Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 10 months ago)
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Lord Howarth of Newport
My Lords, the treatment of Gypsies and Travellers by states and other public agencies in the West over the last 100 years and longer has been in large measure a major disgrace. The worst instances have certainly not occurred in this country, but, as the noble Lord, Lord Avebury, put it to us, there remains a remarkable degree of prejudice against Gypsies and Travellers still, unfortunately, extensively licensed by public opinion. I was struck, in the two constituencies I had the privilege to represent in the House of Commons, by how very difficult it was, in the face of public opinion, for local planning authorities to construct a policy framework in their areas which would ensure that Gypsies and Travellers had places where they were entitled to live. While I would not argue for especially favourable treatment for Gypsies and Travellers any more than I would for any other group, it is particularly incumbent on us, as we scrutinise all legislation, to be sure that it does not involve anything that may be discriminatory against them. So I simply ask the Minister and his colleagues to look carefully and sympathetically at the amendments in this group, which have been moved and spoken to so well by the noble Lord, Lord Avebury, my noble friend Lady Whitaker and the noble Earl, Lord Listowel.
Lord Alton of Liverpool
My Lords, I, too, want to add my voice briefly in support of the amendments moved by the noble Lord, Lord Avebury. Perhaps it would have been surprising if anyone other than the noble Lord had moved these amendments. I was at school when the noble Lord, as Eric Lubbock, Member for Orpington in the House of Commons, moved his Gypsies and caravan sites legislation in, I think, 1967. Many of us admired the courageous way in which he has continued over the following years to raise the plight of Travellers and Gypsies in the discrimination and racism that other noble Lords have referred to in the debate.
As a young city councillor in the 1970s, I served in Liverpool on the committee which was charged with the duty of creating a caravan sites Act. The noble Lord, Lord Storey, who is in his place, will recall the controversy that that aroused at the time. But we fulfilled our statutory duties and took on the prejudice that inevitably was raised. The not-in-my-back-yard syndrome is one with which we are all familiar. Indeed, it has to be said that the presence of Travellers or Gypsies in a community can raise a number of issues, not the least of which are questions of educational provision. In the 1970s, that provision was made, and I agree with what my noble friend Lord Listowel said about the importance of providing stability of education for the children of Travellers as they progress through life.
A few months ago we saw what happens when there is an unregulated approach to these matters. At Dale Farm there was a terrible culmination in violence that involved the use of Tasers. We saw the police having to be pitted against members of the Traveller community as they were evicted from their homes. That is not a sight that most of us want to see repeated on a regular basis. But I fear that unless amendments of this sort are incorporated, and if we deny people access to justice, which was the point made by the noble Lord in his speech, all these other things will follow. They will be the corollary. If we do not provide opportunities for resolution on planning disputes and access to amenities, as well as on questions of discrimination and the others that have been raised during this brief debate, we will see more incidents like Dale Farm. For that reason, I hope that when the noble and learned Lord comes to reply, he will tell us just how many unauthorised sites there are in the country, what is the estimated shortfall of places—that will give us a barometer of how many disputes will have to be resolved in the years to come—and the cost to the public purse through legal aid of cases which have been brought before the courts over the past decade? Without knowing what the sums of money involved are, surely it would be irresponsible of us to dismiss lightly the amendments to maintain the status quo which the noble Lord, Lord Avebury, has put before us today.
I end by returning to his point about the importance of ensuring that people have access to justice. That runs all the way through the proceedings of this Bill in your Lordships’ House, and it will continue to be the question. You cannot get justice on the cheap, and groups like these should not be left on the margins, unable to access the courts.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 11 months ago)
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Lord Howarth of Newport
I am in total sympathy with the amendments that the noble and learned Baroness has tabled, but I wanted to ask her whether she envisages that victims of trafficking who might make employment claims could also include people who are employed by gangmasters in conditions of well nigh slavery, fruit-picking or cockle-picking.
Baroness Butler-Sloss
I certainly saw the amendment as broad as that, and they may very well be able to do it through the employment tribunal. The great problem is that the employment tribunal will no longer have legal aid.
The Minister of State, Ministry of Justice (Lord McNally)
I do not think the noble Lord should worry. At this time of night it becomes a bit of a blur for us all.
Amendments 72 and 82ZC would bring into scope debt matters that are not covered in Schedule 1 and which we intend no longer to fund. We are faced, as we have said before, with tough choices in this current fiscal climate, but this has allowed us to focus resources on those who need them most in the most serious cases where legal advice and representation are justified. We estimate that we will continue to spend around £50 million on social welfare law overall.
Amendment 72 relates to paragraph 28 of Part 1 of Schedule 1 and appears to be aimed at making legally aided advice, assistance and representation available where a person’s financial difficulties, such as debt problems, could potentially lead to the individual losing their home.
Amendment 82ZC would bring into scope all debt matters not covered in Schedule 1. In our consultation on legal aid reform, we proposed that funding should be prioritised on cases where the individual’s home is at immediate risk. We are therefore retaining legal aid in relation to court orders for possession or sale of the home and in relation to eviction. We generally consider that other debt matters are a lower priority and therefore do not justify public funding for legal advice and representation.
We recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice, for example on welfare benefits, debt or housing, rather than legal advice. There are many alternative sources of help with debt issues, including Credit Action, the National Debtline, the Consumer Credit Counselling Service and local authorities, which also direct people to local sources of advice and assistance on debt matters. In addition, the Money Advice Trust has recently launched My Money Steps, an online tool for providing advice for people with debt problems. The Consumer Credit Counselling Service also offers a free online debt remedy service.
We also recognise the argument that withdrawal of legal aid for any issue could lead, by a chain of events, to serious consequences. We considered this point carefully when formulating our final proposals. However, our view is that the limited public funds for legal advice and representation should be focused on those cases where the client faces serious direct consequences. Therefore, we do not propose to devote these limited public funds to less important cases on the basis that they could indirectly lead to more serious consequences for that person.
It is also important to recognise that the Bill does not require legal proceedings to have been issued before legal aid can be made available. Legal aid will be available where action for repossession or eviction is contemplated—for example, where a person receives a letter threatening repossession action in the absence of payment. Therefore, legal aid will be available to a person threatened with repossession action for mortgage or rent arrears, for example to negotiate with the mortgage lenders. It should also be noted that we will retain funding for the housing possession court duty scheme. It offers free legal advice and representation to anyone in danger of eviction or having property repossessed, on the day of the hearing, regardless of their means. Research shows that 77 per cent of clients who receive this last-minute advice avoid the immediate loss of their home. Under the circumstances, I hope the noble Lord will consider withdrawing his amendment.
Amendment 82D appears to be aimed at bringing into scope debt relief remedies under Part 5 of the Tribunals, Courts and Enforcement Act 2007 and, in particular, as the noble Lord said, debt relief orders. As I have already said, we consider certain debt matters to be a high priority for funding. That is why we are retaining legal aid for debt cases where the individual’s home is at immediate risk of repossession because of rent or mortgage arrears or involuntary bankruptcy. We recognise that debt problems can be difficult for the individuals concerned. Nevertheless, we strongly believe that what is often required is practical advice to resolve issues, rather than advice of a legal nature.
It is important to note that debt relief orders are relatively informal procedures. Advisers act as approved intermediaries and assist debtors in applying to the Insolvency Service for a debt relief order. I reiterate that individuals who have debt issues are able to seek advice from alternative routes. For example, the Insolvency Service website provides guidance and leaflets, and information is available through the insolvency inquiry line. Importantly, it should be noted that debt relief orders are used by people who owe limited amounts of money and have no assets. Therefore, they do not involve a person’s home being at immediate risk. They are clearly not analogous to cases in which a home owner is at immediate risk of losing their home as a result of involuntary bankruptcy. I hope that noble Lords will be reassured by what I have said and will not press these amendments.
Lord Howarth of Newport
Can the Minister assure the Committee with complete confidence that every single one of the organisations that he has named in his remarks are confident that they will be in a position to provide debt advice—indeed, sufficient personalised debt advice—to the people who will need it? Has he taken into account that the number of people sinking into the toils of debt is increasing hand over fist as the economy deteriorates?
Lord McNally
No, of course I cannot give that assurance, but neither do I assume the absolute worst case in everything that we discuss, as the noble Lord seems to do in each of his interventions.
Lord Howarth of Newport
My Lords, the speech of the noble Lord, Lord Best, was well worth waiting for. This is a very important and valuable group of amendments and I endorse the arguments so powerfully stated by the noble Lords who have spoken. Under the Government’s proposals in the Bill, legal aid will no longer be available for damages claims in relation to tenancy disputes; for example, disrepair. CLG tells us that more than 40 per cent of private rented dwellings do not meet the decent homes standard. Tenants will still be able to get legal aid to seek injunctions to get the work done, although only where there is serious risk of harm to the health or safety of the household. So there is a very high threshold for one to get legal aid for an injunction of that kind.
