Fixed-term Parliaments Bill

Lord Butler of Brockwell Excerpts

Monday 18th July 2011 Lords Chamber

Moved by

[Lord Butler of Brockwell]

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendments 1, 2 and 9”.

[Lord Butler of Brockwell]

My Lords, in the absence of my noble friend Lord Pannick, but with his support, it falls to me to urge your Lordships to cause the Government to think again about these amendments which this House passed to the Bill. My noble friend asks me to express his regret that other unavoidable business prevented him being here today.

The amendment which your Lordships passed would give the next Parliament and subsequent Parliaments the opportunity to decide whether the provisions of this Bill, subjecting them to a fixed term, should apply to them. It does not nullify the Bill. It merely gives future Parliaments the right to disapply it without having to go to the lengths of repealing it.

In essence, the case for your Lordships’ amendment is that a permanent constitutional change to fixed-term Parliaments should not be made without more preparation and consultation than this Bill has had. In the substantial debate in the other place last week, thoughtful individuals in both the main political parties both spoke and voted for your Lordships’ amendment. A Conservative Member described the Bill as a “reckless” constitutional act,

“on the back of an envelope”.—[Official Report, Commons, 13/7/11; col. 375.]

A Labour Member, perhaps better versed in the vernacular, described it as tinkering with the constitution,

“on the back of a fag packet”.—[Official Report, Commons, 13/7/11; col. 373.]

As for those who argue, as the Minister did today, that it would be open to a future Government who disagreed with the provisions to repeal the Act, the Minister in the other place gave the game away. He asked, if the Bill became law and fixed-term Parliaments became the norm,

“would any Minister realistically be able to come to the Dispatch Box and suggest with a straight face that we should change the position and give the power back to the Prime Minister to hold an election at a time of his choosing to suit his political party? Would anyone take that proposition seriously? I suggest that they would not”.—[Official Report, Commons, 13/7/11; col. 361.]

So it is clear that the Government intend that this should be a permanent change to the constitution.

The main case advanced by the Government for the legislation—what the Minister called today the “fundamental justification”—is based on a fallacy. I do not doubt the sincerity of those who argue for it, but it is a fallacy none the less. It is that the power of a Prime Minister to seek a dissolution at a time of his or her choosing gives the governing party an unfair political advantage. The Minister went so far today as to describe it as a “trump card”. In the real world, the Prime Minister’s room for manoeuvre is heavily constrained. In normal times, and with a workable parliamentary majority, it is simply not practical politics for a Prime Minister to call an election in the first, second, third or even fourth year of a parliament. It is true that the fifth year becomes open season for elections and Prime Ministers often seek a dissolution before the last moment in order not to be at the mercy of events, but the practical advantage this gives is very limited—it is far short of a trump card. Even the proponents of the Bill accept that there should be some flexibility in the fifth year to allow for unforeseen events such as the BSE epidemic.

It follows that it will be only in exceptional circumstances that a Prime Minister will seek a dissolution in the first, second, third or fourth year of a parliament. As the noble Lord, Lord Grocott, pointed out in our earlier debates, history shows that these occasions are never dictated merely by political advantage. In 1966 and 1974, general elections were called in the second and first years of the parliaments respectively in the circumstances of a growing economic crisis when the Government did not have a sufficient majority to deal with it. In 1974, a general election was called in the midst of a miners’ strike when the incumbent Government had exhausted their means of resolving the strike. Can it be denied in these circumstances that it was in the national interest rather than in the Governments’ political interest that the Governments should seek a reinforced mandate to deal with these national crises?

In such circumstances, what would have been the effect of this Bill? The Government would have had to rely on the Opposition’s support to obtain a dissolution. Proponents of the Bill may say that, in practice, general elections would always be available in such circumstances because Oppositions would never deny themselves the opportunity to throw the Government out. In that case, the legislation is pointless. However, let us suppose that they have a point, that there would be circumstances in which a Government would want a reinforced mandate to deal with a national crisis and the Opposition, for whatever reason—shortage of party funds or whatever—denied them the 75 per cent majority necessary for a dissolution. Would that be in the national interest? Can it be right that in such circumstances the Government should be dependent upon their political opponents in seeking a fresh mandate from the people? The purpose of this constitutional change is misconceived.

A further argument used by the Minister in another place, over several columns of Hansard—although I noticed that the Minister made only a glancing reference to it today—was that because a decision to reapply the provisions of the Bill would require a resolution of both Houses, your Lordships could deny an elected House of Commons the right to apply the Bill and thus undermine the supremacy of the elected House. To my mind, it is appropriate that, if a law is to be reapplied, it is constitutionally right that it should be reapplied by both Houses of Parliament. I find it inconceivable that in a future Parliament, if the newly elected House of Commons voted for a fixed-term Parliament, your Lordships would overturn that decision. The fact that the Minister relied so much in this argument on another place illustrates, to my mind, the weakness of the Government’s arguments against the amendment.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the answer is the same to both parts of my noble friend’s question. On the position in February 1974, which has been raised in the debate, if the Conservative Prime Minister of the day believed that it was necessary for an election, it is beggaring belief to suggest that the Labour Party would not also have agreed to an election and that the 75 per cent majority for a dissolution would not have been achieved. This does not mean absolute job security for five years because, if a Government lose confidence, the Bill contains within it mechanisms which can lead to an election. This can also happen if there is an agreement—as I believe would have been the case in March 1979. The then Prime Minister, Mr James Callaghan, could have said that he had lost a vote of confidence and that the following day he would table a Motion for dissolution, which I am sure would have been overwhelmingly carried by more than the majority required under the Bill. To suggest that he would have had to go scrabbling around trying to find a means of living on until October would not have been the case. There are mechanisms in the Bill to deal with that kind of situation.

