Fixed-term Parliaments Bill

Lord Tyler Excerpts

Tuesday 10th May 2011 Lords Chamber

[Lord Cormack]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, will hardly be surprised that I find myself very much in agreement. I am sorry that the noble and learned Lord, Lord Falconer, suggested that I sang a siren song; I do not think that I did, but I will risk a siren encore. The noble and learned Lord, Lord Lloyd of Berwick, demonstrated with impeccable logic that there is nothing contradictory in the present Government, having said that they wish to serve for a full five years, doing that, and, having sent a piece of legislation to this House and asked for our opinion, in our saying, “Okay, if you want to do that, do it, but thereafter we believe that it should be four years”. That seems to be an entirely reasonable position to take.

Every moment of our debates on the Bill—and I have been present for almost all of them—has illustrated to me that this is an unnecessary and unfortunate exercise. I also think that every word uttered by the noble and learned Lord, as well as the intervention of the noble Baroness, Lady Jay, underlines the need for pre-legislative scrutiny of a Bill of this sort. Had the Government had the good sense to subject the Bill to such scrutiny, all the evidence to which the noble and learned Lord, Lord Lloyd of Berwick, has just referred would have been heard and perhaps Mr Harper would have made up his mind rather differently. He might even have concluded by asking what the point of this exercise is.

The point of the exercise is that the Government, having brought themselves together as a coalition—I admire the courage of all the parties in doing that and I support the coalition, as I have made plain on many occasions—wanted to try to reinforce that position by making a statement or declaration that they would serve for five years. That declaration would of itself have been quite sufficient, and I am glad to see the noble Baroness, Lady Boothroyd, nodding assent at this point. We did not need to take up time with this legislation—a point already referred to by the noble Lord, Lord Grocott, and by me—and I regret that it is taking so much time. However, if we are to fulfil the constitutional duty of this House, we must try to put the Bill into somewhat better order than it was in when it came to us. That has not been an easy task with any of the Bills that we have recently had the privilege of examining, and the same will apply tomorrow.

Therefore, I will take the same line in the Division Lobbies, if it is necessary so to do, as the noble and learned Lord, Lord Lloyd of Berwick. I do not think that the position to which I referred at an earlier stage of the Bill was illogical or unsound, and I shall stand by that, but I shall certainly vote for the sunset clause that stands in the name of the noble Baroness and her noble friends on the Cross Benches.

[Lord Tyler]

The noble Lord has been a doughty defender of the constitution for many years in both Houses. I respect him very much for that and I have expressed that view previously. Can he explain to your Lordships why he now thinks, after 100 years of experience of a quinquennial maximum for Parliament, we should suddenly make a radical change to a maximum of four years? What particular experience over those 100 years has changed his attitude?

[Lord Cormack]

My memory does not go back throughout the whole of that century, as the noble Lord knows. In a sense, I have already answered that question because I do not think that we should be wasting our time with this Bill at all. I consider it to be unnecessary but, as the Government have determined that we should have fixed-term Parliaments, it is right that we should address the term. It is perfectly reasonable to say, “All right, you’ve made your statement that you wish to have five years. Please have them, but we believe, having weighed the evidence placed before committees of both Houses, that for the future it should be four years”. However, I know as well as the noble Lord and every noble Lord present today that no Parliament can bind its successor, and the first Act of a new Parliament could be to repeal the whole shooting match—it might be the best thing that it could do, but that is another matter entirely.

The point that I was about to make when the noble Lord intervened was that I believe there is a lot to be said in almost every constitutional measure for a sunset clause. It would provide the opportunity to take stock, to reflect and to say, “Is this really what we want to do? Is this really the way forward?” Therefore, unless my noble and learned friend Lord Wallace of Tankerness, who is a very fair-minded man, is able to meet us on that point, I would find myself in the illustrious company of the noble Baroness, Lady Boothroyd, and her friends at the appropriate time, but not before.

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[Baroness Boothroyd]

My Lords, this is the Bill’s first outing in this House since last week’s referendum, so I think we are entitled to take stock of the coalition’s position in the light of the electorate’s aversion to radical reform. Clearly, as the noble Lords, Lord Cormack and Lord Grocott, strongly said before we opened the Report stage today, the referendum casts fresh doubt on the wisdom of persisting with major constitutional measures that lack popular support. Ministers have changed tack on the timetable for this Bill before, and I suspect there would be few tears shed on the Conservative Benches if they took another look at it even at this late stage. However, we have to proceed and we have to deal with what is before us this afternoon.

I imply no criticism when I observe that the new politics that the coalition claimed to represent in its early days has lost a bit of its sheen. Ministers would be wise to take account of reasoned objections in this House to some of the Bill’s more doubtful features. It is in the light of this that I support and commend the amendment moved so ably by the noble Lord, Lord Pannick. The amendments in this group do not challenge the Government’s intention to hold the next election in May 2015 or 2014, whatever may finally be decided. Nor do they challenge the Government’s proposal to introduce legally binding procedures to make an early election unlikely. However, as currently written, this legislation goes much further than the lifetime of this Parliament in a way that I believe is unwise and unjustified. This legislation seeks to bind future Parliaments to the same legal restraints intended primarily for the lifetime of this coalition Government and this Parliament. These restraints are destined to last “henceforth” according to Mr Clegg, the Deputy Prime Minister.

I understand perfectly the coalition’s wish to serve for a fixed period of years, to tackle the current economic situation and to see that its programme is enacted. However, I reject the same imposition being placed on the freedom of action of future Parliaments, and this will be the situation without these amendments. Without them, the constitution is being blighted permanently and unnecessarily. The amendments allow future Parliaments to accept or reject the Bill’s provisions after every election as they see fit and to do so by means of a resolution of both Houses. Mr Clegg disagrees with me on this: we disagree on a number of things, but certainly on this. Last year, he described the Bill as,

“a constitutional innovation of significant proportions”.

He argued that it would be “bizarre” to confine it to one Parliament. These amendments do not propose that it should be left to one Parliament only. Importantly, they propose that future Parliaments should decide for themselves.

We know that countries with written constitutions have the kind of entrenched laws that the Deputy Prime Minister appears to want—but Britain is not one of those. The Government would do well to remember that. As far as I can recall, at the last election the country did not exactly clamour for fixed five-year Parliaments. If I interpret the public mood correctly—as did the noble Lords, Lord Grocott and Lord Cormack, with whom I entirely agree—people in this country want honest politics. They want good government and greater scrutiny of what Governments are doing in their name. They do not want an assortment of ill considered proposals to turn Parliament upside down to suit a political elite.

Your Lordships will not be surprised to know that I do not regard this legislation with great affection at all. In fact, I believe it is quite unnecessary. This House is charged with the responsibility and the role of examining legislation and scrutinising it. As a Member of this House, I reckon I have to make the best of what I think is a very bad job. The amendments before us today would preserve the freedom of future Parliaments to face their own challenges in their own way and in the circumstances of the time. I strongly support them and hope that many of your Lordships will do likewise.

[Lord Tyler]

The noble Lord, Lord Pannick, and his distinguished collaborators have, as ever, tabled very interesting, very seductive, amendments. I examined them with great care because I respect their expertise. Reluctantly, I believe the amendments are flawed. The purpose of the Bill is to do one very simple thing: to remove from the Prime Minister—the leader of a political party—and, by extension, from the governing party, the right to time elections for their own political convenience. I give credit to the present Prime Minister: he has been the first Prime Minister to accept the logic of that position.

Hitherto, Prime Ministers—leaders of political parties—have been able to look at the polls and see if they look good in order to be able to say yes to an early general election or no to postponing it. The Government’s objective is to remove that question of when elections should be held from routine partisan political advantage and its consideration. After all, that is already the case in local government; it is the case in the devolved Assemblies and Parliaments throughout the United Kingdom. This Parliament has insisted that that should be the case, and clearly that is right.

This Parliament has recognised in primary legislation time and again that elections are the mechanism by which political parties are held to account. It surely cannot be right, then, that any one party or collection of parties should be able to contrive to time the election for a moment which is propitious for their own advantage. That is the clear principle and objective of this Bill.

I invite your Lordships to look very carefully at Amendment 25 in this group. This would undermine the central objective of the Bill by setting up a routine for Governments to instruct their newly elected majorities in the Commons after 2015 as to whether they particularly fancied a fixed-term Parliament or not—for their own party advantage, not in the interests of good governance. There would be an immediate return to the worst feature of prime ministerial prerogative. If the Bill were amended, it would be not a fixed term but a semi-fixed term, subject to the machinations and inclinations of the Prime Minister and party leader of the day, the exact opposite of what the Bill seeks to achieve and what the other place has already voted to do. This Bill is already more flexible than some of us would like. I would favour a superglue fix in the fixed-term Parliament, without extensive opportunities for early Dissolutions, but I accept that a sensible middle way has been achieved.

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[Baroness Jay of Paddington]

Before the noble Lord sits down, will he help me with the force of his argument about the imposition of party politics on the kind of provision that the noble Lord, Lord Pannick, and his associates have suggested to the House when that will take place, as I understand it, immediately after a general election? It is not, as it was in the circumstances which he describes, something that Prime Ministers could calculate towards the end of a Parliament was to their party advantage, or was not, as the case may be.

