Fixed-term Parliaments Bill

My Lords, this has again been an important debate. I pay a particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again. I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons. The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words ““motion of no confidence”” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was. Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use ““confidence”” or ““censure””. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, ““This is a motion of confidence””. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though ““confidence”” or ““censure”” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down. This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: ““We censure the Government for their determination to sell off the forests””. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states: "““That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order””.—[Official Report, Commons, 1/11/1956; col. 1631.]" That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated: "““That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues””.—[Official Report, Commons, 11/12/1956; col. 845.]" Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue. Clause 2(2), as drafted, says: "““An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—""(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted)””." Is it intended that the phrase, "““a motion of no confidence””," should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states: "““An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government””." That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states: "““A vote of no confidence will have been deemed to have been passed if””," the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states: "““A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition””." Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states: "““That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country””.—[Official Report, Commons, 4/12/1952; col. 1783.]" Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.