Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st March 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the Bill be read a second time.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Fixed-term Parliaments Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of this Bill. I beg to move that the Bill be now read a second time.

The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver. The importance of these issues of political reform was reflected in the prominence given to them in the campaigning of all the major political parties at last year’s general election. There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated.

It has been my experience over many years in active politics that the overwhelming majority of people who come into politics—of all parties, and indeed in this House of the Cross Benches—do so out of motivation for public service. Nevertheless, sadly, politics has increasingly come to be perceived to have become more about protecting vested interests than about political representation of the electorate.

Let us not forget the backdrop to many previous general elections under the current arrangements when it was often widely anticipated that the election would be held at some stage during the third or fourth year of Parliament and the country was left on tenterhooks. On those occasions, the question was when the most advantageous date to call an election would be. From our own memories, I am sure we can think of Conservative or Labour Prime Ministers who made that calculation. Regrettably for my part, no Liberal Prime Minister in living memory has been in a position to make that calculation. However, the question is: advantageous to whom?

The question that the Prime Minister of the day considers then is not necessarily whether that date would be most advantageous to the country or the electorate; it is, more often than not, whether that date would be most advantageous to the incumbent party of government seeking re-election. This is an example of what people have grown tired of: a political system geared in favour of the Executive and used for partisan advantage. Fixed-term Parliaments will provide stability as it will be known from the beginning of the Parliament how long it can be expected to last. We already have fixed-terms for the devolved institutions, local government and the European Parliament.

We are not saying in the Bill that all Parliaments must last for five years no matter what happens, but there must be a significant and pressing reason for early Dissolution, and it is right that the other place, whose support is essential for the continuation of any Government, should be able decide when that should occur. This should not be a decision for the Government to take for themselves. That is why the Bill provides that Parliament should ordinarily last five years. It transfers from the Prime Minister to the House of Commons the power to bring about an early general election.

I am grateful to the noble Baroness, Lady Jay, and members of the Constitution Committee of this House for the careful scrutiny that they have given the Bill. As a former member of that committee, I know the important role that it plays and I believe that its report will aid our debates during the Bill’s passage through your Lordships’ House.

I acknowledge that most of those on the committee decided that the case had not been conclusively established for fixed-terms. However, let us not forget that this debate has been going on for some considerable time. As I noted, fixed-terms already exist for our devolved institutions, local authorities and the European Parliament. Moreover, there were commitments in the 2010 manifestos of the Labour Party and my own party, the Liberal Democrats, to establish fixed-terms for the UK.

I was pleased to note the committee’s endorsement of significant elements of the Government’s proposals, particularly the two mechanisms in Clause 2 that provide for an early general election to be held. It seems to me that the committee has said that, if the principle of fixed-terms were accepted—I have acknowledged that that is not what it said—this Bill sets out very much the way in which one would seek to achieve that principle. The Government have responded to the committee’s report in a Command Paper, copies of which are available in the Printed Paper Office.

The Bill is modest in size. It has only five clauses and one schedule, but we can be in no doubt that its effect would be significant. Clause 1 relates to polling days for parliamentary general elections. It sets out that the polling day for the next parliamentary general election will be 7 May 2015. Each subsequent parliamentary general election will be expected to occur on the first Thursday in May every five years.

As I said earlier, we of course recognise that there may be exceptional circumstances in which it would not be appropriate for Parliament to continue to run for its full fixed-term—I will come to the arrangements for those shortly. When such an early election is called, however, Clause 1(4) clarifies that Parliament will run for five years from the preceding first Thursday in May. This provision has been endorsed by the Constitution Committee and will provide that a Government elected at an early general election will have a full term, allowing them to deliver a full legislative programme.

[Lord Foulkes of Cumnock]

Is the Minister now able to answer a question that he was not able to answer at the informal meeting yesterday? Why was the month of May chosen when more general elections have taken place in October in the past? Local elections are normally in May and general elections in October.

