume no Motion of no confidence. Assume no two-thirds vote. Assume no change to the Bill to allow any special measures. The Prime Minister could nevertheless table a Motion that says, “I think there should be a general election”, and, if Parliament backed him by a simple majority, there could be a general election. This is probably the position anyway because, as the noble and learned Lord, Lord Wallace of Tankerness, says, there is nothing to stop the Prime Minister from procuring a vote of no confidence to get rid of himself so that, for example, in the Heath situation, he could have an election to deal with a particular crisis that had struck the Government. Would it not be more sensible for there to be a straightforward mechanism that allowed that to happen? If it can happen by the back door, why should it not be allowed to happen by the front door? It does not offend against the Fixed-term Parliaments Bill because its stated purpose is to take away the right to call a general election from the Prime Minister and give it to Parliament. Amendment 55A does not offend against that principle

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.

I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.

I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.

On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, it is me again, but this is the last time. The Bill abolishes the monarch’s power to dissolve Parliament but not the monarch’s power to prorogue Parliament. If the monarch is removed from the dissolution process, should she continue to exercise other prerogative powers, such as the power of prorogation or the power to summon Parliament? It is a question worth pausing on and it would be helpful to hear the Government’s account of why they have sought in this Bill to remove one very important prerogative power but to leave others in place.

I am not a great believer in consistency in constitutional matters. A constitution breathes and relaxes through its anomalies and is able to be responsive to the complex circumstances of the different parts of a country through the very existence of anomalies. I am rather of the view of Ralph Waldo Emerson who said:

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”.

I think that we would all reject such consistency—I hope so.

At a practical level, the Bill leaves a loose end. The continuing power of prorogation is, in principle, open to abuse. If a Prime Minister were to be defeated on a vote of no confidence he could, under the terms of the Bill, ask the Queen to prorogue Parliament to get around the 14-day constraint. There was such an incident in Canada not very long ago. Following his re-election, the Canadian Prime Minister asked the Governor General to prorogue Parliament. The Prime Minister was seeking to avoid losing a threatened vote of confidence. Parliament was prorogued for two months. By the time it came back, the threat of that vote of confidence had pretty well gone away, so his continuing lease on power was ensured. The Constitution Select Committee thought that the likelihood of such an abuse occurring in the circumstances of this country was very low, with which I agree. I think that if any Prime Minister were to attempt to manipulate and abuse the power of prorogation, it would certainly backfire on him politically.

This amendment seeks to provide a safeguard against prolonged prorogation if a Prime Minister did seek to avoid the consequences of a no-confidence vote and get the election deferred to benefit himself or his party. The amendment should probably have been framed to guard equally against an abuse of the power of adjournment. Without such an amendment, the only safeguard that would remain would be the refusal of the monarch to accede to a request for prorogation. I think that we would all take the view that it is not a good idea to place the monarch in a politically contentious position. There is a loose end to be tidied up here and I should like the Minister to explain why the Government have left the power of prorogation as it is. I beg to move.

[Lord Falconer of Thoroton]

My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.

The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.

An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.

The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.

These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Tyler]

He may well have said that, but actually what he put on the table before the electorate in 1974, which I remember very well, was that his Government were challenging the country to say whether his Government—and the elected representative Members of the House of Commons who gave confidence to his Government—or the miners should continue to govern the country. That was the issue that he put before the country.

This is, surely, what the Bill seeks to enshrine: that we are a parliamentary democracy, not a quasi-presidential democracy. It is not clear that the noble Lord’s amendments, or any of the options before us in this group, would actually improve it. Unless we intend to complete the process from a parliamentary to a presidential form of government—which I assume my noble friend does not support—surely the change he appears to recommend would be premature. I believe in a parliamentary democracy, and I believe it is the House of Commons that gives confidence to a Government. If that were to change, we would be making a very considerable and dramatic alteration to the basis of our whole constitutional settlement.

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

[Lord Forsyth of Drumlean]

I merely seek some advice from the noble and learned Lord. He said that the Prime Minister would have the choice of either resigning or going to the country. Is the constitutional position not actually that it resides with the monarch whether to grant a Dissolution? There might be circumstances where a Prime Minister wished to go the country but there was someone else who was capable of forming a new Administration, and a Dissolution might not be granted.

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton of Louth for his amendments and the noble Lord, Lord Howarth of Newport, who again has made some interesting and constructive contributions. Amendments have been tabled, not least the amendments in the name of my noble friend Lord Cormack, regarding procedures in the Bill concerning motions of no confidence, what the consequences of those might be and whether they need to be more tightly or more widely specified to cover different situations. I repeat what I said at the start of some of our amendments on the second day in Committee relating to the Dissolution provisions in Clause 2. We are willing to listen to what noble Lords have to say on these matters. I particularly note the point made by the noble and learned Lord, Lord Falconer of Thoroton. I understand that the thrust of his comments at Second Reading was that the Bill would be open to abuse by a Prime Minister who might wish to contrive a situation to get a Dissolution at the time of his or her choosing and therefore defeat the purpose of a fixed-term Parliament. I would want to consider what he proposed in the light of that and whether it might make dealing with the potential for that abuse simpler; and, on the specific amendments, whether the choice of having a Dissolution or a resignation that could lead to another Government being formed, as happened in 1924, should remain solely in the hands of the Prime Minister or whether Parliament should have a role, as we would seek to provide.

[Lord Falconer of Thoroton]

The noble and learned Lord is absolutely right that I regard the position of there being a contrived vote of no confidence as quite easy under this Bill, but I do not think that there is any dispute about that. The noble and learned Lord accepted it, the committee chaired by the noble Baroness, Lady Jay, accepted it, and I have asserted it. So it appears to be agreed on all sides. I do not think that there is anything that can be done about that. Indeed, as I made clear, it would have been right for Mr Heath to have insisted on there being an election through a vote of no confidence if the Opposition had not agreed to an election in 1974 and if there had been a fixed-term Parliament. I see that as indicative of the fact that you are not taking away much power from the Prime Minister. My problem is the idea that the more rigid you make the measure, the more you allow a Prime Minister and a Government to stay in power when it is perfectly plain that the Commons wants to see the back of them and there should be a general election. I see that as the much more dangerous aspect of the Bill.

[Lord Wallace of Tankerness]

I am interested in the noble and learned Lord’s comments, and I shall reflect on this matter. The second point that I made was whether the choice between seeking a Dissolution or there being a resignation with the possibility of an alternative Government being formed should be entirely the choice of the Prime Minister alone or whether, as we seek to do, there should be a role for Parliament when no other Government can be formed and 10 days have elapsed without a confidence motion being passed by Parliament. As I understand it, however, the objective is much the same. In a situation when you have a fixed-term Parliament and it becomes obvious that there is a logjam or deadlock, there must be some means of breaking it and triggering an early election.

The same argument applies to a point made my noble friend Lord Norton of Louth. I assume that he sees Amendments 35 and 38 as being taken together as part of a package. Under one of his earlier amendments, Amendment 27, he said that if the Prime Minister’s discretion over the date of the election were removed, as would happen with a fixed-term Parliament, it should be provided,

“that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed”.—[Official Report, 21/3/11; col. 564.]

Although this is a technical problem that could be looked at, as presently constructed the proposal could mean that the Prime Minister of the day might choose neither to seek Dissolution nor to resign. I am sure that that is not the intention behind the amendment as it would create a very difficult situation. However, it could be a consequence of the amendment. I do not want to make too much of a technical point as I am sure that that is not a scenario that my noble friend seeks to advance.

At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.

Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—

[Lord Falconer of Thoroton]

My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.

[Lord Wallace of Tankerness]

My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.

I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter of judgment, but it does provide for a period for that second outcome of another Government being formed to actually happen. We have debated this issue already and we are due for another debate on an amendment tabled by the noble Lord, Lord Kennedy, on whether 14 days is right. However, the provision does allow for a period for that to happen and, if it does not happen, for us to proceed to an election.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

41: Clause 2, page 2, line 14, at end insert—
“( ) An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election.”

[Lord Falconer of Thoroton]

My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,

“collectively introduces the mechanisms by which people can exercise greater control over politicians”,

as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.

I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.

Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House of Commons, or in the Narvik-type situation. My amendment does not provide for the Narvik-type situation, although it should. I should be interested to hear what thought the Government have given to the extent to which, if you have a defeat in the House of Commons on a confidence issue, this promotes people’s belief that they can “exercise greater control” over their politicians if a new Government are formed from within the House of Commons rather than by being selected by the people. Does that not have precisely the opposite effect to that which the Deputy Prime Minister wanted? Have the Government given thought to the circumstances in which they would prefer there to be an election rather than a new Government being formed? Are they not worried that by building in 14 days in every case they are encouraging the confidence-sapping haggle? I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

[Lord Falconer of Thoroton]

I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,

“if no Government had obtained a vote of confidence since the last general election”,

would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.

[Lord Wallace of Tankerness]

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I welcome the thoughts of the noble and learned Lord but I invite him to withdraw his amendment in the light of my comments.

[Lord Falconer of Thoroton]

Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.

With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.

Amendment 41 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

[Lord Falconer of Thoroton]

My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.

It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:

“A certificate under this section is conclusive for all purposes”.

As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.

Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote of no confidence, but I have decided that it is not. Therefore, even if the vote is defeated in the House of Commons, there will be no resignation of the Prime Minister and there will be no general election”. I leave it to the House to seek the views of the two ex-Speakers as to what effect on Parliament that would have.

I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:

“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.

Mr Harper replied:

“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .

--- Later in debate ---

[Lord Bach]

Parliamentary Secretary.

[Lord Falconer of Thoroton]

I make it clear that my error is in no way intended to undermine him. He is the Parliamentary Secretary responsible for political and constitutional reform. It is his view that the Government appear to take in relation to these issues. It is a matter for this House as to whether it is guided more by the views of the two ex-Speakers or by the evidence of Mr Mark Harper. Speaking entirely for myself and having heard the two ex-Speakers, I found the evidence of Mr Harper wholly unconvincing. It suggests to me that not enough thought has been given to this provision.

[Lord Martin of Springburn]

Mr Harper perhaps overlooks the fact that any Speaker always has at his or her side the Clerk of the House and takes their advice. I grant that it is advice and that, at the end of the day, it is the Speaker who has to make the decision. However, the Clerk of the House is always there. Here we have a situation where the Clerk of the House has taken the very serious step of giving written evidence that he is deeply concerned about this matter.

[Lord Falconer of Thoroton]

I completely understand what the noble Lord, Lord Martin of Springburn, is saying. My own view is that the courts would try to avoid getting involved, but the consequence of their not doing so is that the Speaker of the House of Commons—who, though I have never been a Member of the House of Commons, I understand should be above the party fray—would ultimately decide whether there would be a general election. Let us imagine the level of emotion that there might be in the House of Commons at that point. Is this not another illustration of the grave error in trying to prescribe in a Bill the working of a process that has previously worked by convention? I am very glad to see the noble and learned Lord, Lord Howe of Aberavon, in his place. He has always said that constitutional conventions may be better in certain circumstances. My view in relation to this part of the Bill is that the more we talk about it and the more we try to provide artificial certainty or precision—treating it as if it were a statute where you could see whether you have registered your home properly or whether certain ticks are in the boxes—the more it becomes a wholly inappropriate way to deal with the issue of whether Parliament should be dissolved and there should be a general election.

The more we debate it, the more the best solution feels like a provision that simply says that where there is a vote of no confidence there may be a general election. I do not think that my noble friend Lord Howarth would say that his amendment gives 100 per cent protection from the court; it certainly does not give the Speaker any protection from getting involved in the fray, which is so significant to their independence. I anticipate that my noble friend will say that he has put down the amendment simply in order to test the proposition. I would urge the noble and learned Lord to go back to the drawing board and see how he can construct a provision that is intended not to be a tick-box provision but instead to be a much broader constitutional provision. That will make it clear that the courts are not to be involved. Equally, it will not draw the Speaker into a political fray that could be fatal to their standing either in the House of Commons or, more damagingly, with the public at large. This is another indication that the Bill requires a lot more thought.

[The Earl of Onslow]

Has not the noble and learned Lord, Lord Falconer, actually made a speech suggesting that we should use some of the remaining powers left to us under the Parliament Act to sling this rotten Bill right out hook, line and sinker?

[Lord Falconer of Thoroton]

Do not tempt us.

[The Earl of Onslow]

I may be tempted to tempt.

[Lord Falconer of Thoroton]

The noble Earl is right to identify that the Bill is not covered by the Parliament Act. The more we debate it, the more it seems an appalling mess. If major surgery is not applied to it, a point may be reached where the House might think, very unusually, that it messed up the constitution to such an extent that it should contemplate not giving it a Third Reading. I am sure that a Minister such as the noble and learned Lord, Lord Wallace of Tankerness, will persuade the Government to apply major surgery to the Bill.

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Grocott]

I am sorry, my Lords. I was sitting down thinking about having a cup of tea and suddenly realised that those were interventions on my speech.

The fundamental difference between this and the situation in the Scottish Parliament is that that document began from a blank sheet of paper—albeit a very well rehearsed blank sheet of paper. There is all the difference in the world between drawing up a new constitution and amending a constitution which has worked perfectly well. That is my answer to that question.

[Lord Falconer of Thoroton]

This is a fascinating debate. To pick up on what my noble friend Lord Clinton-Davis said, it has been mentioned before in this debate, but it is worth citing what Mr James Callaghan said in the evening after he lost the vote of no confidence. He said:

“Mr Speaker, now that the House of Commons has declared itself, we shall take our case to the country. Tomorrow I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up, and I shall then announce as soon as may be—and that will be as soon as possible—the date of Dissolution, the date of the election and the date of meeting of the new Parliament”.—[Official Report, Commons, 28/3/79; col. 589.]

Under the Bill, were it to be passed in this form, Mr James Callaghan would have said, “I shall now wait for 14 days while I offer the Ulster Unionists tunnels and money, and junior ministerial posts to Mr Bruce Grocott, in the hope that they might then support me”. Should Mr James Callaghan have been of that nature, he could under the Bill have used the 14 days to bribe and cajole to produce another Labour Government with confidence and supply support from the Ulster Unionists and come back 14 days later to say, “Ha, ha! I can return with a Labour Government and I will hold on until October 1979”. We should ask ourselves: would the public have had greater confidence in Mr Callaghan if he had behaved like that or did they have much greater confidence in him immediately accepting the consequence of what was happening and going to the country?

I ask that question because the right honourable Mr Nicholas Clegg says that we are going through all these contortions apparently to increase trust in our parliamentary system, despite the fact that Mr David Laws makes it clear that that is untrue. I give way to the noble Lord, Lord Rennard.

[Lord Rennard]

Does not the noble and learned Lord, Lord Falconer of Thoroton, recall that it was actually in the autumn of 1978 that the then Prime Minister, Mr James Callaghan, offered significant inducements to the Ulster Unionists to stave off his defeat by creating extra seats within Northern Ireland at the Westminster Parliament in order, under the existing system, to stay in office for longer? Furthermore, does not the noble and learned Lord recall that, wisely, the previous Labour Government introduced the Acts setting up the Scottish Parliament and the Welsh Assembly? In the Welsh Assembly, provisions were shown to have worked well when Mr Alun Michael lost a motion of no confidence, but there was no general election for the Welsh Assembly; nor do I recall any suggestion of that from noble Lords opposite or members of the Labour Party. All that happened was merely that Alun Michael lost the motion of no confidence; he had to stand down as First Minister; Mr Rhodri Morgan became First Minister; and a new coalition Government were formed who governed Wales very satisfactorily until the next election. Is that not a good model?

[Lord Falconer of Thoroton]

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so, and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote—although I cannot remember whether or not it was a vote of no confidence—but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals—not the Liberal Democrats—to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess—it is obvious that it is a mess—because the coalition is looking for a mechanism to hold itself together, as David Laws’s book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws’s book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either—14 days of nothing or the old Government coming back as a retread new Government within the 14 days—is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment—namely, the present system. A vote of no confidence normally allows for an election but is flexible enough to ensure that a Government emerge when appropriate.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships’ House described it. I have not heard in any of our debates—either at Second Reading, in the other place or indeed in any of our Committee debates—anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration may be formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it were not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

--- Later in debate ---

[Lord Wallace of Tankerness]

On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.

[Lord Falconer of Thoroton]

The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.

[Lord Howarth of Newport]

My Lords, if I may say so, that was another worthwhile exchange. It would not be my intention to prevent the possibility of resignation. This clause could be amended fairly easily to incorporate that possibility. One would simply have to say that a parliamentary general election may also take place if the Speaker of the House issues a certificate. Against that background and against the noble and learned Lord’s undertaking to reconsider the specific drafting of the subsection, I beg leave to withdraw this amendment.

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Howarth of Newport]

I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.

[Lord Falconer of Thoroton]

My Lords, again, Mr Laws explains how we got here. But when you see how we got here, it is difficult to understand why we are here. Perhaps I may read a paragraph that has not yet been quoted:

“There was a debate for thirty minutes or so on arrangements for dissolving a parliament before the end of its five-year term. This was an issue which we raised, but William Hague soon realised that the main risk lay with the Conservatives. Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

He continues:

“Huhne originally suggested that there should be a 66% threshold for dissolving parliament before its full term was up, in line with the situation in Scotland. George Osborne said he thought that 66% was rather high and that 55% or 60% was closer to the mark. After some work on Ed Llewelyn’s calculator, and consideration of by-election risks, it was decided that a 55% vote of MPs would be required to provide for a dissolution. This was just greater than the combined opposition and Lib Dem parliamentary parties, thereby safeguarding the Conservative position”.

It is absolutely plain from what Laws is saying there that they were trying to guard against Dissolution, including a no-confidence vote. There is no doubt about that, because he says:

“Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

That must be referring to a vote of no confidence. It is therefore plain from Laws’ book that it was envisaged that you could not get rid of the Government with an ordinary vote of no confidence and that the only provision intended to allow for an early end—that is, before the five years—was if the super-majority was satisfied, and that could not be delivered by the Lib Dems coalescing with Labour.

I think that that was to be put into a binding resolution, whatever that may mean, in the House of Commons. Pressure was then placed on the Government in the public debate which followed, and they changed this in two respects: the figure of 56 per cent became two-thirds, and they agreed to a vote of no confidence as a way of getting rid of the Government. Why are they both there? Which two separate situations are they trying to cover? It looks as though the coalition agreed to the 56 per cent to prevent the possibility of being voted out on a vote of no confidence. I am pretty sure that that is what happened, but they were pushed off it by public pressure and had to agree to a vote of no confidence. They retained the super-majority as a fig leaf in order to try to give some justification for it. That is what Mr Laws’ book is suggesting. Could the Minister say whether I am wrong about that analysis? No other factual analysis is being offered for why we are in the extraordinarily unusual position where both a simple majority and a super-majority can get rid of the Government by way of a vote in the House of Commons. It looks as if the analysis that I have given is the reason.

We are entitled to an explanation for this. The point made by the noble Lord, Lord Norton of Louth, who is respected throughout the House as a constitutional expert, is significant: no other national parliament has this extraordinary provision in it. If it is in there only because it was part of a negotiation that then got shot away by public pressure, why are the Government keeping it in? It is important that the noble and learned Lord gives us some information about it, because at the moment the only explanation on the record is the one that I have given. It is discreditable for the Government to reform our constitution simply on the basis that an idea that was floated in the coalition agreement got shot away but they kept it in, in order to preserve I am not sure what.

A second and separate point that the Minister needs to deal with is: what happens when the Government resign and no one else wants to form a Government? On the basis of the Bill, it appears—again, the noble Lord, Lord Norton, has made this point and I have not heard an answer to it—that you have no Government and no Dissolution. I would be grateful to know what happens to our nation’s Government at that point.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton for opening up the debates on this clause, which raises important issues regarding the mechanisms that would trigger an early election or indeed a change of Government, and I am grateful to all noble Lords who have taken part. It is important to recognise that there are two mechanisms that can trigger an early election: either a Dissolution on a 66 per cent majority—or, more accurately, with two-thirds of Members voting for it—or a vote of no confidence passed by a simple majority and, after 14 days, no Government having a vote of confidence. They are distinctive.

I cannot endorse the speculative analysis by the noble and learned Lord Falconer. He admitted that he was speculating—

[Lord Falconer of Thoroton]

I am not speculating. This is what a person who was there at the negotiations said. For the Minister to describe this analysis as speculative when he is not offering an alternative explanation is wholly unfair.

[Lord Wallace of Tankerness]

My Lords, it will be obvious that the proposals in the Bill are not the ones described in the book. The noble and learned Lord asks us why we have the proposals that we do, and obviously he was speculating about why they are there. If I were presenting to the House a Bill that had a 55 per cent majority and that was it, that would be a reasonable basis on which to say, “This is how we arrived at 55 per cent”. Clearly, that is not what is proposed in the Bill, and I will address that in the course of my response to this debate.

Subsection (1) provides the House of Commons with a new power to vote for Dissolution following a process that I believe is robust and transparent. My noble friend has indicated that he has his own further amendments about what might follow, including the point raised by the noble and learned Lord, Lord Falconer, about what would happen in the event of a Prime Minister resigning, and we will address these when we come to my noble friend’s amendments.

The point is that if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence, particularly where confidence in the Government is not necessarily the issue and may not be what is driving the need for an early election. We believe that it would not be right or proper to conjure up a vote of no confidence in these circumstances. That is why the Bill seeks to prevent that with our proposal for a two-thirds vote.

