Fixed-term Parliaments Bill

Lord Falconer of Thoroton Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I tabled an amendment in exactly the same terms as the noble Lord, Lord Norton of Louth. As he is your Lordships’ leading constitutional expert, I felt very good that I had arrived at the same idea, and I am extremely happy to appear on the Marshalled List as having signed up to his amendment.

The provision is so vaguely drafted as to be almost entirely without meaning. I know that it is borrowed from the Parliament Act 1911 but that does not mean that it is an appropriate precedent, particularly, as the noble Lord, Lord Norton of Louth, has just pointed out. In that Act, there is a clear definition of a money Bill, but there is no clear definition of a no confidence motion in this measure. The Clerk of the House of Commons, in giving evidence to the Select Committee in the other place, was of the opinion that the question of whether consultation was practicable would become a legal question. It would be open to legal challenge in so far as anything in the Bill is liable to be open to legal challenge. We had a full discussion of that in an earlier debate.

One observes that judicial reviews have been upheld again and again against the Government on the grounds that Governments had failed to consult properly. If it is a question of whether the Speaker may or may not have consulted properly according to the requirements in the Bill, I suppose that that, if anything, might give an opening to judicial intervention, although I am not seriously afraid that that is the case. The real concern about this provision is that it is almost meaningless. What does “so far as practicable” mean? What would be proper consultation in these circumstances? The requirement to consult does not oblige the Speaker to agree with the Deputies. The Deputies themselves might disagree. In fact, one might surmise that they are rather likely to disagree in the circumstance of a no confidence vote that will occur in the most fraught and complex political circumstances. There will be enormous pressure not only on the Speaker of the House but also on the Deputy Speakers if they are to be involved formally in this process. The Deputy Speakers have disclaimed their party allegiance in their new capacities but, none the less, it is only realistic to anticipate that they would come under immense political pressure from members of their own political parties. They would need to be very sturdy to ignore all that. In the previous debate, the noble Lord, Lord Martin of Springburn, and the noble Baroness, Lady Boothroyd, described how they would imagine the atmosphere to be in the House on the occasion of a no confidence vote. They gave us to understand something of the sort of pressures that would be brought to bear not only on the Speaker but, if this provision remains in the Bill, on the Deputy Speakers, too.

In the end, the Speaker will be on his own. It seems that this provision gives him no useful cover or protection against the political storm. A very sensible conclusion of the Constitution Committee, contained in its report at paragraph 159, was that, whether or not this turns out to be a legal question, an obligation on the Speaker to consult with the Deputy Speakers should be a matter of internal House of Commons procedure, should not be contained within the statutory provisions of the Bill and therefore should be omitted. Rather regrettably, the Government rejected this advice in their response to the report of the Constitution Committee at paragraph 60. The Government are quite keen to pray the Constitution Committee’s recommendations in aid when they agree with them. They have not done so on this occasion, however. They cite the precedent of the Parliament Act 1911, which, they say, has worked well. As we suggest, it is not a terribly useful precedent; certifying a money Bill is a matter of ascertaining fact and hardly contentious. Certifying a vote of no confidence would be a very different thing.

I hope that the Minister will agree to look again at this sensible recommendation of the Constitution Committee and that he will agree to the amendment proposed by the noble Lord, Lord Norton of Louth, and myself.

[Lord Falconer of Thoroton]

On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.

It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.

I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.

Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.

It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, my noble friend Lord Norton of Louth was quite correct, as other speakers in this debate have indicated, to draw attention to the provision in the Parliament Act 1911, which indicates:

“Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection”.

My noble friend inquired whether that was simply because of precedent and suggested that there are differences between the definition of a money Bill and what is required of the Speaker in the context of this clause. I accept that this arises from there being a precedent for such a requirement and acknowledge that there is a difference between determining what is a money Bill and the nature of the certification that would be required of the Speaker in the context of this Bill. What they have in common is that they are matters which have important constitutional consequences. That is why we thought it appropriate, given that there is a precedent for the Speaker to consult two very senior members—in the case of the Parliament Act, two members of the Chairman’s Panel and in this case Deputy Speakers—that we should follow that precedent.

When I was listening to the noble and learned Lord, Lord Falconer of Thoroton, I was thinking that if we had not included this we would probably have been accused of not having thought this through. In the Parliament Act, there is provision for consultation with the Deputy Speaker and we would have been asked why we had not included a provision to consult the Deputy Speakers.

[Lord Falconer of Thoroton]

I feel that the noble and learned Lord is getting a bit paranoid. No, I would not have said that.

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

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[Lord Forsyth of Drumlean]

I was rather puzzled by the amendment, for the same reason the noble Lord, Lord Grocott, indicated: that this has never been an issue in the past. I have been thinking about what is driving this stuff. It appears to be the notion that the Prime Minister has some enormous advantage in being able to choose the date of the election and, if this amendment were agreed, its timing. For those Prime Ministers whom I have known and who have had to decide these things, it is an agonising decision. Have too long a campaign and you might lose because the public get bored; have too short a campaign and you might not get across your arguments or there may be an event which you are unable to control and which will affect voters’ views—for example, some trade figures. That there is some great advantage in the Prime Minister deciding the date seems to be what is driving this stuff. It is fundamentally misguided and takes away the flexibility which you need in the system to apply common sense.