[Lord Wallace of Tankerness]

I think the last October general election was in 1974, which was some 36 years ago. I have no doubt that the noble Lord remembers it well. However, it is difficult to say that they have generally been held in October when the last one held in October was over a third of a century ago. In more recent times, elections have been held in May. In 2001, it would have been held in May but for the outbreak of foot and mouth disease. It was held in June. This present Parliament was elected in May, and the natural course would be to go through to May 2015 if it was to have its full five years. That is why May was proposed in this Bill.

Clause 1 includes a power for the Prime Minister, by affirmative order, to vary the date of the polling day by up to two months either before or after the scheduled polling day. This power is intended to accommodate short-term crises or other conditions that might make it inappropriate to hold the election on the scheduled date: for example, a repeat of the foot and mouth crisis, which led to the postponement of the local elections in 2001. Although the general election was within the five years and nothing was needed to change the date, that is the kind of circumstance that is anticipated.

This is where your Lordships’ House will have an important role to play in the procedures set out in the Bill. Any instrument made under the Bill to vary the date of a scheduled election by up to two months will require the agreement of your Lordships’ House, thus affirming this House’s role as guardian of that particular principle of the constitution. It reflects an existing provision of the Parliament Acts: that your Lordships’ consent is required for any Bill that extends the maximum life of a Parliament beyond five years.

I am grateful to the noble Baroness, Lady Thomas, and the members of the Delegated Powers and Regulatory Reform Committee for its report on this Bill. I was glad to see that the committee felt that the delegated power taken in Clause 1 of the Bill was justified. I can assure the noble Baroness, her committee and indeed the House that we will give careful consideration to the report and its recommendations and I will respond very shortly.

There has been much debate over whether the length of Parliaments should be four years or five. It is not an exact science; it is a question of judgment. However, all arguments considered, the Government remain of the strong view that five years—the current maximum set out by the Parliament Act 1911 and more recently the norm—is the right length for a Parliament. Three of the last five Parliaments have lasted almost five years, and 44 countries out of 77 in the Inter-Parliamentary Union have five-year terms for their lower house, with only 26 having four-year terms. Indeed, there are five-year fixed parliamentary terms in Italy, South Africa, France and Luxembourg, and there is a five-year non-fixed term in Ireland and India.

My right honourable friend the Deputy Prime Minister has spoken about the need for Governments to work for the long-term advantage of the country rather than simply to pursue policies for the short term. Not only will the five-year fixed-term help facilitate better planning within government, but it can help facilitate better scrutiny of the Government by Parliament. With a fixed term, Parliament will be able to plan better their scrutiny of the Government’s legislative programme, and Select Committees will have more certainty when planning their inquiries. Indeed, this point was recognised by the Political and Constitutional Reform Committee in the other place.

Noble Lords might well argue that the recent experience of five-year Parliaments is that the Government are unpopular and have had limited ability to make use of the extra fifth year. However, I contend that that occurs in the current political framework and would not be a foretaste of what would happen under this Bill. The five-year Parliaments of recent years have been a somewhat self-selecting sample; they existed only because the Government in question did not believe they could win an election at the end of four years and were possibly waiting for something to turn up. Of course, in these circumstances, the Government tend to be tired and lacking in ideas. However, under this Bill, it will be possible for a Government to plan properly for a full five-year term.

There will be more certainty with fixed terms, and, with our proposed change to begin the Sessions of Parliament in May, the last Session would be a full one. As long as the Government retained the confidence of the other place, they would be able to deliver a full programme in their fifth Session. We would not have a situation in which the fifth Session began perhaps in the last week in November and by the last week in March we were engaged in a wash-up process. The Government can plan for the longer term, knowing that they will have time not only to introduce measures but to see them to fruition and begin to produce results.

I anticipate, too, that it might be argued that this Bill is part of some plot to reduce Parliament’s power over the Executive by extending the period between elections. However, we are not extending the potential period between elections. That remains, as it is now, five years. However, the certainty of five years means that not only the Government but Parliament can plan properly. It can plan its scrutiny programme and Select Committees can plan their inquiries. It will lead to more and better scrutiny, not less.