[Lord Tyler]

The noble Baroness may recall that I was elected on 1 March 1974, and given the convention—it was referred to earlier—that normally it is six months before another election is agreed to by the monarch, that would have been precisely the situation. It was entirely wrong that the Prime Minister of the day decided for party advantage that he would ignore all the big economic problems of the summer of 1974, did nothing to disturb the popularity of his Government, carried on to the autumn without taking important strategic decisions about the future of the country and then went to the country in the autumn. That is the sort of situation that we should certainly avert because party advantage could, very soon after a general election, be uppermost in the mind of a party leader who would therefore take advantage and destroy the fixed-term legislation for his or her own party advantage.

[Lord Hamilton of Epsom]

My Lords, as a Conservative, I am extremely reluctant to see Parliament at any stage fiddling about with our constitution, and I very much agree with the noble Lord, Lord Howarth of Newport, that if it is not bust, why fix it? Having said that, the coalition quite clearly finds it necessary as part of its agreement to have a five-year fixed Parliament, and if that is what it wants to do, so be it. I have a little trouble in understanding how a Government continue to govern when they no longer have a majority in the House of Commons, but that is another issue. I do not think there is any strong reason why this legislation should go through in perpetuity. I do not see what is wrong in returning to the status quo ante. There seemed to me to be nothing wrong in the way the system worked, and I do not know why we should therefore be trying to commit future Governments to five-year fixed Parliaments just because it is convenient for this coalition Government to have a five-year Parliament this time round. Therefore, I will be more than happy to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Grocott]

My Lords, I strongly agree with the comments made by the noble Lord, Lord Hamilton. I want to make a pretty brief point. The trouble is that when I listened to the noble Lord, Lord Tyler, he almost tempted me to a Second Reading observation. I was astonished by his last argument, as I understood it—he must stop me if I am factually wrong at any point—that he was elected in February 1974. Did he lose his seat in October 1974?

[Lord Tyler]

Yes.

[Lord Grocott]

I thought so, so his view is that after the February 1974 election there should have been a fixed, five-year Parliament. I can see where he is coming from, but I know he is a Liberal Democrat, so I know his argument will be based on deep principle rather than on any short calculation. I think he needs to think again about the repeated mantra that this measure strengthens Parliament, weakens Governments and strengthens the people. I cannot understand that argument. How on earth a Government who are guaranteed five years, except in the very tightly drawn exceptions, can in any sense be said to be weakened in respect of Parliament, much less weakened in respect of the public as a whole, by this Bill is beyond me.

Surely we can agree on one factual point, and I would beg the noble and learned Lord, Lord Wallace, to concede this. The Bill will obviously reduce the number of general elections. By law, it certainly cannot increase them. The possibility for the public to express their opinion on the Government will be reduced; that is surely unarguable. We now know enough after five days of debate that this Bill is designed to strengthen the Government. It is in the national interest because it would give them a secure five years. No wonder the Chancellor of the Exchequer wanted it.

You are subject to paranoia quite early if you are a lifelong member of the Labour Party, but I cannot help being a little paranoid about the commentariat, if that is the right word, who had only one story in town under the last Labour Government, which was: “This Government are too strong. We must strengthen Parliament and the public. Governments these days are too domineering and powerful”. But on the day of the general election, the whole argument suddenly shifted and the chatterers were absolutely convinced that the crucial thing was strong government. “We must not have too much of this democratic stuff. We need a strong Government so we will bring in a Bill to guarantee them five years, barring some convoluted exception in Clause 2”. Those exceptions include the absurd one that even if the Government lose a vote of confidence, they can still chatter on for another 14 days to see whether they can survive.

I want to make a simple point. As far as I can see, the objective behind the Bill is that, somehow or other, over the years Prime Ministers have been abusing the power to call general elections. For those who like looking at tables, as I do because in this House we are all anoraks to varying degrees when discussing issues of this kind, I refer them to British Electoral Facts by Colin Rawlings and Michael Thrasher. On page 139, there is a table headed:

“Reasons for Holding General Elections 1832 to 2005”.

It is pretty comprehensive. Looking at the list indicating when Prime Ministers have determined to hold general elections, I defy anyone to find a frivolous or absurd reason why they called an election when they did. Let me quote briefly from the list. In 1931, we had an early general election:

“Resignation of the Labour Government and formation of a National Government by James Ramsay MacDonald who six weeks later asked for a Dissolution in order to obtain a new mandate”.

Is that stupid or frivolous? Obviously, I think it was a pretty disastrous period in our history and he is not my favourite Labour Prime Minister. In 1955:

“Sir Winston Churchill resigned as Prime Minister and was succeeded by Anthony Eden who immediately asked for a Dissolution”.

Is that a stupid or indefensibly partisan reason for calling a general election? In 1966 there was a:

“Request by the Prime Minister for a Dissolution to obtain a renewal of the electors’ confidence in the Government and an adequate parliamentary majority”.

That is a perfectly valid and sensible thing to do. Again, I defy anyone to find anything in this list that is a bad reason for calling a general election.

Finally, I shall say why I strongly support this amendment. I would have much preferred that the Bill had not been introduced. I would have much preferred that we could at least have agreed on four years, but this is a compromise in the classic tradition of the Cross-Bench Peers. It simply provides that if after the next general election, which obviously I hope will deliver a majority Labour Government, the Government want to persist with this procedure that we are probably going to be forced to accept, they will need a resolution of both Houses in order to do so. I would love my party, should it be re-elected, to commit itself to abolishing this legislation. But as my noble friend Lord Howarth made perfectly plain, I am realistic enough to see the temptation for an incoming Prime Minister to say, “Yippee, I’ve got five years”, under the Bill as it stands. Why on earth would he want to get rid of that power? What is all this stuff about the Bill being about weakening the powers of Prime Ministers? It would be very difficult indeed, particularly since all incoming Governments have ambitious legislative programmes and want to get cracking quickly. So it is very unlikely that unless my party commits itself to repealing the Bill, we will indeed go on with it for ever and ever.

This amendment is a clever proposal. It gives the Government what they want, which is something I do not find easy to accept, but it requires every subsequent Government to make a conscious decision to stick by this piece of legislation as a requirement of our new constitution. I strongly support the amendment.

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[Lord Tyler]

The noble Lord has made a very important point about protecting the constitution. Has he considered the consequences, in terms of a very considerable constitutional crisis, if, under the wording of this amendment, one House votes in one way and the other House votes in the other way? That would raise huge problems in terms of the primacy of the other place.

[Lord Falconer of Thoroton]

In the situation where you have a proper constitutional arrangement, whereby we protect the constitution here, if you took the view that we were not going to support such a resolution, that is the way that our constitution works. We have been good as a House in determining when we defer to the other place. We do not defer only when we think a real constitutional principle is in issue; if we did not defer to the other place on an issue like that, we would be assuming—I would be assuming—that an important constitutional principle was at stake. What is wrong with that? What is our purpose if a part of it is not to defend important constitutional principles?

Fixed-term Parliaments Bill

Lord Tyler Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I rise to speak to Amendment 39, which fits into this group covering various contingencies in relation to the resignation of the Prime Minister. My amendment would provide for an early general election if the Prime Minister resigned and, after 14 days, there had been no vote of confidence in any Government of Her Majesty.

This issue was raised by my noble friend Lady Jay during the proceedings of the Select Committee on the Constitution. She asked the Minister, Mr Harper, whether, if a Government resigned without losing a vote of confidence, that would trigger the 14-day provision. Mr Harper replied:

“If the government resigned and we were without a government, you would then have to have a process of government formation. I believe that we think that would be the case”.

That is not quite pellucid and it hardly inspires confidence that Ministers had thought rigorously about this legislation.

Mr Harper then wrote again to the Select Committee, stating that:

“There is nothing in the Bill that prevents a government resigning; the Bill is about the length of a Parliament. If a government decided to resign when the Speaker had indicated that he was not minded to issue such a certificate, then the 14 day period would not be triggered although, as I said to the Committee, a period of government formation would obviously follow. It would just not be time-limited”.

Your Lordships may consider that it should be time-limited and that we should not allow ourselves to get into the Belgian or Iraqi situation whereby a Government cannot be formed for very long periods.

Amendment 38 of the noble Lord, Lord Norton, specifies 28 days. As he anticipated, I think that 28 days is too long. His Amendment 35 does not specify any time limit, but just removes the 14-day provision altogether. It will be no surprise to your Lordships, following a previous debate, if I confide in you that that is a much more attractive provision. However, supposing we accept that time should not be unlimited in such circumstances. If we provided for 14 days before an early general election takes place, following the resignation of the Prime Minister, it would integrate provision for the contingency of the Prime Minister’s resignation with the provisions in the Bill for other early departures of a Government.

