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Lords Chamber

Volume 726: debated on Tuesday 29 March 2011

House of Lords

Tuesday, 29 March 2011.

Prayers—read by the Lord Bishop of Ripon and Leeds.

Health: Preventable Sight Loss


Asked By

To ask Her Majesty’s Government what is their assessment of the level of preventable sight loss in the United Kingdom; and whether they will include that issue in the proposed Healthy Lives, Healthy People strategy.

My Lords, the Government recognise that sight loss is a serious issue and that risks rise in an ageing population. The Health and Social Care Bill proposes that NHS sight testing will be the responsibility of the NHS Commissioning Board. The new public health system will help to prevent sight loss. We have proposed that Public Health England will design and fund some specific public health services, including diabetic retinopathy screening. We have also proposed that local authorities should have new responsibilities in relation to public health and health improvement.

I thank the Minister for that response. However, given that half of the sight problems experienced by around 2 million people in the UK could be prevented by regular sight tests and early diagnosis and treatment, what plans do the Government have to communicate this important public health message to local commissioners, health and social care professionals and the public? Does the Minister agree with me that reducing such a high prevalence of avoidable sight loss through regular sight tests and better access to eye care services should be included in the public health outcomes framework, and that specific attention should be focused on minority ethnic groups who exhibit a particularly high incidence of some sight-threatening conditions?

My Lords, I quite agree with the noble Lord that sight tests allow an invaluable opportunity to review all aspects of eye health, including investigations for signs of disease. The uptake of NHS sight tests is, I am glad to say, increasing. As regards messaging, the department has worked, and continues to work, with NHS Choices on the development of articles and videos to raise the profile of visual health and promote the importance of regular sight tests. Looking ahead, and as part of their new public health responsibilities, we propose that local authorities will have primary responsibility for the health improvement of their local populations. They could well choose, if they wished, to promote eye health and work to improve the wider aspects of health and lifestyle that contribute to improved eye health. We are currently consulting on the public health outcomes framework, as I am sure the noble Lord is aware. We are also consulting on the scope of the evidence base for public health and the interventions that will work best.

Does the noble Earl agree that one of the groups of people at risk of developing eyesight loss is people with diabetes? As part of the increased work to deal with diabetic retinopathy, should not everyone at risk have, in addition to their normal eyesight tests, annual eye screening? This service must not be cut but be expanded, as early detection and prevention is right for the patient, their family and ultimately the taxpayer, as thousands of pounds that would otherwise have to be spent on dealing with preventable complications will be saved.

My Lords, the noble Lord makes some extremely important points. This is a good news story and very good progress has been made; more people with diabetes are being offered screening for retinopathy than ever before, and to higher standards. More people are being offered screening now than when the screening programme was announced in January 2003. At that time, 1.3 million people with diagnosed diabetes in England were being screened. The latest figures, for December 2010, show that 2.21 million people were offered screening.

My Lords, given that sight loss will cost the economy £8 billion a year by 2013, will the Minister outline for the House the determining factors in extending free sight tests to all?

My Lords, various categories of patients are eligible for free sight tests. Free tests are available under the NHS to a large number of people, including people aged 60 and over, children under 16 and people on low incomes. As I mentioned, the uptake of sight tests is increasing, which shows that people are continuing to get good access to NHS eye care services; but as regards an extension of the numbers, that will of course depend on available funding.

My Lords, does the Minister accept that one of the commonest causes of progressive visual failure in the elderly is macular degeneration? There are two forms: the dry form is currently not amenable to treatment, although research suggests that one day it may be; but the wet form can in many cases be arrested by expensive injections. Is he aware that some PCTs are allowing that particular form of treatment to be given only to one eye, allowing the other eye to deteriorate? Does he not agree that that—if he will forgive the pun—is an unfortunate and short-sighted policy?

My Lords, the National Institute for Health and Clinical Excellence—NICE—has recommended treatment with Lucentis as a clinically effective and cost-effective use of NHS resources for patients with wet, age-related macular degeneration meeting specific clinical criteria. I am aware that, initially, the practice mentioned by the noble Lord was being reported, but I think that it is less true now. I will of course check whether what the noble Lord says continues to apply. I would just say that primary care trusts are legally required to make funding available to enable clinicians to prescribe Lucentis, which is the drug of choice for this, in line with guidance. The PCT allocations take account of expected growth in the drugs spending, including the impact of this type of technology.

My Lords, last week the BBC programme “In Touch” asked the question, “Can the NHS cope with the demand for treatment for the UK’s most common cause of blindness?”—a question which follows on from the one asked by the noble Lord, Lord Walton of Detchant. The programme was made with the recently formed Macular Disease Society, which aims to raise awareness and money for both dry and wet macular disease. Will the noble Earl join me in welcoming the creation of this society, and will the Government ensure that the society is involved in the consultation process leading to the strategy for the early diagnosis and treatment of macular disease?

My Lords, I join the noble Baroness in welcoming the formation of the Macular Disease Society, and I can assure her that my department will wish to engage closely with it; I think that it is a very positive development. Reducing avoidable sight loss is clearly an issue that we have to take seriously. The prevention of sight loss will be an aim of work undertaken across the new public health system, as I have indicated. At national level we are proposing that Public Health England will design some specific public health services including screening, as has been mentioned, and locally we propose new responsibilities for local authorities.

As financial resources are limited, is not avoidable sight loss an absolute public health priority? Is it not better to spend money on that than restricting small and large retailers further in terms of their display of tobacco in a market that is declining in any case?

My Lords, I will simply say to my noble friend that public health clearly has an important contribution to make to reducing avoidable sight loss by addressing the obvious risk factors for sight loss, but also by delivering on our general public health outcomes, such as reducing smoking and obesity and diabetes, all of which are associated with the development of eye disease. The tobacco strategy has a direct bearing on this question.

Flooding: Defence


Asked By

To ask Her Majesty’s Government what discussions they have had with communities affected by flooding about their proposed flood defence allocations.

My Lords, the Environment Agency involves local communities and partner organisations from the earliest stages of a flood defence scheme’s life. The agency works with regional flood defence committees to agree the overall investment programme. Committees include local authority members and other local experts. Particular attention has been paid to working closely with communities to let them know spending decisions affecting 2011-12 and options for the future.

I thank the Minister for that reply but, as he knows, flood defence schemes in Leeds, York and Morpeth have been put on hold by the Government, as have other schemes. We have seen huge public concern in all these areas as a result. Are the Government prepared to look to reinstate these schemes and, if not, how do they propose to reassure the residents of those areas, who are worried both about being flooded and about not getting insurance cover for their homes in future?

My Lords, I remind the noble Baroness that no schemes whatever have been cancelled. Some have been deferred, because obviously we have to make very difficult decisions about the money available. As I made clear in my original Answer, we will involve local communities in discussions, which is why we have consulted—and we are reviewing the consultation—about how we can see the money going further by allowing communities themselves to have an involvement in these schemes, and for communities themselves or for private money to come in to assist the public money that comes from Defra.

My Lords, I wonder whether the Government relate the flood defences to many other applications, such as agriculture and wind energy. As you cross the channel, you can see that all the major dykes in Holland have windmills on them. Do the Government agree that we need to move in that direction?

My Lords, it is an interesting thought whether we should put windmills on all the dykes that we have to build for flood defences. I shall certainly take that on board and consider that matter, although there would obviously be planning considerations as well as to whether you would want windmills along all the dykes to which the noble Lord refers.

My Lords, the joint working of churches together in Cumbria along with local Rotary and other volunteer organisations in the devastating floods of 2009 will be remembered for many generations. The Regional Resilience Forum is to be disbanded. I understand that it will be relocated with Leeds and other northern areas and focused on Leeds. I wonder whether the Minister shares the concerns of very many people that vital local knowledge and co-operation will be lost.

I am grateful to the right reverend Prelate for his comments, particularly for his comments about the devastating floods in Cockermouth. As I told the House the last time we discussed these matters, I visited Cockermouth a year after those floods. I am very satisfied that the local knowledge is still there and that the resilience that that community had in Cockermouth is still there, and that local people are preparing to deal with floods in the appropriate manner, should they get them again. We want to ensure, as I made clear in my original Answer, that we have the appropriate local knowledge. That is why we want to involve local communities, and that is why we have consulted on ways of giving communities a bigger say in the decisions that affect them.

Does the Minister recognise that a deferment that does not lead to speedy action will be seen by local communities as a cancellation?

No, my Lords, I do not accept that. There is a very big distinction between a cancelation and a deferment, and there have been no cancelations whatever. Each scheme that we look at, we will look at on its merits. That will involve the cost of the scheme and how many properties—just to give one example—that scheme will protect. There is no point in spending excessive amounts of money if one could deal with the problem in another way. There are also ways of looking at spending the money and consulting the local communities to get money in other than the money that comes centrally from Defra. That is what we are intending to do.

My Lords, can the Minister assure the House that the funding promised to help these local communities with their community flood plans and provide community flood wardens will be forthcoming so that they will be protected?

My Lords we are making some very small reductions to the annual expenditure on flood protection but I am satisfied that those reductions are very small and necessary in dealing with the deficit. We will continue to spend whatever money is appropriate. However much money was available, we would never be able to satisfy all the demands for all the schemes that are on offer.

What advice will the Government give to those who are having difficulties getting home insurance in the light of the deferment?

My Lords, obviously insurance is a very difficult matter and we are discussing it with the Association of British Insurers. However, the Government should be wary of trying to interfere in the market because there are those who take a sensible attitude and insure themselves. There is no point in the Government offering guarantees to those who do not insure themselves. We will discuss these matters with the ABI and others as appropriate, but I do not think we should start interfering in the market itself.

Will the Government review the Pitt report on flooding and update it? Can the Minister report on the town of Tewkesbury, where I know many people were not rehoused for some 12 months after the terrible flooding that afflicted them?

My Lords, the noble Lord is right to refer to Tewkesbury. I cannot comment on what happened under the previous Government following those floods. However, following the Pitt review, I can say that we are committed to a working-up of the findings of that review and we will do so in due course.

Petrol: Ethanol Content


Asked By

To ask Her Majesty’s Government what is the timetable for implementing the increased maximum ethanol content in petrol; and what effect the change will have on the engines of classic and vintage vehicles.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a non-financial interest as president of the Jaguar Drivers’ Club.

My Lords, petrol containing 10 per cent ethanol has been permitted from January 2011. Petrol containing up to 5 per cent ethanol is currently available and expected to be marketed until at least 2015. Petrol pumps dispensing petrol containing over 5 per cent ethanol must display a cautionary label. Research commissioned by the Department for Transport into the potential impact of ethanol on vehicle fuel systems showed that there could be compatibility issues for classic and vintage vehicles.

