Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.

It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.

I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.

Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.

It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.

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

My Lords, my noble friend Lord Norton of Louth was quite correct, as other speakers in this debate have indicated, to draw attention to the provision in the Parliament Act 1911, which indicates:

“Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection”.

My noble friend inquired whether that was simply because of precedent and suggested that there are differences between the definition of a money Bill and what is required of the Speaker in the context of this clause. I accept that this arises from there being a precedent for such a requirement and acknowledge that there is a difference between determining what is a money Bill and the nature of the certification that would be required of the Speaker in the context of this Bill. What they have in common is that they are matters which have important constitutional consequences. That is why we thought it appropriate, given that there is a precedent for the Speaker to consult two very senior members—in the case of the Parliament Act, two members of the Chairman’s Panel and in this case Deputy Speakers—that we should follow that precedent.

When I was listening to the noble and learned Lord, Lord Falconer of Thoroton, I was thinking that if we had not included this we would probably have been accused of not having thought this through. In the Parliament Act, there is provision for consultation with the Deputy Speaker and we would have been asked why we had not included a provision to consult the Deputy Speakers.

[Lord Falconer of Thoroton]

I feel that the noble and learned Lord is getting a bit paranoid. No, I would not have said that.

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not see the irony in arguing the case for this on the basis that it is a tried-and-tested procedure while turning upside down the whole tried-and-tested procedure of how we decide when we are going to have a general election?

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken in this short debate, which is an important debate to be had. I am still left wondering what value is added by this provision. My noble and learned friend has confirmed that, of the two definitions I offered, the first was correct. The Government have looked at the Parliament Act in which there is a provision that has been carried over. That seems to be the sole reason.

In terms of the argument, I am not quite sure why the provision should be there. The noble and learned Lord, Lord Falconer of Thoroton, was right. The Speaker is quite capable of consulting those whom he wishes to consult. If the provision was not in the Bill, it would avoid the legal problems to which the noble Lord, Lord Howarth of Newport, referred. The more we can do to reduce the prospect of legal challenge, the better. As the noble Lord, Lord Howarth, pointed out, there is a problem with the position of the Deputy Speakers, who are neutral figures as Deputy Speakers but seek re-election as party candidates.

The Minister’s argument is that this is based on precedent, as it is in the Parliament Act, which also has a definition of a money Bill. I am not quite sure why we are following the precedent of consultation but not following the precedent of having a definition as the basis on which that consultation takes place. Either one follows precedent and does both or one does neither. I cannot see the argument for saying, “Well, this is in the Parliament Act, so we’re lifting that” and “This is in the Parliament Act, but we’re not lifting that”, even though the definition, to which we will come, is far more important. That is essential in this Bill and I do not see why we need Clause 2(4).

I hope that my noble friend will reflect on that. He has heard the arguments and I think that he has recognised the value of them. I hope that it is something he might consider between now and Report. But in the interim, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

[Lord Wallace of Tankerness]

My Lords, I readily understand the thinking behind the amendment moved by my noble friend Lord Marks. If the Bill is intended to remove the opportunity for the Prime Minister of the day to take a partisan view on the timing of the election, I can see why, the Prime Minister having lost a vote of confidence, you might then wish to restrict the Prime Minister's room for manoeuvre on setting the date—either to go too soon, which may give a campaigning advantage; or to delay unreasonably. Nevertheless, the amendment is unnecessary. More importantly, practical issues could flow from it.

If we take the case of delaying too long, in the context of Clause 2(6) and the Bill as a whole, it is clear that the Prime Minister would be required to recommend to Her Majesty a prompt election. If two-thirds of the House—the other place—had voted for an early election, one would imagine that the Prime Minister would be as anxious as anyone to get on with it. Likewise, although the Prime Minister may be less keen for an early election where there has been a motion of no confidence, and no other Government have been formed, that would also be a clear statement from Parliament that it expected to see change and an election. The electorate would share that view. This is pure speculation, but if the Prime Minister tried to pull a fast one and delay unduly, that decision could be subject to challenge.

On the other hand, there are limits as to how quickly the Prime Minister can move if he seeks an early polling day. Clause 3(1) dissolves Parliament 17 working days before polling day, so the timetable at Dissolution is fixed and is known to all sides. Therefore, there is no way that that could be cut short for advantage. There is already that backstop as to how an election could be called.

My biggest concern is practical. The Government decided not to set specific limits that inadvertently tied hands in circumstances which could lead to a situation such as that described by the noble and learned Lord, where the election campaign might be some time between 18 December and 16 January. It is almost inevitable that if we were to try to fix those times, the first example would be when it fell in a period where campaigning would be very difficult. We should allow flexibility to allow a general election to be called on a date—which, one would assume, would be consulted on among the parties—to minimise disruption in a Christmas period or summer vacations.

Therefore, the amendment is neither necessary—provision is already there which would stop a Prime Minister calling an election too soon; he would clearly be challenged if he tried to delay unduly—nor practical in trying to tie hands. That might run into more problems than the amendment is intended to solve.

[Lord Falconer of Thoroton]

The noble and learned Lord said something important there. He said that the Prime Minister would be subject to challenge if he sought to delay. Interestingly enough, it is a statutory power whereby the Prime Minister is obliged to recommend a date. Is it challengeable by way of judicial review?

[Lord Wallace of Tankerness]

It could be challengeable by judicial review if he was abusing his decision on a recommendation. That is why there is a safeguard there, which would mean that it would not be possible to delay in an unacceptable way.

[Lord Falconer of Thoroton]

Just to pursue that: the Government envisage a situation that could not arise now—because there is absolute discretion on the part of the Prime Minister—whereby the Prime Minister recommends to the Queen that the date of the general election be, say, 1 May 2013, and other parties can take the Prime Minister to court, arguing that that is an unreasonable exercise of his discretion and ask the court to fix the date of the general election, which it could set to take place two weeks earlier or two weeks later. Is that what the Government envisage as a possibility?

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the consideration that has been given by noble Lords and my noble and learned friend to the amendment. The problem that it sought to address was simply the question of the lack of a timetable. I am bound to say that the exchange we have just heard between the noble and learned Lord, Lord Falconer of Thoroton, and my noble and learned friend illustrates that there is—in theory, at least—scope for an abuse of power by a Prime Minister that could, perhaps in extreme and unlikely circumstances, lead to a challenge, because executive action of this sort might be justiciable and there is room for an abuse of power. The amendment simply seeks to address that.

Of course we are open to consideration of that time, but the noble Lord, Lord Grocott, talked of James Callaghan; it does not follow that because James Callaghan behaved well on that occasion everyone else necessarily would do so. As regards the number of weeks, it is right that there is a window of only a month, and that could involve a holiday period. However, the corresponding argument is that it may be undesirable for a vote of confidence in June to lead to an election being deferred until September or October, on the basis that holidays would intervene. We took the view that is worthy of consideration that it is more important to have an election than it is to avoid the holiday periods and allow them to be an excuse for not holding an election. I beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, I readily recognise where the noble Lord, Lord Howarth of Newport, is coming from on this. As the Committee will know, the Parliamentary Voting System and Constituencies Act 2011 requires boundary review reports to be published on a five-yearly timetable, starting in October 2013. Once this Bill is enacted, general elections will occur at five-year intervals, starting in May 2015. In the absence of any early elections, the effect would be that boundary reviews generally would be published 18 months before each general election. Our debates on the previous Bill were about allowing an opportunity for the political parties and electors to become familiar with new boundaries and, importantly, for the electoral administrators to gear up accordingly.

I understand that the intention behind this amendment is to realign the five-year cycle for boundary reviews in the event that an early election causes them to get out of sync. Unfortunately, the amendment does not achieve this. It relates only to when the order is submitted to Parliament; there is no provision made to adjust the cycles that the Boundary Commissions themselves will work to. That is not simply a technical objection but an important and fundamental one. Broadly, I have sympathy with what the amendment is trying to do to ensure that there is one boundary review in each Parliament so that constituencies remain of roughly equal size and votes remain of equal weight. We looked at the interaction between the boundary reviews and the provisions of the Bill. The conclusion that we reached, which may be an echo of what some Members said in earlier debates, was that we simply could not legislate for every scenario under a fixed-term Parliament provision. This is one where it would be far better for judgments to be made by future Parliaments, in possession of knowledge of the circumstances, depending on when the early election—if such there was—took place.

I give a brief example. If, for the sake of argument, an early election was to occur before a full boundary review had been completed—say, in early 2018, when the report from the Boundary Commission would not be due before October that year—this amendment says nothing about what should happen to that boundary review, which would be well under way and ready to report in October 2018. It says simply that the next order should not be brought into force until 2022—that is, before the election of 2023. That raises questions about whether the review that was due in 2018 should be implemented in 2022, which would mean that the boundaries could become out of date. Is it the intention that the first review after an early election should have a 2022 deadline, in which case additional provision would be required to define which register that review should use? Without that additional provision, the commissions would have to use the December 2020 register, which would give them a very short time in which to conduct the review.

As I indicated, while it would be preferable—and may still be possible for the dates of some early elections—to continue the cycle of reviews that is there, it is far better left to a future Parliament to deal with the specific circumstances if it felt that boundary reviews were not keeping pace with the cycle of elections. In any event, even without doing anything, future elections are likely to be fought with more up-to-date registers than was the case for England in 2010. I welcome what I am sure is the well intended purpose of the noble Lord’s amendment, but I do not believe that it achieves that purpose. I therefore ask him to withdraw it.

[Lord Falconer of Thoroton]

Does the Minister envisage Parliament dealing with the issue by primary legislation each time?

[Lord Wallace of Tankerness]

As things stand, it probably would have to be by primary legislation. It might be a very simple Bill, but I think in trying to be too prescriptive at this point you could run into difficulty. As I have said, there may well be circumstances in which the early election, should it occur, would nevertheless be one in which the actual scheduled date would still fit in quite readily and allow a reasonable time for the political parties and electoral administrators to make the necessary arrangements. That is why I do not think we can predict what is going to happen and it is better to leave it to the future—to see whether it would in fact be necessary—in the belief, and indeed the knowledge, that even under the present system, without anything further, we are likely to be fighting elections on more up-to-date electoral rolls than was ever possible prior to the passage of the 2011 Act.

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[Lord Falconer of Thoroton]

The account of history given by the noble Lord, Lord Cormack, is entirely accurate. However, if you are passing a Bill that is intended to set out what our constitution is, what happens when there is not a suspension of elections and the Commons wants rid of a particular Government because it, quite legitimately, wants a national Government? The effect of the amendment of the noble Lord, Lord Cormack, is that you are not allowed to have a situation where you cannot avoid an election. I envisage circumstances in which a vote of no confidence might well reflect both a Commons view and a national view that the Government of one party be changed, for example, into a national Government. We have to be able to deal sensibly with this. The current arrangements allow for a defeat in a vote of no confidence followed by a replacement of the national Government, which the amendment does not deal with. It is not a comprehensive definition of motions of no confidence and so leaves the Speaker as exposed under these arrangements as he is under the old arrangements. I share the desire of the mover of this amendment to get to a point where the Speaker is not exposed in the way that he is at the moment. I do not believe that the amendment quite succeeds in doing that. I am open-minded about the other efforts to do it, but currently, I can see force in the sort of amendment that I suggested.

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

[Lord Howe of Aberavon]

With great respect to my noble and learned friend, he said we are trying to set up a situation in which, with fixed-term Parliaments, we can trigger an early election. That seems to be something that we are all groping for. We already have a fixed-term structure in the sense that there is a maximum term with the existing pattern of being able to trigger it for different reasons. I emphasise the significance of what he said, I think not per incuriam. We are working in a fixed-term situation but finding a way in which we can trigger an early election. If that is what he is after, we are not far away from it as we are.

[Lord Wallace of Tankerness]

That is indeed what I said because there is a difference between a fixed term, as set out principally in Clause 1, and recognising that you could have a situation, as they do in Norway, where the term is fixed and nothing can allow an early election, even if the Government were to lose the confidence of their Parliament. That is not what anyone has argued for in our deliberations. There is a distinction between a fixed term and a maximum term during which, under the present system, the Prime Minister of the day can opt to have an election at a time of his choosing for partisan advantage. We do not disguise the fact that that is what we are seeking to move away from.

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[Lord Falconer of Thoroton]

I completely understand that it is different under the Fixed-term Parliaments Bill but remember that the consequence now of the Government losing a vote of confidence is that they at the very least have to resign and at the very most have to have a general election. There is a very high price to be paid now in relation to losing a vote of confidence or no confidence. Can the noble and learned Lord identify historically any occasion where there has been a dispute over whether something is a vote of confidence?

[Lord Wallace of Tankerness]

I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.

[Lord Howarth of Newport]

It was earlier in this debate. It has been going on for so long, it is difficult to remember. The point was that the House accepted, it appears, the redefinition that the Prime Minister had proposed to the House at that time and recognised the political circumstances in which that Labour Government had a tiny majority. It did not really have a workable majority.

[Lord Wallace of Tankerness]

Perhaps the House accepted it because it was quite clear that if the Prime Minister had decided that he was not going to go to the country it could have tabled a motion of no confidence. Indeed, my noble friend Lord Forsyth keeps coming back to what seems to be a very straightforward way of addressing this issue: that if there is any doubt, the Leader of the Opposition or someone could table a motion of no confidence. The more one thinks about it, it tends to be the motion which has no ambiguity and is very clear, about which something further might want to be said.

The amendment in the name of my noble friend Lord Cormack would replace the entirety of Clause 2 and therefore would not allow the provision of the trigger mechanism of a Dissolution if two-thirds of the House of Commons was voting for a Dissolution. We have had debates on this in the past but if at some date in the future, in a fixed-term Parliament, there is a consensus in the House of Commons that there should be an election—and 1951 has been identified as a possible example when this may have happened—I would rather the option remained for the Dissolution to be triggered on a cross-party, consensual basis rather than having a motion of no confidence brought forward simply to achieve a Dissolution which two-thirds of Members believe is necessary. That option is lost by my noble friend’s amendment, but it is a worthwhile provision to maintain.

On the question of what constitutes a motion of no confidence and whether it should automatically trigger an election, I recall that in our earlier debates my noble friend Lord Norton of Louth indicated that that should not necessarily be an automatic consequence. However, a consequence of the amendment is that there would be an election. The noble and learned Lord, Lord Falconer of Thoroton, suggested a way round it and, in introducing his amendment, my noble friend Lord Cormack suggested that if it was after the Queen’s Speech in the first Session there could possibly be other ways.

It is important, therefore, that we reflect on circumstances in which an election should not automatically be triggered, the most obvious one being immediately after a general election when a party does not yet have the confidence of the House and there is still an opportunity for another Government to be formed. Equally—I cannot say this is a Narvik situation because it is not—there may perhaps at a time of extreme national crisis be a view that a Government should not continue and that there is a case to be made for a national Government. Indeed, it occurred to me that the Bill as drafted would provide for that. There could be a motion of no confidence and a period of time—we can debate whether or not it should be 14 days—for a new Government to be established which could in such circumstances enjoy the confidence of the House of Commons. I find my noble friend’s amendment defective in that regard because there are circumstances where the automatic triggering of a general election would not necessarily be the right way to proceed. I will not elaborate on the point about an incoming Government after an election and the fact that we do not want election after election after election.

A number of colleagues have indicated that there are problems with the amendment. As I have indicated, I do not want to take technical issues— it used to annoy me greatly in opposition if Ministers said there were technical problems—unless they are very fundamental.

On the second branch of what would constitute a vote of no confidence—namely, a Bill defined by the Prime Minister of the day as being essential to his or her Administration continuing in office—my noble friend Lord Tyler expressed scepticism; the noble Lord, Lord Martin, felt it would be unwise and was concerned about the Speaker; and my noble friend Lord Forsyth also expressed concern about that. Quite apart from trying to get a definition of what constitutes a Motion of no confidence, a Government facing a problem with their own Back-Benchers could simply decide that they would make a particular vote a matter of confidence—the black arts may well come into play—for the purpose of imposing party discipline. As we are trying to initiate a switch from the Executive to Parliament, that would be a regrettable consequence of that trigger point for a general election. Likewise, as my noble friend Lord Tyler indicated, that would be a decision of the Prime Minister and not of Parliament or the Speaker, and therefore it would be an Executive decision which, in certain circumstances, could conceivably be open to challenge.

I know my noble friend Lord Forsyth has strong reservations on fixed-term Parliaments—I probably understate his position—but he made an important point in his exchange with the noble and learned Lord, Lord Falconer of Thoroton. He said that the examples the noble and learned Lord was giving were not operative within the framework of a fixed-term Parliament. If that is the case and we are to have fixed-term Parliaments, the rules will change. As he pointed out, the simplest thing in these circumstances may be to say that a motion of no confidence is what it says. On what constitutes confidence or no confidence in the question of supply, my noble friend Lord Norton said in his article of 1978, Government Defeats in the House of Commons: Myth and Reality:

“The most effective means whereby the House could declare its lack of confidence would be through an explicitly-worded motion of no confidence”.

I did say that we were in listening mode—and, indeed, reading mode. That was an important point.

The noble Lord, Lord Howarth, spoke of his concerns about the Speaker’s certificate. I do not wish to rehearse our earlier debate; I undertook then to reflect on that. However, what I found difficult was his suggesting that the more we try to write down and define matters, the more difficult it is, yet seeming to have an objection to the Government’s position where they did not seek closely to define. That seemed to be a contradictory view. My noble and learned friend Lord Howe said that we should keep it as simple as possible. That is what we have sought to do by setting a background where it is possible to recognise a motion of no confidence rather than trying to define it. This matter has been looked at many times, including in the other place. Whenever efforts are made to bring some definition to it, other than perhaps a very simple one, one seems to conjure up more difficulties.

I said at the outset that I wanted to hear the arguments about structure and definitions. Members on both sides of the Committee have expressed a number of views. I clarify again that I shall speak with my colleagues on these matters. The principles that we wish to establish are that, within a context of having a fixed term, there should nevertheless be a mechanism to trigger an early election if there has been deadlock in the other place, if a Government lose confidence, and if no Government can be formed who maintain confidence. There is an argument for having consensus about Dissolution and proper provision being made for it, as well as for trying to minimise the potential for abuse of the trigger on the part of the Executive and to get clarity as to what constitutes a vote of confidence. There may well be circumstances in which a vote of no confidence does not necessarily have to trigger a general election. How do we clarify those circumstances in a way which is acceptable? These are the general principles and issues which I want to put flesh on. Various ways as to how we might do that have been suggested. The amendment moved by my noble friend Lord Cormack has been very helpful in suggesting one way. It has a number of problems to it, but the comments that it has triggered will help shape our thinking as we move to the next stage of the Bill.

I reflect that perhaps we have got it right because these are very complicated matters, but I undertake to give serious consideration not only to what was said in response to this amendment but also to earlier amendments and those which were heard on the second day of Committee. On that basis—

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[Lord Wallace of Tankerness]

We debated this under Amendments 35 and 39. I said then and as part of our general debates that, in my understanding, if the Prime Minister resigned—nothing in the Bill stops the Prime Minister resigning in those circumstances—the Queen would invite another Member of Parliament to form a Government. If that other Member of Parliament tried to form a Government but there was a motion of no confidence in that Government, there would be an election. Alternatively, the Prime Minister may have resigned and it may be evident to everyone that there is stalemate and that the sensible thing—with agreement across all parties—is to have an election. In that case, two-thirds of Members could vote for an early Dissolution.

[Lord Cormack]

My Lords—

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[Lord Falconer of Thoroton]

My Lords, our debates on Clause 2 have been very significant. Would it be possible for the noble and learned Lord, Lord Wallace of Tankerness, to suggest some process? He has been accommodating and conciliatory, and he has broadly shared the aim, expressed all around the House, of there being no uncertainty about the circumstances in which an election would be triggered. As I understand it—I may have misunderstood—the Minister is not seeking to dislodge the basic principle that, when a Government lose the confidence of the House of Commons, that Government have to go.

Could I invite the noble and learned Lord to convene a meeting of all interested parties—I do not mean political parties—from all over the House to discuss this, with a view to agreeing a Clause 2 that reflects the concerns that he appeared to share? The noble and learned Lord—I hope that this will not be a case of “once bitten, twice shy”—was accommodating in indicating during the Parliamentary Voting System and Constituencies Bill that he would come back with things, and he is leaving me with the impression that he shares many of our concerns. Perhaps the way to move forward is for those who are interested to meet him to try to agree a clause that reflects the sort of principles he just went through. Does that suggestion find favour with the noble and learned Lord?

[Lord Wallace of Tankerness]

I am certainly more than willing to meet. I will need to discuss with ministerial colleagues—it will not be just I who have to reflect on this—but I am certainly willing to meet, although I do not know whether that can be done constructively with a large number, or whether it is better done with a smaller number. The noble Lord, Lord Martin, has already suggested that he and the noble Baroness, Lady Boothroyd, would be willing to meet. I have said that I would welcome that opportunity, although that would be to deal with a discrete part of the Bill. I am sure that, through the usual channels, we can devise some way of meeting, either individually or by convening a much larger meeting. I am sometimes sceptical about how far you can get without convening a larger meeting. I will work out the best way to take that forward, with an undertaking to meet and include those—without, I hope, being exhaustive—who have made an important contribution to our deliberations in Committee.

[Lord Falconer of Thoroton]

I am very grateful to the noble and learned Lord. One of the things that very much infused the debate on Clause 2 is the question of what the Government have in mind when they use the phrase “motion of no confidence”. For example, it was never clear—I am sure this is my fault for not listening; it is very late—whether a motion of no confidence includes being defeated on a motion of confidence. Does a motion of no confidence include things that are not explicit? Does the definition of a motion of confidence in Erskine May apply in helping us to construe the reference to a motion of no confidence in Clause 2? We need to know the answers to those questions. If the noble and learned Lord does not want to answer now, I am more than happy for him to write. However, we do need clear answers to those questions.

[Lord Wallace of Tankerness]

My Lords, I tried to answer on this in response to the previous debate, when I indicated that we recognised that no-confidence motions could take and have taken many different forms, and that our desire in the Bill was not to be prescriptive and not to restrict flexibility. That is where we started from and that is what we sought to do. I think a vote of no confidence would not include a vote of confidence, but it would not be beyond the wit of a leader of the Opposition to table an amendment inserting the word “no”. That is clearly part of the discussion that we can have. The noble and learned Lord asked what our proposed statutory definition of a motion of no confidence was. In response to the earlier debate, I said that we recognised the many different forms that it could take, as he himself illustrated in his speech. Our desire was not to restrict flexibility. We will enter the discussion, as I have said, bearing in mind the comments that have been made from various parts of your Lordships’ Chamber.

[Lord Falconer of Thoroton]

There was just a flicker there, in that the noble and learned Lord said a vote of no confidence would not include a vote of confidence. Therefore, you could have the strange situation where the Government are defeated on a vote of confidence but do not resign at that point. Indeed, there could not be a general election under those circumstances; under this Bill, there would then have to be a vote of no confidence at that point. How nutty is this Bill?

