Fixed-term Parliaments Bill

Lord Howarth of Newport Excerpts

Monday 16th May 2011 Lords Chamber

Moved by

[Lord Howarth of Newport]

20: Clause 2, leave out Clause 2 and insert the following new Clause—
“Early parliamentary general elections
(1) An early parliamentary general election is to take place if—
(a) the House of Commons passes a motion in the form set out in subsection (2), and(b) if the motion is passed on a division, the number of members who vote in favour of the motion is a number equal to or greater than two thirds of the number of seats in the House (including vacant seats).(2) The form of motion for the purposes of subsection (1)(a) is—
“That there shall be an early parliamentary general election.”(3) An early parliamentary general election is also to take place if—
(a) the House of Commons passes a motion in the form set out in subsection (4), and (b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form set out in subsection (5).(4) The form of motion for the purposes of subsection (3)(a) is—
“That this House has no confidence in Her Majesty’s Government.”(5) The form of motion for the purposes of subsection (3)(b) is—
“That this House has confidence in Her Majesty’s Government.”(6) Subsection (7) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.
(7) If a parliamentary general election is to take place as provided for by subsection (1) or (3), the polling day for the election is to be the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister (and, accordingly, the appointed day replaces the day which would otherwise have been the polling day for the next election determined under section 1).”

[Lord Howarth of Newport]

My Lords, the new clause inserted by Amendment 20 would replace the existing Clause 2. It is focused on three purposes. It removes from the Bill as received from the other place ambiguities and vagueness about what is a Motion of no confidence and what is a Motion of confidence. It protects the Speaker of the House of Commons by removing him from the process of determining what is a Motion of no confidence or a Motion of confidence, and it improves the protection of parliamentary privilege. I see it as an exercise in damage limitation.

This new clause, unlike other new clauses tabled by noble Lords to replace Clause 2, makes no other changes to the Bill. It would do nothing to thwart the essential purposes of the Government in the Bill. It retains the two-thirds provision and the 14-days provision which the Government want. I have made plain in other debates that I do not like these provisions and, indeed, I think the whole undertaking of this Bill to establish fixed-term Parliaments is a bad idea, but in this House, presented with the will of the House of Commons, those of us who do not like it have, I fear, to accept that it is a bad idea whose time has come.

If the House accepts the new clause unamended, the legislation will, I submit, provide for the principles that the Minister told us in Committee the Government wish to establish. He said that,

“within a context of having a fixed term, there should nevertheless be a mechanism to trigger an early election if there has been deadlock in the other place, if a Government lose confidence, and if no Government can be formed who maintain confidence. There is an argument for having consensus about Dissolution and proper provision being made for it, as well as for trying to minimise the potential for abuse of the trigger on the part of the Executive and to get clarity as to what constitutes a vote of confidence. There may well be circumstances in which a vote of no confidence does not necessarily have to trigger a general election. How do we clarify those circumstances in a way which is acceptable? These are the general principles and issues which I want to put flesh on”.—[Official Report, 29/3/11; col. 1215.]

I believe that this new clause is also consistent with the conclusions of your Lordships’ Select Committee on the Constitution. I am most grateful to the noble and learned Lord the Minister and his colleague Mr Harper for meeting me and the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin and the noble Lord, Lord Pannick, who have put their names to the new clause. Of course, I have drawn enormous encouragement from their doing so. The Minister was characteristically courteous and constructive at the meeting. In light of our productive discussion, the new clause we originally tabled was somewhat redrafted and improved. I was delighted when the Minister added his own name to the new clause.

Clause 2(2) as drafted—concerning Motions of no confidence and Motions of confidence—contains problematic ambiguities and vaguenesses. These were helpfully described by Dr Anne Twomey in her written evidence to your Lordships’ Select Committee on the Constitution, at paragraphs 4.11 and 4.12 on page 152 of the compendium of written evidence. Such ambiguities do not matter where constitutional procedures are not statutorily prescribed. Indeed, they may be beneficial as they allow the determination of who is to be the Government to happen in response to fluctuating political realities. But in a statutory system, they are dangerous, creating a combination of uncertainty and inflexibility.

To the observations made by Dr Twomey, I would add that there is a further crucial vagueness in Clause 2 as drafted, in that there is no legal definition either already in existence or provided by the Bill as to what is a Motion of confidence or no confidence. The reason why this is so crucial and dangerous is that, as the Bill stands, it could in some circumstances lay the onus of interpretation, and therefore of decision as to the fate of the Government and whether there is to be a general election, on the Speaker. Although in some instances it would be entirely clear from the wording of the Motion that the vote was a confidence or no confidence vote, it would by no means necessarily be so. As the invaluable brief from the Library of the House of Commons says:

“Yet, despite their central importance, there is no certainty about the rules on the form and applicability of confidence motions in the UK Parliament, as it is established by convention rather than by statute or standing order of the House … There is no standard formulation for confidence motions”.

