Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011

Lord Wallace of Tankerness Excerpts

Tuesday 12th July 2011 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011.

Relevant documents: 24th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Wallace of Tankerness Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Triesman]

My Lords, I am sure that on the day that proposition is in front of the House, we will have an energetic debate and probably get to the bottom of it at that time. I am very tempted to respond to the noble Lord, Lord Stoddart, who asked what he should do. It would probably be ungracious to try to answer that question, but I suppose that sitting on his hands or repairing to one of the bars are among the available options. However, he illustrated the fact that there is a great deal of commonality right across the House on this issue.

I am among those who do not like declaratory clauses—I am wholly with my noble friend Lord Richard and the noble Lord, Lord Kerr, on this. I cannot understand what such clauses do other than call into question the fundamentals of our law and the statements that have been made about our law by the House of Lords and others. I cannot see the point. However, I accept that it is a political reality that there is a desire to see this kind of declaration in the Bill. That is why we support the amendment. If there is to be a declaration, it might as well be accurate. If we are going to declare things, let us be precise and accurate. The whole debate boils down to a simple proposition about what we learnt was Sir John Fiennes’s excellent writing of the original legislation, regarding which the noble and learned Lord, Lord Howe, was far too modest about his role.

That Act and Section 3 in particular are the head lease. There is nothing in any other Act that does not flow from it. The more we try to obscure that or suggest that there are other things that may flow from it, the less likely it is that anyone will understand that the declaration is accurate in any sense. This is a technical, not a party political, matter. We have had fantastically good advice. What a benefit it has been to all of us. Let us carry the amendment, which I hope will be pressed, and have a declaration that we can at least say is accurate.

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

My Lords, I thank my noble and learned friend Lord Mackay of Clashfern for moving the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. Indeed, I thank all noble Lords who have taken part in an important debate, which has flagged up the importance of the basis on which community law has effect in the legal systems of the United Kingdom. My noble and learned friend said that there was nothing in principle that divides us on this matter. As the noble Lord, Lord Triesman, said, it is a technical matter that to some extent relates to statutory interpretation. I hope that everything that has been said previously in Committee, and what I will say today, will reassure the noble Lord, Lord Kerr, that there is neither sinister intention, nor are any dog whistles being blown. The purpose is to assert the position that almost everyone who has contributed to the debate has made clear—European Union law has effect in the United Kingdom by virtue of statute passed by Parliament.

I join the tributes paid to my noble and learned friend Lord Howe of Aberavon, who, we fully understand, has gone to a memorial service. My noble friend Lord Lester of Herne Hill quoted Lord Denning in the case of Macarthys Ltd v Smith, in which he indicated that,

“Community law is part of our law by our own statute”.

Dealing with the question of where Parliament stood on this, in the passage from the debates on the 1972 legislation quoted by the Constitution Committee in its report, my noble and learned friend Lord Howe of Aberavon said:

“the position is that the ultimate supremacy of Parliament will not be affected, and it will not be affected because it cannot be affected”.—[Official Report, Commons, 5/7/72; col. 627.]

That is something to which we as a Government would certainly subscribe.

The key reason for wanting this declaration is that in spite of that, and in spite of the near unanimity in this Chamber that that is the position, we are aware that others have advanced arguments in courts or have written articles that have cast some doubt on that assertion. I know that there are always reservations about what are essentially declaratory clauses in Bills, but this one is important. As your Lordships’ Constitution Committee indicated,

“Clause 18 is self-evident: it restates, but does not change, the law”.

In response to one of the points made by the noble Lord, Lord Pannick, I should say that including such a declaration in no way raises doubts about other issues of parliamentary sovereignty. The Constitution Committee said:

“We are confident that if parliamentary sovereignty were to be questioned in any other context, the existence of clause 18 would not prevent the courts from upholding the well understood and orthodox position”.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I remind the Minister of the argument made by my noble friend Lord Pannick. If I introduced him to a lady and said that she was my wife because I married her, would I be required to say, “and because I have not married anybody else”?

[Lord Wallace of Tankerness]

No, my Lords, but one should consider the context. This new clause was proposed in its original form in the context of trying to lay to rest any contrary suggestion that there are other means—means which I do not think anyone in this debate has accepted; nevertheless, they are out there and are run as arguments—by which European Union law can be imported into the legal systems of the United Kingdom. That is why we use “only”.

[Lord Lester of Herne Hill]

I hope that my noble and learned friend takes this question in the spirit in which I ask it. Is there not a danger that his approach would be in accordance with Lord Wilberforce’s warning about the “austerity of tabulated legalism”?

[Lord Wallace of Tankerness]

That is the sort of question that one wants notice of and where the answer might in any case be misinterpreted. I think that I made it clear, and that it has been generally recognised in these debates, that this is against a background of suggestions made not in this Chamber—I think the position is perfectly well understood here—but elsewhere that there could be other channels via which European Union law could be imported into this country. We want to make it clear—I think there is near unanimity in the House—that it is by Acts of Queen and Parliament that the European Union law has effect.

The main difference between us is the view expressed in the amendment that the European Communities Act 1972 is the sole legislative vehicle for doing this. Our concern is that there are other Acts of the United Kingdom Parliament which make direct reference to European Union law, particularly the one on directors’ disqualification, which does so without reference to any other form of the 1972 legislation, even through the Interpretation Act. As my noble friend Lord Flight said, it is belt and braces. In a situation such as this we believe that the belt and braces are required. It is a fine point—not one of principle, but it is one of statutory interpretation. We believe that to list would not be neat because of the danger of leaving one out, but we need to make it very clear that European law becomes part of our United Kingdom legal system through an Act of Parliament. That is the way it happens and by no other way. To limit it to one Act, however fundamentally important that Act, runs the risk of leaving others out which are already on our statute book. For that reason, I invite my noble and learned friend to withdraw the amendment.

[Lord Mackay of Clashfern]

My Lords, there is not much between us. On the other hand, it is important to have clarity. If there are other Acts which are required in relation to this situation, the option is to mention them. The words “an Act” do not give any precision whatever. Therefore, the use of the phrase,

“of the European Communities Act 1972”,

is much clearer.

I think I am right in saying that the statutes, which are referred to as being other statutes—part of “an Act”—use the words defined in the European Communities Act; for example, the Community treaties. Those words are specified in the 1972 Act. All those Acts, in their dealing with European Community law, would be understood as having the meaning assigned to these phrases in the 1972 Act. If the 1972 Act were to be repealed, those phrases would be repealed with it because they would be deprived of the meaning which they had when the Act was enacted.

My noble friend Lord Waddington asked about “only”. If he wants to improve our amendment, it is open to him to propose an amendment to that effect. Of course, that is still possible. If the amendment is passed, he could improve it at Third Reading because I am sure that clarification of an amendment passed on Report would be possible at Third Reading. I do not think it is required, but if he thinks it would improve it, let us see.

This amendment specifies the Act on which we rely. My noble friend Lord Flight talks about belt and braces—I suppose I am getting to the stage when they may be an important matter. If I am right, all the European legislation which is incorporated into our law has been done by virtue of the European Communities Act and the definitions provided in that Act.

[Lord Mackay of Clashfern]

The possibility is that the 1972 Act is on the statute book when these later Acts were passed. Therefore, phrases like “the treaties” and “the community treaties” would be interpreted in the light of the 1972 Act. If the 1972 Act were repealed, these definitions would disappear altogether and there would be no phrase left of that kind because these phrases are all given the meaning of the 1972 Act. If you look at it this way, if a phrase is interpreted as being what it says in the 1972 Act and the 1972 Act is repealed, that phrase has no meaning at all thereafter, so this is really quite an important issue.

[Lord Wallace of Tankerness]

Will my noble and learned friend respond to my point about the Company Directors Disqualification Act 1986, which refers in Section 9A specifically to:

“Article 81 of the Treaty establishing the European Community (prohibition on agreements, etc, preventing restricting or distorting competition)”,

and, in the following subsection, to Article 82 of that treaty, where it is not by reference to treaties in the 1972 Act but by specific reference to a specific treaty? If the 1972 Act were repealed would these words still not stand?

[Lord Mackay of Clashfern]

I suggest that the European Community treaty of itself would not be meaningful in our statutes until it was given effect by the 1972 Act; and when the 1972 Act ceases to operate, that goes along with it. That is the fundamental position. As far as trying to help the noble Lord, Lord Stoddart of Swindon, is concerned, I am not sure that it is my business to do that. The best advice I can give him, of course, is to support this amendment, and I think it right that the opinion of the House should be taken.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 24th May 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the Bill do now pass.

[Lord Cormack]

My Lords, I do not wish to detain the House long, because the next business before the House—

--- Later in debate ---

[Lord Bach]

Following the very brave intervention by the noble Lord, Lord Cormack, I follow him briefly to thank the noble and learned Lord, Lord Wallace of Tankerness, who has conducted his part in this Bill with great skill and understanding. I speak on behalf of my noble and learned friend Lord Falconer of Thoroton, who led for the Opposition on this Bill, in saying that we hold him in the highest respect for the way in which he has dealt with this legislation. It does not stop us thinking that this is completely the wrong way of passing constitutional change in this country, and I believe that if there had been a free vote in this House—here I am looking particularly at Conservative Peers—there certainly would have been four years rather than five. My last hope is the hope that the noble Lord, Lord Cormack, expressed, which is that the Bill is accepted by the Commons as it leaves here today.

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

My Lords, I thank my noble friend Lord Cormack and the noble Lord, Lord Bach, for their kind words, which are appreciated. This is an important Bill. It is an important constitutional development. We made it clear at the time that we were not able to support the amendments that gave rise to a sunrise and possibly also a sunset clause. No doubt the other place will consider that constitutional novelty. That apart, this Chamber has engaged in its role of proper scrutiny, improvement and revision, and therefore, subject to what I said about one particular amendment, I think this Bill goes to another place in a better shape than that in which it came here. I thank all noble Lords on all sides of the House who have contributed to that. It has been work well done. Once again, I encourage noble Lords to pass the Bill.

Bill passed and returned to the Commons with amendments.

Privacy Injunctions

Lord Wallace of Tankerness Excerpts

Monday 23rd May 2011 Lords Chamber

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

My Lords, I wish to repeat as a Statement an Answer given to an Urgent Question in the other place by my right honourable and learned friend the Attorney-General. The Statement is as follows.

“I am grateful for the opportunity to respond to my right honourable friend on an issue which I know is of considerable concern in this House as well as to the public and the media. The Government believe that freedom of speech is a cornerstone of our democracy, and that it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible. This includes those occasions when freedom of speech is exercised provocatively, as it is supposed to be in a free country. Plainly, however, there are also occasions when an individual is entitled to have their privacy protected. There is a balance to be struck and this is reflected in our existing legal framework. The Government recognise the importance of finding the correct balance between individual rights to privacy on the one hand and rights to freedom of expression and transparency of official information on the other. We also recognise that there are widely differing views on what that balance should be. It is in no one’s interest to rush to judgment on this.

The complexity of the issue and the lack of consensus are some of the reasons why the report of the Master of the Rolls committee on the procedural aspects of super-injunctions and anonymity injunctions published last Friday is to be welcomed, and why we will want to take on board its carefully thought-through recommendations. It reaffirms that open justice is a fundamental constitutional principle, and that exceptions to this are permissible only to the extent that they are strictly necessary in the interests of justice. While such decisions will necessarily be made in each particular case dependent on the facts of that case, it does offer a likelihood of some greater clarity.

The report indicates that when some degree of secrecy is necessary, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment. It also emphasises that super-injunctions—where the fact that there is an injunction has to be kept secret as well as the substantive issues—are now being granted for only very short periods where secrecy is necessary to ensure that the whole point of the order is not destroyed. We hope that its analysis and recommendations should help to allay concerns that super-injunctions were being granted far too readily and about their potential open-endedness.

Of course, a range of wider issues has been raised by the events of the past few months and especially the past weekend. We take seriously the need to ensure that we have the correct balance between privacy and freedom of expression. Today the Prime Minister is writing to the chair of both the Liaison and Justice Committees and my right honourable friend the chair of the Culture, Media and Sport Committee recommending that a Joint Committee be established to consider how current arrangements can be improved. Such a committee will be able to use representation of both Houses and the considerable expertise that Select Committees have to examine whether the current arrangements are working and to consider whether we might make any changes that would make things work better.

In the mean time, it is right to emphasise that just as any change to the law is for Parliament, the interpretation of the law is a responsibility placed on the judiciary. Legal mechanisms exist to review individual decisions that may be mistaken. If we believe in the rule of law, it is our duty as parliamentarians to uphold these principles”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his response and for his general welcome both to the Statement of my right honourable and learned friend the Attorney-General and to the establishment of a Joint Committee which will obviously look at these matters in much greater detail.

My right honourable friend the Secretary of State for Culture, Media and Sport indicated last week that a privacy law would not be ruled out. However, having set up a Joint Committee, that is very much the sort of issue that we would expect it to consider. The noble and learned Lord is right to say that the European Convention on Human Rights will influence and be material to the shaping of any future law should there be such a change. It is important to recognise that that was not overlooked when the 1998 Act was going through Parliament. As he will remember, having been a law officer at the time, there was quite a focus on the interplay between Articles 8 and 10. Indeed, Section 12 of the Human Rights Act was introduced to encourage and enjoin the judiciary, when considering such matters, to have proper regard to the importance of freedom of expression. Each set of circumstances and each case will be different, but clearly one can only expect and believe that the judges have been carrying out their duties in accordance with their judicial oath. As I indicated in the final paragraph of the Statement, the interpretation of the law is a responsibility placed on the judiciary and we would expect parliamentarians to uphold these principles.

Sub judice conventions exist in both Houses of Parliament and I am sure that anyone who seeks to raise such issues will take care in doing so. Perhaps it would be best to refer to the Joint Committee on Parliamentary Privilege, which the Master of the Rolls also quotes in his report. This Joint Committee, reporting in 1999, said that the sub judice rules were needed,

“to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matter it pleases”.

In his press conference last Friday, the Lord Chief Justice indicated that he entirely agreed with that, and I do as well. We would perhaps all do well to reflect on those words from a previous Joint Committee on Parliamentary Privilege.

[Lord Mackay of Clashfern]

My Lords, I very much welcome this Statement. I also welcome what the noble and learned Lord, Lord Falconer of Thoroton, said in response. However, is it clear whether the Joint Committee will have a remit to examine the practice of Parliament in relation to these matters? Parliament has long had a sub judice rule as a way of protecting the work which Parliament has assigned to the courts from undue interference by Parliament itself in exercising its undoubted right to discuss anything. It is extremely important that that aspect of parliamentary practice should be examined in the light of the present situation. As the quotation from the report of the Master of the Rolls shows, the sub judice rule was very much in the forefront.

This matter goes somewhat beyond the sub judice rule in this sense. The sub judice rule was put in place to protect the decisions which the judges had to make from prior discussion in Parliament, which might prejudice or pre-empt that decision, whereas the feature that we are dealing with at the moment seems to be an attempt to negate the effect of a judgment by using parliamentary privilege for that purpose. The situation is that a judge has decided that the person in question has a legal right to privacy on the matter. The question is whether it is appropriate for parliamentary privilege to be used to damage the effectiveness of that right and, if so, under what conditions, and subject to what rules. This matter requires quite detailed consideration. I do not believe for a minute that the judges were seeking to gag Parliament in any sense. They were seeking to ensure that their position in relation to Parliament was understood.