I turn to the interaction of the proposals in the Bill and the timetable for elections to the devolved institutions: an issue that has led to some considerable discussion and debate, not to say controversy. Under the proposals in this Bill and the respective devolution Acts, elections to the House of Commons and the devolved institutions will coincide every 20 years. Concern has been expressed about that. I ask your Lordships to recognise that this Bill has not brought about the possibility that the elections to the House of Commons and the devolved institutions coincide. It was inevitable at some point under the existing variable arrangements for Parliament that that could happen. The Bill has merely given us prior notification and an opportunity to consider the issue.

[Lord Wigley]

On the interplay and the coinciding every twentieth year, which might be at the end of the first cycle in this instance, is it not desirable that there should not be such clashing, that the elections to the Scottish Parliament and to the National Assembly for Wales should be in their own right, thereby ensuring that the electorate are aware of what they are addressing, particularly where manifestos of parties in relation to the devolved Assemblies might be different from their manifestos in relation to Parliament? Is there any mechanism whereby we can ensure that whatever the cycle—whether it is a five-year cycle as the Government propose, or a four-year cycle as many might wish—there is the same cycle for the devolved institutions to avoid any clash at all?

[Lord Wallace of Tankerness]

I readily understand the point made by the noble Lord. He is right to point out that, although it would happen once every 20 years, the first time would be in May 2015. It has been recognised that there are issues. That is why, as I shall come to explain, efforts have been made to address the issue with the devolved Scottish Parliament and the devolved National Assembly for Wales.

The Government are committed, as I have indicated, to working co-operatively with all three of the devolved Administrations. We have been consulting the respective party leaders and the Presiding Officers in the Scottish Parliament and the Welsh Assembly. I can confirm that my colleague and honourable friend Mr Mark Harper wrote to the Presiding Officers of the Scottish Parliament and the Welsh Assembly on 17 February proposing that if the Scottish Parliament or Welsh Assembly passed a resolution, with the support of at least two-thirds of all Members, agreeing that the 2015 Scottish Parliament or Welsh Assembly general elections should be moved to another date no earlier than the first Thursday in May 2014 and no later than the first Thursday in May 2016, the Government would then be willing to table an amendment to this Bill that would, if accepted, make this change. Copies of these letters to the respective Presiding Officers have been placed in the Library.

A resolution with the support of at least two-thirds of all MSPs or Assembly Members would be a clear indication of cross-party support for such a move and would be consistent with the existing requirement in the Scotland Act and the Government of Wales Act for a two-thirds majority in a vote for early Dissolution. In any event, we will carry out—I think this also addresses the point made by the noble Lord, Lord Wigley—a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of that, we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions there should be permanently extended to five years.

The situation in Northern Ireland is different. Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May this year before deciding whether special provision would be needed for Northern Ireland.

On Clause 2, it has been recognised that if we are to establish fixed-term Parliaments there must be a mechanism to deal with the situation in which a Government have lost the confidence of the House of Commons or where otherwise there is a consensus that there should be an early general election. Clause 2 therefore provides for the circumstances in which an early parliamentary general election can be held. There are two ways in which this can occur: through a traditional vote of no confidence in the Government, passed in the other place by a simple majority of those voting; or by a Motion, passed by a majority of two-thirds of the total number of seats in the other place, which states that there should be an early general election. As such, the Bill will provide the House of Commons with a new power to vote for Dissolution, which is not currently within its gift.

As many noble Lords will be aware, these votes have been the subject of some discussion and controversy. I wish, therefore, to explain to your Lordships exactly what the two votes are about, what they mean and why it is necessary to have two separate mechanisms for two separate circumstances where Dissolution might be required.

First, the defining principle of the Bill is that no Government should be able to dissolve Parliament for their own political advantage. That is why the threshold for passing a Dissolution Motion, as set out in Clause 2(1), that would trigger an early general election should be set at a majority of two-thirds of the number of seats in the other House. This is a majority that no post-war Government would have been able to achieve. In short, this means that we are the first Government to surrender to Parliament the power to call an early general election.

