Procedure and Privileges Committee

Debate between Lord Falconer of Thoroton and Lord Forsyth of Drumlean

Wednesday 1st December 2021 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I normally agree with the noble Lord, Lord Grocott. I can see the point that he makes about the role of the chair, but I am completely confused by the amendments from the noble Baroness, Lady Quin, and the noble Lord, Lord Rooker.

The noble Lords, Lord Rooker and Lord Grocott, seem to be arguing about who will take the voices of the House—that is, whether it should be the Leader or the Lord Speaker. I can see that that is a perfectly reasonable argument, but I am not sure how what the noble Lord, Lord Grocott, said—that someone would say, “We are just being like the House of Commons”—is consistent with supporting the amendment in the name of the noble Baroness, Lady Quin, which would turn this House into the House of Commons. We would all have to stand up at Question Time and the Lord Speaker would have to choose a person. As he will well recall, there would then be arguments, as they have in the other place, about whether people were being treated fairlyThe noble Lord presented it as running like clockwork but, under the previous Speaker—I must be careful not to criticise the conduct in the other place—there was a feeling, in certain parts of the House, that things were not always fair. In order to make things fair, a clerk has to stand by the chair and advise the Speaker, who perhaps is not always entirely sure of who people are—I must say, when I go down to the other place, I look at many of the faces and I am not entirely sure—because he needs to know and to keep a running total to make sure that people are treated equally.

In introducing her amendment, which acknowledges some of the practical problems, such as the fact that one cannot necessarily see the whole of the Chamber from the Woolsack, the noble Baroness, Lady Quin, said that this was not beyond our wit. What are we going to do? Are we to have a ladder for the Lord Speaker to climb up? Are we to raise the Woolsack to accommodate this issue? Are we to have a clerk sitting on the Woolsack and indicating names? Are we to have a whole new bureaucracy created to work out who has spoken so many times?

I realise that I may be on thin ice here because I am probably thought to be part of the shouty brigade. I may be part of that 10%—I confess that—but, if we look at how our proceedings have occurred since we came back, we can see that we have the shouty brigade, as the noble Lord put it, operating when we have Statements or PNQs. I must say, I think that Ministers have been given a much harder time on those occasions. As part of the shouty brigade, under the old scheme, when I came into Questions and listened to a Minister giving a hopeless Answer, I would get up and say, “Could the Minister now answer this Question?” I would listen to someone making an unfair or inaccurate point, then get up and say, “Could the Minister confirm what has just been said?” It makes for a much more dynamic process.



Some of us are more shouty than others, and some of us have more knowledge than others. The difference between these proceedings, where we have to work out two days in advance to be on the list and all that, and the proceedings where we have what we had before, is quite marked. The difference in attendance is also quite marked; the number of people participating is down, and we get a series of questions—“hobbyhorses” would be too strong a word—which are particular to certain Members and prevent wider consideration. One of the differences between this House and the other place is that we are a bit more flexible about rules of order. Ministers can get a question on a general subject and find that suddenly the noble Lord, Lord West, has turned it into a question about the size of the Navy —and I think that is a very great strength.

If we want to change and be radical, along the lines of what the noble Baroness, Lady Quin, suggests, that needs careful consideration. It needs to be thought through carefully. The House authorities, the clerks and our leaders have done a brilliant job in enabling us to operate in these extraordinary circumstances caused by Covid, but we should not forget that the right thing to do is to return to the status quo ante. Then, if there are bright ideas about how we could make changes to the system, they should be considered carefully. But we should not get into a position where we no longer have the Bishops’ Bar, a Question Time that works or the Long Table, because these things were changed as a result of Covid. We should go back to where we were, in my opinion—I suppose that makes me a bit of a conservative. If we want to make changes, we should consider them very carefully.

The two amendments from the noble Lords, Lord Rooker and Lord Grocott, are not wrecking amendments, whereas that of the noble Baroness, Lady Quin, is. It would mean that we could not go back to the old Question Time, which would be a matter of great regret.