Perhaps I may make one slightly partisan point. The Parliamentary Voting System and Constituencies Bill recently passed through this House. The Government moved heaven and earth to make sure that that Bill went through the House so that the referendum could take place on the same day as the Scottish and local government elections, thereby ensuring the turnout. Perhaps I may say to my noble friends in the Liberal Democrat party that it is inconsistent for them to argue, on the one issue, that the Executive’s power and patronage can be used to try to achieve a particular result, and then, on another issue such as this, to say, “Well, we can’t possibly have the Prime Minister deciding the timing of a general election campaign”. It is a power which Prime Ministers have sometimes tried to use to advantage in the past and it has turned out to be something of a curse.

The fundamental thinking behind the amendment, that there is some great defect in our system because of prime ministerial ability to choose the date and timing of a general election, is misguided. I agree with the noble Lord, Lord Grocott, that we end up trying to create a box-ticking culture for the conduct of our public affairs. It will come to grief, as we have seen in many other areas of our public life where this philosophy has been applied.

[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

[Lord Wallace of Tankerness]

My Lords, I readily understand the thinking behind the amendment moved by my noble friend Lord Marks. If the Bill is intended to remove the opportunity for the Prime Minister of the day to take a partisan view on the timing of the election, I can see why, the Prime Minister having lost a vote of confidence, you might then wish to restrict the Prime Minister's room for manoeuvre on setting the date—either to go too soon, which may give a campaigning advantage; or to delay unreasonably. Nevertheless, the amendment is unnecessary. More importantly, practical issues could flow from it.

If we take the case of delaying too long, in the context of Clause 2(6) and the Bill as a whole, it is clear that the Prime Minister would be required to recommend to Her Majesty a prompt election. If two-thirds of the House—the other place—had voted for an early election, one would imagine that the Prime Minister would be as anxious as anyone to get on with it. Likewise, although the Prime Minister may be less keen for an early election where there has been a motion of no confidence, and no other Government have been formed, that would also be a clear statement from Parliament that it expected to see change and an election. The electorate would share that view. This is pure speculation, but if the Prime Minister tried to pull a fast one and delay unduly, that decision could be subject to challenge.

On the other hand, there are limits as to how quickly the Prime Minister can move if he seeks an early polling day. Clause 3(1) dissolves Parliament 17 working days before polling day, so the timetable at Dissolution is fixed and is known to all sides. Therefore, there is no way that that could be cut short for advantage. There is already that backstop as to how an election could be called.

My biggest concern is practical. The Government decided not to set specific limits that inadvertently tied hands in circumstances which could lead to a situation such as that described by the noble and learned Lord, where the election campaign might be some time between 18 December and 16 January. It is almost inevitable that if we were to try to fix those times, the first example would be when it fell in a period where campaigning would be very difficult. We should allow flexibility to allow a general election to be called on a date—which, one would assume, would be consulted on among the parties—to minimise disruption in a Christmas period or summer vacations.

Therefore, the amendment is neither necessary—provision is already there which would stop a Prime Minister calling an election too soon; he would clearly be challenged if he tried to delay unduly—nor practical in trying to tie hands. That might run into more problems than the amendment is intended to solve.

[Lord Falconer of Thoroton]

The noble and learned Lord said something important there. He said that the Prime Minister would be subject to challenge if he sought to delay. Interestingly enough, it is a statutory power whereby the Prime Minister is obliged to recommend a date. Is it challengeable by way of judicial review?

[Lord Wallace of Tankerness]

It could be challengeable by judicial review if he was abusing his decision on a recommendation. That is why there is a safeguard there, which would mean that it would not be possible to delay in an unacceptable way.

[Lord Falconer of Thoroton]

Just to pursue that: the Government envisage a situation that could not arise now—because there is absolute discretion on the part of the Prime Minister—whereby the Prime Minister recommends to the Queen that the date of the general election be, say, 1 May 2013, and other parties can take the Prime Minister to court, arguing that that is an unreasonable exercise of his discretion and ask the court to fix the date of the general election, which it could set to take place two weeks earlier or two weeks later. Is that what the Government envisage as a possibility?

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

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[Lord Wallace of Tankerness]

My Lords, I readily recognise where the noble Lord, Lord Howarth of Newport, is coming from on this. As the Committee will know, the Parliamentary Voting System and Constituencies Act 2011 requires boundary review reports to be published on a five-yearly timetable, starting in October 2013. Once this Bill is enacted, general elections will occur at five-year intervals, starting in May 2015. In the absence of any early elections, the effect would be that boundary reviews generally would be published 18 months before each general election. Our debates on the previous Bill were about allowing an opportunity for the political parties and electors to become familiar with new boundaries and, importantly, for the electoral administrators to gear up accordingly.

