Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I welcome the noble and learned Lord, Lord Wallace of Tankerness, as the lead Minister on this important constitutional Bill. The noble and learned Lord gained your Lordships’ trust and respect—in the end almost alone—in his handling of the Parliamentary Voting System and Constituencies Bill. I very much look forward to the maiden speech of the noble Lord, Lord Cormack, who I am sure will be an important contributor to the proceedings of this House in years to come. I genuinely congratulate the Lords Select Committee on the Constitution, chaired by my noble friend Lady Jay of Paddington, which has produced a penetrating and extremely helpful report on the Bill that has helped to resolve a number of issues which would not have otherwise been resolved.

The Conservative and Liberal Democrat parties have agreed that they wish to govern together until 15 May 2015. That is an agreement which, in practice and under our existing constitutional framework, is open to them to make. In the context of the healthy majority they enjoy in the Commons, it requires only one thing—that they abide by the promises that they have made to each other. It requires nothing more. In particular, it does not require a binding resolution of the other place and it does not require this Bill. There is very much to be said for fixed-term Parliaments; and there is very little to be said for this Bill, which dresses up as a piece of high-minded constitutional reform the chronic mistrust which the two parties in the coalition have—in my view correctly—for each other.

The legislation, practically everybody except them agrees, damages the constitution merely to give effect to an agreement that does not require the Bill. Our aim in your Lordships’ House should be to demonstrate the damage done by this Bill, to try to improve it as much as possible by amendment, and then to consider the overall effect of the amended Bill in the context of a Bill not caught by the Parliament Act 1911. The noble and learned Lord was right when he said that we are the guardians of the sanctity of the term of Parliament.

As regards the damage done by this Bill, first, it gets the period of the fixed term wrong; it should be four years, not five. The consequence of this is that the voters will find themselves even less able to hold their Executive and legislators to account. Secondly, this Bill probably allows the Prime Minister, as long as he retains a majority in the House of Commons, to have a general election whenever he wants by relying on one or other of the exceptions to the fixed-term provisions. It constitutes very little, if any, inhibition on the executive power of the Prime Minister. Thirdly, the drafting of the Bill is such that it might well prevent there being a general election when a Government genuinely lose the confidence of the House of Commons, either because the lack of confidence is not demonstrated by something which is described as a “motion of no confidence”, or because of the 14-day provision referred to in interventions on the noble and learned Lord, Lord Wallace of Tankerness.

The damage done by this Bill will be less accountable Parliaments, because they will last longer, a Prime Minister unchecked in his ability to have an election whenever he wants and a legislature with a more limited ability to evict a Government who have lost the confidence of the Commons.

This important constitutional Bill has—inevitably with this Government, I say with a heavy heart—not been the subject of a Green or a White Paper, of public consultation or of pre-legislative scrutiny. Its roots are in the coalition agreement. The terms of that agreement provided for the introduction of a binding resolution in the Commons to hold the next general election on 15 May 2015 and, after the passage of that resolution, to introduce a fixed-term Parliaments Bill with a provision which would allow there to be a general election if 55 per cent of MPs voted for such an election —the picture being: lock people in with a binding resolution, then lock them in further with the Bill.

On 25 May 2010 in the other place, its Deputy Leader said:

“Unlike what happened under the previous Administration [the Bill] will not be guillotined”.—[Official Report, Commons, 25/5/10; col. 146.]

He also said:

“There is a strong case for pre-legislative scrutiny, but I do not want to extend the consideration of this legislation into the following Session, because that would not be appropriate”.—[Official Report, Commons, 25/5/10; col. 152.]

No binding resolution was ever put to the Commons; the 55 per cent was changed to two-thirds without consultation—unsurprisingly, when one learns that the coalition has 56 per cent of the MPs; a guillotine was applied on the second Committee day in the Commons; and, despite the fact that the parliamentary Session was extended until May 2012, after the Deputy Leader of the Commons had indicated that he was in favour of pre-legislative scrutiny as long as it did not extend the consideration of the Bill into the next Session, there has been no pre-legislative scrutiny.

The unanimous view of your Lordships’ Select Committee, in its report on the Bill, is that the Bill’s origins and content,

“owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

The short-term considerations driving this Bill are obvious; namely, to cement this particular Government into power for five years by making the holding of a general election earlier than five years as difficult as possible. To suggest that the purpose of the Bill is to introduce constitutional change beneficial to the nation is not credible when its provisions are examined for their effect and the evidence of what is generally perceived to be the right changes to introduce on fixed-term Parliaments. Perhaps I might make those assertions good.

