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Clause 2 — Early parliamentary general elections

Fixed-Term Parliaments Bill (Programme) (No. 2) – in the House of Commons at 1:42 pm on 24th November 2010.

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Votes in this debate

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest 1:42 pm, 24th November 2010

I beg to move amendment 33, page 1, line 22, leave out from 'if' to end of clause and add

'on an address presented to Her Majesty by the House of Commons praying that a day be the polling day for an early parliamentary general election, Her Majesty appoints this day by proclamation to be the polling day for such an election.

(2) No motion shall be made for such an address except by the Prime Minister acting with the agreement of-

(a) the Leader of the Opposition; and

(b) each member of the House of Commons who at the time of the motion being made is the registered leader of a registered party that received more than 20 per cent. of the total votes cast at the previous parliamentary general election.

(3) An early parliamentary general election shall not otherwise take place.

(4) Subsection (1) applies for the purposes of the Timetable in rule 1 in Schedule 1 to the Representation of the People Act 1983.

(5) In this section-

"Leader of the Opposition" means the person who is the Leader of the Opposition in the House of Commons for the purposes of section 2 of the Ministerial and other Salaries Act 1975;

"registered leader", in relation to a party, means the person registered as that party's leader in accordance with section 24 of the Political Parties, Elections and Referendums Act 2000;

"registered party" means a party registered in a register of political parties maintained by the Electoral Commission in accordance with section 23 of the Political Parties, Elections and Referendums Act 2000.'.

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

Amendment 21, page 2, line 2, leave out 'early' and insert 'immediate'.

Amendment 4, page 2, leave out lines 3 to 7.

Amendment 34, in clause 3, page 2, line 28, leave out '(6)'.

Amendment 35, in clause 4, page 3, line 15, leave out '(6)'.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Once again, I bring to the Chamber the apologies of Mr Allen, the Chairman of the Select Committee on Political and Constitutional Reform, for his absence. He is, unfortunately, unable to be here, but I assure hon. Members that he is probably watching proceedings and that he will be better soon. He is still carrying out his duties as Chairman, but it is difficult for him to be here in the Chamber.

I am pleased to move the amendment tabled by the Select Committee, or at least some members of it. It concerns the House's procedure for determining the way in which an early election can be called. I, personally, do not support its wording and I shall not insist on putting it to a vote, and if others do so, I shall not vote for it. There is nothing wrong with that, as I am merely moving it. It forms an important part of the Select Committee's pre-legislative scrutiny of the Bill and, as such, it should be put before the Committee so that it can be properly discussed.

The amendment reflects some of the arguments that were heard during the Select Committee's inquiry into the Bill. I simply wish to ensure that hon. Members have the chance to examine these important issues. The amendment proposes an alternative way of bringing about what the Government seek to achieve in clause 2. It does not oppose the Bill's aims in any way, but simply proposes an alternative that hon. Members should consider.

As an alternative form, the amendment would have three advantages. First, it would avoid the risks involved in implementing the Government's proposal that a two thirds majority should be required for a vote to have effect. Secondly, it would avoid what the Committee described as the "uncertain" consequences of the provisions in the Bill on motions of no consequence- [ Laughter. ] That was a visual rather than a grammatical problem, and if the Committee will forgive me, I shall try again. I meant to say motions of no confidence, which would include the possibility of a Government

"subverting the purpose of the Bill by tabling and voting for a motion of no confidence in itself in order to trigger an early general election without the need for a super-majority."

Thirdly, the amendment would largely deal with the concern of the Clerk of the House, articulated to the Select Committee, that this part of the Bill would infringe the House's "exclusive cognisance" over its own proceedings-its right to decide for itself how its business should be done, and the concomitant principle that the courts will not interfere. When the Clerk told us of his concerns, we shared them, so tabling the amendment allows us to consider those real and well-founded concerns. I am aware that other amendments that we shall discuss this afternoon would deal with the situation in different ways, but amendment 33 proposes a simpler way of getting around those concerns. It would ensure that an early general election could take place only with cross-party support.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am sorry to intervene at such an early stage of my hon. Friend's comments, but I notice that proposed new subsection (2)(b) states that

"each member of the House of Commons who at the time of the motion being made is the registered leader of a registered party that received more than 20 per cent. of the total votes cast at the previous parliamentary general election."

Those are the people who are supposed to decide whether there will be a confidence motion. What does my hon. Friend feel about the fact that the proposal will disfranchise the representatives of between 3.5 million and 4 million people?

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

I appreciate my hon. Friend's point, and I find myself in some difficulty. I am happy to respond to it, but of course I agree with it. I am proposing the amendment not because I am passionate about it, but simply so that the Committee can discuss it. He is right to raise one of the issues that should be discussed. I take it that he means people who are represented by parties such as the nationalist parties. In that respect, if the amendment were accepted by the Committee and by the Government and if it became part of the Bill, I would find myself wishing further to amend it, to the effect that the parties concerned should be those that received more than 20% of the vote in the nation in the United Kingdom where their candidates stood for election. I hope that answers my hon. Friend's question. However, I do not think we need to go into that in much greater detail.

The amendment provides that an early general election would take place only when the House agreed by a simple majority to a motion in the name of the Prime Minister, tabled with the agreement of the Leader of the Opposition and the leader of any political party that had received more than 20% of the national vote at the previous general election, with the extra proviso that I have just added in response to my hon. Friend's well-made point.

Photo of Thomas Docherty Thomas Docherty Labour, Dunfermline and West Fife 2:15 pm, 24th November 2010

The hon. Lady may not be aware of this, but my recollection is that the Scottish Conservatives did not receive 20% of the vote in Scotland at the last general election. Is she saying, therefore, that the Under-Secretary of State for Scotland, David Mundell would not be able to take part in that process?

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

No, not at all. I appreciate the political point that the hon. Gentleman seeks to make, but that would make no difference because the Conservative party throughout the United Kingdom as a whole obtained considerably more than 20% of the popular vote, and in some places, such as Epping Forest-I am very pleased to say-a mere 54%. The hon. Gentleman makes a perfectly good point, but it would be a pity to take up the time of the Committee looking in detail at the percentages involved. My purpose in putting the issue before the Committee is to address the serious concerns relating to exclusive cognisance, which were put to the Select Committee by the Clerk, whose opinion on the matter we take very seriously. The Committee, too, should esteem the Clerk's opinion and recognise his concerns, and this is an opportunity for Members to consider them.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

Is the hon. Lady aware of the various bids for independence from Conservatives south of the border made from time to time by Conservatives in Scotland? The point made by Thomas Docherty might hold: the proposals could lead to the exclusion of the solitary, lonely Scottish Conservative figure on the Government Benches.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

It is kind of the hon. Gentleman to stand up for my right hon. Friend, as I do frequently, but my right hon. Friend is not, of course, the leader of a political party in the House. The Prime Minister is leader of the Conservative party, with a large proportion of the popular vote throughout the country behind him, and undertakes that task very well indeed.

Photo of George Howarth George Howarth Labour, Knowsley

I am filled with admiration at the extent to which the hon. Lady is managing to disagree with herself. Could she return to the question put by Mr Shepherd, and the legitimate point that there will be parties that receive significantly less than the threshold that she proposes, and will thus have no voice in the process? That cannot be democratic.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

The right hon. Gentleman is absolutely right. He is right, too, in his first point:

"Frailty, thy name is woman."

I can disagree with myself or anyone else when called to do so. If it is my duty, I can be-well, I think we will leave that aside.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

I appreciate that line from Shakespeare, too.

Mr Howarth is correct. There is some difficulty with the arithmetic threshold set out in the amendment, but there is also a matter of principle, and on this point I will argue with myself-or rather I will, as an individual, disagree with the relevant part of the Select Committee report. I think the correct democratic process is to consult the House as a whole, not merely the leaders of particular parties in the House. There is then a problem in defining how the democratic process should work when the House is considering consulting the leaders of political parties. If there was a party that had only one Member, one leader and a very small proportion of the vote, it would be ignored and that does not quite work.

Photo of Peter Soulsby Peter Soulsby Labour, Leicester South

I commend the hon. Lady for the excellent job that she is doing in putting forward an amendment with which she is not in entire agreement. As she told the House, she is making it on behalf of the Select Committee, of which I am also a member, and it expresses the concern that we heard from the Clerk about the way in which the Government's proposals might be subject to challenge in the courts, were they to go forward unamended. Will she join me in hoping that when the Minister responds, he will be able to give an assurance that the Clerk's concerns have been taken into account, and that any process that was followed under the Bill would not be subject to such challenge?

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

That is precisely the point. I thank the hon. Gentleman both for putting it so succinctly, and for putting his name to the amendment so that I am not alone in disagreeing with myself. The point that he made is the crux of the matter, and I am sure the Minister has picked that up and has already considered it. I have every confidence that he will respond to it in a short time.

Photo of Nigel Dodds Nigel Dodds Shadow Spokesperson (Justice), Shadow Spokesperson (Foreign and Commonwealth Affairs), DUP Westminster Leader

To reinforce the hon. Lady's opposition to her own amendment, it should be pointed out that under proposed new subsection (2)(b) of the amendment, it is not necessarily the case that the registered leaders of all the registered parties are Members of the House. The First Minister of Scotland and the First Minister of Northern Ireland, who are the registered leaders, are not Members of the House. That is another reason why the amendment is flawed.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Indeed. I am grateful to the right hon. Gentleman. Once again, the details of proposed new subsection (2)(b)-that is not

"To be, or not to be"

-we are going back in again! I do not think we need any more Shakespeare, and I will be called to order if I go any further down that road.

The matters identified by the right hon. Gentleman would have to be considered in more detail if the amendment were to become part of the Bill. I predict that the Minister will not accept it. As I said, I hope not, because I would have to vote against it and as the House knows, I am uncomfortable voting against my Government and the Minister. The amendment does not have to become part of the Bill, but the points made to the Select Committee by the Clerk of the House are serious and important, and the House will wish to be reassured that the Minister has considered them.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

But is not the difficulty for my hon. Friend and those on behalf of whom she is promoting the amendment that they have put it in a statutory form, whereas the Clerk's solution was that it should be in the form of Standing Orders of the House? To read across is not possible. On the face of it, the amendment looks absurd, so I am puzzled why it is even before the House.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Let me explain further. The Select Committee rushed through its pre-legislative scrutiny process, because of the timetable for the publication of the Bill, Second Reading and Committee. Inevitably, the Select Committee had to take evidence and consider matters quickly and briefly. It is important that the issues considered by the Select Committee are put before the House. I have every confidence that the Minister will assure the House in due course that he and his colleagues have considered all the points made in the pre-legislative scrutiny report by the Select Committee.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

This is not about subsection (2)(b). If it would assist the hon. Lady in arguing against her own amendment, does she recognise that other amendments that she has tabled, such as amendment 37, if accepted, would create a serious problem in relation to amendment 33? That rests on the Prime Minister discharging a particular function, whereas under amendment 37 there could be circumstances in which there was no Prime Minister to discharge that function.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Indeed. The hon. Gentleman is right. We will debate amendment 37 in the next group, and I am sure I will be called to order if I go into the details of it at this point.

Once again, I am not seeking, and the Select Committee was not seeking, to put forward a coherent succession of amendments in an attempt to change the Bill. I want to make sure that the Committee has an opportunity, as it has now had, to consider the issues of exclusive cognisance and the way in which the Standing Orders of the House will be affected by the Bill. That is why I hope the Committee's Chairman will excuse me arguing against myself, while putting the points that the Select Committee wished to make here. It is important that the results of the pre-legislative scrutiny that we undertook should be put before the Committee.

Photo of Peter Soulsby Peter Soulsby Labour, Leicester South

On pre-legislative scrutiny and the point made by Mr Shepherd, does the hon. Lady agree that the fundamental problem with the amendment is that it was tabled in the absence of time for adequate pre-legislative scrutiny, and that it is very much a second-best? The point about the preference of the Clerk for the matter to be dealt with in the Standing Orders of the House ought to have been given more time and more consideration, and there should have been an opportunity for the Committee to consider that as an alternative to the amendment.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Yes, the hon. Gentleman is correct. I recognise that that is why he put his name to the amendment. It is a pity that we have not had an opportunity in some other way to go into these matters. However, I reiterate that the Committee has an opportunity now to consider matters relating to exclusive cognisance and the Standing Orders. I hope the Committee will take that opportunity, but I have every confidence that the Minister will also take the opportunity to reassure us. Amendment 33 is merely an alternative that I put before the Committee for consideration.

Photo of Jack Straw Jack Straw Labour, Blackburn

Since my elevation to the Back Benches six weeks ago, I have put a number of supplementary questions by way of interventions. This is the first time that I have spoken from the Back Benches in 23 years.

It is a delight to follow Mrs Laing, who represents my home area, Loughton in Essex, where from a very early age I used to be sent out delivering leaflets and canvassing against the local Conservative party, never to any effect. My mother continued to represent the area in which we lived, first on the district council and later on the town council, until she was in her 80s. Thankfully, she is still alive.

I have witnessed many occasions when a Member has moved an amendment that they do not understand. Indeed, I can think of one occasion 30 years ago on the Finance Bill when I moved an amendment that I did not understand-an embarrassment made worse by the fact that it was I who had drafted it. For the life of me, I could not work out what it meant, although I am pleased to say that officials in the Treasury, as it turned out-the Minister later showed me his briefing-had gone through all sorts of intellectual contortions to guess at that piece of total gibberish. Never before have I heard an hon. Member from either side of the House move an amendment with which they profoundly disagreed, but I admire the way in which the hon. Lady very loyally made the case for the group's lead amendment while ensuring that her own reservations about it were put on the record.

The hon. Lady said something very important about the Bill: the reason why the Select Committee ended up with the amendment, which is difficult to follow in its terms, was that it had "rushed through pre-legislative scrutiny". That is the responsibility not of the Committee, but very much of the Government, who decided to push the Bill through for no reason that I can comprehend.

I profoundly disagree with the Government's timetable for the boundaries and AV referendum Bill, but, given the time scale involved, it is at least understandable why they judge it necessary to push the legislation through. The Bill before us is on fixed-term Parliaments, however, and there is not the least prospect of an early general election at any time in the next three years.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton 2:30 pm, 24th November 2010

My right hon. Friend is being slightly disingenuous. Is not the most obvious reason why the Bill is here, before us, that the coalition partners are worried that the other one will welsh out?

Photo of Jack Straw Jack Straw Labour, Blackburn

Of course. I was going to come on to that, but I am grateful to my hon. Friend for leading me down that path. There is no reason to rush through legislation for a fixed-term Parliament, because, even if we do not have the Bill, there is no prospect of a general election being called, in almost any circumstances, within the next three years.

The Liberal Democrat and Labour parties were committed by their manifestos to the principle of a fixed-term Parliament, but the Conservatives' proposal ran directly counter to that, because it stated that a general election should be called within six months of any change of Prime Minister, meaning that, if the Prime Minister had suddenly passed away or something else had happened to him and he was no longer in office, we could have had a general election within a twelvemonth.

We know, however, that the structure of the Bill and the rush derive not from the pursuit of a sensible idea for which there is all-party support, but from narrow, partisan reasons related to the internal chemistry that both parties feared and, I think, still fear could be explosive in difficult circumstances.

Photo of Jack Straw Jack Straw Labour, Blackburn

I am glad to have the hon. Lady's endorsement.

As we know, that was precisely the reason why, miraculously, of all the numbers that the coalition partners could have chosen, they originally alighted on the trigger level of 55%, because it would have given neither partner the ability to force an early general election against the wishes of the other.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

The right hon. Gentleman says that there is no prospect of a general election for a number of years, but may I mischievously suggest that he shows greater faith in the coalition partners than they show in themselves and each other?

Photo of Jack Straw Jack Straw Labour, Blackburn

I would like to have such faith. My faith in the Conservative party's ability to pursue its own interests and survival and to consume other, minor parties-mainly ones beginning with "L"-is always high. My faith in the Liberal Democrat party's ability to secure its own survival was never particularly strong and has completely plummeted following the coalition deal. Shortly after the election, a Conservative peer told me-literally licking his lips at the prospect-of how he would happily predict that the parliamentary Liberal Democrat party would go the same way as previous Liberal parties, once they had been embraced by the suffocating hug of the Conservative party, and disappear for a number of decades into oblivion. I am glad to see that the Parliamentary Secretary, Cabinet Office, Mr Harper is, if not quite licking his lips, smiling in approbation at the prospect.