It may be wise to provide a clear remedy, given that we have the Bill. The Bill would abolish the royal prerogative of Dissolution. Currently, with the prerogative—as the noble Lord reminded us—if the Prime Minister resigns, the Queen takes soundings to see whether another party leader can form a Government. If he cannot do so, she dissolves Parliament. That remedy is removed by the Bill. The Bill allows resolution of the impasse only if two-thirds of MPs vote to dissolve Parliament. However, that is not a sure remedy, because the Opposition might prefer not to take their chances at an immediate general election—they might not co-operate to secure that two-thirds vote.

It is worth considering what might have happened in historical situations that some of us can at least dimly remember. In the Government of Mr Attlee in 1951, he chose to go to the country. Aneurin Bevan and Harold Wilson had resigned from the Cabinet, having disagreed with the Government’s budget. The Labour Party had a majority of five, and Mr Attlee judged that he could not carry on. Under this Bill, Mr Attlee could not have gone to the country. Under this Bill, Mr Heath could not have gone to the country in February 1974. Of course, Mr Attlee or Mr Heath might have appealed to the other leaders and secured a two-thirds vote of the House of Commons for Parliament to be dissolved and for there to be a general election. However, what might have happened in October 1974, when Harold Wilson chose to go to the country? Would the Conservatives, at that stage, have been ready to agree to a general election? We shall never know, but the answer is uncertain.

It may be as well to provide a clear remedy, although I anticipate that the Minister will point out that it would drive a coach and horses through the central purpose of the Bill, which is to prevent a Prime Minister from seeking an early general election. However, in such situations as I have sketched, it may be desirable and in the public interest for there to be an early general election. The fact that we have to debate these amendments once again shows the unwisdom of seeking to legislate for fixed-term Parliaments.

[Lord Tyler]

My Lords, I have the greatest respect for my noble friend Lord Norton of Louth, who has unrivalled academic expertise and authority in matters of this sort. I am a mere practitioner, so my contribution to this debate is very much probing, rather than definitive. I am generally concerned about the drift that would appear to be the theme of this group. The Committee is provided with three options. One would remove the 14-day period for the formation of a new Government if the existing one falls; one would extend that period to 28 days; and the other would keep it at 14 days but change the process by which it would happen. We therefore have a spectrum of three amendments, representing a scale: one with no period at all in which another Government could be formed; one with a 14-day period; and one with a 28-day period. Those of us of a centrist disposition might be naturally inclined towards the middle option—Amendment 39 in the name of the noble Lord, Lord Howarth of Newport. However, strictly speaking, Amendment 39 is not necessary, since it barely departs from the principle that the Government have already adumbrated in the Bill itself.

Therefore, I will concentrate principally on Amendment 35, which is the “back me or sack me” amendment. It would offer a Prime Minister who had lost the support of his or her party in the Commons the opportunity to go to the country instead of to the Palace. There is nothing wrong with that in principle. It might have provided some clear guidance to Thatcher, Major and Blair at moments when factionalism was on the cusp of becoming fratricide. However, again, the amendment is surely unnecessary. The Bill already allows for the Prime Minister to resign or for a new Prime Minister and a new Government to be appointed. What the amendment does is to take away from Back-Benchers in the House of Commons the power actively to insist on the replacement of the Prime Minister with another. That is the principle behind this change. Instead, it places the decision on going to the country, as now, back with the incumbent of No. 10. I thought Members on all sides of your Lordships’ House thought that was not necessarily the best result.

Under the Bill as it stands, a Prime Minister could effectively be disposed of, as Labour wanted to do with Blair for so long. A clear period would then exist for a new Government to be formed. Members of the Committee can imagine that, when Tony Blair eventually stepped down, the Bill’s provisions would have allowed Gordon Brown to form what he called a new Government, in much the same way that John Major did when Margaret Thatcher resigned. It is not, therefore, clear to me whether my noble friend seeks a move away from the principle that votes of confidence in the Government need not precipitate an election—the status quo—if another Government can be formed. Here is the nub of a very important principle. I wonder whether my noble friend is trying to move away from the principle that the Prime Minister must have the authority and confidence of the House of Commons to continue; and whether he is, therefore, moving towards a principle that there ought, automatically, to be an election if there is a change of Prime Minister.

In February 1974, Mr Heath said, “Who governs Britain?”. He did not say, “Back me or sack me”. We have referred to that election on several occasions in your Lordships’ House in recent months; it is one that many of us recall very well. I have no doubt that my noble friend could find much public support for that principle. However, on balance, I have always thought that British Governments should depend simply and solely on the confidence of the House of Commons to remain in office. That is a parliamentary democracy, not a presidential one.

[Baroness Farrington of Ribbleton]

Will the noble Lord explain to me why I am mistaken in recollecting that Mr Heath did say, “Back me or sack me”? That is my recollection of the interpretation that everybody I knew had of what he said.

[Lord Tyler]

He may well have said that, but actually what he put on the table before the electorate in 1974, which I remember very well, was that his Government were challenging the country to say whether his Government—and the elected representative Members of the House of Commons who gave confidence to his Government—or the miners should continue to govern the country. That was the issue that he put before the country.

This is, surely, what the Bill seeks to enshrine: that we are a parliamentary democracy, not a quasi-presidential democracy. It is not clear that the noble Lord’s amendments, or any of the options before us in this group, would actually improve it. Unless we intend to complete the process from a parliamentary to a presidential form of government—which I assume my noble friend does not support—surely the change he appears to recommend would be premature. I believe in a parliamentary democracy, and I believe it is the House of Commons that gives confidence to a Government. If that were to change, we would be making a very considerable and dramatic alteration to the basis of our whole constitutional settlement.

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

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[Lord Wallace of Tankerness]

There is the important qualification that, if we were in a scenario where this Bill was law, it would also require that there had been a vote of confidence in that Government by the House of Commons. Subject to that qualification, I think the answer is exactly as the noble Baroness indicated.

[Lord Tyler]

My Lords, this is not new. Surely in a parliamentary democracy the Government require the confidence of the House of Commons. If they have that confidence, they can then continue.

[Lord Wallace of Tankerness]

That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a formal coalition with the then Liberal Party and they were able then to win a vote of confidence. You may say it was a Government of a different nature who proceeded to govern after that day because they were engaged in a formal pact and were not a new Administration, but they were different from the Government who had existed up to that date, who had not had a formal pact with one of the opposition parties.

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[Lord Wallace of Tankerness]

I would never say that my noble friend is being stupid; I take the blame myself for perhaps not explaining this clearly. It may not necessarily be the same Government. More often than not, it will be as happened in 1924, when there was a motion of no confidence, or the Government of the day lost on the Queen's speech, and a new Government came in that carried the confidence of the House. That was a circumstance where a new Government was in place with the confidence of the House. Therefore, there are circumstances in which it could happen.

[Lord Tyler]

We should look at the precedent for such certification, which is surely the Parliament Acts. Equally, that is a factual situation, but certification is to put it beyond the shadow of doubt that a certain process has taken place within a particular timeframe. That will then be, one would hope, conclusive. Presumably that is the purpose of the provision.

Fixed-term Parliaments Bill

Lord Tyler Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, I have put my name to this proposed new clause because it provides greater clarity and certainty than Clause 2 in its present form. It defines clearly and unambiguously what constitutes a vote of confidence in the other place for the purposes of this legislation. It is not a total definition of all votes of confidence but of what would constitute a vote of confidence for the purposes of triggering an early parliamentary election. It may not be perfect, but I think it is a very good shot at that. It provides the additional safeguard of a certificate by the Speaker that a vote is indeed a vote of confidence within the meaning of the Act, but I hear the noble Lord, Lord Howarth, on that subject, and we can consider whether that needs to be retained, as the noble Lord, Lord Cormack, suggested.

This proposed new clause also specifies clearly the consequence that is to follow the defeat on a vote of confidence, as defined, in the Government in another place: that there is to be an early and immediate parliamentary general election. It does not provide, as the existing Clause 2 would provide, for a cooling-off period of a fortnight between the vote and the decision to dissolve Parliament and hold an election. That seems to me an improvement, not a weakness, as compared with the provision in the Bill. That fortnight would be, as has been pointed out, a period of prolonged political uncertainty, not to say crisis, and of paralysis in government, which would be better avoided.

I suppose that that provision is intended to allow for the possibility that after a defeat on a vote of confidence a new Administration might be formed, perhaps under a different Prime Minister, which could carry on government without the need for a general election. I suggest that this possibility is more theoretical than real. In real life, if a Government were faced with the prospect of a vote of confidence, the loss of which would certainly trigger a dissolution of Parliament and a new election, they would do their utmost to try to ensure that they did not lose the vote. If they failed to do so, it would be clear enough that a Government who had lost a vote of confidence as defined had run out of time and political credit to such an extent that the only realistic remedy for the problem would be a Government with a new electoral mandate.

As the noble Lord, Lord Cormack, has suggested, the drafting of this amendment could well be improved or tidied up in various ways by further consideration and refinement but, for the reasons I have indicated, it seems to me that a new Clause 2 to the effect proposed by this amendment would be a marked and useful improvement to the Bill, if we have to have the Bill.

[Lord Tyler]

My Lords, the authors of this amendment are so distinguished that I speak with even more trepidation than usual. They have shown characteristic confidence in proposing a complete removal of Clause 2 and its replacement with their own model. However, I suggest to the Committee that their self-confidence may in this case be misplaced.

