Electoral Registration and Administration Bill

Debate between Lord Falconer of Thoroton and Lord Norton of Louth

Monday 14th January 2013 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, this amendment—if it was passed— requires the Government to report to Parliament annually, within two months of the end of the financial year, on what money has been made available to local authorities to meet the costs of the transition to the new register which will be under IER, and what safeguards have been put in place to make sure that the money has been spent on the specified task. I do not think it would be properly regarded as ring-fenced money but it would mean that the Government would be identifying the amounts of money that they expected to be seen spent on the transition and then there would be a report back afterwards to indicate what had happened to that money.

This is important because I think everybody in the House, and certainly in the other place, is aware of the importance of IER being made to work. I think most people would accept that whether IER works properly or is introduced in a way that does not leave too many people off the register will depend to some extent on the resources that are made available by central government to local authorities to ensure that happens. We know local authorities are pressed in a whole variety of ways at the moment because of the current economic position. I think it is sensible to try to protect the position that at least there is a requirement to report on both the money envisaged and then what happened to it. I beg to move.

[Lord Norton of Louth]

My Lords, I have a slight problem with the amendment moved by the noble and learned Lord. I may have missed something, but he said that the amendment provides that the Government shall report to Parliament annually, so there is no limit on the number of years—presumably it is in perpetuity—but they would be reporting on something transitional. Presumably there should be some time limit set in the amendment, otherwise there is redundancy built in to what is being asked in terms of providing material that becomes irrelevant once the transition is complete? Or have I missed something?

[Lord Falconer of Thoroton]

One would hope so. I do not know how long the transition is going to take. It is clear from the way that everybody has spoken that probably in the first publication of the register where IER is compulsory—1 December 2015—it will not be complete. I have no idea how long it will go on after that, therefore at the moment I am not minded to put in a terminus date. At this stage, I cannot see any objection to the principle. This may surprise you as I am not intending to push this to a vote, but if the principle were accepted—which I hope it will be—then I think the right thing to do would be to talk to the Government to work out the best way to craft the detail.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Norton of Louth

Tuesday 29th March 2011 Lords Chamber

[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.

--- 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

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Norton of Louth

Monday 21st March 2011 Lords Chamber

[Lord Norton of Louth]

My Lords, I am grateful to noble Lords who have spoken in the debate which, despite the late hour, has been quite useful and has teased out the reasons for the provision. Perhaps I may begin by briefly correcting my noble and learned friend Lord Wallace of Tankerness on his reference to the German example. He said that the Government there had engineered a vote of no confidence in themselves. In fact, they engineered defeat of a motion of confidence, which is not the same thing and is relevant to discussions that we will have later on how one defines a vote of confidence.

Reference was made earlier to the Constitutional Reform and Governance Act and pre-legislative scrutiny. I served on the Joint Committee on the draft Constitutional Renewal Bill, as it then was. The title was later changed because I and others pointed out that nothing was being renewed by the Bill. My point is that the Joint Committee met for two hours twice a week for nearly three months. The more we discuss this Bill, the more convinced I am that it would have benefited from extensive pre-legislative scrutiny. The problem with much of the Bill is that it is not grounded in evidence. It is not exceptional in that respect but, as we have heard, this part of the Bill was the product of negotiations by politicians who are not necessarily noted for their knowledge of our constitutional arrangements.

Subsection (1) is highly unusual—certainly in comparative perspective. My noble and learned friend said that he would write to me with details of where this provision applies elsewhere. It may be helpful if I tell him that I can save him a letter. The noble and learned Lord, Lord Falconer of Thoroton, thought that we were unique in this provision. That is not quite the case. Lithuania, Mongolia, Tajikistan and Turkmenistan have a similar provision. I wanted confirmation that the Government were unaware of that.

[Lord Falconer of Thoroton]

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

[Lord Norton of Louth]

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

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

--- Later in debate ---

[Lord Norton of Louth]

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

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

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

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

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

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

[Lord Falconer of Thoroton]

First, on the amendment of the noble, Lord Marks, I agree with the noble Lord, Lord Norton of Louth. It fails to deal with two particular problems. First, when a Government lose a vote that is obviously a vote of confidence—if the Government had been defeated on the Motion authorising the use of force in Iraq, that would plainly have been a vote of confidence—it would be wholly wrong if there then had to be a vote of no confidence thereafter.

Equally, there have been votes which the Government lose, for example, the vote on Maastricht in 1992, which they then followed—in my view, entirely correctly —with a Motion tabled by the Prime Minister on a vote of confidence in the Government. If that vote had resulted in the Conservative Government being defeated on the vote of confidence, which was the traditional method of dealing with that, the consequence should have been not that there then needed to be a vote of no confidence from the Opposition—which, as I understand it, is the view of the noble Lord, Lord Marks—but that there should be a general election, or a 14-day delay, which we shall debate later.

Those two examples would not be covered by the proposal of the noble Lord, Lord Marks, and therefore lead to dealing, on one view, with the collusion argument but strengthen the other risk in the Bill, which is that a Government who genuinely have lost the confidence of the Commons are able to stay in power. Just as the noble Lord, Lord Marks, gets one piece of the wallpaper on the wall, another falls off.

On my amendment, I could not have asked for more from the noble Lord, Lord Norton of Louth. It is my view that in relation to a vote of no confidence, there is no possible mechanism one could adopt which would allow anyone to go behind the motivation of why a particular group of people voted in favour. That is an impossible task. It is like the vote of 100 in the Commons voting for an all-elected House of Lords. It has been suggested that that was a vote in order for there not to be an all-elected House of Lords. But one cannot go behind the vote; one must accept it at face value.

