Lord Falconer of Thoroton
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Fixed-term Parliaments Bill
Lord Falconer of Thoroton Excerpts(13 years, 5 months ago)
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Lord Falconer of Thoroton
My Lords, the opportunity has not been taken, so we must now build on the work done by this House. I am very disappointed in the lack of interest in this rather staggeringly important constitutional Bill—which confirms that this House seems to have the same view as the people in the Dog and Duck to whom the noble Lord, Lord Cormack, referred. I will leave it to noble Lords to get to the Dog and Duck.
This is an important Bill: it will have an impact constitutionally. It is a Bill to take seriously in the course of this scrutiny at Report stage, which will last two days. I am grateful to the usual channels for providing two days, which seems entirely appropriate. It is time for this House to take decisions, building, I would respectfully submit, on the work that this House and the other place have done. When I say building on the work that has been done, I include the work done by the Select Committees in both Houses—the one chaired by Mr Graham Allen in the other place, and the one chaired by my noble friend Lady Jay. I am very glad to see my noble and learned friend Lord Goldsmith and other members of the committee in the Chamber today.
We as a party support fixed-term Parliaments. However, the investigations done by both Houses, including both Houses’ Select Committees, have increased Parliament’s doubts about fixed-term Parliaments. Our own committee, the House of Lords Select Committee on the Constitution, said that the case made by the Government for fixed-term Parliaments had “not been made out” to its satisfaction. A similar view was expressed by the House of Commons Select Committee.
There were three specific anxieties that underlay that view. The first was the length; both Select Committees concluded that four years was better than five. Secondly, both Select Committees concluded that the provisions could be abused by a Prime Minister who, with a majority in the House of Commons, could go for an election whenever he wanted. Thirdly, the Houses of Parliament were seeking to include in legislation the House conventions in determining when a Government lost the confidence of the House of Commons, which is a critical part of our constitution.
These anxieties were well expressed in good debates on Second Reading and in Committee in this House. In today’s Report stage we on this side of the House intend to try to address those specific anxieties, and to support the Government and other Members of the House who have tabled amendments to try to resolve them. However, resolving these specific problems will not deal with the underlying sense of anxiety which still exists in this House about the Bill.
In those circumstances, the opposition party—the Labour Party—intends to support the amendment to be introduced by a number of Cross-Benchers, including the noble Lords, Lord Pannick, Lord Butler of Brockwell and Lord Armstrong, and the noble Baroness, Lady Boothroyd. The effect of their amendment is that if there is to be a fixed-term Parliament after each subsequent election, it will have to be approved by a resolution of both Houses. That seems to us a suitable response to a constitutional Bill which is of such importance but which has been introduced without pre-legislative scrutiny, proper public consultation or an adequate response from the Government to the particular issues raised. So I preface my remarks by indicating our support for that amendment. It does not stop us going into the Bill’s detail or—in the context of a Bill with this provisional aspect—seeking to improve it.
The first three groups of amendments concern the length of a Parliament, the issue being whether it should be four or five years. We have evidence on this: I refer to the speech of the noble and learned Lord, Lord Lloyd of Berwick, in Committee. He completely demolished the argument that it is a matter of judgment—the implication being that if it is a matter of judgment, any period would do. If it is a matter of judgment, it is all the more important, as the noble and learned Lord pointed out, to analyse what the “good judges” have been saying about what the right conclusion is. The first judge, I would respectfully ask the Government to bear in mind, is the person who introduced the current arrangements, namely Herbert Asquith. When introducing them in 1911, he rightly said that a maximum of five years was likely to produce Parliaments lasting about four years, which is close enough to the previous election or the coming election to ensure that Parliament remained properly accountable to the people.
The weight of academic evidence given to both Select Committees was overwhelmingly of the view that a fixed-term Parliament should be four years rather than five. Professor Robert Hazell told the Commons Select Committee:
“The balance between four and five years is more even than folk memory might suggest. But those parliaments which lasted for five years did so because the government had become unpopular and did not want to hold an earlier election. The Prime Minister stayed on hoping that his or her party's luck might change. It did not, save for the case of John Major, who scraped through with a narrow majority in 1992”.
Professor Blackburn, who has done a lot of work on this, was quoted by the noble and learned Lord, Lord Lloyd of Berwick, in his speech. The Select Committee in the Commons reported:
“Professor Blackburn suggested to us that when governments have lasted five years between elections, ‘the last year of every one has been pretty awful’”.
The Bill seeks to make it the norm that we should have five years. I would respectfully ask this House, if it wishes to have a proper process of scrutiny, to acknowledge where the weight of evidence is from all those who have looked at the issue, including Members of this House. I also pray in aid the following people: Mr Tony Wright, who introduced a Bill saying four years; my noble friend Lord Rooker, who is greatly respected in this House, and who introduced a Private Member's Bill in the House of Commons saying four years; and Mr David Howarth, no longer an MP, who introduced a Bill for fixed-term Parliaments which said four years and had the support, as co-sponsors of the Bill, of Mr Simon Hughes, Mr Chris Huhne, Mr Nick Clegg, Mr Danny Alexander, Mr David Heath, Ms Lynne Featherstone and Mr Paul Burstow. I mention these names only because every single one of them, with the exception of Mr Simon Hughes, is now a Minister in a Government proposing five years. Furthermore, the noble Lord, Lord Plant, who is not in his place, conducted an inquiry into our constitution in 1991 and 1992 and he recommended that there should be fixed-term Parliaments. He also said four years. The Liberal Democrats, as they proudly point out, have said for many years that there should be fixed-term Parliaments and that they should be four years.