In the case of Germany, Governments have in the past had to engineer no-confidence votes even where there was a consensus in favour of an early general election, because there was no provision in its constitution analogous to the procedure for a Dissolution vote in this Bill. At that time there was no alternative to engineering a no-confidence vote.

My noble friend reasonably asked about other nations. I spotted what he said about national parliaments, as opposed to the devolved Parliament and Assemblies, which have a provision that is very similar to what is set out here. I am unable to answer now but if I get information I will certainly write to him. The point was made in an earlier debate by the noble Lord, Lord Howarth, that it is sometimes difficult to translate what happens in other countries to what happens here. This is where we reach a position that answers the question of the noble and learned Lord, Lord Falconer of Thoroton, about why we have two mechanisms. He is right about why the coalition agreement mentioned 55 per cent.

[Lord Falconer of Thoroton]

I understand what the Minister said earlier. Is he now saying that this is a product not of the coalition agreement but of some other arrangement?

[Lord Wallace of Tankerness]

I might be missing something somewhere. The coalition agreement referred to the 55 per cent that the noble and learned Lord has described. At the same time, he gave a plug to my right honourable friend’s book, for which I am sure he is very grateful. However, that is not in the Bill; I am describing what is in the Bill. Of course it is a product of the coalition. It is a coalition Bill that is before your Lordships’ House.

I recall sitting in this House during Questions and listening to many noble Lords on all sides of the House criticise that 55 per cent provision. The noble and learned Lord nods his head in agreement. It was a provision that received considerable criticism. There was a criticism that it meant a vote that could lead to a Dissolution. People asked about votes of no confidence. At the same time, there was the issue of whether there ought to be a higher majority to trigger a Dissolution automatically. The two mechanisms that provide the trigger in the Bill as it stands address the criticisms that were made. I make no apology for saying that the Government listened to the criticisms that were made, tried to take them on board and came forward with what is proposed here. It may be unique to the United Kingdom but it addresses some of the concerns.

We will come later to the issue of no-confidence votes but at present this House and—it is fair to say —other commentators and people in the other place said that there was an important point about the vote of no confidence on a simple majority having a consequence. The Government listened to that. Historically, there have been two possible outcomes. In 1924, when there was a vote of no confidence in Mr Baldwin’s Government, Mr Baldwin resigned and a new Government was formed under Ramsay MacDonald. In 1979, as has often been mentioned in our debates on this Bill, when Mr James Callaghan’s Government lost a vote of no confidence, he then proceeded to seek a Dissolution and an election was held.

When we come to the next part of this clause, that is what we will be discussing. We will no doubt debate what constitutes a no-confidence vote. We seek to reflect what has been the constitutional position of the outcome of a no-confidence vote on a simple majority. Equally, we took the view that there were circumstances in which it would be more appropriate, if there was a consensus that a Parliament should be brought to an end, to have a trigger mechanism that was more than a simple majority, such as a two-thirds majority.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I am grateful to noble Lords who have spoken in the debate which, despite the late hour, has been quite useful and has teased out the reasons for the provision. Perhaps I may begin by briefly correcting my noble and learned friend Lord Wallace of Tankerness on his reference to the German example. He said that the Government there had engineered a vote of no confidence in themselves. In fact, they engineered defeat of a motion of confidence, which is not the same thing and is relevant to discussions that we will have later on how one defines a vote of confidence.

Reference was made earlier to the Constitutional Reform and Governance Act and pre-legislative scrutiny. I served on the Joint Committee on the draft Constitutional Renewal Bill, as it then was. The title was later changed because I and others pointed out that nothing was being renewed by the Bill. My point is that the Joint Committee met for two hours twice a week for nearly three months. The more we discuss this Bill, the more convinced I am that it would have benefited from extensive pre-legislative scrutiny. The problem with much of the Bill is that it is not grounded in evidence. It is not exceptional in that respect but, as we have heard, this part of the Bill was the product of negotiations by politicians who are not necessarily noted for their knowledge of our constitutional arrangements.

Subsection (1) is highly unusual—certainly in comparative perspective. My noble and learned friend said that he would write to me with details of where this provision applies elsewhere. It may be helpful if I tell him that I can save him a letter. The noble and learned Lord, Lord Falconer of Thoroton, thought that we were unique in this provision. That is not quite the case. Lithuania, Mongolia, Tajikistan and Turkmenistan have a similar provision. I wanted confirmation that the Government were unaware of that.

[Lord Falconer of Thoroton]

My Lords, I apologise for misleading the House in that respect, and I accept the helpful correction of the noble Lord, Lord Norton of Louth.

[Lord Norton of Louth]

I am grateful to the noble and learned Lord; I am glad he found that helpful, although my remarks were directed far more at the Government and to put the issue in comparative perspective. It is that sort of information from which the Government should have started when looking elsewhere to draw up the provisions. In terms of being unique, the noble Lord, Lord Howarth of Newport, will not be surprised to know that if his three-quarters proposal were to be implemented, it would render us unique.

However, my point is that measures of this type need to be better grounded in thorough evidence before we proceed with them. This provision needs scrutiny that deserves far more consideration than we are able to give it this evening, and we may wish to reflect on that between now and Report. For the moment, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer of Thoroton, will speak to Amendment 40, but perhaps I might anticipate that one as well. I suspect that my noble and learned friend Lord Wallace of Tankerness will be advising the House against these amendments and I thought that at this hour of the night I might bring him some joy by saying that I shall agree with him in doing so.

I shall quickly adumbrate the problems that I foresee with the amendments. I understand what they seek to achieve, but I have concerns. I understand the motivation for limiting the Motion of no confidence to be moved by the leader of the Opposition. As we have heard, it is to limit the Government so that they do not engineer a vote of no confidence. However, it does exclude other Members of the House from the opportunity to move a vote of no confidence. The circumstances in which that is likely to happen may be exceptional but in historical terms they are not unknown. One of the most important debates that took place in wartime happened on a vote of no confidence which was not moved by the leader of the Opposition. It is unusual but I am not sure that should be excluded. I have certain concerns about the way in which that amendment is drawn. I can see the reasons for trying to prevent the Government doing that, but there are problems if it is solely confined to the leader of the Opposition.

My second problem with the amendment is the way in which it is drawn in relation to what constitutes a Motion of no confidence. It limits it to the House passing a Motion expressing no confidence in the Government. That narrows it in relation to what we presently understand to be a confidence Motion in the House of Commons and it narrows it unduly. Therefore, because of Amendment 50, to which we shall come on the next day in Committee, I would prefer to go down the route that seeks to preserve, as far as possible, our existing understanding of what constitutes a vote of confidence rather than narrowing it in the way that the amendment proposes.

I now anticipate Amendment 40, to which the noble and learned Lord, Lord Falconer, will speak. I suspect that, had my noble friend Lord Cormack been here, he might have accused the noble and learned Lord of tabling it on a mischievous basis. I am sure that the noble and learned Lord will say that it is serious. Perhaps we could compromise and say that it is serious but mischievous. The amendment states that,

“a vote of no confidence cannot be a valid mechanism to precipitate an early general election if the Speaker of the House of Commons has reason to believe that it is called with the support or collusion of the Government and issues a certificate to that effect”.

I have problems with the existing wording of the Bill in relation to the Speaker. As drafted, it could draw the Speaker into political controversy in issuing a certificate. If he can be drawn into controversy under the Bill as presently drawn, he would be drawn into it in spades under Amendment 40. We can just imagine what would happen if the Speaker said, “No, no, the House has passed a Motion of no confidence, but I think that the Government has probably colluded in it”. One can imagine the uproar that would be caused. The noble and learned Lord may be proposing his amendment to tease out that very fact; we shall hear shortly. On the face of it, as it is worded, his amendment exacerbates what I consider to be an existing problem in the Bill. Although I appreciate the reasons behind the amendments relating to the leader of the Opposition and votes of confidence, I cannot support them and will be quite happy to support my noble and learned friend in resisting them.

[Lord Falconer of Thoroton]

First, on the amendment of the noble, Lord Marks, I agree with the noble Lord, Lord Norton of Louth. It fails to deal with two particular problems. First, when a Government lose a vote that is obviously a vote of confidence—if the Government had been defeated on the Motion authorising the use of force in Iraq, that would plainly have been a vote of confidence—it would be wholly wrong if there then had to be a vote of no confidence thereafter.

Equally, there have been votes which the Government lose, for example, the vote on Maastricht in 1992, which they then followed—in my view, entirely correctly —with a Motion tabled by the Prime Minister on a vote of confidence in the Government. If that vote had resulted in the Conservative Government being defeated on the vote of confidence, which was the traditional method of dealing with that, the consequence should have been not that there then needed to be a vote of no confidence from the Opposition—which, as I understand it, is the view of the noble Lord, Lord Marks—but that there should be a general election, or a 14-day delay, which we shall debate later.

Those two examples would not be covered by the proposal of the noble Lord, Lord Marks, and therefore lead to dealing, on one view, with the collusion argument but strengthen the other risk in the Bill, which is that a Government who genuinely have lost the confidence of the Commons are able to stay in power. Just as the noble Lord, Lord Marks, gets one piece of the wallpaper on the wall, another falls off.

On my amendment, I could not have asked for more from the noble Lord, Lord Norton of Louth. It is my view that in relation to a vote of no confidence, there is no possible mechanism one could adopt which would allow anyone to go behind the motivation of why a particular group of people voted in favour. That is an impossible task. It is like the vote of 100 in the Commons voting for an all-elected House of Lords. It has been suggested that that was a vote in order for there not to be an all-elected House of Lords. But one cannot go behind the vote; one must accept it at face value.

I tabled the amendment simply to illustrate the correctness of the conclusion of the committee on which the noble Lord, Lord Norton of Louth, sits, chaired by my noble friend Lady Jay, that there is no ability to control a vote of confidence and that a Prime Minister with a majority can, if he or she wishes, engineer a situation where he or she loses a vote that is a vote of no confidence, even if not so called.

I have a third objection to the amendment tabled by the noble Lord, Lord Marks. Is it such a bad thing that, had these provisions been in place, it would have been open to, for example, Mr Heath to go to the country not by engineering in some deceitful way but by simply saying that he thought that the Government needed to have the confidence of the people to go on with the particular stance they were taking? He would therefore have put down a Motion of confidence in his own Government with a view to there being an election. Is that a bad thing? What is the view of the Government on that? These are probing amendments in Committee. The amendment tabled by the noble Lord, Lord Marks, covers one situation, but it leaves a lot of others uncovered. I agree with the noble Lord, Lord Norton of Louth.

I tabled my amendment simply to establish the point made by the noble Lord, Lord Norton. You cannot go behind people’s motivation, which means that the Select Committee is probably right. The Government of the day can always have an election whenever they want on a majority of one. Do the Government think that is necessarily a bad thing?

[Lord Wallace of Tankerness]

My Lords, this is the first of a series of groups of amendments dealing with the trigger mechanism from no-confidence Motions. I thank my noble friend who tabled this amendment and noble Lords who have tabled subsequent amendments. A general view has been expressed, particularly at Second Reading, that there is some merit in having certainty. A number of those who have contributed to this debate have made the point about the potential for abuse.

As I have indicated, the Government believe that the package of the two trigger mechanisms is sensible and straightforward. However, I accept that there has been considerable interest in the handling of the no-confidence Motions in particular. When the Bill passed through another place, there was some detailed debate on this, but it was not amended. The more one looks at it, the more one finds that perhaps the balance that has been struck in the Bill is right. However, the function of this Chamber is to be a revising Chamber to improve legislation and I want to make it clear to noble Lords that, in our deliberations on this amendment and the subsequent amendments, the Government are willing to listen carefully and to reflect on what noble Lords have to say with regard to trying to address the issue of certainty about what constitutes a no-confidence Motion and ways of trying to eliminate abuse.

It is to address certainty and to eliminate abuse that the amendment moved by my noble friend Lord Marks provides that only a Motion of no confidence tabled by the leader of the Opposition would trigger the procedure in Clause 2(2)—namely, the 14-day period. The amendment spoken to by the noble Lord, Lord Howarth, seeks to achieve the same result. We have always been clear that this Bill is not a new constitution. It is intended to bring in an important provision—fixed-term Parliaments—having proper regard to existing constitutional arrangements and conventions. On the whole, the purpose of the Bill is to replace existing conventional democratic controls with legal controls in the context of a fixed-term Parliament. The only foolproof way in which to prevent an Executive from manipulating the rules to engineer a premature general election would be to remove those rules entirely—in other words, to provide for rigid fixed terms. The mood of the House at Second Reading—and I have not heard anything to contradict it since—was that there was very little support for having such rigidity. The Bill therefore provides procedures that allow for an early general election where one is clearly required. All the debates that we have had in this House and the other place confirm that this is regarded as a necessity. I think that we are in the territory of assessing whether the procedures in the Bill are satisfactory, rather than whether we should have these procedures at all. The purpose of these amendments is to see whether they can be improved on.

It is the case that the Bill does not say who may table a Motion of no confidence. That concurs with current practice. As was mentioned by my noble friend Lord Norton and the noble and learned Lord, Lord Falconer, there is no restriction on who may table in the House of Commons a Motion of no confidence. As it happens, in practice, these have been tabled by opposition parties and almost always by the leader of the Official Opposition. The background note prepared by the Library in the other place sets out a history of confidence Motions. I am acutely aware that my noble friend Lord Norton of Louth has made an in-depth academic study of confidence and no-confidence Motions. Since 1895, not a single Motion has included the words “no confidence” other than in the name of the leader of the Opposition. As noble Lords are well aware, a decision by the leader of the Opposition to support or to table a no-confidence Motion automatically takes precedence over that tabled by any other party.

The question then is whether there is reason to deviate from current practice for the purposes of this legislation. I have listened carefully to what has been said about potential abuse, but I come back to the point that it would be obvious if the Government had set out to subvert the standard procedures of the other place. I take the view that it can in no way be excluded altogether but that there would almost certainly be retribution by the electorate. On the other hand, the electorate might decide that there was to be no retribution and that they fully supported the Government of the day—at the end of the day, the electorate are right.

The no-confidence procedures in the Bill as drafted would be activated only if the House of Commons had voted to the effect that it had no confidence in Her Majesty’s Government. One has to reflect that, even if a Government tried to contrive it, if they went to the country with the Opposition saying that the House of Commons had no confidence in the Government, they might have a presentational problem on their hands. For the moment, I put it no higher than that. Those who think that the safeguard is meaningless are perhaps trying to nail down a political process with legal certainty. I have, I hope, been quite up front in these debates when I have said that if the Government were absolutely determined to try to abuse the rules, as I think the Constitution Committee itself accepted, although it would be possible to abuse them, there would be consequences to that. I rather suspect that, as the idea of a fixed-term Parliament and the rules set down by a fixed-term Parliament became more and more part of what people were accustomed to, there would be consequences over time if it was thought that a particular Government were trying to bend or get around the rules. The political consequences would be more damaging.

The amendments would have certain unintended consequences. The first of these is that the proposal is out of step with the process of rebalancing that is going on in the other place between the Front-Benchers of all parties and the Back-Benchers. My noble friend Lord Norton of Louth made that point. In the past few years, there have been a series of reforms in the other place that have been designed to give Back-Bench MPs a greater voice. Part of this involved the report by the Reform of the House of Commons Committee, sometimes known as the Wright committee after its chairman Dr Tony Wright, the long-standing chairman of the Commons Public Administration Select Committee, and the establishment of the Backbench Business Committee. Amendment 30 would be counter to the general trend of these reforms by allowing the no-confidence procedures in the Bill to be triggered only by the leader of the Opposition.

The amendments would put in place a statutory provision that excluded the Back-Benchers and entrenched the dominance of those on the Front Benches. I am not sure that most Members of the other place would necessarily welcome the inclusion of such a provision when we returned the Bill to them. It is interesting that a similar amendment was tabled and debated in Committee in the other place, but I think that it is fair to say that it did not receive a warm welcome and was not even pushed to a vote. The amendments also leave open a number of unanswered questions, most notably what would happen if there had been a successful no-confidence vote in the Government but the leader of the Opposition failed to table a Motion of no confidence.

Finally, Clause 2 has been drafted in a way that is sensitive to the Commons having control of its internal procedures. Only the bare essentials of the new mechanisms have been put in place—there needs to be a two-thirds vote in favour to trigger a Dissolution vote, and the 14-day period commences on the passing of a no-confidence vote—but is it right to go further than this? Is it right to use legislation to tell the other place who is permitted to table a Motion or indeed to devise the precise words that should be used in a Motion for it to have legal effect?

As I said, I fully understand and indeed sympathise with the underlying motivation to these amendments, and I have indicated that we are willing to consider them, but there would be serious practical problems, and indeed constitutional problems, for the role of Back-Benchers. The alternative of letting the Commons develop its own practice and for the Speaker to inform the outside world whether this practice has been complied with through the Speaker’s certificate is preferable. We believe that the procedures that we have put in place to trigger early Dissolution are robust and transparent, and I ask your Lordships to reflect on the conclusions of the Constitution Committee on the trigger mechanisms for an early election. The Constitution Committee did have concerns about the definition of no-confidence Motions, which we have discussed and to which we will return, but it broadly endorsed that there should be two trigger mechanisms and that the sort of manipulation which noble Lords are concerned about would be seen as,

“an abuse of the Act’s provisions”.

--- Later in debate ---

I know that the noble and learned Lord has concerns about the misuse of no-confidence Motions. As I indicated earlier, if we can find an acceptable way of trying to eliminate the potential for abuse, we are certainly open to these suggestions. I do not believe that this is one of the ways of doing it. But, ultimately, and particularly after rules on fixed-term Parliaments become part of our constitutional architecture, the idea of a Government trying to subvert the rules for their own benefit would be seen through by the electorate. As I have indicated, the Government are willing to consider proposals to amend the procedures on no-confidence Motions if we believe that they meet the criteria of providing certainty, but not doing so in a way which could lead to more unintended consequences.

[Lord Falconer of Thoroton]

As regards the third question—let us assume that this Bill applied and that the Opposition did not support a general election—would the Government be willing for Heath, for example, to have a general election in those circumstances? Would they be against it? Is that an abuse?

[Lord Wallace of Tankerness]

Just to be clear about what I am being asked, as I understand it the noble and learned Lord has asked me whether, in February 1974, when Mr Heath wanted an election, if the Opposition had been against it he could have contrived a situation to do it. Clearly, under these circumstances, it would have been possible to contrive. He might not have had the election on the date on which he wanted it if it had had to be 14 days after he had lost a confidence Motion. He may well have found in weighing that up whether it was the right course of action. It may have saved him from what happened in the end.

I believe that it would be possible but, again, it would be a matter of judgment. Indeed, the electorate did make a judgment at the time on a Prime Minister who chose to go before his term of office was anywhere near complete. If he had also contrived the means of doing that, the consequences for him might well have been greater. That is pure speculation. We will never know. On that basis, I ask my noble friend to withdraw his amendment.

--- Later in debate ---

I shall say no more about these very important major issues now because it is late in the evening and we will have other opportunities. They deserve to be considered by a better attended House than we have at the moment, which is no reflection on the quality of scrutiny of those noble Lords who are conscientiously present at this late hour. I beg to move.

[Lord Falconer of Thoroton]

I completely endorse what the noble Lord, Lord Howarth, has said about the importance of this issue. It is no one’s fault, but starting this debate at 11.28 pm is a little odd. As the noble Lord, Lord Howarth, said, we shall obviously have to return to this when we debate both the amendment tabled by the noble Lord, Lord Cormack—Amendment 50—and the amendment to Amendment 50 tabled by the noble Lord, Lord Howard, to leave out subsections (3) and (4). Unless other noble Lords have remarks to make, the best thing may be to move straight to the Minister and hear his response. The important point that the noble Lord, Lord Howarth, made about Mr Mark Harper’s comments that he could envisage the Speaker certifying in advance will obviously have to be debated when we come to the amendment tabled by the noble Lord, Lord Cormack.

[Lord Norton of Louth]

My Lords, I plan to be extremely brief, as I have classes to teach in Hull shortly after 9 o’clock in the morning.

I wish to raise one point arising from what the noble Lord, Lord Howarth, has said. I have considerable sympathy with the argument that he is developing that either the Speaker’s certificate goes out of the Bill completely or, if it stays in, it needs to be refined. He was teasing out the point made by the Minister that the Government would expect the Speaker to indicate in advance whether he would certify a Motion as one of confidence. So, on the basis of that expectation, I wish to raise this question. One could raise it on any serious Bill but I have used before the example of the European Communities Bill in 1972, where the Prime Minister, Edward Heath, said, “If we lose this, the Government cannot sensibly continue”. If, in a situation like that, the Speaker took a contrary view and declined to certify the Bill as one of confidence but the Prime Minister said, “This is essential to our programme and, if we are defeated, we shall resign”, what would happen?

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Monday 21st March 2011 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

11: Clause 1, page 1, line 7, leave out “fifth” and insert “fourth”

[Lord Falconer of Thoroton]

My Lords, this amendment goes to the heart of the Bill in that it seeks to reduce the period of a fixed-term Parliament from five years to four years. This important Bill may well bring about a significant change to our politics by changing the position from a situation in which the norm for our Parliaments is to last around three years and eight months to four years—with a maximum of five years—to a norm for our Parliaments to last for five years, with the possibility of going below that period only in exceptional circumstances.