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[Lord Falconer of Thoroton]

My Lords, this amendment deals with the question of the potential coincidence between elections for the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Our draft gives the Prime Minister the ability to lay an order to ensure that a general election must take place at least 30 days apart from the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly elections, to avoid a coincidence of these occurring on the same day.

I put my amendment down to probe the Government’s position on this. Everybody understands that the first general election under any Fixed-term Parliaments Act is likely to occur at or near the same date as the elections for the institutions I have referred to. Subsequent to my putting my amendment down, the Government, in consultation with the relevant institutions, have now reached some sort of agreement and have now put their amendments down, as Amendments 55B and 55C. Would it be convenient to your Lordships if we heard what the Government have proposed first, because I do not fully understand it? Once we hear what the Government have proposed, it would then be possible to see whether we need to proceed with our probing amendments.

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wigley]

Before he sits down, can the noble and learned Lord, Lord Wallace, confirm that the Government’s amendment covers everything that had arisen in discussion with the National Assembly for Wales and in the debate that took place on this matter there? When he says that this is a one-off solution, how might this be handled in future? Does it mean going through all this again every time there might be a coincidence or is there some agreement to get some stable basis ongoing for however long?

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

[Lord Falconer of Thoroton]

The Minister says that people will know. Does he envisage that the Bill will be passed by 5 May 2011?

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[Lord Wallace of Tankerness]

People will know our intentions. I stand corrected by the noble and learned Lord. We thought it was important that we flagged up that intention, subject to these amendments being carried this evening and in the Bill itself. If the Bill is not passed there will not necessarily be a coincidence but there still could be a coincidence of elections on 7 May 2015.

Subject to these amendments being accepted, in the longer term we would then need to carry out a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of this we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions should permanently be extended to five-year terms. While the 2015 general elections to the Scottish Parliament and Welsh Assembly will be deferred by one year, these will be treated as ordinary elections and subject to the usual rules. For instance, a subsequent ordinary general election will be scheduled to be held on the first Thursday in May in the fourth calendar year following the deferred election. Additionally, the power to vary Assembly or Holyrood general elections by one month earlier or later under Section 2(5) of the Scotland Act 1998 or Section 4 of the Government of Wales Act 2006 will apply. In both instances Holyrood and the Welsh National Assembly may still vote for an early dissolution with the two-thirds majority, in line with the existing provisions in the respective devolution Acts. Such an early general election does not affect the subsequent ordinary general election unless the extraordinary election was in the six months prior to the scheduled election.

A number of noble Lords have expressed the view that if the Government had proposed a four-year term for this Parliament then the problem would never have arisen. We have debated at length the Government’s reasons for preferring the five-year term and I do not propose to rehearse them now. It was recognised when the debates took place that we were willing to look at future possible coincidence of elections and, on the back of that, to look at the possibility of extending to five years the lifetime of the devolved Parliament and Assembly. We do not believe that it would be proper to do that on a permanent basis without having that further discussion. I also ask your Lordships to bear in mind that there is always the possibility of the coincidence happening in any event. This has allowed an opportunity to address the possibility now rather than finding ourselves in April, May or March 2015 seeing that a coincidence was about to happen.

Following correspondence with parties in Northern Ireland on this issue, Northern Ireland Office Ministers concluded it would be better to await the outcome of the combined polls scheduled for May this year before taking a decision on whether special provision would be needed for Northern Ireland.

I am happy to stop there and allow the noble and learned Lord to speak to his amendment before going on. I simply observe that it is possible at the moment for the Presiding Officer of the Scottish Parliament or the Secretary of State for Wales to move the election by 30 days. Whether 30 days would be enough to get a proper disjunction of the different election campaigns remains to be seen. I look forward with interest to what the noble and learned Lord says about that. The problem was identified. We engaged with the respective institutions and sought their views on what they would wish their response to be, and these amendments deliver on the way forward agreed with the respective Parliament and Assembly.

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

[Lord Wallace of Tankerness]

My Lords, I sometimes wonder if the noble and learned Lord listened to what I said. I have answered those three questions, but perhaps, with respect, I did not explain clearly enough, so I shall try again.

The first question was with regard to whether we would have a four-year or a five-year Parliament. Clearly that is a debate that we will come to at Report, and I am not going to rehearse again the arguments why I believe the five-year option is preferable to the four-year one. If the Committee agrees today that these amendments in my name should be passed, I believe that they should stay because people who will be voting on 5 May should at least get some indication of what the length of the Parliament or Assembly that they are electing is likely to be.

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that it would be four years or five years?

[Lord Wallace of Tankerness]

I am saying that they would still get five years. I do not think it would be right to elect people on the basis that they believe they are getting five years and then to say, “By the way, you’re not”. The noble Lord, Lord Bach, shakes his head. I think we would attract even greater criticism if there was an expectation of five years, and then we said, “Oh, by the way, we’ve changed our minds. You’re not getting your five years. You’re being cut back to four”. That would be the source of some legitimate criticism. Of course, if that is what happens and we do have four years—I will not again emphasise the reasons why we should not—the chances of it recurring are probably less likely, because then you could get yourself on to a four-year cycle, depending on whether there was an early election.

The noble and learned Lord asked what would happen in the longer term. I did seek to explain that we have also indicated that, subject to these amendments being accepted, in the longer term we would carry out a detailed assessment of the implications of having two sets of elections coinciding on a later date. Obviously the Electoral Commission would be involved in that. In the light of that, we would consider whether to conduct a public consultation on whether in devolved institutions the term should permanently be extended to five years. We do not proceed to do that in the context of this Bill, but we have indicated, as I have done in earlier debates, that that is our proposal. I hope that I have made it clear on this occasion that that is what has happened.

The noble and learned Lord also raised a question about Northern Ireland. I thought that I had answered that but, for clarity, the situation there is that there was correspondence with the parties in Northern Ireland on this issue. Northern Ireland Office Ministers concluded that it would be better to await the outcome of combined polls scheduled for 5 May this year before taking a decision on whether special provision would be needed in the future for Northern Ireland. It was a reflection of the dialogue that had taken place within Northern Ireland, and I see nothing wrong with this Parliament being sensitive to the views expressed in different parts of our diverse United Kingdom. I think that is to our credit, so I do not think that it would have been appropriate to have made provision for Northern Ireland if that was not the feedback that we were getting in the consultations that had taken place.

[Lord Falconer of Thoroton]

It was my fault for not having heard that. Having heard what the noble and learned Lord said now and understood it—having been so dim-witted in not picking it up before, for which I apologise—perhaps that indicates that this Government should not have come forward quite so hastily with this Bill, but instead should have consulted on those issues, which are very important, before bringing forward the Bill. It is not too late.

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[Lord Bach]

My Lords, in supporting my noble friend on his amendment I invite the Government to think very carefully indeed before rejecting it, if that is what they intend to do. I speak from personal experience: in a former life, my noble friend was the regional secretary of the Labour Party in the east Midlands, so I worked extremely closely under him for many years and I can speak to his expert knowledge about running elections. I dare say that the Minister could talk about other individuals whom he worked with in that capacity and, no doubt, those from the Conservative Party could as well, while the fame of the noble Lord, Lord Rennard, goes before him. When you have such experts as my noble friend and the noble Lord, Lord Rennard, speaking with one voice, it behoves the Government to think carefully before rejecting what they suggest.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for his amendment. Clearly, it seeks to dissolve Parliament 21 working days ahead of polling day rather than 17 working days. It is fair to point out that a 21-day timetable would be novel. It is not currently used in local or parliamentary elections; that in itself raises issues. I understand that the Electoral Commission, with which I know the noble Lord has an association, has previously suggested that the electoral timetable might be extended to 25 days. That would, not least, support participation by service voters. The commission has highlighted problems caused by the current election timetable and its associated deadlines for electors, candidates, political parties and electoral administrators. Those were reflected in the experiences that the noble Lord, Lord Kennedy, mentioned. My noble friend Lord Rennard also has experience of them.

The Electoral Commission notes that this change should not be made without a review of further changes that might then be required to the electoral timetable. I assure the Committee that the Government agree that this is an important issue. My right honourable friend the Deputy Prime Minister indicated during Second Reading in the other place that we believe there is merit in exploring an extension to the timetable. I note that, at present, there are different timetables for the elections to the Scottish Parliament, the National Assembly for Wales and, I think, the Northern Ireland Assembly. Therefore, there is merit in looking at this not just in relation to this Bill and future elections to the House of Commons but in looking generally at the election timetable.

The Electoral Commission has pointed out that the matter requires a thorough review to ensure that any change is coherent across the piece. There are practical issues and consequential complexities that have to be considered. It is not as simple as omitting “17” and replacing it with “21”. There are issues about the judgment on where particular milestones would best fall within an extended election timetable. For example, there may be competing views as to when they should fall with regard to nominations. We are anxious that, if we are to extend the timetable, we should find the most effective solution. The deadline for registering to vote is another important issue, as are the current deadlines for postal and proxy votes.

As I have indicated, we do not have experience of a 21-day timetable but the Government agree that this is an important issue and we want to set out our proposals on how we might address it in the future. In asking the noble Lord to withdraw his amendment, I hope he will accept that the Government recognise that there are much wider issues to deal with here, and that 21 days is perhaps not the appropriate length of time. We should look at the totality of a longer electoral timetable, but it would not be appropriate to amend it in this Bill.

[Lord Kennedy of Southwark]

I thank the noble and learned Lord for his response. I also thank the noble Lord, Lord Rennard, and my noble friend Lord Bach for their comments. I am happy to beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

Think, like the right honourable Nick Clegg, about giving the public more control over their politicians. There is always a sense of frustration that comes when a new Prime Minister comes in and the public get no say in whether this change is right. This would reflect this mood and give the public more control.

The noble Lord is right. I cannot think how I would have taken over as Prime Minister and at the same time been unpopular. It is an unlikely scenario. However, it is a way of avoiding lots of clubhouse politics, where you move from one to another. It does not necessarily drive a coach and horses through the Bill. It would do so if the viability provision or the change in policy were there. It would, however, be worth the Government thinking of a circumstance in which, for example, a Government totter on with a majority of one and want to have a general election but the Opposition will not give them a two-thirds vote. Why should there not be a general election in those circumstances? It might well be that the country is not assisted by there being weak government in those circumstances.

I completely understand why the Government would wish to knock out the very general reasons for Dissolution. However, if the Government are serious about trying to improve the constitution, it is worth them considering whether or not there are more specific reasons of the sort proposed by the noble Lord, Lord Howarth of Newport, that might be worth including in Clause 3(2) of the Bill that says that,

“Parliament cannot otherwise be dissolved”,

except in those situations that we have dealt with before, which is the two-thirds majority, the expiry of the fixed term or a motion of no confidence.

Amendment 55A says that Parliament cannot otherwise be dissolved,

“unless the House of Commons has approved on a division a motion tabled by the Prime Minister that the Prime Minister should request Her Majesty to dissolve Parliament”.

The effect of that provision is that it would not be in the discretion of the Prime Minister alone, which is the current position. Put aside everything else. Assume no Motion of no confidence. Assume no two-thirds vote. Assume no change to the Bill to allow any special measures. The Prime Minister could nevertheless table a Motion that says, “I think there should be a general election”, and, if Parliament backed him by a simple majority, there could be a general election. This is probably the position anyway because, as the noble and learned Lord, Lord Wallace of Tankerness, says, there is nothing to stop the Prime Minister from procuring a vote of no confidence to get rid of himself so that, for example, in the Heath situation, he could have an election to deal with a particular crisis that had struck the Government. Would it not be more sensible for there to be a straightforward mechanism that allowed that to happen? If it can happen by the back door, why should it not be allowed to happen by the front door? It does not offend against the Fixed-term Parliaments Bill because its stated purpose is to take away the right to call a general election from the Prime Minister and give it to Parliament. Amendment 55A does not offend against that principle

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.

I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.

I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.

On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I was quite wrong. This has been a very zestful debate—positively sparkling. I congratulate all noble Lords who have spoken on their effervescence at this time of the night.

I tabled these amendments because I think that the Government have restricted the Bill to permitting elections to happen before the end of the fixed term in too limited a range of circumstances. I think there are circumstances in which it would be in the interests of politics and of the country that there should be an election. I apparently differ from the Government in thinking that elections are a good thing. I do not think that it is desirable to stave them off so that they can happen only once every five years, if you can get away with it. A general election is a great moment in the life of the country, and we should be willing to recognise that there will be situations in which an election would be a thoroughly positive thing that would be welcomed by the country and that would be good for our politics, for the quality of government and for our democracy. It may well be that I have not sufficiently tightly defined all these circumstances, and given that the noble Lord, Lord Norton of Louth, and the Minister have drawn attention to the palpable inadequacies of drafting in Amendment 55, I beg leave to withdraw it.

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Moved by

[Lord Wallace of Tankerness]

55B: After Clause 3, insert the following new Clause—
“General election for Scottish Parliament not to fall on same date as parliamentary general election under section 1(2)
(1) This section applies in relation to the ordinary general election for membership of the Scottish Parliament the poll for which would, apart from this section and disregarding sections 2(5) and 3(3) of the Scotland Act 1998, be held on 7 May 2015 (that is, the date specified in section 1(2) of this Act).
(2) Section 2(2) of the 1998 Act has effect as if, instead of providing for the poll for that election to be held on that date, it provided (subject to sections 2(5) and 3(3) of that Act) for the poll to be held on 5 May 2016 (and section 2(2) has effect in relation to subsequent ordinary general elections accordingly).”

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[Lord Falconer of Thoroton]

My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.

The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.

An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.

The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.

These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I draw much comfort from what the Minister has just said. Indeed, we need not be too scared of the possibility of an abuse of the power of prorogation and, subject to what my noble friends consider in the mean time, I anticipate that we will not need to return to this issue on Report.

I am grateful for what my noble and learned friend said and for the tolerance of the House. If I have been a little overzealous it was because, very shortly before the first day of Committee on the Bill, only a small handful—perhaps not more than eight—amendments had been tabled. As we have all acknowledged, this is a constitutional reforming measure of first-rate importance. We attach great importance to the role of this House as a revising Chamber and it is appropriate that we have had a good range of amendments to consider and have given the measure useful scrutiny in Committee. I apologise that the House has had to put up with the sound of my voice for far too long. However, we have done a good job, as we shall again when we get to Report. In the mean time, I beg leave to withdraw the amendment.

European Court of Human Rights

Lord Wallace of Tankerness Excerpts

Thursday 24th March 2011 Lords Chamber

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

My Lords, if a Chamber of the European Court of Human Rights gives a judgment against the United Kingdom, we may request referral of the case to the Grand Chamber. Grand Chamber judgments and Chamber judgments that have become final because there has been no request for referral, or because a request has been rejected, are binding on the parties and not subject to any further challenge.

[Lord Marlesford]

My Lords, I thank my noble and learned friend for that Answer. While we all obviously favour and support human rights, and endorse the role of the judiciary in supporting them, does he agree that the performance of the European Court of Human Rights has done little to enhance its reputation? Perhaps I may give him an example from an Answer given recently to the noble Lord, Lord Hylton, about seven people whom the previous Government sought to have extradited to the United States on terrorist accusations. This was between 2007 and 2009, and the European Court of Human Rights is still considering those cases. Is it really conceivable that it can take up to four years to consider such a case and is it surprising that, as a result, people are beginning to think that the European Court of Human Rights is weak on law but strong on politics?

[Lord Wallace of Tankerness]

My Lords, with the kind of cases that the European Court of Human Rights deals with, its judgments can inevitably be supported in some cases—as indeed they have been in many cases by the public—and not supported in others. On the point that my noble friend makes, the fact that there is a backlog of around 140,000 applications suggests that something is not working effectively. That is why the Government are committed to supporting and building on the process of court reform which is already under way in Strasbourg. As part of that reform process, the Government wish to see a strengthening of the principle of subsidiarity; that is, that the convention should principally be implemented at national level.

[Lord Anderson of Swansea]

My Lords, does the Minister agree that that backlog has been caused in part by Georgia and Russia flooding the court with applications and that there are new procedures in place to deal with it? Will he also confirm that we in the United Kingdom have an exemplary record, albeit with a delay in one case, in responding to judgments of the court and not seeking to pick and choose? If we now refuse to implement the judgment in respect of the rights for prisoners instead of negotiating to see what the best outcome is, what effect does he think that will have on serial defaulters such as Russia and Turkey when until now our record has been exemplary?

[Lord Wallace of Tankerness]

My Lords, the noble Lord makes an important point: this country’s implementation of ECHR judgments has been very good and consistent with our obligation to respect and implement our international treaty obligations. He referred to the number of additional cases. The process that was started at Interlaken, where the United Kingdom was represented by the distinguished former Attorney-General, the noble and learned Baroness, Lady Scotland, is under way, and it is hoped that when Britain has the chairmanship of the Council of Europe for six months starting in November this year, we will be able to build on these reforms.

The Government’s position on prisoner voting has been set out, but we have also requested that the court’s judgment in the case of Greens and MT v UK should be referred to the Grand Chamber of the European Court. If the Grand Chamber agrees to the referral, it will look at the case again and issue its own judgment.

[Lord Thomas of Gresford]

My Lords, given that there are 250 applications to the Supreme Court for appeals in this country and 2,700 applications from the United Kingdom to the European Court, do the Government have any plans for having two or three more divisions of the Supreme Court in this country, perhaps sitting in Downing Street, to hear human rights cases as a court of final appeal, with full legal aid, and thus give some succour to the legal profession?

[Lord Wallace of Tankerness]

My Lords, I am not aware that the Government have any plans to set up such additional divisions of the Supreme Court, but I am sure that the point made by my noble friend will have been noted by the Ministry of Justice.

[Lord Scott of Foscote]

My Lords—

[Baroness Scotland of Asthal]

My Lords, following the work that we commenced in Interlaken, is there now a timetable for reform? What specific measures do Her Majesty’s Government intend to take with others to ensure that the ECHR is as robust as we would all like it to be?

[Lord Wallace of Tankerness]

My Lords, as I have indicated, we hope that during the period of our chairmanship of the Council of Europe we will be able to take forward the reforms. All 47 members of the council believe that there ought to be reforms. We want to look at ways in which we can make the court more effective and efficient in dealing with the backlog and, as I have said, to reinforce the idea that the court’s role should be a subsidiary one; namely, that member states should have the primary responsibility for protecting convention rights in their own country. We hope that we can make progress on that during our chairmanship.

[Lord Neill of Bladen]

My Lords, will the Minister comment on the position of the Supreme Court? So far he has talked about government action, but the Supreme Court said in 2009, in a case called Horncastle, that it can decide not to follow a decision of the court in rare cases where that court has failed to “appreciate or accommodate” particular aspects of our domestic process. In such a case the Supreme Court can refuse to follow it, giving reasons, in the hope that that will then be picked up in a subsequent judgment by the court in Strasbourg. Do the Government have a position on whether that is a satisfactory arrangement?

--- Later in debate ---

[Lord Wallace of Tankerness]

I think that the specific case to which the noble and learned Lord refers has been heard by the Grand Chamber and a decision is awaited. The position under the Human Rights Act is that while our courts are not obliged to follow the precedent set, they must give proper consideration to it. In the more recent case of Pinnock, the Supreme Court indicated that it would generally follow Strasbourg’s decisions unless there were good reasons for not doing so.

Wales: Organ Donation

Lord Wallace of Tankerness Excerpts

Wednesday 23rd March 2011 Lords Chamber

[Lord Wigley]

To ask Her Majesty’s Government what representations they have received from the Welsh Assembly Government concerning possible changes to the law in Wales relating to organ donation.

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

The Welsh Assembly Government made clear to the Government their intention to proceed with proposals on organ donation in Wales, and the Government worked closely with the Assembly Government to enable the proposed legislative competence order to be put forward to Parliament for pre-legislative scrutiny earlier this year. Following the result of the referendum in Wales on 3 March, the Government have now received notification from the Assembly Government that they have withdrawn the proposed legislative competence order relating to organ donation.

[Lord Wigley]

My Lords, I am grateful for that reply. Does the Minister accept that the reason for withdrawing the order was because the Assembly now has full legislative competence in areas dealing with health and that after the elections on 5 May it may well want to pursue this matter within its own competence? If that is the case, can he give an assurance that the Government will not to try to intervene? Given the uncertainties and doubts the Government had about human rights and cross-border issues, can he give an assurance that they will not prevent the Assembly from moving ahead, if it so wishes, to legislate on the question of presumed consent to enable far more organs to be available for those who need them?

[Lord Wallace of Tankerness]

My Lords, I understand that the current Welsh Assembly Government withdrew the current legislative competence order on the basis of the change that is about to take place as a result of the referendum. They have indicated that they look forward to the Welsh Assembly Government formed after the elections bringing forward their own legislation. It would not be for this Government to prevent that legislation going forward. However, under Section 112 of the Government of Wales Act 2006 it is a matter for the Counsel General for Wales and the Attorney-General, following the passage of a Bill, to consider whether that Bill should be referred to the Supreme Court on any issue of competence. I exercise a similar responsibility, along with the Attorney-General and the Lord Advocate, in relation to Scotland. These are often complex matters and it would be wrong to hypothesise about a Bill which may not come to pass and when we have not yet seen its final shape or form.

[Lord Roberts of Llandudno]

My Lords, as the House might know, there have been uncertainties about cross-border issues. For instance, for years neurology services have been sent from north Wales to Liverpool. Are they now to go to south Wales, when it takes far longer to go there? Furthermore, have we resolved the cross-border situation not only in the UK but also, in our relationship with Europe, the possibilities of cross-country involvement in Europe?

[Lord Wallace of Tankerness]

My Lords, as we do not yet have any legislation, the first part of my noble friend’s questions about the provision of services may be premature. I simply observe that practical issues could arise if such legislation were to come to pass, given that the Human Tissue Act 2004 and the equivalent legislation for Scotland means that in England, Northern Ireland, Scotland and at the present time in Wales there is no presumed consent. There has to be active consent. Therefore, if there was a donation from Wales, the question would arise whether that was allowed to be used in other parts of the United Kingdom if there had only been presumed consent.

With regard to Europe, there has been a recent EU directive, to be implemented by August 2012, that requires member states to verify donor or donor family consent. It recognises that different states have different opt-in, opt-out systems of consent. There are no specific plans for a European donor card, but member states are working together to raise the important profile of donation and to encourage more people to support or agree to donation.

[Baroness Finlay of Llandaff]

My Lords, will the Minister explain what work is currently being undertaken to ensure that where Welsh patients are transferred to ITU beds, that system would be able to continue in the future, and how IT intensive care beds are being increased? A shortage of intensive care beds across both England and Wales is in part responsible for some of the low donation rates, so conflicts may arise when Welsh patients are in English intensive care beds.

[Lord Wallace of Tankerness]

My Lords, it is difficult to speculate about what might happen, although if there was opt-out legislation in force in Wales, for example, and a person ordinarily resident in Wales was in hospital in England or another part of the United Kingdom, would somebody have to look up not only the donor register for the whole of the United Kingdom but also a possible opt-out register for Wales? There could be practical difficulties. No doubt that matter will be addressed should any legislation come before the National Assembly for Wales.

