Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

On the face of it, this seems an unwise provision. First, the similar provision in the Parliament Act is about the Speaker having to certify whether something is a money Bill. That has become a legal, constitutional issue where there is not much discretion; it is simply a question of law. I can see that assistance is important for this. Secondly, I imagine that the application of the Freedom of Information Act would mean that any document containing the advice given by the Deputy Speakers to the Speaker of the House of Commons in relation to this issue would become available very quickly. Thirdly, it does not help the constitution if there is disagreement between the Deputy Speakers and the Speakers and a doubtful Motion of no confidence. Fourthly, what is the purpose of the provision when the critical issue raised by the Bill is: what is a motion of no confidence? Though the procedure is very tight and closed, the Bill leaves that completely open.

It is not something that the courts will want to get involved in. However, it is not good for Parliament that divisions will become apparent and technical processes that need to be gone through might not be. Quite separately from the issue of whether this is a motion of no confidence—on which view there is wide discretion—the phrase, “so far as practicable”, is one to which any reasonable person can give a very substantial meaning. Two reasonable people can take two entirely differing views as to what is practicable and what is not.

I ask, in parenthesis, what do the Government envisage as making it impracticable to consult a Deputy Speaker? Is it only the illness or incapacity of one of the Deputy Speakers or do the Government have something else in mind? It seems to be extraordinarily unlikely that, apart from illness or incapacity, the tabling of a motion that might be one of no confidence, the indication by the Speaker or the debate on the motion, will happen so quickly that there will be no possibility of getting to speak to a Deputy Speaker. Perhaps the Minister can help us on that.

Like my noble friend Lord Howarth and the noble Lord, Lord Norton of Louth, I ask what the purpose of this is once it is accepted, as it is by everybody, that an exercise of judgment may well be required by the Speaker. The judgment is his and his alone, and who he or she consults is inevitably a matter for him or her. For example, one would reasonably expect that if there is any room for doubt, he or she should consult senior representatives of all the political parties about what they think in relation to it, yet the Bill specifies only one group of statutory consultees. I can see the precedent in the Parliament Act, but the way that this is drafted is much more suitable, almost, to the exercise of a discretion by a Minister, which is then challengeable, rather than to the exercise of difficult judgment by a Speaker in the context of the House of Commons where to specify statutory consultees, apart from in the Parliament Act, is extraordinarily unusual. I do not know of any other example, and I would be interested in the other examples that the Government relied on apart from the Parliament Act, which is very different.

It feels as if this has not been thought through, and I invite the Minister, having heard the debate, to ask what we are getting out of this provision. Does it make it worse rather than better? The superficial attractions of asking the Speaker to get advice are, when you think about it, probably not real, particularly when there is nothing to stop the Speaker getting that advice if he wants to, yet here it is made compulsory. Why? What is the benefit? There does not seem to be any, and there seems to be quite a lot of disbenefits.

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

My Lords, my noble friend Lord Norton of Louth was quite correct, as other speakers in this debate have indicated, to draw attention to the provision in the Parliament Act 1911, which indicates:

“Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection”.

My noble friend inquired whether that was simply because of precedent and suggested that there are differences between the definition of a money Bill and what is required of the Speaker in the context of this clause. I accept that this arises from there being a precedent for such a requirement and acknowledge that there is a difference between determining what is a money Bill and the nature of the certification that would be required of the Speaker in the context of this Bill. What they have in common is that they are matters which have important constitutional consequences. That is why we thought it appropriate, given that there is a precedent for the Speaker to consult two very senior members—in the case of the Parliament Act, two members of the Chairman’s Panel and in this case Deputy Speakers—that we should follow that precedent.

When I was listening to the noble and learned Lord, Lord Falconer of Thoroton, I was thinking that if we had not included this we would probably have been accused of not having thought this through. In the Parliament Act, there is provision for consultation with the Deputy Speaker and we would have been asked why we had not included a provision to consult the Deputy Speakers.

[Lord Falconer of Thoroton]

I feel that the noble and learned Lord is getting a bit paranoid. No, I would not have said that.

[Lord Wallace of Tankerness]

My Lords, it is not necessarily paranoia if you think that someone is putting forward such an argument, but I will leave it to noble Lords to judge whether they could hear the noble and learned Lord making a similar argument.

I accept that the issue links into the debates we have had, and will have later, on whether we could find more objective criteria for determining what constitutes a vote of no confidence. I was not quite sure whether the argument made by my noble friend Lord Norton was that, as things stand at the moment, the Speaker has a greater need to consult in the absence of such a definition than in the context of a money Bill. Even looking at the provisions in the 1911 Act as to what constitutes a money Bill, it may be a statutory definition but it is not transparent, which I am sure that the noble Lord, Lord Martin, who had to deal with these things, will recognise.

I would not wish to try to persuade the House—nor is it the case—that this is the most important provision in the Bill. Nevertheless, it is very similar to a provision that has existed on the statute book and has been in force for 100 years. It is a tried and tested procedure. That also applies to the requirement to consult “so far as practicable”. Clearly, if someone was ill or abroad, that might not necessarily be practicable. The noble Lord, Lord Howarth, was right to say that the requirement is for consultation, not to seek agreement. As I have said, they are tried and tested measures, which we thought were appropriate in a context where important constitutional consequences would flow from a decision.

On freedom of information, obviously one issue would be what form the consultation took. If the consultation was verbal, there would be nothing for a freedom of information request to latch on to. I would have to remind myself what the possible grounds of exemption are but, given that advice to Ministers can be a matter for exemption, perhaps that would also apply to advice given to a Speaker. However, without looking in detail at the terms of the Freedom of Information Act, I cannot answer that question directly, although I can say that, if the consultation was not written down, I am not quite sure what would be caught. The noble and learned Lord asked me to write to him on this and I will seek to do so.

Given that we are trying to embrace a tried-and- tested procedure, I would invite my noble friend to withdraw his amendment.

[Lord Forsyth of Drumlean]

Does my noble and learned friend not see the irony in arguing the case for this on the basis that it is a tried-and-tested procedure while turning upside down the whole tried-and-tested procedure of how we decide when we are going to have a general election?

[Lord Wallace of Tankerness]

I see the irony. I still think that it is right.

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken in this short debate, which is an important debate to be had. I am still left wondering what value is added by this provision. My noble and learned friend has confirmed that, of the two definitions I offered, the first was correct. The Government have looked at the Parliament Act in which there is a provision that has been carried over. That seems to be the sole reason.

In terms of the argument, I am not quite sure why the provision should be there. The noble and learned Lord, Lord Falconer of Thoroton, was right. The Speaker is quite capable of consulting those whom he wishes to consult. If the provision was not in the Bill, it would avoid the legal problems to which the noble Lord, Lord Howarth of Newport, referred. The more we can do to reduce the prospect of legal challenge, the better. As the noble Lord, Lord Howarth, pointed out, there is a problem with the position of the Deputy Speakers, who are neutral figures as Deputy Speakers but seek re-election as party candidates.

