Fixed-term Parliaments Bill

Debate between Lord Marks of Henley-on-Thames and Lord Howarth of Newport

Monday 21st March 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the effect of the amendments in this group, tabled by my noble friends Lord Rennard and Lord Tyler, and by me, is to refine Clause 2(2), which covers the provision for an early dissolution in the event of a vote of no confidence on a simple majority followed by a period of 14 days in which no Government is formed that enjoy the confidence of the House of Commons.

At Second Reading, the noble and learned Lord, Lord Falconer of Thoroton, in what he described sotto voce a moment ago as one of his “many agonies”, made the point that under the clause it would be theoretically possible for a Prime Minister to engineer a vote of no confidence in his or her Government by his or her side so as to secure an early dissolution at a time of his or her choosing. That would deprive the Bill of its intended very beneficial effect of removing from the Prime Minister precisely that power.

The criticism cannot be made of Clause 2(1), which requires a two-thirds majority of all the seats in the House of Commons to trigger an early dissolution, so that in practice cross-party support would be required, given that no Parliament in recent history has enjoyed such a majority. However, in relation to Clause 2(2), the criticism made by the noble and learned Lord is technically accurate. At Second Reading, the response was made that any Prime Minister engineering a vote of no confidence in his or her Government in such a Machiavellian way would be punished at the ballot box. However, I and others suggested that the problem might need to be addressed at later stages of the Bill. The need to address the point made by the noble and learned Lord is given added weight by the fact that, in Germany, Governments have resorted to the device of engineering defeat on votes of confidence, as the noble Lord, Lord Norton of Louth, correctly pointed out. It was done by Chancellor Brandt in 1972, by Chancellor Kohl in 1982 and by Chancellor Schroeder as recently as 2005.

The way in which Amendment 30 addresses the problem is simple. By requiring that a Motion of no confidence under Clause 2(2) must be tabled by the leader of the Opposition, the mischief is effectively addressed. The position of the leader of the Opposition is constitutionally recognised. He or she would inevitably be—and historically invariably has been—the person who would move a genuine Motion of no confidence. It follows that requiring that he or she be the mover of such a Motion if it is to have effect is a simple way to achieve the intention of the Bill. It would also provide a certain symmetry. Given that the purpose of the Bill is to remove from the Prime Minister the power to call an election at a time of his or her choosing, who better to be responsible for the trigger for an early election when all-party consensus is absent than a Member of the House who seeks to replace him or her as Prime Minister?

I note that Amendment 33, proposed by the noble Lord, Lord Howarth of Newport, is to the same effect. It gives me great confidence in our amendments that this is the first time since I joined your Lordships' House that I have had the pleasure of expressing agreement with the noble Lord in a debate on a constitutional matter.

I will make one final point. A further effect of Amendments 30 and 31 is that they contain a simple definition of a vote of no confidence. A Motion of no confidence would be a Motion declaring that the House of Commons had no confidence in Her Majesty’s Government. That would mean that, once any vote went against the Government on an issue that would or might be seen as a confidence issue, the leader of the Opposition would have a chance to table a Motion of no confidence in those terms. If it were passed, the Speaker’s certificate would follow and the 14-day period provided for by Clause 2(2) would be triggered. If the Motion failed, that consequence would not follow. That arrangement would avoid doubt or argument, and it would avoid the need for any complication in the definition of what did and what did not constitute a vote of no confidence. I beg to move.

[Lord Howarth of Newport]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has just noted, it is remarkable that I have tabled an amendment which seeks to achieve exactly the same purpose as the amendments in this group tabled by the Liberal Democrat noble Lords. It is a nice example of how our parliamentary dialectic can be fruitful. The public notice all this adversarialism—they notice that we are always disagreeing with each other. However, if one takes a longer view, we find that all this debate and argument tends to produce a new consensus. Until recently, the Liberal Democrats wanted immediately to move on to discover new truths and interest us in new suggestions. They have been the grit in the oyster, endlessly introducing new ideas into our public debates. I hope that they will be able to continue to do so now that they have joined the governmental establishment. We shall see.