The reason why the proposal in the Bill has been advanced has been given on the basis of high principle. At Second Reading, the noble and learned Lord, Lord Wallace of Tankerness, said that:

“The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver”.

He went on to say:

“There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated”.—[Official Report, 1/3/2011; cols. 929-30.]

The noble and learned Lord is nodding helpfully. He is putting forward this Bill as part of that reinvigoration process.

His leader, Nick Clegg, has spoken in a similar vein. The Select Committee of this House which reported on the Fixed-term Parliaments Bill had the privilege of Mr Clegg appearing in front of it. Its report states:

“The Fixed-term Parliaments Bill is just one part of a package of proposed reforms intended by the Government to make the political system ‘far more transparent and accountable’. In his evidence, the Deputy Prime Minister told us 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’”.

The Deputy Prime Minister has also said that the time has come to stop people being allowed to,

“play politics with the dates of a general election”.—[Official Report, Commons, 7/6/10; col. 40.]

That is the high-flown basis on which the matter is put forward.

Happily, we have the account of the circumstances in which the five-year term was agreed, provided by Mr David Laws. I quote him from the introduction to his book:

“My intention in writing this book is not to describe an all-too-brief Cabinet career. It is instead to inform those who are interested in this important period of British politics and to make sure that an accurate account is left of what really happened in May 2010 before memories fade, myths grow and the evidence is lost”.

On page 98, he writes that Andrew Stunell pointed out to the Conservative negotiators 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 own policy 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 before having to start worrying about the timing of the electoral cycle. 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”.

That is how the Liberal Democrats moved from four years to five years; they did it because of the problem of trust. We should look at the proposals that are being put forward by the coalition with a moderately jaundiced eye, particularly because of the disingenuous way in which it is being done.

However, that does not relieve this House from considering as a matter of principle for the British people whether the right period is five years or four years. We are clear that the evidence—and this should be decided on the basis of evidence—is strongly in favour of four years rather than five. A mistake that the coalition persistently makes, and made in relation to the Parliamentary Voting System and Constituencies Bill as well, is that because judgment is required in coming to a conclusion on whether a particular course should be taken, all evidence can therefore be ignored. One simply, for example, has a conversation with Mr Andrew Stunell which lasts 40 seconds, at which point you abandon the policies that one has adopted for the previous 20 years. That does not sound to me like the exercise of judgment; it sounds like playing politics with the date of the next election, which is precisely what the Deputy Prime Minister said should not happen.

We in this House have an especial responsibility in determining what the length of a Parliament should be. It is an area where the Parliament Act does not normally apply, although I accept that its being five years is not the reason for its not applying. Nevertheless, it is an area where this House has an especial responsibility to ensure that the matter is looked at on the basis of evidence.

What does the evidence show? The Select Committee looking at the Bill heard evidence, which did not happen in terms of pre-legislative scrutiny, and concluded unequivocally that the evidence showed that four years was the right answer rather than five. In her speech at Second Reading, the noble Baroness, Lady Jay, said:

“The weight of evidence from British and international experts to the committee was against a five-year norm as against a five-year maximum”.

We should remember that this legislation involves a change from a five-year maximum to a five-year norm. She continued:

“My noble and learned friend Lord Falconer has already quoted Democratic Audit, which expressed alarm that a five-year term would present, ‘a reversal of a long struggle for more accountable government’. Overseas experience, for example from Canada and Sweden, suggested, in the words of witnesses, that, ‘there seems to be a kind of natural rhythm around four years’, and, ‘four years is more consistent with voter expectations’, all of which appears inconsistent with the Deputy Prime Minister’s evidence to us that his ‘unambiguous aim’ is to, ‘make the legislature more accountable to the electorate and to introduce the mechanisms by which people can exercise greater control over politicians’. Our evidence suggests very clearly that this unambiguous aim may not be achieved by this Bill”.—[Official Report, 1/3/11; cols. 1005-1006.]

The noble Lord, Lord Hennessy of Nympsfield said:

“As well as the biorhythmic arithmetic, we need to consider the quality of government and political life in the fifth year of Parliaments that have gone to the wire. They have rarely been shining patches in the life of Administrations. Ministers are often tired and accident prone. The palette of the electorate becomes progressively more jaded. A kind of pre-electoral blight sets in. Of course it could be argued that the final year of a fixed-term four-year Parliament would be similarly blighted. Certainly, the press would succumb to its customary pre-election frenzy as the last year deepened. However, the blight is likely to be less pronounced towards the end of a four-year span than a five-year one, and accountability is more likely to be enhanced by a four-year cycle”.—[Official Report, 1/3/11; col. 935.]

My noble friend Lord Grocott said:

“There is no doubt that the fifth year of a Parliament, in our constitutional history and experience if not in theory, is nearly always a completely unsatisfactory year”.—[Official Report, 1/3/11; col. 958.]

The overwhelming view expressed during the course of the Second Reading debate, with the exception of the noble Lord, Lord Armstrong of Ilminster, and some Back-Benchers on the Government’s side, was that five-years as the norm is a bad idea. That was the weight of the evidence before the Select Committee and the experience of active politicians such as my noble friend Lord Grocott, so where is the evidence in favour of five years? I have looked hard to find it. I have read very carefully the speech of the noble and learned Lord, Lord Wallace of Tankerness, to see what arguments he advanced. He said that it would be possible to plan more easily if you had five-year terms. I fail to understand why planning cannot take place whether the norm is four years or five years. It is an entirely bogus argument.

Secondly, the point was made that you would have a longer time in which to implement your provisions. The throw-away remark of Mr George Osborne which appears in Mr Laws’s book appears to be the reason for five years. It states:

“George Osborne made the point that five-year Parliaments were better, as they allowed governments to get into implementing their plans before having to start worrying about the timing of the electoral cycle”.

Presumably, that would depend entirely upon the length of time their plans took in any individual case. It is therefore difficult to see the force of that argument.

As was said at Second Reading, when Asquith introduced the current arrangements he made it clear that he thought a five-year maximum would, in practice, lead to a four-year period of time, which he said was sufficiently close at some stages to the previous election and sufficiently near to the next election to lead to accountability. If the coalition were serious about trying to reinvigorate our politics, it would at least address that issue. The consequence of there having been a four-year fixed term is that there would have been four fewer general elections between now and 1945. If your aim is to connect more with the electorate, surely reducing the number of general elections rather than increasing them will have precisely the opposite effect of that which Mr Nicholas Clegg and the noble and learned Lord, Lord Wallace of Tankerness, put forward.

--- Later in debate ---

[Lord Dobbs]

I think it takes us back to 1974. I well remember Lord Callaghan, as he became. Indeed, he first introduced me to this House by giving me tea here. I owe him a great deal and I have the most profound respect for him. But I am surprised that the noble Lord should quote 1979 as being the pinnacle of constitutional principle. It was sheer self-interest based on the opinion polls, like it was for all other Prime Ministers.

[Lord Falconer of Thoroton]

I may be wrong, but my recollection is that Mr Callaghan went to the country because of a Motion of no confidence passed in the House of Commons. To describe him as choosing an election date seems, if I may say so, a little misplaced.

[Lord Dobbs]

The noble and learned Lord misunderstands me. The election date that he was going to choose was in the previous October, and that is where he got it wrong. In his own self-interest, he thought that he should soldier on, despite the evidence. Let me not be distracted, but I am surprised that the noble and learned Lord remembers 1978 and 1979 so fondly. I have to say that it is not an example that I would wish to follow.

Statistics will not resolve this issue. In the decision over whether it should be four years or five, I find myself, rather oddly, agreeing with the Deputy Prime Minister who, in a celebrated quote of his when asked if he thought 12 months here or there mattered very much, replied, “No, I do”. I think that he summed up the situation admirably. So let us have five years. I do not know if it is a matter of principle, as my noble friend Lord Marks says—I probably would not go that far—or of sheer practicality, but it is as close to the norm as four years. If any of the political parties find it somehow offensive, they are entirely at liberty to change it. All they have to do is to win an election, and because of this Bill they will have the immense benefit of knowing precisely when that election will be held.

Even taking the extreme position of supposing that every Parliament runs its full term, a premise that personally I doubt very much, surely extending the average length of a Parliament from the present four-and-a-half years to five does no great disservice to our constitution, and by enhancing the possibility of sensible, long-term government, it offers considerable benefits in compensation.

[Lord Rennard]

My Lords, in 2005, together with my noble friend Lord Razzall, I was responsible for the Liberal Democrat general election campaign. The manifesto for that campaign contained a commitment to fixed-term Parliaments and specified terms of four years. Obviously I have changed my mind, and I should like to give the Committee three good reasons why I have done so. However, before I do that, I would point out to some noble Lords opposite that only last year they fought a general election on a manifesto promising that, if re-elected to government, the party would legislate for fixed-term Parliaments. The party has still not said how it would have legislated to “ensure” that there would be fixed-term Parliaments, and made no mention whatever of what the term of those fixed-term Parliaments would be. If the case for four years rather than five years was so absolutely clear cut, as suggested by some noble Lords opposite, I wonder why it was not included in the Labour Party manifesto of only last year.

The first reason why I think I have changed my mind is through simply looking at the balance of a five-year term for a Parliament and how much of that time might be spent governing or how much doing anything else. My noble friend Lord Marks of Henley-on-Thames referred to the case for more pre-legislative scrutiny. I feel quite strongly that in the circumstances we have in this year in this Parliament, our legislation would be rather better if there was more draft legislation and more pre-legislative scrutiny, and I hope that when fixed terms of five years become the norm, there will be more of a case for such scrutiny in the first year of a Parliament, which would be good for the governance of the country.

[Lord Falconer of Thoroton]

Knowing that this Parliament is going to last for five years, surely there is time for pre-legislative scrutiny of this Bill. Why does the noble Lord not support that position in relation to this Bill?

[Lord Rennard]

In this Bill, we do not necessarily know whether we will have five-year terms or not. If the noble and learned Lord has his way, we will have four-year terms, not five years.

[Lord Falconer of Thoroton]

Am I given to understand that the reason for not giving this Bill any pre-legislative scrutiny is fear that it may not get through?

[Lord Rennard]

No, indeed. There are many things that require considerable scrutiny. But it seems to me that the actual principle of a fixed-term Parliament has been considered a number of times in a number of ways. I happen to think, for the reasons I am trying to advance, that five years is more logical. The first reason is that the first year of a Parliament would, more normally in the future, provide more time for draft legislation and pre-legislative scrutiny. As we all know, the last year of a Parliament tends to be given over to government campaigns rather than legislation. If we had only four years and the first year was dominated more by pre-legislative scrutiny and the last year dominated more by campaigning, only two years of government out of the four would be effective. That, as my noble friend Lord Marks of Henley-on-Thames said, is the problem with the US system. There, the period is four years, but everybody knows that in the first two years the President governs and then, after the mid-term elections, the second two years are all about campaigning for re-election.

There are two other points which are quite significant. They have not been made in this debate and some noble Lords opposite may wish to address them.

--- Later in debate ---

[Lord Butler of Brockwell]

I should like to comment on that because the experts were, for the most part, either politicians or distinguished academics; they were not people who had seen government from the inside. That is why I am anxious to express this alternative point of view.

[Lord Falconer of Thoroton]

First, a number of the politicians had been Ministers. Does the noble Lord regard that as government from the inside—or were they kept from the inside by Sir Humphrey on a regular basis? Secondly, on the basis of the argument he has made, if the noble Lord was given a choice between five and six years, I assume he would choose six years because there would be even less wearisome elections then.

[Lord Butler of Brockwell]

The noble and learned Lord tempts me.

[Lord Falconer of Thoroton]

Please be tempted.

[Lord Butler of Brockwell]

A balance has to be struck and I would strike it at five years.

On the previous day in Committee, the noble Lord, Lord Grocott, urged a referendum on the question of the day of the week that polling should take place. In his speech today, he did not urge a referendum on going to a four-year term, which is a greater constitutional change than a change in the day of the week for voting.

--- Later in debate ---

[Lord Wallace of Tankerness]

Well, he can be accused, because noble Lords opposite will accuse him. But any reasonable person would see that, in setting the basis for a fixed-term Parliament, one could not take account five years out of the possible political vicissitudes, waves and currents in the intervening five years. If this Bill becomes law, the Prime Minister will be locked in, as will any other Prime Minister in future.

I was going to make this point later, but this is an opportune time to make it. I thought that a large part of the noble and learned Lord’s argument was that this measure is the glue that holds the coalition together. However, unless I am mistaken—and I stand to be corrected if I am—the terms of his amendment would still leave standing the election to take place on 7 May 2015. The noble and learned Lord shakes his head.

[Lord Falconer of Thoroton]

I want to correct that, because it is certainly not my intention, which is to have four years, four years, four years and so on. It is certainly not to have five years and then four years. There may be an issue with the drafting, but this is intended to set four years as the term, so be under no illusion.

[Lord Wallace of Tankerness]

I am grateful for that clarification because I had interpreted his amendment as leaving 7 May 2015 to stand and that thereafter there would be four years. I am grateful to hear the noble and learned Lord say that that was not the intention, because that was going to be the answer that I gave to my noble friend Lord Cormack. I accept that it may well be an error in the drafting.

The point that I would make is that this Parliament was elected for a maximum of five years, so in moving to a fixed-term Parliament regime we are embodying that in the Bill—and then thereafter also to have five years. That is the point that I make to the noble Lord, Lord Butler. Of course it is right and it goes without saying that no Parliament can bind its successor. The noble Lord and others say that there is no need for this legislation, but what we are seeking to do is to have fixed-term Parliaments on into the future. Other Parliaments can repeal that, but obviously it would take primary legislation to repeal a system of fixed-term Parliaments. I would very much hope that, having established the principle of fixed-term Parliaments, in the same way as we have fixed terms for devolved Assemblies, for local government and for the European Parliament, fixed terms would become the norm.

I take the point made by my noble friends Lord Marks and Lord Rennard with regard to pre-legislative scrutiny. I have been at the receiving end of many complaints about the lack of such scrutiny. There is an issue about the first year of a Government, because when they come into office they want to get on and start dealing with things. One can readily imagine the criticism that would come from the Opposition if a Government were not doing anything. However, there has been a move over the years to having more pre-legislative scrutiny, which has the effect of increasing the workload on both Houses. It is not fanciful to imagine that, following the election in 2015, a Government of whatever colour will not be able to commence their first Session of legislation with more substantive Bills until there has been a considerable amount of pre-legislative scrutiny. So we are talking about the beginning of 2016 as the time when some key pieces of legislation are introduced, having properly been looked at beforehand.

The final year, whether the term is four years or five years, is always going to be one when those seeking re-election look to their constituencies. That would reduce by some way the effective time for legislation by a Government. My noble friend Lord Norton made the point in one of our debates on the first day in Committee that Governments might run out of steam in the fifth year. Allowing for pre-legislative scrutiny and knowing that there will be five years allows for the legislative programme to be planned more effectively. The fifth year, particularly if it is a full year, not one starting at the end of November with a wash-up in the middle of March, would then be used much more effectively.

I defer to the huge experience of the noble Lord, Lord Martin, as he was Speaker of the other place and has an understanding of the parliamentary process. However, the final year, be it the fifth or the fourth year, would inevitably be one when the shadow of the coming election loomed. I also point out that my understanding is—although I may be corrected—that now Thursday debates in the other place are very often chosen by a Back-Bench Committee and that the Government have given power to the Back-Bench Committee to determine the subject matter for debate. I would be interested to know how many Divisions there have been on Thursdays in the first Session of a Parliament, as the noble Lord made the point about how few there were in the fifth Session. That is another measure that this Government have taken to put more power in the hands of Parliament rather than the Executive.

--- Later in debate ---

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, will get an opportunity in future to intervene. I am sure that he will make a speech on another set of amendments, to which I shall be more than happy to reply.

At the moment, we have a system that allows up to a maximum of five years. In fact, three of the past five Parliaments have gone for five years. To remove that possibility requires a more compelling argument than we have heard. To move for four years would leave the effective working life of a Parliament and a Government sufficiently curtailed that they would not be able to implement their manifesto provisions. Therefore, I ask the House to support the idea of a five-year fixed term and ask the noble and learned Lord in those circumstances to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I will of course withdraw my amendment at the end of the debate because the purpose of debate at this stage was in order to probe and examine the arguments. The noble and learned Lord’s speech was well delivered but disappointing because it ultimately did not address the central argument being put against him: that the effect is to change our constitution, where there is a five-year maximum but the norm is around four years, to one where the norm becomes five years save in exceptional circumstances.

What everyone around the House was asking him was: why are you making this change if we have to make the judgment on what is in the best interests of good governance in this country? The Minister never answered that question at all but it is at the heart of the debate. This is not a party-political point. The reason that the noble and learned Lord cannot answer the question is that good old Mr Laws, in order to make it clear that the record should not be perverted in any way, has explained why it is five years. I do not know why the noble and learned Lord, who is an honourable man, is weaving and dodging on this. Just say, “They wouldn’t do a deal with us unless we agreed five years”. Do not try and make it something that it is not.

One of the other things that emerged so strongly from this very powerful debate was the sense that the more one talked about it, the more this House felt uneasy about being locked into this straitjacket that the Bill brings. I am in favour of fixed-term Parliaments, in the sense that I can see it to be appropriate that Parliament should in some way endorse what the Prime Minister has decided about an election. However, the Government are saying, “You have to choose between five years and four years”. I detected a real sense of unease around the House on this, but the Government are putting it that we have got to make this choice. Therefore, looking at the arguments, let us see which the best choice is. The noble and learned Lord himself said what the reason is that the Government are doing this.

Now, I cannot find my note. That would give my noble friend Lord Foulkes an opportunity to ask me a question, but I do not think that he wants to ask me any questions. I am sorry about that.

[Lord Foulkes of Cumnock]

My noble and learned friend is aware that I have just spent the last year of a four-year term in the Scottish Parliament. We happen to have been legislating right up to the very last day of that Parliament. There has been none of the kind of lassitude, or the feeling that the noble and learned Lord, Lord Wallace, described as an end-of-term—what word I am I looking for?

--- Later in debate ---

[Lord Foulkes of Cumnock]

Yes, I mean lame duck; I knew I would get it eventually. I can tell my noble and learned friend Lord Falconer that one of the architects of the four-year fixed-term Parliament in Scotland was the noble and learned Lord, Lord Wallace of Tankerness.

[Lord Falconer of Thoroton]

How grateful I am for all that. I know that the Minister will have listened to it all.

To go back to my point, the noble and learned Lord is making us choose between five and four years, but the arguments that his Government put forward are all on the accountability side. That is what makes the case being advanced so absurd. Again, in the evidence that the Deputy Prime Minister gave to the examination of the Bill, he said in justifying it 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”

How could he have been trying to justify the Bill as giving more accountability in a process that left the electorate with less ability to get rid of Governments, because there would be fewer general elections? What is so odd about the Government’s position is that they rely upon accountability and then propose something that produces less of it.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

Is the noble and learned Lord, Lord Falconer, not prepared to concede that it may just be that, in spite of the frivolous tones in which he dismisses the arguments, my right honourable friend Mr Osborne may just have been right?

[Lord Falconer of Thoroton]

He might have been, but I would not rely on anybody whose point of principle—this one was adopted for years by the Liberal Democrats—evaporates in the course of one sentence in a negotiation. Say that it is a compromise or a deal done to benefit the country, but do not say that it is a point of principle which switched in the course of negotiations. That is the weakness of the argument, in my respectful submission, that the noble Lord, Lord Marks of Henley-on-Thames, was making.

The noble Lord, Lord Dobbs, made an impressive speech. I have never heard statistics more blatantly abused than by him. Perhaps I might draw attention to two particular points. First, he chose his starting point as October 1974 to ignore the February to October 1974 point, as he explained. Secondly, the difficulty with the fact that there was one election where the date was forced upon the Prime Minister by a Motion of no confidence was simply obliterated from his mind completely, so that he focused only on 1978. What he said was accurate in that, obviously, in choosing the date that they have for elections Prime Ministers are motivated by the chances of winning. That is the basic reason why one has a fixed-term Parliament but it does not really assist in determining between four and five years.

The speech made by the noble Lord, Lord Butler of Brockwell, was the most admirable. I say that genuinely, having worked with him. He was the Cabinet Secretary in 1997 when we took power and, having seen the talent of the noble Lord, I can genuinely understand how he would find the elected politicians quite wearisome to start with, particularly when they come into power with no experience of any sort of government. If I were him, I would have the least often elections as possible but, as people have made the point, this debate is just as much about accountability as about stable government. The reason that the Bill is being brought forward—this is the Government’s defence—is because the public are fed up with the politicians and want more accountability and more mechanisms to have control over them. The idea that you do that by extending the length of a Parliament, which is the effect of this, seems, with the greatest respect, to be nonsense. Nothing could be better designed to reduce confidence in government than the disingenuous explanations that have been put forward for the Fixed-term Parliaments Bill in the course of this debate. I will withdraw my amendment, but it will be back. I beg leave to withdraw the amendment.

[Lord Butler of Brockwell]

Before the noble and learned Lord sits down, since he had a go at me, can he quote one piece of evidence that the public generally want four-year elections?

[Lord Falconer of Thoroton]

Can the noble Lord quote one bit of evidence in favour of five years? I suspect that the public have no view on whether it should be four years or five; it is for us to judge.

[Lord Lloyd of Berwick]

I shall answer on the noble and learned Lord’s behalf. The evidence given to the Power commission was clearly in favour of more elections rather than fewer, not more than four years apart.

