Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 29th March 2011 Lords Chamber

[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.

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[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 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.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.

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[Lord Williamson of Horton]

My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and Lord Martin have fully covered the key elements about the defence of Parliament, which is a vital element underlying this amendment, in my view.

Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.

[Lord Forsyth of Drumlean]

My Lords, the speeches that we have heard from the former Speakers speak very eloquently for themselves. I congratulate the noble Lord, Lord Howarth, on his amendment. I do not know whether it deals with the issue but two points strike me. Like the noble Baroness, Lady Boothroyd, I could not be here at Second Reading. One thing that concerns me enormously is that the advice of the Clerk of the House can be brushed aside in what, quite frankly, is an almost arrogant way.

Our institutions are very important, although things might have changed. I never really had a reputation in the other place as someone who was easily cowed or very respectful but I respected the Clerk of the House, the institution of the House and the Speaker’s office. For a variety of reasons, the House and the Speaker’s office have come under considerable attack, which is a great source of anxiety. In responding to this amendment, I hope that my noble friend will give us some assurance that he will look at this again because these are very serious considerations. Ministers might believe that the risk is limited but I am with the Clerk of the House and I would not take any risks with this institution. It is a very precious baby and it seems to me quite extraordinary that we have reached this pass.

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[Lord Marks of Henley-on-Thames]

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

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

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

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

[Lord Forsyth of Drumlean]

My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?

[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.

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[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.

A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.

The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.

With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to include those words to achieve the aim, as the words have their own significant pedigree. They were based on the Parliament Act 1911, where Speaker’s certificates are equally conclusive for all purposes. It follows the language used in the House of Lords Act 1999, under which the certificate of the Clerk of the Parliaments is conclusive. The effect of those words in the Bill and those Acts is to make clear that parliamentary privilege applies to the matters being certified. Accordingly, we do not believe it necessary to make further provision along the lines suggested. As ever, making further provision may cast doubt on earlier enactments which do not include those words. I do not think that any of us want to go there.

The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.

I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,

“the weight of the evidence we received being against the view that a Speaker’s certificate would be justiciable … The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

[Lord Forsyth of Drumlean]

I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?

[Lord Wallace of Tankerness]

It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no confidence and that 14 days have elapsed without any vote of confidence in a new Government having been passed.

There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.

[Lord Forsyth of Drumlean]

Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?

[Lord Wallace of Tankerness]

I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for having an election not on the date which would otherwise be the case have been met.