Under the current arrangements, as the noble Lord, Lord Best, explained, bad landlords know that the longer that they delay in carrying out the repairs, the greater the damages that they will have to pay. Therefore, the current arrangement, whereby legal aid is available for damages suits for disrepair, constitutes an incentive on landlords to carry out the repairs relatively promptly. Without the availability of legal aid for such damages claims, the pressure on landlords not to let their properties fall into disrepair will be removed.
Illegal eviction, actual or threatened, is a horrible reality for all too many people. Under the Government's proposals, legal aid will be available only to secure an injunction for the tenant to be reinstated to the property from which he has been illegally evicted. Again, as the noble Lord said, it is most likely that tenants will not want to go back to a tenancy with that same landlord. They will want to secure recovery of their possessions but they will not want to go back to that landlord. Under the Government’s proposals, the worst landlords will be able to get away with the worst behaviour and their victims will not be protected and will not be able to obtain compensation. The availability, through legal aid, of damages claims against bad landlords is a deterrent against bad behaviour; and the aggravated and exemplary damages that are, from time to time, awarded because the court takes a particularly severe view of the behaviour of a landlord are a most important deterrent. We will not be able to see that working in the future.
These problems are all too extensive. Environmental health officers testify to the fact that there are too many bad landlords and that many of them behave with the peculiar ruthlessness with which unfortunately people tend to act in housing matters; 90 per cent of environmental health officers say that they have personal experience of landlords harassing or illegally evicting tenants. The proportions of people availing themselves of private rented accommodation are rising at the moment. The Localism Act encourages local authorities now to place homeless households in the private rented sector. The benefits cap and the cuts to local housing allowance will drive families lower down the scale of the private rented sector towards the bottom end. It seems bizarre that legal aid will not be available to people facing housing problems until they are actually on the precipice of losing their homes. It is obvious that early intervention to deal with the underlying causes is a sensible policy to prevent the underlying problems deteriorating. It is both kinder and more economic.
Removing welfare benefit and debt cases from the scope of legal aid will mean, as my noble friend Lord Stevenson pointed out, that we will see a compounding effect of people getting deeper and deeper into trouble until they face homelessness. Under the Government's proposals, only then will they be able to get legal aid to help extricate them from the crisis that they have been allowed to get into.
This policy will increase insecurity and distress among tenants. It will add to the pressure on tribunals and courts, as the noble Lords, Lord Shipley and Lord Best, told us. It will increase costs to the taxpayer because of the consequences of the distress and of the problems that will be without remedy.
The Minister prayed in aid time and again in debates on different parts of this foolish and iniquitous Bill the requirement of the Treasury that the Ministry of Justice should make its contribution to reducing the deficit. The Treasury will certainly not be swayed by the pathos of vulnerable people finding themselves in greater difficulty than they need be in, but it should be swayed by the prospect of increased costs being shunted around Whitehall so that we end up with no reduction of the deficit but possibly an increase in it. I very much hope that the Treasury will review the policy that is proposed in the Bill before we get to Report. I hope that it will look at the arguments and figures put forward by Dr Cookson of King’s College. The central case on which the Minister relies—that all this, miserable though it may be, is inescapably necessary in order to reduce the deficit—is profoundly flawed. I hope that on Report we will see major government amendments to the Bill.
Lord Phillips of Sudbury
My Lords, after three excellent speeches I will make only one point, following directly from the last point made by the noble Lord, Lord Howarth. What I may perhaps call the Cookson report—the King’s College report—quantifies certain knock-on costs. What it does not do is look at indirect knock-on costs. For example, in a case such as the one my noble friend referred to when he moved the amendment of somebody not getting timely advice and as a result finding that he and his family were on the street with the local authority having to pick up the problem and provide housing, along with the welfare fallout and so on, the indirect costs were not included in the figures of the King's College report. That makes the self-interest of the Government in listening to and agreeing the amendments in this group all the more acute.
My only other point was made by all three preceding speakers but is worth emphasising. The noble Lord, Lord Best, drew an analogy with Somali pirates. He talked of a small minority of exploitative landlords. That is absolutely fair; it is only a small minority of private landlords. However, they are concentrated among poor tenancies. If we throw our minds back to Rachman, we will remember that his tenants were among the poorest in London. That was no accident. Landlords who are of that evil mind know that poor tenants are least able to protect and stand up for themselves, and most easily harassed. Again, it is an issue of self-interest on the part of the Treasury to recognise that. If it does, it will see the sense of the amendments in this group without getting into morality and justice.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Howarth of Newport Excerpts(12 years, 11 months ago)
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Lord Clement-Jones
My Lords, from the outset I should stress that this amendment is strongly supported by the Special Educational Consortium of special needs disability charities. The consortium and I believe that access to a suitable and challenging education is a right for all children, and that parents need to be able to enforce a legal obligation when they are let down by the system. When parents do not have the financial resources to bring an appeal on their own, they should be supported to do so in the interests of justice.
The Government initially consulted on removing legal aid for all appeals against local authority decisions on the provision for children with special educational needs. I welcome the Government’s subsequent decision to retain special educational needs appeals for children of school age within the scope of legal aid. The Government clearly recognise the importance of these children’s entitlement to an appropriate and challenging education. Nevertheless, the Bill as currently drafted will mean that young people with special educational needs who are aged between 16 and 25 will no longer be eligible for legal aid.
The purpose of the amendment is to ensure that young people aged between 16 and 25 with special educational needs continue to be eligible for legal aid when appealing against decisions made about special educational provision. Removing access to legal aid for young people aged 16 to 25 with special educational needs, as the Bill currently does, is inconsistent with the Government’s position on the importance of the rights of young people with SEN and, in particular, with the aims of the SEN and disability Green Paper, Support and Aspiration, of March last year. I very much welcomed the Green Paper, which sought to develop a streamlined system for children from birth to the age of 25. I hope that this is an oversight rather than a deliberate move to exclude these young people with SEN from the scope of legal aid. Surely there is no justification for cutting this off at the age where young people might be transitioning from one educational institution to another, and when some young people with SEN continue to face barriers to getting the support that they need.
For young people with SEN and their families, the transition to adulthood can be a particularly difficult time as support from children’s services falls away and is often not replaced by support from adult services. As the Green Paper recognises, many young people who are disabled or who have SEN can face additional challenges during their teenage years. It states:
“Too often the opportunities and support available to disabled young people and young people with SEN fall short of what they need to make a successful transition to adult life”.
Those words come directly from the Green Paper.
I welcome the Government’s plans to extend support for young people with SEN up to the age of 25 through the proposed education, health and care plans in order to improve the support that young people receive during this difficult transition period. Cutting legal aid for this age group is inconsistent with the rest of government policy in this area. Therefore, I urge Ministers to accept this amendment to ensure that all young people with SEN remain, up to the age of 25, within the scope of legal aid. I beg to move.
Lord Howarth of Newport
My Lords, special educational needs is a particularly tortuous and difficult area of administration and, equally, for negotiation and representation. Young people with special educational needs are almost by definition ill equipped to represent themselves and to handle these difficult challenges on their own behalf. The system, at least in so far as children with special educational needs are concerned, provides very fully developed support, but there is something of a cliff edge beyond the period during which children are eligible for statements. While, admirably, the Government are seeking to improve the structure and quality of provision for special educational needs later on, it seems particularly unfortunate if, in this important area, they are to take away help for the very people they are otherwise seeking to improve their support for. Therefore, I hope that the Minister will find it possible to look sympathetically on the amendment in the name of the noble Lord, Lord Thomas, which was so well moved by the noble Lord, Lord Clement-Jones.
Baroness Browning
My Lords, I, too, support this amendment. My noble friend has exchanged correspondence with me on this matter. I support the points that have been made on the necessity to take into account the ability to obtain legal aid up to the age of 25, particularly for children with special needs. As my noble friend will be aware, the Young People’s Learning Agency, which took over from the Learning and Skills Council, has an obligation to meet the special needs of those who have not attained 25 years of age. Although the agency is being phased out, a general educational obligation will remain unless this Bill closes that gap. As my noble friend knows, if this is not dealt with, the alternative would be to bring cases under the Disability Discrimination Act, which is a very disruptive route for young people and their carers to have to go down. Therefore, I hope that this is just an anomaly and an oversight between two different government departments and that my noble friend will be able to reassure the House today.
Lord Phillips of Sudbury
My Lords, I shall speak in favour of Amendment 60, for which the noble Lord, Lord Ramsbotham, has made a strong case. I expect the Minister may say that, ipso facto, an abuse of power is unlawful. The problem is that if that is the argument, the way that sub-paragraph (6) is drafted apparently provides a complete definition of the phrase “abuse of power” in the context of paragraph 19, and the totality of that definition is in sub-paragraph (6)(a) and (b). It seems necessary to include the word “unlawful” although, as I say, it seems manifestly obvious that any public authority acting unlawfully is, by definition, abusing its power.
