Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Tyler]

He may well have said that, but actually what he put on the table before the electorate in 1974, which I remember very well, was that his Government were challenging the country to say whether his Government—and the elected representative Members of the House of Commons who gave confidence to his Government—or the miners should continue to govern the country. That was the issue that he put before the country.

This is, surely, what the Bill seeks to enshrine: that we are a parliamentary democracy, not a quasi-presidential democracy. It is not clear that the noble Lord’s amendments, or any of the options before us in this group, would actually improve it. Unless we intend to complete the process from a parliamentary to a presidential form of government—which I assume my noble friend does not support—surely the change he appears to recommend would be premature. I believe in a parliamentary democracy, and I believe it is the House of Commons that gives confidence to a Government. If that were to change, we would be making a very considerable and dramatic alteration to the basis of our whole constitutional settlement.

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

[Lord Forsyth of Drumlean]

I merely seek some advice from the noble and learned Lord. He said that the Prime Minister would have the choice of either resigning or going to the country. Is the constitutional position not actually that it resides with the monarch whether to grant a Dissolution? There might be circumstances where a Prime Minister wished to go the country but there was someone else who was capable of forming a new Administration, and a Dissolution might not be granted.

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Norton of Louth for his amendments and the noble Lord, Lord Howarth of Newport, who again has made some interesting and constructive contributions. Amendments have been tabled, not least the amendments in the name of my noble friend Lord Cormack, regarding procedures in the Bill concerning motions of no confidence, what the consequences of those might be and whether they need to be more tightly or more widely specified to cover different situations. I repeat what I said at the start of some of our amendments on the second day in Committee relating to the Dissolution provisions in Clause 2. We are willing to listen to what noble Lords have to say on these matters. I particularly note the point made by the noble and learned Lord, Lord Falconer of Thoroton. I understand that the thrust of his comments at Second Reading was that the Bill would be open to abuse by a Prime Minister who might wish to contrive a situation to get a Dissolution at the time of his or her choosing and therefore defeat the purpose of a fixed-term Parliament. I would want to consider what he proposed in the light of that and whether it might make dealing with the potential for that abuse simpler; and, on the specific amendments, whether the choice of having a Dissolution or a resignation that could lead to another Government being formed, as happened in 1924, should remain solely in the hands of the Prime Minister or whether Parliament should have a role, as we would seek to provide.

[Lord Falconer of Thoroton]

The noble and learned Lord is absolutely right that I regard the position of there being a contrived vote of no confidence as quite easy under this Bill, but I do not think that there is any dispute about that. The noble and learned Lord accepted it, the committee chaired by the noble Baroness, Lady Jay, accepted it, and I have asserted it. So it appears to be agreed on all sides. I do not think that there is anything that can be done about that. Indeed, as I made clear, it would have been right for Mr Heath to have insisted on there being an election through a vote of no confidence if the Opposition had not agreed to an election in 1974 and if there had been a fixed-term Parliament. I see that as indicative of the fact that you are not taking away much power from the Prime Minister. My problem is the idea that the more rigid you make the measure, the more you allow a Prime Minister and a Government to stay in power when it is perfectly plain that the Commons wants to see the back of them and there should be a general election. I see that as the much more dangerous aspect of the Bill.

[Lord Wallace of Tankerness]

I am interested in the noble and learned Lord’s comments, and I shall reflect on this matter. The second point that I made was whether the choice between seeking a Dissolution or there being a resignation with the possibility of an alternative Government being formed should be entirely the choice of the Prime Minister alone or whether, as we seek to do, there should be a role for Parliament when no other Government can be formed and 10 days have elapsed without a confidence motion being passed by Parliament. As I understand it, however, the objective is much the same. In a situation when you have a fixed-term Parliament and it becomes obvious that there is a logjam or deadlock, there must be some means of breaking it and triggering an early election.