Perhaps I may say with respect that if you are responding to a proper analysis of the evidence, the conclusion would be four years, not five years. If it should be four years, should it be four years for this Parliament or should it be five years for this Parliament and four years for subsequent Parliaments? In Committee, the noble Lord, Lord Cormack, said—I suggest with a heavy heart—that it should be five years to give this Government their coalition agreement, but four years thereafter. As I made clear on 21 March at cols. 505 and 512, I do not support that siren song. I have three reasons for not supporting it.
First, if five years is wrong for the future, it must be wrong for this Parliament. Secondly, if the reason that five years is wrong is that you end up with an “awful” fifth year, to quote Professor Blackburn, imagine the circumstances that we are currently facing. We have a number of politicians, the Liberal Democrats, who are greatly respected by all in this House. Let us assume that they do what every other politician in their position—that is, facing defeat—does; namely, they cling on until the last moment. If we pass a Fixed-term Parliament Bill of five years, we will allow the Liberal Democrats to do what MPs have done since time immemorial—to cling on to the bitter end. We are going to have an awful fifth year. I strongly recommend not succumbing to the siren song of five years for this Parliament and four for the next.
The third reason that we should not succumb to the argument is this. I can imagine no worse precedent than a Government coming into power and setting in place special arrangements for how long the first Government should be and then changing the constitution for everyone else thereafter.
Lord Phillips of Sudbury
I commend the noble and learned Lord on the eloquence and persuasiveness of what he has been saying so far, but might it be the case that the fifth-year syndrome he has described, and to which Professor Hazell referred—that the fifth year is always difficult—might just be a final-year syndrome? Might it not then become the fourth year that would be misery hereafter?
Lord Falconer of Thoroton
No, I do not think it would. Can you identify a third or fourth year which has been as been as awful as the fourth or fifth year? I also refer to what was said during debates in Committee by the professor and noble Lord, Lord Norton of Louth, who sadly is not in his place. He said that it was extremely unlikely that any Government would have something proper to fill in their fifth year. So there is no historical precedent for the fourth year being as bad as the fifth year, nor do I think that if the fixed term were four years would the third to fourth year become awful. But that is a matter of judgment for this House to make. My own judgment of it is that the third to fourth year would not be remotely as bad as the awful fifth years that we have had on previous occasions.
We in the Opposition are going to vote for Amendment 1, which alters the date of the first election from five years from the date of the last election to four years, and we are then going to vote for four years thereafter. We are going to vote for what might be called the “Baroness Boothroyd, Lord Pannick, Lord Butler of Brockwell, Lord Armstrong” amendment because we do not think that the Government dealt effectively with the fundamental criticisms of fixed terms.
Lord Rennard
The previous Labour Prime Minister of course went for five years. If this legislation is passed in its current form, would a future Labour Government amend it to change back the fixed term from five years to four years?
Lord Falconer of Thoroton
I cannot commit a future Labour Government, but people should form their own view about whether fifth years have been good years. We should look at this in a non-partisan way. Do Mr Major or other Labour Prime Ministers in the past who have gone a fifth year fit the rubric of Professor Hazell; namely, people hanging on to the last moment and ending up in a situation where there is a pretty awful year? Four years is good, because it means that you are accountable to the electorate much more regularly. It would probably have meant three or four more general elections since 1945. Let us remember what the much revered Deputy Prime Minister told the Select Committees. He said that the reason for which these provisions were being introduced was to make politicians more accountable to the electorate. It is quite hard to see how you make politicians more accountable to the electorate by reducing the number of general elections. In those circumstances, we will vote for four years for this Parliament, for four years for the future and for the Boothroyd/Butler/Armstrong/Pannick amendment. I beg to move.
The Lord Speaker (Baroness Hayman)
I have to inform the House that if Amendment 1 is agreed to, I cannot call Amendment 2 by reason of pre-emption.
Lord Lloyd of Berwick
My Lords, I support four years rather than five years for the reasons which I spelt out in Committee and to which I had intended to return when we reached Amendment 3, but maybe I should address that a little earlier in view of certain observations made by the noble and learned Lord, Lord Falconer, with which I agree.
I put my name to Amendment 3 last week because it followed very largely the amendment which was debated at length in Committee. I was therefore surprised to receive an e-mail over the weekend informing me that the noble and learned Lord was seeking to withdraw Amendment 3 and to substitute Amendments 1 and 2, which we now have, and asking me whether I would support them instead. I say at once that I cannot support Amendment 1.