My Lords, I am grateful to my noble friend for his answer. He has a delicate way of putting it. In fact, ethanol attacks fibreglass fuel tanks, bits of aluminium, fuel filters and so on. Therefore it is important that he gives an undertaking that the 5 per cent limit will be consistently available and not be superseded by the 10 per cent limit.

My Lords, I am well aware of these issues. I declare an interest in that, because of fuel compatibility issues, I have had to fit an electronic fuel-injection system to a 27-litre V12 tank engine.

I am also well aware of the problem with glass-fibre fuel tanks. One of the issues for classic vehicles is the availability of replacement petrol tanks and the difficulty of making an irregular-shaped fuel tank.

My Lords, the noble Earl is probably aware that I am an aviator. Is he also aware that there are new and old small aircraft that rely on car petrol without ethanol in it? What provisions are the Government making to ensure that there is a supply of this in the future?

My Lords, in the long term, I cannot give reassurances. I will write to my noble friend about the availability of zero ethanol for aviation.

Will the noble Earl tell the House how many petrol-driven tank engines there are in the country? I thought they mostly ran on steam like Thomas does.

My Lords, the noble Lord is talking about the wrong type of tank. I am talking about a tank at the REME museum in Bordon.

My Lords, is the Minister aware that these additives in marine fuels can cause even more problems than those in automobile fuels because their consequences can be far more serious?

I am sure the noble Lord is right. There is a difficulty with some types of equipment that are not used regularly, such as standby generating sets. There can also be problems with the formation of algae but there are well-understood procedures for avoiding this problem.



Asked By

To ask Her Majesty’s Government what is their assessment of the current security situation in Yemen; and what steps they are taking to protect British residents and officials.

My Lords, the security situation in Yemen is tense. There is political deadlock, there are violent protests and there is an already high risk of terrorist attack. As my right honourable friend the Foreign Secretary said on 24 March, the Foreign and Commonwealth Office advised all British nationals to leave Yemen immediately on 12 March. Since then, the situation has continued to deteriorate. We have detailed contingency plans but British nationals should leave Yemen now by the commercial airlines still flying.

My Lords, I thank my noble friend for that reply. Is there not also a real danger of Yemen descending into chaos, with the vacuum being filled by the al-Qaeda terrorism in that country combining with counterparts in Somalia across the Gulf of Aden, so putting the 40 per cent of the West’s oil that passes through there at great risk? Do the Government have any plans to help to address the underlying problems in Yemen, which come from poverty and hunger? Forty per cent of people there live on less than $2 a day. Have we any plans to assist with the provision of food aid, as something like $225 million of food aid is needed this year alone to stave off starvation?

My noble friend is quite right to point to a number of very worrying dangers, including piracy and terrorism. We are in fact one of the largest donors to that very impoverished country and we are obviously concerned about how the political process should proceed. We hope that transition will be in a peaceful way and without too much bloodshed, but it is really for the people of Yemen and their present president to decide how that transition should go. As for outside support, rather than outside intervention, we think that the neighbouring countries are probably the best people to rally round and provide it. That may be working through the organisation Friends of Yemen, of which we are one.

How many people does the Foreign Office have in mind and how many, in particular, are employed at the embassy in Yemen?

On the noble Lord’s second point, at the moment we have 10 still there. The noble Lord is quite right to raise the subject because it is an extremely dangerous designation. There have been two life-threatening attacks on the British ambassador in the past year. I assure the noble Lord and the House that we have the most careful and detailed contingency plans for getting those people out safely, but it is a very dangerous situation. I do not have to hand the precise overall number of British nationals. It is not very many but I will provide him with the precise details if we can ascertain them, which is not easy.

Does my noble friend agree that with the defection of Major-General Ali Mohsen and other senior military commanders, the sooner that President Saleh steps aside and allows a transition to democratic government, the less blood will be shed? Does he also think that the United Nations might perform a useful role as the broker of such a transitional arrangement, bringing the military and the opposition movements into a common Government to aim at that transition to democracy?

My noble friend is right that that defection is significant. Those are influential people and that might help the move towards a peaceful resolution and a final decision by President Saleh on how and in what manner he goes in an orderly way. Concerning the UN, it has not recently played a significant role in Yemen. In most people’s view, the responsibility really lies with President Saleh openly to engage with all parties in a sustained and credible fashion. As I said earlier, we think the best kind of outside support should come from the countries immediately around, which are obviously as concerned as us about developments there.

Does the Minister agree that it is difficult to avoid seeing any change in the administration as a potential threat to western interests? What is his assessment of the role of al-Qaeda among the many other causes—secessionist, tribal and so on—of the unrest? If there were to be an implosion, what is his assessment of the danger of the unrest moving across the frontiers to other countries?

Of course, as the noble Lord knows, these dangers are there all the time; there is no doubt about that. The al-Qaeda threat is there but is not the only threat. Al-Qaeda is most active in the north. Many of its members are being pushed over the frontier from Saudi Arabia. They are a problem and no doubt they are thinking of ways of exploiting any trouble or disturbance they can find. That is why it is essential that the president and the people of Yemen move away from the threats of violence and towards an orderly pattern of transition which they can decide for themselves.

I thank my noble friend for the care with which the British Government, other European Governments and America have handled these difficult situations with Arab countries. Bearing in mind that the evidence is now massively overwhelming that Arab populations want freedom, democracy and human rights, as in other countries—we have been told for decades that they did not want this and did not mind oppressive regimes—will my noble friend consider the British Government having some serious conversations with the Saudi Arabian Government to get rid of that oppressive regime and introduce some democracy there, including allowing women to drive cars?

These are all very serious social problems but I think my noble friend would agree that if there is to be change, the aim must be to achieve the most peaceful and bloodshed-free transition. That is what we want. Obviously, we are in talks with all our opposite numbers in the Arab world and in the Gulf countries, including Saudi Arabia, as my noble friend suggests. These matters have to be dealt with and we raise them, but if we can make progress in a peaceful, orderly way, that must be the best way forward.

My Lords, I am sure we all agree with the Minister that the most successful outcome is one that involves a peaceful and orderly transition. However, in the Government’s view, is that most likely to be attained through President Saleh stepping aside very soon or through his engaging in the sort of dialogue with dissidents elsewhere in Yemen that the Minister described a moment ago? The noble Lord talked about the support of neighbours. What support does he have in mind that Yemen’s neighbours might give? Might it be troops on the one hand or direct aid on the other?

President Saleh has already said that he will step down—we all know that—but it is a question of the timing and, no doubt, the question of to whom power should then transfer. These are obviously very sensitive and delicate questions inside Yemen. Sensible people, supporters and friends of the country and its people want to see the president step down as quickly as possible but in an orderly way. As to outside support, aside from the substantial aid which countries such as our own give to Yemen, the Friends of Yemen group has said that it is very ready to support training and to offer social support, all kinds of social programmes and a variety of other support. It has made clear that that is what it wants to see. However, I am afraid that it is from within Yemen—this is often the case in other Arab countries—that the movement has to come for an orderly transition of power, which is about to take place.

My Lords, in that context, what is the Minister’s assessment of the danger of the protest movement in Yemen being taken over by people who are now opposed to President Saleh but whose record in conflict, particularly with the northern Houthis, is no more democratic than his is?

The danger is quite high. There is a danger of all kinds of elements, including the al-Qaeda franchise, other jihadists and the rebel groups that have been present for many years—there is nothing new in some of the matters that we are discussing—taking over and replacing the present unsatisfactory pattern with something equally unsatisfactory. We have to be realistic about this. All the progress throughout the Arab world will not automatically lead to a new dawn of liberal democracy, much as we hope it will.

My Lords, have the Government assessed whether al-Qaeda in the Arabian Peninsula within Yemen and al-Qaeda more widely have been caught out by this huge change across what I think Glubb Pasha called the “hinge of the world” from Tunisia through to Oman? It seems to me that they might have been and that, if we are quick on our feet, there is a real opportunity to use this to our advantage. I should be interested to hear the Minister’s thoughts on that.

When the situation is so fluid, it is very difficult to make these assessments, and I suspect that they vary vastly from country to country. We are talking here about the Yemen. Al-Qaeda is not the only threat to Yemen’s present stability; all kinds of different tribal gatherings and pressures are undermining the situation. It could be that al-Qaeda has not been at the forefront of many of these uprisings, protests and rebellions. On the other hand, we must have no illusions but that, where it sees trouble, it will seize every opportunity to intensify it and make it worse. As to our opportunity in this area, we have to move in a very agile and clever way, making sure that we combine the support of the western world and the whole comity of responsible nations in trying to encourage a sensible transition to democracy and a move away from all forms of extremism.

Building Regulations (Review) Bill [HL]


Report received.

Fixed-term Parliaments Bill

Committee (3rd Day)

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

Clause 2 : Early parliamentary general elections

Amendment 34

Moved by

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

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

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

She went on to comment:

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

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

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

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

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

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

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

He later wrote to the Select Committee, saying:

“It is not our intention that the Bill should rule out the possibility”—

however unlikely—

“of the House changing its mind … and deciding nevertheless to support the current government”.

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

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

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

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

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

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

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

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

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

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

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

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

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

as a,

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

He well describes how:

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

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

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

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

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

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

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

“to avoid a second election”.

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

“As for introducing a 14-day cooling off period, the mind boggles ... imagine the cornucopia”—

a wonderful word—

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

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

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

or is 14 days,

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

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

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

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

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

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

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

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

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

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

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

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

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

However, Mr Harper replied:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My noble friend Lord Lamont has also been trying to get in. If he wishes to ask a question, I shall deal with it and then press on.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment 34 withdrawn.

House resumed.

Justice: Civil Litigation Reform


My Lords, with the leave of the House I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice:

“With permission, Mr Speaker, I wish to make a Statement. I have today laid before Parliament two documents: the Government’s response to our recent consultation on Lord Justice Jackson’s recommendations for reforming no-win no-fee arrangements, and a fresh consultation document on proposals to overhaul the civil justice system. Copies of both documents will be available in the Vote Office and on the Ministry of Justice website. I hope to bring forward legislation on the Jackson reforms as soon as parliamentary time allows.

To many people in this country, the prospect of legal action is an expensive, daunting nightmare. One of the worst features of our compensation culture is that our justice system has increasingly become closed to vast rafts of the ordinary public by legal costs out of all proportion to the dispute or the claim. The proposals I am announcing today will, I hope, begin to restore proportion and confidence in our system of justice for both claimants and defendants.

First, following careful consideration of the consultation responses, I have decided to reform no-win no-fee arrangements to stop the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right. I can therefore announce that the Government will seek to legislate to return the no-win no-fee system to first principles. We plan to end the recoverability of success fees and insurance premiums which drive up legal costs, award claimants a 10 per cent uplift in general damages where they have suffered loss, and then ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyers’ success fee. We will also bring forward our plans to encourage parties to make and accept reasonable offers, to protect the majority of personal injury claimants from paying a winning defendant’s costs and to allow claimants to recover the cost of expert reports in clinical negligence cases.

