Fixed-term Parliaments Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 21st March 2011 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

30: Clause 2, page 2, line 10, leave out “of” and insert “tabled by the Leader of the Opposition in the House of Commons declaring that the House of Commons has”

[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.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the indications given by the Minister that there will be some flexibility in consideration of how to deal with no confidence Motions. The Minister should know that I and my noble friends who proposed these amendments fully support the two triggers and the basis on which no confidence Motions are dealt with in the Bill, subject to the proposition mentioned at Second Reading by the noble and learned Lord, Lord Falconer of Thoroton. Indeed, it gave me great pleasure to agree with the noble Lord, Lord Howarth of Newport, in relation to this amendment, but it gave me less pleasure to hear him suggest that the only reason the Liberal Democrats are moving the amendment is because they do not trust their Conservative colleagues not to rat on the coalition and go to the country. I invite noble Lords to accept that the reason for the amendment is simply to address the problem that the noble and learned Lord, Lord Falconer of Thoroton, identified in the Second Reading debate, which was that the Prime Minister could technically engineer a dissolution and that that was the mischief at which this Bill is aimed.

I turn to the history of no confidence Motions. I had understood from the Library note, as had my noble and learned friend Lord Wallace of Tankerness, that since 1895 all Motions of confidence or no confidence have been moved by the leader of the Opposition, or at least if not initially, then taken over by him after others had moved such Motions. The reason why that is an attractive proposition is that it is simple and it vests in the alternative Prime Minister the power to move the Motion of no confidence. In tabling the amendments as we did, my noble friends and I considered carefully the question of balance between Front-Benchers and Back-Benchers in the other place, to which the Minister referred. However, if one does not specify that it should be for the leader of the Opposition to move a Motion of no confidence, inevitably the field is opened in such a way as to make it possible for the Prime Minister to collude with another Back-Bench Member of Parliament, not of his own party, in the moving of a Motion of no confidence. That is undesirable because it increases the danger to which the noble and learned Lord, Lord Falconer of Thoroton, originally referred.

On the question of the definition of a vote of no confidence, I accept, as I suspect do most Members of the Committee, that traditionally in the House of Commons, Motions on issues considered to be issues of confidence may take many forms. But, at the margins, such Motions do not necessarily amount to Motions of no confidence and I do not accept that the desirable way to deal with those Motions on the margins is by requiring the Speaker to certify that they are Motions of no confidence. If this Bill is enacted, we are moving into a new era in this field, that of fixed-term Parliaments with a statutory code for early Dissolution. It is, I would suggest, appropriate that there should be a new procedure, a new clarity, in the statutory code on the question of votes of no confidence. In moving the amendment, it seems to us that the sensible way to proceed is for a Motion on a confidence issue that may be at the margins or may be dubious to be followed by a clear, declaratory Motion of no confidence about which there could be no doubt. It is for that reason that the simplicity and, I suggest, the elegance of the solution whereby the leader of the Opposition has that responsibility, should be accepted.

The idea that a certificate of non-collusion should be the way forward, as suggested in the amendment proposed by the noble and learned Lord, Lord Falconer of Thoroton, carries with it endless difficulties that make the solution unattractive. I see that the noble and learned Lord is nodding in agreement. It would involve the Speaker in value judgments, which would be thoroughly undesirable, would be difficult to make and would require him to conduct a single-handed assessment of the evidence before him of collusion or non-collusion. I note that the noble and learned Lord appears to agree with that.

I urge the House in passing this Bill to have regard to the central mischief at which it is aimed. In so doing, I invite a robust answer to the question of the noble and learned Lord, Lord Falconer, about the conundrum facing Mr Heath in 1974. He wanted Dissolution on the basis of testing who governed the country, the Government or the trade unions. Had he been able to get a majority, as I suspect he would have done, of two-thirds—in other words, the agreement of the Opposition to go to the country on that issue—that would have been all well and good. Had he been unable to get the agreement of the Opposition, I suggest that it would not have been appropriate to allow him the option of engineering a vote of no confidence in his own Government in those circumstances, because what should have happened was that either the House agreed, the Opposition agreed or the Opposition moved the Motion.

In so saying, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.