We have heard a certain amount about Germany from the noble Lords, Lord Norton of Louth and Lord Marks. I think that it was in 1983, although the noble Lord, Lord Marks, suggested it was 1982—the noble Lord, Lord Norton, will tell us who is right—that Chancellor Kohl deliberately contrived to defeat a Motion of confidence in his Government. As I understand it, the reason was that he wanted an election because he had come to power in the previous year by means of a parliamentary vote and not by means of popular endorsement at the election. He lacked a popular mandate and he wanted one. I do not think that he was punished at the ballot box, so I am not sure that the safeguard that the Government have suggested exists against the cynical use of the no-confidence provisions in the Bill to contrive an early election by an unscrupulous Prime Minister would necessarily work. On that occasion at least, Chancellor Kohl did not suffer at the election.

It is at least a possibility that Mr Cameron, too, not having won an election and feeling that he lacks popular endorsement, might, if he thought that he had an opportunity to do better in an early general election, be very tempted to go for that. It is hard to foresee that but who knows? If the 14-day provision that we are about to debate on another amendment were taken out, it would be even more important to guard against the Prime Minister being able to contrive a vote of no confidence. If immediately following a vote of no confidence he could go to the country, it would be that much more attractive to him.

I think we can see why the Liberal Democrats are keen for the Bill to be amended to provide that only the leader of the Opposition can table a Motion of no confidence. It is, sadly, because they do not trust their coalition partners and the Prime Minister. They worry that, as the Liberal Democrats become more unpopular—and we will perhaps see evidence of that after the local government elections and in the AV referendum—and as the cuts, which those who voted for them did not expect them to support, start to bite, Mr Cameron may ditch them and cut and run. Unless this amendment is in the Bill, the supermajority lock may not do the trick for them and keep the Deputy Prime Minister and his colleagues in office by postponing the evil day when he has to face the electors of Sheffield and the Liberal Democrats have to face the electors of the United Kingdom.

I note that an amendment of this kind would be less necessary if we were to have proportional representation as that would make it less likely that any party would win an overall majority in an early election and, therefore, it would be less tempting for the Prime Minister to contrive an early general election. However, we are where we are. The Liberal Democrats failed to secure a referendum on proportional representation and we have a referendum on the alternative vote only. I hear different views as to what the alternative vote might produce: some say that it is a majoritarian system of election that tends to reinforce the swing and others say that it is more likely that the alternative vote will produce an endless series of coalitions. Whatever the outcome proves to be in practice, with that electoral system it would be more important to have the safeguard which the noble Lord, Lord Marks, and others have proposed. I hope we do not have AV and some of us will do our best to ensure that we do not have it.

I see one significant argument against these amendments. We might have a situation, which the noble Lord, Lord Norton of Louth, has adumbrated and which the Government have already played out, in which the Government lost a vote on a key Bill, they were incapable, for whatever conjunction of circumstances, of governing effectively, and their majority had fallen as in 1951 or 1996, but the Opposition reckoned that it was in their political interest to defer the election to allow the Government to continue to stew in their political juice for a little longer. In that situation they would not want to table a Motion of no confidence just yet. Of course, that would be bad for the country.

These are all hypothetical possibilities. It is very difficult for us to provide for every contingency that might arise, but I think it would be sensible to incorporate an amendment of the kind moved by the noble Lord and of the kind that my Amendment 33 provides.

Fixed-term Parliaments Bill

Debate between Lord Marks of Henley-on-Thames and Lord Howarth of Newport

Tuesday 15th March 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I am very happy to support the spirit of my noble friend Lord Grocott’s amendment. I have tabled two amendments—Amendments 57 and 58—which also require that a referendum should take place before we move to fixed-term Parliaments in this country.

I do not, in general, favour referendums, but there is a particular case for holding them when major constitutional change is being proposed. I think that is a view that the Constitution Committee reluctantly came to. The basis of that has to be that the constitution belongs to the people—it is not the property of those politicians who happen for the time being to have the privilege of serving in either the House of Commons or the House of Lords. Those who are Members of Parliament in either House, and certainly those who are in Government, should regard themselves as holding the constitution in trust on behalf of the people, by whose authority they have been given and entrusted with the opportunity to serve. They should treat that constitution with the very greatest respect and should move to change it with the very greatest caution. That applies even more particularly to a Government such as this present coalition Government, which does not have a mandate from the electorate for its policies.