At Second Reading, the noble and learned Lord accepted that it is open to any Government at any stage to indicate the date of the next election. That can be done within existing constitutional arrangements, as I believe everybody accepts. It did not require an Act of Parliament to establish May 2015 as the date for the next general election, but that is the course that the Government have chosen to take. There is nothing as such that is wrong with that course; it is the date that they have chosen and have put in the Bill.
If, therefore, May 2015 was to be challenged by the Opposition, surely it should have been challenged in Committee and not left to the 59th minute of the 11th hour before Report. Far from challenging that date, the amendment in Committee built on Clause 1(2). It assumed May 2015 and then substituted in Clause 1(3) “fourth” for “fifth”, and that is the amendment which I supported and still support.
It is true that, in response to the noble and learned Lord, Lord Wallace of Tankerness, on 21 March at col. 508, the noble and learned Lord, Lord Falconer, said that it had always been the Opposition’s intention to challenge the date in Clause 1(2), but that was not what they did. It is true also that at the end of the debate in Committee, it was argued that if four years was to be the norm for future Governments, it should be the norm for this Government. I do not agree. The Select Committee pointed out in paragraph 17 of its report the crucial,
“distinction between ‘the immediate concern of the Government’”—
this Government—
“‘that it should continue for five years’ and ‘the long-term issue’”,
of what should be the norm for future Governments. Those are distinct issues and it is the long-term issue to which all the evidence given in the Select Committee was directed.
It is the same as the distinction that was drawn very clearly by the noble Lord, Lord Cormack. He accepted May 2015 as the date for this Government because that is the date that any Government could have fixed. He thought that it was unnecessary to include it in an Act of Parliament, but there it is. Nevertheless, he favoured four years thereafter.
Lord Falconer of Thoroton
Is it not right that the same restrictions apply to this Government in this Parliament up to 2015 as would apply after 2015? If the same restrictions on having a general election apply in this Parliament, why is five years okay for this Parliament but not the next?
Lord Lloyd of Berwick
I am grateful for the noble and learned Lord's intervention, but he is ignoring the crucial distinction between the two issues. One is the issue as to what this Government are going to do. He accepts as we all accept that this Government can choose 2015 if they want. The issue that we ought to be discussing is not for this Government but for future Governments. It is entirely consistent, if I may say so, for us to accept May 2015 for this Government yet to say that the norm hereafter should be only four years.
Lord Goldsmith
My Lords, but for one point, I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick. On the principal question of the term, he and my noble and learned friend Lord Falconer of Thoroton are right: all the evidence points one way—the evidence of international experience and of the experts who were before the Select Committee on the Constitution, on which I also had the privilege to serve—and all the history points in favour of four years.
The principle points are in favour of it as well. As has already been pointed out, the constitutional programme put forward by the coalition is supposed to be a programme of empowering the people, not disempowering them. It is worth reminding ourselves of what was said by the Deputy Prime Minister in his evidence to the Select Committee that,
“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people … collectively introduces the mechanisms by which people can exercise greater control over politicians”.
Increasing the term of a Parliament so that it necessarily lasts for five years cannot conceivably meet those objectives, and I have never heard any explanation given by the coalition as to how it does. Nor, indeed, have we heard any explanation from the coalition as to why five years was chosen. The noble and learned Lord, Lord Lloyd of Berwick, pointed to the evidence that was given to the committee which illustrates that the figure was chosen before the evidence was there.
It is worth also spending a moment more on the purpose of pre-legislative scrutiny. It is not an answer, as the noble and learned Lord, Lord Wallace of Tankerness, said, to say, “We are scrutinising it”.
Lord Falconer of Thoroton
I apologise for interrupting my noble and learned friend Lord Goldsmith but he is obviously unaware that there is evidence as to how the five years came in. Mr David Laws’ book states that Andrew Stunnell pointed out that,
“trust and confidence was very important to us, and that we wouldn’t want to find the PM calling an election at a time that did not suit us. ‘That works both ways!’ said William Hague. We mentioned that our policy”—
this is the Liberal Democrats—
“was for four-year, fixed-term parliaments. George Osborne made the point that five-year parliaments were better, as they allowed governments to get into implementing their plans … We made no objection to this, and Britain was on its way to five-year, fixed-term parliaments for the first time in its history”.
I thought my noble and learned friend would like to know what the evidence was.
Lord Goldsmith
Noble Lords will notice from this that over many years, both in this House and at the Bar before, my noble and learned friend and I have made quite a good double act. I intended to come to that very point shortly but I do not blame him for trying to get in first. As an advocate, it is important always to make a point that you think is a good one before the other advocate does so.
On the point about pre-legislative scrutiny, it is not only a question of having an opportunity to scrutinise in this House; the committee asked the Minister responsible, “What do the people think about this? Have you asked the people what they think not only about the principle but also the term?”. As noble Lords will see in the evidence, that has never been done; there has been no attempt to consult on that kind of question. The Minister drew attention to two newspaper polls and a survey by the Scottish Youth Parliament, which were no doubt very worthy, but, as far as I am aware, they were not on the question of term but simply on the question of fixed-term Parliaments.