The Minister’s argument is that this is based on precedent, as it is in the Parliament Act, which also has a definition of a money Bill. I am not quite sure why we are following the precedent of consultation but not following the precedent of having a definition as the basis on which that consultation takes place. Either one follows precedent and does both or one does neither. I cannot see the argument for saying, “Well, this is in the Parliament Act, so we’re lifting that” and “This is in the Parliament Act, but we’re not lifting that”, even though the definition, to which we will come, is far more important. That is essential in this Bill and I do not see why we need Clause 2(4).

I hope that my noble friend will reflect on that. He has heard the arguments and I think that he has recognised the value of them. I hope that it is something he might consider between now and Report. But in the interim, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

[Lord Wallace of Tankerness]

My Lords, I readily understand the thinking behind the amendment moved by my noble friend Lord Marks. If the Bill is intended to remove the opportunity for the Prime Minister of the day to take a partisan view on the timing of the election, I can see why, the Prime Minister having lost a vote of confidence, you might then wish to restrict the Prime Minister's room for manoeuvre on setting the date—either to go too soon, which may give a campaigning advantage; or to delay unreasonably. Nevertheless, the amendment is unnecessary. More importantly, practical issues could flow from it.

If we take the case of delaying too long, in the context of Clause 2(6) and the Bill as a whole, it is clear that the Prime Minister would be required to recommend to Her Majesty a prompt election. If two-thirds of the House—the other place—had voted for an early election, one would imagine that the Prime Minister would be as anxious as anyone to get on with it. Likewise, although the Prime Minister may be less keen for an early election where there has been a motion of no confidence, and no other Government have been formed, that would also be a clear statement from Parliament that it expected to see change and an election. The electorate would share that view. This is pure speculation, but if the Prime Minister tried to pull a fast one and delay unduly, that decision could be subject to challenge.

On the other hand, there are limits as to how quickly the Prime Minister can move if he seeks an early polling day. Clause 3(1) dissolves Parliament 17 working days before polling day, so the timetable at Dissolution is fixed and is known to all sides. Therefore, there is no way that that could be cut short for advantage. There is already that backstop as to how an election could be called.

My biggest concern is practical. The Government decided not to set specific limits that inadvertently tied hands in circumstances which could lead to a situation such as that described by the noble and learned Lord, where the election campaign might be some time between 18 December and 16 January. It is almost inevitable that if we were to try to fix those times, the first example would be when it fell in a period where campaigning would be very difficult. We should allow flexibility to allow a general election to be called on a date—which, one would assume, would be consulted on among the parties—to minimise disruption in a Christmas period or summer vacations.

Therefore, the amendment is neither necessary—provision is already there which would stop a Prime Minister calling an election too soon; he would clearly be challenged if he tried to delay unduly—nor practical in trying to tie hands. That might run into more problems than the amendment is intended to solve.

[Lord Falconer of Thoroton]

The noble and learned Lord said something important there. He said that the Prime Minister would be subject to challenge if he sought to delay. Interestingly enough, it is a statutory power whereby the Prime Minister is obliged to recommend a date. Is it challengeable by way of judicial review?

[Lord Wallace of Tankerness]

It could be challengeable by judicial review if he was abusing his decision on a recommendation. That is why there is a safeguard there, which would mean that it would not be possible to delay in an unacceptable way.

[Lord Falconer of Thoroton]

Just to pursue that: the Government envisage a situation that could not arise now—because there is absolute discretion on the part of the Prime Minister—whereby the Prime Minister recommends to the Queen that the date of the general election be, say, 1 May 2013, and other parties can take the Prime Minister to court, arguing that that is an unreasonable exercise of his discretion and ask the court to fix the date of the general election, which it could set to take place two weeks earlier or two weeks later. Is that what the Government envisage as a possibility?

[Lord Wallace of Tankerness]

It is not what the Government envisage. However, if a vote of confidence had been on 10 December 2012, holding an election on 1 May 2013, which the noble and learned Lord mentioned, might well be considered to be an abuse of the statutory power. Under judicial reviews, the court would not necessarily substitute its own date, but the Prime Minister would be required to nominate or recommend a date to Her Majesty that would be consistent with a proper exercise of the statutory power. It is highly hypothetical and unlikely, but it would not be unreasonable; if there had been a vote of no confidence and 10 days had elapsed in December 2012, setting an election date for 1 May 2013 would be an abuse of power. That would be widely recognised.

However, the point that I am making is that we do not believe that there should be the kind of restrictions set out in my noble friend’s amendment. They could run into practical problems for the very reasons that he illustrated, but, in practical political terms, it is not likely that a date would be set that would be seen to be an abuse by taking it too far.

[Lord Marks of Henley-on-Thames]

My Lords, I am grateful for the consideration that has been given by noble Lords and my noble and learned friend to the amendment. The problem that it sought to address was simply the question of the lack of a timetable. I am bound to say that the exchange we have just heard between the noble and learned Lord, Lord Falconer of Thoroton, and my noble and learned friend illustrates that there is—in theory, at least—scope for an abuse of power by a Prime Minister that could, perhaps in extreme and unlikely circumstances, lead to a challenge, because executive action of this sort might be justiciable and there is room for an abuse of power. The amendment simply seeks to address that.

Of course we are open to consideration of that time, but the noble Lord, Lord Grocott, talked of James Callaghan; it does not follow that because James Callaghan behaved well on that occasion everyone else necessarily would do so. As regards the number of weeks, it is right that there is a window of only a month, and that could involve a holiday period. However, the corresponding argument is that it may be undesirable for a vote of confidence in June to lead to an election being deferred until September or October, on the basis that holidays would intervene. We took the view that is worthy of consideration that it is more important to have an election than it is to avoid the holiday periods and allow them to be an excuse for not holding an election. I beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, I readily recognise where the noble Lord, Lord Howarth of Newport, is coming from on this. As the Committee will know, the Parliamentary Voting System and Constituencies Act 2011 requires boundary review reports to be published on a five-yearly timetable, starting in October 2013. Once this Bill is enacted, general elections will occur at five-year intervals, starting in May 2015. In the absence of any early elections, the effect would be that boundary reviews generally would be published 18 months before each general election. Our debates on the previous Bill were about allowing an opportunity for the political parties and electors to become familiar with new boundaries and, importantly, for the electoral administrators to gear up accordingly.

I understand that the intention behind this amendment is to realign the five-year cycle for boundary reviews in the event that an early election causes them to get out of sync. Unfortunately, the amendment does not achieve this. It relates only to when the order is submitted to Parliament; there is no provision made to adjust the cycles that the Boundary Commissions themselves will work to. That is not simply a technical objection but an important and fundamental one. Broadly, I have sympathy with what the amendment is trying to do to ensure that there is one boundary review in each Parliament so that constituencies remain of roughly equal size and votes remain of equal weight. We looked at the interaction between the boundary reviews and the provisions of the Bill. The conclusion that we reached, which may be an echo of what some Members said in earlier debates, was that we simply could not legislate for every scenario under a fixed-term Parliament provision. This is one where it would be far better for judgments to be made by future Parliaments, in possession of knowledge of the circumstances, depending on when the early election—if such there was—took place.

