Fixed-term Parliaments Bill

Lord Howarth of Newport Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell, as she thoughtfully made the case in support of this Bill. It is also a very particular pleasure to congratulate the noble Lord, Lord Cormack, on his splendid maiden speech. He showed himself to be—as we all knew he is—a fine and committed parliamentarian. As so often in the past, I look forward to working with him on causes that we both care about.

I have not been persuaded by the case for legislating for fixed-term Parliaments—certainly not in the manner in which this Bill does. I join members of Select Committees in both Houses in deploring the haste and lack of care with which this Bill has been brought forward. It was wrong of the coalition to bounce the House of Commons early into a Second Reading in September. Like my noble friend Lord Grocott, I ask what mischief this Bill undoes and what mischief it might create.

The Deputy Prime Minister made the case for the Bill at Second Reading. He said that it would remove the right of the Prime Minister to seek the Dissolution of Parliament for—as he put it—“pure political gain”. Yes, for what it is worth, it does do that. However, I do not believe that the right of the Prime Minister to determine the date of the next general election has been a great mischief. He said that it would stop feverish speculation about the date of the general election, distracting politicians from getting on with running the country; that it would bring greater stability to our political system; and that it would stop parties ending up in perpetual campaign mode, which make it very difficult for Parliament to function effectively.

In their last minute response to the Constitution Select Committee yesterday, the Government added that it would engender a more long-term policy-making approach. There are other reasons why politicians are distracted, why journalists speculate, why there is political instability, why there is perpetual campaigning and why there is governmental short-termism. Fixed-term Parliaments would be no political cure-all.

The benefits of the Bill have been exaggerated. The Bill would make another more serious mischief worse, and it would create new mischiefs. The existing serious mischief that it would make worse is the excessive domination of the House of Commons by the Executive and the ineffectuality of the House of Commons on behalf of the people in holding the Executive to account. A Government who are more secure about staying in office for a full five years will be more dominant and less accountable.

On 5 July, the Deputy Prime Minister declared to the House of Commons that the Government’s mission was to transfer power away from the Executive to empower Parliament. In his Hansard lecture of 16 November, he proclaimed,

“a programme that we can set against a single test … are we giving people the choice and control they—rightly—now expect?”.

This Bill fails the single test that the Deputy Prime Minister set himself. The average interval between general elections since 1945 has been three years and 10 months. With this legislation, the people would in future have to wait a full five years before they had the opportunity to exercise their choice and control as to who should be their Members of Parliament and members of the Government. The coalition has conflated two issues to its own political advantage. There was the political question of how to ensure the longevity of the coalition and the constitutional issue as to whether we should have fixed-term Parliaments. To legislate to protect the coalition parties from facing the electors before five years are up is very convenient for two parties that formed a Government without having won an election and which are incurring bitter unpopularity for their scorched earth policies towards the economy and society.

Mr Clegg affirmed on 19 May:

“This government is going to persuade you to put your faith in politics once again”,

even as Liberal Democrat Members of Parliament were meditating on breaking their promise on tuition fees and provoking new depths of cynicism among the public about politics. No wonder the Deputy Prime Minister was glad to announce to the House of Commons on 5 July that the date of the next general election would be 7 May 2015.

To introduce fixed-term Parliaments is more than a wheeze to shelter the coalition from the people’s anger. As the Deputy Prime Minister went on to say on 5 July:

“This is a hugely significant constitutional innovation”.—[Official Report, 5/7/11; col. 23.]

As such, the proposal should have been put forward tentatively, consultatively and in the search for a consensus about carefully considered and genuinely necessary constitutional change. That fixed-term Parliaments were in the manifestos of two political parties does not unfortunately mean that they had been as carefully considered as they should have been. They have been considered as devices to attract votes, but I do not think that they were considered in their full constitutional significance.

The spirit of caution and respect is not the spirit in which the coalition proceeds. Mr Clegg declared on 19 May:

“It is time for a wholesale, big bang approach to political reform”.

That seems to me to be one of the most foolish things that I have ever heard any senior politician in this country say. Can the experienced noble Lords on the Conservative Benches do nothing to restrain these boys?

As with the Parliamentary Voting System and Constituencies Bill, there has been no Green Paper or White Paper and no draft Bill or pre-legislative scrutiny. How much better it would have been had Ministers been able to hear the thoughts of noble Lords who have spoken in this debate before they formulated their legislation. Political convenience for the coalition has again trumped respect for Parliament and the constitution. The Deputy Prime Minister said at Second Reading that,

“the timing of general elections”,

should,

“not be a plaything of Governments”.—[Official Report, Commons, 13/9/10; col. 621.]

