Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so, and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote—although I cannot remember whether or not it was a vote of no confidence—but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals—not the Liberal Democrats—to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess—it is obvious that it is a mess—because the coalition is looking for a mechanism to hold itself together, as David Laws’s book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws’s book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either—14 days of nothing or the old Government coming back as a retread new Government within the 14 days—is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment—namely, the present system. A vote of no confidence normally allows for an election but is flexible enough to ensure that a Government emerge when appropriate.

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

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships’ House described it. I have not heard in any of our debates—either at Second Reading, in the other place or indeed in any of our Committee debates—anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration may be formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it were not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

[Lord Forsyth of Drumlean]

I am intrigued by the analogy that the Minister uses in respect of requiring a larger majority than a simple one as a safety valve. Is that not a bit like taking a boiler, setting the pressure 30 per cent higher and saying that is making the thing safer? Surely, a safety valve implies a lower trigger, not a higher trigger.

[Lord Wallace of Tankerness]

I was using the terminology used by your Lordships’ Constitution Committee. It is not one I would necessarily disagree with, but what was meant by the safety valve—and the chair of that committee is here—was that, rather than be completely locked into a rigid fixed-term Parliament, with no way out if Parliament was unable to continue, there be mechanisms to trigger an election. One of them is where most sides agree that there should be an election and they constitute the two-thirds majority that would lead to an immediate Dissolution. The other mechanism by which an election would be called is where there has been a vote of no confidence in the Government and, within a period of 14 days, no other Government have been able to command the confidence of the House of Commons. It is fair to say—

[Lord Forsyth of Drumlean]

Surely, given how the noble and learned Lord has explained it, the safety is being provided for the Executive in order to stay in office, which contradicts the whole thrust of this Government’s position that this Bill is about handing more power back to Parliament. The safety valve is being provided for the Executive.

[Lord Wallace of Tankerness]

My Lords, maybe “safety valve” leads to a misleading impression of what is meant. It is not a safety valve for the Executive; it is a safety valve for Parliament. If Parliament recognises that it is no longer able to function, there is one mechanism for finding a way out of that breakdown, and that is by calling an election. That is certainly not to the Executive’s advantage. Alternatively, where a Government have lost the confidence of the House of Commons and no other Government can be established, again, there is a mechanism for an election to be called. I do not believe that in any way helps the Executive.

[Baroness Jay of Paddington]

I go back to my point about the use of the phrase “safety valve”, which I think appears throughout the Constitution Committee’s report in quotation marks. The question about whether it is for the Executive or the legislature is not one we pursued. In response to the exchanges we have just heard between the Minister and the noble Lord, Lord Forsyth, one is brought back to the question raised by my noble friend Lord Grocott: “Why make this so complex? Why not just stick with the present position?”. Everything that the Constitution Committee said about this was in relation to the complexity of the provisions in this Bill.

[Lord Wallace of Tankerness]

My Lords, I think it is also fair to say that the general trigger mechanisms, if I can call them that, were generally supported by the Constitution Committee which had a lot of negative things to say about this Bill.

[Baroness Jay of Paddington]

My Lords, I am sorry to interrupt the noble and learned Lord again but that is precisely the point I was making earlier. Those were the understandings within the context of this Bill and not the political judgments which have been expressed, rightly, in this debate.

[Lord Wallace of Tankerness]

I am grateful to the noble Baroness for confirming that in the context of this Bill these were identified as the correct mechanisms. As I indicated, if passed into law, this Bill will certainly bind this Government and this Parliament, and it will also look to the future.

The problem of the position being abused also engaged the concern of the Constitution Committee, and much of the noble and learned Lord’s Second Reading speech was devoted to that. Again, if you just had a straightforward, simple Dissolution which could be conjured up by the Government of the day, that would drive a coach and horses through a Bill which was intended to lead to a fixed-term Parliament. If the Prime Minister could conjure up a vote of no confidence knowing that would trigger a general election, it would restore the power of Dissolution with the Prime Minister.

[Lord Campbell of Alloway]

I have a very short question. Will my noble and learned friend deal with the argument of the noble Lord, Lord Grocott, which appeared to me to be totally acceptable? Can he say what is wrong with the constitution? If there is nothing wrong with it, what are we doing messing about with it?