I understand that the intention behind this amendment is to realign the five-year cycle for boundary reviews in the event that an early election causes them to get out of sync. Unfortunately, the amendment does not achieve this. It relates only to when the order is submitted to Parliament; there is no provision made to adjust the cycles that the Boundary Commissions themselves will work to. That is not simply a technical objection but an important and fundamental one. Broadly, I have sympathy with what the amendment is trying to do to ensure that there is one boundary review in each Parliament so that constituencies remain of roughly equal size and votes remain of equal weight. We looked at the interaction between the boundary reviews and the provisions of the Bill. The conclusion that we reached, which may be an echo of what some Members said in earlier debates, was that we simply could not legislate for every scenario under a fixed-term Parliament provision. This is one where it would be far better for judgments to be made by future Parliaments, in possession of knowledge of the circumstances, depending on when the early election—if such there was—took place.

I give a brief example. If, for the sake of argument, an early election was to occur before a full boundary review had been completed—say, in early 2018, when the report from the Boundary Commission would not be due before October that year—this amendment says nothing about what should happen to that boundary review, which would be well under way and ready to report in October 2018. It says simply that the next order should not be brought into force until 2022—that is, before the election of 2023. That raises questions about whether the review that was due in 2018 should be implemented in 2022, which would mean that the boundaries could become out of date. Is it the intention that the first review after an early election should have a 2022 deadline, in which case additional provision would be required to define which register that review should use? Without that additional provision, the commissions would have to use the December 2020 register, which would give them a very short time in which to conduct the review.

As I indicated, while it would be preferable—and may still be possible for the dates of some early elections—to continue the cycle of reviews that is there, it is far better left to a future Parliament to deal with the specific circumstances if it felt that boundary reviews were not keeping pace with the cycle of elections. In any event, even without doing anything, future elections are likely to be fought with more up-to-date registers than was the case for England in 2010. I welcome what I am sure is the well intended purpose of the noble Lord’s amendment, but I do not believe that it achieves that purpose. I therefore ask him to withdraw it.

[Lord Falconer of Thoroton]

Does the Minister envisage Parliament dealing with the issue by primary legislation each time?

[Lord Wallace of Tankerness]

As things stand, it probably would have to be by primary legislation. It might be a very simple Bill, but I think in trying to be too prescriptive at this point you could run into difficulty. As I have said, there may well be circumstances in which the early election, should it occur, would nevertheless be one in which the actual scheduled date would still fit in quite readily and allow a reasonable time for the political parties and electoral administrators to make the necessary arrangements. That is why I do not think we can predict what is going to happen and it is better to leave it to the future—to see whether it would in fact be necessary—in the belief, and indeed the knowledge, that even under the present system, without anything further, we are likely to be fighting elections on more up-to-date electoral rolls than was ever possible prior to the passage of the 2011 Act.

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[Lord Falconer of Thoroton]

My Lords, this has again been an important debate. I pay particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again.

I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a Motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons.

The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words “Motion of no confidence” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was.

Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A Motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use “confidence” or “censure”. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, “This is a Motion of confidence”. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though “confidence” or “censure” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down.

This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: “We censure the Government for their determination to sell off the forests”. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states:

“That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order”.—[Official Report, Commons, 1/11/1956; col. 1631.]

That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated:

“That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues”.—[Official Report, Commons, 11/12/1956; col. 845.]

Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue.

Clause 2(2), as drafted, says:

“An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)”.

Is it intended that the phrase,

“a motion of no confidence”,

should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”.

That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states:

“A vote of no confidence will have been deemed to have been passed if”,

the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”.

Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states:

“That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country”.—[Official Report, Commons, 4/12/1952; col. 1783.]

Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.

[Lord Forsyth of Drumlean]

The noble and learned Lord is giving examples of Motions that were treated as confidence Motions. Am I missing something here? Surely the context has changed. Those Motions are in the context in which a Prime Minister can say, “I am putting this policy to the House. I regard it as a matter of confidence. If I don’t have the support of the House, I’ll go to the country”. However, the Bill, as the noble and learned Lord has pointed out, removes the Prime Minister’s ability to call a general election—to go to the country and take his case to the people ahead of the conclusion. In that context, what would constitute a Motion of confidence is quite different from the position in which the Prime Minister cannot go to the country, and I think that the reason why my noble friend has had to fall back on a specific Motion that says that the House has no confidence in the Government arises from that. Therefore, the Erskine May examples arise from a situation in which the Prime Minister can call a general election at any time in order to secure support in the country.

