Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 10th May 2011 Lords Chamber

[Lord Grocott]

My Lords, this is a very simple amendment with a very simple objective which I hope the Government will be able to accept. As the House knows, I find the Bill entirely unattractive and wish that we were simply getting rid of it, but if we are to have a Bill where there are fixed five-year Parliaments, then it follows, as night follows day, that there ought to be a rule governing the number of Sessions within the fixed five years.

It is very odd trying to put our constitution into a straitjacket, but the Government seem intent on doing so. This amendment was considered in Committee but not very satisfactory answers were given. The reason I have been inspired to table it is that whereas we normally know that a parliamentary Session will last about a year—with the exception of the first year of a Parliament, which can frequently be 18 months, from, say, May in one year until November the following year—I am sorry to say that this Government have unilaterally decided that there would be a two-year Session to begin this Parliament.

If we were following the normal conventions of our democracy then we would not be debating the Report stage of a Bill now, we would be having a Queen’s Speech. It is a year since the general election and that is the normal length of a Session of Parliament. The Government have already told us that the next general election will be in May 2015, so it seems an incredibly simple proposition that there should be five Sessions of one year each. Normally it would be completely unnecessary for me or anyone else to move an amendment requiring that this should be the case, but the Government have broken the normal rules. I do not know where the decision to have a two-year Session came from. I ask the noble and learned Lord, Lord Wallace, what consultation the Government had with the Opposition or anyone else when they decided that we should have a two-year Session of Parliament.

As we all know, the sessional discipline is part of the delicate balance between Government and Opposition. Oppositions get stronger, in a sense, as the Session progresses because the Government know that they are up against the deadline of a Queen’s Speech; and we have had, quite properly, to establish precise mechanisms to enable a Bill to be carried over from one Session to the next. I say “quite properly” because we have all recognised in the past—although apparently not now—that it would be quite wrong for a Government simply to be able to extend at their convenience the periods between Queen’s Speeches.

As I say, I do not like translating conventions into rules, but it is necessary in this case. Why are we not having a Queen’s Speech now? Why are the Government not bringing the first year of this Parliament to a conclusion in the normal way, after 12 months, making concessions on Bills—which is what Governments do towards the end of a Session—and then preparing for the next statement of the Government’s policies and legislative objectives, which of course is what we get with a new Queen’s Speech? If the Government are intent on having five years after five years after five years ad infinitum—although I am obviously delighted with the amendment that has been passed that will require any new Government to think again about this—what could conceivably be the objection to insisting in this legislation, which provides us with the opportunity, that there should be a minimum of five Sessions in a five-year Parliament?

I looked in vain, having reread the Committee stage when this was discussed, but no one spoke against it except the noble and learned Lord, Lord Wallace. Maybe it was wishful thinking on my part, but I got the feeling that he was not wildly enthusiastic about speaking against it. The only objections that he offered were that this could present problems should there be a Dissolution of Parliament under the terms of this legislation in less than five years. We all know that that is a possibility; again, it is a part of the Bill that not many of us like, but there are precise provisions for saying how Parliaments can be of a period of less than five years. If the Government have found the mechanism for dealing with a Parliament that lasts less than five years, surely it is not difficult to find a mechanism for dealing with the consequences for parliamentary Sessions. It is unfortunate that we have to go down this road but, if we have, it cannot be beyond the skill of parliamentary draftsmen to deal with that objection.

The only other case that the noble and learned Lord, Lord Wallace, offered in Committee comes in col. 526 of Hansard on 21 March. He explained why the Government decided that it would be not a one-year Session but a two-year Session; it was announced unilaterally to Parliament last September without consultation, as far as I know—although I would be delighted to be proved wrong in that respect. The explanation that was given was as follows:

“An announcement was made in September, which would normally have been between a third and half way through the Session”.

He is referring to the last Session, which should have concluded this May, as I have suggested.

“There was an option to truncate the Session about now”—

he was speaking in March—

“but it was thought that the best thing to do was to go to next year”.

The Minister is very precise with words; he is a lawyer and is careful what he says. It is not exactly truncating a Session to suggest that it should be for a year, however. It really is a fairly loose use of the word.

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

Does the noble Lord not recall that the normal practice has been for the first Session after a May election—indeed, I think that it happened with almost every Government elected when Mr Blair was Prime Minister—to last not a year but until the following autumn? So when I say truncated, I mean that there would not normally have been a Queen’s Speech this May; it would still have been in November. The first Session would probably have gone 18 months, so to have had a Queen’s Speech in March or April would have been to truncate the normal practice after a May general election.