First, on four years not five, the aim and likely effect of the legislation is to change our system from one where the maximum term of a Government has been five years, although the normal length has been much closer to four years, to one where the norm is five years with exceptions. That change will be damaging to our constitutional arrangements. By extending the period between elections by around one year, it will distance the people from the politicians. It will make the politicians less accountable to the public and intensify the feelings of alienation between those who govern and those they govern. Herbert Asquith, the then Prime Minister, when introducing the current arrangements with the five-year maximum, as opposed to the seven-year maximum, accurately predicted that they would produce an actual legislative working term, in practice, of four years. When he was introducing these provisions, he said that four years,

“will secure that your House of Commons for the time being, is always either fresh from the polls which gave it authority, or—and this is an equally effective check upon acting in defiance of the popular will—it is looking forward to the polls at which it will have to render an account of its stewardship”.—[Official Report, Commons, 21/2/1911; col. 1749.]

That was in the context of Asquith saying that four years would be the norm.

Until the coalition agreement, no party and, as far as I can find, precious few academics were urging that the fixed term—that is, the norm—should be five years. The Conservatives, far from supporting a fixed term, argued through their leader in the general election campaign that there should be a mandatory requirement for a general election within six months of any change of PM. The Liberal Democrats’ position was that indeed there should be a fixed term. They did not say how long in their manifesto. Until the coalition agreement, they had always previously said that it should be four years. In 2007, their conference adopted a paper which said:

“Liberal Democrats have long argued that parliaments should last for a fixed term of four years”.

Since 1994, three Private Members’ Bills have been introduced in the Commons for fixed terms by three admired, independent-minded Members of Parliament: the noble Lord, Lord Rooker, who I am happy to see in his place today, Mr Tony Wright and Mr David Howarth. Each one of those Private Members’ Bills specified four years. The Plant Commission—I am happy to see my noble friend Lord Plant in his place—which reported in 1993, said four years. All three of the devolved Assemblies or Parliaments in the United Kingdom set up in the past 13 years adopted four years. The academic position has been summed up by Professor Blackburn, Professor of Constitutional Law at the University of London, as follows:

“In the UK, there can be little doubt that the period between general elections should be four years. The proposal for fixed-term Parliament as a whole should fit as closely as possible into existing constitutional expectations, and the idea that four years is about the right length of time between elections is very prevalent”.

There have been four five-year Governments since the Second World War. I include anything over four years and eight months. Those fifth years of five-year Governments, 1963-64, 1991-92, 1996-97, 2009-10, have tended to be demoralised years; very different from the fourth years of the Governments where the expectation is an election at the end of the fourth year; 1950-51, 1954-55, 1958-59, 1982-83, 2006-07, 2000-01, 2004-05. That is partly because the country may be waiting for change in those fifth years, but significantly because the democratic mandate is so obviously exhausted in those fifth years and legitimacy for the Government lacking.

This issue is of central importance to this Bill. It is the big change that this Bill will bring. There will be more fifth years; more paralysis waiting for change. Most of the evidence that dispassionate observers have brought to this issue supports the view that making five the norm—lengthening the period of our Parliaments —will damage our constitutional arrangements.

Perhaps I may give just two examples. Professor Dawn Oliver, Emeritus Professor of Constitutional Law at UCL, thought that the cumulative effect of successive five-year terms would be to produce a democratic deficit. Democratic Audit expressed alarm that a five-year term would present,

“a reversal of a long struggle for more accountable government”.

The justification given for five years by Mr Clegg is that it is a length of time with which people are familiar and which will reduce the politicking because the politicking starts, he alleges, at the beginning of the fourth year. In fact, as a nation we are more familiar with a term of around four years, and in a shorter cycle, with four years fixed, the electioneering tends to be shorter and the period of paralysis shorter. My noble friend Lady Jay’s committee stated:

“Of all the issues arising from the Fixed-term Parliaments Bill, the proposal for a five year fixed term has created the most unease”.

Your Lordships’ House has the power to stop the five years and we should certainly use it.

However, there is much wrong with this Bill apart from its cynical adoption of a five-year term. It is hardly a fixed-term parliaments Bill at all. It specifies two circumstances, other than the expiry of five years, in which a general election must take place: where two-thirds or more of Members of Parliament vote for one or where the Commons passes a vote of no confidence and another Government do not obtain the confidence of the House of Commons within 14 days of the passage of a vote of no confidence. With those two exceptions, it is likely that any Prime Minister who wants an early election can get one whenever he wants. Would, I ask rhetorically, the main opposition party have objected if either Gordon Brown in 2007 or John Major in 1990 had said that they wished to go to the country in the aftermath of their selection as PM by their parties in those years? I doubt it, so the two-thirds exception could have been relied on. Would the main opposition parties have objected in January or February 1974, when Mr Heath went to the country early, or in October 1974, when the Wilson Government did, assuming that this Bill had been law? I doubt it.