I tabled the amendment simply to illustrate the correctness of the conclusion of the committee on which the noble Lord, Lord Norton of Louth, sits, chaired by my noble friend Lady Jay, that there is no ability to control a vote of confidence and that a Prime Minister with a majority can, if he or she wishes, engineer a situation where he or she loses a vote that is a vote of no confidence, even if not so called.

I have a third objection to the amendment tabled by the noble Lord, Lord Marks. Is it such a bad thing that, had these provisions been in place, it would have been open to, for example, Mr Heath to go to the country not by engineering in some deceitful way but by simply saying that he thought that the Government needed to have the confidence of the people to go on with the particular stance they were taking? He would therefore have put down a Motion of confidence in his own Government with a view to there being an election. Is that a bad thing? What is the view of the Government on that? These are probing amendments in Committee. The amendment tabled by the noble Lord, Lord Marks, covers one situation, but it leaves a lot of others uncovered. I agree with the noble Lord, Lord Norton of Louth.

I tabled my amendment simply to establish the point made by the noble Lord, Lord Norton. You cannot go behind people’s motivation, which means that the Select Committee is probably right. The Government of the day can always have an election whenever they want on a majority of one. Do the Government think that is necessarily a bad thing?

--- Later in debate ---

[Lord Falconer of Thoroton]

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

[Lord Norton of Louth]

My Lords, I plan to be extremely brief, as I have classes to teach in Hull shortly after 9 o’clock in the morning.

I wish to raise one point arising from what the noble Lord, Lord Howarth, has said. I have considerable sympathy with the argument that he is developing that either the Speaker’s certificate goes out of the Bill completely or, if it stays in, it needs to be refined. He was teasing out the point made by the Minister that the Government would expect the Speaker to indicate in advance whether he would certify a Motion as one of confidence. So, on the basis of that expectation, I wish to raise this question. One could raise it on any serious Bill but I have used before the example of the European Communities Bill in 1972, where the Prime Minister, Edward Heath, said, “If we lose this, the Government cannot sensibly continue”. If, in a situation like that, the Speaker took a contrary view and declined to certify the Bill as one of confidence but the Prime Minister said, “This is essential to our programme and, if we are defeated, we shall resign”, what would happen?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Norton of Louth

Wednesday 8th December 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, it strikes me that the amendment prompts three questions. The first is whether we should change the date, and that is what my noble friend Lord Hamilton and some others have addressed. The second is whether this is a question that is appropriate to be included in the referendum. That is the substantial point that we should address. There are various problems in including this question. One has already been alluded to: it is a limited choice. It may be that electors prefer to go on a Monday or a Sunday, so we do not know whether providing this dichotomous choice will reflect the actual preferences of electors, as they are being offered too limited a choice. Another problem—it is a technical point—concerns what would happen if electors expressed a preference for Saturday rather than Thursday as far as the Bill is drawn. We know what will happen if they vote yes on the question of AV, but the Bill is merely silent as to what the consequence would be, so in effect it would be akin to an opinion poll.

The third and most important point is why we should have this question rather than others. We will be looking at other questions to be included, but priorities are important. If we start adding to it, there is a danger of overdoing it, and I am not sure this question should take priority for the simple reason that we could find out through an opinion poll. I think that that would be sufficient for these purposes.

[Lord Falconer of Thoroton]

My Lords, this has been a very interesting debate. It is one that is had practically every time we have any Bill that mentions voting. The facts are interesting. Since 1935, every general election has been held on a Thursday. In 1931, it was held on a Tuesday. In 1922 and 1924, elections took place on Wednesdays, and in December 1918, as my noble friend Lord Snape said, election day was a Saturday, so weekend voting is not a new idea. There is no statutory requirement for elections to held on Thursdays. They could be held on any weekday except Christmas Eve, Christmas Day, Good Friday, a Bank Holiday, or any day appointed for public thanksgiving or mourning. It was in 1983 that Saturday and Sunday were also designated as dies non under the parliamentary election rules in the Representation of the People Act. This amendment gives an opportunity to debate whether Saturday should be a dies non, but not Sunday.

To deal with the point made by the noble Lord, Lord Norton of Louth, I emphatically think this is obviously not a question for a referendum. If we start voting in a referendum on whether it should be Thursday or Saturday, goodness knows what we will then be voting on in a referendum. I am opposed to it being in a referendum. Referendums should be kept for constitutional questions. I know from talking to my noble friend Lord Snape that that of course was not his intention. His intention was that we should debate the issue in relation to whether it is appropriate. I agree completely with the approach taken by my noble friend Lord Rooker on whether it increases turnout. We all agree that we should try to increase turnout. Attractive as the approach taken by the noble Lord, Lord Renton of Mount Harry is, that he has never had any trouble on Thursdays—because he has always won his elections, presumably, that is why he likes Thursday—I am not necessarily sure that should be the bar to it.

I agree with the noble Lord, Lord Norton of Louth, that we should look into the question. In fact, pilots have taken place in local elections in relation to Saturdays and it would be helpful to hear from the Government what the evaluation of those pilots was and what the conclusion in relation to it is. Ultimately the test is the one that my noble friend Lord Rooker sets: does it increase turnout? If it does, then I hope that the Government will think about doing it seriously.