Fixed-term Parliaments Bill

Lord Forsyth of Drumlean Excerpts

Tuesday 29th March 2011 Lords Chamber

[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.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not see the irony in arguing the case for this on the basis that it is a tried-and-tested procedure while turning upside down the whole tried-and-tested procedure of how we decide when we are going to have a general election?

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

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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.

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[Lord Cormack]

I am deeply grateful both for the correction and for the explicit example. Of course, we all know, too, that the Ulster Unionists voted both ways, because they did not want to be seen either to have propped up an unpopular Government or to have defeated a Government who had given concessions in Northern Ireland. All these things can happen.

A clear-cut defeat followed by the dignified recognition of that defeat and taking the case to the country is how we do it in the United Kingdom and it is how we should continue to do it.

In proposed new subsections (3) and (4) in this amendment, I say:

“If the provisions of subsection (2) are met, the Speaker of the House of Commons will issue a certificate to certify this”.

This is not a discretionary thing; it is on a par with the money resolutions. I took clerkly advice when I was drafting this amendment and was assured that this provision would in no sense place the Speaker in an invidious or difficult position. The Speaker of the day would have no choice other than to sign the piece of paper. The noble Lord, Lord Howarth, has an amendment to delete subsections (3) and (4) in my amendment, but while I admire his vigilance I do not think that the deletion is necessary, because the Speaker is not being put into a difficult or invidious position.

[Lord Forsyth of Drumlean]

Can my noble friend help me if I ask the same question that I asked of my noble friend on the Front Bench? Why is the Speaker’s certificate necessary?

[Lord Cormack]

I was advised by the clerks that this would be the tidy way of doing it—the certificate is issued, it is automatic and it would be expected. However, I am not desperately wedded to this proposal. What is truly important is the first part of the proposed new clause, subsections (1) and (2). I was merely saying that proposed new subsections (3) and (4) do not place the Speaker in the same invidious position that the provisions that we were debating earlier today do. I hope that your Lordships’ House will feel that this clause or something very similar—because, as I said, it is not perfect—would be a vast improvement on what we have, which is complicated, convoluted and thoroughly unnecessary.

If we are to have a Fixed-term Parliaments Bill, it is the duty of this House to try to ensure that it is as compatible with our constitutional arrangements in this country as it can be. Many of us feel that all that was really needed was a declaration of intent to serve until May 2015. I, for one, applaud that declaration of intent. However, if it is to be given legislative form, for whatever reason, let it be a legislative form that is both comprehensive and comprehensible; let it be a legislative form that people can understand in both Houses and in the country beyond. Do not let us connive in any arrangements that would allow a discredited Government to indulge in endless days of horse-trading to try to sustain themselves in office. Do not let us give to those who might practise the dark arts of sinister persuasion a power to redress a vote that the House of Commons has already passed. I beg to move.



Amendment 51 (to Amendment 50)

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[Lord Forsyth of Drumlean]

Perhaps I have this wrong, but my understanding of the present position is that the Government may be defeated on a serious matter such as whether to go to war and may take the view that it is not a confidence motion. However, in such circumstances, the leader of the Opposition would table a confidence motion, which takes precedence over all business. If there is an argument about whether the issue is a confidence motion, it is up to the Opposition to bring forward a confidence motion on which there will be a vote, so why is this such a big problem?

[Lord Howarth of Newport]

I would very much like to be comforted by the noble Lord’s suggestion, but we are in an evolving state of affairs. I am not as confident as he is that the traditional formulations and conventions will necessarily be the only ones that the public will find acceptable in the future.

We have to think of what the role of the Speaker will be when it is contentious whether a particular vote may have this status. Let us imagine what would have happened if the Speaker had been required to issue a certificate as to whether, on 18 March 2003, the House of Commons had passed a motion of no confidence in Mr Blair’s Government, had that Government been defeated in the vote on the Iraq war. Mr Blair said later that he regarded that vote as a confidence vote, and that had he been defeated he would have resigned. How could the Speaker have certified in advance in those circumstances when the Prime Minister himself had not made it clear in advance that that was to be a confidence motion?

However, that is what the Minister, Mr Harper, confidently expects would happen. He said to the Constitution Committee:

“Our view is that the Speaker would make it very clear before such a vote took place whether it was a vote on which he would issue his certificate”.