However, let us suppose that in January or February 1974 the main opposition party had objected to Mr Heath going to the country. Under the wording of this Bill, I can see no objection to Mr Heath having proposed a vote of no confidence in the Government, not on the basis that he did not believe that they were the right Government but on the basis that, without a democratic endorsement of the Government’s position, it was wrong for the Government to continue, as I conceive Mr Heath’s view to have been at the time. The way to have achieved that under this Bill would have been to propose a vote of no confidence in the Government as long as there was no election. Alternatively, let us take October 1974, when a minority Government needed to do things to put the economy straight. Again, would there have been any difficulty in proposing that it was necessary at that stage to have an early election? I conceive not. Or let us suppose that in 2000 or 2005 the Labour Government of Mr Tony Blair had said, “We think the right course now is to allow for driven public service reform, which can be achieved only by a new mandate from the country”. On the basis of the Bill, would it have been improper in those circumstances to seek a vote of no confidence with a view to having a general election? I do not think that there would have been any problem.

In each case, the question to be asked under the Bill is: does the Motion which has been passed satisfy the Clause 2(2) test; namely, on a specified day did the House pass a Motion of no confidence in Her Majesty’s Government? Under the terms of the Bill, the question of whether it did or did not would fall to the Speaker to decide after consulting the Deputy Speakers. Any conclusion that the Speaker reaches is described in Clause 2(3) as being “conclusive for all purposes”. In my view, his conclusion would not be challengeable in the courts, although I am aware that the Clerk of the House of Commons, Mr Malcolm Jack, for whom I have the greatest respect, has expressed anxiety that the courts might consider that they had jurisdiction to consider on judicial review whether the Speaker had come to the correct view. I have very little doubt that the courts, having regard to the subject matter of the Bill, to the fact that the decision was to be made by the Speaker and that there was a conclusiveness clause, would consider that this matter had nothing whatever to do with them, and they would conclude that parliamentary privilege preventing any interference by the court meant that they could make no orders. Therefore, I agree with the Government in that respect.

Therefore, it would be for the Speaker to decide, and I do not see anything in the Bill which either allows or requires him to inquire into why the no confidence vote was passed. If it was passed, that is sufficient. The Bill says “passed”, not “lost by the Government”. It must be envisaged by the Bill that the Motion that leads to no confidence is not necessarily one that is proposed by the Opposition. Let us take, for example, the Queen’s Speech being defeated by the House of Commons or the Finance Bill being defeated at Third Reading. Would there be any doubt that those constitute votes of no confidence in the Government? Both would be votes proposed by the Government, not by the Opposition.

In practice, on the wording of the Bill, the Prime Minister, as long as he retains a majority in the House of Commons, can satisfy the first part of the vote of no confidence requirement. Inevitably, in those circumstances he could also satisfy the second—preventing any new Government emerging in the 14-day period after the vote of no confidence has passed. If that analysis is correct, which I believe it is, this Bill in effect provides no real inhibition on a Prime Minister with a majority from having an election whenever he wants. The vast majority of witnesses who gave evidence on this point before the Lords Constitution Select Committee said that it would be open on the current terms of the Bill for a Government to manipulate the position to have a vote of confidence and then lose it in order to have a general election. I am sure that that is right, although for the reasons I outlined I do not think that any real manipulation would be needed.

Mr Clegg gave evidence to the Lords Select Committee that he could not exclude the theoretical possibility but he went on:

“Can you exclude it in practical political terms?”

He answered his own question by saying:

“I think you pretty well nigh can”.

He went on to say that,

“if a Government sought to do that it would be so transparent and so evidently grubby and self-serving that it would not do that Government any good at all. The final court of opinion, of course, is what the electorate would do, and I think they would be very unforgiving”.

I do not think that the electorate would think that. If Mr Heath in 1974 had said, “Assume this Bill was passed so I am not entitled to an early Dissolution but I will do it by getting a vote of no confidence”, that does not feel grubby at all to me. Equally, if John Major or Gordon Brown—in 1990 or 2007—had said that they should be endorsed by the public, I do not think that people would remotely regard that as grubby. In any event, it does not appear right. Canada introduced a Fixed-term Parliaments Act in 2006 which specified, as this Bill does, that the election should take place every five years on a specific day. The Canadian Prime Minister, Mr Harper, said in support of fixed terms at the time he was introducing the Bill:

“Fixed dates stop leaders from trying to manipulate the calendar. They level the playing field for all parties”.

That was said by Stephen Harper on 26 May 2006.