If I could defend the Leader from the attacks against her, we should not forget—I notice that Ministers sometimes do—that when Ministers answer from that Dispatch Box they are not answering for their department; they are answering for the Government as a whole. If we had the old system, I would be intervening and saying, “You can’t say this is not your department; you are answering for the Government as a whole”. The Leader of the House is the Leader of the whole House. I think it was the noble Lord, Lord Rooker, who said how ridiculous it was that a Minister decides who gets called; a Minister does not decide that—the Leader of the House decides what the will of the House is and, as the Leader, she has a duty to represent the whole House and not just the Government. That is not something we should cast aside lightly.

[Lord Falconer of Thoroton (Lab)]

My Lords, I was incredibly struck by a point the noble Lord, Lord Forsyth, made. He said that there is a legitimate choice to be made between whether it is the Leader of the House or the Speaker who makes the choice when there is chaos. I had the privilege to sit on the Woolsack for three and a half years before the noble Baroness, Lady Hayman, took over from me and did it a lot better than I did.

The point about not being able to see things is a bit bad; ultimately, you can see what is going on from the Woolsack a lot better than you can from the Government Front Bench. In particular, you cannot see from the Government Front Bench what is going on behind you and on the Cross Benches. It is then very difficult to make judgments about how you resolve the chaos. I go back to my experience of the Leaders of the House when I started here. I am very glad to see the noble Lord, Lord Strathclyde, who is regarded—and I regard him—as the Buddha of Fairness; every time he said, “Let’s have Lord X”, we would all accept it. With my noble friends Lady Amos and Lord Rooker it was exactly the same.

I have the greatest admiration for the House of Lords; I genuinely like being here, and it is its quality and reasonableness that make us survive. However, watching Question Time from the Woolsack was sometimes absolutely horrible. The sharp elbows of the shouty brigade were persistently out, and if you watched the awfulness on their faces when they did not get in, it was very ugly from time to time.

Electoral Registration and Administration Bill

Debate between Lord Falconer of Thoroton and Lord Forsyth of Drumlean

Monday 29th October 2012 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, so many noble Lords are leaving—this is a disappointing reaction to such an interesting Bill, which goes to the very heart of our democracy. And still people leave, in such numbers that there is a blockage at both doors.

We on these Benches support the principle of individual electoral registration, as we indicated at Second Reading. Indeed, as has been pointed out on a number of occasions, we legislated for it in the Political Parties and Elections Act 2009, in the last Parliament. We believe that it is desirable to have a complete and accurate electoral register. We also believe that individual electoral registration is a system compatible with modern society, and we recognise that it is outdated to rely on the head of the household. In essence, the issue between us and the Government in this respect is how you introduce it, and the timing of how you introduce it. You have to make very sure that you are not losing too many people off the register before you introduce it.

Moving to individual electoral registration is a significant change; it is the right change, but it must be implemented correctly. The risks to British democracy if it is not are too great. So despite supporting the principle, as I have made clear, we have genuine concerns. Our amendments, to be debated over the coming three Committee days, have been tabled to reflect those concerns.

Data published by the Electoral Commission and the Electoral Reform Society and acknowledged in the Government’s impact assessment for this Bill show that anything between 3.5 million and 7 million people are missing from the electoral register. That is an unsatisfactory base to start from, but the Electoral Commission also predicts, and the Government have acknowledged, that the shift to individual electoral registration could see an initial further hit to the completeness of the register by up to 30%. Experience from Northern Ireland bears this out, although I accept that there may be special factors that apply in relation to Northern Ireland that may not apply on the mainland.

