Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Monday 13th January 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, we shall come on to the second point made by the noble Baroness. I think it is the subject matter of the next group of amendments. We would not know any more just by listing the names of in-house employees who engaged in lobbying. You would still not know from doing that—and that is what this amendment seeks to do—whether that person was actually lobbying with regard to planning permission or not. That is why it is important that the parallel provisions which the Government are doing in quarterly returns as to which people Ministers and Permanent Secretaries are meeting is an important part of the whole picture. We shall deal in a moment with the points made by the noble Baroness because I think that she is missing out that crucial part.

[Lord Norton of Louth]

Just on the example the noble and learned Lord was giving of the Scotch Whisky Association, if it was to buy in a consultant lobbyist to advise it but did the lobbying itself, how would that be caught by the Bill?

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[Lord Wallace of Tankerness]

My Lords, I know that my noble friend knows me well enough and I hope that I have made enough appearances at this Dispatch Box for noble Lords to know that I would not wish to give the kind of undertaking that my noble friend seeks if it were to raise an expectation that I am not necessarily able to deliver on. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Norton of Louth]

Can my noble and learned friend clarify what he has said? If a consultant lobbyist lobbies a Minister directly to achieve policy X, that consultant lobbyist must register. If that consultant lobbyist only lobbies the special adviser, who then advises the Minister, who decides to implement policy X, they do not have to register. The second point is on civil servants. Does he think that lobbyists will lobby any passing civil servant as opposed to those members of the senior Civil Service who have responsibility in particular areas, and are therefore a very narrow and usually clearly defined group?

[Lord Wallace of Tankerness]

On the second point, I was responding to the amendment as it is tabled, which does not narrow it down at all to senior civil servants—it applies to all civil servants. I am sure that bodies make arrangements with junior officials as well as with members of the senior Civil Service. On the issue of special advisers, I cannot elaborate on what I have already said.

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[Lord Wallace of Tankerness]

My Lords, I stand by what I said when I replied to the question asked by my noble friend Lord Tyler in the first group of amendments. Obviously, the Government have not had an opportunity to discuss the matter, as I have been here since my noble friend’s amendment was passed. I have had no opportunity to discuss with ministerial colleagues and others how we will respond.

[Lord Norton of Louth]

My Lords, I agree with my noble and learned friend in that I certainly welcome what he announced earlier about the Government moving towards greater provision of information. However, I disagree with him on all the other points. I am inclined to ask, “What price transparency?”. I am not persuaded by the argument that, “Oh dear, this is all too much trouble”. The body of policymakers is a relatively small number of people who would actually be affected. The Minister seems to envisage some great body of civil servants that would be brought within this provision—they would not. It is doable and it is a fundamental point of principle. We have to go down that route. Either we are going to have transparency or we are not really going to do very much at all as far as this Bill is concerned. This is absolutely fundamental to Part 1 and this is the last chance we have to get it in order. Given the support that has been expressed for the amendment, I would like to test the opinion of the House.

Fixed-term Parliaments Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

As has been pointed out, what happened in Wales was that, after Mr Alun Michael resigned—he did not actually face a vote of no confidence but there was one on the horizon—a new Government were formed who quite successfully saw out their term of office. The point that I am trying to make is that with fixed-term Parliaments there is that certainty.

Equally, it has been widely recognised that there must be some mechanism that allows an election to take place if it is no longer possible for a Parliament to continue. That is why I do not agree with my noble friend Lord Cormack that these are devices that somehow are to help the Executive; they are devices for where Parliament can no longer function. If these rules had been in place in 1979 and the then Prime Minister, Mr Callaghan, had decided that calling an election was the right thing to do, I rather think that the then leader of the Opposition, Mrs Thatcher, might well have agreed with him and there would have been a two-thirds majority for a dissolution. Alternatively, as happened in 1924, it was possible for one Government to resign and for another to come in and form an Administration.