It is also important to stress the fact that, following on from the independent organ donation task force report in January 2008, considerable efforts are being made to raise the profile of donation and to put in place trained nursing and clinical staff who can take on the important task of talking to relatives. Indeed, since the recommendations of that report were implemented, donations have increased by some 28 per cent.

[Lord Hunt of Kings Heath]

My Lords, is that not the point? Even with presumed consent, the family will always have to be consulted. Therefore the advantage of presumed consent is often overstated. The key is having campaigns and information available to encourage people to be willing donors in the first place.

[Lord Wallace of Tankerness]

I entirely agree with the noble Lord. Indeed, there were two reports in 2008 from the organ donation task force. One dealt with the infrastructure arrangements to which I referred, and the other looked at presumed consent. The latter report concluded that the case was not made at the present time to move to a system of presumed consent, but rather emphasised the importance of the infrastructure arrangements and raising the profile. To date I think that has borne some fruit.

[Lord Hamilton of Epsom]

Can my noble friend tell me how long the Welsh Assembly has been a Government? Did this follow the referendum that transferred further powers from Westminster to Wales? Are we not witnessing a ratchet of powers being transferred to both Wales and Scotland, which will inevitably lead to them both becoming independent?

[Lord Wallace of Tankerness]

My Lords, given that, during the association that I have had as a spokesman in your Lordships' House for the Wales Office, the acronym WAG for Welsh Assembly Government has been one that I am familiar with, it is not something that has happened since the referendum.

[Lord Davies of Coity]

My Lords, I realise that this Question concerns Wales and the legislation for presumed consent, but does the Minister or the Government agree that it would be a good thing to have presumed consent in England?

[Lord Wallace of Tankerness]

My Lords, as I indicated in my answer to the noble Lord, Lord Hunt of Kings Heath, this matter has been looked at. Under the previous Government, an independent organ donation task force was set up. After doing considerable research and looking at the effects in other countries, it reached the consensus that moving at this time to a system of presumed consent would not be effective and that far more effective would be to take some of the measures that I have already described—namely, improving the infrastructure for donation and for raising the profile of donation. In the three years since that report came out there has been an increase in donations by 28 per cent.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Monday 21st March 2011 Lords Chamber

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

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for introducing the amendment. It has given rise to considerable debate in all parts of the House and a number of important and interesting arguments have been put for and against. The duration of the parliamentary term proposed in the Bill has been discussed not only at Second Reading but in some of the earlier amendments we debated on the first day in Committee. It has also been debated in the other place where, it is worth noting, amendments similar to those tabled by the noble and learned Lord were debated and rejected.

On the debates in the other place, I should indicate to the noble Lord, Lord Wills—who, at one point, suggested that the business managers were ramming the Bill through—that the Bill was introduced on 22 July 2010; it had its Second Reading in the other place on 13 September; it had two and a half days in Committee in November and December; Report and Third Reading were on 18 January; and it was introduced into this House on 19 January. We are now on the second day in Committee on 21 March and, with the best will in the world, we would be unlikely to reach Third Reading of the Bill before the Easter Recess. That does not sound like ramming a Bill through. I shall come later to the point the noble Lord made about the partisan nature of the Bill, which I strongly reject.

The noble and learned Lord, Lord Falconer, suggested that I had indicated that the issue of four or five years was one of high principle, and I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for quoting what I did say. I indicated that I did not believe there was a right or wrong answer. I think that there is a matter of important principle in terms of a general constitutional reform package. I have always strongly believed in the argument for a fixed-term Parliament, and I thought that the Labour Party supported that argument as well at the last general election.

The noble and learned Lord, Lord Falconer, went on to say that he considered this a matter of high principle, although many of us are waiting to hear exactly what that principle is. I did not discern it in any of his remarks. He put forward arguments on the basis of practicality and why he felt four years was better than five. The noble and learned Lord, Lord Lloyd of Berwick, cited a number of academics and politicians who had given evidence to that effect as well. However, my noble friend Lord Rennard quite properly pointed out that the legislation on candidate expenses which the noble Lord, Lord Wills, took through the other place under the previous Government—which, I assume, the noble Lord, Lord Bach, was responsible for in this House—presumed that there would be a five-year Parliament. Indeed, that legislation would have been otiose if there was a four-year Parliament. No doubt we could amend that legislation but it is an insight to what the Labour Party was thinking at the time. Therefore, to elevate this to a matter of high principle is overegging the cake.

However, it is a matter of principle that the constitutional reform that the Government are working hard to achieve should have a framework for strong and stable government that can deliver results to the electorate. This Bill and a fixed five-year term would help to ensure that.

Perhaps I can now address some of the issues and explain why a five-year term would be beneficial. The current constitutional position is that any Government who retain the confidence of the other House may, if they wish, stay in office for a full five-year term. We should not kid ourselves that curtailing the length of time would be a significant change beyond simply the important change to fixed terms. On the point raised by the noble Lord, Lord Desai, that the Bill made provision for five years and two months, that would be the case only if an order was brought forward in unusual circumstances—for example, if there was an outbreak of foot and mouth—and it would require a resolution of both Houses of Parliament to be implemented. Amendments will be introduced later—this evening, I hope—which will require the Prime Minister to give an explanation to both Houses as to why he or she was doing this. In fact, a Parliament need not be dissolved until five years after it is called but it is certainly possible under our existing constitutional arrangements to go beyond the five years. Under the Bill, unless there is the exceptional circumstance to which I referred, it would not be possible to go beyond five years. I understand the noble Lord’s concern but hope that he, on listening to the later debate when this comes up, will be reassured on that point.

I take the stricture of my noble friend Lord Dobbs about the dangers of trading figures. It is the case that most Parliaments since the Second World War, some 10 out of 17, have lasted at least four years. Three of the last five have lasted almost five years. Some have pointed to examples of Parliaments that have lasted closer to four rather than five, making the argument that four is somehow the norm and five is only for Governments who are clinging on to power. Yet, as was well put by my noble friend Lord Marks, those who point to the examples where the fifth year has been, if one wished to use the term, a lame duck almost make the point. These arose because the Prime Minister of the day looked at the runes, did the calculation and estimated that it would not be worth going to the electorate because he was probably not going to win. The very nature of the Government being in that position means that they are almost inevitably limping into their fifth year. That is a different situation from Governments knowing that there is a five-year fixed term and having to plan accordingly.

The noble and learned Lord also mentioned what Mr Asquith said back in February 1911. We could have a legitimate debate on what Mr Asquith was actually saying. He is quoted in the Official Report as saying that reducing the Parliament from seven years, as it previously was, to five would,

“probably amount in practice to an actual legislative working term of four years”.—[Official Report, Commons, 21/2/1911; col. 1749.]

He clearly did not say that the term would be for four years but that the practical legislative working term would be for four years. That is an important point and one I will pick up later in light of the comments made at Second Reading by the noble Lord, Lord Armstrong of Ilminster. As I said, the fact that an election is called before the end of the fifth year of a term has often been cited as the Prime Minister of the day seeking to give his or her party a political advantage. The noble Lord, Lord Martin, gave examples where a Prime Minister has exercised that power and it has not come off. It is fair to say that those Prime Ministers were mightily surprised and upset by that. They could not have foreseen it: it was their wrong judgment. That cannot get away from the fact that that is what they were trying to do. My noble friend Lord Dobbs made it clear from his inside track that that is precisely what Prime Ministers try to do in those circumstances.

At Second Reading, the noble Lord, Lord Armstrong of Ilminster, said—although I accept that he indicated his objection to fixed-term Parliaments as a whole—that there are merits, if you are having fixed-term Parliaments, to a term of five rather than four years. The noble Lord, Lord Butler of Brockwell, made the same point today. I remind the House what the noble Lord, Lord Armstrong, said:

“If legislation were to set a fixed term of, let us say, four years, that period would be reduced to more like three years. That would not leave enough room for sensible policy-making and good parliamentary debate before the imminence of the forthcoming election began to cast its distorting shadow. So I hope that, if this Bill becomes law, the fixed term will be five years, as is proposed in the Bill, and not some shorter term”.—[Official Report, 1/3/11; col. 971.]

That echoes the point made by Mr Asquith about what would practicably be the working life of the Parliament. Many commentators—politicians and the public—would argue that Governments can be too short term in their planning and decision-making, a point made by the noble Lord, Lord Butler. Many major decisions and investments often take a significant time for their consequences to appear. We want—I hope there is a consensus in the country that people also want—to encourage future Governments to take that longer-term view rather than always to be looking for the short-term advantage, be that from being able to pick the date of the election or shortening the length of the Parliament.

[Lord Wills]

The noble and learned Lord said earlier that he was not quite sure what the high principles were that are at stake here. He has just set out one of them—the interest of stability and good government. The noble Lord, Lord Butler, also made the case for this. Against that has to be traded the principle of accountability, which has informed a lot of the remarks on this side of the House. The noble and learned Lord has just referred to what the British public might want. The noble Lord, Lord Butler, also referred to this. Why precisely have the Government taken so few steps to consult the British public on this? There is no Green Paper or White Paper as far as I am aware, and no going out to the country to ask the British people how they think these respective principles of accountability and stability should be weighed in the Bill. Why have the Government not done this?

[Lord Wallace of Tankerness]

I take seriously the issue that somehow democratic accountability is being reduced. The noble Lord, Lord Grocott, made the point in speaking to his amendment on the first day of Committee—the noble and learned Lord, Lord Falconer of Thoroton, also expressed this view—that if we had had fixed-term, five-year Parliaments there would have been a reduced number of elections. I cannot accept that that automatically follows. Taking up the point of democratic accountability, the noble Lord, Lord Grocott, cannot ignore the possibility—or, more, the probability—that there would have been Parliaments that did not run their full term of five years. Perhaps February 1974 would have been an example, or October 1974, or the 1951 election.

My noble friend Lord Marks of Henley-on-Thames also indicated that it is important to put the ducks—as they were described by the noble Lord, Lord Grocott—in perspective. It is almost inevitable that during the past 65 years some Parliaments would not run their full course. You cannot say that every Parliament would automatically run the five years. Indeed, that is why we have the provisions in Clause 2 of the Bill.

[Baroness Armstrong of Hill Top]

The Minister seems to be making some of the points that I know colleagues have been anxious about. Governments and Parliament have to respond to what is going on in the outside world and with the electorate, so it is difficult to be absolutely precise in legislation as to when things should happen and be rigid about that. That is the objection of many people to the Bill. In a constitution which has evolved and which develops, the Government are trying to bring absolute certainty, when democracy does not bring certainty and should not be expected to. That is why we are having such interesting times in the Middle East at the moment.

[Lord Wallace of Tankerness]

The noble Baroness’s final point is a huge leap. As I explained at Second Reading—as did the noble Baroness, Lady Jay of Paddington—there is a spectrum between the complete flexibility that you have under the present system, which is subject to a maximum term, and the system in, I think, Norway, where there are quite rigid terms in which there is no way out if anything happens. There was a consensus that if we moved to fixed-term Parliaments, as I believe is right and as is proposed by the Bill, there should nevertheless be a mechanism to call an early election if certain circumstances arose. There was some degree of consensus on that. When we come to Clause 2, we will debate those mechanisms. I merely observe that the Constitution Committee thought that the mechanisms were fit for purpose in terms of what we are dealing with.

[Baroness Farrington of Ribbleton]

We have heard in this debate references to all former Prime Ministers using their judgment in their own party-political interests and that of their own futures. How do I explain to people outside that the present Prime Minister and Deputy Prime Minister, arriving on the figure of five years, were not doing the same thing?

[Lord Wallace of Tankerness]

My Lords, I think that one can readily do so, because five years was what this Parliament was elected for. If this legislation gets through, the Prime Minister will not be able to substitute another date or another judgment, unless there are other issues. He has put that date so far away that he cannot be accused of using it—

[Noble Lords]

Oh!

--- Later in debate ---

[Lord Wallace of Tankerness]

Well, he can be accused, because noble Lords opposite will accuse him. But any reasonable person would see that, in setting the basis for a fixed-term Parliament, one could not take account five years out of the possible political vicissitudes, waves and currents in the intervening five years. If this Bill becomes law, the Prime Minister will be locked in, as will any other Prime Minister in future.

I was going to make this point later, but this is an opportune time to make it. I thought that a large part of the noble and learned Lord’s argument was that this measure is the glue that holds the coalition together. However, unless I am mistaken—and I stand to be corrected if I am—the terms of his amendment would still leave standing the election to take place on 7 May 2015. The noble and learned Lord shakes his head.

[Lord Falconer of Thoroton]

I want to correct that, because it is certainly not my intention, which is to have four years, four years, four years and so on. It is certainly not to have five years and then four years. There may be an issue with the drafting, but this is intended to set four years as the term, so be under no illusion.

[Lord Wallace of Tankerness]

I am grateful for that clarification because I had interpreted his amendment as leaving 7 May 2015 to stand and that thereafter there would be four years. I am grateful to hear the noble and learned Lord say that that was not the intention, because that was going to be the answer that I gave to my noble friend Lord Cormack. I accept that it may well be an error in the drafting.

The point that I would make is that this Parliament was elected for a maximum of five years, so in moving to a fixed-term Parliament regime we are embodying that in the Bill—and then thereafter also to have five years. That is the point that I make to the noble Lord, Lord Butler. Of course it is right and it goes without saying that no Parliament can bind its successor. The noble Lord and others say that there is no need for this legislation, but what we are seeking to do is to have fixed-term Parliaments on into the future. Other Parliaments can repeal that, but obviously it would take primary legislation to repeal a system of fixed-term Parliaments. I would very much hope that, having established the principle of fixed-term Parliaments, in the same way as we have fixed terms for devolved Assemblies, for local government and for the European Parliament, fixed terms would become the norm.

I take the point made by my noble friends Lord Marks and Lord Rennard with regard to pre-legislative scrutiny. I have been at the receiving end of many complaints about the lack of such scrutiny. There is an issue about the first year of a Government, because when they come into office they want to get on and start dealing with things. One can readily imagine the criticism that would come from the Opposition if a Government were not doing anything. However, there has been a move over the years to having more pre-legislative scrutiny, which has the effect of increasing the workload on both Houses. It is not fanciful to imagine that, following the election in 2015, a Government of whatever colour will not be able to commence their first Session of legislation with more substantive Bills until there has been a considerable amount of pre-legislative scrutiny. So we are talking about the beginning of 2016 as the time when some key pieces of legislation are introduced, having properly been looked at beforehand.

The final year, whether the term is four years or five years, is always going to be one when those seeking re-election look to their constituencies. That would reduce by some way the effective time for legislation by a Government. My noble friend Lord Norton made the point in one of our debates on the first day in Committee that Governments might run out of steam in the fifth year. Allowing for pre-legislative scrutiny and knowing that there will be five years allows for the legislative programme to be planned more effectively. The fifth year, particularly if it is a full year, not one starting at the end of November with a wash-up in the middle of March, would then be used much more effectively.

I defer to the huge experience of the noble Lord, Lord Martin, as he was Speaker of the other place and has an understanding of the parliamentary process. However, the final year, be it the fifth or the fourth year, would inevitably be one when the shadow of the coming election loomed. I also point out that my understanding is—although I may be corrected—that now Thursday debates in the other place are very often chosen by a Back-Bench Committee and that the Government have given power to the Back-Bench Committee to determine the subject matter for debate. I would be interested to know how many Divisions there have been on Thursdays in the first Session of a Parliament, as the noble Lord made the point about how few there were in the fifth Session. That is another measure that this Government have taken to put more power in the hands of Parliament rather than the Executive.

[Lord Martin of Springburn]

I cannot speak for what is going on in the other place at the moment. However, if my memory serves me correctly, the Minister followed Jo Grimond into the House of Commons in 1983, so he will appreciate as a former Scottish Member that on a Thursday there were votes more often than not, because we had to take the sleeper home. The other thing is that the Minister has had more experience of four-year Parliaments than five-year ones. In the last Session of a five-year Parliament, there were no votes whatever on the Floor of the House of Commons on a Thursday. That is what happened in the last Session of Parliament before the general election—there were no votes at all. The Minister has never had the experience of when that was the case.

[Lord Wallace of Tankerness]

I agree that it was never my experience. One thing that I am glad that I do not have responsibility for is how Parliament under the last Government was arranged in its final year. The point that I was making was that I believe that, be the term four or five years, the final year will be taken forward under the looming election. If one goes to four years and one has pre-legislative scrutiny, that cuts down the effective time for the Government to introduce their measures, let alone for their measures to be judged.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord was not in the Chamber for the whole debate. He knows that I normally give way. Perhaps I can just—

[Lord Foulkes of Cumnock]

The Minister is having difficulty finding his place. I am only trying to help him.

[Lord Wallace of Tankerness]

The noble Lord is always trying to help. I cannot remember who it was in the last debate—it may have been my noble friend Lord Brooke—who said that one should always beware of the help that comes from certain quarters.

One treats with caution foreign comparisons because, as the noble Lord, Lord Howarth, said, there are different circumstances. However, noble Lords mentioned the fact that there are fixed terms of four years in the United States. I happened to note, reading a copy of the Economist from earlier this month, some comment that for the Republican Party people have not yet been clearly identified as taking part in the primaries. That is just two years and two months since the inauguration of President Obama. It is in order for a Government who receive a mandate to be able to fulfil their programme over a planned period and I believe that five years is more likely to assist that than four years.

[Lord Foulkes of Cumnock]

That was not very convincing.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, will get an opportunity in future to intervene. I am sure that he will make a speech on another set of amendments, to which I shall be more than happy to reply.

At the moment, we have a system that allows up to a maximum of five years. In fact, three of the past five Parliaments have gone for five years. To remove that possibility requires a more compelling argument than we have heard. To move for four years would leave the effective working life of a Parliament and a Government sufficiently curtailed that they would not be able to implement their manifesto provisions. Therefore, I ask the House to support the idea of a five-year fixed term and ask the noble and learned Lord in those circumstances to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I will of course withdraw my amendment at the end of the debate because the purpose of debate at this stage was in order to probe and examine the arguments. The noble and learned Lord’s speech was well delivered but disappointing because it ultimately did not address the central argument being put against him: that the effect is to change our constitution, where there is a five-year maximum but the norm is around four years, to one where the norm becomes five years save in exceptional circumstances.

What everyone around the House was asking him was: why are you making this change if we have to make the judgment on what is in the best interests of good governance in this country? The Minister never answered that question at all but it is at the heart of the debate. This is not a party-political point. The reason that the noble and learned Lord cannot answer the question is that good old Mr Laws, in order to make it clear that the record should not be perverted in any way, has explained why it is five years. I do not know why the noble and learned Lord, who is an honourable man, is weaving and dodging on this. Just say, “They wouldn’t do a deal with us unless we agreed five years”. Do not try and make it something that it is not.

One of the other things that emerged so strongly from this very powerful debate was the sense that the more one talked about it, the more this House felt uneasy about being locked into this straitjacket that the Bill brings. I am in favour of fixed-term Parliaments, in the sense that I can see it to be appropriate that Parliament should in some way endorse what the Prime Minister has decided about an election. However, the Government are saying, “You have to choose between five years and four years”. I detected a real sense of unease around the House on this, but the Government are putting it that we have got to make this choice. Therefore, looking at the arguments, let us see which the best choice is. The noble and learned Lord himself said what the reason is that the Government are doing this.

Now, I cannot find my note. That would give my noble friend Lord Foulkes an opportunity to ask me a question, but I do not think that he wants to ask me any questions. I am sorry about that.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, the effect of my amendment would be to remove the provision for “resetting the clock”, as the phrase goes. If the amendment were incorporated into the Bill, and were there to be an early general election under either of the two provisions in Clause 2, that early general election would not be followed by a new full fixed term of the subsequent Parliament. Only the balance of the term left over from the previous Parliament would be served by the new Parliament, and a general election would take place at the end of five years—or, if at Report we adopt a four-year fixed term, at the end of four years—as established before the early general election took place.

The provision for resetting the clock is an important element in the Bill and we should have the opportunity to think about it in Committee. I understand that in Sweden, if an early general election is called, the electoral cycle none the less remains unaltered; they have the provision that I am proposing in the Bill. Of course, Parliament legislated that there should be four-year fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. That legislation provides for the possibility of an exceptional early election but does not provide that the clock is reset in Scotland, Wales or Northern Ireland, and one might say that sauce for the goose should be sauce for the gander.

If we are to have fixed-term Parliaments, why do we not have genuine fixed terms? That would enable the benefit of the discipline of fixed terms to be fully experienced and everyone would know where they stood. It would remove the incentive for a Government to contrive an early general election by, for example, engineering a vote of no confidence in themselves. The requirement would be less significant if in due course the House approves one of the amendments that provides that only the Leader of the Opposition may table a Motion of no confidence, but without that amendment we must recognise that there is a possibility, and it could be an attractive one, for the Government to engineer such a Motion in order to achieve an early general election. It would discourage the parties from colluding to take advantage of the two-thirds provision for an early general election, and would lead to the benefits of full five-year terms being more surely secured, as no doubt the noble Lords, Lord Armstrong of Ilminster and Lord Butler of Brockwell, would wish. It would keep the rhythm of the boundary reviews in sync with the electoral cycle, the importance of which the noble Lord, Lord Rennard, stressed in our previous debate.

When Mr Harper, the Minister, gave evidence to your Lordships’ Constitution Committee, he was rather equivocal on this point—he simply said that it was a judgment issue whether or not the provision for resetting the clock should be built into the legislation. He said,

“on balance we have taken the view that resetting the clock is the right one”—

that is, the right decision. Once again, as with the issue of judgment as to whether the fixed term should be for four years or five, the coalition’s judgments just happen to favour its own interests in staying in office. Again, I ask the Minister whether the Government have any better reason for having incorporated the provision for resetting the clock in the event of an exceptional early general election.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth, for the amendment. I was initially puzzled about its effect, which would be that it would provide that the next scheduled election was not held following an early general election under Clause 2. This gives me an opportunity to say something about subsections (3) and (4), as he has indicated that with this amendment he is seeking to ensure that the clock is not reset. His closing remarks indicated that this is a matter not of high principle but of judgment.

Subsections (3) and (4) of the clause provide that, where an early election occurs, the polling date for the next election will be the first Thursday in May in the fifth year of Parliament, unless the early election falls on a date before the first Thursday in May, in which case the length of the ensuing Parliament will be calculated as four years from the next first Thursday in May. That will deliver certainty as to when the next election will be, but—this is a crucial point—it also gives the incoming Government as close to a five-year term as possible. It eliminates the need for the electorate to return to the polls in quick succession, as the clock is effectively reset.

The Constitution Committee examined this aspect of the Bill. In its report it concluded that if there is an early general election, a Government elected at that poll should have a full term, or as near a full term as possible, in which to develop their policies and take their legislative programme through Parliament.

