Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 8 months ago)
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Lord Howarth of Newport
My Lords, Amendment 34 would delete Clause 2(2)(b)—the provision that, if after 14 days following a motion of no confidence the House of Commons has not passed a motion expressing confidence in any Government of Her Majesty, there shall then be a general election. This provision is ambiguously phrased, as your Lordships’ Select Committee on the Constitution noted, and as was pointed out in written evidence from Dr Anne Twomey of the University of Sydney. In questioning the formulation in the Bill, she asked:
“Does this include a vote of confidence in a previous Government that has since resigned and been replaced? Does it refer only to the Government in existence at the time the motion is passed, whether the Government in which no confidence was previously expressed or a new Government? Does it refer to a prospective Government that does not yet exist?”.
She went on to comment:
“This is a critical issue. It is not clear from the provision whether it is intended that a Government that is subject to a successful vote of no confidence follows the customary practice and resigns, leaving Her Majesty to commission a new Prime Minister whose Government then needs a vote of confidence to survive. Alternatively, it could be intended that matters remain frozen once the vote of no confidence is passed and the existing Government remains in office until the end of the 14 days to see if the absence of confidence is reversed. If it is not reversed, then an election would be held. A third alternative is that it is intended that the House may pass a motion indicating its confidence in someone else to form a Government, even though it is not yet formally a ‘Government of Her Majesty’. Query whether this would oblige Her Majesty to commission that person as Prime Minister? The Bill ought really be clearer as to what is intended”.
Dr Twomey was quite right. What do the Government mean by that provision? Will the Minister tell us, and will he undertake that the Government will take this away and improve the drafting so as to impart clarity to the wording in the Bill?
Beyond the issue of the ambiguity of the provision as drafted, we should ask whether we want a 14-day provision at all. This is the smoke-filled rooms issue. Imagine the situation if a Government narrowly loses a vote of no confidence and the Prime Minister does not behave like Mr Callaghan in 1979; he does not make an immediate, dignified and clear-cut statement that his Government will take their case to the country. Indeed, under the provisions of the Bill he cannot do that. Up to 14 days have to be spent cobbling together a deal with the minor parties. Bribes will be offered, and inducements—perhaps a second Humber bridge or contracts to build parts of new frigates in particular constituencies. The US space programme was entirely constructed out of components made in marginal districts of Congress. Maybe there would be new constituencies outside the numerical norm, like Orkney and Shetland and the Highlands and Islands.
Deals are put together and the new cobbled-together Government, perhaps under the same Prime Minister, totters along just as unable to govern effectively. It appears that Ministers have not thought of that possible contingency, although it is surprising that they should not have done so. My noble friend Lady Jay, in the chair of your Lordships’ Select Committee, asked the Minister,
“would it be possible for that government to try to reconstitute themselves, perhaps in a slightly different way?”.
Mr Mark Harper, the Parliamentary Under-Secretary, replied:
“Rather than giving you a rushed answer, let me think about it”.
He later wrote to the Select Committee, saying:
“It is not our intention that the Bill should rule out the possibility”—
however unlikely—
“of the House changing its mind … and deciding nevertheless to support the current government”.
At present, if the Government lose a vote of confidence the convention is that they must either resign or seek Dissolution. This provision is just like the Government’s previous decisions in the Bill, such as whether the fixed-term Parliament should be four years or five years—they opted for five; or whether if there is an early election the clock should be reset so that there would be a whole new Parliament ahead—they opted for that. This provision similarly happens to advantage the incumbent Government. It allows them the opportunity to wriggle out of the implications of losing a vote of confidence.
Alternatively, there is not the sordid scene that I describe, but a new coalition is formed with a new Prime Minister and a new configuration of parties in government. The people have not voted for that, yet Mr Clegg and the coalition make much of their ambition to improve accountability and transparency in our politics and the ways in which Governments are formed. I do not think that accountability is improved by this set of provisions.
The Deputy Prime Minister, when he met your Lordships’ Select Committee on the Constitution on 13 October, laid out his general arguments on the need for major constitutional reforms—a series of reforming constitutional measures. He said:
“there are features of our present political arrangements that are secretive or centralised, in which people do not … feel that their voices or views are properly represented … That is why there is an emphasis in everything that we are proposing on greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people, and breaking up excessive concentrations of power and secrecy”.
Lord Anderson of Swansea
For examples of greater accountability, we do not need to look at the textbooks. We have a living example in the recent election in Australia, where the two major groups had 72 seats. There were four other seats and there was very much an auction as to how the votes of those four people would be bought, which was pretty unseemly and certainly not accountable.
Lord Howarth of Newport
I am afraid it was all too transparent and not satisfactory by any manner of means. My noble friend always brings his international perspective to bear most valuably on our debates. Clause 2(2)(b), as it is drafted, provides no remedy for the deficiencies that the Deputy Prime Minister so eloquently described.
Why 14 days in particular? What is the rationale for that figure? It would be helpful if the Government explained why they think that 14 days is the right amount of time to allow these processes to continue. It is inconsistent with what Parliament has provided for the Scottish Parliament and the Welsh Assembly, where the equivalent provisions allow for 28 days. Of course, they have different electoral systems that make it unlikely that any single party will have an overall majority. It might be argued that more time is needed, but in all events I would like to know why 14 days are thought sufficient for the Parliament of the United Kingdom, whereas 28 days are provided for the Scottish Parliament and the Welsh Assembly.
Beyond that, we also ought to ask: why legislate at all? Convention and practice are to allow an attempt to negotiate a coalition or a pact—a confidence and supply agreement or whatever—over an unspecified period of time. Precedent has shown that it need not take very long. There were three days of such discussions between the Conservative Party and the Liberal Party in March 1974, and five days in May 2010. Why is it necessary to legislate to allow up to 14 days for this kind of haggling and negotiation?
I do not think that what is provided in the Bill would produce any improvement. It could make things worse in our politics and our constitution. What I do know is that, during that period of 14 days, there would be no effective government and the country would be uncertain as to whether there was to be a general election. The reputation of Parliament or of politics would not be enhanced by this kind of process. Accountability would be weakened. Is it not better to stick to the understanding that we have: that if a Government are defeated on a vote of no confidence they call it a day and resign or go to the country? That would better fulfil the Deputy Prime Minister’s pledge to improve accountability. It is better that the electors, and not the political parties, decide who will form a Government. Governments are of course accountable both to Parliament and to the people, but accountability to the people should prevail. I beg to move.
The Lord Speaker (Baroness Hayman)
I have to inform the Committee that, if this amendment is agreed to, I cannot call Amendments 36 or 37 by reason of pre-emption.
Lord Wallace of Tankerness
I am sorry, but I have been very generous. It is important that we make progress.
We took the judgment that 14 days was the appropriate time to allow for another Government to be formed. I pick up on the point made by my noble friend Lord Newton of Braintree, who said that more than five days might have been better in May last year. I leave that thought hanging. We have a culture here of doing it in one day, with the pantechnicons rolling up into Downing Street and furniture being taken out. That may not be healthy, particularly if we are in a situation where there may well be more elections that do not produce an outcome with an overall majority for one particular party.
The position with the devolved Administrations is not always comparable, but I simply reflect that in 1999, after the election to the Scottish Parliament, there was a situation where no party had a majority. The pressure on those of us who were negotiating to try to establish a Labour-Liberal Democrat coalition was quite intense for that to be done in a relatively short period time. By the time of the 2003 Scottish election, where again there was no overall majority, there was not the same pressure. We were able to deliberate longer before finalising a coalition agreement; because of our experience in 1999, we had changed the expectation, as it were. I believe that is what would happen, as there would be a change of expectation and there would not be the same level of pressure to rush into an agreement. As my noble friend Lord Newton indicated, places like Germany seem to take a bit longer than we do without necessarily causing great upheavals there.
That is why we took the view that 14 days was right. It is not just 14 days to establish a Government but 14 days during which a new Government would have to be established and a vote of confidence in that Government to have been passed by the other place. Therefore, it is not simply the formation of a Government. It could well be that during that period of time it became blindingly obvious to everyone that no Government would be formed. In those circumstances the sensible thing might be to have a dissolution motion, agreed by all parties, so that an election could be triggered rather than waiting the 14 days. Equally, if a new Government were formed very promptly, we would not have to wait 14 days either for that period of relative uncertainty, as it was described, to be over.
As the noble Lord, Lord Clinton-Davis, who is no longer in his place, pointed out, in 1979 there was a period of five weeks before the Government were defeated. The point I would make is that, in trying to arrive at the 14 days, we wanted to look at the fact that there was a period then, and there would also have to be an election period after it. We did not want to make it too long, but equally we felt that too short a period might not allow the appropriate level of time. A balance has to be struck. I take the point made by the noble Baroness, whose Constitution Committee did not make a political judgment; nevertheless its constitutional judgment was that the Government got it right constitutionally in allowing a period of 14 days.
A similar amendment was considered in the other place, where I think it was defeated overwhelmingly. Indeed, Mr Chris Bryant indicated that he was very much with the government Front Bench on the matter. I think that the amendment would lead to restoring the power of the Prime Minister to trigger a general election when he or she wished it to happen through a vote of no confidence. The noble and learned Lord, Lord Falconer of Thoroton, expressed concern that even with the 14 days that could happen. I believe it could happen even more easily with the amendment proposed by the noble Lord, Lord Howarth. That would drive a coach and horses through the principle of having a fixed-term Parliament and taking away the power from the Executive. Therefore I urge him to withdraw his amendment.
Lord Howarth of Newport
Will the noble and learned Lord tell the Committee whether he intends to take away the subsection in order to redraft it to eliminate the ambiguities which expert academic commentators have drawn attention to and which I think are significant?
Lord Wallace of Tankerness
I apologise to the noble Lord, as I think that was his very first point, which was also picked up in the report of the Constitution Committee. In the light of that, we have considered the wording and we do not believe that it leads to ambiguity. We are not looking to a situation where there is, as it were, an investiture or a notional vote on whether someone should be recommended to Her Majesty the Queen to be Prime Minister; a Government would have to be formed. However, in the light of his comments and those of the Constitution Committee, I am willing to look again to see whether the matter can be even further clarified. However, having considered it at some length, we think that the wording actually says what it means on the face of the Bill. Nevertheless, I undertake to consider the point that the noble Lord made.
Lord Howarth of Newport
I thank the noble and learned Lord for his willingness to look again to see whether the drafting could be clarified. I think that is important.
The debate that we have just had shows that this question of whether there should be a 14-day provision following a vote of no confidence is a subject that has been very well worth our while to consider. The Minister denied that the provision is a contrivance, but if it is not that in itself, it is the product of a contrivance—a contrivance to keep the coalition in place for the longest possible time. On this policy of fixed-term Parliaments, the more we examine it in this Committee, the more we realise that there are much greater difficulties attaching to what appeared to be a simple and beguiling proposition than were recognised at the outset by the framers of manifestos in various political parties and by Ministers as they prepared this Bill.
The noble Lords, Lord Cormack and Lord Norton of Louth, underscored how, among the risks contained in the provisions in Clause 2, there is the risk that the provisions will, perversely, serve to protect the position of the Government. I acquit the coalition of having that motive, perhaps, but that may be the consequence of the provision. The noble Lord, Lord Newton, was of course right to remind us that politics does not stand still and that we may well continue to see rather different electoral outcomes from those that we were accustomed to seeing in past decades. The constitution, of course, always needs to respond flexibly, pragmatically and appropriately. That is one great virtue of not having a written constitution and one reason why I worry that this Government are so keen to write into statute great chunks of a new constitution. That is a difficult thing to get right; it may well be impossible.
My noble and learned friend Lord Falconer and my noble friend Lord Grocott described graphically the absurdities that would have occurred had this Bill been on the statute book in 1979, or indeed in 1940, with the undignified and chaotic situation that that would have produced in Parliament.
Lord Wallace of Tankerness
On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.
Lord Falconer of Thoroton
The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.
Lord Howarth of Newport
My Lords, if I may say so, that was another worthwhile exchange. It would not be my intention to prevent the possibility of resignation. This clause could be amended fairly easily to incorporate that possibility. One would simply have to say that a parliamentary general election may also take place if the Speaker of the House issues a certificate. Against that background and against the noble and learned Lord’s undertaking to reconsider the specific drafting of the subsection, I beg leave to withdraw this amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 8 months ago)
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Lord Norton of Louth
My Lords, this amendment is designed to probe the reasons for the Speaker having to consult the Deputy Speakers before issuing his certificate. So far as I can see, there are two possible, if incompatible, reasons for the inclusion of this provision. The first is because of the provision of Section 1(3) of the Parliament Act 1911, which requires the Speaker, before certifying that a Bill is a money Bill, to consult, if practicable, two members of the Chairmen’s Panel. The Government may thus see the provision of the Speaker’s certificate as analogous to a certificate under the Parliament Act.
The second reason is that the Government recognise that the situation is not strictly analogous. As I pointed out at Second Reading, there is a statutory definition of a money Bill. There is no definition in this Bill of a motion of no confidence. There is therefore the prospect, as we have already heard, of the Speaker being dragged into political controversy. It is possible at the moment for the Speaker to be drawn into controversy over the certification of a money Bill. We saw a recent example in your Lordships’ House. That arose because some Members were ill informed about the provisions of the Parliament Act. However, that perhaps emphasises the point that the potential for controversy is even greater in a politically charged atmosphere where the fate of a Government may be involved, and there is no statutory guidance that would offer the Speaker a protective shield. It may thus be that, recognising that potential, the Government wish to provide some protective cover for the Speaker by involving the Deputy Speakers in the decision. Because the Deputy Speakers will be drawn from different parties, it provides a modicum of cover.
Whichever it is, neither justifies the provision. Ultimately, whatever consultations are held, the decision will be that of the Speaker and be seen as such, as is the position with money Bills. If one seeks to provide some degree of protection for the Speaker, the answer is not to require him to consult the Deputy Speakers but, rather, to provide a clear statutory definition of what constitutes a motion of no confidence. We shall come in due course to the amendment tabled by my noble friend Lord Cormack. That is the way we should be going. I appreciate that his amendment is not incompatible with subsection (4) but, whereas there is a clear, and I believe compelling, case for defining what we mean by a vote of no confidence, I am not clear that there is a compelling case for subsection (4). What value is added by consulting the Deputy Speakers? They are not necessarily experts on the subject. What if they disagree with one another? If the Speaker is to consult, why not give him scope to consult those who appear to him to be appropriate to consult? In practice, he could presumably consult whom he wishes, so there is no obvious need for the provision. Ultimately, if there is to be a Speaker’s certificate, it is the Speaker’s responsibility. He cannot pass it on to others. I am therefore unclear why this provision is necessary. I look forward to hearing from the Minister why it is in the Bill. I beg to move.
Lord Howarth of Newport
My Lords, I tabled an amendment in exactly the same terms as the noble Lord, Lord Norton of Louth. As he is your Lordships’ leading constitutional expert, I felt very good that I had arrived at the same idea, and I am extremely happy to appear on the Marshalled List as having signed up to his amendment.
The provision is so vaguely drafted as to be almost entirely without meaning. I know that it is borrowed from the Parliament Act 1911 but that does not mean that it is an appropriate precedent, particularly, as the noble Lord, Lord Norton of Louth, has just pointed out. In that Act, there is a clear definition of a money Bill, but there is no clear definition of a no confidence motion in this measure. The Clerk of the House of Commons, in giving evidence to the Select Committee in the other place, was of the opinion that the question of whether consultation was practicable would become a legal question. It would be open to legal challenge in so far as anything in the Bill is liable to be open to legal challenge. We had a full discussion of that in an earlier debate.
One observes that judicial reviews have been upheld again and again against the Government on the grounds that Governments had failed to consult properly. If it is a question of whether the Speaker may or may not have consulted properly according to the requirements in the Bill, I suppose that that, if anything, might give an opening to judicial intervention, although I am not seriously afraid that that is the case. The real concern about this provision is that it is almost meaningless. What does “so far as practicable” mean? What would be proper consultation in these circumstances? The requirement to consult does not oblige the Speaker to agree with the Deputies. The Deputies themselves might disagree. In fact, one might surmise that they are rather likely to disagree in the circumstance of a no confidence vote that will occur in the most fraught and complex political circumstances. There will be enormous pressure not only on the Speaker of the House but also on the Deputy Speakers if they are to be involved formally in this process. The Deputy Speakers have disclaimed their party allegiance in their new capacities but, none the less, it is only realistic to anticipate that they would come under immense political pressure from members of their own political parties. They would need to be very sturdy to ignore all that. In the previous debate, the noble Lord, Lord Martin of Springburn, and the noble Baroness, Lady Boothroyd, described how they would imagine the atmosphere to be in the House on the occasion of a no confidence vote. They gave us to understand something of the sort of pressures that would be brought to bear not only on the Speaker but, if this provision remains in the Bill, on the Deputy Speakers, too.
In the end, the Speaker will be on his own. It seems that this provision gives him no useful cover or protection against the political storm. A very sensible conclusion of the Constitution Committee, contained in its report at paragraph 159, was that, whether or not this turns out to be a legal question, an obligation on the Speaker to consult with the Deputy Speakers should be a matter of internal House of Commons procedure, should not be contained within the statutory provisions of the Bill and therefore should be omitted. Rather regrettably, the Government rejected this advice in their response to the report of the Constitution Committee at paragraph 60. The Government are quite keen to pray the Constitution Committee’s recommendations in aid when they agree with them. They have not done so on this occasion, however. They cite the precedent of the Parliament Act 1911, which, they say, has worked well. As we suggest, it is not a terribly useful precedent; certifying a money Bill is a matter of ascertaining fact and hardly contentious. Certifying a vote of no confidence would be a very different thing.
I hope that the Minister will agree to look again at this sensible recommendation of the Constitution Committee and that he will agree to the amendment proposed by the noble Lord, Lord Norton of Louth, and myself.
Lord Falconer of Thoroton
On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.
It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.
I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.
Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.
It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.
“( ) If an early parliamentary general election occurs under any of the provisions of this Act an order approving the next review of parliamentary constituencies shall not be submitted to Parliament until after the fourth anniversary of the start of the new Parliament.”
Lord Howarth of Newport
My Lords, the amendment seeks to ensure that in the event of an early general election the constituency boundary review would remain synchronised with the cycle of general elections, and new constituencies would be approved by Parliament only at the latest practicable time in the life of a Parliament.
We were told when we were debating the Parliamentary Voting System and Constituencies Bill that this was a sacred principle for the Government. They made great play of the importance of the provision in that legislation to ensure that there were boundary reviews every five years and that their timing should bear a sensible relationship with the date of the next general election. Although many of us argued that there were other factors that the Government ought to bear in mind about registration and the undesirability of destabilising constituencies and political parties at such frequent intervals, the Government stuck to their guns and said that it was very important to have a five-yearly cycle of boundary reviews.
However, on this legislation the Government take a very different position. When the Minister, Mr Mark Harper, appeared before the Constitution Committee he was asked:
“Do the Government envisage amending the review period if the two cycles move out of synch in the future?”,
I was struck by what he said:
“We thought about this carefully … We did not think that it was absolutely necessary to synchronise them. You will know that the Parliamentary Voting System and Constituencies Bill sets out that we want boundary reviews once every five years—broadly once per Parliament—but I do not think that it is that important that they are absolutely synchronised. We will see how it works … we did not think it important to align them or make provision in this Bill or in the Parliamentary Voting System and Constituencies Bill to tie the two together”.
It is fairly odd that such contradictory positions have been taken by the Government in two concurrent pieces of constitutional legislation. I would be grateful if the Minister could tell us more. I beg to move.
Lord Howarth of Newport
My Lords, I am not at all surprised to be advised that my amendment is defective, as these are indeed knotty matters, and it takes specialists to formulate legislation to get it right. However, if the Government think—and I have much sympathy with that point of view—that it is desirable to align the boundary reviews with the cycle of elections, maybe they would go back and think a little bit further about this and see whether they can find a better means to do it. I do not think that the Minister’s optimism that primary legislation from time to time in Parliament to get the relationship back in to a reasonable synchronicity would be straightforward, because whenever Parliament debates boundary review matters, a lot of Members become intensely interested in that and these proceedings are never very short or straightforward. If the Government wish to hold consistently to the principle they articulated in the Parliamentary Voting System and Constituencies Bill, I hope they will go back and do some more work on this. In the mean time, I beg leave to withdraw the amendment.
Lord Howarth of Newport
My Lords, my amendment to the new clause tabled by the noble Lord, Lord Cormack, and his very distinguished co-signatories would delete subsections (3) and (4) of his new clause, which require the Speaker to issue a certificate and assert that the Speaker’s certificate shall be conclusive.
I have three grounds for proposing to the Committee that we should delete these provisions. There is the difficulty of defining a vote of confidence or of no confidence. The noble Lords’ new clause goes some way to achieving this but I do not think that it is the whole story. Notwithstanding the reassurance that the noble Lord, Lord Cormack, just offered, I believe that there is a risk to the Speaker that he would be placed in a damagingly contentious role. There is the risk of intrusion by the courts into parliamentary proceedings, which we debated very fully on Amendment 42, and I do not propose to say any more about that in this debate. I do question the wisdom of the attempt, made with the very best of intentions by the noble Lord, Lord Cormack, and his co-signatories, to specify and define in this new clause the varieties of no confidence vote that there could be. I fear that the more we try to write down the constitution, the more specific and detailed we need to be. We shall be chasing our own tails in more and more circles, yet the task is impossible to accomplish.
I do think that the new clause is an improvement on what the Government have provided in Clause 2. The Government’s Clause 2 is vague. It appears to elide a no-confidence motion with a confidence motion. My noble friend Lady Jay asked Mr Mark Harper, when he was before the Select Committee, whether votes in various circumstances could be confidence or no-confidence votes. The Minister replied:
“I think the intention is that the Bill would encompass those examples”.
Yet the Government’s drafting does not make it clear, for example, whether a defeat on a motion or an issue of confidence would count as a vote of no confidence.
The conventional no-confidence vote is entirely obvious. It is what it says on the tin:
“That this House has no confidence in Her Majesty’s Government”.
No problem would arise with that variety of no-confidence vote, but after that it gets harder. There is an excellent note on confidence motions and votes provided by the House of Commons Library, which I commend to everybody. It says that,
“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”.
The note goes on:
“Broadly speaking there are three main types of motion which act as tests of the House of Commons’ confidence in the Government: ‘confidence motions’ initiated by the Government; ‘no confidence motions’ initiated by the Opposition; and other motions where because of the particular circumstances can be regarded as motions of censure or confidence … There is no standard formulation for confidence motions”.