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[Lord Falconer of Thoroton]

If the noble Lord is right, a massive constitutional change is being proposed. I did not realise that that was the intention. Is it intended that the fundamental principle of our parliamentary democracy—that if you lose the confidence of the Commons, you have to resign—should go? If that is so, then the principles underlying a Motion of no confidence presumably remain the same as they are referred to in Erskine May. It would be extraordinary if they did not, because the phrase that is being used is precisely the same as the phrase used in the Bill for determining whether there will be either Dissolution or a resignation. A Motion of no confidence is a well recognised phrase in Erskine May and there must be a reference to that in the Bill. The fact that there would not necessarily have to be a general election does not change the fundamental principle in our constitution that if you lose the confidence of the Commons you have to go. That, as I understand it, is what is intended by this provision.

[Lord Forsyth of Drumlean]

Under the present rules, it is perfectly possible for a flagship policy to be lost in the Commons and for the Prime Minister of the day to move a Motion of confidence that wipes the slate clean. Therefore, it is not as straightforward as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

The noble Lord may or may not be right. He has been in the Commons, I have not, so he will understand the situation better than I do. I do not have the experience of the noble Lords, Lord Martin and Lord Forsyth, but from looking at the history books it would appear that, by a process of general consensus, the Commons understands what is and is not a Motion of confidence. The best example of what was not a vote of confidence occurred on 10 March 1976, when the Labour Government’s public expenditure plans were defeated. I should have thought that the Government would have had to go on that basis, but they did not.

The next day there was a vote on whether the Adjournment was a confidence Motion. Presumably the Prime Minister said, “I’m treating this vote on the Adjournment as a vote of confidence”, and the Commons understood it to be such. How is the Speaker supposed to determine that a vote on the Adjournment as a legalistic matter is a vote of confidence? He could not, either under the Bill as drafted by the noble and learned Lord, Lord Wallace of Tankerness, or under the proposals of the noble Lord, Lord Norton of Louth.

[Lord Norton of Louth]

As the Bill now necessitates, instead of saying that we are on the Adjournment and that this will be treated as a Motion of confidence, one would put down explicitly worded confidence. That would be the essential change.

[Lord Falconer of Thoroton]

Is that right, because the wording in the amendment is:

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”?

The noble Lord is obviously right, but what about the position in relation to the Egyptian Motions to which I referred, or the Motion in which Mr Attlee, lambasting the Conservative Government in 1952, did not use the words “censure”, “Motion” or “confidence” once, yet regarded it as a motion of no confidence?

We already have a well understood definition of no confidence. The phrase is well known. What it means at any particular time depends on a consensus view that emerges from the Commons. The Commons understands when there is a Motion of no confidence. What it means is not something that is capable of being written down in a statute. I respect what the noble Lord, Lord Cormack, is trying to do in trying to define it, as it obviously is not working the other way. The Government’s problem is that they use the phrase “a Motion of no confidence”, as if it is a single, static thing that can be defined at any moment. Is not the obvious difficulty that it is not a static thing? One moment something will be a Motion of no confidence and 10 years later it will not because political circumstances have changed. As a consequence of what the Government are seeking to do, they are in effect changing the basis and moving it on from a political judgment made by the House of Commons to a legalistic issue that has to be resolved by the Speaker of the House of Commons. That is a fundamental change.

[Lord Cormack]

Much of what the noble and learned Lord says about the deficiencies of the Bill is completely right. The amendment seeks imperfectly—I made that point from the word go—to make the Bill less bad than it is at the moment by giving a definition of a vote of no confidence and by relieving the Speaker of the day of the invidious position of having to make a political judgment. We might have tabled the amendment imperfectly, and I am sure that there is room to improve it, but the general consensus in the House tonight appears to be that this is an improvement on what we have in front of us in the Bill.

[Lord Falconer of Thoroton]

I am not sure. I think that there are two alternatives. The one is to be lured into the trap that the Government are laying of the legalistic route; the other is to take the route that the noble Lord, Lord Forsyth of Drumlean, seeks, or that of the noble and learned Lord, Lord Howe of Aberavon, who has somewhat confusingly put his name to the amendment, although he also said to rely more on conventions, which I found quite forceful.

Let us suppose that instead of proposed new subsections (2), (3) and (4) we simply had one proposal which stated: “An early parliamentary general election may take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”. You would end up in the position whereby the Speaker is not being asked. You preserve the current position of allowing the Commons to determine whether it is a motion of no confidence, which has not caused a problem in the past. By using “may” rather than “is to”, you also deal with the problem of the Queen’s Speech being defeated before the Government ever get going, and you deal with the Narvik situation. You effectively and essentially pass a Bill that is not drawn into difficult and damaging legalism, which is the danger that the noble Lord, Lord Cormack, is trying to avoid.

I wait to hear what the noble and learned Lord, Lord Wallace of Tankerness, says. The noble Lord, Lord Cormack, is right that there is a considerable sense around the House that his amendment is better than the honourable but rather ineffective try that the Government have made. However, is it not better to try to preserve, as much as possible, the current arrangements that work rather than ending up in a legalistic situation with great difficulties about interpretation? I see the noble Lord, Lord Norton of Louth, shaking his head. I am willing to be persuaded that I am wrong. However, using the phrase,

“passes a motion of no confidence”,

twice drags him into a situation where he is freezing the definition of something that cannot be defined. I am open-minded as to the right answer but I am not at all sure that the submission of the noble Lord, Lord Cormack, is it.