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[Lord Cormack]

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

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

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

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

[Lord Falconer of Thoroton]

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

[Lord Rennard]

My Lords—

[Lord Falconer of Thoroton]

I am not going to give way, if you do not mind. As I say, the Government were given the opportunity to put these things together but they did not take it. It seems to me that the consequence of not taking that opportunity is that when Parliament debates these issues again on the Fixed-term Parliaments Bill or on Lords reform, we will not regard ourselves as bound by the previous decisions that have been made—for example, we might conclude that four years was better than five for a fixed-term Parliament—because the Government explicitly refused the opportunity to put these constitutional reforms together despite the fact that they were urged to do so not just by the Opposition but by the cross-party constitutional committees in both Houses of Parliament.

I shall be interested to hear the noble and learned Lord’s view on how we deal with possible inconsistencies between one of the Government’s constitutional reform package Bills and another. Presumably, that is done by amending the later Bill when we see what the right answer is. I now give way to the noble Lord, Lord Rennard.

[Lord Rennard]

I wonder whether the noble and learned Lord is being consistent in his arguments. There seemed to be a lot of criticism of the fact that in previous legislation two items were put together—the voting referendum and the constituency boundaries. Now he is suggesting that the third item—this Bill—and House of Lords reform should all be put in the same package. I do not understand his argument. I was simply suggesting that when we have decided things we should try to be consistent about them.

[Lord Falconer of Thoroton]

As regards the AV referendum and the parliamentary boundaries, we saw what was proposed in relation to both of those. The issue was whether they both needed to be included in one Bill. We knew what the proposals were.

--- Later in debate ---

[Lord McAvoy]

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

[Lord Falconer of Thoroton]

My Lords, I support what my noble friend Lord McAvoy said; I support the amendment of my noble friend Lord Grocott; and I support the approach taken by the noble Lord, Lord Cormack. It is worrying when everyone who knows anything about this says—and I do not include myself; I refer to three distinguished ex-Members of the other place—that the effect of there being no control over the Government on how long a Session lasts means that they can play fast and loose with however long it takes them to get the legislation that they want through Parliament. That weakens the power of Parliament. A lot of the constitutional rhetoric of this Government was on strengthening the power of Parliament.

I wish to ask a specific question, because it would appear that the Government understood this position on 25 May 2010, when the Deputy Leader of the House of Commons said in relation to the Bill:

“There is a strong case for pre-legislative scrutiny, but I do not want to extend the consideration of this legislation into the following Session, because that would not be appropriate”.—[Official Report, Commons, 25/4/10; col. 152.]

He understood the importance of Sessions. He said that on 25 May 2010. Happily for him, on 13 September 2010, the Session was then extended until May 2012, thereby getting rid of the one problem that stood in the way of pre-legislative scrutiny. Can the noble and learned Lord specifically answer as to why the Deputy Leader of the House broke that promise? “Promise” may be overstating it. Perhaps the noble and learned Lord should characterise what the Deputy Leader meant. Was it wild musing as to what might happen? Why did he not go ahead with what he had said?

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I welcome the noble and learned Lord, Lord Wallace of Tankerness, as the lead Minister on this important constitutional Bill. The noble and learned Lord gained your Lordships’ trust and respect—in the end almost alone—in his handling of the Parliamentary Voting System and Constituencies Bill. I very much look forward to the maiden speech of the noble Lord, Lord Cormack, who I am sure will be an important contributor to the proceedings of this House in years to come. I genuinely congratulate the Lords Select Committee on the Constitution, chaired by my noble friend Lady Jay of Paddington, which has produced a penetrating and extremely helpful report on the Bill that has helped to resolve a number of issues which would not have otherwise been resolved.

The Conservative and Liberal Democrat parties have agreed that they wish to govern together until 15 May 2015. That is an agreement which, in practice and under our existing constitutional framework, is open to them to make. In the context of the healthy majority they enjoy in the Commons, it requires only one thing—that they abide by the promises that they have made to each other. It requires nothing more. In particular, it does not require a binding resolution of the other place and it does not require this Bill. There is very much to be said for fixed-term Parliaments; and there is very little to be said for this Bill, which dresses up as a piece of high-minded constitutional reform the chronic mistrust which the two parties in the coalition have—in my view correctly—for each other.

The legislation, practically everybody except them agrees, damages the constitution merely to give effect to an agreement that does not require the Bill. Our aim in your Lordships’ House should be to demonstrate the damage done by this Bill, to try to improve it as much as possible by amendment, and then to consider the overall effect of the amended Bill in the context of a Bill not caught by the Parliament Act 1911. The noble and learned Lord was right when he said that we are the guardians of the sanctity of the term of Parliament.

As regards the damage done by this Bill, first, it gets the period of the fixed term wrong; it should be four years, not five. The consequence of this is that the voters will find themselves even less able to hold their Executive and legislators to account. Secondly, this Bill probably allows the Prime Minister, as long as he retains a majority in the House of Commons, to have a general election whenever he wants by relying on one or other of the exceptions to the fixed-term provisions. It constitutes very little, if any, inhibition on the executive power of the Prime Minister. Thirdly, the drafting of the Bill is such that it might well prevent there being a general election when a Government genuinely lose the confidence of the House of Commons, either because the lack of confidence is not demonstrated by something which is described as a “motion of no confidence”, or because of the 14-day provision referred to in interventions on the noble and learned Lord, Lord Wallace of Tankerness.

The damage done by this Bill will be less accountable Parliaments, because they will last longer, a Prime Minister unchecked in his ability to have an election whenever he wants and a legislature with a more limited ability to evict a Government who have lost the confidence of the Commons.

This important constitutional Bill has—inevitably with this Government, I say with a heavy heart—not been the subject of a Green or a White Paper, of public consultation or of pre-legislative scrutiny. Its roots are in the coalition agreement. The terms of that agreement provided for the introduction of a binding resolution in the Commons to hold the next general election on 15 May 2015 and, after the passage of that resolution, to introduce a fixed-term Parliaments Bill with a provision which would allow there to be a general election if 55 per cent of MPs voted for such an election —the picture being: lock people in with a binding resolution, then lock them in further with the Bill.

On 25 May 2010 in the other place, its Deputy Leader said:

“Unlike what happened under the previous Administration [the Bill] will not be guillotined”.—[Official Report, Commons, 25/5/10; col. 146.]

He also said:

“There is a strong case for pre-legislative scrutiny, but I do not want to extend the consideration of this legislation into the following Session, because that would not be appropriate”.—[Official Report, Commons, 25/5/10; col. 152.]

No binding resolution was ever put to the Commons; the 55 per cent was changed to two-thirds without consultation—unsurprisingly, when one learns that the coalition has 56 per cent of the MPs; a guillotine was applied on the second Committee day in the Commons; and, despite the fact that the parliamentary Session was extended until May 2012, after the Deputy Leader of the Commons had indicated that he was in favour of pre-legislative scrutiny as long as it did not extend the consideration of the Bill into the next Session, there has been no pre-legislative scrutiny.

The unanimous view of your Lordships’ Select Committee, in its report on the Bill, is that the Bill’s origins and content,

“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

The short-term considerations driving this Bill are obvious; namely, to cement this particular Government into power for five years by making the holding of a general election earlier than five years as difficult as possible. To suggest that the purpose of the Bill is to introduce constitutional change beneficial to the nation is not credible when its provisions are examined for their effect and the evidence of what is generally perceived to be the right changes to introduce on fixed-term Parliaments. Perhaps I might make those assertions good.

First, on four years not five, the aim and likely effect of the legislation is to change our system from one where the maximum term of a Government has been five years, although the normal length has been much closer to four years, to one where the norm is five years with exceptions. That change will be damaging to our constitutional arrangements. By extending the period between elections by around one year, it will distance the people from the politicians. It will make the politicians less accountable to the public and intensify the feelings of alienation between those who govern and those they govern. Herbert Asquith, the then Prime Minister, when introducing the current arrangements with the five-year maximum, as opposed to the seven-year maximum, accurately predicted that they would produce an actual legislative working term, in practice, of four years. When he was introducing these provisions, he said that four years,

“will secure that your House of Commons for the time being, is always either fresh from the polls which gave it authority, or—and this is an equally effective check upon acting in defiance of the popular will—it is looking forward to the polls at which it will have to render an account of its stewardship”.—[Official Report, Commons, 21/2/1911; col. 1749.]

That was in the context of Asquith saying that four years would be the norm.

Until the coalition agreement, no party and, as far as I can find, precious few academics were urging that the fixed term—that is, the norm—should be five years. The Conservatives, far from supporting a fixed term, argued through their leader in the general election campaign that there should be a mandatory requirement for a general election within six months of any change of PM. The Liberal Democrats’ position was that indeed there should be a fixed term. They did not say how long in their manifesto. Until the coalition agreement, they had always previously said that it should be four years. In 2007, their conference adopted a paper which said:

“Liberal Democrats have long argued that parliaments should last for a fixed term of four years”.

Since 1994, three Private Members’ Bills have been introduced in the Commons for fixed terms by three admired, independent-minded Members of Parliament: the noble Lord, Lord Rooker, who I am happy to see in his place today, Mr Tony Wright and Mr David Howarth. Each one of those Private Members’ Bills specified four years. The Plant Commission—I am happy to see my noble friend Lord Plant in his place—which reported in 1993, said four years. All three of the devolved Assemblies or Parliaments in the United Kingdom set up in the past 13 years adopted four years. The academic position has been summed up by Professor Blackburn, Professor of Constitutional Law at the University of London, as follows:

“In the UK, there can be little doubt that the period between general elections should be four years. The proposal for fixed-term Parliament as a whole should fit as closely as possible into existing constitutional expectations, and the idea that four years is about the right length of time between elections is very prevalent”.

There have been four five-year Governments since the Second World War. I include anything over four years and eight months. Those fifth years of five-year Governments, 1963-64, 1991-92, 1996-97, 2009-10, have tended to be demoralised years; very different from the fourth years of the Governments where the expectation is an election at the end of the fourth year; 1950-51, 1954-55, 1958-59, 1982-83, 2006-07, 2000-01, 2004-05. That is partly because the country may be waiting for change in those fifth years, but significantly because the democratic mandate is so obviously exhausted in those fifth years and legitimacy for the Government lacking.

This issue is of central importance to this Bill. It is the big change that this Bill will bring. There will be more fifth years; more paralysis waiting for change. Most of the evidence that dispassionate observers have brought to this issue supports the view that making five the norm—lengthening the period of our Parliaments —will damage our constitutional arrangements.

Perhaps I may give just two examples. Professor Dawn Oliver, Emeritus Professor of Constitutional Law at UCL, thought that the cumulative effect of successive five-year terms would be to produce a democratic deficit. Democratic Audit expressed alarm that a five-year term would present,

“a reversal of a long struggle for more accountable government”.

The justification given for five years by Mr Clegg is that it is a length of time with which people are familiar and which will reduce the politicking because the politicking starts, he alleges, at the beginning of the fourth year. In fact, as a nation we are more familiar with a term of around four years, and in a shorter cycle, with four years fixed, the electioneering tends to be shorter and the period of paralysis shorter. My noble friend Lady Jay’s committee stated:

“Of all the issues arising from the Fixed-term Parliaments Bill, the proposal for a five year fixed term has created the most unease”.

Your Lordships’ House has the power to stop the five years and we should certainly use it.

However, there is much wrong with this Bill apart from its cynical adoption of a five-year term. It is hardly a fixed-term parliaments Bill at all. It specifies two circumstances, other than the expiry of five years, in which a general election must take place: where two-thirds or more of Members of Parliament vote for one or where the Commons passes a vote of no confidence and another Government do not obtain the confidence of the House of Commons within 14 days of the passage of a vote of no confidence. With those two exceptions, it is likely that any Prime Minister who wants an early election can get one whenever he wants. Would, I ask rhetorically, the main opposition party have objected if either Gordon Brown in 2007 or John Major in 1990 had said that they wished to go to the country in the aftermath of their selection as PM by their parties in those years? I doubt it, so the two-thirds exception could have been relied on. Would the main opposition parties have objected in January or February 1974, when Mr Heath went to the country early, or in October 1974, when the Wilson Government did, assuming that this Bill had been law? I doubt it.

However, let us suppose that in January or February 1974 the main opposition party had objected to Mr Heath going to the country. Under the wording of this Bill, I can see no objection to Mr Heath having proposed a vote of no confidence in the Government, not on the basis that he did not believe that they were the right Government but on the basis that, without a democratic endorsement of the Government’s position, it was wrong for the Government to continue, as I conceive Mr Heath’s view to have been at the time. The way to have achieved that under this Bill would have been to propose a vote of no confidence in the Government as long as there was no election. Alternatively, let us take October 1974, when a minority Government needed to do things to put the economy straight. Again, would there have been any difficulty in proposing that it was necessary at that stage to have an early election? I conceive not. Or let us suppose that in 2000 or 2005 the Labour Government of Mr Tony Blair had said, “We think the right course now is to allow for driven public service reform, which can be achieved only by a new mandate from the country”. On the basis of the Bill, would it have been improper in those circumstances to seek a vote of no confidence with a view to having a general election? I do not think that there would have been any problem.

In each case, the question to be asked under the Bill is: does the Motion which has been passed satisfy the Clause 2(2) test; namely, on a specified day did the House pass a Motion of no confidence in Her Majesty’s Government? Under the terms of the Bill, the question of whether it did or did not would fall to the Speaker to decide after consulting the Deputy Speakers. Any conclusion that the Speaker reaches is described in Clause 2(3) as being “conclusive for all purposes”. In my view, his conclusion would not be challengeable in the courts, although I am aware that the Clerk of the House of Commons, Mr Malcolm Jack, for whom I have the greatest respect, has expressed anxiety that the courts might consider that they had jurisdiction to consider on judicial review whether the Speaker had come to the correct view. I have very little doubt that the courts, having regard to the subject matter of the Bill, to the fact that the decision was to be made by the Speaker and that there was a conclusiveness clause, would consider that this matter had nothing whatever to do with them, and they would conclude that parliamentary privilege preventing any interference by the court meant that they could make no orders. Therefore, I agree with the Government in that respect.

Therefore, it would be for the Speaker to decide, and I do not see anything in the Bill which either allows or requires him to inquire into why the no confidence vote was passed. If it was passed, that is sufficient. The Bill says “passed”, not “lost by the Government”. It must be envisaged by the Bill that the Motion that leads to no confidence is not necessarily one that is proposed by the Opposition. Let us take, for example, the Queen’s Speech being defeated by the House of Commons or the Finance Bill being defeated at Third Reading. Would there be any doubt that those constitute votes of no confidence in the Government? Both would be votes proposed by the Government, not by the Opposition.

In practice, on the wording of the Bill, the Prime Minister, as long as he retains a majority in the House of Commons, can satisfy the first part of the vote of no confidence requirement. Inevitably, in those circumstances he could also satisfy the second—preventing any new Government emerging in the 14-day period after the vote of no confidence has passed. If that analysis is correct, which I believe it is, this Bill in effect provides no real inhibition on a Prime Minister with a majority from having an election whenever he wants. The vast majority of witnesses who gave evidence on this point before the Lords Constitution Select Committee said that it would be open on the current terms of the Bill for a Government to manipulate the position to have a vote of confidence and then lose it in order to have a general election. I am sure that that is right, although for the reasons I outlined I do not think that any real manipulation would be needed.

Mr Clegg gave evidence to the Lords Select Committee that he could not exclude the theoretical possibility but he went on:

“Can you exclude it in practical political terms?”

He answered his own question by saying:

“I think you pretty well nigh can”.

He went on to say that,

“if a Government sought to do that it would be so transparent and so evidently grubby and self-serving that it would not do that Government any good at all. The final court of opinion, of course, is what the electorate would do, and I think they would be very unforgiving”.

I do not think that the electorate would think that. If Mr Heath in 1974 had said, “Assume this Bill was passed so I am not entitled to an early Dissolution but I will do it by getting a vote of no confidence”, that does not feel grubby at all to me. Equally, if John Major or Gordon Brown—in 1990 or 2007—had said that they should be endorsed by the public, I do not think that people would remotely regard that as grubby. In any event, it does not appear right. Canada introduced a Fixed-term Parliaments Act in 2006 which specified, as this Bill does, that the election should take place every five years on a specific day. The Canadian Prime Minister, Mr Harper, said in support of fixed terms at the time he was introducing the Bill:

“Fixed dates stop leaders from trying to manipulate the calendar. They level the playing field for all parties”.

That was said by Stephen Harper on 26 May 2006.

Like our Bill, his Bill had a safety valve in the sense that it did not affect the powers of the Governor-General to dissolve Parliament at the Governor-General’s discretion. Two years after the Canadian Parliament introduced that Act, the Prime Minister, Mr Stephen Harper, who swore blind that he was giving up his power to call the date of the general election, ignored the Act and asked the Governor-General for a general election, which was duly granted, correctly in my view because the Governor-General was obliged to accept the advice of her Prime Minister. I am not sure whether Mr Harper got a majority but he did better in that general election than in the previous one.

On that material, the Lords Select Committee chaired by my noble friend Lady Jay concluded:

“We conclude that, if the Bill is passed, it would not be possible to prevent a government using a vote of no confidence to bring about an early election. To do so would be seen by many as an abuse of the Act’s provisions and would undermine the fixed-term principle”.

The last part of the Select Committee’s view might be right—namely, that it would be seen by many as an abuse of the Act’s provisions—but I would not advise your Lordships to invest trust in this Government sticking to anything they have said about how they will treat Parliament. I draw the attention of noble Lords to the series of broken detailed assurances given to Parliament in relation to the Bill. If the two members of the coalition do not trust each other, without a binding resolution and this Bill, to stick to their commitment to govern until 15 May, why should this Parliament? The crucial point is that the Bill deprives the Prime Minister of the right to call a general election on the date of his choice only where he loses his majority in Parliament. Only then does he lose control over whether a no confidence vote passes, but then, of course, he would be vulnerable to being thrown out in any event by a no confidence vote.

Ironically, moving from the ease with which the Prime Minister who does want a general election can circumvent the fixed term where he thinks he can win an election, the Bill, at the same time, appears to provide a legal basis to prevent there being an election when the Government have, in reality, lost the confidence of the Commons in the traditional sense. The Bill allows for an early Dissolution only where there is a vote for one for which two-thirds of MPs have voted or where the House,

“passes a Motion of no confidence”.

What happens when the Government lose a vote on the passage of the Queen’s Speech or the Finance Bill? Does there have to be a subsequent Motion of no confidence in order for the Speaker to be satisfied that there has been a Motion of no confidence? If there does—which it would be in the interests of a governing party that wishes to stay in power to say that there would need to be—then the party’s MPs would, having, perhaps, rebelled in some numbers on the Queen’s Speech or the Finance Bill, rally to the party on the vote of no confidence, and the Government, unlike today, would get a second shot.

There have, since 1895, been four successful votes of no confidence in the Commons. In 1895 the vote of no confidence took the form of docking a proportion of the Secretary of War’s salary. In 1924 it took the form of an amendment to the terms of the resolution on the Queen’s Speech. There was another one in 1924, which took the form of an amendment to a vote of censure of the then Labour Government. A fourth one was the only one that was in the form of a vote of no confidence. I can see nothing wrong with the leader of the governing party, the Prime Minister of the day, saying, “This is not a vote of confidence, whatever it may be”, thereby, in effect, tying the hands of the Speaker and requiring the Motion of no confidence to be brought forward.

It is critical to tighten up the definition of the phrase,

“passes a vote of no confidence”,

to cover a number of situations over and above those that I have already raised. These situations include those cases where the Government lose a vote of confidence, as opposed to one of no confidence, and those cases where there would be no doubt that the vote was one in which confidence in the Government was at issue, albeit not expressly a Motion of no confidence—for example, the Queen’s Speech, the Finance Bill or an issue where the Prime Minister had expressly designated the vote as one of confidence.

The Bill should also deal with the position where the Government have never obtained the confidence of the House of Commons; for example, where, after a general election, in a minority government situation, the Government lose the vote on the Queen’s Speech. Is the position then that there needs to be a new Government? Do the new Government have to be found from the House of Commons then and there, or do they get only 14 days? Is that what is really envisaged by the Bill? Putting aside the situation where you have no Government after a general election who have obtained the confidence of the House of Commons after it has met, should there really be a norm that the House of Commons has 14 days to try to find a new Government? Should we not stick to the current norm, which is that, where there is a vote of no confidence, there should be a general election?

All of these issues are important, as is Prorogation and the extent to which it may be used to circumvent losing a vote of confidence, as it was recently in Canada. There are also issues about the timing of Westminster elections clashing with the Welsh Assembly and Scottish Parliament elections, which we will wish to probe when the Government’s consultation with those two bodies is reported to us. If the report comes too late, we may have to proceed without it.

What do we have in this Bill? We have a Bill that gets the wrong number of years; provides no real inhibition to the Prime Minister of the day having a general election whenever he wants one; and restricts, by making hard, the circumstances in which a Government who have lost the confidence of the Commons can be removed. The Bill is an utter disaster. It has been put in simply to provide glue to hold the coalition together because its parties do not trust each other. I respectfully suggest that the Government think of ways to find that glue other than by messing up the British constitution. We will do our best in this House to amend the Bill to make it work and to make it do as little damage as possible to our constitution. It is a Bill to which the Parliament Act does not apply and, as the noble and learned Lord said, we are the guardians of the right length of parliamentary terms.

Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Greaves]

My Lords, I was interested to hear that the noble Lord, Lord McAvoy, thinks that we will be able to demolish the Conservative Party in future. We might demolish the Labour Party as well—who knows?—and then we will have achieved our goal in life. However, at the moment we are in coalition and we shall be loyal members of the coalition.

This has indeed been a very interesting debate. The one thing that has united everybody who has taken part is the importance of the Bill. It is a slim but important Bill. I am strongly in favour of the principle of fixed-term Parliaments, which forms the basis of the Bill. I believe that the power of a Prime Minister to seek a Dissolution is a democratic outrage and should have been abolished long ago. As noble Lords will know, I am also strongly in favour of this House doing its job properly and of the practicalities of this legislation being properly scrutinised and discussed in this House. I hope that that will happen and that we will not again witness the fairly deplorable events that occurred during the passage of the Parliamentary Voting System and Constituencies Bill. I am not at this stage pointing the finger at anybody. The House got itself into a huge tangle on that and, as they always say, it takes two to tangle. I do not believe that the Government were blameless although my noble and learned friend Lord Wallace of Tankerness played a blinder during that Bill.

The principle of this legislation has been Liberal Party and Liberal Democrat policy for decades. If anybody suggests that we have just invented it for party political advantage, that is complete nonsense. The noble Lord, Lord Anderson, who is not in his place, said that the Liberal Democrats have an obsession with constitutional reform. Constitutional reform has certainly formed a very important part of our party policy and our party election manifestos for as long as I can remember. If we are now in a position to try to do something about that, we shall do so. It has been pointed out that it is also a Labour manifesto commitment—I assume that it is still Labour Party policy—that the principle we are discussing is correct. At some stage we want a very clear statement of what the Labour Party now stands for as regards fixed-term Parliaments.

I listened with great interest to the fluent, eloquent and interesting speech of the noble and learned Lord, Lord Falconer of Thoroton, and to those of other speakers. I listened carefully to the speech of the noble Lord, Lord Grocott, who is not in his place, and to that of the noble Lord, Lord Howarth of Newport, who said that he was not persuaded by the Bill. I think that is his normal way of saying that he is completely against it but we will find that out. The noble Lord, Lord Grocott, said that he was against all change. He thought that our constitution was wonderful and marvellous and that it should not be messed about with at all. Having listened to the speeches of a number of Labour Members, I got the impression that they could not imagine that anything different from what happens now was remotely desirable. We have seen on the part of quite a lot of Members the deep well of conservatism which exists within the Labour Party on constitutional matters. It was not always thus. Robin Cook was a pioneer in constitutional reform and the Cook-Maclennan agreement formed the basis of a lot of what the Labour Government did in the years after 1997 in setting up the Scottish Parliament and the Welsh Assembly, changing the role of the Lord Chancellor, introducing changes in this House and, indeed, in phase 1 reform of your Lordships' House.

So there was an agenda there—it was a radical agenda but in latter years the Labour Government ran out of steam. We need to know what Labour policy is now and specifically what its policy on a fixed-term Parliament is. The noble and learned Lord, Lord Falconer, said that the proposal had a high-minded aim. I agree with that but he then went on to say it is damaging and at the end of his speech he said it is an utter disaster and it is messing up the British constitution. Well, let us put on one side the way in which the legislation has been brought in. We have a job to do here—

[Lord Falconer of Thoroton]

I did not say, I am afraid, it had “a high-minded aim”. I said there is very little to be said for this Bill and that it seeks to dress up as a piece of high-minded constitutional reform the chronic mistrust that the two parties, in my view correctly, have for each other. It is my fault for not expressing it clearly but I certainly was not intending to say it had a high-minded aim.

[Lord Greaves]

I am grateful for that correction but the noble and learned Lord allowed me to use the words. I believe it has a high-minded aim and it is something with which we agree. However, we still need to know, as a basis for our discussions in Committee and at following stages, what the Labour Party would like to do. What policies would the Labour Party be putting forward on this if it was still the Government? We have been told that we have to operate on the basis of what Mr Asquith said 100 years ago. Well, no one has greater admiration than me for the achievements of the great Liberal Governments in the eight years before the Great War. Really, things have changed a little bit in the past 100 years and if we are to argue on the basis of conditions 100 years ago we are not going to get very far, although the noble Lord, Lord Grocott, did say that what he said was for reasons of nostalgia and it would not have allowed Mr Callaghan to make his wonderful speech in 1979. I think we have got to start looking into the situation in the second decade of the present millennium.

Does the right of the Prime Minister to call an election give the Prime Minister a great advantage? We are being asked to believe that it does not. Whether or not it does it certainly dominates politics in the months and sometimes years leading up to a general election. It dominates politics, in my view, in a very undesirable way. The noble Lord, Lord Grocott, said that Mr Blair and Mrs Thatcher were evidence that it did not work. They between them fought five elections, I think, and won them all as Prime Ministers. That is a very strange argument.

The noble Baroness, Lady Jay, in a very thoughtful speech from her position as chairman of the Constitution Committee, said that what we need is more accountable Government. I agree that Governments need to be much more accountable than they are now and have been for as long as I have known—and I think that the position has probably got worse over the years—but I believe that that accountability is far more to do with the relationship between government and Parliament; both Houses, but particularly the House of Commons. We have a convention here. One cannot be too acerbic in one’s criticism of the House of Commons so I am not going to be. The noble Lord, Lord Bach, is encouraging me to be critical. I am very critical of the way the House of Commons works. I do not think it holds the Government to account properly. There have been some recent changes which are beneficial but I believe that that whole area is far more important than whether it is elected for four or five years. I am disappointed at the way in which the coalition Government have related to Parliament. I understand why—the enthusiasm of new brooms wanting to sweep clean and wanting to get things done but I believe that they have been careless. In some areas they have been too bullying and I believe that is probably coming to an end now. I hope it is; we will see. It is up to Members of Parliament in both Houses to stand firm and say this must not continue. I believe that slowly that is beginning to happen.

We have a system in this country where people elect Parliaments. I know that a lot of people think that they are voting for the Prime Minister. At the previous election, the single most common telephone call made to the election department in my own area of Pendle was from people who had postal votes and were ringing up to find out why they could not find the names Cameron, Clegg and Brown on the ballot paper.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am trying to cover quite a lot of ground. I hope that I can do justice to the many important contributions that were made during the debate.

I welcome the fact that the Constitution Committee will look at the process for constitutional reform. It occurred to me that if a Parliament could not do much in the way of legislation in its first Session—it is not just constitutional Bills that call for pre-legislative scrutiny—there would not be much time to do much business at all, particularly since a four-year fixed term of Parliament has also been advocated. There will always be that tension as regards legislation that is introduced in the first year of a Parliament. We look forward to the Constitution Committee’s report on the process that it will recommend for constitutional legislation.

I had not anticipated my noble friend Lord Dobbs asking why the election should be held in May as opposed to June or October. The simple answer is that the most recent elections have been held in May, with the exception of the 2001 election when the foot and mouth epidemic occurred. There is always a difficulty with finding other times that do not clash with traditional holiday periods. However, my noble friend has posed an important challenge and we want to reflect on it. I also note that the annual canvass to update the electoral register takes place in October in Great Britain, so that may not be an appropriate time to place yet a further burden on electoral registration officers.

The noble Baroness, Lady Gould, asked whether there could be an extension of the two months beyond the extension. The answer to that is no. My noble friend Lord Rennard asked about primary legislation in this context. I believe that it is appropriate to introduce the relevant measure by order as the latter would have to be passed by both Houses. The noble Baroness, Lady Taylor of Bolton, asked what we anticipate might happen. I have asked myself that question. I am not sure that I have an answer but I think that one could anticipate receiving a lot of criticism if one was seen to be making provision for the Government to extend their life, not to shorten it. I have no doubt that if we did not have this measure something would happen that no one could have foreseen and we would wish that we had had it. In the case of the Scottish Parliament, the Presiding Officer has the power to vary the election date by one month either way and I think that in the case of the National Assembly for Wales, the Secretary of State has the power to vary the date by a short period either way—although I cannot remember exactly by how much. The measure that we are discussing has been informed by those practices.

My noble friend Lord Norton asked why Clause 2(2)(a) refers to “a motion” whereas Clause 2(2)(b) refers to “any motion”. I think that “any motion” was chosen because it is followed by,

“expressing confidence in any Government”.

It is clearly a drafting preference. We think that “any motion” or “a motion” would have the same effect. I shall certainly contemplate that matter further, but I think that it is a drafting preference rather than having any significant constitutional importance.

The noble Lord, Lord Hennessy, referred to resetting the clock. If there has been an election and a Government have been returned with a substantial majority and a mandate, they should have the opportunity to see that through for a full term. If the clock was not reset, the electorate might find it odd if, having returned a Government with a significant majority, they were then asked some 12 months later to vote again.

I have noted the points made about parliamentary privilege, which the noble Lord, Lord Howarth, raised, as did my noble friend Lord Cormack. I am sure that we will want to look at that issue in Committee but I certainly share the analysis of the noble and learned Lord, Lord Falconer of Thoroton, that the provisions here would ensure that the courts would not interfere in what we believe is very much the space of Parliament.

The key issue is whether Parliaments should last for four or five years. As my noble friend Lord Rennard indicated, there is no absolutely right or wrong answer in that regard—it is a judgment. I indicated that the longer period allows the electorate to make its judgment—my noble friend Lord Marks commented on this—on the policies of a Government as they are seen to be working out in detail over time. I also believe that it allows a Government and Parliament longer to plan their activities. I cannot accept the argument that inevitably the situation has arisen under our present system whereby the fifth year has tended to be a bit of a lame-duck year and that that would necessarily follow if we had fixed-term Parliaments. As has been pointed out by a number of contributors, the fifth year has tended to be a lame-duck year because the Government in office did not think that they could win by cutting and running after four years. Therefore, it has been against a background where they have probably been at a disadvantage anyway.

The point was made by my noble friend Lord Maclennan of Rogart and by the noble Lord, Lord Armstrong of Ilminster, and I think indeed by the noble Lord, Lord Grocott—although I think he was arguing this point in the context of arguing against a five-year term—that the final year, even though it would not be under the same sort of handicap as perhaps 1976-77 or 2009-10, nevertheless would be under a handicap. Even under a fixed-term Parliament, there would be the looming shadow of the forthcoming election. The last year is not as effective a year as the earlier years of a Parliament. That is why I believe that it would be the same in the fourth year of a four-year fixed-term Parliament or the fifth year of a five-year fixed-term Parliament. A four-year fixed-term Parliament therefore would only really allow three years for the Government to put a substantial part of their programme through. I have no doubt whatsoever we will come back to this.

I also just want to say one point. I cannot wholly accept that under a five-year term accountability disappears in the fifth year. I think those of us who have fought elections and have been elected know only too well as the election comes up accountability is a very, very strong thing indeed. When one is about to go and face one’s constituents accountability is very effective.

Another key issue, to which I am sure we will return in later stages of the Bill, is the mechanism. I absolutely endorse what the noble Baroness, Lady Jay, said about there being a spectrum from total flexibility, which you might say we have got at the moment with an end point, a maximum turn with total flexibility and on to rigidity. I do not think that anyone was arguing in this debate for total rigidity. There is a consensus among supporters of the fixed-term Parliament over there being some degree of flexibility; if there is a political imperative or the Government completely fail there must be a mechanism for triggering an election. The noble Baroness, Lady Jay, said that the Constitution Committee broadly endorsed the two mechanisms for triggering an election set out in the Bill but I have listened to the concerns that have been raised. A number of historic examples have been given but it is always difficult to say what would have happened in the past under a future system. The noble and learned Lord, Lord Falconer of Thoroton, acknowledged this. Edward Heath in 1974 obviously wanted a dissolution. The Opposition would have agreed and they would have got the two-thirds majority for an election. Likewise, the position in 1924 was also raised by, I think, the noble and learned Lord, Lord Morris of Aberavon in an intervention on my opening speech.

In January 1924 the Conservative Government resigned after a defeat on the Queen’s Speech address but that did not trigger a general election. It actually triggered the formation of Ramsay MacDonald’s Administration. The draft Cabinet manual which was published in December last year indicates that at the moment the convention is that the Prime Minister either advises Her Majesty to dissolve Parliament or the Government resign and a new Government from the existing Chamber can be found, as indeed happened in, I think, January 1924.

[Lord Falconer of Thoroton]

Am I right in saying that the election took place at the beginning of 1924 and Baldwin’s Government failed to win on the first Queen’s Speech and that is why we moved straight from Stanley Baldwin to Ramsay MacDonald? It would have been impractical to have gone straight to an election at that point.

[Lord Wallace of Tankerness]

Indeed, and that was the point that I think the noble and learned Lord raised in his speech. What happens in the first Queen’s Speech after an election? I think unless people are prepared to have election after election after election or the potential for that there would be an opportunity for another Government to be formed. The draft Cabinet manual published for consultation in December last year indicated that too. There would either be a dissolution or another Administration would be formed. It is that dual possibility that the Bill seeks to address.

I listened carefully to those who argued that the wording as to what constitutes a vote of no confidence needs tightening up. In response to the Political and Constitutional Reform Committee in the other place, the Government indicated a willingness to listen to suggestions on how that might be done. Those suggestions were not forthcoming during the Bill’s progress through the other place. I have certainly thought hard about it and wonder whether trying to be too specific might cause more problems than if one leaves the wording as it is. I know that my noble friend Lord Norton has views on this matter which it will be interesting to hear and explore in Committee. However, one recognises an elephant when one sees it. If it waddles like a duck and quacks like a duck, it is generally a duck. There is an issue here, but the more I have thought about it, the more I have found that trying to find a solution might cause more problems than leaving it, as it is at the moment, to the Speaker’s discretion. If it is not to be the Speaker, I do not think that it would be appropriate, given what has been said, for a member of the Executive to sign. I do not believe that leaving it as it is would cause the difficulties that have been suggested.

The noble and learned Lord, Lord Falconer, talked about manipulation. The Constitution Committee indicated that the position is indeed open to abuse, stating:

“We conclude that, if the Bill is passed, it would not be possible to prevent a government using a vote of no confidence to bring about an early election. To do so would be seen by many as an abuse of the Act's provisions and would undermine the fixed-term principle”.

I accept that that is possible, but I believe that it would be identified as an abuse. It would be a matter of politics. As far as I can see, the only way in which one can stop any kind of abuse is to have a rigid scheme, which no one apparently supports. That is why I have difficulty with those who have advocated that we keep things simple and that a simple majority of one in a vote of no confidence should be enough to trigger Dissolution. That would make the position worse in terms of the potential manipulation that the noble and learned Lord suggested could happen under the Bill. It would be even more likely to happen under a Bill which allowed for a simple majority of one in a vote of no confidence. It could be much more readily arranged.

[Lord Falconer of Thoroton]

That is the position.

[Lord Wallace of Tankerness]

That is not the position, because the Bill provides for a 14-day period following a vote of no confidence in which it could be seen whether another Government could be formed. That is not the same thing as going to the Palace the morning after a vote of confidence on a majority of one. If manipulation is possible under this Bill—unless the fixed terms are rigid, it is impossible to avoid—the opportunity for manipulation under a Dissolution on a simple majority of one is even greater. However, the important point is identified by the Constitution Committee: it would be seen as an abuse. That would be a matter for political debate and political comment and the electorate are the ultimate arbiters.

[Lord Falconer of Thoroton]

I said that that was what is envisaged because the proposition with which one has to deal is that the Government of the day with a majority procure a vote of no confidence in themselves—I have in mind the Heath example, where the Opposition do not agree. If that is the position, the Government of the day will also be able to stop anything happening in the following 14 days.

[Lord Wallace of Tankerness]

My Lords, it makes it much more of a process and an abuse of that process would be seen. However, as we indicated in our response to the report of the Constitution Committee, we accept that the scenario described would be possible, but, as the committee pointed out, it would be a clear abuse of the Act’s provisions and we do not believe that that outcome would be likely. Such an abuse has been possible in the Scottish Parliament and the Welsh National Assembly—there would be a 28-day period rather than a 14-day period following a vote of no confidence—but it simply has not happened because I think that people recognise the consequences of trying to manipulate a situation to bring that about.

The noble Lord, Lord Bach, helpfully confirmed in his winding-up that the Labour Party is still committed—although not entirely with the support of everyone behind him—to the idea of fixed-term Parliaments, but he objected to the way it might be done. I have no doubt that the Labour Party gave this very careful thought and I am sure that in Committee we will see the benefit of that thought in the kind of the amendments that he tables to address this. It is identified by anyone who supports a fixed term that there has to be an element of flexibility in how you do it.

I conclude by acknowledging, as have my noble friends Lord Cormack and Lord Dobbs, and many others, including the noble Lord, Lord Bach, in his winding-up, the importance of scrutiny and the important work that we will do at the ensuing stages of this Bill. It is quite clear that there is a lot of meat for the House to get its teeth into. I look forward to engaging with that, and on that note I urge the House to support this Bill and give it a Second Reading.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 16th February 2011 Lords Chamber

[Baroness Trumpington]

Many of us, I believe, voted for the Government out of loyalty to the Government, and not for the matter on which we were voting in the last round. I have listened to all the arguments today and I am thoroughly convinced by the amendment of the noble Lord, Lord Rooker, and by the speakers who have spoken. I fully intend, for the first time, to vote against my Government.

[Lord Falconer of Thoroton]

My Lords, we have had an absolutely scintillating debate on this issue. The issue for the House today is whether we should ask the other place to think again. I believe that that is an interaction of two issues: first, the extent to which we think it has been given adequate consideration already; and secondly, the importance of the issue. As for whether it has been given adequate consideration already, this proposal first emerged as a matter of debate a week ago last Monday, when the noble Lord moved his amendment and it was passed. It went to the other place yesterday. It was one of 104 amendments, of which more than 95 were not debated at all. This amendment was debated for 46 minutes. Of those 46 minutes, more than 30 were taken up by Mr Mark Harper speaking on the issue. I say in parenthesis that there may be times when Mr Mark Harper should emulate his near namesake Harpo Marx rather than Mr Mark Harper himself.

So Mr Mark Harper discussed it for more than 30 minutes, but in the course of his statements he misstated the effect of the amendment on a number of occasions. In relation to a vote in favour with a turnout of under 40 per cent, he said:

“So, even if the public had expressed a clear preference, it would not count”.—[Official Report, Commons, 15/2/11; col. 899.]

That was wrong. The same mistake was made this morning in the Times, which stated in its leader:

“In an attempt to derail the referendum on the alternative vote … system, Labour peers, led by Lord Rooker … and with the connivance of some Conservatives, have defeated the Government on an amendment stipulating that the result of the referendum should only be permitted if at least 40 per cent of the electorate turn out to vote”.

Again, that is wrong.

The position is that if less than 40 per cent of those entitled to turn out do so, it becomes an advisory referendum in exactly the same way. That deals with the critical issue: if there is a derisory turnout in favour of the alternative vote system, is it right that this country should then change its voting system, a voting system for which there would not be a majority in either House of Parliament? The legitimacy of a change of that importance must depend on getting more support for it than a normal change in the law, rather than less.

In my respectful submission to this House, it is pretty plain that this issue has not been properly considered either publicly or in the other place. It is pretty plain that it is a very important issue. It is pretty plain—and I pray in aid the very last speech we heard —that the argument in this House has been comprehensively won by those who support my noble friend Lord Rooker. In those circumstances, we on this side of the House will vote in favour of my noble friend's amendment.

[Lord Wallace of Tankerness]

My Lords, yet again, we have had a useful debate, with some powerful arguments made. I anticipated at the beginning of the debate that strong points would be made, but, nevertheless, we cannot depart from the central point. We are being invited to include in the referendum process a mechanism whereby, if a majority of the people vote yes, it will not necessarily deliver a yes outcome. I take the point made by my noble friend Lord Trimble. Although my noble friend Lord Forsyth was right to say that the 40 per cent rule in the Scottish referendum in 1979 is not the same as that proposed by the noble Lord, Lord Rooker, nevertheless, the point made by my noble friend Lord Trimble still holds. If people turn out and there is a yes vote, serious resentment would then be felt if somehow that was overturned by this House or the other House. At a time when we are trying to restore trust in the political process, to set aside the majority view of the people would be very serious.

The noble Lord, Lord Rooker, said that his amendment would not affect the outcome. I cannot accept that. It would not affect the result, but it could affect the outcome. Clearly, without his amendment, if there is a yes vote, the outcome is that the order would be laid to implement the system of an alternative vote for the next general election. His amendment could result in a different outcome, because if there was less than a 40 per cent turnout, it would not follow that an alternative vote would be used at the next election. Let us not shy away from the fact that his amendment would affect the outcome of the referendum in that important sense.

I take the point made by my noble friend Lord Lawson, who said that I had argued that it was a “stay at home” amendment. The “no” campaign could very well encourage people to stay at home to reduce the turnout. Because 84 per cent of the country will already be entitled to go to the polls on that day for the Scottish Parliament, the National Assembly in Wales, the Northern Ireland Assembly and local government elections in Northern Ireland and all parts of England bar London, if people want to vote no, we want them to turn out to vote no. We should not be giving people an encouragement to think that if they stay at home, they have the equivalent of a no vote, in as much as the yes vote may not bear fruit.