So the Government had nothing to support their view other—and we come now to the evidence to which my noble and learned friend Lord Falconer has drawn attention—than a political decision, a political compromise, that this Parliament was going to last for five years. We all agree in this House that that could have been done by a statement by the Government that they were going to do that and sticking to their guns. It did not need a Fixed-term Parliament Bill at all.
That brings me to the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should allow the Government to have five years this time round and four years thereafter. With respect, that makes no sense to me at all. The recommendation in the report from the Select Committee on the Constitution was not that it should be five years this time and four years thereafter. It was very clear in saying at paragraph 62 that,
“the majority of the Committee consider that a four-year term should be adopted for any fixed-term Parliamentary arrangement”.
When I put my name to this, I did not for a moment think that the report was saying that we should let the Government have five years this time and four years thereafter. They could have achieved that if they had done what the committee wanted, which was to spend the time during this Parliament to consult properly, reach a view, legislate for hereafter but not to rush this through in this way. So I have no hesitation at all in rejecting the shabby compromise that ended up with a five-year term in the discussions to which my noble and learned friend Lord Falconer has referred, and I would reject any compromise on four years. If it is to be four years for a fixed-term, it should be four years now and hereafter.
Lord Wallace of Tankerness
I apologise. I misunderstood the noble and learned Lord. I thought that he was arguing for four years subsequently. But the noble and learned Lord, Lord Falconer—as one of the three key reasons why he said it should be four and four—said that it would be wrong if the Government had one set of rules for the first Parliament and a different set of rules for the others. Of course the Government are not seeking to do that. We are seeking to be consistent with five years both for this Parliament and for subsequent Parliaments. Therefore, he cannot hold that argument against the Government.
Lord Wallace of Tankerness
I will just finish the point and then give way to the noble and learned Lord.
If the Government had come forward with a proposal for five years for this Parliament and four years thereafter, I can imagine the criticism that would, with some merit, have been directed at us.
Lord Falconer of Thoroton
So if this House decided that it should be four years for subsequent Parliaments, the right course would be for the Government to say that it should be four years for this Parliament as well?
Lord Falconer of Thoroton
My Lords, it has been a good and a very important debate. If what the noble and learned Lord says is right about trying to engage the public more in politics and if the Deputy Prime Minister is right when he says, describing the suite of Bills, that,
“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians”,
surely the minimum that this Government should do is to respond to Parliament’s independent view about these issues, not put on a party-political basis. Both Select Committees, which contain a majority of people from the coalition, said that five years was wrong and that four years was right. If this Government are going to demonstrate their sincerity about new politics, should they not abandon simply doing things on the basis of what their own whipped majority wants and listen to what Parliament says? Parliament has said on an independent basis that four years and not five years is right. If the Government do not listen to that, I have to say that it puts in doubt their repeated statement, in particular through their Deputy Prime Minister, that they want to give more power to the legislature.
I shall not repeat the arguments in support of four years. For my own part, the independent evidence supports it very strongly. The only point that I shall refer to is the one made by the noble and learned Lord, Lord Lloyd of Berwick, that you could have five years for this Parliament and four for the next. Myself and the noble and learned Lord, Lord Wallace of Tankerness, are in agreement on the principled position in relation to that. If it is to be four or five years for the future, it should be the same for this Parliament, because this Bill introduces fetters and difficulties in having an election before the end. So I agree with the Government when they say that it should be the same now as for the future.
For all the reasons given, in my respectful submission the right answer is four years. Sadly, I shall not accept the invitation of the noble and learned Lord, tempting as it is. I wish to test the opinion of the House.
Lord Falconer of Thoroton
My Lords, I do not think that the House has any appetite for long debates on any of these next votes, but they are alternatives to the vote that we have just had. This next vote, which is on Amendment 2, involves the following: instead of this first Parliament being fixed for five years, the position should be left as it is. In effect, if the Government want to go on for five years, they can do so and the arrangements should be left as they are, and a fixed-term Parliament can be introduced for the future. I detect some support for the view that, this first time around, the Government should be able to last for five years if they want. If that is the Government’s position, they do not need to amend the law to do that; they can just do it by agreement and all that is required is trust.
I do not intend to go through the arguments about four years or five because the basis of this proposition is that we end up in a situation where we do not change the law for this Parliament but leave it as it is, which would allow the Government to go for five years if they wanted to, but then I will be arguing that it should be four years for the future when we come to those votes. I therefore invite the House to reach a compromise position of no change for the first Parliament and four years for the subsequent ones.
The Lord Speaker
I have to inform the House that, if this amendment is agreed to, I cannot call Amendments 3 to 7 inclusive by reason of pre-emption.
