Fixed-term Parliaments Bill

Lord Pannick Excerpts

Wednesday 14th September 2011 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I will not take up your Lordships’ time by repeating the arguments for the sunset clause which noble Lords passed on two occasions before the Summer Recess, except to say to the Minister that it was a novelty to hear him accuse me of reintroducing politicking. I have rather been against politicking in my career. He referred to what was said by your Lordships’ Constitution Committee in its report on the Bill. I should like to remind the House of that. The committee said that,

“the balance of evidence we heard”—

the committee heard evidence from a number of very distinguished academics—

“does not convince most of us that a strong enough case has yet been made for overturning an established constitutional practice and moving to fixed-term Parliaments”.

The effect of the sunset clause passed by the House on two occasions was to give future Parliaments the power to decide whether they wish to make a permanent change.

Your Lordships will know that when this House has insisted on an amendment, the other place has to come back with some sort of modification to a Bill to prevent it from being lost. My noble friends and I had hoped that we might use the time during the Summer Recess to reach a reasonable agreement with the Government on a modification to the Bill. In August, my noble friend Lord Pannick had a meeting with the noble and learned Lord, Lord Wallace, and Mr Harper, the Minister in the other place. My noble friend told the Ministers that, for our part, we would be happy to modify our amendment to meet criticisms that were made of it, including some of the criticisms made by the Minister tonight. Specifically, we said, first, that we would be content for a resolution to apply the legislation to be made only by the other place since it is the elected House. Secondly, we would be content for a time limit to be placed on the period within which such a resolution should be moved—within, say, three or six months of the meeting of a new Parliament. My noble friends and I were open to discussion on other aspects of the sunset provisions.

The Ministers made it clear that these modifications were not acceptable to them, but they put forward no proposals themselves. My noble friends and I then waited to see what modification the Government would propose. Last week, without any further consultation or notification, the Government put down in another place their modification to which the Minister has referred. That modification is now before us on the Marshalled List. It goes no way towards meeting the point made by noble Lords on two occasions. The key words of the modification are:

“The Prime Minister must make arrangements … for a committee to carry out a review of … this Act … Arrangements under subsection (4)(a) are to be made no earlier than 1 June 2020”.

As a former Cabinet Secretary, I have had experience of Governments fobbing people off by promising reviews that effectively kick issues into the long grass, but this is of a different order. Seriously, I have to say to the noble and learned Lord that if the Government’s amendment is intended to meet the point which your Lordships have legitimately made, it is an insult. It shows a contempt for your Lordships’ House and for the amendments we have passed.

There is still time to reach a reasonable agreement that will satisfy the point which this House has twice made, but I am afraid that this can happen only if noble Lords once more insist on the amendment and we can have sensible discussions. I beg to move.

[Lord Pannick]

My Lords, I support the noble Lord, Lord Butler of Brockwell. Your Lordships will not want to hear lengthy Second Reading speeches at this stage, but it needs to be understood that because this House and the other place have disagreed twice, the Government are obliged either to accept our amendments, lose the Bill, or produce a variation—what Erskine May describes as “alternative proposals”. The procedure is designed to ensure that the Government and the Commons cannot simply ignore what we have decided. Your Lordships have heard what the Government have produced by way of alternative proposals: that there should be a committee which will not begin its consideration for another nine years. That is not so much kicking the issue into the long grass, the phrase used by the noble Lord, Lord Butler, as burying it in a time capsule. The authors of “Yes Minister” would have regarded it as lacking in credibility to suggest, even in a work of fiction, that a Minister should solve a problem by setting up a committee which would begin its work in nine years’ time.

The Minister suggested that there is some constitutional novelty in the provision approved by noble Lords, but many legislative provisions have attracted such a procedure: there is the need to consider each year whether to maintain the late and unlamented control order system; and Parliament requires that the Armed Forces Act be reconsidered every five years. The Minister suggested that the House should accept the views of the House of Commons and that we should go quietly into the night on this issue. He emphasised that we are a revising Chamber and that we cannot challenge the will of the elected House. But the relationship between this House and the other place depends on the other place and, indeed, the Government taking seriously the concerns we have expressed.

