Fixed-term Parliaments Bill

Lord Norton of Louth Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Armstrong of Ilminster]

My Lords, my thought was that that sort of situation would be covered by the fact that the Prime Minister would be submitting a request for a Dissolution to Her Majesty. In all normal circumstances, of course, Her Majesty could act upon such a request. However, there could be circumstances in which Her Majesty might wish to say, “Before accepting this request, I wish to consider whether a Dissolution is the right course of action to pursue at this time”. She could then have consultations with political leaders to find out whether that is the case.

[Lord Norton of Louth]

My Lords, it is a delight to follow a former chancellor of the University of Hull. I speak to my own Amendment 21, and also to all amendments in this group.

My starting point, like other noble Lords, is that all the amendments are an improvement on Clause 2. The clause seeks to translate a convention into statute, which is extremely difficult to do as my noble friend Lord Cormack mentioned, and is for that reason very rarely attempted. The Government rest on the confidence of the House of Commons. If that is withdrawn, the Prime Minister by convention has the option of resigning or seeking the Dissolution of Parliament. The circumstances in which the Commons can demonstrate a lack of confidence are varied, as the noble and learned Lord, Lord Falconer of Thornton, has quite clearly adumbrated.

As we have heard, Clause 2 seeks to maintain these conditions but, in so doing, requires the Speaker of the House of Commons to be custodian of our present understandings of the convention. As we heard in Committee, that puts the Speaker in an untenable situation, having to make a decision that may be highly contentious politically, potentially sealing the fate of the Government.

The alternative, therefore, is to move away from flexibility to certainty or some degree of certainty. All these amendments, as we have heard, seek to do that. The one that comes closest to maintaining the current conventions is Amendment 22ZB of the noble Lord, Lord Armstrong of Ilminster, in that it retains the power for the Prime Minister to designate any Motion as one on which defeat will be treated as a matter of confidence. The others are more restrictive.

It strikes me that there are four, not necessarily compatible, criteria by which we can assess the amendments before us. First, to what extent do they retain the existing conventions? As I have said, the amendment of the noble Lord, Lord Armstrong, comes closest, putting flesh on the bones of what Clause 2 seeks to achieve. If we wish to retain the flexibility of existing arrangements, that is the most desirable amendment. It does not replicate precisely the existing convention, as it precludes the option of resignation as an alternative to the Dissolution of Parliament, though in that respect it follows what has been recent practice.

My amendment is a close second in two respects. First, like Amendment 22ZB, it retains the capacity of the Prime Minister to move that the House has confidence in the Government. This enables the Government to seek the confidence of the House in the event of uncertainty, such as, for instance, following the loss of a vote on a major item of Government policy. Secondly, in the event of the House withdrawing its confidence in the Government, it retains the option, unlike Amendment 22ZB but in common with the other amendments, for an alternative Government to be formed without the need for an election.

As we have heard, all the amendments bar Amendment 22ZB include the 14-day provision. The noble and learned Lord, Lord Falconer of Thoroton, in his amendment seeks to remove that provision. I was not quite clear as to why, and certainly was not persuaded by the arguments he adduced in favour of removing that provision. If you remove it you create a problem, which he recognises by the tabling of Amendment 20C, which essentially corrects the problem created by his Amendment 20A, for which I do not see a particularly strong case in any event.

Secondly, do the amendments meet a test of certainty? In other words, are the conditions under which the Government are deemed to have lost the confidence of the House clear beyond peradventure? The existing clause clearly fails the test. All the amendments before us come close to meeting the test. As far as I can see, Amendments 20, 21 and 22ZA are sufficiently clear as not to require adjudication, thus eliminating the mischief inherent in the existing provisions of the clause. The only possible ambiguity in Amendment 22ZB rests in subsection (2)(d) in the form of the declaration made by the Prime Minister. Is it to be in writing and laid before the House? Is it to be made in advance of the vote on the Motion or before the Motion is debated?