The Bill offers simplicity, clarity and certainty. It honours the promise to the electorate that they will decide how they return their representatives to the other place. They will do that as the result of a referendum without artificial barriers, without further complex, as yet undetermined, procedures and without political wrangling. It means that when they go to the polls on 5 May and want to vote yes, the outcome will not be “yes, maybe” or “yes if”. If they go to the polls to vote yes, it will count. Whatever the issues on the day are, their vote should be heard, listened to and given effect.

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[Lord Desai]

My Lords, the Government have asked the Boundary Commission to fit 597 out of 600 seats within a 5 per cent margin either way. I have tried to argue before that, in terms of statistical distributions, this will be an immensely difficult task because a standard deviation of 1.7 per cent is too small.

If the Boundary Commission were allowed to fix 95 per cent of the seats within the Government’s favoured margin of 5 per cent and the remaining 5 per cent of seats—30, perhaps 25, seats—were allowed to fall under the amendment of the noble Lord, Lord Pannick, it would make the tasks of the Boundary Commission and the Government simpler. The noble Lord, Lord Pannick, has not tried to subvert anything the Government want to do; he has been very helpful in making it much easier for the Government to achieve what they want to achieve. Otherwise it will be very difficult to carry out the task.

[Lord Falconer of Thoroton]

This is also an important debate and, again, the question is whether or not we should ask the other place to think again. We on this side of the House think it is right that we should do so.

Again, there is an interaction of two issues: first, the extent to which the matter has been properly considered by the other place; and, secondly, the extent to which it is an important issue. On whether the Commons has had a proper opportunity to consider the issue, this debate was an hour long in the other place. In winding up for the Opposition, Mr Sadiq Khan pointed out that Mr Mark Harper had taken up two-thirds of the time available. Right across the debate there was the repeated theme that the Government were not listening and that there was not clarity about what was happening. I shall not quote from Labour Members but from coalition Members.

When addressing Mr Mark Harper, Mr Mark Field said:

“Does my hon. Friend not appreciate the concern that when we are discussing whether there should be any variance, be it of 5% or 7.5%, it is important to know how the process operates? … If we do not have at least a basic understanding of how it will operate, it will be difficult for us to make any value judgment as to where the variance should lie, which is the subject of amendment 19”.—[Official Report, Commons, 15/2/11; col. 864.]

That is what we are now talking about.

Mr Andrew George, a Liberal Democrat Member, said:

“Given the nature of some of the questions that the Minister has been asked in the past few minutes, does he agree that perhaps there should be an opportunity to review the wisdom of going ahead on the basis that he is describing?”.

Later again, the same Member—a coalition Member—went on:

“My hon. Friend is absolutely right, but I think that the inflexibility of the proposals will result in much more significant changes across the country … All I am asking is that the Government take a less intransigent and more flexible approach”.—[Official Report, Commons, 15/02/11; cols. 865-8]

One Labour Member is worth quoting. Mr Paul Murphy, who had a distinguished career and was Secretary of State for Wales, said:

“I do not understand why the Government and the Minister are being so rigid and fundamentalist on this issue”.— [Official Report, Commons, 15/02/11; col. 869]

The mood around the House, from reading Hansard, is that inadequate answers were given, that the Government were being unnecessarily rigid and that there was no proper understanding of how it would work. That is perhaps not surprising, because this amendment first saw the light of day—in the sense of it being passed by this House—a week ago today. The material in the other amendment is going back to the other place for further consideration. In my respectful submission, it would obviously be wrong if this did not go back with it.

Is this an important amendment? In my respectful submission it is. I do not know how many of your Lordships were present when the noble Lord, Lord Armstrong, told the story of Procrustes; or when the noble Lord, Lord Pannick, went through the detail of the work that he had done with the Government to get to a place with this extra 2.5 per cent. He was the only person in that debate—including the Government—who had done the work and thought through what the consequences were. For example, in relation to the point made by the noble Lord, Lord Butler of Brockwell, there are some wards that are so large that they will not be protected by 7.5 per cent, so obviously there will be even more wards that will not be protected by 5 per cent. The answer to the question put by the noble Lord, Lord Butler of Brockwell, is that more wards will have to be broken up under 5 per cent than under 7.5 per cent. I hope that blocks the retreat for the noble Lord, Lord Butler of Brockwell, at this particular point.

As far as the overall position is concerned, the noble and learned Lord, Lord Wallace of Tankerness, referred to the academics and the people involved in the area. Professor Johnston, the leading academic in relation to this issue, said he did not normally support public inquiries; however, what the noble and learned Lord, Lord Wallace of Tankerness, did not say was that he thought that, in the context of such a far-reaching change as is envisaged by this boundary review, there is a strong argument for the ability to make changes. Robin Gray, the former chairman of the Boundary Commission, said that some flexibility in addition to the 5 per cent was required.

In relation to the issues that were being considered in the previous debate, we considered the issue of judicial review in detail. Of course I respect the noble and learned Lord, Lord Mackay of Clashfern, in relation to the issues that he raised, but the noble and learned Lord, Lord Woolf and the noble Lord, Lord Pannick, both expressed the view that most judicial reviews, even on this, would fail. I also make the point that the courts, in looking at these issues, would be well aware of the deadline, which would be sometime in October 2013. These issues would arise during 2012, so the courts, in my respectful submission, would be well able to have timetables that would ensure that the deadline of October 2013 was met. They would not be faced with these issues late on in the process, but much, much earlier on. The application for leave for judicial review would take place at such a time that the court could deal with them quite smartly. The noble and learned Lord, Lord Scott of Foscote, made the point that hopeless applications for judicial review take time—which is absolutely true—but a court keen to meet a deadline set in statute would in my respectful submission be able to deal with that.

The final point dealt with in the debate in the Commons was the statement that it was not possible to craft a genuine exception—a point I should say that was not made by the noble and learned Lord, Lord Mackay of Clashfern, in this debate; but which was referred to by Mr Mark Harper, who cites a case called Al Rawi and others v Security Service, a case about the extent to which you can have a special procedure for terrorists. It is hard to imagine a case more different than the sort of case the courts would be dealing with here, and it may be an indication of the difficulty in finding support for that proposition. I do not ask that this House reaches a firm conclusion; all I say is that it is the right thing to do for this House to ask the other place to think again. That seems very little to ask. We support the noble Lord, Lord Pannick.

[Lord Wallace of Tankerness]

My Lords, once again I thank noble Lords who have participated in this debate on what is an important issue, as has been recognised many times during the passage of the Bill through your Lordships’ House. I start by picking up the points made by both the noble Lord, Lord Pannick, and my noble and learned friend Lord Mackay of Clashfern with regard to the lengthy delays in responding both to the report from the Political and Constitutional Reform Committee in the other place and to your Lordships’ Constitution Committee. I am not in a position to offer any explanation, but I do recognise that the time that was taken cannot have assisted either House and I therefore wish to apologise. Responding to the point made by my noble and learned friend, I will certainly take it upon myself personally to make sure that the comments made in your Lordships’ House—and indeed I will reflect the force of them too—will be conveyed to colleagues.

It has been argued that the role of the House in asking the other place to think again, and indeed in asking the Government to think again, has been well discharged in respect of these amendments. As has been acknowledged, the Government did engage to see whether there were ways in which we could find common ground and indeed there has been an opportunity for consideration in the other House. However, before inviting the House to send the amendments back again for further consideration, it is important that we perhaps reflect as to what this supreme constitutional principle that we are asking the other place to think about is. Is it just 2.5 per cent? One of the principles of the Bill, referred to by my noble friend Lord King of Bridgwater, is that of equal votes—one vote one value—as best we can throughout the United Kingdom. That is an important principle and one we believe is reflected in the Bill and which, bar the two issues that are now outstanding, has been accepted by both Houses. It is not slavish arithmetic, as I sought to explain. The 5 per cent variation, which gives 10 per cent in all, was not just conjured up—indeed my noble friend thought that it should have been lower than that. In response to the question from the noble Lord, Lord Butler of Brockwell, we believe that the 5 per cent is the closest we can get to achieving equality in the weight of a vote—I am repeating myself but it is important to do so—and an equal say for voters in the outcome of a general election while allowing the Boundary Commission for England to continue its practice of using wards as the building blocks of constituencies in England. I remind the House that the wards themselves are drawn up with local factors in mind.

The contribution of the now much quoted Professor Johnston, in his first session before the Political and Constitutional Reform Select Committee, noted that much local political activity and engagement was based on the ward structure. Crucially, the secretary to the Boundary Commission for England, in his evidence to that committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. I did say, in my opening remarks, that an absolute prohibition on splitting wards would not be appropriate because there are some places—Birmingham is a case in point—where some wards are so large that it might not be possible not to split them. In these cases, the wards may even be so large that it might make more sense for local communities for them to be broken up to get a more readily identifiable sense of community. The basic point is that in the vast majority of cases it is believed that wards will be the building blocks for the constituencies in England. That is why the 5 per cent was chosen. We have yet to hear, with all due respect, a rationale for 7.5 per cent. I have sought to explain why 5 per cent is right and why there is a rationale behind it, but we have not yet heard a clear rationale for 7.5 per cent.

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[Lord Falconer of Thoroton]

My Lords, I congratulate the Isle of Wight on this great achievement and the noble Lord, Lord Fowler, on the work that he has done to secure it. I wish the people of the Isle of Wight well in relation to the conclusion that has been reached. It is a decent outcome. It could have applied to other places but now is not the time to dwell on that. I wish the Isle of Wight good luck. I assume that the conduct of the Government in relation to the Isle of Wight prefaces a good result later in the day on the amendment that we passed earlier.

Motion C agreed.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 14th February 2011 Lords Chamber

[Lord McNally]

That the Bill be now read a third time.

[Lord Falconer of Thoroton]

My Lords, today's date was fixed without consultation. Had we been consulted, we would have said that there was no reason not to comply with the usual interval of three working days between Report and Third Reading, meaning that Third Reading would have taken place tomorrow.

I raise the point not to invite debate or to seek change now but only so that the precedential effect of this is as limited as possible.

Motion agreed.

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Moved by

[Lord Falconer of Thoroton]

1: Clause 5, page 4, line 48, at end insert—
“( ) Party election broadcasts during the referendum period will not be broadcast if they deal with pictures or implied support of any particular side in the referendum on the voting system for parliamentary elections.”

[Lord Falconer of Thoroton]

My Lords, for noble Lords who are interested in this amendment, perhaps I may start again. The first amendment on today’s Marshalled List deals with expenditure on the campaigns in support of or against the alternative vote system. My amendment to Clause 5, and that of my noble friend Lord Bach, seeks to prevent a party political broadcast that supports one or other side in the AV debate being broadcast. I want to achieve that because there are complex and, in my view, sensible rules that one would have changed in a number of respects, but in principle it is sensible that there are rules to ensure that no one campaign can expend significantly more than another in support of or against AV. These rules can be got around if a political party can use its expenditure limits to support or oppose AV in the campaign.

My amendment seeks to prevent any political party using the party political broadcasts that it gets from the state, on the radio or on television from supporting or opposing the AV system. It is of practical significance in this particular debate on AV—whether or not we should introduce the change on the referendum—because the AV referendum, as noble Lords will know, is being combined with other elections in which parties will seek support for individual candidates.

In addition to broadcasts relating to the alternative vote referendum, party political broadcasts in support of individual candidates in local authority elections will be made available for the state and in the Welsh Assembly and the Scottish Parliament elections. The Tories—the Conservatives—and the Liberal Democrats, as well as the Scottish National Party and Plaid Cymru, will put out party political broadcasts throughout this period.

One party—the Liberal Democrats—unreservedly supports the change to the alternative vote system. It will be possible for it to put into its broadcasts indications of support for the alternative vote in the referendum, which will give in effect a significant broadcast. I do not know how many broadcasts there will be during the election period—perhaps five or six on the television and the radio. It gives them an edge that is not caught by the expenditure limits that are rightly put in the Bill. The amendment has the effect of saying that if you support AV or are against AV in your party political broadcast, that broadcast should not be granted.

There is already a section in the 2000 referendum Act that says that a party political broadcast on the television or radio cannot be broadcast if its purpose or its principal purpose is to support or oppose a view in the referendum. The question is whether it is better just to leave the law as it is and to let broadcasters decide the purpose or principal purpose, which is quite a difficult question of analysis. It is reasonable to assume that the principal purpose of a party political broadcast by the Liberal Democrats will be to promote the Liberal Democrats, but a subsidiary purpose might well be, from their point of view, to support the alternative vote system, which is a question of quite fine judgment. Or is it better, as I submit it is, to be quite clear about what you are saying and simply to say, “If you support one or other side in your party political broadcast, it should not be broadcast.”? That means that the political parties, in particular the Liberal Democrats but also any party that opposes them, will know precisely where they stand.

This point was first raised in Committee and it was agreed that the noble Lord, Lord McNally, and I would speak, but we were not able to do so. I then received a letter on Report just as that stage was coming to an end, so it was not possible to debate it at that point. The Minister, Mr Harper, was kind enough to ring me at ten to two on Friday afternoon last week to discuss it, and he sent me a letter that arrived in my hands at approximately a quarter past two today. Because of that sequence of events, it has been possible, unusually, to raise the point on Report today.

[Noble Lords]

Third Reading.

Lord Falconer of Thoroton: I apologise: at Third Reading today. It is an important issue, and I wait with interest to hear what the Government have to say. In the course of my telephone conversation with the Minister last Friday, one of his officials, plainly reflecting policy, said that either the Electoral Commission or the broadcaster—I cannot recall which—had not yet decided whether it was going to be permissible, in its book, for a party to say in its broadcast whether it supported AV or not. In other words, the broadcasters’ committee that was going to determine what was acceptable had not yet made up its mind whether a political party, in a party political broadcast, could say, “Our political party supports AV and we urge you to do so as well”. I respectfully submit that it is right for Parliament rather than a committee of broadcasters to decide this matter, and therefore I invite the House to support the amendment.

[Lord Phillips of Sudbury]

In the light of the wording of his amendment—which is a bit strange, if I may say so, particularly the section that reads,

“will not be broadcast if they deal with pictures or implied support of any particular side”—

what if the Lib Dems put out an election broadcast, let us say, six weeks before the referendum in which they said, for example, that they are strong supporters of constitutional reform across the board, or words to that effect? Would that fall foul of this amendment?

[Lord Falconer of Thoroton]

I accept the noble Lord’s implied, or indeed express, criticism. My wording is not good and that is my fault. It would have been much better if the amendment had said: “Party election broadcasts during the referendum period will not be broadcast if they support any particular side in the referendum on the voting system”. It would have been much simpler if I had just said that, and then one would have known where one stood.

On whether the proposition put by the noble Lord in his question would fall foul of my amendment, if the six-week period is within the referendum period, then it would. I would have to check with the Minister because I am not sure whether the six-week period is within the referendum period. However, if we assume that it is within the referendum period, then saying, “We are strong supporters of constitutional change”, implies support, I would have thought. I beg to move.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, has indicated, this matter has been debated in Committee and on Report, and it is clear that the Government have taken a different view from him. However, I accept that it is helpful for us to be able to have a further exchange on the issue.

The Government believe that the framework that is set out in this Bill and indeed in other legislation is sufficient for this referendum. Perhaps I can establish some common ground. We agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. However, Section 127 of the Political Parties, Elections and Referendums Act 2000 prevents the main purpose of any broadcast other than a referendum campaign broadcast being to procure or promote an outcome in a referendum, which we believe is sufficient reassurance. In other words, it ensures that a party election broadcast does not become a referendum campaign broadcast. I think there is common ground here and that the mischief which the noble and learned Lord identified—although I would not necessarily accept it—is an incidental part of an election broadcast in which one side or the other is endorsed.

Our view is that there is clear merit in maintaining some flexibility in this area while acknowledging the clear limits already imposed by Section 127. Such flexibility might enable, for example, the inclusion of a brief statement during a party election broadcast that referred to the referendum and to whether the party supported a particular outcome. Although the noble and learned Lord did not say it, I understand from him that he would find nothing wrong with the existence of the referendum being referred to or indeed with an encouragement to vote; it is the endorsement of a particular yes or no position that he seeks to address.

If such a reference was an expression of a party’s wider policy on matters—for example, on political reform—that were of relevance to the elections on 5 May, one might say that precluding mention of that position in a related election broadcast could have an adverse impact on campaigning for a particular party in those elections. To pick up on the point made by my noble friend Lord Phillips of Sudbury, I can confirm that six weeks would be within the relevant campaign period for the referendum. I understood the noble and learned Lord to agree with the proposition that if in that broadcast a party was to support, let us say, constitutional reform—I do not think that my noble friend even specified a particular outcome of the referendum—that would fall foul of the law if his amendment were passed.

I ask the House to consider that to legislate to forbid a party to articulate its legitimate policy position is an important step to take.

[Lord Wallace of Tankerness]

I have two points in response. Speaking as a member of the Administration, I am in no position to offer detailed assurances on the content of a party political broadcast when that party is only one part of the coalition. However, I shall indicate what the dynamic might be in how the broadcasting authorities treat this issue and, indeed, are doing so—it is not hypothetical.

We believe that it is ultimately a matter for the broadcasters to see that the rules in Section 127 on the content of party election broadcasts, together with relevant guidance issued under the Communications Act 2003, are adhered to. That is the Government’s position. I accept that the noble and learned Lord might disagree with it, but we have not yet heard any compelling reason to convince us that that stance is wrong. The proposed approach would in any case still require broadcasters to take a view on whether the proposed content in a broadcast complied with the new rule. Broadcasters would have to make some sort of judgment as to whether the content of a party election broadcast indicated a preference for a particular referendum outcome. Such a judgment might well be in the field of whether a general endorsement of constitutional reform fell within that or whether the content had to be much more specific, endorsing a yes/no position.

As I indicated on Report, the chair of the Broadcasters’ Liaison Group has already written to the political parties, drawn their attention to Section 127 of the PPERA and asked them to contact him if they intend to include any reference to the referendum in a party election broadcast in order to ascertain whether any reference crosses the line into Section 127 territory and could in the group’s view be unlawful. We believe that these lines of communication will clarify how the legislative framework will apply in the context of the combination of the referendum with other polls on 5 May. The framework for regulating party election broadcasts sits under the Communications Act 2003 and within the broadcasters’ guidance. We believe that that, combined with the Section 127 provisions in PPERA 2000, provides the necessary clarity.

That said, the Government acknowledge the important issue that has been raised by the noble and learned Lord in tabling this and other amendments at earlier stages. The PPERA framework for referendum regulation was introduced by the previous Government and, despite the confidence that I have expressed in the legislation, aspects of the framework might need a longer-term refresh. I reassure the noble and learned Lord that the Government will reflect further on these points in the light of the referendum and the experience of the poll on 5 May. In the mean time, I urge the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.

[Lord Lloyd of Berwick]

In the event that the amendment is successful, it seems an awful pity that we should use this language. It makes no sense as drafted, as I think the noble and learned Lord accepts. Is there a way, even at this late stage, in which we can adopt his alternative language, which is much clearer?

[Lord Falconer of Thoroton]

My Lords, the Clerk, brutally, is shaking his head. I would be willing to adopt the noble and learned Lord’s approach to this matter. However, if the House adopts the approach that I am taking, I anticipate that the Government will either reject the amendment in the other place, or, if having had time to think about it the amendment is accepted there, the House of Commons could then tidy it up. I respectfully and tentatively suggest that the House should vote on the principle of whether there should be a prohibition on political parties being able to support or oppose the AV referendum in their party political broadcasts. If my amendment is carried, it can be tidied up or rejected in the House of Commons later.

[Lord Campbell of Alloway]

My Lords—

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[The Deputy Speaker]

Unfortunately, there is a printing mistake in paragraph (a), which should at the end read,

“as defined in section 2”,

not just, “as defined in 2”.

[Lord Falconer of Thoroton]

My Lords, this is an important point. I completely agree with my noble friend Lord Rooker on the meaning of his amendment. I completely support him when he says that this is not a fatal threshold, by which I mean that if more than 40 per cent of those entitled to turn out vote, there is no issue because the turnout threshold is met. If the figure is below 40 per cent, the position is exactly the same as in the Scotland Act and the Government of Wales Act, in which case it becomes an advisory referendum and it is for Parliament then to decide whether to pass an Act of Parliament. I say with the greatest respect to the noble Lord, Lord Tyler, that his question was misleading as far as the public are concerned in relation to the threshold that has been put in and was also misleading in relation to what had happened in the House of Commons in this regard.

The second issue is a statutory construction issue. I do not think that it is necessary to put in a definition of “electorate” in order to make Clause 1(2), as amended on Report, make sense. Clause 1(2) states:

“If less than 40% of the electorate vote in the referendum, the result shall not be binding”.

The “electorate” in the referendum is defined in Clause 2, as amended on Report. In answer to the Electoral Commission’s question posed in its briefing, that will include people who are not on the roll at the beginning of the period but are put on to it during the campaign. Therefore, I do not think that any amendment is required in relation to that.

The Electoral Commission asked what would happen in relation to a spoilt ballot paper and whether the person who spoils their ballot paper, whether deliberately or by mistake, is counted as somebody who has voted in the referendum in order to satisfy Clause 1(2), as amended on Report. My view is that they should be counted as having voted in the referendum in those circumstances but I should be interested to hear what the Government have to say about that. I suspect that there is an answer to that which probably does not require amendment. On the basis that the first question raised by the Electoral Commission has an easy answer and the second one has an answer, I suspect that amendment is not required.