[Lord Norton of Louth]

What I have to say is fundamental to what my noble and learned friend is saying. In the present situation, if a Government lose a vote of confidence, the Prime Minister has the option either of calling an election or of resigning. The Government go. Under the phrasing of this Bill, the Government do not have to go; they can be reformulated. In that sense, the provision protects the Government as the present situation does not.

[Lord Wallace of Tankerness]

They could if they commanded a majority in the House of Commons. It would require them to face the House of Commons and command a majority there. It is no good for the noble and learned Lord, Lord Falconer of Thoroton, to say, “Well, we have these two situations, as happened with Mr Baldwin in 1924, and somehow we have to find a means for that to happen”. This provision tries to find a means by which that could happen. He may say that this is not the best means of trying to do that; I have not yet heard from him how he would seek to do that, given that his party also believes in fixed-term Parliaments and does not believe that they should be rigid. If he thinks that there should be a mechanism for a Government to resign and a new Government to be formed without an election, we would certainly be open to hearing how he would devise the means by which that could be done. It is certainly not done by the amendment to which he put his name, moved by the noble Lord, Lord Howarth.

On the amendment tabled by the noble Baroness, Lady Hayter, with regard to the period of 14 days, as my noble and learned friend Lord Mackay of Clashfern said, with the devolution settlements a period of 28 days is allowed for a new Government to be constituted after a Government in Scotland or Wales lose a vote of confidence. We took the judgment—and I accept that it is a judgment—

Fixed-term Parliaments Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

If that was the scenario—a purely hypothetical one—I think my party would have a challenging time making the argument as to why things had changed. However, I do not suppose for a moment that the noble Lord—who probably was in the Commons in 1977—complained too much about an arrangement falling short of a coalition with the then Liberal Party, which actually sustained a Labour Government in power. Obviously the Liberal Party had to answer to the electorate for what it did then, and that is the political reality. These things are all considered in a political context. There is the political reality again, taking the point made by the noble and learned Lord, that if a Prime Minister of the day sought to try and abuse or contrive a vote of no confidence, that would be judged in a political context. It may be thought in some circumstances that it was right to do so, in others that it was duplicitous; the ultimate determination of whether it was right or wrong is one for the electorate, and so it should be.

The period in my noble friend’s amendment is 28 days. He indicated that he took it from the arrangements that had been made for Scotland and Wales in the event of a resignation of a First Minister. There are sufficient differences in the position between the Scottish Parliament, the National Assembly for Wales and the United Kingdom Parliament that would make 28 days an inappropriate period. That is why we have exercised our judgment and said in the Bill that 14 days is more appropriate.

The amendment tabled by the noble Lord, Lord Howarth, would provide that an early general election could be triggered where the Prime Minister has resigned and 14 days have elapsed without the House of Commons passing a motion expressing confidence in a Government. Again, my point would be that in establishing fixed terms, we are seeking to deny the Executive their ability to decide if and when there should be an election. This amendment places one of the triggers for an early Dissolution within the hands of a Prime Minister. That is the problem which we would have with it. The noble Lord mentioned 1951 but it is generally accepted—indeed, I think Mr Jack Straw accepted this on Second Reading—that the circumstances there would almost certainly have triggered the two-thirds majority for Dissolution, because there was common ground that an election should take place. The problem with the noble Lord’s amendment, as I indicated, is that in an effort to try and take away the power from the Executive and put it into the hands of Parliament, it would return it to the Prime Minister.

However, subject to what I said in my opening remarks in response to the constructive point made by the noble and learned Lord, Lord Falconer, and in wishing to look at the important contributions that have been made, I certainly intend to reflect on what has been said in this debate and in earlier debates on the same subject. I have no doubt whatsoever that these matters will be returned to on Report but I ask my noble friend to withdraw his amendment.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have taken part in this short debate. It has been extremely helpful in elucidating problems with the Bill. On a rather small point, I have to correct the noble Lord, Lord Howarth: it was actually me putting the questions to Mark Harper as I was in the chair of the Constitution Committee on that day, which is one reason I am pursuing the issue today.