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I think my noble friend has produced a new clause that provides the basis for determining what constitutes a Motion of no confidence. I believe it is essential that we should include such a provision in the Bill. It injects the necessary clarity and avoids miring the Speaker in controversy. If my noble friend the Minister is not able to accept the new clause, it is incumbent on him to come up with an alternative that improves on it. Given a choice between my noble friend’s new clause and the Bill as it stands, it is a case of no contest. This amendment, or one close to it, is essential.

[Lord Forsyth of Drumlean]

My Lords, the hour is late so I have no wish to detain the House. First, I would like to congratulate my noble friend on this amendment, which I think is a great improvement on Clause 2. I have been reading Clause 2 again and it is like some kind of pre-nuptial agreement. If you look at the reasons behind it, clearly this is a clause put together by two parties who are not quite sure whether this marriage is going to work out. The reason we have the provision of more than a simple majority is clearly because the Liberal partners in the coalition were worried about the Prime Minister cutting and running and calling an early election when they were very unpopular. You can see how the architecture of this Bill has been created and it has nothing whatever to do with the proper functioning of the House of Commons.

Clause 2 is completely unnecessary, but I respect my noble friend’s very constructive attempt to try to go with the grain and not be too confrontational, as perhaps I am being now, about this clause. I also agree with the noble Lord, Lord Howarth, that my preference would be to leave out the proposed new subsections (3) and (4) for the reason that, as the noble Lord, Lord Martin, has so eloquently explained, we should not be putting the Speaker in a position where he is involved in this.

Throughout the evening my noble and learned friend Lord Wallace has been very patient and very good and very constructive. I have asked him on several occasions why we need to have the certification process at all. It goes back to the pre-nuptial agreement. Normally, if the Prime Minister wants to call an election, people accept that, but people have thought we cannot have the Prime Minister doing it so we have to have somebody else. You can see them sitting in a room thinking, “Well, who could we have? Well, we will have the Speaker”. It has not been thought through. It is not necessary. We do not need the Speaker to sign a certificate saying that a Motion of no confidence has been passed.

Where I take slight issue—I support my noble friend’s amendment, but it is not perfect—is with the list of what constitutes a Motion of no confidence. As has been pointed out by the noble Lord, Lord Howarth of Newport, I do not think that you can have a Bill,

“defined by the Prime Minister of the day as being essential to his or her administration continuing in office”.

My noble friend Lord Tyler is absolutely right about that. If a Bill that was central to the Government’s programme, a flagship Bill, was defeated in the House of Commons, any leader of the Opposition worth his salt would the very next day table a no-confidence Motion, which would take precedence over all other parliamentary business under the rules and conventions of the House of Commons. Presumably, Members would either vote for or against that Motion. I do not see the need for this list.

In my noble friend’s amendment, I like the bit that says, “Leave out Clause 2” and I like the bit that says:

“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”,

but then I think, “Why do we need any of the rest?”. I would be very grateful if, during the course of these proceedings, we could answer these very simple questions. You do not need the Speaker to sign a certificate and, if the House of Commons can pass a Motion of no confidence, that Motion does not need to be moved by the leader of the Opposition. But if the House of Commons no longer has confidence in the Government, there has to be a general election. That is a tried and tested thing that has continued for years.

I agree, too, with those who have said, “What is the point of this Bill?” If a Prime Minister wants to have a fixed-term Parliament, he can say, “I am not going to call a general election till the fifth anniversary of the previous election, or the last possible moment”—and there we have it. Normal conventions will apply.

We have this Bill, but it is a muddle, and if we are going to proceed with it we need something like my noble friend’s amendment, which leaves out Clause 2. If we could do away with the list or reduce its scope—perhaps continuing to include the Finance Bill but certainly taking away the requirement on the Speaker to issue a certificate—we would end up back where we started. The great advantage to where we started is that we know that it has worked and it has worked for centuries.

[Lord Norton of Louth]

Before my noble friend sits down, I shall answer his question about the list. The reason why we need the list is because it has been our understanding about what a vote of confidence is for about a century. He is now being extremely radical in trying to limit the list in saying that only in certain circumstances would there be an explicit vote of no confidence. That is quite a constitutionally radical proposal.