We need to do all that we can to address these issues and to ensure that the electoral register is as accurate and complete as possible. So the guidance provided for in Clause 1 is good, especially during the transition from one system to the other and in the early stages of the operation of individual electoral registration. We welcome the specific requirement on the face of the Bill, but our concern is over why the role of the Electoral Commission has been undermined. The Government’s Bill gives a very significant amount of decision-making power to the Minister while bypassing the Electoral Commission and Parliament. We feel that a five-year transitional period for issuing guidance may be too short; the Bill’s Explanatory Notes are no more certain than deeming it “likely” that the new system will have reached a “steady state” in five years. And how do the Government define “steady state”? Given the levels of uncertainty associated with the transition, we argue that at the very least the Minister should be advised by the Electoral Commission on whether the system is operating effectively before guidance is withdrawn.

The Electoral Commission is an independent statutory body operating outside the political system with responsibility for electoral matters. We feel that it has a proper role in reaching an objective decision on these issues and that this should be written into the Bill before us today. Amendment 36 calls for annual registration reports to be produced by the Electoral Commission, presented to the UK Government and laid before Parliament with time set aside for Parliament to debate each report. In keeping with the theme of this group of amendments, which is related to improving the accuracy and completeness of the electoral register, Amendment 36 also addresses our concerns about unchecked ministerial power and the bypassing of the Electoral Commission.

Finally, Amendment 59, which is the third amendment in this group, calls for the results of the ongoing data-matching pilots, to which the noble Lord, Lord Wallace of Saltaire, referred in his opening speech at Second Reading, to be reported and evaluated before the full transition from the old to the new register takes place. According to the Government’s implementation plan for the Bill published in July, data-matching pilots have been running since August 2012, and data-mining pilots to identify potentially eligible voters who are currently missing from the register will begin in early 2013. I anticipate that the Minister will reject our call for a delay until the results of these pilots are known but will argue that a second set of data-matching pilots be commissioned. We accept that the second set of data-matching pilots should be commissioned but will the Minister acknowledge the concerns of the Electoral Commission about the findings from the first? In its evaluation report, the commission wrote:

“Our main conclusion is that these pilot schemes do not provide sufficient evidence to judge the effectiveness of data matching as a method for improving the accuracy and completeness of the electoral registers”.

We are serious about the status of the electoral register and believe that all action should be taken to ensure that it is kept as up to date, complete and accurate as possible. We are serious about the most appropriate bodies and individuals being given the power to advise and issue guidance. We are serious about proper parliamentary scrutiny of an exercise of ministerial power, particularly in an area that is absolutely crucial to the effective working of our electoral system, as everybody agrees. We look forward very much to hearing what the Minister has to say in response. I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I did not have an opportunity to participate at an earlier stage in this Bill but these amendments, particularly Amendment 1, which relates to the role of the Electoral Commission, about which the noble and learned Lord has spoken so eloquently, is very important.

The Bill sets out the rules that would apply for Great Britain. In replying to these amendments, will my noble friend give us guidance on where the Government are in respect of the changes which are being promised by the Scottish Government in the conduct of the referendum on independence? This is important because at the Scottish National conference the First Minister of Scotland said that he would bring in a Bill which would provide for a new electoral register which would include 16 year-olds. It would not provide for 16 year-olds being able to vote in the referendum who were already on the electoral register: that is, the so-called attainers who reach the age of 18 at a subsequent election in respect of the existing roll. My understanding is that the publicly declared policy of the Scottish Government is to create a new register, which would be based presumably on individual registration by 16 year-olds, expressly for the purpose of the referendum on independence. This seems to me to drive a coach and horses through what this Bill is about, which is establishing a uniform system throughout Great Britain. I just wonder what the Government’s attitude is.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Forsyth of Drumlean

Tuesday 29th March 2011 Lords Chamber

[Lord Falconer of Thoroton]

It is possible to see very clearly what the noble Lord, Lord Norton of Louth, is trying to achieve. The current position is that, on the defeat of the Government in a vote of no confidence, the Prime Minister has the choice either of resigning, in which case the House of Commons has the opportunity to form a new Government, or, alternatively, of advising the Queen to dissolve Parliament and have a general election. The choice is either have an election or try to produce a new Government. As I understand it, the noble Lord, Lord Norton of Louth, is trying, in effect, to replicate that with his proposals.