Like our Bill, his Bill had a safety valve in the sense that it did not affect the powers of the Governor-General to dissolve Parliament at the Governor-General’s discretion. Two years after the Canadian Parliament introduced that Act, the Prime Minister, Mr Stephen Harper, who swore blind that he was giving up his power to call the date of the general election, ignored the Act and asked the Governor-General for a general election, which was duly granted, correctly in my view because the Governor-General was obliged to accept the advice of her Prime Minister. I am not sure whether Mr Harper got a majority but he did better in that general election than in the previous one.

On that material, the Lords Select Committee chaired by my noble friend Lady Jay concluded:

“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”.

The last part of the Select Committee’s view might be right—namely, that it would be seen by many as an abuse of the Act’s provisions—but I would not advise your Lordships to invest trust in this Government sticking to anything they have said about how they will treat Parliament. I draw the attention of noble Lords to the series of broken detailed assurances given to Parliament in relation to the Bill. If the two members of the coalition do not trust each other, without a binding resolution and this Bill, to stick to their commitment to govern until 15 May, why should this Parliament? The crucial point is that the Bill deprives the Prime Minister of the right to call a general election on the date of his choice only where he loses his majority in Parliament. Only then does he lose control over whether a no confidence vote passes, but then, of course, he would be vulnerable to being thrown out in any event by a no confidence vote.

Ironically, moving from the ease with which the Prime Minister who does want a general election can circumvent the fixed term where he thinks he can win an election, the Bill, at the same time, appears to provide a legal basis to prevent there being an election when the Government have, in reality, lost the confidence of the Commons in the traditional sense. The Bill allows for an early Dissolution only where there is a vote for one for which two-thirds of MPs have voted or where the House,

“passes a Motion of no confidence”.

What happens when the Government lose a vote on the passage of the Queen’s Speech or the Finance Bill? Does there have to be a subsequent Motion of no confidence in order for the Speaker to be satisfied that there has been a Motion of no confidence? If there does—which it would be in the interests of a governing party that wishes to stay in power to say that there would need to be—then the party’s MPs would, having, perhaps, rebelled in some numbers on the Queen’s Speech or the Finance Bill, rally to the party on the vote of no confidence, and the Government, unlike today, would get a second shot.

There have, since 1895, been four successful votes of no confidence in the Commons. In 1895 the vote of no confidence took the form of docking a proportion of the Secretary of War’s salary. In 1924 it took the form of an amendment to the terms of the resolution on the Queen’s Speech. There was another one in 1924, which took the form of an amendment to a vote of censure of the then Labour Government. A fourth one was the only one that was in the form of a vote of no confidence. I can see nothing wrong with the leader of the governing party, the Prime Minister of the day, saying, “This is not a vote of confidence, whatever it may be”, thereby, in effect, tying the hands of the Speaker and requiring the Motion of no confidence to be brought forward.

It is critical to tighten up the definition of the phrase,

“passes a vote of no confidence”,

to cover a number of situations over and above those that I have already raised. These situations include those cases where the Government lose a vote of confidence, as opposed to one of no confidence, and those cases where there would be no doubt that the vote was one in which confidence in the Government was at issue, albeit not expressly a Motion of no confidence—for example, the Queen’s Speech, the Finance Bill or an issue where the Prime Minister had expressly designated the vote as one of confidence.

The Bill should also deal with the position where the Government have never obtained the confidence of the House of Commons; for example, where, after a general election, in a minority government situation, the Government lose the vote on the Queen’s Speech. Is the position then that there needs to be a new Government? Do the new Government have to be found from the House of Commons then and there, or do they get only 14 days? Is that what is really envisaged by the Bill? Putting aside the situation where you have no Government after a general election who have obtained the confidence of the House of Commons after it has met, should there really be a norm that the House of Commons has 14 days to try to find a new Government? Should we not stick to the current norm, which is that, where there is a vote of no confidence, there should be a general election?

All of these issues are important, as is Prorogation and the extent to which it may be used to circumvent losing a vote of confidence, as it was recently in Canada. There are also issues about the timing of Westminster elections clashing with the Welsh Assembly and Scottish Parliament elections, which we will wish to probe when the Government’s consultation with those two bodies is reported to us. If the report comes too late, we may have to proceed without it.

What do we have in this Bill? We have a Bill that gets the wrong number of years; provides no real inhibition to the Prime Minister of the day having a general election whenever he wants one; and restricts, by making hard, the circumstances in which a Government who have lost the confidence of the Commons can be removed. The Bill is an utter disaster. It has been put in simply to provide glue to hold the coalition together because its parties do not trust each other. I respectfully suggest that the Government think of ways to find that glue other than by messing up the British constitution. We will do our best in this House to amend the Bill to make it work and to make it do as little damage as possible to our constitution. It is a Bill to which the Parliament Act does not apply and, as the noble and learned Lord said, we are the guardians of the right length of parliamentary terms.