Photo of Daniel Kawczynski Daniel Kawczynski Conservative, Shrewsbury and Atcham

The right hon. Gentleman neglects to mention the Lib-Lab pact in the late '70s, which I am sure he will remember, and that the Liberals got through that unscathed.

Photo of Jack Straw Jack Straw Labour, Blackburn

But the pact was not with the Conservative party. Sadly, in some ways, the Labour party is far less ruthless than the Conservative party when it comes to worrying about its own survival. I am happy to discuss the details and the highways and byways of the Lib-Lab pact, because I worked as a special adviser, as they were pompously called and, I think, still are, to the great Peter Shore at the time-and necessary it was, too. In those days, at least the Liberals had some sense of which side they were on, but they have abandoned even that idea since.

I shall speak specifically to amendment 4 in the name of Mr Cash and many of my right hon. and hon. Friends, which would delete clause 2(1)(c), the measure providing the two-thirds trigger for a Dissolution. The hon. Lady made a slip of the tongue that, as often with such slips, held a revealing truth. She talked of a motion of "no consequences", rather than a motion of no confidence, and, apart from the fact that I object to the idea of special majorities in the House, it seems to me that the trigger is wholly redundant, unnecessary and, indeed, offends the role of the House in holding the Executive to account. Now that the Liberal Democrats and the Conservatives have had to abandon the completely naked idea of a 55% trigger, which would have enabled the most extraordinary circumstances to arise, they should abandon the provision before us, including the two-thirds trigger, altogether.

The provision was included in the Bill as a copy-out from sections 3 and 46 of the Scotland Act 1998. The Deputy Prime Minister first tried to make up the arguments for the measure on the hoof, and somebody pointed out to him that such a trigger existed in the 1998 Act. He suggested that it was a completely rigid trigger, and that the only way in which an election for the Scottish Parliament could be called was by a two-thirds majority of every MSP. Closer examination of sections 3 and 46 of the 1998 Act shows that that is simply not the case, however.

Section 3 does, indeed, provide for an early election if

"two-thirds of the total number" of MSPs vote for one or, as subsection (1)(b) goes on to state, if

"any period during which the Parliament is required...to nominate one of its members...as First Minister ends without such a nomination being made."

Under section 46, the First Minister's nomination is by a simple majority. If it transpires that nobody in the Scottish Parliament can command a simple majority, in other words that no confidence in either party is declared and the Government in Scotland cannot continue, there is by virtue of that fact an election, and that is entirely right.

Photo of Alec Shelbrooke Alec Shelbrooke Conservative, Elmet and Rothwell

I am listening carefully to the right hon. Gentleman, and I want to push him on the points that he is making. The possibility of a no-confidence vote still exists in the Bill, and if a Government could not be formed in 14 days we would go to a general election. Would he prefer the power to call a general election to remain solely in the gift of the Prime Minister or in the gift of this House?

Photo of Jack Straw Jack Straw Labour, Blackburn

I am in favour of a fixed-term Parliament, although I would have wished it to be four years. So, too, did the Liberal Democrats wish it to be four years. Indeed, they spelled that out in a document dated 10 May 2010 headed "Recovery and Renewal", which contained their proposals in the coalition talks for what became the coalition agreement. I am indebted not to the department of open government in the Liberal Democrat headquarters for providing wider sight of this, because whatever they think about the Freedom of Information Act 2000, they certainly do not apply it to themselves, but to the New Statesman and its website. For greater accuracy, however, I have a copy here. It says:

"Immediate legislation to...set the date of the next election for June 2014, and establish"-

Photo of Jack Straw Jack Straw Labour, Blackburn

I will repeat that because I know that my hon. Friend must have misheard it:

"Immediate legislation to...set the date of the next election for June 2014, and establish the principle of four-year fixed term Parliaments in future."

[ Interruption. ] The Deputy Leader of the House is mumbling from a sedentary position. If he thinks that I have misread that, I am extremely happy to be corrected. However, it ill behoves the Liberal Democrats-I am sorry, I almost said the Conservatives: that was a Freudian slip-and, particularly, the Deputy Prime Minister to suggest that a five-year term is a matter of principle, as opposed to a four-year term, when they proposed a four-year term and agreed to a five-year term only as a result of some rather scrubby back-stairs deal.

Photo of David Heath David Heath The Deputy Leader of the House of Commons

Let me try to help the right hon. Gentleman, because I do not believe that he was here on the first day of Committee when we debated this matter, which is in clause 1. As we are now on clause 2, I do not want him to find himself out of order.

Photo of Jack Straw Jack Straw Labour, Blackburn

I am sure that that is a matter for the Chair, but I was simply trying to provide a comprehensive answer to Alec Shelbrooke.

If we have a fixed-term Parliament, then of course the power of the Prime Minister to call an election is very significantly modified. I am concerned about the rights of this House. This House works by passing legislation, and all other matters, on the basis of votes by a simple majority. If we had a written constitution, which I am not against, we could have a separate debate about whether there should be some means or other of entrenching certain basic provisions. We are doing that in practice for some, but not others, by way of referendum, and for some, but not others, by way of convention and cross-party consensus. Meanwhile, however, regarding how this place works and good governance, we operate on the basis of a simple majority.

What we should be doing in the Bill is laying down a fixed term-I would prefer it to be four years, but it is going to be five-and then accepting the reality that circumstances could arise in which a Government of the day lost the confidence of the House. There is no alternative to that. No new Prime Minister could suddenly pop up and regain the confidence of the House. That being the case, there has to be an election, as happened after four and a half years of the '74 to '79 Government. It seems to me that those should be the only circumstances that should trigger an early election. I do not want there to be provision whereby, by some method or another, whether it is by a majority of a half, 55% or 67.5%, a package of Members can be got together in order to hold a general election. Nor do I think that those provisions would ever be used, because they are so complicated. There is no point in our passing legislation that has no significant purpose.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

I am genuinely listening with an open mind to what the right hon. Gentleman is saying about a simple majority in Parliament. However, how can we control a Prime Minister who has a majority in the House and whips his party to vote for his will? How can we maintain the power of the Parliament when the Prime Minister controls parliamentarians through the Whips?

Photo of Jack Straw Jack Straw Labour, Blackburn 2:45 pm, 24th November 2010

The hon. Gentleman raises an important point as to whether a Prime Minister anxious for a general election could engineer a vote of no confidence. Even if these provisions stand as they are in the Bill, that would still be a technical possibility.

Photo of Jack Straw Jack Straw Labour, Blackburn

No, it would not. There is nothing in paragraph (c) that would, in law, prevent a Prime Minister from being party to an arrangement to secure his own demise and go for a general election. If these provisions go through, there will be nothing, in law, that can be done about that theoretical possibility.

Professor Robert Hazell, in evidence to the Lords Constitution Committee, made a very pertinent comment on this point when he said that political incentives should prove a force for stability. Whatever may have been appropriate in Germany in one very unusual case where the Chancellor did indeed arrange to move a motion of no confidence in his own Government, the prospect of a Prime Minister of this country coming to the House to move a motion of no confidence in his own Administration without suffering immediate popular and parliamentary derision, and a significant loss of votes at the poll that would then follow, is fanciful.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I might have expected that the right hon. Gentleman would hit the nail on the head. He is really talking about the great damage that lies within these provisions-namely, that they are in defiance of the democratic mandate. This is about Whips and patronage; it has nothing to do with the people outside. My only suggestion-it is not a criticism-would be that he may want to qualify his reference to the impact on this House by talking about the impact on our electoral and democratic system and thereby the damage done to the people of this country.

Photo of Jack Straw Jack Straw Labour, Blackburn

I accept what the hon. Gentleman says and thank him for the compliment.

I have a number of rules that I try to follow in politics, one of which is that fancy tactics never work. This is a fancy tactic. I am sorry to say-it is not that I have anything personal against them-that one can see the Liberal Democrats, who were, as described by one of their members, a perpetual Opposition think-tank until they suddenly and unexpectedly found themselves in government, thinking up this wheeze on the basis that because it had happened in Scotland and, no doubt, in Latvia or Leichtenstein, it would work here. However, we have a more direct system of democracy; we may criticise, and I hope that we do. [ Interruption. ] I hear someone referring to Scotland. I happen to think, on reflection, that the relevant section in the Scotland Act is redundant, but different considerations applied at the time. One consideration-I mean this in no disobliging way to Scottish colleagues of all parties-is that the Scottish Parliament is a creature of this House, legally, whereas we have to be responsible for our own rules.

Photo of Jack Straw Jack Straw Labour, Blackburn

It is the first time that I have ever been thanked for anything by a member of the Scottish National party. I hope that next April and May it says on every leaflet how deeply grateful the SNP is for the possibility and opportunity to serve in a Scottish Government and to enjoy all the rewards that have come its way from the money that the British people, of all parties, have provided.

Photo of Nigel Evans Nigel Evans Deputy Speaker (First Deputy Chairman of Ways and Means)

Order. The right hon. Gentleman said that he had some rules. Could he have another rule, which is to speak to the amendments in the group?

Photo of Jack Straw Jack Straw Labour, Blackburn

I am sorry that I digressed, Mr Speaker.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

This is not a fancy tactic-I would not know one if I saw one, although if I did I am sure I would have learned it from the right hon. Gentleman. It is very straightforward. We decided that if there were a general view in the House that there should be an early election, the House should have the power to cause one.

The right hon. Gentleman gave the example of Germany. The reason why the Government there engineered a vote of confidence was because there was no other mechanism for an early election. If we were to remove our provision, then if there were a general view in the political classes and in the country that there should be an early election, the only way of having one would be for the Government to engineer a vote of no confidence. That would not be very sensible or very honest.

Photo of Jack Straw Jack Straw Labour, Blackburn

We need to speak about possibilities in the real world. The only example in recent times that I can think of when a Prime Minister has wanted to call an election of choice, without any necessity due to his parliamentary majority, is that of Edward Heath in January 1974. There was no way he would have got a two-thirds majority in favour of a dissolution. In my view, the country as a whole and the Conservative party would have been saved a great deal if there had not been an early dissolution at that point. I simply say that if we are to have fixed-term Parliaments, which is a good idea but will have consequences, we must ensure that a Government can get booted out only if a motion of no confidence is passed.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

Is there not one other very significant difference between the drafting of the Scotland Act 1998 and of this Bill? In Scotland, the process involves considerable consultation with wider civic society and all the political parties, because it was concluded that the electoral system should virtually guarantee that one political party would never enjoy a majority. That is very different from the situation here.

Photo of Jack Straw Jack Straw Labour, Blackburn

My hon. Friend makes a very important point.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Following the Minister's intervention, may I take the liberty of correcting a point that was made regarding the German situation? Under the German constitution-a written constitution, of course-a two-thirds majority must be in each house, whereas the Bill's provision applies only to the House of Commons. In addition, and more importantly, it must be two thirds of all those who vote in the division in question, not two thirds of all seats. That is a very important difference.

Photo of Jack Straw Jack Straw Labour, Blackburn

I accept that, and the history of the German constitution is very different from the history of ours, even though to a large extent we wrote it.

I will finish where I began, by referring to the explanation by the hon. Lady of the amendment that she moved, with which she does not agree. She pointed out that that was a consequence of her Committee having to rush through pre-legislative scrutiny. I sat on the Front Bench for part of the debates on the Bill, and I have yet to hear any convincing explanation from the Minister as to why they had to rush the Bill through.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

Does the right hon. Gentleman agree that the higher the percentage of parliamentarians required to trigger an election, the less likely it is that any Prime Minister will call an election of choice, because it will be more difficult for them?

Photo of Jack Straw Jack Straw Labour, Blackburn

If a Prime Minister really wanted to call an election of choice, they would not worry about the two-thirds majority requirement, because they would be very unlikely to get it. They would instead go for a motion of no confidence.

By legislating for a fixed-term Parliament, we will establish a clear political norm that Parliaments last for five years. Leaving aside the argument about whether the term should be four or five years, I happen to support that principle, and I believe that is where the British people are. However, if the confidence of the House is lost, or the Government of the day simply give up and vote for a motion of no confidence, there must be an election. In the absence of that, there should not.

I have arranged to go and sit in Westminster Hall at 4.30 pm to listen to a debate on a matter of interest to all Members from east Lancashire. If this debate is not concluded by then, I hope I may be excused.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The Chamber is very empty, considering the significance of what is being done by clause 2. In a way, that reflects the decline of this Parliament, which some of us believe strongly needs to be rejuvenated, not on the basis of protestations of power being returned to the House, as we read in our manifesto, but in the reality of how legislation is introduced.

The clause is the turn of the screw by the coalition into our democratic system of government, which, at its essence, is about the individuality and votes of conscience of MPs, irrespective of the Whips and the patronage system. It creates a permanent constitutional change through a passive, silent revolution-the most silent revolution since our Parliament began. It is being done without a mandate of any kind for any party, in any manifesto, in any part of the political system.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

Is the hon. Gentleman as shocked as I am by the new constitutional principle that we are hearing from the Secretary of State for Business, Innovation and Skills-that the manifestos upon which individual Members of Parliament were elected no longer mean anything, because the coalition agreement somehow supersedes everything that they were elected to stand for?

The First Deputy Chairman:

Order. That is not part of the amendments before us, so Mr Cash, could you restrict yourself to the amendments, please?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

What I am saying, Mr Evans, is that the clause is being introduced without a mandate, using Parliament and patronage to undermine Parliament itself, not only now but in future. The voters, who have reposed their trust in us as MPs, are being severely damaged by what is being done today. As for the future, to quote T. S. Eliot's "Burnt Norton":

"Time present and time past

Are both perhaps present in time future

And time future contained in time past.

If all time is eternally present

All time is unredeemable."

So is this act of constitutional vandalism.

My amendment 4 is based on a simple point of principle, namely that a motion can be passed by a simple majority of one, as has been the case from time immemorial-from the very inception of our parliamentary process in what is sometimes described as the "mother of Parliaments". That is now being changed in a manner that will seriously alter the method whereby a Government may fall.

The merits of the various amendments, such as amendment 33 and my amendment 4, may differ. However, mine, which has been supported-without my encouragement, I have to say-by the Leader of the Opposition and therefore by the Opposition themselves, has the merit of simplicity and maintaining the status quo. Why have I tabled this amendment? It is because I object to the new-fangled idea that an early election would result from a motion, perhaps proposed by the Opposition, any MP or even the Government themselves, that requires-this is contrary to all constitutional precedent and history since our Parliament first sat representing the electors of this country-the support of two-thirds or more of those eligible to vote as Members of Parliament. In other words, we are talking about seats and not the persons present in the House of Commons. That is a profound and dangerous doctrine.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton 3:00 pm, 24th November 2010

I profoundly agree with the hon. Gentleman. Are there not two very offensive things about this proposal? It means that hon. Members of this House are equal apart from when there are votes for a Dissolution; if a Member is voting in a minority, their vote is worth more. Even more strange and offensive is that if a vote were to take place now, the electorate of Oldham East and Saddleworth would be enfranchised, when they are not enfranchised for any other vote in the House. Such a situation is absurd and offensive.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The hon. Gentleman's point is extremely sensible and full of common sense, which is what this Bill lacks. This is about something else; it is not about the manner in which our democratic system functions. It is about something completely different and I will come to that in a moment.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

Does the hon. Gentleman not think that his case against idea of a special weighted majority for Dissolution in this House would be more credible if he had not previously proposed amendments to the Parliamentary Voting System and Constituencies Bill that required a threshold of support for any referendum on the alternative vote? He supported other amendments as well that required not just a threshold that related to those who voted, but to the total number on the electorate. Is there not some hypocrisy in the argument he makes today?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I am more than delighted to reply to the hon. Gentleman. Sparring with him always causes me great amusement. As for what he says, there is a substantial difference. The threshold amendment that I moved on the other Bill was to do with the threshold of a number of people who would participate in the election, and not what was going on in this House. It was not even related to the question of the threshold of those who voted yes, as in the Scotland Act 1998 and the amendment of George Cunningham, the then Member for Finsbury and Islington, so there is a significant difference. I am talking about the trust that is given to us in this House and the manner in which we discharge it.

The coalition originally proposed 55%, but that was so manifestly absurd that the coalition agreement was then torn up and the figure was replaced with two thirds. If not 55%, why two thirds? The Scottish Parliament-I am using this analogy because it has already been raised, but I think that it is completely irrelevant-does not form Her Majesty's Government. Decisions in time of war, a Finance Bill or any of the other great levers of power are issues are determined, and will continue to be determined, by the United Kingdom Parliament. One such great exercise of power at a most important time was the confidence motion of 10 May 1940, which was passed, as it happened, by the Government, and it led to the demise of Neville Chamberlain's Government, because everyone knew he had to go. I do not regard the Scottish parliamentary experience as relevant. If not two thirds, why not 75%, 60% or any other number that Harry Potter's wand might conjure out of thin air?