Apart from motions of confidence and of no confidence, there are,
“Other motions put down by the Government or the Opposition treated by the Government (whether expressly declared as such or not) as, or because of the particular circumstances can be regarded as, motions of censure or confidence”.
Examples of all the motions and votes of confidence that have taken place over a long period—the whole of the 20th century, I think—are described in that brief. There were, for example, substantive motions of no confidence during the Suez crisis. On 1 November 1956 the Prime Minister, Mr Eden, spoke but the leader of the Opposition, Mr Gaitskell, did not, so you cannot necessarily define a motion of no confidence in the terms that the party leaders speak on it. In the debate on 5 and 6 December of that year, Mr Gaitskell spoke but Mr Eden did not—admittedly, because he was ill and unable to do so. On a much earlier occasion, there was a motion in 1895 to reduce the salary of the Secretary of State for War which led, after a short delay, to the resignation of the Rosebery Government.
There have also been motions to adjourn. On 11 March 1976, following the defeat of the Government on its public expenditure White Paper Mr Wilson, the Prime Minister, did not take defeat on that matter of central importance to the Government’s programme as a vote of no confidence. He used a vote on the adjournment the next day as a device to avert his resignation and during the course of that Parliament of October 1974 to 1979 Mr Wilson, in very specific terms, narrowed the interpretation of confidence motions. He advised the House that the Government would only regard a motion as a confidence motion if every Member was aware in advance of the vote that that was its status. It was as well for him and the Labour Government that they did, because they were defeated 17 times in the short 1974 Parliament and 42 times in the October 1974 to 1979 Parliament.
Practice has evolved and there is not a set orthodoxy in these matters. Previously, historic Governments accepted defeats on major policy items as votes of no confidence. Yet how assured can we now be when it is now the case that only votes specifically stated by the Government to be matters of confidence or by the Opposition to be matters of no confidence count? I think that is the latter-day view.
The Clerk of the House of Commons, giving evidence to the Political and Constitutional Reform Committee, said:
“I think that what is a confidence motion—other than the very straightforward one, ‘There is no confidence in Her Majesty’s Government’—is an ambiguous matter”.
Would not votes on intensely controversial issues such as tuition fees and going to war now be widely regarded by the public as confidence votes, and perhaps the more so with coalitions?
The tendency in our politics appears to be that we shall have more coalitions because of the declining proportion of the vote for the major parties. Certainly, if we get the alternative vote, it seems likely that we will have more coalitions and more minority Governments. At the same time, we are very properly encouraging increased public engagement with and accountability of Parliament. Petitions submitted by members of the public may in certain circumstances now be debated in Parliament in a way that they never were before. The Government are about to introduce legislation to provide for the recall of Members of Parliament.
In these new developing political and constitutional circumstances, can we not expect that the public will take a very much closer interest and that they will not necessarily be content to leave it to the party leaders or the traditional authorities to define a confidence motion? In these much more confused circumstances that I think we can reasonably anticipate, is it fair and sensible to legislate to require the Speaker to adjudicate on whether a particular vote will be, is or has been a vote of no confidence or, indeed, of confidence?
Lord Forsyth of Drumlean
Perhaps I have this wrong, but my understanding of the present position is that the Government may be defeated on a serious matter such as whether to go to war and may take the view that it is not a confidence motion. However, in such circumstances, the leader of the Opposition would table a confidence motion, which takes precedence over all business. If there is an argument about whether the issue is a confidence motion, it is up to the Opposition to bring forward a confidence motion on which there will be a vote, so why is this such a big problem?
Lord Howarth of Newport
I would very much like to be comforted by the noble Lord’s suggestion, but we are in an evolving state of affairs. I am not as confident as he is that the traditional formulations and conventions will necessarily be the only ones that the public will find acceptable in the future.
We have to think of what the role of the Speaker will be when it is contentious whether a particular vote may have this status. Let us imagine what would have happened if the Speaker had been required to issue a certificate as to whether, on 18 March 2003, the House of Commons had passed a motion of no confidence in Mr Blair’s Government, had that Government been defeated in the vote on the Iraq war. Mr Blair said later that he regarded that vote as a confidence vote, and that had he been defeated he would have resigned. How could the Speaker have certified in advance in those circumstances when the Prime Minister himself had not made it clear in advance that that was to be a confidence motion?
However, that is what the Minister, Mr Harper, confidently expects would happen. He said to the Constitution Committee:
“Our view is that the Speaker would make it very clear before such a vote took place whether it was a vote on which he would issue his certificate”.
Lord Cormack
The noble Lord is repeating the earlier debate because in this new clause the Speaker does not have that discretion. He may say that what I have put in is superfluous to requirements, but nevertheless it is not a question of putting the Speaker in the invidious position of having to determine the matter because, if one of those conditions is fulfilled, the Speaker has no option.
Lord Howarth of Newport
The noble Lord is assuming that all the circumstances that he has specified in the four categories that he has set out in his subsection (2) would be the only circumstances that would be regarded as a vote of confidence. Subsection (2) states:
“A vote of no confidence will have been deemed to have been passed if the House of Commons”,
passes amendments in the various terms set out. I am suggesting that, in political reality, there may be other votes which are not included in his survey of the possibilities but which would be regarded as votes of confidence.
The situation in March 2003, had the Government been defeated, illustrates the point quite well. I do not see how, as the Government expect, the Speaker could have certified that in advance, nor am I sure that the Prime Minister would have said in plain terms there and then when the result was announced that he treated it as a confidence matter. If he had not, was the Speaker to make a judgment there and then and certify that the Government had lost the confidence of the House, or perhaps some time later was he to issue a certificate that would have had the effect of bringing down the Government? It seems that the Bill as drafted leaves open these possibilities. I am not entirely confident that that would be avoided if it were amended by the noble Lord’s proposed new clause.
Lord Cormack
However, the amendment removes the existing Clause 2. I agree with the noble Lord that that should be removed and that the Speaker should not be put in that position. However, my new clause, imperfect as it may be in other respects, would not put him in that position.
Lord Howarth of Newport
If the provisions of subsection (2) in the noble Lord’s new clause are met, the Speaker is required to issue a certificate to certify that. Therefore, it seems that the certification requirements in the new clause are closely similar to, if not the same as, those already in the Bill. The merit of the noble Lord’s new clause is that it makes a brave attempt to define what would be motions of no confidence.
Let us take the case of Libya. The House of Commons voted with a very large majority to support military intervention in Libya. However, let us suppose that the intervention drags on, that the mood of the country turns sour, that sentiment in the country becomes as hostile to our military engagement with Libya as it has in relation to Iraq and Afghanistan, and that in due course the Government are defeated on a motion relating to the continuation of military engagement with Libya. Mr Cameron insists that it is not a confidence motion and Mr Miliband insists that it is. Is the Speaker to be required to adjudicate between the two of them? Is he to be required to umpire? In another circumstance, which the Committee has certainly recognised could occur under the legislation as the Government have produced it, what is the Speaker to do if the Government engineer a vote of no confidence? Is he to collude with the Government in that process?
Speakers of the House of Commons have to be sturdy people—they are always being shot at—but is it reasonable or realistic to expect such preternatural wisdom, courage and authority on the part of the Speaker if he is placed in what will inevitably be this very invidious position? That was certainly the view of the former Speaker, the noble Baroness, Lady Boothroyd, who spoke in our previous debate. I have not only great respect but personal affection for Mr Speaker Bercow, but can we assume that every future Speaker will have this wisdom, courage and authority? I think that laws and institutions are best not predicated on an assumption of individual perfection. Even if the Speaker is such a paragon of all the relevant virtues, I think that the burden that certification places on him is excessive. A decision taken by the Speaker in the best of conscience could still be so contentious that it would damage the authority of the office of the Speaker. How would an individual Speaker who issued a certificate that was contested by the defeated party and resented by that party and its supporters in the country ever recover his personal authority?
I suggest that another consideration is that, if a certificate is issued in advance, as the Government advocate and foresee, that process will in effect pressurise Back-Benchers to rally to their party Whip. The Speaker, contrary to the role that we expect of him, would in effect be suppressing Back-Bench discontent. He would be suppressing the honest expression of individual views on great issues that the House was considering. He would be acting as a recruiting sergeant for the Whips. The Constitution Committee went some way towards recognising that. It foresaw a temptation for a Government in a position of political weakness to press the Speaker to certify that minor issues, or issues that were controversial within the party that came to the vote, were votes of confidence.
The Government assert that there is nothing new in the provisions. In their response to the Select Committee in the other place they talked of the traditional mechanism of no confidence motions and foresaw it as being straightforward. But creating legal consequences of no-confidence motions is new and potentially very important. As to the position of the Speaker, as we have noted, the Parliament Act requires certificates to be issued in quite different circumstances, as does the freedom of information legislation.
This Bill, as presented by the Government, places the Speaker in a new constitutional role which risks being highly politicised and which I believe will have disastrous implications. This all arises out of the Government’s desire to create escape hatches from the trap that fixed-term Parliaments create. It is one more instance of the dangers of making constitutional legislation in a hurry. If we damage the Speaker, who personifies Parliament, more than ever in an age of broadcasting, to the people and the world, we damage Parliament, and the reputation of Parliament is fragile. I do not think that we need this legislation. The evolving conventions have worked well, as they did in 1979. The House of Commons knows an issue of confidence when it faces it and knows how to deal with it, but an issue of confidence depends on the political context; it cannot be defined in advance. At least let us not put the Speaker in an impossible and damaging position.
Lord Wallace of Tankerness
I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.
Lord Howarth of Newport
It was earlier in this debate. It has been going on for so long, it is difficult to remember. The point was that the House accepted, it appears, the redefinition that the Prime Minister had proposed to the House at that time and recognised the political circumstances in which that Labour Government had a tiny majority. It did not really have a workable majority.
Lord Wallace of Tankerness
Perhaps the House accepted it because it was quite clear that if the Prime Minister had decided that he was not going to go to the country it could have tabled a motion of no confidence. Indeed, my noble friend Lord Forsyth keeps coming back to what seems to be a very straightforward way of addressing this issue: that if there is any doubt, the Leader of the Opposition or someone could table a motion of no confidence. The more one thinks about it, it tends to be the motion which has no ambiguity and is very clear, about which something further might want to be said.
The amendment in the name of my noble friend Lord Cormack would replace the entirety of Clause 2 and therefore would not allow the provision of the trigger mechanism of a Dissolution if two-thirds of the House of Commons was voting for a Dissolution. We have had debates on this in the past but if at some date in the future, in a fixed-term Parliament, there is a consensus in the House of Commons that there should be an election—and 1951 has been identified as a possible example when this may have happened—I would rather the option remained for the Dissolution to be triggered on a cross-party, consensual basis rather than having a motion of no confidence brought forward simply to achieve a Dissolution which two-thirds of Members believe is necessary. That option is lost by my noble friend’s amendment, but it is a worthwhile provision to maintain.
On the question of what constitutes a motion of no confidence and whether it should automatically trigger an election, I recall that in our earlier debates my noble friend Lord Norton of Louth indicated that that should not necessarily be an automatic consequence. However, a consequence of the amendment is that there would be an election. The noble and learned Lord, Lord Falconer of Thoroton, suggested a way round it and, in introducing his amendment, my noble friend Lord Cormack suggested that if it was after the Queen’s Speech in the first Session there could possibly be other ways.
It is important, therefore, that we reflect on circumstances in which an election should not automatically be triggered, the most obvious one being immediately after a general election when a party does not yet have the confidence of the House and there is still an opportunity for another Government to be formed. Equally—I cannot say this is a Narvik situation because it is not—there may perhaps at a time of extreme national crisis be a view that a Government should not continue and that there is a case to be made for a national Government. Indeed, it occurred to me that the Bill as drafted would provide for that. There could be a motion of no confidence and a period of time—we can debate whether or not it should be 14 days—for a new Government to be established which could in such circumstances enjoy the confidence of the House of Commons. I find my noble friend’s amendment defective in that regard because there are circumstances where the automatic triggering of a general election would not necessarily be the right way to proceed. I will not elaborate on the point about an incoming Government after an election and the fact that we do not want election after election after election.
A number of colleagues have indicated that there are problems with the amendment. As I have indicated, I do not want to take technical issues— it used to annoy me greatly in opposition if Ministers said there were technical problems—unless they are very fundamental.
On the second branch of what would constitute a vote of no confidence—namely, a Bill defined by the Prime Minister of the day as being essential to his or her Administration continuing in office—my noble friend Lord Tyler expressed scepticism; the noble Lord, Lord Martin, felt it would be unwise and was concerned about the Speaker; and my noble friend Lord Forsyth also expressed concern about that. Quite apart from trying to get a definition of what constitutes a Motion of no confidence, a Government facing a problem with their own Back-Benchers could simply decide that they would make a particular vote a matter of confidence—the black arts may well come into play—for the purpose of imposing party discipline. As we are trying to initiate a switch from the Executive to Parliament, that would be a regrettable consequence of that trigger point for a general election. Likewise, as my noble friend Lord Tyler indicated, that would be a decision of the Prime Minister and not of Parliament or the Speaker, and therefore it would be an Executive decision which, in certain circumstances, could conceivably be open to challenge.
I know my noble friend Lord Forsyth has strong reservations on fixed-term Parliaments—I probably understate his position—but he made an important point in his exchange with the noble and learned Lord, Lord Falconer of Thoroton. He said that the examples the noble and learned Lord was giving were not operative within the framework of a fixed-term Parliament. If that is the case and we are to have fixed-term Parliaments, the rules will change. As he pointed out, the simplest thing in these circumstances may be to say that a motion of no confidence is what it says. On what constitutes confidence or no confidence in the question of supply, my noble friend Lord Norton said in his article of 1978, Government Defeats in the House of Commons: Myth and Reality:
“The most effective means whereby the House could declare its lack of confidence would be through an explicitly-worded motion of no confidence”.
I did say that we were in listening mode—and, indeed, reading mode. That was an important point.
The noble Lord, Lord Howarth, spoke of his concerns about the Speaker’s certificate. I do not wish to rehearse our earlier debate; I undertook then to reflect on that. However, what I found difficult was his suggesting that the more we try to write down and define matters, the more difficult it is, yet seeming to have an objection to the Government’s position where they did not seek closely to define. That seemed to be a contradictory view. My noble and learned friend Lord Howe said that we should keep it as simple as possible. That is what we have sought to do by setting a background where it is possible to recognise a motion of no confidence rather than trying to define it. This matter has been looked at many times, including in the other place. Whenever efforts are made to bring some definition to it, other than perhaps a very simple one, one seems to conjure up more difficulties.
I said at the outset that I wanted to hear the arguments about structure and definitions. Members on both sides of the Committee have expressed a number of views. I clarify again that I shall speak with my colleagues on these matters. The principles that we wish to establish are 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. Various ways as to how we might do that have been suggested. The amendment moved by my noble friend Lord Cormack has been very helpful in suggesting one way. It has a number of problems to it, but the comments that it has triggered will help shape our thinking as we move to the next stage of the Bill.
I reflect that perhaps we have got it right because these are very complicated matters, but I undertake to give serious consideration not only to what was said in response to this amendment but also to earlier amendments and those which were heard on the second day of Committee. On that basis—
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I think that it would be for the convenience of the Committee if the noble Lord, Lord Howarth of Newport, were first to respond on his amendment, as it is an amendment to that of the noble Lord, Lord Cormack.
Lord Howarth of Newport
My Lords, noble Lords who have spoken in this debate are people of great political experience, experience of government and profound knowledge of the constitution. It has been a very helpful debate. I share the regret of the noble and learned Lord, Lord Howe of Aberavon, that we have to grapple with these issues. The noble Lord, Lord Maclennan of Rogart, caught the sense of the debate very well when he said that at least there is widespread agreement around the Committee that Clause 2 needs careful reconsideration.
The intervention of the noble Lord, Lord Martin of Springburn, was, as in our earlier debate, of the utmost importance to the House. We should not lose sight of the eminently simple and practical point that he drew to our attention: the Journal of the House records the Divisions of the House. That may well be the authoritative point of recourse that would satisfy the legalistic requirements created by the conception of the Bill. In that way, we might avoid the need for the Speaker to issue certificates. The noble Lord, Lord Martin of Springburn, explained to the House the pressures under which a Speaker may come in the ordinary day-to-day circumstances of modern politics—how very unpleasant and intense they are. That is a foretaste of the pressure that a Speaker might experience were the Speaker to be required, as the Bill proposes, to certify motions of no confidence.
If the definitions in the new clause proposed by the noble Lord, Lord Cormack, are clear and comprehensive, certificates might not be needed, but I fear that events might not be as cut and dried or mechanistic as it suggests. I suspect that other votes, beyond those that he itemises in his new clause, might be regarded as confidence votes—in which case, if the Speaker is to issue certificates, it will be contentious and dangerous, as two former Speakers of the House of Commons have warned us this evening.
My noble and learned friend Lord Falconer explained that it is incredibly difficult to tie down a motion of confidence, or of no confidence, in legal terms; I suggest that it is impossible. That is why I like the simpler solution suggested by my noble and learned friend.
I am most grateful to the noble and learned Lord, Lord Wallace of Tankerness, for the tone of all his remarks, for his recognition of the reality of the problems that noble Lords have sought to identify, and for his willingness to reflect on whether there may be better ways than the requirement that the Speaker should issue a certificate to enable the Government to pursue their purposes in the Bill. I beg leave to withdraw my amendment.
“( ) Parliament may otherwise be dissolved if—
(a) Her Majesty appoints another Prime Minister;(b) a Government of a different coalition is formed;(c) the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy;(d) the Prime Minister considers a Parliament not to be viable;(e) the number of MPs in receipt of the governing party’s or governing coalition’s whip falls below a majority of 10 over the combined members of the other parties in the House of Commons.”
Lord Howarth of Newport
My Lords, I do not detect a huge zest in the Committee for considering the remaining amendments on the Marshalled List at this time of the morning. However, if that is what the usual channels have agreed and wish to insist on, it is not for the rest of us to argue.
In moving Amendment 55, I wish to speak also to Amendment 55A. Both these amendments would widen the range of circumstances in which Parliament may—not must—be dissolved beyond the two contingencies that are provided for in the Bill, which are the eventuality of the two-thirds majority and that of a vote of no confidence. My first suggestion is that if a new Prime Minister is appointed by Her Majesty, there should be the possibility of a general election quickly following that. I do not think that when Mr Major replaced Mrs Thatcher in 1990, and certainly when Mr Callaghan replaced Mr Wilson in 1976, there was widespread public demand that there should be a general election. It was accepted that it was reasonable and appropriate that the Government should be headed by a new Prime Minister without a general election taking place. On the other hand, when Mr Brown replaced Mr Blair in 2007, there was a very discernible feeling in the country that there should have been a general election. Professor Bogdanor has suggested that that may be because our politics had become more presidential by that time, but I think that when Mrs Thatcher was our counterpart to President Reagan our politics were already fairly presidential, so I am not sure that that is the explanation. Be that as it may, there was that feeling in the country.
It is also interesting that before the recent election Mr Cameron proposed that a new Prime Minister taking office should be required to go to the country within six months of doing so. It would be helpful if the Minister was able to cast any light on why that proposal was dropped and is not incorporated in the Bill. Perhaps the Liberal Democrats thought that it was a bad idea for whatever reason—I do not know. However, it was an interesting suggestion and one that should not be forgotten. If we are likely to have more frequent hung Parliaments, and there are indications that that may be so, it follows that there is a greater likelihood that there will be a change of Prime Minister within the Parliament. If we are to have a situation in which one Prime Minister gives way to another but there is no election, that raises questions about accountability, not least in the context of the coalition’s own insistence that its reforms are designed to improve the accountability of politicians to the people. That is one set of circumstances in which it would be appropriate to allow a general election.
I then propose in the amendment Dissolution if a Government of a different coalition are formed, so we are not just talking about a new Prime Minister of the same party continuing in government. However, if we get a new coalition, I suggest that again accountability to the people should require at least the possibility of a new election without having to resort to devices such as Motions of no confidence and so forth, or indeed getting a two-thirds majority in the House of Commons, which might still be difficult.
Thirdly, I have suggested that if,
“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”,
it should be legitimate for him to go to the country. At this time of night, my memory is rather failing me, so perhaps the noble Lord, Lord Lexden, can help me. Did Mr Baldwin go to the country on tariff reform? I think that that may have happened, and in fact I see nods from better informed noble Lords on the other side of the Chamber. Had Mr Heath, when he performed the famous U-turn and adopted an incomes policy in 1972, thought that it was appropriate to go to the country, I do not think that anyone would have objected. If a similar situation were to develop now, surely that, too, would be appropriate. It should be possible for a major change of policy to presage an election in which the Prime Minister seeks the endorsement of the country for that new course of policy.
Fourthly, I have suggested that, if in the view of the Prime Minister a Parliament is no longer viable, again he should be able to seek Dissolution and go to the country. We talked in an earlier debate about just such a judgment made by Mr Attlee in 1951. Had this fixed-term Parliament legislation been in place, that Labour Government might have had to struggle on unable, by the Prime Minister’s own acknowledgement, to govern effectively unless it had been reprieved by a two-thirds majority. I think that there should be a surer way to provide that an election can take place in those circumstances.
My final suggestion is a bit arbitrary, if not even possibly whimsical. It is that where,
“the number of MPs in receipt of the governing party’s or governing coalition’s whip falls below a majority of 10 over the combined members of the other parties in the House of Commons”,
again it should be possible for a general election to take place. That is, in a sense, a variant of the situation in which a Prime Minister judges that a Parliament is not viable. However, in this case it would not necessarily be just the opinion of the Prime Minister that would count.
Amendment 55A is a little different. It picks up a suggestion made by Mr Gordon Brown that a Parliament may, not must, be dissolved if the House of Commons approves by a simple majority a Motion that the Prime Minister should request Dissolution from the Queen. This seems to be an elegant and simple solution to what the Government have stated as the key issue that they wish to resolve through this legislation. They think it is objectionable that the Prime Minister of the day should have the power to call the election whenever he wishes. Gordon Brown suggested that the Prime Minister should no longer have the power to seek Dissolution on his sole judgment—a power which I think was originally assumed by Lloyd George and which has rested with subsequent Prime Ministers. The Prime Minister would have to go to the House of Commons and secure a vote there before he could go to the Palace and request Dissolution. This would solve the main problem that the Government have set out to solve. It could be legislated for, although I do not think that it really needs legislation; it could be accepted as one of the conventions under which Parliament operates. I beg to move.
Lord Norton of Louth
I thought that I would speak briefly on the amendment. I can see the argument that it drives a coach and horses through the intention of having fixed-term Parliaments and I can see that it may attract some support in the House for that reason. I have problems with how the amendment is drafted, as it says:
“Parliament may otherwise be dissolved”.