The response of the Government and the other place to our amendments is simply derisory, and it is intended to be so. The Commons and the Government are not listening to or engaging with your Lordships’ House, and I regret that. Just as the Government introduced this legislation without bothering to consult anyone or to adopt any pre-legislative scrutiny, they are now rejecting the views of this House without bothering to listen to and engage with us. We should ask the House of Commons to think again on this matter.

[Lord Howarth of Newport]

While I appreciate the constructive response that the Minister gave to the proposals by this House to redraw Clause 2, I have to say that the Government’s response to the Motion spoken to so well today by the noble Lord, Lord Butler of Brockwell, is not only inadequate, it is indeed contemptuous. Whether we talk of long grass, time capsules or the deep freeze, it simply will not do. The seriously considered advice of your Lordships’ House ought equally seriously to be considered by Ministers and by the other place. It should not be dismissed with reflex reactions. That is a matter of constitutional principle.

It is also a matter of constitutional principle that legislation that proposes constitutional change should be subjected to ample and early consultation, through a Green Paper, through full preliminary debate—debate outside this House across the country, as well as within Parliament—and then to a White Paper before legislation is introduced to Parliament, let alone being voted on in a whipped vote. I add that in my view it is questionable whether it is suitable for constitutional legislation to be subject to the Whip.

The Government actually agree, or say they agree, that pre-legislative scrutiny is a good thing. In its report on the process of constitutional change, the Constitution Committee of your Lordships’ House—the noble Baroness, Lady Jay, who chairs it, is in her place—described the process that is appropriate for the consideration of proposals for constitutional legislation, and explained the importance of that process being followed. Indeed, in its report it actually quoted its own report on the Fixed-term Parliaments Bill, in which it had said:

“Process is critical in terms of upholding, and being seen to uphold, constitutional values: particularly those of democratic involvement and transparency in the policy-making process. Moreover, we believe that a proper process is the foundation upon which successful policy is built: the lack of a proper process makes an ineffective outcome more likely”.

There was no good reason why a proper process was not adopted by the Government for this legislation. There was no genuine hurry to get this legislation on to the statute book. It did not need to be done in the first Session. But the Government neglected to follow due procedures. During our proceedings a very good case has been made by noble Lords on all sides of the House that legislating to introduce fixed-term Parliaments, and particularly Parliaments fixed for a term of five years—which means that general elections will occur less frequently in the future than they have in the past—contrary to the Government’s professed intentions, would reduce the accountability of the Executive to Parliament, not increase it. It would impair our democracy, not enhance it.

We should, therefore, insist on the amendment that we have already sent to the other place twice. This would be the third time. That is relatively unusual, but the Constitution Committee, again in that same report on the process of constitutional change, observed that,

“constitutional legislation is qualitatively different from other legislation”—

and I believe there is a very good case for this. As the committee also pointed out, there is a lack of checks and balances to prevent a Government armed with a majority in the House of Commons from changing the constitution of this country more or less at whim. This House should seek to act as a check and a balance, as well as we can, on issues of such importance as this.

An appropriate process was not followed by the Government. This constitutional legislation is highly contentious; it would introduce a major innovation into our constitution. It is the responsibility of your Lordships’ House to be vigilant to safeguard the constitution. It is entirely right, therefore, that we should adjure the House of Commons to think again.

The amendment that we have already twice sent to the other place provides a convenient and practical means whereby subsequent Parliaments should have the opportunity to judge whether indeed they wish each new Parliament to be fixed for five years, or whether they judge it preferable to revert to the historic arrangements that we have had in this country, of flexibility in terms of the date of the election within five years, which has enabled government and Parliament to be responsive to political reality in all its unpredictability, and to be more accountable to the people.