The third issue, which is separate from those two matters of statutory construction, is the approach of this House to amendments. Where an amendment is passed by this House which is going to go back to the Commons, whether the Government agree with it or not and irrespective of whether they intend to seek to persuade the Commons to overrule it, the approach, as I understand it, is that the Government, who have access to parliamentary counsel and a full team, do what is necessary to make the Bill whole in the sense of it being consistent with the amendment that this House has agreed to so that when the House of Commons is addressing the amendment, which may be opposed by the Government, it is addressing a Bill which is consistent in all its parts. This would normally be done by amendments from the mover, but quite often it is not. I would expect the Government not to allow an inconsistent Bill to go back to the Commons but to move such consequential amendments as are necessary to make sense of the Bill. In those circumstances, I take the fact that the Government are moving no amendments in respect of my noble friend Lord Rooker’s threshold amendment, if I may call it that, to mean that the Government, having consulted with parliamentary counsel and the Bill team, take the view that no issue that requires further amendment has been raised. That may well be right and is, in effect, the opinion I have expressed on the two difficulties posed by the Electoral Commission in its briefing to the House.

For the purposes of process, which is important, I should be grateful if the noble and learned Lord, Lord Wallace of Tankerness, could confirm that the broad approach I have defined is the one taken by the Government.

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[Lord Phillips of Sudbury]

My Lords, I hope that I can move this amendment even more briefly than I did in Committee and on Report. I, too, thank many Members of the House who have supported the principle of the amendment, not least the opposition Front Bench.

It is a straightforward, practical and modest amendment but it goes to what many noble Lords will think is one of the hearts of the Bill—the bit which seeks to ensure that as many of our countrymen as possible take part in the referendum. In paragraph 10 of Schedule 1—I pay tribute to the Government for including this from the outset—there is a series of provisions under the heading “Encouraging participation”. Among them is one which casts upon each of four officials—the chief counting officer, a regional counting officer, a counting officer and a registration officer—a formal duty to encourage participation in the referendum. As noble Lords will see from the way in which I have drafted the amendment, it simply maximises the effect of the provisions in the Bill by ensuring that someone seeks to co-ordinate the activity between those four sets of officials. Without someone having that responsibility—not to order them what to do but to facilitate co-operation—one might find black holes and serious and unnecessary overlapping and, of course, we have little time in which to generate interest and informed interest in this referendum. The amendment simply seeks to do that.

If anyone has questions about how I have moved the amendment or about the amendment itself, I will be happy to answer them. I hope that that is sufficient to spread understanding of the amendment and I invite your Lordships’ appreciation of it. I beg to move.

[Lord Falconer of Thoroton]

My Lords, we support the amendment and we supported it previously. The noble Lord invited our appreciation of the amendment. I expressly appreciate the amendment for its drafting and also its mover who has spent a lifetime supporting participation of this sort. He thoroughly deserves to get his amendment.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Tuesday 8th February 2011 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

27GA: Clause 12, line 11, leave out “12” and insert “6”

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I propose a number of amendments to those proposed by the noble and learned Lord, Lord Wallace of Tankerness, on behalf of the Government. At the heart of the noble and learned Lord’s proposals is the introduction of a process which, as he accepts, is not in any sense an inquiry but is intended to enable the public to make representations about any proposals regarding boundary changes with which the hearing is concerned.

As I understand the Government’s proposal, it will be open to individuals to make oral representations. A chair will be present to govern the proceedings—presumably to determine the order in which people speak; perhaps to determine whether what they say properly relates to the proposals; and also to determine how long they speak to ensure that everyone has an opportunity to do so. A record will be kept of what is said and that will be put into a public place for people to see. It is not envisaged that there will be any resolution or that the chair will play any part in determining any issues that arise on the wisdom or otherwise of the boundary proposals. However, it is envisaged that the oral hearing process should take place before the conclusion of the written representation period, which I think ends at week 12, with the oral hearing process taking place between weeks five and 10. Therefore, what the Government propose is not in any sense an inquiry and resolution of issues in the form of a report making recommendations to the Boundary Commission; it is simply an opportunity to make oral representations, which are recorded and then made public.

Previously, the Government proposed to ban the Boundary Commission from holding public inquiries altogether. They have not moved from that position but they have introduced the public hearing process that I have described. The noble and learned Lord, Lord Wallace of Tankerness, expresses his opposition to public inquiries primarily because he is concerned that an open-ended process of public inquiries could cause a fatal delay to the timetable for completing the next boundary review before the intended 2015 general election. He was also concerned that political parties would be too involved. For that reason, the Government have reduced the process to one of only a hearing.

It is important to hear what those who have experience of this situation have said. Robin Gray, former chairman of the Boundary Commission for England, said concerning the proposals in the Bill:

“Particularly with this first round … there is a real need for public inquiries particularly to enable those who are interested, political parties and others, to actually argue this through because these are going to be big changes”.

Ron Johnston, as the noble and learned Lord fairly said, is normally an opponent of public inquiries. In this area, he said that,

“you are drawing a totally new map with new constituencies and nearly everything will be different ... local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time”.

Noble Lords will form their own view of the extent to which they have received representations from members of the public about, for example, the Isle of Wight, Cornwall, Anglesey and a number of other issues relating to the proposed boundary changes.

Our initial proposals to reinstate public inquiries in their current form did not address the noble and learned Lord’s concerns about the prospect of delay or the fact that there needed to be streamlined public inquiries. We agree with him that there needs to be proper control, as efficient focus as possible and a real focus on real issues. We listened to what the Government said and moved to a new amendment, which allowed for public inquiries but with significant new limitations that would give the Boundary Commissions discretion over whether an inquiry was held. It also placed a cap on the length of time that inquiries could take. During the debate on our amendment, the noble and learned Lord, Lord Woolf, who, I am happy to see, is in his place, made an important intervention. He pointed out:

“If there is no provision for an inquiry”—

I interpose that there is no doubt that by “inquiry” he meant a proper inquiry, not the hearing process to which the noble and learned Lord, Lord Wallace, refers—

“I anticipate that there will inevitably be an increase in applications for judicial review”.—[Official Report, 26/1/11; col. 1067.]

The Minister, the noble and learned Lord, Lord Wallace of Tankerness, responded favourably to that first debate, which was on our amendments. He said:

“It is not a fundamental principle of the Bill that there should be no oral inquiries”.—[Official Report, 26/1/11; col. 1070.]

Although he did not mention it at that point, when he said “inquiries”, I think he meant the sort of hearings that he has been referring to.

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[Lord Lloyd of Berwick]

Apart from the question of timing and the chairmanship of an inquiry, or whatever we call it, what is the substantive difference between a public inquiry and what is proposed, a public hearing? Can the noble and learned Lord summarise the substantive differences for my sake?

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for that opportunity. As I am sure that the noble and learned Lord will confirm, a public hearing simply involves an opportunity for people to come to a room—a town hall or a village hall—to make or read a statement. It is recorded, and that is it. The next person then stands up and makes a statement, and then he or she sits down. It goes on like that. A record is kept of what is said, but there is no resolution of any issues. The statement of what is said is then, I assume, placed on the web so that everybody can see what was said

A public inquiry would involve Mr X saying, “I think that the boundaries should be here”, and Mr Y saying, “I think that the boundaries should be there”. Then the chair—having heard all the representations that people want to make, determining what the process is, having heard what everybody has said—says, “I recommend to the Boundary Commission that it should draw the boundaries there”. So it is a process where issues are identified and some resolution is given. That is the fundamental difference.

[Lord Thomas of Gresford]

That is the weakness in the position at present and as outlined by the noble and learned Lord: there are two recommendations. There is the recommendation from the chairman of the inquiry and then the Boundary Commission makes a recommendation to the Secretary of State as to where the boundary should be. What is the need for a double decision?

[Lord Falconer of Thoroton]

The effect of the Bill and all previous Bills is that the Boundary Commission's conclusions are in practice final. Yes, they have to be given to the Secretary of State, but the Bill—in my view, correctly—takes away any discretion from the Secretary of State to do anything other than lay them before Parliament, so, in practice, they are final.

The Boundary Commission does not come in any shape or form from the locality; it does not hear local representations; and it does not hear argument about where the boundaries should be. It is fundamentally different; it is carrying out an administrative process.

[Lord Thomas of Gresford]

Is the difference, therefore, that the Boundary Commission will be the body that considers all representations, whether oral or written? Will this not be more desirable than it simply acting administratively, as the noble and learned Lord says, upon the recommendation of somebody else?

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[Lord Falconer of Thoroton]

Absolutely not, because where, as a result of the representations made at written stage, an issue is identified that would be assisted by hearing people locally, not only do you get local engagement—which everybody thinks is important—you also focus on a particular issue with somebody hearing and resolving the arguments. Of all the people in the world who would think that that was a worthwhile process, I can think of nobody who would regard it as more so than the noble Lord, Lord Thomas of Gresford, who in all my years in the House has upheld every single aspect of such a process.

[Lord Thomas of Gresford]

It is important that the Boundary Commission, which has an overall view, should be the body that takes the decision and makes the final recommendation.

[Lord Falconer of Thoroton]

I apologise for not making this clear. It will, but with the benefit of the recommendation made by the chair after a local inquiry.

[Lord Phillips of Sudbury]

The noble Lord has been extraordinarily patient, but I am sure that he wants us all to understand—and I may not be the only person in the Chamber who does not from his explanation—whether cross-examination will be allowed.

[Lord Falconer of Thoroton]

It will be entirely a matter for the chair, probably operating in accordance with guidance given by the assistant or deputy chairs of the Boundary Commission. We will encourage a process that is streamlined and non-formal. If cross-examination would help let it be so, if it would not let it be a matter for the assistant chair hearing the inquiry on the day. I trust the right people to make the right decisions on how to get to a conclusion as shortly, as economically and as appropriately as possible.

In our amendment we propose that the chair of such a public inquiry must be a legally qualified assistant commissioner, appointed by the chair of the Boundary Commission, with the power to make recommendations. We say this must be a legally qualified person because they will have experience of ensuring short, sharp hearings, which I think is what everybody wants. Without that, the system of hearings put forward by the Government is little more than a public reading of statements. It will lead, I am sure, to a sense of frustration because there is no response of any detailed sort.

The issue of public inquiries is one of the most central concerns we have with the Bill. The Government’s initial response to the debates we had on this matter was pivotal in breaking the deadlock in Committee. We have understood that they would respond favourably to this and other amendments on public enquiries; it matters hugely. However, we have put the proposal forward in a spirit of compromise. We have sought at every stage to listen to what the Government have said.

[Lord Campbell of Alloway]

I have not taken much active interest in this debate but I have read all the official reports. I cannot understand why one has to go into this rather complex, devious regime and not leave this matter of tremendous importance—non-political importance—to the Boundary Commission. I may have missed it, but I have been listening and I do not understand.

[Lord Falconer of Thoroton]

I have considerable sympathy with that view. If the Bill had said, “Let there be public inquiries and let the chair or the deputy chair of the Boundary Commission determine the right course and whether or not there should be a public inquiry”, I anticipate and understand that the Government would have been concerned about the delay that that might cause to the timing of the boundary review. We are prepared to enter into a scheme, whose structure is in effect proposed by the Government, that does its level best to ensure that the process will be over by 30 October 2013, in accordance with the fresh proposals now being made, so that the Government’s timescale would be met. That is why the Government have taken this approach.

In an attempt to reach a conclusion, the Government’s amendment, as amended by ours, would do what your Lordships’ House does very well—namely, improve the Bill in a way which is both a sensible solution and a product of compromise and good sense. I beg to move.

[Lord Woolf]

My Lords, the Government have moved a long way but, in my view, they have not moved far enough. Indeed, some of what they propose is not constructive in the way they intend. The Government’s proposals, if coupled with those put forward by the noble and learned Lord, Lord Falconer, would produce a much better result. This is very important for the public because the scale of the changes involved means that the public should have a proper hearing.

I am not surprised that the noble and learned Lord, Lord Lloyd of Berwick, asked what is the difference between a public hearing and a public inquiry. Normally a proper hearing involves the kind of matters to which the noble and learned Lord, Lord Falconer, referred. It is no use having a hearing if it does not serve its purpose. The great defect in the Government’s proposals is that they arrange a hearing following which the person who has to make the decision will not have an opportunity of having any more than a record of what has occurred in the hearing.

In times out of number within our legal system—whether it be in the form of a planning or any other inquiry—a hearing has resulted in an opportunity to be heard, which is then reported upon by a neutral and independent person, normally someone with skill and experience in the area in question. Here it is quite clear that, in the end, the Boundary Commission will have to make the decision and, on both proposals, its decision will be coloured by what has happened at the public hearing. However, on the Government’s case, the Boundary Commission will have only a written record. What is the purpose of having an oral hearing if there is going to be no more than that?

What should happen—I submit that this is what is intended to happen in the amendment of the noble and learned Lord, Lord Falconer—is that there should be included in the matters that go before the Boundary Commission the views of the person who is chairing the hearing. That does not mean, as was thought by the noble Lord, Lord Thomas—I say this with great respect—that there would be two decisions; there will be only one decision. The chairman will take great care to do no more than assist the Boundary Commission to reach its decision.

Those who have had the task of looking at many inspectors’ reports will know how a decision that is to be made by the Secretary of State is assisted by an inspector’s report. I anticipate that the chairman will say, “So and so was contended on behalf of X, but Y said so and so, which the Boundary Commission may think is the stronger argument”. The chairman might say, “The Boundary Commission may submit that this point or that point was not properly considered by X in giving his evidence”.

A multitude of situations could arise whereby that process could properly be dealt with by a report by the person who actually conducted the hearing. If that was allowed, you would avoid the frustration felt on the part of those appearing before the chairman that their words are apparently disappearing into the ether with no conclusion being given on them. I strongly urge the Government to think again objectively about what is proposed to avoid that situation, especially if they are concerned about delay.

The Boundary Commission can be given the task of reaching its final decision within a specific time. If, as the noble Lord, Lord Campbell of Alloway, suggested, it is given the power to control the chairman, it can ensure that there will be no undue delay, which would have the undesirable results on which the Government speculate. An important point is that there are provisions in the Government’s proposal for questions to be asked of those making oral statements to the hearing—I refer to paragraph 8 of new Schedule 2A, proposed in Amendment 39, where that is made clear. That comes very close to the procedure which would normally take place before someone such as the chairman at a public hearing, as that is normally known. Therefore, you have questioning only under the control of the chairman. Answers are given and you have—and should have—the views of the chairman on what has occurred. If that is not done, a very strange animal indeed will be produced.

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[Lord Wallace of Tankerness]

I am not aware that there was a judicial review. The noble Lord said that everyone accepted it. He should consult my noble friend Lord Steel of Aikwood about how effective he thinks the present public inquiry system is.

The role of the chair has been much debated. It was said that the chair should be legally qualified in order to provide clarity and consistency of practice, and to make the process resistant to judicial review. It was claimed also that there must be report back. We have just heard about the pros and cons of that. The Government do not agree. The hearings that we propose are about giving the public and the political parties a chance to have their say as part of the consultation process. The legislation provides that a commission shall take into account the representations made at hearings, as it does the written submissions.

Another of my concerns about the opposition proposals is that the value of the written submissions appears to be somewhat relegated. We propose that there should be a counter-representation period. As I understand the Opposition's proposals, any written counter-representations would have to be channelled into the public inquiry: there would not be a time period for them.

It is important to remember that the commissions are independent. They exist to weigh the arguments. It will be for them to decide how best to do that. There is no need to interpose an independent lawyer between the commissions and the arguments in order to allow the public to have their say. The commissions will be chaired by a High Court judge or equivalent and will be very sensitive to those issues. It will be open to them to appoint the chair that they think best for the job. I will not detain the House at the moment by speaking to Amendment 18E in this group, save to say that we have tabled it to broaden the purposes for which assistant commissioners may be engaged.

The Opposition claim that the process is flawed because the hearings will take place at a point in the process before all the written representations are known. This point was picked up by my noble friend Lord Phillips. Again, that is a concern if one has the mindset of a public inquiry. We say that parties will be able to feed in their views of the commission's initial recommendations, and others will be able to hear them. We have provided for counter-representation that will allow scrutiny of the arguments of others. Although we do not envisage a public inquiry with a quasi-judicial cross-examination, I say to the noble Lord, Lord Martin of Springburn, that our amendment provides for the chair to put questions or allow questions to be put to a person present at the hearing and, if the question is allowed to be put, to regulate the manner of the questioning or restrict the number of questions that a person may ask. Therefore, there will be an opportunity for the kind of engagement that the noble Lord clearly feels is of value.

The noble and learned Lord stated that the Opposition are arguing that if we adjust the number of weeks for written consultation there is time for oral inquiries to be held. Putting a deadline in the Bill does not guarantee that it will be achieved. The Boundary Commission for England was set a deadline in primary legislation in 1992. However, it reported months later because it felt the need to focus on the process under the previous legislation. I do not criticise it for that: it believed that the process was important. However, I ask the House to consider that the Boundary Commissions may think that the process is important, and that whatever deadline we set may not be met. If that happens, there is a danger that one of the key principles of the Bill will be seriously undermined.

The noble and learned Lord indicated that two days was not enough for an inquiry. Past inquiries have taken 12 days, or 10 under the previous review. Under the Government's proposal, there would be a maximum of 90 days of public hearings in England: five in each region, lasting two days each. That would be the upper limit. The Opposition would remove the limit on the number of days, and the period for counter-representations, meaning that the only place for scrutinising the arguments of others would be in that oral public inquiry. Therefore, we could expect more 10 and 12-day inquiries. We believe that this proposal is simply impractical. I recognise that in toto the number of weeks is similar to ours but I fear that I am sceptical about whether it could be achieved in practice, even if it were desirable to restore the old-style, legalistic form of inquiry. I remind the House that it is not. I quote from academic literature:

“In effect, the public consultation process is very largely an exercise in allowing the political parties to seek influence over the Commission’s recommendations—in which their sole goal is to promote their own electoral interests”.

The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that all the key components were in fact ticked off with the Government’s amendment.

In conclusion, the House is faced with a choice between a new mechanism for ensuring that the public can genuinely engage in the boundary review process through hearings or the recreation of the old inquiry process that we know can be alien to the public and would return us to the days of six-year boundary reviews. Even if it does not do that, it would certainly lead to a length of time which could undermine getting the boundary review through and the next election being fought on modern, up-to-date boundaries. I believe that the Government have moved a long way on this point and they have done so after careful consideration. I urge noble Lords carefully to consider the proposals that we are putting before the House today and to support them.

[Lord Falconer of Thoroton]

My Lords, there is a very real and important issue here. On close analysis, the noble and learned Lord’s proposals are flawed, and fatally so. First, on the point about delay, I do not think that the noble and learned Lord was listening to what the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, were saying. In his closing remarks, he agreed that the period of time specified for his scheme and for the Opposition’s scheme is broadly the same. With ours it is 26 weeks and with his it is 24 weeks. Therefore, a scheme is being proposed to enable the process to finish by October 2013. I want to spare the blushes of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, but they are probably the two leading experts on judicial review in this country and they are saying that there will be more judicial reviews. The noble and learned Lord, Lord Wallace of Tankerness, whom I greatly respect, is shaking his head but, with respect, I am listening to them, not to him, and they are saying that there will be more judicial reviews. They say that they do not know what form they will take but there will be more of them. Therefore, the noble and learned Lord, Lord Wallace, is making his scheme more vulnerable to delay through the process that he is proposing. I say that not on the basis of my opinion but on the basis of the opinion of the noble Lord and the noble and learned Lord. Therefore, with respect, his point about a delay is wrong.

Secondly, he says that this process will engage people, in that his scheme will allow people to come and say something—a process that the noble Lord, Lord Faulks, described as a day in court. The noble Lord, Lord Faulks, spent many days in court, but I have never known a day in court where you say something but then nothing happens. As the noble Lord, Lord Pannick, said—in my submission, entirely correctly—that will be bound to increase resentment, not reduce it. As my noble friend Lord Rooker said, someone will not be saying, “Well, I have heard your arguments and you’re wrong on this and right on that”. It is, with respect, a point that the noble Lord, Lord Faulks, put his finger on and it is incredibly important.

The third point that the noble and learned Lord made is that academics are all against us. They are not. They are saying, as we are saying, that we must streamline the process. We must not allow it to become abused, but we must have some process like this. The person who knows best about this is the boundary commissioner, Robin Gray, who said that if you do not have a process where the public can put their point of view and have a response to their point of view rather than complete silence, you are going to have real disquiet about an area where there is no disquiet at the moment. With the greatest of respect, I must say that the Government have moved some way, but they have moved nowhere near enough, and they have put us in a position where we have no alternative but to seek the opinion of the House. I beg to move.

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[Lord Renton of Mount Harry]

I confess that I was not proposing to speak to this amendment, but I have just listened to the noble Lord, Lord Wills, who I believe was Minister for Constitutional Affairs in another place, and I have to say to him that, frankly, I have rarely read a paragraph that horrified me as much as the one on his committee of inquiry. It seems to me that he is going down absolutely the wrong route by proposing a committee of inquiry composed of,

“a High Court judge … members of both Houses of Parliament … representatives of the principal political parties in the House of Commons as well as individuals with no party attachment, and others”.

That is a joke. The inquiry would go on for ever and would not reach sensible conclusions. We in this House and the other House are expert in what is required here.