The same argument applies to a point made my noble friend Lord Norton of Louth. I assume that he sees Amendments 35 and 38 as being taken together as part of a package. Under one of his earlier amendments, Amendment 27, he said that if the Prime Minister’s discretion over the date of the election were removed, as would happen with a fixed-term Parliament, it should be provided,

“that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed”.—[Official Report, 21/3/11; col. 564.]

Although this is a technical problem that could be looked at, as presently constructed the proposal could mean that the Prime Minister of the day might choose neither to seek Dissolution nor to resign. I am sure that that is not the intention behind the amendment as it would create a very difficult situation. However, it could be a consequence of the amendment. I do not want to make too much of a technical point as I am sure that that is not a scenario that my noble friend seeks to advance.

At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.

Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—

[Lord Falconer of Thoroton]

My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.

[Lord Wallace of Tankerness]

My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.

I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter of judgment, but it does provide for a period for that second outcome of another Government being formed to actually happen. We have debated this issue already and we are due for another debate on an amendment tabled by the noble Lord, Lord Kennedy, on whether 14 days is right. However, the provision does allow for a period for that to happen and, if it does not happen, for us to proceed to an election.

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Moved by

[Lord Falconer of Thoroton]

41: Clause 2, page 2, line 14, at end insert—
“( ) An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election.”

[Lord Falconer of Thoroton]

My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,

“collectively introduces the mechanisms by which people can exercise greater control over politicians”,

as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.

I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.

Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House of Commons, or in the Narvik-type situation. My amendment does not provide for the Narvik-type situation, although it should. I should be interested to hear what thought the Government have given to the extent to which, if you have a defeat in the House of Commons on a confidence issue, this promotes people’s belief that they can “exercise greater control” over their politicians if a new Government are formed from within the House of Commons rather than by being selected by the people. Does that not have precisely the opposite effect to that which the Deputy Prime Minister wanted? Have the Government given thought to the circumstances in which they would prefer there to be an election rather than a new Government being formed? Are they not worried that by building in 14 days in every case they are encouraging the confidence-sapping haggle? I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

[Lord Falconer of Thoroton]

I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,

“if no Government had obtained a vote of confidence since the last general election”,

would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.

[Lord Wallace of Tankerness]

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

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[Lord Wallace of Tankerness]

My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I welcome the thoughts of the noble and learned Lord but I invite him to withdraw his amendment in the light of my comments.

[Lord Falconer of Thoroton]

Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.

With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.

Amendment 41 withdrawn.

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[Lord Marks of Henley-on-Thames]

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

[Lord Falconer of Thoroton]

My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.

It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:

“A certificate under this section is conclusive for all purposes”.

As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.

Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote of no confidence, but I have decided that it is not. Therefore, even if the vote is defeated in the House of Commons, there will be no resignation of the Prime Minister and there will be no general election”. I leave it to the House to seek the views of the two ex-Speakers as to what effect on Parliament that would have.

I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:

“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.

Mr Harper replied:

“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .

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[Lord Bach]

Parliamentary Secretary.

[Lord Falconer of Thoroton]

I make it clear that my error is in no way intended to undermine him. He is the Parliamentary Secretary responsible for political and constitutional reform. It is his view that the Government appear to take in relation to these issues. It is a matter for this House as to whether it is guided more by the views of the two ex-Speakers or by the evidence of Mr Mark Harper. Speaking entirely for myself and having heard the two ex-Speakers, I found the evidence of Mr Harper wholly unconvincing. It suggests to me that not enough thought has been given to this provision.

[Lord Martin of Springburn]

Mr Harper perhaps overlooks the fact that any Speaker always has at his or her side the Clerk of the House and takes their advice. I grant that it is advice and that, at the end of the day, it is the Speaker who has to make the decision. However, the Clerk of the House is always there. Here we have a situation where the Clerk of the House has taken the very serious step of giving written evidence that he is deeply concerned about this matter.

[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.