Fixed-term Parliaments Bill

Lord Rennard Excerpts

Monday 18th July 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Butler of Brockwell, has set out fully and powerfully the case for your Lordships’ House to insist on these amendments. Nevertheless, I would like to say a few words in support of the excellent case that he has made. I do think that it would be right to ask the other place to think again. I do not think that it had the opportunity to consider this legislation properly when, in the new Parliament, it was sent sailing through—if I may put it this way—a very inexperienced new House of Commons.

The Bill was only hastily examined by the Political and Constitutional Reform Committee; I do not criticise the committee for that because it had all too little time between the publication of the Bill and the date of Second Reading that the Government had scheduled very early on indeed. It was then rather perfunctorily examined in the Chamber of the House of Commons before it came to this House. The other place should have looked at it much more carefully. After all, among our powerful objections to the legislation as the Government presented it was that the Government were playing fast and loose with the role of the Speaker and with parliamentary privilege, matters that surely one would have expected the House of Commons to ponder and take very seriously, but it did not and the legislation went through quickly.

This is not the moment to rehearse again all the flaws in this Bill, but, as we bottomed out the issues that the Bill gives rise to in our proceedings here, it became more and more evident that it was bound to be a bad Bill because it was seeking to give legislative force to a bad idea. It was addressing a non-problem. There is no evidence that there has been abuse by successive Prime Ministers of the right to choose the date of the next election or that the country has suffered because successive Prime Ministers have exercised that right. I do not think that the “will he, won’t he” issue that Mr Harper made so much of in the other place is a serious problem, and I do not think that the country considers that it is.

This legislation was dressed up as a project to reduce the power of the Prime Minister and increase the accountability of government to the people, but it did not do that. In fact, it did exactly the reverse. It secured for this Prime Minister the assurance of a five-year Parliament and bound the coalition, however unhappy the marriage, into a five-year Parliament. Far from increasing accountability, it reduced the frequency with which electors can be expected to have the opportunity either to throw the Government out or to renew their term at a general election.

The typical interval between general elections in most of the 20th century was, we are told, some four years. By extending the term of Parliament rigidly to five years, without allowing the sensible pragmatic flexibility that our unwritten constitution has hitherto permitted, the legislation would make Governments and Prime Ministers less accountable to Parliament, not more.

The measure would still have been bad in principle, but it might have been somewhat less objectionable had the Government accepted the amendment tabled by my noble and learned friend Lord Falconer of Thoroton to reduce the fixed term from five years to four years. However, the Government saw no merit in that, no doubt because they were very worried that the consequences of their fiscal nihilism and the misery and waste that their policies are causing will not have been forgiven, or anywhere near forgiven, in a mere four-year term.

The amendment that your Lordships passed and which built a sunset clause into the Bill was the best damage limitation that this House was able to offer, because we rightly have a convention that we do not reject government legislation at Second Reading. The noble and learned Lord, Lord Wallace of Tankerness, and his ministerial colleague in the other place, Mr Harper, have raised various objections to the amendment that we passed, but they seem to me to be quibbling amendments. None of them creates such difficulty that, had the Government been willing to accept the advice of this House, they would not have been able to refine the legislation to deal with those problems.

We could certainly have thought about whether your Lordships' House should approve an order under this legislation in a normal way. An argument could have been mounted that it would not be appropriate for your Lordships' House, unelected as it is, to decide itself whether the fixed-term provisions of this legislation should have been renewed, although I am attracted to the argument made by the noble Lord, Lord Butler of Brockwell, on that point. Issues such as the royal prerogative or the exact stage in the new Parliament in which the vote on the order might take place could have been sorted out consequentially had the Government been willing to accept the advice of your Lordships.

Nor am I impressed by the argument about consistency. Just because we have not proposed that we should undo the fixed terms for the Scottish Parliament or the Welsh Assembly, which are being extended under this legislation, it does not follow that we should not seek to amend the provisions relating to the Parliament at Westminster. A constitution benefits from sensible anomalies; a constitution that is pragmatically designed and evolves to take account of the political realities in different places at different times stands a much better chance of working successfully.

I appreciated the fact that the Government accepted some of the amendments that we passed in this House. They should, after all, surely accept this provision. It is simple and effective, and would give the House of Commons the opportunity, after the experience of this five-year Parliament, to confirm or not to confirm that a fixed-term Parliament would be a permanent arrangement. It would, in effect, be an exercise in post-legislative scrutiny. It seems to me that the Government would do well, in the light of experience, to have the modesty to allow reconsideration of a very contentious and experimental piece of legislation such as this, in the convenient way that the amendment provides for.