I give a brief example. If, for the sake of argument, an early election was to occur before a full boundary review had been completed—say, in early 2018, when the report from the Boundary Commission would not be due before October that year—this amendment says nothing about what should happen to that boundary review, which would be well under way and ready to report in October 2018. It says simply that the next order should not be brought into force until 2022—that is, before the election of 2023. That raises questions about whether the review that was due in 2018 should be implemented in 2022, which would mean that the boundaries could become out of date. Is it the intention that the first review after an early election should have a 2022 deadline, in which case additional provision would be required to define which register that review should use? Without that additional provision, the commissions would have to use the December 2020 register, which would give them a very short time in which to conduct the review.

As I indicated, while it would be preferable—and may still be possible for the dates of some early elections—to continue the cycle of reviews that is there, it is far better left to a future Parliament to deal with the specific circumstances if it felt that boundary reviews were not keeping pace with the cycle of elections. In any event, even without doing anything, future elections are likely to be fought with more up-to-date registers than was the case for England in 2010. I welcome what I am sure is the well intended purpose of the noble Lord’s amendment, but I do not believe that it achieves that purpose. I therefore ask him to withdraw it.

[Lord Falconer of Thoroton]

Does the Minister envisage Parliament dealing with the issue by primary legislation each time?

[Lord Wallace of Tankerness]

As things stand, it probably would have to be by primary legislation. It might be a very simple Bill, but I think in trying to be too prescriptive at this point you could run into difficulty. As I have said, there may well be circumstances in which the early election, should it occur, would nevertheless be one in which the actual scheduled date would still fit in quite readily and allow a reasonable time for the political parties and electoral administrators to make the necessary arrangements. That is why I do not think we can predict what is going to happen and it is better to leave it to the future—to see whether it would in fact be necessary—in the belief, and indeed the knowledge, that even under the present system, without anything further, we are likely to be fighting elections on more up-to-date electoral rolls than was ever possible prior to the passage of the 2011 Act.

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[Lord Falconer of Thoroton]

The account of history given by the noble Lord, Lord Cormack, is entirely accurate. However, if you are passing a Bill that is intended to set out what our constitution is, what happens when there is not a suspension of elections and the Commons wants rid of a particular Government because it, quite legitimately, wants a national Government? The effect of the amendment of the noble Lord, Lord Cormack, is that you are not allowed to have a situation where you cannot avoid an election. I envisage circumstances in which a vote of no confidence might well reflect both a Commons view and a national view that the Government of one party be changed, for example, into a national Government. We have to be able to deal sensibly with this. The current arrangements allow for a defeat in a vote of no confidence followed by a replacement of the national Government, which the amendment does not deal with. It is not a comprehensive definition of motions of no confidence and so leaves the Speaker as exposed under these arrangements as he is under the old arrangements. I share the desire of the mover of this amendment to get to a point where the Speaker is not exposed in the way that he is at the moment. I do not believe that the amendment quite succeeds in doing that. I am open-minded about the other efforts to do it, but currently, I can see force in the sort of amendment that I suggested.

[Lord Wallace of Tankerness]

My Lords, it is obvious that we have had an important debate following a number of other debates on amendments where we have looked at the structure of Clause 2. In this case, the intention of the amendment is to seek more certainty about what will constitute a no-confidence vote. It is clear from the amendment—indeed it was said by the mover, my noble friend Lord Cormack, and the noble Lord, Lord Armstrong of Ilminster—that an early election would inevitably follow specific types of no-confidence votes being carried in the House of Commons.

It is interesting that the concern of all contributors has been about how we ensure that we are certain about what a no-confidence motion is. My noble friend Lord Maclennan of Rogart made the important point that even the amendment tabled by my noble friend Lord Cormack does not necessarily exclude other possible amendments. That indicates the difficulties. I have tried to be open about the objective, which is to try to devise a means by which there can be a trigger mechanism for an early election but with a degree of certainty and without opening the door for abuse.

If I can helpfully work on that basis, I respect the views of those who say that they are totally against fixed-term Parliaments, but this Bill is designed to bring in a fixed-term Parliament; a number of noble Lords set out specific arguments based on our having a fixed-term Parliament. I think there is some agreement that if we have fixed-term Parliaments, there must be a mechanism to trigger an early election. I have not detected any desire in your Lordships' House for a very fixed, rigid system.

The noble Lord, Lord Cormack, in introducing his amendment, rightly indicated that if we are to have what he described as the escape clause, it must be clear, simple, understandable and not capable of misrepresentation. The noble and learned Lord, Lord Falconer of Thoroton, asked what was the thinking behind the Government’s position as we set it out. Why had we not specified words? My noble friend Lord Norton encouraged us to have a statutory definition of a no confidence motion. The reason why—

[Lord Howe of Aberavon]

With great respect to my noble and learned friend, he said we are trying to set up a situation in which, with fixed-term Parliaments, we can trigger an early election. That seems to be something that we are all groping for. We already have a fixed-term structure in the sense that there is a maximum term with the existing pattern of being able to trigger it for different reasons. I emphasise the significance of what he said, I think not per incuriam. We are working in a fixed-term situation but finding a way in which we can trigger an early election. If that is what he is after, we are not far away from it as we are.

[Lord Wallace of Tankerness]

That is indeed what I said because there is a difference between a fixed term, as set out principally in Clause 1, and recognising that you could have a situation, as they do in Norway, where the term is fixed and nothing can allow an early election, even if the Government were to lose the confidence of their Parliament. That is not what anyone has argued for in our deliberations. There is a distinction between a fixed term and a maximum term during which, under the present system, the Prime Minister of the day can opt to have an election at a time of his choosing for partisan advantage. We do not disguise the fact that that is what we are seeking to move away from.

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[Lord Falconer of Thoroton]

I completely understand that it is different under the Fixed-term Parliaments Bill but remember that the consequence now of the Government losing a vote of confidence is that they at the very least have to resign and at the very most have to have a general election. There is a very high price to be paid now in relation to losing a vote of confidence or no confidence. Can the noble and learned Lord identify historically any occasion where there has been a dispute over whether something is a vote of confidence?

[Lord Wallace of Tankerness]

I seem to recall in one of our earlier debates that there was a suggestion that in the 1970s Mr Harold Wilson indicated that he would not accept as a motion of no confidence motions which on some occasions hitherto had been seen as votes of no confidence. I think that that point was made by the noble Lord, Lord Howarth, not on this amendment but in a debate on an earlier amendment.

[Lord Howarth of Newport]

It was earlier in this debate. It has been going on for so long, it is difficult to remember. The point was that the House accepted, it appears, the redefinition that the Prime Minister had proposed to the House at that time and recognised the political circumstances in which that Labour Government had a tiny majority. It did not really have a workable majority.