[Lord Wallace of Tankerness]

My Lords, my noble and learned friend raises some important—indeed, fundamental—points. I do not think that anyone is suggesting that the importance of Article 9 is in any way being challenged, but he makes some important observations. As for the terms of reference of the Joint Committee which is to be established, it has been indicated that the Justice Secretary and the Culture Secretary are to liaise with the chairs of the two committees in the other place. Obviously they will bear in mind the importance of this issue in Parliament, but it is also important to point out that the Government are already committed to bringing forward a draft Bill on parliamentary privilege. Given that, as I think my noble and learned friend indicated, there are issues that go much wider than these particular cases, this may well provide an opportunity for those important issues to be gone into in much greater detail—indeed, in the detail which they undoubtedly deserve.

[Baroness Garden of Frognal]

May I remind noble Lords that interventions should be brief in this session?

[Lord Lloyd of Berwick]

My Lords, I, too, greatly welcome the Statement and the report on which it is based. In recent years, one problem has been that a belief has got about that judges have a wide discretion on whether to grant a super-injunction. The report makes it absolutely clear, in paragraph 1.33, as recent cases had already made it clear, that there is no such discretion. The principle of open justice prevails unless it is absolutely and strictly necessary to depart from that principle in order to do justice in a particular case. That has long been the position and it is very good that it should have been reasserted in this Statement and report. They are obliged to act in accordance with the law as stated; they have no discretion.

[Lord Wallace of Tankerness]

The noble and learned Lord is right that they must apply the law as it is. It is important, as the report indicates, that openness is a cornerstone of our democracy and with our judicial proceedings and system. If that is departed from, it can be only in the most exceptional circumstances. The report by the Master of the Rolls and his committee also raises some issues of how that commitment to openness might well be enhanced. Clearly, these matters will, in part, form the discussion of the Joint Committee that is to be set up.

[Lord Soley]

I put forward a Bill some 20 years ago on the freedom and responsibility of the press. I think that the Minister will remember the debate. At this stage, I strongly support the Joint Committee but it is a mistake to think that the privacy issue is about just these sexual cases that come up. An awful lot of cases referred then, and do now, to ordinary folk who get caught up in tragic incidents in their lives. Often, it is a death in the family or things of that nature. That is one factor that privacy needs to address. It is not about just the big sexual cases that the press like to report for money; they also arise in those personal life tragedies. I am in favour of the courts deciding the balance between Articles 8 and 10 of the convention, but we will have to look at this in the wider context not just of sexual issues but of the invasion of privacy of people who have suffered tragedies.

--- Later in debate ---

[Lord Wallace of Tankerness]

I certainly hear what the noble Lord says and, as he has indicated, the terms of reference are still to be agreed. Without any commitment on whether it might be included, I will certainly draw his comments and the Bill that he previously introduced to the attention of my right honourable friends. It also might be fair to point out that for many years now—long before the incorporation of the European Convention on Human Rights into our domestic legislation—there have been quite strict rules in place on the naming of children in court proceedings. It is fair to say that, by and large, those have very much been observed.

[Lord Thomas of Gresford]

We on these Benches welcome the report, which recognises that where secrecy is ordered it should only be to the extent strictly necessary to achieve the interests of justice. We also welcome the provision of notice to the press of an application of this type and the requirement of an openly available judgment. Does my learned friend—my noble friend—

[Lord Thomas of Gresford]

Does my noble and learned friend accept that Article 10 of the European Convention on Human Rights, which provides for the right to freedom of expression, is qualified? It is that the exercise of that freedom,

“carries with it duties and responsibilities”,

and,

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.

It specifically refers to,

“the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

Would he agree with me that judicial authority must be maintained? As the noble and learned Lord, Lord Falconer, said, the court sees the evidence and comes to a balanced judgment, and any attempt to interfere with that, even by the use of parliamentary privilege, simply because a politician cannot agree with the judgment when he does not know the facts, is to be deplored?

[Lord Wallace of Tankerness]

My Lords, my noble friend is right to quote at length Article 10. As I said earlier to the noble and learned Lord, Lord Falconer of Thoroton, these issues and the tensions between Articles 8 and 10 were considered at considerable length during the passage of the Human Rights Bill and express provision was made in Section 12 of that Act to give further guidance to the judiciary to establish that balance.

The other point that I would make, in substantially agreeing with my noble friend, is that in my experience, in politics and law, unless you have been involved in the case you usually do not know all the facts of the case. Very often that is in terms of sentencing; it is only the judge and the people involved in the case who know all the facts and on the basis of those facts come to the judgment that they make. That is a duty and that is what they do.

[Lord Clinton-Davis]

Would the Minister underline for the benefit of the Joint Committee that the Law Society and the Bar Council have very useful views to communicate? They are able through their membership to speak authoritatively about this matter. Many of the lawyers who are skilled in this field have a useful contribution to make.

[Lord Wallace of Tankerness]

I would certainly agree with the noble Lord. No doubt when the Joint Committee comes to take evidence, the professional bodies, the Law Society and Bar Council, will be bodies that it will want to seek evidence from—as well, no doubt, as from individuals who have much experience to bring to bear on these important matters.

[Lord Elystan-Morgan]

Does the Minister accept that the Bill of Rights and the Parliamentary Papers Act 1840 were passed in ages very different from our own and dealt with circumstances very different from those now relevant? Does he accept that the effect of those Acts very often is to make it possible for a statement to be made in Parliament that would be utterly contumelious of a decision of the courts were it not for the particular privilege thereby conferred? Will he encourage those who sit on the Joint Committee to be bold and imaginative in these circumstances and to see to it that the law of the land is not flouted, save in those rare, almost unique, circumstances where parliamentary privilege should be allowed to cloak such an action?

[Lord Wallace of Tankerness]

My Lords, as I have already made clear, it is almost self-evident that the Bill of Rights 1689 and the Parliamentary Papers Act 1840 were promulgated in times very different from today. Notwithstanding that, there are clearly some important principles enshrined in them. Indeed, on numerous occasions, even in recent times, we in this House have sought to emphasise their importance and how much we cherish them. In terms of the Joint Committee and in the opportunity to look much more broadly at parliamentary privilege, that will be an opportunity to consider in detail some of these issues. The Master of the Rolls’ report published last week has a chapter devoted to parliamentary privilege and identifies some of the tensions that are there. All of those elected to the other House and Members of this House take parliamentary privilege very seriously, and if we wish to say anything on matters that are sub judice it should be done only with the greatest of forethought.

[Baroness Kennedy of The Shaws]

My Lords, I, too, welcome the establishment of the Joint Committee. What I really want to ask is whether the new media will be part of the remit, and whether there are ways in which one can restrain publication there. I have a great reluctance in saying that I do not think it is possible; I think we have crossed a Rubicon, and that new technology now means that it is now very hard to restrain publication of matters that invade privacy. Although our courts seek to influence courts in California to have disclosure of names by twitter, the culture in the United States is very different and it is very unlikely that there will be disclosure by courts there. In my experience, even getting them to disclose matters relating to national security issues is difficult enough. The American courts are very protective of freedom of the press. Will the remit of the Joint Committee look at the new media—twitter and the like?

[Lord Wallace of Tankerness]

My Lords, the noble Baroness raises an obvious but very important issue on the new media, whose relevance has been very obvious to these events. I have to confess that I do not tweet. I may have been one of the last people in the kingdom to find out the subject matter of some of the tweets over the weekend. It would be an issue that the Joint Committee would want to look at, because it is very pertinent to the kind of issues that we are talking about. But just because it makes it far more difficult to police and enforce, that does not make it right to breech an express order of the court. Obviously, if there are means to identify those who did it, the appropriate procedures should be followed.

[Lord Fellowes of West Stafford]

Does my noble and learned friend accept that in a settled society, the strength of its laws derives from the support of the majority the population? The black code or the death sentence were abolished not only because judges and Parliament abolished them but because the public ceased to support them. Is there not a danger here that we are on the edge, whatever the legal minutiae, of developing laws that the public are not in sympathy with?

[Lord Wallace of Tankerness]

That is the challenge to all parliamentarians—to reflect the views of the people. As my right honourable friend the Attorney-General indicated in his Statement, which I read, there are very clearly tensions in the balance between privacy and freedom of expression, and no doubt these will be issues for the Joint Committee to consider, bearing in mind public views on this. As he also said, no matter where that judgment comes down, a number of people will still think that it has come down in the wrong place. But as parliamentarians we have to be alert and sensitive to all these issues.

[Lord Wright of Richmond]

May I be allowed very briefly to remind the House of one respect in which the events of last weekend were duplicated some 30 years ago in an attempt, in which I was peripherally involved, to get an injunction on the book by my namesake, Peter Wright, called Spycatcher? An injunction was obtained, but it was overlooked that it did not apply to Scotland, and by the time an interdict had been sought there Spycatcher had been widely described in the Glasgow Herald. Some 30,000 copies were already on the streets.

[Lord Wallace of Tankerness]

It will not surprise the noble Lord that my department brought that case to my attention this morning.

[Lord Davies of Stamford]

My Lords, I strongly support the suggestion made by the noble and learned Lord, Lord Mackay, that the proposed Joint Committee should also examine the parallel dilemma—and it is a very difficult one—of the balance to be struck between parliamentary privilege and the need for Parliament to respect the separation of powers and not to undermine the administration of justice. Surely if the Government propose to bring forward a Bill on parliamentary privilege, it is particularly important that this Joint Committee, which is examining such a closely related matter, should have an opportunity to consider that as well, and the Government should have an opportunity to hear the conclusions of that committee before it frames its proposed legislation.

[Lord Wallace of Tankerness]

As I indicated, it is a draft Bill, so there will be opportunity to consider issues on parliamentary privilege that go wider than the important issues raised here. The terms of reference of the Joint Committee are not yet established, and it would be wrong of me to pre-empt that, but I will certainly draw to the attention of my right honourable friends the comments made in the Chamber today on the importance of parliamentary privilege as it pertains to this particular issue, and it may well be that in these circumstances the committee may want to reflect on that and have its own input into any future draft Bill.

[Lord Inglewood]

In his opening remarks, my noble and learned friend referred to consultation with the other place about the Joint Committee. Will he confirm that there will be consultation with this place, the other part of Parliament?

I echo the remarks of the noble Baroness, Lady Kennedy, about the relevance of what is going on on the internet. Cyberspace, which is outside the jurisdiction, is very close to the jurisdiction and most citizens can gain access to it. It has a huge bearing on the law, bearing in mind that this has arisen in the past 20 or so years.

[Lord Wallace of Tankerness]

My Lords, I endorse those last comments about the importance of the internet and electronic media. That issue will have to be considered. Regarding the establishment of the committee, the indication was that the Justice Secretary and the Culture Secretary would be liaising with the chairs of the Liaison Committee and the Culture, Media and Sport Committee. As Minister of State at the Ministry of Justice, my noble friend Lord McNally, is present, and I am sure that that will ensure that the views of the terms of reference reflected in our exchanges here will be fed into that. I think that it was clear that the committee is intended to use the representation of both Houses and the expertise that exists in both Houses.

[Lord Stoneham of Droxford]

My Lords, I welcome the report in the interests of open justice. The issue that I raised last Thursday was part of a longstanding commitment by my noble friend Lord Oakeshott to ensure that the Financial Services Authority publishes a full report on the reasons for the collapse of the Royal Bank of Scotland. I believe that the FSA has now agreed to include the matter in its inquiry. I therefore ask my noble friend how the courts are going to ensure that public interest is protected and considered when injunctions are being requested. How will statutory bodies such as the Financial Services Authority be able to investigate when corporate governance procedures may be being breached but the information about that is restricted?

[Lord Wallace of Tankerness]

My Lords, I am sure that my noble friend would agree that it would not be proper for me to comment on any one particular case. If there is an issue of more general importance, I am sure that it will be possible for these concerns to be fed into the work of the Joint Committee.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Dobbs]

Yes, indeed. I shall try to deal with that issue in a second.

Far from the Prime Minister giving up his powers to Parliament and the people in these provisions, he would be handing them over to party bosses operating in back rooms. I have been there and I have been one of them, and I doubt if things would become any more fragrant simply because those back rooms are no longer filled with smoke. Let us go back to something like 1979. Imagine the haggling: “No, I won’t vote for you, Jim, because if I help defeat you on this no-confidence Motion, I will be able to squeeze even more out of you tomorrow”.

A no-confidence Motion should be more than simply a hand at poker, with players raising the stakes both before and after the vote. Like the noble Baroness, Lady Boothroyd, I fear that Clause 2 as drafted would allow just that—with the players pleading that haggling is precisely what the law allows, precisely what the law approves of. Fourteen days of it: crisis, what crisis? But that is not what anyone here wants, so I urge my noble and learned friend Lord Wallace to look at this yet again. If he feels he must codify this matter of no-confidence Motions, he should ensure that this part of the Bill is made more clear. I am not against safety valves, not against 14 days in all circumstances. But 14 days should not be so inflexible that it becomes a charter for chaos and an excuse for political fixes. What we do today in good faith must not become an excuse for excess at some future date.

[Lord Wallace of Tankerness]

My Lords, I begin by thanking all noble Lords who have taken part in this debate—not just for their contributions to the debate on the Floor of your Lordships’ Chamber today but for all their comments and amendments, which have reflected a view to try to find a way forward. As I indicated originally at Second Reading, and certainly in Committee, the Government were willing to listen to the views of your Lordships’ House. In the debate on Second Reading, I think it was the noble Baroness, Lady Jay, who mentioned that you could have absolutely rigid fixed terms or the complete flexibility that we have at the moment. The rigid fixed term brings its own set of difficulties, but if you are going to have something less rigid, you have to have the mechanisms in place to provide for an early election. That is what we grappled with during our deliberations in Committee and has been reflected in our debate today.

Amendment 20 was tabled by the noble Lord, Lord Howarth, with the support of the noble Lords, Lord Martin and Lord Pannick, and the noble Baroness, Lady Boothroyd. It sets out an alternative version of Clause 2 and addresses a number of issues of concern, not least the Speaker’s certificate and the certainty of the wording of a Motion of no confidence, both of which were raised in Committee. I am particularly grateful for the constructive way forward that has been devised by those who I know do not like the idea of fixed-term Parliaments but who nevertheless have accepted that the role of this House is to improve and revise and to bring forward amendments in that spirit. I was pleased to be able to consult not only the noble Lords, Lord Howarth and Lord Pannick, but particularly with the two former Speakers. This House has had the advantage of having their experience related to us both in Committee and in the debate this afternoon. On that basis, I have been willing to add my name in support of the amendment on behalf of the Government.

The amendment would retain the two triggers for an early general election and has clarified what a Motion of no confidence should say, and in that regard would not require a Speaker’s certificate. There was also a suggestion in an earlier iteration of the amendment that perhaps there should be some reference to the journal. Having considered it, we did not think that was appropriate either because it might then reflect other things in the journal that would be somewhat undermined by making it specific in this one. I think that that consultation bore fruit. We certainly have no desire to draw the Speaker of the House of Commons into political controversy, and therefore, given that the architecture for an early election is drawn up with a degree of certainty with no need of a Speaker’s certificate, the Government are willing to support the amendment.