I would also be grateful if the Minister could tell us whether the word “deliberate” here means the same as “intentional”. I rather assume that it does, but some explanation is needed of why the normal terms—“intentional” or “with intent”—have been changed in this instance to “deliberate”. Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional? I hope that the noble Lord will refer to those points when he sums up. As I say, I am happy to support this amendment.
Lord Howarth of Newport
I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on the part of the citizen. Therefore, the amendment of the noble Lord, Lord Ramsbotham, would repair an omission in the drafting. Otherwise, it would be possible under the Bill as drafted for the public authority to say, “We did not realise. We did not mean to do this. It was not intentional. It was not done knowingly”. Or it could tell lies, but it will be caught that way. If the public authority said that it was sorry and that it had made a mistake of law, it certainly seems to me that the citizen ought to be entitled to some redress.
Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.
Lord Judd
My Lords, I, too, commend this amendment for very serious attention. In the economic pressures under which we are operating and which are very much a factor in everything we are considering under this legislation, it seems to me that this provision is another example of a heavy penalty falling on the most vulnerable and those in the worst possible psychological situation. Sometimes we need to break away from our legal preoccupations and think of the predicament of the individual. They go through an extraordinary nightmare in many of the circumstances that we are discussing. We are discussing an authority of the state doing something which is a denial of everything that the state says it is about. In our immigration and other policy, we expect people to give undertakings and to prove that they understand the culture of our society and why it matters. Here is a provision which is an absolute denial of what this country is about—the deprivation of liberty. I would have thought that if we realised such a thing had happened, we would fall over backwards to put it right and to give a positive indication of our disapproval of what had happened and our sympathy for the individual concerned.
I hope that I may be allowed to make a wider point. I sometimes think that in our preoccupation with specific legislation we fail to make connections. All the time we are worried about stability, terrorism and the appeal of extremists. However, this kind of thing plays into the hands of agitators who portray these issues as examples of the hypocrisy of our society. It is hypocritical for an agent of the state to do something that is a denial of what the state is about and for the state to give no assistance in making sure that the wrong is put right. A terribly important principle has been raised in this amendment.
Lord Wallace of Tankerness
It is an important point, which has been raised before in the context of the Bill. I think that Amendments 69 and 71 in the name of my noble friend Lord Thomas of Gresford—to which we will come, dare I say, sooner rather than later—raise the point about families of asylum seekers. I hope that when we come to that, we will have a proper debate on the important issue that my noble friend raises.
Lord Howarth of Newport
The Minister is defending the Bill’s drafting against the proposal of the noble Lord, Lord Ramsbotham, in Amendment 60. Is he therefore saying that if someone is the victim of a mistake by a public authority—not a deliberate mistake or one dishonestly intended but none the less an egregious error arising from ignorance of the law, which ought to be known by the people working in the public authority—there is to be no legally aided redress for the citizen, even if the harm is considerable?
Lord Wallace of Tankerness
As I said to my noble friend Lord Phillips, the Bill does not include negligent actions of a public authority. I made very clear that it is intended for the serious-end range of abuse of power and the harm that results. It is not intended to include all that lies by way of negligence.
Lord Howarth of Newport
Will the noble and learned Lord consider very carefully whether he is really content that through the Bill the Government are in effect carving out a significant area of immunity for their agents where they might have acted incompetently or irresponsibly—not deliberately or dishonestly but incompetently and irresponsibly—and, in so doing, have caused considerable damage to individuals? In stipulating that legal aid should not be available to enable individuals to secure redress and damages in such a situation, surely the Government are acting to protect themselves in a way that is simply wrong when one considers what the proper relationship between the state and the individual should be.
Lord Wallace of Tankerness
My Lords, at the risk of repetition, I have already said that numerous routes within scope, other than a damages claim, might be open to an individual and might be even more appropriate in addressing the situation where a public authority or the state acts in a way that the individual citizen wishes to challenge. Indeed, as I have indicated, other means, such as conditional fee agreements, might also be appropriate in some cases that are not at the serious end.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 3 months ago)
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Lord Pannick
My Lords, I support the noble Lord, Lord Butler of Brockwell. Your Lordships will not want to hear lengthy Second Reading speeches at this stage, but it needs to be understood that because this House and the other place have disagreed twice, the Government are obliged either to accept our amendments, lose the Bill, or produce a variation—what Erskine May describes as “alternative proposals”. The procedure is designed to ensure that the Government and the Commons cannot simply ignore what we have decided. Your Lordships have heard what the Government have produced by way of alternative proposals: that there should be a committee which will not begin its consideration for another nine years. That is not so much kicking the issue into the long grass, the phrase used by the noble Lord, Lord Butler, as burying it in a time capsule. The authors of “Yes Minister” would have regarded it as lacking in credibility to suggest, even in a work of fiction, that a Minister should solve a problem by setting up a committee which would begin its work in nine years’ time.
The Minister suggested that there is some constitutional novelty in the provision approved by noble Lords, but many legislative provisions have attracted such a procedure: there is the need to consider each year whether to maintain the late and unlamented control order system; and Parliament requires that the Armed Forces Act be reconsidered every five years. The Minister suggested that the House should accept the views of the House of Commons and that we should go quietly into the night on this issue. He emphasised that we are a revising Chamber and that we cannot challenge the will of the elected House. But the relationship between this House and the other place depends on the other place and, indeed, the Government taking seriously the concerns we have expressed.
The response of the Government and the other place to our amendments is simply derisory, and it is intended to be so. The Commons and the Government are not listening to or engaging with your Lordships’ House, and I regret that. Just as the Government introduced this legislation without bothering to consult anyone or to adopt any pre-legislative scrutiny, they are now rejecting the views of this House without bothering to listen to and engage with us. We should ask the House of Commons to think again on this matter.
Lord Howarth of Newport
While I appreciate the constructive response that the Minister gave to the proposals by this House to redraw Clause 2, I have to say that the Government’s response to the Motion spoken to so well today by the noble Lord, Lord Butler of Brockwell, is not only inadequate, it is indeed contemptuous. Whether we talk of long grass, time capsules or the deep freeze, it simply will not do. The seriously considered advice of your Lordships’ House ought equally seriously to be considered by Ministers and by the other place. It should not be dismissed with reflex reactions. That is a matter of constitutional principle.
It is also a matter of constitutional principle that legislation that proposes constitutional change should be subjected to ample and early consultation, through a Green Paper, through full preliminary debate—debate outside this House across the country, as well as within Parliament—and then to a White Paper before legislation is introduced to Parliament, let alone being voted on in a whipped vote. I add that in my view it is questionable whether it is suitable for constitutional legislation to be subject to the Whip.
The Government actually agree, or say they agree, that pre-legislative scrutiny is a good thing. In its report on the process of constitutional change, the Constitution Committee of your Lordships’ House—the noble Baroness, Lady Jay, who chairs it, is in her place—described the process that is appropriate for the consideration of proposals for constitutional legislation, and explained the importance of that process being followed. Indeed, in its report it actually quoted its own report on the Fixed-term Parliaments Bill, in which it had said:
“Process is critical in terms of upholding, and being seen to uphold, constitutional values: particularly those of democratic involvement and transparency in the policy-making process. Moreover, we believe that a proper process is the foundation upon which successful policy is built: the lack of a proper process makes an ineffective outcome more likely”.
There was no good reason why a proper process was not adopted by the Government for this legislation. There was no genuine hurry to get this legislation on to the statute book. It did not need to be done in the first Session. But the Government neglected to follow due procedures. During our proceedings a very good case has been made by noble Lords on all sides of the House that legislating to introduce fixed-term Parliaments, and particularly Parliaments fixed for a term of five years—which means that general elections will occur less frequently in the future than they have in the past—contrary to the Government’s professed intentions, would reduce the accountability of the Executive to Parliament, not increase it. It would impair our democracy, not enhance it.
We should, therefore, insist on the amendment that we have already sent to the other place twice. This would be the third time. That is relatively unusual, but the Constitution Committee, again in that same report on the process of constitutional change, observed that,
“constitutional legislation is qualitatively different from other legislation”—
and I believe there is a very good case for this. As the committee also pointed out, there is a lack of checks and balances to prevent a Government armed with a majority in the House of Commons from changing the constitution of this country more or less at whim. This House should seek to act as a check and a balance, as well as we can, on issues of such importance as this.
An appropriate process was not followed by the Government. This constitutional legislation is highly contentious; it would introduce a major innovation into our constitution. It is the responsibility of your Lordships’ House to be vigilant to safeguard the constitution. It is entirely right, therefore, that we should adjure the House of Commons to think again.