[Lord Wallace of Tankerness]

My Lords, I am trying to address the arguments advanced by a number of noble Lords and will certainly come to the point made by the noble Lord, Lord Grocott. He asked what was wrong with the position in 1979. Under our constitution as it then was and as it stands today, the Prime Minister followed a course of action which was constitutionally acceptable. We are looking at a situation where that would not be the framework within which the Prime Minister was acting—he would be acting within the framework of a Parliament elected for a fixed term. The then Prime Minister had the choice of whether to resign or immediately call a general election. He chose to seek a Dissolution. Resigning would not be possible under the amendment moved by the noble Lord, Lord Howarth. What we are seeking to do is take away the power of the Prime Minister to call an election. I think my noble friend was trying to get in earlier—

[Lord Cormack]

Yes I was. I am most grateful to my noble friend, who is the most conciliatory of men—but. The two devices of the 14 days and the two-thirds majority are in this Bill to protect whoever is the Prime Minister and whoever are the Executive, and there can be no getting away from that. Surely, allowing a Prime Minister, having lost the confidence of the House of Commons, 14 days, or allowing two-thirds of its elected Members—not two-thirds who are necessarily there at the time—to vote for a Dissolution, is a protective device and one that gives time for the powers that be, the Whips Office and elsewhere, to work on Members. It will make for a thoroughly undignified situation, and it will only add power to the Executive and take it away from Parliament, where it rightly belongs.

[Lord Wallace of Tankerness]

My noble friend Lord Lamont has also been trying to get in. If he wishes to ask a question, I shall deal with it and then press on.

[Lord Lamont of Lerwick]

At Second Reading, my noble and learned friend said that the advantage and the public interest in having a fixed-term Parliament was predictability and continuity, as a Government could then complete their programme over a five-year period. I understand that argument. However, what public good is produced when a Government with a wafer-thin majority lose the confidence of the legislature and then artificially try to create a situation in which a new type of Government with new allies might be formed? Why is that in the public interest? Why have these two devices to try to create a new Government in place of the previous one? I do not see the public interest in completing five years with two different Governments.

[Lord Wallace of Tankerness]

As has been pointed out, what happened in Wales was that, after Mr Alun Michael resigned—he did not actually face a vote of no confidence but there was one on the horizon—a new Government were formed who quite successfully saw out their term of office. The point that I am trying to make is that with fixed-term Parliaments there is that certainty.

Equally, it has been widely recognised that there must be some mechanism that allows an election to take place if it is no longer possible for a Parliament to continue. That is why I do not agree with my noble friend Lord Cormack that these are devices that somehow are to help the Executive; they are devices for where Parliament can no longer function. If these rules had been in place in 1979 and the then Prime Minister, Mr Callaghan, had decided that calling an election was the right thing to do, I rather think that the then leader of the Opposition, Mrs Thatcher, might well have agreed with him and there would have been a two-thirds majority for a dissolution. Alternatively, as happened in 1924, it was possible for one Government to resign and for another to come in and form an Administration.

[Lord Norton of Louth]

What I have to say is fundamental to what my noble and learned friend is saying. In the present situation, if a Government lose a vote of confidence, the Prime Minister has the option either of calling an election or of resigning. The Government go. Under the phrasing of this Bill, the Government do not have to go; they can be reformulated. In that sense, the provision protects the Government as the present situation does not.

[Lord Wallace of Tankerness]

They could if they commanded a majority in the House of Commons. It would require them to face the House of Commons and command a majority there. It is no good for the noble and learned Lord, Lord Falconer of Thoroton, to say, “Well, we have these two situations, as happened with Mr Baldwin in 1924, and somehow we have to find a means for that to happen”. This provision tries to find a means by which that could happen. He may say that this is not the best means of trying to do that; I have not yet heard from him how he would seek to do that, given that his party also believes in fixed-term Parliaments and does not believe that they should be rigid. If he thinks that there should be a mechanism for a Government to resign and a new Government to be formed without an election, we would certainly be open to hearing how he would devise the means by which that could be done. It is certainly not done by the amendment to which he put his name, moved by the noble Lord, Lord Howarth.

On the amendment tabled by the noble Baroness, Lady Hayter, with regard to the period of 14 days, as my noble and learned friend Lord Mackay of Clashfern said, with the devolution settlements a period of 28 days is allowed for a new Government to be constituted after a Government in Scotland or Wales lose a vote of confidence. We took the judgment—and I accept that it is a judgment—

[Lord Maxton]

My Lords—

[Lord Wallace of Tankerness]

I am sorry, but I have been very generous. It is important that we make progress.

We took the judgment that 14 days was the appropriate time to allow for another Government to be formed. I pick up on the point made by my noble friend Lord Newton of Braintree, who said that more than five days might have been better in May last year. I leave that thought hanging. We have a culture here of doing it in one day, with the pantechnicons rolling up into Downing Street and furniture being taken out. That may not be healthy, particularly if we are in a situation where there may well be more elections that do not produce an outcome with an overall majority for one particular party.