[Lord Forsyth of Drumlean]

I stand corrected by my noble friend, who is very expert on these matters. However, a Motion that says, “This House has no confidence in Her Majesty's Government” is absolutely clear, and it would trigger an election. In the context of this Bill, with a fixed-term Parliament, it is going to change. I accept that, because the nature of the Parliament will have changed. But I would much prefer something clear-cut, simple and explicit. If you want to bring down the Government, you have to pass a Motion of no confidence. That is absolutely clear. If such a motion is passed, the Prime Minister has to go to the country.

I was going to sit down, but my noble friend has set me off again. To turn to a point made by the noble Lord, Lord Tyler, the idea that a Prime Minister should somehow be prevented from going to the country to get the consent of the people for what he is trying to do, to call a general election, is also a deeply worrying change to our constitutional pattern. But I sit at the feet of the noble Lord, Lord Norton of Louth, and I am perfectly prepared to alter my view and go along with this amendment, at least in part under his instruction, because it is a far better thing than Clause 2 as it stands.

I hope that my noble and learned friend Lord Wallace of Tankerness will accept the good advice that has been given him tonight and that at a later stage we will be able to discuss something that is more practical and workable and does not threaten the integrity of the office of Speaker of the House of Commons or the ability of the House to hold the Executive to account.

[Lord Maclennan of Rogart]

This debate has demonstrated the need for the Government to reconsider Clause 2. I am very grateful to all my noble friends and all those who have supported the amendment for raising the issue again and in a different context from the previous debates. The intention is to remove the opportunity for Governments to fiddle with arrangements in any way, and that is a desirable purpose. The amendment also seeks to clarify the circumstances in which a vote of no confidence is deemed to justify the holding of an election. However, although noble Lords have raised the debate, I do not think they have concluded it. There are defects in the drafting of Amendment 50 that need to be considered. No one has suggested that this is a perfect drafting, but I would like to suggest two or three points that could be considered when the Government come forward at a later stage.

The first point is that proposed new subsection (2) states:

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

does certain things, but those things do not appear to be an exclusive list. It would still allow other circumstances to occur that enabled it to be said after the event that there had been a vote of no confidence. The rubric of statutory interpretation that springs to my mind is the Latin tag, “inclusio unius est exclusio alterius”. That might be the answer to this if that were still the law and still the rule of statutory interpretation, but it is not sufficiently clearly the case to avoid the possibility of a further circumstance being deemed to have been a vote of no confidence.

It also seems to me that there has been a slight conflation between a vote of no confidence and the inevitability of a Government’s fall followed by an election. I listened to the noble Lord, Lord Norton of Louth, with great respect, as I always do, but it seems to me that, even if the Wardlaw-Milne Motion of no confidence had been carried—and of course it was not—it would have been perfectly understandable in wartime if that had led to the demise of the particular Prime Minister or a significant change of Government without any election being held. I think the constitution was sufficiently flexible at that time to make it likely that that would have been the outcome. What we are considering here is the circumstances that trigger an election, and I think that needs to be put beyond doubt. I do not believe, even in the case of the European Community Bill in 1972, that despite what the Prime Minister of the day said it would have inevitably resulted in an election. It seems to me that it might have led to the departure of the then Prime Minister. However, he could easily have been told that there were others who would have been prepared to take his place and preside over the parliamentary majority that existed.

If we want an escape clause—and clearly an escape clause is necessary, even with a fixed-term Parliament—in a constitution that is prime ministerial and not presidential, we must have the possibility of having a vote of no confidence. However, I think the better solution to that is the one proposed already by my noble friend Lord Tyler, which is that the Motion of no confidence should come from the leader of the Opposition. If the Government appear to the party in government itself to be in a shambolic condition, it does seem highly probable that a leader of the Opposition would seize the opportunity to declare that the House has no confidence in the Government. I hope that that is the line that will be taken by the Government in reconsidering this clause, but that the case for reconsidering it is strong I have no doubt. Clause 2 as it stands is ill defined and gives no certainty on what the circumstances are within that two-week period which could lead to the holding of a general election. Amendment 50 is a good stab at trying to clarify which issues need to be addressed. The debate tonight will have given my noble and learned friend Lord Wallace of Tankerness a lot to think about and to discuss further with his colleagues, as I believe is definitely necessary.

[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.

[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.