Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Falconer of Thoroton and Lord Cormack

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the amendment tabled by the noble Lord, Lord Anderson. It grieves me to do so because I am disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, but this is emergency legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption against retrospectivity works; it is essentially a bad thing for a legislature to change the sentence of everybody in a particular group. Everybody accepts that proposition, except, possibly, one noble Lord who said that it would be good if everybody’s sentence went up—but let us put that to one side. It is bad for a legislature to change a whole cohort sentence because you should be sentenced by the courts, not by a legislature that subsequently takes a different view, primarily because of public pressure. It may be legitimate public pressure, but it is public pressure nevertheless.

There may be circumstances that make it necessary to break with that principle. If you have to break with it, break with it to the minimum degree required to provide public protection. I do not agree with the “in for a penny, in for a pound” approach of the noble Viscount, Lord Hailsham: that if there is some justification for retrospectivity, any retrospectivity is justified. That cannot be the right approach.

The problem here is that prisoners may well be very dangerous—the Streatham terrorist was plainly and evidently dangerous, because he had said that he wanted to commit very dangerous crimes—and yet they have to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of the Bill,

“the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

So, unless the Parole Board is satisfied that the person is no longer a danger, they must be kept in prison.

On the right way to approach this, instead of saying that everybody must stay in prison for longer, even if they are evidently no longer a danger, the right course is for everybody to be looked at. As the noble and learned Lord, Lord Mackay of Clashfern, says, it might be that we cannot reach everybody by the time they are half way through their sentence. That is dealt with by the perfectly adequate drafting in this Bill, which says that you can be released by the Secretary of State only after you have been examined by the Parole Board and it has directed that you can be released. Therefore, the factor that determines when you get released is not that you have to wait until you are two-thirds of the way through your sentence before it is considered, but that you are considered at half-time and, if there is a delay while the Parole Board gets its act together, you the prisoner must wait, and the problem is solved. Of course there are difficulties in making an assessment, but there is that difficulty whether it is two-thirds of the way through a sentence or halfway through. It is fundamentally wrong that we just up it to two-thirds for no good reason in the context of emergency legislation.

I shall make one more point and then give way to the noble Lord, Lord Cormack. I do not accept the proposition being advanced that this provision, which increases detention from a half to two-thirds, would not offend against Article 7; nor do I accept that it would not offend against the presumption against retrospectivity. All the Article 7 cases are about changing the terms. So, in the Uttley case, somebody comes out with some terms on release, whereas previously there would have been no terms on release. In another case where it is held not to be retrospective under Article 7, a person is moved from one country to another and different provisions apply; but that was the provision right from the start. In the Aberdeen case, which the noble Lord, Lord Pannick, relied on—sadly, he is not here—somebody was released and then recalled. The rules changed regarding what happens when you are recalled. These examples do not go to the fundamental point of keeping you in prison for longer.

In the one case in which that matter was considered by the European Court of Human Rights, the Inés Del Río Prada case, the fundamental reason why it was held to be retrospective was that a sentence was changed because time off for work in prison suddenly began to count in a different way and, instead of getting out in 2008, the unfortunate prisoner was not going to get out until 2017. That was held to be in breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the precise terms changed but not the length of time in prison.

However, that is not the prime way in which I put my case, which is that if we are in emergency legislation going to impose this provision, we should not be upping the sentence if we can meet the emergency with the introduction of the Parole Board. We can do so and should do no more than that now. I give way to the noble Lord, Lord Cormack.

[Lord Cormack (Con)]

I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.

European Union (Withdrawal) Bill

Debate between Lord Falconer of Thoroton and Lord Cormack

Wednesday 14th March 2018 Lords Chamber

[Lord Cormack (Con)]

I am grateful to the noble Lord. My only point is that no Government can at any time bind a future Parliament.

[Lord Falconer of Thoroton (Lab)]

My Lords, a final answer to the question by the noble Lord, Lord Forsyth, would be that we do not just leave automatically. There is a whole range of choices that have to be made and those choices involve the Government negotiating an agreement and then, I would respectfully submit, Parliament deciding whether it approves of the deal that has been done. As the noble Baroness, Lady Altmann, rightly said, this is not about trying to frustrate the outcome of the referendum, but trying to get to a sensible answer, which Parliament takes responsibility for.