[Lord Wallace of Tankerness]

Perhaps the House accepted it because it was quite clear that if the Prime Minister had decided that he was not going to go to the country it could have tabled a motion of no confidence. Indeed, my noble friend Lord Forsyth keeps coming back to what seems to be a very straightforward way of addressing this issue: that if there is any doubt, the Leader of the Opposition or someone could table a motion of no confidence. The more one thinks about it, it tends to be the motion which has no ambiguity and is very clear, about which something further might want to be said.

The amendment in the name of my noble friend Lord Cormack would replace the entirety of Clause 2 and therefore would not allow the provision of the trigger mechanism of a Dissolution if two-thirds of the House of Commons was voting for a Dissolution. We have had debates on this in the past but if at some date in the future, in a fixed-term Parliament, there is a consensus in the House of Commons that there should be an election—and 1951 has been identified as a possible example when this may have happened—I would rather the option remained for the Dissolution to be triggered on a cross-party, consensual basis rather than having a motion of no confidence brought forward simply to achieve a Dissolution which two-thirds of Members believe is necessary. That option is lost by my noble friend’s amendment, but it is a worthwhile provision to maintain.

On the question of what constitutes a motion of no confidence and whether it should automatically trigger an election, I recall that in our earlier debates my noble friend Lord Norton of Louth indicated that that should not necessarily be an automatic consequence. However, a consequence of the amendment is that there would be an election. The noble and learned Lord, Lord Falconer of Thoroton, suggested a way round it and, in introducing his amendment, my noble friend Lord Cormack suggested that if it was after the Queen’s Speech in the first Session there could possibly be other ways.

It is important, therefore, that we reflect on circumstances in which an election should not automatically be triggered, the most obvious one being immediately after a general election when a party does not yet have the confidence of the House and there is still an opportunity for another Government to be formed. Equally—I cannot say this is a Narvik situation because it is not—there may perhaps at a time of extreme national crisis be a view that a Government should not continue and that there is a case to be made for a national Government. Indeed, it occurred to me that the Bill as drafted would provide for that. There could be a motion of no confidence and a period of time—we can debate whether or not it should be 14 days—for a new Government to be established which could in such circumstances enjoy the confidence of the House of Commons. I find my noble friend’s amendment defective in that regard because there are circumstances where the automatic triggering of a general election would not necessarily be the right way to proceed. I will not elaborate on the point about an incoming Government after an election and the fact that we do not want election after election after election.

A number of colleagues have indicated that there are problems with the amendment. As I have indicated, I do not want to take technical issues— it used to annoy me greatly in opposition if Ministers said there were technical problems—unless they are very fundamental.

On the second branch of what would constitute a vote of no confidence—namely, a Bill defined by the Prime Minister of the day as being essential to his or her Administration continuing in office—my noble friend Lord Tyler expressed scepticism; the noble Lord, Lord Martin, felt it would be unwise and was concerned about the Speaker; and my noble friend Lord Forsyth also expressed concern about that. Quite apart from trying to get a definition of what constitutes a Motion of no confidence, a Government facing a problem with their own Back-Benchers could simply decide that they would make a particular vote a matter of confidence—the black arts may well come into play—for the purpose of imposing party discipline. As we are trying to initiate a switch from the Executive to Parliament, that would be a regrettable consequence of that trigger point for a general election. Likewise, as my noble friend Lord Tyler indicated, that would be a decision of the Prime Minister and not of Parliament or the Speaker, and therefore it would be an Executive decision which, in certain circumstances, could conceivably be open to challenge.

I know my noble friend Lord Forsyth has strong reservations on fixed-term Parliaments—I probably understate his position—but he made an important point in his exchange with the noble and learned Lord, Lord Falconer of Thoroton. He said that the examples the noble and learned Lord was giving were not operative within the framework of a fixed-term Parliament. If that is the case and we are to have fixed-term Parliaments, the rules will change. As he pointed out, the simplest thing in these circumstances may be to say that a motion of no confidence is what it says. On what constitutes confidence or no confidence in the question of supply, my noble friend Lord Norton said in his article of 1978, Government Defeats in the House of Commons: Myth and Reality:

“The most effective means whereby the House could declare its lack of confidence would be through an explicitly-worded motion of no confidence”.

I did say that we were in listening mode—and, indeed, reading mode. That was an important point.

The noble Lord, Lord Howarth, spoke of his concerns about the Speaker’s certificate. I do not wish to rehearse our earlier debate; I undertook then to reflect on that. However, what I found difficult was his suggesting that the more we try to write down and define matters, the more difficult it is, yet seeming to have an objection to the Government’s position where they did not seek closely to define. That seemed to be a contradictory view. My noble and learned friend Lord Howe said that we should keep it as simple as possible. That is what we have sought to do by setting a background where it is possible to recognise a motion of no confidence rather than trying to define it. This matter has been looked at many times, including in the other place. Whenever efforts are made to bring some definition to it, other than perhaps a very simple one, one seems to conjure up more difficulties.

I said at the outset that I wanted to hear the arguments about structure and definitions. Members on both sides of the Committee have expressed a number of views. I clarify again that I shall speak with my colleagues on these matters. The principles that we wish to establish are 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. Various ways as to how we might do that have been suggested. The amendment moved by my noble friend Lord Cormack has been very helpful in suggesting one way. It has a number of problems to it, but the comments that it has triggered will help shape our thinking as we move to the next stage of the Bill.

I reflect that perhaps we have got it right because these are very complicated matters, but I undertake to give serious consideration not only to what was said in response to this amendment but also to earlier amendments and those which were heard on the second day of Committee. On that basis—

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[Lord Wallace of Tankerness]

We debated this under Amendments 35 and 39. I said then and as part of our general debates that, in my understanding, if the Prime Minister resigned—nothing in the Bill stops the Prime Minister resigning in those circumstances—the Queen would invite another Member of Parliament to form a Government. If that other Member of Parliament tried to form a Government but there was a motion of no confidence in that Government, there would be an election. Alternatively, the Prime Minister may have resigned and it may be evident to everyone that there is stalemate and that the sensible thing—with agreement across all parties—is to have an election. In that case, two-thirds of Members could vote for an early Dissolution.

[Lord Cormack]

My Lords—

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[Lord Falconer of Thoroton]

My Lords, our debates on Clause 2 have been very significant. Would it be possible for the noble and learned Lord, Lord Wallace of Tankerness, to suggest some process? He has been accommodating and conciliatory, and he has broadly shared the aim, expressed all around the House, of there being no uncertainty about the circumstances in which an election would be triggered. As I understand it—I may have misunderstood—the Minister is not seeking to dislodge the basic principle that, when a Government lose the confidence of the House of Commons, that Government have to go.

Could I invite the noble and learned Lord to convene a meeting of all interested parties—I do not mean political parties—from all over the House to discuss this, with a view to agreeing a Clause 2 that reflects the concerns that he appeared to share? The noble and learned Lord—I hope that this will not be a case of “once bitten, twice shy”—was accommodating in indicating during the Parliamentary Voting System and Constituencies Bill that he would come back with things, and he is leaving me with the impression that he shares many of our concerns. Perhaps the way to move forward is for those who are interested to meet him to try to agree a clause that reflects the sort of principles he just went through. Does that suggestion find favour with the noble and learned Lord?

