Fixed-term Parliaments Bill

My Lords, the new clause inserted by Amendment 20 would replace the existing Clause 2. It is focused on three purposes. It removes from the Bill as received from the other place ambiguities and vagueness about what is a Motion of no confidence and what is a Motion of confidence. It protects the Speaker of the House of Commons by removing him from the process of determining what is a Motion of no confidence or a Motion of confidence, and it improves the protection of parliamentary privilege. I see it as an exercise in damage limitation. This new clause, unlike other new clauses tabled by noble Lords to replace Clause 2, makes no other changes to the Bill. It would do nothing to thwart the essential purposes of the Government in the Bill. It retains the two-thirds provision and the 14-days provision which the Government want. I have made plain in other debates that I do not like these provisions and, indeed, I think the whole undertaking of this Bill to establish fixed-term Parliaments is a bad idea, but in this House, presented with the will of the House of Commons, those of us who do not like it have, I fear, to accept that it is a bad idea whose time has come. If the House accepts the new clause unamended, the legislation will, I submit, provide for the principles that the Minister told us in Committee the Government wish to establish. He said 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””.—[Official Report, 29/3/11; col. 1215.]" I believe that this new clause is also consistent with the conclusions of your Lordships’ Select Committee on the Constitution. I am most grateful to the noble and learned Lord the Minister and his colleague Mr Harper for meeting me and the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin and the noble Lord, Lord Pannick, who have put their names to the new clause. Of course, I have drawn enormous encouragement from their doing so. The Minister was characteristically courteous and constructive at the meeting. In light of our productive discussion, the new clause we originally tabled was somewhat redrafted and improved. I was delighted when the Minister added his own name to the new clause. Clause 2(2) as drafted—concerning Motions of no confidence and Motions of confidence—contains problematic ambiguities and vaguenesses. These were helpfully described by Dr Anne Twomey in her written evidence to your Lordships’ Select Committee on the Constitution, at paragraphs 4.11 and 4.12 on page 152 of the compendium of written evidence. Such ambiguities do not matter where constitutional procedures are not statutorily prescribed. Indeed, they may be beneficial as they allow the determination of who is to be the Government to happen in response to fluctuating political realities. But in a statutory system, they are dangerous, creating a combination of uncertainty and inflexibility. To the observations made by Dr Twomey, I would add that there is a further crucial vagueness in Clause 2 as drafted, in that there is no legal definition either already in existence or provided by the Bill as to what is a Motion of confidence or no confidence. The reason why this is so crucial and dangerous is that, as the Bill stands, it could in some circumstances lay the onus of interpretation, and therefore of decision as to the fate of the Government and whether there is to be a general election, on the Speaker. Although in some instances it would be entirely clear from the wording of the Motion that the vote was a confidence or no confidence vote, it would by no means necessarily be so. As the invaluable brief from the Library of the House of Commons says: "““Yet, despite their central importance, there is no certainty about the rules on the form and applicability of confidence motions in the UK Parliament, as it is established by convention rather than by statute or standing order of the House … There is no standard formulation for confidence motions””." Motions may be regarded as Motions of censure or confidence according to particular circumstances. A Motion to reduce a Minister’s salary was regarded as a confidence Motion in 1895. Motions in two debates on Suez in 1956 were regarded by the House of Commons as confidence Motions, though neither the substantive Motions nor the amendments were formulated as Motions of no confidence or Motions of confidence. In 1976, an adjournment Motion was treated as a confidence Motion following the defeat of the Government on their public expenditure White Paper. In 2003, Mr Blair made clear only after the debate and the vote that he regarded the vote on the Iraq war as a confidence vote. It is very hard to see how the Speaker could possibly have issued a certificate in some of these situations. Under our existing arrangements, it is for the Prime Minister and the House of Commons to judge whether a Motion is a matter of confidence. Under the system that the Government have hitherto proposed, it would be for the Speaker. This, as the noble Baroness, Lady Boothroyd, explained to us compellingly in Committee, would be a major extension of the Speaker’s role and could be a very dangerous one. It could politicise the role of the Speaker, requiring the Speaker to decide a supremely contentious, vexed and fraught political issue. In Committee, the Lord, Lord Martin, described the vicious pressures that could be expected to be brought to bear on the Speaker in such circumstances. If