Secondly, I am publishing a consultation paper which I believe paves the way for the most effective and efficient delivery of civil justice after 15 years of stagnation. The current system is slow, stressful and expensive and change is long overdue. My aim is to help people avoid court wherever possible while reducing costs where that is unavoidable. We are proposing that small-value cases should automatically be referred to mediation so that many people are able to avoid the experience of court entirely; the maximum value for small claims will be raised from £5,000 to £15,000 to enable more cases to be heard through the simple small claims process rather than a more costly, complicated trial; to increase the value below which claims cannot be brought in the High Court to £100,000 so that the county court jurisdiction is extended and the High Court is reserved for only genuinely complex or high-value cases; new measures which will improve the ability of courts to tackle those who evade payment of their debts even though they have the means to do so, while ensuring that those who cannot pay continue to be protected—for example, by setting a minimum level of consumer debt at which property could be put at risk for non-payment—and, my final example, the extension of a successful online system to cut waiting times and legal expenses in personal injury cases, as recommended by my noble friend Lord Young of Graffham.

We have a duty to deliver a civil justice system which is more equitable, accessible and just. Resorting to the law need not be the long, drawn-out, expensive nightmare which so many people experience today. It could become a sensible, affordable way of resolving disputes in a proportionate manner. I believe these reforms will help to restore those fundamental values of proportion and fairness in our civil justice system. I commend this Statement to the House”.

My Lords, that concludes the Statement.

I begin by thanking the Minister for repeating the Statement made by his right honourable friend and for giving us advance sight of it. We have a number of questions, mainly around the first part of the Statement. We look forward to the second part on the commencement of the consultation period, and broadly welcome the fact that there is to be a consultation period on those issues.

As regards the first part, we of course accept that costs in civil proceedings are very much worth investigating; indeed, we did so when in government. I am sure we all agree that those suffering injury through the negligence of public and private bodies and who cannot afford to fund actions privately must have recourse to the civil justice system. Our fear is that these plans go so far in trying to keep down costs that some claimants with good cases will find it difficult, if not impossible, to find a lawyer who will take on their case. Of course, the devil will be in the detail of today’s announcement, and I ask when it is intended that legislation will be introduced. Will it be part of a Bill that is rumoured to be coming from the Ministry of Justice within the next few months?

To justify his announcement, the Justice Secretary refers in his Statement to Lord Justice Jackson’s monumental report. However, have Her Majesty’s Government taken into account Lord Justice Jackson’s view that his proposals should be seen as a package and should not be subject to cherry-picking, although is that not exactly what the Government have done in this announcement? Will he also take into account Lord Justice Jackson’s strong desire to keep civil legal aid for clinical negligence and housing cases, which are currently very much under threat from the Government’s proposals? I quote from page 70 of his final report:

“I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility”.

Is it fair to allow claimant solicitors to recover up to 25 per cent of their costs from the damages that a claimant recovers when the increase from defendants to claimants in compensation will be only 10 per cent and will apply only to general damages, which as the House will know, are sometimes only a fraction of the total damages? Why should someone who has suffered the trauma of an injury at work be told that some of the money they have justly received to compensate them is to go to their lawyer? Do we really want to go down the route of contingency fees? I know that they existed under our law for a short time but they no longer do. I think that at some stage the House will want to debate the whole issue of contingency fees and whether they are an appropriate course for the English and Welsh legal system.

Has the Justice Secretary had a chance to assess the road traffic accident portal scheme introduced by the previous Government to reduce costs? This uses fixed fees and efficient processing to limit costs, and it came into force in March 2010. Does the Minister accept that it has reduced by half the cost of 75 per cent of personal injury cases? Expanding the scheme to cover personal injury claims would, we believe, save costs. Do the Government agree?

The Government have said that an aim of the reforms is to reduce the costs that defendants have to pay. Of course, many defendants are insurance companies. In the light of the reforms, can the Minister say what reductions the Government expect in insurance premiums? Can he confirm whether there is an impact assessment of how the changes will affect access to justice, costs to defendants and reductions in insurance premiums?

Next, is the Minister concerned that, although there will be limitations on claimants’ ability to bring a case and on the costs incurred by their solicitors, there will be no such controls on a defendant in defending a case? Does that not raise the question of possible inequality between the two sides in a case?

In this House we all agree that a fundamental principle of our justice system should be proper access to justice. As a Government, we agreed with senior judges such as the noble and learned Lord, Lord Judge—the Lord Chief Justice—as well as Lord Justice Jackson and others, that the costs of civil litigation were sometimes excessive. We would all like reduced litigation costs and, very importantly, alternatives to litigation and particularly to the courts to be found wherever possible.

Our fear is that the proposals could restrict access to civil justice, particularly for those who do not have their own means of funding—rather like the Government’s proposals on cutting legal aid in social welfare law. It could reduce access to justice rather than the opposite, which is our desire—to improve it. It will be on that key issue of access to justice that we will hold the Government’s actions to account.

My Lords, I am grateful to the noble Lord, Lord Bach, both for his welcome for the discussion on the county court proposals and for the general level of his questioning. I think that if we are to touch a system like this, there is bound to be some concern about whether there will be a reduction in access to justice. We are looking at that carefully in our impact assessment and in other approaches. On the question of legislation, we intend to legislate as soon as possible and as soon as there is a suitable vehicle.

I do not think that we have cherry-picked Lord Justice Jackson’s report. We have retained a certain hold-back on protecting clinical negligence claimants in the help that they will get. Lord Justice Jackson made 109 recommendations, and the Government are taking the reform of conditional fee agreements as a matter of priority because of the potential cost saving for the Government and others. He conducted a year-long review of current arrangements and considered the likely impact of these proposals. Much of the necessary data are held in private hands by lawyers and defendants in civil litigation. Data were provided during Sir Rupert’s review and further data were received by the Government during the consultation. The Government’s initial impact assessments were published alongside the consultation and comments were specifically sought on the assumption. A final impact assessment was published alongside the Government’s response. Our impact assessment shows that successful claimants in personal injury cases will generally end up in a similar position to now, although overall most will gain.

As the noble Lord said, the road traffic scheme, to which the noble Lord, Lord Young of Graffham, also referred in his report, seems to have been a considerable success, and we are examining ways of how it could be extended. On the impact on insurance it is difficult to be precise, but it is interesting that today the Association of British Insurers has issued a statement saying that it expects insurance costs to fall as a result of these reforms.

Why should claimants pay? Claimants with meritorious claims will still be able to bring them. The Government believe that it is important that people with serious injuries should be able to receive compensation for negligence. That will continue. Indeed, the general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent under these proposals and there will be an incentive to reduce costs compared with now, such as improving incentives to settle. This will improve justice overall.

As the noble Lord will know, one of the main criticisms of the post-2000 operation of this scheme was that claimants had no real incentive to put a check on their legal costs on the assumption that they would never be responsible for it. The Government also believe that damage-based agreements will provide an additional method of funding for claimants. Like conditional fees, they are a type of no-win no-fee agreement under which lawyers are not paid if they lose a case but may take a percentage of the damages awarded to their client if their case is successful.

I hope that I have covered most of the points that the noble Lord covered. If I have not, I will give him opportunity to intervene again. In aid of these proposals, I call upon two statements. One was made by Mr Jack Straw, who originally commissioned the Jackson report.

Did he not? Sorry. You were there; I was not. Thank you very much. Mr Straw said that the Jackson proposals,

“are designed to reduce the costs of civil litigation overall. Those costs have risen too high, and that is a bar to proper access to justice”.—[Official Report, Commons, 9/2/10; col. 740.]

Perhaps he was pointing to what the noble Lord, Lord Bach, just said. As the noble and learned Lord, Lord Neuberger—the Master of the Rolls—commented:

“Critics do not appear to have been able to provide an alternative model for a comprehensive package to tackle what seems universally acknowledged to be a non-sustainable problem of rising civil litigation costs. The time for analysing the problem has come to an end. The time for action has come”.

The Lord Chancellor has brought these proposals forward in that spirit.

My Lords, I welcome the review of civil justice. One problem with the civil justice system is that we have, over the past 10 years or so, succeeded in creating what amounts to a parallel system of criminal justice enforced by the civil courts, thus adding to the burden that already exists for the civil courts to discharge. I have in mind in particular the serious crime prevention order and the violent offender orders. Those are just examples of what we are doing; there are many others. Would it not be better for what are essentially matters of criminal justice to be dealt with in the criminal courts and not in the civil courts, thus relieving the pressure on the civil courts? Could the Minister see his way to somehow looking again at the serious crime prevention orders and the violent offender orders and repatriate them, if that could be done, to the criminal courts rather than the civil courts?

My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.

My Lords, centuries of English law produced a position whereby, in civil and criminal cases, it was a principle that the lawyer should not have a personal interest in the outcome of the case. In other words, he would be paid whether he won or lost. That was mitigated to ensure that there was proper access to justice by the introduction of the legal aid scheme. It was on that principle that during the previous Government’s period we on these Benches opposed the introduction of no-win no-fee schemes.

It is interesting to look at this Statement to see what are now said to be the problems resulting from the change from the basic principle that we had had for so long. The Statement refers to,

“the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right”.

The proposals are also said to,

“begin to restore proportion and confidence in our system of justice”.

What has happened in the mean time, over the past 10 or 12 years, is that advertising has been allowed to proliferate and non-lawyers have collected and farmed claims. By advertising, they have drawn to themselves hundreds and thousands of claims and have then farmed them out to various firms of lawyers. All these ills have done nothing to improve the lot of the claimant who has been injured or who has a grievance that he wishes to be resolved.

It is because I have such a basic objection to no-win no-fee that I cannot completely endorse these proposals, but they are undoubtedly an improvement on what has gone before and they redress some of the problems that have arisen. Success fees and insurance premiums are recoverable; that is to say that I as a claimant can insure myself against losing the case and then charge the insurance premium, which I know can be tens of thousands of pounds, to the defendant, provided that I am successful. I can do that not if the case goes to court but if the case is settled at some stage, so the cost of litigation has been a huge problem that has faced defendants and insurance companies.

Another problem that arises because of that is that a plaintiff has very little interest in the amount of costs in the case. He is insured against paying the defendant’s costs, he will recover if he wins and if he loses, and he has none of his own costs to pay. It has been very damaging to permit no-win no-fee cases to go in the way that they have. The proposal to ensure that claimants have an interest in the result and are restrained from allowing their lawyers to run up massive bills of cost, as proposed, is something that I, unlike the noble Lord, Lord Bach, think is a way forward.

