Fixed-term Parliaments Bill

Lord Norton of Louth Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Norton of Louth]

My Lords, by the end of the speech of the noble and learned Lord, Lord Falconer of Thoroton, I had almost forgotten that he had opened it by reminding us that the Labour Party supports fixed-termed parliaments. Like the noble Lord, Lord Rennard, I was surprised that he omitted to say how he would legislate for fixed-term parliaments. I look forward to the noble Lord, Lord Bach, telling us.

I will be very happy to subject the Opposition’s Bill to the same critical scrutiny that I now plan to bring to the Government’s Bill. I share the scepticism of my noble friend Lord Cormack, a fellow son of Lincolnshire, who I have known for well over 40 years since I was a young and precocious schoolboy.

I propose to discuss the Bill in terms of process and substance. I begin with process and the Government’s response to the report on the Bill from the Constitution Committee of your Lordships’ House. I declare an interest as a member of the committee. In our report on the Bill, as various noble Lords have noted, we drew attention to the speed with which it had been prepared. It was introduced with no Green Paper, no prior consultation and certainly no formal pre-legislative scrutiny. We had to move extremely quickly, as did the Political and Constitutional Reform Committee in the other place. We also made the point that in recent times there has been little public discussion of fixed-term parliaments, although the issue has been on the constitutional reform agenda for the past 20 years. The Bill, we further recorded, appeared to be the product of short-term political expediency rather than the result of a mature consideration of enduring constitutional principles or sustained public demand.

How, then, did the Government respond to these points? They claim in paragraph 3 that the committee had heard evidence from constitutional experts that,

“the concept of fixed-term Parliaments has been considered and debated by politicians and academics for many years and in great detail”.

Really? Some Private Members’ Bills have been introduced on the subject—three in the past 10 years—but what academic debate has there been? Perhaps the Minister can tell us what academic literature, since Owen Hood Phillips’s Reform of the Constitution, published in 1970, has addressed the issue of fixed-term parliaments and done so in any detail, never mind great detail? There is some work by Robert Blackburn, not least a section in his book, The Electoral System in Britain, but, apart from that, what literature is there and to what extent has that literature engendered debate? Can my noble and learned friend identify any substantial academic debate that has taken place?

The claim that there has been such a debate is taken as the basis for the Government not accepting that there has been no mature assessment of the constitutional principles relating to fixed-term parliaments. Perhaps, then, my noble and learned friend can explain why this Bill derives from a coalition agreement that said that there would be a “binding Motion” placed before the House of Commons stating that the next election would be held on the first Thursday of May 2015? At what point was it realised within government that there was no one to be bound by such a “binding” Motion?

The agreement also stated that legislation would provide for Dissolution if 55 per cent or more of the House voted in favour. Any suggestion that this derived from any clear constitutional principle is somewhat undermined by David Laws in his recent book, 22 Days in May, where he writes:

“After some work on Ed Llewellyn’s calculator, and consideration of by-election risks, it was decided that a 55% vote of MPs would be required to provide a dissolution. This was just greater than the combined opposition and Lib Dem parliamentary parties, thereby safeguarding the Conservative position”.

No doubt it was a more mature assessment of constitutional principles that led to the threshold being set in this Bill at two-thirds of MPs voting rather than 55 per cent.

The response also claims:

“It is also wrong to say that there is not public support for the principles of fixed-term Parliaments. There was a very strong demonstration at the 2010 general election that political reform was a high priority for the electorate”.

The committee report did not refer to public support—we know that people when asked say they support fixed terms—but to “sustained public demand”. Again, can the Minister kindly provide evidence for that claim? Were fixed-term Parliaments really an election issue? I remind him of what Dennis Kavanagh and Philip Cowley say in The British General Election of 2010. They note that political reform was, unusually, an issue but go on to say:

“But focus groups reported that media discussion about different electoral systems, hung parliaments and coalitions passed over the heads of voters”.

Perhaps the issue of fixed-term Parliaments did not go over their heads and they did engage, in which case perhaps my noble and learned friend can provide empirical evidence for that claim.

The Government in their response also refute any claim that the Bill is being rushed. We are told that the Bill was introduced in the other place on 22 July last year and did not complete its Commons stages until 18 January of this year. That may be because of the delay in scheduling the Bill. It had its Second Reading on 13 September and had three days in Committee, the last of which was an extra day that had to be allocated. We are told that at Report stage,

“all amendments which were selected for debate were in fact debated in full”.

The operative words there are,

“all amendments which were selected for debate”.

This is by way of failing to engage properly with the Constitution Committee’s observation that, save where there are justifiable reasons for acting more quickly, the proper way to introduce a constitutional reform proposal is to publish a Green or White Paper, or a draft Bill, and to take the comments and concerns raised in the process of consultation and pre-legislative scrutiny into account in the legislation that follows. As it stands, there has been no time for thorough scrutiny and examination. Why in any event is there a need to move so quickly? It is not like the Parliamentary Voting System and Constituencies Bill where there was an obvious time constraint. In this case, as the noble Lord, Lord Armstrong, said, it is sufficient for the Prime Minister to announce that he will not be inviting the Queen to dissolve Parliament until May 2015. There is then the rest of the Parliament available to get the Bill through. I shall be interested to hear why this is a measure regarded as requiring such speedy passage.