I will come back to the amendments to this amendment that were moved by the noble and learned Lord, Lord Falconer of Thoroton, because they raise issues that were raised by other noble Lords, but first it is important that I should address the points made by noble Lords in speaking to their amendments in the group.

Amendment 21, tabled by my noble friend Lord Norton, again would provide an alternative version of Clause 2 and retains some of the basic architecture. It sets out a mechanism to allow for an early general election in the event of a two-thirds majority on a Motion, and one to provide for an early election in the event that the Government lose the confidence of the other place and no Government who hold the confidence of the House are formed within 14 days. Having listened to the concerns expressed in this House, it is clear that there is a certain shared sense of the direction in which we have been moving. However, my noble friend seeks to provide that the failure to pass a Motion of confidence in the Government—an important distinction—should have the same effect as passing a Motion of no confidence.

Following on the specific points made about this in the Constitution Committee’s report, we certainly did reflect on this long and hard. The reason why we came down against it in the end has been anticipated by my noble friend. It is that one of the objectives is to try to minimise the opportunity for manipulation. I accept, as the noble Baroness, Lady Jay, has indicated the Deputy Prime Minister has accepted, that there is no way this is going to be foolproof, but there are some things you can do to make it more difficult. We have reached the judgment that a Motion of confidence would be easier for the Government of the day to table and then have voted down than for the Government to lose a Motion of no confidence. The noble Baroness also mentioned Germany in 2005. The position there was that there was a general consensus for an election but that they did not have a trigger mechanism to do so. However, we do provide for it where there is consensus for a Dissolution that is supported by a two-thirds majority of Members of Parliament.

My noble friend Lord Norton wishes to add a third mechanism leading to an early general election. Where a Prime Minister felt unable to continue in government, his or her resignation could bring about an early election. The Bill does not prevent a Prime Minister from resigning or tendering a resignation on behalf of the Government, but, under the Bill as it stands, an early election would not follow automatically. As I have indicated, should there be a consensus that an early election should take place, the Bill provides for this under a two-thirds Dissolution vote. However, if there is no consensus, the alternative provision—for a no-confidence vote followed by a period of 14 days’ government formation—prevents a situation in which a Government stagger on without the confidence of the House.

My noble friend has suggested a government formation period of 60 days following the Prime Minister tendering the resignation of the Government. That could undermine the principle of fixed-term Parliaments by allowing the Prime Minister to trigger the government formation period at any stage in the Parliament. If one is looking at ways of minimising the opportunity for manipulation, that is one reason why we would not wish to go down that road. I also believe that 60 days is too long a period for there to be no effective Government in place. I hope that on reflection my noble friend will not—I think he indicated that he had some sympathy for the amendment tabled by the noble Lord, Lord Howarth—press his amendment.

The amendment tabled by my noble friend Lord Cormack and supported by my noble friend Lord Hamilton of Epsom is a further variation that suggests the exact wording of the Dissolution Motion and frames the 14-day government formation period in a different way from that proposed in the Bill. It provides for two scenarios that would determine a Motion of no confidence. Where a no-confidence Motion is passed in those circumstances, the Prime Minister must request Her Majesty to dissolve Parliament.

There may be circumstances in which, within a fixed-term period, a viable, legitimate Government may be formed from the composition of the House after a no-confidence Motion. As my noble friend Lord Tyler reminded us, it is Parliament that is fixed; it is not the Government who are intended to be fixed by the legislation. The Government can exist only if they enjoy the confidence of the other place. That is why Clause 2 provides for a vote of no confidence to trigger a period of 14 days for possible government formation. If the Government have not been able to secure the confidence of the House of Commons, Parliament will be dissolved. At present, the Prime Minister decides whether, after the loss of confidence, to ask Her Majesty for Dissolution, as in 1979, or, as my noble friend Lord Norton pointed out, to resign, thereby creating the opportunity for another Government to be formed from the existing House, as in 1924.

[Lord Cormack]

I know that the Minister is trying very hard, but some of us remain very concerned about this 14-day haggle period, as I would call it. Would he be prepared to insert at Third Reading, “a maximum of 14 days”?

[Lord Wallace of Tankerness]

My Lords, I am not sure that it is necessary to insert “maximum”. Perhaps I can assure my noble friend that 14 days is a limit; it is not an expectation or a requirement. Let us take as an example the situation in 1979, after Mr James Callaghan was defeated on that famous evening in March. If, rather than saying, under existing constitutional arrangements, that he was going to the Queen to seek Dissolution and take his case to the country, he had said that he would table a Motion for Dissolution the following day and that if it was supported, as inevitably it would have been, by both parties and had two-thirds of Members voting for it, there would have been no need to wait for 14 days before the election took place. The noble and learned Lord, Lord Falconer, looks perplexed by that. Mr Callaghan could have tabled a Motion for Dissolution the following day and two-thirds of Members could have agreed.

[Lord Falconer of Thoroton]

In different circumstances.

[Lord Wallace of Tankerness]

In these circumstances, yes. Had this Bill been in place, that could have happened. Perhaps I may reassure my noble friend Lord Cormack that 14 days is a maximum, but if there is consensus in the House that there should be an immediate election, it would be possible the following day for a Motion commanding the support of two-thirds of Members for an early election to be passed and there would be no need to wait for 14 days. I hope that is clear. It is an important point that perhaps has not always been fully appreciated; there may have been an impression that after every Motion of no confidence there would have to be a period of 14 days before there could be an election.

The proposed new power in the amendment for the other place to vote explicitly for an early Dissolution deals with the circumstances in which it would be appropriate to move directly to a Dissolution and a general election, as I have said, and there may be other circumstances. There has been some suggestion that the situation in 1951 could have led to that happening.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Monday 16th May 2011 Lords Chamber

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

I am sure that the noble and learned Lord will want to complete the picture and remind the House that the proposal for a referendum on AV was also in the Labour Party manifesto at the last election. He seems to have ignored that fact.

[Lord Falconer of Thoroton]

I do not know whether the noble and learned Lord noticed, but we lost the election. In a sense, I would not have been able to say that we would have had much credibility in putting that forward as the losing party—but you might think that that illustrates my point. The AV referendum was defeated, and the party that proposed it was defeated; the Liberal Democrats did not propose it and the Tories did not propose it. Because of the deal that was done and because of the influence that the coalition has on both Houses of Parliament, it is possible for such a constitutional change to get through both Houses of Parliament. An even more interesting point is that I do not think, although the noble and learned Lord will know better than I, that the AV constitutional change—if we ignore the referendum result for the moment—would have actually passed through Parliament; the only way that an attempt could be made to get it on to the statute book was by using the referendum route. The Conservatives would not have voted for it and half of my party would not have voted for it; all the Liberal Democrats would have voted for it, but I do not think that that constitutes a majority.

Most countries have some sort of entrenched or embedded position to protect the constitution, because most countries believe that if their constitution is working it should be more difficult to change it than other provisions. The heart of our constitution is in our democratic arrangements, such as how long Parliaments last, how we elect Members of Parliament, how we determine what the constituencies are and how many constituencies there are. All those arrangements have been fundamentally changed by the first two Bills, except that the AV referendum was defeated. The significance of the defeat in the AV referendum is that it indicates that the public are not interested in, or particularly keen on, a particular change in those particular systems. Before this series of Bills was introduced, my inclination would have been to be more trusting of Parliament to stop changes that go to the heart of the constitution and do not have popular support. Inevitably, in the light of what the coalition has done, one’s faith in Parliament’s ability to resist, because of the coalition, goes down.

The importance of what my noble friend Lord Grocott is proposing in this amendment, which I doubt he will push to a vote—but it is an incredibly important debate to have—is that, if parliamentarians are prepared to play with the constitution in the way that the coalition has done, as simply a counter to be given away in order to get into power, Parliament needs to look at how you protect the constitution against backroom deals in smoke-filled rooms. I am not aiming that particularly at the Liberal Democrats or the Conservatives; I am saying what the consequence is of coalitions.

I end with a reference to the noble Lord, Lord Tyler. I do not know whether noble Lords remember the excellent contribution that he made to the Parliamentary Voting System and Constituencies Bill, but he was an enthusiast for all of it. I happened to read in my Observer after the AV thing was lost, where the noble Lord said words to the effect that, “Now the AV vote has been lost, I should remind the Conservatives that there still yet needs to be a vote on the new constituencies that are being drawn”. I took that to mean that it was all basically politics that was going on, that it as just a deal that was done, and that if the Liberal Democrats did not get AV they might look askance at what they had previously said was a major constitutional change. I understand why constitutional change. I understand why the noble Lord did it, but does that not suggest that we need to build in a few more protections in relation to major constitutional change? It would appear that this House, which has previously been good at stopping major constitutional change, is now faced with a coalition that has not viewed constitutional change with the same degree of responsibility as previous Governments.

I take the point made by the noble Lord, Lord Newton. He is absolutely right that from time to time we did propose constitutional changes, but we got drawn up short by Parliament. That has not happened with this suite of constitutional measures. That is what my noble friend Lord Grocott is saying needs very careful thought. It might not be a referendum that is needed, but something is certainly needed to give a bit of strength to Parliament to resist the possibly politically motivated constitutional changes that the coalition has brought forward—as opposed to in the national interest.

--- Later in debate ---

[Lord Falconer of Thoroton]

Thank you very much indeed for that. I also draw to the attention of the noble Lord, Lord Tyler, that there was also the referendum on a north-east regional assembly. No doubt before I leave the room there will be 53 other referendums that I shall refer to.

[Lord Wallace of Tankerness]

First, my Lords, as I think the noble and learned Lord, Lord Falconer of Thoroton, said, we owe a debt to the noble Lord, Lord Grocott, for moving his amendment and stimulating an interesting and thought-provoking debate. The noble Lord, Lord Grocott, said that he was not going to move or speak to his Amendment 23 regarding your Lordships’ House. Although he did not, it was certainly the subtext of a number of the contributions—and sometimes not even the subtext, as the clever speech made by the noble Lord, Lord Reid, indicated. When I listened to what he was inviting me to do or not to do, phrases such as “Greeks bearing gifts” seemed to come to mind from time to time. However, there will be ample opportunity to reflect on the issues in relation to the future of your Lordships’ House over many weeks and months to come.

--- Later in debate ---

[Baroness Farrington of Ribbleton]

The Minister appeared to me to indicate that were part of the United Kingdom to secede, that should be the subject of a national referendum. Did I misunderstand him?

[Lord Wallace of Tankerness]

My Lords, if I might clarify I think I said that that was one suggestion put forward by the Constitution Committee. It said that that might be one of the occasions that would trigger a referendum but it is certainly not the policy of this Government to have a referendum on Scottish independence. The Prime Minister has made it clear that that would be a matter for the Scottish Parliament. Let me make that point very clear: it was one of the cases suggested by the Constitution Committee as, possibly, reaching that threshold. This illustrates the point that these are inevitably subjective issues. Any Government who wished to make a distinction about fundamental significance would find that that could vary from Government to Government. However, I undertake that the comments made by your Lordships will be fed back, and I am sure that there will be other occasions when the issue of referendums is discussed. A number of colleagues who talked generally about referendums did not necessarily think that the subject of fixed-term Parliaments lent itself to a referendum. Against that background, I ask the noble Lord to withdraw his amendment.

[Lord Grocott]

My Lords, I am not just being polite when I say that I am grateful to everyone who has taken part in this short—well, not so short—debate. I was straightforward with the House in saying that I was introducing the amendment not with a view to the House reaching a decision on it, but because I felt that it was important that the House should have an opportunity to reflect on the fact that a major referendum had taken place on a major constitutional issue and that lessons could be learnt.

Many people have contributed; there have been nine contributions. The Minister said at the end, as I was going to ask him to do, that he would take the views that had been expressed back to his colleagues. Normally it is mere politeness to say that but I really would recommend him to do so; he does not have to include my remarks, but if he includes the other nine contributions in the evidence that he takes back to his colleagues, it might even make them think again about this whole, not overly related programme of constitutional reform on which the Government seem to have embarked.

The contributions were terrific. It is impossible to summarise them, although it is fair to say that there was widespread concern about the way in which these constitutional changes are being taken through Parliament without in all or any cases, as the noble Lord, Lord Pannick, has said, proper pre-legislative scrutiny, proper consultation with the public or any proper attempt to get widespread agreement before any move is made. I hope that some lessons have been learnt from that.

I have to respond particularly to the noble Lord, Lord Newton, who chided the previous Labour Government for the various constitutional changes that we made. I am not sure that I need quite the same defence that I was preparing; I was amazed when it was pointed out how many referenda that there had been on various aspects of the previous Labour Government’s constitutional reforms. I say to him that it is a different situation when a Government are returned with the clearest possible manifesto commitment—in Scotland and Wales particularly, there is absolute clarity about the commitment there—and a large majority.

I can tell the noble Lord, in the privacy of this meeting, that there were some constitutional changes that we could seriously have done without; I mention in passing the decision to change the electoral system for the European Parliament from first past the post to proportional representation. I am even more convinced now that, had that been put to the public rather than unilaterally decided by Parliament, we should have a splendid first past the post system for the European elections as well.

--- Later in debate ---

25: Clause 7, page 4, line 6, at end insert—
“(4) Sections 2, 3 and 6(3) shall have effect only until the first meeting of the new Parliament after the next parliamentary general election, but that Parliament or any subsequent Parliament may bring those sections back into force for the Parliament’s own duration and until the first meeting of the following Parliament if a resolution to that effect is approved by each House of the Parliament in question.”

[Lord Wallace of Tankerness]

Amendment 25 is clearly linked as a package to the suite of amendments that the noble Lord, Lord Pannick, spoke to on Report on the first day. While it is not strictly consequential, the Government nevertheless believe that it would be unnecessary to divide the House on this, triggering a Division. However, we have made our position clear that we did not support the amendment, and we reserve our right to return to the issue at a later stage.

Amendment 25 agreed.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 10th May 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the Report be now received.

[Lord Grocott]

My Lords, before we consider the Report of the Bill, I should like to put a couple of points to the Minister. We are about to embark on a major constitutional reform at Report, but since we considered the Bill in Committee, a matter of considerable constitutional significance has taken place. That is to say, there was a referendum on the alternative vote system which, I am delighted to say, was overwhelmingly defeated by the British public—including, I might say, a 72 per cent no vote in Telford and a Labour-control gain from the Conservatives in Telford.

It is normal, if significant national events occur after Committee or between any stages of the Bill, that there be some reaction and, perhaps, amendments to the Bill. I see the Minister looking a little startled and, I am sure, thinking, “What is the significance of the referendum to this Bill?”.

I put it to him that there is considerable significance. Many of us on this side of the House spent a lot of time, when we debated the Bill that set up the referendum, arguing strongly that this was not an issue that the British public wanted put to them in a referendum, and that it was certainly not at the top of their list of priorities. I suggest that the read-across ought to be that the Government, rather than concentrating on constitutional Bills for which there seems to be very little public support, should concentrate on bread and butter issues.