the Speaker were perceived to have taken sides, his reputation as a servant of the whole House and his reputation for impartiality and integrity could hardly survive. Not only would the reputation of the individual Speaker suffer, but at a time when we all desperately want to see the reputation of Parliament regained, it would also affect the very office of the Speaker, which personifies the institution of the Commons. The new clause therefore omits the requirement for the Speaker to issue certificates. I am very pleased to see that none of the amendments now on the Marshalled List relating to Clause 2 seeks to preserve the requirement for the Speaker to issue certificates. The new clause also seeks to provide clarity as to what is to be a Motion of confidence or of no confidence. Under the new clause, Motions understood politically to relate to confidence could in the future still be debated and voted on in a multiplicity of forms, just as they have in the past. But for the purposes of establishing constitutionally and legally, in the new context of this fixed-term Parliaments legislation and provision within it for an early parliamentary general election, whether a Motion of confidence or no confidence has or has not been passed, the Motion must have been tabled in the precise terms prescribed in the new clause. Let me note here that the new clause would allow for the possibility of the Prime Minister resigning and an early general election occurring in that situation. This is something that the noble Lord, Lord Norton, and I have both been concerned to see accommodated within the legislation. The noble Lord has tabled a new clause which deals specifically with that. This new clause does not do so because I think it is unnecessary. Under the new clause, if the Prime Minister and the Government resigned, he could give way to another Prime Minister who would seek a vote of confidence. If the new Prime Minister secured the confidence of the House of Commons within 14 days, no general election would follow, and if he did not, there would then be an early election. Alternatively, a Prime Minister who resigned could ask the House of Commons to agree by a vote of two-thirds of its Members that there should be an early general election. In these ways, the Government’s purpose is preserved, but the Prime Minister should not be free of himself to determine the date of a general election. However, the flexibility exists to hold an early election following the resignation of the Prime Minister if the House of Commons judges it to be appropriate. There is also the important consideration that tightening the definitions of confidence and no confidence Motions, and removing from the Bill the Speaker’s duty to issue a certificate, may help to protect the House of Commons from the risk that proceedings in Parliament, contrary to the doctrine of parliamentary privilege and the principle so eloquently expressed in Article 9 of the Bill of Rights, would be questioned in court. Academic witnesses and your Lordships’ Select Committee have taken the view that while the risk of intervention by the courts cannot entirely be discounted, there is no serious practical risk of this happening. The Clerk of the House of Commons, in formal evidence based on the expert advice available to him and reiterated after he had taken account of all the evidence given to both Select Committees, disagrees. I believe that we should do what we can to minimise any risk, even if it is a remote risk, to parliamentary privilege. I explained in Committee during our debate on Amendment 42 why, for my part, I do think that there is a real risk that the Bill as we now have it could increase the potential for intrusion by the courts, and the risk may come particularly from the European Court of Human Rights into what should be strictly internal proceedings in Parliament. I will not repeat the points I made then. Much more important than what I say were the warnings given in Committee by the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin. It is among the many virtues of your Lordships’ appointed House that we have among us former Speakers of the House of Commons. We recognise that they speak with particular authority concerning such matters. My noble and learned friend Lord Falconer and my noble friend Lord Bach took me rather by surprise when they tabled their amendments to this new clause on Thursday. I knew, of course, that they were opposed to the 14-days provision; that is common ground among many of us. But the purpose of this new clause has been strictly focused on preventing unnecessary damage to the office of the Speaker and to the effective functioning of the House of Commons within the context of the Government’s policy on fixed-term Parliaments. Ministers have responded constructively to these concerns, which have also been expressed by very eminent Cross-Benchers as well as by me. We negotiated to achieve the formulation in the revised new clause set out in Amendment 20. I gave the Minister my word that I was content with it and that I would table the revised new clause in exactly those words. So my noble friends have placed me in a delicate position. What matter, however, are the decisions the House will take, having looked at the new clause, the amendments tabled to it, and the other interesting new clauses that have been tabled. I beg to move. Amendment 20A (to Amendment 20) Moved by