As the Minister has emphatically reminded us this afternoon, it would be open to the new Parliament—or, indeed, to this Parliament should the coalition fall apart within five years, which is not at all inconceivable—to repeal the legislation. It is, however, much more of a performance to repeal, whether in this Parliament or at the beginning of the next Parliament, because it involves all the long drawn-out processes of primary legislation to achieve in essence the same as your Lordships’ amendment would achieve. In all events, one way or another I hope that Parliament will get rid of this footling and misguided piece of constitutional tinkering.

[Lord Rennard]

My Lords—

[Lord Cormack]

My Lords—

[Baroness Verma]

My Lords, perhaps the noble Lord, Lord Rennard, could carry on and the noble Lord, Lord Cormack, could speak after him.

[Lord Rennard]

My Lords, the noble Lord, Lord Butler, will no doubt recall very well from the period in early 1992 that there was much speculation about the likely timing of the general election then due. Options of April, May and June were all under consideration by John Major, and his choice was based simply on when was most likely to favour his party in what was expected to be a very close contest. Indeed, it was a very close contest that was well described in the book I much enjoyed by the noble Lord, Lord Hill of Oareford, entitled Too Close To Call. It was clear from that account that the advantage of being able to choose polling day possibly made a decisive difference.

At the time I was involved in helping to prepare the campaign led by my noble friend Lord Ashdown. I was quite shocked to receive a call one day in the run-up to that election from someone who ran a printing firm.

[Lord Lamont of Lerwick]

The noble Lord says that John Major was much advantaged by being able to choose the date of the election, but he actually chose the last possible date. Is that an argument for a fixed-term Parliament?

[Lord Rennard]

My Lords, the last possible date was June of that year. A date that was widely considered was the May of that year, which coincided with the local elections. In fact, the date chosen was 9 April, which was rather earlier than the last possible date, and was chosen—as the book I have just described accounts—for his advantage. I asked the printer, who told me that the date would be 9 April, how he could know. He told me he was breaking commercial confidence by telling me, but he knew because he was in the process of printing the election address of a then Cabinet Minister who was able to tell him that the date would be 9 April, and that this date was on the front of his leaflet. It seemed to me that that Cabinet Minister had an advantage over other candidates in that election, and that the ability to print election literature at a time of one’s choosing is just one of the unfair advantages afforded to the governing party over all other parties in our present arrangements.

As I have said before in these debates, it is rather like allowing Sir Alex Ferguson to pick the dates for all the Manchester United games. In 1992, the advantage of choosing polling day was possibly crucial to the narrow and generally unexpected Conservative victory, although in that election the Sun newspaper famously said:

“It’s The Sun Wot Won It”.

I know that many noble Lords opposite were candidates for the Labour Party in that election, in which they were led by the noble Lord, Lord Kinnock. I ask them to remember the words of their manifesto in 1992, which said:

“This general election was called only after months of on-again, off-again dithering, which damaged our economy and weakened our democracy. No government with a majority should be allowed to put the interests of party above country as the Conservatives have done”.

It concluded:

“Although an early election will sometimes be necessary, we will introduce as a general rule a fixed parliamentary term”.

The principle of this Bill is to do exactly that. It upholds a principle that was also in last year's Labour manifesto, which guaranteed to ensure that legislation would be introduced to make sure that we have the principle of fixed-term Parliaments. That principle was also in last year's Liberal Democrat manifesto and was one that David Cameron agreed in opposition to consider seriously before committing his party to it in the coalition agreement.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I hesitate to interrupt my noble friend, but I feel that he is making a bit of a Second Reading speech. I hope he will not mind if I ask him a question that has been puzzling me on the idea of the abuse of prime ministerial patronage. If we know the date of the election, is that patronage not going to be used to ensure that all kinds of goodies are announced before that date, and are Governments not going to plan their programmes accordingly? Is the problem not going to be much worse, not better?

[Lord Rennard]

My Lords, I think the problem would be rather less serious when we all knew when the election would be. The amendments strike very much at the principle of the Bill, which is why I am now addressing them. If anyone doubts how a Prime Minister can manipulate the present system for party advantage, they should think back to the events of September 2007, when a new Prime Minister was clearly planning an election for the autumn. Indeed, we now know that more than £1 million was spent on leaflets that sat with the Royal Mail waiting to be dispatched, when the Prime Minister suddenly realised that he might lose the election and called it off. Surely that is a great example of a Prime Minister abusing the system for party advantage.

Again, comparing this with football, would we consider it fair if Sir Alex Ferguson was allowed to call off a football match if he was worried about the form of his team and to rearrange the match for another day when it might perform better? Of course we would not. I see the noble Lord, Lord Triesman, who obviously regards football as a very serious matter, sitting opposite. I recall my own sporting hero Bill Shankly saying that football is not,

“a matter of life or death … it's more important than that”.

