Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Wednesday 14th September 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That this House do not insist on its Amendments 1, 2 and 9, to which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendment 9C in lieu.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, during the passage of this legislation it has been evident that the Government have been prepared to consider and, indeed, to support amendments which improve the provisions of the Bill. This Bill has been refined and improved by the scrutiny to which it has been subjected both in this House and in the other place. Most notably in this House, we worked with the noble Lord, Lord Howarth, on the amendment in his name, and the noble Lord, Lord Pannick, the distinguished former Speakers, the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, to bring forward a new version of Clause 2. We also implemented the recommendation made by your Lordships’ Delegated Powers and Regulatory Reform Committee. However, we have also consistently opposed amendments which would undermine what we believe to be the fundamental purpose of the Bill.

The Bill has now been scrutinised at length and there remains one outstanding issue to resolve: whether there should be a sunset provision. This House has now twice inserted a sunset provision, while each time the other House has voted to remove it. The Motion of the noble Lord, Lord Butler of Brockwell, seeks to revitalise the amendments to achieve that, reintroduce them to the Bill and impose them on the other place for a third time. The Government agree with those in the other place who oppose the sunset clause—indeed, it has been described as a sunset and sunrise clause—and I hope that your Lordships will forgive me if I briefly repeat our objections.

The purpose of the Bill is to remove the Prime Minister’s power to ask for a general election at a time that is most politically advantageous for his or her party. As has been expressed in our debates, a number of your Lordships believe that the Bill is simply a “fix” for this coalition, but I assure the House that that is not the case. The Government believe that there should be fixed terms and that it should be for the House of Commons to decide on the timing of an early general election and not a Prime Minister. I also remind your Lordships that the 2010 manifestos of both my party and the Labour Party included a pledge to establish fixed-term Parliaments.

In his speech when visiting the Scottish Parliament in May last year, less than 72 hours after taking office, the Prime Minister made clear how significant a transfer of power this is, remarking that he was the,

“first Prime Minister in British history to give up the right unilaterally to ask the Queen for a dissolution of Parliament. This is a huge change in our system, it is a big giving up of power … I have made that change. It’s a big change and a good change”.

I know that a number of noble Lords agree with that assessment. Indeed, at Second Reading the noble Lord, Lord Hennessy of Nympsfield, remarked that this Bill is something of a collector’s item as it is an example of the Government surrendering a significant power to Parliament. My noble friend Lady Stowell also remarked that the Bill will ensure that the Government and the Opposition must face the electorate on a set date whatever way the opinion polls are pointing. In other words, the Bill creates a level playing field and will ensure that the electorate are not left waiting in limbo for a Prime Minister to decide when to call an election.

If this House were to support the Motion of the noble Lord, Lord Butler, I believe that it would be reintroducing exactly the kind of politicking that the Bill seeks to end. If each new Parliament had to resolve whether or not to serve for a fixed term—I understand that under the terms of the amendment it would be able to decide that at any time during the lifetime of a Parliament—that decision would inevitably be subject to political intrigue and made in a partisan way.

Should a future Parliament wish to move away from fixed terms, it would be free to do so by either amending or repealing the legislation—the way in which most Acts of Parliament are treated if a Government wish to overturn them. Such a constitutional change is no small matter but one that should be subject to full parliamentary scrutiny, as this Bill has been. By contrast, the sunset amendments would switch fixed terms on and off like a light switch. Parliament would default to non-fixed terms if a simple resolution failed to be tabled or if the two Houses could not agree on the matter. In our view, it is clearly not appropriate for constitutional legislation to be applied or disapplied simply as a result of passing or failing to pass, or indeed failing to table, a resolution.

I know that the members of your Lordships’ Constitution Committee had misgivings about the Bill. However, in their recent report, The Process of Constitutional Change, they emphasised the need for proper scrutiny of constitutional reforms. One of their conclusions stated:

“We stress the importance of proper parliamentary scrutiny of all bills, but we do not recommend that any new parliamentary procedures such as super-majorities should apply to significant constitutional bills”.

This legislation has been subject to considerable scrutiny in both Houses of Parliament. I rather suspect that if the Government had introduced in the original Bill the kind of provision that the noble Lord, Lord Butler, seeks to insert, the Procedure Committee might have given it pretty short shrift.