I have two points to make to my noble friend Lord Tyler. One is on drafting. It has to be about the Prime Minister resigning, not the Government, because when the Prime Minister resigns the Government go. The other point is much more substantive and relates to what we were saying earlier. Parliament is stronger under the present arrangements than under this Bill, because the key point is that under its provisions the Prime Minister gets a second bite of the cherry if he loses a vote of confidence.

On the observations made by the noble and learned Lord, Lord Falconer of Thoroton, my point is that if the Prime Minister resigns having lost a vote of confidence, formally the Government are out. In those circumstances, the Queen sends to whoever she believes could form a Government. Formally, that could include the outgoing Prime Minister but that is the present constitutional position anyway—one thinks to some extent of the circumstances of 1931. I would argue that what I have put forward is better than what is in the Bill because, as I indicated, my amendments are designed to maintain the benefits of the existing arrangements. However, I very much agree with the noble and learned Lord that they reflect the problems of trying to codify existing conventions. That underpins the problems with the Bill.

I am grateful to my noble and learned friend Lord Wallace for his response. He is quite right that the intention was to take these two amendments together. On his point about the example that I gave of 1972, if Edward Heath had said, “This is a matter where the Government cannot sensibly continue”, but the Speaker had not certified it as a confidence motion and if he had lost and a good number of Conservative MPs were not prepared to vote for Dissolution—not necessarily to vote against it but not to vote for it, so that it would have been difficult to mobilise 400 votes out of 600, although there was a slightly different percentage at that time—then you get into a stalemate.

I am grateful for what he said, particularly because I did not hear any strong arguments against my amendments. The Minister queried the 28-day provision; as he says, there are sufficient differences with the devolved Assemblies. I accept that and would like to apply it to the rest of the Bill.

[Lord Wallace of Tankerness]

I am interested because I made this point in response to the comments by the noble and learned Lord, Lord Falconer. Will my noble friend accept that there is perhaps this issue? If there is a choice between immediate Dissolution and a resignation with the possibility of another Government being formed, who exercises that choice? In a Bill where we seek to take power away from the Prime Minister, should that choice lie with the Prime Minister or does my noble friend accept that we should look at ways in which what happened would not be the Prime Minister’s choice alone?

[Lord Norton of Louth]

I do not really accept the premise of my noble and learned friend’s question in that the Bill does not take away the Prime Minister’s power where the Government are defeated on a vote of confidence. The Government are trying to limit the Prime Minister’s prerogative to request Dissolution at the time of the Prime Minister’s choosing, rather than in the context of the Government losing a vote of confidence. The Bill does not actually limit the Prime Minister on losing a vote of confidence; as I say, it gives him a second bite of the cherry. That is what my amendments are really trying to get at. I accept the point made about 28 days or 14 days, which is a matter for discussion, but my point is that to avoid an ongoing stalemate you need some cut-off point. That was the argument of principle there.

My overall proposition is that the benefits of existing arrangements outweigh those in the Bill which, in the context of a vote of confidence, do not limit the Prime Minister. As I say, the Government are trying to limit the Prime Minister’s prerogative to foreshorten an election when it is in the gift of the Prime Minister, rather than when Parliament is in effect seeking to take it out of the hands of the Prime Minister through a vote of confidence. I am advancing the argument that the Bill gives Prime Ministers a second chance—more so than under existing arrangements. I am grateful for my noble and learned friend’s willingness to reflect upon what has been said from all parts of the Committee. In the light of that, I beg leave to withdraw the amendment.

Fixed-term Parliaments Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken in this short debate, which is an important debate to be had. I am still left wondering what value is added by this provision. My noble and learned friend has confirmed that, of the two definitions I offered, the first was correct. The Government have looked at the Parliament Act in which there is a provision that has been carried over. That seems to be the sole reason.

In terms of the argument, I am not quite sure why the provision should be there. The noble and learned Lord, Lord Falconer of Thoroton, was right. The Speaker is quite capable of consulting those whom he wishes to consult. If the provision was not in the Bill, it would avoid the legal problems to which the noble Lord, Lord Howarth of Newport, referred. The more we can do to reduce the prospect of legal challenge, the better. As the noble Lord, Lord Howarth, pointed out, there is a problem with the position of the Deputy Speakers, who are neutral figures as Deputy Speakers but seek re-election as party candidates.