Who determines that? It may otherwise be dissolved if Her Majesty appoints another Prime Minister. Is it the incoming Prime Minister who determines that there should be a dissolution? It also states that,
“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”.
One can see how any Prime Minister could have a fairly minor change of policy and decide, “I’d rather like to have a general election”, and it could be used as an excuse presumably for triggering the election. There is no requirement here; it has to be a major change in public policy. There are obvious drafting problems because I am completely unclear as to who would be responsible for triggering a Dissolution. That is my problem with it, but some may find that quite attractive since, in effect, it would undo the whole Bill.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.
I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.
I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.
On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.
Lord Howarth of Newport
My Lords, I was quite wrong. This has been a very zestful debate—positively sparkling. I congratulate all noble Lords who have spoken on their effervescence at this time of the night.
I tabled these amendments because I think that the Government have restricted the Bill to permitting elections to happen before the end of the fixed term in too limited a range of circumstances. I think there are circumstances in which it would be in the interests of politics and of the country that there should be an election. I apparently differ from the Government in thinking that elections are a good thing. I do not think that it is desirable to stave them off so that they can happen only once every five years, if you can get away with it. A general election is a great moment in the life of the country, and we should be willing to recognise that there will be situations in which an election would be a thoroughly positive thing that would be welcomed by the country and that would be good for our politics, for the quality of government and for our democracy. It may well be that I have not sufficiently tightly defined all these circumstances, and given that the noble Lord, Lord Norton of Louth, and the Minister have drawn attention to the palpable inadequacies of drafting in Amendment 55, I beg leave to withdraw it.
Lord Howarth of Newport
My Lords, it is me again, but this is the last time. The Bill abolishes the monarch’s power to dissolve Parliament but not the monarch’s power to prorogue Parliament. If the monarch is removed from the dissolution process, should she continue to exercise other prerogative powers, such as the power of prorogation or the power to summon Parliament? It is a question worth pausing on and it would be helpful to hear the Government’s account of why they have sought in this Bill to remove one very important prerogative power but to leave others in place.
I am not a great believer in consistency in constitutional matters. A constitution breathes and relaxes through its anomalies and is able to be responsive to the complex circumstances of the different parts of a country through the very existence of anomalies. I am rather of the view of Ralph Waldo Emerson who said:
“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”.
I think that we would all reject such consistency—I hope so.
At a practical level, the Bill leaves a loose end. The continuing power of prorogation is, in principle, open to abuse. If a Prime Minister were to be defeated on a vote of no confidence he could, under the terms of the Bill, ask the Queen to prorogue Parliament to get around the 14-day constraint. There was such an incident in Canada not very long ago. Following his re-election, the Canadian Prime Minister asked the Governor General to prorogue Parliament. The Prime Minister was seeking to avoid losing a threatened vote of confidence. Parliament was prorogued for two months. By the time it came back, the threat of that vote of confidence had pretty well gone away, so his continuing lease on power was ensured. The Constitution Select Committee thought that the likelihood of such an abuse occurring in the circumstances of this country was very low, with which I agree. I think that if any Prime Minister were to attempt to manipulate and abuse the power of prorogation, it would certainly backfire on him politically.
This amendment seeks to provide a safeguard against prolonged prorogation if a Prime Minister did seek to avoid the consequences of a no-confidence vote and get the election deferred to benefit himself or his party. The amendment should probably have been framed to guard equally against an abuse of the power of adjournment. Without such an amendment, the only safeguard that would remain would be the refusal of the monarch to accede to a request for prorogation. I think that we would all take the view that it is not a good idea to place the monarch in a politically contentious position. There is a loose end to be tidied up here and I should like the Minister to explain why the Government have left the power of prorogation as it is. I beg to move.
Lord Falconer of Thoroton
My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.
Lord Wallace of Tankerness
My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.
The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.
An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.
The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.
These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.
Lord Howarth of Newport
My Lords, I draw much comfort from what the Minister has just said. Indeed, we need not be too scared of the possibility of an abuse of the power of prorogation and, subject to what my noble friends consider in the mean time, I anticipate that we will not need to return to this issue on Report.
I am grateful for what my noble and learned friend said and for the tolerance of the House. If I have been a little overzealous it was because, very shortly before the first day of Committee on the Bill, only a small handful—perhaps not more than eight—amendments had been tabled. As we have all acknowledged, this is a constitutional reforming measure of first-rate importance. We attach great importance to the role of this House as a revising Chamber and it is appropriate that we have had a good range of amendments to consider and have given the measure useful scrutiny in Committee. I apologise that the House has had to put up with the sound of my voice for far too long. However, we have done a good job, as we shall again when we get to Report. In the mean time, I beg leave to withdraw the amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 9 months ago)
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Lord Rennard
I thank the noble Baroness, particularly for her latter point. In response to her first point, about how I should have known all this before 2005, I say very honestly that if all of us ignored all the evidence and all that we had learnt during the past six years, this place would be a poorer place and our legislation the poorer for it. I have reflected over the six years and have been convinced by many people that there should more pre-legislative scrutiny and more draft legislation. In 2005, I did not feel so strongly about that. Some of the more recent evidence points me in the direction of being strongly in favour of five-year, rather than four-year, fixed-term Parliaments.
Lord Howarth of Newport
My Lords, if we are to have a fixed-term Parliament, and I believe that we should not, we will do less damage if we fix it at four years rather than at five. I rather agree with the noble and learned Lord, Lord Lloyd of Berwick, and with my noble friend Lord Wills that there is little advantage to be gained when we are considering how to reform our own constitution, which has grown out of our distinctive political and constitutional tradition, in looking over the way to see how such matters are organised in other countries. I do not think that when de Tocqueville engaged in such an exercise he was intellectually desperate; it was quite a fruitful exercise. It is worth noting that there is no advanced country with which we can sensibly be compared that fixes the terms of its Parliament for as long a period as five years. France has a fixed term of five years, but it has presidential government; Italy has a fixed term of five years, but Italy is a byword for governmental instability; Malta and Luxembourg have fixed five-year terms, but we cannot sensibly compare ourselves to them. I do not think that there is an advanced democracy abroad which sets the term of its Parliament at five years which should encourage us. If we look inwards at our own affairs, we should remind ourselves that the terms of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly are set at four years. It is therefore incumbent upon the Government to explain why they have taken such an eccentric view. It is all the more so because setting the term at five years, notwithstanding what the noble Lord, Lord Marks of Henley-on-Thames, said, seems to be at odds with the principles that the Liberal Democrats have professed.
If we fix the term of Parliament, for whatever duration, we insulate Members of Parliament and, significantly, Ministers from public opinion. The longer the term, the worse that effect; the shorter the term, the more accountability and democratic engagement are brought into play. In the light of all the professions that the Deputy Prime Minister has made about the whole thrust of the constitutional reforms being brought forward by the coalition Government being to improve accountability and democratic engagement, it seems very odd that they should have decided on five years rather than four. It was Mr Mark Harper, the Parliamentary Under-Secretary, when he was giving evidence to your Lordships Select Committee on the Constitution, who used the phrase, “it is an issue of judgment”. It should not perhaps surprise us very much that the judgment that the Government took was that which best suited the political interest of the coalition parties. I hope that the noble and learned Lord, Lord Wallace of Tankerness, will be able to persuade us that the Government have some better reason.
Lord Butler of Brockwell
My Lords, I decided to intervene briefly in this debate because I felt that the arguments advanced by my noble friend Lord Armstrong at Second Reading had not been given voice and because he was not in his place. He now is in his place and I think that he could put them a lot better than I can. They have been referred to, but I should like to reinforce them.
Like other noble Lords, I do not like this Bill. It is an unnecessary Bill. As the noble Lord, Lord Cormack, said, if the Government had wanted to commit themselves to a five-year Parliament, they could have done that under the old legislation. For that reason, as the noble Lord, Lord Grocott, said, this is not a Bill that binds the present Government so much as it does future Governments. There has been a lot of speculation in the debate about the Government’s motives for what they have done. I do not want to enter into that, because I agree with the noble and learned Lord, Lord Falconer, that what this House should do is decide on principle what is better for the country. On that issue, I come down in favour of the view expressed by my noble friend Lord Armstrong at Second Reading. I do so for a reason which I am sure will be dismissed as a Sir Humphrey-esque argument, as a bureaucrat’s argument, but I am not ashamed of that. Those of us who have seen government from the inside—the noble Lord, Lord Dobbs, made this point, rather unexpectedly from my point of view, but from a political perspective—have reason to put to the House that too frequent elections are not good for the government of the country. Terrible things are done in the lead-up to a general election. Decisions are put off or are made in budgets which are designed to attract voters and are not in the interests of the country. For example, it will be in your Lordships’ memory that the Personal Care at Home Bill, which was introduced by the previous Government before the general election, was a blatant piece of electioneering. I made the point then that, in the economic conditions of the country, it was irresponsible to the highest degree. So to have elections more often than we need to have is not in the best interests of government.
Some people may say that I am against democracy, but that would be unfair. Of course there have to be elections. However, if there is a choice between every four years or five years, I would argue in favour of a five-year term.
Lord Foulkes of Cumnock
My noble and learned friend is aware that I have just spent the last year of a four-year term in the Scottish Parliament. We happen to have been legislating right up to the very last day of that Parliament. There has been none of the kind of lassitude, or the feeling that the noble and learned Lord, Lord Wallace, described as an end-of-term—what word I am I looking for?
Lord Foulkes of Cumnock
There has been none of that fatigue in that Parliament, which has been legislating right up to the wire, and no lame dog—
Lord Howarth of Newport
My Lords, the effect of my amendment would be to remove the provision for “resetting the clock”, as the phrase goes. If the amendment were incorporated into the Bill, and were there to be an early general election under either of the two provisions in Clause 2, that early general election would not be followed by a new full fixed term of the subsequent Parliament. Only the balance of the term left over from the previous Parliament would be served by the new Parliament, and a general election would take place at the end of five years—or, if at Report we adopt a four-year fixed term, at the end of four years—as established before the early general election took place.
The provision for resetting the clock is an important element in the Bill and we should have the opportunity to think about it in Committee. I understand that in Sweden, if an early general election is called, the electoral cycle none the less remains unaltered; they have the provision that I am proposing in the Bill. Of course, Parliament legislated that there should be four-year fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. That legislation provides for the possibility of an exceptional early election but does not provide that the clock is reset in Scotland, Wales or Northern Ireland, and one might say that sauce for the goose should be sauce for the gander.
If we are to have fixed-term Parliaments, why do we not have genuine fixed terms? That would enable the benefit of the discipline of fixed terms to be fully experienced and everyone would know where they stood. It would remove the incentive for a Government to contrive an early general election by, for example, engineering a vote of no confidence in themselves. The requirement would be less significant if in due course the House approves one of the amendments that provides that only the Leader of the Opposition may table a Motion of no confidence, but without that amendment we must recognise that there is a possibility, and it could be an attractive one, for the Government to engineer such a Motion in order to achieve an early general election. It would discourage the parties from colluding to take advantage of the two-thirds provision for an early general election, and would lead to the benefits of full five-year terms being more surely secured, as no doubt the noble Lords, Lord Armstrong of Ilminster and Lord Butler of Brockwell, would wish. It would keep the rhythm of the boundary reviews in sync with the electoral cycle, the importance of which the noble Lord, Lord Rennard, stressed in our previous debate.
When Mr Harper, the Minister, gave evidence to your Lordships’ Constitution Committee, he was rather equivocal on this point—he simply said that it was a judgment issue whether or not the provision for resetting the clock should be built into the legislation. He said,
“on balance we have taken the view that resetting the clock is the right one”—
that is, the right decision. Once again, as with the issue of judgment as to whether the fixed term should be for four years or five, the coalition’s judgments just happen to favour its own interests in staying in office. Again, I ask the Minister whether the Government have any better reason for having incorporated the provision for resetting the clock in the event of an exceptional early general election.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Howarth, for the amendment. I was initially puzzled about its effect, which would be that it would provide that the next scheduled election was not held following an early general election under Clause 2. This gives me an opportunity to say something about subsections (3) and (4), as he has indicated that with this amendment he is seeking to ensure that the clock is not reset. His closing remarks indicated that this is a matter not of high principle but of judgment.
Subsections (3) and (4) of the clause provide that, where an early election occurs, the polling date for the next election will be the first Thursday in May in the fifth year of Parliament, unless the early election falls on a date before the first Thursday in May, in which case the length of the ensuing Parliament will be calculated as four years from the next first Thursday in May. That will deliver certainty as to when the next election will be, but—this is a crucial point—it also gives the incoming Government as close to a five-year term as possible. It eliminates the need for the electorate to return to the polls in quick succession, as the clock is effectively reset.
The Constitution Committee examined this aspect of the Bill. In its report it concluded that if there is an early general election, a Government elected at that poll should have a full term, or as near a full term as possible, in which to develop their policies and take their legislative programme through Parliament.
Some noble Lords may nevertheless have the concerns expressed by the noble Lord about the term of the Parliament after an early election. I know that some consider that it would be preferable for an early election not to affect the date of the ordinarily scheduled election, but that could well mean that a Parliament was given only a relatively short period of time. It may be that a Government would be elected with a substantial majority, and it would be difficult to explain to an electorate in these circumstances why it would be necessary to return so quickly when it might appear that a Government had been elected relatively recently with a mandate. They might be surprised and somewhat confused by that approach.
Not to allow an incoming Government to serve a full term would lead to a system with potentially two types of Government: those entitled to a full term to implement their policies, and those who would have to make do with the time left to them before the next scheduled election. That could also alter the nature of the elections themselves. Why should the mandate provided at one election be any different from the mandate provided at another?
I note the points made about the devolved Administrations in both Scotland and Wales. There is a difference; I think that the Northern Ireland Assembly is much more akin to what is proposed in the Bill. It is also the case that, given the proportional systems that are in place for elections to the Scottish Parliament and the Welsh Assembly, it is unlikely that you are going to get a Government elected with a large single-party mandate. If a party had not been elected with such a mandate, people would not think it so odd that it did not have a full term.
We gave consideration to this matter, but the balance comes down in favour of resetting the clock. I am grateful to the noble Lord for his amendment. It has been an opportunity for us to air this important aspect of the Bill. I hope that he will agree that there is merit in resetting the clock and, on that basis, will withdraw his amendment.
Lord Howarth of Newport
I am grateful to the Minister for explaining the Government’s case slightly more fully than the debate at Second Reading gave him the opportunity to do. After all the excitement of the previous debate, the House has not been particularly zestful about embarking on an exhaustive debate on this topic, but this provision in the Bill is significant and it is right that the House has received the explanation that the Minister has given.
If my amendments were incorporated, however, they would provide greater certainty. The Minister seemed to suggest that there would be greater certainty if we had a resetting of the clock. There would be greater certainty about the duration of a Parliament if we did not have that provision, but I do not want to quibble. I also accept his point about proportional representation making a difference. I am grateful to him for correcting my appreciation of the position in Northern Ireland.
I agree that, on balance, it is better to include the provision to reset the clock. One could make a reasonable case for not including that provision, or for not applying it, if the early general election were to occur in the first half of a fixed term of Parliament. It might be accepted that, if there was more than half of the fixed term still to go, it would be sufficient and the benefits of discouraging early elections would be felt. However, I certainly agree that if there were an early general election later in the Parliament, it would not make sense not to start a new fixed term. If we were to elect a new Government, they would need a decent span of time in which to govern. I also do not think that the need to have two general elections in rapid succession would be well received by voters if this was the only reason why there had to be another election. I am glad that we have been able to look at this issue and beg leave to withdraw the amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 9 months ago)
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Lord Howarth of Newport
My Lords, Amendment 18 would remove the flexibility for the Prime Minister to have the general election up to two months earlier or two months later than the five-year term. Amendments 22 and 23 in my name would delete just the power to call the general election two months earlier.
I thought it was important that we should have the opportunity to scrutinise this provision. In the Explanatory Notes, the Government explain that they have put this in,
“to accommodate short term crises or other conditions which might make it inappropriate to hold the election on the scheduled date, for example, a repeat of the foot and mouth crisis which led to the postponement of the local elections in 2001”.
One can see that there could be some sense in allowing for such possibilities but I wonder how carefully the Government have thought this provision through. The foot and mouth epidemic ran for some considerable time and it was possible for the Government to react in the way that they did in postponing the local elections in that year. However, could other disasters be anticipated so that the Prime Minister would know that he needed to call a general election earlier than the prescribed date or, indeed, later? Might not the power to call a general election two months earlier be open to abuse? I am not suggesting that this Government would abuse it but we are legislating for the indefinite future.
A Government might anticipate disastrous figures that were about to be published. I seem to remember that Harold Wilson was of the view that he lost the election in June 1970 because there were bad trade figures—something to do with airplanes, if I remember aright. Indeed, this Government might anticipate that some terrible figures might come out on unemployment or they might anticipate that there was going to be a major social protest, as is due to occur next Saturday. As time goes on and the Government pursue their deflationary and contractionary policies more and more ruthlessly, who is to say what protests may not emerge? Therefore, the Government might think that it was not expedient to hold an election when they were liable to encounter such expressions of public opinion and might contrive an excuse to get the election in just a bit ahead of the unfortunate event that they anticipate. Might not the power to defer the general election by up to two months equally be capable of abuse? A crisis might comprise the governing parties doing badly in the opinion polls and the turkeys wanting to postpone Christmas.
Should not the clause be amended? If the Government have a majority in both Houses, I worry that they will very easily secure their majority for the order to bring the election forward or to postpone it. We need to tighten up these provisions. I suggest that we should take out entirely the provision for the Prime Minister to bring the general election forward by two months. Amendments 22 and 23 would do that. We should remove that temptation to manipulate the arrangements. We should also tighten up the drafting to specify the kind of circumstances that would constitute a genuine crisis and justify the postponement of the election by a couple of months—perhaps as a result of an epidemic, a natural disaster or the outbreak of war; although our warrior Prime Minister might be tempted to declare another no-fly zone over Brussels to attract the Eurosceptic vote and achieve some kind of Falklands effect. You never know.
Amendment 24, in the name of the noble Lord, Lord Norton of Louth, indeed attempts to address this problem. I suspect that his amendment is not stringent enough. It is expressed with a high level of generalisation and may need to be amplified and expressed in greater detail. The Liberal Democrat amendment, Amendment 25, also seeks to address this problem, but would drag in the Speaker and require a super-majority of two-thirds. Those would certainly be safeguards against abuse, but there are other difficulties with that. The Government’s amendment, Amendment 26, states that the Prime Minister must give reasons when he lays the order, but that would add nothing in practice. The Prime Minister is hardly going to lay the order and say to Parliament, “I am not going to tell you why”.
These provisions need further thought and tightening up. If the Government cannot satisfy the House today, we may need to revisit this issue on Report. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes)
Perhaps I may point out that if the amendment were to be agreed, I could not then call Amendments 20 to 24, by reason of pre-emption.
Lord Howarth of Newport
My Lords, this has been a thoughtful debate about what has been recognised on all sides of the Chamber as a genuine conundrum. The noble Lord, Lord Cormack, drew our attention to the irony of a Bill that is intended, as he put it, to clip the wings of the Prime Minister actually proposing to confer on him the extraordinary additional power of extending the life of a Parliament beyond the five years that have been enshrined in legislation since 1911. That alone should give us pause and make us think pretty carefully about what we are doing. We all recognise that there is a significant decision to be made. I think that we all recognise, too, that there is a problem; there cannot be doubt about that. My amendment is intended only as a probing amendment. When I tabled an amendment proposing that subsection (5) be deleted, it was certainly not because I thought that this was a problem that we should ignore. We need if we can to provide satisfactorily for the contingencies that noble Lords have suggested could occur.
The noble Lord, Lord Norton of Louth, with his characteristic lucidity and incisiveness, set out the criteria that he thought the House should have in mind as we frame this legislation. He desires to be rigorous. I suggest to him, as I did in my opening remarks, that his wording needs to be tightened up and made more rigorous, and not just in the technical drafting sense to which the Minister drew our attention. The noble Lord suggested that the choice was either to adopt the wording of his Amendment 24, perhaps strengthened, or to drop subsection (5), as Amendment 18 requires, and simply remove altogether from the legislation the power to bring forward or defer a general election in an emergency.
The noble Lords, Lord Rennard, Lord Tyler and Lord Marks of Henley-on-Thames, like the noble Lord, Lord Norton, commendably went further than I had done and tried to propose a constructive solution. Rather than trying to find wording that would encompass even in fairly general terms all the possible contingencies that ought to trigger such a power, they suggested a procedural device that, without attempting to anticipate all the varieties of emergency that could occur, would respond adequately to an emergency of that kind if it occurred. There is a lot of merit in that approach.
For reasons with which I shall not detain the Committee by explaining now, I have my worries about bringing in the Speaker on the lines that the noble Lords’ amendment proposes, but we shall talk about a Speaker’s certificate when we come to other amendments in due course. However, the noble Lord, Lord Rennard, was quite right to insist on the desirability of consistency in the legislation that determines this option not only for the Parliament of the UK but also for the Scottish Parliament, the Welsh Assembly and local government. My noble friend Lord Foulkes rightly drew attention to the possibility that, if we had an elected House of Lords, we would need equally to provide for such powers to apply in relation to elections to it. He rightly warned us once again of the dangers of engaging in piecemeal and ill prepared legislation on the constitution.
I am grateful to the noble and learned Lord for his exceptionally full and reflective response to the debate. He has brought forward government Amendment 26, which simply requires that, if the Prime Minister proposes an order to alter the date of the election in an emergency situation, he must set out his reasons. That is not sufficient. I know that the Government were encouraged to bring forward a remedy in these terms by the Select Committee on the Constitution, but this debate has shown that this Committee of the Whole House is not satisfied that simply requiring the Prime Minister to give reasons meets the needs of the case.
I am grateful for the willingness that the Minister has signified to think further about this issue and about how we can come to a better solution to the problem. On that basis, I beg leave to withdraw my amendment.
Lord Norton of Louth
I choose my words carefully and refer solely to national legislatures. If we are to have two mechanisms for triggering an election, then we could usefully explore the alternatives to what it proposed. Do we need the subsection at all? In evidence to the Constitution Committee, David Howarth noted that if there is all-party agreement that a situation has arisen necessitating an early election, then it would be relatively straightforward to pass an amending Bill. If the measure was introduced for political advantage then this would, he argued, deny the measure the necessary broad support and it would make slow progress in the Lords.
Adopting such an approach would avoid the problems associated with the artificial hurdle created by the subsection. My view is that the most appropriate way to proceed, if we wish to remove the Prime Minister’s discretion as to when an election is to be held, is to provide that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed. My amendments 35 and 38 seek to achieve that and I shall develop the arguments for those shortly. They overcome the problem I have identified with the Bill in respect of the Government resigning without having been defeated on a vote of confidence.