The Bill, if we are entirely candid, does not fix parliamentary terms; it codifies how long they should last, but also provides for them to be foreshortened in very specific circumstances with very specific safeguards, and it is those safeguards that we are looking at this evening. Indeed, for all the debate in this House about how a simple majority vote of confidence should precipitate an election, the Bill already has, just about, that provision in it, albeit with a 14-day government-formation period, referred to by the noble Lord as a cooling-off period. I think it is actually going to be a hotting-up period if the media are camped on the green outside waiting to see what is going to happen.

I suggest that if we were to accept Amendment 50, we would be going even further in negating the principle of a fixed-term Parliament. That may be what some Members wish to do, but it is not, I think, the view of the Official Opposition, nor is it the position of the Government.

There are several veterans in your Lordships’ House of the long debates about the Maastricht treaty. Therefore, I want to draw the attention of the Committee to the way in which that was handled in the other place. I happened at that stage to be largely on the side of the Government. There was a sort of informal Lib Dem/Conservative alliance but there were also many people on the Conservative Party Back Benches who were opposed, in principle, to the Bill. That was a matter of policy but it was turned into a matter of confidence in the Government. Philip Stephens, a distinguished Financial Times columnist, wrote subsequently that,

“the rebels understood the choice was between supporting ratification of Maastricht and certain defeat at a general election four weeks later. Major won the confidence vote comfortably”.

In those circumstances, MPs were effectively circumscribed in their judgment by virtue of a prime ministerial power to make MPs choose between incumbency and defeat.

Amendment 50 codifies that power in proposed new subsection (2)(b), suborning matters of controversial policy to raw short-term political objectives. That same subsection also sets up a lawyer’s paradise. I am not a lawyer, but from the legal advice that I have been given the amendment is more likely to be justiciable, for reasons that I will come to in a moment, than the situation previously described very eloquently by two distinguished former Speakers, because it is about a Prime Minister’s entirely subjective definition of a Bill,

“being essential to his or her administration continuing in office”.

That is a sort of papal absolute, which could be questionable in court or subject to judicial review—a point to which I will come back—because that is an executive decision. It is not the decision of the Speaker of the House of Commons. It is the decision of a Minister in a political role in an executive position. At the time of Maastricht, the Major Government could have continued in office without the Maastricht treaty. They would have lurched even more absurdly from crisis to crisis if they had but they could have survived.

Why and how should a Prime Minister—the very person from whom the whole point of the Bill is to remove that absolute power—be accorded an absolute right to define those Bills which he or she thinks should be the subject of this provision? Why would not a Prime Minister use it for every substantial piece of legislation?

It seems to me that the provisions of this amendment could encourage unnecessary brinkmanship when there are perfectly legitimate disagreements, whether they are among coalition parties or within majority Governments, which we all know are coalitions anyway. I invite your Lordships to look carefully at the amendment in the names of my noble friends Lord Cormack and Lord Norton of Louth, my noble and learned friend Lord Howe of Aberavon, and the noble Lord, Lord Armstrong of Ilminster. My noble friend Lord Cormack was very fair in saying that he thought that it could be improved but proposed new subsection (2)(a) and (b) would give extraordinary executive opportunity to the Prime Minister of the day. It might remove from the Speaker the invidious role that was described earlier so eloquently by the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, but it could create in its own way even more difficult circumstances.

Let us suppose that the Prime Minister of the day, under proposed new subsection (2)(b), decides that a particular Bill and a vote on that Bill is essential to his or her Administration continuing in office. Under the amendment as it stands, the Speaker would have to specify that to be the case. I agree with the noble Lord, Lord Howarth, on the fact that the Speaker would have to specify that that was the case—that the Prime Minister had said it, so it is the case. But that decision of the Prime Minister of course could be subject to judicial review, perhaps several days after the Speaker’s certification. What situation does that place the Speaker in? It is not his decision that has been challenged. It is the decision of the Prime Minister. Nevertheless it puts the Speaker in an extremely invidious position. Unfortunately, the noble Baroness is no longer in her customary seat but the strictures that were being applied earlier to your Lordships’ House in terms of putting the Speaker in an invidious position would be even worse under this amendment.

[Lord Cormack]

Who is going to challenge the decision of the Prime Minister? Will it be the Leader of the Opposition? Will it be one of his own supporters? If the Prime Minister has come to the conclusion that particular legislation is essential to the Government’s survival, it is hardly likely that he will be taken to court over that.

[Lord Tyler]

I do not agree with the noble Lord. There are people who will always want to subject the decisions of a Prime Minister to judicial review. As I understand it from the legal advice that I have received, such applications are much more likely to be considered by a court and to take time. That is the situation described earlier in the Committee. I hope that everyone will accept that the certification by the Speaker is a parliamentary act, but the executive, political decision of a Prime Minister to say that he or she considers a particular Bill to be a matter of confidence is open to much greater interpretation by the courts.

The noble and learned Lord, Lord Falconer of Thoroton, quite rightly said earlier that we should avoid artificial certainty of definition. I fear that that is precisely what the distinguished authors of the amendment have produced. For example, how many parliamentary Questions would be tabled along the following lines: “Will the Prime Minister define the Miscellaneous Provisions Bill as essential to his continuing in office under Section 2(2)(b) of the Fixed-term Parliaments Act?”. Would the Prime Minister always say no? What would he say? There could be endless entertainment in the other place on this position.

I am sure that the amendment is well intentioned but it will take us down a dangerous route. I accept what the noble Lord, Lord Howarth, says about the subsequent decision of the Speaker following such a decision by the Prime Minister in an attempt to force a vote of confidence, but I still think that the amendment, with or without his subsequent amendment, is extremely damaging and potentially dangerous.

I noted what my noble and learned friend Lord Howe said about not being particularly enthusiastic about the amendment to which he had put his name, any more than he was about the Government’s position. I accept that there is some lack of enthusiasm for the amendment, even by its authors, but it is a dangerous route for us to take. It would be justiciable and challenged in the courts—and that would be extremely dangerous.

I and my colleagues have put forward an alternative which is a great deal simpler. It is that rather than trying to codify the status quo, as the amendment attempts to do, we should have one specific rule—that the Motion of no confidence should be tabled by the Leader of Her Majesty’s Opposition. It is difficult to think of any circumstance—even when the second and third parties are of comparable size—when the Leader of Her Majesty’s Opposition would not in practice have to table that Motion. It would be so firm and clear that it would ensure that Governments could not use such a vote as a way of cutting and running early. That is one of the key purposes of the Bill. The cut-and-run tendency is not good for the governance of our country, but we have seen it happen in the past.

The amendment undermines the purpose of and hollows out what is an already modest Bill. Some noble Lords on these Benches, and perhaps in other parts of the House, think that the fixed term should be even firmer than it is under the Bill—after all, it operates perfectly well in the United States. The Bill is already a compromise from that position; I suggest there is no need to compromise it further.

[Lord McAvoy]

The noble and learned Lord, Lord Howe of Aberavon, has described better than I ever could the Alice in Wonderland nature of the debate. I can understand my noble friend Lord Howarth of Newport picking credible holes in the amendment brought forward by the noble Lord, Lord Cormack, and it is certainly easy for the noble Lord, Lord Tyler, to do so.

We are holding this debate against a background of a Bill which is unnatural and is opposed by an overwhelming majority of Members of this House. A party which lost seats in the previous general election is blackmailing its partners in a coalition to accept constitutional change. We shall all end up being twisted and contorted by trying to take part in a debate on a Bill which is utterly flawed and goes against the natural flow of political events in this country. It is easy to criticise, but we are taking part in a debate on a Bill which is a strange and unnatural beast in British politics.

The noble Lord, Lord Cormack, has tried within the context of that debate to play the constructive, revising role that people in this House look for and to make the Bill better. I do not think that he supports the Fixed-term Parliaments Bill, but we have got it in front of us and it is what he is trying to improve.

Subsection (2) of the proposed new clause outlines the instances in which a vote of no confidence will be deemed to have been passed. They would amount to votes of confidence anyway. They are issues where, if a vote goes against the Government, Parliament is entitled to pass a vote of no confidence; that is the new world. Paragraph (b) states,

“denies a second or third reading to a Finance Bill”.

We all know that a Government need a Finance Bill to be passed. I take the point about a Prime Minister defining it, but that is his or her judgment as the Prime Minister of the country. Paragraphs (c) and (d) state,

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition; or … defeats a motion of confidence tabled by the Prime Minister”.

The noble Lord, Lord Cormack, is using real life to bring forward instances which determine whether there is a general election in this country. I, too, was in another place at the time of Maastricht. It is not the first time that people have combined in quite such dishonourable—in some ways—alliances.

I presume that the noble Lord, Lord Tyler, supported the 14-day provision. I think that the noble Lord, Lord Cormack—I had better not call him my noble friend for the purpose of this debate—was paying me compliments in talking about black arts and sinister persuasions. That 14 days would allow all sorts of things to take place. There would definitely be no physical violence, but imagine the sheer pressure that you can generate by being able to say to somebody that you hold in your hand the power to determine whether, in my case, a Labour Government fall, or a Conservative Government, in the case of other people.