I identify two other difficulties. As drafted, the amendment of the noble Lord, Lord Cormack, does not deal with the defeat of the Queen’s Speech before the Government have got going, which he acknowledges. It does not deal with the Narvik situation, where you have a strong sense within Parliament that the Government should fall because they are defeated in a vote of no confidence and a new Government should emerge. Assume that in the Narvik example the Government are defeated because Parliament wants, say, Winston Churchill to become Prime Minister and a national Government to run the war. It would not be appropriate in these circumstances to force a general election. The effect of the amendment of the noble Lord, Lord Cormack, is that there would have to be a general election whenever there was a defeat in a vote of no confidence. However, I see I am wrong.

[Lord Cormack]

The noble and learned Lord is trying to rewrite history in the most peculiar way. During the war, each year a Bill was passed so that there would not be a general election. General elections did not take place for 10 years. This agreement was in force at the time of Narvik. There was no question of the Government falling. The Prime Minister lost so much support on his own side that he felt that he had to resign and Mr Attlee made it quite plain that he was not prepared to serve under Lord Halifax, who appeared to be the preferred choice at the time, so we had the Government of Churchill and we all know what happened after that. To try to rewrite history in the way that he is doing is not exactly helpful to any of us.

[Lord Falconer of Thoroton]

The account of history given by the noble Lord, Lord Cormack, is entirely accurate. However, if you are passing a Bill that is intended to set out what our constitution is, what happens when there is not a suspension of elections and the Commons wants rid of a particular Government because it, quite legitimately, wants a national Government? The effect of the amendment of the noble Lord, Lord Cormack, is that you are not allowed to have a situation where you cannot avoid an election. I envisage circumstances in which a vote of no confidence might well reflect both a Commons view and a national view that the Government of one party be changed, for example, into a national Government. We have to be able to deal sensibly with this. The current arrangements allow for a defeat in a vote of no confidence followed by a replacement of the national Government, which the amendment does not deal with. It is not a comprehensive definition of motions of no confidence and so leaves the Speaker as exposed under these arrangements as he is under the old arrangements. I share the desire of the mover of this amendment to get to a point where the Speaker is not exposed in the way that he is at the moment. I do not believe that the amendment quite succeeds in doing that. I am open-minded about the other efforts to do it, but currently, I can see force in the sort of amendment that I suggested.

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

--- Later in debate ---

If we are in a situation where we have a framework of a fixed-term Parliament and we are envisaging a situation where there could be an early election, it is important that it is very clear what will constitute the trigger mechanism for that early election. Simply leaving it to a consensus is not sufficient in these circumstances.

[Lord Falconer of Thoroton]

I completely understand that it is different under the Fixed-term Parliaments Bill but remember that the consequence now of the Government losing a vote of confidence is that they at the very least have to resign and at the very most have to have a general election. There is a very high price to be paid now in relation to losing a vote of confidence or no confidence. Can the noble and learned Lord identify historically any occasion where there has been a dispute over whether something is a vote of confidence?

[Lord Wallace of Tankerness]

I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.

--- Later in debate ---

Debate on whether Clause 2 should stand part of the Bill.

[Lord Falconer of Thoroton]

My Lords, our debates on Clause 2 have been very significant. Would it be possible for the noble and learned Lord, Lord Wallace of Tankerness, to suggest some process? He has been accommodating and conciliatory, and he has broadly shared the aim, expressed all around the House, of there being no uncertainty about the circumstances in which an election would be triggered. As I understand it—I may have misunderstood—the Minister is not seeking to dislodge the basic principle that, when a Government lose the confidence of the House of Commons, that Government have to go.

Could I invite the noble and learned Lord to convene a meeting of all interested parties—I do not mean political parties—from all over the House to discuss this, with a view to agreeing a Clause 2 that reflects the concerns that he appeared to share? The noble and learned Lord—I hope that this will not be a case of “once bitten, twice shy”—was accommodating in indicating during the Parliamentary Voting System and Constituencies Bill that he would come back with things, and he is leaving me with the impression that he shares many of our concerns. Perhaps the way to move forward is for those who are interested to meet him to try to agree a clause that reflects the sort of principles he just went through. Does that suggestion find favour with the noble and learned Lord?

[Lord Wallace of Tankerness]

I am certainly more than willing to meet. I will need to discuss with ministerial colleagues—it will not be just I who have to reflect on this—but I am certainly willing to meet, although I do not know whether that can be done constructively with a large number, or whether it is better done with a smaller number. The noble Lord, Lord Martin, has already suggested that he and the noble Baroness, Lady Boothroyd, would be willing to meet. I have said that I would welcome that opportunity, although that would be to deal with a discrete part of the Bill. I am sure that, through the usual channels, we can devise some way of meeting, either individually or by convening a much larger meeting. I am sometimes sceptical about how far you can get without convening a larger meeting. I will work out the best way to take that forward, with an undertaking to meet and include those—without, I hope, being exhaustive—who have made an important contribution to our deliberations in Committee.