The constitution should not be the plaything of politicians who happen to be in office for the time being.

Why might fixed-term Parliaments be a bad idea? In some circumstances an early general election might well be desirable. I have been impressed by that case as it has been made by a number of noble Lords in the debate so far, and I was impressed by the evidence that Professor Vernon Bogdanor offered to the Constitution Committee. A Parliament might be judged not to be viable—that was the judgment that Mr Attlee took in 1951 and that Mr Wilson took in October 1974. It cannot be a good thing for a lame-duck Parliament to hobble along with a Government unable to govern effectively. It might be right for the country to have the opportunity to endorse a new Prime Minister, a judgment that Anthony Eden made in 1955 and that Gordon Brown nearly made in 2007—and the judgment that, by fits and starts, Mr David Cameron has also made. It might be right for the country to have the opportunity to endorse a new policy, as Baldwin thought about tariff reform in 1923 and as the coalition ought to think now about its extremely radical and contentious policies on the National Health Service and the welfare state. To make changes of this kind, so bitterly contentious, without any authority from the people, is an offence against democracy. It might be appropriate for the country to have the opportunity to endorse a new coalition, as was the case when the national Government were formed in 1931, and might yet be the case when Tory and Liberal Democrat Back-Benchers can no longer bear this coalition.

We are advised to expect that hung Parliaments will occur more frequently in the future with the reducing percentage of the vote for the two major parties, and particularly if we have the alternative vote. Why should Governments be made mid-term by wheeler-dealer politicians supervised by the Cabinet Secretary inside 70 Whitehall rather than by the people in a new general election? The Deputy Prime Minister on 7 June blustered that,

“we have this great opportunity to renew our democracy from top to toe”.—[Official Report, Commons, 7/6/10; col. 46.]—

not, however, if a renewal of our democracy limits the opportunity for Liberal Democrats, discredited in public opinion, to negotiate another coalition and extend their hold on office.

It might be right to hold a general election if Parliament is quite simply clapped-out and discredited. Would it not have been preferable to have had a general election in 1996 rather than wait until 1997? Would it not have been preferable to have had a general election in 2009 rather than wait until 2010?

There are two safety valves in the Bill that will enable, exceptionally, an early general election to take place. Are they appropriate? Yes, in the case of the retention of the traditional right of the House of Commons to expel a Government on a vote of no confidence with a majority of one, but why legislate for a maximum of 14 days of negotiations following a vote of no confidence? Legislation is not needed to allow a period of negotiations in such circumstances, so why specify a time limit? I do not believe that in this country we will find ourselves in the same case as in Belgium or Iraq.

The second safety valve is very questionable: the provision that by a vote of two-thirds of all Members of Parliament the House of Commons can vote for an early general election. Why legislate for a super-majority? The reason is political: to stop the Tories and the Liberal Democrats ratting on each other. This threshold for Dissolution is too high; a majority of one should be enough, and I believe that all this apparatus is unnecessary. Gordon Brown, in the previous Parliament, proposed that the Prime Minister should not simply be able to go to the Palace in the future but should be required to seek a majority in the House of Commons before requesting Dissolution. If that were to be the convention—and I do not believe that we would need legislation to secure it as such—it would be a simple and satisfactory solution to the primary problem which the proponents of this Bill have identified.

The more we look at this short and apparently simple Bill, the more difficulties appear, as the Constitution Committee has found. What exactly is a no confidence vote? What is a confidence vote? How, indeed, are votes to be counted? That might seem an unnecessary question, except that Dr Jack, the Clerk of the House of Commons himself, raised anxieties about this in his evidence to the Select Committee in another place. Will not the impact on the Speakership of requiring the Speaker to certify a no-confidence or a confidence Motion in very contentious circumstances be dangerous indeed? The noble Lord, Lord Norton of Louth, spoke brilliantly and devastatingly on this matter. What will be the impact on parliamentary privilege if the inclusive cognisance by the House of Commons of its own procedures is liable to be questioned by the courts consequent upon parliamentary procedures prescribed by statute? Mr Mark Harper, the Parliamentary Under-Secretary, has asserted his expert authority in contradiction to that of the Clerk of the House of Commons. I note that other noble Lords have tended to dismiss the anxiety that the Clerk expressed. As we look at this Bill in Committee, we should consider this issue very carefully.

Some of these matters that I have just touched upon seem to me to illustrate the dangers of moving towards a written constitution—here I differ from my noble friend Lord Morgan. If there is to be a fixed-term Parliament, how long should the term be? Four years is more normal where there are fixed terms, we are advised. Mr Asquith intended that four years should be the norm. Since the war, only weak and unpopular Governments have staggered to the full five years. The people of this country accept that after four years, or very shortly after that, it is a fair do if the Government call the election.