I do not believe that these sunset amendments would stand up to the scrutiny that one would expect if Parliament were to make an important constitutional change. They would take us into uncharted constitutional waters. They assume that it would be possible for the Prime Minister to regain the option of asking the monarch to dissolve Parliament. However, by failing to provide for the prerogative power to dissolve to be reinstated, we could be left in a position where neither the rules in the Bill nor the previous prerogative powers had effect. Indeed, it is not immediately clear whether it is possible for a prerogative power to be reinstated. Normally, once statute has “occupied the field” of the prerogative, the prerogative lapses and it is a long-standing judicial principle that new prerogatives cannot be created.

I know that many of your Lordships who supported the sunset amendments have genuine concerns about the Bill and about the concept of fixed-term Parliaments. I respect the views that have been expressed with great passion in a number of our debates. I accept that moving to a fixed-term Parliament is a significant change. Although I believe that this is a change for the better, as it transfers power from the Executive to Parliament, I acknowledge that it is a significant reform and that such reforms can often cause angst.

That is why the Government have brought forward an amendment in lieu of the amendments to sunset the Bill. It provides that the Prime Minister must make arrangements to set up a committee to review the operation of the legislation in 2020. Those arrangements would require the committee to consider the operation of the Act and, if appropriate, to make recommendations for its repeal or amendment. This would introduce a statutory requirement for post-legislative scrutiny, ensuring that the reservations that noble Lords have expressed could be considered again once we had real experience of the effects of the Bill. That is why we propose conducting the review in 2020, when we can ensure that the committee’s scrutiny is informed by the experience of one Parliament whose length is fixed from beginning to end.

A majority of the members of the committee would be Members of the other place, reflecting both the primacy of the other place and the fact that they would have contested elections whose timing was determined by the Bill. Nevertheless, the amendment still leaves open the possibility of Members of your Lordships’ House sitting on the committee. I believe that this will ensure that the committee’s deliberations benefit from the wealth of experience and expertise on constitutional issues that resides in this Chamber.

The amendment gives categorical reassurance that the legislation will be subjected to full post-legislative scrutiny. I hope that noble Lords will agree that this is a much better solution than the sunset and sunrise provisions, which would lead to a great deal of uncertainty with voters not knowing the length of the Parliament they were electing, which could leave the statute book in some form of disarray.

I close by reflecting briefly on the role of this Chamber, and in doing so I can do no better than to quote the noble Lord, Lord Armstrong of Ilminster. During our debate in June on the proposed reforms to your Lordships’ House the noble Lord said:

“The House of Lords can and does suggest revisions of draft legislation, but it cannot in the end enforce those revisions against the will of the House of Commons. We are a revising Chamber and a debating Chamber, and valuable in both functions, but we cannot prevail against the House of Commons if it wishes to insist. The House of Commons is sovereign in the matter of law-making”.—[Official Report, 22/6/11; col. 1257.]

Noble Lords have raised with the other place the matter of a sunset provision on two occasions. The other place has now twice sent us a clear message that it does not wish for a sunset provision, both times by a substantial majority. If your Lordships again insist on including sunset clauses, we would again be challenging the clearly expressed will of the elected Chamber. We believe that it would be wrong to ask the elected House to reconsider this measure for a third time, yet in this amendment in lieu the other place is providing a compromise that will ensure that the Bill is subject to post-legislative scrutiny, but without the undesirable consequences and uncertainty that come with sunset amendments.

I therefore urge noble Lords to accept the compromise put forward by the other place in this amendment and not to insist on the sunset amendments. I beg to move.

--- Later in debate ---

[Lord Bach]

I disagree entirely with the noble Lord’s point. But I will ask why in that case he thinks that the Government that he supports did not support the suggestion that the noble Lords, Lord Butler and Lord Pannick, made to the Government during the Recess. What was wrong with it, as far as the Government were concerned?

To sum up, there is absolutely nothing unconstitutional about this proposal. Frankly, there was much more unconstitutionality in the way this Bill was dreamed up by the two parties in the coalition as a way of protecting their own party interests—and if one wants proof of that, one only has to look at page 98 of the right honourable David Laws’ book 22 Days in May. For all these reasons, the House should not take any lessons from this Government on constitutional propriety. We will be supporting the amendment.

[Lord Wallace of Tankerness]

My Lords, anyone who had never known any of the history of this, listening to the remarks of the noble Lord, Lord Bach, would probably be astounded to learn that the Labour Party supported the idea of fixed-term Parliaments in its manifesto, as far back as 1992—

[Lord Corbett of Castle Vale]

We lost!