[Lord Falconer of Thoroton]

I am very grateful to the noble and learned Lord. One of the things that very much infused the debate on Clause 2 is the question of what the Government have in mind when they use the phrase “motion of no confidence”. For example, it was never clear—I am sure this is my fault for not listening; it is very late—whether a motion of no confidence includes being defeated on a motion of confidence. Does a motion of no confidence include things that are not explicit? Does the definition of a motion of confidence in Erskine May apply in helping us to construe the reference to a motion of no confidence in Clause 2? We need to know the answers to those questions. If the noble and learned Lord does not want to answer now, I am more than happy for him to write. However, we do need clear answers to those questions.

[Lord Wallace of Tankerness]

My Lords, I tried to answer on this in response to the previous debate, when I indicated that we recognised that no-confidence motions could take and have taken many different forms, and that our desire in the Bill was not to be prescriptive and not to restrict flexibility. That is where we started from and that is what we sought to do. I think a vote of no confidence would not include a vote of confidence, but it would not be beyond the wit of a leader of the Opposition to table an amendment inserting the word “no”. That is clearly part of the discussion that we can have. The noble and learned Lord asked what our proposed statutory definition of a motion of no confidence was. In response to the earlier debate, I said that we recognised the many different forms that it could take, as he himself illustrated in his speech. Our desire was not to restrict flexibility. We will enter the discussion, as I have said, bearing in mind the comments that have been made from various parts of your Lordships’ Chamber.

[Lord Falconer of Thoroton]

There was just a flicker there, in that the noble and learned Lord said a vote of no confidence would not include a vote of confidence. Therefore, you could have the strange situation where the Government are defeated on a vote of confidence but do not resign at that point. Indeed, there could not be a general election under those circumstances; under this Bill, there would then have to be a vote of no confidence at that point. How nutty is this Bill?

Clause 2 agreed.

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Moved by

[Lord Falconer of Thoroton]

52: After Clause 2, insert the following new Clause—
“Parliamentary general elections coinciding with scheduled elections to a devolved institution
(1) A parliamentary general election shall not be held within 30 days of a general election to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly (“the relevant devolved institutions”).
(2) Should an early general election be called under section 2 of this Act such that it would occur within 30 days of scheduled general elections to the relevant devolved institutions, the Prime Minister shall, after consultation with all of the relevant devolved institutions, lay orders before Parliament to move the date of either the parliamentary general election or any of the general elections to any of the relevant devolved institutions so as to ensure compliance with subsection (1) of this section.
(3) Any order laid by the Prime Minister under this section shall not move any of the general elections either to Parliament, or to the relevant devolved institutions, by more than 35 days from the date on which they would otherwise have taken place.”

[Lord Falconer of Thoroton]

My Lords, this amendment deals with the question of the potential coincidence between elections for the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Our draft gives the Prime Minister the ability to lay an order to ensure that a general election must take place at least 30 days apart from the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly elections, to avoid a coincidence of these occurring on the same day.

I put my amendment down to probe the Government’s position on this. Everybody understands that the first general election under any Fixed-term Parliaments Act is likely to occur at or near the same date as the elections for the institutions I have referred to. Subsequent to my putting my amendment down, the Government, in consultation with the relevant institutions, have now reached some sort of agreement and have now put their amendments down, as Amendments 55B and 55C. Would it be convenient to your Lordships if we heard what the Government have proposed first, because I do not fully understand it? Once we hear what the Government have proposed, it would then be possible to see whether we need to proceed with our probing amendments.

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

[Lord Falconer of Thoroton]

The Minister says that people will know. Does he envisage that the Bill will be passed by 5 May 2011?

--- Later in debate ---

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

[Lord Wallace of Tankerness]

My Lords, I sometimes wonder if the noble and learned Lord listened to what I said. I have answered those three questions, but perhaps, with respect, I did not explain clearly enough, so I shall try again.

The first question was with regard to whether we would have a four-year or a five-year Parliament. Clearly that is a debate that we will come to at Report, and I am not going to rehearse again the arguments why I believe the five-year option is preferable to the four-year one. If the Committee agrees today that these amendments in my name should be passed, I believe that they should stay because people who will be voting on 5 May should at least get some indication of what the length of the Parliament or Assembly that they are electing is likely to be.

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that it would be four years or five years?

[Lord Wallace of Tankerness]

I am saying that they would still get five years. I do not think it would be right to elect people on the basis that they believe they are getting five years and then to say, “By the way, you’re not”. The noble Lord, Lord Bach, shakes his head. I think we would attract even greater criticism if there was an expectation of five years, and then we said, “Oh, by the way, we’ve changed our minds. You’re not getting your five years. You’re being cut back to four”. That would be the source of some legitimate criticism. Of course, if that is what happens and we do have four years—I will not again emphasise the reasons why we should not—the chances of it recurring are probably less likely, because then you could get yourself on to a four-year cycle, depending on whether there was an early election.