The position with the devolved Administrations is not always comparable, but I simply reflect that in 1999, after the election to the Scottish Parliament, there was a situation where no party had a majority. The pressure on those of us who were negotiating to try to establish a Labour-Liberal Democrat coalition was quite intense for that to be done in a relatively short period time. By the time of the 2003 Scottish election, where again there was no overall majority, there was not the same pressure. We were able to deliberate longer before finalising a coalition agreement; because of our experience in 1999, we had changed the expectation, as it were. I believe that is what would happen, as there would be a change of expectation and there would not be the same level of pressure to rush into an agreement. As my noble friend Lord Newton indicated, places like Germany seem to take a bit longer than we do without necessarily causing great upheavals there.

That is why we took the view that 14 days was right. It is not just 14 days to establish a Government but 14 days during which a new Government would have to be established and a vote of confidence in that Government to have been passed by the other place. Therefore, it is not simply the formation of a Government. It could well be that during that period of time it became blindingly obvious to everyone that no Government would be formed. In those circumstances the sensible thing might be to have a dissolution motion, agreed by all parties, so that an election could be triggered rather than waiting the 14 days. Equally, if a new Government were formed very promptly, we would not have to wait 14 days either for that period of relative uncertainty, as it was described, to be over.

As the noble Lord, Lord Clinton-Davis, who is no longer in his place, pointed out, in 1979 there was a period of five weeks before the Government were defeated. The point I would make is that, in trying to arrive at the 14 days, we wanted to look at the fact that there was a period then, and there would also have to be an election period after it. We did not want to make it too long, but equally we felt that too short a period might not allow the appropriate level of time. A balance has to be struck. I take the point made by the noble Baroness, whose Constitution Committee did not make a political judgment; nevertheless its constitutional judgment was that the Government got it right constitutionally in allowing a period of 14 days.

A similar amendment was considered in the other place, where I think it was defeated overwhelmingly. Indeed, Mr Chris Bryant indicated that he was very much with the government Front Bench on the matter. I think that the amendment would lead to restoring the power of the Prime Minister to trigger a general election when he or she wished it to happen through a vote of no confidence. The noble and learned Lord, Lord Falconer of Thoroton, expressed concern that even with the 14 days that could happen. I believe it could happen even more easily with the amendment proposed by the noble Lord, Lord Howarth. That would drive a coach and horses through the principle of having a fixed-term Parliament and taking away the power from the Executive. Therefore I urge him to withdraw his amendment.

[Lord Howarth of Newport]

Will the noble and learned Lord tell the Committee whether he intends to take away the subsection in order to redraft it to eliminate the ambiguities which expert academic commentators have drawn attention to and which I think are significant?

[Lord Wallace of Tankerness]

I apologise to the noble Lord, as I think that was his very first point, which was also picked up in the report of the Constitution Committee. In the light of that, we have considered the wording and we do not believe that it leads to ambiguity. We are not looking to a situation where there is, as it were, an investiture or a notional vote on whether someone should be recommended to Her Majesty the Queen to be Prime Minister; a Government would have to be formed. However, in the light of his comments and those of the Constitution Committee, I am willing to look again to see whether the matter can be even further clarified. However, having considered it at some length, we think that the wording actually says what it means on the face of the Bill. Nevertheless, I undertake to consider the point that the noble Lord made.

[Lord Howarth of Newport]

I thank the noble and learned Lord for his willingness to look again to see whether the drafting could be clarified. I think that is important.

The debate that we have just had shows that this question of whether there should be a 14-day provision following a vote of no confidence is a subject that has been very well worth our while to consider. The Minister denied that the provision is a contrivance, but if it is not that in itself, it is the product of a contrivance—a contrivance to keep the coalition in place for the longest possible time. On this policy of fixed-term Parliaments, the more we examine it in this Committee, the more we realise that there are much greater difficulties attaching to what appeared to be a simple and beguiling proposition than were recognised at the outset by the framers of manifestos in various political parties and by Ministers as they prepared this Bill.

The noble Lords, Lord Cormack and Lord Norton of Louth, underscored how, among the risks contained in the provisions in Clause 2, there is the risk that the provisions will, perversely, serve to protect the position of the Government. I acquit the coalition of having that motive, perhaps, but that may be the consequence of the provision. The noble Lord, Lord Newton, was of course right to remind us that politics does not stand still and that we may well continue to see rather different electoral outcomes from those that we were accustomed to seeing in past decades. The constitution, of course, always needs to respond flexibly, pragmatically and appropriately. That is one great virtue of not having a written constitution and one reason why I worry that this Government are so keen to write into statute great chunks of a new constitution. That is a difficult thing to get right; it may well be impossible.

My noble and learned friend Lord Falconer and my noble friend Lord Grocott described graphically the absurdities that would have occurred had this Bill been on the statute book in 1979, or indeed in 1940, with the undignified and chaotic situation that that would have produced in Parliament.

[Lord Wallace of Tankerness]

On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.

[Lord Falconer of Thoroton]

The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.