The Minister’s argument is that this is based on precedent, as it is in the Parliament Act, which also has a definition of a money Bill. I am not quite sure why we are following the precedent of consultation but not following the precedent of having a definition as the basis on which that consultation takes place. Either one follows precedent and does both or one does neither. I cannot see the argument for saying, “Well, this is in the Parliament Act, so we’re lifting that” and “This is in the Parliament Act, but we’re not lifting that”, even though the definition, to which we will come, is far more important. That is essential in this Bill and I do not see why we need Clause 2(4).

I hope that my noble friend will reflect on that. He has heard the arguments and I think that he has recognised the value of them. I hope that it is something he might consider between now and Report. But in the interim, I beg leave to withdraw the amendment.

Fixed-term Parliaments Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Monday 21st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I am happy to do so. I think that I corrected myself the first time I got it wrong. I am grateful to my noble friend for reminding me of that. As I say, since the Second World War no Government have been able to command two-thirds of all the seats. This means that Parliament can choose to dissolve itself but Government cannot dissolve Parliament for their own political advantage.

The noble Lord, Lord Howarth, asked why the two-thirds requirement should not be set out in Standing Orders rather than in statute. The two-thirds requirement is set out in legislation as opposed to Standing Orders so that any change to the requirement would have to be made by fresh primary legislation, which would require the consent of both Houses of Parliament, whereas Standing Orders of the other place would require only one House of Parliament to determine that and probably could be amended or revoked by a single simple majority in the other place, and therefore could defeat the purpose of the measure. It is better to have the two-thirds vote set out in statute, which means that it has to be changed by statute. That would involve this House rather than the other place simply determining it by means of its own Standing Orders. It is not appropriate that a significant detail of reform affecting Parliament as a whole with implications for our prerogative should be amended by Standing Orders of one House of Parliament.

The noble Lord, Lord Howarth, very helpfully indicated that he would speak to his Amendments 28 and 29 at the same time. The first of those would omit the requirement for a two-thirds majority while the second would increase the figure to three-quarters of all MPs voting in favour of the measure instead of two-thirds. The reason why we are opposed to the simple majority—it would be a majority in that case—for the Dissolution is because it would undermine one of the purposes of the Bill: namely, establishing a fixed term and removing the Executive’s ability to decide when Parliament should be dissolved. Noble Lords may recall that at Second Reading mention was made of the late Lord Holme of Cheltenham and his analysis of arrangements whereby the Prime Minister can choose the timing of the election. Lord Holme described a general election as,

“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, 1/3/11; col. 1007.]

I have reflected why he would not have his running shoes on, but he would certainly have the starting pistol in his hands. Unfortunately, Amendment 28 of the noble Lord, Lord Howarth, would preserve the Executive’s ability to decide when a Parliament was dissolved, by providing that a Dissolution motion could be passed by a simple majority.

At the other end of the scale, the noble Lord suggests a majority of 75 per cent of Members who vote. Again, it is not an unreasonable proposition, but I believe that, on balance, the threshold of two-thirds strikes the right balance in providing a safeguard against abuse of the power, while ensuring the effectiveness of the Bill’s provisions. This Parliament passed similar provisions in relation to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.

I have sought to explain why there are two mechanisms and how they are different. I indicated clearly that the 55 per cent originally proposed did not find favour. Therefore, it was only right and proper that the Government listened to those views, and we have come forward with two trigger mechanisms—one for when there should be an election, if there is a consensus, and another for when the Government have lost the confidence of the House of Commons. They are different issues that are dealt with separately. Interestingly, the Constitution Committee, whatever other concerns it may have had, thought that the Government’s proposals on the two trigger mechanisms were an appropriate way forward. In those circumstances, I ask my noble friend to withdraw the amendment.