The noble and learned Lord asked what would happen in the longer term. I did seek to explain that we have also indicated that, subject to these amendments being accepted, in the longer term we would carry out a detailed assessment of the implications of having two sets of elections coinciding on a later date. Obviously the Electoral Commission would be involved in that. In the light of that, we would consider whether to conduct a public consultation on whether in devolved institutions the term should permanently be extended to five years. We do not proceed to do that in the context of this Bill, but we have indicated, as I have done in earlier debates, that that is our proposal. I hope that I have made it clear on this occasion that that is what has happened.

The noble and learned Lord also raised a question about Northern Ireland. I thought that I had answered that but, for clarity, the situation there is that there was correspondence with the parties in Northern Ireland on this issue. Northern Ireland Office Ministers concluded that it would be better to await the outcome of combined polls scheduled for 5 May this year before taking a decision on whether special provision would be needed in the future for Northern Ireland. It was a reflection of the dialogue that had taken place within Northern Ireland, and I see nothing wrong with this Parliament being sensitive to the views expressed in different parts of our diverse United Kingdom. I think that is to our credit, so I do not think that it would have been appropriate to have made provision for Northern Ireland if that was not the feedback that we were getting in the consultations that had taken place.

[Lord Falconer of Thoroton]

It was my fault for not having heard that. Having heard what the noble and learned Lord said now and understood it—having been so dim-witted in not picking it up before, for which I apologise—perhaps that indicates that this Government should not have come forward quite so hastily with this Bill, but instead should have consulted on those issues, which are very important, before bringing forward the Bill. It is not too late.

Amendment 52 withdrawn.

--- Later in debate ---

[Lord Norton of Louth]

I thought that I would speak briefly on the amendment. I can see the argument that it drives a coach and horses through the intention of having fixed-term Parliaments and I can see that it may attract some support in the House for that reason. I have problems with how the amendment is drafted, as it says:

“Parliament may otherwise be dissolved”.

Who determines that? It may otherwise be dissolved if Her Majesty appoints another Prime Minister. Is it the incoming Prime Minister who determines that there should be a dissolution? It also states that,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”.

One can see how any Prime Minister could have a fairly minor change of policy and decide, “I’d rather like to have a general election”, and it could be used as an excuse presumably for triggering the election. There is no requirement here; it has to be a major change in public policy. There are obvious drafting problems because I am completely unclear as to who would be responsible for triggering a Dissolution. That is my problem with it, but some may find that quite attractive since, in effect, it would undo the whole Bill.

[Lord Falconer of Thoroton]

I am not sure that it would. There are drafting issues and the noble Lord is right about that, but there has been a mood around the House that when John Major replaced Margaret Thatcher or Gordon Brown replaced Tony Blair, it might have been appropriate to have a general election. I understand that my noble friend Lord Howarth is saying, “Let’s define some circumstances which don’t say you have an absolute discretion, which is the current position, but there are certain defined circumstances”.

I agree that some of them, such as,

“the Prime Minister considers a Parliament not to be viable”,

and,

“the Prime Minister considers it appropriate to seek the endorsement of electors following a change in government policy”,

are a little vague. Would it be a change in any government policy, including where we stand in relation to the Forestry Commission? That might be a little bit unjustifiable, but if you wanted the Brown-Blair, Thatcher-Major; a change in the complexion of the Government; the Heath situation; and the October 1974 situation—there is a broad consensus round the House that those would not be bad—it is not necessarily a bad idea to say that tightly drafted provisions should be included at the end of Section 3.

We are dealing not with the safety valves but specific occasions when the nation would think it appropriate for there to be an election. I do not see that as being necessarily inconsistent with a fixed-term Parliament. As the noble and learned Lord rightly said, we are not in the Norwegian-type situation where it is X years come what may, and you soldier on to the end, come what may. You are identifying certain circumstances when the norm, whether four or five years, can be departed from. It is when there is a vote of no confidence, or questions when certain well recognised events occur, which justify the then Government seeking the endorsement of the electorate, even though there was no vote of confidence and even though there was no two-thirds vote, which would be, as I understand it, a Prime Ministerial discretion.

What the noble Lord, Lord Norton, is getting at is that if it is a Prime Ministerial discretion, you go straight back to where you were before. Let us suppose that the provision said that the Prime Minister—meaning the new Prime Minister—can go to the country if he takes over mid-Parliament. That would not be an absolute discretion; it would be a very constrained discretion, usable only when there was a change in Prime Minister. That would not strike me as driving a coach and horses through the Bill, although I can see that the noble Lord is dying to tell me why I am wrong.