This is really nonsense, but we are all being forced to discuss it because we are being led by the nose—I hesitate to say anything that would upset or insult noble Lords on the Conservative Benches—by a comparatively small group of people, the Liberal group, who are hell bent on changing the constitution of this country. They are tinkering with it and coming up with all sorts of ill thought-out, ill advised and quite nonsensical proposals. In the likes of the noble Lords, Lord Norton of Louth and Lord Cormack, and my noble friend Lord Grocott, we have people here who are prepared to listen to ideas for change but to take the best of this place to keep it going. We are in an unnatural situation where we are all discussing something which we know is not right and not practical.

I was particularly struck by a phrase used by the noble Lord, Lord Cormack, which was that he was trying to get a comprehensible Bill. That sounds to me like common sense. As long as we are forced to discuss a Bill such as this, we will all come forward with positions that we do not really believe in or like in a vain attempt to make a better Bill. We know full well in our heart of hearts that a majority of people in this House know that the Bill is nonsense; but as long as we are prepared to discuss in an Alice in Wonderland way, we can pick holes in reasonable suggestions.

Fixed-term Parliaments Bill

Lord Tyler Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Bach]

My understanding is—and if I am factually wrong of course I apologise—that all elections were put back one week in that year for that reason. I use it by way of example if it is not factually correct. In other words, if something has happened that is important to many millions of potential voters, does it fall in to Amendment 24, tabled by the noble Lord, Lord Norton? If it does not, should some account be made for such unforeseen circumstances that might affect turnout or a number of issues? That may not be the best example, but one can think of other examples of the same kind.

[Lord Tyler]

Is that not a very good argument for adopting the solution that we are proposing that it should then be a political decision and that we do not try to foresee unforeseen circumstances? I speak as somebody who fought a by-election at the height of the Falklands war. That was unforeseen, but I did not think that that was an improper occasion to hold an election. What was significant about 2001 and foot and mouth was that it was impractical to ask people to go to the poll in large areas of the country, including my own. That was what was particular about those circumstances. Therefore, I think the solution that we are proposing from these Benches is preferable. A political consensus across the two Houses of Parliament is preferable to trying to write in advance circumstances that are by nature unforeseen.

[Lord Bach]

The Committee will see the powerful nature of the argument the noble Lord, Lord Tyler, makes, but whether that absolutely precludes some amendment of the type that the noble Lord, Lord Norton, has put before the Committee tonight, I am not so certain. To have both would be a kind of double of lock that would not exist if we just relied on Parliament in this instance. There may be other instances that are not covered by Amendment 24 that the noble Lord, Lord Norton, might want to consider. That is our position at the moment. We are slightly sceptical that the solution has yet been found.

How wonderful it is to see the noble Lord, Lord Rennard, in such fighting form on this Bill. We missed that fighting quality so much in the weeks and months that we spent on the previous Bill. Keep it up.

Fixed-term Parliaments Bill

Lord Tyler Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Rennard]

The first reason is one about which the noble Lord, Lord Wills, should know a great deal. I pay great tribute to him as a genuine constitutional reformer. He was responsible in the previous Parliament and in the previous Government for changing significantly some of the rules on party political expenditure. Noble Lords opposite shared my concern throughout much of the 13 years and the three Parliaments of the previous Government about the lack of a level playing field in this country in party financing, which gave too much opportunity to extremely wealthy individuals to influence an election, particularly in constituencies, in the immediate run-up to it. The noble Lord, Lord Wills, introduced legislation in the previous Parliament which provided for control of that expenditure after four years and seven months of a Parliament. There would be no controls before that; they would apply only after four years, seven months. I opposed that legislation on the ground that it would work logically only if you had a five-year fixed-term Parliament. Noble Lords opposite had no answer to that point, but decided that four years, seven months was how it should be. So, now, our legislation to regulate party political expenditure is entirely dependent on there being a five-year fixed-term Parliament and on those controls coming in after four years and seven months through to the 60th month of the Parliament, and no other period.

[Lord Tyler]

I wonder whether my noble friend recalls that not only the noble Lord, Lord Wills, but all his political colleagues in another place promoted that legislation in terms precisely of the Political Parties, Elections and Referendums Act and the control of the expenditure of political parties. Why have the noble Lord and all his colleagues changed their minds? I notice that the noble Lord, Lord Bach, is back in his usual place. Perhaps he would like to explain why he has changed his mind, having teased my noble friend on this point.

[Lord Rennard]

My Lords, I am sure that noble Lords opposite will have an opportunity to explain their points. Perhaps I may briefly explain the third reason for my having decided that five years is better than four years. It is again a question of consistency. We agreed relatively recently and after lengthy debate—the longest that we have had in the time that I have been here—on the system for parliamentary boundary reviews. It has been established that there will be five-year reviews of constituency boundaries. It would be madness to say that one should redraw the constituency boundaries every five years but then not to have general elections every five years. To have a general election every four years but to redraw the boundaries every fifth year would put the two processes completely and quite unfairly out of sync. On that basis, I decided that five years rather than four was more logical and more democratic.

Fixed-term Parliaments Bill

Lord Tyler Excerpts

Tuesday 15th March 2011 Lords Chamber

[Lord Tyler]

We should be absolutely clear what precisely the amendments in the name of the noble Lord, Lord Howarth of Newport, would do. They would put back into the hands of the Prime Minister of the day, the leader of one of the political parties, the opportunity to pick a good moment to alter the general election date for party advantage. That is the precisely the way in which these amendments could fulfil their purpose. For that reason, they should be firmly opposed.

[Lord Martin of Springburn]

Can I make the point that going beyond four years can be a double-edged sword for a Prime Minister? Margaret Thatcher was very shrewd in how she went after a strict four years, as was Tony Blair. We have seen what happened with five years, so it does not always work in a Prime Minister’s favour.

--- Later in debate ---

[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 Tyler Excerpts

Tuesday 15th March 2011 Lords Chamber

[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.

--- Later in debate ---

[Lord Tyler]

I am very glad that the noble Lord, Lord Bach, preceded me because it gives me an opportunity to congratulate yet another sinner on repenting when I hear from him the admission that Ministers occasionally give us honeyed words and assure us that action will be taken when, in the 13 years in which he had a very responsible role in government, there was very little action even in discussing this issue, let alone consulting on it.

I shall make two or three quick points in support of the amendments that my noble friend Lord Marks and I have tabled. First, I recall very well indeed the night of 28 February 1974. In an enormous, scattered rural constituency with snow threatened, pouring rain much of the time and a lot of wind on Bodmin moor, we managed a turnout of 83 per cent, but that was in extremely difficult circumstances. This is true of many rural consistencies in which there are big distances to travel from the place of work to get to vote. There are very difficult circumstances in many villages when the only place where you can have a polling station is the village school, so it is closed for the day. That practical point has not yet come up in the debate. It may be true in urban areas too, but I do not have the same experience. There are practical problems about the insistence on Thursday as polling day that we should address.

The other point that I shall address very briefly was raised by the noble Lord, Lord Pannick, and supported by my noble friend Lord Cormack. I am a practising member of the Church of England, by which I mean that I am never going to be perfect but am practising all the time. I recognise that there are people in all the churches who would find it difficult if Sunday were the only day. That is why our amendments specifically refer to the possibility of two days. Of course, it is also true that Saturday is a day for other faiths, as indeed is Friday.

I am chair of the Faith and Civil Society Unit at Goldsmiths College, so I take a particular interest in the way in which we are now a multifaith community. We should recognise that in the way in which we address this issue. That is why I am very strongly of the view, as my noble friend Lord Rennard said, that it would be preferable to have the choice of two days, but they should be shorter days. I also recall that on 28 February 1974 one presiding officer was so exhausted by the end of the day that he did not properly perforate the ballot papers. Since I ended up with a majority of nine after six recounts, I think that the long day is another factor that we should take into account, and a shorter working day but on both days seems to be something that we should look at very carefully.

I have some sympathy with the point made by the noble Lord, Lord Cormack, about the insistence on moving towards more and more absent voting, both proxy voting and postal voting. On balance, it is preferable to try to extend voting in person and to make that as easy as we can, not just for reasons of potential corruption and fraud but because it is part of one’s civil responsibility to come together as a community to vote. I hope that is true.

The noble Lord, Lord Howarth, referred to the briefing by the Electoral Commission, and I should say en passant that I am a member of the informal advisory group of politicians of all parties who give guidance to the commission every so often. Its summary is in effect that at this stage it would be premature to insist on moving towards weekend voting, which is really why my noble friends and I have put it not in a prescriptive way but in an advisory way that we should be moving in that direction. It is disappointing that although there have been pilots for so many other aspects of improving access to the voting process, there has been so little attention to or consultation on this issue. Incidentally, I endorse the point made by the commission about the number of advantages in advance voting. This is not an either/or. They are both quite useful ways in which we could get more people to go to the poll to cast their votes.