I know that the principal argument for this provision is that it is in the coalition agreement. The problem with that assertion is that the provision is not in the coalition agreement. The agreement said that a binding Motion would be introduced in the House of Commons and a Bill brought forward providing for a Dissolution Motion to be passed if 55 per cent of MPs voted for it. In the event, there has been no binding Motion and the extraordinary majority to pass a Dissolution Motion is now two-thirds of all MPs. We know from David Laws’s book, 22 Days in May, which has already been quite extensively quoted from, that the figure of 55 per cent was the product of political calculation. It is a threshold utilised by no other national legislature. Given that, the case for the subsection must rest on more than its inclusion in the coalition agreement. I am not convinced that the case for it relative to the alternatives is compelling. I beg to move.
Lord Howarth of Newport
My Lords, I too, put my name to the amendment to remove the two-thirds provision. This was an improvisation when the coalition’s original proposal—that 55 per cent of Members of Parliament should be able to require an early general election—was greeted with widespread derision and, indeed, anger. It was noted, even before Mr Laws underlined it in his book, that the Conservatives and Liberal Democrats together had 56 per cent of the votes in the House of Commons. The Liberal Democrats and Labour had less than 55 per cent, and so this deal would have guaranteed that Parliament could only be dissolved at the wish of both partners in the Conservative/Liberal Democrat coalition. They could not get away with that, so they built in the two-thirds requirement. They certainly did so with a continuing view of protecting their hold on office.
This two-thirds figure has not been adequately considered. It is argued in its support that no post-war Government have commanded two-thirds of the votes of the House of Commons, but it has also been noted that the National Government of 1931 did command two-thirds of the votes of the House of Commons. We cannot rule out the possibility that there could be another landslide general election. It is admittedly unlikely that one party could secure quite such a large proportion of seats in the House of Commons, but it is not inconceivable.
What is more reasonable to anticipate is that a new coalition could be formed. Perhaps this coalition could seduce other minority parties to join it. It would need only another 10 per cent of Members of Parliament to get to the magic figure required. This is a constitutional innovation of major significance that is quite unheralded, unconsulted upon and undebated by academics and the public. It is true that under its own standing orders the House of Commons does in certain situations stipulate that certain numbers of Members of Parliament must vote, for example, for a quorum or a closure. So it is not entirely novel as a principle of Commons procedure, but it is certainly novel constitutionally. If a super-majority is felt to be preferable, why does it have to be provided for in legislation? Could it not be provided for in the Standing Orders of the House of Commons? Indeed, why should we not accept—this is after all the status quo—that a simple majority for an early general election would be sufficient in the House of Commons?
Lord Phillips of Sudbury
I have slightly lost the noble Lord’s argument. Is he arguing in favour of a bare majority or a 75 per cent majority?
Lord Howarth of Newport
I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.
Lord Falconer of Thoroton
My Lords, again, Mr Laws explains how we got here. But when you see how we got here, it is difficult to understand why we are here. Perhaps I may read a paragraph that has not yet been quoted:
“There was a debate for thirty minutes or so on arrangements for dissolving a parliament before the end of its five-year term. This was an issue which we raised, but William Hague soon realised that the main risk lay with the Conservatives. Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.
He continues:
“Huhne originally suggested that there should be a 66% threshold for dissolving parliament before its full term was up, in line with the situation in Scotland. George Osborne said he thought that 66% was rather high and that 55% or 60% was closer to the mark. After some work on Ed Llewelyn’s calculator, and consideration of by-election risks, it was decided that a 55% vote of MPs would be required to provide for a dissolution. This was just greater than the combined opposition and Lib Dem parliamentary parties, thereby safeguarding the Conservative position”.
It is absolutely plain from what Laws is saying there that they were trying to guard against Dissolution, including a no-confidence vote. There is no doubt about that, because he says:
“Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.
That must be referring to a vote of no confidence. It is therefore plain from Laws’ book that it was envisaged that you could not get rid of the Government with an ordinary vote of no confidence and that the only provision intended to allow for an early end—that is, before the five years—was if the super-majority was satisfied, and that could not be delivered by the Lib Dems coalescing with Labour.
I think that that was to be put into a binding resolution, whatever that may mean, in the House of Commons. Pressure was then placed on the Government in the public debate which followed, and they changed this in two respects: the figure of 56 per cent became two-thirds, and they agreed to a vote of no confidence as a way of getting rid of the Government. Why are they both there? Which two separate situations are they trying to cover? It looks as though the coalition agreed to the 56 per cent to prevent the possibility of being voted out on a vote of no confidence. I am pretty sure that that is what happened, but they were pushed off it by public pressure and had to agree to a vote of no confidence. They retained the super-majority as a fig leaf in order to try to give some justification for it. That is what Mr Laws’ book is suggesting. Could the Minister say whether I am wrong about that analysis? No other factual analysis is being offered for why we are in the extraordinarily unusual position where both a simple majority and a super-majority can get rid of the Government by way of a vote in the House of Commons. It looks as if the analysis that I have given is the reason.
We are entitled to an explanation for this. The point made by the noble Lord, Lord Norton of Louth, who is respected throughout the House as a constitutional expert, is significant: no other national parliament has this extraordinary provision in it. If it is in there only because it was part of a negotiation that then got shot away by public pressure, why are the Government keeping it in? It is important that the noble and learned Lord gives us some information about it, because at the moment the only explanation on the record is the one that I have given. It is discreditable for the Government to reform our constitution simply on the basis that an idea that was floated in the coalition agreement got shot away but they kept it in, in order to preserve I am not sure what.
A second and separate point that the Minister needs to deal with is: what happens when the Government resign and no one else wants to form a Government? On the basis of the Bill, it appears—again, the noble Lord, Lord Norton, has made this point and I have not heard an answer to it—that you have no Government and no Dissolution. I would be grateful to know what happens to our nation’s Government at that point.
Lord Marks of Henley-on-Thames
My Lords, the effect of the amendments in this group, tabled by my noble friends Lord Rennard and Lord Tyler, and by me, is to refine Clause 2(2), which covers the provision for an early dissolution in the event of a vote of no confidence on a simple majority followed by a period of 14 days in which no Government is formed that enjoy the confidence of the House of Commons.
At Second Reading, the noble and learned Lord, Lord Falconer of Thoroton, in what he described sotto voce a moment ago as one of his “many agonies”, made the point that under the clause it would be theoretically possible for a Prime Minister to engineer a vote of no confidence in his or her Government by his or her side so as to secure an early dissolution at a time of his or her choosing. That would deprive the Bill of its intended very beneficial effect of removing from the Prime Minister precisely that power.
The criticism cannot be made of Clause 2(1), which requires a two-thirds majority of all the seats in the House of Commons to trigger an early dissolution, so that in practice cross-party support would be required, given that no Parliament in recent history has enjoyed such a majority. However, in relation to Clause 2(2), the criticism made by the noble and learned Lord is technically accurate. At Second Reading, the response was made that any Prime Minister engineering a vote of no confidence in his or her Government in such a Machiavellian way would be punished at the ballot box. However, I and others suggested that the problem might need to be addressed at later stages of the Bill. The need to address the point made by the noble and learned Lord is given added weight by the fact that, in Germany, Governments have resorted to the device of engineering defeat on votes of confidence, as the noble Lord, Lord Norton of Louth, correctly pointed out. It was done by Chancellor Brandt in 1972, by Chancellor Kohl in 1982 and by Chancellor Schroeder as recently as 2005.
The way in which Amendment 30 addresses the problem is simple. By requiring that a Motion of no confidence under Clause 2(2) must be tabled by the leader of the Opposition, the mischief is effectively addressed. The position of the leader of the Opposition is constitutionally recognised. He or she would inevitably be—and historically invariably has been—the person who would move a genuine Motion of no confidence. It follows that requiring that he or she be the mover of such a Motion if it is to have effect is a simple way to achieve the intention of the Bill. It would also provide a certain symmetry. Given that the purpose of the Bill is to remove from the Prime Minister the power to call an election at a time of his or her choosing, who better to be responsible for the trigger for an early election when all-party consensus is absent than a Member of the House who seeks to replace him or her as Prime Minister?
I note that Amendment 33, proposed by the noble Lord, Lord Howarth of Newport, is to the same effect. It gives me great confidence in our amendments that this is the first time since I joined your Lordships' House that I have had the pleasure of expressing agreement with the noble Lord in a debate on a constitutional matter.
I will make one final point. A further effect of Amendments 30 and 31 is that they contain a simple definition of a vote of no confidence. A Motion of no confidence would be a Motion declaring that the House of Commons had no confidence in Her Majesty’s Government. That would mean that, once any vote went against the Government on an issue that would or might be seen as a confidence issue, the leader of the Opposition would have a chance to table a Motion of no confidence in those terms. If it were passed, the Speaker’s certificate would follow and the 14-day period provided for by Clause 2(2) would be triggered. If the Motion failed, that consequence would not follow. That arrangement would avoid doubt or argument, and it would avoid the need for any complication in the definition of what did and what did not constitute a vote of no confidence. I beg to move.
Lord Howarth of Newport
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has just noted, it is remarkable that I have tabled an amendment which seeks to achieve exactly the same purpose as the amendments in this group tabled by the Liberal Democrat noble Lords. It is a nice example of how our parliamentary dialectic can be fruitful. The public notice all this adversarialism—they notice that we are always disagreeing with each other. However, if one takes a longer view, we find that all this debate and argument tends to produce a new consensus. Until recently, the Liberal Democrats wanted immediately to move on to discover new truths and interest us in new suggestions. They have been the grit in the oyster, endlessly introducing new ideas into our public debates. I hope that they will be able to continue to do so now that they have joined the governmental establishment. We shall see.
We have heard a certain amount about Germany from the noble Lords, Lord Norton of Louth and Lord Marks. I think that it was in 1983, although the noble Lord, Lord Marks, suggested it was 1982—the noble Lord, Lord Norton, will tell us who is right—that Chancellor Kohl deliberately contrived to defeat a Motion of confidence in his Government. As I understand it, the reason was that he wanted an election because he had come to power in the previous year by means of a parliamentary vote and not by means of popular endorsement at the election. He lacked a popular mandate and he wanted one. I do not think that he was punished at the ballot box, so I am not sure that the safeguard that the Government have suggested exists against the cynical use of the no-confidence provisions in the Bill to contrive an early election by an unscrupulous Prime Minister would necessarily work. On that occasion at least, Chancellor Kohl did not suffer at the election.
It is at least a possibility that Mr Cameron, too, not having won an election and feeling that he lacks popular endorsement, might, if he thought that he had an opportunity to do better in an early general election, be very tempted to go for that. It is hard to foresee that but who knows? If the 14-day provision that we are about to debate on another amendment were taken out, it would be even more important to guard against the Prime Minister being able to contrive a vote of no confidence. If immediately following a vote of no confidence he could go to the country, it would be that much more attractive to him.
I think we can see why the Liberal Democrats are keen for the Bill to be amended to provide that only the leader of the Opposition can table a Motion of no confidence. It is, sadly, because they do not trust their coalition partners and the Prime Minister. They worry that, as the Liberal Democrats become more unpopular—and we will perhaps see evidence of that after the local government elections and in the AV referendum—and as the cuts, which those who voted for them did not expect them to support, start to bite, Mr Cameron may ditch them and cut and run. Unless this amendment is in the Bill, the supermajority lock may not do the trick for them and keep the Deputy Prime Minister and his colleagues in office by postponing the evil day when he has to face the electors of Sheffield and the Liberal Democrats have to face the electors of the United Kingdom.
I note that an amendment of this kind would be less necessary if we were to have proportional representation as that would make it less likely that any party would win an overall majority in an early election and, therefore, it would be less tempting for the Prime Minister to contrive an early general election. However, we are where we are. The Liberal Democrats failed to secure a referendum on proportional representation and we have a referendum on the alternative vote only. I hear different views as to what the alternative vote might produce: some say that it is a majoritarian system of election that tends to reinforce the swing and others say that it is more likely that the alternative vote will produce an endless series of coalitions. Whatever the outcome proves to be in practice, with that electoral system it would be more important to have the safeguard which the noble Lord, Lord Marks, and others have proposed. I hope we do not have AV and some of us will do our best to ensure that we do not have it.
I see one significant argument against these amendments. We might have a situation, which the noble Lord, Lord Norton of Louth, has adumbrated and which the Government have already played out, in which the Government lost a vote on a key Bill, they were incapable, for whatever conjunction of circumstances, of governing effectively, and their majority had fallen as in 1951 or 1996, but the Opposition reckoned that it was in their political interest to defer the election to allow the Government to continue to stew in their political juice for a little longer. In that situation they would not want to table a Motion of no confidence just yet. Of course, that would be bad for the country.
These are all hypothetical possibilities. It is very difficult for us to provide for every contingency that might arise, but I think it would be sensible to incorporate an amendment of the kind moved by the noble Lord and of the kind that my Amendment 33 provides.
“( ) the Speaker of the House of Commons had in advance of the motion in question being debated certified that the motion was to be regarded as a motion of no confidence, and”
Lord Howarth of Newport
My Lords, this amendment deals with the requirement for the Speaker to issue a certificate. This is one of the most important and difficult issues in the Bill. I was very interested to hear the noble Lord, Lord Marks, speak thoughtfully about this problem in his concluding remarks just now. It seems to me, if I may venture to suggest this to the Committee, quite unsuitable that we should embark upon this very major debate at this hour of the evening, but if that is its wish, I shall very briefly sketch the issue that I think we should return to—which we will be able to do, for example, on Amendment 51, which I have tabled as an amendment to Amendment 50 in the name of the noble Lord, Lord Cormack.
Amendment 32 would require the Speaker to have certified in advance that a Motion was to be regarded as a Motion of no confidence if it were to lead to an early general election. The legislation requires the Speaker to issue a certificate establishing that a Motion of no confidence has been passed on a Division as a precondition of Dissolution and an early general election. The idea of a Speaker’s certificate was lifted from the Parliament Act 1911, which requires the Speaker to certify that a Bill is a money Bill before it goes to the House of Lords. That certification is of a relatively ascertainable fact. The characteristics of a money Bill are clearly described in the preceding subsection of the Parliament Act.
The introduction of the concept of a Speaker’s certificate is entirely novel, I think, in the context of Motions of no confidence, and I believe that it needs extremely careful consideration for three reasons. First, there is the difficulty of defining a Motion of no confidence, a Motion of confidence or vote of confidence—what exactly is the Bill talking about? Secondly, through this procedure, the Speaker would be liable to be placed in extremely contentious political circumstances and to have to play an extremely contentious part in them. Thirdly, the statutory requirement for the Speaker to issue such a certificate may lay him open to legal challenge in the courts, either those of this country or the European Court of Justice. That is a major hazard apprehended by the Clerk of the House of Commons. For all these three reasons, I believe that we need to proceed with the utmost caution and that what is drafted in the Bill carries with it very considerable risks.
Lord Wallace of Tankerness
I appreciate the concern of the noble Lord, Lord Howarth, about the lateness of the hour. I always understood that this evening’s proceedings were going to go late. We tried to accommodate that by finishing somewhat earlier last time. Nevertheless, it is an important point, as he indicated, that there will be the opportunity at a later stage with a subsequent amendment to perhaps explore this further, including the point raised by my noble friend Lord Norton of Louth.
The effect of the amendment would be to require the Speaker to issue two certificates before an early election is triggered on account of a no-confidence vote. The clause already provides for the Speaker certifying that there has been a no-confidence Motion, and a Motion of no confidence in the Government during the ensuing 14-day period. The amendment, as moved by the noble Lord, Lord Howarth, would require an additional, earlier certificate issued in advance of a debate as to whether the Motion is to be regarded as a Motion of no confidence.
This again arises out of the concern that the House of Commons may not always know whether it is voting on a Motion of no confidence. It is highly unlikely that the House of Commons, in its ordinary business, would pass a resolution which was perhaps contrary to a matter of policy and the wishes of the Government of the day, but a matter on which no one had ever actually thought that there was any great store set, and then at the end of the 14-day period the Speaker unexpectedly issues a certificate. I have heard that concern expressed but it is not a realistic scenario.
The point was made that my honourable friend Mr Mark Harper indicated that in all likelihood a future no-confidence Motion would not only take the form that it did when a Motion was last passed but also, in the event of it happening, the Speaker of the House of Commons would be able to inform Members before they vote. For example, if it was on an amendment to the Queen’s Speech, the Speaker would inform Members of the House of Commons before the vote that, in the event of the Motion being passed, the Speaker would regard it as a no-confidence Motion for the purposes of Clause 2.
That is a simple and straightforward process. The Speaker advises the House of Commons on other procedural matters before it. I understand the point that has been made and, clearly as I indicated in my introductory remarks to the previous set of amendments, we will reflect on all these points. Yet we find it difficult to accept that there should be an additional layer of complexity to the process. One wonders how much time there would be to allow such a certificate to be issued if it was a pressing debate. It would be regrettable if such a debate was somewhat held up while the Speaker was engaged in the process of considering whether a certificate should be issued and that is then done.
We share the goal behind the noble Lord’s amendment—that the Commons should be well informed before it votes on confidence matters. The idea of an ambush is unfounded but I hear what the noble Lord says with regard to trying to import that greater degree of certainty. It is an issue to which we will return, one we will certainly reflect on and one we will perhaps have a wider debate on—perhaps with more participants—in the subsequent Amendment 51. On that basis, for the moment I ask the noble Lord to withdraw his amendment. Perhaps when we come to the later debate, we will address the questions that my noble friend Lord Norton of Louth has also raised.
Lord Howarth of Newport
I thank both the Minister and the Committee and beg leave to withdraw my amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 9 months ago)
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“( ) The polling days for the next parliamentary general election after the passing of this Act will be the weekend of 8 to 10 May 2015.”
Lord Howarth of Newport
I wonder if I may be permitted to make a general point, briefly, as we move into Committee, before I come to the specific matter of Amendment 1. I tabled this and other amendments after I had seen last Thursday that only eight amendments had been tabled to this Bill in Committee. I began to be worried that we might not conduct a proper scrutiny of the Bill in Committee—the very opposite hazard to that which we faced with the previous major constitutional Bill, the Parliamentary Voting System and Constituencies Bill. I have tabled rather a lot of amendments, but I assure the House that neither I nor my colleagues intend to mount a filibuster on this Bill—nor did we on the previous Bill. We tabled some dozens of amendments, but that was very modest indeed compared for example to the opposition parties in the Assemblée nationale de France in 2006, when in opposition to the Government’s measure to reduce the state’s shareholding in Gaz de France they tabled 137,449 amendments. That was a real filibuster. Noble Lords will also be aware that the earliest recorded instance of the practice of the filibuster was on the part of Cato the Younger, who talked out proceedings in the Roman senate because he believed that it was important to resist the ambitions of Julius Caesar, flushed with victory, to flout the conventions of the Roman republic. Of course, for Julius Caesar read Nicholas Clegg—and our task has been to resist the Caesarism of Mr Nicholas Clegg.
In all seriousness, I believe that the point at issue in our proceedings on the Parliamentary Voting System and Constituencies Bill, aside from the particular contents of that legislation, was the continuing ability of this House to perform its role as a revising Chamber. Proceeding in a fashion whereby legislation is scrutinised on all sides of the House, we move things forward on the basis of reasoned debate and the Government listen and accept well made arguments, particularly when supported by majority opinion in this House. But I am encouraged because I need not have feared last Thursday that there would not be enough amendments. Happily, Liberal Democrat and Conservative Lords have tabled considerable numbers of amendments. They have awakened from their long slumber during the Parliamentary Voting System and Constituencies Bill. The noble Lord, Lord Rennard, looks deprecatingly at me, and if he will let me finish my sentence I shall give way to him. It is certainly the case that we heard him sleep-talking and occasionally we heard the noble Lord, Lord Tyler, groan. But in the main, there was a very disappointing lack of participation from noble Lords on the other side of the House on that Bill.
Lord Rennard
My Lords, very briefly, I say that the noble Lord did perhaps invite us to slumber on a number of occasions in the course of that Bill. However, having studied the recent precedence of filibustering in the French Assembly, he must have been unaware of those precedents at the time of the passage of that Act.
Lord Howarth of Newport
The noble Lord, Lord Rennard, makes an excellent point. However, I am optimistic because we are about to resume proper scrutiny in your Lordships’ House.
Lord Tyler
The noble Lord referred to slumbering Members on this side of the House. There is photographic evidence that the only people who actually went to sleep were people listening to his speech on his side of the House.
Lord Howarth of Newport
On the contrary, I myself went to sleep, but not during my own speeches—although I might have done, and indeed the noble Lord might have supposed that I had done. I concede that at certain points.
We are about to resume a proper practice of scrutiny in the best traditions of your Lordships’ House. It is particularly important given that there was no Green Paper heralding this legislation, there has been no pre-legislative scrutiny, yet this Bill is of very great constitutional importance in itself and its provisions interact with other constitutional measures. For example, they interact with the provisions for boundary reviews that we just legislated in the Parliamentary Voting System and Constituencies Act. They interact with provisions that we can anticipate in a draft measure for reform of your Lordships’ House. They interact with the contents that we can anticipate of a draft parliamentary privileges Bill, which we are led to expect. I think that it would have been better if the Government’s proposals in all these respects had been laid out and available for pre-legislative scrutiny rather than that Parliament was required, effectively, to legislate on aspects of the constitution without having the ability to consider the interplay between different reforming measures. However, I am encouraged by what the Deputy Prime Minister said in the Constitution Committee of your Lordships’ House on 13 October last year in responding to the noble Lord, Lord Pannick:
“Of course, what matters now is the degree of scrutiny that”,
the Fixed-term Parliaments Bill,
“is subject to as the legislation passes through both Houses. On that we are very clear. We want to make sure that it is subject to the greatest possible scrutiny, which it rightly deserves”.
In that spirit, I beg to move Amendment 1 in my name.
The Bill, as drafted, prescribes polling at general elections on a Thursday. It ignores the debate about the case for polling at weekends or other ways in which polling can be facilitated for our citizens. It effectively closes down that debate, which has been proceeding somewhat desultorily for a number of years. However, it is a proper debate and I do not think that it should be instantly closed down. We all have a major concern about how to improve participation in elections in this country. I am indebted to the Library of the House of Commons for a chart that it has provided in one of its notes, which shows a tendency for turnout at general elections to have declined significantly between 1950 and 2010. The bar chart indicates that in 1950 turnout in the general election of that year was of the order of 83 per cent. It fell a little bit at subsequent elections, but in February 1974 it was at or very close to 80 per cent, which is remarkable. Of course, the country was in crisis at that time and it was perceived to be an exceptionally important election. Nevertheless, looking back from where we are now, we would regard it as quite remarkable that turnout was 80 per cent in February weather conditions in 1974.