The amendment that we have already twice sent to the other place provides a convenient and practical means whereby subsequent Parliaments should have the opportunity to judge whether indeed they wish each new Parliament to be fixed for five years, or whether they judge it preferable to revert to the historic arrangements that we have had in this country, of flexibility in terms of the date of the election within five years, which has enabled government and Parliament to be responsive to political reality in all its unpredictability, and to be more accountable to the people.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 5 months ago)
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Lord Howarth of Newport
My Lords, the noble Lord, Lord Butler of Brockwell, has set out fully and powerfully the case for your Lordships’ House to insist on these amendments. Nevertheless, I would like to say a few words in support of the excellent case that he has made. I do think that it would be right to ask the other place to think again. I do not think that it had the opportunity to consider this legislation properly when, in the new Parliament, it was sent sailing through—if I may put it this way—a very inexperienced new House of Commons.
The Bill was only hastily examined by the Political and Constitutional Reform Committee; I do not criticise the committee for that because it had all too little time between the publication of the Bill and the date of Second Reading that the Government had scheduled very early on indeed. It was then rather perfunctorily examined in the Chamber of the House of Commons before it came to this House. The other place should have looked at it much more carefully. After all, among our powerful objections to the legislation as the Government presented it was that the Government were playing fast and loose with the role of the Speaker and with parliamentary privilege, matters that surely one would have expected the House of Commons to ponder and take very seriously, but it did not and the legislation went through quickly.
This is not the moment to rehearse again all the flaws in this Bill, but, as we bottomed out the issues that the Bill gives rise to in our proceedings here, it became more and more evident that it was bound to be a bad Bill because it was seeking to give legislative force to a bad idea. It was addressing a non-problem. There is no evidence that there has been abuse by successive Prime Ministers of the right to choose the date of the next election or that the country has suffered because successive Prime Ministers have exercised that right. I do not think that the “will he, won’t he” issue that Mr Harper made so much of in the other place is a serious problem, and I do not think that the country considers that it is.
This legislation was dressed up as a project to reduce the power of the Prime Minister and increase the accountability of government to the people, but it did not do that. In fact, it did exactly the reverse. It secured for this Prime Minister the assurance of a five-year Parliament and bound the coalition, however unhappy the marriage, into a five-year Parliament. Far from increasing accountability, it reduced the frequency with which electors can be expected to have the opportunity either to throw the Government out or to renew their term at a general election.
The typical interval between general elections in most of the 20th century was, we are told, some four years. By extending the term of Parliament rigidly to five years, without allowing the sensible pragmatic flexibility that our unwritten constitution has hitherto permitted, the legislation would make Governments and Prime Ministers less accountable to Parliament, not more.
The measure would still have been bad in principle, but it might have been somewhat less objectionable had the Government accepted the amendment tabled by my noble and learned friend Lord Falconer of Thoroton to reduce the fixed term from five years to four years. However, the Government saw no merit in that, no doubt because they were very worried that the consequences of their fiscal nihilism and the misery and waste that their policies are causing will not have been forgiven, or anywhere near forgiven, in a mere four-year term.
The amendment that your Lordships passed and which built a sunset clause into the Bill was the best damage limitation that this House was able to offer, because we rightly have a convention that we do not reject government legislation at Second Reading. The noble and learned Lord, Lord Wallace of Tankerness, and his ministerial colleague in the other place, Mr Harper, have raised various objections to the amendment that we passed, but they seem to me to be quibbling amendments. None of them creates such difficulty that, had the Government been willing to accept the advice of this House, they would not have been able to refine the legislation to deal with those problems.
We could certainly have thought about whether your Lordships' House should approve an order under this legislation in a normal way. An argument could have been mounted that it would not be appropriate for your Lordships' House, unelected as it is, to decide itself whether the fixed-term provisions of this legislation should have been renewed, although I am attracted to the argument made by the noble Lord, Lord Butler of Brockwell, on that point. Issues such as the royal prerogative or the exact stage in the new Parliament in which the vote on the order might take place could have been sorted out consequentially had the Government been willing to accept the advice of your Lordships.
Nor am I impressed by the argument about consistency. Just because we have not proposed that we should undo the fixed terms for the Scottish Parliament or the Welsh Assembly, which are being extended under this legislation, it does not follow that we should not seek to amend the provisions relating to the Parliament at Westminster. A constitution benefits from sensible anomalies; a constitution that is pragmatically designed and evolves to take account of the political realities in different places at different times stands a much better chance of working successfully.
I appreciated the fact that the Government accepted some of the amendments that we passed in this House. They should, after all, surely accept this provision. It is simple and effective, and would give the House of Commons the opportunity, after the experience of this five-year Parliament, to confirm or not to confirm that a fixed-term Parliament would be a permanent arrangement. It would, in effect, be an exercise in post-legislative scrutiny. It seems to me that the Government would do well, in the light of experience, to have the modesty to allow reconsideration of a very contentious and experimental piece of legislation such as this, in the convenient way that the amendment provides for.
As the Minister has emphatically reminded us this afternoon, it would be open to the new Parliament—or, indeed, to this Parliament should the coalition fall apart within five years, which is not at all inconceivable—to repeal the legislation. It is, however, much more of a performance to repeal, whether in this Parliament or at the beginning of the next Parliament, because it involves all the long drawn-out processes of primary legislation to achieve in essence the same as your Lordships’ amendment would achieve. In all events, one way or another I hope that Parliament will get rid of this footling and misguided piece of constitutional tinkering.
Lord Howarth of Newport
I said there was no evidence of this power having been abused. Indeed, would not the noble and learned Lord agree that Prime Ministers who have attempted to string things out, who have dithered, hesitated and dragged out the life of their Governments until the last possible moment, have usually been heavily punished by the electorate for doing so?
Lord Wallace of Tankerness
Prime Ministers have tried to divine the times to see when would be the best time to call an election. Indeed, in an earlier debate I quoted from the book of my noble friend Lord Lawson, The View from No. 11: Memoirs of a Tory Radical. He said about the then Prime Minister, now the noble Baroness, Lady Thatcher:
“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.
In other words, a partisan political judgment was clearly being made. As my noble friend reminded us, in September/October 2007, Mr Gordon Brown did a calculation in the third year of that Parliament as to whether or not it would be in his party’s best interests to go to the country. There is more to this. The power that the Prime Minister is giving up as a result of this Bill, as noted by the noble Lord, Lord Hennessey, at Second Reading, is important.
The noble Lord, Lord Butler, said that it was not much of a power, and then he said that no Prime Minister would have a straight face in trying to reverse the situation in the future. He is absolutely right. If a fixed-term Parliament became law, it would be very difficult for someone to come before the House and say that they wanted to revert to the position where the Prime Minister could choose the date of the election because of party advantage. They would get pretty short shrift—it would be difficult to do—but no one denies that, constitutionally, it is perfectly possible. It would be perfectly proper for them to seek to do it and to argue their case. However, my point is that they should do it by proper means through primary legislation and not in the way proposed by the amendment to the Motion.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 7 months ago)
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The Lord Bishop of Chester
My Lords, briefly, I support the noble Lord on his amendment. I do not think that the constitution, or even our politics, is broken, but a certain amount of damage has been done. In my lifetime I have seen a tendency for participation rates in voting to fall, along with an increasing sense of weariness with modern politics and disrespect for politicians. I am on the record as saying, when the Constitution Committee published a report on referendums last year, that there is a place for them in building confidence. Interestingly, the participation rate in the recent referendum was really rather encouraging. It was higher than we thought it would be in the lead-up to it. A cautious but proper rediscovery of the place for referendums has a part in rebuilding political life in this country.
More substantially, I should like to try a thought experiment on your Lordships. Let us imagine that we had a Bill before us that proposed to extend the life of a Parliament from a normal term of five years to six years. Would we think that that required a referendum? We would probably think that it did because it would extend the maximum term from five years to six, but in practice we are going to extend the length of Parliaments by an average of about a year. Why is this not an issue on which there should be a referendum?
Lord Howarth of Newport
My Lords, I agree entirely with those who have just spoken that it would be helpful to the House—indeed, I think it is a necessity—that some clear principles should be articulated as to when a referendum would be appropriate. I understand the case for referenda on major constitutional issues. After all, the constitution is the property of the people and not of us as parliamentarians. If significant aspects of it are to be changed, there is a strong case for saying that they should be changed only with the permission of the people. However, I invite the House to consider the proposition that every significant constitutional change that we have seen over the last several decades has diminished the centrality of Parliament in our constitution. Whether it has been accession to the European Union, devolution or the development of the practice of holding referenda, we can see in all these instances that the capacity of the Parliament of the United Kingdom to take the major decisions that the people of the United Kingdom elected it to take has diminished. So before we express enthusiasm for the proliferation of referenda—perhaps no noble Lord wants to see their proliferation, although we should note that the European Union Bill seems to offer the scope for at least 57 varieties of them—we should consider what this may mean for the centrality and the character of Parliament in our national life.