However, I would say that democracy is even more important. At the moment, in this period of great turbulence and concern about the rules of fair play, fair competition and fair enforcement of the law, we should take this small step towards making the rules of our democracy fairer. If a future Parliament wishes to take issue with the fixed-term principle or with any of the detail of how it operates, it should go through the same parliamentary processes that are currently necessary with this Bill.

On the principle of the Bill, let us consider finally that neither the Scottish Parliament nor the Welsh Assembly, the Northern Ireland Assembly or the European Parliament, the Greater London Assembly or a single one of the hundreds of local councils across the United Kingdom appear to have a problem with the fixed-term principle for elections. Neither should we in this unelected House.

[Baroness Jay of Paddington]

My Lords, I am delighted that the noble Lord, Lord Rennard, has returned to the principles of this Bill because it enables me briefly to return to the report of your Lordships’ Committee on the Constitution, which I have the honour to chair and which I note the Minister did not refer to. Well, he referred to it only in passing; he did not refer to the fact that the Committee was on the whole opposed to the idea of the principle of fixed-term Parliaments and was very much in support of the idea that if they were to be undertaken they should have four-year terms rather than five-year terms.

In supporting the amendment tabled by the noble Lord, Lord Butler of Brockwell, it is more appropriate to refer again to the Constitution Committee’s strictures on the processes that produced this Bill. Your Lordships will recall that one of the things that the Committee felt most strongly about was that the Bill had been brought forward with as many political concerns and ambitions in mind as constitutional principles. In fact, we were very concerned that this was seen as a short-term measure designed to extend and protect the five-year term of the present coalition Government, and not something that was designed properly to change the constitution.

We also referred to the fact—as the Minister said in his opening remarks—that there was some time in Parliament for the Bill to be considered, although I noted that my noble friend Lord Howarth referred to the lack of pre-legislative scrutiny that we felt was desirable in this case. None of the pre-legislative scrutiny or any of the processes that we as a committee felt should have been undertaken to ensure that the Bill had widespread support in making a major change to the constitution had been undertaken. There was no Green Paper and no White Paper, and although Ministers appearing before the committee said at the time that this was because it was early in the Parliament—as the Minister said—we felt that there was no time limit on this Bill in the way that there was on the referendum legislation that was brought forward with equal speed early in the Parliament, so there was nothing to prevent this Bill being considered in what we would have thought was the proper way for a constitutional Bill of this significance.

I add in conclusion that your Lordships’ committee has now undertaken, partly because of our concern about this Bill, a full-scale inquiry into the process of constitutional change that we have just completed and which I very much look forward to having the opportunity to debate with your Lordships following the Recess.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, this has been an extremely good debate. If I may respectfully say so, the opening speech from the noble Lord, Lord Butler of Brockwell, said almost everything that could be said and I support everything that he has said in relation to this.

We support this amendment because we think the Bill is a bad Bill. We respect the right of the coalition, because of the relationship between the Commons and the Lords, to have what they wish—which is a Parliament that ends on 15 May 2015—but if you analyse the detail, this Bill damages rather than improves the constitution. Mindful of our obligation to respect the primacy of the Commons, we suggest that we give the Commons what they wish but do not affect the constitution further than is necessary. Before I come to the detail of that argument, I will just get rid of some of the truly appalling points that have been taken against the amendment.

First, I turn to the point that the provision is badly drafted. It was drafted by the noble Lords, Lord Pannick, Lord Butler of Brockwell, and Lord Armstrong of Ilminster, and supported by the noble Baroness, Lady Boothroyd. I do not think you could have a more powerful team in relation to this. What the amendment says—and it says it incredibly clearly—is:

“The polling day for the next parliamentary general election after the passing of this Act is to be 7 May 2015”.

It then says,

“If, but only if, a resolution to this effect”,

is passed, then the next one will be five years after that, and if a resolution is not passed, the other provisions do not apply. It could not be clearer. Please ignore all false remarks made in the other place. With respect to the noble and learned Lord, there is nothing wrong with the drafting of this.

The second point that has been made is that it is suggested there is something unconstitutional about this provision. First, it is said a sunset clause is inappropriate. We know that there have been sunset clauses in what may be described as constitutional Bills, for example the EU Bill and the control order Bills. The idea that a sunset clause in a constitutional Bill is inappropriate has been rejected by this House on a number of occasions and accepted by the other place.

The third particularly bad argument is that the provision increases the power of this place by allowing it to defeat orders. Yes, we can defeat orders, and the Parliament Act does not apply, but we always behave responsibly, and I would expect us to behave responsibly should the Commons indicate after the next general election that they want to have a fixed-term Parliament. If, however, that was the objection to this provision, then speaking for myself I would readily agree to an amendment to deal with that.