The Deputy Prime Minister has repeatedly said that the three Bills that we will consider—the Fixed-term Parliaments Bill, the constituency boundaries and referendum Bill, which we have already considered, and the Bill to reform the House of Lords—are part of the greatest reform package since 1832. Therefore, if one plank is shown to be fallible, one would assume that, even in the view of the Deputy Prime Minister, other parts would be as well. I do not know what the Minister's experience was when he canvassed, but after the canvassing that I did my judgment is that there is as little public support for, or interest in, the Fixed-term Parliaments Bill—and I predict the same for the Bill to abolish the House of Lords and replace it with a Senate—as the yes campaign garnered in the referendum.

I will put two questions to the Minister. First, what is the urgency to consider the Bill on Report, in particular as the Government have decided very wisely that a period of three months’ reflection is sensible between Committee and Report for the health Bill? That is a welcome development and—I think the Minister will agree—a clear precedent for doing a similar thing with this major constitutional Bill. Secondly, does the Minister, with his long political experience, have any grounds for thinking—perhaps I have missed something—that there is strong public demand for the Fixed-term Parliaments Bill and for the Bill to abolish the House of Lords in its present form? If he cannot answer those questions reasonably positively, it would make sense to have a period of reflection before we go on with constitutional Bills in which there is no public interest and for which there is no public support.

--- Later in debate ---

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

My Lords, I have heard the comments of the noble Lord, Lord Grocott, my noble friend Lord Cormack and the noble Baroness, Lady Farrington. I am sorry to disappoint, but it is worth pointing out that this Bill was introduced in the other place on 22 July last year. It had its Second Reading in the other place on 13 September and was introduced in your Lordships’ House on 19 January this year. I do not think that, by any stretch of the imagination, it could be said that the Bill is being rushed through. There has been plenty of opportunity for scrutiny, and there will be further opportunity today and on a second day on Report in your Lordships’ House. This in no way diminishes the Government’s attention to the important issues facing this country—not least addressing the deficit that we inherited from the party opposite.

Report received.

--- Later in debate ---

[Lord Blencathra]

My Lords, I rise, as far as it is necessary, to make a few observations on this Bill. I support the five-year term. I hope that your Lordships will not consider it impertinent of me to speak on this measure since I was not in the House when it was first debated. I have had an opportunity to read the Select Committee reports and so on, and I can only offer what is perhaps the doubtful benefit of 27 years’ experience in another place as an elected Member of Parliament. I went through six Parliaments in the other place, three Parliaments of four years and three of five years. I must say that, at the time, I did not feel that the five-year Parliaments were somehow depriving the British people of some fundamental human right or a great opportunity which they had missed because we had gone beyond four years.

Arguments have been made today that four is better than five. I do not accept that and see no great body of evidence for it. I accept that there is a considerable weight of opinion for it. Some of the opinion which has been given to your Lordships’ distinguished Select Committees is learned, some is notable and a lot of it is tremendously experienced, but it is still opinion. I would not say that it is firm evidence which this House is therefore bound to follow and pass judgment on.

Perhaps I may deal with a point raised by the noble and learned Lord, Lord Falconer. He pointed out that the evidence was that every time a Prime Minister went beyond four years, it was pretty awful. I would not entirely disagree with that, but it was not the fact that the Prime Minister went beyond a magic four-year trigger that made it awful. I was privileged, honoured and proud to serve in John Major’s Government right up until 1997, but the difficulties that the Prime Minister experienced did not materialise in 1996 because he had passed four years; they materialised after the ERM problems. From then on, it became difficult for the Prime Minister; indeed, it became a bit bloody for him. Moreover, he had a low majority. One has to look at the majorities that Prime Ministers have to determine whether their last year will be difficult. That may happen after two years, three years or four years.

Where Prime Ministers went to the polls after four years it was not because they wished to give the people a chance to make their Government accountable; it was not through some great constitutional issue of principle. In fact, they breached our 100-year, five-year norm because they thought there was a dashed good chance they would win, and good luck to them. Margaret Thatcher did that exceptionally well and so did Tony Blair. But let us not pretend that those four-year Parliaments came about as a result of some issue of principle or great conscience, or moral wish to give the British people more accountability. Therefore, I do not accept the argument that going beyond four years is somehow bad for the Government and nothing can be done. Considerable things were achieved towards the end of those five-year terms in office.

There has been discussion on whether the people want four or five years. I was for 27 years the Member of Parliament for Penrith and The Border, the largest constituency in England. I do not a recall a Dock and Duck there, but in The George, where I had regular surgeries, I would constantly meet constituents who, within weeks of an election, irrespective of who had won, would say to me that it was time to get rid of the Government, or that they wished they would continue for 20 years. I never met a single constituent who had a view on whether it should be a five-year term or a four-year term. All they wanted was that, in due course, at some point, not more than five years, they would have the chance to express their view and for it to be taken into account.

I hope that your Lordships do not consider it too impertinent of me to comment on a Bill where I was not here for the Second Reading nor able to participate in the early stages, but it was my experience in 27 years in the other place that five-year Parliaments were no less accountable to the people than four-year ones. I accept the point of the noble Lord, Lord Pannick, that if we move to fixed five-year terms, over a period of many years, the public will have slightly fewer general elections, but I submit once again that having an election every five years instead of every four years does not somehow remove accountability and give the British public less say in the Government whom they want. Therefore, I support the five-year term.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lords who have taken part in this debate. It has been a very full debate with some thoughtful and challenging contributions and strong arguments on both sides. I hope that the noble and learned Lord, Lord Falconer, will not object if, in dealing with his amendment, I take account of Amendment 3, to which the noble and learned Lord, Lord Lloyd of Berwick, spoke. It gives a different perspective and a different choice.

The position taken by the noble and learned Lord, Lord Falconer, is that if you are going to have four-year fixed-term Parliaments we should start with a four-year fixed-term Parliament, whereas the noble and learned Lord, Lord Lloyd of Berwick, takes the view that this Parliament, elected for five years one year ago, should be allowed to complete its five-year term and thereafter move to four years. Clearly there is a distinction. The noble Lord, Lord Owen, gave a good explanation as to why five years for this Parliament is proper—the fact that very difficult decisions have to be taken. There is accountability, too, in being able to make a better judgment at the end of five years than might be possible at the end of four years.

As a Government we believe that it is not just five years for this Parliament but that there should be five years for subsequent Parliaments as well. In saying that, I was getting slightly confused with the arguments that I had to address. I understood, and I apologise if I got it wrong, that the noble and learned Lord, Lord Goldsmith, said that the Government could have five years if they wanted and thereafter four. I may have misunderstood what he said.

[Lord Goldsmith]

That is the position under our present arrangements, which do not provide for a statutory term for Parliament other than the maximum term. If that is what the Government had wanted they could have had that without the fixed-term Bill. They could simply have said, “This is what we are going to do”. History and time would have told us whether that was actually what would happen. That is what I was saying.

[Lord Wallace of Tankerness]

I apologise. I misunderstood the noble and learned Lord. I thought that he was arguing for four years subsequently. But the noble and learned Lord, Lord Falconer—as one of the three key reasons why he said it should be four and four—said that it would be wrong if the Government had one set of rules for the first Parliament and a different set of rules for the others. Of course the Government are not seeking to do that. We are seeking to be consistent with five years both for this Parliament and for subsequent Parliaments. Therefore, he cannot hold that argument against the Government.

[Lord Falconer of Thoroton]

My Lords—

[Lord Wallace of Tankerness]

I will just finish the point and then give way to the noble and learned Lord.

If the Government had come forward with a proposal for five years for this Parliament and four years thereafter, I can imagine the criticism that would, with some merit, have been directed at us.

[Lord Falconer of Thoroton]

So if this House decided that it should be four years for subsequent Parliaments, the right course would be for the Government to say that it should be four years for this Parliament as well?

--- Later in debate ---

[Lord Wallace of Tankerness]

I have made the point that it is not the Government who are proposing four years for subsequent Parliaments; we are proposing five years. I indicated that if we had proposed five years for this Parliament and four years subsequently, that would have been the subject of legitimate criticism. But that is not what we propose—we propose a consistency of five years. I will come on to argue why we believe that five years is right for subsequent Parliaments as well.

[Baroness Jay of Paddington]

I understand the noble and learned Lord’s point. However, as I tried to ask on previous occasions, does he take the point that a five-year term for this Parliament and this Government could have been achieved in a way that did not involve this Bill?

[Lord Wallace of Tankerness]

Clearly the Government could have continued for five years, but the point is that the Government are seeking to introduce the principle of fixed-term Parliaments. In wishing to introduce that principle, we believe that it should apply to this Parliament as well. It is not just the length of time; it also involves the trigger mechanisms for an election other than at the end of the five years. In terms of consistency, we are saying that what is right for the future—and we are self-evidently legislating for the future—is something that this Parliament should equally be obliged to have regard to and, indeed, to be bound by. I hope that I can make some progress.

[Baroness Farrington of Ribbleton]

My Lords, surely the point is that this Government could have determined and announced that they were going to last for five years. They could then have produced legislation for the future, were that their wish, on which there could have been pre-legislative scrutiny—which the noble Lord, Lord Rennard, believes, and I share his view, we would all have been the beneficiaries of. So why on earth are we doing this Bill now, dealing with the future?

[Lord Wallace of Tankerness]

The answer is the same as I gave a moment ago to the noble Baroness, Lady Jay—we believe there should be fixed-term Parliaments for the future and that this Parliament should be subject to the same rules, including of course the rules that would trigger an early election. Of course, there is no guarantee that either of the coalition parties will be in power after 2015 and that is why we reject the case that this is somehow our own self-interested political fix. We believe that this ought to be implemented for future Governments, including ones where we may not be in power. It was very interesting that when my noble friend Lord Rennard challenged the noble and learned Lord, Lord Falconer, as to whether, when this Bill is enacted with the five years as proposed, a future Labour Government would amend it to four, he was not able to give a definitive answer that they would.

However, it must be recognised, too, that even under fixed terms, Parliaments come under pressure, both in their earlier and in their later years. We have had a number of speeches to that effect. At the beginning of the term, new Governments are understandably keen to start implementing their ideas, but there is increasingly a tension between that and the desire to allow more parliamentary scrutiny. If we go back to the 1970s and 1980s, there was very little pre-legislative scrutiny. We have come under some considerable criticism for not having had more pre-legislative scrutiny in our first year and it is inevitable that we are going to move to having more. If that is the case, it will limit the ability of the Government of the day to bring forward more legislation during the first year of their term of office.

Moving to the final year of a term of office, my noble friend Lord Renton of Mount Harry indicated that in his experience five years was right, given all the pressures that were on a Government, in order to get a legislative programme through. There are real advantages, therefore, to five years. I regret that what we have been asked to do in some respects with four years is to fit a quart into a pint pot, with a squeeze at both ends. At the other end of the term, the predictability of the election date may limit some of the hurly-burly of anticipation that up until now has inevitably attended the speculation as to when an election will be called. However, at Second Reading the noble Lord, Lord Armstrong of Ilminster, albeit opposing the principle of fixed-term Parliaments, made it clear that if there were to be a fixed-term Parliament, he thought that a four-year term would not leave enough room for sensible policy-making and a good parliamentary debate before a forthcoming election began to cast what he described as its distorting shadow.

The noble Lord’s concern was that if we had a four-year term, it would start to disrupt the parliamentary business as we approach the end of three years. The noble Lord, Lord Butler—who is in his place, and I hope I am not misrepresenting him—has also expressed strong reservations about the principle of fixed terms, and indicated that his experience also lends him to the view that five years would be more effective than four. That experience was shared by my noble friend Lady Stowell, when she was in government as an official.

Clearly, if we have four years, it shrinks the time available to Governments to deliver their programme; especially if we are going to have even more pre-legislative scrutiny. Some of the arguments against five years insist that precedent in our own system favours a four-year term. In fact, if we exclude the elections since the war that took place after less than two years, the average, I think, is between four and a quarter and four and a half years. The fact of the matter is that elections that are called at the end of four years are often examples of the Prime Minister of the day seeking to give his or her party a political advantage. It was not that they thought four years was the appropriate length of time, or that the term had come to its natural break, but that it was a judgment for them—as my noble friend Lord Dobbs indicated—as to when they thought they could win. If they thought they could, that was when they went. Indeed, on the second day in Committee, my noble friend Lord Dobbs said:

“I am afraid that these decisions have nothing to do with the astrological significance of the figures four or five. It has simply been a matter of self-preservation”.—[Official Report, 21/3/11; col. 495.]

I think that when an election has been held after four years, it has been because it has been more electorally convenient for the party in power than for any great reasons of measuring accountability or suiting the political biorhythm—a view that I think is shared by my noble friend Lord Blencathra. In holding up this practice as a standard for fixed terms, the advocates of four years are arguing strongly for the very enemy that the Bill is seeking to combat—that of political expediency triumphing over the national interest, with parties holding an election after four years when they see it as expedient to do so. We are trying to take that power out of the hands of the Prime Minister and give it to Parliament. Indeed, as the noble Lord, Lord Hennessy, said at Second Reading, for that reason this is a “collector’s item” of a Bill. The noble Lord, Lord Morgan, clearly wishes to intervene.

[Lord Morgan]

Is that not a totally false distinction? Do not a Government necessarily equate their party interest with the national interest? Is that not precisely what the Liberal Democrats have done by serving in this Government?

[Lord Wallace of Tankerness]

My Lords, I am not sure that last Thursday would necessarily have been thought to be in my party’s interest. I shall not rehearse all the arguments for the coalition but we heard the comments of my noble friend Lord Dobbs, who has been there when some of these decisions have been taken. As he indicated, the question has been: can we win? No doubt all parties think that they are right for the country but clearly the decision is taken for partisan reasons—when they think they can win. If one looks at 1983 and 1987, it is interesting that Mrs Thatcher, as she then was, did not hold an election exactly after four years—or at least she did in 1987—but she made the decision in 1983 after the local election results had come through. If I recall correctly, that was when I was first elected. The Dissolution took place the week after the local government election results in the first week in May, when she quite clearly saw that that would be to her party’s advantage.

It is also suggested that Parliaments that have gone to five years have been destabilising—I think that the noble and learned Lord, Lord Falconer, used the expression “an awful fifth year”—but in many respects the term has been self-selecting, as my noble friend Lord Blencathra indicated. There have been fifth years under Governments who did not have the confidence to go to the country after four years because they did not think that they could win, having run out of steam and lost their way. No doubt they thought that if they carried on for a final year something might just turn up. That is not a very good argument for saying that five years would not work. I shall pay a passing compliment to the Government of whom the noble and learned Lord, Lord Falconer of Thoroton, was a member. I suspect that if the Government elected in 1997 had gone into a fifth year, that year would still have been very purposeful. The noble and learned Lord shakes his head but I think that he may be doing a disservice to his party.

As my noble friend Lord Rennard pointed out, it is also interesting that when the Government gave the devolved Parliament in Scotland and the Assembly in Wales the opportunity to change their election date to avoid a clash with an election in 2015—the offer was to hold an election between the first Thursday in May 2014 and the first Thursday in May 2016—in each case they opted for a five-year term. They could have gone for four years and six months or three years and six months but they opted for five years, and that Motion was, I think, assented to by the leaders of all parties, including the Labour Party, in both the Parliament and the Assembly.