Lord Reid of Cardowan
My Lords, I thank my noble friend for giving us an opportunity to speculate on the nature and the circumstances that might make it imperative to hold a referendum. It is unreasonable to expect the Minister to respond in definitive terms, and I do not think that we would necessarily push for that tonight; but it is reasonable to expect two things. The first is that the Minister, who as noble Lords have said has been more than reasonable in his attempts to respond to and clarify some of these issues, should attempt to answer the point. Secondly, he should consider some of the criteria that might compel a referendum on subjects the nature of which we are now discussing. He might like to consider, for instance, that one of the elements that would compel a referendum would be on subjects that are closely related to those which have recently been the subject of a referendum, and when the course being proposed by the Government would, in effect, alter that decision of the people in some incidental fashion.
Hypothetically, the people could resoundingly decide to reaffirm first past the post as an electoral system. If there was then any suggestion of a move by either Chamber of Parliament to reject it, obviously that could not be done, especially in the wake of an overwhelming decision to reject the system of alternative vote. If any attempt was made by either Chamber of this House to change that decision, perhaps by putting it through Parliament itself, it would be an outrage. If it was good enough to do it by referendum in the first place, it is good enough to do it in the second place. It is no argument to say, “We did not like the result the first time around, and so we will change the system”. That is partly why the alternative vote was rejected. Therefore one of the criteria might be that there has been a recent vote on a subject.
A second criterion might be that something was a fundamental part of the British constitution, such as the voting system itself. It would appear from past experience that that requires a referendum. That might be the second criterion which a priori we would suggest would require the people to be consulted. A third criterion might be a fundamental change in the constitutional arrangements for the governance of the United Kingdom, such as the abolition of one of the two Houses of Parliament. As the noble Lord, Lord Cormack, said, we might speculate that we will have a proposal before us not for the reform of the House of Lords, but effectively to abolish it and replace it with a senate. I leave aside the substantial arguments as to whether this is taking place in the context of, whether intentionally or otherwise, the other House having been denigrated. I merely point out that abolishing a House of Parliament would be a major and fundamental constitutional change and therefore might be a subject for the Minister to consider as one of the criteria I have mentioned.
A fourth criterion would be the complete and fundamental diminution of the powers of one of the Houses of Parliament. I speculate again that if, for instance, we were to create a senate whose representatives were elected by, say, proportional representation, that would hugely diminish the powers, status and role of the other place. That is because the other House is only powerful relative to the second House of Parliament under the British constitution by virtue of the fact that the latter is constrained to scrutiny. If the second House were to add democratic legitimacy to its perceived wisdom and maturity, especially using a system that some people claim is more democratic than first past the post, that could not but diminish the powers of the House of Commons.
Finally, if each one of these criteria was an a priori reason for holding a referendum, we must conclude that any move to bring forward measures to change our constitution that included all the criteria—an electoral system that had already been put to the people, a proposal to abolish a House of Parliament and diminish the rights of the other House by the restoration of a new second House—would mean that they would be compelled to include in any legislative proposals an assurance that there would be referendum on them all. I shall give way to my noble friend.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 7 months ago)
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“Early parliamentary general elections
(1) An early parliamentary general election is to take place if—
(a) the House of Commons passes a motion in the form set out in subsection (2), and(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).(2) The form of motion for the purposes of subsection (1)(a) is—
“That there shall be an early parliamentary general election.”(3) An early parliamentary general election is also to take place if—
(a) the House of Commons passes a motion in the form set out in subsection (4), and (b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).(4) The form of motion for the purposes of subsection (3)(a) is—
“That this House has no confidence in Her Majesty’s Government.”(5) The form of motion for the purposes of subsection (3)(b) is—
“That this House has confidence in Her Majesty’s Government.”(6) Subsection (7) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.
(7) If a parliamentary general election is to take place as provided for by subsection (1) or (3), the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister (and, accordingly, the appointed day replaces the day which would otherwise have been the polling day for the next election determined under section 1).”
Lord Howarth of Newport
My Lords, the new clause inserted by Amendment 20 would replace the existing Clause 2. It is focused on three purposes. It removes from the Bill as received from the other place ambiguities and vagueness about what is a Motion of no confidence and what is a Motion of confidence. It protects the Speaker of the House of Commons by removing him from the process of determining what is a Motion of no confidence or a Motion of confidence, and it improves the protection of parliamentary privilege. I see it as an exercise in damage limitation.
This new clause, unlike other new clauses tabled by noble Lords to replace Clause 2, makes no other changes to the Bill. It would do nothing to thwart the essential purposes of the Government in the Bill. It retains the two-thirds provision and the 14-days provision which the Government want. I have made plain in other debates that I do not like these provisions and, indeed, I think the whole undertaking of this Bill to establish fixed-term Parliaments is a bad idea, but in this House, presented with the will of the House of Commons, those of us who do not like it have, I fear, to accept that it is a bad idea whose time has come.
If the House accepts the new clause unamended, the legislation will, I submit, provide for the principles that the Minister told us in Committee the Government wish to establish. He said that,
“within a context of having a fixed term, there should nevertheless be a mechanism to trigger an early election if there has been deadlock in the other place, if a Government lose confidence, and if no Government can be formed who maintain confidence. There is an argument for having consensus about Dissolution and proper provision being made for it, as well as for trying to minimise the potential for abuse of the trigger on the part of the Executive and to get clarity as to what constitutes a vote of confidence. There may well be circumstances in which a vote of no confidence does not necessarily have to trigger a general election. How do we clarify those circumstances in a way which is acceptable? These are the general principles and issues which I want to put flesh on”.—[Official Report, 29/3/11; col. 1215.]
I believe that this new clause is also consistent with the conclusions of your Lordships’ Select Committee on the Constitution. I am most grateful to the noble and learned Lord the Minister and his colleague Mr Harper for meeting me and the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin and the noble Lord, Lord Pannick, who have put their names to the new clause. Of course, I have drawn enormous encouragement from their doing so. The Minister was characteristically courteous and constructive at the meeting. In light of our productive discussion, the new clause we originally tabled was somewhat redrafted and improved. I was delighted when the Minister added his own name to the new clause.
Clause 2(2) as drafted—concerning Motions of no confidence and Motions of confidence—contains problematic ambiguities and vaguenesses. These were helpfully described by Dr Anne Twomey in her written evidence to your Lordships’ Select Committee on the Constitution, at paragraphs 4.11 and 4.12 on page 152 of the compendium of written evidence. Such ambiguities do not matter where constitutional procedures are not statutorily prescribed. Indeed, they may be beneficial as they allow the determination of who is to be the Government to happen in response to fluctuating political realities. But in a statutory system, they are dangerous, creating a combination of uncertainty and inflexibility.
To the observations made by Dr Twomey, I would add that there is a further crucial vagueness in Clause 2 as drafted, in that there is no legal definition either already in existence or provided by the Bill as to what is a Motion of confidence or no confidence. The reason why this is so crucial and dangerous is that, as the Bill stands, it could in some circumstances lay the onus of interpretation, and therefore of decision as to the fate of the Government and whether there is to be a general election, on the Speaker. Although in some instances it would be entirely clear from the wording of the Motion that the vote was a confidence or no confidence vote, it would by no means necessarily be so. As the invaluable brief from the Library of the House of Commons says:
“Yet, despite their central importance, there is no certainty about the rules on the form and applicability of confidence motions in the UK Parliament, as it is established by convention rather than by statute or standing order of the House … There is no standard formulation for confidence motions”.
Motions may be regarded as Motions of censure or confidence according to particular circumstances. A Motion to reduce a Minister’s salary was regarded as a confidence Motion in 1895. Motions in two debates on Suez in 1956 were regarded by the House of Commons as confidence Motions, though neither the substantive Motions nor the amendments were formulated as Motions of no confidence or Motions of confidence. In 1976, an adjournment Motion was treated as a confidence Motion following the defeat of the Government on their public expenditure White Paper. In 2003, Mr Blair made clear only after the debate and the vote that he regarded the vote on the Iraq war as a confidence vote. It is very hard to see how the Speaker could possibly have issued a certificate in some of these situations.