The final particularly appalling technical argument that has been advanced is that this is contrary to the Salisbury/Addison convention. I have never heard this being said until this afternoon. The Salisbury/Addison convention effectively says if the electorate have indicated it supports something this House should not resist it. I do not know if Members remember the election in 2010, but the one thing I can tell you, and it pains me to say it, is the one party that unquestionably lost the election was the Labour Party. Yes, a fixed-term Parliament was in our manifesto, but the public appeared very unattracted to it, so I do not think the Salisbury/Addison convention can be relied on by anybody remotely sane.

We know why this has been put in because we have had the privilege and the pleasure of Mr David Laws’s book, which was read many times on the Floor of this House during debates. Noble Lords will recall that Mr David Laws, who happily for this House was present during negotiations, gave us an account of how we got the Fixed-term Parliaments Bill. It is lovely to hear the highly principled noble Lord, Lord Rennard, and the splendid noble and learned Lord, Lord Wallace of Tankerness—neither of whom were there and neither was I—but have I got news for you. It was not on the basis of a desire to change the constitution; it was because the Tories and the Liberal Democrats did not trust each other to hold on to the convention. As David Laws explained, that is why they said that there had to be a Bill.

I respect the decency of the noble Lord and the noble and learned Lord to whom I have referred but that was not the reason given by David Laws for why this has been done. It is because of the coalition agreement. I could not put it better than Mr Shepherd, the Member for “somewhere”. He is facing a House of Commons laughingly about to pass this Fixed-term Parliaments Bill without the sunset clause. He says:

“I hope that this cheerful Chamber will look askance at the Minister and his colleague, the Deputy Leader of the House, who are sitting on the Front Bench and trying to seduce us into thinking that there is some immaculate constitutional conception behind the Bill. There is not. It is the raw politics of ‘We want to be there for five years, in the hope that something turns up at the end of the fifth year’. That is what it is about, and we know it. I urge the House to vote for the Lords amendment, and damn them”.—[Official Report, Commons, 13/7/11; col. 378.]

I do not think he meant damn the Lords; I think he meant damn the coalition.

[Lord Rennard]

My Lords, does the noble and learned Lord, Lord Falconer, also recall that during the very same debate Richard Shepherd said that,

“the Lords make the absurd proposition that it should have a role, as an unelected House, in determining when an election should be”?

He also described these proposals as,

“ridiculous proposals from the House of Lords … the body of the House … feels that this is almost an impertinence”.—[Official Report, Commons, 13/7/11; col. 377-78.]

Those were the context of his remarks last week.

[Lord Falconer of Thoroton]

I recall that but he voted in favour of the amendment. So I think you can say where his heart lay in relation to this.

Moving away from the technical points to the point of this Bill, let us think about history for a moment. In 1924, the Labour Government were defeated in a vote because the Labour Prime Minister had interfered with the Attorney-General in the exercise of his discretion. The moment he was defeated on the Floor of the House of Commons, there was a general election and the Conservative Party was returned to power. Imagine if Mr Ramsay MacDonald had been faced with the Fixed-term Parliaments Bill in 1924: first, being defeated on the proposition that he had interfered with the Attorney-General would not have led to a general election. There would had to have been a vote of no confidence put down by the Opposition. Let us assume that that had passed but that would not have been the end of it. Mr Ramsay MacDonald would then have had 14 days to try to cobble together a bit of support. Let us remember that he had a small majority in relation to this. He could have tried to survive on that basis. Is it seriously being said that that sort of behaviour would have led to the public having more confidence in the Government?

Moving forward in time to 1974, Mr Edward Heath perfectly legitimately wanted to test who governed the country because the country was in a major crisis in relation to the miners’ strike. Despite the fact that he legitimately wanted to go to the country, he could not have gone because he would not have been allowed to under this Bill unless he had tabled a vote of no confidence in his own Government. I think it was the noble Lord, Lord Hamilton, who said that perhaps he could have done that. But what would people think of a Government who put down a Motion of no confidence in themselves?

Finally, the father of my noble friend Lady Jay in 1979 was defeated in a vote of confidence on the Floor of the House of Commons. The most quoted extract from political history in the course of this debate was what Mr James Callaghan said when he was defeated. He said, “I have been defeated in the House of Commons. I must now take my argument to the people”. After this Bill has been passed he would have to say, “Now that I have been defeated on a vote of no confidence, I must see if I can scrabble together a majority to stay in power because this beastly Act gives me 14 days in which to try to do it”.

Okay, I say to the coalition, have your miserable Act so that you can stick together until 5 May 2015, because we respect your right to force that upon us. However, there is nothing unconstitutional in saying that it is appropriate for this House to stick with the principle that says, after that, let the next Parliament decide whether it wants to continue with what I say is a terrible Act. We will support the noble Lord, Lord Butler of Brockwell, in his excellent sunset clause.