Fixed-term Parliaments Bill

Baroness Boothroyd Excerpts

Tuesday 29th March 2011 Lords Chamber

This issue is massively important for Parliament and it matters very much that we get it right. I beg to move.

[Baroness Boothroyd]

My Lords, I regret that I was unable to be here for the Second Reading of the Bill but I say at the outset that I endorse the criticisms of it in many of the speeches made in that remarkable debate, which showed this House at its very best.

I wish to focus my remarks on the change to the role of the Speaker of the Commons under the Government’s provisions, which has not been touched on in any great detail until the amendment that has just been moved this evening. As the provisions stand, they extend the Speaker’s authority in a way that affects much more than his position as a presiding officer. They give him the statutory power to trigger a general election in critical situations, the intensity of which the Government too lightly glosses over. It is left to the Speaker to decide what constitutes a motion of no confidence in the Government.

The legislation brushes aside the reasoned warnings by the Clerk of the Commons of the possible legal dangers of the sweeping changes that are being proposed. As it stands at the moment, it will not do. We all know that it is our duty to make this legislation fit for purpose if it is to command confidence and withstand the test of time. We all know that Parliament has suffered too many self-inflicted wounds to its reputation in recent years to accept a half-baked Bill to enable the coalition to remain in power until May 2015. Parliament is still in the convalescent stage after the trauma of the expenses scandal. We cannot afford a botched attempt to change the way that Governments can be forced from office when they lose the confidence of the House of Commons.

The evidence of the Minister for Political and Constitutional Reform to your Lordships’ Select Committee on the Constitution is an example of the Government’s wishful thinking on how the Speaker is supposed to fulfil his responsibilities in this brave new world of fixed-term Parliaments. The noble Lord, Lord Norton of Louth, to whose expertise I pay tribute, put it to the Minister, Mr Mark Harper, that the Speaker would be in some difficulty if he had to decide what was, and what was not, a vote of no confidence on the basis of his own interpretation. The Minister replied that the Speaker should make his position clear before the debate and before the vote. He said that,

“everyone would be clear about what was going to happen as a result of it”.

He went on:

“In practice, I do not think that that would be a serious problem”.

I must disabuse the Minister, Mr Harper. The Speaker’s role as the sole adjudicator of whether the Government are in danger of losing their life would quickly become a very serious political problem for him and Parliament. Whatever he decided on his own responsibility would lead to ceaseless points of order and unruly outrage in the Chamber. When contentious issues were debated, he would come under intense pressure from all sides—as I know from personal experience. The Speaker’s authority would be as much at stake as the Government’s. In such a situation, a Speaker who lost control would have to decide instantly whether to name Members who defied his ruling, risk losing the vote to enforce their suspension and, thereby, lose his own authority or suspend the House in the hope of resuming the contentious business after taking soundings from all sides.

I dealt with sporadic outbreaks of unruly behaviour and know the heat that they can generate when Government, Opposition and individuals blame each other. The noble Lord, Lord Howarth, commented that this could happen in the Commons. Misconduct in the Division Lobbies reached such a pitch in the 1992-93 Session that Ministers complained of a constitutional outrage. Without amendments, disturbances likely to arise from thrusting the Speaker into the political cockpit in the way that is proposed in the legislation would undoubtedly be at the top of the Richter scale and would not move far from the courts.

The Commons Speaker has very few formal powers other than those embedded in convention, enshrined in standing orders or specified by legislation relating to the certification of money Bills and the operation of the Parliament Act. No Speaker with the best interests of Parliament at heart would accept any extension of his authority likely to jeopardise his independence and impair his responsibilities to defend the rights and reputation of Parliament against all comers. The great Speaker Lenthall—whose portrait is out there—immortalised the golden rule against which Clause 2 should be judged:

“I have neither eye to see, nor tongue to speak here, but as the House is pleased to direct me”.

Speaking on Second Reading, the noble and learned Lord, Lord Wallace, said,

“there is a lot of meat for the House to get its teeth into”.—[Official Report, 1/3/11; col. 1048.]

We all say hear, hear to that. His acceptance of the importance of the scrutiny that we are applying to this Bill in its remaining stages is welcome. However, the noble and learned Lord doubted the need for a specific definition of a no-confidence motion on the grounds that,

“one recognises an elephant when one sees it”.—[Official Report, 1/3/11; col. 1046.]

Fortunately, we do not inhabit a zoo—although many of our critics may think otherwise. Accepting the elephantine analogy, the Speaker, if these amendments were not accepted, would have to decide whether a motion of confidence or no confidence is akin to a charging elephant that can scatter a Government or a placid animal—the sort that carries children on its back. In either case, I do not believe that it is a fit and proper question for the Speaker. Other amendments will come later this evening that underline and give this area much more strength.

To be frank, I am very sceptical about the need for legislation at all, but we must make sense of what we can and send this package back to the Commons in better shape. The Government’s response so far has been to insist on the authority of the Speaker’s certificate to validate a vote of no confidence and empower a new Government or trigger an immediate general election. Clearly, the Speaker’s certificate is seen as the trump card against any challenge or interference by the courts. The Minister, Mr Mark Harper, wrote a dismissive note about the warnings of Dr Malcolm Jack, the Clerk of the Commons, about the possibility of such a challenge in the courts. The Minister wrote:

“The Government sees no reason why the courts would not continue to defer to”,

the normal rules and principles that protect internal parliamentary proceedings from the scrutiny of the courts. I beg to differ. The Minister referred to the Speaker’s certificate as a further defensive weapon against interference by the courts. His note quotes from Article 9 of the Bill of Rights and added:

“This position is reinforced by the role which the Bill gives to the Speaker in certifying whether certain events have occurred. In other words, these are matters to be decided by the presiding officer of the House of Commons and not the courts”.

I know feelings run extremely high in Parliament when contentious issues are debated. Normally rational people do uncharacteristic things. Imagine what would happen if some judges seized on accusations of obstruction in the Division Lobbies and other improper behaviour that could be said to have prevented a fair and orderly vote on an issue of no confidence in a Government. This was mentioned earlier by the mover of this amendment, the noble Lord, Lord Howarth. It seems that the judiciary is stronger and Parliament somewhat weaker than it was when I entered the Commons 37 years ago.

Contrary to the Government’s claim, the European court is not indifferent to the way Britain runs its constitutional affairs. As Speaker in 1999, I ruled that Sinn Fein could not take their seats without taking the oath of allegiance. Sinn Fein claimed that I had infringed their rights under the European Convention on Human Rights and took my ruling to the European Court. Sinn Fein lost the case, but its appeal was not dismissed out of hand as being none of the court’s business, which the Government would have us believe is the automatic response. The court’s seven judges published a lengthy judgment that stated that the protection of effective democracy,

“must equally extend to the protection of the constitutional principles which underpin a democracy”.

The court’s judgment in my favour aroused little interest. I have been in public life long enough to know that a British win is a non-story; the British media will not report it. However, this demonstrated beyond any doubt the court’s willingness to examine the case. This is the most important point I need to make. The Minister, Mr Harper, would have us believe that this could not happen, but he is wrong.