[Lord Wallace of Tankerness]

I am certainly more than willing to meet. I will need to discuss with ministerial colleagues—it will not be just I who have to reflect on this—but I am certainly willing to meet, although I do not know whether that can be done constructively with a large number, or whether it is better done with a smaller number. The noble Lord, Lord Martin, has already suggested that he and the noble Baroness, Lady Boothroyd, would be willing to meet. I have said that I would welcome that opportunity, although that would be to deal with a discrete part of the Bill. I am sure that, through the usual channels, we can devise some way of meeting, either individually or by convening a much larger meeting. I am sometimes sceptical about how far you can get without convening a larger meeting. I will work out the best way to take that forward, with an undertaking to meet and include those—without, I hope, being exhaustive—who have made an important contribution to our deliberations in Committee.

[Lord Falconer of Thoroton]

I am very grateful to the noble and learned Lord. One of the things that very much infused the debate on Clause 2 is the question of what the Government have in mind when they use the phrase “motion of no confidence”. For example, it was never clear—I am sure this is my fault for not listening; it is very late—whether a motion of no confidence includes being defeated on a motion of confidence. Does a motion of no confidence include things that are not explicit? Does the definition of a motion of confidence in Erskine May apply in helping us to construe the reference to a motion of no confidence in Clause 2? We need to know the answers to those questions. If the noble and learned Lord does not want to answer now, I am more than happy for him to write. However, we do need clear answers to those questions.

[Lord Wallace of Tankerness]

My Lords, I tried to answer on this in response to the previous debate, when I indicated that we recognised that no-confidence motions could take and have taken many different forms, and that our desire in the Bill was not to be prescriptive and not to restrict flexibility. That is where we started from and that is what we sought to do. I think a vote of no confidence would not include a vote of confidence, but it would not be beyond the wit of a leader of the Opposition to table an amendment inserting the word “no”. That is clearly part of the discussion that we can have. The noble and learned Lord asked what our proposed statutory definition of a motion of no confidence was. In response to the earlier debate, I said that we recognised the many different forms that it could take, as he himself illustrated in his speech. Our desire was not to restrict flexibility. We will enter the discussion, as I have said, bearing in mind the comments that have been made from various parts of your Lordships’ Chamber.

[Lord Falconer of Thoroton]

There was just a flicker there, in that the noble and learned Lord said a vote of no confidence would not include a vote of confidence. Therefore, you could have the strange situation where the Government are defeated on a vote of confidence but do not resign at that point. Indeed, there could not be a general election under those circumstances; under this Bill, there would then have to be a vote of no confidence at that point. How nutty is this Bill?

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[Lord Falconer of Thoroton]

My Lords, this amendment deals with the question of the potential coincidence between elections for the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Our draft gives the Prime Minister the ability to lay an order to ensure that a general election must take place at least 30 days apart from the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly elections, to avoid a coincidence of these occurring on the same day.

I put my amendment down to probe the Government’s position on this. Everybody understands that the first general election under any Fixed-term Parliaments Act is likely to occur at or near the same date as the elections for the institutions I have referred to. Subsequent to my putting my amendment down, the Government, in consultation with the relevant institutions, have now reached some sort of agreement and have now put their amendments down, as Amendments 55B and 55C. Would it be convenient to your Lordships if we heard what the Government have proposed first, because I do not fully understand it? Once we hear what the Government have proposed, it would then be possible to see whether we need to proceed with our probing amendments.

[Lord Wallace of Tankerness]

I hope this will be a helpful way to proceed, because Amendments 55B and 55C standing in my name implement agreements reached with the Scottish Parliament and the National Assembly for Wales in relation to the coincidence of elections in 2015. It is important to say from the outset that this Bill has not created the possibility that elections to the UK Parliament and the devolved institutions coincide—that could have happened anyway. However, the Bill has given us prior warning and has allowed us an opportunity to plan for the eventuality.

The Government believe that there can be tangible benefits from combining elections, in terms of voter convenience and cost. These were factors which led to the decision to combine the voting systems referendum with other polls on 5 May. However, combining elections for two legislatures arguably poses issues which did not arise from the combination of the polls with a referendum. I have outlined to your Lordships’ House previously—both at Second Reading and in one of our earlier debates in Committee—that concerns have been expressed by the Scottish Parliament, by the Welsh Assembly and in the other place that if the two sets of elections coincide it could be difficult to ensure that voters are able to differentiate between the manifestos for each election for each separate parliament, and that might inhibit the candidates’ ability to campaign effectively. There is also the added complication of different voting systems in the different elections; the 2015 UK general election could be held using a new electoral system, if the referendum on 5 May has an affirmative outcome, and will in any event use different boundaries.

This set of circumstances meant that it was not appropriate to combine the polls to the devolved institutions and the House of Commons in this instance. To that end, we have been in lengthy discussions with the Presiding Officers of both the Scottish Parliament and the Welsh Assembly. I made it clear at Second Reading that we wrote to the Presiding Officers 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 up to one year earlier or later, the Government would then table an amendment to this Bill which would seek to set the dates of these elections on a one-off basis. Copies of the letters to the respective Presiding Officers have been placed in the Library of the House.

The Scottish Parliament passed a unanimous motion on 3 March confirming that it wished the United Kingdom Government to bring forward a provision to defer its 2015 general election to 5 May 2016. A similar motion was passed by the Welsh Assembly on 16 March. To this end, the amendments in my name will provide that the general elections to the Scottish Parliament and the Welsh Assembly currently scheduled for May 2015 will be deferred by one year in line with the motions passed by the Scottish Parliament and the Welsh Assembly. That will ensure that the two sets of elections do not coincide in 2015.

[Lord Wigley]

Before he sits down, can the noble and learned Lord, Lord Wallace, confirm that the Government’s amendment covers everything that had arisen in discussion with the National Assembly for Wales and in the debate that took place on this matter there? When he says that this is a one-off solution, how might this be handled in future? Does it mean going through all this again every time there might be a coincidence or is there some agreement to get some stable basis ongoing for however long?

[Lord Wallace of Tankerness]

My Lords, I was not about to sit down. I was about to address how we might proceed in the future. I point out that this was not a question of the Assembly Members or the Scottish Parliament awarding themselves an extra year—the motions were passed unanimously by the outgoing Assembly and Parliament. A new Parliament and a new Assembly will be elected on 5 May but we believed it was important to bring forward provisions now so that, at least when people go to vote on 5 May, they will know the period of the Parliament or the Assembly which they are electing.

[Lord Falconer of Thoroton]

The Minister says that people will know. Does he envisage that the Bill will be passed by 5 May 2011?

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[Lord Wallace of Tankerness]

People will know our intentions. I stand corrected by the noble and learned Lord. We thought it was important that we flagged up that intention, subject to these amendments being carried this evening and in the Bill itself. If the Bill is not passed there will not necessarily be a coincidence but there still could be a coincidence of elections on 7 May 2015.