The amendment is saying that once the Government have lost the vote of confidence, instead of the 14-day period, the second provision required for an immediate general election is that the Prime Minster asks for a Dissolution. The amendment then adds in a bit that says that, where the Prime Minister resigns, there is 28 days to form a new Government. The difficulty is that that is too rigid. Let us assume that in March 1979 the Prime Minister in theory wanted to stay on, although that was not his position at the time. His right course at that point would have been to resign. He would then have had 28 days, in effect, not 14 days, because, remember, the vote was 311 to 310. If you were a Prime Minister who wanted to stay on, you would resign then offer various junior ministries at the widget shop to a variety of people and then get your 311.

The amendment of the noble Lord, Lord Norton of Louth, would provide for an early general election if,

“on a specified day, the Speaker has been notified that the Prime Minister has tendered to Her Majesty his or her resignation, and … a period of 28 days has passed after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.”

This may not be what the noble Lord, Lord Norton of Louth, intends, but the wording leads to the possibility that you could end up with a Prime Minister who has been defeated but does not want to go, so he indicates that he is resigning. If the other side fail to form a Government, he could then come back, so the bidding war that has been going on for 28 days is the one that would otherwise have gone on in the 14 days.

[Lord Forsyth of Drumlean]

I merely seek some advice from the noble and learned Lord. He said that the Prime Minister would have the choice of either resigning or going to the country. Is the constitutional position not actually that it resides with the monarch whether to grant a Dissolution? There might be circumstances where a Prime Minister wished to go the country but there was someone else who was capable of forming a new Administration, and a Dissolution might not be granted.

[Lord Falconer of Thoroton]

The modern trend in constitutionality is that you do not wish the monarch to make any decision that could be controversial. In those circumstances, you would normally expect the monarch to act upon the advice of his or her Prime Minister. For example, in the last election, at no stage did the monarch indicate who should seek to form a Government; she left it to the political parties to come forward. In one sense the noble Lord is right but in all practical terms the element of discretion for the monarch has effectively gone. That is the way that political parties now operate when it comes to the question of who should try to form a Government.

The noble Lord, Lord Norton of Louth, is shaking his head, which worries me deeply. The wording of his amendment seems to me to allow for a resignation because the choice it gives the Prime Minister is Dissolution or resignation. It does not necessarily mean that at the end of the 28-day period he or she does not re-emerge as the Prime Minister, which could be his or her intention right from the outset.

Although I am much more beside the noble Lord, Lord Norton of Louth, than I am beside the Government, neither solution is wholly satisfactory. That is indicative of the inability of a Bill to reflect the ability of the current arrangements where there is a vote of no confidence and to reflect the differing political situations that may have emerged. It is very difficult, for example, to have envisaged the situations in 1940, 1924, 1974, 1979 or 2010, but our current constitution is well able to deal with them. It is possible to accept the principle that there should normally be a fixed-term but where there is a vote of no confidence then there may need to be a Dissolution and a general election. Why do we not have a Bill that simply says that? Even the finest constitutional brain in Britain, the noble Lord, Lord Norton of Louth, seems to me when trying to codify it to have produced a situation that even he would not necessarily regard as particularly satisfactory.

In a genuine spirit of consensus I ask the noble and learned Lord, who is much admired for his openness and conciliatoriness, to think about why one does not just have a very simple clause that says that, where there is a vote of no confidence in the Government, the Prime Minister may ask for a Dissolution—full stop and leave it at that. It could then be read in the context of the constitutional conventions governing our country. You would have the safety valve. We would not need to contort ourselves into situations where we are trying to see what history will bring in the future—if that is not a contradiction in terms—which we are not going to be able to manage.