The second part of the Statement dealing with the consultation paper on the improvement and efficient delivery of civil justice is also to be welcomed. The proposals to give greater jurisdiction to small value cases, for small claims cases to be heard through the simple small claims process and to increase the threshold for going to the High Court are all to be welcomed.

I draw my noble friend’s attention to the fact that Statements are supposed to be the occasion for brief comments and questions.

In fact, we are trying to cut out the middle man, as my noble friend Lord Newton is now.

I could listen to my noble friend Lord Thomas of Gresford all day on these matters. On his comments about no-win no-fee, I recall very well the debates about that and about the removal of the principle of no self-interest on the part of the lawyer in the outcome and of it simply being a matter of delivering a professional fee. Against that was the very real motivation that the system could and would provide access to justice that might not otherwise have been there.

On balance, as I said in my response to the noble Lord, Lord Bach, we are trying to get the system back more to how it was when my noble and learned friend Lord Mackay of Clashfern introduced the system in the early 1990s and to avoid some of the inflation that has occurred in the past 10 years. For reference, a general liability insurer has indicated that in 1999 claimants’ solicitors’ costs were equivalent to just over half the damages agreed or awarded at 56 per cent. By 2004, average claimant costs were 103 per cent of damages. By 2010, average claimant costs represented 142 per cent of the sums received by the injured victims. The insurer also indicated that, while average damages paid had increased since 1999 by 33 per cent, average claimant costs paid, including disbursements and insurance premiums, have increased 234 per cent. It is that kind of inflation that we are trying to tackle in these proposals.

On the other point made by my noble friend, we are aware of concerns about referral fees. This matter was raised in a recent report by the House of Commons Transport Committee on the costs of motor insurance. The committee called for greater transparency in referral fees. The Government are now awaiting the legal services report on referral fees, which is due shortly.

My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.

In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.

The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?

My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.

I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.

I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.

I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:

“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.

That is one way of representing its members, but I would not describe it as research.

My Lords, first, in the light of what has been said, I declare an interest as the chair of a health trust. I have a good deal of sympathy with what has been said both on that front and about mediation. Secondly, I declare my solidarity with those on both Front Benches as they seem to agree that the underlying issue is access to justice. That means looking at the small print alongside the proposals for legal aid.

I have two, perhaps three, questions. First, do these proposals relate only to the civil courts or to other bodies that are, in effect, part of civil justice—namely, employment tribunals, land tribunals and others? Secondly, do they apply in any way to the great raft of tribunals that involve citizen v state and have not normally been seen as civil justice? Thirdly, how many people have recourse to the civil courts and how many people have recourse to tribunals?

My noble friend is right that the proposals will be linked in with those for legal aid. The Government have still not made their final decisions on the legal aid package on which they have been consulting, although they have indicated that they want to make cuts on the civil side of legal aid and how they want to make them.

We are trying to reduce the cost of our legal services by reforming court procedures, by introducing mediation, which may avoid the greater costs of court, and by following Jackson and putting some responsibility on claimants for managing legal costs. I had better come clean with my noble friend about how far the proposals extend into the world of tribunals. I shall write to him on that, because I am not quite sure of the answer. I would imagine that they do, but I had better make sure and write to my noble friend.

My Lords, the noble Lord, Lord Thomas, and the Minister referred to the rather seductive advertisements that appear very frequently in many places—the Minister gave a vivid illustration of one such advertisement. Is there anything in these proposals that will have an impact on that kind of advertising?

No, not in these proposals, but, as I said earlier, we are waiting for a report on that matter. It must be at least 10 years ago, and perhaps more, that I raised from the Benches opposite the fact that you have only to watch the television any afternoon at home—I know that noble Lords do not often do that—to see those adverts, which make the winning of a case seem akin to winning the lottery. You see a smiling client with a large cheque, having successfully referred their case to some organisation or another, without the general public being aware that the organisation with which they were in contact would not have dealt with their case but farmed it out to a solicitor, thereby only adding to the costs. My right honourable friend the Lord Chancellor is very well aware of this and we await the report. I suspect, knowing him as I do, that he will want to take action on something which irritates and angers a lot of people.

The third question of my noble friend Lord Newton was how many people have recourse to the civil courts. In 2009, some 1,460,000 money claims were issued. I hope that helps my noble friend.

Fixed-term Parliaments Bill

Committee (3rd Day) (Continued)

Amendment 35

Moved by

35: Clause 2, page 2, line 12, leave out paragraph (b) and insert—

“( ) the Prime Minister has decided to request a dissolution in place of offering his or her resignation.”

I shall speak also to Amendment 38. I very much agreed with the arguments advanced earlier by the noble and learned Lord, Lord Falconer of Thoroton, but that is largely because they all supported my amendments rather than the one that he was addressing. Perhaps, given that he has now left the Chamber, he was trying to get his arguments in first in support of my amendments.

My amendments are designed to maintain features of our existing constitutional arrangements while addressing the problem for which the Bill makes no provision: that is, the Government opting to resign without having been defeated on a vote of confidence.

Amendment 35 would maintain the present constitutional convention that if the Government lose a vote of confidence in the House of Commons, the Prime Minister resigns or requests that Parliament be dissolved. The precedent was established in 1841 and has been maintained since. As we have heard, in January 1924, the Baldwin Government met the new Parliament, were defeated in two Divisions of confidence and resigned. In October of the same year, the MacDonald Government were defeated in two Divisions deemed matters of confidence and requested that Parliament be dissolved. As we have heard about in some detail, in 1979, the Callaghan Government were defeated on an explicit vote of confidence and requested the Dissolution of Parliament.

The advantage of the current situation is that it allows some flexibility in order to respond to the conditions of the time—the point made earlier by the noble and learned Lord, Lord Falconer of Thoroton. If it is clear that there is no prospect of an alternative Government being formed, there seems little point in waiting. If one takes the situation in March 1979, can one really claim that the Prime Minister should not have requested the Queen to dissolve Parliament and hold an election? There was demonstrably no case for waiting. Under the Bill, there would have been a delay of two weeks before an election was triggered.

I see no grounds for not allowing the Prime Minister to recommend an election if the Government have been defeated on a vote of confidence. Stipulating the 14-day gap serves no obvious purpose. It does not provide a disincentive for the Government of the day to manipulate a vote of no confidence. If the Government are able for their own purposes to persuade their supporters to vote for a Motion of no confidence, they can presumably also use them to ensure that no alternative Government can muster a majority for a vote of confidence. That just delays matters by 14 days.

My other amendment provides that if the Government opt to resign and no alternative Government are formed and achieve a vote of confidence, an election will be triggered after the passage of a set period. In my amendment, it is 28 days. That is in line with what is in the devolution legislation. That may appear too generous. The amendment of the noble Lord, Lord Howarth, stipulates 14 days. It may be that 14 days is preferable to 28; it may be that the period should be shorter. As I mentioned earlier, we are unusual in the United Kingdom in having a rapid transition from one Government to another. However, whatever the period, we need at least to stipulate a clear time limit, however unlikely it is to be utilised.

A Prime Minister is not expected to resign unless it appears that an alternative Government can be formed. Only in the event of the implosion of the Government is such a provision likely to be necessary, although in those circumstances it may be that the Opposition could muster sufficient support to pass a Motion of no confidence. However, my amendment covers the highly unlikely, but not impossible, situation of a Prime Minister resigning; the House failing to pass a Motion of no confidence or to mobilise the 400 votes out of 600 necessary for a Dissolution Motion; and the Leader of the Opposition, or some other figure, being unable to form a Government. Under the Bill, there could be stalemate until the election at the end of the five-year period. As we have heard, Belgium is presently setting the record for the length of time for which no Government has been formed. I am not suggesting that we will ever be in that situation. My amendment ensures that such a situation will not arise.

In essence, my amendments seek to maintain the benefits of the present arrangements within the context of fixed-term Parliaments. I beg to move.

I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 36 or 37, because of pre-emption.

My Lords, I rise to speak to Amendment 39, which fits into this group covering various contingencies in relation to the resignation of the Prime Minister. My amendment would provide for an early general election if the Prime Minister resigned and, after 14 days, there had been no vote of confidence in any Government of Her Majesty.

This issue was raised by my noble friend Lady Jay during the proceedings of the Select Committee on the Constitution. She asked the Minister, Mr Harper, whether, if a Government resigned without losing a vote of confidence, that would trigger the 14-day provision. Mr Harper replied:

“If the government resigned and we were without a government, you would then have to have a process of government formation. I believe that we think that would be the case”.

That is not quite pellucid and it hardly inspires confidence that Ministers had thought rigorously about this legislation.

Mr Harper then wrote again to the Select Committee, stating that:

“There is nothing in the Bill that prevents a government resigning; the Bill is about the length of a Parliament. If a government decided to resign when the Speaker had indicated that he was not minded to issue such a certificate, then the 14 day period would not be triggered although, as I said to the Committee, a period of government formation would obviously follow. It would just not be time-limited”.

Your Lordships may consider that it should be time-limited and that we should not allow ourselves to get into the Belgian or Iraqi situation whereby a Government cannot be formed for very long periods.

Amendment 38 of the noble Lord, Lord Norton, specifies 28 days. As he anticipated, I think that 28 days is too long. His Amendment 35 does not specify any time limit, but just removes the 14-day provision altogether. It will be no surprise to your Lordships, following a previous debate, if I confide in you that that is a much more attractive provision. However, supposing we accept that time should not be unlimited in such circumstances. If we provided for 14 days before an early general election takes place, following the resignation of the Prime Minister, it would integrate provision for the contingency of the Prime Minister’s resignation with the provisions in the Bill for other early departures of a Government.

It may be wise to provide a clear remedy, given that we have the Bill. The Bill would abolish the royal prerogative of Dissolution. Currently, with the prerogative—as the noble Lord reminded us—if the Prime Minister resigns, the Queen takes soundings to see whether another party leader can form a Government. If he cannot do so, she dissolves Parliament. That remedy is removed by the Bill. The Bill allows resolution of the impasse only if two-thirds of MPs vote to dissolve Parliament. However, that is not a sure remedy, because the Opposition might prefer not to take their chances at an immediate general election—they might not co-operate to secure that two-thirds vote.

It is worth considering what might have happened in historical situations that some of us can at least dimly remember. In the Government of Mr Attlee in 1951, he chose to go to the country. Aneurin Bevan and Harold Wilson had resigned from the Cabinet, having disagreed with the Government’s budget. The Labour Party had a majority of five, and Mr Attlee judged that he could not carry on. Under this Bill, Mr Attlee could not have gone to the country. Under this Bill, Mr Heath could not have gone to the country in February 1974. Of course, Mr Attlee or Mr Heath might have appealed to the other leaders and secured a two-thirds vote of the House of Commons for Parliament to be dissolved and for there to be a general election. However, what might have happened in October 1974, when Harold Wilson chose to go to the country? Would the Conservatives, at that stage, have been ready to agree to a general election? We shall never know, but the answer is uncertain.