Lord Wallace of Tankerness
My Lords, in the spirit in which the amendment was moved, I do not wish to detain the House. We have had a full debate about the arguments about four years and five, but I shall simply talk about how the Government would prefer the position to be determined with regard to this Parliament. I think that I indicated in my reply to the previous debate that if we are going to have fixed-term Parliaments, it makes sense if we oblige this Parliament to move into the same rules as those governing what will happen in future Parliaments. I understood the noble and learned Lord to say that he thought there was some merit in that consistency.
While I have no doubt that this Government will carry on in our measured fashion up to an election in May 2015, if something is not fixed at that date it is inevitable, as one knows only too well, that speculation can start running rife, and the measure not being in place would perhaps give more grounds for speculation. That would actually hinder the productivity of this Parliament in its latter years when there might be more focus on opinion polls than on the legislative programme, something that the Bill is intended to avoid. We would be far better knowing definitely when the next election would be—namely, the first Thursday in May 2015. I therefore invite the noble and learned Lord to withdraw his amendment.
Lord Falconer of Thoroton
Persuasive an advocate though the noble and learned Lord is, I wish to test the opinion of the House.
“( ) Following the next parliamentary general election after the passing of this Act, the polling day for each subsequent parliamentary general election is to be the first Thursday in May in the fourth calendar year following that in which the polling day for the previous parliamentary general election fell.”
Lord Falconer of Thoroton
My Lords, the final amendment in this sequence is the only combination left, and although it proposes five years for this Parliament—I have been cruelly rebuffed in my two attempts to avoid that—it proposes four years for the future and will, I think, unite the House on my side, apart from a very few noble Lords who I regard as outliers. There is no point in debating the amendment again, because we have done so for the past two hours. I beg to move.
The Lord Speaker
If this amendment is agreed, I cannot call Amendments 4 to 7, by reason of pre-emption.
Lord Marks of Henley-on-Thames
Noble Lords will have heard me say that her discretion is very limited and that she seeks to stay out of controversy of this sort where she possibly can. Plainly, sometimes, the monarch’s role is to get involved and sometimes that is unwisely exercised, as with the dismissal by Sir John Kerr of the Government of Gough Whitlam in Australia. That was not the monarch directly, but it was the monarch’s representative and that shows the danger of the monarch becoming involved. Controversy has raged ever since in Australia and elsewhere about that exercise of the royal prerogative. It is a dangerous one.
My point is that if you read these amendments carefully, a resolution of both Houses would be required for this legislation to survive beyond the first meeting after the next election. That is wrong. If Parliament wishes to change the law, it needs to pass new law to do so.
Lord Falconer of Thoroton
My Lords, as I indicated earlier, I support this suite of amendments. They are important in relation to the position of Parliament and this Bill for three reasons. First, such a series of clauses might well be appropriate in any constitutional legislation that makes a significant change. I do not think that anybody doubts that, because that is how the Government are putting it. I agree with other noble Lords who have said that this is potentially a significant constitutional change. In my respectful submission, before we commit ourselves irredeemably to this change it is sensible to see what happens. For that first reason, I support the amendments.
Secondly, we broadly know—there is no real dispute—the provenance of these constitutional changes. There is no suggestion that there is a widespread desire among constitutionalists or the public for this particular change. It is an insider’s deal in relation to politics, which suits two political parties. As far as one can see, it has no broad political support beyond the two political parties. I venture to suggest that, if the public's interest could be engaged in this and one explained to the public that we might have a situation under the Bill where the Government could be defeated on the Finance Bill, then defeated on a vote of confidence that they put down and they would still not have to have a general election—or that the Government could be defeated on a vote of no confidence put down by the Opposition and they would still not have to leave because they could spend 14 days bribing a variety of rebels and other small parties to join them, so they could hold on in Government—the public might not find this Bill worth supporting. It is an insider's Bill, which does not feel particularly attractive to me.
There is a third reason of importance. I have found in the course of these debates in the Commons and in your Lordships' House that people think that, in relation to a significant constitutional change, there should be public consultation, a desire to find consensus and pre-legislative scrutiny. Indeed, on 25 May, David Heath, the Deputy Leader of the House of Commons said that he favoured pre-legislative scrutiny for this Bill. His only concern was that such scrutiny might lead to the Bill being forced into the next Session of Parliament. Noble Lords will remember that the coalition in the Commons then extended this Session by approximately nine months thereby making it clear that there could be no clash. There was still no pre-legislative scrutiny.
Therefore, I think most people who have debated this would agree that this Bill has not gone through the appropriate procedures for a Bill of this importance constitutionally. Is there no price to be paid for this? Is Parliament to be absolutely supine in relation to this? It is a big opportunity for the coalition Government to put their money where their mouth is. They say they believe in new politics and they say they believe in reaching out for consensus; I cannot see any reason why the noble and learned Lord cannot say, on behalf of the Government, that he agrees with what has been said and that we should see whether the way that the Bill operates between now and the next election gains public support and, if it does, Parliament can form a view about whether to pass the resolution next time around. That would not cost the Government anything, because they would have the Bill they want.