There is an interesting opportunity here. I hope that my noble friend the Minister will at least be able to indicate that he will not adopt the attitude of the previous Government, which was personalised, illustrated and characterised by the noble Lord, Lord Bach, in his honeyed words but with mighty little action. Before we get to the definitive moment to which my noble friend referred when we will know the shape of the new constituencies in October 2013, I hope that more work will have been done to consult all interested parties and to conduct pilot schemes to see whether a two-day weekend polling period with shorter hours each day would not suit our fellow citizens much better than plumping again for a Thursday, which is so inconvenient for so many and causes so much disruption.

[Lord Grocott]

My Lords, I echo what my noble friend Lord Howarth has said about how much better debates on major constitutional reform are when we get contributions from all parts of the House, which has characterised the debate on this amendment. I welcome the fact that we have had the opportunity to discuss this amendment even though I have real anxieties about it. Perhaps it is a sign of a simple mind, but one of the tests I put to constitutions is the extent to which they are straightforward, intelligible and as simple as possible, which is one of the many reasons why I am so strongly in favour of first past the post.

While I do not doubt for a minute the good intentions of people who think that we should have a couple of days to vote, there would be a problem. It would just extend the development, which has undoubtedly occurred in most of our lifetimes—I do not want to be rude in characterising it in this way—towards a kind of rolling election as opposed to an election day when the nation makes a decision. In part, a rolling election is very much as the noble Lord, Lord Cormack, has said. I know that under a Labour Government there was substantial development of postal voting. In effect, we have at least two election days, if not a longer period. There is the crucial day when the postal ballots go out and people react to that. Then there are the days between the postal ballots and the election day when more ballots come in, which makes it a kind of rolling election.

I feel a certain nervousness about extending the election over two days. At least it might mean that a lot of the drama will undoubtedly be removed from election day. Perhaps I am wishing for days that have passed to think that that drama can ever come back. The February 1974 election was certainly profoundly dramatic for me because it was one of the many elections that I managed to lose and there were several recounts into the middle of the night. We were pretty tired over that period, but that is part of the drama of an election night.

What would happen between the two polling days? Perhaps we would all sit in limbo. Again, I am trying to avoid crudely partisan points, but occasionally I cannot manage that. A rolling election period would be made worse by more complicated election systems. I genuinely respect the noble Lord, Lord Rennard, who has participated throughout. If the AV vote is passed, it will inevitably mean that counting will occur on the day after. It is inconceivable that an AV vote could be counted through the night of an election day.

--- Later in debate ---

[Lord Tyler]

The noble Lord and I both served for many months on the working group chaired by his colleague, Mr Jack Straw, when we looked in very considerable detail at the various proposals for reform of your Lordships’ House. At not one single moment through the whole of that White Paper’s preparation did he or his colleagues suggest that it was necessary for those proposals to be put in a referendum for the public to take a view. Why is there suddenly this interest in making that proposal the subject of a referendum?

[Lord Hunt of Kings Heath]

It is because it is part of a series of measures of constitutional change. The noble Lord, Lord Tyler, will also know that the intention was always to produce that White Paper, which we did, then to ensure that it was in the manifestos of the three parties at the last election, which it was, then to bring forward proposals. For myself, I believe that a referendum ought to be considered in the context of the current Government’s decision to go for a referendum on AV and their other constitutional changes; and because it is abundantly clear, from all that I have read and heard, that they are not prepared to deal with the issue of powers when it comes to Lords reform.

My noble friend Lord Grocott and I do not always see eye to eye on Lords reform, but I certainly agree with him when he challenges the naive assumption that an elected senate will simply carry on in much the same way as your Lordships’ House does, without any impact on the House of Commons. I do not accept that; an elected second Chamber is bound to impact on the Commons and on our constitution in a major way. In many respects, it will be a new House even though there may well be a transition period between where we are and where we get to in the end. The same applies to the Bill. As a result of the Bill there will be less accountable Parliaments, because they will last longer, and a legislature with a more limited ability to evict a Government who have lost the confidence of the Commons. I say to the noble Lord, Lord Marks, that that is pretty fundamental to me. At the very least the Minister, whom we all value for his contributions on constitutional issues, ought to have a shot at showing where the consistency is between those constitutional changes which are to be subject to a referendum and those which are not.

Parliamentary Voting System and Constituencies Bill

Lord Tyler Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Lamont of Lerwick]

My Lords, I voted for the amendment of the noble Lord, Lord Rooker, the first time, and I intend to vote for it again today. It is true that there was a significant majority in the Commons yesterday, but the result disguised the fact that 20 Conservatives voted for the amendment and 25 abstained. The large majority was accounted for to a considerable extent by the nationalists voting in support of the Government.

I was shocked by the brevity and paucity of the debate. Very few Back-Benchers were able to get in. One point that was made—as it was in this House—was that we have not had thresholds in referendums before, with the exception of the first referendum on Scottish devolution. Of course, we have had very few referendums in this country. Although the first was as long ago as the first referendum on Scottish devolution, they are still something of an innovation. I was struck by the argument made by one Conservative Back-Bencher yesterday that perhaps there should always be a threshold in constitutional referendums, as there is in so many countries of the world. My noble friend Lord Strathclyde mentioned that France does not have this threshold, but it is about the only country in Europe that does not. All other major countries do and, as my noble friend Lord Lawson said, the United States has a different sort of threshold via representatives and state legislatures.

The Minister in the Commons—and my noble and learned friend today—said that a threshold would give people an incentive to vote no. First, that cannot be asserted with absolute clarity. One can argue it both ways. A threshold gives a very positive incentive for people to vote yes if they are worried about the turnout. Secondly, somebody who is really against the proposition would have to worry that the threshold might be met; he would have to know what the turnout would have to be if he was really certain about the situation.

Leaving that aside, it is not unjustified or unfair that if there is great apathy, the proposition should fall. That seems common sense and reasonable. The proposition has been put a number of times that there might be a 38:1 vote that falls just short of the 40 per cent threshold. In Germany, there was a referendum with a majority of 10:1, but because the turnout was only 10 per cent the proposition was rejected—and quite right, too. Constitutional change affects us all; it lays down the rules of the game by which politics is conducted and by which we representatives live; and it should be made only when it is clearly the wish of the people that it should happen. There are great dangers in making major constitutional changes which have uncertain consequences. People who are in favour of AV argue that its effects would be this or that, but the truth is that what would happen is highly unpredictable. I do not believe that we should take this leap into the dark unless there is a proven desire for change supported by the British people giving it their full-hearted consent.

[Lord Tyler]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer, intends to speak on this. I hope that he does because it would be very important for your Lordships’ House to hear precisely what the attitude of Her Majesty’s Opposition is. He and I have enjoyed each other’s company over many long hours throughout the passage of this Bill. I am not going to give him my views but I should like him to comment on the views of his colleagues. In the other place, Mr Christopher Bryant said:

“I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea”.—[Official Report, Commons, 2/11/10; col. 846.]

There is nothing there about indicative referendums or definitive referendums but all referendums or referenda. I am disappointed not to see the noble Lord, Lord Lipsey, in his place, because all of us who attended the long hours of Committee and Report very much respect the work that he has done on the Bill. He said just last week on Report,

“I do not support a threshold”,

and, again, there is no definition of what the threshold might be. He went on to say:

“Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences”.—[Official Report, 7/2/11; col. 106.]

Amen to every single one of those. He then argued his point in detail. I very much hope that if the noble and learned Lord, Lord Falconer of Thoroton, is going to respond to this debate, he will explain why he completely disagrees with his noble friend Lord Lipsey, who, as I think he will agree, has studied this Bill more than any of us.

[Lord Forsyth of Drumlean]

My Lords, I do not wish to detain the House but I agree with every word that the noble Lord, Lord Rooker, said. I do not think that in all the years we have engaged in exchanges I have ever been able to say that before, but I certainly agree with him now. He offers a warning to this House. I am not sure whether noble Lords will have had a chance to read the debate in the House of Commons. The Minister’s speech was extraordinary because it did not address the substance of the amendment before him. It addressed the idea of having a drop-dead threshold. In fact, he made exactly the same speech as Mr Bill Cash made on his own amendment, which would have introduced a 40 per cent cut-off point. If it did not reach 40 per cent, that would be the end of it.

With reference to the noble and learned Lord, Lord Lloyd of Berwick, I am very conscious that I am not elected and therefore I do not want to challenge the elected House, the House of Commons. However, this amendment has the effect of leaving it to the House of Commons to decide, and therefore it is very difficult to say that this House should not cajole the other House into putting itself in the driving seat on a major constitutional change.

I find it very difficult to understand why my coalition colleagues have not accepted this amendment. I shall not embarrass them by naming them but they have suggested to me that this is because of the coalition agreement. My noble friends Lord Lawson and Lord Lamont have dealt with that point. This amendment does not in any way threaten the coalition agreement, and I think we have had confirmation from the Front Bench that an amendment of this kind is not contrary to the coalition agreement. When I raised this matter with senior colleagues, they said, “Yes, it’s not in the agreement but it’s what we have agreed with the Liberals”. If we are to have agreements, they have to be transparent, and if our parliamentary democracy is to function, people need to know what agreements have been made behind closed doors and they need to look at the arguments.