Whether the term should be four years or five is, as the Government have said, a matter of judgment, but it is significant that the judgment they have made is that it should be a five-year term, thus increasing the benefit for themselves and reducing the frequency with which the people will have the opportunity to exercise their democratic rights at a general election. This is just the kind of political opportunism that the Government, in their response to the Constitution Select Committee, have said that the public are tired of. I believe that we should amend this to four years.

As for resetting the clock and the question of whether, after an early general election, there should be a new five-year term or whether the new Parliament should simply use up the balance of the previous five-year term, again, the coalition has opted to extend the power of the Executive and to diminish accountability. I think that is the preferable choice—not being in favour of fixed-term Parliaments—but it should also be noted that if there is an early general election and the clock is reset, the relationship between five-yearly boundary reviews and the new Parliaments that the Government attached so much importance to when we were considering the Parliamentary Voting System and Constituencies Bill is thrown out.

If five-yearly Parliaments proceed without interruption, there will be an unfortunate coincidence in 2015, and every 20 years after, between general elections for the country as a whole and elections to the devolved institutions. It is simply boorish for the Government to impose general elections on the same day as elections to the devolved institutions, candidates for which should be judged on their own performance and their own promise, not immersed in the backwash of a UK general election. The coalition has already wrecked the 2011 devolved elections; it is now belatedly consulting. What would be wrong with amending this Bill to move the date of elections to October? The interaction with other constitutional changes has not been thought about. There are possible elections to a second Chamber and there is the interaction with the parliamentary privileges Bill that we are promised in draft.

This Bill is unnecessary. It does not respond to any significant problems or real grievances. Mr Harper cites opinion polls showing, he asserts, that the public broadly welcome fixed-term Parliaments, but the Hansard Society’s audit of democratic engagement shows the public uncertain and indifferent: 60 per cent had no understanding of the issue; 39 per cent were satisfied that the Government should appoint the date of the general election; 38 per cent had no preference or view; and only 28 per cent were dissatisfied.

The Bill would limit the power of the Executive in one respect—the power of the Prime Minister to determine the date of the general election—but would increase the power of the Executive through guaranteeing them prolonged life. It is busybody legislation brought in by people who want to parade themselves as constitutional reformers without having thought carefully about the constitution. It will be the duty of this House, once again, to limit the damage. I hope that when we are in Committee the Government will not regard this as a trial of strength but will look forward to Committee and treat it as a collaborative attempt to improve the legislation.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I join those who have indicated that this has been a very good debate. The House has had the benefit of the experience of many people, from academia and from the other place, who have taken part in votes of confidence—or no confidence—in times past. I certainly wish to join many of your Lordships who have expressed their congratulations to my noble friend Lord Cormack on a notable and distinguished maiden speech. He said that he had been in favour in principle in fixed-term Parliaments for some time. I think that I would describe his speech as that of a critical friend. I served in the other place with my noble friend, I think on a sub-committee of the Administration and Accommodation Committee, which he chaired. Perhaps its most significant task when I was on it was to identify those who would appear in the painting of the House of Commons in session in about 1985 or 1986. That chairmanship was just part of the contribution which my noble friend gave to the other place, not only a concern for its fabric, but a concern for, and a passionate commitment to, its workings. That is the experience that he brings to this place and we look forward to his contributions in the future.

Congratulations are also in order to the noble Lord, Lord McAvoy. Although he said that he was a former Whip, I understand that he has recently been appointed to the Whips’ Bench opposite and I congratulate him on that very rapid rise, which no doubt reflects his abilities as a Whip. That is meant to be a compliment.

We have heard a variety of views, from those who are opposed in principle to this, through to those who are very supportive of it and to those who are supportive of it, but want to see things done in different ways. There are those who have indicated that they do not wish any change whatever. The noble Lord, Lord Grocott, indicated a level of satisfaction with a constitution that he did not think needed changing. My noble and learned friend Lord Howe expressed the view that he was getting somewhat sceptical about constitutional change, but I am grateful to a number of my noble friends who indicated their support in principle. My noble friend Lady Stowell indicated that it was not necessarily a silver bullet, but nevertheless was an important contribution to try to revitalise our political system.