Lord Rennard
The noble Lord is of course a very clever lawyer, so perhaps he could just explain to the House, for the purposes of clarification, how he considers supporting an amendment that says that each Parliament, after each general election, should meet to consider how long the Parliament should last, is compatible with the Labour Party manifesto commitment a year ago, which said that if the party returned to government, it would legislate for fixed-term Parliaments?
Lord Falconer of Thoroton
What you do here is you have a Bill for fixed-term Parliaments, you see how it works and, if it works, you determine whether, as a Parliament, you should continue with it.
Lord Elton
Can he answer the points made by my noble friend Lord Marks, in particular those relating to the Parliament Act and the lapse in the schedule?
Lord Falconer of Thoroton
With respect, the Parliament Act is a total red herring. The noble Lord, Lord Marks of Henley-on-Thames, says that by allowing the decision to depend on a resolution of both Houses, we—Parliament—are giving the power back to a Government with a majority. Of course we are, but we are doing that anyway because they could pass a repealing Act. Surely it must be right for this House to express its disapproval of the way that the Bill has been brought forward by supporting the amendment tabled by the noble Lord, Lord Pannick, the noble Baroness, Lady Boothroyd and the noble Lords, Lord Butler and Lord Armstrong, and to say, “Yes, you can have your Bill, but let us see whether or not a major constitutional change like this—which is very much an insider’s Bill—works, let us see whether or not it is something worth continuing and let the next Parliament decide”.
Lord Marks of Henley-on-Thames
I do not understand how what the noble Lord has said answers my point that in order to revive the Fixed-term Parliaments Act after the next election, you would have to have a resolution of both Houses, while ordinary legislation could be insisted upon by the House of Commons after a delay of a year.
Lord Falconer of Thoroton
Parliament could use its majority to get the repealing Act through, just as it could use its majority to pass the resolution. In my respectful submission, there is no difference between the two.
Lord Turnbull
Can the noble Lord explain my one reservation about a provision I otherwise support, which is about the point in the next Parliament when this option has to be exercised. Can it be exercised at any time through that Parliament, or does it have to be done early on? If it is not early on, is it fair that you do nothing for, say, two or three years, then when it looks as though you might quite like the protections of this Act, you decide in about the third year to revive it? Should there be some point at which you have got to place your bet?
Lord Falconer of Thoroton
I understand the amendment tabled by the noble Lord, Lord Pannick and the noble Baroness, Lady Boothroyd, to be governed by Amendment 25 in this respect. What happens is that this Bill continues only up until the first meeting of the next Parliament, and I assume that the resolution can be passed at any time thereafter. I hope that satisfies the noble Lord, Lord Turnbull.
Lord Turnbull
I think it satisfies me as regards the explanation, but I am not sure that it satisfies me as to whether that is the right outcome.
Lord Falconer of Thoroton
I would have thought it is sensible for Parliament to decide when it wants to consider the resolution—it might well want to consider it early on, or it might well want to consider it later on. I do not see any purpose, as far as the amendment is concerned, in restricting the time as to when the resolution needs to be considered. In my respectful submission, the key point in relation to this is that this is a bad piece of constitutional legislation, in the sense that the process used is agreed by all to be a bad process. Putting aside the argument that says all constitutional legislation should be subject to a sunrise clause, it is right, if we are going to make a change to our constitution of this importance, that there should be some protective measures. This seems, with respect, to be a very sensible protective measure. If we see our role as being to protect the constitution, and we can do that without denying the Government what they want politically, then I respectfully suggest we should take that opportunity. I am grateful to the noble Lord, Lord Pannick, and the other co-signatories to the amendment for giving us that opportunity.
Lord Tyler
The noble Lord has made a very important point about protecting the constitution. Has he considered the consequences, in terms of a very considerable constitutional crisis, if, under the wording of this amendment, one House votes in one way and the other House votes in the other way? That would raise huge problems in terms of the primacy of the other place.
Lord Falconer of Thoroton
In the situation where you have a proper constitutional arrangement, whereby we protect the constitution here, if you took the view that we were not going to support such a resolution, that is the way that our constitution works. We have been good as a House in determining when we defer to the other place. We do not defer only when we think a real constitutional principle is in issue; if we did not defer to the other place on an issue like that, we would be assuming—I would be assuming—that an important constitutional principle was at stake. What is wrong with that? What is our purpose if a part of it is not to defend important constitutional principles?
Lord Gilbert
Is not the danger to which the noble Lord, Lord Tyler, has just referred only likely to arise if both Houses are elected? [Laughter]
Lord Falconer of Thoroton
It is very difficult to answer that question, and I will not try.
This is an important opportunity for the Government to show their sincerity in relation to the way that constitutional legislation should be done and to accept the amendments. If they do not, I will support the movers of the amendment if they put it to the vote.
Lord Wallace of Tankerness
My Lords, as we have heard, Amendments 4, 5 and 25, tabled by the noble Lord, Lord Pannick, with the support of the noble Baroness, Lady Boothroyd, and the noble Lords, Lord Butler and Lord Armstrong, provide that the Bill’s provisions would be subject to a sunset clause combined with a potential sunrise clause after the next general election. As my noble friend Lord Tyler said, these amendments are both interesting and seductive. It is also fair to say that they are somewhat complex.