Lord Cormack
Would the noble Lord recollect that in the election of 1974 there were very few postal votes cast? People actually made their way in inclement weather to the polls because they felt strongly about the issues. Have we not made voting too easy with too many postal votes allowed, and does that not relate to the falling off in the percentage poll that we have seen in recent years?
Lord Howarth of Newport
The noble Lord, Lord Cormack, raises an important point. It was the more remarkable that there should have been an 80 per cent turnout in February 1974, given that it was not an easy thing to secure a postal vote in those days. I wonder whether the ready availability of postal votes in more recent elections has contributed to a decline in participation. It is not immediately obvious to me why that should be so but the noble Lord may have something to say about this a little later. Whatever may be the truth there, what we have seen in elections subsequent to that of February 1974 has been a pretty dismal trend of declining participation in general elections, reaching a low point in the 2001 election, where I think it was probably under 60 per cent, and rising slightly since then so that in the 2010 general election the turnout was 65.1 per cent. All of us must worry about the implications of that.
All sorts of explanations are offered for declining participation: dissolving class structures, since people in this country do not so completely identify themselves with the two major political parties; more fluid communities, in a whole variety of senses; rising affluence over the post-war period, so that people perhaps feel a less burning need to secure what they can from politics; the privatisation of economic and social responsibility; the dousing of politics in contempt by the media; the rise of celebrity culture; and the perception on the part of very many people that casting their vote will make no difference. General elections are seen to be determined in a relatively small number of marginal seats. There is the view, which a number of us have perhaps heard on the doorstep: “They’re all as bad as each other”—a poor opinion of politicians and politics. There is perhaps also a view that compared to what may have been the case in the past, British Governments are now rather powerless, whether at home or abroad. I do not know but those are among the explanations that have been offered.
There is one explanation which is germane to this Bill and which the Government ought to take seriously: that voting arrangements are inconvenient. There is the requirement to turn up to vote—you can get a postal vote, as the noble Lord reminded us but the normal practice is still for people to turn up and vote in person—on a Thursday within certain hours. There have been experiments in trying to facilitate participation in elections. There has been an extension of postal voting and there have been trial schemes for advance voting in supervised polling stations, so that people could cast their vote ahead of the formal polling day. Thought has been given to whether people should be able to vote in supermarkets and so forth. Most significantly, it has been proposed that polling should be shifted from the conventional, traditional Thursday to weekends when it can be supposed that it would be much easier for more people to make it to the polling booth.
We had a note from the Electoral Commission, which came in only late this morning. Admittedly, it had not had very long to prepare its briefing but it is always helpful if people who want to advise us can get their briefing in to us a little earlier than that. It comments on Amendment 1:
“While the Commission is not in principle opposed to polling day being moved to the weekend, we have stressed that any such change should only be made if there is clear evidence that it would be of significant benefit to electors. At present, we do not believe that there is sufficient evidence on which to reach a definitive conclusion”.
That must be an entirely sensible point of view. In the absence of sufficient evidence, it would not be sensible to make that change but the question is whether more evidence might be obtainable and whether it should be considered by the Government before they legislate, as proposed in the Bill, to establish definitively and for ever and a day that polling will take place on Thursdays.
The note from the Electoral Commission goes on:
“The Commission has … evaluated a number of local pilot schemes involving advance voting—where electors would be able to vote in a supervised polling station within their local electoral area between one and seven days before the principal polling day—and has concluded that such facilities could help to enhance the accessibility and convenience of the electoral process. We have called on the Government to consider introducing advance voting as part of a comprehensive electoral modernisation strategy”.
Have the Government considered the experience of this pilot scheme and are they thinking, as the Electoral Commission would have them do, about a comprehensive electoral modernisation strategy? Did Ministers consider whether it would be appropriate to allow voters the opportunity to vote at weekends instead of on a Thursday before they wrote Thursdays into the Bill? If they did not do so before they published the Bill, will they now consider it?
Lord Rennard
I support Amendment 2 and the amendments in my name and the names of my noble friends Lord Marks and Lord Tyler.
Many noble Lords will know that I have long been an advocate of voting at weekends. They will also know how frustrated I feel that, among the many models piloted by the previous Labour Government to try to explore different ways of increasing turnout in local elections, only one pilot of weekend voting was ever undertaken—in one place, at one weekend—and that was of limited value. The idea of voting at weekends is not new; it has been floated and discussed in some form, but never properly debated in Parliament in such a way as to enable Parliament to decide the issue.
The Home Affairs Select Committee considered the issue in 1997; a Home Office working party looked at it in 1999; it was the subject of some limited debate when we permitted pilots as a result of the Representation of the People Act in 2000; the then Office of the Deputy Prime Minister further considered the matter in a consultation paper in 2002; the then new Electoral Commission published a report on election timetables in June 2003 and again in 2007; that year, weekend voting was again floated as part of the Government’s Governance of Britain Green Paper; and a separate consultation paper was then published specifically on this issue in 2008. That was supposed to feed into a citizens’ summit, which would recommend whether or not to go ahead with weekend voting later in 2008. That summit never happened. We have never had a proper debate in Parliament to determine the issue.
The principle of weekend voting is simple: more people are at home and free to vote for more of the day at a weekend than they are on a weekday. One possibility is to give people two days over the weekend on which to vote. This would avoid potential problems with religious observance and give people more than twice as much opportunity to participate. Many noble Lords have participated in elections and those who have campaigned will know the frustration of trying to contact voters among the working population of a constituency, in the few hours before the polls close at 10 pm, in order to remind them to vote. They will also have had extensive experience of trudging the streets during the day on polling day and vainly knocking on the doors of people who are out at work. We try to encourage them to vote but know that they cannot.
All those involved in elections know that people who are contacted on polling day and reminded by parties to vote are significantly more likely to vote than those who are not. It stands to reason that if people are contacted during the weekend when they are at home and reminded to vote, they are significantly more likely to participate. All good democrats should agree that increasing participation in elections is a good thing, especially as turnout has declined in many recent elections.
Lord Cormack
My Lords, the noble Lords, Lord Howarth and Lord Rennard, have performed a very real service to the Committee in enabling us to debate this issue. When the noble Lord, Lord Howarth, referred to the Electoral Commission and those dreadful words “modernisation” and “strategy”, I began to have my doubts but, seriously, it is important that we look at this issue. The noble Lord, Lord Pannick, raised an extremely important point when he talked about Orthodox Jews and many Christians.
I also think that there is a great deal to be said for having “a” polling day. I have always felt that having one day for elections and encouraging people to go to the polls is what it is all about. That is why I have viewed with a degree of concern, as well as scepticism, the increase in the incidence of postal votes. I referred to this briefly in my intervention during the noble Lord’s speech. Of course, it is right that people who are incapacitated in any way or whose jobs regularly take them away from home should have postal votes. I was also very much in favour of people who had booked a holiday being allowed to have a postal vote.
I fought every general election from 1964 to 2005— 12 in all, in 10 of which I am glad to say I was successful. I campaigned in many other elections beginning in 1959. Therefore, I think that I have some experience. I remember vividly the election on 28 February 1974, to which the noble Lord, Lord Howarth, referred, when almost 80 per cent of the electorate went to the polls. People were exceptionally concerned about the gravity of the economic crisis. Many of them felt, as I did, that Edward Heath had abdicated in asking “Who governs the country?”. The answer of course is that the Government govern the country and it is the Prime Minister’s job to lead that Government. I felt—and said at the time—that he was wrong to go to the country. Indeed, he discovered that that was not the best decision of his life.
However, people turned out. I think that people will turn out as long as there is a proper incentive for them to do so and as long as it is not made too easy. That may sound paradoxical, but I think that the introduction of postal votes on demand, which in effect is what exists at the moment, does not encourage people or focus their minds or attention on a specific day.
Lord Howarth of Newport
Since we had our earlier exchange on this subject, I have been reminded that participation is actually higher among people with postal votes. It is over 70 per cent at general elections and not much lower at local elections. That suggests that the ease with which people can have a postal vote and thereby cast their vote is not quite as debilitating as the noble Lord fears.
Lord Cormack
I obviously listened carefully to what the noble Lord said, but there have been some disturbing accounts of the way in which postal voting has been conducted, and he knows that as well as I do. The security of the postal vote does not begin to compare with the security of the personally cast ballot. I am glad to see him nodding assent at that.
When it comes to the day, for the reasons that I indicated earlier, I have great sympathy with the noble Lord, Lord Pannick, and I see no need to depart from Thursday. It is good that we should discuss it and maybe consider experiments with more local elections. I would not be averse to that. However, I believe that Thursday is tried and tested for general elections, and I hope that the Government will stick to that, certainly for the foreseeable future as foreseen in the Bill. I very much hope that they will consider the issue of postal votes and how postal voting is conducted and made more secure. It is important for the House to look at this and for another place to have another chance to look at it. Obviously, it would be quite wrong to press any of the amendments to a Division today, but I hope the Minister will be able to tell us that the Government have taken on board the points that have been made and will truly reflect on them.
Lord Howarth of Newport
My Lords, this has been a lively debate with contributions from noble Lords all around the House speaking from their extensive experience and their serious concern that we should find the best ways we can to improve participation at general elections. As my noble friend Lady Golding reminded us, it is equally important that we raise participation in other elections, notably local elections, although that is outside the scope of the Bill’s Long Title.
I am most grateful for what the noble Lords, Lord Rennard and Lord Tyler, had to say. The noble Lord, Lord Rennard, speaks with even greater knowledge than the noble Lord, Lord Tyler, though it could be a close-run thing. Both of them made invaluable contributions, the noble Lord, Lord Rennard, rehearsing with us the somewhat dispiriting history of consideration of this issue—the unsatisfactory pilot scheme and the citizen summit that never took place. The noble Lord, Lord Tyler, made the extremely important point that our traditional practice of holding elections on a Thursday means that schools all over the country closed. That is undesirable.
On the other hand, the noble Lord, Lord Pannick, put his finger unerringly on two real difficulties. One is not necessarily an insuperable difficulty because he rightly reminded us that there are different religious traditions in this country and you cannot decently or appropriately legislate for polling to take place on one particular day of the weekend. He then went on to make a point that I take seriously: that it is desirable that as far as possible people should cast their votes on the basis of the same information and that, if some dramatic event were to intervene, that could have the effect of altering the tendency of polling on the second day. We would need to think carefully about that.
That serves to illustrate that there are significant arguments on both sides. I rarely disagree with my noble friend Lord Grocott on anything—he was my Chief Whip, after all—and particularly in the constitutional field but I am not sure there is not a hairline crack between our two personal positions on this particular issue. But he and the noble Lord, Lord Cormack, rightly appeal to our sense of tradition and history. What my noble friend Lord Grocott had to say about the importance of the drama of election day and what the noble Lord, Lord Cormack, had to say about the ceremony of election day were very important observations. We do not want in any way to diminish the occasion of polling, which, as the noble Lord, Lord Cormack, suggested, has perhaps been somewhat diminished by the increasing resort to postal voting. If postal voting has raised turnout overall, however, that is an important merit in it.
The noble and learned Lord, Lord Wallace of Tankerness, responded in as positive a spirit as he could but it remains the case that the Government, while they may have reviewed previous consultation, have not applied themselves to this question with any seriousness at all in advance of including prescriptive provisions in this fixed-term Parliaments legislation that polling will take place on a Thursday. The noble and learned Lord himself reminded us that at the moment there is nothing in the law that requires polling to be held on a Thursday.
If there is a major national crisis, as in Scotland, and the Hamilton by-election has to be moved from a Thursday to a Wednesday because of a football match, there is at least the freedom to do that. But this legislation would remove that freedom. The noble and learned Lord says that the Government are not ruling out a change, but by stating in this Bill their intention to legislate, they make it that much less likely that there will be a change. I had hoped that the Minister would have been able to tell us rather more definitely what the Government intend to do. We may or may not agree with his point, but he said that this may not be the right legislation in which to incorporate provision for polling to take place on a weekend rather than on a Thursday. He suggested it has to be considered on a separate track. I heard no convincing evidence from him that he intends to pursue that track.
While the feeling of the House is that it would be inappropriate to vote on this issue today, Amendment 16 tabled by Members of the Liberal Democrats, which would require the Prime Minister and the Government to have made up their minds about what they want to do by October 2013, has enormous merit. For my part, I beg leave to withdraw the amendment.
Lord Grocott
What a persuasive argument—I am completely convinced by that.
If the Government are going to reduce the power of the voters over their Government, they must give us a very convincing argument as to why that is desirable. Of course, I very much hope that my amendment becomes entirely surplus to requirements, because I very much hope that the Committee will decide later that we should have four-year gaps between Parliaments. I do not agree with fixed terms, but if there is to be one I hope it is four years. For the first time in my life I am operating entirely in accordance with the Liberal Democrats’ manifesto and I hope they will be voting with us on four-year Parliaments. However, if the Government unilaterally reduce the power of the electorate to have general elections and to make their decisions about Governments, I hope that they will only take this power away on the authority of the electorate in a referendum.
Lord Howarth of Newport
My Lords, I am very happy to support the spirit of my noble friend Lord Grocott’s amendment. I have tabled two amendments—Amendments 57 and 58—which also require that a referendum should take place before we move to fixed-term Parliaments in this country.
I do not, in general, favour referendums, but there is a particular case for holding them when major constitutional change is being proposed. I think that is a view that the Constitution Committee reluctantly came to. The basis of that has to be that the constitution belongs to the people—it is not the property of those politicians who happen for the time being to have the privilege of serving in either the House of Commons or the House of Lords. Those who are Members of Parliament in either House, and certainly those who are in Government, should regard themselves as holding the constitution in trust on behalf of the people, by whose authority they have been given and entrusted with the opportunity to serve. They should treat that constitution with the very greatest respect and should move to change it with the very greatest caution. That applies even more particularly to a Government such as this present coalition Government, which does not have a mandate from the electorate for its policies.
It is, as my noble friend Lord Grocott suggested, curious that this Government—which makes great claim to be a liberalising Government who want to improve the quality of our democracy and increase the accountability of Government, and indeed Parliament, to the people—are proposing legislation that would mean that we would in practice have fewer general elections than we have had in the past. The average interval between general elections since the war has been three years and 10 months; if the Government have their way on this Bill, it will be not less than five years. That is one of the reasons why I, like my noble friend Lord Grocott, believe that—although I am no enthusiast for legislating to fix the term of Parliament—if we are to fix the term, then we had better fix it at four years. We do not want to see accountability diminished in a major measure of constitutional reform.
It is also curious that the Government believe that it is appropriate to hold a referendum on changing the electoral system and that it is appropriate to hold referendums when there may be some transfer of power—possibly no very great transfer of power—between London and Brussels, but they do not think that it is appropriate to hold a referendum on whether we should move to fixed-term Parliaments. My noble friend Lady Farrington raised the question of whether there might be a referendum on reform of the House of Lords, which would be a very major constitutional change by any standard. It seems extraordinary that the Government should propose to take that forward without incorporating provision for a referendum in the legislation.
I am not necessarily a devotee of consistency in constitutional matters, because I believe that there are many anomalies in our present constitutional arrangements, which have grown up for compelling historical reasons, that actually provide flexibility and enable the constitution to accommodate different traditions and to adapt itself as time goes by. If we are slavishly schematic in our approach to constitutional change, we shall be even more likely to get it wrong; but I wonder why the Government are quite so inconsistent in their approach to holding referendums on constitutional reform. Surely the Government should conduct themselves on a certain set of principles.
Turning to the particular amendments that I have tabled, I suggest to the House that they incorporate a better design for a referendum than the design of the one we are to have on 5 May on electoral change—there are differences between what I propose and what Parliament has enacted at the behest of the Government. The referendum that I have proposed would be advisory only and would leave scope for Parliament to meditate upon the message that voting in a referendum sends to Parliament. Amendment 57 would also provide that, if less than a threshold of 51 per cent of the electorate support the introduction of fixed-term Parliaments, then the question would be dismissed. That latter point should have applied also in Amendment 58—it was an omission on my part not to have included that in the drafting of that amendment. If we come back to this issue on Report, I can repair that then.
My amendments would provide for two questions. The first would be to ask the people whether they favour the introduction of fixed-term Parliaments, as provided for in the legislation. The second would ask them the other key question: if we are to have fixed-term Parliaments, do they think it right that the term should be fixed for four years or for five years? We all agree, I think, that this is quite the outstandingly important issue that remains to be resolved in this legislation apart from the overall issue of whether there should be fixed-term Parliaments, which has been approved in Second Reading. However, the question of four or five years remains wide open. I put it to the House that that may also be something that should be offered for the decision—or at least for the advice—of a wider electorate.
Lord Marks of Henley-on-Thames
My Lords, I am one of those who is largely in favour of referendums for important constitutional reforms. The noble Lord, Lord Grocott, is quite right to ask in what circumstances referendums are appropriate and to say that the matter should be considered by the House.
The Constitution Committee in 2010 used the word “fundamental” in respect of constitutional reforms for which referendums were appropriate. The question arises as to what is meant by fundamental. I accept entirely that a referendum is appropriate in respect of the proposed change in the voting system to AV on the 5 May, as it was appropriate for the European referendum in 1975, which noble Lords will know was the last UK-wide referendum—I am not suggesting that such referendums should take place only every 36 years, or anything like it. However, it is significant that the same Constitution Committee report produced a list—not an exhaustive one—of the type of issue that might be appropriate, in which it included any decision:
“To abolish the Monarchy;
To leave the European Union;
For any of the nations of the UK to secede from the Union;
To abolish either House of Parliament;
To change the electoral system for the House of Commons;
To adopt a written constitution; and
To change the UK’s system of currency”.
The report made clear that that was not intended to be a definitive list.
Lord Howarth of Newport
Does the noble Lord agree that this Bill marks a very significant step towards the creation of a written constitution in this country?
Lord Marks of Henley-on-Thames
My Lords, I do not accept that. It might indeed be desirable to have a written constitution, but that is a matter for another day.
I accept that the Bill provides for an important constitutional reform, but it is not a fundamental change to our constitution. I say that for a number of reasons. First, in terms of whether or not a referendum is appropriate, the fixed term proposed is within the existing maximum term of a Parliament. Under the 1911 Act, Parliament can last for up to five years; under this Act a Parliament will last for five years unless either of the trigger mechanisms for an early dissolution is activated.
Lord Cormack
I am grateful to the noble Lord for his speech, rather than his intervention. This is very much an issue that your Lordships’ House should consider, and the Government should give us a very considered response.
There is of course an additional by-product of my amendment. Bringing forward the election by virtually a couple of months would prevent the Prime Minister having the opportunity to prolong the life of the Parliament. That might have the incidental benefit or disbenefit of robbing your Lordships’ House of the ability to reject this legislation, because as it is currently drawn it cannot be subject to the Parliament Act, as we have heard again today. However, that is another point.
I urge the Minister to think very carefully about this. We value our devolved Administrations. Having created them, we have to nurture them, and we have to make sure that the powers they exercise are complementary to the powers exercised by the United Kingdom Parliament and that we do not create unnecessary tension between the devolved Administrations, the United Kingdom Parliament and the United Kingdom Government. Again, I think this is an example of not thinking through sufficiently carefully the consequences of the Bill. More damage has been done by the law of unintended consequences than by any other statute. We are in danger of having another law of unintended consequences. I beg to move.
Lord Howarth of Newport
My Lords, Amendments 6 and 7 in this group, which are in my name, are also intended to try to avert this unhappy clash between elections to the devolved institutions in Scotland, Wales and Northern Ireland and the general election. Mr Mark Harper, the Parliamentary Secretary, giving evidence to the Constitution Select Committee, noted that this clash could have happened anyway under existing legislation. However, the Bill makes it inevitable that the clash will occur in 2015 and every 20 years thereafter, all things being equal. It adds injury to insult. The insult has already been in the Government’s insistence that the AV referendum should be held this year on the same day as the elections to the devolved institutions. They ignored the complaints about that from Scotland, Wales and Northern Ireland, and they ignored the pleas from both Houses of Parliament not to bring about that situation. It is contemptuous of the devolved institutions and those nations.
The Government of the United Kingdom should show better respect towards them. They appear to treat elections to the devolved Parliament and Assemblies as being of no real importance. Yet, the Liberal Democrats, before the general election, proposed that there should be regionally elected assemblies in England, and a number of Conservatives have argued seriously that there should be an English Parliament. Do they believe in devolution? Do they believe that there should be a mutually respectful relationship between the Parliament of the United Kingdom and the devolved Parliament and Assemblies or not? I fear that having the elections on the same day in 2015 and periods thereafter will wreck the devolved elections. Candidates in those elections ought to be judged on their own record and promise in the important fields of government that are devolved and the important political service that they give. They should not be caught up in the backwash of the general election.
Professor Padgett, giving evidence to the Constitution Select Committee, observed that in Germany, where elections take place on the same day, federal issues and campaigns have, as he put it,
“totally engulfed the regional campaigns”.
Dr Milner, also giving evidence at the same session, noted that in Sweden, where national, regional and local elections coincide on the same day, there is high turnout—that is a merit—but that people gave very little attention to the issues in the regional and local elections. On the other hand, in Norway, where regional and local elections take place at mid term of the four-year cycle of national elections, the focus is truly on the regional and local elections when they happen. He also made the worthwhile point that more frequent elections are good for democratic engagement and democratic education.
There will, inevitably, be great confusion if all these elections are held on the same day, fought on different boundaries, possibly on different voting systems and with different campaigns for the different elections. On the administrative side, returning officers have complained that it will be very difficult for them to acquit themselves of their responsibility. Mr Harper said to the Select Committee that the question of coincidence of the dates of the elections for the devolved Assemblies and the general election was a bigger question than the clash with the AV referendum. As of early last November, when he gave that evidence, he said that he was considering what the appropriate solutions might be. He said that,
“we then intend to have a proper consultation process”.
Of course the consultation process should have taken place before the Bill was published. He said that he hoped that an agreed way forward would be implemented in the Bill.
I should be grateful if the noble and learned Lord would give us a report on what has transpired in these consultations and what the Government intend. Is it, as the noble Lord, Lord Cormack, suggested, correct that the Government have been tempting Members of the Scottish Parliament to have their term in office extended to five years, or do the Government envisage that the dates of the elections to the Scottish Parliament and the Assemblies might be shifted to a lesser degree? How can it be that a Government who believe in fixed-term Parliaments are mucking about with the fixed terms that have already been legislated for the Scottish Parliament and the other Assemblies? Will we see government amendments on this? If so, will that be at Committee stage or on Report?