Let us be wide open—like the constitution—and recognise that a vote of no confidence should probably, but not invariably, lead to a general election. Let us have a Bill that reflects that.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, this is another part of the conundrum that we have debated pretty fully already. Perhaps I may indicate the particular problem that this amendment deals with. My inclination on how one deals with a vote of no confidence is that it should generally lead to a general election. My complaint about the Bill is that it is drafted too rigidly, reducing flexibility, and that it encourages a situation where once a vote of no confidence is lost, the norm is not a general election but a process of haggling. I believe that is quite contrary to the purpose described by honourable gentleman the Deputy Prime Minister to the committee chaired by the noble Baroness, Lady Jay. He said that it,

“collectively introduces the mechanisms by which people can exercise greater control over politicians”,

as set out in paragraph 15 of the committee’s report. It obviously does precisely the opposite if what happens when you lose a vote of confidence is that there is then a haggle and a new Government are produced.

I recognise that there are some circumstances where you do not want to have a new Government or an election straightaway. I have already mentioned in particular the general election of January 1924 and Mr Baldwin going to the House with a Queen’s Speech that was then effectively voted down by Parliament. I do not think the public would have wanted a general election at that point. They would have wanted a majority Government to be re-formed.

Amendment 41 says that the 14-day period applies only where a Government have not yet obtained the confidence of the House of Commons. However, I say that in the context of strongly objecting as a matter of principle to the idea that the norm after a vote of no confidence is to try to re-form a Government. That should generally take place only where the Government have not yet obtained the confidence of the House of Commons, or in the Narvik-type situation. My amendment does not provide for the Narvik-type situation, although it should. I should be interested to hear what thought the Government have given to the extent to which, if you have a defeat in the House of Commons on a confidence issue, this promotes people’s belief that they can “exercise greater control” over their politicians if a new Government are formed from within the House of Commons rather than by being selected by the people. Does that not have precisely the opposite effect to that which the Deputy Prime Minister wanted? Have the Government given thought to the circumstances in which they would prefer there to be an election rather than a new Government being formed? Are they not worried that by building in 14 days in every case they are encouraging the confidence-sapping haggle? I beg to move.

[Lord Forsyth of Drumlean]

My Lords, I wish to speak briefly on this interesting amendment. I go back to the point raised earlier when comparisons were raised with the Scottish Parliament. The Scottish Parliament has been mentioned in defence of the Bill, but it seems to me that the Scottish Parliament is a completely different institution. First, it is elected by PR and therefore its procedures are designed to deal with that situation, but it is not a body which votes means of supply. The House of Commons raises means of supply. An Executive who are no longer able to command the support of the House of Commons are no longer able to operate the Government of the country because they are no longer able to raise the taxes which are required. That is the fundamental constitutional issue here. When a Government no longer have the support of the House of Commons, they are no longer able to carry on and it is necessary to go back to the country to get the authority to vote means of supply. These comparisons with the Welsh Assembly and the Scottish Parliament are totally erroneous for that reason. Therefore, the idea that when the Executive no longer command the support of the House of Commons to levy taxes on the people you should have 14 days to do a deal so that you can restore that authority is deeply erroneous. The noble and learned Lord is right in what he says in proposing this amendment.

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord for his explanation of the amendment as I found its purpose somewhat difficult to discern. He has indicated that it seeks to address the situation, perhaps immediately after an election, where no Government have been formed. My difficulty is that, if the amendment were included in the Bill, a situation such as we are discussing might arise later in a Parliament when a Government had been formed. The amendment states:

“An early general election will only be called at the end of a 14 day period following a vote of no confidence if no Government has been formed since the last general election”.

That could almost exclude an early general election being called if, the Government having been formed since the last general election, there was a vote of no confidence and no other Government were then formed. I suspect that is a technical consequence of the amendment that the noble and learned Lord did not intend. As I understand it—

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Forsyth of Drumlean

Tuesday 29th March 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I was rather puzzled by the amendment, for the same reason the noble Lord, Lord Grocott, indicated: that this has never been an issue in the past. I have been thinking about what is driving this stuff. It appears to be the notion that the Prime Minister has some enormous advantage in being able to choose the date of the election and, if this amendment were agreed, its timing. For those Prime Ministers whom I have known and who have had to decide these things, it is an agonising decision. Have too long a campaign and you might lose because the public get bored; have too short a campaign and you might not get across your arguments or there may be an event which you are unable to control and which will affect voters’ views—for example, some trade figures. That there is some great advantage in the Prime Minister deciding the date seems to be what is driving this stuff. It is fundamentally misguided and takes away the flexibility which you need in the system to apply common sense.