[Lord Wallace of Tankerness]

The argument that, because Labour lost, that devalues the principle is not one I have fully understood. The noble Lord seemed to suggest that the Prime Minister had completely set his face against fixed-term Parliaments. In a speech entitled “Fixing Broken Politics” which my right honourable friend the then Leader of the Opposition made on Tuesday 26 May 2009, he said:

“But I believe the arguments for fixed-term Parliaments are strengthening too. Because if we want Parliament to be a real engine of accountability, we need to show that it is not just the creature of the executive. That's why a Conservative Government will seriously consider the option of fixed-term Parliaments when there is a majority government”.

So I think it is wrong to say that this is something that the Prime Minister had totally set his face against in opposition. There was a commitment in the Conservative manifesto to look at areas of the exercise of the royal prerogative.

Can I start by picking up the points which my noble friend Lord Alderdice made? I think he put his finger on it when he said that this is not disrespect but disagreement. It is a genuine disagreement, and I hope that the noble Lord, Lord Pannick, would agree that when Mr Mark Harper and I met him it was quite clear that there was a gulf between us. Two propositions were put to us, which would have addressed what we had identified as some of the technical—indeed, more than technical—problems of the amendment, but did not actually address what we believed to be a fundamental problem with the amendment, which is that it undermines the actual core purpose of the Bill. This Bill is the Fixed-term Parliaments Bill, in the plural. It is not a Bill to have a fixed-term Parliament for this Parliament, the one elected in May 2010, but rather one to have fixed-term Parliaments into the future, all this of course being subject to the right of any Parliament to repeal the legislation of a predecessor Parliament. That is why there is a fundamental difference.

Therefore it is not disrespect, and I can assure your Lordships that I would not wish to be disrespectful to genuinely held views. I think some people do not believe that having a fixed-term Parliament is right, but they will allow us to make some fix for this Parliament. In fact I think that what happens with the amendment is that it leaves us in the position of having the potential of a fix for every future Parliament. It is not putting this on a permanent basis; it is an amendment which could allow the powers to lapse, and then be revived again in a subsequent Parliament after 2020, or whenever—if the powers had lapsed, it might not necessarily last the full five years. The incoming Parliament following that election could revive the powers, or again, after a subsequent election, it could let them lapse. We do not believe that that is a particularly good way of legislating with regard to the constitution. It is literally switching the light on and switching the light off again.

That is why—if I pick up the point made by the noble Lord, Lord Hennessy—I have a concern about the nature of the royal prerogative. The existence of the royal prerogative would then appear to be dependent upon the resolutions of each House not being carried. It does not seem very desirable that the prerogative may sometimes not exist, and then sometimes be revived. That may not be the drafter’s intention, but it is not clear what he has achieved in the drafting. In particular, the presumption of Section 16 of the Interpretation Act 1978 is that where an enactment of temporary duration—which the provisions abrogating the dissolution of prerogative appear to be—expires, it does not ordinarily revive anything not in force at the time of the expiry. I think there is a genuine concern there. In matters so important as the royal prerogative, the idea that it can be revived, then allowed to lapse and then revived again is not particularly satisfactory.

I shall now pick up the important point made by the noble Lord, Lord Elystan-Morgan, about the Parliament Act. It is something we have always acknowledged and recognised. The reason why the Parliament Acts would not apply in this case is nothing to do with the concept of fixed-term Parliaments. As he rightly pointed out, it is a provision in the Bill: in response to this House we deleted the part that would allow the election to be brought forward by two months, but there was still a provision there to extend it by two months. That takes it over the five years—the arguments for that were debated well at the time—as happened also in 2001 with the outbreak of foot and mouth. It is also important to point out that your Lordships’ Delegated Powers Committee actually said that it thought it was a proper power, but recommended that we should have a Written Statement from the Prime Minister as to why the power was being exercised—a recommendation which we accepted. I do not think that is an issue about which there is any real dispute. It goes to the heart of whether or not we should have fixed-term Parliaments.