My noble friend Lord Dobbs had a slightly interesting, but very practical, explanation as to why he supported this, not least in terms of party finance. That may not seem the most obvious reason why one would support it, but for those of us who think back to the debates we had on the Parliamentary Voting Systems and Constituencies Bill, the point was made on more than one occasion that political parties oil the wheel of democracy and my noble friend made an important point. Certainly, under the Political Parties, Elections and Referendums Act 2000, there is a regulation of national campaign spending for 12 months before the actual date of poll. Therefore, it is probably preferable that the parties can have a fixed idea of when that is likely to be, rather than have to guess.

This is important because it lends that stability. It particularly lends stability, as my noble friend Lord Marks said, on occasions when there is a coalition Government. It allows Governments and Parliaments to plan for the long term. I take issue with those who say that it does not give the Prime Minister an advantage. Our late colleague Lord Holme of Cheltenham, who chaired the Constitution Select Committee with distinction at one point, asked as long ago as 1991, in words which my noble friend quoted, what people would think about,

“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 22/ 5/1991; col. 245.]

The noble Lord, Lord Elystan-Morgan, although opposed to what is happening and sceptical about the arguments about the Prime Minister, also made the point about the Prime Minister being able to use Dissolution as a threat. It is not only about occasions when Dissolution has been sought by a Prime Minister, it is often about occasions when it was not sought, but was there nevertheless.

I disagree with those who think that this is a shift to the Executive. I believe that neutralising the threat that the Prime Minister has to hang Dissolution over his Back-Benchers may indeed strengthen Back-Benchers, rather than weaken them. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Howard of Rising, took the view that the Bill does not do what I claim it does; namely, that we believe it should transfer power from the Executive to Parliament.

I noted that the noble Lord, Lord Hennessy, acknowledged that it was the Prime Minister giving up a prerogative that he has had the power to exercise for many years. I certainly agree with my noble friend Lord Howard of Rising that the objective must be to shift power from the Executive to Parliament. That is why I believe the Bill helps. This is a Bill that gives Parliament, not the Prime Minister or the Executive, the opportunity to decide when there should be an early general election. That is because of the flexibility, which I will come back to. No longer will the Executive be able to use the threat of a Dissolution against Parliament or their own Back-Benchers.

It is worth remembering that there have quite properly been references to the report of our own Constitution Select Committee. I also remind the House that the Political and Constitutional Reform Select Committee of the other place, in its report on the Bill, said:

“It is questionable whether a Prime Minister should be able to use his position in government to give him and his party an electoral advantage by choosing to hold the next general election to a schedule that best suits him. We therefore acknowledge the principle behind the Fixed-term Parliaments Bill”.

My noble friend Lord Norton asked about public demand. I am the first to say that it is not the question that comes up first at hustings. I am sure it was not the issue that lost the Labour Party the election last May. However, as the Constitution Select Committee report points out, the issue has been on the constitutional reform agenda for the past 20 years. The report refers to a report from the Institute for Public Policy Research in 1991; a commitment in the Labour Party manifesto in 1992; Private Members’ Bills, which have been referred to, in 2001 and 2008; Liberal Democrat policy documents; and the Liberal Democrat manifestos of 1992 and 1997. As my noble friend Lady Stowell indicated, an opinion poll from 2009—at the height of the expenses scandal—showed considerable public support for the idea of a fixed-term Parliament. As far back as 1998, Professor Blackburn, giving evidence to the Home Affairs Select Committee in the other place, gave an argument as to why a fixed-term Parliament should be an issue that the committee might look at. He said:

“But if I could finally select just one reform of election law which does carry popular backing and probably also substantial parliamentary support. This is our system of General Election timing which is an extremely important matter in electioneering terms and which clearly operates to the advantage of the government of the day … The trick is to avoid those times when you are unpopular so far as you can. I believe this Committee”—

that is, the Home Affairs Select Committee—

“should examine the case for fixed intervals between general elections”.

I listened to and take on board the criticisms regarding the lack of pre-legislative scrutiny. As I think I indicated when we dealt with the previous Bill, it is very difficult to have pre-legislative scrutiny of a Bill in a first Session. Noble Lords will remember that the original proposal was to have a binding resolution. That was not proceeded with. It was suggested by some of those who have contributed to the debate that it was questionable whether it would be binding. I certainly do not accept the view that was put forward by the noble Lords, Lord Armstrong and Lord Elystan-Morgan, that the simplest thing would be for the Prime Minister to make a declaration. The noble Lord, Lord Elystan-Morgan, then qualified that by saying, “unless in exceptional circumstances we could not go on to 7 May 2015”. That is the point. It would continue the possible uncertainty. One of the reasons for legislating is to make it clear that that would be the position: there will be an election on 7 May 2015, unless the trigger mechanisms come into play.

[Lord Howarth of Newport]

My Lords—

[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.