Fixed-term Parliaments Bill

Earl of Onslow Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Martin of Springburn]

I have heard the Minister say on earlier amendments that if they were withdrawn, he would take them back and give serious consideration to the views that had been expressed. The amendments tabled by the noble Lord, Lord Howarth, are similar. Perhaps they can be taken back and considered seriously, considering what my noble friend Lady Boothroyd said and what I am about to say. I hope I can give some advice to this House.

This is not about Dr Jack the individual; it is about the Clerk of the House of Commons. I have experience of previous Clerks: Sir William McKay and Sir Roger Sands. They are all people of the highest calibre. I can give the House an insight into what would happen before the Clerk of the House delivered this advice. He would not just pluck these words out and put them on paper for anyone to consider; he would take soundings from constitutional experts, get someone to be devil’s advocate and put the contrary point of view, and Speaker’s Counsel would listen to the arguments. These people would give their point of view. Therefore, the words of Dr Jack would be the collective point of view of the constitutional experts we have in the House of Commons. The amendment is the property of this House, but I think it would be good idea for the Minister to take back what has been said tonight.

There is a tendency for courts to—I do not think the right word is interfere—look at matters which they would not have looked at 30 or 40 years ago. I am glad that the Court of Human Rights is there, but many Members who were disciplined in the other place said that they would like to take their case to the Court of Human Rights. Some officers of the House, while they did not encourage them or give any view, privately said that if their case went to the Court of Human Rights, with people’s civil liberties as they are at the moment, they might have won it because of the way in which our standards commissioner conducts his affairs without representation, with hearsay evidence and with people making accusations without substantiation. Although this has not been tested, some of the disciplinary measures that were taken in the other place could well have been taken to the Court of Human Rights, and who knows what would have happened?

Pressure is put on Speakers behind the scenes. I worry about the certificate. I recall a situation—forgive me, there might be some military Members in the Chamber—in which a battalion of Royal Marines was to be moved to Afghanistan in the early days of the Afghanistan problem. The Opposition tabled a Motion to put aside the business of the day to allow that matter to be debated. I felt that the Opposition had a case, and I allowed the Motion to be debated, as was the Speaker’s right. Behind the scenes, a government Whip came in—it was always a Whip who came in with the nasty news—and said, “You had no right to do that. You shouldn’t have done that”. This is the pressure that is put on Speakers. I said, “Excuse me a minute. Why shouldn’t I have done that?”. “Because those Marines weren’t going into combat”. The point I made was that if you are moving 500 highly trained members of an elite organisation into an area where they would come to no harm, they should not have been put there. They should have been back on leave in Catterick, Plymouth or wherever they were based. This was the type of abuse—complaining, if I can put it that way—that you got behind the scenes after the event. Before the event was even worse. So what is it going to be like when there is a vote of no confidence and it is down to the Speaker to decide whether a Government have to go to the country? There will be pressure from every side.

We talked about things changing with regard to the courts. Things have changed with regard to the pressure on Speakers. We have spoken about Ted Heath, his Government and how he had to go to the country. I had the honour of having Ted Heath come up as a friend to Speaker’s House to have a private chat with my wife Mary and me. I remember him telling me stories of when he was a Chief Whip. In passing, I asked him how often he came to see the Speaker, because at that time I had to see the government Chief Whip, the opposition Chief Whip and the Liberal Chief Whip on a weekly basis. He said, “I never bothered the Speaker. The Speaker was too busy to bother with the Chief Whip”. Since that time, things have changed, and terrible pressure is put on the Speaker, so I say with the best possible intentions that this is one of those amendments that get an airing in Committee and then the Minister takes the matter back and looks at it.

[The Earl of Onslow]

I was never Speaker but I am descended from three Speakers. I have never heard of a more awful choice having to be made. If the courts are allowed to interfere, that will have a catastrophic effect on the role of the Speaker. If they are not allowed to interfere, it will have a catastrophic role on the role of the Speaker. I cannot think of anything worse than that. I do not know whether to vote enthusiastically for the amendment or to vote enthusiastically against it. Whatever we do on this amendment will be nothing short of catastrophic.

[Lord Williamson of Horton]

My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and Lord Martin have fully covered the key elements about the defence of Parliament, which is a vital element underlying this amendment, in my view.

Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.

--- Later in debate ---

[Lord Falconer of Thoroton]

I completely understand what the noble Lord, Lord Martin of Springburn, is saying. My own view is that the courts would try to avoid getting involved, but the consequence of their not doing so is that the Speaker of the House of Commons—who, though I have never been a Member of the House of Commons, I understand should be above the party fray—would ultimately decide whether there would be a general election. Let us imagine the level of emotion that there might be in the House of Commons at that point. Is this not another illustration of the grave error in trying to prescribe in a Bill the working of a process that has previously worked by convention? I am very glad to see the noble and learned Lord, Lord Howe of Aberavon, in his place. He has always said that constitutional conventions may be better in certain circumstances. My view in relation to this part of the Bill is that the more we talk about it and the more we try to provide artificial certainty or precision—treating it as if it were a statute where you could see whether you have registered your home properly or whether certain ticks are in the boxes—the more it becomes a wholly inappropriate way to deal with the issue of whether Parliament should be dissolved and there should be a general election.

The more we debate it, the more the best solution feels like a provision that simply says that where there is a vote of no confidence there may be a general election. I do not think that my noble friend Lord Howarth would say that his amendment gives 100 per cent protection from the court; it certainly does not give the Speaker any protection from getting involved in the fray, which is so significant to their independence. I anticipate that my noble friend will say that he has put down the amendment simply in order to test the proposition. I would urge the noble and learned Lord to go back to the drawing board and see how he can construct a provision that is intended not to be a tick-box provision but instead to be a much broader constitutional provision. That will make it clear that the courts are not to be involved. Equally, it will not draw the Speaker into a political fray that could be fatal to their standing either in the House of Commons or, more damagingly, with the public at large. This is another indication that the Bill requires a lot more thought.

[The Earl of Onslow]

Has not the noble and learned Lord, Lord Falconer, actually made a speech suggesting that we should use some of the remaining powers left to us under the Parliament Act to sling this rotten Bill right out hook, line and sinker?

[Lord Falconer of Thoroton]

Do not tempt us.

[The Earl of Onslow]

I may be tempted to tempt.

[Lord Falconer of Thoroton]

The noble Earl is right to identify that the Bill is not covered by the Parliament Act. The more we debate it, the more it seems an appalling mess. If major surgery is not applied to it, a point may be reached where the House might think, very unusually, that it messed up the constitution to such an extent that it should contemplate not giving it a Third Reading. I am sure that a Minister such as the noble and learned Lord, Lord Wallace of Tankerness, will persuade the Government to apply major surgery to the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

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

[The Earl of Onslow]

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

[Lord Wallace of Tankerness]

I would never say that my noble friend is being stupid; I take the blame myself for perhaps not explaining this clearly. It may not necessarily be the same Government. More often than not, it will be as happened in 1924, when there was a motion of no confidence, or the Government of the day lost on the Queen's speech, and a new Government came in that carried the confidence of the House. That was a circumstance where a new Government was in place with the confidence of the House. Therefore, there are circumstances in which it could happen.