We had a fantastic debate this morning and I invidiously single out the four speeches by my noble friends Lady Hayter and Lord Reid of Cardowan, the noble Lord, Lord Patten of Barnes, and the noble Viscount, Lord Hailsham. They were absolutely terrific in terms of establishing—and re-establishing—the principle of parliamentary sovereignty. I recommend my noble friend Lord Reid’s speech; this is not some abstract principle—it is about Parliament performing its rule and its role in order that there is better governance of our country. There are three particular effects in this respect.

First—and I can say this, having been in government—there is nothing that makes government decisions better than the fact that you will be grilled by Parliament on those decisions; it makes you think them through much more. The more this Government think that they can do Brexit without being grilled by Parliament, the worse the decisions will be.

Secondly, every time I speak to people in the European Union, they ask whether this Government have the authority to do any deal, because of their precarious political position. The more that the people with whom we are negotiating think the Government will have the authority of Parliament, the more they will pay attention to what the Government are doing.

Thirdly, we want a deal that the country has confidence in. People are much more likely to have confidence in a deal that does not appear to be the product of a negotiation between the Prime Minister and Mr Jacob Rees-Mogg but which appears to be something that Parliament as a whole is willing to approve.

For those three reasons, all of which are practical, I think it is really important that Parliament has a meaningful vote. The debate this morning indicated that there was broad consensus around this House that Parliament should have a meaningful vote. I will just draw out three aspects of that meaningful vote—does the Minister agree that these aspects will be covered?

First, the meaningful vote must be in respect of the withdrawal agreement, the transition agreement and the political declaration that it is envisaged will be agreed between the European Union and the United Kingdom on the future trading relationship between the two. I include that because, as the Minister knows, Article 50 says that the withdrawal agreement must have regard to the future relationship.

Secondly, the meaningful vote—in order to be meaningful—must take place at such a time as it can affect the result. That means before the European Parliament has voted, and while there is still time for Her Majesty’s Government to go back and negotiate further, if that be the wish of Parliament, in accordance with any one of the three agreements or political declarations I have identified.

Assisted Dying Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Cormack

Friday 16th January 2015 Lords Chamber

[Lord Falconer of Thoroton]

I could not agree more with the approach that underlies what the noble Lord, Lord Maginnis, has said. That is why, although I accept and admire the spirit in which it is offered, I do not think that it is a sensible amendment, because it would lead to so many situations that would then not have been covered by a Bill which, on this hypothesis, had been passed. It would therefore be a very bad idea to accept it. I acknowledge and accept the idea that you should not pass a Bill that then leads to problems, which is exactly what the amendment would do. However, I anticipate that the noble Lord would say that he had the precise reverse in mind.

[Lord Cormack]

I am most grateful to the noble and learned Lord for giving way, and particularly for the references that he has made to the points made by the noble Lord, Lord Empey, my noble friend Lord Jopling, and me. In response to the noble Lord, Lord Jopling, he understandably poured some cold water on the four-year limit, but would he accept that a limit of a reasonable time would help allay the fears that my noble friend Lord Jopling, the noble Lord, Lord Empey, and I all have?

[Lord Falconer of Thoroton]

As I indicated to the noble Lord, Lord Jopling, I am more than happy to talk about it. The example of the cancer specialist or the motor neurone disease specialist makes me instinctively, having considered it quite carefully, against the idea of any limit, but I am more than happy to discuss it.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Cormack

Monday 16th May 2011 Lords Chamber

[Lord Falconer of Thoroton]

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

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

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

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

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

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

[Lord Cormack]

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

[Lord Falconer of Thoroton]

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

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

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

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

--- Later in debate ---

[Lord Falconer of Thoroton]

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

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

[Lord Cormack]

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

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

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

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

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

of those voting,

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

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

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

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

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

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

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

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

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

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Cormack

Tuesday 29th March 2011 Lords Chamber

[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.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Cormack

Monday 21st March 2011 Lords Chamber

[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—