It is, as my noble friend Lord Grocott suggested, curious that this Government—which makes great claim to be a liberalising Government who want to improve the quality of our democracy and increase the accountability of Government, and indeed Parliament, to the people—are proposing legislation that would mean that we would in practice have fewer general elections than we have had in the past. The average interval between general elections since the war has been three years and 10 months; if the Government have their way on this Bill, it will be not less than five years. That is one of the reasons why I, like my noble friend Lord Grocott, believe that—although I am no enthusiast for legislating to fix the term of Parliament—if we are to fix the term, then we had better fix it at four years. We do not want to see accountability diminished in a major measure of constitutional reform.

It is also curious that the Government believe that it is appropriate to hold a referendum on changing the electoral system and that it is appropriate to hold referendums when there may be some transfer of power—possibly no very great transfer of power—between London and Brussels, but they do not think that it is appropriate to hold a referendum on whether we should move to fixed-term Parliaments. My noble friend Lady Farrington raised the question of whether there might be a referendum on reform of the House of Lords, which would be a very major constitutional change by any standard. It seems extraordinary that the Government should propose to take that forward without incorporating provision for a referendum in the legislation.

I am not necessarily a devotee of consistency in constitutional matters, because I believe that there are many anomalies in our present constitutional arrangements, which have grown up for compelling historical reasons, that actually provide flexibility and enable the constitution to accommodate different traditions and to adapt itself as time goes by. If we are slavishly schematic in our approach to constitutional change, we shall be even more likely to get it wrong; but I wonder why the Government are quite so inconsistent in their approach to holding referendums on constitutional reform. Surely the Government should conduct themselves on a certain set of principles.

Turning to the particular amendments that I have tabled, I suggest to the House that they incorporate a better design for a referendum than the design of the one we are to have on 5 May on electoral change—there are differences between what I propose and what Parliament has enacted at the behest of the Government. The referendum that I have proposed would be advisory only and would leave scope for Parliament to meditate upon the message that voting in a referendum sends to Parliament. Amendment 57 would also provide that, if less than a threshold of 51 per cent of the electorate support the introduction of fixed-term Parliaments, then the question would be dismissed. That latter point should have applied also in Amendment 58—it was an omission on my part not to have included that in the drafting of that amendment. If we come back to this issue on Report, I can repair that then.

My amendments would provide for two questions. The first would be to ask the people whether they favour the introduction of fixed-term Parliaments, as provided for in the legislation. The second would ask them the other key question: if we are to have fixed-term Parliaments, do they think it right that the term should be fixed for four years or for five years? We all agree, I think, that this is quite the outstandingly important issue that remains to be resolved in this legislation apart from the overall issue of whether there should be fixed-term Parliaments, which has been approved in Second Reading. However, the question of four or five years remains wide open. I put it to the House that that may also be something that should be offered for the decision—or at least for the advice—of a wider electorate.

[Lord Marks of Henley-on-Thames]

My Lords, I am one of those who is largely in favour of referendums for important constitutional reforms. The noble Lord, Lord Grocott, is quite right to ask in what circumstances referendums are appropriate and to say that the matter should be considered by the House.

The Constitution Committee in 2010 used the word “fundamental” in respect of constitutional reforms for which referendums were appropriate. The question arises as to what is meant by fundamental. I accept entirely that a referendum is appropriate in respect of the proposed change in the voting system to AV on the 5 May, as it was appropriate for the European referendum in 1975, which noble Lords will know was the last UK-wide referendum—I am not suggesting that such referendums should take place only every 36 years, or anything like it. However, it is significant that the same Constitution Committee report produced a list—not an exhaustive one—of the type of issue that might be appropriate, in which it included any decision:

“To abolish the Monarchy;

To leave the European Union;

For any of the nations of the UK to secede from the Union;

To abolish either House of Parliament;

To change the electoral system for the House of Commons;

To adopt a written constitution; and

To change the UK’s system of currency”.

The report made clear that that was not intended to be a definitive list.

[Lord Howarth of Newport]

Does the noble Lord agree that this Bill marks a very significant step towards the creation of a written constitution in this country?

[Lord Marks of Henley-on-Thames]

My Lords, I do not accept that. It might indeed be desirable to have a written constitution, but that is a matter for another day.

I accept that the Bill provides for an important constitutional reform, but it is not a fundamental change to our constitution. I say that for a number of reasons. First, in terms of whether or not a referendum is appropriate, the fixed term proposed is within the existing maximum term of a Parliament. Under the 1911 Act, Parliament can last for up to five years; under this Act a Parliament will last for five years unless either of the trigger mechanisms for an early dissolution is activated.