[Lord Norton of Louth]

Yes, I was going to suggest that he is. In circumstances that he suggested that it is the incoming Prime Minister who can opt to do that, as with Anthony Eden in 1955, presumably it will be used to the Prime Minister’s advantage. When the noble and learned Lord suggested that the mood of the nation perhaps favoured a change, one can see situations in which the very last thing an incoming Prime Minister plans to do is call an election.

[Lord Falconer of Thoroton]

Think, like the right honourable Nick Clegg, about giving the public more control over their politicians. There is always a sense of frustration that comes when a new Prime Minister comes in and the public get no say in whether this change is right. This would reflect this mood and give the public more control.

The noble Lord is right. I cannot think how I would have taken over as Prime Minister and at the same time been unpopular. It is an unlikely scenario. However, it is a way of avoiding lots of clubhouse politics, where you move from one to another. It does not necessarily drive a coach and horses through the Bill. It would do so if the viability provision or the change in policy were there. It would, however, be worth the Government thinking of a circumstance in which, for example, a Government totter on with a majority of one and want to have a general election but the Opposition will not give them a two-thirds vote. Why should there not be a general election in those circumstances? It might well be that the country is not assisted by there being weak government in those circumstances.

I completely understand why the Government would wish to knock out the very general reasons for Dissolution. However, if the Government are serious about trying to improve the constitution, it is worth them considering whether or not there are more specific reasons of the sort proposed by the noble Lord, Lord Howarth of Newport, that might be worth including in Clause 3(2) of the Bill that says that,

“Parliament cannot otherwise be dissolved”,

except in those situations that we have dealt with before, which is the two-thirds majority, the expiry of the fixed term or a motion of no confidence.

Amendment 55A says that Parliament cannot otherwise be dissolved,

“unless the House of Commons has approved on a division a motion tabled by the Prime Minister that the Prime Minister should request Her Majesty to dissolve Parliament”.

The effect of that provision is that it would not be in the discretion of the Prime Minister alone, which is the current position. Put aside everything else. Assume no Motion of no confidence. Assume no two-thirds vote. Assume no change to the Bill to allow any special measures. The Prime Minister could nevertheless table a Motion that says, “I think there should be a general election”, and, if Parliament backed him by a simple majority, there could be a general election. This is probably the position anyway because, as the noble and learned Lord, Lord Wallace of Tankerness, says, there is nothing to stop the Prime Minister from procuring a vote of no confidence to get rid of himself so that, for example, in the Heath situation, he could have an election to deal with a particular crisis that had struck the Government. Would it not be more sensible for there to be a straightforward mechanism that allowed that to happen? If it can happen by the back door, why should it not be allowed to happen by the front door? It does not offend against the Fixed-term Parliaments Bill because its stated purpose is to take away the right to call a general election from the Prime Minister and give it to Parliament. Amendment 55A does not offend against that principle

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.

I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.

I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.

On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, it is me again, but this is the last time. The Bill abolishes the monarch’s power to dissolve Parliament but not the monarch’s power to prorogue Parliament. If the monarch is removed from the dissolution process, should she continue to exercise other prerogative powers, such as the power of prorogation or the power to summon Parliament? It is a question worth pausing on and it would be helpful to hear the Government’s account of why they have sought in this Bill to remove one very important prerogative power but to leave others in place.

I am not a great believer in consistency in constitutional matters. A constitution breathes and relaxes through its anomalies and is able to be responsive to the complex circumstances of the different parts of a country through the very existence of anomalies. I am rather of the view of Ralph Waldo Emerson who said:

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen”.

I think that we would all reject such consistency—I hope so.

At a practical level, the Bill leaves a loose end. The continuing power of prorogation is, in principle, open to abuse. If a Prime Minister were to be defeated on a vote of no confidence he could, under the terms of the Bill, ask the Queen to prorogue Parliament to get around the 14-day constraint. There was such an incident in Canada not very long ago. Following his re-election, the Canadian Prime Minister asked the Governor General to prorogue Parliament. The Prime Minister was seeking to avoid losing a threatened vote of confidence. Parliament was prorogued for two months. By the time it came back, the threat of that vote of confidence had pretty well gone away, so his continuing lease on power was ensured. The Constitution Select Committee thought that the likelihood of such an abuse occurring in the circumstances of this country was very low, with which I agree. I think that if any Prime Minister were to attempt to manipulate and abuse the power of prorogation, it would certainly backfire on him politically.

This amendment seeks to provide a safeguard against prolonged prorogation if a Prime Minister did seek to avoid the consequences of a no-confidence vote and get the election deferred to benefit himself or his party. The amendment should probably have been framed to guard equally against an abuse of the power of adjournment. Without such an amendment, the only safeguard that would remain would be the refusal of the monarch to accede to a request for prorogation. I think that we would all take the view that it is not a good idea to place the monarch in a politically contentious position. There is a loose end to be tidied up here and I should like the Minister to explain why the Government have left the power of prorogation as it is. I beg to move.

[Lord Falconer of Thoroton]

My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.

The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.

An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.

The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.

These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.