Subject to these amendments being accepted, in the longer term we would then need to carry out a detailed assessment of the implications of the two sets of elections coinciding at a later date. In the light of this we would consider whether to conduct a public consultation in Scotland and Wales on whether the devolved institutions should permanently be extended to five-year terms. While the 2015 general elections to the Scottish Parliament and Welsh Assembly will be deferred by one year, these will be treated as ordinary elections and subject to the usual rules. For instance, a subsequent ordinary general election will be scheduled to be held on the first Thursday in May in the fourth calendar year following the deferred election. Additionally, the power to vary Assembly or Holyrood general elections by one month earlier or later under Section 2(5) of the Scotland Act 1998 or Section 4 of the Government of Wales Act 2006 will apply. In both instances Holyrood and the Welsh National Assembly may still vote for an early dissolution with the two-thirds majority, in line with the existing provisions in the respective devolution Acts. Such an early general election does not affect the subsequent ordinary general election unless the extraordinary election was in the six months prior to the scheduled election.

A number of noble Lords have expressed the view that if the Government had proposed a four-year term for this Parliament then the problem would never have arisen. We have debated at length the Government’s reasons for preferring the five-year term and I do not propose to rehearse them now. It was recognised when the debates took place that we were willing to look at future possible coincidence of elections and, on the back of that, to look at the possibility of extending to five years the lifetime of the devolved Parliament and Assembly. We do not believe that it would be proper to do that on a permanent basis without having that further discussion. I also ask your Lordships to bear in mind that there is always the possibility of the coincidence happening in any event. This has allowed an opportunity to address the possibility now rather than finding ourselves in April, May or March 2015 seeing that a coincidence was about to happen.

Following correspondence with parties in Northern Ireland on this issue, Northern Ireland Office Ministers concluded it would be better to await the outcome of the combined polls scheduled for May this year before taking a decision on whether special provision would be needed for Northern Ireland.

I am happy to stop there and allow the noble and learned Lord to speak to his amendment before going on. I simply observe that it is possible at the moment for the Presiding Officer of the Scottish Parliament or the Secretary of State for Wales to move the election by 30 days. Whether 30 days would be enough to get a proper disjunction of the different election campaigns remains to be seen. I look forward with interest to what the noble and learned Lord says about that. The problem was identified. We engaged with the respective institutions and sought their views on what they would wish their response to be, and these amendments deliver on the way forward agreed with the respective Parliament and Assembly.

[Lord Wigley]

In the first place, I thank the Minister and the Government for moving on this, following the discussion that took place in another place and the misgivings expressed quite widely. It is very helpful that these changes are proposed. None the less, there is an issue with regard to the 30 days. There would be considerable complications if two elections took place within that time, not least for those who have to organise the elections. In the context of Wales and, I suspect, Scotland the elections would be on different boundaries, as well as the possibility of there being different electoral systems. I hope that the Government will look again at the 30 days and see whether it could be elongated to two or three months. Can the decision be put in the hands of the National Assembly and not just the Secretary of State so that there is no question of any political tension arising out of this?

[Lord Falconer of Thoroton]

I have two or three difficulties with the Government’s proposal. First, if Parliament decides that it should be a four-year fixed term rather than a five-year one, the extension of the lives of the Scottish Parliament and the National Assembly for Wales would have been entirely unnecessary and not justified. What then are the Government going to do in relation to it? That suggests to me that the issue should have been dealt with only once it was known what the length of the fixed-term Parliament was, which you could not know until after the Bill had passed—which suggests that the Bill is coming at the wrong time in the cycle.

Secondly, it strikes me as wholly unsatisfactory that this provision deals only what the first of the elections and none of the subsequent elections. If there is always a five-year cycle, there will not be a coincidence again for a long time. However, as the noble and learned Lord, Lord Wallace of Tankerness, acknowledges, this could happen at any time. In those circumstances, while I fully accept what the noble Lord, Lord Wigley, is saying, and maybe my proposal to separate the elections by at least 30 days does not leave long enough, a mechanism needs to be properly addressed in the Bill for going forward and ensuring that when the clash occurs there is some process by which it can be dealt with. The Bill does not deal with that. This looks like a rather unsatisfactory sticking plaster to deal with something that had not been thought through before the Bill was introduced. What are the Minister’s proposals going to be for dealing with the problem as a permanent problem? Will there be another Act of Parliament in addition to the Acts of Parliament that we can expect to deal with the boundary revisions from the Parliamentary Voting System and Constituencies Bill, to which the noble and learned Lord referred earlier in the evening? Is this another loose end left flapping in the wind? Is it intended that the Scottish Parliament and the Welsh Assembly should have five-year terms only on this occasion, or for ever?

Thirdly, why has Northern Ireland been treated differently from these other two institutions?

[Lord Wallace of Tankerness]

My Lords, I sometimes wonder if the noble and learned Lord listened to what I said. I have answered those three questions, but perhaps, with respect, I did not explain clearly enough, so I shall try again.

The first question was with regard to whether we would have a four-year or a five-year Parliament. Clearly that is a debate that we will come to at Report, and I am not going to rehearse again the arguments why I believe the five-year option is preferable to the four-year one. If the Committee agrees today that these amendments in my name should be passed, I believe that they should stay because people who will be voting on 5 May should at least get some indication of what the length of the Parliament or Assembly that they are electing is likely to be.

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that it would be four years or five years?

[Lord Wallace of Tankerness]

I am saying that they would still get five years. I do not think it would be right to elect people on the basis that they believe they are getting five years and then to say, “By the way, you’re not”. The noble Lord, Lord Bach, shakes his head. I think we would attract even greater criticism if there was an expectation of five years, and then we said, “Oh, by the way, we’ve changed our minds. You’re not getting your five years. You’re being cut back to four”. That would be the source of some legitimate criticism. Of course, if that is what happens and we do have four years—I will not again emphasise the reasons why we should not—the chances of it recurring are probably less likely, because then you could get yourself on to a four-year cycle, depending on whether there was an early election.

The noble and learned Lord asked what would happen in the longer term. I did seek to explain that we have also indicated that, subject to these amendments being accepted, in the longer term we would carry out a detailed assessment of the implications of having two sets of elections coinciding on a later date. Obviously the Electoral Commission would be involved in that. In the light of that, we would consider whether to conduct a public consultation on whether in devolved institutions the term should permanently be extended to five years. We do not proceed to do that in the context of this Bill, but we have indicated, as I have done in earlier debates, that that is our proposal. I hope that I have made it clear on this occasion that that is what has happened.

The noble and learned Lord also raised a question about Northern Ireland. I thought that I had answered that but, for clarity, the situation there is that there was correspondence with the parties in Northern Ireland on this issue. Northern Ireland Office Ministers concluded that it would be better to await the outcome of combined polls scheduled for 5 May this year before taking a decision on whether special provision would be needed in the future for Northern Ireland. It was a reflection of the dialogue that had taken place within Northern Ireland, and I see nothing wrong with this Parliament being sensitive to the views expressed in different parts of our diverse United Kingdom. I think that is to our credit, so I do not think that it would have been appropriate to have made provision for Northern Ireland if that was not the feedback that we were getting in the consultations that had taken place.