Some have questioned the rationale for giving the other place the power to vote for Dissolution. However, if there is a clear consensus that there should be an early general election, it would be nonsensical to force the other place to engineer a vote of no confidence. That is why Clause 2(1) provides the House of Commons with a new power to vote for Dissolution following a process that we believe is robust and transparent. The absence of such a power in other countries has meant that no-confidence Motions have sometimes had to be engineered to trigger an early general election in circumstances in which there is widespread consensus that there should be one.

[Lord Campbell-Savours]

Will the Minister confirm that, if the 1997 general election had been held under AV, the Labour Government majority would have been far higher—more than the threshold set in this Bill?

[Lord Wallace of Tankerness]

I am not in a position to confirm that because it is highly speculative as to whether that would have happened or not. One does not know what kind of campaign there would have been if there had been an election on AV.

Clause 2(2) recognises the traditional right of the House of Commons to pass a Motion of no confidence in the Government on a simple majority of those voting. No-confidence votes have, until now, been a matter of convention—although it has been widely accepted that a no-confidence vote in the other place would require a Prime Minister to resign or call an early election. However, there has been nothing to date to enforce this. For the first time the Bill gives legal effect to a Motion of no confidence passed by the House of Commons. Such Motions will continue to require a simple majority.

Clause 2(2) provides that, following the passing of a no-confidence Motion in the other place, there will be a period of 14 days during which the Government may seek to gain the confidence of the other place. If, during the 14-day period, a Government emerge who can command the confidence of the House of Commons, it will be free to govern for the remainder of the five-year term since the previous general election, and the country would not have a general election. However, if no such Government emerge at the conclusion of the 14-day period, Parliament will be dissolved. As the Constitution Committee concluded, a period of 14 days strikes the right balance between allowing enough time for an alternative Government to be formed while ensuring that there is no prolonged period without an effective Government. We must bear in mind that a Government who are known to have lost the confidence of the House of Commons will continue to be the Government during the campaign period.

A Motion for an early election will be confirmed by issuing a certificate by the Speaker of the House of Commons. A similar provision is set out in the Parliament Act 1911, which provides for the Speaker of the House of Commons to issue a certificate confirming that a Bill has been certified as a money Bill. In the case of a no-confidence Motion, the Speaker’s certificate will confirm that the Motion has been passed, and that the 14-day period has ended without the House of Commons passing any Motion expressing confidence in any Government. Such a certificate will mean that there is no ambiguity about whether the other House has voted for Dissolution in the requisite majority or whether a vote of no confidence in the Government should trigger Dissolution.

Clause 2 sets out that the Speaker’s certificate, in these cases, shall be conclusive for all purposes and that the Speaker must, as far as is practicable, consult the Deputy Speakers before issuing the certificate. While it has been argued that the requirement for a two-thirds majority should not be set out in statute, I was pleased to note that the Constitution Committee shares the Government’s assessment of the Bill’s interaction with parliamentary privilege. It provides the House of Commons with a new power—one that is to be transferred from the Prime Minister to the House of Commons. We believe that such a fundamental constitutional change should be laid down in statute.

However, in doing so, the Government do not believe that the provisions in this Bill will undermine the other House’s exclusive cognisance. I have made available in the Library a copy of a memorandum that the Government placed in the House of Commons Library on 13 September setting out their view that the Bill does not affect the relationship between Parliament and the courts.

[Lord Richard]

This is the point in the Bill with which I have the most difficulty. Why on earth should a Government who have lost the confidence of the House of Commons be given, in effect, a second chance to cobble together another coalition that might have the confidence of the House of the Commons? The present situation is terribly simple and very clear, and is the way in which Governments have operated almost exclusively in the past. If you lose a Motion of confidence, there has to be an election. That is simple. Why on earth can we not stick with it?

[Lord Wallace of Tankerness]

My Lords, the opportunity will be there for Parliament—to those elected to the other place—to see whether another Government can be formed. That may well be possible, but it would require the Government to have the confidence of the other place. If they have the confidence of the other place, there is no reason why they should not see out the term of the Parliament for which they were elected, subject to the provision that we are discussing. The provision places the power in the hands of Members elected to the other place and not to the Government of the day.

[Lord Richard]

My Lords—

--- Later in debate ---

[Lord Wallace of Tankerness]

We will no doubt come back to this, but I would be grateful if noble Lords would allow me to make some progress.