[Lord Grocott]

The problem with that argument is that, yes, it is true that if the election is in May then normally you have the Queen’s Speech the following year, in November. But if there is an election in October—and one that I vividly remember is the one in October 1974, because it was when the noble Lord, Lord Tyler, went out and I came in—the Queen’s Speech is the following November. The convention is that the Queen’s Speech is in November and if the sequence of elections means that that does not happen, it is quite right that there is a long Session of 18 months. There is a bit of a case for that, I suppose; all Governments are wild with enthusiasm when they come in and have lots of exciting things to propose, such as Fixed-term Parliament Bills, and so on. So it goes for a longish Session. But this was a choice for the Government, once they had decided that there would be a five-year Parliament, between having a year Session or a two-year Session. If he thinks there is not much to choose between an 18-month Session, which as he rightly says obtains when there is a May election, and a two-year Session, let me say that it would have been heaven to me as Chief Whip to have had a two-year Session. There is no pressure on you and no trouble; you can spend as long as you like on Committee and Report stages, and so on. So I do not think that that argument held up very well.

I do not suggest evil intent on the part of the Minister or anyone else in the Government in this respect at all. I am simply saying that not much thought went into what was in fact a quite substantial shift of power between Government and Opposition. As I said, that is a pretty delicate matter in our parliamentary procedures in both Houses, because it shifted the balance of power substantially in favour of the Government. I thought that the Minister really gave the game away in this second sentence:

“There was an option to truncate the Session about now, but it was thought that the best thing to do was to go to next year”.—[Official Report, 21/3/11; col. 526.]

The question from where I am standing is: the best thing to do for whom? In whose interest was it unilaterally to determine that there should be a two-year Session?

I simply put two questions to the noble and learned Lord, Lord Wallace. First, was there any consultation through the normal channels about the Government's decision unilaterally to decide, for the first time in the past 30 or 40 years—I am sure that the historians could go much further—on a two-year Session which is massively to the Government’s advantage? Secondly, I really would like to know, once it was determined to be the “best thing to do”, in whose interest the decision was thought to be made. I beg to move.

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[Lord Howarth of Newport]

I suppose we could do what the Scottish Parliament does, which is to have no sub-division into annual Sessions within a four-year term—apparently shortly to be a five-year term in the Scottish Parliament. I think that we should either go the whole way in abolishing parliamentary Sessions and having some kind of continuing, rolling process of legislation, or have a rational, predictable, orderly division of the time available in a Parliament.

The amendment in the name of my noble friend Lord Grocott should not be necessary. It is clearly undesirable to legislate on internal proceedings in Parliament, but we have been driven to it by the behaviour of the coalition Government in awarding themselves a two-year Session in which they should have been able to get anything at all through. Their potential abuse of parliamentary strength has been mitigated only by their incompetence in failing to take advantage of the situation that they created for themselves. In the early months of this Session, we had almost no legislation introduced; we then had an immense amount of time spent on constitutional legislation, which the public did not want, culminating in the fiasco of the AV referendum. We now have the pause in the NHS legislation. I am given to understand that there are going to be new Bills introduced at Second Reading this summer, so that even with a two-year Session, they may run out of time to complete their programme; it really is pretty chaotic.

My noble friend does the House, and indeed Parliament, a service in drawing attention to this consideration. While I would not wish to see his amendment get on to the statute book, he very properly challenges the Government to think carefully about how they handle proceedings within this House. I do not want a written constitution but I want respect for the unwritten constitution.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Grocott, for affording the House a further opportunity to consider and scrutinise this point, which, as has been indicated, he first raised in Committee. At that point I indicated that the two-year Session that we are currently in was intended as a transitional situation so that we could get into a position where we had 12-month parliamentary Sessions that fitted in, should Parliament pass a fixed-term Parliament Act.

I draw your Lordships’ attention to the Written Ministerial Statement made by my right honourable friend the Leader of the other place, Sir George Young, on 23 March. He reiterated the Government’s decision to extend the current Session of Parliament to spring 2012,

“in order to ensure a smooth transition towards five, 12-month Sessions over a Parliament, which would be a beneficial consequence of Parliament agreeing the Fixed-term Parliaments Bill”.—[Official Report, Commons, 23/3/11; col. 57WS.]

I hope that the House and the noble Lord will be assured that it is our intention that there should normally be five Sessions in a five-year Parliament. While the expectation is that future Sessions will last for 12 months, it remains inappropriate to enshrine that in statute; indeed, I think that I understood the noble Lord himself to indicate that he would prefer that working practices and conventions were not enshrined in statute. It is our intention that in future Parliaments there should be five 12-month Sessions.

