Fixed-term Parliaments Bill

Debate between Lord Tyler and Lord Armstrong of Ilminster

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.