That takes me to the core issue; and, I say again, we are not being disrespectful. When one is proposing a review that will not take place until 2020, it is very easy to talk about long grass, time capsules or scrawny babies. However, it would be even more disrespectful—frankly ludicrous—to ask a committee to examine a fixed-term Parliament when there had not been one. I take the strictures and advice that I got from the noble Lord, Lord Grocott, who said he was glad that I had not advanced the argument about the planning of government business. However, until this legislation is passed, this is not a fixed-term Parliament. Therefore, it is not reasonable to suggest that the example of this Parliament could ever be described as a proper, normal fixed-term Parliament. Many of us have advanced arguments during the debates as to why we think there ought to be a fixed-term Parliament; and, indeed, why they ought to be five years rather than four—an issue which no doubt a post-legislative review could finalise. We will only know whether the case for the beneficial effects has been made out when we have actually had the experience of one fixed-term Parliament elected as a fixed-term Parliament and seeing through its term; or, for that matter, had an early election because of some event that has triggered the mechanism in Clause 2.

I do not consider that an insult. If you are going to do proper pre-legislative scrutiny, make sure that you are scrutinising something that has actually happened—that you have actually got a piece of material, or evidence, on which you can actually base informed scrutiny.

[Baroness Boothroyd]

Is the Minister telling us that we do not scrutinise Bills before they come into operation? Is he suggesting that we have no pre-scrutiny now?

[Lord Wallace of Tankerness]

My Lords, I look upon it as post-legislative scrutiny. You cannot scrutinise what you have legislated for until it has happened. We will not have had a fixed-term Parliament that has run its full course until 2020. It is as simple as that.

[Lord Bach]

Once this Bill becomes an Act of Parliament, it will be a fixed-term Parliament.

--- Later in debate ---

[Baroness Jay of Paddington]

I ask the noble Lord, through the Minister, whether it is therefore the Government’s position that all the arguments and discussions we had about no-confidence Motions—as they related historically and as they will, presumably, be affected under the fixed-term Parliament legislation—will not apply to this Parliament before 2015.

[Lord Wallace of Tankerness]

That is not the case, as we know. I was making the point that this Parliament was not elected as a fixed-term Parliament. I am sure if the noble Baroness thinks about it, she will appreciate this. The arguments, I recall, when we debated the benefits of four or five years and whether it would affect the legislative plan of Governments coming into office, were that this would not happen with this Parliament, as that was not the basis on which it was elected. I am saying that you really need the experience of a full fixed-term Parliament to see whether the claims that have been made for it have been borne out. Therefore there is no way that is disrespectful—it is the only time you can have a meaningful post-legislative review, unless you are simply going to have an academic one rather than one based properly on experience.

I say again that I believe that this House has made an important contribution to this Bill and that its shape—in particular the trigger mechanisms for an early election—is vastly better because of the debates that we had. This Government are prepared to listen and have shown their willingness to do so. However, we cannot agree to something that we believe actually goes to the heart of the Bill and undermines one of its central purposes. For that reason, we cannot agree with the Motion as proposed, but we believe that it is proper and right to have a proper post-legislative review; one which, if the fixed-term Parliaments take their normal course, would have to be started within just over one month after the election or no later than six months after that. There is a set time limit under which the Prime Minister would have to make the necessary arrangements. On that basis, I commend that amendment in lieu to the House.

[Lord Butler of Brockwell]

I thank those who have taken part in this debate. I particularly say to the noble Lord, Lord Alderdice, that of course I accept that this is a disagreement—a disagreement on a very important constitutional matter, on which, I think, everybody agrees there has not been the normal preparation for a major change on a constitutional matter. That is the argument for allowing a sunrise clause, which will allow the next Parliament to take a view, in the light of further deliberation, consideration and consultation, and, indeed, of experience. Those who read the debate in the House of Commons last week will know that there are views on both sides of that House on this matter. As has been said, both on the government and the opposition side, there is concern about, and opposition to, the Bill as it stands.

The noble Lord, Lord Elystan-Morgan, said, in his very eloquent way, that the House of Lords never has to give way to this Bill, strictly speaking, because it is not covered by the Parliament Act. I sincerely hope that it does not come to that but, in the House of Commons debate last week, it was a Conservative Member who—making the point that the Bill is not covered by the Parliament Act—said that the House of Lords can hold out indefinitely if necessary. I am not arguing for that at all but would like to have the sort of serious discussions with the Government on a serious constitutional matter that so far—I am sorry to say—the Government have not been prepared to have. In the House of Commons last week, the Labour spokesman said of the Member who pointed to the effect of the Parliament Act:

“The hon. Gentleman is absolutely right: your lordships, stand firm”.—[Official Report, Commons, 8/9/11; col. 592.]

I very much hope that the House of Lords tonight will stand firm, with a view to enabling meaningful discussions with the Government on this important constitutional matter. I beg to test the opinion of the House.