Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Howarth of Newport]

I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.

[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.

My noble friend reasonably asked about other nations. I spotted what he said about national parliaments, as opposed to the devolved Parliament and Assemblies, which have a provision that is very similar to what is set out here. I am unable to answer now but if I get information I will certainly write to him. The point was made in an earlier debate by the noble Lord, Lord Howarth, that it is sometimes difficult to translate what happens in other countries to what happens here. This is where we reach a position that answers the question of the noble and learned Lord, Lord Falconer of Thoroton, about why we have two mechanisms. He is right about why the coalition agreement mentioned 55 per cent.

[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.

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[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.

[Lord Falconer of Thoroton]

My Lords, I apologise for misleading the House in that respect, and I accept the helpful correction of the noble Lord, Lord Norton of Louth.

[Lord Norton of Louth]

I am grateful to the noble and learned Lord; I am glad he found that helpful, although my remarks were directed far more at the Government and to put the issue in comparative perspective. It is that sort of information from which the Government should have started when looking elsewhere to draw up the provisions. In terms of being unique, the noble Lord, Lord Howarth of Newport, will not be surprised to know that if his three-quarters proposal were to be implemented, it would render us unique.

However, my point is that measures of this type need to be better grounded in thorough evidence before we proceed with them. This provision needs scrutiny that deserves far more consideration than we are able to give it this evening, and we may wish to reflect on that between now and Report. For the moment, I beg leave to withdraw the amendment.

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[Lord Norton of Louth]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer of Thoroton, will speak to Amendment 40, but perhaps I might anticipate that one as well. I suspect that my noble and learned friend Lord Wallace of Tankerness will be advising the House against these amendments and I thought that at this hour of the night I might bring him some joy by saying that I shall agree with him in doing so.

I shall quickly adumbrate the problems that I foresee with the amendments. I understand what they seek to achieve, but I have concerns. I understand the motivation for limiting the Motion of no confidence to be moved by the leader of the Opposition. As we have heard, it is to limit the Government so that they do not engineer a vote of no confidence. However, it does exclude other Members of the House from the opportunity to move a vote of no confidence. The circumstances in which that is likely to happen may be exceptional but in historical terms they are not unknown. One of the most important debates that took place in wartime happened on a vote of no confidence which was not moved by the leader of the Opposition. It is unusual but I am not sure that should be excluded. I have certain concerns about the way in which that amendment is drawn. I can see the reasons for trying to prevent the Government doing that, but there are problems if it is solely confined to the leader of the Opposition.

My second problem with the amendment is the way in which it is drawn in relation to what constitutes a Motion of no confidence. It limits it to the House passing a Motion expressing no confidence in the Government. That narrows it in relation to what we presently understand to be a confidence Motion in the House of Commons and it narrows it unduly. Therefore, because of Amendment 50, to which we shall come on the next day in Committee, I would prefer to go down the route that seeks to preserve, as far as possible, our existing understanding of what constitutes a vote of confidence rather than narrowing it in the way that the amendment proposes.

I now anticipate Amendment 40, to which the noble and learned Lord, Lord Falconer, will speak. I suspect that, had my noble friend Lord Cormack been here, he might have accused the noble and learned Lord of tabling it on a mischievous basis. I am sure that the noble and learned Lord will say that it is serious. Perhaps we could compromise and say that it is serious but mischievous. The amendment states that,

“a vote of no confidence cannot be a valid mechanism to precipitate an early general election if the Speaker of the House of Commons has reason to believe that it is called with the support or collusion of the Government and issues a certificate to that effect”.

I have problems with the existing wording of the Bill in relation to the Speaker. As drafted, it could draw the Speaker into political controversy in issuing a certificate. If he can be drawn into controversy under the Bill as presently drawn, he would be drawn into it in spades under Amendment 40. We can just imagine what would happen if the Speaker said, “No, no, the House has passed a Motion of no confidence, but I think that the Government has probably colluded in it”. One can imagine the uproar that would be caused. The noble and learned Lord may be proposing his amendment to tease out that very fact; we shall hear shortly. On the face of it, as it is worded, his amendment exacerbates what I consider to be an existing problem in the Bill. Although I appreciate the reasons behind the amendments relating to the leader of the Opposition and votes of confidence, I cannot support them and will be quite happy to support my noble and learned friend in resisting them.

[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”.

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I know that the noble and learned Lord has concerns about the misuse of no-confidence Motions. As I indicated earlier, if we can find an acceptable way of trying to eliminate the potential for abuse, we are certainly open to these suggestions. I do not believe that this is one of the ways of doing it. But, ultimately, and particularly after rules on fixed-term Parliaments become part of our constitutional architecture, the idea of a Government trying to subvert the rules for their own benefit would be seen through by the electorate. As I have indicated, the Government are willing to consider proposals to amend the procedures on no-confidence Motions if we believe that they meet the criteria of providing certainty, but not doing so in a way which could lead to more unintended consequences.

[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.

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I shall say no more about these very important major issues now because it is late in the evening and we will have other opportunities. They deserve to be considered by a better attended House than we have at the moment, which is no reflection on the quality of scrutiny of those noble Lords who are conscientiously present at this late hour. I beg to move.

[Lord Falconer of Thoroton]

I completely endorse what the noble Lord, Lord Howarth, has said about the importance of this issue. It is no one’s fault, but starting this debate at 11.28 pm is a little odd. As the noble Lord, Lord Howarth, said, we shall obviously have to return to this when we debate both the amendment tabled by the noble Lord, Lord Cormack—Amendment 50—and the amendment to Amendment 50 tabled by the noble Lord, Lord Howard, to leave out subsections (3) and (4). Unless other noble Lords have remarks to make, the best thing may be to move straight to the Minister and hear his response. The important point that the noble Lord, Lord Howarth, made about Mr Mark Harper’s comments that he could envisage the Speaker certifying in advance will obviously have to be debated when we come to the amendment tabled by the noble Lord, Lord Cormack.

[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?