Some noble Lords may nevertheless have the concerns expressed by the noble Lord about the term of the Parliament after an early election. I know that some consider that it would be preferable for an early election not to affect the date of the ordinarily scheduled election, but that could well mean that a Parliament was given only a relatively short period of time. It may be that a Government would be elected with a substantial majority, and it would be difficult to explain to an electorate in these circumstances why it would be necessary to return so quickly when it might appear that a Government had been elected relatively recently with a mandate. They might be surprised and somewhat confused by that approach.

Not to allow an incoming Government to serve a full term would lead to a system with potentially two types of Government: those entitled to a full term to implement their policies, and those who would have to make do with the time left to them before the next scheduled election. That could also alter the nature of the elections themselves. Why should the mandate provided at one election be any different from the mandate provided at another?

I note the points made about the devolved Administrations in both Scotland and Wales. There is a difference; I think that the Northern Ireland Assembly is much more akin to what is proposed in the Bill. It is also the case that, given the proportional systems that are in place for elections to the Scottish Parliament and the Welsh Assembly, it is unlikely that you are going to get a Government elected with a large single-party mandate. If a party had not been elected with such a mandate, people would not think it so odd that it did not have a full term.

We gave consideration to this matter, but the balance comes down in favour of resetting the clock. I am grateful to the noble Lord for his amendment. It has been an opportunity for us to air this important aspect of the Bill. I hope that he will agree that there is merit in resetting the clock and, on that basis, will withdraw his amendment.

[Lord Howarth of Newport]

I am grateful to the Minister for explaining the Government’s case slightly more fully than the debate at Second Reading gave him the opportunity to do. After all the excitement of the previous debate, the House has not been particularly zestful about embarking on an exhaustive debate on this topic, but this provision in the Bill is significant and it is right that the House has received the explanation that the Minister has given.

If my amendments were incorporated, however, they would provide greater certainty. The Minister seemed to suggest that there would be greater certainty if we had a resetting of the clock. There would be greater certainty about the duration of a Parliament if we did not have that provision, but I do not want to quibble. I also accept his point about proportional representation making a difference. I am grateful to him for correcting my appreciation of the position in Northern Ireland.

I agree that, on balance, it is better to include the provision to reset the clock. One could make a reasonable case for not including that provision, or for not applying it, if the early general election were to occur in the first half of a fixed term of Parliament. It might be accepted that, if there was more than half of the fixed term still to go, it would be sufficient and the benefits of discouraging early elections would be felt. However, I certainly agree that if there were an early general election later in the Parliament, it would not make sense not to start a new fixed term. If we were to elect a new Government, they would need a decent span of time in which to govern. I also do not think that the need to have two general elections in rapid succession would be well received by voters if this was the only reason why there had to be another election. I am glad that we have been able to look at this issue and beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness, Lady Hayter, for this interesting amendment, which has given rise to a number of interesting questions. As the Committee well knows, a cross-party committee has been considering reform of this House and the Government intend to publish a draft Bill shortly. I could not possibly comment on what will be in that draft Bill as it will be subject to pre-legislative scrutiny. We hope that that will be done by a Joint Committee of both Houses. I am sure that some of the important issues which the noble Baroness raised will be brought before that Joint Committee. My noble friend the Leader of the House answered questions on some of the issues she raised regarding the relative standing of both Houses last week, if not the week before. However, I do not think that it is appropriate to deal with them in the context of this Bill.

[Lord Bach]

The noble and learned Lord says that that draft Bill will be subject to pre-legislative scrutiny. That is great to hear, but why was that not the case with this Bill?

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[Lord Wallace of Tankerness]

My Lords, we have gone down that path many times and have indicated that we intended this should be a first-term Bill. I have made it very clear on a number of occasions when this has been raised that we believed it was important that at a very early point in this Parliament we should establish that it would run to a particular fixed date, and that we wanted to ensure the principle of fixed-term Parliaments. However, no one can say that there has not been ample opportunity, in the length of time which I described in responding to an earlier amendment, for both Houses to have plenty of opportunity to look at a relatively short Bill.

[Lord Cormack]

My noble and learned friend talked about the scrutiny committee of both Houses. Can he give an absolute assurance that on that committee there will be Members who do not believe in a fully or partially elected House so that it can reflect the wide range of opinions in both Houses of Parliament?

[Lord Wallace of Tankerness]

My Lords, I am in no way trying to dismiss the suggestion that my noble friend makes. I am not in a position to indicate how that committee will be established. No doubt there will be nomination procedures from both Houses. I suspect that it would be rather odd if a contrary view or two was not expressed on it, but I am not in a position to indicate that ahead of the Bill being published. I assure the Committee that the timings of elections to the reformed second Chamber has been considered carefully by the Government and the proposals will be in the draft Bill.

I certainly take my noble friend’s point that, having spent most of the time on the Parliamentary Voting System and Constituencies Bill listening to the Opposition saying that the Bill should be split, it is somewhat intriguing then to be told that not only should it be split but that two other Bills should be added on to it. I do not think that the experience of the CRAG Bill in the previous Parliament, where numerous constitutional principles were put together under the one heading of a constitutional reform Bill, was necessarily the most satisfactory experience.

The noble Baroness mentioned entrenching the election date for one House while the other was pending. At least it will be known when this Bill has got on to the statute book what Parliament has agreed with regard to a fixed-term election. If this Bill had not come forward and we did not have fixed-term Parliaments, an election to the other place could have happened at any time. The potential for some of the confusion and concerns to which the noble Baroness referred would have been multiplied many times over if it was proposed that this House should have a fixed term while the other place could have elections as and when the Prime Minister of the day thought best to call them. Therefore, when the Joint Committee of both Houses considers the draft Bill, it will do so in the knowledge of what Parliament has passed in the context of fixed-term Parliaments. This Bill deals with dates of the general election to the other place. These should be set before we consider the dates of elections to the reformed second Chamber. There will be ample opportunity to discuss elections to this Chamber when the Bill is published in draft form and, I suspect, plenty of further opportunities to discuss it when the reality of the Bill comes before the other place and your Lordships' House. I invite the noble Baroness to withdraw the amendment.

[Baroness Hayter of Kentish Town]

I thank the Minister and the other speakers for their contributions. The Minister said that it was an interesting amendment, rather like the Chinese proverb, “May you live in interesting times”. I am not sure about the noble Lord, Lord Cormack, calling it mischievous. It was seriously meant because it is about a package of reforms, as my noble and learned friend said. I do not think that means putting them in one Bill but rather having a real idea of where we are taking our constitution before we tackle any one bit of it, so that we see it in the round. Nevertheless, given the comments that have been made, I beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Grocott, for his amendment, which would provide for a minimum of five parliamentary Sessions in every five-year Parliament. I have a lot of sympathy with the spirit of what is proposed, but I will explain why I do not think that it should be enshrined in statute. I accept that having five annual Sessions in a five-year Parliament makes considerable sense. Indeed, under this Bill is it likely that the Parliament elected in 2015 will have five Sessions. The only reason that this Parliament is likely to have four—I will deal with this in more detail in a moment—is the transition to fixed terms and spring state openings. It would not be appropriate to put the amendment into statute; the current arrangements should remain. As the noble Lord, Lord Grocott, recognised, even if the Bill did not exist, it would still be possible to change the length of a Session.

I will answer the point made by the noble and learned Lord, Lord Falconer. It was very obvious that the decision to move to spring 2012 was not taken in the early days of this Government. By the time the announcement was made in September, the Bill had already been published. I cannot remember the exact date; it must have been around the time the Bill got its Second Reading. I am being told that in fact it was the same day. That might explain why the Bill did not have pre-legislative scrutiny. I know that I have not answered this point to the satisfaction of the Opposition, who will come back to it time and time again. However, we wished to have this Bill in the first term. It was not in order to get this Bill through that we decided to extend the Session. It is very clear that the reason for the extension was that we wished to move to an annual Queen's Speech in May and therefore an adjustment was required.

We could have reduced the length of this Session, but to have done so half way through would have caused a number of difficulties. That is why it was decided, as a one-off, to extend this Session until spring 2012. There is nothing sinister in that. Most of our legislation would have been passed in any event. The noble Lord, Lord Grocott, indicated that there is provision for carry-over. I pause to reflect that the fact that this Session is longer may bring a ray of hope—with reference to the previous debate, I believe that hope was the last thing to come out of Pandora's box—to Members whose Private Members’ Bills are so often frustrated because there are not enough Fridays in the Session to get them through. To suggest that this is a sinister plot on the part of the Executive is grossly misplaced. The purpose is to get into a position where we can have annual Sessions that begin in May. It will be our intention thereafter to have Sessions that run from spring to spring.

It is not appropriate to enshrine this in statute because there may be a case where, if the Bill is enacted, an incumbent Government lost a vote of no confidence and a new Government was formed within 14 days. It is possible in such a scenario that it would be felt that the Session should come to an end and that there should be a new Queen's Speech. Nobody would think that that would be unreasonable in the circumstances. It might be very difficult then to fit in five Sessions. That is why it is better not to stipulate in statute that there should be five Sessions in any one Parliament. A Session might begin after an election in February and come to an end in May, which would not make much sense. It would have to be brought artificially to an end to ensure that the requirement of five Sessions was met.

Having annual May-to-May Sessions will ensure that the final Session of the Parliament is more likely to be much more meaningful and worth while than one which, for example, begins in late November and lasts until the wash-up in late March. The noble Baroness, Lady Armstrong, says, “We’ll see”, but nothing could be less exciting or satisfying than what we experienced in the wash-up last year when we tried to deal with so many Bills that had barely got anywhere. Parts of the Constitutional Reform and Governance Bill, which had had only a Second Reading in this House, were passed with only the briefest scrutiny. It had some pre-legislative scrutiny, but no scrutiny in this House. I hope that noble Lords would agree that at the end of the day actual legislative scrutiny is more important than pre-legislative scrutiny.

[Lord Bach]

It is best to have both; I quite agree. That Bill had enormous pre-legislative scrutiny, but should have had more legislative scrutiny. There, I have said it. Now perhaps the noble and learned Lord will admit that his Government, too, are in error. More importantly, they are passing legislation now, so they should learn from any mistakes that we may have made.

[Lord Wallace of Tankerness]

This legislation is having ample legislative scrutiny and I suspect that in times to come we will move towards having much more pre-legislative scrutiny. That is why I argue for five-year fixed terms; there will be more opportunity for pre-legislative scrutiny as well as legislative scrutiny. I simply make the point that to truncate one Session into two or three months would not be sensible. Future Sessions will last for only 12 months. What is happening in this Session is a one-off adjustment so we can get into the pattern of spring to spring Sessions that would fit the election timetable of fixed-term Parliaments with elections in May. For these reasons, I invite the noble Lord to withdraw his amendment.

[Lord Grocott]

My Lords, I do not know whether the noble and learned Lord, Lord Wallace, is getting tired or whether I am. He has ample reason for getting tired because he has been heroic as the only Minister dealing with this vital constitutional Bill. However, I simply did not understand what he said. We had a general election in May last year and he said that in order to adjust to the situation where we know the date of the next general election, which will be five years from last May, the length of this Session of Parliament had to be adjusted to accommodate that. I do not understand that argument.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for giving me an opportunity to explain it. It was clear from the comments made by the Deputy Leader of the other place in May of last year that the decision to extend the Session to spring 2012 was not made in the early days. The working assumption was that we would go forward as we normally do after an election in May and have the first Session running through to the following October or November. It is not giving away any state secrets to say that that was the assumption. We then considered whether it was better to move to a situation where, if we were going to have fixed-term Parliaments, the Sessions should run annually, May to May. An announcement was made in September, which would normally have been between a third and half way through the Session. 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. There is nothing sinister in that; we were totally open. However, this is a one-off change and from next year, Sessions will go from May to May. That is the right way to proceed. I hope the noble Lord will accept that there was nothing sinister in this, but that it was an adjustment made in-year, given that the original expectation was to go through until the autumn of this year.

[Lord Grocott]

I am not saying that it is sinister; I am just saying that it is illogical. If the Government decided in those five days in May that there were to be five-year fixed-term Parliaments, why was it not plain as a pikestaff that in normal circumstances that would mean five annual Sessions? No adjustment was required. A year would take you to the following May, then the May after that and so on. I do not need to go through it. With respect, it seems obvious to everyone in the House apart from the Minister that that is the logic of a five-year Parliament.

I am very grateful to noble Lords for their contributions, which have been 100 per cent on the side of those who agree with the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

We did not, in those five days in May, think about moving from one year to one year to one year. That is the simple answer and I hope that the noble Lord will accept it at face value.

[Lord Grocott]

Of course I accept that and I shall not labour it further if the Minister assures me that the coalition was not going to tamper with that aspect of our constitution. However, I emphasise the sheer inconsistency of rejecting this amendment when the whole rationale—if there is one, although I doubt it as every day passes—of the Government’s comprehensive constitutional reform programme is to provide a degree of predictability and take away powers from the Executive. My amendment simply tests the Government’s sincerity and commitment to that by requiring them to correct their very inadequate and unsatisfactory decision unilaterally to make it much easier for the Government to legislate.

I fear that there is a tendency by the Minister—it is understandable when you are taking a complicated and important Bill such as this through the House on your own—to assume that, if any amendment is put down, particularly by the opposition Benches, the duty of the people in the Box is to find reasons for saying no to it. If the Minister were to put a cold towel over his head and think in as dispassionate a way as he is allowed—I do not mean “allowed” in any sense other than that this Government seem to be totally locked into their constitutional reform programmes, which do not seem to be thought out in a coherent way—he would come to the conclusion that, once the deal had been sealed between the Prime Minister and the Deputy Prime Minister, there would be no flexibility on that Bench to make any adjustments whatever.

Before I beg leave to withdraw the amendment, perhaps I may appeal to the Minister to tell those of a higher pay grade that this really is a sensible proposal, which, so far as we have tested the opinion of the Committee, has 100 per cent support from everyone but the Government, and that, if they are to be consistent in their principles, about which, as I said, I am not thrilled, they really ought to see the logic and sense of having fixed annual Sessions within five-year fixed Parliaments. With that, I beg leave to withdraw the amendment.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Bach]

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

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

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

My Lords, I think my noble friend Lord Rennard, with his spirit on the previous Bill, managed to get some concessions out of the Government. Who knows what might happen?

Before addressing the amendments that have been spoken to in this group, I shall briefly speak to Amendment 26, which is a government amendment and implements a recommendation made by the Delegated Powers and Regulatory Reform Committee. In common with the other amendments in this group, it concerns Clause 1(5), which confers a power on the Prime Minister to vary the date of a general election by up to two months earlier or later by order, subject to the affirmative procedure.

I am sure the House will be grateful to the committee for the careful scrutiny it generally gives to legislation but has specifically given to the Bill. In its report, the committee concluded that the delegated power taken in Clause 1 was not inappropriate in principle and recommended that, when seeking to vary the date of an election under the power in Clause 1(5), a Prime Minister must lay a statement before both Houses setting out the reasons for proposing the variance of the date.

The committee itself recognised that it would be unrealistic to specify a constraint which would embrace all the possible circumstances in which it would be appropriate to change the polling day. Instead, this is why the committee focused on the importance of ensuring that each House is fully aware of the reasons why the Prime Minister has proposed changing the polling day. That is an approach with which the Government agree. I am sure that your Lordships will be pleased to hear that the amendment implements the committee’s recommendation and provides that a statement must be laid before both Houses of Parliament setting out the reasons for proposing a change to the date of a scheduled general election. I certainly urge your Lordships to accept this amendment when the time comes.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

26: Clause 1, page 1, line 20, at end insert—
“( ) The draft laid before Parliament must be accompanied by a statement setting out the Prime Minister’s reasons for proposing the change in the polling day.”

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[Lord Falconer of Thoroton]

My Lords, again, Mr Laws explains how we got here. But when you see how we got here, it is difficult to understand why we are here. Perhaps I may read a paragraph that has not yet been quoted:

“There was a debate for thirty minutes or so on arrangements for dissolving a parliament before the end of its five-year term. This was an issue which we raised, but William Hague soon realised that the main risk lay with the Conservatives. Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

He continues:

“Huhne originally suggested that there should be a 66% threshold for dissolving parliament before its full term was up, in line with the situation in Scotland. George Osborne said he thought that 66% was rather high and that 55% or 60% was closer to the mark. After some work on Ed Llewelyn’s calculator, and consideration of by-election risks, it was decided that a 55% vote of MPs would be required to provide for a dissolution. This was just greater than the combined opposition and Lib Dem parliamentary parties, thereby safeguarding the Conservative position”.

It is absolutely plain from what Laws is saying there that they were trying to guard against Dissolution, including a no-confidence vote. There is no doubt about that, because he says:

“Without a super-majority for dissolution being required, the smaller party could leave the coalition and dissolve parliament almost at will”.

That must be referring to a vote of no confidence. It is therefore plain from Laws’ book that it was envisaged that you could not get rid of the Government with an ordinary vote of no confidence and that the only provision intended to allow for an early end—that is, before the five years—was if the super-majority was satisfied, and that could not be delivered by the Lib Dems coalescing with Labour.

I think that that was to be put into a binding resolution, whatever that may mean, in the House of Commons. Pressure was then placed on the Government in the public debate which followed, and they changed this in two respects: the figure of 56 per cent became two-thirds, and they agreed to a vote of no confidence as a way of getting rid of the Government. Why are they both there? Which two separate situations are they trying to cover? It looks as though the coalition agreed to the 56 per cent to prevent the possibility of being voted out on a vote of no confidence. I am pretty sure that that is what happened, but they were pushed off it by public pressure and had to agree to a vote of no confidence. They retained the super-majority as a fig leaf in order to try to give some justification for it. That is what Mr Laws’ book is suggesting. Could the Minister say whether I am wrong about that analysis? No other factual analysis is being offered for why we are in the extraordinarily unusual position where both a simple majority and a super-majority can get rid of the Government by way of a vote in the House of Commons. It looks as if the analysis that I have given is the reason.

We are entitled to an explanation for this. The point made by the noble Lord, Lord Norton of Louth, who is respected throughout the House as a constitutional expert, is significant: no other national parliament has this extraordinary provision in it. If it is in there only because it was part of a negotiation that then got shot away by public pressure, why are the Government keeping it in? It is important that the noble and learned Lord gives us some information about it, because at the moment the only explanation on the record is the one that I have given. It is discreditable for the Government to reform our constitution simply on the basis that an idea that was floated in the coalition agreement got shot away but they kept it in, in order to preserve I am not sure what.

A second and separate point that the Minister needs to deal with is: what happens when the Government resign and no one else wants to form a Government? On the basis of the Bill, it appears—again, the noble Lord, Lord Norton, has made this point and I have not heard an answer to it—that you have no Government and no Dissolution. I would be grateful to know what happens to our nation’s Government at that point.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton for opening up the debates on this clause, which raises important issues regarding the mechanisms that would trigger an early election or indeed a change of Government, and I am grateful to all noble Lords who have taken part. It is important to recognise that there are two mechanisms that can trigger an early election: either a Dissolution on a 66 per cent majority—or, more accurately, with two-thirds of Members voting for it—or a vote of no confidence passed by a simple majority and, after 14 days, no Government having a vote of confidence. They are distinctive.

I cannot endorse the speculative analysis by the noble and learned Lord Falconer. He admitted that he was speculating—

[Lord Falconer of Thoroton]

I am not speculating. This is what a person who was there at the negotiations said. For the Minister to describe this analysis as speculative when he is not offering an alternative explanation is wholly unfair.

[Lord Wallace of Tankerness]

My Lords, it will be obvious that the proposals in the Bill are not the ones described in the book. The noble and learned Lord asks us why we have the proposals that we do, and obviously he was speculating about why they are there. If I were presenting to the House a Bill that had a 55 per cent majority and that was it, that would be a reasonable basis on which to say, “This is how we arrived at 55 per cent”. Clearly, that is not what is proposed in the Bill, and I will address that in the course of my response to this debate.

Subsection (1) provides the House of Commons with a new power to vote for Dissolution following a process that I believe is robust and transparent. My noble friend has indicated that he has his own further amendments about what might follow, including the point raised by the noble and learned Lord, Lord Falconer, about what would happen in the event of a Prime Minister resigning, and we will address these when we come to my noble friend’s amendments.

The point is that if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence, particularly where confidence in the Government is not necessarily the issue and may not be what is driving the need for an early election. We believe that it would not be right or proper to conjure up a vote of no confidence in these circumstances. That is why the Bill seeks to prevent that with our proposal for a two-thirds vote.

In the case of Germany, Governments have in the past had to engineer no-confidence votes even where there was a consensus in favour of an early general election, because there was no provision in its constitution analogous to the procedure for a Dissolution vote in this Bill. At that time there was no alternative to engineering a no-confidence vote.

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[Lord Falconer of Thoroton]

I understand what the Minister said earlier. Is he now saying that this is a product not of the coalition agreement but of some other arrangement?

[Lord Wallace of Tankerness]

I might be missing something somewhere. The coalition agreement referred to the 55 per cent that the noble and learned Lord has described. At the same time, he gave a plug to my right honourable friend’s book, for which I am sure he is very grateful. However, that is not in the Bill; I am describing what is in the Bill. Of course it is a product of the coalition. It is a coalition Bill that is before your Lordships’ House.

I recall sitting in this House during Questions and listening to many noble Lords on all sides of the House criticise that 55 per cent provision. The noble and learned Lord nods his head in agreement. It was a provision that received considerable criticism. There was a criticism that it meant a vote that could lead to a Dissolution. People asked about votes of no confidence. At the same time, there was the issue of whether there ought to be a higher majority to trigger a Dissolution automatically. The two mechanisms that provide the trigger in the Bill as it stands address the criticisms that were made. I make no apology for saying that the Government listened to the criticisms that were made, tried to take them on board and came forward with what is proposed here. It may be unique to the United Kingdom but it addresses some of the concerns.

We will come later to the issue of no-confidence votes but at present this House and—it is fair to say —other commentators and people in the other place said that there was an important point about the vote of no confidence on a simple majority having a consequence. The Government listened to that. Historically, there have been two possible outcomes. In 1924, when there was a vote of no confidence in Mr Baldwin’s Government, Mr Baldwin resigned and a new Government was formed under Ramsay MacDonald. In 1979, as has often been mentioned in our debates on this Bill, when Mr James Callaghan’s Government lost a vote of no confidence, he then proceeded to seek a Dissolution and an election was held.

When we come to the next part of this clause, that is what we will be discussing. We will no doubt debate what constitutes a no-confidence vote. We seek to reflect what has been the constitutional position of the outcome of a no-confidence vote on a simple majority. Equally, we took the view that there were circumstances in which it would be more appropriate, if there was a consensus that a Parliament should be brought to an end, to have a trigger mechanism that was more than a simple majority, such as a two-thirds majority.

[Lord Lamont of Lerwick]

I apologise for not having been here earlier but I have heard everything since my noble friend Lord Norton spoke. The Minister referred to 1979. Would he describe for the benefit of the Committee how the provisions of this legislation would apply to the conditions of 1979? If there had been a vote of no confidence in Mr Callaghan’s Government under the provisions of this Bill, would he have been able to wait a fortnight, give jobs to the Irish nationalists and re-form his Government, thereby avoiding an election?