[Lord Falconer of Thoroton]

It was my fault for not having heard that. Having heard what the noble and learned Lord said now and understood it—having been so dim-witted in not picking it up before, for which I apologise—perhaps that indicates that this Government should not have come forward quite so hastily with this Bill, but instead should have consulted on those issues, which are very important, before bringing forward the Bill. It is not too late.

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[Lord Bach]

My Lords, in supporting my noble friend on his amendment I invite the Government to think very carefully indeed before rejecting it, if that is what they intend to do. I speak from personal experience: in a former life, my noble friend was the regional secretary of the Labour Party in the east Midlands, so I worked extremely closely under him for many years and I can speak to his expert knowledge about running elections. I dare say that the Minister could talk about other individuals whom he worked with in that capacity and, no doubt, those from the Conservative Party could as well, while the fame of the noble Lord, Lord Rennard, goes before him. When you have such experts as my noble friend and the noble Lord, Lord Rennard, speaking with one voice, it behoves the Government to think carefully before rejecting what they suggest.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Kennedy of Southwark, for his amendment. Clearly, it seeks to dissolve Parliament 21 working days ahead of polling day rather than 17 working days. It is fair to point out that a 21-day timetable would be novel. It is not currently used in local or parliamentary elections; that in itself raises issues. I understand that the Electoral Commission, with which I know the noble Lord has an association, has previously suggested that the electoral timetable might be extended to 25 days. That would, not least, support participation by service voters. The commission has highlighted problems caused by the current election timetable and its associated deadlines for electors, candidates, political parties and electoral administrators. Those were reflected in the experiences that the noble Lord, Lord Kennedy, mentioned. My noble friend Lord Rennard also has experience of them.

The Electoral Commission notes that this change should not be made without a review of further changes that might then be required to the electoral timetable. I assure the Committee that the Government agree that this is an important issue. My right honourable friend the Deputy Prime Minister indicated during Second Reading in the other place that we believe there is merit in exploring an extension to the timetable. I note that, at present, there are different timetables for the elections to the Scottish Parliament, the National Assembly for Wales and, I think, the Northern Ireland Assembly. Therefore, there is merit in looking at this not just in relation to this Bill and future elections to the House of Commons but in looking generally at the election timetable.

The Electoral Commission has pointed out that the matter requires a thorough review to ensure that any change is coherent across the piece. There are practical issues and consequential complexities that have to be considered. It is not as simple as omitting “17” and replacing it with “21”. There are issues about the judgment on where particular milestones would best fall within an extended election timetable. For example, there may be competing views as to when they should fall with regard to nominations. We are anxious that, if we are to extend the timetable, we should find the most effective solution. The deadline for registering to vote is another important issue, as are the current deadlines for postal and proxy votes.

As I have indicated, we do not have experience of a 21-day timetable but the Government agree that this is an important issue and we want to set out our proposals on how we might address it in the future. In asking the noble Lord to withdraw his amendment, I hope he will accept that the Government recognise that there are much wider issues to deal with here, and that 21 days is perhaps not the appropriate length of time. We should look at the totality of a longer electoral timetable, but it would not be appropriate to amend it in this Bill.

[Lord Kennedy of Southwark]

I thank the noble and learned Lord for his response. I also thank the noble Lord, Lord Rennard, and my noble friend Lord Bach for their comments. I am happy to beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

Think, like the right honourable Nick Clegg, about giving the public more control over their politicians. There is always a sense of frustration that comes when a new Prime Minister comes in and the public get no say in whether this change is right. This would reflect this mood and give the public more control.

The noble Lord is right. I cannot think how I would have taken over as Prime Minister and at the same time been unpopular. It is an unlikely scenario. However, it is a way of avoiding lots of clubhouse politics, where you move from one to another. It does not necessarily drive a coach and horses through the Bill. It would do so if the viability provision or the change in policy were there. It would, however, be worth the Government thinking of a circumstance in which, for example, a Government totter on with a majority of one and want to have a general election but the Opposition will not give them a two-thirds vote. Why should there not be a general election in those circumstances? It might well be that the country is not assisted by there being weak government in those circumstances.

I completely understand why the Government would wish to knock out the very general reasons for Dissolution. However, if the Government are serious about trying to improve the constitution, it is worth them considering whether or not there are more specific reasons of the sort proposed by the noble Lord, Lord Howarth of Newport, that might be worth including in Clause 3(2) of the Bill that says that,

“Parliament cannot otherwise be dissolved”,

except in those situations that we have dealt with before, which is the two-thirds majority, the expiry of the fixed term or a motion of no confidence.

Amendment 55A says that Parliament cannot otherwise be dissolved,

“unless the House of Commons has approved on a division a motion tabled by the Prime Minister that the Prime Minister should request Her Majesty to dissolve Parliament”.

The effect of that provision is that it would not be in the discretion of the Prime Minister alone, which is the current position. Put aside everything else. Assume no Motion of no confidence. Assume no two-thirds vote. Assume no change to the Bill to allow any special measures. The Prime Minister could nevertheless table a Motion that says, “I think there should be a general election”, and, if Parliament backed him by a simple majority, there could be a general election. This is probably the position anyway because, as the noble and learned Lord, Lord Wallace of Tankerness, says, there is nothing to stop the Prime Minister from procuring a vote of no confidence to get rid of himself so that, for example, in the Heath situation, he could have an election to deal with a particular crisis that had struck the Government. Would it not be more sensible for there to be a straightforward mechanism that allowed that to happen? If it can happen by the back door, why should it not be allowed to happen by the front door? It does not offend against the Fixed-term Parliaments Bill because its stated purpose is to take away the right to call a general election from the Prime Minister and give it to Parliament. Amendment 55A does not offend against that principle

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these amendments. My immediate response was to share the view of my noble friend Lord Norton of Louth; that they do run a coach and possibly some horses though the Bill—although I do not agree with him that that is what should commend it. The other thing I noticed was that there was no certainty as to whether Parliament would in fact be dissolved in these circumstances. Parliament might otherwise be dissolved. The noble and learned Lord, Lord Falconer of Thoroton, suggested that it would be the new Prime Minister who would trigger this. If there is a discretion, the Prime Minister taking over in circumstances that might not be propitious for his party might not necessarily exercise it. I think we are back to the situation that the Bill seeks to avoid. My noble friend and the noble and learned Lord, Lord Falconer of Thoroton, recognised that issues such as changing government policy or a very subjective view about the viability of a Parliament would put the power back into the hands of the Prime Minister that this Bill seeks to remove.