The amendment proposed by the noble Lord, Lord Cormack, is preferable in the sense that it would shift the proposed date of the Westminster elections and does not incommode the devolved elections. My own amendments equally involve some shifting of the dates of the Westminster election and my Amendment 6 would bring it forward to October 2014. If we are to have fixed-term Parliaments there is no reason why we should not have elections in October rather than in May. I look forward to hearing the Minister’s response.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 9 months ago)
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Lord Howarth of Newport
My Lords, I hope that Amendments 5 and 9A will be of some interest to the House. They would introduce a flexibility to hold a general election at any time in the fifth year of the Parliament. Amendment 5 deals with this particular Parliament and Amendment 9A deals with subsequent Parliaments. They still provide for Parliament to be fixed, but with flexibility between four and five years. They recognise that there are important objections to the term of Parliament being fixed for a full five years. The objections, which have been explored in our debates earlier in the day, are that accountability is diminished, that elections would take place less frequently, that the accountability of Members of Parliament to electors is therefore reduced and that the accountability of the Government to electors is reduced. Furthermore, if you insist on fixing the term of Parliament for a full five years, you are liable to find that you require an exhausted Government to totter on into a fifth year and probably expire at the end of it.
My amendments also recognise the widespread view within our political culture that, assuming that a Parliament is still viable, for the Prime Minister to call an election before five years are up is opportunistic, exploitative and an abuse. On the other hand, it is widely accepted that to call an election after four years have passed is acceptable. We saw that in the Parliaments of 1979-83, 1983-87, 1997-2001 and 2001-05. I do not think that anybody complained when either Mrs Thatcher or Tony Blair called an election after four years on those occasions. It was regarded as entirely within the reasonable understanding of our constitution.
These amendments would allow a continuation of the four-year norm—it has been typical that Parliaments have lasted for around four years in the post-war period— while respecting the principle of the five-year maximum which was legislated for in 1911. When Mr Asquith proposed that legislation in 1911, he envisaged that while there would be a maximum of five years the probability would be that elections would tend to take place some time around the end of the fourth year, or not long thereafter. That was prophetic and has proved indeed to be the case. These two amendments would simply institutionalise what has become convention and practice and, on the whole, has been found to be satisfactory by the people of this country. I beg to move.
Lord Brooke of Sutton Mandeville
My Lords, I shall be extremely brief but I told myself that if anybody else brought Mr Asquith into the debate yet again I would take advantage of his reappearance to make a single point. In the Earl of Oxford and Asquith’s memoirs, he describes the debate within the Liberal Cabinet in the period leading up to the First World War in relation to the Marconi scandal in which the then Attorney-General was somewhat embarrassed by his behaviour. I think that it was on the issue of shares. I am astonished that the Prime Minister put this into his memoirs, but the outcome of the Cabinet discussion was that they were at no real parliamentary risk because it was absolutely clear that the Conservatives would be too stupid to take advantage of it. There was one dissenting voice, which was Winston, who had of course once been a Tory.
The Opposition say, again and again, that the purpose of the Bill is to provide glue in the coalition relationship. In responding to that, remembering what had happened in Asquith’s Cabinet, I asked myself, “Is it really because they want to be helpful to the coalition that they go on repeating this?”. I recall in the process C S Lewis’s happy remark that if you hear about someone going around doing good to others, you can always tell the others by their hunted look. It occurred to me that there was some degree of overlap between the argument that we need a Parliament shorter than a five-year one and the Opposition’s view, set out during the passage of the Parliamentary Voting System and Constituencies Bill, that it would be helpful if the country had the opportunity of expressing its opinion at the earliest possible opportunity, when it so happened that there might have been some degree of parliamentary advantage to the Opposition in that happening. I hope, diffidently, that as the Bill progresses we will not have suggestions made in either direction that we are all engaged in this for short-term parliamentary advantage or that we are all concentrating totally on the good of the nation and the constitution.
Lord Wallace of Tankerness
My Lords, we have indicated that we will move towards a May Queen’s Speech. There is a legislative programme and I do not think the number of Bills in this first Session matches the numbers in some of the first Sessions of the previous Administration. This Bill is not yet on the statute book but if it is passed, I believe that we will see a much more orderly planned programme than I have seen since I came into this House, certainly in the final Session.
Lord Howarth of Newport
My Lords, this has been a better debate than it looked like being. We were not exactly playing to a packed House at the beginning but more and more noble Lords have stood up and made short speeches that have been to the point and very interesting. I am particularly grateful to the noble Lord, Lord Norton, for his support. At least, I think I had his support for the amendment. If so, that was quite something because I, like other noble Lords, hold his views on the constitution and constitutional reform in the very greatest respect. He is quite right to press the Government to provide an evidential base in support of the propositions they put to the House in their legislation. I do not think that the noble and learned Lord, Lord Wallace of Tankerness, was able to respond with the evidence that the noble Lord, Lord Norton of Louth, sought.
My observation is a little bit like his: I simply do not see it as being the reality that politicians plan systematically. They talk endlessly about strategies, but I have yet to see a politician who is capable of developing and sustaining a strategy over a year, let alone four years. It is wholly unlikely that the culture and work and behaviour patterns of either House of Parliament would be so dramatically changed as a consequence of knowing that the span of this Parliament was to be fixed for five years. Politicians improvise, and it is greatly to their credit that they do so—they need to. It is part of their responsibility to be responsive to public opinion and the shifts and tides of opinion and events; they are not good politicians if they are not. That is not to disparage or to criticise them. I would have a horror of a Government who were so tunnel-visioned and so rigid that they set themselves a five-year plan at the outset of a Parliament and determined to stick to it. It does not seem to correspond with political human nature, and it is an entirely spurious justification for introducing fixed-term Parliaments.
One has only to look at the ad-hocery that we have seen in this first year of the coalition Government, as the noble Lord, Lord Cormack, suggested. We have seen this Government attempt to get away with establishing a requirement for a 55 per cent vote to have an early general election. It was like a leak except that it was brazenly published in the interesting work of autobiography, memoir, history, political science or whatever it is by Mr David Laws, who candidly acknowledged—my noble friend Lord Hunt quoted from this interesting volume—the unembarrassed, shameless and self-interested calculation on the part of Mr Stunell for Liberal Democrats and Mr Osborne for the Conservatives. The noble Lord, Lord Brooke, supported by my noble friend Lord Grocott, reminded us that we have a responsibility when we address questions of constitutional reform not to dress up our views and even our calculations of party political interest in high-flown constitutional sentiment—I suppose the term is not to be hypocritical. My noble friend is quite right that we are all susceptible to that temptation. It may well be that, from his vantage point there in the corner, the noble Lord, Lord Brooke of Sutton Mandeville, is better able to spot when that aberration, that corruption, is occurring than many of us who are more impulsive participants. He was perfectly right. I suspect that I am simply too naive to make an effective calculation of party political interest. In a rather old-fashioned way, I think that it is our job to try to get all this right.
I dispute the suggestion of the noble Lord, Lord Tyler, and the noble and learned Lord, Lord Wallace of Tankerness, that my amendment would drive a coach and horses through the principle of a fixed-term Parliament, because it proposes a fixed term within a tolerance of one year. It is a fixed term with a sensible flexibility. It is a compromise, but there are many compromises already in the legislation. The Government have introduced what the noble and learned Lord, Lord Wallace of Tankerness, was candid enough to refer to as escape hatches. If the Government can introduce escape hatches, is it not in order or appropriate for us to amend this legislation to provide some pragmatic flexibility to enable the term of the Parliament to run between four and five years? That is a compromise between a fully fixed-term Parliament and the situation that we have at the moment where it is open to the Prime Minister, answerable to no one, to determine the date of the election. I believe that, previously, the date was for the Cabinet to determine. It was Lloyd George as Prime Minister who took it upon himself, on his own single initiative, to exercise the prerogative power, as one could term it, to call upon Her Majesty to dissolve Parliament.
What I am proposing lies somewhere between the two extremes. In reality, when you are legislating on most matters, you need to provide for a sensible degree of flexibility so that in practice people can carry things forward in a realistic way. The noble Baroness, Lady Stowell of Beeston, said that it would undermine one of the great benefits of the Bill as she sees it; the requirement of the Prime Minister and the Government to face the electors on a pre-determined date. The proposal does compromise on that, but it still means that there will be a pre-determined date in the fifth year of the Parliament. I think public opinion would find that quite acceptable.
The noble Lord, Lord Pannick, absolutely rightly said that in this Committee we are all being driven to tinker with a fundamentally misconceived policy. I agree with him; I do not support fixed-term Parliaments. But we are, as the previous Prime Minister Mr Blair used to say, where we are. The Bill has received its Second Reading. It is not for us to seek to overturn the principle of the Bill that there should be fixed-term Parliaments. It is for us to limit the damage that this legislation may cause. The noble Lord, Lord Pannick, suggested that perhaps the least bad way forward would be to legislate for this Parliament alone and to drop the idea of having fixed-term Parliaments after the expiry of this Parliament. I suggest that it would be deplorable to legislate to rescue the coalition from its political difficulties; to provide some sort of lifeline to coalition partners who do not agree with each other and do not trust each other and have asked Parliament to bail them out of that predicament. That would not be a proper way for Parliament to spend its time. On the other hand, I am tempted to agree with the noble Lord, Lord Pannick, that it is less bad to do that than to saddle our country and our constitution with fixed-term Parliaments in perpetuity or until Parliament decides that it was not a good idea after all and therefore we should undo the legislation.
The debate on this amendment is really an amuse bouche before the important debate on Amendment 11 which we will have next week. That will be the debate on whether we should amend the Bill to provide for a fixed-term Parliament of four years in clear-cut fashion and without the compromise and flexibility that I have suggested. That is the amendment in the name of my noble and learned friend Lord Falconer, my noble friend Lord Bach and the noble and learned Lord, Lord Lloyd of Berwick. That will be a major debate.
Lord Tyler
I wonder whether the noble Lord recognises that if he had not spoken at such length we could have progressed on to Amendment 11 this evening.
Lord Howarth of Newport
I assure the noble Lord that that is absolutely not the case.
We have had a useful exploratory debate on the issue of four and five years. The House ought always to listen with special care to the noble Lord, Lord Martin of Springburn. As a former Speaker of the House of Commons, he understands that House in a way that few others do. The noble Lord has given us some reasons why Parliament should favour a four-year fixed term rather than a five-year fixed term and we should meditate on what he said. In the mean time, I beg leave to withdraw this amendment.
Fixed-term Parliaments Bill
Lord Howarth of Newport Excerpts(13 years, 9 months ago)
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Lord Howarth of Newport
My Lords, it is a pleasure to follow the noble Baroness, Lady Stowell, as she thoughtfully made the case in support of this Bill. It is also a very particular pleasure to congratulate the noble Lord, Lord Cormack, on his splendid maiden speech. He showed himself to be—as we all knew he is—a fine and committed parliamentarian. As so often in the past, I look forward to working with him on causes that we both care about.
I have not been persuaded by the case for legislating for fixed-term Parliaments—certainly not in the manner in which this Bill does. I join members of Select Committees in both Houses in deploring the haste and lack of care with which this Bill has been brought forward. It was wrong of the coalition to bounce the House of Commons early into a Second Reading in September. Like my noble friend Lord Grocott, I ask what mischief this Bill undoes and what mischief it might create.
The Deputy Prime Minister made the case for the Bill at Second Reading. He said that it would remove the right of the Prime Minister to seek the Dissolution of Parliament for—as he put it—“pure political gain”. Yes, for what it is worth, it does do that. However, I do not believe that the right of the Prime Minister to determine the date of the next general election has been a great mischief. He said that it would stop feverish speculation about the date of the general election, distracting politicians from getting on with running the country; that it would bring greater stability to our political system; and that it would stop parties ending up in perpetual campaign mode, which make it very difficult for Parliament to function effectively.
In their last minute response to the Constitution Select Committee yesterday, the Government added that it would engender a more long-term policy-making approach. There are other reasons why politicians are distracted, why journalists speculate, why there is political instability, why there is perpetual campaigning and why there is governmental short-termism. Fixed-term Parliaments would be no political cure-all.
The benefits of the Bill have been exaggerated. The Bill would make another more serious mischief worse, and it would create new mischiefs. The existing serious mischief that it would make worse is the excessive domination of the House of Commons by the Executive and the ineffectuality of the House of Commons on behalf of the people in holding the Executive to account. A Government who are more secure about staying in office for a full five years will be more dominant and less accountable.
On 5 July, the Deputy Prime Minister declared to the House of Commons that the Government’s mission was to transfer power away from the Executive to empower Parliament. In his Hansard lecture of 16 November, he proclaimed,
“a programme that we can set against a single test … are we giving people the choice and control they—rightly—now expect?”.
This Bill fails the single test that the Deputy Prime Minister set himself. The average interval between general elections since 1945 has been three years and 10 months. With this legislation, the people would in future have to wait a full five years before they had the opportunity to exercise their choice and control as to who should be their Members of Parliament and members of the Government. The coalition has conflated two issues to its own political advantage. There was the political question of how to ensure the longevity of the coalition and the constitutional issue as to whether we should have fixed-term Parliaments. To legislate to protect the coalition parties from facing the electors before five years are up is very convenient for two parties that formed a Government without having won an election and which are incurring bitter unpopularity for their scorched earth policies towards the economy and society.
Mr Clegg affirmed on 19 May:
“This government is going to persuade you to put your faith in politics once again”,
even as Liberal Democrat Members of Parliament were meditating on breaking their promise on tuition fees and provoking new depths of cynicism among the public about politics. No wonder the Deputy Prime Minister was glad to announce to the House of Commons on 5 July that the date of the next general election would be 7 May 2015.
To introduce fixed-term Parliaments is more than a wheeze to shelter the coalition from the people’s anger. As the Deputy Prime Minister went on to say on 5 July:
“This is a hugely significant constitutional innovation”.—[Official Report, 5/7/11; col. 23.]
As such, the proposal should have been put forward tentatively, consultatively and in the search for a consensus about carefully considered and genuinely necessary constitutional change. That fixed-term Parliaments were in the manifestos of two political parties does not unfortunately mean that they had been as carefully considered as they should have been. They have been considered as devices to attract votes, but I do not think that they were considered in their full constitutional significance.
The spirit of caution and respect is not the spirit in which the coalition proceeds. Mr Clegg declared on 19 May:
“It is time for a wholesale, big bang approach to political reform”.
That seems to me to be one of the most foolish things that I have ever heard any senior politician in this country say. Can the experienced noble Lords on the Conservative Benches do nothing to restrain these boys?
As with the Parliamentary Voting System and Constituencies Bill, there has been no Green Paper or White Paper and no draft Bill or pre-legislative scrutiny. How much better it would have been had Ministers been able to hear the thoughts of noble Lords who have spoken in this debate before they formulated their legislation. Political convenience for the coalition has again trumped respect for Parliament and the constitution. The Deputy Prime Minister said at Second Reading that,
“the timing of general elections”,
should,
“not be a plaything of Governments”.—[Official Report, Commons, 13/9/10; col. 621.]
The constitution should not be the plaything of politicians who happen to be in office for the time being.
Why might fixed-term Parliaments be a bad idea? In some circumstances an early general election might well be desirable. I have been impressed by that case as it has been made by a number of noble Lords in the debate so far, and I was impressed by the evidence that Professor Vernon Bogdanor offered to the Constitution Committee. A Parliament might be judged not to be viable—that was the judgment that Mr Attlee took in 1951 and that Mr Wilson took in October 1974. It cannot be a good thing for a lame-duck Parliament to hobble along with a Government unable to govern effectively. It might be right for the country to have the opportunity to endorse a new Prime Minister, a judgment that Anthony Eden made in 1955 and that Gordon Brown nearly made in 2007—and the judgment that, by fits and starts, Mr David Cameron has also made. It might be right for the country to have the opportunity to endorse a new policy, as Baldwin thought about tariff reform in 1923 and as the coalition ought to think now about its extremely radical and contentious policies on the National Health Service and the welfare state. To make changes of this kind, so bitterly contentious, without any authority from the people, is an offence against democracy. It might be appropriate for the country to have the opportunity to endorse a new coalition, as was the case when the national Government were formed in 1931, and might yet be the case when Tory and Liberal Democrat Back-Benchers can no longer bear this coalition.
We are advised to expect that hung Parliaments will occur more frequently in the future with the reducing percentage of the vote for the two major parties, and particularly if we have the alternative vote. Why should Governments be made mid-term by wheeler-dealer politicians supervised by the Cabinet Secretary inside 70 Whitehall rather than by the people in a new general election? The Deputy Prime Minister on 7 June blustered that,
“we have this great opportunity to renew our democracy from top to toe”.—[Official Report, Commons, 7/6/10; col. 46.]—
not, however, if a renewal of our democracy limits the opportunity for Liberal Democrats, discredited in public opinion, to negotiate another coalition and extend their hold on office.
It might be right to hold a general election if Parliament is quite simply clapped-out and discredited. Would it not have been preferable to have had a general election in 1996 rather than wait until 1997? Would it not have been preferable to have had a general election in 2009 rather than wait until 2010?
There are two safety valves in the Bill that will enable, exceptionally, an early general election to take place. Are they appropriate? Yes, in the case of the retention of the traditional right of the House of Commons to expel a Government on a vote of no confidence with a majority of one, but why legislate for a maximum of 14 days of negotiations following a vote of no confidence? Legislation is not needed to allow a period of negotiations in such circumstances, so why specify a time limit? I do not believe that in this country we will find ourselves in the same case as in Belgium or Iraq.
The second safety valve is very questionable: the provision that by a vote of two-thirds of all Members of Parliament the House of Commons can vote for an early general election. Why legislate for a super-majority? The reason is political: to stop the Tories and the Liberal Democrats ratting on each other. This threshold for Dissolution is too high; a majority of one should be enough, and I believe that all this apparatus is unnecessary. Gordon Brown, in the previous Parliament, proposed that the Prime Minister should not simply be able to go to the Palace in the future but should be required to seek a majority in the House of Commons before requesting Dissolution. If that were to be the convention—and I do not believe that we would need legislation to secure it as such—it would be a simple and satisfactory solution to the primary problem which the proponents of this Bill have identified.
The more we look at this short and apparently simple Bill, the more difficulties appear, as the Constitution Committee has found. What exactly is a no confidence vote? What is a confidence vote? How, indeed, are votes to be counted? That might seem an unnecessary question, except that Dr Jack, the Clerk of the House of Commons himself, raised anxieties about this in his evidence to the Select Committee in another place. Will not the impact on the Speakership of requiring the Speaker to certify a no-confidence or a confidence Motion in very contentious circumstances be dangerous indeed? The noble Lord, Lord Norton of Louth, spoke brilliantly and devastatingly on this matter. What will be the impact on parliamentary privilege if the inclusive cognisance by the House of Commons of its own procedures is liable to be questioned by the courts consequent upon parliamentary procedures prescribed by statute? Mr Mark Harper, the Parliamentary Under-Secretary, has asserted his expert authority in contradiction to that of the Clerk of the House of Commons. I note that other noble Lords have tended to dismiss the anxiety that the Clerk expressed. As we look at this Bill in Committee, we should consider this issue very carefully.
Some of these matters that I have just touched upon seem to me to illustrate the dangers of moving towards a written constitution—here I differ from my noble friend Lord Morgan. If there is to be a fixed-term Parliament, how long should the term be? Four years is more normal where there are fixed terms, we are advised. Mr Asquith intended that four years should be the norm. Since the war, only weak and unpopular Governments have staggered to the full five years. The people of this country accept that after four years, or very shortly after that, it is a fair do if the Government call the election.
Whether the term should be four years or five is, as the Government have said, a matter of judgment, but it is significant that the judgment they have made is that it should be a five-year term, thus increasing the benefit for themselves and reducing the frequency with which the people will have the opportunity to exercise their democratic rights at a general election. This is just the kind of political opportunism that the Government, in their response to the Constitution Select Committee, have said that the public are tired of. I believe that we should amend this to four years.
As for resetting the clock and the question of whether, after an early general election, there should be a new five-year term or whether the new Parliament should simply use up the balance of the previous five-year term, again, the coalition has opted to extend the power of the Executive and to diminish accountability. I think that is the preferable choice—not being in favour of fixed-term Parliaments—but it should also be noted that if there is an early general election and the clock is reset, the relationship between five-yearly boundary reviews and the new Parliaments that the Government attached so much importance to when we were considering the Parliamentary Voting System and Constituencies Bill is thrown out.
If five-yearly Parliaments proceed without interruption, there will be an unfortunate coincidence in 2015, and every 20 years after, between general elections for the country as a whole and elections to the devolved institutions. It is simply boorish for the Government to impose general elections on the same day as elections to the devolved institutions, candidates for which should be judged on their own performance and their own promise, not immersed in the backwash of a UK general election. The coalition has already wrecked the 2011 devolved elections; it is now belatedly consulting. What would be wrong with amending this Bill to move the date of elections to October? The interaction with other constitutional changes has not been thought about. There are possible elections to a second Chamber and there is the interaction with the parliamentary privileges Bill that we are promised in draft.
This Bill is unnecessary. It does not respond to any significant problems or real grievances. Mr Harper cites opinion polls showing, he asserts, that the public broadly welcome fixed-term Parliaments, but the Hansard Society’s audit of democratic engagement shows the public uncertain and indifferent: 60 per cent had no understanding of the issue; 39 per cent were satisfied that the Government should appoint the date of the general election; 38 per cent had no preference or view; and only 28 per cent were dissatisfied.
The Bill would limit the power of the Executive in one respect—the power of the Prime Minister to determine the date of the general election—but would increase the power of the Executive through guaranteeing them prolonged life. It is busybody legislation brought in by people who want to parade themselves as constitutional reformers without having thought carefully about the constitution. It will be the duty of this House, once again, to limit the damage. I hope that when we are in Committee the Government will not regard this as a trial of strength but will look forward to Committee and treat it as a collaborative attempt to improve the legislation.
Lord Wallace of Tankerness
My Lords, I join those who have indicated that this has been a very good debate. The House has had the benefit of the experience of many people, from academia and from the other place, who have taken part in votes of confidence—or no confidence—in times past. I certainly wish to join many of your Lordships who have expressed their congratulations to my noble friend Lord Cormack on a notable and distinguished maiden speech. He said that he had been in favour in principle in fixed-term Parliaments for some time. I think that I would describe his speech as that of a critical friend. I served in the other place with my noble friend, I think on a sub-committee of the Administration and Accommodation Committee, which he chaired. Perhaps its most significant task when I was on it was to identify those who would appear in the painting of the House of Commons in session in about 1985 or 1986. That chairmanship was just part of the contribution which my noble friend gave to the other place, not only a concern for its fabric, but a concern for, and a passionate commitment to, its workings. That is the experience that he brings to this place and we look forward to his contributions in the future.