Motions may be regarded as Motions of censure or confidence according to particular circumstances. A Motion to reduce a Minister’s salary was regarded as a confidence Motion in 1895. Motions in two debates on Suez in 1956 were regarded by the House of Commons as confidence Motions, though neither the substantive Motions nor the amendments were formulated as Motions of no confidence or Motions of confidence. In 1976, an adjournment Motion was treated as a confidence Motion following the defeat of the Government on their public expenditure White Paper. In 2003, Mr Blair made clear only after the debate and the vote that he regarded the vote on the Iraq war as a confidence vote. It is very hard to see how the Speaker could possibly have issued a certificate in some of these situations.

Under our existing arrangements, it is for the Prime Minister and the House of Commons to judge whether a Motion is a matter of confidence. Under the system that the Government have hitherto proposed, it would be for the Speaker. This, as the noble Baroness, Lady Boothroyd, explained to us compellingly in Committee, would be a major extension of the Speaker’s role and could be a very dangerous one. It could politicise the role of the Speaker, requiring the Speaker to decide a supremely contentious, vexed and fraught political issue. In Committee, the noble Lord, Lord Martin, described the vicious pressures that could be expected to be brought to bear on the Speaker in such circumstances. If the Speaker were perceived to have taken sides, his reputation as a servant of the whole House and his reputation for impartiality and integrity could hardly survive. Not only would the reputation of the individual Speaker suffer, but at a time when we all desperately want to see the reputation of Parliament regained, it would also affect the very office of the Speaker, which personifies the institution of the Commons. The new clause therefore omits the requirement for the Speaker to issue certificates. I am very pleased to see that none of the amendments now on the Marshalled List relating to Clause 2 seeks to preserve the requirement for the Speaker to issue certificates.

--- Later in debate ---

[Lord Howarth of Newport]

Does the noble Lord recognise that there could be a legitimate concern since he provides that an early general election is also to take place if, on a specified date, the House of Commons has negatived a Motion that this House has confidence in Her Majesty’s Government? Does that not provide too tempting an avenue for the Prime Minister to contrive a vote of confidence, and to contrive to lose it? The noble Lord spoke earlier of the need to avoid exploitation; this is trying to do that.

[Lord Norton of Louth]

The noble Lord anticipates what I am coming on to. That is what I want to deal with. That is my whole point about this question. I know that some noble Lords would find it attractive if we undermined the Bill in this respect. However, if we proceed on the basis of what the Bill seeks to achieve, we need to identify any provision that could be exploited by the Government. The amendment that comes closest to being foolproof in this respect is Amendment 20 in that, apart from an early election Motion, the only way to trigger an election is through the House passing a Motion of no confidence in the Government. As the noble Lord touched on, there is no provision for the Government to move a Motion of confidence and then invite their own supporters to vote against it, as has happened in Germany and could, as he says, happen under my amendment and that of the noble Lord, Lord Armstrong.

A Government could also trigger an election under Amendment 22ZB by the Prime Minister declaring any Motion one of confidence and ensuring that government MPs voted against it or stayed away to ensure that it was defeated. However, Amendment 20 is not completely foolproof. There is no restriction on who can table a Motion of no confidence. It could be tabled by a government Back-Bencher, possibly at the behest of the Prime Minister, thus enabling the Government to engineer their own defeat. The amendment of my noble friend Lord Cormack provides that a Motion of no confidence may be moved only by the Leader of the Opposition. That may be deemed unduly restrictive, but it prevents the provision being used by the Government for their own benefit—the very point that the noble Lord, Lord Howarth, mentioned.

However, although my noble friend’s amendment deals with what some may see as a loophole, it introduces a loophole of its own. Under subsection (1)(b), a Prime Minister could simply resign, and, if the Opposition take over, move a vote of no confidence—the outgoing Prime Minister presumably assuming the mantle of Leader of the Opposition—or deny them the opportunity to govern by voting down whatever they bring forward.

In short, each amendment has its merits, though none is ideal in terms of the criteria that I have adumbrated. That is more or less bound to be the case given that the criteria are not necessarily compatible. We are moving away from seeking to retain the existing conventions in favour of greater certainty.

My amendment seeks to provide for all, or at least more, eventualities than that covered by the amendment in the name of the noble Lord, Lord Howarth, and to enable the Government to seek the confidence of the House. As I say, I appreciate that may be open to abuse by a Prime Minister, but the risk has to be offset against the value of retaining the existing practice.

I commend my amendment to the House but do so in the recognition that the ideal may not be one of these amendments but one drawn from what is before us. The amendment in the name of the noble Lord, Lord Howarth, to which my noble and learned friend the Minister has added his name, is certainly a massive improvement on what is in the Bill. We may be able to tweak it further, but our deliberations on the clause show what can be achieved through debate and constructive discourse. If we are not quite there, we are very close.