[Lord Wallace of Tankerness]

Hypothetically, if he was able to do that, it could have happened. In a Parliament with less than six months to go, it is highly unlikely that that would have happened. There has to be a political reality. It was quite clear that that Government had run their course and there was a general view that an election was needed. Therefore, I think it highly unlikely that a new Government would have been formed, and no new Government having received a vote of confidence within 14 days there would have been a Dissolution. That is one set of circumstances. However, there ought not to be a vote of no confidence if that is not the reason behind the consensus that Parliament needs to come to an end and for there to be a general election. Rather than contrive a vote of no confidence, one should have it as a solution but with the threshold set at such a level that it cannot easily be obtained by a single party for political advantage.

In much of the noble and learned Lord’s speech at Second Reading, his main agony about this Bill was that it would be possible for a Government to abuse the procedure and seek a Dissolution, which would defeat the whole purpose of having fixed-term Parliaments. Therefore, we believe that it is appropriate that the Dissolution should be set at a level which has not been achieved by any governing party since the Second World War. I fully accept that we departed from the 55 per cent figure because that was clearly not going anywhere. It was roundly criticised in this House and, indeed, in other places. As I say, I make no apology for having listened to that criticism, reflected on it and come forward with a proposal which still maintains that there should be a vote which could trigger a Dissolution, but one where the percentage figure is much higher to the extent that it would not be achieved by one party alone. That is why that first trigger mechanism—the subject matter of this amendment—is there. The two-thirds majority that is proposed is the same majority required for a Dissolution vote in the devolved legislatures, as set out in the relevant legislation.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble and learned friend but I think that three times now he has referred to a two-thirds majority. However, it is not a two-thirds majority because that would be two-thirds of the votes cast in the Division. This is two-thirds of the number of Members, including vacant seats. Will he set the record straight?

[Lord Wallace of Tankerness]

I am happy to do so. I think that I corrected myself the first time I got it wrong. I am grateful to my noble friend for reminding me of that. As I say, since the Second World War no Government have been able to command two-thirds of all the seats. This means that Parliament can choose to dissolve itself but Government cannot dissolve Parliament for their own political advantage.

The noble Lord, Lord Howarth, asked why the two-thirds requirement should not be set out in Standing Orders rather than in statute. The two-thirds requirement is set out in legislation as opposed to Standing Orders so that any change to the requirement would have to be made by fresh primary legislation, which would require the consent of both Houses of Parliament, whereas Standing Orders of the other place would require only one House of Parliament to determine that and probably could be amended or revoked by a single simple majority in the other place, and therefore could defeat the purpose of the measure. It is better to have the two-thirds vote set out in statute, which means that it has to be changed by statute. That would involve this House rather than the other place simply determining it by means of its own Standing Orders. It is not appropriate that a significant detail of reform affecting Parliament as a whole with implications for our prerogative should be amended by Standing Orders of one House of Parliament.

The noble Lord, Lord Howarth, very helpfully indicated that he would speak to his Amendments 28 and 29 at the same time. The first of those would omit the requirement for a two-thirds majority while the second would increase the figure to three-quarters of all MPs voting in favour of the measure instead of two-thirds. The reason why we are opposed to the simple majority—it would be a majority in that case—for the Dissolution is because it would undermine one of the purposes of the Bill: namely, establishing a fixed term and removing the Executive’s ability to decide when Parliament should be dissolved. Noble Lords may recall that at Second Reading mention was made of the late Lord Holme of Cheltenham and his analysis of arrangements whereby the Prime Minister can choose the timing of the election. Lord Holme described a general election as,

“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 1/3/11; col. 1007.]

I have reflected why he would not have his running shoes on, but he would certainly have the starting pistol in his hands. Unfortunately, Amendment 28 of the noble Lord, Lord Howarth, would preserve the Executive’s ability to decide when a Parliament was dissolved, by providing that a Dissolution motion could be passed by a simple majority.

At the other end of the scale, the noble Lord suggests a majority of 75 per cent of Members who vote. Again, it is not an unreasonable proposition, but I believe that, on balance, the threshold of two-thirds strikes the right balance in providing a safeguard against abuse of the power, while ensuring the effectiveness of the Bill’s provisions. This Parliament passed similar provisions in relation to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.

I have sought to explain why there are two mechanisms and how they are different. I indicated clearly that the 55 per cent originally proposed did not find favour. Therefore, it was only right and proper that the Government listened to those views, and we have come forward with two trigger mechanisms—one for when there should be an election, if there is a consensus, and another for when the Government have lost the confidence of the House of Commons. They are different issues that are dealt with separately. Interestingly, the Constitution Committee, whatever other concerns it may have had, thought that the Government’s proposals on the two trigger mechanisms were an appropriate way forward. In those circumstances, I ask my noble friend to withdraw the amendment.

[Lord Norton of Louth]

My Lords, I am grateful to noble Lords who have spoken in the debate which, despite the late hour, has been quite useful and has teased out the reasons for the provision. Perhaps I may begin by briefly correcting my noble and learned friend Lord Wallace of Tankerness on his reference to the German example. He said that the Government there had engineered a vote of no confidence in themselves. In fact, they engineered defeat of a motion of confidence, which is not the same thing and is relevant to discussions that we will have later on how one defines a vote of confidence.

Reference was made earlier to the Constitutional Reform and Governance Act and pre-legislative scrutiny. I served on the Joint Committee on the draft Constitutional Renewal Bill, as it then was. The title was later changed because I and others pointed out that nothing was being renewed by the Bill. My point is that the Joint Committee met for two hours twice a week for nearly three months. The more we discuss this Bill, the more convinced I am that it would have benefited from extensive pre-legislative scrutiny. The problem with much of the Bill is that it is not grounded in evidence. It is not exceptional in that respect but, as we have heard, this part of the Bill was the product of negotiations by politicians who are not necessarily noted for their knowledge of our constitutional arrangements.

Subsection (1) is highly unusual—certainly in comparative perspective. My noble and learned friend said that he would write to me with details of where this provision applies elsewhere. It may be helpful if I tell him that I can save him a letter. The noble and learned Lord, Lord Falconer of Thoroton, thought that we were unique in this provision. That is not quite the case. Lithuania, Mongolia, Tajikistan and Turkmenistan have a similar provision. I wanted confirmation that the Government were unaware of that.

--- Later in debate ---

[Lord Falconer of Thoroton]

First, on the amendment of the noble, Lord Marks, I agree with the noble Lord, Lord Norton of Louth. It fails to deal with two particular problems. First, when a Government lose a vote that is obviously a vote of confidence—if the Government had been defeated on the Motion authorising the use of force in Iraq, that would plainly have been a vote of confidence—it would be wholly wrong if there then had to be a vote of no confidence thereafter.

Equally, there have been votes which the Government lose, for example, the vote on Maastricht in 1992, which they then followed—in my view, entirely correctly —with a Motion tabled by the Prime Minister on a vote of confidence in the Government. If that vote had resulted in the Conservative Government being defeated on the vote of confidence, which was the traditional method of dealing with that, the consequence should have been not that there then needed to be a vote of no confidence from the Opposition—which, as I understand it, is the view of the noble Lord, Lord Marks—but that there should be a general election, or a 14-day delay, which we shall debate later.

Those two examples would not be covered by the proposal of the noble Lord, Lord Marks, and therefore lead to dealing, on one view, with the collusion argument but strengthen the other risk in the Bill, which is that a Government who genuinely have lost the confidence of the Commons are able to stay in power. Just as the noble Lord, Lord Marks, gets one piece of the wallpaper on the wall, another falls off.

On my amendment, I could not have asked for more from the noble Lord, Lord Norton of Louth. It is my view that in relation to a vote of no confidence, there is no possible mechanism one could adopt which would allow anyone to go behind the motivation of why a particular group of people voted in favour. That is an impossible task. It is like the vote of 100 in the Commons voting for an all-elected House of Lords. It has been suggested that that was a vote in order for there not to be an all-elected House of Lords. But one cannot go behind the vote; one must accept it at face value.

I tabled the amendment simply to illustrate the correctness of the conclusion of the committee on which the noble Lord, Lord Norton of Louth, sits, chaired by my noble friend Lady Jay, that there is no ability to control a vote of confidence and that a Prime Minister with a majority can, if he or she wishes, engineer a situation where he or she loses a vote that is a vote of no confidence, even if not so called.

I have a third objection to the amendment tabled by the noble Lord, Lord Marks. Is it such a bad thing that, had these provisions been in place, it would have been open to, for example, Mr Heath to go to the country not by engineering in some deceitful way but by simply saying that he thought that the Government needed to have the confidence of the people to go on with the particular stance they were taking? He would therefore have put down a Motion of confidence in his own Government with a view to there being an election. Is that a bad thing? What is the view of the Government on that? These are probing amendments in Committee. The amendment tabled by the noble Lord, Lord Marks, covers one situation, but it leaves a lot of others uncovered. I agree with the noble Lord, Lord Norton of Louth.

I tabled my amendment simply to establish the point made by the noble Lord, Lord Norton. You cannot go behind people’s motivation, which means that the Select Committee is probably right. The Government of the day can always have an election whenever they want on a majority of one. Do the Government think that is necessarily a bad thing?

[Lord Wallace of Tankerness]

My Lords, this is the first of a series of groups of amendments dealing with the trigger mechanism from no-confidence Motions. I thank my noble friend who tabled this amendment and noble Lords who have tabled subsequent amendments. A general view has been expressed, particularly at Second Reading, that there is some merit in having certainty. A number of those who have contributed to this debate have made the point about the potential for abuse.

As I have indicated, the Government believe that the package of the two trigger mechanisms is sensible and straightforward. However, I accept that there has been considerable interest in the handling of the no-confidence Motions in particular. When the Bill passed through another place, there was some detailed debate on this, but it was not amended. The more one looks at it, the more one finds that perhaps the balance that has been struck in the Bill is right. However, the function of this Chamber is to be a revising Chamber to improve legislation and I want to make it clear to noble Lords that, in our deliberations on this amendment and the subsequent amendments, the Government are willing to listen carefully and to reflect on what noble Lords have to say with regard to trying to address the issue of certainty about what constitutes a no-confidence Motion and ways of trying to eliminate abuse.

It is to address certainty and to eliminate abuse that the amendment moved by my noble friend Lord Marks provides that only a Motion of no confidence tabled by the leader of the Opposition would trigger the procedure in Clause 2(2)—namely, the 14-day period. The amendment spoken to by the noble Lord, Lord Howarth, seeks to achieve the same result. We have always been clear that this Bill is not a new constitution. It is intended to bring in an important provision—fixed-term Parliaments—having proper regard to existing constitutional arrangements and conventions. On the whole, the purpose of the Bill is to replace existing conventional democratic controls with legal controls in the context of a fixed-term Parliament. The only foolproof way in which to prevent an Executive from manipulating the rules to engineer a premature general election would be to remove those rules entirely—in other words, to provide for rigid fixed terms. The mood of the House at Second Reading—and I have not heard anything to contradict it since—was that there was very little support for having such rigidity. The Bill therefore provides procedures that allow for an early general election where one is clearly required. All the debates that we have had in this House and the other place confirm that this is regarded as a necessity. I think that we are in the territory of assessing whether the procedures in the Bill are satisfactory, rather than whether we should have these procedures at all. The purpose of these amendments is to see whether they can be improved on.

It is the case that the Bill does not say who may table a Motion of no confidence. That concurs with current practice. As was mentioned by my noble friend Lord Norton and the noble and learned Lord, Lord Falconer, there is no restriction on who may table in the House of Commons a Motion of no confidence. As it happens, in practice, these have been tabled by opposition parties and almost always by the leader of the Official Opposition. The background note prepared by the Library in the other place sets out a history of confidence Motions. I am acutely aware that my noble friend Lord Norton of Louth has made an in-depth academic study of confidence and no-confidence Motions. Since 1895, not a single Motion has included the words “no confidence” other than in the name of the leader of the Opposition. As noble Lords are well aware, a decision by the leader of the Opposition to support or to table a no-confidence Motion automatically takes precedence over that tabled by any other party.

The question then is whether there is reason to deviate from current practice for the purposes of this legislation. I have listened carefully to what has been said about potential abuse, but I come back to the point that it would be obvious if the Government had set out to subvert the standard procedures of the other place. I take the view that it can in no way be excluded altogether but that there would almost certainly be retribution by the electorate. On the other hand, the electorate might decide that there was to be no retribution and that they fully supported the Government of the day—at the end of the day, the electorate are right.

The no-confidence procedures in the Bill as drafted would be activated only if the House of Commons had voted to the effect that it had no confidence in Her Majesty’s Government. One has to reflect that, even if a Government tried to contrive it, if they went to the country with the Opposition saying that the House of Commons had no confidence in the Government, they might have a presentational problem on their hands. For the moment, I put it no higher than that. Those who think that the safeguard is meaningless are perhaps trying to nail down a political process with legal certainty. I have, I hope, been quite up front in these debates when I have said that if the Government were absolutely determined to try to abuse the rules, as I think the Constitution Committee itself accepted, although it would be possible to abuse them, there would be consequences to that. I rather suspect that, as the idea of a fixed-term Parliament and the rules set down by a fixed-term Parliament became more and more part of what people were accustomed to, there would be consequences over time if it was thought that a particular Government were trying to bend or get around the rules. The political consequences would be more damaging.

The amendments would have certain unintended consequences. The first of these is that the proposal is out of step with the process of rebalancing that is going on in the other place between the Front-Benchers of all parties and the Back-Benchers. My noble friend Lord Norton of Louth made that point. In the past few years, there have been a series of reforms in the other place that have been designed to give Back-Bench MPs a greater voice. Part of this involved the report by the Reform of the House of Commons Committee, sometimes known as the Wright committee after its chairman Dr Tony Wright, the long-standing chairman of the Commons Public Administration Select Committee, and the establishment of the Backbench Business Committee. Amendment 30 would be counter to the general trend of these reforms by allowing the no-confidence procedures in the Bill to be triggered only by the leader of the Opposition.

The amendments would put in place a statutory provision that excluded the Back-Benchers and entrenched the dominance of those on the Front Benches. I am not sure that most Members of the other place would necessarily welcome the inclusion of such a provision when we returned the Bill to them. It is interesting that a similar amendment was tabled and debated in Committee in the other place, but I think that it is fair to say that it did not receive a warm welcome and was not even pushed to a vote. The amendments also leave open a number of unanswered questions, most notably what would happen if there had been a successful no-confidence vote in the Government but the leader of the Opposition failed to table a Motion of no confidence.

Finally, Clause 2 has been drafted in a way that is sensitive to the Commons having control of its internal procedures. Only the bare essentials of the new mechanisms have been put in place—there needs to be a two-thirds vote in favour to trigger a Dissolution vote, and the 14-day period commences on the passing of a no-confidence vote—but is it right to go further than this? Is it right to use legislation to tell the other place who is permitted to table a Motion or indeed to devise the precise words that should be used in a Motion for it to have legal effect?

As I said, I fully understand and indeed sympathise with the underlying motivation to these amendments, and I have indicated that we are willing to consider them, but there would be serious practical problems, and indeed constitutional problems, for the role of Back-Benchers. The alternative of letting the Commons develop its own practice and for the Speaker to inform the outside world whether this practice has been complied with through the Speaker’s certificate is preferable. We believe that the procedures that we have put in place to trigger early Dissolution are robust and transparent, and I ask your Lordships to reflect on the conclusions of the Constitution Committee on the trigger mechanisms for an early election. The Constitution Committee did have concerns about the definition of no-confidence Motions, which we have discussed and to which we will return, but it broadly endorsed that there should be two trigger mechanisms and that the sort of manipulation which noble Lords are concerned about would be seen as,

“an abuse of the Act’s provisions”.

--- Later in debate ---

[Lord Falconer of Thoroton]

As regards the third question—let us assume that this Bill applied and that the Opposition did not support a general election—would the Government be willing for Heath, for example, to have a general election in those circumstances? Would they be against it? Is that an abuse?

[Lord Wallace of Tankerness]

Just to be clear about what I am being asked, as I understand it the noble and learned Lord has asked me whether, in February 1974, when Mr Heath wanted an election, if the Opposition had been against it he could have contrived a situation to do it. Clearly, under these circumstances, it would have been possible to contrive. He might not have had the election on the date on which he wanted it if it had had to be 14 days after he had lost a confidence Motion. He may well have found in weighing that up whether it was the right course of action. It may have saved him from what happened in the end.

I believe that it would be possible but, again, it would be a matter of judgment. Indeed, the electorate did make a judgment at the time on a Prime Minister who chose to go before his term of office was anywhere near complete. If he had also contrived the means of doing that, the consequences for him might well have been greater. That is pure speculation. We will never know. On that basis, I ask my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I plan to be extremely brief, as I have classes to teach in Hull shortly after 9 o’clock in the morning.

I wish to raise one point arising from what the noble Lord, Lord Howarth, has said. I have considerable sympathy with the argument that he is developing that either the Speaker’s certificate goes out of the Bill completely or, if it stays in, it needs to be refined. He was teasing out the point made by the Minister that the Government would expect the Speaker to indicate in advance whether he would certify a Motion as one of confidence. So, on the basis of that expectation, I wish to raise this question. One could raise it on any serious Bill but I have used before the example of the European Communities Bill in 1972, where the Prime Minister, Edward Heath, said, “If we lose this, the Government cannot sensibly continue”. If, in a situation like that, the Speaker took a contrary view and declined to certify the Bill as one of confidence but the Prime Minister said, “This is essential to our programme and, if we are defeated, we shall resign”, what would happen?

[Lord Wallace of Tankerness]

I appreciate the concern of the noble Lord, Lord Howarth, about the lateness of the hour. I always understood that this evening’s proceedings were going to go late. We tried to accommodate that by finishing somewhat earlier last time. Nevertheless, it is an important point, as he indicated, that there will be the opportunity at a later stage with a subsequent amendment to perhaps explore this further, including the point raised by my noble friend Lord Norton of Louth.

The effect of the amendment would be to require the Speaker to issue two certificates before an early election is triggered on account of a no-confidence vote. The clause already provides for the Speaker certifying that there has been a no-confidence Motion, and a Motion of no confidence in the Government during the ensuing 14-day period. The amendment, as moved by the noble Lord, Lord Howarth, would require an additional, earlier certificate issued in advance of a debate as to whether the Motion is to be regarded as a Motion of no confidence.

This again arises out of the concern that the House of Commons may not always know whether it is voting on a Motion of no confidence. It is highly unlikely that the House of Commons, in its ordinary business, would pass a resolution which was perhaps contrary to a matter of policy and the wishes of the Government of the day, but a matter on which no one had ever actually thought that there was any great store set, and then at the end of the 14-day period the Speaker unexpectedly issues a certificate. I have heard that concern expressed but it is not a realistic scenario.

The point was made that my honourable friend Mr Mark Harper indicated that in all likelihood a future no-confidence Motion would not only take the form that it did when a Motion was last passed but also, in the event of it happening, the Speaker of the House of Commons would be able to inform Members before they vote. For example, if it was on an amendment to the Queen’s Speech, the Speaker would inform Members of the House of Commons before the vote that, in the event of the Motion being passed, the Speaker would regard it as a no-confidence Motion for the purposes of Clause 2.

That is a simple and straightforward process. The Speaker advises the House of Commons on other procedural matters before it. I understand the point that has been made and, clearly as I indicated in my introductory remarks to the previous set of amendments, we will reflect on all these points. Yet we find it difficult to accept that there should be an additional layer of complexity to the process. One wonders how much time there would be to allow such a certificate to be issued if it was a pressing debate. It would be regrettable if such a debate was somewhat held up while the Speaker was engaged in the process of considering whether a certificate should be issued and that is then done.

We share the goal behind the noble Lord’s amendment—that the Commons should be well informed before it votes on confidence matters. The idea of an ambush is unfounded but I hear what the noble Lord says with regard to trying to import that greater degree of certainty. It is an issue to which we will return, one we will certainly reflect on and one we will perhaps have a wider debate on—perhaps with more participants—in the subsequent Amendment 51. On that basis, for the moment I ask the noble Lord to withdraw his amendment. Perhaps when we come to the later debate, we will address the questions that my noble friend Lord Norton of Louth has also raised.

[Lord Howarth of Newport]

I thank both the Minister and the Committee and beg leave to withdraw my amendment.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 15th March 2011 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Howarth, and my noble friend Lord Rennard for introducing these amendments. I say in respect not just of the amendment of the noble Lord, Lord Howarth, but of a series of amendments as we go through the Bill that it is important that there will proper scrutiny. The amendments that have been tabled already indicate that although the Bill is relatively short it is important, and that most if not all its key components will be addressed. We look forward to those debates.

I think that there is a consensus across the Chamber, as I think there was on a number of occasions—although it was sometimes difficult to believe it—during the passage of the Parliamentary Voting System and Constituencies Bill, that it is important that we try to look at ways in which we can increase turnout and participation in elections. No matter which party we belong to, or even if we belong to none at all, I think that we recognise the importance of trying to increase turnout.

It is probably fair to say—no doubt those opposite will correct me if I am wrong, because they were in government and responsible for introducing them—that the greater availability of postal votes is more a response to decreasing turnouts than a contributory factor as my noble friend Lord Cormack suggested. It is also fair to raise concerns, as has been done, about the security of postal voting, but it should be recorded that measures have been introduced during the past couple of years to ensure that postal votes are properly verified. Some of the debate which has taken place in recent days and weeks about the timing of the counts for the Scottish Parliamentary and Welsh Assembly elections in May has been coloured by the fact that returning officers are now very conscious of the time that will quite properly be taken in verifying postal votes.

My noble friend Lord Rennard indicated that this issue has never been properly debated in Parliament; I hope that he feels that it has had a reasonable airing today. It is clear from the contributions that have been made that there are arguments both for and against moving the polling day from the traditional Thursday to another day and, as the amendments would foreshadow, to weekends. There has been debate, too, on the cases for and against the holding of elections on more than one day. The noble Lord, Lord Pannick, said that if one was to have polling day on a Saturday it would raise religious issues for some faiths. Equally, I can think of places, not least in my native Scotland, where if voting was only on a Sunday there would be difficulties. That led noble Lords to consider the possibility of voting over two days. The noble Lord, Lord Pannick, indicated some of the practical issues to which that would give rise. I do not think for a moment that they are insuperable, but they would certainly have to be addressed if we were to hold elections on more than one day.

A number of issues have been raised. The previous Government instigated a significant test of opinion, by way of a consultation held in 2008, on the very subject of moving elections to weekends. The consultation sought views from a range of groups on whether elections should be moved from the traditional Thursday to one or both days of the weekend and whether this would improve access and opportunity for voting. There were diverging views on this issue. While it is fair to say that there was a balance of opinion in favour among members of public who responded to the consultation, the majority of respondents did not favour a move to weekend voting.