The question that has been raised, not least by the noble Lords, Lord Wills and Lord Pannick, is: how do we ensure accountability? Accountability can come in many ways. It is not just in parliamentary general elections that parties and politicians are accountable. My noble friend Lady Stowell talked about some of the ideas that came out in the Power inquiry to try to engage ordinary people in the political process. The point was made by the noble Lord, Lord Owen, in what I thought was a very thoughtful contribution, that five years is very often required for an assessment to be made of the effectiveness of a Government’s early policies and for people to make a proper and informed decision after there has been an opportunity for those policies to feed through.

[Lord Wills]

I am grateful to the noble and learned Lord for his espousal of these methods of public engagement. I, too, was pleased to hear that espousal from his noble friend Lady Stowell. Can he explain to the House why they have not taken advantage of one of these methods of public engagement to ask the public what they think about this measure?

[Lord Wallace of Tankerness]

My Lords, in the Constitution Committee, the noble and learned Lord, Lord Goldsmith, asked my honourable friend Mr Mark Harper about opinion polls which showed public support for establishing fixed terms. These are not old opinion polls: the Populus survey conducted for the Times, published on 30 May 2009, found that 74 per cent of those surveyed supported the establishment of fixed terms; a poll conducted by ICM Research for the Sunday Telegraph, published on 26 May 2010, found that 63 per cent of those surveyed supported the establishment of fixed terms; and a survey by the Scottish Youth Parliament conducted in August 2010 found that 76.4 per cent of the young people surveyed were in favour of establishing a fixed term for the United Kingdom Parliament. I accept that the question as to whether it should be four or five years was not put, but there was clearly in the surveys support for the principle of fixed-term Parliaments.

My noble friend Lord Dobbs talked about the opportunity for policies to mature and to be assessed. Therefore, there is an opportunity for accountability because the electorate can see what has been delivered, not only by this Government in the present Parliament, where it may take some time for the necessary remedial measures to work through, but by other Parliaments. It is possible for a Government coming into office at the beginning of five years to plan their legislative programme and the other things that do not require legislation, and at the end of which the public can make their decision and judgment on the effectiveness of the Government over those years. That will help accountability.

Practical issues were raised by a number of noble Lords, not least by my noble friends Lord Renton and Lord Blencathra. The questions of stability, practicality and allowing for accountability point to five years.

[Lord Bach]

Something is troubling me. If the noble and learned Lord has all these strong arguments against four years rather than five, why was it that his party went into the 2010 general election supporting a fixed-term Parliament of four years? What changed? When did the noble and learned Lord change his mind?

[Lord Wallace of Tankerness]

My Lords, if the House will bear with me, I shall find the quote from the Liberal Democrat manifesto of last year. It states:

“Introduce fixed-term parliaments to ensure that the Prime Minister of the day cannot change the date of the election to suit themselves”.

As my noble friend Lord Rennard indicated, there is not a reference to four years. However, in the past the party has supported—

[Lord Bach]

Is the noble and learned Lord really suggesting that the Liberal Democrat party was in favour of five-year fixed Parliaments at the time of the general election of 2010? We know about the Private Member’s Bill that was supported by many of those who are now prominent in Government. Liberal Democrat policy has always been four years. Why has it changed so suddenly?

[Lord Wallace of Tankerness]

What the noble Lord claimed was in the Liberal Democrat manifesto was inaccurate. I am not shying away from the fact that four years had been Liberal Democrat policy, but everyone knows that you have to have negotiations if you want to get the outcome of a fixed-term Parliament, and that was the negotiation. I have listened to the argument and, heaven forfend, I am persuaded by it. The arguments that have been made for five years are very compelling indeed.

On the point made by my noble friend Lord Blencathra, although there has been a great deal of opinion in favour of four years, we have heard in today’s debate—and from the noble Lords, Lord Armstrong and Lord Butler, in Committee—that the evidence points in favour of five years. I urge the noble and learned Lord to withdraw his amendment.

[Lord Goldsmith]

The Minister confirmed a moment ago—I am grateful to him—when he spoke about opinions that none of the three surveys asked the people what they thought about the precise length of term. Can he say why it is—he did not address this in his remarks—that the experts, I think without exception but certainly the vast bulk of them, who came to the Select Committee spoke in favour of four not five years, and none of them supported five? Why is that?

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am not here to speak on behalf of these experts. In my closing remarks, I picked up the point made by my noble friend Lord Blencathra that there has been a lot of opinion on this from people who have had experience, including former Cabinet Secretaries and Chief Whips as well as those in the Scottish Parliament and Welsh Assembly who favoured five years when given the opportunity to do so. Some of them have indicated that they would quite like five years to be put on a more permanent footing. The evidence suggests that they have had practice and five years is what they have concluded is probably the right period of time. So again I invite the noble and learned Lord to withdraw his amendment.

--- Later in debate ---

[The Lord Speaker]

I have to inform the House that, if this amendment is agreed to, I cannot call Amendments 3 to 7 inclusive by reason of pre-emption.

[Lord Wallace of Tankerness]

My Lords, in the spirit in which the amendment was moved, I do not wish to detain the House. We have had a full debate about the arguments about four years and five, but I shall simply talk about how the Government would prefer the position to be determined with regard to this Parliament. I think that I indicated in my reply to the previous debate that if we are going to have fixed-term Parliaments, it makes sense if we oblige this Parliament to move into the same rules as those governing what will happen in future Parliaments. I understood the noble and learned Lord to say that he thought there was some merit in that consistency.

While I have no doubt that this Government will carry on in our measured fashion up to an election in May 2015, if something is not fixed at that date it is inevitable, as one knows only too well, that speculation can start running rife, and the measure not being in place would perhaps give more grounds for speculation. That would actually hinder the productivity of this Parliament in its latter years when there might be more focus on opinion polls than on the legislative programme, something that the Bill is intended to avoid. We would be far better knowing definitely when the next election would be—namely, the first Thursday in May 2015. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

Persuasive an advocate though the noble and learned Lord is, I wish to test the opinion of the House.

--- Later in debate ---

[The Lord Speaker]

If this amendment is agreed, I cannot call Amendments 4 to 7, by reason of pre-emption.

[Lord Wallace of Tankerness]

My Lords, this is what the noble and learned Lord, in earlier discussions, described as the “five-four-four” amendment. The Government are opposed to it for reasons that have been advanced and I do not propose to repeat. I am sure that it will be to the noble and learned Lord’s great disappointment that we cannot accept the amendment. If he wishes to test the opinion of the House, I should make it clear that we believe there should be consistency and that there should be a term of five years for this Parliament and for ensuing Parliaments.

--- Later in debate ---

[Lord Falconer of Thoroton]

It is very difficult to answer that question, and I will not try.

This is an important opportunity for the Government to show their sincerity in relation to the way that constitutional legislation should be done and to accept the amendments. If they do not, I will support the movers of the amendment if they put it to the vote.

[Lord Wallace of Tankerness]

My Lords, as we have heard, Amendments 4, 5 and 25, tabled by the noble Lord, Lord Pannick, with the support of the noble Baroness, Lady Boothroyd, and the noble Lords, Lord Butler and Lord Armstrong, provide that the Bill’s provisions would be subject to a sunset clause combined with a potential sunrise clause after the next general election. As my noble friend Lord Tyler said, these amendments are both interesting and seductive. It is also fair to say that they are somewhat complex.

I want to take a moment to set out what the amendments seem to be designed to achieve. They would enable the next parliamentary general election to be on the date set out in the Bill, namely 7 May 2015. After this parliamentary election, however, the apparatus in the Bill—the date of general elections after the 2015 election; the process for calling early elections, and it is important to remember that there is a process for calling early elections which has sometimes been overlooked; and the consequential matters in the Bill—would all cease to apply unless revived. It could be revived by a resolution of each House of Parliament—a sunset clause combined with a sunrise clause. I think that the noble and learned Lord, Lord Falconer of Thoroton, gave an accurate and factual answer to the noble Lord, Lord Turnbull, when he said that that resolution could take place at any time. It could add to the uncertainty, and I do not think that that is a particularly happy arrangement.

In bringing forward this Bill the Government sought to put in place a provision that we hoped would become part of our constitutional arrangement—fixed terms for the United Kingdom Parliament, just as there are fixed terms for local government, for the devolved Parliaments and Assemblies and for the European Parliament. Two of the Bill’s key provisions are: to deny the Executive the ability to choose a date for a general election to suit their own party political ends, and to deliver certainty about how long a Parliament should last. On Second Reading, the noble Lord, Lord Hennessy, remarked on the importance of these provisions. I think that he also called them a collector’s item, not least because the Executive, and specifically the Prime Minister, were surrendering a long-held power.

If these amendments were accepted, the position would not be clear not only in the Parliament elected after May 2015 but, indeed, in subsequent ones. Again, the political parties would be able to choose whether Parliaments should have a fixed term, in which case all the arrangements would be in place, or whether to return to the default position of the Prime Minister of the day choosing at some stage during the five years, assuming the quinquennium was revived, when to hold an election. That would mean that in each Parliament the Government of the day could have the allegation levelled against them that they were in some way operating for a partisan advantage.

It has been suggested not just in this debate but in a number of debates that the whole purpose of the Bill is to make arrangements for this Parliament. However, it is clear that it is intended that the fixed-term Parliament should, as I said, become part of our constitutional arrangements. That is what the Labour Party said in its manifesto and my own party has argued that for some time. I thought I heard the noble and learned Lord, Lord Falconer, say that that was still the Labour Party’s policy but I fear that supporting this amendment, as he does, puts that into question. It would allow the Government of the day elected after 2015 to decide, if they had a majority, whether to table the Motion or resolution to re-establish fixed-term Parliaments or whether to revert to the situation that existed prior to this Bill.

[Lord Falconer of Thoroton]

If we discovered that these provisions did not work well or reduced confidence in our constitution, would it not then be right not to prolong them?

[Lord Wallace of Tankerness]

My Lords, in spite of all the criticisms that the Constitution Committee of your Lordships’ House made of these proposals, it thought that the architecture of Clause 2 and the double triggers for Dissolution were suitable and appropriate. However, if it were felt that other mechanisms were required, clearly amending legislation could be brought forward, and later I shall say something about the importance of using legislation.

In establishing fixed-terms, we are providing that the Government and the Opposition have to face the electorate on a set day. As my noble friend Lady Stowell said on the first day in Committee,

“it would ensure that the Government and the Opposition had to face the electorate on a predetermined date, whatever the political conditions are at that time. That is the most compelling thing about fixed-term Parliaments”.—[Official Report, 15/3/11; col. 223.]

If this amendment were passed, we would allow the situation to revert to the status quo and, as a number of my noble friends have indicated, it would mean that the fixed term would apply only to this Parliament. When this Parliament established fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, a sunset clause was never suggested, and indeed no one in any of the devolved institutions has ever suggested that we should revisit the idea of fixed-term Parliaments. No one is suggesting that Mr Alex Salmond should be able to choose to call an election to suit the best interests of the SNP some time over the next five years. I accept all the caveats that it is not possible to make a complete comparison between this Parliament and the devolved institutions; nevertheless, fixed-term Parliaments for legislatures have worked and no one is suggesting that that should change.

A fixed-term Parliament will deliver certainty. We debated earlier whether better planning is achieved over four or five years, but we believe that a fixed term will facilitate better planning across government. The nation will no longer be left on tenterhooks or have to deal with wild speculation about whether the Prime Minister will go to the country or how the opinion polls are going. In introducing his amendment, the noble Lord, Lord Pannick, talked about Prime Ministers agonising over the decision, and sometimes they got it wrong. Harold Wilson arguably got it wrong when he called an election in June 1970. However, let us not kid ourselves: the agony is over whether it is going to be in the best interests of their party. As my noble friend Lord Dobbs has said on more than one occasion during our debates, the key question is, “Can we win?”. It is not unreasonable for a political party to want to win but that is not necessarily the same thing as national advantage. In his book, The View from No. 11: Memoirs of a Tory Radical, my noble friend Lord Lawson said about the then Prime Minister, now the noble Baroness, Lady Thatcher:

“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.

Noble Lords may say that that is stating the obvious but that is what the Bill tries to change. There will be a fixed term and it will not be possible for the Prime Minister of the day to choose the moment that will be to the party’s partisan advantage.

I should be interested to know how the proposers of the amendment would react if the change were made by repealing legislation rather than having an affirmative order. How would they react if a Minister came to the Dispatch Box of your Lordships’ House and argued that the Government wanted to return to the Prime Minister of the day being able to make a decision to suit his party interest rather than sticking with fixed terms? Perhaps in his reply the noble Lord, Lord Pannick, will tell us how he expects all this to work. The schedule of consequential amendments contains quite important and weighty matters—for example, the repeal of the Septennial Act, changes to the Regency Act 1937 and provisions relating to the demise of the Crown. Does he see those being revived, having been repealed? He will know that there are provisions in the Interpretation Act concerning the revival of an Act that has been repealed. However, I think that there is some uncertainty about whether these would be revived.

The other point that has been made is that not much has changed from the present situation, in which a Government have come to power and introduced a maximum fixed five-year term. I do not think it is fair to say that that is analogous to the situation that would be in place after 2015. The present system is uncertain for the voter and we think that that uncertainty should be removed by introducing fixed terms. However, these amendments would add an entirely new layer of uncertainty for voters. Not only would they not know, when voting, when a subsequent general election might be but they would not even know the legal system under which the next Parliament would operate and how the next general election date would be chosen. I do not believe that that is fair or sensible for the electorate.

It has also been pointed out that the Bill alters the apparatus for calling elections. The crucial difference is that the Government propose moving to fixed terms through an Act of Parliament subject to all the safeguards that that implies. We have heard much in this debate about the importance of our constitution. The noble Baroness, Lady Boothroyd, talked about the fact that we do not have a written constitution. However, if the constitution is changed, it is done through an Act of Parliament rather than through a special procedure, and people have cherished the idea of parliamentary sovereignty.

It is not the case that this Parliament, through this Bill, is trying to bind its successors. That point was made forcefully by the noble Lord, Lord Butler of Brockwell, but it was answered by my noble friends Lord Tyler and Lord Marks. We do not seek to entrench these provisions. We cannot bind a future Parliament. However, we can say that this important constitutional change has been brought into the law of our land through an Act of Parliament—by First Reading, Second Reading, Committee, Report and Third Reading in the House of Commons and by the procedures that we know in this House of First Reading, Second Reading, Committee, Report and Third Reading and by Her Majesty giving Royal Assent. That is how we change our constitution—by Act of Parliament.

Surely, if we were being true to our constitutional heritage, we would say that any change to that heritage should also be carried out through an Act of Parliament. It would have to have the same scrutiny as this Bill has clearly had and Ministers would, in the other place and this place, have to argue their case for making the change. I do not think that we can just sweep aside the concerns raised by my noble friend Lord Marks. With the exception of amendments to the Parliament Acts, with this amendment a resolution of the House of Commons could be overturned or at least thwarted by a resolution of this House. It is a unique situation and we should think long and hard before going down that route. If we do go down it, one can imagine the tensions there would be at some stage if the other House had voted for a fixed-term Parliament but this House decided it would not. I fully understand and associate myself with the concerns about our constitutional procedures and heritage, but we change the constitution by Act of Parliament and not by simple resolution. A very new venture is embodied in these amendments.