[Lord Falconer of Thoroton]

As the noble Lord, Lord Renton, will know, my noble friend Lord Wills’ provision states that they have to produce a report within three years. So it will not go on for ever.

[Lord Wills]

I am very grateful to my noble friend Lord Falconer for pointing that out. Perhaps I may also say to the noble Lord, Lord Renton, that this committee is based on what used to be known as a royal commission. I was told by the powers in this House that I could not refer to it as a royal commission, but the royal commission, as he ought to know, has a very long and distinguished provenance. If he has read my remarks in the earlier debate on this amendment he will have seen that the period of time provided by the amendment is pretty much the average time given to the last 12 royal commissions that have reported.

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[Lord Soley]

I invite the noble Lord to read the debates held during the Committee stage, where he will find that those issues were dealt with. I do not want to repeat it all again. I would also say to him that he should read his own party’s literature on this matter since 2004. The arguments are very clearly put in favour of the Conservatives reducing the number of seats not just for fairness but because a reduction would increase their majority. That is a fact, and my concern about it is that any future Government could do the same.

If the Conservative Party is then in opposition, as well as the Liberal party—although why that party is pursuing this is beyond me, because if it was on this side of the House it would fight it fiercely, and its friends in the press would support it—that party would be saying that it was the Labour Party gerrymandering. This is a gerrymandering issue. What my noble friend has done is come up with a structure so that we can take our time and deliberate on very important issues related to the size of the House of Commons. We could do it over time and we would not need to delay the Government getting their Bill. This is a very important amendment that goes to the heart of the problem that the Government have on this. In my view, the position is deeply undesirable and I would love this amendment to be taken in the spirit in which it is intended. It recognises that there is a case to review the size of the House of Commons, but not doing that to the advantage of one or other political party. If my own party tried to do this, I would feel just as strongly about it.

[Lord Falconer of Thoroton]

My Lords, my noble friend Lord Wills’ amendment is back with us by popular demand, having achieved a very supportive hearing and interesting debate in Committee. I would imagine that that is why we are being treated to a guest appearance by the noble Lord, Lord Garel-Jones. We are disappointed that he has not played more of a part in our debates. Had he been here, as my noble friend Lord Soley said, he would have discovered—because these points have been made on many occasions—that the reasons why the Conservatives do not do so well are threefold. First, it is because their vote is spread all over the country; secondly, there are lower turnouts in Labour seats than Tory seats; and thirdly, that yes, there is some inequality, but that is the third and most minor of the reasons. I am glad to see the noble Lord, Lord Garel-Jones, nodding sagely, and I am only disappointed that he has come today, because the result might have been different in the previous vote.

The amendment moved by my noble friend Lord Wills is an attempt to force the Government to face up to the reality that the issues being dealt with in this Bill need proper thought. The Parliamentary Voting System and Constituencies Bill provides for significant changes to the British constitution, significant changes that everyone agrees ought to be properly considered in due time and by those with the expertise and the means to disseminate the many views and opinions on these major constitutional issues. These are matters which everyone agrees need proper consideration and resolution, but they undoubtedly will not get that from this Government.

It is therefore right that Members of your Lordships’ House—like my noble friend Lord Wills, who takes these matters seriously and has a proud record in what he has achieved as a Minister, particularly when he was responsible for constitutional matters, and who not only believes in good process and informed proposals but put those into practice when he was a Minister—should put forward amendments like the one before us now. I ask noble Lords to look at what, if I may say, is the rather idle government amendment tabled in the name of the noble Lord, Lord McNally, which can be found on page 14 of the Marshalled List. A minimum effort has been made in order to have an inquiry and it is almost contemptible in the way it has been done. No effort of any sort has been made, despite accepting the proposition which the noble Lord, Lord Renton of Mount Harry, finds so difficult.

The effect of my noble friend’s amendment would be to provide time for the key questions raised by the contents of Part 2 of the Bill to be answered. It would give the time for the sort of consideration that the constitutional matters at hand deserve, and time that we on this side of your Lordships’ House have been trying to provide. We have given this Bill proper scrutiny, and on this side we have forced the House to provide time to allow that to happen. There are so many things that the Government have not done properly in the Bill: no public consultation, no pre-legislative scrutiny, and no respect for the usual gaps between stages in Parliament. The consequence is that parts of the Bill were not considered at all in the House of Commons. The consequence is a shambles where correspondence from Ministers arrives after we have had a debate. That feels like a corrosive process as far as constitutional change is concerned.

But there is more—and my noble friend Lord Wills made this point very effectively. Noble Lords will know that allegations have been made, not by the Labour Party, although it does make them, but by Members of Parliament who are Conservative, for example, and “Newsnight”. People like that would be regarded as not parti pris. The effect is that these constitutional changes, effectively unheralded by a manifesto and effectively unmandated, would go through with an air of suspicion. The consequence is that, for the first time since the Second World War, the method by which we determine how many Members of Parliament there should be is in the hands of the majority of the House of Commons and in the hands of the House of Lords, which has received 114 new Members since May 2010. Every single one of those Members is delightful and personable, men and women of real merit, whatever party they come from or whether they come from no party at all, but I have the deepest and most profound suspicion that if we counted the numbers we would find that they have increased the coalition’s majority. Looking across the House, I see many delightful new Peers, many of whom have made a major contribution to British public life, but many of them are voting in accordance with a Whip that they receive from the Government. The consequence is that the Government now have the ability to ram through their choice on the size of the House of Commons in such a way that there is real suspicion that it has been done in the interests not of the country but of a party. The consequence is that that aspect of the coalition gets into political play.

The effect of my noble friend’s proposals is that there can be an independent review. We like the noble Lord, Lord Strathclyde, very much indeed, but we wonder whether his justification for there being 600 in the House of Commons—that it is a nice, round number—carries the weight that perhaps it needs when you are trying to persuade people that the reason you have reduced the number in the House of Commons is not for political but for good constitutional reasons.

We support this amendment. We think that a lot of trouble has gone into it and that it has real merit. With respect to the noble Lord, Lord Renton of Mount Harry, I think that it is entirely unfair when he said that the process would go on. I am glad that it was pointed out to him that my noble friend Lord Wills has thought about all the issues that he mentioned.

I very much hope that there will now be a change of heart and that the noble Lord, Lord Strathclyde, one of the most powerful members of the Government, will indicate that we are now going to have a committee of inquiry.

[Lord Strathclyde]

My Lords, that was a kind and generous invitation from the noble and learned Lord, Lord Falconer of Thoroton, but one that I shall have to resist—and therefore I shall disappoint him. However, I shall try to explain why and give some coherence to this debate, which has been an interesting one, because this issue goes to the core of the disagreement that has taken place over this Bill. The noble Lord, Lord Wills, must wake up every morning kicking himself that he did not set up this inquiry when he was a Minister a year or two ago, because now we would be anticipating its results. Maybe he did try to set it up and maybe he could tell us a bit about that when he comes to wind up.

The main accusation being made by noble Lords opposite is not so much that we are rigging the system as that the proposals raise a suspicion that we are rigging the system. Yet nobody can bring any evidence to bear that that would be the likely effects of what we are trying to do—either reducing the number of seats or reaching an equalisation in the number of voters in each seat.

The amendment would require a committee of inquiry to conduct a wide-ranging review not only of the structure of our electoral institutions and processes but of how they interrelate. The Government have accepted the argument made by noble Lords that consideration of the impact of a House of 600 seats is important. I know that the noble and learned Lord rather pooh-poohed it, but when we get to that matter, I shall explain why I believe that it is the right way in which to look at it. Why have we done it as we have? It is because we should not allow this issue to prevent a boundary review taking place, leading to boundaries that are as much as 20 years out of date if a review does not report before the next general election.

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Moved by

[Lord Falconer of Thoroton]

16J: Clause 10, page 8, leave out lines 28 and 29 and insert “, initially by a date to be specified by the Boundary Commission, once the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible””

[Lord Falconer of Thoroton]

My Lords, this amendment would change the Bill so that the date of the next boundary review would be set by the Boundary Commission, rather than the Government,

“once the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible”.

The amendment stems from a deep concern that has been expressed not just by Members on these Benches but by many noble Peers, and which is shared by the Government, about the incomplete nature of the current voter register. It makes it a flawed basis on which to redraw the electoral map in the way that the Bill proposes. The Bill states in rule 10(5) in Clause 11 that the basis of the next boundary review will be the electoral register as it stands two years and 10 months before the submission date of 2013. In plain English that means that the Boundary Commissions must use the 2010 electoral register in carrying out their redrawing.

We now know, and the Government have acknowledged during these debates, that this register is likely to be missing upwards of 3.5 million eligible voters. We also know, and the Government have also acknowledged, that the problem of under-registration is most acute among particular social groups in particular areas. As the Electoral Commission has reported,

“underregistration is concentrated among specific social groups, with registration rates being especially low among young people, private renters and those who have recently moved home … The highest concentrations of under-registration are most likely to be found in metropolitan areas, smaller towns and cities with large student populations, and coastal areas with significant population turnover and high levels of social deprivation”.

The Electoral Commission’s study was underpinned by Ipsos MORI research, which found that only 69 per cent of black and minority ethnic voters are registered, and only 44 per cent of 20 to 24 year-olds are registered, as opposed to 97 per cent of 60 to 64 year-olds. Therefore, the December 2010 register is clearly a flawed basis for the boundary review, but the Bill insists that this is the register that must be used.

The noble and learned Lord, Lord Wallace of Tankerness, explained in Committee that it was,

“the wish of the Government that constituency sizes should be of an equal size”.—[Official Report, 10/1/11; col. 1278.]

That is a reasonable objective. We support the principle of more equal seats, but you cannot have equal seats on the basis of an unequal register. That goes against basic democratic principles. That is why our amendment stipulates that before the next boundary review—which will be very significant and widely disruptive—the electoral register should be brought to as complete a state as is reasonably possible. We suggest that this can be done by requiring the Electoral Commission to check that local authorities have taken all reasonable steps to ensure that this has happened. This does not seem an unreasonable or impossible demand. As the noble and learned Lord, Lord Wallace of Tankerness, pointed out in Committee:

“electoral registration officers are under a statutory duty to compile and maintain comprehensive and accurate electoral registers. It is not as if it is a voluntary activity; there is an obligation on local authorities to compile as best they can comprehensive and accurate electoral registers”.—[Official Report, 10/1/11; col. 1280.]

If that is the legal obligation, what is wrong with holding those registration officers to account?

At the moment, there are self-reported performance standards, but they are not doing the trick. We know that because of the markedly different registration rates across different parts of the UK, which the Electoral Commission has itself uncovered. It seems perfectly possible and reasonable to ask the Electoral Commission to take a more proactive approach to the registration of electors. The central aim of the commission is to ensure,

“integrity and public confidence in the democratic process”.

That should be our aim, too. We will fail to achieve it if we do not place some safeguard in the Bill that takes into account the problem of under-registration among particular social groups in particular places. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the House that if either Amendment 16J or Amendment 16K is agreed to, I cannot call Amendments 16L to 17 inclusive by reason of pre-emption.

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[Lord Strathclyde]

My Lords, when there is a census every 10 years, there is a great debate about how quickly the information taken by that census can be applied to policy. Every 10 years, the answer is that it will come about as quickly as possible, and Ministers are encouraged to make it even quicker than that. However, it is not always possible to make the process quicker. Those who run the census do it on the basis of trying to provide the information quickly. I am very happy try to find out from them exactly why it takes so long. I will write to the noble Lord and put a copy of that letter in the Library.

Amendment 26 proposes to amend the definition of electorate to include all those eligible to vote in the UK, even if they have not registered to do so. This would have a consequent effect on the calculation of the electoral quota of the United Kingdom, and thus the size of constituencies drawn up by the Boundary Commissions in their reviews. This is very similar to Amendment 25A. I do not need to explain its drawbacks further.

Throughout the debates on this subject, in Committee and on Report, we made it clear that we agree that it is vital that the register is as complete and as accurate as possible. That must serve our interests as well as those of Parliament and ultimately those of the people we serve. However, progress on this must sit alongside the Boundary Commission's work on updating constituency boundaries. Solving the problem of under-registration will be a long-term process in which we should all be involved. Delaying the boundary review process until it is complete would mean that the 2015 election would be likely to be fought in constituencies based on electoral data from 2000. If noble Lords are genuinely concerned that representation should reflect entitlement—and I believe that they are—they should strongly support the Government's proposals. By leaving existing boundaries in place for the 2015 election and the next Parliament, the amendments would achieve precisely the opposite. On that basis, I hope that the noble and learned Lord will withdraw his amendment.

[Lord Falconer of Thoroton]

I thank the noble Lord for his response. It was extremely disappointing and reflected an approach that has been taken by the Government throughout the process. They have accepted the problem but offered few proposals in relation to it. Two things need to be done. Active steps must be taken and a proposal must be made about how the date problem should be dealt with. Neither is impossible. In these circumstances, I wish to test the opinion of the House.

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Moved by

[Lord Falconer of Thoroton]

18F: Clause 11, page 9, leave out lines 36 and 37 and insert—
“United Kingdom electoral quota
1 The United Kingdom electoral quota shall be defined as the total electorate of the United Kingdom on the designated enumeration day divided by 650.”

[Lord Falconer of Thoroton]

My Lords, Amendment 18F would replace the current provision of the Bill to fix the House of Commons at 600 seats with an alternative rule that would anchor the size of the Commons at its current membership of 650. We have touched down on this a few times this afternoon.

We contend that the Government have failed properly to explain why the figure of 600 seats has been identified as the optimum membership in the other place. They began by claiming that the House of Commons is a “bloated” Chamber and that the UK suffers from overrepresentation, but those arguments were quickly disproved. The claim that Britain is overrepresented in comparison with other similar-sized countries is based on a simple international comparison of numbers of elected representatives per head of population. In fact, the extent to which the UK has more representatives in the national legislature per head of the national population can be exaggerated.

As a briefing note from the House of Commons Library makes clear, the UK has roughly the same ratio as France and Italy. Of course, those calculations take account only of national legislatures and do not include reference to levels of representation beneath that tier. If we look below the national level, we see that the UK has far fewer elected officeholders per head of population than almost all comparable countries. One academic study found that, at the level of local government, the population per elected member is 2,603 in the UK, 350 in Germany and 118 in France. When subnational elected representatives are factored in, it is apparent that the UK does not suffer from overrepresentation.

In any event, there is a fundamental problem in seeking to draw simple comparisons between numbers of elected representatives in different national legislatures. Some countries are unitary states; others are federal. Some have a Westminster model; some have a presidential system. As a consequence, comparison is difficult.

A more sensible basis on which to decide what level of representation is right for the UK is to examine how the size of the House of Commons has changed over time. If the number of MPs was inexorably growing out of all proportion to the size of the electorate, there would clearly be a problem. The evidence shows that that is not the case. The Commons has not grown disproportionately in recent years. It has increased by about 3 to 4 per cent—that is, 25 Members—since 1950. However, the electorate and therefore the average size of constituencies have increased by approximately 25 per cent. That has produced a significant increase in the workload of MPs, which has in any event grown out of all proportion to the increase in population as a consequence of changing social norms, political developments and new forms of communication.

There is no evidence that having fewer MPs will reduce the demand for their services. Assuming that that remains the same, the pressure on the remaining Members and their staff will increase. If the service that MPs provide to their constituencies is not to deteriorate, they will no doubt need greater resources—employing people as caseworkers and those assisting them. The savings made by a reduction of 50 Members of Parliament are then likely to be lost, or reduced, undermining the argument that this is worthy as a cost-cutting measure.

As the initial justifications for the proposed reduction in the other place have broadly collapsed, the government Front Bench has adopted other numbers: a nice round number, now famous in this House. No wonder your Lordships’ Constitution Committee said in its report on the Bill:

“We conclude that the Government have not calculated the proposed reduction in the size of the House of Commons on the basis of any considered assessment of the role and functions of MPs”.

That is now confirmed by the Marshalled List of amendments, which includes, on page 14, Amendment 28A, which provides for a review into the proposed reduction in the number of constituencies. Your Lordships may note that the review is not due to begin until after the election, when the reduction will have happened.

The reduction in the number of MPs is a gamble based on no proper evidence, but it will be pursued anyway. The timeline was explained to us in discussion with the Government on the basis that it would be pointless to try to assess the impact of the proposed reduction on MPs before it had happened. If the reduction turns out to have a very negative impact, it will be too late to prevent it.

In most organisations, you consider the decision first on the evidence and then you take the decision. This Government take the decision, set up a body to look at it and then decide whether it was the right decision. Their approach to whether it affects our national Parliament to the total detriment of the people is, “Who cares?”. Surely the more sensible approach would be to assess the workload and responsibilities of MPs now, with a House of Commons of 650 seats, before making a change of the sort now proposed.

We believe that the case for a 650-seat Commons has not changed since the current Prime Minister, Mr David Cameron, spoke in its favour—indeed, in favour of a slightly larger elected Chamber—at the 2003 Oxfordshire boundary inquiry. Opposing proposals to alter his constituency boundaries at one of the last public inquiries to be allowed into constituency boundaries, he told that inquiry—what a valuable inquiry it was:

“Somebody might take the view that at 659 there are already too many Members of Parliament at Westminster. They may take the view, depending on what happens in the European constitution, that Westminster has less to do, with less MPs—I certainly hope that is not the case”.

Our amendment stems from a conviction that the current Commons of 650 is the most appropriate basis on which to stabilise the size of that Chamber.

Put simply, under our proposals for alternative rules, an initial UK quota would be calculated by dividing the total UK electorate by 650. That would stabilise the House at about 650, but, with a mathematical rounding up or down involved in the calculation of seats in the four parts of the United Kingdom, it would enable minor fluctuations of up to one or two seats either side of 650, which would help the Boundary Commission to deal with remainders. That will give the Boundary Commission flexibility. That seems to be plain common sense. Unfortunately, the Government have struggled to respond positively to those common-sense views.

This is an incredibly important part of the Bill. We are being asked to cut 50 seats from the primary national political body in the United Kingdom. We are being asked to fix its size in statute in perpetuity at 600 and we are not being given any proper explanation as to why that is the most appropriate size for the House of Commons. Does anyone here honestly think that that is the right way to enact such fundamental constitutional change? I beg to move.

[Lord Howarth of Newport]

My Lords, my noble and learned friend, as the House has come to expect of him, has laid out all the relevant issues with magisterial authority. However, I suggest that there is one issue that he may have overlooked, which is that the population of this country is projected to grow very rapidly in the next few decades. If we fix the number of constituencies at 600, or even at 650, we will shortly find that the average number of constituents is unmanageably large. My noble friend Lady McDonagh made an interesting and thoughtful speech on the subject in Committee. We will quickly find ourselves with constituencies of 100,000 voters, trending upwards. Something has to give. You cannot have a fixed quota and a fixed number of constituencies. If the fixed number of constituencies is to be the paramount consideration, the quota will have to jump up at frequent intervals. That is unsatisfactory.

That leads me to my second point, on which I slightly take issue with my noble and learned friend. I question whether it is appropriate for the Government to invite Parliament to determine the precise number of Members that there should be in the House of Commons. That has not been our practice in the past. The Boundary Commissions have had the discretion to recommend the number of constituencies that they judge to be appropriate, which I think is more practical and more proper. If we were to look at the case of a country in Africa—it might be Zimbabwe, Kenya or Rwanda, one of those countries whose political conduct we are quite apt to criticise and where the regime wins less than universal admiration from all of us around the House—

[Lord Falconer of Thoroton]

I think that the noble Lord slightly mischaracterises my argument. The effect of my proposal is that it will be for the Boundary Commission to determine the precise number of MPs, which might not be 650. That is the same as the current position.

[Lord Howarth of Newport]

I am hugely relieved as a result of my noble and learned friend’s intervention. However, I do not think that we should lean particularly on the Boundary Commission; it is not for Governments or politicians to suggest a desirable norm for the precise number of constituencies. Just as we would deplore the regimes of other countries whose practices we considered to be seriously illiberal determining the number of constituencies, so we should not do so here. I acquit my noble and learned friend of any such exact intention, but it is important that no one should suffer from the same misapprehension of his purposes as I did.

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That is a very sound basis on which to make our proposals. With this review and the Bill’s other aims in mind, I invite the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

The noble Lord’s speech was again attractively delivered and charmingly put, but it got worse and worse as a justification for 600 being the number of seats. I listened very carefully to him: he said that there were three reasons for introducing the reduction. The first was that arguments against it imply that we are departing from well known rules; the second that the current arrangements produce a “steady upward pressure”; and the third that we have a good starting point in the commission which will meet and give its report three years after the introduction of the figure 600. What he said was risible. He said that we would have as our starting point a commission that has not yet been formed and that, in order to get rid of the “steady upward pressure” in the House of Commons, the Government were reducing its size to 600 seats. Noble Lords will know that the House of Commons has never been less than 615 in the past 160 years. When it was 615, the electorate was 20,874,000. In 2004, when the number of seats was 646, the electorate was 44,245,000. The inexorable upwards pressure has in the past 25 years led to the membership of the House of Commons increasing from 650 to—blow me down—650. The arguments being advanced are risible. We are being asked to reduce our House of Commons by 7.5 per cent.

I understand the noble Lord’s dilemma. He can be the stand-up comic who says that 600 is a nice round number and he likes it—he is a nice round man, and a nice round number matches that—or he can be incomprehensible, as he was today. What he cannot give—it is not his fault—is any justification for this reduction from 650 to 600. I invite the opinion of the House.