It is not obvious from that survey, which was published in March of last year, that such a move would make it easier for electors to vote. As the noble Lord, Lord Howarth, pointed out, there is nothing in statute that says that polling day should be a Thursday. I am sufficiently old, and enough of a political anorak, to remember a lot of local elections taking place on every day of the week. I think that I am correct in recalling during one of our debates on the Parliamentary Voting System and Constituencies Bill someone on the opposition Benches saying that they were once a candidate, or an agent, in a local election that had taken place on Saturday.

[Baroness Armstrong of Hill Top]

In the Local Government Bill in 1998, we made provision for significant pilots to take place on this and on different ways of increasing participation. It may be useful to the Minister and others interested in this amendment to look at some of those. The first organisation to do this in depth was Watford Council, which led to the Liberals taking over—so I was not too popular.

[Lord Wallace of Tankerness]

The noble Baroness is encouraging me to look at these pilots. However, I seem to recall that voting took place on a number of days. In Scotland, local elections were for many years on a Tuesday. For some reason, they all seem to have coalesced round a Thursday. Picking up the point of the noble Lady, Lady Saltoun of Abernethy, I recall that in 1978 the Hamilton parliamentary by-election took place on Wednesday because Scotland’s first match in the 1978 World Cup finals was being played on the Thursday. I am not sure what it did for the noble Lord, Lord Robertson of Port Ellen, but it did not do much for the Scottish football team.

There is a consensus on the need to find ways in which we can increase the turnout, which undoubtedly ensures that those elected to the other place have a stronger democratic mandate.

The noble Lord, Lord Howarth, referred to the briefing of the Electoral Commission, which echoed what the Electoral Commission said in the consultation undertaken by the previous Government. The Electoral Commission stated that it was,

“not opposed to weekend voting in principle, but that no change should be considered without clear evidence that it would be of significant benefit to the voter”.

That view was shared by the Committee on Standards in Public Life, which in its response to that consultation said,

“The Committee is not opposed in principle to moving the day of elections from Thursday to the weekend. But we have seen no evidence that such a move would bring any clear benefits … It is not obvious that [people] would find it easier to vote at the weekend”.

One might say in the Scottish context that this is a not proven verdict, but that does not mean to say that there should not be trials. With regard to advance voting, which the noble Lord, Lord Howarth, mentioned, that was referred to in the consultation paper on The Governance of Britain published by the previous Government. It pointed out in that consultation that, as part of the previous Government’s programme for piloting innovative voting methods, 20 local authorities had piloted advanced voting in polling stations since the year 2000. Evidence from these pilots, however, indicated that the availability of advanced voting had done little to increase turnout.

There are a number of issues and I recognise that this is inevitably an issue to which your Lordships’ House will wish to return. I hope this is not honeyed in any way and I am not standing at the Dispatch Box to say that the Government are about to launch an initiative with regard to weekend voting. However, picking up the point made by my noble friend Lord Newton, I want to make clear that we are not ruling it out. I want to reassure the House that not including something in this Bill will not rule out the possibility of us returning to this issue.

I do not believe—this is an important point—that this is the appropriate legislative vehicle to make the change. In this Bill, we have tried to do only that which is strictly necessary to establish fixed-term Parliaments and, as far as possible, reflect existing practice. It has become common practice to hold the elections on the first Thursday in May. Three of the last four were held on that day, the exception being in 2001 when the need to move it was widely agreed due to the outbreak of foot and mouth.

The noble Baroness, Lady Golding, also indicated that one of the issues that had to be looked at is that, if we are moving the date of parliamentary elections to the other place, should we also look at the local elections and, for that matter, the elections to the devolved Parliaments and Assemblies.

It is not a criticism of the drafting because I think the point of these amendments was to raise an important issue, but there are a number of consequential issues which would flow in terms of any change that was to be made. In the light of that, I want to reassure my noble friend that if this Bill goes through without amendments, that will not be used at a future date as evidence of Parliament agreeing that it will be that day. That was the assurance he was looking for. It will not be thrown back at him like that. I hope that in those circumstances, the noble Lord will agree to withdraw his amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

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

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

[Lord Wallace of Tankerness]

My Lords, we have once again had a spirited and interesting debate with a number of important points made. It is also obvious that some of the issues raised went beyond the question of a referendum and into some of the detail of the different constitutional reforms that have either been debated and passed or are about to come down the track.

Perhaps I might start by taking issue with the noble Lord, Lord Grocott, on a couple of the points which he made at the outset. He said that he hoped that never again would he hear that the Prime Minister was surrendering power or determining the date of the election. While it is the case that the Prime Minister and the Government are, in this Bill, putting forward a date for an election as being the first Thursday in May 2015, and while I hope that the Bill will be passed with that in it, that in itself means that the Prime Minister has surrendered a power because it is not possible—

[Lord Pannick]

He has chosen it.

[Lord Wallace of Tankerness]

He has actually put it to Parliament for it to support. Parliament will have had to vote that through, as is quite clear because we have other amendments coming down to change that date. Unless circumstances arise that would trigger the mechanisms in Clause 2, the Prime Minister of the day will not have the opportunity to seek Dissolution when it might seem opportune other than to have the election on the date set down in the Bill. He will have surrendered that power.

[The Earl of Onslow]

The Prime Minister has said, perfectly reasonably, that he thinks his Government will go on until 15 May 2015. He has made a perfectly legitimate choice to the House of Commons, but binding his successors is a different matter altogether.

[Baroness Farrington of Ribbleton]

The Minister is very careful in his choice of words. Can he assist me? What should I say in the referendum campaign to people who ask me whether there will be the same AV system for voting for Members of the House of Lords? If it is not to be the same, what should I say to people who ask me why we should not have the same system for the House of Lords? The fundamental flaw in the Government’s policy is not the options that they choose on an individual issue, but that when they all come together they begin to look like a committee trying to design something but not knowing how many legs it has or whether it has two heads.

[Lord Wallace of Tankerness]

Far be it from me to suggest how the noble Baroness should answer questions about the merits of the AV system. I am not sure which side she is on but I should like to think that we are on the same side. I cannot answer her question because I am not a member of the committee looking at Lords reform and have not seen its proposals. I genuinely do not know the answer to the question.

I do not think that it would be appropriate to go into the merits of Lords reform in the context of this Bill, but I pick up the point made by my noble friend Lord Tyler that in all the discussions with the previous Government on the committee chaired by Mr Jack Straw, it was never anticipated that there would be a referendum. As was confirmed by the noble Lord, Lord Hunt of Kings Heath, the purpose identified was that a White Paper would propose either a wholly or a substantially elected second Chamber, which would go into the manifestos of the three main parties. Indeed, that proposal was put before the electorate in the manifestos of the three main parties. I did not find it a very convincing argument that there should now be a referendum on Lords reform or anything else just because this Government have brought forward other constitutional measures.

--- Later in debate ---

[Lord Wallace of Tankerness]

Tempting though the honeyed words of the noble Lord are—that seems to be the phrase of the night—he knows full well that it would be wrong of me to anticipate a hypothetical situation regarding that committee other than to confirm that it is proposed that there will be a Joint Committee to carry out pre-legislative scrutiny. It would be wrong for me to speculate on what that committee will propose, because that is some way down the track, or what the Government’s response would be.

My noble friend Lord Marks indicated that the previous Government brought forward legislation that fundamentally changed the relationship between the judiciary, the Executive and Parliament, and did so without a referendum. That might be thought to be a far more fundamental and far-reaching constitutional reform than the one we are considering. With the exception of the proposed referendum on the alternative vote, the Constitutional Reform and Governance Act, introduced in this House before the wash-up, had a plethora of constitutional measures, none of which, other than the AV referendum, sought to have a referendum attached to it. While I take on board the strictures of the noble Lord, Lord Pannick, on the Constitution Committee’s consideration and view on this Bill, the committee did not, as he confirmed, recommend that there should be a referendum. If one reads the Constitution Committee report from the previous Session, when I was a member, one detects a great reluctance to go down the route of referendums—or referenda, in deference to my noble friend Lord Cormack.

The items on the list read out by my noble friend Lord Marks, including the abolition of the monarchy and the secession of one of the nations from the United Kingdom, are of a different order from what is proposed in the Bill. This country is, after all, governed by a system of representative democracy in the other place. We in Parliament are basically entrusted with the power to make important decisions on behalf of the people of this country and, in the other place, by the people who are elected to make these decisions as representatives of the people. There must be an exceptional reason to ask people a direct question in a referendum, and I do not believe that the case has been made this evening for that exceptional high threshold to have been reached in respect of the Bill. I therefore urge the noble Lord to withdraw the amendment.

[Lord Grocott]

My Lords, I really am grateful for the contributions that have been made to this debate, not least because, as I said at the beginning, I felt that I needed to apologise to the Committee for mentioning the word “referendum”. It seems that there is still a fair degree of enthusiasm for talking about it now.

I will not use the term “honeyed words”, but the noble and learned Lord, Lord Wallace, always puts together a strong argument. I must say, however, he was on pretty weak ground when he tried to suggest that it was not the Prime Minister who decided that the next general election will be on 7 May 2015. No less an authority than his own dear leader said:

“We have a Prime Minister who is the first in history to relinquish the right to set the date of the general election”.—[Official Report, Commons, 13/9/10; col. 622.]

Who did set the date of 7 May 2015? If it was not the Prime Minister, who was it? That decision was quite clearly made by this Prime Minister, and the only rights he is relinquishing are those of future Prime Ministers. I suggest taking the Denis Healey advice on that one—when in a hole, stop digging. The Prime Minister made his decision, with the Deputy Prime Minister, for the understandable political reason that they are in a fragile political situation following the general election and they had best try to bank five years in the job rather than risk their term being foreshortened. I really cannot put it any more strongly than that.

The noble and learned Lord suggested—and this may or may not be true; this is, by definition, something that cannot be demonstrated conclusively—that there might have been a few more general elections than I said since the Second World War if the provisions of this Bill had been in operation. He suggested that there might have been scenarios in which a general election would have been triggered according to the provisions that deal with that. I find that argument pretty unconvincing. I am trying to imagine a scenario in the House of Commons when two-thirds of the Members—that means the whole of the governing party and a substantial number of opposition party members—were cheerfully voting together to charge to the polls. It is very difficult to imagine.

The only time when an election would have been triggered under the provisions of this Bill was in 1979, when the Government lost a vote of confidence. I will not repeat too much of what was said on Second Reading, but that seems to have been the perfect operation of our constitutional arrangements. It was beyond improvement. Why on earth we need to start defining that kind of thing in legislation is beyond me. It was a magnificent occasion although, from my perspective, it was also a magnificent defeat. It was the constitution working as it should have done, and we only diminish the constitution by these provisions. But we will come to that later.

I am encouraged by a number of the contributions to this debate that were, on balance, more in favour of acknowledging that this is a fundamental change. Having fewer general elections weakens the electorate—surely we can agree on that. The noble Lord, Lord Brooke, as ever, put forward an interesting tangential view. I agree with him that perhaps the electorate would not give the answer to the question, “How many elections do you want?”, that we might assume they would. They might decide, “We can’t be bothered with another blooming election for quite a few years now”. That is quite possible. However, I certainly think that they should have, as my noble friend said, the right to decide whether, instead of having an election every three years and 10 months on average, there should be one every five years. That, surely, is a fundamental constitutional change. I do not want to misrepresent what the noble Lord, Lord Pannick, said, but I think that he as good as said that, as did a number of other speakers.

I realise that there is a weakness in my amendment, which is what my noble friend Lady Hayter said I might say. It was a pity that she did not go to New Zealand earlier because I would have loved to have heard her views of what the people there felt about changing their electoral system from first past the post and whether it had brought undiminished joy and happiness in the way that people who argue for proportional representation suggest.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I shall make a short intervention. This has raised an important point. There is no doubt, as was said at Second Reading, that this Bill leads to the real possibility of difficulty every 20 years in the close timing of the Scottish Parliament and Welsh Assembly elections on the one hand and the Westminster Parliament elections on the other. All three elections are specified to occur in May under normal circumstances. I understand that the Government are involved in consultations with the devolved institutions on that issue. It would be useful if the noble and learned Lord could report to the Committee on the progress of those negotiations, particularly if there is any potential for amendments to be tabled at later stages.

The noble Lord, Lord Cormack, and my noble friend Lord Howarth have each put forward a different approach. They may have noticed our Amendment 52, which suggests a third approach. It states that a,

“general election shall not be held within 30 days of a general election to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly”.

Today’s debate will be helpful in allowing us to discuss this matter more fully later.

I agree with my noble friend Lord Howarth and the noble Lord, Lord Cormack, that there should be stand-alone elections in the devolved Administrations. As my noble friend pointed out, we know the problem of holding different elections on the same day with different voting systems. I should have thought that it would be foolish to repeat the problem that we have seen in the past. I hope that the Minister will be sympathetic and at the very least update us on the discussions with the devolved Administrations.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Cormack and the noble Lord, Lord Howarth, for tabling the amendments and giving me an opportunity to update the Committee further to what I said on the Second Reading. My noble friend Lord Cormack asked the Government to think carefully about this and I confirm that we have done so. As was indicated from the evidence given by my honourable friend Mr Mark Harper to the Constitution Select Committee, this is an issue that we have considered and on which we have been in consultation.

I have much sympathy for the points that have been made and the underlying purpose of the amendments in trying to separate out the dates of the 2015 United Kingdom general election and the general elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. As has been indicated, it is not solely as a result of the Bill that a conglomeration—if that is the right word—of elections could happen. Indeed, it would happen only once every 20 years but it so happens that the first time would be in 2015. The Bill has given advance warning. Clearly under the present system, towards the end of the five years for which this Parliament was elected, a decision could have been taken to have an election on 7 May 2015 and there would not have been the opportunity to have the same kind of consideration and consultation that we have had.

One reason why the Government would not favour the proposal in the amendment tabled by the noble Lord, Lord Howarth, is that all three devolved assemblies will not always hold their elections on the same day. I think that it has always happened to date that the Welsh Assembly and the Scottish Parliament have held their elections on the same day, but the Northern Ireland Assembly has not always done so. I can check but I understand that this coming May is perhaps the first time that all three have coincided on the one day. I also take the point made by the noble Lord, Lord Empey, that two months may not be a sufficient gap between the elections, if indeed the purpose of separation is to ensure that one is not overshadowed by the other. Apart from the stresses and strains that two months might put on those who would be in permanent campaign mode, it might be difficult even then to disentangle the relevant issues as to which was devolved and which was reserved to the Westminster Parliament.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I am sorry that the noble Lord, Lord Marks, is not in his place because I presume that on that basis he would argue that, since the proposal might be to extend the devolved Administrations from four years to five years, it should be determined by referendum.

[Lord Wallace of Tankerness]

My Lords, I do not think that a referendum would be appropriate in those circumstances, not least because people go to the polls on 5 May, which is about six weeks away, and we could not hold a referendum in that time. It is important that people know the term of office of those they elect on 5 May. That is why we wish to bring forward that amendment in Committee. We await the outcome from the Welsh Assembly.

Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May 2011 before taking a decision on whether special provision will be needed for Northern Ireland.

For the reasons I have outlined, and in the light of the fact that we have been working not only with the parties but with presiding officers in Scotland, Wales and Northern Ireland, I hope that the concerns that legitimately motivated these amendments have been addressed, and I invite the noble Lord to withdraw his amendment.

[Lord Cormack]

My Lords, never has a probing amendment produced more in the way of disturbing information from my noble and learned friend. Anyone who knows him likes him. He is an extremely agreeable man who was rightly very popular in the other place and is clearly popular in your Lordships' House, but if ever there was an illustration of the maxim of my late father that you should think before you do anything, it is the response that we have just heard. We are now going to have discussions in Scotland to see what the implications will be.

[Lord Wallace of Tankerness]

There are no discussions about what the date will be for what will no longer be the 2015 election. We have said that in the longer term there ought to be discussions to avoid a recurrence of the clash. We are not at the moment prepared to put the Scottish Parliament on to a permanent fixed five-year term. It is about the longer term that there will be discussions, but I make it clear that they will not be with regard to the date for the election that would otherwise have been on 7 May 2015. I hope that my noble friend will agree that that is something that should not be rushed into and that it is proper that there is consultation.

[Lord Cormack]

Yes, of course, but I respectfully say that there should have been consultation before we got into this mess. As I listened, I could not help but remember a quotation from WH Auden, writing just before the last war, who said that every great drama has two acts. In the first, the mistake is made, and in the second people discover that they have made a mistake. I could not help but think that there is a lot of that here. If only there had been consultation with the devolved institutions first. Then there could have been a proper working out of the most sensible date on which to have these various elections. However, the probing amendment has worked to some degree, and in the spirit of conciliatory unity which is so prevalent in the House today—I am delighted by that—I beg leave to withdraw the amendment.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 15th March 2011 Lords Chamber

[Lord Grocott]

We need to address the point made by the noble Lord, Lord Brooke, which as ever was entirely valid, about the extent to which we all tend to cover our party advantage with the cloak of great constitutional principle. That is obviously a criticism that we need to take seriously. The way in which to leaven that a little is to ask ourselves, whichever side of the argument we are on, whether we would take the same position of “principle” if we were on the other side of the House. I readily ask that question of myself, having spent a fair chunk of my parliamentary life in government—not as a Minister but in supporting the Government—and a fair chunk in opposition. If I find, as we all do from time to time, that I am in danger of adopting different positions in government and in opposition—which I must say I have seen to be spectacularly the case with one or two who are now in government—we ought to ask whether it was a great constitutional principle or party advantage. I try to test that myself and I have no doubt that I frequently fail, as I freely admit that I do not readily support a constitutional principle that I know would damage the Labour Party. That is where I am.

However, I ask the Government whether, if there were a Labour majority of one after the next general election, which they want to be in 2015, would they with the same passionate, principled enthusiasm say that it is essential that that Government remained in power for five years? That is the question the Government need to ask themselves. If they can say with certainty and conviction that the answer is yes, then obviously I will accept their argument and their integrity on that basis and will live with it, but I think they will find that a pretty tricky question to answer.

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

My Lords, again this amendment has stimulated an interesting debate, some of which goes into the general principles of fixed-terms Parliaments and some of which foreshadows the later debate we will have on the figure of four or five years. The amendment would omit the date of 7 May 2015 and provide instead that the next parliamentary general election should be held within a range of four to five years after the previous general election. In other words, we would be looking at an election held no earlier than 6 May 2014 and no later than 6 May 2015.

As my noble friend Lord Tyler very succinctly put it, that drives a coach and horses through the whole concept of a fixed-term Parliament because it would put back into the hands of the Prime Minister the option of choosing the date of the election which those of us who have supported the concept of fixed-term Parliaments want to move away from. I say to my noble friend Lord Cormack that it would quite easily be resolved because the Prime Minister could do so only if he had the agreement of the Deputy Prime Minister. It would be in the very circumstances where the Deputy Prime Minister and the Prime Minister fell out that the chances would be that the Prime Minister would want that option—the circumstances perhaps more graphically, from a literary perspective, expressed by the noble Lord, Lord Martin of Springburn. As my noble friend Lady Stowell said, the important point about fixed-term Parliaments is that the Government of the day have to face the electorate on a predetermined date regardless of the prevailing political circumstances.

Asquith was quoted. I have read this quote several times, and I am glad that the noble Lord, Lord Howarth, did quote him because it gave us the benefit of the intervention by my noble friend Lord Brooke. We can have a quite legitimate debate about what Mr Asquith was saying on 21 February 1911. He said that reducing the Parliament from seven years, as it previously was, to five years would,

“probably amount in practice to an actual legislative working term of four years”.—[Official Report, Commons, 21/2/1911; col. 1749.]

He did not say that the term would be four years, but that legislative working term would be four years. That reflects the comments referred to by my noble friend Lady Stowell that were made by the noble Lord, Lord Armstrong of Ilminster, at Second Reading. I readily concede that he has misgivings about the idea of fixed-term Parliaments, but he said that if we have them, he prefers five years rather than four years because:

“Even with a term of five years, that shadow extends over the last year of the term and tends to reduce to no more than four years the period during which government policy-making and parliamentary debate can effectively be pursued without too much looking over the shoulder at electoral considerations”.—[Official Report, 1/3/11; col. 971.].

His concern is that if we have a four-year fixed term, it would kick in at the end of three years. Obviously, if we are going to have even more prelegislative scrutiny in the first year, that shrinks the time available to Governments to deliver their programme.

My noble friend Lord Norton, the noble Lord, Lord Martin, and others have indicated that our recent experience of Governments who have gone for a fifth year has not necessarily always been happy. In many ways, that almost makes the point. The only reason those Governments limped on during the fifth year was that it was not propitious or opportunistic for the Prime Minister of the day to call an election after four years because he thought he was going to lose. If you have a five-year fixed term, clearly Governments can plan for those five years. It may well be that they can do more prelegislative scrutiny in the first year. There will inevitably be an election looming at the end of the fifth year, but you are more likely to get proper planning for five years and a Government not having to go for the fifth year because they do not think it opportune to go at the end of four years.

[Lord Martin of Springburn]

I am at a loss to understand why the Government do not go for four years. Another feature about a fifth year is that everyone will be in the doldrums. Members of Parliament will not stay in the Chamber. They will be campaigning in their constituencies. That will be a problem in the fifth year. I know that some noble Lords are muttering and I do not want to go on for too long because I was accused on the radio of filibustering not so long ago, which was not true. My point is that, if there is legislation in the fourth year, Members of Parliament will stay because of their duty to vote, but if there is nothing doing in that final year, they will be campaigning in their constituencies.

[Lord Wallace of Tankerness]

My Lords, with all due respect, the noble Lord makes the mistake of trying to impose on a new situation of a five-year fixed-term Parliament the problems that have arisen under the existing system. Clearly, if a Government are elected for five years, and they know that it is a fixed term and that they will not have to make a calculation at the end of three and a half years or four years on whether they should go to the country, they can plan their legislation properly for the five years. Parliament’s committees can plan their programme of work for five years in terms of bringing the Government to account. It is wrong to take the experience of an existing system, which I would argue is one of the problems of the existing system. A Government might not think that they can cut and run after four years and will limp on into the fifth year. Where there is a fixed term for five years, the Government could plan for five years, subject only to overriding circumstances, which is why we have the escape-hatch mechanisms as set out in Clause 2.

I also take the point made by the noble Lord, Lord Pannick, which I would link to my answer to the noble Lord, Lord Grocott. He says that this Parliament should see its five years through and that it was elected for five years. As perhaps was suggested by the noble Lord, Lord Martin, we would not act like some trade union baron—he said that the trade union baron would not do it and that he would be criticised if he did—and try to get more time than we were elected for. This Parliament was elected for five years, as I indicated in an earlier debate. The next election could take place as late, I think, as 11 June 2015, so there is no question of this Parliament trying to take extra time unless there were overriding circumstances, whether it be two months for, say, a foot and mouth outbreak.

We are also proposing that future Parliaments should be for five years. Clearly, no Parliament can bind a successor, which is a position that we recognise. I would say to the noble Lord, Lord Grocott, I believe in fixed-term Parliaments. Who would predict the result of the next election this far out? There is no guarantee that the Government will involve my party or the Conservative Party. It may well be a Government of the Labour Party. I am prepared to say that, yes, I believe in the fixed-term Parliament. If it was a Government of the Labour Party that was to last five years, that would be the right thing to do. Having believed in the concept of fixed-term Parliaments, I am prepared to accept that that could be a consequence. I hope that the noble Lord will take that in the good faith in which it is offered.