I asked another senior Liberal strategist—again, I shall not name them in order to avoid embarrassing them—what they thought the turnout might be in London, where there are no elections. All the pressure on the Bill has been focused on having the referendum at the same time as the Scottish parliamentary elections and the local government elections, and I think that that is a bit dodgy. It is an attempt to try to get a higher turnout. That suggests to me that people are worried about the turnout. As my noble friend Lord Lawson said, if you do not know what you think about something complicated, the wise advice is not to participate in it—not to express a view. We are 10 weeks away from this referendum. Have we seen any of the arguments? Do we believe that the electorate have had a chance to consider all the arguments, or that that is likely to happen with Easter intervening?

Parliamentary Voting System and Constituencies Bill

Lord Tyler Excerpts

Monday 14th February 2011 Lords Chamber

[Lord Rooker]

My Lords, I shall not detain the House too long. I think that it was generally accepted, after the vote last Monday on Report, that Amendment A1, which the House carried by just one vote and which is now in the Bill at Clause 1(2), requires tweaking. That amendment stated that less than 40 per cent of the electorate turning out meant that the vote was not binding; in other words, it has come back to Parliament, to a Minister. We had a brief discussion across the Floor that the amendment needs tweaking—and I fully accept that, but this is not that tweak.

Clause 8 is binding. That is accepted, and there is no problem about that. The amendment carried last week simply states that it is not binding if there is a turnout of less than 40 per cent, so it is not fatal. It is not a threshold, and it does not wreck the change. The amendment passed last week is a constraint that limits action.

I am moving Amendment 2 today as a result of a very long discussion last Thursday in the Political Reform and Constitutional Affairs Committee in the other place after we had finished our proceedings on the Bill. The witnesses were the Electoral Commission and Professor Johnston. I have to admit that I watched all the proceedings of that committee, some two hours, on Saturday afternoon, so I gave up quite a bit of time. In all honesty, I have to say—and I watched a bit of it twice, just to get it right—that there was a misinterpretation of the amendment this House passed last Monday by the Electoral Commission, some members of the committee and the chair, which was bordering on the wilful because the context always was that of a fatal threshold. In other words, the whole lot failed without a 40 per cent turnout. That is not what the House passed last week. What it said was that if the turnout is not 40 per cent, the referendum is not binding. The implication was that we have to make it discretionary, so that the Minister can come back. If the turnout is 10 per cent, it does not matter what the result is. The Houses of Parliament could still pass it, so it is non-fatal. The whole discussion in the Select Committee was based on the fact that it is a killer threshold. I was quite astonished at that.

The amendment the House passed last week was a compromise between having a consultative referendum and a binding referendum. Frankly, when the Prime Minister was asked about the issue by Christopher Chope last Wednesday at Question Time, he started to say that, generally speaking, in this country, we do not have thresholds at referendums—as I said, this is not a threshold—but generally in this country, we do not have binding referendums either. This is the first we have ever had. I do not know whether anyone has drawn that to the attention of the Prime Minister—and I add that I will be happy to share a no platform with him during the referendum.

This issue goes well beyond what has happened in the past. At no time during the Select Committee discussion was the unbinding bit of the Bill ever raised. The discussion proceeded on the basis that we cannot measure turnout, because there is no national register, and cannot measure what a vote is. That is what the Electoral Commission said to the Select Committee. We cannot measure the turnout because it is too complicated. We do not even know what a vote is because it is not defined. What is a vote? Does that mean we count the spoilt papers as well as those that count? All that was trotted out before the Select Committee without any challenge. Then the size of the register was raised. Given that we have legislated on the basis that by common consent there are 3.5 million people missing from the register and hundreds of thousands of voters entered twice, either as undergraduates or second-home owners, it could be argued that there is a distinct lack of precision about the register in the first place for all purposes, let alone this one.

It seems to me to be reasonable to call the electorate those people defined in Clause 2 as entitled to vote. The vote is those counted under Part 1. That gives clarity. The Bill sets out the electorate in Clause 2, on which we had long debates. The vote is defined as voters who are counted under Part 1 of the Act, namely those who are yes or no. Those are the only votes that count. Spoiled votes do not count. I would have thought the Electoral Commission would have been aware of this, yet it has raised these issues as if, if there is a little doubt about the result, the whole thing is down the plug hole. It is not. It simply becomes unbinding. That is my worry.

To conclude, if it becomes the case—

[Lord Tyler]

Could the noble Lord, Lord Rooker, clarify one point? The Electoral Commission points out that there is some doubt about his definitions. In particular, does he accept that the register may be considerably out of date by the date of the referendum? For example, anybody who has died in the intervening period would, under the terms of his previous amendment, be counted as a no. Every abstention is, effectively, a no when it comes to looking at his threshold. Does the noble Lord, Lord Rooker, accept that the Electoral Commission may not be right about everything but it is correct in saying that his current amendment is defective?

[Lord Rooker]

It is certainly wrong about it being fatal; I will argue that until the cows come home. The Electoral Commission bordered on being wilful. I was about to come to the point that the noble Lord raised, which is a very fair one, about the register. My point is this: after the referendum, when everything is counted, if it comes down to such a fine definition that we have to look at the number of people currently on the register who died or left the country before 5 May—in addition to such elements as foreigners who are able to vote in some elections but not for Westminster—we will have precisely the situation that I seek to avoid in a binding referendum. If all those factors come into play—that is, if the result is narrow and there is an argument over the numbers—it will be the very reason why we should not have a binding referendum in the first place.

My compromise is to say that the threshold should be 40 per cent. My original compromise was that it should all be consulted on. The House threw that out by 17 votes in November. That is my point. If it comes down to the fact that these issues start to matter, we will have a serious problem on our hands. Therefore, if the referendum was not binding, Parliament could then look at it, Ministers could advise Parliament, we could take a rational view and maybe—I fully accept this—still go ahead and introduce AV. This amendment does not stop the introduction of AV. If the circumstances are such that we have that problem, we will also have a problem that is even bigger.

I have listened to what the Electoral Commission told the Select Committee and to the chairman of the committee, who swore blind that she voted for this amendment in the Commons last year. She did not. The amendment in the Commons last year, which was defeated by around 500 votes to a couple of dozen was on a killer, fatal threshold. The Labour Party voted against it and quite right, too. If the threshold was not met, that would be it—the referendum would be off. That is not what this is about. Those who refuse to accept that are being disingenuous about the situation we have arrived at. It is not too late.

In other words, this amendment is directly consequential on what the House passed last Monday. Irrespective of what the Government choose to do in the Commons in the morning, it would be wrong to reject it—I make no assumptions either way—on the basis that the Electoral Commission said that it cannot define “votes” and “the electorate” if we cannot today add this consequential bit to the amendment we passed last Monday. One flows from the other. If the argument is not used tomorrow, this does not apply. However, is it intended that the Electoral Commission brief the Commons and say, “This won’t stand. As we told the Political and Constitutional Affairs Committee last week, ‘votes’ and ‘electorate’ are not defined.”? Since I have made a modest attempt to define them in the context of the Bill, that would be quite wrong. The amendment should be added to what we passed last Monday.

Parliamentary Voting System and Constituencies Bill

Lord Tyler Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Rooker]

I want to raise a point that only the noble Lord, Lord Pannick, has touched on. I speak as someone who was in the other place and went through two boundary inquiries. Most Members of Parliament fail when dealing with casework, and they have to give their constituents bad news. Most constituents receive that news on the basis that their case has been taken to the top; they accept that, and that is the end of the matter. That is a generalisation, but by and large it is my experience.

On both of the boundary changes that we dealt with—I am speaking only about the evidence from the city of Birmingham—we as Members of Parliament took criticism from members of the public, churches and party members, and this applied to both major parties as we were very much a two-party city in those days. The criticism was that someone had come up from London who had never been there before and was redrawing boundaries and sticking this ward into the constituency when we wanted that one instead.

I remember one particular incident, at a public community meeting separate from the boundary inquiry, that I was able to quell. It was not a riot, but it was pretty bad. I said to people, “Look, we might disagree, but we don’t even know this guy’s name or his background. He’s a lawyer, and he has chaired the meeting, but at least we’ve been able to put our case and argue the case with the Tory party”. There was a major argument about a big ward, with 20,000 electors, going in. We were able to say to people, “We’ve had our day in court”—the very phrase that has just been used. We were able to say that we had argued the toss with our political opponents and that it had been done openly and transparently. Everyone accepted that. Whether we won or lost, it probably did not materially affect the political outcome, but it was thought that it might.

There are probably far more people interested in this change than there have been in previous boundary changes, for obvious reasons. It is important to be able to report back to the interested public and say that their case has been listened to; that they have been able to put up a challenge, because there will be political arguments on this; and that they might have lost, but it was done openly and fairly. However, I do not think that it will be seen to have been done fairly. No MP will be able to do what I did and say to constituents, “You were able to argue and challenge the opposing views. We lost, but it was done in the open, and that’s the way that it is done in Britain”. That is something to be regretted.