I believe that the noble Lord, Lord Butler, sought to dismiss the suggestion that there could not be tensions between the two Chambers, although I do not think that he actually denied that that was a possibility. However, he did say that this House would not stand in the way of a newly elected Government who sought to establish a fixed-term Parliament. Part of the problem with the noble Lord’s answer, apart from suggesting that this House might simply rubber-stamp the Bill—heaven forbid—is that the amendment does not say that the resolution would be brought forward by a newly elected Government. It actually says that it would have to be brought forward at some time during the Parliament. Therefore it might be brought forward some years into the Parliament. At that point, who is to say that this House might not think that they were at it at the other end, bringing forward the resolution for partisan advantage? This House might take a different view about that in those circumstances. Therefore it does change the balance.

My noble friend Lord Forsyth asked whether this does not parallel the position in the Parliament Act when Parliament was extending the lifetime of a Parliament. The point is that the exception in Section 2 of the 1911 Act is to,

“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.

There is a crucial difference between a Bill that extends a Parliament beyond five years and a resolution as to whether there should be a fixed-term Parliament. In that respect, it is not proper that this House should be given a veto in these circumstances.

I have already indicated that this course can be revived in each succeeding Parliament. It is not just a case of seeing how the Parliament from 2010 to 2015 would go. It may not happen under the amendment here—there may not be a fixed-term from 2015 to whenever—but it could be revived in the following Parliament. It is another unsettling uncertainty about this Bill that it can switch on and off fundamentally important constitutional proceedings.

There has been considerable debate on this Bill. As I indicated, it was introduced a year ago this week. It had its Second Reading in another place in September last year, extra time was made available in Committee, and Report and Third Reading in the other place took place in January. In your Lordships’ House, the Bill was introduced in January, Second Reading took place in March, the Committee sat on three days in March, Report was heard on two days in May and Third Reading also took place in May. It has been very fully debated. I note that the noble Baroness, the chair of the Constitution Committee, referred to the committee’s report on the process of constitutional change, which I believe was published overnight. One of the conclusions was as follows:

“We stress the importance of proper parliamentary scrutiny of all bills”—

and this Bill has been subject to considerable parliamentary scrutiny for a Bill of only seven clauses and one schedule—

“but we do not recommend that any new parliamentary procedures such as super-majorities should apply to significant constitutional bills”.

I cannot think of any more noted significant new parliamentary procedure than the one that is promoted by this amendment. If the Constitution Committee is sceptical about using new parliamentary procedures with regard to even very sensitive and important constitutional Bills, this is one about which we certainly should be very sceptical. I do not believe the view of the noble Lord, Lord Butler, that we are doing a service to the constitution by saying that we do not have to go to the length of repealing. Repealing is what we do if we do not like legislation that was passed by previous Parliaments. If we depart from that principle on a matter of constitutional importance, I believe we should only do so with very great caution. I would urge your Lordships not to insist on the amendment because I do not believe that the case has been made for such a serious constitutional departure.

[Lord Butler of Brockwell]

My Lords, I agree that this has been a very good debate. I do not need to go over the arguments again except perhaps to assure the Minister and the noble Lord, Lord Rennard, that, like Mark Twain’s death, reports of the advantage to a Prime Minister of being able to decide when to call an election in the last year are greatly exaggerated. Certainly such reports did not prevent the noble Baroness, Lady Thatcher, from packing her bags on the morning of a general election in preparation for the election not going the way she expected.

I am very grateful to the noble Baroness, Lady Jay, and the noble and learned Lord, Lord Goldsmith, who spoke about the report from your Lordships’ Select Committee on the Constitution. The Minister quoted one of its conclusions in his last remarks, but I would like to quote the two main conclusions. The Minister said that the Select Committee on the constitution in another place endorsed the proposal, but I shall quote what your Lordships’ committee said. If I may say so, your Lordships’ committee contains distinguished constitutional lawyers from all parties, who trump those who are members of the constitution committee in another place. They said:

“We take the view that the origins and contents of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles or sustained public demand”.

The committee continued by saying that,

“the balance of the evidence we heard does not convince most of us that a strong enough case has yet been made for overturning an established constitutional practice and moving to fixed-term Parliaments”.

There could hardly be two more damaging sentences.

Our national constitution is too important to be tinkered with as a bargaining chip in the negotiations of a temporary coalition. The British people have decisively prevented that from happening to the voting system for the House of Commons. They are not to be given a chance to express a view on this constitutional change, so it falls to your Lordships to insist that the Government and the House of Commons refrain from making a permanent change and give future Parliaments and Governments the opportunity to make these decisions for themselves. I would like to seek the opinion of the House.