I want to take a moment to set out what the amendments seem to be designed to achieve. They would enable the next parliamentary general election to be on the date set out in the Bill, namely 7 May 2015. After this parliamentary election, however, the apparatus in the Bill—the date of general elections after the 2015 election; the process for calling early elections, and it is important to remember that there is a process for calling early elections which has sometimes been overlooked; and the consequential matters in the Bill—would all cease to apply unless revived. It could be revived by a resolution of each House of Parliament—a sunset clause combined with a sunrise clause. I think that the noble and learned Lord, Lord Falconer of Thoroton, gave an accurate and factual answer to the noble Lord, Lord Turnbull, when he said that that resolution could take place at any time. It could add to the uncertainty, and I do not think that that is a particularly happy arrangement.
In bringing forward this Bill the Government sought to put in place a provision that we hoped would become part of our constitutional arrangement—fixed terms for the United Kingdom Parliament, just as there are fixed terms for local government, for the devolved Parliaments and Assemblies and for the European Parliament. Two of the Bill’s key provisions are: to deny the Executive the ability to choose a date for a general election to suit their own party political ends, and to deliver certainty about how long a Parliament should last. On Second Reading, the noble Lord, Lord Hennessy, remarked on the importance of these provisions. I think that he also called them a collector’s item, not least because the Executive, and specifically the Prime Minister, were surrendering a long-held power.
If these amendments were accepted, the position would not be clear not only in the Parliament elected after May 2015 but, indeed, in subsequent ones. Again, the political parties would be able to choose whether Parliaments should have a fixed term, in which case all the arrangements would be in place, or whether to return to the default position of the Prime Minister of the day choosing at some stage during the five years, assuming the quinquennium was revived, when to hold an election. That would mean that in each Parliament the Government of the day could have the allegation levelled against them that they were in some way operating for a partisan advantage.
It has been suggested not just in this debate but in a number of debates that the whole purpose of the Bill is to make arrangements for this Parliament. However, it is clear that it is intended that the fixed-term Parliament should, as I said, become part of our constitutional arrangements. That is what the Labour Party said in its manifesto and my own party has argued that for some time. I thought I heard the noble and learned Lord, Lord Falconer, say that that was still the Labour Party’s policy but I fear that supporting this amendment, as he does, puts that into question. It would allow the Government of the day elected after 2015 to decide, if they had a majority, whether to table the Motion or resolution to re-establish fixed-term Parliaments or whether to revert to the situation that existed prior to this Bill.
Lord Falconer of Thoroton
If we discovered that these provisions did not work well or reduced confidence in our constitution, would it not then be right not to prolong them?
Lord Wallace of Tankerness
My Lords, in spite of all the criticisms that the Constitution Committee of your Lordships’ House made of these proposals, it thought that the architecture of Clause 2 and the double triggers for Dissolution were suitable and appropriate. However, if it were felt that other mechanisms were required, clearly amending legislation could be brought forward, and later I shall say something about the importance of using legislation.
In establishing fixed-terms, we are providing that the Government and the Opposition have to face the electorate on a set day. As my noble friend Lady Stowell said on the first day in Committee,
“it would ensure that the Government and the Opposition had to face the electorate on a predetermined date, whatever the political conditions are at that time. That is the most compelling thing about fixed-term Parliaments”.—[Official Report, 15/3/11; col. 223.]
If this amendment were passed, we would allow the situation to revert to the status quo and, as a number of my noble friends have indicated, it would mean that the fixed term would apply only to this Parliament. When this Parliament established fixed terms for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, a sunset clause was never suggested, and indeed no one in any of the devolved institutions has ever suggested that we should revisit the idea of fixed-term Parliaments. No one is suggesting that Mr Alex Salmond should be able to choose to call an election to suit the best interests of the SNP some time over the next five years. I accept all the caveats that it is not possible to make a complete comparison between this Parliament and the devolved institutions; nevertheless, fixed-term Parliaments for legislatures have worked and no one is suggesting that that should change.
A fixed-term Parliament will deliver certainty. We debated earlier whether better planning is achieved over four or five years, but we believe that a fixed term will facilitate better planning across government. The nation will no longer be left on tenterhooks or have to deal with wild speculation about whether the Prime Minister will go to the country or how the opinion polls are going. In introducing his amendment, the noble Lord, Lord Pannick, talked about Prime Ministers agonising over the decision, and sometimes they got it wrong. Harold Wilson arguably got it wrong when he called an election in June 1970. However, let us not kid ourselves: the agony is over whether it is going to be in the best interests of their party. As my noble friend Lord Dobbs has said on more than one occasion during our debates, the key question is, “Can we win?”. It is not unreasonable for a political party to want to win but that is not necessarily the same thing as national advantage. In his book, The View from No. 11: Memoirs of a Tory Radical, my noble friend Lord Lawson said about the then Prime Minister, now the noble Baroness, Lady Thatcher:
“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.