Perhaps I may make one slightly partisan point. The Parliamentary Voting System and Constituencies Bill recently passed through this House. The Government moved heaven and earth to make sure that that Bill went through the House so that the referendum could take place on the same day as the Scottish and local government elections, thereby ensuring the turnout. Perhaps I may say to my noble friends in the Liberal Democrat party that it is inconsistent for them to argue, on the one issue, that the Executive’s power and patronage can be used to try to achieve a particular result, and then, on another issue such as this, to say, “Well, we can’t possibly have the Prime Minister deciding the timing of a general election campaign”. It is a power which Prime Ministers have sometimes tried to use to advantage in the past and it has turned out to be something of a curse.

The fundamental thinking behind the amendment, that there is some great defect in our system because of prime ministerial ability to choose the date and timing of a general election, is misguided. I agree with the noble Lord, Lord Grocott, that we end up trying to create a box-ticking culture for the conduct of our public affairs. It will come to grief, as we have seen in many other areas of our public life where this philosophy has been applied.

[Lord Falconer of Thoroton]

I am slightly confused by the amendment. Its effect would be that, depending on the date of the certificate, you could be compelled to have a general election between, for example, 18 December and 16 January, which would seem unwise, or from 1 August to 29 August. I have no experience of fighting elections but, speaking as a member of the electorate, I imagine that I would not particularly want a general election campaign going on between those dates. The Government cannot avoid that conclusion on the basis of the rigidity in the amendment of the noble Lord, Lord Marks of Henley-on-Thames. The Government or the noble Lord may indicate that something is wrong with the current system. Have there been Prime Ministers who, having lost a vote of confidence, then held on for a year or two avoiding having a general election? This seems to be trying to solve a problem that probably does not exist.

I wait to hear the noble and learned Lord's view on this, because there may be some problem that we have not spotted. For the life of me, I cannot see it. This is a criticism not of the Government but of the amendment, but again we are struggling with a series of problems which do not exist. As the noble Lord, Lord Forsyth, says: for what? To take away from the Prime Minister the power that the noble and learned Lord acknowledged that he could probably have by the back door: the ability to procure a vote of no confidence in himself whenever he wanted to go to the country anyway.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, this has again been an important debate. I pay particular tribute to the speech by the noble Lord, Lord Martin of Springburn. It was forceful and effective in determining the importance of the role of the Speaker in the new Bill and had the experience of the Speaker in dealing with that. As far as I was concerned, it was absolutely clear throughout his whole speech where he was going with it. I also pay tribute to the noble Lords, Lord Cormack, Lord Norton of Louth and Lord Armstrong of Ilminster, and the noble and learned Lord, Lord Howe of Aberavon, for bringing this amendment forward. However, this proposed new clause slightly illustrates the problems again.

I will try to identify four principles within which we should be operating. Proposition one: whether we like it or not, the purpose of this Bill is to deprive the Prime Minister of his absolute discretion to determine the date of the general election. Proposition two: the Bill does not intend to disturb a constitutional principle that any Government should continue only for as long as they have the confidence of the House of Commons. Proposition three: currently, the House of Commons itself determines whether a Motion, when passed, indicates a lack of confidence in the existing Government. Proposition four: the Bill, whether in the form advanced by the Government or as amended by Amendment 50 moved by the noble Lord, Lord Cormack, seeks to try to produce a legal definition of what constitutes an indication of a lack of confidence in a Government, as opposed to leaving it to the politics of the time in the House of Commons.