I cannot accept that this is a fix for this coalition Government, because we will not necessarily be the Government after 2015. Clearly, we will want to fight our case as best we can. The Conservative Party will undoubtedly want to get as many seats as it can. We as Liberal Democrats will want to get as many seats as we can. Who knows what the outcome will be? At this stage, who knows what electoral system the election might be fought on? It would be impossible to predict. The principle of supporting the fixed-term Parliament means that what is sauce for the goose must also be sauce for the gander and I readily accept that.

I believe that to adopt the amendment as proposed by the noble Lord, Lord Howarth, would completely undermine the whole principle of having a fixed-term Parliament. It would reintroduce the opportunity for the Government of the day in that final year to choose the most opportune moment to go to the country. My noble friend Lord Lawson in his book, The View from No.11: Memoirs of a Tory Radical, 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”.

Clearly, the judgments of the noble Baroness, Lady Thatcher, in 1983 and 1987 were absolutely right as far as the Conservative Party interest was concerned, but it underlines the fact that it was a question of going when it was politically opportune to do so. That is what this amendment takes away from the Prime Minister of the day and that is why I urge the noble Lord to withdraw it.

--- Later in debate ---

[Lord Wallace of Tankerness]

Is my noble friend asking whether it is impossible for a Government to devise a programme for five years? Perhaps I have misunderstood the question.

[Lord Norton of Louth]

A Government who come in will have a programme for four years with the fifth year spent preparing for the election. I am asking the Minister whether he thinks there is the empirical evidence to support that Governments come in and have a full programme to cover four sessions.

[Lord Wallace of Tankerness]

If this Bill becomes law and there is a five-year Parliament, the Government of the day can expect to be there for five years and therefore can plan their programme over a five-year period. They need not necessarily frontload the parliamentary programme. It may allow more opportunity for pre-legislative scrutiny, which is regularly being encouraged. That is a difficult issue in the first year of a Parliament when Governments clearly want to move on and do some of the things they were elected on. But if they know that there is a five-year fixed-term Parliament, there is a better opportunity to programme it.

If it was a four-year Parliament, the final-year problem described by the noble Lord, Lord Martin, would kick in in the fourth year, with people going back to their constituencies because they knew an election was looming. Therefore, the effective period of a Government’s programme would be much reduced. If you have a five-year period it will be possible for a Government to plan that programme over five years. We are talking about annual Sessions beginning in May. At the moment the final Session tends to start in late November and has to wind up in late March. I do not think any of us who saw the wash-up last March found it a particularly edifying experience. One would hope that if a Government knew that the final Session was starting in May and going through to a solution the following late March, that would allow for a much better programme in the final year and avoid the consequences of wash-up.

[Lord Cormack]

If the virtue of five years is to give more time to plan, and I accept the logic of that, why have we not had better planning in the first year of this Parliament?

[Lord Wallace of Tankerness]

My Lords, we have indicated that we will move towards a May Queen’s Speech. There is a legislative programme and I do not think the number of Bills in this first Session matches the numbers in some of the first Sessions of the previous Administration. This Bill is not yet on the statute book but if it is passed, I believe that we will see a much more orderly planned programme than I have seen since I came into this House, certainly in the final Session.

[Lord Howarth of Newport]

My Lords, this has been a better debate than it looked like being. We were not exactly playing to a packed House at the beginning but more and more noble Lords have stood up and made short speeches that have been to the point and very interesting. I am particularly grateful to the noble Lord, Lord Norton, for his support. At least, I think I had his support for the amendment. If so, that was quite something because I, like other noble Lords, hold his views on the constitution and constitutional reform in the very greatest respect. He is quite right to press the Government to provide an evidential base in support of the propositions they put to the House in their legislation. I do not think that the noble and learned Lord, Lord Wallace of Tankerness, was able to respond with the evidence that the noble Lord, Lord Norton of Louth, sought.

My observation is a little bit like his: I simply do not see it as being the reality that politicians plan systematically. They talk endlessly about strategies, but I have yet to see a politician who is capable of developing and sustaining a strategy over a year, let alone four years. It is wholly unlikely that the culture and work and behaviour patterns of either House of Parliament would be so dramatically changed as a consequence of knowing that the span of this Parliament was to be fixed for five years. Politicians improvise, and it is greatly to their credit that they do so—they need to. It is part of their responsibility to be responsive to public opinion and the shifts and tides of opinion and events; they are not good politicians if they are not. That is not to disparage or to criticise them. I would have a horror of a Government who were so tunnel-visioned and so rigid that they set themselves a five-year plan at the outset of a Parliament and determined to stick to it. It does not seem to correspond with political human nature, and it is an entirely spurious justification for introducing fixed-term Parliaments.

One has only to look at the ad-hocery that we have seen in this first year of the coalition Government, as the noble Lord, Lord Cormack, suggested. We have seen this Government attempt to get away with establishing a requirement for a 55 per cent vote to have an early general election. It was like a leak except that it was brazenly published in the interesting work of autobiography, memoir, history, political science or whatever it is by Mr David Laws, who candidly acknowledged—my noble friend Lord Hunt quoted from this interesting volume—the unembarrassed, shameless and self-interested calculation on the part of Mr Stunell for Liberal Democrats and Mr Osborne for the Conservatives. The noble Lord, Lord Brooke, supported by my noble friend Lord Grocott, reminded us that we have a responsibility when we address questions of constitutional reform not to dress up our views and even our calculations of party political interest in high-flown constitutional sentiment—I suppose the term is not to be hypocritical. My noble friend is quite right that we are all susceptible to that temptation. It may well be that, from his vantage point there in the corner, the noble Lord, Lord Brooke of Sutton Mandeville, is better able to spot when that aberration, that corruption, is occurring than many of us who are more impulsive participants. He was perfectly right. I suspect that I am simply too naive to make an effective calculation of party political interest. In a rather old-fashioned way, I think that it is our job to try to get all this right.

I dispute the suggestion of the noble Lord, Lord Tyler, and the noble and learned Lord, Lord Wallace of Tankerness, that my amendment would drive a coach and horses through the principle of a fixed-term Parliament, because it proposes a fixed term within a tolerance of one year. It is a fixed term with a sensible flexibility. It is a compromise, but there are many compromises already in the legislation. The Government have introduced what the noble and learned Lord, Lord Wallace of Tankerness, was candid enough to refer to as escape hatches. If the Government can introduce escape hatches, is it not in order or appropriate for us to amend this legislation to provide some pragmatic flexibility to enable the term of the Parliament to run between four and five years? That is a compromise between a fully fixed-term Parliament and the situation that we have at the moment where it is open to the Prime Minister, answerable to no one, to determine the date of the election. I believe that, previously, the date was for the Cabinet to determine. It was Lloyd George as Prime Minister who took it upon himself, on his own single initiative, to exercise the prerogative power, as one could term it, to call upon Her Majesty to dissolve Parliament.

What I am proposing lies somewhere between the two extremes. In reality, when you are legislating on most matters, you need to provide for a sensible degree of flexibility so that in practice people can carry things forward in a realistic way. The noble Baroness, Lady Stowell of Beeston, said that it would undermine one of the great benefits of the Bill as she sees it; the requirement of the Prime Minister and the Government to face the electors on a pre-determined date. The proposal does compromise on that, but it still means that there will be a pre-determined date in the fifth year of the Parliament. I think public opinion would find that quite acceptable.

The noble Lord, Lord Pannick, absolutely rightly said that in this Committee we are all being driven to tinker with a fundamentally misconceived policy. I agree with him; I do not support fixed-term Parliaments. But we are, as the previous Prime Minister Mr Blair used to say, where we are. The Bill has received its Second Reading. It is not for us to seek to overturn the principle of the Bill that there should be fixed-term Parliaments. It is for us to limit the damage that this legislation may cause. The noble Lord, Lord Pannick, suggested that perhaps the least bad way forward would be to legislate for this Parliament alone and to drop the idea of having fixed-term Parliaments after the expiry of this Parliament. I suggest that it would be deplorable to legislate to rescue the coalition from its political difficulties; to provide some sort of lifeline to coalition partners who do not agree with each other and do not trust each other and have asked Parliament to bail them out of that predicament. That would not be a proper way for Parliament to spend its time. On the other hand, I am tempted to agree with the noble Lord, Lord Pannick, that it is less bad to do that than to saddle our country and our constitution with fixed-term Parliaments in perpetuity or until Parliament decides that it was not a good idea after all and therefore we should undo the legislation.

The debate on this amendment is really an amuse bouche before the important debate on Amendment 11 which we will have next week. That will be the debate on whether we should amend the Bill to provide for a fixed-term Parliament of four years in clear-cut fashion and without the compromise and flexibility that I have suggested. That is the amendment in the name of my noble and learned friend Lord Falconer, my noble friend Lord Bach and the noble and learned Lord, Lord Lloyd of Berwick. That will be a major debate.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Thursday 10th March 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That it be an instruction to the Committee of the Whole House to which the Fixed-term Parliaments Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 4, The Schedule, Clause 5.

Motion agreed.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st March 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the Bill be read a second time.

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

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Fixed-term Parliaments Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of this Bill. I beg to move that the Bill be now read a second time.

The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver. The importance of these issues of political reform was reflected in the prominence given to them in the campaigning of all the major political parties at last year’s general election. There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated.

It has been my experience over many years in active politics that the overwhelming majority of people who come into politics—of all parties, and indeed in this House of the Cross Benches—do so out of motivation for public service. Nevertheless, sadly, politics has increasingly come to be perceived to have become more about protecting vested interests than about political representation of the electorate.

Let us not forget the backdrop to many previous general elections under the current arrangements when it was often widely anticipated that the election would be held at some stage during the third or fourth year of Parliament and the country was left on tenterhooks. On those occasions, the question was when the most advantageous date to call an election would be. From our own memories, I am sure we can think of Conservative or Labour Prime Ministers who made that calculation. Regrettably for my part, no Liberal Prime Minister in living memory has been in a position to make that calculation. However, the question is: advantageous to whom?

The question that the Prime Minister of the day considers then is not necessarily whether that date would be most advantageous to the country or the electorate; it is, more often than not, whether that date would be most advantageous to the incumbent party of government seeking re-election. This is an example of what people have grown tired of: a political system geared in favour of the Executive and used for partisan advantage. Fixed-term Parliaments will provide stability as it will be known from the beginning of the Parliament how long it can be expected to last. We already have fixed-terms for the devolved institutions, local government and the European Parliament.

We are not saying in the Bill that all Parliaments must last for five years no matter what happens, but there must be a significant and pressing reason for early Dissolution, and it is right that the other place, whose support is essential for the continuation of any Government, should be able decide when that should occur. This should not be a decision for the Government to take for themselves. That is why the Bill provides that Parliament should ordinarily last five years. It transfers from the Prime Minister to the House of Commons the power to bring about an early general election.

I am grateful to the noble Baroness, Lady Jay, and members of the Constitution Committee of this House for the careful scrutiny that they have given the Bill. As a former member of that committee, I know the important role that it plays and I believe that its report will aid our debates during the Bill’s passage through your Lordships’ House.

I acknowledge that most of those on the committee decided that the case had not been conclusively established for fixed-terms. However, let us not forget that this debate has been going on for some considerable time. As I noted, fixed-terms already exist for our devolved institutions, local authorities and the European Parliament. Moreover, there were commitments in the 2010 manifestos of the Labour Party and my own party, the Liberal Democrats, to establish fixed-terms for the UK.

I was pleased to note the committee’s endorsement of significant elements of the Government’s proposals, particularly the two mechanisms in Clause 2 that provide for an early general election to be held. It seems to me that the committee has said that, if the principle of fixed-terms were accepted—I have acknowledged that that is not what it said—this Bill sets out very much the way in which one would seek to achieve that principle. The Government have responded to the committee’s report in a Command Paper, copies of which are available in the Printed Paper Office.

The Bill is modest in size. It has only five clauses and one schedule, but we can be in no doubt that its effect would be significant. Clause 1 relates to polling days for parliamentary general elections. It sets out that the polling day for the next parliamentary general election will be 7 May 2015. Each subsequent parliamentary general election will be expected to occur on the first Thursday in May every five years.

As I said earlier, we of course recognise that there may be exceptional circumstances in which it would not be appropriate for Parliament to continue to run for its full fixed-term—I will come to the arrangements for those shortly. When such an early election is called, however, Clause 1(4) clarifies that Parliament will run for five years from the preceding first Thursday in May. This provision has been endorsed by the Constitution Committee and will provide that a Government elected at an early general election will have a full term, allowing them to deliver a full legislative programme.

[Lord Foulkes of Cumnock]

Is the Minister now able to answer a question that he was not able to answer at the informal meeting yesterday? Why was the month of May chosen when more general elections have taken place in October in the past? Local elections are normally in May and general elections in October.

[Lord Wallace of Tankerness]

I think the last October general election was in 1974, which was some 36 years ago. I have no doubt that the noble Lord remembers it well. However, it is difficult to say that they have generally been held in October when the last one held in October was over a third of a century ago. In more recent times, elections have been held in May. In 2001, it would have been held in May but for the outbreak of foot and mouth disease. It was held in June. This present Parliament was elected in May, and the natural course would be to go through to May 2015 if it was to have its full five years. That is why May was proposed in this Bill.

Clause 1 includes a power for the Prime Minister, by affirmative order, to vary the date of the polling day by up to two months either before or after the scheduled polling day. This power is intended to accommodate short-term crises or other conditions that might make it inappropriate to hold the election on the scheduled date: for example, a repeat of the foot and mouth crisis, which led to the postponement of the local elections in 2001. Although the general election was within the five years and nothing was needed to change the date, that is the kind of circumstance that is anticipated.

This is where your Lordships’ House will have an important role to play in the procedures set out in the Bill. Any instrument made under the Bill to vary the date of a scheduled election by up to two months will require the agreement of your Lordships’ House, thus affirming this House’s role as guardian of that particular principle of the constitution. It reflects an existing provision of the Parliament Acts: that your Lordships’ consent is required for any Bill that extends the maximum life of a Parliament beyond five years.

I am grateful to the noble Baroness, Lady Thomas, and the members of the Delegated Powers and Regulatory Reform Committee for its report on this Bill. I was glad to see that the committee felt that the delegated power taken in Clause 1 of the Bill was justified. I can assure the noble Baroness, her committee and indeed the House that we will give careful consideration to the report and its recommendations and I will respond very shortly.

There has been much debate over whether the length of Parliaments should be four years or five. It is not an exact science; it is a question of judgment. However, all arguments considered, the Government remain of the strong view that five years—the current maximum set out by the Parliament Act 1911 and more recently the norm—is the right length for a Parliament. Three of the last five Parliaments have lasted almost five years, and 44 countries out of 77 in the Inter-Parliamentary Union have five-year terms for their lower house, with only 26 having four-year terms. Indeed, there are five-year fixed parliamentary terms in Italy, South Africa, France and Luxembourg, and there is a five-year non-fixed term in Ireland and India.

My right honourable friend the Deputy Prime Minister has spoken about the need for Governments to work for the long-term advantage of the country rather than simply to pursue policies for the short term. Not only will the five-year fixed-term help facilitate better planning within government, but it can help facilitate better scrutiny of the Government by Parliament. With a fixed term, Parliament will be able to plan better their scrutiny of the Government’s legislative programme, and Select Committees will have more certainty when planning their inquiries. Indeed, this point was recognised by the Political and Constitutional Reform Committee in the other place.

Noble Lords might well argue that the recent experience of five-year Parliaments is that the Government are unpopular and have had limited ability to make use of the extra fifth year. However, I contend that that occurs in the current political framework and would not be a foretaste of what would happen under this Bill. The five-year Parliaments of recent years have been a somewhat self-selecting sample; they existed only because the Government in question did not believe they could win an election at the end of four years and were possibly waiting for something to turn up. Of course, in these circumstances, the Government tend to be tired and lacking in ideas. However, under this Bill, it will be possible for a Government to plan properly for a full five-year term.

There will be more certainty with fixed terms, and, with our proposed change to begin the Sessions of Parliament in May, the last Session would be a full one. As long as the Government retained the confidence of the other place, they would be able to deliver a full programme in their fifth Session. We would not have a situation in which the fifth Session began perhaps in the last week in November and by the last week in March we were engaged in a wash-up process. The Government can plan for the longer term, knowing that they will have time not only to introduce measures but to see them to fruition and begin to produce results.

I anticipate, too, that it might be argued that this Bill is part of some plot to reduce Parliament’s power over the Executive by extending the period between elections. However, we are not extending the potential period between elections. That remains, as it is now, five years. However, the certainty of five years means that not only the Government but Parliament can plan properly. It can plan its scrutiny programme and Select Committees can plan their inquiries. It will lead to more and better scrutiny, not less.

I turn to the interaction of the proposals in the Bill and the timetable for elections to the devolved institutions: an issue that has led to some considerable discussion and debate, not to say controversy. Under the proposals in this Bill and the respective devolution Acts, elections to the House of Commons and the devolved institutions will coincide every 20 years. Concern has been expressed about that. I ask your Lordships to recognise that this Bill has not brought about the possibility that the elections to the House of Commons and the devolved institutions coincide. It was inevitable at some point under the existing variable arrangements for Parliament that that could happen. The Bill has merely given us prior notification and an opportunity to consider the issue.

[Lord Wigley]

On the interplay and the coinciding every twentieth year, which might be at the end of the first cycle in this instance, is it not desirable that there should not be such clashing, that the elections to the Scottish Parliament and to the National Assembly for Wales should be in their own right, thereby ensuring that the electorate are aware of what they are addressing, particularly where manifestos of parties in relation to the devolved Assemblies might be different from their manifestos in relation to Parliament? Is there any mechanism whereby we can ensure that whatever the cycle—whether it is a five-year cycle as the Government propose, or a four-year cycle as many might wish—there is the same cycle for the devolved institutions to avoid any clash at all?

[Lord Wallace of Tankerness]

I readily understand the point made by the noble Lord. He is right to point out that, although it would happen once every 20 years, the first time would be in May 2015. It has been recognised that there are issues. That is why, as I shall come to explain, efforts have been made to address the issue with the devolved Scottish Parliament and the devolved National Assembly for Wales.

The Government are committed, as I have indicated, to working co-operatively with all three of the devolved Administrations. We have been consulting the respective party leaders and the Presiding Officers in the Scottish Parliament and the Welsh Assembly. I can confirm that my colleague and honourable friend Mr Mark Harper wrote to the Presiding Officers of the Scottish Parliament and the Welsh Assembly on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved to another date no earlier than the first Thursday in May 2014 and no later than the first Thursday in May 2016, the Government would then be willing to table an amendment to this Bill that would, if accepted, make this change. Copies of these letters to the respective Presiding Officers have been placed in the Library.

A resolution with the support of at least two-thirds of all MSPs or Assembly Members would be a clear indication of cross-party support for such a move and would be consistent with the existing requirement in the Scotland Act and the Government of Wales Act for a two-thirds majority in a vote for early Dissolution. In any event, we will carry out—I think this also addresses the point made by the noble Lord, Lord Wigley—a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of that, we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions there should be permanently extended to five years.

The situation in Northern Ireland is different. Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May this year before deciding whether special provision would be needed for Northern Ireland.

On Clause 2, it has been recognised that if we are to establish fixed-term Parliaments there must be a mechanism to deal with the situation in which a Government have lost the confidence of the House of Commons or where otherwise there is a consensus that there should be an early general election. Clause 2 therefore provides for the circumstances in which an early parliamentary general election can be held. There are two ways in which this can occur: through a traditional vote of no confidence in the Government, passed in the other place by a simple majority of those voting; or by a Motion, passed by a majority of two-thirds of the total number of seats in the other place, which states that there should be an early general election. As such, the Bill will provide the House of Commons with a new power to vote for Dissolution, which is not currently within its gift.

As many noble Lords will be aware, these votes have been the subject of some discussion and controversy. I wish, therefore, to explain to your Lordships exactly what the two votes are about, what they mean and why it is necessary to have two separate mechanisms for two separate circumstances where Dissolution might be required.

First, the defining principle of the Bill is that no Government should be able to dissolve Parliament for their own political advantage. That is why the threshold for passing a Dissolution Motion, as set out in Clause 2(1), that would trigger an early general election should be set at a majority of two-thirds of the number of seats in the other House. This is a majority that no post-war Government would have been able to achieve. In short, this means that we are the first Government to surrender to Parliament the power to call an early general election.

Some have questioned the rationale for giving the other place the power to vote for Dissolution. However, if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence. That is why Clause 2(1) provides the House of Commons with a new power to vote for Dissolution following a process that we believe is robust and transparent. The absence of such a power in other countries has meant that no-confidence Motions have sometimes had to be engineered to trigger an early general election in circumstances in which there is widespread consensus that there should be one.

[Lord Campbell-Savours]

Will the Minister confirm that, if the 1997 general election had been held under AV, the Labour Government majority would have been far higher—more than the threshold set in this Bill?

[Lord Wallace of Tankerness]

I am not in a position to confirm that because it is highly speculative as to whether that would have happened or not. One does not know what kind of campaign there would have been if there had been an election on AV.

Clause 2(2) recognises the traditional right of the House of Commons to pass a Motion of no confidence in the Government on a simple majority of those voting. No-confidence votes have, until now, been a matter of convention—although it has been widely accepted that a no-confidence vote in the other place would require a Prime Minister to resign or call an early election. However, there has been nothing to date to enforce this. For the first time the Bill gives legal effect to a Motion of no confidence passed by the House of Commons. Such Motions will continue to require a simple majority.

Clause 2(2) provides that, following the passing of a no-confidence Motion in the other place, there will be a period of 14 days during which the Government may seek to gain the confidence of the other place. If, during the 14-day period, a Government emerge who can command the confidence of the House of Commons, it will be free to govern for the remainder of the five-year term since the previous general election, and the country would not have a general election. However, if no such Government emerge at the conclusion of the 14-day period, Parliament will be dissolved. As the Constitution Committee concluded, a period of 14 days strikes the right balance between allowing enough time for an alternative Government to be formed while ensuring that there is no prolonged period without an effective Government. We must bear in mind that a Government who are known to have lost the confidence of the House of Commons will continue to be the Government during the campaign period.

A Motion for an early election will be confirmed by issuing a certificate by the Speaker of the House of Commons. A similar provision is set out in the Parliament Act 1911, which provides for the Speaker of the House of Commons to issue a certificate confirming that a Bill has been certified as a money Bill. In the case of a no-confidence Motion, the Speaker’s certificate will confirm that the Motion has been passed, and that the 14-day period has ended without the House of Commons passing any Motion expressing confidence in any Government. Such a certificate will mean that there is no ambiguity about whether the other House has voted for Dissolution in the requisite majority or whether a vote of no confidence in the Government should trigger Dissolution.