It may be as well to provide a clear remedy, although I anticipate that the Minister will point out that it would drive a coach and horses through the central purpose of the Bill, which is to prevent a Prime Minister from seeking an early general election. However, in such situations as I have sketched, it may be desirable and in the public interest for there to be an early general election. The fact that we have to debate these amendments once again shows the unwisdom of seeking to legislate for fixed-term Parliaments.

My Lords, I have the greatest respect for my noble friend Lord Norton of Louth, who has unrivalled academic expertise and authority in matters of this sort. I am a mere practitioner, so my contribution to this debate is very much probing, rather than definitive. I am generally concerned about the drift that would appear to be the theme of this group. The Committee is provided with three options. One would remove the 14-day period for the formation of a new Government if the existing one falls; one would extend that period to 28 days; and the other would keep it at 14 days but change the process by which it would happen. We therefore have a spectrum of three amendments, representing a scale: one with no period at all in which another Government could be formed; one with a 14-day period; and one with a 28-day period. Those of us of a centrist disposition might be naturally inclined towards the middle option—Amendment 39 in the name of the noble Lord, Lord Howarth of Newport. However, strictly speaking, Amendment 39 is not necessary, since it barely departs from the principle that the Government have already adumbrated in the Bill itself.

Therefore, I will concentrate principally on Amendment 35, which is the “back me or sack me” amendment. It would offer a Prime Minister who had lost the support of his or her party in the Commons the opportunity to go to the country instead of to the Palace. There is nothing wrong with that in principle. It might have provided some clear guidance to Thatcher, Major and Blair at moments when factionalism was on the cusp of becoming fratricide. However, again, the amendment is surely unnecessary. The Bill already allows for the Prime Minister to resign or for a new Prime Minister and a new Government to be appointed. What the amendment does is to take away from Back-Benchers in the House of Commons the power actively to insist on the replacement of the Prime Minister with another. That is the principle behind this change. Instead, it places the decision on going to the country, as now, back with the incumbent of No. 10. I thought Members on all sides of your Lordships’ House thought that was not necessarily the best result.

Under the Bill as it stands, a Prime Minister could effectively be disposed of, as Labour wanted to do with Blair for so long. A clear period would then exist for a new Government to be formed. Members of the Committee can imagine that, when Tony Blair eventually stepped down, the Bill’s provisions would have allowed Gordon Brown to form what he called a new Government, in much the same way that John Major did when Margaret Thatcher resigned. It is not, therefore, clear to me whether my noble friend seeks a move away from the principle that votes of confidence in the Government need not precipitate an election—the status quo—if another Government can be formed. Here is the nub of a very important principle. I wonder whether my noble friend is trying to move away from the principle that the Prime Minister must have the authority and confidence of the House of Commons to continue; and whether he is, therefore, moving towards a principle that there ought, automatically, to be an election if there is a change of Prime Minister.

In February 1974, Mr Heath said, “Who governs Britain?”. He did not say, “Back me or sack me”. We have referred to that election on several occasions in your Lordships’ House in recent months; it is one that many of us recall very well. I have no doubt that my noble friend could find much public support for that principle. However, on balance, I have always thought that British Governments should depend simply and solely on the confidence of the House of Commons to remain in office. That is a parliamentary democracy, not a presidential one.

Will the noble Lord explain to me why I am mistaken in recollecting that Mr Heath did say, “Back me or sack me”? That is my recollection of the interpretation that everybody I knew had of what he said.

He may well have said that, but actually what he put on the table before the electorate in 1974, which I remember very well, was that his Government were challenging the country to say whether his Government—and the elected representative Members of the House of Commons who gave confidence to his Government—or the miners should continue to govern the country. That was the issue that he put before the country.

This is, surely, what the Bill seeks to enshrine: that we are a parliamentary democracy, not a quasi-presidential democracy. It is not clear that the noble Lord’s amendments, or any of the options before us in this group, would actually improve it. Unless we intend to complete the process from a parliamentary to a presidential form of government—which I assume my noble friend does not support—surely the change he appears to recommend would be premature. I believe in a parliamentary democracy, and I believe it is the House of Commons that gives confidence to a Government. If that were to change, we would be making a very considerable and dramatic alteration to the basis of our whole constitutional settlement.

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.

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.

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.

My Lords, I thank my noble friend Lord Norton of Louth for his amendments and the noble Lord, Lord Howarth of Newport, who again has made some interesting and constructive contributions. Amendments have been tabled, not least the amendments in the name of my noble friend Lord Cormack, regarding procedures in the Bill concerning motions of no confidence, what the consequences of those might be and whether they need to be more tightly or more widely specified to cover different situations. I repeat what I said at the start of some of our amendments on the second day in Committee relating to the Dissolution provisions in Clause 2. We are willing to listen to what noble Lords have to say on these matters. I particularly note the point made by the noble and learned Lord, Lord Falconer of Thoroton. I understand that the thrust of his comments at Second Reading was that the Bill would be open to abuse by a Prime Minister who might wish to contrive a situation to get a Dissolution at the time of his or her choosing and therefore defeat the purpose of a fixed-term Parliament. I would want to consider what he proposed in the light of that and whether it might make dealing with the potential for that abuse simpler; and, on the specific amendments, whether the choice of having a Dissolution or a resignation that could lead to another Government being formed, as happened in 1924, should remain solely in the hands of the Prime Minister or whether Parliament should have a role, as we would seek to provide.

The noble and learned Lord is absolutely right that I regard the position of there being a contrived vote of no confidence as quite easy under this Bill, but I do not think that there is any dispute about that. The noble and learned Lord accepted it, the committee chaired by the noble Baroness, Lady Jay, accepted it, and I have asserted it. So it appears to be agreed on all sides. I do not think that there is anything that can be done about that. Indeed, as I made clear, it would have been right for Mr Heath to have insisted on there being an election through a vote of no confidence if the Opposition had not agreed to an election in 1974 and if there had been a fixed-term Parliament. I see that as indicative of the fact that you are not taking away much power from the Prime Minister. My problem is the idea that the more rigid you make the measure, the more you allow a Prime Minister and a Government to stay in power when it is perfectly plain that the Commons wants to see the back of them and there should be a general election. I see that as the much more dangerous aspect of the Bill.

I am interested in the noble and learned Lord’s comments, and I shall reflect on this matter. The second point that I made was whether the choice between seeking a Dissolution or there being a resignation with the possibility of an alternative Government being formed should be entirely the choice of the Prime Minister alone or whether, as we seek to do, there should be a role for Parliament when no other Government can be formed and 10 days have elapsed without a confidence motion being passed by Parliament. As I understand it, however, the objective is much the same. In a situation when you have a fixed-term Parliament and it becomes obvious that there is a logjam or deadlock, there must be some means of breaking it and triggering an early election.

The same argument applies to a point made my noble friend Lord Norton of Louth. I assume that he sees Amendments 35 and 38 as being taken together as part of a package. Under one of his earlier amendments, Amendment 27, he said that if the Prime Minister’s discretion over the date of the election were removed, as would happen with a fixed-term Parliament, it should be provided,

“that an early election is possible only if the House of Commons passes a vote of no confidence in the Government or if the Government resign and there is no prospect of another Government being formed”.—[Official Report, 21/3/11; col. 564.]

Although this is a technical problem that could be looked at, as presently constructed the proposal could mean that the Prime Minister of the day might choose neither to seek Dissolution nor to resign. I am sure that that is not the intention behind the amendment as it would create a very difficult situation. However, it could be a consequence of the amendment. I do not want to make too much of a technical point as I am sure that that is not a scenario that my noble friend seeks to advance.

At the conclusion of our debates on the second day in Committee, my noble friend presented a scenario whereby the Government had lost the confidence of the House in a way that did not necessarily trigger the provisions of the Bill. He used as an illustration what might have happened in 1972 if the other place had refused to give the European Communities Bill a Second Reading and it had not been designated by the Speaker as a vote of no confidence. In such a scenario, the Prime Minister might wish to resign or hold an election, and the provisions of the Bill would not necessarily apply. I think it is clear that if the Prime Minister had genuinely lost the confidence of the House of Commons, under the provisions of the Bill there would be a way to make that clear through a motion of no confidence and no other Government being formed by that Prime Minister, so leading to an election. Furthermore, if there was consensus that there should be an election, that could happen with a Dissolution.

Equally, it would still be open to the Prime Minister of the day to resign, as indeed Neville Chamberlain did in 1940. As the noble and learned Lord agreed in the previous debate, it would not have brought into play any of the mechanisms in the Bill. Nevertheless, it was clearly possible for a new Government to be formed under Winston Churchill in two days—I believe that was the figure that he indicated. Nothing in this Bill would inhibit that happening. If the Prime Minister of the day chose to resign, he would tender his resignation to Her Majesty the Queen and the convention would be that, so Her Majesty was not left without a Prime Minister, he would recommend to Her Majesty another MP who would be invited to form a Government. Either that new Government would fail at the first test, there would be a no confidence Motion and the new Government would not be able to get confidence, which would lead to an election; or, alternatively, a new Government might be formed and would command the confidence of the House of Commons. If it commanded the confidence of the House of Commons and could vote a supply, it would be left—

My Lords, if we assume the Prime Minister resigns, that does not trigger the Bill. A new person is invited to form a Government. He or she then puts his or her Government to the confidence of the Commons. If we assume there is a vote of no confidence in that Government, then the provisions of the Bill will apply and there will be another 14-day period.

My Lords, there would not necessarily be another 14-day period triggered by the first one. Subject to that, the noble and learned Lord’s analysis is absolutely correct. If someone else sought to form a Government and did not win a vote of no confidence, that would lead to an election if no other Government were then formed within 14 days.

I think there is agreement, surprising though it may seem. However, there are two other possible outcomes: that there is a Dissolution leading to an election, or another Government could be formed, the 1924 example being a case in point. As I said, the 14 days is a matter of judgment, but it does provide for a period for that second outcome of another Government being formed to actually happen. We have debated this issue already and we are due for another debate on an amendment tabled by the noble Lord, Lord Kennedy, on whether 14 days is right. However, the provision does allow for a period for that to happen and, if it does not happen, for us to proceed to an election.

Can the noble and learned Lord answer this question? It has been raised on a number of occasions but I have never heard a specific answer to it. Under the Bill, if the Liberal Democrats decide at some time in the next four years that they cannot support the present Government, the Government lose a motion of no confidence and, during the subsequent 14 days, the Liberal Democrats decide to support the Labour Party—which would not give many of us a great deal of joy—an entirely new Government could be formed without any reference to the British people whatsoever. Is that the position?