--- Later in debate ---

[Lord Mackay of Clashfern]

Can my noble and learned friend tell me whether he knows of any mechanism by which an Act of Parliament which has come into force can have its force suspended for a given period?

[Lord Wallace of Tankerness]

I cannot readily think of one off the top of my head. However, there are enough people in the Chamber and, if there is such a mechanism, I am sure that one of them will be able to tell us. My noble and learned friend, who has wide experience, might be able to think of one, but I cannot. However, the “sunsetted and sunrisen” approach is very novel.

[Lord Falconer of Thoroton]

My recollection is that we put sunrise or sunset clauses into a significant amount of the terrorist legislation, the result being that they would continue to have an effect only if there had been a resolution in both Houses of Parliament to carry on with them. I think that that is an answer to your Lordships’ question.

[Lord Falconer of Thoroton]

The noble and learned Lord is right. There is a difference between an Act lapsing and not being revivable and the situation under this provision where if it lapsed for the first Parliament because it was not passed in resolution, it could be revived for the second Parliament. In practice, however, the difference may not be that great.

[Lord Wallace of Tankerness]

My Lords, I stand to be corrected, but as far as I am aware it is a novel approach. Not only could it lapse and be put in suspension; it could be revived, lapse again and be revived again. We are not switching on and off light bulbs. There are quite important issues here and I am not sure that these procedures are designed to give them proper weight. That is why we argue that primary legislation should be the way of dealing with the issue, if it is felt that the provisions for a fixed-term Parliament are not working and should not be the basis for the future.

[Lord Pannick]

My Lords, I am grateful to all noble Lords who have spoken in this interesting debate and for the support that has been expressed on all sides of the House. My answer to the noble and learned Lord, Lord Mackay of Clashfern, is that we are dealing with an exceptional Bill which is being brought forward by the coalition Government to deal with a particular short-term political problem. In the light of that, we should think very carefully before we embody on the statute book, as a permanent measure introducing permanent constitutional change, a measure which has at best a short-term political purpose.

I respect the views expressed by the noble Lords, Lord Tyler and Lord Marks, and by the Minister. I respect their views because they and the Liberal Democrats strongly believe in fixed-term Parliaments as a matter of principle. However, their difficulty is that large numbers of noble Lords on the government Benches do not agree with fixed-term Parliaments as a matter of principle. They are rightly concerned about the constitutional implications of such a measure, as so eloquently expressed by the noble Lords, Lord Hamilton and Lord Cormack, in this debate. They are particularly concerned about this matter in the absence of any public consultation on this issue, in the absence of any pre-legislative scrutiny and given the lack of any evidential basis for the new constitutional principles we are about to enact.

The inescapable reality is that the Government and large numbers of noble Lords on the government Benches are supporting the Bill not because they believe in the constitutional principle but because it is part of the coalition agreement, and it is part of the coalition agreement because of the political needs of this coalition Government to remain together for five years. I repeat: I do not deprecate that; it is a perfectly proper political position to adopt as a basis for legislation which applies to this Parliament. However, it is not an acceptable basis for general constitutional change, as the noble Lord, Lord Butler, has pointed out.

The noble Lord, Lord Turnbull, asked whether under the amendments a future Parliament could approve a resolution at any time during that Parliament. The answer is yes, and the reason the amendment is so drafted is that it would be inappropriate to limit the events and the circumstances that may occur during a future Parliament. It is quite possible that a coalition Government might be formed part of the way through a future Parliament. The noble Lord, Lord Marks, and the Minister were concerned about the Parliament Act, but of course a future Parliament could at any time enact primary legislation on this subject.

The Minister asked a fair question—all his questions were fair, of course, but he asked me to address this one in my reply—about how this will work in the future. My belief, my expectation, is that no future Government will want to apply the provisions in this Bill as they are unless there is another coalition Government with similar political demands to this one. I hope and expect that after the next general election, if there is a desire in principle for fixed-term Parliaments, the relevant responsible Government will bring forward new primary legislation that will be based upon proper consultation and pre-legislative scrutiny and in the light of experience.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 10th May 2011 Lords Chamber

[Lord Grocott]

My Lords, this is a very simple amendment with a very simple objective which I hope the Government will be able to accept. As the House knows, I find the Bill entirely unattractive and wish that we were simply getting rid of it, but if we are to have a Bill where there are fixed five-year Parliaments, then it follows, as night follows day, that there ought to be a rule governing the number of Sessions within the fixed five years.

It is very odd trying to put our constitution into a straitjacket, but the Government seem intent on doing so. This amendment was considered in Committee but not very satisfactory answers were given. The reason I have been inspired to table it is that whereas we normally know that a parliamentary Session will last about a year—with the exception of the first year of a Parliament, which can frequently be 18 months, from, say, May in one year until November the following year—I am sorry to say that this Government have unilaterally decided that there would be a two-year Session to begin this Parliament.

If we were following the normal conventions of our democracy then we would not be debating the Report stage of a Bill now, we would be having a Queen’s Speech. It is a year since the general election and that is the normal length of a Session of Parliament. The Government have already told us that the next general election will be in May 2015, so it seems an incredibly simple proposition that there should be five Sessions of one year each. Normally it would be completely unnecessary for me or anyone else to move an amendment requiring that this should be the case, but the Government have broken the normal rules. I do not know where the decision to have a two-year Session came from. I ask the noble and learned Lord, Lord Wallace, what consultation the Government had with the Opposition or anyone else when they decided that we should have a two-year Session of Parliament.

As we all know, the sessional discipline is part of the delicate balance between Government and Opposition. Oppositions get stronger, in a sense, as the Session progresses because the Government know that they are up against the deadline of a Queen’s Speech; and we have had, quite properly, to establish precise mechanisms to enable a Bill to be carried over from one Session to the next. I say “quite properly” because we have all recognised in the past—although apparently not now—that it would be quite wrong for a Government simply to be able to extend at their convenience the periods between Queen’s Speeches.

As I say, I do not like translating conventions into rules, but it is necessary in this case. Why are we not having a Queen’s Speech now? Why are the Government not bringing the first year of this Parliament to a conclusion in the normal way, after 12 months, making concessions on Bills—which is what Governments do towards the end of a Session—and then preparing for the next statement of the Government’s policies and legislative objectives, which of course is what we get with a new Queen’s Speech? If the Government are intent on having five years after five years after five years ad infinitum—although I am obviously delighted with the amendment that has been passed that will require any new Government to think again about this—what could conceivably be the objection to insisting in this legislation, which provides us with the opportunity, that there should be a minimum of five Sessions in a five-year Parliament?

I looked in vain, having reread the Committee stage when this was discussed, but no one spoke against it except the noble and learned Lord, Lord Wallace. Maybe it was wishful thinking on my part, but I got the feeling that he was not wildly enthusiastic about speaking against it. The only objections that he offered were that this could present problems should there be a Dissolution of Parliament under the terms of this legislation in less than five years. We all know that that is a possibility; again, it is a part of the Bill that not many of us like, but there are precise provisions for saying how Parliaments can be of a period of less than five years. If the Government have found the mechanism for dealing with a Parliament that lasts less than five years, surely it is not difficult to find a mechanism for dealing with the consequences for parliamentary Sessions. It is unfortunate that we have to go down this road but, if we have, it cannot be beyond the skill of parliamentary draftsmen to deal with that objection.

The only other case that the noble and learned Lord, Lord Wallace, offered in Committee comes in col. 526 of Hansard on 21 March. He explained why the Government decided that it would be not a one-year Session but a two-year Session; it was announced unilaterally to Parliament last September without consultation, as far as I know—although I would be delighted to be proved wrong in that respect. The explanation that was given was as follows:

“An announcement was made in September, which would normally have been between a third and half way through the Session”.

He is referring to the last Session, which should have concluded this May, as I have suggested.

“There was an option to truncate the Session about now”—

he was speaking in March—

“but it was thought that the best thing to do was to go to next year”.

The Minister is very precise with words; he is a lawyer and is careful what he says. It is not exactly truncating a Session to suggest that it should be for a year, however. It really is a fairly loose use of the word.

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

Does the noble Lord not recall that the normal practice has been for the first Session after a May election—indeed, I think that it happened with almost every Government elected when Mr Blair was Prime Minister—to last not a year but until the following autumn? So when I say truncated, I mean that there would not normally have been a Queen’s Speech this May; it would still have been in November. The first Session would probably have gone 18 months, so to have had a Queen’s Speech in March or April would have been to truncate the normal practice after a May general election.

[Lord Grocott]

The problem with that argument is that, yes, it is true that if the election is in May then normally you have the Queen’s Speech the following year, in November. But if there is an election in October—and one that I vividly remember is the one in October 1974, because it was when the noble Lord, Lord Tyler, went out and I came in—the Queen’s Speech is the following November. The convention is that the Queen’s Speech is in November and if the sequence of elections means that that does not happen, it is quite right that there is a long Session of 18 months. There is a bit of a case for that, I suppose; all Governments are wild with enthusiasm when they come in and have lots of exciting things to propose, such as Fixed-term Parliament Bills, and so on. So it goes for a longish Session. But this was a choice for the Government, once they had decided that there would be a five-year Parliament, between having a year Session or a two-year Session. If he thinks there is not much to choose between an 18-month Session, which as he rightly says obtains when there is a May election, and a two-year Session, let me say that it would have been heaven to me as Chief Whip to have had a two-year Session. There is no pressure on you and no trouble; you can spend as long as you like on Committee and Report stages, and so on. So I do not think that that argument held up very well.

I do not suggest evil intent on the part of the Minister or anyone else in the Government in this respect at all. I am simply saying that not much thought went into what was in fact a quite substantial shift of power between Government and Opposition. As I said, that is a pretty delicate matter in our parliamentary procedures in both Houses, because it shifted the balance of power substantially in favour of the Government. I thought that the Minister really gave the game away in this second sentence:

“There was an option to truncate the Session about now, but it was thought that the best thing to do was to go to next year”.—[Official Report, 21/3/11; col. 526.]

The question from where I am standing is: the best thing to do for whom? In whose interest was it unilaterally to determine that there should be a two-year Session?

I simply put two questions to the noble and learned Lord, Lord Wallace. First, was there any consultation through the normal channels about the Government's decision unilaterally to decide, for the first time in the past 30 or 40 years—I am sure that the historians could go much further—on a two-year Session which is massively to the Government’s advantage? Secondly, I really would like to know, once it was determined to be the “best thing to do”, in whose interest the decision was thought to be made. I beg to move.

--- Later in debate ---

[Lord Howarth of Newport]

I suppose we could do what the Scottish Parliament does, which is to have no sub-division into annual Sessions within a four-year term—apparently shortly to be a five-year term in the Scottish Parliament. I think that we should either go the whole way in abolishing parliamentary Sessions and having some kind of continuing, rolling process of legislation, or have a rational, predictable, orderly division of the time available in a Parliament.

The amendment in the name of my noble friend Lord Grocott should not be necessary. It is clearly undesirable to legislate on internal proceedings in Parliament, but we have been driven to it by the behaviour of the coalition Government in awarding themselves a two-year Session in which they should have been able to get anything at all through. Their potential abuse of parliamentary strength has been mitigated only by their incompetence in failing to take advantage of the situation that they created for themselves. In the early months of this Session, we had almost no legislation introduced; we then had an immense amount of time spent on constitutional legislation, which the public did not want, culminating in the fiasco of the AV referendum. We now have the pause in the NHS legislation. I am given to understand that there are going to be new Bills introduced at Second Reading this summer, so that even with a two-year Session, they may run out of time to complete their programme; it really is pretty chaotic.

My noble friend does the House, and indeed Parliament, a service in drawing attention to this consideration. While I would not wish to see his amendment get on to the statute book, he very properly challenges the Government to think carefully about how they handle proceedings within this House. I do not want a written constitution but I want respect for the unwritten constitution.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Grocott, for affording the House a further opportunity to consider and scrutinise this point, which, as has been indicated, he first raised in Committee. At that point I indicated that the two-year Session that we are currently in was intended as a transitional situation so that we could get into a position where we had 12-month parliamentary Sessions that fitted in, should Parliament pass a fixed-term Parliament Act.

I draw your Lordships’ attention to the Written Ministerial Statement made by my right honourable friend the Leader of the other place, Sir George Young, on 23 March. He reiterated the Government’s decision to extend the current Session of Parliament to spring 2012,

“in order to ensure a smooth transition towards five, 12-month Sessions over a Parliament, which would be a beneficial consequence of Parliament agreeing the Fixed-term Parliaments Bill”.—[Official Report, Commons, 23/3/11; col. 57WS.]

I hope that the House and the noble Lord will be assured that it is our intention that there should normally be five Sessions in a five-year Parliament. While the expectation is that future Sessions will last for 12 months, it remains inappropriate to enshrine that in statute; indeed, I think that I understood the noble Lord himself to indicate that he would prefer that working practices and conventions were not enshrined in statute. It is our intention that in future Parliaments there should be five 12-month Sessions.

In the Bill we have sought to do only what is necessary to establish fixed-term Parliaments for the United Kingdom. I am not convinced that the case has been made for legislating for the number of Sessions. The Bill does not abolish the prerogative power to prorogue Parliament, which will continue to be used to set parliamentary Sessions, nor does the Bill affect the powers of each House to adjourn. It is worth noting that the Constitution Committee has endorsed our decision not to abolish the prerogative power to prorogue.

Future Sessions after this one will last for only 12 months. The noble Lord asked me about the points that I made in Committee. When I talked about truncating this Session, that was on the basis that, as he acknowledged, when elections have been held in May or June it has been customary for that first Session to continue through to the following October or November. To have had a Queen’s Speech around now would therefore have meant truncating what had been expected at the outset.

I have made it clear that the decision to go for two years and thereafter to have 12-monthly Sessions was taken not in May last year but at a later stage. I am not aware that there was any consultation—I accept that criticism—but this was intended to be a transitional measure. By that stage, the Government’s legislative programme had been announced and it would have been very difficult if we had moved immediately to a 12-month Session for the first Session, although that could have been done if it had been thought about at the outset. I hope that the House will accept that that is the purpose of this being a two-year Session. It is not intended that this should be repeated. My right honourable friend the Leader of the other place has indicated that it would now be our intention to move to five 12-month Sessions in a Parliament.

I take the point made by my noble friend Lord Norton about this always being in the interests of Parliament. My experience in your Lordships’ House in the run-up to the most recent general election is that, with the final Session starting in November and finishing in March in order to accommodate a May election, we have tended to have a short Session that I do not believe allows proper scrutiny of legislation. This led to a very unfortunate situation in the wash-up where large parts of Bills were ditched, some of which are now on the statute book but certainly did not have the kind of scrutiny that we would normally expect. Having five 12-month Sessions will allow for proper planning of legislation. While it would be unwise to say that there will never be any kind of wash-up at the end of the final Session, one hopes that there will be far less than has been the case hitherto. One of the advantages of a fixed-term Parliament is that it will be possible to plan a legislative programme in a way that will not lead to these log-jams at the end, when much legislation is virtually nodded through.