I also observe that another Prime Minister may be appointed on the grounds of death or serious illness, and I am not sure that that would necessarily be good grounds for triggering Dissolution. I simply observe that in Wales where there are fixed-term Parliaments, there have been circumstances in which the First Minister resigned and a new First Minister was appointed, and I do not remember the Labour Party clamouring for an election. When subsequently the minority Government became a coalition Government, there was no suggestion then in the context of a fixed-term Parliament that there should have been an election. Nor was there any suggestion that an election would have been appropriate following the death of Donald Dewar in 2000 or the resignation of Henry McLeish in 2001. In circumstances in which we have had fixed-term Parliaments and there has been a change of First Minister, it has not been thought appropriate that there should be an election; rather, the fixed-term Parliament has seen itself out in circumstances in which the Government have the confidence of the Parliament. That is crucial because if the Government do not have the confidence of the Parliament, the provisions elsewhere in the Bill will kick in.

I do not really understand the point about the majority falling below 10. Historically, a majority of 10 could be quite a high number. I do not believe that that would be an appropriate circumstance in which there may be Dissolution.

On amendment 55A, I cannot share the view of the noble and learned Lord, Lord Falconer of Thoroton, that it is somehow consistent with the principles of the Fixed-term Parliament Bill. I think it drives more than a coach and horses through the Bill. I have said on a number of occasions that the situation is open to abuse. The Prime Minister of the day could contrive Dissolution by the back door, but I do not think that we should put a red carpet down to the back door or to the front door for him to do it. There would be a degree of opprobrium attached if he was thought to be bending the rules, or indeed if he went to the country on the basis of a vote of no confidence in him that had been expressed by the House of Commons. We all know the reality of this amendment; if the Prime Minister wanted to have the date of his choosing for his party’s best advantage, it would not even need the black arts of the Whips to get his Members to turn out and vote for it. It defeats the object of a fixed-term Parliament. In these circumstances, I urge the noble Lord to withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I was quite wrong. This has been a very zestful debate—positively sparkling. I congratulate all noble Lords who have spoken on their effervescence at this time of the night.

I tabled these amendments because I think that the Government have restricted the Bill to permitting elections to happen before the end of the fixed term in too limited a range of circumstances. I think there are circumstances in which it would be in the interests of politics and of the country that there should be an election. I apparently differ from the Government in thinking that elections are a good thing. I do not think that it is desirable to stave them off so that they can happen only once every five years, if you can get away with it. A general election is a great moment in the life of the country, and we should be willing to recognise that there will be situations in which an election would be a thoroughly positive thing that would be welcomed by the country and that would be good for our politics, for the quality of government and for our democracy. It may well be that I have not sufficiently tightly defined all these circumstances, and given that the noble Lord, Lord Norton of Louth, and the Minister have drawn attention to the palpable inadequacies of drafting in Amendment 55, I beg leave to withdraw it.

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Moved by

[Lord Wallace of Tankerness]

55B: After Clause 3, insert the following new Clause—
“General election for Scottish Parliament not to fall on same date as parliamentary general election under section 1(2)
(1) This section applies in relation to the ordinary general election for membership of the Scottish Parliament the poll for which would, apart from this section and disregarding sections 2(5) and 3(3) of the Scotland Act 1998, be held on 7 May 2015 (that is, the date specified in section 1(2) of this Act).
(2) Section 2(2) of the 1998 Act has effect as if, instead of providing for the poll for that election to be held on that date, it provided (subject to sections 2(5) and 3(3) of that Act) for the poll to be held on 5 May 2016 (and section 2(2) has effect in relation to subsequent ordinary general elections accordingly).”

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[Lord Falconer of Thoroton]

My Lords, I have absolutely nothing to say on prorogation but I would like to mention the significant contribution that my noble friend Lord Howarth of Newport has made to the Committee stage. I also congratulate the noble and learned Lord who has conducted Committee stage completely alone on behalf of the Government. Although I have disagreed with very much of what he said, he has done an absolutely first-class job.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for his kind remarks. I also thank—as I have done on a number of occasions—the noble Lord, Lord Howarth, for introducing amendments that have allowed us to look at important parts of this legislation. Indeed, I thank in general all others who have contributed to our constructive debates.

The noble Lord, Lord Howarth, asked about prorogation. There is a distinction between the prerogative power of dissolution and the prerogative power of prorogation. We have identified that the prerogative power of dissolution, which this legislation seeks to remove, can be used by the Prime Minister, in advising Her Majesty, for partisan purposes. By contrast, the prerogative power of prorogation is different. It is the mechanism that is used to bring to an end a Session of Parliament and determines, subject to the carry-over procedure, when Bills have to complete their passage through both Houses so that they become law; it is also used at times in the run-up to Parliament finishing its business pending Dissolution.

An incumbent Prime Minister, even today, could prorogue Parliament to prevent the other place considering a forthcoming no-confidence motion, as happened in Canada some two or three years ago. That risk exists today but the convention is that the Government and Parliament find time to debate a motion of no confidence tabled by the Official Opposition. It is instructive that the Constitution Committee of your Lordships’ House considered the question of prorogation as part of its examination of the Bill and decided that the risk of abuse of the power of prorogation is very small. It therefore concluded that Her Majesty’s power to prorogue Parliament should remain.

The noble Lord raised the possibility of abuse in relation to the 14 days to frustrate these ends. It is perhaps thought that preserving the prorogation power could mean that a Prime Minister who wants a general election can, after a no-confidence motion is passed, prorogue Parliament during the 14-day Government formation period and thus deny the new Government the opportunity for a motion of confidence in them to be passed. It is highly unlikely that would happen. There are two basic scenarios. The first is that there is no obvious alternative Government and therefore nothing would be achieved by proroguing Parliament. If it was the wish of the Prime Minister of the day to go to an election, he would simply proceed to an election after the expiry of the 14 days. The second is that there are political factors, such as the Prime Minister resigning after a no-confidence motion and Her Majesty appointing a new Prime Minister. In such a scenario the outgoing Prime Minister would have agreed to resign and it is inconceivable that he or she would resign and then not allow the new Prime Minister to test the confidence of the House. Even if the new Prime Minister took office and found that, in the mean time, a prorogation had been slipped through by the outgoing Prime Minister and the House had been prorogued, he or she would be able, through the Queen, to recall Parliament under Section 1 of the Meeting of Parliament Act 1797.

These are hypothetical examples but it is right that we should examine them. The power of prorogation can still be used properly and sensibly and is not in the same category as the power of dissolution. I hope that with these reassuring words the noble Lord will withdraw his amendment.

[Lord Howarth of Newport]

My Lords, I draw much comfort from what the Minister has just said. Indeed, we need not be too scared of the possibility of an abuse of the power of prorogation and, subject to what my noble friends consider in the mean time, I anticipate that we will not need to return to this issue on Report.

I am grateful for what my noble and learned friend said and for the tolerance of the House. If I have been a little overzealous it was because, very shortly before the first day of Committee on the Bill, only a small handful—perhaps not more than eight—amendments had been tabled. As we have all acknowledged, this is a constitutional reforming measure of first-rate importance. We attach great importance to the role of this House as a revising Chamber and it is appropriate that we have had a good range of amendments to consider and have given the measure useful scrutiny in Committee. I apologise that the House has had to put up with the sound of my voice for far too long. However, we have done a good job, as we shall again when we get to Report. In the mean time, I beg leave to withdraw the amendment.