Noble Lords may say that that is stating the obvious but that is what the Bill tries to change. There will be a fixed term and it will not be possible for the Prime Minister of the day to choose the moment that will be to the party’s partisan advantage.
I should be interested to know how the proposers of the amendment would react if the change were made by repealing legislation rather than having an affirmative order. How would they react if a Minister came to the Dispatch Box of your Lordships’ House and argued that the Government wanted to return to the Prime Minister of the day being able to make a decision to suit his party interest rather than sticking with fixed terms? Perhaps in his reply the noble Lord, Lord Pannick, will tell us how he expects all this to work. The schedule of consequential amendments contains quite important and weighty matters—for example, the repeal of the Septennial Act, changes to the Regency Act 1937 and provisions relating to the demise of the Crown. Does he see those being revived, having been repealed? He will know that there are provisions in the Interpretation Act concerning the revival of an Act that has been repealed. However, I think that there is some uncertainty about whether these would be revived.
The other point that has been made is that not much has changed from the present situation, in which a Government have come to power and introduced a maximum fixed five-year term. I do not think it is fair to say that that is analogous to the situation that would be in place after 2015. The present system is uncertain for the voter and we think that that uncertainty should be removed by introducing fixed terms. However, these amendments would add an entirely new layer of uncertainty for voters. Not only would they not know, when voting, when a subsequent general election might be but they would not even know the legal system under which the next Parliament would operate and how the next general election date would be chosen. I do not believe that that is fair or sensible for the electorate.
It has also been pointed out that the Bill alters the apparatus for calling elections. The crucial difference is that the Government propose moving to fixed terms through an Act of Parliament subject to all the safeguards that that implies. We have heard much in this debate about the importance of our constitution. The noble Baroness, Lady Boothroyd, talked about the fact that we do not have a written constitution. However, if the constitution is changed, it is done through an Act of Parliament rather than through a special procedure, and people have cherished the idea of parliamentary sovereignty.
It is not the case that this Parliament, through this Bill, is trying to bind its successors. That point was made forcefully by the noble Lord, Lord Butler of Brockwell, but it was answered by my noble friends Lord Tyler and Lord Marks. We do not seek to entrench these provisions. We cannot bind a future Parliament. However, we can say that this important constitutional change has been brought into the law of our land through an Act of Parliament—by First Reading, Second Reading, Committee, Report and Third Reading in the House of Commons and by the procedures that we know in this House of First Reading, Second Reading, Committee, Report and Third Reading and by Her Majesty giving Royal Assent. That is how we change our constitution—by Act of Parliament.
Surely, if we were being true to our constitutional heritage, we would say that any change to that heritage should also be carried out through an Act of Parliament. It would have to have the same scrutiny as this Bill has clearly had and Ministers would, in the other place and this place, have to argue their case for making the change. I do not think that we can just sweep aside the concerns raised by my noble friend Lord Marks. With the exception of amendments to the Parliament Acts, with this amendment a resolution of the House of Commons could be overturned or at least thwarted by a resolution of this House. It is a unique situation and we should think long and hard before going down that route. If we do go down it, one can imagine the tensions there would be at some stage if the other House had voted for a fixed-term Parliament but this House decided it would not. I fully understand and associate myself with the concerns about our constitutional procedures and heritage, but we change the constitution by Act of Parliament and not by simple resolution. A very new venture is embodied in these amendments.
Lord Wallace of Tankerness
I cannot readily think of one off the top of my head. However, there are enough people in the Chamber and, if there is such a mechanism, I am sure that one of them will be able to tell us. My noble and learned friend, who has wide experience, might be able to think of one, but I cannot. However, the “sunsetted and sunrisen” approach is very novel.
Lord Falconer of Thoroton
My recollection is that we put sunrise or sunset clauses into a significant amount of the terrorist legislation, the result being that they would continue to have an effect only if there had been a resolution in both Houses of Parliament to carry on with them. I think that that is an answer to your Lordships’ question.
Lord Mackay of Clashfern
With respect, that is not an answer to my question. The terrorism provisions end the Act of Parliament unless it is continued by a resolution, whereas this proposal, as I understand it, would suspend the operation of this Bill, supposing that it becomes an Act, for a certain period without repealing it. At the moment—I am willing to be taught—I cannot think of that having happened before. However, novelty is perhaps the watchword of the season.
Lord Falconer of Thoroton
The noble and learned Lord is right. There is a difference between an Act lapsing and not being revivable and the situation under this provision where if it lapsed for the first Parliament because it was not passed in resolution, it could be revived for the second Parliament. In practice, however, the difference may not be that great.
Lord Wallace of Tankerness
My Lords, I stand to be corrected, but as far as I am aware it is a novel approach. Not only could it lapse and be put in suspension; it could be revived, lapse again and be revived again. We are not switching on and off light bulbs. There are quite important issues here and I am not sure that these procedures are designed to give them proper weight. That is why we argue that primary legislation should be the way of dealing with the issue, if it is felt that the provisions for a fixed-term Parliament are not working and should not be the basis for the future.