The decision having been taken to move to fixed-term Parliaments, and since we seem—for better or worse—to have moved into a situation where elections are held in May, the Bill provides for elections in May. Therefore, it makes sense that we should have annual May-to-May Sessions. I repeat: the current two-year Session is a transition. No doubt what we gain here is that there is only a finite amount of legislative time in the Parliament as a whole if it lasts for five years. It would not be appropriate to put that in the statute. I am grateful to the noble Lord for giving me an opportunity to reiterate the position and to flag up what my right honourable friend the Leader of the other place has said on this matter. With these reassurances, I hope the noble Lord will be prepared to withdraw his amendment.

[Lord Grocott]

I am grateful to the noble and learned Lord, Lord Wallace, for that response. He simply holds a fundamental view on the constitution. So do I, but it is a different one. He is comfortable with a legislative programme being neatly sliced and organised over a fixed-term Parliament, whereas I have been straightforward with the House in saying that I am not at all comfortable with that. I like the flexibility that normally obtains with our parliamentary system. I do not even have the problem that he has with the last Session of a four-year Parliament quite frequently being a five or six-month pre-election Session. All that the Bill will do is make sure that it is a 12-month pre-election Session instead of a six-month pre-election Session. It will also lead to a lot of uncertainty.

I was straightforward with the House in saying that I was, in some respects, very uncomfortable with my own amendment. For the reasons I have already set out, I do not like putting our constitution in any more of a straitjacket than it needs to be. I am very grateful for the contributions that have been made. As ever, I find myself agreeing with the noble Lord, Lord Brooke, on most things, particularly his reference to the 1945 to 1950 Labour Government having been the greatest Labour Government. I would go marginally further and say that it was the greatest peacetime Government in the history of this country; there is only a word’s difference between us.

I was taken with the point made by the noble Lord, Lord Norton. I agree with him that maybe a year is not necessarily the best period. Maybe it is worth discussing that. I strongly believe in the convention that we have. If a Government are unable to contain their legislative programme within an agreed period of time, there should be an agreement by either House to carry a Bill over from one Session to the next only after the most rigorous tests. However, I take the noble Lord’s point. I must admit that I was stopped in my tracks by my noble friend, who reminded me that it was against the philosophy of several of us to try to put the proceedings of this Parliament into too strong a legislative framework.

The point has been made, as the noble and learned Lord, Lord Wallace, has acknowledged. It is written in blood in Hansard that there will be 12-month Sessions for the remainder of this Parliament until the happy day when it comes to a conclusion and a Labour Government can repeal the whole of this legislation. In light of what has been said, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

I had thought before hearing the debate that I would tend to support the noble Lord, Lord Rennard, but I found what the noble Lord, Lord Norton of Louth, said powerful. Everyone appears to agree that the election is unlikely to be called early anyway; if there is sufficient consensus for it to be called early, that can be dealt with by the two-thirds provision. If it is to be up to two months late, that is a moderately massive exception and if it is to be done, there needs to be consensus. If there is that degree of consensus, it is extremely likely that emergency legislation can be got through in order to achieve it. We are much better off being certain. Having not intended to take this view, I am afraid that I found what the noble Lord, Lord Norton, said, rather powerful. I invite the Government to reflect on what the noble Lord said and perhaps bring the issue back at Third Reading. If the Minister brings back the issue at Third Reading in a way that reflects the arguments of the noble Lord, Lord Norton, or alternatively says, either now or at Third Reading, why the noble Lord is wrong, I would not support the noble Lord. However, if he does not, my inclination is to support the noble Lord, Lord Norton, either now or, as seems more sensible, after the Government have had an opportunity to reflect and come back at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as has been indicated, the purpose of the operation of the order-making power in Clause 1(5) is to provide, by a resolution of both Houses, for a Parliament to be extended by two months or for an election to be brought forward by up to two months because of an emergency or unforeseen circumstance. The Bill provides for five-year fixed terms and it is envisaged that elections would happen on the first Thursday in May every five years. However, we are conscious that there could be a short-term crisis that would mean that it would not be practicable to hold the election on the prescribed date. As was discussed in earlier debates and again this evening, such a scenario occurred in 2001 when an outbreak of foot and mouth disease meant that it was necessary to delay the date of the local elections in England, which were set by statute, and primary legislation was required. As it was only four years into the Parliament, it did not theoretically affect the date of the general election, although the widely anticipated date of the election was postponed because of the outbreak.

The power would allow the Prime Minister to vary the date by affirmative order by two months, earlier or later. It is worth bearing in mind that the Delegated Powers and Regulatory Reform Committee examined this power and concluded that it,

“does not consider the power to be inappropriate in principle”.

However, it recommended that the Bill should be amended to require that a statement setting out the Prime Minister's reasons for proposing the change of polling date must be laid before both Houses at the same time as the draft order. The Government considered and listened to the recommendation and the case made by the committee and, as noble Lords will recall, made the appropriate amendment in Committee, which indicated that we were ready and willing to respond to the committee.

The power is deliberately framed to be non-prescriptive. It is intended to be used in emergencies when we cannot predict what situation will arise, and to deal with a variety of scenarios. When including this power in the Bill, as my noble friend Lord Norton indicated, we looked at powers in the devolution Acts that allow for the dates of general elections to the devolved institutions to be delayed or brought forward. In the case of the foot and mouth outbreak in 2001, there would have been no point in bringing forward the election.

I accepted earlier that I had struggled to find a reason why we might want to bring forward an election. The noble Lord, Lord Pannick, suggested that the Olympics or the World Cup might be such occasions. We considered these as well. We know that the Olympics are unlikely to be awarded again to Britain for the foreseeable future, given that they will happen here next year. Regrettably, England did not succeed in its bid for the World Cup, and I am not sure that Scotland, Wales or Northern Ireland have a bid in preparation. I offer as a piece of political trivia that, such is the importance of the World Cup, the one parliamentary election in recent times not to be held on Thursday was the Hamilton by-election in 1978, which was held on a Wednesday so that it did not clash with Scotland's opening match in the World Cup in Argentina. I am not sure that it did Scotland much good.

[Lord Bach]

The noble Lord should not forget 2026 for the World Cup.

[Lord Wallace of Tankerness]

My apologies. I am not sure that the World Cup has traditionally been at this time of year. It would clash with the exciting climax to the Premiership and the build-up to the FA Cup final, the Scottish Cup final and the Scottish Premier League, whatever shape or form they may be in by 2026. My point is that we have struggled and we cannot readily think of a situation in which one might wish to bring forward an election.

It was our intention to future-proof the Bill, but, with regard to Amendments 12 and 14 in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks, I do not believe that by accepting them we undermine what we seek to achieve in the Bill. As has been pointed out, if it was necessary to bring forward a scheduled general election because the unforeseen event that none of us can think of actually happens, it would be open to the other place to pass a Dissolution Motion with the support of at least two- thirds of all MPs to trigger an early general election. That point was made by my noble friend Lord Norton. In the light of that, the Government would be willing to support these amendments and I hope your Lordships’ House would be willing to accept them.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so, and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote—although I cannot remember whether or not it was a vote of no confidence—but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals—not the Liberal Democrats—to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess—it is obvious that it is a mess—because the coalition is looking for a mechanism to hold itself together, as David Laws’s book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws’s book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either—14 days of nothing or the old Government coming back as a retread new Government within the 14 days—is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment—namely, the present system. A vote of no confidence normally allows for an election but is flexible enough to ensure that a Government emerge when appropriate.

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

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships’ House described it. I have not heard in any of our debates—either at Second Reading, in the other place or indeed in any of our Committee debates—anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration may be formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it were not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

[Lord Forsyth of Drumlean]

I am intrigued by the analogy that the Minister uses in respect of requiring a larger majority than a simple one as a safety valve. Is that not a bit like taking a boiler, setting the pressure 30 per cent higher and saying that is making the thing safer? Surely, a safety valve implies a lower trigger, not a higher trigger.

[Lord Wallace of Tankerness]

I was using the terminology used by your Lordships’ Constitution Committee. It is not one I would necessarily disagree with, but what was meant by the safety valve—and the chair of that committee is here—was that, rather than be completely locked into a rigid fixed-term Parliament, with no way out if Parliament was unable to continue, there be mechanisms to trigger an election. One of them is where most sides agree that there should be an election and they constitute the two-thirds majority that would lead to an immediate Dissolution. The other mechanism by which an election would be called is where there has been a vote of no confidence in the Government and, within a period of 14 days, no other Government have been able to command the confidence of the House of Commons. It is fair to say—

[Lord Forsyth of Drumlean]

Surely, given how the noble and learned Lord has explained it, the safety is being provided for the Executive in order to stay in office, which contradicts the whole thrust of this Government’s position that this Bill is about handing more power back to Parliament. The safety valve is being provided for the Executive.

[Lord Wallace of Tankerness]

My Lords, maybe “safety valve” leads to a misleading impression of what is meant. It is not a safety valve for the Executive; it is a safety valve for Parliament. If Parliament recognises that it is no longer able to function, there is one mechanism for finding a way out of that breakdown, and that is by calling an election. That is certainly not to the Executive’s advantage. Alternatively, where a Government have lost the confidence of the House of Commons and no other Government can be established, again, there is a mechanism for an election to be called. I do not believe that in any way helps the Executive.

[Baroness Jay of Paddington]

I go back to my point about the use of the phrase “safety valve”, which I think appears throughout the Constitution Committee’s report in quotation marks. The question about whether it is for the Executive or the legislature is not one we pursued. In response to the exchanges we have just heard between the Minister and the noble Lord, Lord Forsyth, one is brought back to the question raised by my noble friend Lord Grocott: “Why make this so complex? Why not just stick with the present position?”. Everything that the Constitution Committee said about this was in relation to the complexity of the provisions in this Bill.

[Lord Wallace of Tankerness]

My Lords, I think it is also fair to say that the general trigger mechanisms, if I can call them that, were generally supported by the Constitution Committee which had a lot of negative things to say about this Bill.

[Baroness Jay of Paddington]

My Lords, I am sorry to interrupt the noble and learned Lord again but that is precisely the point I was making earlier. Those were the understandings within the context of this Bill and not the political judgments which have been expressed, rightly, in this debate.

[Lord Wallace of Tankerness]

I am grateful to the noble Baroness for confirming that in the context of this Bill these were identified as the correct mechanisms. As I indicated, if passed into law, this Bill will certainly bind this Government and this Parliament, and it will also look to the future.

The problem of the position being abused also engaged the concern of the Constitution Committee, and much of the noble and learned Lord’s Second Reading speech was devoted to that. Again, if you just had a straightforward, simple Dissolution which could be conjured up by the Government of the day, that would drive a coach and horses through a Bill which was intended to lead to a fixed-term Parliament. If the Prime Minister could conjure up a vote of no confidence knowing that would trigger a general election, it would restore the power of Dissolution with the Prime Minister.

[Lord Campbell of Alloway]

I have a very short question. Will my noble and learned friend deal with the argument of the noble Lord, Lord Grocott, which appeared to me to be totally acceptable? Can he say what is wrong with the constitution? If there is nothing wrong with it, what are we doing messing about with it?

[Lord Wallace of Tankerness]

My Lords, I am trying to address the arguments advanced by a number of noble Lords and will certainly come to the point made by the noble Lord, Lord Grocott. He asked what was wrong with the position in 1979. Under our constitution as it then was and as it stands today, the Prime Minister followed a course of action which was constitutionally acceptable. We are looking at a situation where that would not be the framework within which the Prime Minister was acting—he would be acting within the framework of a Parliament elected for a fixed term. The then Prime Minister had the choice of whether to resign or immediately call a general election. He chose to seek a Dissolution. Resigning would not be possible under the amendment moved by the noble Lord, Lord Howarth. What we are seeking to do is take away the power of the Prime Minister to call an election. I think my noble friend was trying to get in earlier—

[Lord Cormack]

Yes I was. I am most grateful to my noble friend, who is the most conciliatory of men—but. The two devices of the 14 days and the two-thirds majority are in this Bill to protect whoever is the Prime Minister and whoever are the Executive, and there can be no getting away from that. Surely, allowing a Prime Minister, having lost the confidence of the House of Commons, 14 days, or allowing two-thirds of its elected Members—not two-thirds who are necessarily there at the time—to vote for a Dissolution, is a protective device and one that gives time for the powers that be, the Whips Office and elsewhere, to work on Members. It will make for a thoroughly undignified situation, and it will only add power to the Executive and take it away from Parliament, where it rightly belongs.

[Lord Wallace of Tankerness]

My noble friend Lord Lamont has also been trying to get in. If he wishes to ask a question, I shall deal with it and then press on.

[Lord Lamont of Lerwick]

At Second Reading, my noble and learned friend said that the advantage and the public interest in having a fixed-term Parliament was predictability and continuity, as a Government could then complete their programme over a five-year period. I understand that argument. However, what public good is produced when a Government with a wafer-thin majority lose the confidence of the legislature and then artificially try to create a situation in which a new type of Government with new allies might be formed? Why is that in the public interest? Why have these two devices to try to create a new Government in place of the previous one? I do not see the public interest in completing five years with two different Governments.

[Lord Wallace of Tankerness]

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

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

[Lord Norton of Louth]

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

[Lord Wallace of Tankerness]

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

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

[Lord Maxton]

My Lords—

[Lord Wallace of Tankerness]

I am sorry, but I have been very generous. It is important that we make progress.

We took the judgment that 14 days was the appropriate time to allow for another Government to be formed. I pick up on the point made by my noble friend Lord Newton of Braintree, who said that more than five days might have been better in May last year. I leave that thought hanging. We have a culture here of doing it in one day, with the pantechnicons rolling up into Downing Street and furniture being taken out. That may not be healthy, particularly if we are in a situation where there may well be more elections that do not produce an outcome with an overall majority for one particular party.

The position with the devolved Administrations is not always comparable, but I simply reflect that in 1999, after the election to the Scottish Parliament, there was a situation where no party had a majority. The pressure on those of us who were negotiating to try to establish a Labour-Liberal Democrat coalition was quite intense for that to be done in a relatively short period time. By the time of the 2003 Scottish election, where again there was no overall majority, there was not the same pressure. We were able to deliberate longer before finalising a coalition agreement; because of our experience in 1999, we had changed the expectation, as it were. I believe that is what would happen, as there would be a change of expectation and there would not be the same level of pressure to rush into an agreement. As my noble friend Lord Newton indicated, places like Germany seem to take a bit longer than we do without necessarily causing great upheavals there.

That is why we took the view that 14 days was right. It is not just 14 days to establish a Government but 14 days during which a new Government would have to be established and a vote of confidence in that Government to have been passed by the other place. Therefore, it is not simply the formation of a Government. It could well be that during that period of time it became blindingly obvious to everyone that no Government would be formed. In those circumstances the sensible thing might be to have a dissolution motion, agreed by all parties, so that an election could be triggered rather than waiting the 14 days. Equally, if a new Government were formed very promptly, we would not have to wait 14 days either for that period of relative uncertainty, as it was described, to be over.