The critical change which the Bill is making—if I may say so, the noble Lord, Lord Cormack, and his fellow tablers have been lured into it—is in trying to provide a legalistic definition of a vote of no confidence. It is not for the courts to intervene. I assume it will have to be the Speaker who does the job. When he sees the words “Motion of no confidence” in a Bill or an Act of Parliament, he will look to see what their preceding meaning was.

Noble Lords should read the Confidence Motions note, which is incredibly helpful on this. A Motion of no confidence can have two meanings. It can mean any motion which puts the confidence of the Government to test, and that can include an adjournment motion if the Prime Minister has said that it is a motion of confidence. It can be a motion moved by a Back-Bencher. It can be the Second Reading of a Bill. It can be the Finance Bill or the Queen’s Speech. It can be anything which puts the confidence of the Government at issue. Whether it is or not is not solely determined by the words of the motion, since it does not need to use “confidence” or “censure”. Neither is it determined, if it does not use those words, by the Prime Minister of the day simply saying, “This is a Motion of confidence”. It can be a motion of confidence even if it does not use those words and the Prime Minister does not treat it as one, because the House of Commons itself would treat it as one. Equally, it could be a motion that is not a motion of confidence even though “confidence” or “censure” are used in it, because Governments are repeatedly being censured for what they have done by motions, but everybody in the House of Commons understands that they are not motions of no confidence that would bring the Government down.

This matter is incredibly difficult to identify in a legalistic way. The noble Lord, Lord Norton of Louth, is looking confused, but you could have a Motion that said: “We censure the Government for their determination to sell off the forests”. If we assume that such a Motion was passed, everyone would understand that it would not lead to the Government falling. I wish to quote examples of Motions of confidence or censure that do not use the relevant words. The first Motion of confidence states:

“That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order”.—[Official Report, Commons, 1/11/1956; col. 1631.]

That Motion was put down by the Opposition. A month later a further Motion of confidence was put down by the Prime Minister. It stated:

“That this House supports the policy of Her Majesty’s Government as outlined by the Foreign Secretary of 3rd December, which has prevented hostilities in the Middle East from spreading, has resulted in a United Nations Force being introduced into the area, and has created conditions under which progress can be made towards the peaceful settlement of outstanding issues”.—[Official Report, Commons, 11/12/1956; col. 845.]

Both those Motions fall on one broad understanding within the definition of a Motion of no confidence because, loosely, as I say, that is sometimes taken to mean any Motion that puts the confidence of the Parliament in that Government at issue.

Clause 2(2), as drafted, says:

“An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—

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

Is it intended that the phrase,

“a motion of no confidence”,

should embrace anything that puts the confidence of the Commons in the Government in issue? Therefore, does it include Motions, for example, on the Queen’s Speech? Does it include a Motion on the Finance Bill? Does it include anything that under the current definition in Erskine May would constitute a Motion of no confidence? We need to know the answer in order to know what the Government intend in relation to it. The problem that the noble Lord, Lord Cormack, rightly identifies is that it is such a compendious phrase you do not know where you stand in relation to it, and it gives the Speaker much too wide a discretion, which then brings him into issue politically. Subsection (1) of the new clause in the amendment states:

“An early parliamentary general election is to take place if the House of Commons passes a motion of no confidence in Her Majesty’s Government”.

That raises precisely the problem that the Government’s reference to a Motion of no confidence raises. I am afraid that the noble Lord, Lord Maclennan of Rogart, seems to me to be completely right in that, as a matter of construction, subsection (2) in the amendment does not say that a vote of no confidence will only have been deemed to have been passed. It states:

“A vote of no confidence will have been deemed to have been passed if”,

the conditions in paragraphs (a), (b), (c) and (d) in the amendment are met. Here are some examples, although they are not conclusive. The consequence of the point made by the noble Lord, Lord Maclennan, is that, with respect to the noble Lord, Lord Cormack, and his very impressive constitutional cohorts behind him, the amendment does not even begin to solve the problem that he has identified. However, the position is worse than that as the amendment states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons … (c) passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition”.