In the Bill we have sought to do only what is necessary to establish fixed-term Parliaments for the United Kingdom. I am not convinced that the case has been made for legislating for the number of Sessions. The Bill does not abolish the prerogative power to prorogue Parliament, which will continue to be used to set parliamentary Sessions, nor does the Bill affect the powers of each House to adjourn. It is worth noting that the Constitution Committee has endorsed our decision not to abolish the prerogative power to prorogue.

Future Sessions after this one will last for only 12 months. The noble Lord asked me about the points that I made in Committee. When I talked about truncating this Session, that was on the basis that, as he acknowledged, when elections have been held in May or June it has been customary for that first Session to continue through to the following October or November. To have had a Queen’s Speech around now would therefore have meant truncating what had been expected at the outset.

I have made it clear that the decision to go for two years and thereafter to have 12-monthly Sessions was taken not in May last year but at a later stage. I am not aware that there was any consultation—I accept that criticism—but this was intended to be a transitional measure. By that stage, the Government’s legislative programme had been announced and it would have been very difficult if we had moved immediately to a 12-month Session for the first Session, although that could have been done if it had been thought about at the outset. I hope that the House will accept that that is the purpose of this being a two-year Session. It is not intended that this should be repeated. My right honourable friend the Leader of the other place has indicated that it would now be our intention to move to five 12-month Sessions in a Parliament.

I take the point made by my noble friend Lord Norton about this always being in the interests of Parliament. My experience in your Lordships’ House in the run-up to the most recent general election is that, with the final Session starting in November and finishing in March in order to accommodate a May election, we have tended to have a short Session that I do not believe allows proper scrutiny of legislation. This led to a very unfortunate situation in the wash-up where large parts of Bills were ditched, some of which are now on the statute book but certainly did not have the kind of scrutiny that we would normally expect. Having five 12-month Sessions will allow for proper planning of legislation. While it would be unwise to say that there will never be any kind of wash-up at the end of the final Session, one hopes that there will be far less than has been the case hitherto. One of the advantages of a fixed-term Parliament is that it will be possible to plan a legislative programme in a way that will not lead to these log-jams at the end, when much legislation is virtually nodded through.

The decision having been taken to move to fixed-term Parliaments, and since we seem—for better or worse—to have moved into a situation where elections are held in May, the Bill provides for elections in May. Therefore, it makes sense that we should have annual May-to-May Sessions. I repeat: the current two-year Session is a transition. No doubt what we gain here is that there is only a finite amount of legislative time in the Parliament as a whole if it lasts for five years. It would not be appropriate to put that in the statute. I am grateful to the noble Lord for giving me an opportunity to reiterate the position and to flag up what my right honourable friend the Leader of the other place has said on this matter. With these reassurances, I hope the noble Lord will be prepared to withdraw his amendment.

[Lord Grocott]

I am grateful to the noble and learned Lord, Lord Wallace, for that response. He simply holds a fundamental view on the constitution. So do I, but it is a different one. He is comfortable with a legislative programme being neatly sliced and organised over a fixed-term Parliament, whereas I have been straightforward with the House in saying that I am not at all comfortable with that. I like the flexibility that normally obtains with our parliamentary system. I do not even have the problem that he has with the last Session of a four-year Parliament quite frequently being a five or six-month pre-election Session. All that the Bill will do is make sure that it is a 12-month pre-election Session instead of a six-month pre-election Session. It will also lead to a lot of uncertainty.

I was straightforward with the House in saying that I was, in some respects, very uncomfortable with my own amendment. For the reasons I have already set out, I do not like putting our constitution in any more of a straitjacket than it needs to be. I am very grateful for the contributions that have been made. As ever, I find myself agreeing with the noble Lord, Lord Brooke, on most things, particularly his reference to the 1945 to 1950 Labour Government having been the greatest Labour Government. I would go marginally further and say that it was the greatest peacetime Government in the history of this country; there is only a word’s difference between us.

I was taken with the point made by the noble Lord, Lord Norton. I agree with him that maybe a year is not necessarily the best period. Maybe it is worth discussing that. I strongly believe in the convention that we have. If a Government are unable to contain their legislative programme within an agreed period of time, there should be an agreement by either House to carry a Bill over from one Session to the next only after the most rigorous tests. However, I take the noble Lord’s point. I must admit that I was stopped in my tracks by my noble friend, who reminded me that it was against the philosophy of several of us to try to put the proceedings of this Parliament into too strong a legislative framework.