I turn to the substance of the Bill. I have a particular concern with the definition of a vote of confidence in Clause 2(2). As we have already heard, an early general election is triggered if the Speaker of the House of Commons certifies that on a specified day,

“the House passed a motion of no confidence in Her Majesty's Government (as then constituted)”

and a period of 14 days elapses without the House passing any Motion expressing confidence in any Government of Her Majesty.

As has been noted, there is no definition of what constitutes a vote of no confidence. The elephant definition is assumed—that is, one knows one when one sees one, or rather that the Speaker knows one when he sees one. But will he? A vote of confidence takes different forms. It has not been confined to an expressly worded Motion. I did research looking at every vote for most of the 20th century. The Bill stipulates that a certificate is issued when the House has passed a Motion of confidence. As the noble and learned Lord, Lord Falconer, asked, what happens if the Government introduce a Motion of confidence and it is defeated? The House has not passed a Motion of no confidence; it has negated a Motion of confidence.

However, I wish to focus on those Motions which the Government believe are so crucial that the Government cannot sensibly continue if they are defeated. I remind my noble and learned friend what the then Prime Minister, Edward Heath, said at the conclusion of Second Reading of the European Communities Bill in 1972. If the Government lost the vote, he said,

“this Parliament cannot sensibly continue”.—[Official Report, Commons, 17/2/72; col. 752.]

There have been a number of Bills of similar importance since that time.

If this Bill is passed and a similar measure comes before Parliament—one crucial to the Government’s programme—what does the Speaker do? Bear in mind that the situation is not comparable to the Speaker certifying a money Bill. There is a statutory definition of a money Bill and, for quite understandable reasons, the Speaker waits until a Bill has cleared the Commons before certifying it as a money Bill. This is all clearly explained in the Constitution Committee’s recent report, Money Bills and Commons Financial Privilege. Under the Bill before us, the Speaker will have to act prospectively without any statutory guidance. The Government’s response to the Constitution Committee report states:

“Where there is doubt about whether a motion is a no-confidence motion, we would expect the Speaker to inform Members before they vote on it whether, were it to be passed, he would certify it as a no-confidence motion”.

So, on a Bill similar to the European Communities Bill, what would he do? Would he check with Government as to their stance? Would that not raise the prospect of drawing him into political controversy? What if he failed to consult and took a view at odds with that of the Government? Again, there would be the prospect of being dragged into political controversy. Also, what happens if the Speaker fails to certify a vote as one of no confidence but the Government regard it as a matter of confidence and, on losing the vote, resign? In that situation, the 14-day rule does not apply. The quest to find a new Government, as the Minister, Mark Harper has confirmed, is not time-limited. If the Opposition wish to avoid an election and oppose a Dissolution Motion, what happens? The situation may be unlikely, but as long as it is not impossible, we need to consider whether more needs to be done to cover such an eventuality.

Before I leave Clause 2, I have one further question for my noble and learned friend. Subsection (2)(b) refers to the 14-day period ending,

“without the House passing any motion expressing confidence in any Government of Her Majesty”.

The Explanatory Notes refer to the House passing “a” motion rather than “any” motion. The wording appears more flexible than that in subsection (2)(a). Can my noble and learned friend explain the reason for that particular wording in subsection (2)(b)?

I turn briefly to the provision for a five-year rather than a four-year fixed term. The Deputy Prime Minister said that a five-year term flows with some of the founding texts of our unwritten constitution. When I asked him what these were, when he appeared before the Constitution Committee, he cited only the Parliament Act 1911. Can my noble and learned friend enlighten us as to what the other documents are?

We are told that for most legislatures around the globe, a four-year term is the norm, although the data appear to cover terms rather than necessarily fixed terms and do not distinguish by type of regime. Can my noble and learned friend confirm the evidence offered to the Political and Constitutional Reform Committee in the other place by Professor Robert Hazell that a four-year term is the norm in continental Europe and in Westminster systems?

I was also going to quote Professor Hazell’s evidence in which he lists in some detail the commitment to four-year fixed terms by both the Labour Party and the Liberal Democrat Party, but that is no longer necessary as others have made the point. I was also going to respond to the Government’s response to the Constitution Committee’s report asserting that the reason that some Parliaments are ended after four years is political opportunism. I was going to point out that exactly the same observation could be made about Parliaments extending to five Sessions, but I no longer need to do so as my noble and learned friend conceded exactly that point in his opening speech. I heard nothing in his speech that constituted a compelling argument for a five-year term. I think it would be difficult for a Government to generate a full five-year programme and remain vigorous by the fifth Session. I do not think that it is necessarily healthy for the Government, as government, or for the electorate.

As we have heard, the Bill is supposed to restore trust in politics, but I am not sure how pushing ahead with it, with no pre-legislative scrutiny and no attempt to consult the public on whether they would prefer a five or a four-year term helps bolster trust in the political process. I know the argument that the measure reduces the power of the Prime Minister, but that is not relevant to the point I am making. Does one restore the trust of people in politics by leaving them out of the process?

That brings me full circle. Why the hurry? My noble and learned friend may feel that I have put a lot of questions to him but that is a necessary consequence of the absence of any consultation or pre-legislative scrutiny. There remain a lot more questions still to be put.