Does that include the following Motion that was put down by Mr Attlee when he was Leader of the Opposition on 4 December 1952? It states:

“That this House regrets that Her Majesty’s Government is dealing with the Business of the House incompetently, unfairly and in defiance of the best principles of Parliamentary democracy and the national interest, and records the view that this is in part brought about by the efforts of Ministers to force through measures, unrelated to the needs of the nation, for which they have no adequate support in Parliament or the country”.—[Official Report, Commons, 4/12/1952; col. 1783.]

Is that a Motion of no confidence? I should tell noble Lords that that is a trick question because I am reading from a Motion that was regarded, and treated, as a Motion of no confidence on 4 December 1952. If Erskine May says that that is a Motion of no confidence, the effect will be that if an identical Motion is put down by Mr Ed Miliband, then, irrespective of what the Prime Minister, Mr David Cameron, says, it will be treated in a legalistic way as a Motion of no confidence.

[Lord Forsyth of Drumlean]

The noble and learned Lord is giving examples of Motions that were treated as confidence Motions. Am I missing something here? Surely the context has changed. Those Motions are in the context in which a Prime Minister can say, “I am putting this policy to the House. I regard it as a matter of confidence. If I don’t have the support of the House, I’ll go to the country”. However, the Bill, as the noble and learned Lord has pointed out, removes the Prime Minister’s ability to call a general election—to go to the country and take his case to the people ahead of the conclusion. In that context, what would constitute a Motion of confidence is quite different from the position in which the Prime Minister cannot go to the country, and I think that the reason why my noble friend has had to fall back on a specific Motion that says that the House has no confidence in the Government arises from that. Therefore, the Erskine May examples arise from a situation in which the Prime Minister can call a general election at any time in order to secure support in the country.

--- Later in debate ---

[Lord Falconer of Thoroton]

If the noble Lord is right, a massive constitutional change is being proposed. I did not realise that that was the intention. Is it intended that the fundamental principle of our parliamentary democracy—that if you lose the confidence of the Commons, you have to resign—should go? If that is so, then the principles underlying a Motion of no confidence presumably remain the same as they are referred to in Erskine May. It would be extraordinary if they did not, because the phrase that is being used is precisely the same as the phrase used in the Bill for determining whether there will be either Dissolution or a resignation. A Motion of no confidence is a well recognised phrase in Erskine May and there must be a reference to that in the Bill. The fact that there would not necessarily have to be a general election does not change the fundamental principle in our constitution that if you lose the confidence of the Commons you have to go. That, as I understand it, is what is intended by this provision.

[Lord Forsyth of Drumlean]

Under the present rules, it is perfectly possible for a flagship policy to be lost in the Commons and for the Prime Minister of the day to move a Motion of confidence that wipes the slate clean. Therefore, it is not as straightforward as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

The noble Lord may or may not be right. He has been in the Commons, I have not, so he will understand the situation better than I do. I do not have the experience of the noble Lords, Lord Martin and Lord Forsyth, but from looking at the history books it would appear that, by a process of general consensus, the Commons understands what is and is not a Motion of confidence. The best example of what was not a vote of confidence occurred on 10 March 1976, when the Labour Government’s public expenditure plans were defeated. I should have thought that the Government would have had to go on that basis, but they did not.

The next day there was a vote on whether the Adjournment was a confidence Motion. Presumably the Prime Minister said, “I’m treating this vote on the Adjournment as a vote of confidence”, and the Commons understood it to be such. How is the Speaker supposed to determine that a vote on the Adjournment as a legalistic matter is a vote of confidence? He could not, either under the Bill as drafted by the noble and learned Lord, Lord Wallace of Tankerness, or under the proposals of the noble Lord, Lord Norton of Louth.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord Forsyth of Drumlean

Monday 15th November 2010 Lords Chamber

[Lord Forsyth of Drumlean]

Sorry, they campaigned on having a referendum on AV. To be fair, it was a post-legislative referendum.

[Lord Falconer of Thoroton]

Pre-legislative.