Congratulations are also in order to the noble Lord, Lord McAvoy. Although he said that he was a former Whip, I understand that he has recently been appointed to the Whips’ Bench opposite and I congratulate him on that very rapid rise, which no doubt reflects his abilities as a Whip. That is meant to be a compliment.
We have heard a variety of views, from those who are opposed in principle to this, through to those who are very supportive of it and to those who are supportive of it, but want to see things done in different ways. There are those who have indicated that they do not wish any change whatever. The noble Lord, Lord Grocott, indicated a level of satisfaction with a constitution that he did not think needed changing. My noble and learned friend Lord Howe expressed the view that he was getting somewhat sceptical about constitutional change, but I am grateful to a number of my noble friends who indicated their support in principle. My noble friend Lady Stowell indicated that it was not necessarily a silver bullet, but nevertheless was an important contribution to try to revitalise our political system.
My noble friend Lord Dobbs had a slightly interesting, but very practical, explanation as to why he supported this, not least in terms of party finance. That may not seem the most obvious reason why one would support it, but for those of us who think back to the debates we had on the Parliamentary Voting Systems and Constituencies Bill, the point was made on more than one occasion that political parties oil the wheel of democracy and my noble friend made an important point. Certainly, under the Political Parties, Elections and Referendums Act 2000, there is a regulation of national campaign spending for 12 months before the actual date of poll. Therefore, it is probably preferable that the parties can have a fixed idea of when that is likely to be, rather than have to guess.
This is important because it lends that stability. It particularly lends stability, as my noble friend Lord Marks said, on occasions when there is a coalition Government. It allows Governments and Parliaments to plan for the long term. I take issue with those who say that it does not give the Prime Minister an advantage. Our late colleague Lord Holme of Cheltenham, who chaired the Constitution Select Committee with distinction at one point, asked as long ago as 1991, in words which my noble friend quoted, what people would think about,
“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 22/ 5/1991; col. 245.]
The noble Lord, Lord Elystan-Morgan, although opposed to what is happening and sceptical about the arguments about the Prime Minister, also made the point about the Prime Minister being able to use Dissolution as a threat. It is not only about occasions when Dissolution has been sought by a Prime Minister, it is often about occasions when it was not sought, but was there nevertheless.
I disagree with those who think that this is a shift to the Executive. I believe that neutralising the threat that the Prime Minister has to hang Dissolution over his Back-Benchers may indeed strengthen Back-Benchers, rather than weaken them. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Howard of Rising, took the view that the Bill does not do what I claim it does; namely, that we believe it should transfer power from the Executive to Parliament.
I noted that the noble Lord, Lord Hennessy, acknowledged that it was the Prime Minister giving up a prerogative that he has had the power to exercise for many years. I certainly agree with my noble friend Lord Howard of Rising that the objective must be to shift power from the Executive to Parliament. That is why I believe the Bill helps. This is a Bill that gives Parliament, not the Prime Minister or the Executive, the opportunity to decide when there should be an early general election. That is because of the flexibility, which I will come back to. No longer will the Executive be able to use the threat of a Dissolution against Parliament or their own Back-Benchers.
It is worth remembering that there have quite properly been references to the report of our own Constitution Select Committee. I also remind the House that the Political and Constitutional Reform Select Committee of the other place, in its report on the Bill, said:
“It is questionable whether a Prime Minister should be able to use his position in government to give him and his party an electoral advantage by choosing to hold the next general election to a schedule that best suits him. We therefore acknowledge the principle behind the Fixed-term Parliaments Bill”.
My noble friend Lord Norton asked about public demand. I am the first to say that it is not the question that comes up first at hustings. I am sure it was not the issue that lost the Labour Party the election last May. However, as the Constitution Select Committee report points out, the issue has been on the constitutional reform agenda for the past 20 years. The report refers to a report from the Institute for Public Policy Research in 1991; a commitment in the Labour Party manifesto in 1992; Private Members’ Bills, which have been referred to, in 2001 and 2008; Liberal Democrat policy documents; and the Liberal Democrat manifestos of 1992 and 1997. As my noble friend Lady Stowell indicated, an opinion poll from 2009—at the height of the expenses scandal—showed considerable public support for the idea of a fixed-term Parliament. As far back as 1998, Professor Blackburn, giving evidence to the Home Affairs Select Committee in the other place, gave an argument as to why a fixed-term Parliament should be an issue that the committee might look at. He said:
“But if I could finally select just one reform of election law which does carry popular backing and probably also substantial parliamentary support. This is our system of General Election timing which is an extremely important matter in electioneering terms and which clearly operates to the advantage of the government of the day … The trick is to avoid those times when you are unpopular so far as you can. I believe this Committee”—
that is, the Home Affairs Select Committee—
“should examine the case for fixed intervals between general elections”.
I listened to and take on board the criticisms regarding the lack of pre-legislative scrutiny. As I think I indicated when we dealt with the previous Bill, it is very difficult to have pre-legislative scrutiny of a Bill in a first Session. Noble Lords will remember that the original proposal was to have a binding resolution. That was not proceeded with. It was suggested by some of those who have contributed to the debate that it was questionable whether it would be binding. I certainly do not accept the view that was put forward by the noble Lords, Lord Armstrong and Lord Elystan-Morgan, that the simplest thing would be for the Prime Minister to make a declaration. The noble Lord, Lord Elystan-Morgan, then qualified that by saying, “unless in exceptional circumstances we could not go on to 7 May 2015”. That is the point. It would continue the possible uncertainty. One of the reasons for legislating is to make it clear that that would be the position: there will be an election on 7 May 2015, unless the trigger mechanisms come into play.
Lord Wallace of Tankerness
I am trying to cover quite a lot of ground. I hope that I can do justice to the many important contributions that were made during the debate.
I welcome the fact that the Constitution Committee will look at the process for constitutional reform. It occurred to me that if a Parliament could not do much in the way of legislation in its first Session—it is not just constitutional Bills that call for pre-legislative scrutiny—there would not be much time to do much business at all, particularly since a four-year fixed term of Parliament has also been advocated. There will always be that tension as regards legislation that is introduced in the first year of a Parliament. We look forward to the Constitution Committee’s report on the process that it will recommend for constitutional legislation.
I had not anticipated my noble friend Lord Dobbs asking why the election should be held in May as opposed to June or October. The simple answer is that the most recent elections have been held in May, with the exception of the 2001 election when the foot and mouth epidemic occurred. There is always a difficulty with finding other times that do not clash with traditional holiday periods. However, my noble friend has posed an important challenge and we want to reflect on it. I also note that the annual canvass to update the electoral register takes place in October in Great Britain, so that may not be an appropriate time to place yet a further burden on electoral registration officers.
The noble Baroness, Lady Gould, asked whether there could be an extension of the two months beyond the extension. The answer to that is no. My noble friend Lord Rennard asked about primary legislation in this context. I believe that it is appropriate to introduce the relevant measure by order as the latter would have to be passed by both Houses. The noble Baroness, Lady Taylor of Bolton, asked what we anticipate might happen. I have asked myself that question. I am not sure that I have an answer but I think that one could anticipate receiving a lot of criticism if one was seen to be making provision for the Government to extend their life, not to shorten it. I have no doubt that if we did not have this measure something would happen that no one could have foreseen and we would wish that we had had it. In the case of the Scottish Parliament, the Presiding Officer has the power to vary the election date by one month either way and I think that in the case of the National Assembly for Wales, the Secretary of State has the power to vary the date by a short period either way—although I cannot remember exactly by how much. The measure that we are discussing has been informed by those practices.
My noble friend Lord Norton asked why Clause 2(2)(a) refers to “a motion” whereas Clause 2(2)(b) refers to “any motion”. I think that “any motion” was chosen because it is followed by,
“expressing confidence in any Government”.
It is clearly a drafting preference. We think that “any motion” or “a motion” would have the same effect. I shall certainly contemplate that matter further, but I think that it is a drafting preference rather than having any significant constitutional importance.
The noble Lord, Lord Hennessy, referred to resetting the clock. If there has been an election and a Government have been returned with a substantial majority and a mandate, they should have the opportunity to see that through for a full term. If the clock was not reset, the electorate might find it odd if, having returned a Government with a significant majority, they were then asked some 12 months later to vote again.
I have noted the points made about parliamentary privilege, which the noble Lord, Lord Howarth, raised, as did my noble friend Lord Cormack. I am sure that we will want to look at that issue in Committee but I certainly share the analysis of the noble and learned Lord, Lord Falconer of Thoroton, that the provisions here would ensure that the courts would not interfere in what we believe is very much the space of Parliament.
The key issue is whether Parliaments should last for four or five years. As my noble friend Lord Rennard indicated, there is no absolutely right or wrong answer in that regard—it is a judgment. I indicated that the longer period allows the electorate to make its judgment—my noble friend Lord Marks commented on this—on the policies of a Government as they are seen to be working out in detail over time. I also believe that it allows a Government and Parliament longer to plan their activities. I cannot accept the argument that inevitably the situation has arisen under our present system whereby the fifth year has tended to be a bit of a lame-duck year and that that would necessarily follow if we had fixed-term Parliaments. As has been pointed out by a number of contributors, the fifth year has tended to be a lame-duck year because the Government in office did not think that they could win by cutting and running after four years. Therefore, it has been against a background where they have probably been at a disadvantage anyway.
The point was made by my noble friend Lord Maclennan of Rogart and by the noble Lord, Lord Armstrong of Ilminster, and I think indeed by the noble Lord, Lord Grocott—although I think he was arguing this point in the context of arguing against a five-year term—that the final year, even though it would not be under the same sort of handicap as perhaps 1976-77 or 2009-10, nevertheless would be under a handicap. Even under a fixed-term Parliament, there would be the looming shadow of the forthcoming election. The last year is not as effective a year as the earlier years of a Parliament. That is why I believe that it would be the same in the fourth year of a four-year fixed-term Parliament or the fifth year of a five-year fixed-term Parliament. A four-year fixed-term Parliament therefore would only really allow three years for the Government to put a substantial part of their programme through. I have no doubt whatsoever we will come back to this.
I also just want to say one point. I cannot wholly accept that under a five-year term accountability disappears in the fifth year. I think those of us who have fought elections and have been elected know only too well as the election comes up accountability is a very, very strong thing indeed. When one is about to go and face one’s constituents accountability is very effective.
Another key issue, to which I am sure we will return in later stages of the Bill, is the mechanism. I absolutely endorse what the noble Baroness, Lady Jay, said about there being a spectrum from total flexibility, which you might say we have got at the moment with an end point, a maximum turn with total flexibility and on to rigidity. I do not think that anyone was arguing in this debate for total rigidity. There is a consensus among supporters of the fixed-term Parliament over there being some degree of flexibility; if there is a political imperative or the Government completely fail there must be a mechanism for triggering an election. The noble Baroness, Lady Jay, said that the Constitution Committee broadly endorsed the two mechanisms for triggering an election set out in the Bill but I have listened to the concerns that have been raised. A number of historic examples have been given but it is always difficult to say what would have happened in the past under a future system. The noble and learned Lord, Lord Falconer of Thoroton, acknowledged this. Edward Heath in 1974 obviously wanted a dissolution. The Opposition would have agreed and they would have got the two-thirds majority for an election. Likewise, the position in 1924 was also raised by, I think, the noble and learned Lord, Lord Morris of Aberavon in an intervention on my opening speech.
In January 1924 the Conservative Government resigned after a defeat on the Queen’s Speech address but that did not trigger a general election. It actually triggered the formation of Ramsay MacDonald’s Administration. The draft Cabinet manual which was published in December last year indicates that at the moment the convention is that the Prime Minister either advises Her Majesty to dissolve Parliament or the Government resign and a new Government from the existing Chamber can be found, as indeed happened in, I think, January 1924.
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Lord Wallace of Tankerness
My Lords, I am not sure whether the noble Lord is advocating that kind of threshold.
As I have indicated, one of the most convincing reasons for not having voter turnout thresholds is that, in a referendum which poses a yes/no question, the turnout threshold effectively makes every abstention a no vote. Under the amendments of the noble Lord, Lord Rooker, there might still be this effect because abstentions could mean that a majority yes vote might not be upheld. People might abstain from voting in a referendum for any number of reasons, including apathy and ambivalence. Given that the electorate as defined would also include the dead, by definition such people would not be able to vote. [Laughter.] Noble Lords may laugh, but that is the case. People with double registration, who would be allowed to vote only once, would also be included in the definition of the electorate. Under the amendments of the noble Lord, Lord Rooker, abstentions could mean that a yes vote may not be upheld.
The turnout threshold could incentivise people who favour a no vote to stay at home rather than to vote. The honourable Member Mr Mark Durkan of the SDLP made an interesting speech in the other place last night. He made the case that, in some of the referendums held in the Republic of Ireland, one of the campaign slogans was, “If you do not know, vote no”. He said that if this threshold amendment was to be passed, the message would be, “If you do not know, stay at home”. One of the many admirable things about our political culture in this country is that parties unite to encourage people to vote. Indeed, when my noble friend Lord Phillips of Sudbury proposed an amendment that the various authorities—the Electoral Commission, the counting officers and registration officers—should encourage participation, it was accepted on all sides of the Chamber. The noble and learned Lord, Lord Falconer of Thoroton, subscribed—and no doubt he continues to subscribe—to the principle and the objective that people should be encouraged to turn out to vote. The effect of the amendment could be to encourage people to stay at home or not to bother. “Stay at home on 5 May” is not, I hope, a message that any noble Lord wishes to hear at the hustings in the referendum.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, this is the Lords consideration of Commons amendments. There will be time for noble Lords to make their points in the debate. The noble and learned Lord, Lord Wallace, should be allowed to finish his speech.
Parliamentary Voting System and Constituencies Bill
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Lord Soley
I do not accept that. The advantage of my noble friend’s amendment is that it invites a considered response. If the noble Lord is right, although I do not believe he is for a moment, then this is the opportunity to look at it. This is the way that any future Government would, I hope, address the issue. Like my noble friend, I support a reduction of the numbers in the House of Commons, but we should not do it this way. You should not fiddle around with the constitution to suit your own party advantage. This proposal offers structure, which is very important. I give way to my noble friend.
Lord Howarth of Newport
Is it not rather remarkable that the noble Lord, Lord Garel-Jones, has just admitted that the motive of the coalition in introducing this legislation is to achieve a more favourable political structure in the distribution of constituencies to the benefit of the Conservative Party?
Lord Soley
There is a genuine argument about whether it automatically gives a bigger majority to the Conservative Party because all sorts of issues like turnout and so on have to be taken into account. However, the general view has been expressed consistently ever since Andrew Tyrie wrote his document in 2004 that this would benefit the Conservative Party. That is what it does. So I would say this, particularly to the Members opposite: bear it in mind that you will not be in power for ever and you will then not be in a position to complain about a Government who come in and do the same to you. I shall give way one last time, but I am anxious not to delay the House.
Lord Foulkes of Cumnock
My Lords, I was swithering about whether to speak to Amendment 25A in my name and Amendment 26 in my name and that of my noble friend Lord Campbell-Savours. I got to my feet only because of the demands of the noble Lords, Lord Rennard and Lord Tyler, who said that they missed my contributions to this debate. I am very pleased to do this request number, as it were.
However, it is very important, as my noble and learned friend, Lord Falconer of Thoroton, said, to get as accurate a register as possible on which to carry out the revision of the boundaries. I am sure the Liberal Democrats would agree with that. They might not agree with our solutions and prescription, but I am sure they would agree with the thesis that it is important to get it as accurate as possible. My noble and learned friend Lord Falconer has suggested one option. These two amendments suggest two more. Amendment 25A suggests using the census, which fortuitously will come in 2011 and will give us a figure for those who are eligible to vote, together with updates that are available. My noble friend Lord Maxton commented in Committee on how the register could be updated.
Amendment 26 is even simpler. It would use those who are eligible to vote, not necessarily all those on the register. In Committee it was suggested that there might be some problems about identifying the numbers. With respect, I do not see how there can be when the Government cite the percentage of those in an age group who are registered. If they are able to give a percentage that is registered in each group in each constituency, they must know the number who are eligible. It would be far fairer to use figures that are more accurate and up to date, as my noble friend Lord Campbell-Savours said. I hope the Minister will respond to those two points.
Lord Howarth of Newport
My Lords, we all endorse the ambition to achieve equality between constituencies, although on this side of the House we consider that there are other factors that have been too much discounted by the Government in their proposals. However, there is the very serious question of whether the flawed data that the electoral registers provide undermine this project of seeking equalisation between constituencies. Research by Dr Roger Mortimore, investigating the 2009 electoral registers across eight study areas, found variations in the completeness of the electoral register in a range of 73 per cent to 94 cent. In some constituencies the register was thought to be that incomplete; only 73 per cent of those who should have been on the register were. His study of the accuracy of the register in those same areas found a variation of between 77 per cent and 91 per cent. In the worst instances, which could be some 50 to 100 constituencies in which the condition of the electoral register is seriously inadequate, it must cast doubt on whether the Government are realistic in seeking to achieve equality.
While we would in no way wish to discourage them from seeking to achieve equality between constituencies, we very much hope that they will conduct an energetic drive throughout the country to ensure that electoral registers are both complete and accurate. They can do this outside the terms of the legislation, so even if they do not accept these amendments they will still be free to do this if they wish. It will not be enough if they respond by saying that moving to individual registration should make a substantial contribution to solving the problem, because individual registration will improve accuracy but will certainly not improve completeness. A substantial problem will remain.
I certainly think, as we suggested in Committee, that a serious effort should be made to absorb the findings of the census, which is to be carried out next month. It would be possible for those concerned with drawing up electoral registers to begin to take account of interim findings from the census, and they should do that, just as the Government intend to use other databases to help to improve the completeness and accuracy of the register.
As it is, we are conducting this immense and controversial process of redrawing constituency boundaries on a principle that cannot in practice be carried through, given the serious inadequacy of registration. I hope we will hear from the noble Lord, Lord Strathclyde, that the Government have practical proposals as to how they will improve the condition of the registers to fulfil the objectives that we share on all sides of the House.
Lord Strathclyde
I recognise the importance of the subject raised in this group of amendments and I will speak to them all. I am grateful to noble Lords for raising their queries in the way that they have done.
Amendment 16J prohibits the first boundary review from taking place until all local authorities in the country have been certified as having taken all reasonable steps to ensure that the electoral register is as complete and as accurate as possible. The amendment also leaves it to the Boundary Commission to decide when the first review should be completed. The Government’s position has not changed on this issue since we debated it in Committee, because if we delay the implementation of new boundaries whereby they do not take effect before the general election in 2015, we end up with the absurd situation of electors in England coming on to the register in 2018 who were not born when the electoral data that are used to determine the pattern of representation across the UK was compiled. This should not be allowed.
As the Government made clear, action is being taken to accelerate progress towards individual registration. We are introducing measures such as data-matching schemes to help local authorities gain as complete a picture as possible of the eligible voters in their area. However, we cannot allow boundary reviews to be delayed, potentially indefinitely, which the amendment may do. It states that a boundary review could not take place until all—I stress, all—local authorities in the country had been certified as having completed all reasonable steps to ensure that the register was as complete and accurate as possible. This does not seem to be either reasonable or proportionate, given that the electoral register has been used as the basis for boundary reviews for decades. It is important that steps are taken to support registration, but we do not see this as an either/or situation; we should not tolerate out-of-date boundaries while the registration work is ongoing.
The noble Lord, Lord Campbell-Savours, asked a perfectly fair question as to why the register from January or February 2011 could not be used. The answer is that 1 December is the date by which the electoral register is published, following the annual census. The research that has been undertaken independently by the Electoral Commission shows that the register becomes less accurate throughout the year from that point. Therefore, by using the register that was due to be published on 1 December, we are addressing the concerns expressed about the accuracy of the register.
Lord Strathclyde
My Lords, I am very happy to do so; more than that, I will try to get a letter sent to the noble Lord overnight for him to study before we reach his further amendment.
Amendment 26, in the names of the noble Lords, Lord Campbell-Savours and Lord Foulkes, also seeks to require the Boundary Commission to estimate the number of people entitled to vote, based on data from the 2011 census and any other data available, and to use this as the basis for the electoral quota, or simply to estimate the number of the eligible electorate. There are practical difficulties in estimating the number of people who are eligible to register but have not chosen to do so. Again, the Electoral Commission has called estimating the completeness and accuracy of the electoral registers an imprecise science, and acknowledges that all current approaches to estimating the data are imperfect. That is not a solid basis on which to draw up constituency boundaries. Even if it were possible to make estimates of the total electorate who are unregistered to vote, this amendment proposes the use of data from the 2011 census. The census is being carried out, as the noble Lord, Lord Howarth, pointed out, on 27 March. Data will not be available until at least the end of the year. Data at local authority ward level, which would be necessary to make estimates that would be of any use in a boundary review, will not be available until well into the following year. It will be well into 2012 before the data set for the review can even begin to be compiled.
The Boundary Commission for England will not be able to conduct a review that allows for proper consultation and allows enough time for parties, candidates and administrators to prepare for an election on new boundaries in 2015 if they have barely begun the task at the start of 2013. Furthermore, any such estimates will doubtless be the subject of considerable critique and challenge by those with a vested interest, which might risk further delay and undermine confidence in the commissions. It is far better to base the review on the electoral register, because whatever the debate about the number of electors who should be on the registers, the number who actually are on them is a simple matter of fact.
If it is not possible to wait for the census and have new boundaries in place for 2015, then it seems to me—
Lord Howarth of Newport
Will the noble Lord explain why it will take such an extremely long time to get findings from the census? The Government’s computers must be grinding very slowly.
Lord Strathclyde
My Lords, it is a nice idea that I would able to explain that now. My understanding is that it takes that long to get the figures out. If there were a way of speeding up the process, we would have done so, because we want the most up-to-date figures available for the review to use.
Lord Falconer of Thoroton
My Lords, Amendment 18F would replace the current provision of the Bill to fix the House of Commons at 600 seats with an alternative rule that would anchor the size of the Commons at its current membership of 650. We have touched down on this a few times this afternoon.
We contend that the Government have failed properly to explain why the figure of 600 seats has been identified as the optimum membership in the other place. They began by claiming that the House of Commons is a “bloated” Chamber and that the UK suffers from overrepresentation, but those arguments were quickly disproved. The claim that Britain is overrepresented in comparison with other similar-sized countries is based on a simple international comparison of numbers of elected representatives per head of population. In fact, the extent to which the UK has more representatives in the national legislature per head of the national population can be exaggerated.