Photo of Jack Straw Jack Straw Labour, Blackburn

Will the hon. Gentleman speculate on what he thinks would have happened if the two-thirds rule had applied in May 1940?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Absolutely. I entirely agree with the right hon. Gentleman. Furthermore, there was the motion of no confidence in the Callaghan Government in 1979, in which the numbers of votes were 310 against 311. The result of that vote may have been a matter of satisfaction for the Conservative party, but I am sure that it would not have been to others. However, if the two-thirds rule had been in operation, there would not have been a change in Government and that would have been a disaster for the country.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I am listening very carefully to my hon. Friend. I think that he is confusing the two different processes in the Bill. There is provision for having an early election if the Government lose a vote of no confidence. That is by a simple majority, as now, and it is not changed. The other provision is an extra power for the House of Commons, which it does not have today, for two thirds of MPs to vote for an early election. We are not in any way, changing the ability of a Government to be held to account by having to have a simple majority.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

It is only because I have not completed my remarks that my hon. Friend's intervention seems understandable. I do not dispute the fact that a vote of confidence by a majority of one would apply in the circumstances described in the clause, but-this is the other side of that equation-we then get into the question of the 14 days and the shenanigans that would follow with all the Whips and other people manoeuvring around to guarantee that the vote of confidence would be secured. We go back to my main point: it is the power of patronage of the Whips and the determined and ruthless exercise of that power that lies behind this proposal. That is my main objection to the whole thing irrespective of the fact that there is no mandate for these provisions from any political party.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

When we talk about the law of unintended consequences, which applies big time to the provisions of the Bill, will my hon. Friend not apply that in his mind to what is happening in Ireland at the moment? There is a constitutional crisis that requires the Prime Minister, in honour, to put an issue to the electorate for a general election. This Bill would preclude the Prime Minister from doing a similarly honourable thing in this country.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

My hon. Friend with his customary originality brings into play a contemporary example. Imagine a two-thirds rule being applied in respect of Mr Cowen at this moment. Be in no doubt, there would be riots in the streets of Dublin. This is an essential question about the irresponsible manner in which this power could be used to induce results that are fundamentally undemocratic.

Photo of Jack Straw Jack Straw Labour, Blackburn

It is good to see you in the Chair, Mr Hoyle. I defer to you as ever.

I understand the Minister's point that these provisions relate not to a motion of no confidence but to other motions for an early Dissolution. Given, too, the poor definitions of what a motion of no confidence is, we could anticipate a situation in which a Government who wish to cling on to power, even though they lack a simple majority, could dodge and weave-because they determine the business of the House-for quite a period and ensure that the motion that went before the House was tabled under clause 2(1)(c) requiring a two-thirds majority in the hope of buying themselves a little time. If this provision was not in the Bill, the choice between going to the end of the period or having an early election would be much more stark.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The right hon. Gentleman demonstrates why many people thought that he was one of the foremost leaders of the House of Commons. He understands the mechanics that lie behind such questions. Precisely what he has just said could easily happen. Indeed, many other things are likely to be conjured out of thin air by the wave of a magic wand of the kind that only Harry Potter seems able to use.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

I cannot understand how Ministers can argue that the Bill takes power away from the Prime Minister and gives it to the House of Commons. In 1979, the intention of the provision would have been to prevent the House causing a general election. The Prime Minister would have been in the driving seat, with 14 days to cook up some kind of new deal to stay in power. How is that taking power away from the Prime Minister?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I entirely agree with my hon. Friend. It is such a shame that more people are not here to hear some of the criticisms that are being made of the Bill. We are not criticising it because we want to be difficult or because we are the awkward squad; we are criticising it because it is a profound constitutional issue. The provision is intended to be permanent, not a will-o'-the-wisp measure that will last a few months, and it will induce permanent constitutional change-it is a constitutional revolution, but a silent one, as I said.

A majority of one is at least understandable and can be calculated. I referred to the German example. Their measure operates on the basis of those in the House itself when the vote is taken, which raises a series of questions about the manner in which the Government's proposals would operate. If we have a provision that is based on a fixed number of seats, it will not matter at all whether people turn up. Why bother with a Parliament in those circumstances? What would be the point if it was simply a question of the number of seats? Who occupies them, what they think about things or whether they have a view to express would not matter. That is an outrageous proposition, and I cannot believe that my hon. Friend the Minister is prepared to subscribe to such arrant rubbish. The reference in the Bill to the number of seats carries an analogy to the Rump Parliament to extremes.

The proposal is based not on any constitutional principle but the expediency of propping up, if necessary, the "temporary alliance", which is how the "Oxford English Dictionary" describes a coalition. The measure, for all I know, may run foul of the internal contradictions of putting two parties together that, in certain but not all respects, have entirely contrary views on matters of fundamental constitutional and political importance, such as the alternative vote, which a number of my hon. Friends and I voted against. We are Conservative, and we believe that the alternative vote is the wrong way to go. We believe in first past the post and in a simple majority, because they account for the individual conscience of hon. Members, and not merely the number of seats. Dare I even mention the European question, because that is also part and parcel of the shift in the fundamental balance of power away from this House?

The coalition agreement illustrates that point. At the heart of that arrangement, there are some destructive and some constructive proposals, and some are unworkable. For example, under the agreement, Liberal Democrats have a right or duty to abstain on important matters. The 55% rule proposal was abandoned not only because of its absurdity, but because of opposition to it. The reason for the two-thirds rule is that it will be easier for the Whips to fulfil their masters' wishes. Their power would be imperilled if a motion were conditional merely on a majority of one. That is the crunch.

The principle of the majority of one proves my point, as Mr Straw indicated in an intervention. I responded to him by referring to the 1979 Division, when there was a majority of one. I find no merit whatever in moving away from the virtues of a simple majority, although I doubt that the Leader of the Opposition, who signed amendment 4, would be so firmly enthusiastic for Margaret Thatcher's victory in 1979. However, I repeat that I have not tabled that amendment for the sake of the wishes of the Opposition. I simply believe that we adhere to the simple majority.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office 3:15 pm, 24th November 2010

My hon. Friend has mentioned the 1979 example twice now. As I said, the Bill would not change the situation when there is a motion of no confidence in any way. If that position happened now- [ Interruption. ] If the Government lost a Division on such a motion by one vote, the situation would be the same, but the 14 days for the formation of a Government makes things different. Amendment 4, by removing the two thirds majority rule, would effectively mean that anyone who controls a majority in the House can have an election at will-it would effectively give back to the Prime Minister the power to dissolve the House whenever he chooses to do so in a perfectly open way. If my hon. Friend is happy with that, that is fine, but that is not our proposal.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I understand to a degree where my hon. Friend is coming from, but I am afraid that I am not attacking that constitutional position. I do not believe it necessary to take the power to dissolve from the Prime Minister-that power is based, as it were, on his democratic mandate-and give it to the Whips to engage in their shenanigans in the 14 days following a no confidence motion, as the right hon. Member for Blackburn said.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

Will my hon. Friend make that clear? Is he saying that the intention of amendment 4 is to ensure that the Prime Minister retains the power to seek a dissolution? I ask that because Opposition Members say that they are in favour of fixed-term Parliaments, albeit there is a debate over whether the term should be four or five years. My contention is that the Opposition's support for amendment 4 effectively drives a coach and horses through their support for fixed-term Parliaments, because it would give the power to dissolve directly back to the Prime Minister.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The Opposition's thinking is not a matter for me. I happen to believe that our present constitutional arrangement should be sustained. It gives me no pleasure to know that the Opposition will vote with me on amendment 4. Their reasoning does not matter; what matters is the constitutional principle that I am advancing.

Photo of Jack Straw Jack Straw Labour, Blackburn

I am grateful to the hon. Gentleman for his generosity in giving way. May I illustrate the point that he and I have made in answer to the Minister's perfectly reasonable point? At first blush, it appears that the provisions of clause 2(1)(c) strengthen the role of the House against the Prime Minister. However, I remember what happened in 1979. I was a candidate at the 1979 election, so I was no longer working for the Government, but I was in very close touch with people for whom I had worked for three and a half years and knew a lot about what was happening. There was a crisis over the outcome of the Scottish Assembly referendum, and the Commons needed an occasion on which it could give vent to that feeling, because the various smaller parties had to have their positions put on the record. Had there been a provision in legislation for an early dissolution by two-thirds majority, the Government of the day-

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

Order. Interventions must be shorter. I understand that the point has to be made, but I would be grateful if we could get to it quickly.

Photo of Jack Straw Jack Straw Labour, Blackburn

In that situation, the Government of the day would have worked with the smaller parties and said, "You can have your shout on the two thirds majority, and in return, we'll give a bit of extra cash to Northern Ireland," and so on. That would have happened. Therefore, the motion of no confidence would probably never have been tabled, and even if it was, it probably would have been lost.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I understand that point, and the right hon. Gentleman describes a sort of invitation to pork barrel politics.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The Minister is so determined to speak again that I am happy to give way to him.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I am simply participating in the debate. I cannot agree with Mr Straw on his characterisation of the 1979 situation. The motion in March 1979 was not about giving vent to anything; it was very clearly about whether the House had confidence in Her Majesty's Government. I assume that everyone who voted for it had a clear idea what would happen if it were carried. It was, and there were consequences. It states:

"That this House has no confidence in Her Majesty's Government", so I cannot believe that anyone was confused about what they were doing.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I will now move on to the very question that is being discussed, which is motions of no confidence and what they really mean. There are various permutations, which are well described in the Library note, but the issue for me is basically this. In my belief-and according to the House's tradition and its conventions, which are now to be overtaken by statute-a majority of one should remain. However, in that 14-day period, with shenanigans worthy of Lord Voldemort and the servants of the Dark Lord, an attempt would be made to keep in power a Government who had lost the confidence of the House of Commons-that is, the representatives of the electorate. That attempt would keep the Government on their feet, while the public would be left watching the spectacle of streams of members of the Cabinet and prospective members of the Cabinet from the Opposition parties striding up and down Whitehall, in and out of offices, all under the baleful influence of the Cabinet Secretary, as they tried to hatch yet another coalition agreement, no doubt based on very different principles from those for which the electorate had voted, in accordance with the parties' respective manifestos or-dare I use the words?-their promises.

As to the question of what confidence motions actually are, they are various. In 1945 it was Churchill versus Attlee, and the Government won. Then there was Attlee against Churchill in 1952, and Gaitskell against Eden in 1956, when the Government won again. There was also Wilson against Heath in 1972, on the European Communities Act, when there was thought to be quite a lot of manoeuvring on the question of whether there had been a free vote or not. I will not go down that route now, but examples of where the Government have lost confidence motions include the Liberal Government of 1895, the Baldwin minority Conservative Government -note: minority Conservative Government-in 1924, the MacDonald Government in 1924, when there was again a dissolution, and, of course, the famous Callaghan defeat by Thatcher, by 311 votes to 310.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am getting increasingly impatient in one sense, but on the distinction between what is a confidence motion and what is not, I put this proposition to the Committee. If the Government lose the Budget, that is it. My understanding of our constitution is that that would be the end of the Government.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Well, Governments have resigned on the loss of such votes. Therefore, what constitutes a motion that arrives at that result? What my hon. Friend has been quoting were dates, not motions.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

It is very rare that I say this, but I do not agree with my hon. Friend about that, because although those are dates, they are also about matters of huge political significance to the country at the time.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Indeed, and my hon. Friend is right on that point, because it is not just about the business; in my judgment, it is about the sense of feeling in the country and the outrage in the House about the policies that are being pursued.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I will give way to my hon. Friend for the last time.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

It is worth reminding the Committee that the words on the Order Paper in May 1940 were "That this House do now adjourn".

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Indeed, but that was about the sense of outrage over what had been done. That could apply to a Budget, as my hon. Friend Mr Shepherd said, or to any other situation. It could have applied to Suez or, for example, the Iraq war. For all those reasons, the confidence motion, in whatever terms it is expressed, is just that: do those voting in the House of Commons at the time, by a majority of one, have a sufficient degree of confidence in the behaviour and policies of the Government?

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am grateful for my hon. Friend's tolerance in giving way again, but the outcome of the vote in 1940 was the resignation of the Prime Minister, not the Government as a whole. Although the Government went with him, they reformed themselves, so what happened was not an electoral matter; it was the outcome of a confidence motion in the individual who headed the Government.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I agree with my hon. Friend on that, but there was also the sense of outrage that was being expressed. As that occasion has been raised three times already, let me mention in passing that, as it happens, it took place on the day that I was born, but there we are.

What does such innovation say about the coalition? It certainly demonstrates its determination to stack the cards firmly in favour of the coalition and the Whips. There may well be one third whom the coalition cannot take for granted or persuade, but I fear that that attitude is taking power away from Parliament-which, after all, is made up of the representatives of the people-and not giving it back. If the same principle were followed for any other motion, Parliament would simply not be able to carry out its business. I fear that what is proposed is not modernising, but is a reactionary measure. It is not progress, but a step backwards, along the primrose path, undermining the constitutional principles that have governed our conventions and been tested over many centuries. The proposal has been conjured out of thin air, for the ruthless purpose of maintaining power irrespective of the consequences. In my opinion, it is a great shame that it has been put forward on the proposition that-as was said in the general election and at the conference that took place recently-we are supposed to be "Working together in the national interest". I fear that on this Bill, on this matter, we are working together against the national interest.

Photo of George Howarth George Howarth Labour, Knowsley

Long before anybody else on the Opposition Benches supported amendment 4, standing in the name of Mr Cash, I added my name to it. I listened carefully to what he said. He used the terms "Whips" and "patronage" to describe what he believes lies behind the provisions in clause 2, which I think is just a shorthand way of saying that we are talking about monolithic party structures that, generally speaking, follow whoever happens to be leading at any given time, and the instruments of that are the Whips and patronage.

I am a party political creature. I would not be in this House under any title other than that of "Labour Member of Parliament". However, at the same time, I believe that we are sent here to exercise our judgment, particularly on issues such as that we are discussing, which, as the hon. Gentleman said, have not really been tested before the electorate. Fixed-term Parliaments and the alternative vote system were in our manifesto. However, the provisions in clause 2 that he has discussed were in nobody's manifesto, so I feel in no way obliged to support them.

My hon. Friend Tristram Hunt may correct me on this, but those who follow history, such as the hon. Gentleman, will know that it was quite common in the early to mid-19th century for Governments to change and for votes of no confidence to be taken. In fact, quite often the country would go for several weeks without an effective Government in place. However, the difference then was that party political labels were almost meaningless: the Liberal party did not exist in the form that we later came to know, while the Conservative party was a collection of factions.

In those days, it was possible for Governments to change their leadership and even the coalition that supported that leadership without there necessarily being a general election. We do not live in such circumstances now, and it is important to be mindful of the arrangements that we put in place for the Dissolution of Parliament or any other means by which to change a Government in mid-term.

Photo of Grahame Morris Grahame Morris Labour, Easington

In reality, if a Prime Minister commands a majority in the House of Commons, instead of seeking to obtain a two thirds majority in the House, will they not simply repeal or amend the Bill?

Photo of George Howarth George Howarth Labour, Knowsley

My hon. Friend makes a typically good and well thought through point. I do not want to make a long speech, but the simple point-this is why I support the hon. Member for Stone-is that if the House decides by a simple majority that it has lost confidence in the Government of the day, that should be enough.

We invoke what people outside think, but they would be astonished if they thought that the Members of Parliament, regardless of party labels, whom they send to the House to represent them were able to pass a vote of no confidence in the Government, but not by what has been called a sufficient super-majority to make any difference. We would seem not to have been given additional powers, as the Minister seems to argue, but to be impotent. That cannot be good for Parliament, for politicians and certainly not for any of us as individual Members of Parliament. I am pleased to support the amendment tabled by the hon. Member for Stone and I hope hon. Members on both sides of the Committee will support it in the Lobby if there is a Division.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform) 3:30 pm, 24th November 2010

It is a delight to see Mrs Laing back in her seat. She introduced a new concept of votes of no consequence. On the Opposition Benches, it often feels as though every vote is one of no consequence, but we hope that with more support in the coming days, we will manage to turn that around.

The hon. Lady said one important thing- [ Interruption. ] She has doubtless said many important things, as the Minister rightly reminds me. In particular, she said that she disagrees with the amendment she tabled, which was interesting. She also referred to the fact that her Committee had had virtually no time to do what she called pre-legislative scrutiny. In fact, I suggest that a far more sensible procedure for engaging in all legislation, and particularly that on constitutional reform, is to publish the Bill in draft, send it to a Joint Committee of both Houses and provide an opportunity for evidence to be taken, and at the end of that process it can be brought to the House. That is not what has happened in this case. She and others referred to the coalition as something of a matrimony, but the Book of Common Prayer states that holy matrimony should not be enterprised or entered into

"unadvisedly, lightly, wantonly or to satisfy...carnal lusts."

My fear is that this part of the Bill has been entered into unadvisedly, wantonly and to satisfy the lusts of the coalition partners who want to ensure that they remain in power for as long as possible.

The process has been wrong, and I say gently to the Minister that in our debates last week he referred at the last minute to consultation that he was going to engage in with the devolved Administrations in Wales, Scotland and Northern Ireland. I understand that he has written to one Member of the House about that, but he has not written to me, and he has not written to any other hon. Members who were involved in the Committee stage, so I hope that he will take this opportunity to assure us that he will write to us immediately.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

Frankly, the point of order that the hon. Gentleman raised last week was nonsense. He did not give me notice of it, so I was unable to respond. I listened carefully to last week's debate and responded to it. I then made an announcement of Government policy in this House at the Dispatch Box, which I thought was the usual way of conducting business.

The following day, I wrote to the leaders of parties in each of the devolved Assemblies, as I said I would. I did not put anything in those letters that I had not announced in the debate. I also wrote to the shadow Justice Secretary, who leads on political and constitutional reform for the Opposition, to keep him properly informed. I placed copies of all those letters in the Library.

The Chairman:

Order. We should not be rehashing previous points of order. We should be dealing with the amendment. I am sure that Mr Bryant wishes to do so.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

Yes, indeed. This is just about the process and the fact that it has been the convention in every Committee stage in which I have been involved for Ministers to write to all members of the Committee, and, when the Committee is sitting on the Floor of the House, to all those who have taken part in the debate.

My point is that clause 2 has no electoral mandate. Clause 1 has some degree of mandate, in that we had proposed in our manifesto that there should be fixed-term Parliaments, and the Liberal Democrats had made a similar proposal. I do not believe that there is a mandate for a five-year fixed-term Parliament, as both political parties had previously said that they were in favour of four-year fixed-term Parliaments. Clause 2 has absolutely no mandate from the electorate. Indeed, the proposals in it run directly counter to those in the Conservative manifesto, and to what the Prime Minister said as Leader of the Opposition in relation to the reform of the power of Dissolution. He said that he would introduce legislation to ensure that, should there be a change of Prime Minister as a result of the party in power changing its leader, there would be a general election within six months, but that is not the proposal that we have before us today.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

Of course I will give way to the lion of the right, as I believe he is now known.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration Committee

Lion, maybe. I should like to draw the hon. Gentleman's attention to the fact that the parliamentary Conservative party gave no mandate to the leadership of our party for a fixed-term arrangement of any description. The parliamentary party was consulted about whether there should be a coalition, and whether there should be a commitment to a referendum on the alternative vote, but the question of a fixed-term Parliament was never mentioned. Nobody knew anything about it until it appeared in the coalition agreement.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

The hon. Gentleman is absolutely right. That is true not only of his party but of the Liberal Democrats, who said that they were in favour of a fixed-term Parliament although there was no reference in their election material or manifesto, or in any of the speeches made by the now Deputy Prime Minister, to any provisions for determining when an election might be held or for introducing a super-majority. When their lordships consider this legislation, it is important that they bear in mind the fact that the conventions relating to matters that are adumbrated in a general election manifesto simply do not apply in this case. There is absolutely no electoral mandate for this provision.

The aetiology of clause 2 is pretty straightforward. It comes from the coalition agreement. I know that the hon. Member for Epping Forest is keen, for her own reasons of propriety, to stick to voting for proposals that are in the coalition agreement. However, she has complete freedom in relation to today's amendments, because these provisions are not mentioned in the agreement. It states:

"We will establish five-year fixed-term Parliaments. We will put a binding motion before the House of Commons stating that the next general election will be held on the first Thursday of May 2015. Following this motion, we will legislate to make provision for fixed-term Parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour."

I completely agree with the articles that were then written by several Members, the most impressive of which was probably that by Mr Davis and published in The Daily Telegraph. In it, he stated:

"The requirement for a 55 per cent majority to dissolve parliament, and thereby dismiss a government, dramatically reduces the ability of Parliament to hold the executive to account."

If that was true of a 55% requirement, it is even more true of a 67% requirement. Moreover, that requirement would involve 67% of not only those who voted but of all the seats in the House, even those that were vacant at the time and also, presumably, those of the Deputy Speakers and the Speaker, who would presumably not be allowed to vote. Those seats would therefore automatically be included with those who had voted against holding an early general election.

There is absolutely no mandate for the provisions in clause 2. I believe that it will entrench the powers of the Executive, rather than releasing their grip on Parliament. An important point has been made by several hon. Members, not least my right hon. Friend Mr Straw, the former Home Secretary-I could list all his jobs as he has held almost every job in the Government apart from Prime Minister; perhaps that will come one day. They pointed out that the clause introduces a new super-majority, which is alien to the processes of this House. There has never been a super-majority provision. The provision is introduced by statute rather than through the Standing Orders, so again it is the Executive forcing their will on the House rather than the House taking this forward.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

Philosophically, this change has come about because of the practice of Prime Ministers choosing to go to the country at a moment that suits them and their political party rather than the country or anybody else. Margaret Thatcher did this and plenty of other Prime Ministers have done it. How does the hon. Gentleman square the circle of getting away from that rotten practice and moving towards a fairer and more equitable practice?

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

The most important element of the Bill as a whole is the introduction of a fixed term. As the hon. Gentleman knows, I would prefer a four-year period, but it is five years in the Bill. The presumption should be in favour of a fixed term. It is absolutely right that the Prime Minister should no longer have the power to dissolve Parliament and that the Dissolution should rest solely with Parliament rather than with the Prime Minister. To achieve such a handing over of power, we also have to change the prerogative power to prorogue Parliament. Otherwise, it would be perfectly simple for a Prime Minister who wanted to ensure an early general election-for whatever set of reasons-to bypass the two thirds majority required in subsection (1), to engineer a vote of no confidence and then to prorogue Parliament immediately so that no vote of confidence in another Government could be called.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

The hon. Gentleman will be familiar with the workings of this place, whereby a Prime Minister could simply use his Whips to whip his party and secure a simple majority. How is that circle to be squared? We could say that in one sense Parliament has the power, but in another sense it does not if the Prime Minister can use his Whips to dragoon his parliamentary party into having an election. [Interruption.]

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

The Deputy Leader of the House is chuntering away. I think he is trying to talk to you, Mr Hoyle, because he keeps on saying that I am out of order and that I am not speaking to the right part of the clause. Perhaps he could have his conversation with you privately.

Mr MacNeil is absolutely right in one sense. We have to achieve a balancing act. This House needs to exert its power through its majority to hold the Government to account and, if necessary, to sack the Government. In most circumstances, that has happened when a political party has splintered or when a leader of a party has proved unable to control his or her troops-his, in most cases-through the Division Lobbies. We have seen that happen with the Irish Home Rule Bill and with the Budget at different times, leading to a collapse of confidence in the Government on the Government side and the subsequent fall of that Government. I think that we should still stick with that process.

In case hon. Members feel that in recent times motions of no confidence-and particularly successful motions of no confidence-have been pretty rare, it is worth pointing out that we should look at a longer period of history than just the last few years if we are to set out constitutional change that will stand the test of time. We have no way of knowing what will happen to the political parties, as presently constituted, in five, 10, 15 or 20 years' time.

Looking back over the last 150 or so years, we find that no confidence motions have been used quite regularly and have frequently led to the collapse of Governments. Lord North's Government, for example, fell in 1782. There was also a sustained period in which no confidence motions were common from 1885 onwards; indeed, there were two such motions in 1886, when first Lord Salisbury's Government and then Gladstone's Government fell again on the issue of Irish home rule, which divided the Liberal party-

The Chairman:

Order. I am sure that the Committee, like me, welcomes the history lesson, but we must stick to the amendments, from which we are drifting away. The hon. Gentleman may feel that he is in order, but he is not. I would like him to come back to order, and it would also be helpful if he faced the Chair.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I am grateful, Mr Hoyle. I will address myself to you more directly. The point I am trying to make is that clause 2 deals with motions of no confidence and early elections and these have been a sustained part of what we have put up with. I am not sure whether you are going to allow a clause 2 stand part debate later. I note that you are saying no, but I hope it will be possible to allow a degree of latitude so that we can consider all the elements of the clause.

Mr Shepherd observed that Governments had fallen by virtue of their Budgets' being opposed. One of my arguments is that the whole concept of a no confidence motion is excluded from the Bill. It is not clear what counts as a no confidence motion; nor is it clear, in the part of the Bill that we are currently considering, what counts as a motion calling for an early general election.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 3:45 pm, 24th November 2010

Might that lack of clarity be a mark of the wisdom of past generations? They knew when it had happened that a Government were not sustainable, and they knew when it had not happened. The mood of the House in relation to that of the country was an open question.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I am not sure that that is true. It depended on the Crown-that is, the Government or Executive-retaining the power to dissolve Parliament. I do not think that a measure that was considered to be a motion of no confidence in 1866-namely,

"to leave out the words 'clear yearly' and put 'rateable' instead thereof"- would be considered to be one today, and I therefore think that it would be inappropriate for that power to remain.

The Chairman:

Order. The next set of amendments deals with no confidence motions. I think that the hon. Gentleman is in danger of jumping ahead, and I am sure that he does not want to do that.

Photo of Grahame Morris Grahame Morris Labour, Easington

I am concerned less about hon. Members' definition of a confidence issue than about whether that definition would be acceptable to the court if a certificate were challenged. However, I accept that that is the subject of a later clause.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

We will undoubtedly discuss the Speaker's certificate when we deal with later amendments.

The Government have relied for their provision on calling a general election on the fact that there are similar provisions in the Scotland Act 1998. It is true that that Act provides for an early general election when, and only when, there is a super-majority among those voting. However, as I tried to explain to my right hon. Friend the Member for Blackburn, the two measures are completely different. The presumption in the Scotland Act was that it would be virtually impossible for any one political party ever to have a majority in the Scottish Parliament. Incidentally, the Act also contains a provision that is entirely different from the provision in clause 1: it provides that the date of the next general election, if there is one in Scotland, will not be changed at all.

Moreover, the provisions in the Scotland Act mean that if there is no First Minister-which is the equivalent of no one being able to gain a motion of confidence on a simple majority-a general election must follow in any event. That, in my view, clearly invalidates the super-majority process, which I think will be used very rarely in the Scottish Parliament.

The problem with the provision in clause 2 relating to a super-majority is that either it is profoundly dangerous because it removes Parliament's power to hold the Government to account, and to be able to sack the Government or the Prime Minister, or it is otiose, because a Prime Minister who wanted to ensure an early general election at a time of his or her own choosing would simply engineer a motion of no confidence or, for that matter-as there is no determinant for what counts as a motion of no confidence-table a motion of confidence in which the Government then chose not to vote. The Opposition would almost certainly vote against the motion of confidence, and an early general election would follow.

Photo of Angus MacNeil Angus MacNeil Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Constitutional Reform), Shadow SNP Spokesperson (Scotland)

The hon. Gentleman mentioned Scotland. An election called by the Scottish Parliament during the period of that Parliament would not necessarily reset the clock. An election would still take place, say, a year or two years later. I understand that here the clock would be reset. There is clearly an incentive to go to the country at different points which does not exist in Scotland.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I am grateful to the hon. Gentleman for echoing a point that I made three minutes ago. I still agree with the point that I made three minutes ago, and I now agree with the hon. Gentleman, which is great. We are gathering support in the debate, which is very exciting. I hope that he will support the same amendments as me.

My problem with amendment 33 is that it places all the power in the hands of the party leaders. That is a profound problem, as I hope we are moving into a period when Parliament finds more opportunities to take its destiny into its own hands. I hope various measures that have already been introduced will help in that, and will revitalise the role of Back Benchers and therefore make it possible for not everything to be decided by the party leaders. That is an important principle, and it is why we do not support the amendment-although I realise that the hon. Member for Epping Forest will not press it to a Division in any case.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

I simply want to say that I agree with the hon. Gentleman; he makes a very good point.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I wonder whether I can carry the hon. Lady a little further into even greater acts of agreement. Bearing in mind the stricture she has set herself of not opposing anything that is in the coalition agreement, she should feel free to support us in respect of later amendments on the two-thirds majority, unless she has found some other reason not to do so.

We have tabled one amendment to clause 2: amendment 21. The clause provides for the calling of an early general election, but it does not specify what "early" means in that context. It does not state whether the motion that could be moved in the House would say, for instance, "This House calls for a general election in the autumn of next year," and if so whether that means the general election would be held next autumn or prior to that, as current legislation still allows for the precise date of a general election to be set by royal proclamation, which would obviously be on the basis of advice from the Privy Council, and therefore would in practice come from the Prime Minister.

Therefore, the Bill as currently drafted lacks clarity in this respect. That is why we have suggested that the clause should refer to an "immediate" rather than an "early" general election. That fits with amendments we have tabled to other provisions saying the power to determine the precise date of the general election should not be left to the Prime Minister, and that instead the date should be set.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

In a moment.

Once the Speaker's certificate has been certified or provided, the general election should be held on a specified date as provided for in legislation, rather than one decided elsewhere.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

Again, the hon. Gentleman is catching up with me; I explained that in my last sentence, but he had already sought to intervene. What I was trying to say was that under amendments we have tabled to other parts of the Bill, the election would take place on the sixth Thursday after the day on which the Speaker had issued the certificate, whereas the clause states that the general election will be held on the date provided for by royal proclamation-I presume under the Great Seal-as advised by the Privy Council, and therefore, effectively, determined by the Prime Minister. I presume those measures have been put in place so as to stick with the current timetable for general elections, which is six days after Dissolution for the close of nominations and 11 days after that for the day of poll, but perhaps the Minister will confirm whether that is the case. If we are putting other provisions on to the statute book, there is no reason why we should not be able to provide in statute the precise day on which the general election would take place. That is my definition of "immediate".

Mr Cash was right in saying that he did not consult the Opposition in tabling his amendment. I have to confess that he got to the Table Office about 20 minutes before we did, so I am afraid that on this occasion we have had to row in behind him. Whereas we disagree on many issues, on this issue we simply agree. Either the provision of a super-majority for the calling of an early general election is dangerous or, like Z, it is the unnecessary letter-it is otiose and is not necessary in legislation. The hon. Gentleman's amendment would remove the super-majority. It would return us almost exactly to the provisions of the South African constitution and allow for an early election on the basis of a simple majority, even though South Africa has fixed-term Parliaments, which have been pretty much adhered to since 1994.

Photo of Nicholas Dakin Nicholas Dakin Labour, Scunthorpe

Does my hon. Friend think that such arrangements make things more transparent to the public? Super-majorities are very opaque and are not understandable in these matters, whereas what he is arguing for is much more transparent and understandable, and much better.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

My hon. Friend is absolutely right. I understand that for there to be a super-majority in this Parliament, 434 votes in favour would be required, although that is before the Bill before the other place, the Parliamentary Voting System and Constituencies Bill, comes into operation in an unamended form. We are talking about 434 out of the 650 seats at the moment. As I have said, the arrangement leaves some things completely uncertain; I presume that the Speaker and the Deputy Speakers would not be allowed to vote.

That brings us to another interesting point, which is that, as you will know, Mr Hoyle, under the Standing Orders and the custom of this House, the Speaker and the Chair do not vote unless there is an equality of votes. That is different from the arrangement in the other House, where the Speaker or the Chair of the Committee is able to vote twice. The commonly accepted provision, as stated in "Erskine May", has then been as follows for the Speaker:

"it is usual for him, when practicable, to vote in such a manner as not to make the decision of the House final".

In a vote such as I am describing, there would not have been equality of votes, but if one side had got to 433 seats, would the Speaker be allowed to vote or not? This is slightly complicated when there are 650 seats, but if the number is reduced to 600, as suggested in the Government's proposals in the other Bill, 400 seats would be the mark that we would have to reach. If the vote is on a knife-edge, would the Speaker and the Deputy Speakers, or the Chair of the Committee, be allowed to vote on such a measure? Importantly, this is not just about the Speaker. If the vote were on a Budget and if we took the advice of the hon. Member for Aldridge-Brownhills that in some situations a Budget decision or a financial decision would be considered a motion of no confidence, the provision would relate not to the Speaker, but to the Chairman of Ways and Means or one of the other Committee Chairmen, who would be chairing.

As my hon. Friend Nic Dakin said, many difficult elements are involved in operating a super-majority. The biggest problem arises where the Government or the Opposition table a motion seeking to get to that figure and an early general election, and obtain more than half the seats in the House but do not reach the two-thirds majority. In what state would that leave the Government? Would a motion of no confidence immediately have to be tabled for us then to be able to proceed to the other measures? Or would that original motion, by its very nature, have been considered a motion of no confidence, because the Government declared it to be a matter on which winning the vote was an issue of confidence? Again, this provision is either a dangerous or entirely unnecessary element.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Does the hon. Gentleman accept, therefore, that amendment 4 is the most important in this group? If so, will he argue in support of having a vote on it, if my hon. Friend Mrs Laing withdraws amendment 33?

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I am enthusiastically in favour of having a vote on amendment 4, because it goes to the nub of the issue; in large measure, it deals with the only issue of significance in this group of amendments.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

In case there were any doubt about it, may I tell the House that I shall certainly be putting amendment 4 to the vote?

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

In case there were any doubt about it, I shall join the hon. Gentleman in the Division Lobby unless the Whips manage to get to him, which is very unlikely. They rarely manage to get to him-he is an undiscovered country beyond whose bourn no Whip has ever returned, since we are doing "Hamlet" this afternoon.

The Chairman:

Order. It may help the hon. Gentleman to know that the Chair will decide on which amendments the Committee may vote.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform) 4:00 pm, 24th November 2010

Of course, but I will not look for you to join us in the Division Lobby, Mr Hoyle.

The Government might say in their charming, elegant and smooth way that this is a hypothetical situation because the honest truth is that in all normal circumstances no Government and no Prime Minister would ever choose to circumvent the power of the House on the two-thirds majority that would be needed to call an early general election by enforcing a motion of no confidence. I echo the words of the Clerk of the House in a memorandum on the Bill to the Select Committee on Political and Constitutional Reform: there may be little risk of an accident if one drives up the motorway on the wrong side of the road at 4 o'clock in the morning, but the impact if there were an accident is likely to be very serious, and so although the risk of a dispute about a vote to dissolve Parliament being argued out in the courts might be small if it were to happen, its impact politically and constitutionally would be very great. That is why I say to the Government that although I understand how they have ended up with this legislation-it is not that I detest every element of it, although I dislike the process and I dislike the use of the period of five years instead of four and so on-and although I think there are elements of the clause that are right and proper, I think that they have not thought through the full possible consequences of the legislation.

I can easily foresee a time when a Prime Minister who is desperate to have a general election because of war, an immense financial collapse or something else that he thought was of absolute centrality to the Government that he-

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

Or she. I thought I just heard my right hon. and learned Friend Ms Harman speaking in my ear.

If that Prime Minister felt that it was essential in the interests of the nation that there should be an early general election, the Government would be prepared to bypass and use every trick in the book to secure an early election. They might well have this Bill in their back pocket as a means of achieving that. So although this Government were supposedly trying to release the grip of the Executive, they would have enhanced it.

I want to reaffirm our commitment to fixed-term Parliaments. That means that we have to lay down in statute that it is for the House, not the Prime Minister, to dissolve Parliament. It should also be for the House to decide the precise date of the general election, which should be in statute, and we should have only one process of calling an early general election. We must be clear that the Government need always retain the confidence of the House of Commons and that should be written in statute now.

For most of the 20th century, we have had very few hung Parliaments, but I suspect that there might well be more in future. We need to ensure that our provisions will stand the test of time rather than simply being drawn up to appease the coalition agreement.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Mr Hoyle, I have a point of inquiry following your response to the Opposition's Front-Bench spokesman, which is about the stand part debate. As the amendments are theories in concatenation, it is difficult to address an amendment in isolation without reference to a wider context.

The Chairman:

It is unlikely, not ruled out. The other point is that I am not sure that we will even get there. At the rate at which we are going, we have quite a while to go yet.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Thank you, Mr Hoyle. I shall start with my first observation, which is that the test of each clause in both of the constitutional Bills is to ask in what way it enhances the role of the people in relation to Parliament. The answer, again, is that this does not. The measures are meant to be an internal reorganisation of the rules and regulations of the House of Commons effected through statute. We have had advice from the Clerk of the House that, if challenged, it will be open to judicial interest and the views of the courts. Historically, this matter has always been determined within these precincts and so the question of what we call parliamentary privilege is particularly germane to the Bill. I am very concerned about that. I make the perhaps minor observation that in a struggle between a new Government without a mandate and the House of Commons authorities, who are appointed by the House, I would back the advice of the House rather than that of the politically motivated and interested Government of the day. I do not dismiss the Clerk's memorandum or accept the response to it, which is effectively like that television sketch "Computer says no." That is an extraordinary and very undignified response to the Clerk's advice on something that is of the greatest importance to Members of the House, and through them, citizens' rights, activities and freedoms.

My next point concerns the accumulation in clause 2 and the proposed amendments to it of purposes, or distinctions between ways of dissolving Parliament. These measures have shifted my position from benign acceptance of the concept of a fixed Parliament to one of questioning whether there was not greater wisdom in the proceedings and processes that we had before. These measures worry me enormously. My hon. Friend Mrs Laing generously moved an amendment in which she has no confidence in order to test a proposition, and she did test it-to destruction. On examination, the amendment is too threadbare and offends the very conscience of why we are here. It suggests that some Members' views on whether a Parliament should stand or not should be disregarded because they do not have a party leader who represents a certain number of votes. I do not know how such an amendment got through the Select Committee but I think it was to form the basis of some sort of standing order that could be cooked up to meet the point about judicial inquiry into the purposes or nature of the Bill.

Let me make another point about motions for an early election or of no confidence. We have tickled, argued and considered across the Chamber the way in which Mr Callaghan accepted that there had to be a general election, but that was nearly at the end of a five-year Parliament. There was very little scope beyond going the few months left, but he stood up immediately and said, "There will have to be a general election." I remember the perfervid moments of the Maastricht debates and the subsequent consequences of a Government who had a very small majority wanting to increase the rate of VAT on domestic fuel. The motion was to be vehemently opposed by people such as myself, who had lost the Whip, but not just because of that-it was an opposed measure. It could not have fallen but for the support of Conservative Members who took a broader view on it, and it did fall. The argument that was put by the bastion of the 1922 Committee and the Whips, of course, for they have an argument for all seasons, was that if it fell, the Government would fall, and that the solemnest duty of any Conservative Member was to support the measure because the confidence of the House stood in the Budget. I shall always have a soft spot for the Justice Secretary-then the Chancellor-because when he lost the vote, he said, with that famous giggle, "Oh, we'll have to have a corrigendum Budget." We duly had one on the following Thursday. I am really talking about the pressure that was put on Back Benchers, because we were told that the Government would fall.

If I had stood in front of my constituents at the general election and said, "I've got two little measures. The short title of one of them is the Fixed-Term Parliaments Bill, but the long title seems to contradict that concept," they would have been bemused. If I had then started talking to them about the nature of confidence votes and motions for an early election, they would have been struggling. We were entering an election and they knew what it was about; there was a crisis. There was a huge public deficit and anxiety about jobs, yet here was Shepherd of Aldridge-Brownhills troubling them with the notion that

"each member of the House of Commons who at the time of the motion being made is the registered leader of a registered party" and so on. If I had done that, my constituents would have thought, "Well, he's been with us a long time," and they might have made a different judgment in the election.

The measure has no mandate. I have opposed other constitutional measures, but however wrong I thought the balance of the argument was for the detail of the Scotland Bill proposed by Labour, no one could say that there had not been a national convention on it. There was no political party in Scotland that had not long resourced such a measure. I recall John Smith's role and that of a whole series of people. They were alert and alive to the issue. No one could claim that there was no mandate for the reforms and changes that took place under the sovereignty of this Parliament to create a Scottish legislative structure and to pass powers to Scotland. The constitutional developments in Wales and Northern Ireland were similar.

Those measures could claim a mandate. The 19th century is often cited, but these are long struggles. I was a little riled by the Labour spokesman because he referred to the 18th century. It is proclaimed that the glory of the House is reflected in our coming to the democratic age-it is rather like dividing up what happened in a great empire-but the democratic age is fairly fresh and young and new. It did not really start until the 1860s. That was when political parties were formed and there was a more regimented approach to the management of the House-not easy to do. There was a glorious extract from the London Illustrated News next to the office of my hon. Friend Mr Cash-I now know where Pericles found the stones to get over his lack of confidence. The extract was from the Queen's speech-then Her Majesty Queen Victoria. The burden of it was to say, "This parliamentary Session"-well, this particular parliamentary Session will last for ever, but apart from that-"Her Majesty's Government will concentrate on foreign affairs. It will leave domestic legislation to the House." Just like that. That is a world away from where we are now-where the Government have to fiddle and twiddle, and do everything at the behest of a very informed-

The Chairman:

Order. Chris Bryant also gave us a history lesson and had to be reminded to come back to the amendment. I am sure that Mr Shepherd would prefer to stick to the amendment. I realise that we can broaden things out, but we are going a little bit too far from the measure.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

Of course, I joyously do that. Implicit in every line of the measure is the management of the House. That is the only reason why I diverted slightly to recall the London Illustrated News.

Photo of Jonathan Reynolds Jonathan Reynolds Opposition Assistant Whip (Commons)

The hon. Gentleman is making another fine speech, which I am always glad to hear. He spoke about the mandate for constitutional change and the previous mandates that previous changes have enjoyed. Does he agree that it is important to have a mandate not only to introduce a change in the constitution such as that proposed, but to entrench it? Without such a mandate, is there not a danger that future Governments may feel that they have the authority to introduce such constitutional changes to their own benefit, much as the present Government are seeking to bring in a constitutional change through the measures in the Bill for their own benefit?

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills 4:15 pm, 24th November 2010

I like the young new Member vigorously advancing an argument that I find so convincing.

The measure is not appropriate for a serious democracy. Clause 2, as my hon. Friend Mr Cash said, is an endeavour to entrench. It is as simple as that. We cannot ignore a wider picture of what is going on. At this moment, loyal and good dinner guests of those who run my party are marching into the Lords to take their place. Their doing so means that when the Bill comes to be voted on-remember, the other House that has to deal with that is the Lords-the numbers able to vote on it in the Lords in the Conservative and Liberal Democrat interest will have increased exponentially.

Overall, the Bill-clause 2, the other clauses, the Speaker's certificate, the idea of a registered leader of a registered party and so on-is, if not humbug, then designed to defeat the very purposes that most of us in the House want, an open democratic House. I know that this is difficult in politics, but my Conservative colleagues should listen, understand and think about the 200 very new Members in the House who are going to change a constitution without any reference point other than party loyalty. Party loyalty to what? No mandate? They are going to march blindly through the Lobby at the behest of the concept of party, when in a coalition that is a very different matter.

I shall certainly vote for amendment 4, and I hope there will be many who take that course.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

Many valid arguments have been made about this group of amendments by a number of right hon. and hon. Members. I have total sympathy with the cynicism that has been expressed about some of the devices in the Bill and the motives for them.

However, I believe totally in the idea of a fixed-term Parliament and have supported amendments that clearly stated "fixed term", although I believe that the term should be four years, rather than five. I have to ask myself, as all of us as legislators and members of the Committee must ask ourselves, if we do not like the present provisions, what is our alternative that would mean that we have credibly passed a Bill for fixed-term Parliaments? That is where I part company and cease to be persuaded by some of the arguments that I hear in respect of some of the amendments.

With reference to cynicism about the motives, a number of hon. Members have articulated the basic nature of the Bill. It is the means by which the two coalition parties have created a statutory harness to keep them together for this Parliament. It is, in essence, a fixed this-Parliament Bill, rather than a Fixed-term Parliament Bill. It is designed to solve the conundrum of either party collapsing the coalition. The Parliamentary Voting System and Constituencies Bill is for fixing future elections. This Bill is about fixing this Parliament.

If I want the Bill to be a Fixed-term Parliament Bill, I have to be judicious about its content and any amendments that I might support. That is why I have some questions about some of the amendments that have been so articulately presented today.

Mrs Laing presented amendment 33 with a white flag and in a very novel way, which just goes to show that it is entirely possible for people to present themselves in all sorts of ways in the House. People say that a Government would not use or exploit in any way a no confidence motion against themselves, but any available device will be used in any particular circumstances. That is the nature of politics.

Chris Bryant spoke to amendment 21 and made a strong case for an "immediate" as opposed to an "early" general election. The only problem is that if "immediate" can mean only six weeks, as he said to Mr MacNeil, what happens if, for example, we are close to Christmas-perhaps the middle of November-notwithstanding that allowances will be made for holidays? If we are truly to take account of media coverage and other activities during that time, is it credible to confine ourselves to six weeks and six weeks only? Clause 2 as it stands allows for consensus in the House on the need to bring forward considerably the due date for an election, and people might do so conscious of current and pending events.

Another hon. Member mentioned the situation in Dublin at the minute, and many people would say that, although confirmation of an early election there has helped to clear the political air, going for an immediate election might cause more market turmoil not just for Ireland, but for others. There are times when we need to leave ourselves and this House the room to make a distinction between "early" and "immediate".

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I am well aware that the hon. Gentleman is pretty close to and talks frequently with those in southern Ireland and in the Dail, but I doubt whether the Dail or the people of Ireland would be particularly enthusiastic at this moment, when the Government are in coalition with the Greens, to have such a provision imposed upon them. I suspect that, if the idea were suggested, it would lead to serious disturbances in Ireland, and I am quite sure that the hon. Gentleman will agree.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

The hon. Gentleman raises some wider questions, and you, Mr Hoyle, have said that the next group of amendments deals with confidence, but this debate has strayed well on to that ground and conflated the two issues of whether the House, by a weighted majority, calls for an early election or whether it passes a motion of no confidence in the Government.

In 1994, the Government changed in the Dail. The Labour party left its coalition with Fianna Fail, supported a motion of no confidence in the then Taoiseach and reappeared in a new coalition with Fine Gael and the then Democratic Left. In that situation, as in the Bill before us, provision has been made for a Government to change-a new Government to be constituted-in the lifetime of a Parliament, and in 1994 the people of Ireland settled quite happily for that.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

My hon. Friend does not like my "immediate" provision, but I shall suggest one reason why he is wrong. The Bill, if unamended, means that Her Majesty by royal proclamation under the Great Seal, after conferring presumably with the Privy Council, determines the date of the general election, but that in essence is down to the Prime Minister. Surely, if the whole point is to take that power away from the Crown and to place it here in Parliament, there should be provision for an "immediate" general election.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I take the hon. Gentleman's point about trying to remove powers from the Prime Minister, but I am not sure that all the amendments that he supports would do that. I think that, in a fairly effective way, the powers would remain pretty heavily with the Executive.

I am not fully persuaded of the case for the amendment. I fully accept the argument that it would bring some clarity and put some control in the hands of the House. However, there could well be good, logical reasons for having an election that occurred to people at the time, possibly well in advance of a due election date. There could be political difficulties in one of the devolved regions that are leading to elections there, or particular market issues, or all sorts of crises in Europe-although I do not want to excite Mr Cash with that prospect. A variety of reasons could create a coincidence of interest across a number of parties from a number of places to say, "We'll have an early election", and a date could be set without necessarily having to do it in crisis mode for six weeks hence.

The beauty of a fixed-term Parliament is meant to be that, because we all know the dates, we do not create uncertainty and have political rushes and get all sorts of brinkmanship games being played. However, if this House is to have the power to dissolve early, it can have that power but not necessarily the power to do it immediately. It can have the power to give due notice that the date is being brought forward but without waiting until just six weeks beforehand. If there is merit in a fixed-term Parliament, there is also merit in leaving this House the opportunity to bring forward a date other than just by a vote six weeks beforehand, because that would create surprise and difficulties and a sense of crisis. I fully accept that the terms of the clause are not fully adequate: the hon. Member for Rhondda is absolutely right about that. We do not have a complete or adequate provision on fixed-term arrangements.

Amendment 4 would remove the requirement for a two-thirds majority. I accept the argument made by many hon. Members that that is a very high threshold. I do not agree that it should be two thirds of all Members regardless of whether they are voting. If we are going to set any majority, or any weighted majority, it should comprise those who are present and voting, so I do not accept the Bill as it stands. However, I cannot just simply go along with the argument that says that there should not be any sort of weighted majority, because then we are not sure what proof we are providing against anybody abusing the numbers in this House to dissolve Parliament early. Other hon. Members have referred to the powers of the Prime Minister and the powers that are exercised through party machinery-the Whips, and so on. Leaving the calling of an early election to a simple majority that can be activated to call an election within six weeks means that huge power remains in the hands of the Prime Minister.

Photo of George Howarth George Howarth Labour, Knowsley

Does my hon. Friend accept that being a Member of this place carries with it not only a lot of privileges but a lot of responsibilities, and that if we can achieve a simple majority, that would mean that more than half the Members of the House of Commons-people who have been sent here to exercise their judgment-had reached the conclusion that the time was right for a general election? I cannot for the life of me see why he finds that a difficult concept.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I believe in the idea of a fixed-term Parliament. I am therefore not comfortable with the idea that, yes, we have fixed-term Parliaments, but that at any time a simple majority can call an election for six weeks hence. That is what I am being asked to vote for as an alternative to what is provided for in the Bill. The Bill is not perfect, and it is badly motivated-I am as cynical as anybody else about that-but I have to be judicious and logical about what I would provide in its stead.

There is an old joke about somebody going into the two-hour dry cleaners and being told, "Come back on Tuesday." They say, "What do you mean, come back on Tuesday? It says 'Two-hour dry cleaners' outside." Then they are told, "That's just the name of the shop." That is exactly what we have with this Bill. People say that they want a fixed-term Parliament, but they also want a Bill that means that it will not, in effect, be fixed, because a simple vote at any time can dissolve it-and who is going to be moving those votes and pulling the strings of the Whips behind the scenes? We must remember that at any time, it will be possible for people to force an election by using a simple majority to force through a vote of no confidence in the Government. If there is not a vote of confidence in an alternative Government within 14 days, there will be an election. If people want the means to force an election, that route exists.

However, it is fair and reasonable also to give the House the power to change the date of an election for reasons that are not particularly partisan, that are mature, responsible and well thought through and that can be justified in light of existing circumstances and forthcoming events. The House should be able to say, "We have a fixed-term Parliament, but we are giving all sides ample notice that we will be moving the date." That would not be a matter of artifice or brinkmanship. If the House is being offered such a responsible, mature power that it could use with responsibility aforethought, I find it bizarre that Members are trying to twist and turn to find reasons not to take it.

I welcome the spirit of the amendments intended to allow parties other than the bigger ones to have a say. The small parties found themselves disqualified from even being able to nominate members of the Backbench Business Committee, for example, so I am conscious that some thresholds being used in the House are a problem. Some of our parties are no longer eligible to be on the British-Irish Parliamentary Assembly, a creature that some of us helped to create in the first place, because of thresholds and the way in which numbers are played with. Therefore, I fully appreciate the spirit of the amendments but I have my doubts about their exact nature and how practical they are.

We need to be careful about the Bill and the amendments to it. We want to ensure that fixed-term Parliaments are in place and that it is not so easy for parties to break whatever convenient glass is to hand in case of emergency. I am persuaded that there is a need for a weighted majority provision, and for a vote that is different in character from confidence votes, which are not threatened by the Bill. If anything, the Bill provides for a situation similar to the one in Ireland in 1994, so I have no argument with it on that score. I do question the terms on which the threshold will operate, and when I question the effectiveness of some of the amendments, I do not in any way give up my cynicism about the nature and purpose of parts of the Bill and its twin, which has now gone to the other House.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 4:30 pm, 24th November 2010

I am against the Bill because of the lack of flexibility in it. From what Mark Durkan has just been telling us, I think he agrees that if we have a fixed-term Parliament, a lack of flexibility is inevitable. He said that in the current constitutional and financial crisis in Ireland, it is reasonable that its Parliament should be able to call what he described as an early general election rather than an immediate one.

However, the consequence of the Bill will be that if we had a constitutional and financial crisis in this country similar to the one besetting the Irish people-God forbid that that should happen-the hon. Gentleman or I might ask my right hon. Friend the Prime Minister whether he intended to call an early general election so that the people could have their say. Under the terms of the Bill, the Prime Minister would turn around and say to me or the hon. Gentleman, "I am sorry, but I don't have the power to call a general election now. The only way I can engineer one is for you to put down a motion of no confidence in me, with the humiliation that it would involve, or for me to try to get a two-thirds majority in the House to facilitate it." The Prime Minister would lose the right to call an election. The Minister seems to think that is a good idea, but I do not. I trust the Prime Minister's judgment on such issues, and I think we should trust the people and let them decide.

When our good friend Edward Heath was Prime Minister, he decided to call an early general election to deal with the miners' strike. The people reached their verdict. Basically, they said, "We think that you have proved yourself unworthy to remain in office." The fact that a Prime Minister calls an early general election does not necessarily mean that they are going to win it. Whether they win or not is a matter for the people.

If there was a financial or constitutional crisis, such as the one in Dublin, a reasonable Prime Minister-I should like to think of my right hon. Friend the Prime Minister as a reasonable man-would say, "In the light of what has happened, we should call a general election. We should call it now. We should not have to have a contrived vote in the House of Commons. I wish to go to the Queen and ask her to exercise her prerogative to call an immediate general election."

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

In Dublin, a budget needs to be passed and then people can make a legitimate judgment. The imperative is to get a budget passed to create some economic and financial stability to boost confidence in the wider markets-not just for the Irish economy but for other economies both inside and outside the eurozone that will be under pressure. There will be an election in late January and that is known, but at least the Dail has the opportunity to pass a budget.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I will not get involved in the detail of what is happening in Ireland at the moment. If a similar situation were to happen in this country, people might well turn to their Members of Parliament and say, "Why should we trust this Government to pass another Budget when it has made such a Horlicks of the current arrangements? Why don't we elect a new Parliament and a new Government to deal with the crisis?"

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

At first, my hon. Friend said that this Bill would not provide any flexibility. Then he set out two ways in which we could have an early election. Our proposition is that it would be up to this House rather the Prime Minister to call an early election. The Prime Minister could come to this House, put down a motion and then Members could decide whether they wanted an early election to deal with the financial crisis. To give the power to this House and not leave it with the Prime Minister is an improvement.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Where we all part company with my hon. Friend is on the issue of whether a 50% plus one majority should suffice. That is where the amendment of my hon. Friend Mr Cash comes in. In the hypothetical situation that we describe, a majority of this House may decide that there should be a general election, and surely that is reasonable. Why should we have to have the constraints of a two-thirds majority, which is a contrivance in itself?

I had the privilege of introducing the first Adjournment debate in this Parliament when we discussed the issue of the 55%. I like to think that it was largely because of the cross-party ridicule of the 55% arrangements in the coalition agreement that the Government decided to think again. They did think again, but they reached the wrong conclusion. They should have gone back to saying, "Let's have a bare majority" rather than going to the artificial two-thirds majority. They tried to pray in aid, falsely, the Scottish precedent, which was discredited during that first Adjournment debate and on a number of other occasions as not being in line with our situation. In Scotland, there was full public consultation on the new Parliament and the way in which it could be dissolved early, short of the expiry of the fixed term. After that discussion, the Scotland Act 1998 was brought in with the arrangements set out in it. In the United Kingdom, a general election took place. I and others were elected on the Conservative manifesto. We then found that we did not have an overall majority, so we were forced to go into a coalition Government-at least that was the decision that was taken. We are now told that only a two-thirds majority can bring this Parliament to an early end, short of a vote of no confidence in the Prime Minister. I have all sorts of objections to that proposal, not least that it is effectively retrospective legislation. If this House is to legislate to fix the lengths of Parliament, it should legislate for the lengths of future Parliaments, not the current one. I object to the proposal, and I hope that it is taken up in the other place.

I also reject the idea of the artificial two-thirds threshold, which has not been discussed anywhere. When my hon. Friends consider whether to join my hon. Friend the Member for Stone in the Division Lobby on amendment 4, they should bear in mind not only that the two-thirds threshold was not in the Conservative manifesto, but that it was not even in the coalition agreement. They should be free to say to their Whips, "I said I'd go along with the coalition agreement, albeit reluctantly, but I am certainly not signing up to amendments to the coalition agreement that the Government make on a whim and expect me to support automatically. I'm going to look at each issue on its merits, and I see no merit whatever in the two-thirds majority."

In conclusion, the excellent speech by Mr Straw was well worth listening to. He speculated about the motive and urgency of the Government's proposal. We know what the urgency is: the Government are split completely over the AV referendum. The Liberal Democrats and the Conservatives-the majority party-both want to be sure that the other does not pull the rug from under the coalition Government after that referendum. It is quite possible in my submission that the Conservatives will lose, although I hope not, but who knows what will happen in that game of Russian roulette?

Photo of Lindsay Hoyle Lindsay Hoyle Chair, Panel of Chairs, Deputy Speaker and Chairman of Ways and Means, Chairman of Ways and Means

Order. Such an experienced Member will know that the referendum is not quite part of this group of amendments. I am sure that he would like to get back to the amendment.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Absolutely, Mr Hoyle. I am sorry, but the right hon. Member for Blackburn, who is a former Home Secretary and holder of many other important national offices, drew me down that road of speculation.

To sum up, the Government have a motive to cover either outcome of the AV referendum. It suits both parties in the coalition to prevent an early general election, which is why they want a fixed-term Parliament-they want to assure themselves of a longer period in office. I say only this: good luck to them, but they should not expect me to vote for the Bill tonight.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

I wish to speak to amendments 33 and 34. Even though I, too, am a member of the Political and Constitutional Reform Committee, I did not put my name to them. As Mrs Laing suggested, they allow us to pursue the idea of exclusive cognisance, and of this place having control of its powers rather than being opened up to external powers, particularly in respect of the possibility of the courts intervening in the parliamentary process.

As my hon. Friend Chris Bryant said, the Clerk of the House has repeatedly warned Members that the provisions of the Bill

"impinge upon Parliamentary privilege and...may bring the Courts and Parliament into conflict", and yet the Government seem unwilling to heed any such advice. When the Clerk of House appeared before the Political and Constitutional Reform Committee, with his usual subtlety and modesty, and we tried to press him on whether he had been consulted on the developments behind the Bill, he rather averred in his answer. The Government consider that

"this Bill would cause no such rebalancing and that the Bill will not in any way open up parliamentary proceedings to the jurisdiction of the courts."

That is an idea that the amendments are beginning to tease out. In their reply to our Committee, the Government also said that insufficient time for pre-legislative scrutiny is a

"natural consequence of legislating at the beginning of the first term".

I am a new Member in this place, but I do not regard that as a sufficient excuse for some of the lacunae that we have seen opening up in the course of our scrutiny of this legislation.

I would like briefly to point to two areas where there are potential openings for judicial intervention in the running of this place. I do not wish to speak to the Speaker's certificates now, because we will return to the specifics of that, but amendment 33 opens up the issue as a principle, because in addition to fixed electoral dates, the Bill empowers the Speaker to produce a certificate for an early general election, which would occur if the House had passed a motion of no confidence in Her Majesty's Government and, after 14 days, there had been no further motion expressing confidence. The Government are leaving it up to the Speaker to decide whether such events have occurred, but the problem is that the judgment that the Speaker makes will now be placed in statute, as a principle, but it is not an easy decision for the Speaker to make. He or she would have to adjudicate on what constitutes a confidence motion, the selection of amendments to the motion and the consequence of their being carried, all with an eye to major political ramifications. Crucially, because the certificate would be laid out in statute law, any disputes about whether the Speaker had been right to issue the certificate would have to be settled in the courts. The Speaker's certificate becomes justiciable and would therefore be declared invalid if the correct procedures had not been followed.

As you know, Mr Hoyle, lawyers can interpret their way around provisions in any way they like, and particularly those stating that the Speaker's decision is final. There is a celebrated case of a compensation scheme after the Suez crisis, with its legislative provision that

"the determinations of the compensation body shall be final".

Not according to the court, which ruled that where the body had made a decision on compensation that was wrong, it was not a "determination" but only a "purported determination", and therefore the courts could still review it. So if the wrong procedures were followed, any certificate would not be a "certificate of Dissolution" properly so-called, only a "purported certificate", and would therefore not be final but would potentially be amenable to judicial review. The Government seem intent on ignoring that possibility and the numerous potential openings for legal dispute.

I hate to refer to your position in depth, Mr Hoyle, but another example is the position and role of the Deputy Speakers, as laid out in subsection (4). Were the Deputy Speakers to dissent from the Speaker's view of the no-confidence motion, there would be strong grounds for questioning the basis on which the Dissolution was based. The current provision is that the Speaker must consult the Deputy Speakers "so far as practicable". I am sure that that would be no problem, but the notion of what is or is not practicable in the case of dissent between the Deputy Speakers would also need to be settled in a court of law. As Mr Cash and many others have pointed out, another issue would be whether all Members of the House of Commons had been present at the vote. However, no matter what the reason given, in such politically charged circumstances as those that would surround a vote of no confidence, parties are likely to seek means of challenging the Dissolution. We have also had reference to what constitutes a motion of no confidence. Is it losing a Budget or a specific motion?

Amendments 33 and 34 and others hint at the expansion of judicial review and the danger it poses to this place and to the democratic process and the calling of elections. Judicial review has hugely increased the role of the courts, which now regularly pass judgments on questions that were previously non-justiciable. I suggest that it is dangerous for the Government to assert that when the Bill becomes law it could not possibly be affected by judicial review because the judges would not dare to intervene in the matters of this House. The fact of the matter is that this is uncharted territory and they cannot know for sure until it has indeed been judicially reviewed.

Photo of Ian Lucas Ian Lucas Shadow Minister (Business, Innovation and Skills) 4:45 pm, 24th November 2010

My hon. Friend is making an extremely important and persuasive case. Is not all the evidence that judicial review of administrative action is increasing? For example, very recently, the Digital Economy Act 2010 was opened up by the courts for judicial review. It is less controversial than this, bit it inevitably suggests that there will be more review in future.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

My hon. Friend is right, and I shall come in a moment to the Hunting Act 2004, which is another piece of legislation that was open to judicial review. In the courts at the moment, there is the extraordinary situation of an election court judging my-I not sure of the correct parliamentary terminology-previous hon. Friend the Member for Oldham-

The Chairman:

Order. We will not stray down that path, as the matter is before the courts. We must return to the amendment.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

Thank you, Mr Hoyle. That proves my point-the areas where we cannot go because they are before judges are increasing.

In his written statement, the Minister simply cites article 9 of the Bill of Rights 1689, and leaves it at that. It provides that

"proceedings in Parliament ought not to be impeached or questioned in any court", and he said he could see

"no reason why the courts would not continue to defer to them".

The comity between Parliament and the courts has relied on the fact that the internal proceedings were entirely matters for the House's jurisdiction. Its procedures arising from Standing Orders or resolutions cannot be legally challenged, but statute law can. That is the extraordinary development in the Bill.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The hon. Gentleman is dealing with amendments to come and amendment 6. I take his point, but there is a huge body of law, and statements are being made by members of the Supreme Court that are causing great concern and are being considered by my European Scrutiny Committee's inquiry into parliamentary sovereignty in the context of law-making in this House.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

I could not agree more with the hon. Gentleman, and I will come to the Supreme Court in a moment. I do not want to interfere with his amendments on the Speaker's certificate, which are absolutely correct. My hon. Friend Ian Lucas referred to the Digital Economy Act 2010, and the Hunting Act 2004 was also reviewed in court. Yes, the court ruled that it could not interfere with the Act, but it had to go to the Law Lords for that supposedly self-evident truth to be confirmed. Even there, the judgement was hardly a ringing endorsement of Parliamentary sovereignty, which is what amendment 33 seeks to retain.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The process of getting to the courts takes time, and obviates the timetables in the Bill.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

The hon. Gentleman is of course correct. There will be extra layers and extra opportunities for lawyers to intervene. It was no wonder that Lord Steyn commented in the light of the Hunting Act 2004 that it

"is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism".

I think that in plain English that means they would be interested to get their teeth into the proceedings in this place.

Photo of Simon Hart Simon Hart Conservative, Carmarthen West and South Pembrokeshire

Is the hon. Gentleman talking about a legal challenge to the validity of an Act or, as in the example that he has just given, the validity of the use of the Parliament Act in ensuring that an Act reaches the statute book?

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

The hon. Gentleman makes a very good point, and his knowledge of the Hunting Act is second to none. I am hinting at the adventurism of justices in critiquing and opening up to judicial review not only the Parliament Act but the proceedings of this place. The fear is that putting these measures into statute will open up the calling of elections from this place. That is what amendment 33 seeks to address.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

The hon. Gentleman is relentlessly hunting out the provisions that will be referred to shortly. The problem with the Parliament Act 1911 is that the phrase

"shall not be questioned in any court of law" follows the words stating that the certificate

"shall be conclusive for all purposes".

When the courts come to interpret these questions, they will say, " Well, that's what it says in the Parliament Act." So if the words were left out, there may have been an intention to include the courts of law in this instance. That is why my amendment 6 makes it absolutely clear that there shall be no presentation of such a certificate to the courts, let alone any possibility of their adjudicating on such matters.

The Chairman:

Order. We are in danger of straying into amendment 6, and I would like hon. Members to come back. I am sure that that is what Tristram Hunt was about to do.

Photo of Tristram Hunt Tristram Hunt Labour, Stoke-on-Trent Central

I was about to come straight back to amendment 33; I will not be led too far astray.

Reference has been made to the new Supreme Court on the other side of Parliament square, which gives the capacity for amendments relating to the self-governing of this place, such as amendment 33, to be overturned by the actions of judges. The Clerk of the House has further warned us of the not infrequent need in recent years for interventions by the Speaker of the House of Commons to protect parliamentary privilege in the courts. As the hon. Member for Stone knows far better than we do, these matters can go from here across Parliament square and even to Europe.

All we want from the Minister is some clarity on this issue, and evidence of some slightly more rigorous thinking than the rushed elements that we have had so far. Rather than being slightly dismissive of the fears expressed by the Clerk of the House, will he provide us with some certainty and a clear answer to the question on statutory instruments and the certificate?

Several hon. Members:

rose -

The Chairman:

Order. After such a long debate, may I inform the Committee that I do not propose to allow a debate on clause stand part?

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

There are several other groups of amendments, and we can expand on these matters further in due course. I shall only go as far as I need to in discussing this group, rather than trying to accelerate the debate. I want to deal briefly with the timetable. I do not think that the Bill has been rushed in any way. It was published in July, it had its Second Reading in September, and the first day of its Committee stage did not start until November. We have another day in Committee today, and the House passed a programme motion earlier that gives us an extra day in Committee on Thursday. I do not think that we are rushing ahead with this. No knives were included in the programme motion, and we are taking the debate at the proper pace that the Committee requires.

Photo of George Howarth George Howarth Labour, Knowsley

I accept what the Minister says about the timetable for the Committee stage on the Floor of the House. A bigger issue, however, is that there was no time for proper pre-legislative scrutiny before the Bill was published and debated. Such scrutiny would have made many of these issues less contentious, or at least it would have had the potential to do so.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I do not pretend that we published a draft Bill. We did not, but we have not rushed ahead. We published the Bill in July and it is now November and we are on our second day of Committee. That is hardly rushing through at a tremendous pace. We have not overly programmed either; we have had no knives and only today we have added extra time for the Bill. I do not accept at all that we have been rushing on.

My hon. Friend Mrs Laing moved amendment 33 on behalf of some unnamed members of the Committee who-

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I would not want the Minister inadvertently to mislead the Committee. He said that extra time has been provided, but he has not allowed any extra time; he has merely allowed the injury time for the three statements that interfered with the debate. [Interruption.] If the Deputy Leader of the House wants to make a speech, I am sure he will be able to catch your eye, Mr Hoyle. [Interruption.]

The Chairman:

Order. I would like to stop this bickering between the Front Benchers. Let us move on.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

My hon. Friend moved amendment 33, although many members of the Select Committee pretended that they wanted nothing to do with it; to be fair, so did my hon. Friend. She explained why the amendment was tabled-to enable this Committee to debate and test the concerns raised by the Clerk. I shall touch on them briefly. I will not overdo them, as we may have an opportunity to debate them further in a later group of amendments on the Speaker's certificate. However, I shall deal with the amendment. I know my hon. Friend said that she does not want to press it to a Division, but it is the lead amendment.

The amendment would remove two central provisions-the two mechanisms that provide for an early general election to take place: the vote through which the House can choose to have an early election and the mechanism for having one following the loss of a vote of confidence. Instead, the amendment provides that the early election could take place only on the House's address to the monarch, which can be made only

"by the Prime Minister acting with the agreement of...the Leader of the Opposition; and...the...leader of a registered party that received more than 20 per cent. of the total votes cast at the previous...general election."

I have a number of serious issues with the amendment. First, it would prevent the Prime Minister from calling a general election only if he did so for political advantage. It ignores and does not address the circumstances where there is a loss of confidence. It also focuses greatly on Front Benchers, as our debate has made clear. I exempt my hon. Friend the Member for Epping Forest from this criticism, as she said she did not agree with the amendment, but given their views about the role of Front Benchers, I am surprised that the other signatories to the amendment thought that that was a good idea. Mr Allen is not in his place, but I do not think he would mind me saying that he is somewhat sceptical about the power of Front Benchers and the usual channels. I am surprised that he supported an amendment that suggests they should have a lot of power. As Mr Dodds pointed out, not every registered leader of a party is necessarily a Member of this House.

The amendment also fails to deal with what would happen to a party like the Liberal Democrats, our coalition partners, part-way through a Parliament. How would we take account of the vote it had received at the previous general election? Indeed, the 20% threshold would leave Northern Ireland parties out of the picture completely. If this measure had been in place following the 1992, 1997 and 2001 elections, only two people would have been required to table the motion-the leader of the Labour party and the leader of the Conservative party. In view of what has been said about the need to remove the power of the Executive and Front Benchers, that does not seem a sensible step forward.

It would thus be fair to say that amendment 33 is not well drafted. From what I heard, it does not sound as if it had enormous support across the Committee, including even from my hon. Friend. Despite the fact that she did not agree with the amendment, she moved it in a way that was very becoming to her parliamentary experience and the Committee enjoyed the opportunity with which it was presented.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I give way to the third guilty person responsible for the amendment.

Photo of Peter Soulsby Peter Soulsby Labour, Leicester South

With the amendment's proposers having been at the receiving end of the Minister's criticism, I hope he will acknowledge that it was tabled by members of the Select Committee to enable the matter properly to be debated, particularly in the light of our concern about the lack of proper time being accorded to pre-legislative scrutiny. We wanted to ensure that this Committee could debate the matter on the Floor of the House at this Committee stage.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I entirely agree. Indeed, I think I acknowledged that that had been the purpose for which the amendment had been tabled.

I can reassure my hon. Friend the Member for Epping Forest that there is no danger of my accepting her amendment, and that as there is not to be a Division-at least if we have anything to do with it-she will not be forced to vote against it.

Amendment 21, tabled by Opposition Members, simply changes the word "early" in clause 2 to "immediate". I have two comments to make. First, under our own arrangements-this too emerged earlier in the debate-we do not have immediate general elections anyway. There is always a wash-up period. Before the 1979 election-which seems to have prompted the most discussion-25 Bills were passed during the wash-up period, including a number that completed all their stages during that period. Some of those Bills were very valuable. I spotted among them the Pneumoconiosis Etc. (Workers' Compensation) Act 1979, which is still helping people today.

Secondly, all that the amendment does is change the language in the clause. It does not, in itself, have any effect. I know that Chris Bryant mentioned a later amendment that did introduce a change, but this amendment would not bring an election further forward.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

The Minister is right: we are not trying to make an enormous point. I simply wanted to tease out of the Government precisely what they understand by a motion calling for an early general election. I wanted to know, for instance, whether-as suggested by Mark Durkan-he believed that it would be possible to call such an election, and that the Speaker would be able to sign a certificate saying that one had been called, when the House had, say on Wednesday next week, passed a motion calling for a general election in nine months' time.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I do not think that that is drawn out by the amendment, but I agree with Mark Durkan that some flexibility is required. The Speaker will certify that a motion has been passed, but we do not know what all the circumstances will be. The hon. Gentleman gave a good example when he cited the way in which Ireland has arranged for procedures to take place to provide some certainty. I do not think that we want to set all the rules in stone. We want to allow the Speaker to be clear with the House-I am sure that he would be clear with the House before it debated the motion-about whether he is able to certify that the motion would trigger an early general election. It is better to leave such matters to the judgment of the Speaker. I will come to the point about the Clerk's concern about justiciability, but I do not think that being too specific would be helpful.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I will give way to the shadow Minister first, because I said that I would.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

What the Minister has said makes me rather more worried, and gives me much greater cause for concern than other elements of the clause. The danger is that if we are not clear enough about the precise moment when a Speaker is required by the House to act, we will be asking the Speaker to break his or her impartiality at a moment that may be very, very politically sensitive.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I do not agree. I think that the Speaker would ensure that the House was clear both about a motion that would trigger an early general election and about a motion of confidence, and about what he would certify, before the debate. I do not think it would be sensible for the House to have a debate when it was not clear about those matters.

We discussed the 1979 debate earlier. Mr Straw tried to suggest that Members had voted on that motion for other reasons, but the motion was very clear in asking whether the House had confidence in the Government, and I suggested that Members could not have been in any doubt about what they were voting for. I think that the Speaker would always want to ensure that the House understood what it was voting for, and the effect of its vote.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

That is even more worrying. The Minister is now saying that the Speaker would decide whether a motion before the House was a motion of confidence in Her Majesty's Government, which is profoundly worrying. Motions on the Adjournment, motions on all sorts of legislation and motions of censure of individual members of the Government have been determined to be such by the House. If it were for the Speaker to make such a determination, we would have shot the Speaker's impartiality to pieces.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

No, I do not think so at all. At present, whether a motion is a motion of confidence is determined by the Prime Minister; it is determined by how they behave as a result of the vote. [Interruption.] No, it is.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

In a moment; let me first address the question I have just been asked.

Earlier in the debate, we had a conversation about motions that were not specifically in these terms, and several Members on the Government Benches referred to certain votes. My hon. Friend Mr Cash referred to some votes on Europe and my hon. Friend Mr Shepherd talked about a vote on VAT on fuel. How the Government behaved after the debates on those motions was determined by Ministers, not the House.

The Chairman:

Motions of no confidence are an issue to be debated later. Members ought to be speaking to amendment 33.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

Thank you, Mr Hoyle. As always, I will do as you instruct. I will now take the intervention from my hon. Friend the Member for Stone, so long as he does not try to tempt me away from the instruction from the Chair.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Some of the Minister's remarks are so completely out of line with reality that I do not think I will bother to intervene.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

Excellent; that is an excellent step forward. [Interruption.] I shall take it as one.

Amendment 4 stands in the name of my hon. Friend and was also signed by Opposition Members. Effectively, it drives a coach and horses through these entire provisions; the hon. Member for Foyle picked that point up very well. It is because we want to provide for fixed-term Parliaments that the Bill specifies that an early general election can be triggered only if there is a majority of at least two thirds. If it were possible to have an early general election by way of a motion that gains a simple majority, we all know that in most circumstances that would mean that we have given the power back to the Prime Minister. If he felt an early general election was in the interests of the governing party and that view was shared by the governing party, the motion would be passed and we would have a general election, and we would therefore not have fixed-term Parliaments.

I am not surprised that my hon. Friend has tabled this amendment as it is clear from his speech that he does not like the concept of fixed-term Parliaments at all, and that instead he is happy with our current arrangements, which he is entitled to be. However, given that the Opposition have said they are broadly in favour of fixed-term Parliaments-albeit maybe for four years, not five-I cannot understand why they have supported the amendment because, as I have said, it drives a coach and horses through the entire proposition.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

This is a great constitutional innovation. In respect of these motions, can the Minister explain why some Members' votes will have twice the weight of others'?

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I do not agree with the hon. Gentleman's proposition about the weighting of votes. We have set out a straightforward position. We decided on two thirds partly because it is the majority required in the Scottish Parliament under the Scotland Act 1998, and partly because under the requirement for a majority of such a size no Government since the second world war would have been able to trigger an early election on their own. Effectively, the requirement for a majority of two thirds means that there would have to be some cross-party support and a general mood in the House that there should be an early election.

There was talk about the fact that the coalition agreement refers to 55%, and I acknowledge that. The coalition agreement was put together quite quickly however, and we have since reflected on this question. We wanted to be clear that the Government-both parties together-were going to put aside the prospect of being able to trigger an early general election and that, instead, that could happen only if there was a shared view across the House. The reason why we alighted on two thirds was because it was the number used in the Scotland Act 1998, which set up the Scottish Parliament.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton 5:15 pm, 24th November 2010

I understand the objectives. I am cynical about them and the motives behind them, but the numerical fact is that passing this motion will require the support of 400-odd Members, depending on the size of the Commons at that particular time-perhaps the figure will be 420-whereas stopping it will require only half that number. Therefore, someone's vote against will carry twice the weight of someone's vote in favour. Can the Minister be clear, not on the objectives, but on why he wants to give some hon. Members more voting power than others?

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I just do not agree with the way in which the hon. Gentleman has characterised this. We have said that the support of a significant number of Members is required to have an early election. It is very simple for the House to make a decision. If a simple majority is required to have an early election, we do not have fixed-term Parliaments because if the governing party or parties have a majority in this House, they will simply be able to table a motion, their own side will support it and we will have an election whenever the Prime Minister chooses. If that is what the House wants, fine. However, the House has already decided when it gave this Bill its Second Reading that it wants fixed-term Parliaments, and it did so again when we debated clause 1 last week and decided on the date and the fact that we would have five-year Parliaments. Our proposition is that if we allow an early election on a simple majority, we drive a coach and horses through the Bill.

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Just to be topical, what would happen in a situation such as exists in Ireland at the moment, where there is a weak Government, a coalition breaks up, there is a financial crisis and it is clearly essential that the Government renew themselves with an early general election? What would happen in such circumstances if the Bill goes through as drafted? Would we have the absurd situation that two thirds of Members would have to vote to kill off a Parliament that nobody wanted to survive any longer?

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

There are two parts to clause 2. Importantly-some Members were getting this confused-a motion of no confidence in the Government can still be passed by a simple majority. So if a Government did not command the confidence of the House, the House could express that lack of confidence. I shall not go into that in detail, because we will deal with it when we discuss a later group of amendments-Mr Hoyle is clear about that-but the House can vote in support of a motion of no confidence and the Government will then have the period of examining whether another Government can be formed from within that Parliament.

As the hon. Member for Foyle said earlier, when I do not believe my hon. Friend was present, the Bill also provides the opportunity to renew the Parliament if there is a sense that there is a reason why events mean that it needs to be renewed-I believe that is the view in Ireland at the moment. If a simple majority has lost faith in the Government, a motion of no confidence can be passed. If there is a general sense that there should be an election, we have given the House that opportunity-a power that it does not currently possess. I am surprised, as the hon. Gentleman said he was, that some Members of the House sound as though they do not want a power that is not possessed by the House and has previously been possessed only by the Prime Minister.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

What happens if the Government table a motion calling for an early parliamentary general election-I presume only they will be able to do so-and it is carried by 330 votes, but not by the 434 votes necessary? Could the Speaker, or for that matter the Prime Minister, determine that to be a motion of no confidence in the Government?

The Chairman:

Order. I think we are back discussing no confidence-

The Chairman:

Order. I am sorry, but I am making a ruling from the Chair. I feel that this is a debate that we are going to have and I am concerned that we are getting drawn into it now. The Minister may answer quickly, if he wishes, but I do not want to let this go any further after that.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

Mr Hoyle, you are pointing out that we can discuss this at length when we get on to a later group of amendments. My view on the hon. Gentleman's example is very clear: if the Prime Minister so wishes, he can cease being Prime Minister whenever he feels like it. The House could then see whether an alternative Government under a different leader could be formed- [ Interruption. ] The hon. Member for Rhondda says not under this provision, but this provision is for an early election. The Prime Minister can cease being Prime Minister whenever the Prime Minister chooses and Her Majesty will then be able to send for an alternative person to form a new Government. That is not what the Bill is about. The Bill is about fixed-term Parliaments, not fixed-term Governments.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Is the Minister inventing a new kind of leave, called parliamentary leave rather than paternity leave?

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

I am not quite sure what my hon. Friend is driving at.

Photo of John Redwood John Redwood Conservative, Wokingham

Another way that Parliament could do what it wished would be to repeal this legislation by a simple majority.

Photo of Mark Harper Mark Harper The Parliamentary Secretary, Cabinet Office

My right hon. Friend is absolutely right, in the sense that this is an Act of Parliament and can be repealed, but the difference is that it will then engage the other place, in which the Government do not have a majority-and in which we will still not have one when the new peers have been introduced. We think that putting the provision in legislation is preferable to putting it in Standing Orders because the Government then have to get the Bill through both Houses of Parliament, in one of which they do not have a majority- [ Interruption. ] Tristram Hunt says that the Government will have a majority, but no. Even when the new list of working peers has been created, the two governing parties together will not have a majority. There are Cross Benchers in the Upper House, which he keeps forgetting.

For those reasons, I think that amendment 4 is flawed. If it is pressed to a vote, I urge my hon. Friends to oppose it. The Government's position is very clear. We want fixed-term Parliaments but we want there to be two circumstances in which there can be an early general election: when there is a traditional motion of no confidence, in which a simple majority is enough to say that a Government have lost the confidence of the House; and when the House uses its new power to force an early election, which is decided by two thirds of the Members of the House. The same provision is in the Scotland Act 1998 for the Scottish Parliament. I should say that it is the same provision, because in Scotland it is two thirds of all Members, not just those voting. The hon. Member for Rhondda did not get that quite right.

Whichever of the amendments is pressed to a vote, I urge hon. Members to reject it. We can then move on.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

It was the Select Committee's intention to give the House an opportunity to debate these important matters and that has certainly been a success. I am pleased to have given Mr Straw his first opportunity to address the House from the Back Benches for more than 23 years. I am grateful to my colleagues on the Select Committee, the hon. Members for Stoke-on-Trent Central (Tristram Hunt) and for Leicester South (Sir Peter Soulsby), for their support for-or rather opposition to-the amendment, which none of us wants to see become part of the Bill but which we are all grateful to have had the opportunity to debate this afternoon. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 4, in clause 2, page 2, leave out lines 3 to 7.- (Mr Cash.)

The Committee divided: Ayes 235, Noes 314.

Division number 131 Fixed-Term Parliaments Bill (Programme) (No. 2) — Clause 2 — Early parliamentary general elections

Aye: 235 MPs

No: 314 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Before we come to the next group of amendments, I have the following announcement to make regarding deferred Divisions. On the question relating to local elections in Northern Ireland, the Ayes were 337 and the Noes were 217, so the Question was agreed to. On the question relating to Northern Ireland Assembly elections, the Ayes were 338 and the Noes were 216, so the Question was agreed to. On the question relating to health and safety and the EPR nuclear reactor, the Ayes were 520 and the Noes were 27, so the Question was agreed to. On the question relating to health and safety and the AP1000 nuclear reactor, the Ayes were 517 and the Noes were 26, so the Question was agreed to.

[The Division list s are published at the end of today's debates.]

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

I beg to move amendment 5, in clause 2, page 2, line 11, leave out from 'Government' to end of line 14.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following:

Amendment 22, page 2, line 12, leave out '14' and insert 'ten working'.

Amendment 36, page 2, line 14, at end insert-

'(2A) In reckoning for the purposes of subsection 2(b), no account shall be taken of any time during which Parliament is prorogued or during which the House of Commons is adjourned for more than four days.'.

Amendment 37, page 2, line 14, at end insert-

'(2B) Where the House of Commons passes a motion of no confidence in Her Majesty's Government, the Prime Minister shall tender his resignation to Her Majesty within a period of seven days of the motion being passed.

(2C) On tendering his resignation under subsection (2B), it shall be a duty on the Prime Minister to advise Her Majesty to appoint as his successor the person who appears to him most likely to command the confidence of the House of Commons.'.

Amendment 25, page 2, line 24, at end add-

'(6A) In this section a "motion of no confidence in Her Majesty's Government" shall be-

(a) in the terms "This House has no confidence in Her Majesty's Government" or

(b) in the terms "This House has no confidence in the Prime Minister".'.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

During the previous debate, we covered an enormous amount of the ground contained in this group of amendments, so purely to clarify the position I should say that, although the previous amendments dealt with early parliamentary elections when the motion might as well be a confidence motion but of course might not, this group relates to a motion of no confidence. I accept the Minister's point that such a motion would require a simple majority, and I do not need to say any more on that.

I have already explained the variety of confidence motions, but I am afraid I have the gravest disagreement with the Minister about his definition of a confidence motion. I am very concerned, indeed, and for reasons that I shall go into when we reach the next amendments on the potential role of the judiciary. It is impossible for the Minister to explain what a vote of no confidence is, and he certainly has not done so today.

It is extremely difficult to define a vote of no confidence, because it covers a vote on an Adjournment, on the reduction of a Minister's salary, on Suez, on the defeat of the Callaghan Government-and Margaret Thatcher becoming Prime Minister-by a majority of one, and many other situations. There is a raft of different definitions, and what troubles me is that right at the heart of the matter is one simple proposition, summarised by Leo Amery on 7 May 1940, when he got up during a very charged debate on the Norway issue and said to Neville Chamberlain:

"In the name of God, go."-[ Hansard, 7 May 1940; Vol. 360, c. 1150.]

Although the Government won that vote of confidence, because enough craven people were prepared to vote for them, Chamberlain knew the game was up. The confidence motion was therefore-even in that case-defeated, and he went. The definition of a confidence motion is therefore extremely uncertain. It boils down to the fact that there is such concern about, and lack of confidence in, the Government-let alone the Prime Minister-that he has to go and, therefore, the Government as well. The two things run together.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

The issue was raised at a Commonwealth Parliamentary Association conference in Portcullis House last week. Currently, there is something of a constitutional crisis in Canada over exactly the same questions: what is a vote of confidence, when is a vote a vote of confidence, how is it defined and who has the power to make that definition? Surely, it would be wrong if our Parliament got into the mess that Canada is in.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 5:45 pm, 24th November 2010

As the former adviser to Quebec in the Canadian constitutional dispute of 1982, I am not unfamiliar with the problems that arise in the Canadian constitution. Of course, Canada has a Governor-General, and there is a completely different situation there. There was a similar situation in Australia some time ago involving Gough Whitlam.

I would strongly deny, however, that we should be guided by what goes on in other countries: the real issue is what we do in this House. We have an established position that is dependent on the views of the House. My strongest objection to the phrasing of the previous amendment was that it referred to the number of seats in the House rather than those voting in the House. There is a big difference. In Germany, the question of whether a Government might fall would depend on the number of persons present if, under its written constitution, two thirds vote in a particular division, whereas in the case of this coalition Government, it would be dependent on the number of seats. It is necessary to take into account the Deputy Speakers and the people who might be absent. In fact, the clause includes, in brackets, the words "including vacant seats", so the arithmetic is extraordinarily difficult. The real question is whether the Government have lost confidence.

Photo of David Nuttall David Nuttall Conservative, Bury North

Would not one solution be to stipulate that any motion of no confidence must specifically relate to this clause, so that there could be no doubt that the motion before the House was covered by the Bill as enacted?

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

That is an interesting idea, but that is not what the Bill says, although I am not criticising my hon. Friend for that. The Bill simply says that

"on a specified day the House passed a motion of no confidence in Her Majesty's Government (as then constituted)".

I described in an earlier debate the shenanigans of the 14-day period after a day had ended without the House having passed any motion expressing confidence in any Government of Her Majesty. What happens next is that all these people get together in a huddle and then rush up and down Downing street and Whitehall going to see the Cabinet Secretary and receiving some instructions about what they should do, in his view, if they want a stable Government. The net result is that we have a completely chaotic situation driven by behind-the-scenes, unknown negotiations that are then announced-

Photo of Edward Leigh Edward Leigh Conservative, Gainsborough

Does my hon. Friend remember-happy days-when we were Maastricht rebels? We defeated the Government on the paving motion, and they then brought in another motion that was related to a no confidence motion, and we were all brought to heel in that way. Although I would not want to encourage that sort of behaviour, at least it was clear, was it not? The Government were saying, "This is where we are-we stand here." At least that made for strong government.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

There is one simple reason why some of us voted for the confidence motion on Maastricht. I remember pointing to the late John Smith, who was then Leader of the Opposition, and saying, "There is only one reason why I am going to vote for the present Government on this occasion, and that is because you are more of a federalist than they are." That is why that vote went that way-it is as simple as that.

This is not only about the shenanigans with the Whips, the patronage, the promises, the chicanery behind closed doors, and all that, leading to yet another coalition agreement, no doubt based on different principles, in order to stay in power. The other aspect-we can get to it later, which is why I am about to bring my remarks to an end-is that it is dependent on the Speaker of the House of Commons issuing a certificate certifying the motion of no confidence. That is an extremely important matter, which we need to discuss properly after the debate on this group of amendments.

I think I have spoken quite enough for the time being, and I would be very glad to expedite matters by moving on as soon as possible to the next issue. I think we will have a very interesting and, if I may so, seminal debate on the role of the judiciary in relation to parliamentary sovereignty.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

The last moments of the speech of Mr Cash sounded a bit like a trailer for the next debate. If he does not mind we will stick with this one for the moment, although he is absolutely right to say that the way in which all the different elements of the Bill tumble together in a concatenation will make for a fairly dangerous precedent if we are not given further clarification.

It is important that we establish some basic first principles on no confidence motions. First, the Government should at all times enjoy the confidence of the House of Commons. It is important to state that that should be a matter solely for the House of Commons, no matter whether we change the composition of the House of Lords in future, as I hope we do. I note that motions of no confidence have been tabled and debated in the House of Lords, but that is inappropriate. The elected House of Commons, the primary Chamber, should determine whether the Government enjoy the confidence of Parliament.

Secondly, it is important to say that just because the Government lose a vote, they do not necessarily have to fall. That is an important principle because I think that there are only two Prime Ministers since the second world war who have not lost votes at some point. Even Churchill lost one vote in his period as Prime Minister after the war. Attlee lost four, even when he had a majority, and Wilson lost 31, six in his first time as Prime Minister and 25 in his second. Callaghan lost 34, none of which did for him-well, obviously one did in the end. It is a sign of a healthy relationship between the Executive and Parliament if the legislature is able to defeat the Government on occasion on bits and pieces of legislation.

Obviously there comes a point at which a Government might not be able to continue, for instance because they have not been able to get their Budget through in any shape or form, or because they cannot take through some major piece of legislation. In practice, as the hon. Member for Stone mentioned, what has normally happened in the past is that the Government have brought forward legislation and then lost a vote on an amendment or some motion. Often, the Opposition have then tabled a motion of no confidence the next day.

The convention of the House-I note that it is only a convention-is that the Government automatically give precedence to a motion of no confidence, so that it can be debated immediately. It is obviously in the Government's interests to resolve the matter of whether the House has confidence in them. I merely note that now we are putting elements of the matter into statute rather than depending on convention and Standing Orders, there is no provision to ensure that a motion of no confidence is guaranteed precedence and can be debated swiftly, one would hope the next day.

Governments have lost large numbers of votes since the second world war and before, and that is important. Some of them have been finance votes, and it is perfectly satisfactory for some finance votes to be lost, for instance on stamp duty or the rate of income tax. On 16 July 1974, the Government lost a vote on a Liberal amendment to the Finance Bill. On 8 May 1978 the Conservatives moved that income tax be cut from 34% to 33%, which was carried against the Government's wishes. On 10 May that year another Conservative amendment to the Finance Bill was agreed to, and the Government lost another motion the next day in relation to sending the Finance Bill off to Committee.

I do not believe that such losses should of necessity mean that the Government should fall, or indeed that they have lost the confidence of the House in its totality. I also do not believe that a motion to censure an individual member of the Government should, of necessity, lead to the fall of the Government, a new general election or to inciting the provisions in the Bill. There have been occasions in the past, when, effectively, a motion to censure an individual member of the Government has been so considered. The last occasion when a Government who had a majority of seats in the House of Commons lost a motion of no confidence was in 1895. The motion was on reducing the salary of the Secretary of State for War, Mr Campbell-Bannerman, by £100 because he had not provided enough cordite to the troops. The motion was carried. Even though Campbell-Bannerman was probably the most popular Member of the Government at the time, he resigned and the Prime Minister decided that he would consider it to have been a motion of confidence, and the Government resigned. The incoming Conservative Government decided to seek a Dissolution and hold an election and the Conservatives came to power.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

Does the hon. Gentleman not agree that there are rules and conventions about when a motion before this House is a confidence motion and when it is not? Twenty years ago this week, I recall the then Prime Minister, now Baroness Thatcher, saying that she was going to stand down as Prime Minister. The Opposition then tabled a motion of no confidence in the Government, which was quite rightly debated as such on the Floor of the House because we were at a point of crisis. The Government, headed as it still was by Margaret Thatcher, won that vote very distinctly, but it was a motion of confidence. There are strict rules about when it is and when it is not.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I do not think that the hon. Lady is right about the strict rule. Her memory of the occasion is right; it was Thursday 22 November 1990. The motion was very clear. It said:

"That this House has no confidence in Her Majesty's Government."-[ Hansard, 22 November 1990; Vol. 181, c. 439.]

The debate was led by Neil Kinnock, now Lord Kinnock, and the motion was defeated by 367 votes to 247. The hon. Lady makes my point for me. The rules have been very nebulous except where the words are very clear on the Order Paper. Very often, the words on the Order Paper have not been clear.

Photo of Eleanor Laing Eleanor Laing Conservative, Epping Forest

I thank the hon. Gentleman for giving way again. I made a mistake when I talked about a "strict rule". I beg the hon. Gentleman's pardon. The point is that there are rules and there are conventions, but they are not sufficiently clear, so I agree with the hon. Gentleman on this point.

Photo of Chris Bryant Chris Bryant Shadow Minister (Justice) (Political and Constitutional Reform)

I am delighted that we agree because I am sure that that will mean that the hon. Lady will join me in the Division Lobby in a wee while.

Clearly, conventions have operated in this House, but they have wandered with the age. There was a period when there were frequent motions of no confidence and the Opposition thought that it was a good way in which to transact business. For the past 15 years or so, we have not had motions of no confidence, largely because the Government have enjoyed fairly large majorities. Another reason, I suspect, is that there is nothing worse than losing a motion of no confidence and the Government tend to unite in their confidence in themselves. I will come later to discuss one of the dangers of this nebulous relationship. All too often, as the hon. Member for Stone said, the Prime Minister of the day starts saying, "I really want to get this piece of legislation through. If we don't get this through, there will be a general election and I will have to resign. Effectively, it's a motion of no confidence." All too often, pieces of legislation or votes are carried because of the threat of the no confidence motion. It would be better if one had clarity in statute as to what constituted a motion of no confidence.

There is one exception to that: motions of censure. Obviously, such motions can relate to an individual member of the Government, the Speaker or any Member of the House. Motions of censure against members of the Government can be made in relation to specific actions that they have or have not taken. The hon. Member for Stone referred to the motion of censure on Suez, but there have been others. On occasion, such motions have been treated as motions of confidence, but they should always be treated as such when they are against the Prime Minister.

One could argue that the two motions in 1924 that constituted motions of no confidence fall into a similar category. On 21 January 1924, after the first general election of that year, the Opposition carried an amendment to the Loyal Address, so that it stated:

"Your Majesty's present advisers have not the confidence of this House."-[ Hansard, 21 January 1924; Vol. 169, c. 685.]

To all intents and purposes-as plain as a pikestaff-that was a motion of no confidence. Stanley Baldwin subsequently resigned as Prime Minister, but there was no general election, and the Labour party took over, assisted by the Liberals, in the first minority Government. One day-who knows?-that may come to pass again. I warn Conservative colleagues that that arrangement did not last very long. On 8 October 1924, the specific censure motion on the Prime Minister's refusal to continue a petition against a journal was not carried, but the appointment of a Select Committee was carried. The Prime Minister determined that that was a matter of confidence and decided to resign, and we all know the result.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee 6:00 pm, 24th November 2010

The hon. Gentleman makes an extremely interesting case. He has demonstrated that motions of confidence come in all shapes and sizes-the essence of such motions is whether the House of Commons has lost confidence in the Government-but the question whether the courts will get their hands on such matters is the big issue, and that troubles me. However interesting it may be to go through the various facets of this group of amendments, if we are to have a vote on the courts, we must get on to the next group of amendments, because we need to debate that.