Under our existing arrangements, it is for the Prime Minister and the House of Commons to judge whether a Motion is a matter of confidence. Under the system that the Government have hitherto proposed, it would be for the Speaker. This, as the noble Baroness, Lady Boothroyd, explained to us compellingly in Committee, would be a major extension of the Speaker’s role and could be a very dangerous one. It could politicise the role of the Speaker, requiring the Speaker to decide a supremely contentious, vexed and fraught political issue. In Committee, the noble Lord, Lord Martin, described the vicious pressures that could be expected to be brought to bear on the Speaker in such circumstances. If the Speaker were perceived to have taken sides, his reputation as a servant of the whole House and his reputation for impartiality and integrity could hardly survive. Not only would the reputation of the individual Speaker suffer, but at a time when we all desperately want to see the reputation of Parliament regained, it would also affect the very office of the Speaker, which personifies the institution of the Commons. The new clause therefore omits the requirement for the Speaker to issue certificates. I am very pleased to see that none of the amendments now on the Marshalled List relating to Clause 2 seeks to preserve the requirement for the Speaker to issue certificates.
Lord Howarth of Newport
Does the noble Lord recognise that there could be a legitimate concern since he provides that an early general election is also to take place if, on a specified date, the House of Commons has negatived a Motion that this House has confidence in Her Majesty’s Government? Does that not provide too tempting an avenue for the Prime Minister to contrive a vote of confidence, and to contrive to lose it? The noble Lord spoke earlier of the need to avoid exploitation; this is trying to do that.
Lord Norton of Louth
The noble Lord anticipates what I am coming on to. That is what I want to deal with. That is my whole point about this question. I know that some noble Lords would find it attractive if we undermined the Bill in this respect. However, if we proceed on the basis of what the Bill seeks to achieve, we need to identify any provision that could be exploited by the Government. The amendment that comes closest to being foolproof in this respect is Amendment 20 in that, apart from an early election Motion, the only way to trigger an election is through the House passing a Motion of no confidence in the Government. As the noble Lord touched on, there is no provision for the Government to move a Motion of confidence and then invite their own supporters to vote against it, as has happened in Germany and could, as he says, happen under my amendment and that of the noble Lord, Lord Armstrong.
A Government could also trigger an election under Amendment 22ZB by the Prime Minister declaring any Motion one of confidence and ensuring that government MPs voted against it or stayed away to ensure that it was defeated. However, Amendment 20 is not completely foolproof. There is no restriction on who can table a Motion of no confidence. It could be tabled by a government Back-Bencher, possibly at the behest of the Prime Minister, thus enabling the Government to engineer their own defeat. The amendment of my noble friend Lord Cormack provides that a Motion of no confidence may be moved only by the Leader of the Opposition. That may be deemed unduly restrictive, but it prevents the provision being used by the Government for their own benefit—the very point that the noble Lord, Lord Howarth, mentioned.
However, although my noble friend’s amendment deals with what some may see as a loophole, it introduces a loophole of its own. Under subsection (1)(b), a Prime Minister could simply resign, and, if the Opposition take over, move a vote of no confidence—the outgoing Prime Minister presumably assuming the mantle of Leader of the Opposition—or deny them the opportunity to govern by voting down whatever they bring forward.
In short, each amendment has its merits, though none is ideal in terms of the criteria that I have adumbrated. That is more or less bound to be the case given that the criteria are not necessarily compatible. We are moving away from seeking to retain the existing conventions in favour of greater certainty.
My amendment seeks to provide for all, or at least more, eventualities than that covered by the amendment in the name of the noble Lord, Lord Howarth, and to enable the Government to seek the confidence of the House. As I say, I appreciate that may be open to abuse by a Prime Minister, but the risk has to be offset against the value of retaining the existing practice.
I commend my amendment to the House but do so in the recognition that the ideal may not be one of these amendments but one drawn from what is before us. The amendment in the name of the noble Lord, Lord Howarth, to which my noble and learned friend the Minister has added his name, is certainly a massive improvement on what is in the Bill. We may be able to tweak it further, but our deliberations on the clause show what can be achieved through debate and constructive discourse. If we are not quite there, we are very close.
Fixed-term Parliaments Bill
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Lord Howarth of Newport
My Lords, I congratulate the noble Lord, Lord Pannick, and his hugely distinguished co-signatories, on the amendment. It is elegant, precise, effective and clever. I am very attracted to it, because I take the view that the principle of fixed-term Parliaments is misguided. The more I have listened to debates on the subject in your Lordships' House, the more convinced I have become that the course on which the Government have set themselves is ill judged and will be damaging. Fixed-term Parliaments are anti-democratic and reduce accountability. Moreover, there is no evidence of public dissatisfaction with the state of affairs that we have. It is a good maxim in constitutional matters that if it ain't broke, don't fix it.
In this unelected second Chamber, we accept—often with reluctance—that we should not oppose the central purposes of government Bills and should not vote them down at Second Reading, particularly if they are sent to us after being endorsed by the elected Chamber. Therefore, this House has conducted itself with restraint and responsibility. The beauty of the amendment that the noble Lord moved is that it would allow the coalition to achieve its political purpose of providing an arrangement whereby the two parties are handcuffed together for the duration of this Parliament, giving themselves a five-year term or a very good chance of one. The noble Lord spoke of the possibility of the coalition ending in tears. It has already reached the stage of curses and maledictions such as I can rarely, if ever, recall in politics, but we cannot be certain that it will not totter through the full five-year term. However, it is not respectable for the coalition Government to hijack the constitution for their political convenience.
The amendment provides the opportunity for a subsequent Parliament to prevent the constitution being damaged in perpetuity. It would allow the next and subsequent Parliaments to reconsider the principle of a fixed term, or to reconsider particular features of the legislation such as whether four years or five years is the right length for a fixed term, or whether the two-thirds or 14-day provisions should be retained, in the light of the experience that by then we as a country shall have had, and not just in the light of preconceptions or deals put together for short-term political advantage. In that sense the amendment offers the possibility that the whole experience of this Parliament—here in both Houses of Parliament, and the experience in the country—would effectively provide an opportunity for pre-legislative scrutiny, because the opportunity would be provided for the legislation to be revisited and approved or not approved at the beginning of a subsequent Parliament. I think that the amendment would not permit future amendments to the legislation: it would either have to be accepted as a whole or rejected as a whole for the Parliament to come. However, I do not worry too much about that because, as I say, I am not in favour of fixed-term Parliaments and I am not sure that trying to patch the legislation would make it any more acceptable.
I do have a worry that it would be too tempting—too attractive—to an incoming Prime Minister armed with a good majority, or to a coalition which had patched together a majority, to seize the opportunity to assure themselves of another five-year term. That possibility would be fairly seductive. So I worry that the vote at the beginning of a Parliament which would be provided for by the legislation if it were amended as the noble Lord has proposed, would become like other ritual Motions which are passed in the opening Session of a Parliament. None the less, I think that this is an attractive and a good amendment. To me, it is preferable to the options that we have considered in the three previous debates this afternoon. I very much hope that the House will pass it.
Baroness Boothroyd
My Lords, this is the Bill’s first outing in this House since last week’s referendum, so I think we are entitled to take stock of the coalition’s position in the light of the electorate’s aversion to radical reform. Clearly, as the noble Lords, Lord Cormack and Lord Grocott, strongly said before we opened the Report stage today, the referendum casts fresh doubt on the wisdom of persisting with major constitutional measures that lack popular support. Ministers have changed tack on the timetable for this Bill before, and I suspect there would be few tears shed on the Conservative Benches if they took another look at it even at this late stage. However, we have to proceed and we have to deal with what is before us this afternoon.
I imply no criticism when I observe that the new politics that the coalition claimed to represent in its early days has lost a bit of its sheen. Ministers would be wise to take account of reasoned objections in this House to some of the Bill’s more doubtful features. It is in the light of this that I support and commend the amendment moved so ably by the noble Lord, Lord Pannick. The amendments in this group do not challenge the Government’s intention to hold the next election in May 2015 or 2014, whatever may finally be decided. Nor do they challenge the Government’s proposal to introduce legally binding procedures to make an early election unlikely. However, as currently written, this legislation goes much further than the lifetime of this Parliament in a way that I believe is unwise and unjustified. This legislation seeks to bind future Parliaments to the same legal restraints intended primarily for the lifetime of this coalition Government and this Parliament. These restraints are destined to last “henceforth” according to Mr Clegg, the Deputy Prime Minister.
I understand perfectly the coalition’s wish to serve for a fixed period of years, to tackle the current economic situation and to see that its programme is enacted. However, I reject the same imposition being placed on the freedom of action of future Parliaments, and this will be the situation without these amendments. Without them, the constitution is being blighted permanently and unnecessarily. The amendments allow future Parliaments to accept or reject the Bill’s provisions after every election as they see fit and to do so by means of a resolution of both Houses. Mr Clegg disagrees with me on this: we disagree on a number of things, but certainly on this. Last year, he described the Bill as,
“a constitutional innovation of significant proportions”.
He argued that it would be “bizarre” to confine it to one Parliament. These amendments do not propose that it should be left to one Parliament only. Importantly, they propose that future Parliaments should decide for themselves.