Clause 2 sets out that the Speaker’s certificate, in these cases, shall be conclusive for all purposes and that the Speaker must, as far as is practicable, consult the Deputy Speakers before issuing the certificate. While it has been argued that the requirement for a two-thirds majority should not be set out in statute, I was pleased to note that the Constitution Committee shares the Government’s assessment of the Bill’s interaction with parliamentary privilege. It provides the House of Commons with a new power—one that is to be transferred from the Prime Minister to the House of Commons. We believe that such a fundamental constitutional change should be laid down in statute.

However, in doing so, the Government do not believe that the provisions in this Bill will undermine the other House’s exclusive cognisance. I have made available in the Library a copy of a memorandum that the Government placed in the House of Commons Library on 13 September setting out their view that the Bill does not affect the relationship between Parliament and the courts.

[Lord Richard]

This is the point in the Bill with which I have the most difficulty. Why on earth should a Government who have lost the confidence of the House of Commons be given, in effect, a second chance to cobble together another coalition that might have the confidence of the House of the Commons? The present situation is terribly simple and very clear, and is the way in which Governments have operated almost exclusively in the past. If you lose a Motion of confidence, there has to be an election. That is simple. Why on earth can we not stick with it?

[Lord Wallace of Tankerness]

My Lords, the opportunity will be there for Parliament—to those elected to the other place—to see whether another Government can be formed. That may well be possible, but it would require the Government to have the confidence of the other place. If they have the confidence of the other place, there is no reason why they should not see out the term of the Parliament for which they were elected, subject to the provision that we are discussing. The provision places the power in the hands of Members elected to the other place and not to the Government of the day.

[Lord Richard]

My Lords—

--- Later in debate ---

[Lord Wallace of Tankerness]

We will no doubt come back to this, but I would be grateful if noble Lords would allow me to make some progress.

[Lord Richard]

My Lords, if there is a period of 14 days in which discussions are taking place, you may end up at the end of those 14 days with a Government who are not the same Government as at the start of the 14 days. You may have a different Prime Minister and different Ministers; you may have different policies—all sorts of things may happen. I come back to the central point. Why on earth should we give a Government that period of additional opportunity to try to preserve a position that the House of Commons has rejected?

[Lord Wallace of Tankerness]

My Lords, that Government will require a confidence vote of Members of the House of Commons. It is the House of Commons that will determine the matter. That is an important point. If you have a fixed term but there is a clear consensus for a dissolution, there is a provision to trigger that. But if the House of Commons wishes to place its confidence in a Government, that is a matter for the House of Commons.

[Lord Morris of Aberavon]

My Lords—

[Baroness Taylor of Bolton]

My Lords—

[Lord Wallace of Tankerness]

I am trying to make some progress, because I have been speaking for a while. I am sure that we will have plenty of opportunity to come back to this.

[Lord Morris of Aberavon]

I am grateful to the Minister. This is an intrinsically important point. In all our experiences, a vote of confidence in the House of Commons is a rare event of crucial importance. We all know what it means: we are summoned back from the end of the earth to take part in it. As has been pointed out by the noble Lord, Lord Richard, why should a Government, having lost a vote of confidence, have a second chance at all?

[Lord Wallace of Tankerness]

My Lords, the House of Commons would determine this. As the noble Lord, Lord Richard, said, the Government might then be of a different composition, but they would come from those who have been elected to the House of Commons for a term of five years. If they cannot form a Government and no Government can command the consent to a majority in the House of Commons, there would be an election. If that could not be done within 14 years—I mean, within 14 days. [Laughter.] That is probably wishful thinking on some people’s part. If that could not be done within 14 days, there would be an election.

Clause 3 makes the key necessary changes to electoral law and the law concerning the meeting of Parliament in light of fixed days for elections. It provides that Parliament dissolves automatically 17 working days before the polling day, which has been fixed for the general election under the Bill. It means that Her Majesty the Queen will no longer be able to dissolve Parliament in exercise of the prerogative. This is a safeguard against a Prime Minister deciding that he wishes to ignore the requirements of the Bill and advising Her Majesty to exercise her power to dissolve Parliament.

Clause 4 deals with certain supplementary and consequential matters. It preserves the Queen’s power to prorogue Parliament. Subsection (2) preserves the traditional way in which the sealing of a proclamation summoning a new Parliament under the great seal of the realm is authorised, which is by Order in Council rather than by warrant under the royal sign manual.

Clause 5 sets out the short title of the Bill and the schedule contains consequential amendments to a number of Acts of Parliament. I do not intend to go through them all, but included among them is the Septennial Act 1715, which, after amendment by the Parliament Act 1911, set the current five-year term for Parliament.

The Fixed-term Parliaments Bill will be seen as a stabilising measure. It will reduce opportunities for partisan game playing. In a situation where we are so often told that the Executive are trying to gather power to themselves, under the Bill they will give power to Parliament, and it is right that they do so. I look forward to the debates that we will have in your Lordships' House. The points raised by the noble and learned Lord, Lord Morris, will undoubtedly be ones to which we can return in Committee. I look forward in the course of this debate to hearing a maiden speech from my noble friend Lord Cormack, with whom I was privileged to serve for many years in the other place.

It was quite obvious from reading the record that the Bill was the subject of some lively debates in the other place, where—I should put on record—extra time was provided for consideration in Committee.

[Lord Bach]

Oh!

[Lord Wallace of Tankerness]

It is absolutely true, the Bill was given extra time at Committee—a Committee of the Whole House. I am certain we will not all see eye to eye with the noble Lords opposite, although I recall that they supported the idea of fixed-term Parliaments in their manifesto. There is therefore some broad consensus on what this Bill seeks to do.

This Bill demonstrates the commitment of this Government in bringing forward much needed political and constitutional reform. It will go a long way to restoring trust in our political institutions and I therefore commend this Bill to the House.

Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I join those who have indicated that this has been a very good debate. The House has had the benefit of the experience of many people, from academia and from the other place, who have taken part in votes of confidence—or no confidence—in times past. I certainly wish to join many of your Lordships who have expressed their congratulations to my noble friend Lord Cormack on a notable and distinguished maiden speech. He said that he had been in favour in principle in fixed-term Parliaments for some time. I think that I would describe his speech as that of a critical friend. I served in the other place with my noble friend, I think on a sub-committee of the Administration and Accommodation Committee, which he chaired. Perhaps its most significant task when I was on it was to identify those who would appear in the painting of the House of Commons in session in about 1985 or 1986. That chairmanship was just part of the contribution which my noble friend gave to the other place, not only a concern for its fabric, but a concern for, and a passionate commitment to, its workings. That is the experience that he brings to this place and we look forward to his contributions in the future.

Congratulations are also in order to the noble Lord, Lord McAvoy. Although he said that he was a former Whip, I understand that he has recently been appointed to the Whips’ Bench opposite and I congratulate him on that very rapid rise, which no doubt reflects his abilities as a Whip. That is meant to be a compliment.

We have heard a variety of views, from those who are opposed in principle to this, through to those who are very supportive of it and to those who are supportive of it, but want to see things done in different ways. There are those who have indicated that they do not wish any change whatever. The noble Lord, Lord Grocott, indicated a level of satisfaction with a constitution that he did not think needed changing. My noble and learned friend Lord Howe expressed the view that he was getting somewhat sceptical about constitutional change, but I am grateful to a number of my noble friends who indicated their support in principle. My noble friend Lady Stowell indicated that it was not necessarily a silver bullet, but nevertheless was an important contribution to try to revitalise our political system.

My noble friend Lord Dobbs had a slightly interesting, but very practical, explanation as to why he supported this, not least in terms of party finance. That may not seem the most obvious reason why one would support it, but for those of us who think back to the debates we had on the Parliamentary Voting Systems and Constituencies Bill, the point was made on more than one occasion that political parties oil the wheel of democracy and my noble friend made an important point. Certainly, under the Political Parties, Elections and Referendums Act 2000, there is a regulation of national campaign spending for 12 months before the actual date of poll. Therefore, it is probably preferable that the parties can have a fixed idea of when that is likely to be, rather than have to guess.

This is important because it lends that stability. It particularly lends stability, as my noble friend Lord Marks said, on occasions when there is a coalition Government. It allows Governments and Parliaments to plan for the long term. I take issue with those who say that it does not give the Prime Minister an advantage. Our late colleague Lord Holme of Cheltenham, who chaired the Constitution Select Committee with distinction at one point, asked as long ago as 1991, in words which my noble friend quoted, what people would think about,

“a race in which the Prime Minister is allowed to approach it with his running shoes in one hand and his starting pistol in the other”.—[Official Report, 22/ 5/1991; col. 245.]

The noble Lord, Lord Elystan-Morgan, although opposed to what is happening and sceptical about the arguments about the Prime Minister, also made the point about the Prime Minister being able to use Dissolution as a threat. It is not only about occasions when Dissolution has been sought by a Prime Minister, it is often about occasions when it was not sought, but was there nevertheless.

I disagree with those who think that this is a shift to the Executive. I believe that neutralising the threat that the Prime Minister has to hang Dissolution over his Back-Benchers may indeed strengthen Back-Benchers, rather than weaken them. The noble Lord, Lord Howarth of Newport, and my noble friend Lord Howard of Rising, took the view that the Bill does not do what I claim it does; namely, that we believe it should transfer power from the Executive to Parliament.

I noted that the noble Lord, Lord Hennessy, acknowledged that it was the Prime Minister giving up a prerogative that he has had the power to exercise for many years. I certainly agree with my noble friend Lord Howard of Rising that the objective must be to shift power from the Executive to Parliament. That is why I believe the Bill helps. This is a Bill that gives Parliament, not the Prime Minister or the Executive, the opportunity to decide when there should be an early general election. That is because of the flexibility, which I will come back to. No longer will the Executive be able to use the threat of a Dissolution against Parliament or their own Back-Benchers.

It is worth remembering that there have quite properly been references to the report of our own Constitution Select Committee. I also remind the House that the Political and Constitutional Reform Select Committee of the other place, in its report on the Bill, said:

“It is questionable whether a Prime Minister should be able to use his position in government to give him and his party an electoral advantage by choosing to hold the next general election to a schedule that best suits him. We therefore acknowledge the principle behind the Fixed-term Parliaments Bill”.

My noble friend Lord Norton asked about public demand. I am the first to say that it is not the question that comes up first at hustings. I am sure it was not the issue that lost the Labour Party the election last May. However, as the Constitution Select Committee report points out, the issue has been on the constitutional reform agenda for the past 20 years. The report refers to a report from the Institute for Public Policy Research in 1991; a commitment in the Labour Party manifesto in 1992; Private Members’ Bills, which have been referred to, in 2001 and 2008; Liberal Democrat policy documents; and the Liberal Democrat manifestos of 1992 and 1997. As my noble friend Lady Stowell indicated, an opinion poll from 2009—at the height of the expenses scandal—showed considerable public support for the idea of a fixed-term Parliament. As far back as 1998, Professor Blackburn, giving evidence to the Home Affairs Select Committee in the other place, gave an argument as to why a fixed-term Parliament should be an issue that the committee might look at. He said:

“But if I could finally select just one reform of election law which does carry popular backing and probably also substantial parliamentary support. This is our system of General Election timing which is an extremely important matter in electioneering terms and which clearly operates to the advantage of the government of the day … The trick is to avoid those times when you are unpopular so far as you can. I believe this Committee”—

that is, the Home Affairs Select Committee—

“should examine the case for fixed intervals between general elections”.

I listened to and take on board the criticisms regarding the lack of pre-legislative scrutiny. As I think I indicated when we dealt with the previous Bill, it is very difficult to have pre-legislative scrutiny of a Bill in a first Session. Noble Lords will remember that the original proposal was to have a binding resolution. That was not proceeded with. It was suggested by some of those who have contributed to the debate that it was questionable whether it would be binding. I certainly do not accept the view that was put forward by the noble Lords, Lord Armstrong and Lord Elystan-Morgan, that the simplest thing would be for the Prime Minister to make a declaration. The noble Lord, Lord Elystan-Morgan, then qualified that by saying, “unless in exceptional circumstances we could not go on to 7 May 2015”. That is the point. It would continue the possible uncertainty. One of the reasons for legislating is to make it clear that that would be the position: there will be an election on 7 May 2015, unless the trigger mechanisms come into play.

[Lord Howarth of Newport]

My Lords—

[Lord Wallace of Tankerness]

I am trying to cover quite a lot of ground. I hope that I can do justice to the many important contributions that were made during the debate.

I welcome the fact that the Constitution Committee will look at the process for constitutional reform. It occurred to me that if a Parliament could not do much in the way of legislation in its first Session—it is not just constitutional Bills that call for pre-legislative scrutiny—there would not be much time to do much business at all, particularly since a four-year fixed term of Parliament has also been advocated. There will always be that tension as regards legislation that is introduced in the first year of a Parliament. We look forward to the Constitution Committee’s report on the process that it will recommend for constitutional legislation.

I had not anticipated my noble friend Lord Dobbs asking why the election should be held in May as opposed to June or October. The simple answer is that the most recent elections have been held in May, with the exception of the 2001 election when the foot and mouth epidemic occurred. There is always a difficulty with finding other times that do not clash with traditional holiday periods. However, my noble friend has posed an important challenge and we want to reflect on it. I also note that the annual canvass to update the electoral register takes place in October in Great Britain, so that may not be an appropriate time to place yet a further burden on electoral registration officers.

The noble Baroness, Lady Gould, asked whether there could be an extension of the two months beyond the extension. The answer to that is no. My noble friend Lord Rennard asked about primary legislation in this context. I believe that it is appropriate to introduce the relevant measure by order as the latter would have to be passed by both Houses. The noble Baroness, Lady Taylor of Bolton, asked what we anticipate might happen. I have asked myself that question. I am not sure that I have an answer but I think that one could anticipate receiving a lot of criticism if one was seen to be making provision for the Government to extend their life, not to shorten it. I have no doubt that if we did not have this measure something would happen that no one could have foreseen and we would wish that we had had it. In the case of the Scottish Parliament, the Presiding Officer has the power to vary the election date by one month either way and I think that in the case of the National Assembly for Wales, the Secretary of State has the power to vary the date by a short period either way—although I cannot remember exactly by how much. The measure that we are discussing has been informed by those practices.

My noble friend Lord Norton asked why Clause 2(2)(a) refers to “a motion” whereas Clause 2(2)(b) refers to “any motion”. I think that “any motion” was chosen because it is followed by,

“expressing confidence in any Government”.

It is clearly a drafting preference. We think that “any motion” or “a motion” would have the same effect. I shall certainly contemplate that matter further, but I think that it is a drafting preference rather than having any significant constitutional importance.

The noble Lord, Lord Hennessy, referred to resetting the clock. If there has been an election and a Government have been returned with a substantial majority and a mandate, they should have the opportunity to see that through for a full term. If the clock was not reset, the electorate might find it odd if, having returned a Government with a significant majority, they were then asked some 12 months later to vote again.

I have noted the points made about parliamentary privilege, which the noble Lord, Lord Howarth, raised, as did my noble friend Lord Cormack. I am sure that we will want to look at that issue in Committee but I certainly share the analysis of the noble and learned Lord, Lord Falconer of Thoroton, that the provisions here would ensure that the courts would not interfere in what we believe is very much the space of Parliament.

The key issue is whether Parliaments should last for four or five years. As my noble friend Lord Rennard indicated, there is no absolutely right or wrong answer in that regard—it is a judgment. I indicated that the longer period allows the electorate to make its judgment—my noble friend Lord Marks commented on this—on the policies of a Government as they are seen to be working out in detail over time. I also believe that it allows a Government and Parliament longer to plan their activities. I cannot accept the argument that inevitably the situation has arisen under our present system whereby the fifth year has tended to be a bit of a lame-duck year and that that would necessarily follow if we had fixed-term Parliaments. As has been pointed out by a number of contributors, the fifth year has tended to be a lame-duck year because the Government in office did not think that they could win by cutting and running after four years. Therefore, it has been against a background where they have probably been at a disadvantage anyway.

The point was made by my noble friend Lord Maclennan of Rogart and by the noble Lord, Lord Armstrong of Ilminster, and I think indeed by the noble Lord, Lord Grocott—although I think he was arguing this point in the context of arguing against a five-year term—that the final year, even though it would not be under the same sort of handicap as perhaps 1976-77 or 2009-10, nevertheless would be under a handicap. Even under a fixed-term Parliament, there would be the looming shadow of the forthcoming election. The last year is not as effective a year as the earlier years of a Parliament. That is why I believe that it would be the same in the fourth year of a four-year fixed-term Parliament or the fifth year of a five-year fixed-term Parliament. A four-year fixed-term Parliament therefore would only really allow three years for the Government to put a substantial part of their programme through. I have no doubt whatsoever we will come back to this.

I also just want to say one point. I cannot wholly accept that under a five-year term accountability disappears in the fifth year. I think those of us who have fought elections and have been elected know only too well as the election comes up accountability is a very, very strong thing indeed. When one is about to go and face one’s constituents accountability is very effective.

Another key issue, to which I am sure we will return in later stages of the Bill, is the mechanism. I absolutely endorse what the noble Baroness, Lady Jay, said about there being a spectrum from total flexibility, which you might say we have got at the moment with an end point, a maximum turn with total flexibility and on to rigidity. I do not think that anyone was arguing in this debate for total rigidity. There is a consensus among supporters of the fixed-term Parliament over there being some degree of flexibility; if there is a political imperative or the Government completely fail there must be a mechanism for triggering an election. The noble Baroness, Lady Jay, said that the Constitution Committee broadly endorsed the two mechanisms for triggering an election set out in the Bill but I have listened to the concerns that have been raised. A number of historic examples have been given but it is always difficult to say what would have happened in the past under a future system. The noble and learned Lord, Lord Falconer of Thoroton, acknowledged this. Edward Heath in 1974 obviously wanted a dissolution. The Opposition would have agreed and they would have got the two-thirds majority for an election. Likewise, the position in 1924 was also raised by, I think, the noble and learned Lord, Lord Morris of Aberavon in an intervention on my opening speech.

In January 1924 the Conservative Government resigned after a defeat on the Queen’s Speech address but that did not trigger a general election. It actually triggered the formation of Ramsay MacDonald’s Administration. The draft Cabinet manual which was published in December last year indicates that at the moment the convention is that the Prime Minister either advises Her Majesty to dissolve Parliament or the Government resign and a new Government from the existing Chamber can be found, as indeed happened in, I think, January 1924.

[Lord Falconer of Thoroton]

Am I right in saying that the election took place at the beginning of 1924 and Baldwin’s Government failed to win on the first Queen’s Speech and that is why we moved straight from Stanley Baldwin to Ramsay MacDonald? It would have been impractical to have gone straight to an election at that point.

[Lord Wallace of Tankerness]

Indeed, and that was the point that I think the noble and learned Lord raised in his speech. What happens in the first Queen’s Speech after an election? I think unless people are prepared to have election after election after election or the potential for that there would be an opportunity for another Government to be formed. The draft Cabinet manual published for consultation in December last year indicated that too. There would either be a dissolution or another Administration would be formed. It is that dual possibility that the Bill seeks to address.

I listened carefully to those who argued that the wording as to what constitutes a vote of no confidence needs tightening up. In response to the Political and Constitutional Reform Committee in the other place, the Government indicated a willingness to listen to suggestions on how that might be done. Those suggestions were not forthcoming during the Bill’s progress through the other place. I have certainly thought hard about it and wonder whether trying to be too specific might cause more problems than if one leaves the wording as it is. I know that my noble friend Lord Norton has views on this matter which it will be interesting to hear and explore in Committee. However, one recognises an elephant when one sees it. If it waddles like a duck and quacks like a duck, it is generally a duck. There is an issue here, but the more I have thought about it, the more I have found that trying to find a solution might cause more problems than leaving it, as it is at the moment, to the Speaker’s discretion. If it is not to be the Speaker, I do not think that it would be appropriate, given what has been said, for a member of the Executive to sign. I do not believe that leaving it as it is would cause the difficulties that have been suggested.

The noble and learned Lord, Lord Falconer, talked about manipulation. The Constitution Committee indicated that the position is indeed open to abuse, stating:

“We conclude that, if the Bill is passed, it would not be possible to prevent a government using a vote of no confidence to bring about an early election. To do so would be seen by many as an abuse of the Act's provisions and would undermine the fixed-term principle”.

I accept that that is possible, but I believe that it would be identified as an abuse. It would be a matter of politics. As far as I can see, the only way in which one can stop any kind of abuse is to have a rigid scheme, which no one apparently supports. That is why I have difficulty with those who have advocated that we keep things simple and that a simple majority of one in a vote of no confidence should be enough to trigger Dissolution. That would make the position worse in terms of the potential manipulation that the noble and learned Lord suggested could happen under the Bill. It would be even more likely to happen under a Bill which allowed for a simple majority of one in a vote of no confidence. It could be much more readily arranged.

[Lord Falconer of Thoroton]

That is the position.

[Lord Wallace of Tankerness]

That is not the position, because the Bill provides for a 14-day period following a vote of no confidence in which it could be seen whether another Government could be formed. That is not the same thing as going to the Palace the morning after a vote of confidence on a majority of one. If manipulation is possible under this Bill—unless the fixed terms are rigid, it is impossible to avoid—the opportunity for manipulation under a Dissolution on a simple majority of one is even greater. However, the important point is identified by the Constitution Committee: it would be seen as an abuse. That would be a matter for political debate and political comment and the electorate are the ultimate arbiters.

[Lord Falconer of Thoroton]

I said that that was what is envisaged because the proposition with which one has to deal is that the Government of the day with a majority procure a vote of no confidence in themselves—I have in mind the Heath example, where the Opposition do not agree. If that is the position, the Government of the day will also be able to stop anything happening in the following 14 days.

[Lord Wallace of Tankerness]

My Lords, it makes it much more of a process and an abuse of that process would be seen. However, as we indicated in our response to the report of the Constitution Committee, we accept that the scenario described would be possible, but, as the committee pointed out, it would be a clear abuse of the Act’s provisions and we do not believe that that outcome would be likely. Such an abuse has been possible in the Scottish Parliament and the Welsh National Assembly—there would be a 28-day period rather than a 14-day period following a vote of no confidence—but it simply has not happened because I think that people recognise the consequences of trying to manipulate a situation to bring that about.

The noble Lord, Lord Bach, helpfully confirmed in his winding-up that the Labour Party is still committed—although not entirely with the support of everyone behind him—to the idea of fixed-term Parliaments, but he objected to the way it might be done. I have no doubt that the Labour Party gave this very careful thought and I am sure that in Committee we will see the benefit of that thought in the kind of the amendments that he tables to address this. It is identified by anyone who supports a fixed term that there has to be an element of flexibility in how you do it.

I conclude by acknowledging, as have my noble friends Lord Cormack and Lord Dobbs, and many others, including the noble Lord, Lord Bach, in his winding-up, the importance of scrutiny and the important work that we will do at the ensuing stages of this Bill. It is quite clear that there is a lot of meat for the House to get its teeth into. I look forward to engaging with that, and on that note I urge the House to support this Bill and give it a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.