Thirdly, do they cover all eventualities? The amendments of the noble Lords, Lord Howarth and Lord Armstrong, do not address what happens if the Government resign without having lost a Motion of confidence or an early election Motion being passed by a two-thirds majority. This is what may be called the Belgian question. If a Government fall apart and the Prime Minister tenders the resignation of the Government but under conditions where the Opposition are not ready for an election and cannot realistically form an Administration, what happens? The Bill makes no provision for such an eventuality. Subsection (3) of my amendment seeks to cover such a situation, as does my noble friend Lord Cormack in subsection (1)(b) of his amendment. My amendment provides that if, after 60 days, no Government have been formed an election shall take place. My noble friend provides a 14-day limit. I prescribe a substantial time to limit the opportunity for exploitation. A lot can happen in 60 days. However, for the moment, my argument is that we need to cover such an eventuality.

I appreciate the argument that has been advanced by the noble Lord, Lord Howarth, who argued that such a situation is so unlikely that the provision is likely never to be invoked. The same argument can be advanced in respect of the provision for an early election Motion. The circumstances in which one is likely to need and be able to mobilise a two-thirds majority or a unanimous vote are likely to be extremely rare. However, neither situation is impossible. It is possible for the House of Commons to fail to agree on any option, as happened in 2003 in the votes on the various options for the future of this House. It may, therefore, be desirable to cover all eventualities. In terms of covering all eventualities, subsection (1)(a) of Amendment 22ZA presupposes that the Motion will be passed on a Division. Subsection (1) of the amendment of the noble Lord, Lord Howarth, originally did likewise, but has now been changed to cover such a Motion being passed without a Division.

The amendments to Amendments 20 and 22ZB, tabled by the noble and learned Lord, Lord Falconer of Thoroton, seek to cover the situation following the meeting of a new Parliament and the Government’s losing a vote of confidence. I can see why his Amendment 22ZD is desirable but, as I have said, I cannot see the argument for why his earlier amendment is required.

Fourthly, do the amendments limit or eliminate the opportunity for the Government to engineer an early Dissolution for their political benefit? The purpose of the Bill, as we have heard, is to ensure that there are fixed terms and that there is an early Dissolution only in exceptional circumstances. Those circumstances do not include enabling the Government to trigger an election at a time that is politically beneficial. If they did, it would undermine the whole purpose of the Bill. I know that, as the noble and learned Lord has said, he would find that quite attractive.

[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.

[The Lord Speaker (Baroness Hayman)]

My Lords, it may assist the House if I clarify the procedural position once more as I think that a little confusion may have arisen. I make it clear that although we are having a debate on all the potential alternative new clauses, some of them with and some without amendment, they are alternatives and no issue of pre-emption arises. Therefore, it is possible for the House to take a series of decisions about individual amendments as they arise in the schedule. Some noble Lords may not have been certain about their alternatives after a decision had been taken on the first proposed new clause. I hope that might be of some assistance.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, the convention is that if the Government lose a vote of confidence in the House of Commons, the Prime Minister has the option of either requesting a Dissolution or resigning. Callaghan did not have to go to the palace: he could have chosen to resign.

[Lord Dobbs]

Yes, indeed. I shall try to deal with that issue in a second.

Far from the Prime Minister giving up his powers to Parliament and the people in these provisions, he would be handing them over to party bosses operating in back rooms. I have been there and I have been one of them, and I doubt if things would become any more fragrant simply because those back rooms are no longer filled with smoke. Let us go back to something like 1979. Imagine the haggling: “No, I won’t vote for you, Jim, because if I help defeat you on this no-confidence Motion, I will be able to squeeze even more out of you tomorrow”.

A no-confidence Motion should be more than simply a hand at poker, with players raising the stakes both before and after the vote. Like the noble Baroness, Lady Boothroyd, I fear that Clause 2 as drafted would allow just that—with the players pleading that haggling is precisely what the law allows, precisely what the law approves of. Fourteen days of it: crisis, what crisis? But that is not what anyone here wants, so I urge my noble and learned friend Lord Wallace to look at this yet again. If he feels he must codify this matter of no-confidence Motions, he should ensure that this part of the Bill is made more clear. I am not against safety valves, not against 14 days in all circumstances. But 14 days should not be so inflexible that it becomes a charter for chaos and an excuse for political fixes. What we do today in good faith must not become an excuse for excess at some future date.