As a briefing note from the House of Commons Library makes clear, the UK has roughly the same ratio as France and Italy. Of course, those calculations take account only of national legislatures and do not include reference to levels of representation beneath that tier. If we look below the national level, we see that the UK has far fewer elected officeholders per head of population than almost all comparable countries. One academic study found that, at the level of local government, the population per elected member is 2,603 in the UK, 350 in Germany and 118 in France. When subnational elected representatives are factored in, it is apparent that the UK does not suffer from overrepresentation.
In any event, there is a fundamental problem in seeking to draw simple comparisons between numbers of elected representatives in different national legislatures. Some countries are unitary states; others are federal. Some have a Westminster model; some have a presidential system. As a consequence, comparison is difficult.
A more sensible basis on which to decide what level of representation is right for the UK is to examine how the size of the House of Commons has changed over time. If the number of MPs was inexorably growing out of all proportion to the size of the electorate, there would clearly be a problem. The evidence shows that that is not the case. The Commons has not grown disproportionately in recent years. It has increased by about 3 to 4 per cent—that is, 25 Members—since 1950. However, the electorate and therefore the average size of constituencies have increased by approximately 25 per cent. That has produced a significant increase in the workload of MPs, which has in any event grown out of all proportion to the increase in population as a consequence of changing social norms, political developments and new forms of communication.
There is no evidence that having fewer MPs will reduce the demand for their services. Assuming that that remains the same, the pressure on the remaining Members and their staff will increase. If the service that MPs provide to their constituencies is not to deteriorate, they will no doubt need greater resources—employing people as caseworkers and those assisting them. The savings made by a reduction of 50 Members of Parliament are then likely to be lost, or reduced, undermining the argument that this is worthy as a cost-cutting measure.
As the initial justifications for the proposed reduction in the other place have broadly collapsed, the government Front Bench has adopted other numbers: a nice round number, now famous in this House. No wonder your Lordships’ Constitution Committee said in its report on the Bill:
“We conclude that the Government have not calculated the proposed reduction in the size of the House of Commons on the basis of any considered assessment of the role and functions of MPs”.
That is now confirmed by the Marshalled List of amendments, which includes, on page 14, Amendment 28A, which provides for a review into the proposed reduction in the number of constituencies. Your Lordships may note that the review is not due to begin until after the election, when the reduction will have happened.
The reduction in the number of MPs is a gamble based on no proper evidence, but it will be pursued anyway. The timeline was explained to us in discussion with the Government on the basis that it would be pointless to try to assess the impact of the proposed reduction on MPs before it had happened. If the reduction turns out to have a very negative impact, it will be too late to prevent it.
In most organisations, you consider the decision first on the evidence and then you take the decision. This Government take the decision, set up a body to look at it and then decide whether it was the right decision. Their approach to whether it affects our national Parliament to the total detriment of the people is, “Who cares?”. Surely the more sensible approach would be to assess the workload and responsibilities of MPs now, with a House of Commons of 650 seats, before making a change of the sort now proposed.
We believe that the case for a 650-seat Commons has not changed since the current Prime Minister, Mr David Cameron, spoke in its favour—indeed, in favour of a slightly larger elected Chamber—at the 2003 Oxfordshire boundary inquiry. Opposing proposals to alter his constituency boundaries at one of the last public inquiries to be allowed into constituency boundaries, he told that inquiry—what a valuable inquiry it was:
“Somebody might take the view that at 659 there are already too many Members of Parliament at Westminster. They may take the view, depending on what happens in the European constitution, that Westminster has less to do, with less MPs—I certainly hope that is not the case”.
Our amendment stems from a conviction that the current Commons of 650 is the most appropriate basis on which to stabilise the size of that Chamber.
Put simply, under our proposals for alternative rules, an initial UK quota would be calculated by dividing the total UK electorate by 650. That would stabilise the House at about 650, but, with a mathematical rounding up or down involved in the calculation of seats in the four parts of the United Kingdom, it would enable minor fluctuations of up to one or two seats either side of 650, which would help the Boundary Commission to deal with remainders. That will give the Boundary Commission flexibility. That seems to be plain common sense. Unfortunately, the Government have struggled to respond positively to those common-sense views.
This is an incredibly important part of the Bill. We are being asked to cut 50 seats from the primary national political body in the United Kingdom. We are being asked to fix its size in statute in perpetuity at 600 and we are not being given any proper explanation as to why that is the most appropriate size for the House of Commons. Does anyone here honestly think that that is the right way to enact such fundamental constitutional change? I beg to move.
Lord Howarth of Newport
My Lords, my noble and learned friend, as the House has come to expect of him, has laid out all the relevant issues with magisterial authority. However, I suggest that there is one issue that he may have overlooked, which is that the population of this country is projected to grow very rapidly in the next few decades. If we fix the number of constituencies at 600, or even at 650, we will shortly find that the average number of constituents is unmanageably large. My noble friend Lady McDonagh made an interesting and thoughtful speech on the subject in Committee. We will quickly find ourselves with constituencies of 100,000 voters, trending upwards. Something has to give. You cannot have a fixed quota and a fixed number of constituencies. If the fixed number of constituencies is to be the paramount consideration, the quota will have to jump up at frequent intervals. That is unsatisfactory.
That leads me to my second point, on which I slightly take issue with my noble and learned friend. I question whether it is appropriate for the Government to invite Parliament to determine the precise number of Members that there should be in the House of Commons. That has not been our practice in the past. The Boundary Commissions have had the discretion to recommend the number of constituencies that they judge to be appropriate, which I think is more practical and more proper. If we were to look at the case of a country in Africa—it might be Zimbabwe, Kenya or Rwanda, one of those countries whose political conduct we are quite apt to criticise and where the regime wins less than universal admiration from all of us around the House—
Lord Falconer of Thoroton
I think that the noble Lord slightly mischaracterises my argument. The effect of my proposal is that it will be for the Boundary Commission to determine the precise number of MPs, which might not be 650. That is the same as the current position.
Lord Howarth of Newport
I am hugely relieved as a result of my noble and learned friend’s intervention. However, I do not think that we should lean particularly on the Boundary Commission; it is not for Governments or politicians to suggest a desirable norm for the precise number of constituencies. Just as we would deplore the regimes of other countries whose practices we considered to be seriously illiberal determining the number of constituencies, so we should not do so here. I acquit my noble and learned friend of any such exact intention, but it is important that no one should suffer from the same misapprehension of his purposes as I did.
Lord Foulkes of Cumnock
My Lords, I want to say a few words in support of Amendment 18H. I am sure that the Minister will say that it is defective in some way. If it is, I must apologise, but it had to be written rather quickly because of this very short period between Committee and Report, which has created tremendous problems.
Understandably, the noble Lord, Lord Strathclyde, and I have affection for nice round figures. I can quite understand why he is attracted to 600. However, he has never produced a logical argument for that figure. It was alighted on; it was plucked out of the air. This amendment, which is in my name and that of my noble friend Lord McAvoy, suggests that the figure should be between 600 and 650. The exact figure should be recommended by the Boundary Commission following consultation with all interested parties and then approved by Order in Council, or by Parliament by some method, in time for the general election in 2015. I am not suggesting anything that would hold up this review, which should be completed in time for the general election. The Boundary Commission—I should say the Boundary Commissions, to allow for Scotland, Wales and Northern Ireland as well—should consult and come up with a figure that they consider more appropriate, taking account of all factors. I considered whether the Electoral Commission should be the body to deal with this, which may be something for discussion.
As was said in Committee, it is unique, unparalleled and regrettable when a Government decide the number of those elected to the main Chamber of Parliament. It is quite outrageous for this to be suggested. My amendment would take it out of the hands of the Government and put it in the hands of a body with some degree of impartiality and respect that can take account of the wider view. The decision will still come back to Parliament and will be agreed in time for the election in 2015.
I also thought that this might be attractive to the Liberal Democrats. On the one hand, you have 650 as an option, while someone else might suggest 600; usually the Liberal Democrats like somewhere in between and this allows for that. However, the Liberal Democrats do not seem the same as they were in the old days, when, as I remember well, they used to like these kinds of compromises and halfway houses where human rights were so important and democracy was considered to be an important element. These days, we see them trooping through in astonishingly rigid and disciplined fashion. The Liberal Democrat Whips must be by far the most successful and powerful Whips anywhere in this Parliament. They march their Members through with astonishing ruthlessness, following this great mantra set down by Mr Nicholas Clegg, who has returned from his expedition in Europe and encourages us to follow some of its patterns of activity.
I am straying. If there was a Speaker with powers—as there ought to be, by the way—he or she, more likely she, would tell me that I was entirely out of order, as indeed I am, so I had better stop.
Lord Tyler
My Lords, I shall speak to Amendments 27A, 27C and 27D. I want to pay tribute to my noble friends on the Front Bench because this responds directly to a request made in Committee by my noble friend Lord Rennard and me that we should have some very simple, practical rules in the Bill to deal with the issue to which the noble Lord, Lord Bach, has just referred. These amendments together seem to us fully to meet our concerns. I think that they are practical and sensible, but they recognise that in certain parts of the United Kingdom it will be very difficult to be precise; for example, in a big city like Birmingham where the wards are very big indeed—I believe that they run to hundreds of thousands of people. In those circumstances, obviously you cannot have a hard-and-fast rule. However, Amendments 27A, 27C and 27D meet fully the requirements of a realistic appreciation that wards will indeed be the building blocks of constituency size; but we have to have some flexibility to meet the particular concerns and needs of different parts of the United Kingdom. I am very grateful to my noble friends.
Lord Howarth of Newport
My Lords, I have three amendments in this group: Amendments 27AA, 27BA and 27BB. These are technical amendments and I do not think that they have any political implications at all. Certainly I do not think that they do anything to challenge what the Government regard as the principles of this Bill. I am rather puzzled that in the definitions of local government boundaries on page 12 in Clause 10(3)(a), reference is made to the boundaries of each county, each district and each London borough, but no reference is made to the boundaries of other unitary authorities. If the noble Lord is able to tell me that other unitary authorities are covered by these definitions as already stated in the Bill, I have no problem; but I do not think that they are. There are unitary authorities that are not counties or London boroughs. Surely it would be desirable in principle if the Boundary Commissions, in applying rule 5(1)(b) on page 10, were to seek to avoid crossing the boundaries of other unitary authorities when drawing up the boundaries of constituencies. Professor Ron Johnston made that point in his evidence to the Select Committee on Political and Constitutional Reform of another place. He suggested that it was no more than an oversight that other unitary authorities had not been included within the clarification of terms in the Bill.
Baroness Armstrong of Hill Top
My noble friend might like to know that a couple of years ago Durham County became a new unitary authority and is no longer counted as either a county or as being in any of the other categories. There is, none the less, a real pride in being the new unitary authority within the old county of Durham. It would be very weird if we had to stray from wards within that area into Tyneside, Wearside or, indeed, into Cumbria, at the top of the county, and Northumberland. It seems to me that my noble friend has hit on something important—certainly in Durham we would take it as very important indeed.
Lord Howarth of Newport
My noble friend speaks with her characteristic sensitivity to political emotions, which are very important among political realities. She speaks with pride on behalf of the historic county of Devon. Durham—forgive me, it is late in the evening. I hope that my noble friend will forgive me.
Lord Howarth of Newport
Technically, perhaps the county of Durham is no longer a county council as such; I do not know. It seems to me all the more important that there should be recognition in the Bill of the important contemporary reality of unitary authorities.
Among his observations in debate on a previous amendment, the noble Lord noted that parliamentary constituency boundaries crossed the boundaries of a significant proportion of unitary authorities. That is not a good reason to surrender those unitary authorities, assuming that there will be no concern among the people who live within them that their integrity should be preserved when drawing parliamentary constituency boundaries—and, very importantly, the working relationship between Members of Parliament and the local authorities governing the areas, the communities, which they represent. It must be desirable that Members of Parliament deal with the smallest possible number of local authorities. The complexity, the multiplication of tasks, the time-wasting and the cost involved in Members of Parliament having to deal with a proliferation of different local authorities overlapping with their constituencies is clearly undesirable. I hope that the Government will accept that the Bill should be amended on the lines of my amendments.
I say just a word on the question of wards as building blocks. If it has to be accepted that, with the tight tolerance around the electoral quota, it will be more commonly the case than it has been hitherto that individual wards will be bisected in the drawing up of constituencies, some administrative questions follow. What is to be the subdivision of wards that the Boundary Commission will need to take account of? If it is to be polling districts, how can we be sure that local authorities will not redefine polling districts so as to frustrate the purposes of the Boundary Commission?
Those administrative processes ought to be sensibly related to each other. If we are to see the fragmentation of wards, we need some sub-unit which the Boundary Commission will respect. If it is to be the polling district within the ward—which it could be—we need a guarantee that the polling districts will not be arbitrarily chopped and changed. I beg to move.
Lord Davies of Stamford
I suspect that at this stage in the proceedings and at this time of night, there is not a great appetite in the House for a long speech. I want to speak briefly to my amendment, Amendment 22, which is grouped and is about wards.
It would be churlish not to start off by saying that I recognise—and am grateful and appreciative—that the Government have moved some way in our direction. The Minister will recall that I pressed him on the matter of wards at some length in Committee. After quite a long discussion, he ended up by saying that there may be,
“some merit in placing discretionary consideration”—[Official Report; 24/1/11; 713.]—
of wards in the Bill. I place on record that I recognise that the noble and learned Lord has done what he promised to do and has tabled an amendment, which he has not yet had a chance to move, Amendment 27A, which puts wards in the same category as other local authority boundaries for the purposes of the Bill.
Your Lordships may say: why are you rising at all to speak to the amendment? The reason is that there is a significant difference between what the Government propose—I recognise that they have taken steps in the right direction—and what I propose. The essential phrase in Clause 5, which all of us will remember, is that the Boundary Commission “may, if it sees fit” take into account local government boundaries. Wards are now included for the first time as a local government boundary.
“May, if it sees fit,” is a very weak indication or encouragement to the Boundary Commission to take ward boundaries seriously.
I have a greater degree of optimism in practice, because I have a great respect for the Boundary Commission and it is as familiar as we are with the strong arguments for respecting wards made very well by my noble friend Lord Bach. They are that wards are the building blocks of both local government and the major political parties in this country. To break them up or cut across them would be an attack on democracy at the grassroots. I am quite sure that neither the Tory party nor the Liberal Democrat party really want to do that. However, there is considerable merit in having a stronger formulation as in my amendment:
“Except in circumstances they judge to be exceptional, a Boundary Commission may not allow a ward to form part of more than one constituency”.
The obligation is placed on the Boundary Commission to make a case of exceptional circumstances if it decides to split a ward. That seems a much stronger formulation and I would be grateful if the Minister could say why he cannot accept an amendment which seems to encapsulate the spirit of the debate we had in Committee.
Parliamentary Voting System and Constituencies Bill
Lord Howarth of Newport Excerpts(13 years, 10 months ago)
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Lord Howarth of Newport
My Lords, perhaps I may say a word about Amendment 14 in the name of my noble friend Lady Hayter of Kentish Town. Her amendment would provide that if there is not a majority in support of changing the electoral system,
“in any one of the four parts of the United Kingdom”,
the proposition should fall for the United Kingdom as a whole. I certainly hope that there is common ground around the House that we wish to strengthen the Union and bind the peoples of the four parts of the United Kingdom in one coherent political system and, as far as possible, in one political culture. It would be singularly unfortunate and divisive, were the referendum to be lost in one of the four parts—let us suppose, for example, that the people of Wales were to vote no but those of England, Scotland and Northern Ireland were to vote yes—if the people of England, Scotland and Northern Ireland were then to impose their preferred version of an electoral system on the people of Wales. I think that that would be divisive, traumatic and very unfortunate.
Lord Tyler
Is the noble Lord really saying that it would be divisive in those circumstances when it is clear that what would be much more divisive is that if one part of the United Kingdom was able to veto the clear majority of the decision of the rest of the United Kingdom? That is a complete nonsense.
Lord Howarth of Newport
The noble Lord sees things in a mirror glass world and he is entitled to look at them from that perspective. However, I invite him to consider what the impact on the sentiment would be in Wales if, having voted against the proposition that, say, the alternative vote system should be used, it was none the less to be imposed by the rest of the United Kingdom on the people of Wales. I think that that would create a grievance and that it would be an unhappy development. The amendment in the name of my noble friend is well worth the House meditating upon.
Baroness Thornton
My Lords, I do not intend to address Amendments 12 or 15. The noble Lord, Lord Elystan-Morgan, spoke in the earlier debate on Amendment A1 moved by my noble friend Lord Rooker, and I follow his lead in saying that we do not intend to pursue these amendments.
Lord Howarth of Newport
My Lords, Amendments 16B, 16C, 16E and 16F are intended to substitute for the optional preference AV system the obligatory preference AV system. We touched upon this issue in an earlier debate, and on the first day in Committee my noble friend Lord Campbell-Savours spoke very powerfully indeed on this topic. I none the less ask your Lordships’ indulgence to permit me to say a very few words about this because it is an issue of prime importance in this Bill.
My amendments, if they are technically valid, would replace the Queensland system, which is what the Government are proposing in the Bill, with the Australian federal system, and there is a very important difference. If you are voting in an Australian federal election to the Australian House of Representatives, you are required to vote for all the candidates on the ballot paper in the order of your preference. If you fail to do so, your vote is invalid. In the optional preference version of AV that applies in Queensland, you do not need to vote in order of preference for all the candidates; you may, if you prefer, vote for only one candidate. It is quite instructive to see what has happened in Australia over the years. The system that now operates in Queensland was introduced in 1992. Initially, when that was done, very few voters failed to express all their preferences in rank order, as had been their tradition—only about 20 per cent, initially. However, as time went by, more and more of them realised that they did not need to cast all these preference votes and they stopped doing so in very considerable numbers.
The turning point came in 2001, as my noble friend Lord Campbell-Savours told the House in Committee, when the Australian Labor Party ran a “just one vote” campaign, because it had realised that it was more likely to be in the interests of their candidates that they should discourage people from exercising all the preferences that they might. To concentrate all their votes on one candidate is termed “plumping”, a term originally coined in 19th century England when elections to school boards were introduced. Under that system, an elector was permitted to exercise perhaps 20 votes—a vote for every member of the school board—but they were allowed to cast all their votes for the same candidate. The object of that provision was to try to ensure that representatives of Christian minorities were represented on school boards. However, what actually happened in practice, very interestingly, was that it was organised that people would plump or concentrate their votes in support of women candidates, because it was felt to be desirable that women should serve on school boards. That plumping was very beneficial to the feminist cause in the 1880s and thereabouts. The term has been borrowed in Queensland.
The result of the practice of plumping in Queensland, as we are told by the academic authority of Messrs Rallings and Thrasher from the University of Plymouth, is that in 2009, 63 per cent of those who turned out at the state elections in Queensland voted for just one candidate—and, in some constituencies, the proportion was as high as 73 per cent. Even when the political parties urged their supporters to use their preference votes in the manner associated with AV, they did so decreasingly. For example, the Greens urged their voters to exercise all preference votes, and to exercise their second preference in support of Labor, but very large numbers—46 per cent—of those who gave their first preference to the Greens did not do so; they made no other choice. We have seen the same effect in the London mayoral elections, where there is a modified version of AV in the supplementary vote system. A significant percentage—perhaps one in five voters—vote for only one candidate.
I am not a supporter of AV, but if the proponents of AV want to see the benefits that they profess that AV would confer, I suggest that they would do better to have the proper AV system—the obligatory preference system—rather than the one that is being proposed in this Bill. If we have only optional preference voting under AV in this country, it will rapidly turn into a pretty close replica of the first past the post system. People will scratch their heads and ask why on earth they have been through all this palaver, why we have had a referendum, and why—if they did so—they have voted for an alternative vote system that turns out to be remarkably similar to the first past the post system that they have rejected. This needs very careful thought, and it is not too late for the Government to give it that thought. I beg to move.
Lord Wallace of Tankerness
My Lords, the amendment moved by the noble Lord, Lord Howarth of Newport, would provide that, under the alternative vote system, voters would be required to express a preference for every candidate standing at the election. As he indicated in moving his amendment, we had some debate on a related issue earlier in the evening. In the Bill as drafted, by contrast, voters may express a preference for as few or as many candidates as they wish—indeed, as the noble Lord, Lord Foulkes, observed, even just for one. We believe that this approach gives maximum choice to voters. We would not support a system where voters were required to express preferences for all the candidates standing at the election.
In Committee, my noble friend the Leader of the House explained that the Government believe that the optional preferential form of the alternative vote system is the right form of AV to be put before the people. There is a genuine issue here and a genuine debate, but we believe that for elections to the other place, if voters are to be able to express preferences, it is only right that they should be able to express as many or as few preferences as they choose; their ability to limit their preferences should not be constrained in the way that the noble Lord suggests.
Furthermore, the optional preferential form of the alternative vote avoids putting voters in the position where they are obliged to vote positively and to give a preference for political parties that may be wholly distasteful to them, such as those on the extremes of politics. Indeed, it is not impossible that people might be dissuaded from casting a vote at all if they felt that they had to go to the ballot box and put a number beside a party that they found extremely abhorrent. That would be the opposite of what those who support the alternative vote would say is the aim of using it as the system for electing Members to the House of Commons.
The noble Lord, Lord Howarth, mentioned Australia. In those elections where a compulsory form of AV is used, voters must indicate an order of preference for every candidate on the ballot paper, as he described, in order for their vote to be valid at all. The noble Lord’s amendment does not specify what would happen if a voter did not express a preference for all candidates. Would that vote be declared invalid? It is not clear what would happen in those circumstances. There is a danger, of course, that it could risk disfranchising voters who did not wish to express a preference for all candidates standing at the election. Against that background, I urge the noble Lord to withdraw the amendment.
Lord Wallace of Tankerness
The noble Lord, Lord Campbell-Savours, says from a sedentary position that it is right. Be that as it may, the noble Lord, Lord Rooker, prefaced his remarks by saying that he did not support the compulsory system and preferred the optional preferential system. If we believe that that is a better system than the compulsory system, I think that that is what we should stick with. If it is the case that there is not another national legislature that does it, so be it—we are devising a system for the House of Commons.
Lord Howarth of Newport
My Lords, I think that it is clearly implicit in my amendments that, if people did not use all their preferences, their vote would be invalid, as is the case in federal elections in Australia. The noble and learned Lord rejects what I suggest; be it on his own head. If Ministers in the Government wish to make a botch of their attempt at electoral reform, so be it. I beg leave to withdraw the amendment.