As the noble Lord, Lord Clinton-Davis, who is no longer in his place, pointed out, in 1979 there was a period of five weeks before the Government were defeated. The point I would make is that, in trying to arrive at the 14 days, we wanted to look at the fact that there was a period then, and there would also have to be an election period after it. We did not want to make it too long, but equally we felt that too short a period might not allow the appropriate level of time. A balance has to be struck. I take the point made by the noble Baroness, whose Constitution Committee did not make a political judgment; nevertheless its constitutional judgment was that the Government got it right constitutionally in allowing a period of 14 days.

A similar amendment was considered in the other place, where I think it was defeated overwhelmingly. Indeed, Mr Chris Bryant indicated that he was very much with the government Front Bench on the matter. I think that the amendment would lead to restoring the power of the Prime Minister to trigger a general election when he or she wished it to happen through a vote of no confidence. The noble and learned Lord, Lord Falconer of Thoroton, expressed concern that even with the 14 days that could happen. I believe it could happen even more easily with the amendment proposed by the noble Lord, Lord Howarth. That would drive a coach and horses through the principle of having a fixed-term Parliament and taking away the power from the Executive. Therefore I urge him to withdraw his amendment.

[Lord Howarth of Newport]

Will the noble and learned Lord tell the Committee whether he intends to take away the subsection in order to redraft it to eliminate the ambiguities which expert academic commentators have drawn attention to and which I think are significant?

[Lord Wallace of Tankerness]

I apologise to the noble Lord, as I think that was his very first point, which was also picked up in the report of the Constitution Committee. In the light of that, we have considered the wording and we do not believe that it leads to ambiguity. We are not looking to a situation where there is, as it were, an investiture or a notional vote on whether someone should be recommended to Her Majesty the Queen to be Prime Minister; a Government would have to be formed. However, in the light of his comments and those of the Constitution Committee, I am willing to look again to see whether the matter can be even further clarified. However, having considered it at some length, we think that the wording actually says what it means on the face of the Bill. Nevertheless, I undertake to consider the point that the noble Lord made.

[Lord Howarth of Newport]

I thank the noble and learned Lord for his willingness to look again to see whether the drafting could be clarified. I think that is important.

The debate that we have just had shows that this question of whether there should be a 14-day provision following a vote of no confidence is a subject that has been very well worth our while to consider. The Minister denied that the provision is a contrivance, but if it is not that in itself, it is the product of a contrivance—a contrivance to keep the coalition in place for the longest possible time. On this policy of fixed-term Parliaments, the more we examine it in this Committee, the more we realise that there are much greater difficulties attaching to what appeared to be a simple and beguiling proposition than were recognised at the outset by the framers of manifestos in various political parties and by Ministers as they prepared this Bill.

The noble Lords, Lord Cormack and Lord Norton of Louth, underscored how, among the risks contained in the provisions in Clause 2, there is the risk that the provisions will, perversely, serve to protect the position of the Government. I acquit the coalition of having that motive, perhaps, but that may be the consequence of the provision. The noble Lord, Lord Newton, was of course right to remind us that politics does not stand still and that we may well continue to see rather different electoral outcomes from those that we were accustomed to seeing in past decades. The constitution, of course, always needs to respond flexibly, pragmatically and appropriately. That is one great virtue of not having a written constitution and one reason why I worry that this Government are so keen to write into statute great chunks of a new constitution. That is a difficult thing to get right; it may well be impossible.

My noble and learned friend Lord Falconer and my noble friend Lord Grocott described graphically the absurdities that would have occurred had this Bill been on the statute book in 1979, or indeed in 1940, with the undignified and chaotic situation that that would have produced in Parliament.

[Lord Wallace of Tankerness]

On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.

[Lord Falconer of Thoroton]

The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton of Louth for his amendments and the noble Lord, Lord Howarth of Newport, who again has made some interesting and constructive contributions. Amendments have been tabled, not least the amendments in the name of my noble friend Lord Cormack, regarding procedures in the Bill concerning motions of no confidence, what the consequences of those might be and whether they need to be more tightly or more widely specified to cover different situations. I repeat what I said at the start of some of our amendments on the second day in Committee relating to the Dissolution provisions in Clause 2. We are willing to listen to what noble Lords have to say on these matters. I particularly note the point made by the noble and learned Lord, Lord Falconer of Thoroton. I understand that the thrust of his comments at Second Reading was that the Bill would be open to abuse by a Prime Minister who might wish to contrive a situation to get a Dissolution at the time of his or her choosing and therefore defeat the purpose of a fixed-term Parliament. I would want to consider what he proposed in the light of that and whether it might make dealing with the potential for that abuse simpler; and, on the specific amendments, whether the choice of having a Dissolution or a resignation that could lead to another Government being formed, as happened in 1924, should remain solely in the hands of the Prime Minister or whether Parliament should have a role, as we would seek to provide.

[Lord Falconer of Thoroton]

The noble and learned Lord is absolutely right that I regard the position of there being a contrived vote of no confidence as quite easy under this Bill, but I do not think that there is any dispute about that. The noble and learned Lord accepted it, the committee chaired by the noble Baroness, Lady Jay, accepted it, and I have asserted it. So it appears to be agreed on all sides. I do not think that there is anything that can be done about that. Indeed, as I made clear, it would have been right for Mr Heath to have insisted on there being an election through a vote of no confidence if the Opposition had not agreed to an election in 1974 and if there had been a fixed-term Parliament. I see that as indicative of the fact that you are not taking away much power from the Prime Minister. My problem is the idea that the more rigid you make the measure, the more you allow a Prime Minister and a Government to stay in power when it is perfectly plain that the Commons wants to see the back of them and there should be a general election. I see that as the much more dangerous aspect of the Bill.

[Lord Wallace of Tankerness]

I am interested in the noble and learned Lord’s comments, and I shall reflect on this matter. The second point that I made was whether the choice between seeking a Dissolution or there being a resignation with the possibility of an alternative Government being formed should be entirely the choice of the Prime Minister alone or whether, as we seek to do, there should be a role for Parliament when no other Government can be formed and 10 days have elapsed without a confidence motion being passed by Parliament. As I understand it, however, the objective is much the same. In a situation when you have a fixed-term Parliament and it becomes obvious that there is a logjam or deadlock, there must be some means of breaking it and triggering an early election.

The same argument applies to a point made my noble friend Lord Norton of Louth. I assume that he sees Amendments 35 and 38 as being taken together as part of a package. Under one of his earlier amendments, Amendment 27, he said that if the Prime Minister’s discretion over the date of the election were removed, as would happen with a fixed-term Parliament, it should be provided,

“that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed”.—[Official Report, 21/3/11; col. 564.]

Although this is a technical problem that could be looked at, as presently constructed the proposal could mean that the Prime Minister of the day might choose neither to seek Dissolution nor to resign. I am sure that that is not the intention behind the amendment as it would create a very difficult situation. However, it could be a consequence of the amendment. I do not want to make too much of a technical point as I am sure that that is not a scenario that my noble friend seeks to advance.

At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.

Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—

[Lord Falconer of Thoroton]

My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.

[Lord Wallace of Tankerness]

My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.

I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter of judgment, but it does provide for a period for that second outcome of another Government being formed to actually happen. We have debated this issue already and we are due for another debate on an amendment tabled by the noble Lord, Lord Kennedy, on whether 14 days is right. However, the provision does allow for a period for that to happen and, if it does not happen, for us to proceed to an election.

[Lord Grocott]

Can the noble and learned Lord answer this question? It has been raised on a number of occasions but I have never heard a specific answer to it. Under the Bill, if the Liberal Democrats decide at some time in the next four years that they cannot support the present Government, the Government lose a motion of no confidence and, during the subsequent 14 days, the Liberal Democrats decide to support the Labour Party—which would not give many of us a great deal of joy—an entirely new Government could be formed without any reference to the British people whatsoever. Is that the position?

[Lord Wallace of Tankerness]

It is a very hypothetical situation. Any new Government, as the noble Lord suggests, would have to be subject to a positive vote of confidence. The noble Lord, Lord Grocott, says that they would get it. That does not necessarily follow because clearly the two parties do not command a majority in the House of Commons. It is hypothetical but, if the other Government were formed, possibly involving the Liberal Democrats and the Labour Party, and it commanded the confidence of the House of Commons, which is crucial, the fixed term would continue to its natural conclusion.

[Baroness Jay of Paddington]

My Lords, I hesitate to repeat the quotation that I gave from the Constitution Committee’s proceedings in the last debate, but surely the answer to the question put by the noble Lord, Lord Grocott, is the one that Mr Mark Harper gave to the noble and learned Lord, Lord Goldsmith, in response to exactly the same question—hypothetical though the noble Lord, Lord Grocott, suggests it is—which was that it depended on the circumstances,

“but I think that it could”.

The noble and learned Lord, Lord Goldsmith, asked him whether it could produce a Liberal Democrat and Labour Government, and that was the answer that Mr Mark Harper gave.

[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.

[Lord Howarth of Newport]

In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.

[Lord Wallace of Tankerness]

I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.

[Lord Grocott]

If this game of musical parties were to occur—more specifically, if the Liberal Democrats were to decide which party they wanted to operate with—it would be very difficult for Mr Clegg to continue his argument that this was reconnecting Parliament with the public.

[Lord Wallace of Tankerness]

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

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

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

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

[Lord Norton of Louth]

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

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

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

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

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

[Lord Wallace of Tankerness]

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

[Lord Norton of Louth]

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

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

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

[Lord Falconer of Thoroton]

I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,

“if no Government had obtained a vote of confidence since the last general election”,

would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.

[Lord Wallace of Tankerness]

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

[Lord Forsyth of Drumlean]

I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.

[Lord Wallace of Tankerness]

My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I welcome the thoughts of the noble and learned Lord but I invite him to withdraw his amendment in the light of my comments.

[Lord Falconer of Thoroton]

Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.

With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.

A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.

The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.

With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to include those words to achieve the aim, as the words have their own significant pedigree. They were based on the Parliament Act 1911, where Speaker’s certificates are equally conclusive for all purposes. It follows the language used in the House of Lords Act 1999, under which the certificate of the Clerk of the Parliaments is conclusive. The effect of those words in the Bill and those Acts is to make clear that parliamentary privilege applies to the matters being certified. Accordingly, we do not believe it necessary to make further provision along the lines suggested. As ever, making further provision may cast doubt on earlier enactments which do not include those words. I do not think that any of us want to go there.

The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.

I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,

“the weight of the evidence we received being against the view that a Speaker’s certificate would be justiciable … The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

[Lord Forsyth of Drumlean]

I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?

[Lord Wallace of Tankerness]

It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no confidence and that 14 days have elapsed without any vote of confidence in a new Government having been passed.

There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.

[Lord Forsyth of Drumlean]

Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?

[Lord Wallace of Tankerness]

I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for having an election not on the date which would otherwise be the case have been met.

[The Earl of Onslow]

Can the noble and learned Lord give me any precedent where a specific motion of no confidence in the Government has been passed, followed two, three or four days by another motion saying, “Actually, we made a boo-boo and we do have confidence in the Government”? I cannot think of one in the 19th century, or, probably, in the 18th century; and certainly not in this century. Or am I being stupid, like my noble friend Lord Forsyth?

[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.

--- Later in debate ---

[Lord Wallace of Tankerness]

It is for the purpose of making it legally certain that the circumstances have been met, that the conditions have been fulfilled, under which an early election could be called and that the next election should not be on the date on which it would otherwise be under the Bill. That is the purpose. If it is of a factual nature, that should not cause any problem or place pressure on the Speaker. I acknowledge that where the Speaker has to decide whether a matter is a vote of no confidence or not, other factors come into play, and we have certainly listened to what has been said.

[Lord Martin of Springburn]

I thank the Minister for being patient with me. The noble Lord, Lord Marks, was kind enough to say that proceedings shall not be challenged. It is important that the Minister goes away to consider this and perhaps consults the noble Baroness, Lady Boothroyd, and myself on our experience. I am talking from memory, but the signing of a certificate is not necessarily regarded by the courts as a proceeding of Parliament. Decisions are proceedings of Parliament, but the signing of a certificate by the Speaker is different and is not necessarily regarded as a proceeding of Parliament. I throw that one in, and it is important that the Minister goes away to think about this.

[Lord Wallace of Tankerness]

My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.

Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.

The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.

In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of Parliament leading to the Hunting Act being passed had been complied with. The House of Lords in its judicial capacity did not look behind the Speaker’s certificate and did not question the internal proceedings of Parliament. It indicated that it would not and could not look at the internal proceedings adopted in Parliament in enacting the Hunting Act 2004.

The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.

I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.

Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, this has been an outstandingly important debate about an outstandingly important subject. I hope that Ministers will study it and think very carefully about the advice that noble Lords have offered. In particular, Ministers should study the speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn—two former Speakers of the House who have a wisdom to offer that the Government should certainly heed with the greatest care.

Mr Harper, the Minister, may care to reflect upon exactly why the noble Baroness, Lady Boothroyd, said in round terms that he is wrong. She made a very important speech and, as my noble and learned friend Lord Falconer said, it ought to make any Government stop in their tracks. She spoke about the unsuitable extension of the Speaker’s role and, in particular, the requirement of certification. We will have an opportunity to discuss that matter later this evening when we debate Amendment 50, in the name of the noble Lord, Lord Cormack, and my amendment to that, Amendment 51, which would delete the subsections that require Speaker’s certification—precisely because I share the noble Baroness’s view that this is a dangerous innovation.

The noble Lord, Lord Martin, floated the possibility that the act of certification by the Speaker may not in itself be a proceeding in Parliament. That perhaps could lead to it being all the more questionable in the courts, but, at all events, certification would relate to other events that have been proceedings in Parliament. We are still fairly deeply entangled.

The noble Baroness spoke about the problems of definition of a no-confidence motion and the scope for legal contention that could arise out of that. Both she and the noble Lord, Lord Martin, advised the House about how contentious the atmosphere would be in the House of Commons—the anger, the passion and the fury that would be raging around the rather solitary person, the Speaker, as he or she issued a certificate. The Speaker would of course be supported by the Clerk of the House, but, in the end, the Speaker would have to take this responsibility of adjudicating on the most intensely political issues that it is possible to imagine. Is it really wise to place the Speaker of the House of Commons in such a situation?

We need to pause and reflect, not least in the context of what both former Speakers described to us as the growing power and challenge of the judiciary to Parliament, and its growing willingness to engage in political issues in certain ways. That echoes the phrase used by the Clerk of the House, when he referred to a Supreme Court that has “not yet got its teeth into these matters”. If our Supreme Court has been relatively restrained, the European Court of Human Rights has not. As long ago as the case that occurred during the Speakership of the noble Baroness, Lady Boothroyd, when the European Court of Human Rights entertained the Sinn Fein case, it was already willing to venture into this territory. The Clerk of the House of Commons certainly offers no encouragement to believe that those courts, as time goes by, will become any less willing; indeed, he anticipates that they will be more so.

Both former Speakers and the noble Lord, Lord Forsyth of Drumlean, drew attention to the sheer status and standing of the advice of the Clerk of the House of Commons, supported by his fellow Clerks and by other legal counsellors. This is very serious and authoritative constitutional advice. Whether or not it was brushed aside, it must be given the most serious regard. I do not for a moment suggest that the Constitution Committee did not give it that most serious consideration, but I suggest that it is also for this Committee—for the whole House—equally to ponder carefully the advice he gave.