We know that countries with written constitutions have the kind of entrenched laws that the Deputy Prime Minister appears to want—but Britain is not one of those. The Government would do well to remember that. As far as I can recall, at the last election the country did not exactly clamour for fixed five-year Parliaments. If I interpret the public mood correctly—as did the noble Lords, Lord Grocott and Lord Cormack, with whom I entirely agree—people in this country want honest politics. They want good government and greater scrutiny of what Governments are doing in their name. They do not want an assortment of ill considered proposals to turn Parliament upside down to suit a political elite.
Your Lordships will not be surprised to know that I do not regard this legislation with great affection at all. In fact, I believe it is quite unnecessary. This House is charged with the responsibility and the role of examining legislation and scrutinising it. As a Member of this House, I reckon I have to make the best of what I think is a very bad job. The amendments before us today would preserve the freedom of future Parliaments to face their own challenges in their own way and in the circumstances of the time. I strongly support them and hope that many of your Lordships will do likewise.
Fixed-term Parliaments Bill
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Lord Norton of Louth
My Lords, I had not planned to speak on this but, reflecting on what has been said, I am rather torn. I accept the logic of what the noble Lord, Lord Grocott, has said—I think that the argument he has advanced is impeccable—but I am reflecting on the value of the sessional cut-off, keeping it to a year, as has been advocated. It is quite right that the sessional cut-off is a discipline on the Government and it gives some leverage to the Opposition—capital “O”, and sometimes small “o”—because of the pressure. I am not sure that compression within one year as the length of the Session necessarily benefits Parliament, because legislation has to be got through in that time and it limits the two Houses in the amount of time they can devote to deliberation in Committee. In the Commons, there is a problem now with Public Bill Committees, because there is very little time between taking evidence and having then to consider the Bill in the normal way.
I am just reflecting on the fact that, while I accept the logic of what the noble Lord has said, maybe we need to think a little more imaginatively about how long each Session actually lasts. In a five-year Parliament, maybe we should think about a three or four-Session Parliament. There needs to be some discipline, but one has to try to get the balance on that right. I am grateful to the noble Lord, Lord Grocott, because he has prompted me to think about that. We perhaps ought to reflect a little more seriously about it; there is a problem with the nature of rushed legislation of this sort, when perhaps we should be sitting back and thinking a little more constructively about how we want our Parliament to be run to the benefit of Parliament. As I say, there is that balance to be met between giving leverage to the Opposition and benefiting Parliament so that it has proper time to thoroughly scrutinise what the Government are bringing forward.
Lord Howarth of Newport
I suppose we could do what the Scottish Parliament does, which is to have no sub-division into annual Sessions within a four-year term—apparently shortly to be a five-year term in the Scottish Parliament. I think that we should either go the whole way in abolishing parliamentary Sessions and having some kind of continuing, rolling process of legislation, or have a rational, predictable, orderly division of the time available in a Parliament.
The amendment in the name of my noble friend Lord Grocott should not be necessary. It is clearly undesirable to legislate on internal proceedings in Parliament, but we have been driven to it by the behaviour of the coalition Government in awarding themselves a two-year Session in which they should have been able to get anything at all through. Their potential abuse of parliamentary strength has been mitigated only by their incompetence in failing to take advantage of the situation that they created for themselves. In the early months of this Session, we had almost no legislation introduced; we then had an immense amount of time spent on constitutional legislation, which the public did not want, culminating in the fiasco of the AV referendum. We now have the pause in the NHS legislation. I am given to understand that there are going to be new Bills introduced at Second Reading this summer, so that even with a two-year Session, they may run out of time to complete their programme; it really is pretty chaotic.
My noble friend does the House, and indeed Parliament, a service in drawing attention to this consideration. While I would not wish to see his amendment get on to the statute book, he very properly challenges the Government to think carefully about how they handle proceedings within this House. I do not want a written constitution but I want respect for the unwritten constitution.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Grocott, for affording the House a further opportunity to consider and scrutinise this point, which, as has been indicated, he first raised in Committee. At that point I indicated that the two-year Session that we are currently in was intended as a transitional situation so that we could get into a position where we had 12-month parliamentary Sessions that fitted in, should Parliament pass a fixed-term Parliament Act.
I draw your Lordships’ attention to the Written Ministerial Statement made by my right honourable friend the Leader of the other place, Sir George Young, on 23 March. He reiterated the Government’s decision to extend the current Session of Parliament to spring 2012,
“in order to ensure a smooth transition towards five, 12-month Sessions over a Parliament, which would be a beneficial consequence of Parliament agreeing the Fixed-term Parliaments Bill”.—[Official Report, Commons, 23/3/11; col. 57WS.]
I hope that the House and the noble Lord will be assured that it is our intention that there should normally be five Sessions in a five-year Parliament. While the expectation is that future Sessions will last for 12 months, it remains inappropriate to enshrine that in statute; indeed, I think that I understood the noble Lord himself to indicate that he would prefer that working practices and conventions were not enshrined in statute. It is our intention that in future Parliaments there should be five 12-month Sessions.
In the Bill we have sought to do only what is necessary to establish fixed-term Parliaments for the United Kingdom. I am not convinced that the case has been made for legislating for the number of Sessions. The Bill does not abolish the prerogative power to prorogue Parliament, which will continue to be used to set parliamentary Sessions, nor does the Bill affect the powers of each House to adjourn. It is worth noting that the Constitution Committee has endorsed our decision not to abolish the prerogative power to prorogue.
Future Sessions after this one will last for only 12 months. The noble Lord asked me about the points that I made in Committee. When I talked about truncating this Session, that was on the basis that, as he acknowledged, when elections have been held in May or June it has been customary for that first Session to continue through to the following October or November. To have had a Queen’s Speech around now would therefore have meant truncating what had been expected at the outset.
I have made it clear that the decision to go for two years and thereafter to have 12-monthly Sessions was taken not in May last year but at a later stage. I am not aware that there was any consultation—I accept that criticism—but this was intended to be a transitional measure. By that stage, the Government’s legislative programme had been announced and it would have been very difficult if we had moved immediately to a 12-month Session for the first Session, although that could have been done if it had been thought about at the outset. I hope that the House will accept that that is the purpose of this being a two-year Session. It is not intended that this should be repeated. My right honourable friend the Leader of the other place has indicated that it would now be our intention to move to five 12-month Sessions in a Parliament.
I take the point made by my noble friend Lord Norton about this always being in the interests of Parliament. My experience in your Lordships’ House in the run-up to the most recent general election is that, with the final Session starting in November and finishing in March in order to accommodate a May election, we have tended to have a short Session that I do not believe allows proper scrutiny of legislation. This led to a very unfortunate situation in the wash-up where large parts of Bills were ditched, some of which are now on the statute book but certainly did not have the kind of scrutiny that we would normally expect. Having five 12-month Sessions will allow for proper planning of legislation. While it would be unwise to say that there will never be any kind of wash-up at the end of the final Session, one hopes that there will be far less than has been the case hitherto. One of the advantages of a fixed-term Parliament is that it will be possible to plan a legislative programme in a way that will not lead to these log-jams at the end, when much legislation is virtually nodded through.
The decision having been taken to move to fixed-term Parliaments, and since we seem—for better or worse—to have moved into a situation where elections are held in May, the Bill provides for elections in May. Therefore, it makes sense that we should have annual May-to-May Sessions. I repeat: the current two-year Session is a transition. No doubt what we gain here is that there is only a finite amount of legislative time in the Parliament as a whole if it lasts for five years. It would not be appropriate to put that in the statute. I am grateful to the noble Lord for giving me an opportunity to reiterate the position and to flag up what my right honourable friend the Leader of the other place has said on this matter. With these reassurances, I hope the noble Lord will be prepared to withdraw his amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 8 months ago)
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The Deputy Chairman of Committees (Lord Haskel)
I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 36 or 37, because of pre-emption.
Lord Howarth of Newport
My Lords, I rise to speak to Amendment 39, which fits into this group covering various contingencies in relation to the resignation of the Prime Minister. My amendment would provide for an early general election if the Prime Minister resigned and, after 14 days, there had been no vote of confidence in any Government of Her Majesty.
This issue was raised by my noble friend Lady Jay during the proceedings of the Select Committee on the Constitution. She asked the Minister, Mr Harper, whether, if a Government resigned without losing a vote of confidence, that would trigger the 14-day provision. Mr Harper replied:
“If the government resigned and we were without a government, you would then have to have a process of government formation. I believe that we think that would be the case”.
That is not quite pellucid and it hardly inspires confidence that Ministers had thought rigorously about this legislation.
Mr Harper then wrote again to the Select Committee, stating that:
“There is nothing in the Bill that prevents a government resigning; the Bill is about the length of a Parliament. If a government decided to resign when the Speaker had indicated that he was not minded to issue such a certificate, then the 14 day period would not be triggered although, as I said to the Committee, a period of government formation would obviously follow. It would just not be time-limited”.