It is a very hypothetical situation. Any new Government, as the noble Lord suggests, would have to be subject to a positive vote of confidence. The noble Lord, Lord Grocott, says that they would get it. That does not necessarily follow because clearly the two parties do not command a majority in the House of Commons. It is hypothetical but, if the other Government were formed, possibly involving the Liberal Democrats and the Labour Party, and it commanded the confidence of the House of Commons, which is crucial, the fixed term would continue to its natural conclusion.

My Lords, I hesitate to repeat the quotation that I gave from the Constitution Committee’s proceedings in the last debate, but surely the answer to the question put by the noble Lord, Lord Grocott, is the one that Mr Mark Harper gave to the noble and learned Lord, Lord Goldsmith, in response to exactly the same question—hypothetical though the noble Lord, Lord Grocott, suggests it is—which was that it depended on the circumstances,

“but I think that it could”.

The noble and learned Lord, Lord Goldsmith, asked him whether it could produce a Liberal Democrat and Labour Government, and that was the answer that Mr Mark Harper gave.

There is the important qualification that, if we were in a scenario where this Bill was law, it would also require that there had been a vote of confidence in that Government by the House of Commons. Subject to that qualification, I think the answer is exactly as the noble Baroness indicated.

My Lords, this is not new. Surely in a parliamentary democracy the Government require the confidence of the House of Commons. If they have that confidence, they can then continue.

That is self-evident. One might well go back to 1977 when, quite clearly to forestall losing a confidence vote, the Government of Mr James Callaghan entered into a pact rather than a formal coalition with the then Liberal Party and they were able then to win a vote of confidence. You may say it was a Government of a different nature who proceeded to govern after that day because they were engaged in a formal pact and were not a new Administration, but they were different from the Government who had existed up to that date, who had not had a formal pact with one of the opposition parties.

In the scenario that my noble friend Lord Grocott was suggesting, would it actually be necessary under the Bill for there to be a vote of confidence? If the Liberal Democrats had simply decided that they did not wish to carry on in coalition with the Conservatives and made overtures to the Labour Party, there would not have been a vote of no confidence. There would simply have been a realignment within the House of Commons. As far as I can see, the provisions of the Bill are not activated in that situation.

I apologise. I had presumed that there had been a vote of no confidence in what would then have been a Conservative minority Government if the Liberal Democrats had left it. In that case a new Government would have had to be formed and there would have to have been a vote of confidence. I am sure that a new Government formed in that way would have to have a Queen’s Speech, which would trigger a potential confidence motion, and if they won that they would continue to govern. As my noble friend said, if an Administration have the support and the confidence of a majority in the other place, they can govern. I apologise if I misinterpreted the question put by the noble Lord, Lord Grocott. I presumed that there had been a motion of no confidence, and that may not have been part of the hypothesis that he put. However, the new Government would be susceptible to a vote of no confidence if they did not have a majority and could not command the confidence of the House. Therefore the procedures in this Bill would then be triggered; otherwise it is as the noble Baroness says.

If this game of musical parties were to occur—more specifically, if the Liberal Democrats were to decide which party they wanted to operate with—it would be very difficult for Mr Clegg to continue his argument that this was reconnecting Parliament with the public.

If that was the scenario—a purely hypothetical one—I think my party would have a challenging time making the argument as to why things had changed. However, I do not suppose for a moment that the noble Lord—who probably was in the Commons in 1977—complained too much about an arrangement falling short of a coalition with the then Liberal Party, which actually sustained a Labour Government in power. Obviously the Liberal Party had to answer to the electorate for what it did then, and that is the political reality. These things are all considered in a political context. There is the political reality again, taking the point made by the noble and learned Lord, that if a Prime Minister of the day sought to try and abuse or contrive a vote of no confidence, that would be judged in a political context. It may be thought in some circumstances that it was right to do so, in others that it was duplicitous; the ultimate determination of whether it was right or wrong is one for the electorate, and so it should be.

The period in my noble friend’s amendment is 28 days. He indicated that he took it from the arrangements that had been made for Scotland and Wales in the event of a resignation of a First Minister. There are sufficient differences in the position between the Scottish Parliament, the National Assembly for Wales and the United Kingdom Parliament that would make 28 days an inappropriate period. That is why we have exercised our judgment and said in the Bill that 14 days is more appropriate.

The amendment tabled by the noble Lord, Lord Howarth, would provide that an early general election could be triggered where the Prime Minister has resigned and 14 days have elapsed without the House of Commons passing a motion expressing confidence in a Government. Again, my point would be that in establishing fixed terms, we are seeking to deny the Executive their ability to decide if and when there should be an election. This amendment places one of the triggers for an early Dissolution within the hands of a Prime Minister. That is the problem which we would have with it. The noble Lord mentioned 1951 but it is generally accepted—indeed, I think Mr Jack Straw accepted this on Second Reading—that the circumstances there would almost certainly have triggered the two-thirds majority for Dissolution, because there was common ground that an election should take place. The problem with the noble Lord’s amendment, as I indicated, is that in an effort to try and take away the power from the Executive and put it into the hands of Parliament, it would return it to the Prime Minister.

However, subject to what I said in my opening remarks in response to the constructive point made by the noble and learned Lord, Lord Falconer, and in wishing to look at the important contributions that have been made, I certainly intend to reflect on what has been said in this debate and in earlier debates on the same subject. I have no doubt whatsoever that these matters will be returned to on Report but I ask my noble friend to withdraw his amendment.

My Lords, I am grateful to all those who have taken part in this short debate. It has been extremely helpful in elucidating problems with the Bill. On a rather small point, I have to correct the noble Lord, Lord Howarth: it was actually me putting the questions to Mark Harper as I was in the chair of the Constitution Committee on that day, which is one reason I am pursuing the issue today.

I have two points to make to my noble friend Lord Tyler. One is on drafting. It has to be about the Prime Minister resigning, not the Government, because when the Prime Minister resigns the Government go. The other point is much more substantive and relates to what we were saying earlier. Parliament is stronger under the present arrangements than under this Bill, because the key point is that under its provisions the Prime Minister gets a second bite of the cherry if he loses a vote of confidence.

On the observations made by the noble and learned Lord, Lord Falconer of Thoroton, my point is that if the Prime Minister resigns having lost a vote of confidence, formally the Government are out. In those circumstances, the Queen sends to whoever she believes could form a Government. Formally, that could include the outgoing Prime Minister but that is the present constitutional position anyway—one thinks to some extent of the circumstances of 1931. I would argue that what I have put forward is better than what is in the Bill because, as I indicated, my amendments are designed to maintain the benefits of the existing arrangements. However, I very much agree with the noble and learned Lord that they reflect the problems of trying to codify existing conventions. That underpins the problems with the Bill.

I am grateful to my noble and learned friend Lord Wallace for his response. He is quite right that the intention was to take these two amendments together. On his point about the example that I gave of 1972, if Edward Heath had said, “This is a matter where the Government cannot sensibly continue”, but the Speaker had not certified it as a confidence motion and if he had lost and a good number of Conservative MPs were not prepared to vote for Dissolution—not necessarily to vote against it but not to vote for it, so that it would have been difficult to mobilise 400 votes out of 600, although there was a slightly different percentage at that time—then you get into a stalemate.

I am grateful for what he said, particularly because I did not hear any strong arguments against my amendments. The Minister queried the 28-day provision; as he says, there are sufficient differences with the devolved Assemblies. I accept that and would like to apply it to the rest of the Bill.

I am interested because I made this point in response to the comments by the noble and learned Lord, Lord Falconer. Will my noble friend accept that there is perhaps this issue? If there is a choice between immediate Dissolution and a resignation with the possibility of another Government being formed, who exercises that choice? In a Bill where we seek to take power away from the Prime Minister, should that choice lie with the Prime Minister or does my noble friend accept that we should look at ways in which what happened would not be the Prime Minister’s choice alone?

I do not really accept the premise of my noble and learned friend’s question in that the Bill does not take away the Prime Minister’s power where the Government are defeated on a vote of confidence. The Government are trying to limit the Prime Minister’s prerogative to request Dissolution at the time of the Prime Minister’s choosing, rather than in the context of the Government losing a vote of confidence. The Bill does not actually limit the Prime Minister on losing a vote of confidence; as I say, it gives him a second bite of the cherry. That is what my amendments are really trying to get at. I accept the point made about 28 days or 14 days, which is a matter for discussion, but my point is that to avoid an ongoing stalemate you need some cut-off point. That was the argument of principle there.

My overall proposition is that the benefits of existing arrangements outweigh those in the Bill which, in the context of a vote of confidence, do not limit the Prime Minister. As I say, the Government are trying to limit the Prime Minister’s prerogative to foreshorten an election when it is in the gift of the Prime Minister, rather than when Parliament is in effect seeking to take it out of the hands of the Prime Minister through a vote of confidence. I am advancing the argument that the Bill gives Prime Ministers a second chance—more so than under existing arrangements. I am grateful for my noble and learned friend’s willingness to reflect upon what has been said from all parts of the Committee. In the light of that, I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

Amendments 36 to 40 not moved.

Amendment 41

Moved by

41: Clause 2, page 2, line 14, at end insert—

“( ) 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.”

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.

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.

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—

I could leave out entirely the legitimate drafting point that the noble and learned Lord makes. If the amendment said,

“if no Government had obtained a vote of confidence since the last general election”,

would that help the noble and learned Lord to determine what I am trying to say? It is my fault for not putting it well.

I was genuinely somewhat puzzled about what the point was. However, I understand that the noble and learned Lord is trying to address a certain situation. I can see the distinction between an incoming Government following an election who have never faced the House of Commons on a Queen’s Speech and one which may have done so and lost as they are a continuing Government. He may wish to consider whether a general election should immediately ensue if an incoming Government who are not a continuing Government lose a vote on their first Queen’s Speech. I give a hypothetical example. If a minority Conservative Government had been formed after May last year, they would have been the new Government. A Government would have been formed but they may not have carried the day on a Queen’s Speech. I rather suspect that the circumstances which the noble and learned Lord sought to address in his amendment might be similar to that example. I suggest that another election would not necessarily be triggered immediately by that scenario.

As I understand it, the noble and learned Lord is saying that there are circumstances where there is the possibility of another Government being established, as, indeed, happened in 1924. He thinks that the presumption would be in favour of an early election, triggered by a vote of no confidence. However, it is a rebuttable presumption. The noble and learned Lord is trying to identify the circumstances in which that presumption might be rebutted. One such circumstance could well be where we have an election, there is no overall majority and therefore there ought to be an opportunity, if the Government lose a vote on the Queen’s Speech, for another one to be formed. I understand what he is saying but the difficulty we have in these situations is with the general assumption that an election would take place. We need to make the position certain and not leave it completely vague and imprecise. It is one of the challenges which we have sought to address in the Bill. It may seem somewhat cumbersome at times with the Speaker’s certificate mechanism but the purpose behind that is to try to ensure that there is certainty and that if situations arise which will lead to an election it is not a question of wondering whether it will or will not take place. We need to establish that certain circumstances would trigger elections while others would not.

