Fixed-term Parliaments Bill

My Lords, I think my noble friend Lord Rennard, with his spirit on the previous Bill, managed to get some concessions out of the Government. Who knows what might happen? Before addressing the amendments that have been spoken to in this group, I shall briefly speak to Amendment 26, which is a government amendment and implements a recommendation made by the Delegated Powers and Regulatory Reform Committee. In common with the other amendments in this group, it concerns Clause 1(5), which confers a power on the Prime Minister to vary the date of a general election by up to two months earlier or later by order, subject to the affirmative procedure. I am sure the House will be grateful to the committee for the careful scrutiny it generally gives to legislation but has specifically given to the Bill. In its report, the committee concluded that the delegated power taken in Clause 1 was not inappropriate in principle and recommended that, when seeking to vary the date of an election under the power in Clause 1(5), a Prime Minister must lay a statement before both Houses setting out the reasons for proposing the variance of the date. The committee itself recognised that it would be unrealistic to specify a constraint which would embrace all the possible circumstances in which it would be appropriate to change the polling day. Instead, this is why the committee focused on the importance of ensuring that each House is fully aware of the reasons why the Prime Minister has proposed changing the polling day. That is an approach with which the Government agree. I am sure that your Lordships will be pleased to hear that the amendment implements the committee’s recommendation and provides that a statement must be laid before both Houses of Parliament setting out the reasons for proposing a change to the date of a scheduled general election. I certainly urge your Lordships to accept this amendment when the time comes. When the noble Lord, Lord Howarth, moved his amendment, he said, absolutely properly, that the powers in the Bill are important and that it is important in turn that they are scrutinised. His amendment would omit the order-making power from Clause 1(5), which allows for a Prime Minister to vary the date of a scheduled general election. The noble Lord clearly considers that in spite of the Delegated Powers Committee’s conclusion that the power was not inappropriate in principle, he is probing whether it is desirable to have this order-making power at all. I will set out to noble Lords why the Government consider it proper and necessary to have such a power. I do not think there is any doubt that the expectation is that Parliaments should last only five years and that elections will happen on the first Thursday in May but, as has been alluded to in the debate, there can be short-term crises that make it impracticable to hold an election on that date. The outbreak of foot and mouth disease in 2001 is the example that is very often given, when it was necessary to delay the local elections in England, Wales and Northern Ireland that were scheduled to take place in May. De facto it delayed the general election, although the fact that we were not up against the quinquennium meant that there was no need for any legislation; the Prime Minister simply delayed a date that had been widely expected. Foot and mouth obviously could not have been foreseen. Clause 1(5) provides that the Prime Minister will be able to alter the date of a general election to a day that is no more than two months earlier or later. Crucially, this can be done only by an order that requires the affirmative resolution of both Houses. In that respect, I entirely agree with my noble friend Lord Cormack, who emphasised the importance of both Houses being involved. If, however, your Lordships accept the Government’s amendment in this group, the Prime Minister will also be obliged to lay a statement before both Houses setting out the reasons for proposing the variance of the date. Without this power, primary legislation would have to be passed, as indeed happened with the local elections in 2001, if the date of the scheduled election had to be moved. Noble Lords might well ask why it would not be more appropriate for primary legislation to be taken forward in these circumstances. Th54e difficulty with primary legislation is that it could move the date of a scheduled election in an emergency. Provided that it had the consent of your Lordships' House, it could move such an election by more than two months. The fact that we are talking about a situation in which we are up against only the fixed term of five years means that we do not think it appropriate to bring about circumstances in which primary legislation could be brought forward that would take the lifetime of the Parliament more than two months beyond the five years. Therefore we see a limited order-making power that requires the approval of both Houses as appropriate in these circumstances. It is also important to note that the power might well have to be used at very short notice, when even an emergency Bill might not be possible. If we are to establish fixed terms, it is right that we put into place procedures that can be used to permit a very modest degree of flexibility, in the same way that procedures were put into legislation for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly, although those Parliaments do not determine that themselves. In the case of the Scottish Parliament it is the Presiding Officer, and in the case of the Welsh Assembly it is the Secretary of State for Wales. I cannot immediately remember the position in Northern Ireland, but the matter is not in the hands of its parliament. It is important to emphasise that we are proposing not a wide-ranging Henry VIII-type of order-making power but a power that is very limited. As I have said, I hope that the amendment that the Government have tabled will help to reassure noble Lords about the circumstances in which the power could be used. I do not think that Amendment 20, in the name of the noble Lord, Lord Rooker, was spoken to. Amendments 22 and 23, in the names of the noble