[Lord Richard]

My Lords, if there is a period of 14 days in which discussions are taking place, you may end up at the end of those 14 days with a Government who are not the same Government as at the start of the 14 days. You may have a different Prime Minister and different Ministers; you may have different policies—all sorts of things may happen. I come back to the central point. Why on earth should we give a Government that period of additional opportunity to try to preserve a position that the House of Commons has rejected?

[Lord Wallace of Tankerness]

My Lords, that Government will require a confidence vote of Members of the House of Commons. It is the House of Commons that will determine the matter. That is an important point. If you have a fixed term but there is a clear consensus for a dissolution, there is a provision to trigger that. But if the House of Commons wishes to place its confidence in a Government, that is a matter for the House of Commons.

[Lord Morris of Aberavon]

My Lords—

[Baroness Taylor of Bolton]

My Lords—

[Lord Wallace of Tankerness]

I am trying to make some progress, because I have been speaking for a while. I am sure that we will have plenty of opportunity to come back to this.

[Lord Morris of Aberavon]

I am grateful to the Minister. This is an intrinsically important point. In all our experiences, a vote of confidence in the House of Commons is a rare event of crucial importance. We all know what it means: we are summoned back from the end of the earth to take part in it. As has been pointed out by the noble Lord, Lord Richard, why should a Government, having lost a vote of confidence, have a second chance at all?

[Lord Wallace of Tankerness]

My Lords, the House of Commons would determine this. As the noble Lord, Lord Richard, said, the Government might then be of a different composition, but they would come from those who have been elected to the House of Commons for a term of five years. If they cannot form a Government and no Government can command the consent to a majority in the House of Commons, there would be an election. If that could not be done within 14 years—I mean, within 14 days. [Laughter.] That is probably wishful thinking on some people’s part. If that could not be done within 14 days, there would be an election.

Clause 3 makes the key necessary changes to electoral law and the law concerning the meeting of Parliament in light of fixed days for elections. It provides that Parliament dissolves automatically 17 working days before the polling day, which has been fixed for the general election under the Bill. It means that Her Majesty the Queen will no longer be able to dissolve Parliament in exercise of the prerogative. This is a safeguard against a Prime Minister deciding that he wishes to ignore the requirements of the Bill and advising Her Majesty to exercise her power to dissolve Parliament.

Clause 4 deals with certain supplementary and consequential matters. It preserves the Queen’s power to prorogue Parliament. Subsection (2) preserves the traditional way in which the sealing of a proclamation summoning a new Parliament under the great seal of the realm is authorised, which is by Order in Council rather than by warrant under the royal sign manual.

Clause 5 sets out the short title of the Bill and the schedule contains consequential amendments to a number of Acts of Parliament. I do not intend to go through them all, but included among them is the Septennial Act 1715, which, after amendment by the Parliament Act 1911, set the current five-year term for Parliament.

The Fixed-term Parliaments Bill will be seen as a stabilising measure. It will reduce opportunities for partisan game playing. In a situation where we are so often told that the Executive are trying to gather power to themselves, under the Bill they will give power to Parliament, and it is right that they do so. I look forward to the debates that we will have in your Lordships' House. The points raised by the noble and learned Lord, Lord Morris, will undoubtedly be ones to which we can return in Committee. I look forward in the course of this debate to hearing a maiden speech from my noble friend Lord Cormack, with whom I was privileged to serve for many years in the other place.

It was quite obvious from reading the record that the Bill was the subject of some lively debates in the other place, where—I should put on record—extra time was provided for consideration in Committee.

[Lord Bach]

Oh!

[Lord Wallace of Tankerness]

It is absolutely true, the Bill was given extra time at Committee—a Committee of the Whole House. I am certain we will not all see eye to eye with the noble Lords opposite, although I recall that they supported the idea of fixed-term Parliaments in their manifesto. There is therefore some broad consensus on what this Bill seeks to do.

This Bill demonstrates the commitment of this Government in bringing forward much needed political and constitutional reform. It will go a long way to restoring trust in our political institutions and I therefore commend this Bill to the House.