Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Marks of Henley-on-Thames

Tuesday 10th May 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

Noble Lords will have heard me say that her discretion is very limited and that she seeks to stay out of controversy of this sort where she possibly can. Plainly, sometimes, the monarch’s role is to get involved and sometimes that is unwisely exercised, as with the dismissal by Sir John Kerr of the Government of Gough Whitlam in Australia. That was not the monarch directly, but it was the monarch’s representative and that shows the danger of the monarch becoming involved. Controversy has raged ever since in Australia and elsewhere about that exercise of the royal prerogative. It is a dangerous one.

My point is that if you read these amendments carefully, a resolution of both Houses would be required for this legislation to survive beyond the first meeting after the next election. That is wrong. If Parliament wishes to change the law, it needs to pass new law to do so.

[Lord Falconer of Thoroton]

My Lords, as I indicated earlier, I support this suite of amendments. They are important in relation to the position of Parliament and this Bill for three reasons. First, such a series of clauses might well be appropriate in any constitutional legislation that makes a significant change. I do not think that anybody doubts that, because that is how the Government are putting it. I agree with other noble Lords who have said that this is potentially a significant constitutional change. In my respectful submission, before we commit ourselves irredeemably to this change it is sensible to see what happens. For that first reason, I support the amendments.

Secondly, we broadly know—there is no real dispute—the provenance of these constitutional changes. There is no suggestion that there is a widespread desire among constitutionalists or the public for this particular change. It is an insider’s deal in relation to politics, which suits two political parties. As far as one can see, it has no broad political support beyond the two political parties. I venture to suggest that, if the public's interest could be engaged in this and one explained to the public that we might have a situation under the Bill where the Government could be defeated on the Finance Bill, then defeated on a vote of confidence that they put down and they would still not have to have a general election—or that the Government could be defeated on a vote of no confidence put down by the Opposition and they would still not have to leave because they could spend 14 days bribing a variety of rebels and other small parties to join them, so they could hold on in Government—the public might not find this Bill worth supporting. It is an insider's Bill, which does not feel particularly attractive to me.

There is a third reason of importance. I have found in the course of these debates in the Commons and in your Lordships' House that people think that, in relation to a significant constitutional change, there should be public consultation, a desire to find consensus and pre-legislative scrutiny. Indeed, on 25 May, David Heath, the Deputy Leader of the House of Commons said that he favoured pre-legislative scrutiny for this Bill. His only concern was that such scrutiny might lead to the Bill being forced into the next Session of Parliament. Noble Lords will remember that the coalition in the Commons then extended this Session by approximately nine months thereby making it clear that there could be no clash. There was still no pre-legislative scrutiny.

Therefore, I think most people who have debated this would agree that this Bill has not gone through the appropriate procedures for a Bill of this importance constitutionally. Is there no price to be paid for this? Is Parliament to be absolutely supine in relation to this? It is a big opportunity for the coalition Government to put their money where their mouth is. They say they believe in new politics and they say they believe in reaching out for consensus; I cannot see any reason why the noble and learned Lord cannot say, on behalf of the Government, that he agrees with what has been said and that we should see whether the way that the Bill operates between now and the next election gains public support and, if it does, Parliament can form a view about whether to pass the resolution next time around. That would not cost the Government anything, because they would have the Bill they want.

--- Later in debate ---

[Lord Falconer of Thoroton]

With respect, the Parliament Act is a total red herring. The noble Lord, Lord Marks of Henley-on-Thames, says that by allowing the decision to depend on a resolution of both Houses, we—Parliament—are giving the power back to a Government with a majority. Of course we are, but we are doing that anyway because they could pass a repealing Act. Surely it must be right for this House to express its disapproval of the way that the Bill has been brought forward by supporting the amendment tabled by the noble Lord, Lord Pannick, the noble Baroness, Lady Boothroyd and the noble Lords, Lord Butler and Lord Armstrong, and to say, “Yes, you can have your Bill, but let us see whether or not a major constitutional change like this—which is very much an insider’s Bill—works, let us see whether or not it is something worth continuing and let the next Parliament decide”.

[Lord Marks of Henley-on-Thames]

I do not understand how what the noble Lord has said answers my point that in order to revive the Fixed-term Parliaments Act after the next election, you would have to have a resolution of both Houses, while ordinary legislation could be insisted upon by the House of Commons after a delay of a year.

[Lord Falconer of Thoroton]

Parliament could use its majority to get the repealing Act through, just as it could use its majority to pass the resolution. In my respectful submission, there is no difference between the two.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Marks of Henley-on-Thames

Tuesday 29th March 2011 Lords Chamber

[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” .

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Marks of Henley-on-Thames

Monday 21st March 2011 Lords Chamber

[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.