Lords, Lord Rooker and Lord Howarth, and my noble friend Lord Norton of Louth, was spoken to my noble friend Lord Norton and supported by my noble friend Lord Rennard. The amendments would alter the power in Clause 1 so that an order to vary the date of election could be made only to defer an election and not to bring it forward. There was clearly a deferral in the foot and mouth example, but it is not inconceivable that a general election might need to be brought forward if we had prior warning of a significant event of national importance, during which time it would not be sensible to hold a general election. My noble friend Lord Rennard pressed me on this at Second Reading and I wholly acknowledge that I have yet to come up with a credible event—although I could think of some incredible ones—that would trigger this power. Nevertheless, a power such as this is to deal with crisis contingencies and, very often, that would be in the very circumstances that you cannot foresee—perhaps, as the noble Lord, Lord Desai, said, a ““black swan”” event. I would wager a bet that if these amendments were carried and the ““earlier or”” was deleted, at some stage in the next 15 to 20 years an event would happen to make one say, ““If only that had stayed in””. It is sensible to put in the same principle of flexibility that exists with regard to the devolved institutions. Perhaps I may remind your Lordships that that is counterbalanced with safeguards—the time limit on the power, the requirement to provide reasons and the agreement not just of the other place but of your Lordships’ House. If this amendment should be agreed, it is true that a scenario could arise where it is accepted that the election has to be brought forward. Obviously, under the powers in Clause 2, it would be possible for the House of Commons to resolve, with a two-thirds majority, to dissolve early. My concern about that is that it would not involve your Lordships’ House. We are trying to make an arrangement that would involve both Houses. In this Bill we are setting out procedures that we hope will become an established part of our constitutional framework. However, I would say to noble Lords who have spoken about this that I am prepared to go away and consider whether I could bring forward concrete examples as to where the power to have an earlier election might be appropriate. In turn, I would ask your Lordships who support this to consider whether, given the safeguards and the fact that very often the unforeseen does happen—the so-called ““black swan”” event—any damage is done by having this provision in the Bill and whether it may prove to be useful in the event of an unforeseen circumstance. I certainly am willing to consider this further. Amendment 24, in the name of my noble friend Lord Norton of Louth, indicates that the Prime Minister could not lay an order to vary the date of a scheduled general election by up to two months earlier or later unless he is satisfied that there is a situation that renders holding a scheduled general election, "““impractical or injurious to the economic, social or public health of the nation or a part thereof””." I fully acknowledge the point made by my noble friend that this is an important clause. Its constitutional significance is certainly not lost on the Government or on your Lordships’ House. It could extend the length of the Parliament beyond the quinquennium and, hence, this Bill would not be subject to the Parliament Act. However, in the light of the amendment that the Government have tabled, I question whether Amendment 24 is necessary. I share the recollection of my noble friend Lord Rennard: I do not think that the date of the 2005 election was changed. But, putting that to one side, I agree that the example given by the noble Lord, Lord Bach, of the death of Pope John Paul II—an event of international significance—is the kind of event that could in certain circumstances prompt a change. We are talking about a period of up to two months, but it does not need to be as long as two months. It may be thought fitting to change the date by one or two weeks in these circumstances. That would not necessarily fall into any of the categories set out by my noble friend. Equally, it is almost inevitable that the statement that the Prime Minister would have to make to set out his reasons for moving a general election would in all likelihood reflect the kind of concerns that my noble friend sets out in his amendment. I do not usually take drafting points at this stage but in this situation my concern goes further than just a drafting point. It may be something on which my noble friend would wish to reflect; I would be happy to discuss it. This goes beyond a simple drafting issue because it begs the basic question as to the basis on which a Prime Minister would come to the view that holding a scheduled general election would be, "““impractical or injurious to the economic, social or public health of the nation or a part thereof””." What criteria would the Prime Minister be expected to bear in mind? What is the threshold for whether a scheduled election should be held or not? Could it result in a threshold that is too low because it would enable an election to be moved because of some sort of administrative problem? Is it a decision that conceivably could be subject to judicial review? The other point is that the test is that of whether holding the election is injurious. It is hard to see where we might be trying to grapple with injury caused by an election as opposed to circumstances that would cause difficulty for the election. The foot and mouth outbreak was such an example. The election was not going to cause any difficulty, but it would have been difficult to hold the election because in certain parts of the country the regulations in place meant that people could not go out and canvass. I would ask my noble friend to reflect on whether the criteria may have got things the wrong way around, or whether this may be a ““both/and”” point in that there may be circumstances in which holding the election could be damaging but there may also be circumstances that make holding an election difficult.