I entirely agree with my noble friend Lord Forsyth that there are important distinctions to be made between the Scottish Parliament, the Welsh Assembly and the Westminster Parliament. I think that in an earlier intervention I indicated that you can only take the comparisons so far. If a Government have not commanded the support of the other place, have lost a vote of no confidence and no other Government have been formed who hold the confidence of the other place, an election would follow. If, however, a Government command the confidence of the other place, they would have the wherewithal to raise supply. It is very easy to look at these issues through the prism of a two-party political history, but as my noble friend Lord Newton said in one of our earlier debates, we cannot take it for granted that the simple two-party situation that has prevailed for so long will always do so. We have seen that the first past the post system could not be relied upon to produce a clear-cut majority Government in May last year. We may well find ourselves in those circumstances again. The circumstances which apply in the Scottish Parliament may well be more appropriate for a Parliament that does not regularly have Governments with an outright majority. However, I accept that there is an important distinction between a Parliament elected by proportional representation and one which is not. I do not even claim that AV is a proportional system but it is one which nevertheless could give rise to a Parliament in which no one party regularly has a majority.

I am most grateful to my noble and learned friend but my point, which I am delighted that he acknowledges, was that the Scottish Parliament is different because it does not vote means of supply. The argument has been advanced that these provisions are appropriate for the House of Commons. Indeed, it has been thrown back in the face of the Labour Party that it introduced these provisions for the Scottish Parliament. The Scottish Parliament was deliberately designed in the electoral system as an institution in which no party would be able to get an overall majority, and my noble and learned friend played a part in that. Therefore, to import provisions relating to a Chamber which is completely different from the House of Commons and argue that they are appropriate is an error. That is the point I was making.

My noble friend is absolutely right. That is why there was an electoral system that almost invariably would not produce a Government with an outright majority. My noble friend Lord Newton said earlier that we may be entering an era where even the first past the post system will not necessarily produce an overall majority, and we can speculate about what might happen if we have an alternative vote system. Nevertheless, the point remains that, if we have a fixed-term Parliament, there has to be a means of breaking out of it if there is a stalemate, and that is what we are seeking to achieve. We have heard a suggestion as to how that might be addressed in circumstances where there was an incoming Government after an election and you would not necessarily want to trigger another election immediately. Again, I think that that is consistent with what I said regarding earlier amendments—it is part of the mix. I do not think that there is too much between us in recognising that a way out has to be found if a Parliament is no longer sustainable, but the challenge is how to do that with the maximum certainty. I welcome the thoughts of the noble and learned Lord but I invite him to withdraw his amendment in the light of my comments.

Of course I shall withdraw it because we are in Committee and will not really be having any votes. I completely agree with what the noble Lord, Lord Forsyth, said about the Scottish Parliament and the Welsh Assembly being completely different, and I particularly agree with what he said regarding the supply issue. They are both important but they are different sorts of institutions. I do not agree that the old rules do not work because there is now more of a three, four or five-party system in the Commons. That is completely wrong. I keep going back to 1924, but it was because there were three parties and no one had an overall majority that the Queen’s Speech was defeated in January 1924. In October 1924, when again there were three parties, a vote of no confidence was passed in the then Labour Government and Ramsay MacDonald went straight to the country without any difficulty at all, understanding immediately that that was the appropriate thing to do.

With the greatest respect to the noble and learned Lord, this is not a comment on him but on the process. He struggles when he tries to explain the rationale for these provisions. He says, “We want not to be too vague and we want to bring some certainty but we do not want to be too precise”. Those are not his exact words but that is what he said in his reply. I ask: why is it not okay to say “once there is a vote of no confidence”? The noble and learned Lord should remember that the Bill deprives the Prime Minister of calling a general election unless there is a vote of no confidence or a two-thirds vote, which is a considerable restriction. The Government are trying to deliver the element of fixedness but their mistake is in saying that there has to be some complicated process thereafter. This debate simply reinforces the sense that it would be sufficient to have a general provision saying that, where there is a vote of no confidence in the Government, there may be a Dissolution. It would be viewed as a constitutional provision and would not be picked over in this legalistic way, which is the inevitable consequence of the coalition’s drafting of the Bill. I beg leave to withdraw my amendment.

Amendment 41 withdrawn.

Amendment 42

Moved by

42: Clause 2, page 2, line 15, at end insert “and ought not be impeached or questioned in any court”

My Lords, after the words in Clause 2(3)—

“A certificate under this section is conclusive for all purposes”—

my Amendment 42 would add the words,

“and ought not to be impeached or questioned in any court”.

Noble Lords will instantly recognise that that language is taken from Article 9 of the Bill of Rights Act of 1689, and, as such, it may have some reverberance. If these words were incorporated, I suppose that the House of Commons would, in the politest possible way, be saying to the judges, “Do not consider advancing your tanks on to our lawn”. Therefore, my amendment seeks—amateurishly, I am sure—to reinforce the protection that Clause 2(3) already seeks to provide for parliamentary privilege.

I have tabled the amendment because the Clerk of the House of Commons, having examined the Bill as drafted—and we should surely take his view very seriously—considers that parliamentary privilege would be jeopardised by it. He wrote a memorandum to the Political and Constitutional Reform Committee of the House of Commons last August and, if I may, I shall quote some sentences from it. He said:

“My concern is with the way in which provisions of the Bill impinge upon Parliamentary privilege and which may bring the Courts and Parliament into conflict … The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates”.

Then he said that the provisions of Clause 2(2),

“make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts”.

The Clerk of the House of Commons said that he was not satisfied with the protection that the Bill as drafted provides:

“Although the provision in 2 (3), that the Speaker’s certificate is conclusive for all purposes, is meant to mitigate challenge or questioning in the courts, it cannot be a protection against the courts interpreting statute either in the UK or in Strasbourg ... embodying these internal proceedings in statute radically changes their status since, by reason of being embodied in statute law, they become questions which are ultimately to be determined by the judiciary rather than by members of the legislature”.

He continued by saying that history provides,

“no basis for concluding that the courts will keep out of this new statutory territory”.

He explained that the,

“possible areas of challenge are wide-ranging. For example, any interested party … could challenge whether a motion for dissolution had been correctly worded or processed, whether the decision had been correctly reached and recorded”.

He thought that there could be legal challenges as to what a motion of no confidence was, as to the Speaker’s selection of amendments for debate and as to whether votes had been properly cast. In his oral evidence to the Select Committee, he observed that Erskine May contains five pages on irregularities in Divisions: mistakes in counting; the Division Bell not working; Members being locked out; Members being nodded through; and so forth.

I tabled this amendment and speak to it with some diffidence, not least in the presence of two very distinguished former Speakers of the House of Commons and a former Deputy Speaker. I am also aware that noble Lords learned in constitutional law, distinguished academic witnesses in their evidence to the Constitution Select Committee of your Lordships’ House and the Constitution Committee itself all expressed themselves as being reasonably sure that there will be no significant practical risk that the courts will abandon their centuries-old recognition and acceptance of Parliament’s exclusive cognisance of its internal proceedings. The Constitution Committee concluded:

“The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

Tempting though it is to rest on that comforting conclusion, I suggest that this Committee should at least pause and think about what the Clerk has said. No one except Mr Clegg and Mr Harper has said that this risk can be ruled out. Professor Dawn Oliver, giving evidence to the Constitution Committee, said that in her opinion it was,

“extremely unlikely that the court would entertain a challenge”,

but that,

“you can never be entirely sure what the courts will say when faced with very eloquent advocates with good arguments both ways”.

Professor Anthony Bradley, in the same session, cited Mr Justice Stephen in Bradlaugh v Gossett and Lord Roskill in the GCHQ case as underpinning his belief that the courts would not advance into this territory. However, he anticipated,

“a huge discussion about justiciability”,

and acknowledged that there could be arguments of a broader or different kind, which could not be raised in Bradlaugh v Gossett, that would have to be addressed. He did not contend that a Speaker’s certificate could not be subject in a primary way to the jurisdiction of the courts but considered that in a secondary sense the court would be very loath to apply intensive judicial review to the Speaker’s certificate. He thought that the case could come into court, although he thought it also likely that the judges would decline to rule on it. He noted that aspects of self-regulation have been taken away from the House of Commons, such as, for example, election petitions, expenses and allowances. All in all, his testimony was less than entirely reassuring.

Mr Richard Gordon QC, in written evidence to the Constitution Committee also argued:

“It would … be unwise to assume that there are no circumstances in which the validity of a conclusive evidence clause could be questioned in the courts … At the level of international judicial adjudication … it is highly questionable whether an assertion of parliamentary privilege (by reference to Article 9 of the Bill of Rights Act 1689) would necessarily operate to prevent parliamentary materials from being scrutinised”.

He concluded by saying that,

“it may well be that the practical scope for the scope of Article 9 being affected by judicial enquiry into the validity of a certificate is small”,

but he thought that it ought to be taken into account.

David Howarth, reader in law at Cambridge, former Liberal Democrat Member of Parliament and proposer of the Fixed Term Parliaments Bill 2007—a believer in fixed-term Parliaments—said in evidence:

“The statutory escape mechanisms create a risk that the courts will intervene”.

He elaborated by saying:

“The Bill tries to prevent legal challenge by making the Speaker’s certificate ‘conclusive for all purposes’. But a court that wanted to side-step that provision could easily do so by use of the Anisminic manoeuvre, that is by saying that legal error by the Speaker has resulted in a situation in which the Speaker had not issued a ‘certificate’ under the Act”.

Again, he also said,

“The risk is admittedly small”.

I am not a lawyer, but it seems to me that the constitution is not static. It evolves to meet new circumstances. Among the relevant new circumstances are the growing boldness of citizens to sue for their rights and the growing boldness of judges, in judicial review and in interpreting human rights, to venture into political roles where they would have stood back in the past.

Here it is interesting to note some remarks of the noble and learned Lords, Lord Steyn and Lord Hope, in Jackson v HM Attorney-General 2005. I understand that that case concerned the legality of the Hunting Act and whether the Parliament Acts impose judicially enforceable constraints on how Parliament may legislate. The basic argument was whether the notion that Parliament can make or unmake any law requires the presence of enforceable rules for defining what a law is, in which case the court could presumably disallow something that purported to be a money Act but which had not passed through a proper certification procedure—a thought relevant to a Bill that introduces a certification procedure avowedly based on that—or whether, on the other hand, an assertion by Parliament that something is a piece of legislation is decisive in the matter.

I shall briefly quote remarks from the two learned judges. The noble and learned Lord, Lord Steyn, said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.