Your Lordships may consider that it should be time-limited and that we should not allow ourselves to get into the Belgian or Iraqi situation whereby a Government cannot be formed for very long periods.
Amendment 38 of the noble Lord, Lord Norton, specifies 28 days. As he anticipated, I think that 28 days is too long. His Amendment 35 does not specify any time limit, but just removes the 14-day provision altogether. It will be no surprise to your Lordships, following a previous debate, if I confide in you that that is a much more attractive provision. However, supposing we accept that time should not be unlimited in such circumstances. If we provided for 14 days before an early general election takes place, following the resignation of the Prime Minister, it would integrate provision for the contingency of the Prime Minister’s resignation with the provisions in the Bill for other early departures of a Government.
It may be wise to provide a clear remedy, given that we have the Bill. The Bill would abolish the royal prerogative of Dissolution. Currently, with the prerogative—as the noble Lord reminded us—if the Prime Minister resigns, the Queen takes soundings to see whether another party leader can form a Government. If he cannot do so, she dissolves Parliament. That remedy is removed by the Bill. The Bill allows resolution of the impasse only if two-thirds of MPs vote to dissolve Parliament. However, that is not a sure remedy, because the Opposition might prefer not to take their chances at an immediate general election—they might not co-operate to secure that two-thirds vote.
It is worth considering what might have happened in historical situations that some of us can at least dimly remember. In the Government of Mr Attlee in 1951, he chose to go to the country. Aneurin Bevan and Harold Wilson had resigned from the Cabinet, having disagreed with the Government’s budget. The Labour Party had a majority of five, and Mr Attlee judged that he could not carry on. Under this Bill, Mr Attlee could not have gone to the country. Under this Bill, Mr Heath could not have gone to the country in February 1974. Of course, Mr Attlee or Mr Heath might have appealed to the other leaders and secured a two-thirds vote of the House of Commons for Parliament to be dissolved and for there to be a general election. However, what might have happened in October 1974, when Harold Wilson chose to go to the country? Would the Conservatives, at that stage, have been ready to agree to a general election? We shall never know, but the answer is uncertain.
It may be as well to provide a clear remedy, although I anticipate that the Minister will point out that it would drive a coach and horses through the central purpose of the Bill, which is to prevent a Prime Minister from seeking an early general election. However, in such situations as I have sketched, it may be desirable and in the public interest for there to be an early general election. The fact that we have to debate these amendments once again shows the unwisdom of seeking to legislate for fixed-term Parliaments.
Lord Tyler
My Lords, I have the greatest respect for my noble friend Lord Norton of Louth, who has unrivalled academic expertise and authority in matters of this sort. I am a mere practitioner, so my contribution to this debate is very much probing, rather than definitive. I am generally concerned about the drift that would appear to be the theme of this group. The Committee is provided with three options. One would remove the 14-day period for the formation of a new Government if the existing one falls; one would extend that period to 28 days; and the other would keep it at 14 days but change the process by which it would happen. We therefore have a spectrum of three amendments, representing a scale: one with no period at all in which another Government could be formed; one with a 14-day period; and one with a 28-day period. Those of us of a centrist disposition might be naturally inclined towards the middle option—Amendment 39 in the name of the noble Lord, Lord Howarth of Newport. However, strictly speaking, Amendment 39 is not necessary, since it barely departs from the principle that the Government have already adumbrated in the Bill itself.
Therefore, I will concentrate principally on Amendment 35, which is the “back me or sack me” amendment. It would offer a Prime Minister who had lost the support of his or her party in the Commons the opportunity to go to the country instead of to the Palace. There is nothing wrong with that in principle. It might have provided some clear guidance to Thatcher, Major and Blair at moments when factionalism was on the cusp of becoming fratricide. However, again, the amendment is surely unnecessary. The Bill already allows for the Prime Minister to resign or for a new Prime Minister and a new Government to be appointed. What the amendment does is to take away from Back-Benchers in the House of Commons the power actively to insist on the replacement of the Prime Minister with another. That is the principle behind this change. Instead, it places the decision on going to the country, as now, back with the incumbent of No. 10. I thought Members on all sides of your Lordships’ House thought that was not necessarily the best result.
Under the Bill as it stands, a Prime Minister could effectively be disposed of, as Labour wanted to do with Blair for so long. A clear period would then exist for a new Government to be formed. Members of the Committee can imagine that, when Tony Blair eventually stepped down, the Bill’s provisions would have allowed Gordon Brown to form what he called a new Government, in much the same way that John Major did when Margaret Thatcher resigned. It is not, therefore, clear to me whether my noble friend seeks a move away from the principle that votes of confidence in the Government need not precipitate an election—the status quo—if another Government can be formed. Here is the nub of a very important principle. I wonder whether my noble friend is trying to move away from the principle that the Prime Minister must have the authority and confidence of the House of Commons to continue; and whether he is, therefore, moving towards a principle that there ought, automatically, to be an election if there is a change of Prime Minister.
In February 1974, Mr Heath said, “Who governs Britain?”. He did not say, “Back me or sack me”. We have referred to that election on several occasions in your Lordships’ House in recent months; it is one that many of us recall very well. I have no doubt that my noble friend could find much public support for that principle. However, on balance, I have always thought that British Governments should depend simply and solely on the confidence of the House of Commons to remain in office. That is a parliamentary democracy, not a presidential one.
Lord Wallace of Tankerness
That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a formal coalition with the then Liberal Party and they were able then to win a vote of confidence. You may say it was a Government of a different nature who proceeded to govern after that day because they were engaged in a formal pact and were not a new Administration, but they were different from the Government who had existed up to that date, who had not had a formal pact with one of the opposition parties.
Lord Howarth of Newport
In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.
Lord Wallace of Tankerness
I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.
Lord Howarth of Newport
My Lords, after the words in Clause 2(3)—
“A certificate under this section is conclusive for all purposes”—
my Amendment 42 would add the words,
“and ought not to be impeached or questioned in any court”.
Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible way, be saying to the judges, “Do not consider advancing your tanks on to our lawn”. Therefore, my amendment seeks—amateurishly, I am sure—to reinforce the protection that Clause 2(3) already seeks to provide for parliamentary privilege.
I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said:
“My concern is with the way in which provisions of the Bill impinge upon Parliamentary privilege and which may bring the Courts and Parliament into conflict … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates”.
Then he said that the provisions of Clause 2(2),
“make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts”.
The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides:
“Although the provision in 2 (3), that the Speaker’s certificate is conclusive for all purposes, is meant to mitigate challenge or questioning in the courts, it cannot be a protection against the courts interpreting statute either in the UK or in Strasbourg ... embodying these internal proceedings in statute radically changes their status since, by reason of being embodied in statute law, they become questions which are ultimately to be determined by the judiciary rather than by members of the legislature”.
He continued by saying that history provides,
“no basis for concluding that the courts will keep out of this new statutory territory”.
He explained that the,
“possible areas of challenge are wide-ranging. For example, any interested party … could challenge whether a motion for dissolution had been correctly worded or processed, whether the decision had been correctly reached and recorded”.
He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth.
I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded:
“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”.
Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was,
“extremely unlikely that the court would entertain a challenge”,
but that,
“you can never be entirely sure what the courts will say when faced with very eloquent advocates with good arguments both ways”.
Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated,
“a huge discussion about justiciability”,
and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring.
Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued:
“It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised”.
He concluded by saying that,
“it may well be that the practical scope for the scope of Article 9 being affected by judicial enquiry into the validity of a certificate is small”,
but he thought that it ought to be taken into account.
David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence:
“The statutory escape mechanisms create a risk that the courts will intervene”.
He elaborated by saying:
“The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act”.
Again, he also said,
“The risk is admittedly small”.
I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past.
Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope, in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter.
I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn, said:
“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.
The noble and learned Lord, Lord Hope of Craighead, said:
“But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”
The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues.
Lord Wallace of Tankerness
My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.
Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.
The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.
In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of Parliament leading to the Hunting Act being passed had been complied with. The House of Lords in its judicial capacity did not look behind the Speaker’s certificate and did not question the internal proceedings of Parliament. It indicated that it would not and could not look at the internal proceedings adopted in Parliament in enacting the Hunting Act 2004.
The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.
I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.
Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.
Lord Howarth of Newport
My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care.
Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government stop in their tracks. She spoke about the unsuitable extension of the Speaker’s role and, in particular, the requirement of certification. We will have an opportunity to discuss that matter later this evening when we debate Amendment 50, in the name of the noble Lord, Lord Cormack, and my amendment to that, Amendment 51, which would delete the subsections that require Speaker’s certification—precisely because I share the noble Baroness’s view that this is a dangerous innovation.
The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled.
The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation?
We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has “not yet got its teeth into these matters”. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so.
Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave.