Committee (3rd Day)

Fixed-term Parliaments Bill – in the House of Lords at 3:06 pm on 29th March 2011.

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Relevant documents: 10th Report from the Delegated Powers Committee, 8th Report from the Constitution Committee.

Clause 2 : Early parliamentary general elections

Amendment 34

Moved by Lord Howarth of Newport

34: Clause 2, page 2, line 12, leave out paragraph (b)

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 3:07 pm, 29th March 2011

My Lords, Amendment 34 would delete Clause 2(2)(b)-the provision that, if after 14 days following a motion of no confidence the House of Commons has not passed a motion expressing confidence in any Government of Her Majesty, there shall then be a general election. This provision is ambiguously phrased, as your Lordships' Select Committee on the Constitution noted, and as was pointed out in written evidence from Dr Anne Twomey of the University of Sydney. In questioning the formulation in the Bill, she asked:

"Does this include a vote of confidence in a previous Government that has since resigned and been replaced? Does it refer only to the Government in existence at the time the motion is passed, whether the Government in which no confidence was previously expressed or a new Government? Does it refer to a prospective Government that does not yet exist?".

She went on to comment:

"This is a critical issue. It is not clear from the provision whether it is intended that a Government that is subject to a successful vote of no confidence follows the customary practice and resigns, leaving Her Majesty to commission a new Prime Minister whose Government then needs a vote of confidence to survive. Alternatively, it could be intended that matters remain frozen once the vote of no confidence is passed and the existing Government remains in office until the end of the 14 days to see if the absence of confidence is reversed. If it is not reversed, then an election would be held. A third alternative is that it is intended that the House may pass a motion indicating its confidence in someone else to form a Government, even though it is not yet formally a 'Government of Her Majesty'. Query whether this would oblige Her Majesty to commission that person as Prime Minister? The Bill ought really be clearer as to what is intended".

Dr Twomey was quite right. What do the Government mean by that provision? Will the Minister tell us, and will he undertake that the Government will take this away and improve the drafting so as to impart clarity to the wording in the Bill?

Beyond the issue of the ambiguity of the provision as drafted, we should ask whether we want a 14-day provision at all. This is the smoke-filled rooms issue. Imagine the situation if a Government narrowly loses a vote of no confidence and the Prime Minister does not behave like Mr Callaghan in 1979; he does not make an immediate, dignified and clear-cut statement that his Government will take their case to the country. Indeed, under the provisions of the Bill he cannot do that. Up to 14 days have to be spent cobbling together a deal with the minor parties. Bribes will be offered, and inducements-perhaps a second Humber bridge or contracts to build parts of new frigates in particular constituencies. The US space programme was entirely constructed out of components made in marginal districts of Congress. Maybe there would be new constituencies outside the numerical norm, like Orkney and Shetland and the Highlands and Islands.

Deals are put together and the new cobbled-together Government, perhaps under the same Prime Minister, totters along just as unable to govern effectively. It appears that Ministers have not thought of that possible contingency, although it is surprising that they should not have done so. My noble friend Lady Jay, in the chair of your Lordships' Select Committee, asked the Minister,

"would it be possible for that government to try to reconstitute themselves, perhaps in a slightly different way?".

Mr Mark Harper, the Parliamentary Under-Secretary, replied:

"Rather than giving you a rushed answer, let me think about it".

He later wrote to the Select Committee, saying:

"It is not our intention that the Bill should rule out the possibility"- however unlikely-

"of the House changing its mind ... and deciding nevertheless to support the current government".

At present, if the Government lose a vote of confidence the convention is that they must either resign or seek Dissolution. This provision is just like the Government's previous decisions in the Bill, such as whether the fixed-term Parliament should be four years or five years-they opted for five; or whether if there is an early election the clock should be reset so that there would be a whole new Parliament ahead-they opted for that. This provision similarly happens to advantage the incumbent Government. It allows them the opportunity to wriggle out of the implications of losing a vote of confidence.

Alternatively, there is not the sordid scene that I describe, but a new coalition is formed with a new Prime Minister and a new configuration of parties in government. The people have not voted for that, yet Mr Clegg and the coalition make much of their ambition to improve accountability and transparency in our politics and the ways in which Governments are formed. I do not think that accountability is improved by this set of provisions.

The Deputy Prime Minister, when he met your Lordships' Select Committee on the Constitution on 13 October, laid out his general arguments on the need for major constitutional reforms-a series of reforming constitutional measures. He said:

"there are features of our present political arrangements that are secretive or centralised, in which people do not ... feel that their voices or views are properly represented ... That is why there is an emphasis in everything that we are proposing on greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people, and breaking up excessive concentrations of power and secrecy".

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 3:15 pm, 29th March 2011

For examples of greater accountability, we do not need to look at the textbooks. We have a living example in the recent election in Australia, where the two major groups had 72 seats. There were four other seats and there was very much an auction as to how the votes of those four people would be bought, which was pretty unseemly and certainly not accountable.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

I am afraid it was all too transparent and not satisfactory by any manner of means. My noble friend always brings his international perspective to bear most valuably on our debates. Clause 2(2)(b), as it is drafted, provides no remedy for the deficiencies that the Deputy Prime Minister so eloquently described.

Why 14 days in particular? What is the rationale for that figure? It would be helpful if the Government explained why they think that 14 days is the right amount of time to allow these processes to continue. It is inconsistent with what Parliament has provided for the Scottish Parliament and the Welsh Assembly, where the equivalent provisions allow for 28 days. Of course, they have different electoral systems that make it unlikely that any single party will have an overall majority. It might be argued that more time is needed, but in all events I would like to know why 14 days is thought sufficient for the Parliament of the United Kingdom, whereas 28 days are provided for the Scottish Parliament and the Welsh Assembly.

Beyond that, we also ought to ask: why legislate at all? Convention and practice are to allow an attempt to negotiate a coalition or a pact-a confidence and supply agreement or whatever-over an unspecified period of time. Precedent has shown that it need not take very long. There were three days of such discussions between the Conservative Party and the Liberal Party in March 1974, and five days in May 2010. Why is it necessary to legislate to allow up to 14 days for this kind of haggling and negotiation?

I do not think that what is provided in the Bill would produce any improvement. It could make things worse in our politics and our constitution. What I do know is that, during that period of 14 days, there would be no effective government and the country would be uncertain as to whether there was to be a general election. The reputation of Parliament or of politics would not be enhanced by this kind of process. Accountability would be weakened. Is it not better to stick to the understanding that we have: that if a Government are defeated on a vote of no confidence they call it a day and resign or go to the country? That would better fulfil the Deputy Prime Minister's pledge to improve accountability. It is better that the electors, and not the political parties, decide who will form a Government. Governments are of course accountable both to Parliament and to the people, but accountability to the people should prevail. I beg to move.

Photo of Baroness Hayman Baroness Hayman Lord Speaker

I have to inform the Committee that, if this amendment is agreed to, I cannot call Amendments 36 or 37 by reason of pre-emption.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Labour

My Lords, I want to group Amendment 37, which stands in my name, with Amendment 34. The officials have been advised. The Minister has also had a little notification of that.

Amendment 37 would replace 14 days with five days. The Constitution Committee accepted 14 days as reasonable. However, would the country accept it? A 14-day limbo seems excessive, not least to the bankers and to what we used to call the gnomes of Zurich-now the genomes of the internet or something. As everyone else discusses whether an election will take place, it could be a long wet fortnight. As David Laws acknowledges in his most helpful book on the five days, there has to be early reassurance of the market. In his wise words:

"neither the British media nor the financial markets nor the public would tolerate a prolonged period of uncertainty", as a,

"failure to form a stable government could have a real impact on the UK bond market and on the UK interest rates, as well as on confidence in the pound".

He well describes how:

"The British press and the British people are used to seamless and swift transfers of power".

He admits that, anyway, more time would not guarantee a better coalition agreement.

All this, of course, is without thinking about the implications of Ministers from a defeated Government going off to negotiate for Britain in key EU, G20 or IMF meetings over that period of 14 days. In her evidence to the Constitution Committee, Professor Oliver said that she thought that it was against the public interest for there to be no effective government of the country, and even the Minister for Political and Constitutional Reform, Mr Mark Harper, admitted that,

"it would become clear pretty quickly that the government could not put together an alternative government".

Similarly, David Laws-I am sorry to quote him again, but he is very helpful-testified that David Cameron himself wanted negotiations to be over in days, not weeks, and preferably before the markets got jumpy. Nick Clegg believed at the time that the deal could be done in two to three days.

Therefore, I have to ask why the coalition, which was put together in just five days, thinks it needed longer for that task. Was it too pressed in May 2010 to take sensible decisions? Some of us would say, of course, that the evidence of the coalition agreement supports the idea that it is right in that assumption. Perhaps the chaos caused by the raft of unco-ordinated constitutional changes, of which I believe the present Bill is just one, is evidence of a rather over-hurried deal. Perhaps coalitions anyway should be about domestic and economic policy, not about the country's constitution, which is far too precious for late-night bargaining.

Certainly, while the price for the Lib-Lab pact was electoral reform-the Lib-Conservative pact; I am sorry, I am too old, although they did not get quite so much out of us, I have to say-it is clear from David Laws that the issue of fixed-term Parliaments was not an end in itself as a real democratic need but was, to use his words,

"to avoid a second election".

So is it uncertainty about their relationship that leads to this Bill and its 14 days? The coalition expressly does not want to rule out the possibility of a House changing its mind within 14 days. "Changing its mind", of course, is a euphemism. I shall quote the noble Lord, Lord Howard of Rising, at Second Reading, as it is so good:

"As for introducing a 14-day cooling off period, the mind boggles ... imagine the cornucopia- a wonderful word-

"of inducements, together with the bullying, which a future Government might carry out during those 14 days. We might even get a few more Dukes in this House".-[Hansard, 1/3/11; col. 1030.]

My noble friend Lady Taylor of Bolton, a former Chief Whip, said:

"Are we to have 14 days so that Government Ministers can offer jobs to rebels or inducements or threats", or is 14 days,

"simply designed as a mechanism for one partner in a coalition to try to persuade a different partner to enter a new coalition and form an entirely different kind of majority in the Commons without an election".-[Hansard, 1/3/11; col. 1035.]

An academic rather than a practitioner of the dark arts, my noble friend Lord Plant contemplated,

"a series of coalitions arising during a fixed-term Parliament, without a straightforward appeal to the electorate, that would be club politics of the worst possible kind".-[Hansard, 1/3/11; col. 1033.]

Is that what the coalition favours: a sequence of groupings, anything to keep in power? Is it knowing that five days will not suffice next time round? Only a coalition with parties bent on staying in office could have dreamt up the notion of two weeks of haggling to cling to power. The Conservative and Liberal Democrats commenced and consummated their relationship in just five days. They seem very happy, so are they repenting at leisure or do they feel that they needed more time for that coalition agreement? Perhaps they are beginning to worry about the commitment to early legislation to recall an MP, as Mr Clegg is somewhat unpopular in Sheffield. Is it because the commitment to the binding resolution in the other place that an election would be held in May 2015 has already fallen apart, and that has made them realise that they need more time? Is it perhaps the commitment to PR from the House of Lords, given that they have yet to even get a yes for AV in the Commons, and that they are now wondering whether they did that right? Or is it that they wanted time to include in the coalition agreement, "We will cause chaos in the health service and totally upset the BMA, patients and the public by unnecessary reorganisation"? Instead, of course, the agreement says that the Liberal Democrat and Conservative ideas are stronger when combined, such as on the NHS. The agreement states:

"Conservative thinking on markets, choice and competition and add to it the Liberal Democrat belief in advancing democracy at a much more local level, and you have a united vision for the NHS".

I am not sure that the good noble Baroness, Lady Williams of Crosby, has read that.

Those are just some comments on the present coalition agreement. My worry is the essence of the 14 days, because democracy is about more than just numbers; it is about being able to vote out a Government. This measure seeks to entrench one. For that reason, it should be avoided.

I have two questions for the Minister. Why, when this coalition was put together in five days, does he now think that it would take 14 days to repeat the exercise? How does he think that markets and our allies, or indeed our foes, would respond to 14 days of dithering, bargaining and negotiation?

Photo of Lord Cormack Lord Cormack Conservative

The noble Baroness, Lady Hayter, has made an interesting speech and has raised a number of fascinating questions. But there is a danger that we will have a bit of confusion because Clause 2 is concerned wholly and specifically with holding an "early parliamentary general election" during a fixed-term Parliament in the event of the Government of the day coming unstuck for some reason or other. Although the remarks about the time taken to form the present coalition are intensely interesting, this clause does not affect what happens after a general election when there could be-perish the thought-unlimited time.

I believe that this clause is wholly misplaced. It needs to be deleted and replaced with something far simpler, more specific and more precise. At a later stage in the Committee's deliberations, I shall seek to move an amendment to that effect.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee

Perhaps I may help the Committee by saying that when the Constitution Committee, to which my noble friend Lady Hayter rightly referred, appeared to support the notion of 14 days, this was an entirely constitutional judgment in the context of the Fixed-term Parliaments Bill. It was not a political judgment.

Perhaps I may draw the attention of the Committee to the exchange between my noble and learned friend Lord Goldsmith and Mr Mark Harper when he appeared before the Committee. My noble and learned friend suggested to Mr Harper that this was a complete change from the previous practice:

"For example, we could end up with Labour and Liberal Democrats. That could not happen under the present system, could it?".

However, Mr Harper replied:

"That depends on the way people conduct themselves, but I think that it could".

He said that if it was "early in a Parliament" that the Government were defeated, as the noble Lord, Lord Cormack, has just suggested,

"and there was a viable alternative government and-prior to having published this Bill-a Prime Minister had sought a dissolution, it is perfectly possible that a dissolution would not have been granted".

My noble and learned friend Lord Goldsmith asked him if there was a recent example of that, to which the answer was no.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative 3:30 pm, 29th March 2011

My Lords, first, I hasten to assure my Front Bench that this is my day of virtue and goodness-

A noble Lord:

Too late.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

-and for recovering ground that I may have lost yesterday.

Somewhat to my surprise, I find myself a little more distant than I usually am from the noble Baroness, Lady Hayter, and it is on her speech that I should like to concentrate. I have not yet fully digested the speech of my noble friend Lord Cormack but I am certainly not distancing myself from it until I have had a chance to think about what he said.

My comments, which I hope the Front Bench will not find unhelpful, are based on three points. First, the noble Baroness asked why you should need 14 days rather than five. I accept that either figure is a bit arbitrary but, given some of the things that have happened since-actually, my Front Bench may not welcome this-it might have been worth taking more than five days to complete the coalition agreement. Am I allowed to say that?

Secondly, the British electorate may like quick, seamless, one-day change, with the pantechnicons arriving at the back, or successively at the front, but I think they are going to have to get used to something else. When I started in the Conservative research department in 1960, we carried out what was called "cohort polling" -it was very expensive and we probably could not do it now-whereby we went back to the same people at intervals. It has been clear for 50 years that the old-style "I am red", "I am blue" and "I am yellow" syndrome is breaking down. We saw the final conclusion of that at the last election. I do not boast about this, but people did not want anyone to win; they wanted to make us work together. I do not say that will always happen, but it will happen more frequently and the British public will have to get used to it.

My last point on the noble Baroness's speech-I hope she does not think that I am being too unfriendly-is that the markets will have to get used to it as well, just as they get used to it in Germany. In most European countries, an election is followed by a prolonged period of negotiation-at the worst, horse-trading-before a Government emerge. In many cases it takes far longer than 14 days. I do not see them collapsing in a heap as a result.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I hate to interrupt because I agree with so much of what my noble friend has said. He speaks of other countries where 14 days has been exceeded; I believe Belgium is into its 11th month, is it not?

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

That may be a bit excessive, but then Belgium has some rather unique problems-which, so far, have not happened here-in terms of racial, linguistic and ethnic division. I take my noble friend's point and I hope that he will take mine that most European countries do not expect to have the pantechnicons arriving on election day or the day afterwards. They have got used to it; why cannot we?

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I agree with my noble friend Lord Newton of Braintree. He is right about the international position; we are extremely unusual in the period of transition from Government to Government. I shall come back to that on a later amendment.

The problem with Amendment 37-I shall speak also to Amendment 34-is the premise that there should be a delay for a set period following the election. It may be for only five days rather than 14, but there is a delay, whereas the noble Lord, Lord Howarth, seeks to make provision for an election to follow in the immediate wake of the loss of a vote of no confidence. Given a choice between the two, I incline to the amendment of the noble Lord, Lord Howarth.

However, the problem that I have with his amendment is that the loss of a vote of no confidence triggers an election as the only option. I believe that that should be, as now, one option rather than the only option. I shall come back to that issue in later amendments. Given the choice between the two I incline towards the amendment of the noble Lord, Lord Howarth. However, we still need a provision for Prime Ministers to be able to tender their resignation rather than automatically request that Parliament be dissolved.

Photo of Lord Grocott Lord Grocott Labour

My Lords, the noble Lord, Lord Newton, repeated an argument that has been used on many occasions, particularly by his noble friends on the Liberal Democrat Benches, that we are somehow in a new kind of politics now, having moved from the traditional two-party system to the less traditional three-party system, and that we therefore need to change huge swathes of our constitution, including changing the voting system and perhaps changing the mechanism for moving from one Government to another, in order to accommodate a fundamental change in our political system. I put it to him, and to them, that I do not take that view; I think that the fundaments of our politics are quite similar to what they were when I came into politics 50 years ago. I put it to them at least that, should any of the opinion polls be right-and we know that we should treat them cautiously-there is a fair bit of evidence that we are moving back towards more of a two-party system, which I for one would welcome. I would be interested to know whether all those who have been saying "New politics means new constitution" will now say that they want the constitution to revert to the way that it operated previously, should there be old politics after all-that is, fundamentally a choice between people who are broadly happy with the way things are and people who want to change them, which is basically what happens in democracies in the United States, here and in many countries of Europe-rather than a yes, a no and a don't-know as we have at the moment. I make that point simply as an aside but it is worth considering.

This part of the Bill makes an extraordinary proposition. I think that we all more or less subscribe to the cliché "If it ain't broke, don't fix it", but the Government seem not only to be rejecting that idea but also to be saying that if it is working perfectly, we had still better fix it. My argument is very simply that the no-confidence system as has operated in this country works not just very well but perfectly. We have a test case: 1979. I am very pleased to see the noble Lord, Lord McNally, on the Front Benches; he remembers 1979 as well as I do. That was a perfect example of the no-confidence system, which is not written into our constitution, with there being no clear procedural rules that Jim Callaghan had to follow, working perfectly. He lost the confidence of the House on a motion of no confidence so he went to the country. Will someone please tell me what was wrong with that? One problem that the Government got themselves into in their five days in May, among many others, was trying to write in law aspects of our constitution which are perfectly well understood and which do not need writing in law. It is a bit like trying to write down prescriptively in legislation the procedures that the monarchy needs to go through in the event of a hung Parliament. That would be extraordinarily difficult, and what the Government thought was an incredibly simple Bill is not a simple Bill at all. It has serious complications, and this is the most serious of them.

I simply put this to the Minister. In respect of the 14 days, what is the problem that he is trying to resolve? I shall put it even more simply than that and ask him what Jim Callaghan did wrong. He lost a motion of no confidence; we all know what that is. He immediately went to the country. Under this Bill, he should have entered a period of 14 days' negotiation, without any consultation with the British public. Worse still-at least from my perspective; nobody could accuse me of self-interest because I have mentioned to the Committee before that his decision resulted in me becoming unemployed-

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Jim Callaghan did not immediately go to the country. There was a gap of some six weeks.

Photo of Lord Grocott Lord Grocott Labour

He immediately called the general election. My noble friend is quite right to correct me, but it amounts to the same thing. My point is that there was no negotiation. He announced the general election immediately, and the public and the parties knew where they were.

Unless the noble and learned Lord, Lord Wallace, can explain it to me, there is a double fault in the Government's position. Am I right in assuming, first, that the Government think that it was wrong for Jim Callaghan to go to the country when he did; and, secondly, according to other parts of the Bill, that the Government should have gone on for another six months until October 1974 without a majority to complete the five-year fixed-term period? That builds absurd rigidity into the system. I cannot see what they are trying to deal with. If the noble and learned Lord cannot answer those two specific questions about what Jim Callaghan did wrong, he ought to remove the provision.

I agree with my noble friend's amendment. To distil it, it simply says, "If a Government lose a motion of no confidence, there shall be a general election". I would love it if someone would follow me to say, "It is a risky, false proposition that if a Government lose a motion of no confidence, they should go to the country". Why fiddle about with it? What on earth are the Government doing? Why do they not save us all a lot of time and energy and just withdraw the provision?

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, very briefly, I have for a long time shared the concerns expressed by the noble Lord. Those concerns appear to me to be met by Amendment 50. Has he considered that?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, it is worth pointing out that the noble Lord's Government introduced a fixed-term Parliament in Scotland with procedures if the incumbent Government lose a motion of no confidence. The Bill is dealing with a fixed-term Parliament on somewhat the same lines as the Labour Government did in the devolution legislation.

Photo of Lord Grocott Lord Grocott Labour

I am sorry, my Lords. I was sitting down thinking about having a cup of tea and suddenly realised that those were interventions on my speech.

The fundamental difference between this and the situation in the Scottish Parliament is that that document began from a blank sheet of paper-albeit a very well rehearsed blank sheet of paper. There is all the difference in the world between drawing up a new constitution and amending a constitution which has worked perfectly well. That is my answer to that question.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

This is a fascinating debate. To pick up on what my noble friend Lord Clinton-Davis said, it has been mentioned before in this debate, but it is worth citing what Mr James Callaghan said in the evening after he lost the vote of no confidence. He said:

"Mr Speaker, now that the House of Commons has declared itself, we shall take our case to the country. Tomorrow I shall propose to Her Majesty that Parliament be dissolved as soon as essential business can be cleared up, and I shall then announce as soon as may be-and that will be as soon as possible-the date of Dissolution, the date of the election and the date of meeting of the new Parliament".-[Hansard, Commons, 28/3/79; col. 589.]

Under the Bill, were it to be passed in this form, Mr James Callaghan would have said, "I shall now wait for 14 days while I offer the Ulster Unionists tunnels and money, and junior ministerial posts to Mr Bruce Grocott, in the hope that they might then support me". Should Mr James Callaghan have been of that nature, he could under the Bill have used the 14 days to bribe and cajole to produce another Labour Government with confidence and supply support from the Ulster Unionists and come back 14 days later to say, "Ha, ha! I can return with a Labour Government and I will hold on until October 1979". We should ask ourselves: would the public have had greater confidence in Mr Callaghan if he had behaved like that or did they have much greater confidence in him immediately accepting the consequence of what was happening and going to the country?

I ask that question because the right honourable Mr Nicholas Clegg says that we are going through all these contortions apparently to increase trust in our parliamentary system, despite the fact that Mr David Laws makes it clear that that is untrue. I give way to the noble Lord, Lord Rennard.

Photo of Lord Rennard Lord Rennard Liberal Democrat 3:45 pm, 29th March 2011

Does not the noble and learned Lord, Lord Falconer of Thoroton, recall that it was actually in the autumn of 1978 that the then Prime Minister, Mr James Callaghan, offered significant inducements to the Ulster Unionists to stave off his defeat by creating extra seats within Northern Ireland at the Westminster Parliament, in order, under the existing system, to stay in office for longer? Furthermore, does not the noble and learned Lord recall that, wisely, the previous Labour Government introduced the Acts setting up the Scottish Parliament and the Welsh Assembly? In the Welsh Assembly, provisions were shown to have worked well when Mr Alun Michael lost a motion of no confidence, but there was no general election for the Welsh Assembly; nor do I recall any suggestion of that from noble Lords opposite or members of the Labour Party. All that happened was merely that Alun Michael lost the motion of no confidence; he had to stand down as First Minister; Mr Rhodri Morgan became First Minister; and a new coalition Government were formed who governed Wales very satisfactorily until the next election. Is that not a good model?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so; and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote-although I cannot remember whether or not it was a vote of no confidence-but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals-not the Liberal Democrats-to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess-it is obvious that it is a mess-because the coalition is looking for a mechanism to hold itself together, as David Laws's book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws's book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than as a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either-14 days of nothing or the old Government coming back as a retread new Government within the 14 days-is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment-namely, the present system. A vote of no confidence normally allows for an election, but is flexible enough to ensure that a Government emerge when appropriate.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, as the noble Lord, Lord Howarth, indicated in moving Amendment 34, and as was confirmed by several speakers, including the noble and learned Lord, Lord Falconer of Thoroton, its effect would be to trigger an early general election simply by a vote of no confidence in the Government. In other words, a simple majority in the House of Commons could lead to an immediate general election. This amendment places the power to decide whether and when there should be an early general election very much in the gift of the Executive.

I shook my head when the noble and learned Lord, Lord Falconer of Thoroton, seemed to suggest that this was some contrivance to keep together the coalition. First, I do not believe that to be the case, and, secondly, the Bill seeks a system of fixed-term Parliaments not just for this Parliament but into the future, when it may not be the Conservative Party or the Liberal Democrat party in office. It might be the Labour Party that is in office, or a combination of parties. Therefore, I wholly reject this idea that it is intended to be some quick fix. The point has been debated on a number of occasions; and the party opposite fought the last election on the policy of fixed-term Parliaments, although one sometimes would be surprised by that.

As the noble Baroness, Lady Jay of Paddington, said at Second Reading, there is a spectrum in terms of Parliaments: at one end you have complete flexibility, much as we have at the moment, as to when the Prime Minister can call an election; and at the other end you have complete rigidity. Many of the problems that have been raised would be resolved if you had complete rigidity and there were no safety valve, as I think the Constitution Committee of your Lordships' House described it. I have not heard in any of our debates-either at Second Reading, in the other place or indeed in any of our Committee debates-anyone actually arguing for total rigidity. Therefore, there has to be a safety valve. In trying to devise these safety valves, we have produced one that reflects the two situations that could currently arise if there were a vote of no confidence. In addition to that, there is the safety valve of a Dissolution with a two-thirds majority. There was a view, certainly expressed around the time of the coalition agreement, that a vote of no confidence in the other place ought to have some consequence.

Perhaps I can just finish this point, which my noble friend Lord Norton of Louth raised: the problem with the amendment of the noble Lord, Lord Howarth, is that a Dissolution would allow only for an immediate general election. However, the dual convention that exists is that after a vote of no confidence in the Government, the Prime Minister may resign and a new Administration formed, which happened in 1924 when the Baldwin Government were defeated and a Labour Government were then established, as was referred to by the noble and learned Lord, Lord Falconer of Thoroton. Or, indeed, there could be a Dissolution, and we are saying that there would be a Dissolution if it was not possible to form another Government. We will come to the timing, but there ought at least to be some time to allow another Government to be formed.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am intrigued by the analogy that the Minister uses in respect of requiring a larger majority than a simple one as a safety valve. Is that not a bit like taking a boiler, setting the pressure 30 per cent higher and saying that is making the thing safer? Surely, a safety valve implies a lower trigger, not a higher trigger.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I was using the terminology used by your Lordships' Constitution Committee. It is not one I would necessarily disagree with, but what was meant by the safety valve-and the chair of that committee is here-was that rather than be completely locked in to a rigid fixed-term Parliament, with no way out if Parliament was unable to continue, there must be mechanisms to trigger an election. One of them is where most sides agree that there should be an election and they constitute the two-thirds majority that would lead to an immediate Dissolution. The other mechanism by which an election would be called is where there has been a vote of no confidence in the Government and, within a period of 14 days, no other Government have been able to command the confidence of the House of Commons. It is fair to say-

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Surely, given how the noble and learned Lord has explained it, the safety is being provided for the Executive in order to stay in office, which contradicts the whole thrust of this Government's position, that this Bill is about handing more power back to Parliament. The safety valve is being provided for the Executive.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, maybe "safety valve" leads to a misleading impression of what is meant. It is not a safety valve for the Executive; it is a safety valve for Parliament. If Parliament recognises that it is no longer able to function, there is one mechanism for finding a way out of that breakdown, and that is by calling an election. That is certainly not to the Executive's advantage. Alternatively, where a Government have lost the confidence of the House of Commons and no other Government can be established, again, there is a mechanism for an election to be called. I do not believe that in any way helps the Executive.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee

I go back to my point about the use of the phrase "safety valve", which I think appears throughout the Constitution Committee's report in quotation marks. The question about whether it is for the Executive or the legislature is not one we pursued. In response to the exchanges we have just heard between the Minister and the noble Lord, Lord Forsyth, one is brought back to the question raised by my noble friend Lord Grocott: "Why make this so complex? Why not just stick with the present position?". Everything that the Constitution Committee said about this was in relation to the complexity of the provisions in this Bill.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, I think it is also fair to say that the general trigger mechanisms, if I can call them that, were generally supported by the Constitution Committee which had a lot of negative things to say about this Bill.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Chair, Constitution Committee

My Lords, I am sorry to interrupt the noble and learned Lord again but that is precisely the point I was making earlier. Those were the understandings within the context of this Bill and not the political judgments which have been expressed, rightly, in this debate.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I am grateful to the noble Baroness for confirming that in the context of this Bill these were identified as the correct mechanisms. As I indicated, if passed into law, this Bill will certainly bind this Government and this Parliament, and it will also look to the future.

The problem of the position being abused also engaged the concern of the Constitution Committee, and much of the noble and learned Lord's Second Reading speech was devoted to that. Again, if you just had a straightforward, simple Dissolution which could be conjured up by the Government of the day, that would drive a coach and horses through a Bill which was intended to lead to a fixed-term Parliament. If the Prime Minister could conjure up a vote of no confidence knowing that would trigger a general election, it would restore the power of Dissolution with the Prime Minister.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

I have a very short question. Will my noble and learned friend deal with the argument of the noble Lord, Lord Grocott, which appeared to me to be totally acceptable? Can he say what is wrong with the constitution? If there is nothing wrong with it, what are we doing messing about with it?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, I am trying to address the arguments advanced by a number of noble Lords and will certainly come to the point made by the noble Lord, Lord Grocott. He asked what was wrong with the position in 1979. Under our constitution as it then was and as it stands today, the Prime Minister followed a course of action which was constitutionally acceptable. We are looking at a situation where that would not be the framework within which the Prime Minister was acting-he would be acting within the framework of a Parliament elected for a fixed term. The then Prime Minister had the choice of whether to resign or immediately call a general election. He chose to seek a Dissolution. Resigning would not be possible under the amendment moved by the noble Lord, Lord Howarth. What we are seeking to do is take away the power of the Prime Minister to call an election. I think my noble friend was trying to get in earlier-

Photo of Lord Cormack Lord Cormack Conservative

Yes I was. I am most grateful to my noble friend, who is the most conciliatory of men-but. The two devices of the 14 days and the two-thirds majority are in this Bill to protect whoever is the Prime Minister and whoever are the Executive, and there can be no getting away from that. Surely, allowing a Prime Minister, having lost the confidence of the House of Commons, 14 days, or allowing two-thirds of its elected Members-not two-thirds who are necessarily there at the time-to vote for a Dissolution, is a protective device and one that gives time for the powers that be, the Whips Office and elsewhere, to work on Members. It will make for a thoroughly undignified situation, and it will only add power to the Executive and take it away from Parliament, where it rightly belongs.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

At Second Reading, my noble and learned friend said that the advantage and the public interest in having a fixed-term Parliament was predictability and continuity, as a Government could then complete their programme over a five-year period. I understand that argument. However, what public good is produced when a Government with a wafer-thin majority lose the confidence of the legislature and then artificially try to create a situation in which a new type of Government with new allies might be formed? Why is that in the public interest? Why have these two devices to try to create a new Government in place of the previous one? I do not see the public interest in completing five years with two different Governments.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

As has been pointed out, what happened in Wales was that, after Mr Alun Michael resigned-he did not actually face a vote of no confidence but there was one on the horizon-a new Government were formed who quite successfully saw out their term of office. The point that I am trying to make is that with fixed-term Parliaments there is that certainty.

Equally, it has been widely recognised that there must be some mechanism that allows an election to take place if it is no longer possible for a Parliament to continue. That is why I do not agree with my noble friend Lord Cormack that these are devices that somehow are to help the Executive; they are devices for where Parliament can no longer function. If these rules had been in place in 1979 and the then Prime Minister, Mr Callaghan, had decided that calling an election was the right thing to do, I rather think that the then leader of the Opposition, Mrs Thatcher, might well have agreed with him and there would have been a two-thirds majority for a dissolution. Alternatively, as happened in 1924, it was possible for one Government to resign and for another to come in and form an Administration.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

What I have to say is fundamental to what my noble and learned friend is saying. In the present situation, if a Government lose a vote of confidence, the Prime Minister has the option either of calling an election or of resigning. The Government go. Under the phrasing of this Bill, the Government do not have to go; they can be reformulated. In that sense, the provision protects the Government as the present situation does not.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

They could if they commanded a majority in the House of Commons. It would require them to face the House of Commons and command a majority there. It is no good for the noble and learned Lord, Lord Falconer of Thoroton, to say, "Well, we have these two situations, as happened with Mr Baldwin in 1924, and somehow we have to find a means for that to happen". This provision tries to find a means by which that could happen. He may say that this is not the best means of trying to do that; I have not yet heard from him how he would seek to do that, given that his party also believes in fixed-term Parliaments and does not believe that they should be rigid. If he thinks that there should be a mechanism for a Government to resign and a new Government to be formed without an election, we would certainly be open to hearing how he would devise the means by which that could be done. It is certainly not done by the amendment to which he put his name, moved by the noble Lord, Lord Howarth.

On the amendment tabled by the noble Baroness, Lady Hayter, with regard to the period of 14 days, as my noble and learned friend Lord Mackay of Clashfern said, with the devolution settlements a period of 28 days is allowed for a new Government to be constituted after a Government in Scotland or Wales lose a vote of confidence. We took the judgment-and I accept that it is a judgment-

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I am sorry, but I have been very generous. It is important that we make progress.

We took the judgment that 14 days was the appropriate time to allow for another Government to be formed. I pick up on the point made by my noble friend Lord Newton of Braintree, who said that more than five days might have been better in May last year. I leave that thought hanging. We have a culture here of doing it in one day, with the pantechnicons rolling up into Downing Street and furniture being taken out. That may not be healthy, particularly if we are in a situation where there may well be more elections that do not produce an outcome with an overall majority for one particular party.

The position with the devolved Administrations is not always comparable, but I simply reflect that in 1999, after the election to the Scottish Parliament, there was a situation where no party had a majority. The pressure on those of us who were negotiating to try to establish a Labour-Liberal Democrat coalition was quite intense for that to be done in a relatively short period time. By the time of the 2003 Scottish election, where again there was no overall majority, there was not the same pressure. We were able to deliberate longer before finalising a coalition agreement; because of our experience in 1999, we had changed the expectation, as it were. I believe that is what would happen, as there would be a change of expectation and there would not be the same level of pressure to rush into an agreement. As my noble friend Lord Newton indicated, places like Germany seem to take a bit longer than we do without necessarily causing great upheavals there.

That is why we took the view that 14 days was right. It is not just 14 days to establish a Government but 14 days during which a new Government would have to be established and a vote of confidence in that Government to have been passed by the other place. Therefore, it is not simply the formation of a Government. It could well be that during that period of time it became blindingly obvious to everyone that no Government would be formed. In those circumstances the sensible thing might be to have a dissolution motion, agreed by all parties, so that an election could be triggered rather than waiting the 14 days. Equally, if a new Government were formed very promptly, we would not have to wait 14 days either for that period of relative uncertainty, as it was described, to be over.

As the noble Lord, Lord Clinton-Davis, who is no longer in his place, pointed out, in 1979 there was a period of five weeks before the Government were defeated. The point I would make is that, in trying to arrive at the 14 days, we wanted to look at the fact that there was a period then, and there would also have to be an election period after it. We did not want to make it too long, but equally we felt that too short a period might not allow the appropriate level of time. A balance has to be struck. I take the point made by the noble Baroness, whose Constitution Committee did not make a political judgment; nevertheless its constitutional judgment was that the Government got it right constitutionally in allowing a period of 14 days.

A similar amendment was considered in the other place, where I think it was defeated overwhelmingly. Indeed, Mr Chris Bryant indicated that he was very much with the government Front Bench on the matter. I think that the amendment would lead to restoring the power of the Prime Minister to trigger a general election when he or she wished it to happen through a vote of no confidence. The noble and learned Lord, Lord Falconer of Thoroton, expressed concern that even with the 14 days that could happen. I believe it could happen even more easily with the amendment proposed by the noble Lord, Lord Howarth. That would drive a coach and horses through the principle of having a fixed-term Parliament and taking away the power from the Executive. Therefore I urge him to withdraw his amendment.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

Will the noble Lord tell the Committee whether he intends to take away the subsection in order to redraft it to eliminate the ambiguities which expert academic commentators have drawn attention to and which I think are significant?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I apologise to the noble Lord, as I think that was his very first point, which was also picked up in the report of the Constitution Committee. In the light of that, we have considered the wording and we do not believe that it leads to ambiguity. We are not looking to a situation where there is, as it were, an investiture or a notional vote on whether someone should be recommended to Her Majesty the Queen to be Prime Minister; a Government would have to be formed. However, in the light of his comments and those of the Constitution Committee, I am willing to look again to see whether the matter can be even further clarified. However, having considered it at some length, we think that the wording actually says what it means on the face of the Bill. Nevertheless, I undertake to consider the point that the noble Lord made.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

I thank the noble Lord for his willingness to look again to see whether the drafting could be clarified. I think that is important.

The debate that we have just had shows that this question of whether there should be a 14-day provision following a vote of no confidence is a subject that has been very well worth our while to consider. The Minister denied that the provision is a contrivance, but if it is not that in itself, it is the product of a contrivance-a contrivance to keep the coalition in place for the longest possible time. On this policy of fixed-term Parliaments, the more we examine it in this Committee, the more we realise that there are much greater difficulties attaching to what appeared to be a simple and beguiling proposition than were recognised at the outset by the framers of manifestos in various political parties and by Ministers as they prepared this Bill.

The noble Lords, Lord Cormack and Lord Norton of Louth, underscored how, among the risks contained in the provisions in Clause 2, there is the risk that the provisions will, perversely, serve to protect the position of the Government. I acquit the coalition of having that motive, perhaps, but that may be the consequence of the provision. The noble Lord, Lord Newton, was of course right to remind us that politics does not stand still and that we may well continue to see rather different electoral outcomes from those that we were accustomed to seeing in past decades. The constitution, of course, always needs to respond flexibly, pragmatically and appropriately. That is one great virtue of not having a written constitution and one reason why I worry that this Government are so keen to write into statute great chunks of a new constitution. That is a difficult thing to get right; it may well be impossible.

My noble and learned friend Lord Falconer and my noble friend Lord Grocott described graphically the absurdities that would have occurred had this Bill been on the statute book in 1979, or indeed in 1940, with the undignified and chaotic situation that that would have produced in Parliament.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

On 1940, let me just be clear that these provisions would never have been engaged then, as Mr Chamberlain did not lose a vote. He decided to resign and the King, no doubt on the recommendation of the outgoing Prime Minister, asked Mr Churchill to form a Government. The provisions in the Bill would not have come into play.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

The Minister is absolutely right in relation to that. I took the 1940 example because I felt that one has to deal with the position. Suppose that Chamberlain had lost the vote of confidence; what then would have been the position? We have to test it against that but I accept what he says: it would not have been engaged.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, if I may say so, that was another worthwhile exchange. It would not be my intention to prevent the possibility of resignation. This clause could be amended fairly easily to incorporate that possibility. One would simply have to say that a parliamentary general election may also take place if the Speaker of the House issues a certificate. Against that background and against the noble and learned Lord's undertaking to reconsider the specific drafting of the subsection, I beg leave to withdraw this amendment.

Amendment 34 withdrawn.

House resumed.