[Lord Norton of Louth]

My Lords, I am grateful to noble Lords who have spoken in the debate which, despite the late hour, has been quite useful and has teased out the reasons for the provision. Perhaps I may begin by briefly correcting my noble and learned friend Lord Wallace of Tankerness on his reference to the German example. He said that the Government there had engineered a vote of no confidence in themselves. In fact, they engineered defeat of a motion of confidence, which is not the same thing and is relevant to discussions that we will have later on how one defines a vote of confidence.

Reference was made earlier to the Constitutional Reform and Governance Act and pre-legislative scrutiny. I served on the Joint Committee on the draft Constitutional Renewal Bill, as it then was. The title was later changed because I and others pointed out that nothing was being renewed by the Bill. My point is that the Joint Committee met for two hours twice a week for nearly three months. The more we discuss this Bill, the more convinced I am that it would have benefited from extensive pre-legislative scrutiny. The problem with much of the Bill is that it is not grounded in evidence. It is not exceptional in that respect but, as we have heard, this part of the Bill was the product of negotiations by politicians who are not necessarily noted for their knowledge of our constitutional arrangements.

Subsection (1) is highly unusual—certainly in comparative perspective. My noble and learned friend said that he would write to me with details of where this provision applies elsewhere. It may be helpful if I tell him that I can save him a letter. The noble and learned Lord, Lord Falconer of Thoroton, thought that we were unique in this provision. That is not quite the case. Lithuania, Mongolia, Tajikistan and Turkmenistan have a similar provision. I wanted confirmation that the Government were unaware of that.

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[Lord Norton of Louth]

My Lords, I plan to be extremely brief, as I have classes to teach in Hull shortly after 9 o’clock in the morning.

I wish to raise one point arising from what the noble Lord, Lord Howarth, has said. I have considerable sympathy with the argument that he is developing that either the Speaker’s certificate goes out of the Bill completely or, if it stays in, it needs to be refined. He was teasing out the point made by the Minister that the Government would expect the Speaker to indicate in advance whether he would certify a Motion as one of confidence. So, on the basis of that expectation, I wish to raise this question. One could raise it on any serious Bill but I have used before the example of the European Communities Bill in 1972, where the Prime Minister, Edward Heath, said, “If we lose this, the Government cannot sensibly continue”. If, in a situation like that, the Speaker took a contrary view and declined to certify the Bill as one of confidence but the Prime Minister said, “This is essential to our programme and, if we are defeated, we shall resign”, what would happen?

[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.

Fixed-term Parliaments Bill

Debate between Lord Norton of Louth and Lord Wallace of Tankerness

Tuesday 15th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

Is my noble friend asking whether it is impossible for a Government to devise a programme for five years? Perhaps I have misunderstood the question.

[Lord Norton of Louth]

A Government who come in will have a programme for four years with the fifth year spent preparing for the election. I am asking the Minister whether he thinks there is the empirical evidence to support that Governments come in and have a full programme to cover four sessions.

[Lord Wallace of Tankerness]

If this Bill becomes law and there is a five-year Parliament, the Government of the day can expect to be there for five years and therefore can plan their programme over a five-year period. They need not necessarily frontload the parliamentary programme. It may allow more opportunity for pre-legislative scrutiny, which is regularly being encouraged. That is a difficult issue in the first year of a Parliament when Governments clearly want to move on and do some of the things they were elected on. But if they know that there is a five-year fixed-term Parliament, there is a better opportunity to programme it.

If it was a four-year Parliament, the final-year problem described by the noble Lord, Lord Martin, would kick in in the fourth year, with people going back to their constituencies because they knew an election was looming. Therefore, the effective period of a Government’s programme would be much reduced. If you have a five-year period it will be possible for a Government to plan that programme over five years. We are talking about annual Sessions beginning in May. At the moment the final Session tends to start in late November and has to wind up in late March. I do not think any of us who saw the wash-up last March found it a particularly edifying experience. One would hope that if a Government knew that the final Session was starting in May and going through to a solution the following late March, that would allow for a much better programme in the final year and avoid the consequences of wash-up.