The point has been made, as the noble and learned Lord, Lord Wallace, has acknowledged. It is written in blood in Hansard that there will be 12-month Sessions for the remainder of this Parliament until the happy day when it comes to a conclusion and a Labour Government can repeal the whole of this legislation. In light of what has been said, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

I had thought before hearing the debate that I would tend to support the noble Lord, Lord Rennard, but I found what the noble Lord, Lord Norton of Louth, said powerful. Everyone appears to agree that the election is unlikely to be called early anyway; if there is sufficient consensus for it to be called early, that can be dealt with by the two-thirds provision. If it is to be up to two months late, that is a moderately massive exception and if it is to be done, there needs to be consensus. If there is that degree of consensus, it is extremely likely that emergency legislation can be got through in order to achieve it. We are much better off being certain. Having not intended to take this view, I am afraid that I found what the noble Lord, Lord Norton, said, rather powerful. I invite the Government to reflect on what the noble Lord said and perhaps bring the issue back at Third Reading. If the Minister brings back the issue at Third Reading in a way that reflects the arguments of the noble Lord, Lord Norton, or alternatively says, either now or at Third Reading, why the noble Lord is wrong, I would not support the noble Lord. However, if he does not, my inclination is to support the noble Lord, Lord Norton, either now or, as seems more sensible, after the Government have had an opportunity to reflect and come back at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as has been indicated, the purpose of the operation of the order-making power in Clause 1(5) is to provide, by a resolution of both Houses, for a Parliament to be extended by two months or for an election to be brought forward by up to two months because of an emergency or unforeseen circumstance. The Bill provides for five-year fixed terms and it is envisaged that elections would happen on the first Thursday in May every five years. However, we are conscious that there could be a short-term crisis that would mean that it would not be practicable to hold the election on the prescribed date. As was discussed in earlier debates and again this evening, such a scenario occurred in 2001 when an outbreak of foot and mouth disease meant that it was necessary to delay the date of the local elections in England, which were set by statute, and primary legislation was required. As it was only four years into the Parliament, it did not theoretically affect the date of the general election, although the widely anticipated date of the election was postponed because of the outbreak.

The power would allow the Prime Minister to vary the date by affirmative order by two months, earlier or later. It is worth bearing in mind that the Delegated Powers and Regulatory Reform Committee examined this power and concluded that it,

“does not consider the power to be inappropriate in principle”.

However, it recommended that the Bill should be amended to require that a statement setting out the Prime Minister's reasons for proposing the change of polling date must be laid before both Houses at the same time as the draft order. The Government considered and listened to the recommendation and the case made by the committee and, as noble Lords will recall, made the appropriate amendment in Committee, which indicated that we were ready and willing to respond to the committee.

The power is deliberately framed to be non-prescriptive. It is intended to be used in emergencies when we cannot predict what situation will arise, and to deal with a variety of scenarios. When including this power in the Bill, as my noble friend Lord Norton indicated, we looked at powers in the devolution Acts that allow for the dates of general elections to the devolved institutions to be delayed or brought forward. In the case of the foot and mouth outbreak in 2001, there would have been no point in bringing forward the election.

I accepted earlier that I had struggled to find a reason why we might want to bring forward an election. The noble Lord, Lord Pannick, suggested that the Olympics or the World Cup might be such occasions. We considered these as well. We know that the Olympics are unlikely to be awarded again to Britain for the foreseeable future, given that they will happen here next year. Regrettably, England did not succeed in its bid for the World Cup, and I am not sure that Scotland, Wales or Northern Ireland have a bid in preparation. I offer as a piece of political trivia that, such is the importance of the World Cup, the one parliamentary election in recent times not to be held on Thursday was the Hamilton by-election in 1978, which was held on a Wednesday so that it did not clash with Scotland's opening match in the World Cup in Argentina. I am not sure that it did Scotland much good.

[Lord Bach]

The noble Lord should not forget 2026 for the World Cup.

[Lord Wallace of Tankerness]

My apologies. I am not sure that the World Cup has traditionally been at this time of year. It would clash with the exciting climax to the Premiership and the build-up to the FA Cup final, the Scottish Cup final and the Scottish Premier League, whatever shape or form they may be in by 2026. My point is that we have struggled and we cannot readily think of a situation in which one might wish to bring forward an election.

It was our intention to future-proof the Bill, but, with regard to Amendments 12 and 14 in the names of my noble friends Lord Rennard, Lord Tyler and Lord Marks, I do not believe that by accepting them we undermine what we seek to achieve in the Bill. As has been pointed out, if it was necessary to bring forward a scheduled general election because the unforeseen event that none of us can think of actually happens, it would be open to the other place to pass a Dissolution Motion with the support of at least two- thirds of all MPs to trigger an early general election. That point was made by my noble friend Lord Norton. In the light of that, the Government would be willing to support these amendments and I hope your Lordships’ House would be willing to accept them.