[Lord Tyler]

My Lords, I am encouraged by the noble Lord, Lord Rooker, to make a brief intervention, because I am not a lawyer. Until he spoke, everyone was speaking with huge legal experience.

I have a practical question that your Lordships’ House needs to give some attention to. It seems to me that the danger is not successful judicial review—or any sort of legal challenge—rather, it is that all over the country the opportunity will be taken to try and delay the process, for reasons that we all understand, so that the changes will not be in place ready for the 2015 election. I have appeared at inquiries and before commissions—unpaid, of course, as I was not a lawyer. I was reminded of this by the noble Lord, Lord Rooker. Imagine the circumstances when a number of MPs who see their seats being changed do not necessarily think that they could be successful at judicial review but think it is worth trying to delay the process. There could be 400 applications for judicial review. That seems to be the danger.

I understand what the noble Lord, Lord Pannick, is saying. I understand what other lawyers are saying. My fear is simply that this process will be undermined not by successful judicial review but by attempts to try and delay the process. If that is the game that we have to foresee, then your Lordships’ House will be blamed for delaying an important process that will give equality of votes to a lot of our fellow citizens.

[Lord Pannick]

Does the noble Lord understand that no judicial review may be brought without the leave of the court? Does he understand that the courts are highly experienced in hearing speedily—by which I mean within days if necessary or within weeks—any case that is urgent, as these cases, if they were brought, would clearly be?

--- Later in debate ---

[Lord Lipsey]

My noble friend is right. There are bags of extra costs in this Bill, including £80 million well spent on the AV referendum—well spent, that is, if it gets the result that both the noble Baroness and I would like to see. I am, however, confining myself to the saving on MPs, because that is the one argument that the Minister has made this afternoon. My point is that he has used a totally bogus figure—inadvertently, I am sure. If he wants to dispute this later, he can put a letter in the Library and we can no doubt correspond about it. It is extremely worrying if a Minister has inadvertently misled—

[Lord Tyler]

I know that in the past we have assumed that the noble Lord, Lord Lipsey, has been a Member of the other place, but I can assure him from my own experience that he is mistaken if he thinks that Members of Parliament are paid by results. You do not get paid more because you have more constituents; the payment is standard. I had an electorate of 87,000 constituents at one point; that constituency is now much reduced, but my successor does not get paid less just because he has fewer constituents. The whole basis of his calculation should be taken back to his statistician friends and looked at again.

[Lord Lipsey]

I am sorry that the noble Lord’s long experience in another place has not enabled him easily to absorb points being put by people who are, no doubt, less articulate than he is.

[Lord Lipsey]

The point I hope to make clear is that I am not claiming that there will not be a saving in salary; I am claiming that the workload will remain the same but that there will be fewer people to do it. You will still need people to deal with that workload and letters will still need to be sent. Is the noble Lord saying that if his constituency had increased in size by 10 per cent, he would not have written to anyone in that 10 per cent; that their problems could go fly because he had not got the money to pay for it?

[Lord Tyler]

But the allowance—

[Lord Lipsey]

If the noble Lord will forgive me, we should not have multiple interventions on Report. The last intervention did not take the debate forward in the way that the House would desire.

[Lord Tyler]

But the allowance is not increased. The staffing allowance is not increased simply because there are more constituents.

[Lord Lipsey]

This often happens in this life. I was just coming to that. What will happen is that MPs will come back and find that they have got an increasing workload. Their staff are worked to the bone, anyway, and they will suddenly see that they have an opportunity to put in an irresistible bid for yet more of them. It will be impossible for a Government to resist that pressure from their own Members, and so the extra staff will be granted and staff allowances will go up. The probability is that this will swamp, dwarf and completely eliminate any saving made by having 50 fewer MPs.

The proof of this particular pudding will lie in the eating. I therefore ask the Leader of the House to put his calculations in the Library so that we can look at the facts when they emerge after the next general election. It would be a nice subject for the independent inquiry into the number of MPs to consider and would give it a good factual basis for saying that this huge error, justified on the grounds of cost, is a statistical howler of the utmost proportions.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, one can only speculate at present on what the Boundary Commission will propose. I know that some efforts are being made to work out what might happen. I could not accept that because we have not seen any Boundary Commission proposals. However, I emphasise to your Lordships the importance of wards, which the noble Baroness mentions in her amendment. We will debate this matter later, because the Government have responded to requests that wards should be one of the key building blocks. It is, of course, at the ward level that many local ties are reflected. The wards will be significant building blocks in the new constituencies.

[Lord Tyler]

The noble Baroness will be aware that the present constituency of Dulwich and West Norwood crosses a London borough boundary. It is therefore important to mention, for the benefit of your Lordships’ House, when considering sub-paragraphs (b) and (c) of proposed new rule 3 in the amendment that, as has been pointed out on several occasions, in Birmingham it would be impossible to fulfil the requirements of sub-paragraph (c). Under the present arrangements, the constituency boundaries of local government boundaries are certainly not protected. It is important that we live in the real world.

[Lord Wallace of Tankerness]

My Lords, my noble friend makes the point that constituencies cross London borough boundaries. I repeat that the important building blocks are the wards. They will be the units in which local ties are best expressed.

Sixteen out of 35 shire county boundaries are crossed; 31 out of 40 unitary authority boundaries are crossed; and 19 out of 32 London borough boundaries are crossed. That is a significant number. Therefore, I cannot accept that it has never been done before.

The Bill already permits the Boundary Commission to take into consideration factors that the amendment suggests: county boundaries, London borough boundaries, local ties and natural geography. I agree with the noble Baroness that these are all important and should be considered by the commissions when they make their recommendations. That is why we have included them in the Bill. However, as we have said on numerous occasions, we do not believe that these factors should outweigh the fundamental principle of equality in the weight of votes that the Bill will provide. It was the lack of hierarchy in the past that led to a divergence and a ratcheting up from the target of 613 seats. For these reasons, I urge the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Bach]

My Lords, other noble Lords have also tabled amendments in this group. They would insert a number of additional factors for Boundary Commissions to take into account when drawing up constituencies for the four parts of the United Kingdom. In particular, they would insist that regard should be had to the boundaries of English counties and London boroughs. It would also place greater emphasis on the importance of electoral wards in the boundary-drawing process.

At present, the new rules for drawing constituency boundaries proposed in the Bill are dominated by the overriding requirement for every constituency, with very few exceptions, to fall within the margins of 5 per cent either side of a new UK-wide electoral quota. Although in rule 5 of Schedule 2 under Clause 11 a number of further factors are listed which the Boundary Commissions may also take into account when drawing constituencies, these additional factors are of course subordinate to the numerical prerequisite.

Independent electoral experts and the heads of the four Boundary Commissions have all made it clear on the record that, in order to meet the proposed numerical targets, individual wards will almost certainly need to be divided. The four heads of the Boundary Commissions told the Political and Constitutional Reform Select Committee:

“The changes to the total number of constituencies, and the tighter limits on the number of electors in each constituency, will result in a complete redrawing of constituency boundaries ... The electoral parity target may require the Commissions to work with electorate data below ward level in many cases”.

That statement is utterly at odds with the words of the right honourable gentleman the Deputy Prime Minister, who told your Lordships’ Constitution Committee that,

“we must be able to use wards as the continued building blocks of constituency boundaries”.

Splitting wards in many cases will, as the Boundary Commissioners warn, result in major changes to the established pattern of political representation, and that is true of England in particular. The secretaries of the four commissions went on to tell the Select Committee:

“The electoral parity target will result in many constituencies crossing local authority boundaries. Early modelling suggests that in Scotland between 15 and 20 constituencies (of 50), and in Wales between 23 and 28 constituencies (of 30), would cross a local authority boundary ... the application of the electoral parity target is likely to result in many communities feeling that they are being divided between constituencies”.

The fracturing of wards and the crossing of county and local government boundaries would create administrative confusions that would feed into a sense of social dislocation. It would create particular problems for political parties at a structural level, especially in the case of the Conservative Party and my own party, the Labour Party, which are both organised on a constituency and ward basis. Significantly, Professor Ron Johnston, whom the Government are always praying in aid, told the Political and Constitutional Reform Select Committee that one academic study had shown that,

“when a ward was split a lot of the ward activists drifted away. They had lost their rationale to represent this place, this place no longer existed, it was in two parts and political activity declined”.

That will mean, of course, very great organisational challenges for local parties, especially with the much more frequent and disruptive boundary reviews that the Bill envisages. Our amendments would provide more solidity to the boundary review process, better balance to the process for drawing constituencies and a greater understanding about the potentially damaging knock-on effect of the rigidly mathematical framework on which the Government are currently fixated.

I hope that the Government can respond favourably to these amendments and, in particular, I hope that they are able to accept Amendment 21C, which would insert into rule 5 of Schedule 2 in Clause 11 the following statement:

“Wards shall be the building blocks for parliamentary constituencies”.

That is word for word what the Deputy Prime Minister said to your Lordships’ Constitution Committee. I wonder whether the Minister is able to concede an amendment to the Opposition that merely requires the Government to agree with what the Deputy Prime Minister said. I beg to move.

[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.