The noble and learned Lord, Lord Hope of Craighead, said:

“But Parliamentary sovereignty is no longer, if it ever was, absolute ... Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified … The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”

The noble and learned Lord, Lord Bingham, did not see eye to eye with his learned friends on these issues.

However, this is not a static scene and my fear is that appeals to traditional constitutionalism may over time fall on deaf judicial ears. The more we write new constitutional legislation and the more we encode the constitution, the more the judges will feel impelled to interpret. The more things are statutory, the less binding will be the conventions. The committee of your Lordships’ House that reported on the conventions governing the relations between the House of Commons and House of Lords—we all assented to its conclusions—was of the view that, as and when we have a statutorily created elected second Chamber, the traditional conventions will not apply as previously. It is something of a choice between laws and conventions.

Mr Harper, the Minister, was remarkably assured in the note that he deposited in the House of Commons Library in September. He said that,

“the Bill will not in any way open up parliamentary proceedings to the jurisdiction of the courts”.

He thought that the Clerk’s memorandum,

“contains a fundamental misunderstanding about the effect of the Bill”.

The suggestion that the Bill could bring parliamentary matters before the European Court of Justice and the European Court on Human Rights was, Mr Harper said, “wholly without foundation”. He continued in somewhat contemptuous terms that the Clerk,

“appears to confuse political controversy with legal risk”.

In his oral evidence to the Constitution Committee, Mr Harper was equally bullish. He said that the Speaker’s certificate was,

“a tried and trusted formulation … If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the Government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention …It would just mean that the Speaker would be making those conventions more explicit”.

He spoke of a certificate as a “mechanism”—his metaphor conveying a simple faith in the automaticity of its effect.

Dr Jack, the Clerk of the House of Commons, having considered all this evidence put to both Select Committees, provided further written evidence, which is given on pages 12 and 13 of the evidence section of the Select Committee report. He did not retreat. He continued to consider that,

“incorporating the provisions of Clause 2 in the Standing Orders of the House remains the safest course”.

He noted that the circumstances of Bradlaugh v Gossett in 1884 were different from the circumstances of today, for example, in respect of human rights. He was sceptical about the self-restraint of the courts and noted,

“the not infrequent need in recent years for interventions by the Speaker of the House of Commons to protect parliamentary privilege in the courts”.

The Clerk of the House of Commons also noted,

“the attitude of the European Court of Human Rights, which has heard cases that British courts would not consider on the grounds that they fell within the area of parliamentary jurisdiction”.

In one such case, two judges had expressed reservations about the lack of remedies against the exercise of parliamentary privilege in the United Kingdom system. Dr Jack suggested that Parliament might be wise at least to wait for the promised draft Parliamentary Privileges Bill.

Professor Bradley equally did not recant after he had read Dr Jack’s supplementary evidence. Whom should we believe? Should we believe the Minister or sundry distinguished academics? Should we rely on the assurance given by your Lordships’ Select Committee? I know that your Lordships will attach great weight to its conclusions. Or should we pay very considerable regard to what the Clerk said in his carefully considered and repeated warning?

This issue is massively important for Parliament and it matters very much that we get it right. I beg to move.

My Lords, I regret that I was unable to be here for the Second Reading of the Bill but I say at the outset that I endorse the criticisms of it in many of the speeches made in that remarkable debate, which showed this House at its very best.

I wish to focus my remarks on the change to the role of the Speaker of the Commons under the Government’s provisions, which has not been touched on in any great detail until the amendment that has just been moved this evening. As the provisions stand, they extend the Speaker’s authority in a way that affects much more than his position as a presiding officer. They give him the statutory power to trigger a general election in critical situations, the intensity of which the Government too lightly glosses over. It is left to the Speaker to decide what constitutes a motion of no confidence in the Government.

The legislation brushes aside the reasoned warnings by the Clerk of the Commons of the possible legal dangers of the sweeping changes that are being proposed. As it stands at the moment, it will not do. We all know that it is our duty to make this legislation fit for purpose if it is to command confidence and withstand the test of time. We all know that Parliament has suffered too many self-inflicted wounds to its reputation in recent years to accept a half-baked Bill to enable the coalition to remain in power until May 2015. Parliament is still in the convalescent stage after the trauma of the expenses scandal. We cannot afford a botched attempt to change the way that Governments can be forced from office when they lose the confidence of the House of Commons.

The evidence of the Minister for Political and Constitutional Reform to your Lordships’ Select Committee on the Constitution is an example of the Government’s wishful thinking on how the Speaker is supposed to fulfil his responsibilities in this brave new world of fixed-term Parliaments. The noble Lord, Lord Norton of Louth, to whose expertise I pay tribute, put it to the Minister, Mr Mark Harper, that the Speaker would be in some difficulty if he had to decide what was, and what was not, a vote of no confidence on the basis of his own interpretation. The Minister replied that the Speaker should make his position clear before the debate and before the vote. He said that,

“everyone would be clear about what was going to happen as a result of it”.

He went on:

“In practice, I do not think that that would be a serious problem”.

I must disabuse the Minister, Mr Harper. The Speaker’s role as the sole adjudicator of whether the Government are in danger of losing their life would quickly become a very serious political problem for him and Parliament. Whatever he decided on his own responsibility would lead to ceaseless points of order and unruly outrage in the Chamber. When contentious issues were debated, he would come under intense pressure from all sides—as I know from personal experience. The Speaker’s authority would be as much at stake as the Government’s. In such a situation, a Speaker who lost control would have to decide instantly whether to name Members who defied his ruling, risk losing the vote to enforce their suspension and, thereby, lose his own authority or suspend the House in the hope of resuming the contentious business after taking soundings from all sides.

I dealt with sporadic outbreaks of unruly behaviour and know the heat that they can generate when Government, Opposition and individuals blame each other. The noble Lord, Lord Howarth, commented that this could happen in the Commons. Misconduct in the Division Lobbies reached such a pitch in the 1992-93 Session that Ministers complained of a constitutional outrage. Without amendments, disturbances likely to arise from thrusting the Speaker into the political cockpit in the way that is proposed in the legislation would undoubtedly be at the top of the Richter scale and would not move far from the courts.

The Commons Speaker has very few formal powers other than those embedded in convention, enshrined in standing orders or specified by legislation relating to the certification of money Bills and the operation of the Parliament Act. No Speaker with the best interests of Parliament at heart would accept any extension of his authority likely to jeopardise his independence and impair his responsibilities to defend the rights and reputation of Parliament against all comers. The great Speaker Lenthall—whose portrait is out there—immortalised the golden rule against which Clause 2 should be judged:

“I have neither eye to see, nor tongue to speak here, but as the House is pleased to direct me”.

Speaking on Second Reading, the noble and learned Lord, Lord Wallace, said,

“there is a lot of meat for the House to get its teeth into”.—[Official Report, 1/3/11; col. 1048.]

We all say hear, hear to that. His acceptance of the importance of the scrutiny that we are applying to this Bill in its remaining stages is welcome. However, the noble and learned Lord doubted the need for a specific definition of a no-confidence motion on the grounds that,

“one recognises an elephant when one sees it”.—[Official Report, 1/3/11; col. 1046.]

Fortunately, we do not inhabit a zoo—although many of our critics may think otherwise. Accepting the elephantine analogy, the Speaker, if these amendments were not accepted, would have to decide whether a motion of confidence or no confidence is akin to a charging elephant that can scatter a Government or a placid animal—the sort that carries children on its back. In either case, I do not believe that it is a fit and proper question for the Speaker. Other amendments will come later this evening that underline and give this area much more strength.

To be frank, I am very sceptical about the need for legislation at all, but we must make sense of what we can and send this package back to the Commons in better shape. The Government’s response so far has been to insist on the authority of the Speaker’s certificate to validate a vote of no confidence and empower a new Government or trigger an immediate general election. Clearly, the Speaker’s certificate is seen as the trump card against any challenge or interference by the courts. The Minister, Mr Mark Harper, wrote a dismissive note about the warnings of Dr Malcolm Jack, the Clerk of the Commons, about the possibility of such a challenge in the courts. The Minister wrote:

“The Government sees no reason why the courts would not continue to defer to”,

the normal rules and principles that protect internal parliamentary proceedings from the scrutiny of the courts. I beg to differ. The Minister referred to the Speaker’s certificate as a further defensive weapon against interference by the courts. His note quotes from Article 9 of the Bill of Rights and added:

“This position is reinforced by the role which the Bill gives to the Speaker in certifying whether certain events have occurred. In other words, these are matters to be decided by the presiding officer of the House of Commons and not the courts”.

I know feelings run extremely high in Parliament when contentious issues are debated. Normally rational people do uncharacteristic things. Imagine what would happen if some judges seized on accusations of obstruction in the Division Lobbies and other improper behaviour that could be said to have prevented a fair and orderly vote on an issue of no confidence in a Government. This was mentioned earlier by the mover of this amendment, the noble Lord, Lord Howarth. It seems that the judiciary is stronger and Parliament somewhat weaker than it was when I entered the Commons 37 years ago.

Contrary to the Government’s claim, the European court is not indifferent to the way Britain runs its constitutional affairs. As Speaker in 1999, I ruled that Sinn Fein could not take their seats without taking the oath of allegiance. Sinn Fein claimed that I had infringed their rights under the European Convention on Human Rights and took my ruling to the European Court. Sinn Fein lost the case, but its appeal was not dismissed out of hand as being none of the court’s business, which the Government would have us believe is the automatic response. The court’s seven judges published a lengthy judgment that stated that the protection of effective democracy,

“must equally extend to the protection of the constitutional principles which underpin a democracy”.

The court’s judgment in my favour aroused little interest. I have been in public life long enough to know that a British win is a non-story; the British media will not report it. However, this demonstrated beyond any doubt the court’s willingness to examine the case. This is the most important point I need to make. The Minister, Mr Harper, would have us believe that this could not happen, but he is wrong.

I have two observations to make. If, according to the Minister, the inviolability of Commons proceedings is already assured by the Bill of Rights, why does it need the further protection that he thinks is advisable? As I have argued, if the Speaker cannot be exposed to the invidious position that the Minister, Mr Harper, wishes to put him in, where does that leave Clause 2? I believe that we have no option but to scrap it and to accept amendments that are precise and do not leave us open to court proceedings.

Dr Jack’s doubts about the Government’s belief that parliamentary proceedings are entirely off-limits to the courts reinforces my suspicions. He underlined the importance of subsection (3), which states that the Speaker’s certificate under Clause 2 is “conclusive for all purposes”. The layman may think that means that a Speaker’s certificate cannot be challenged on any grounds whatever, but it can, as Dr Jack makes clear. The words are a legal formula that obliges the Speaker to observe the exact procedures set out in Clause 2. If he does not, for whatever reason, the piece of paper he signs may be invalid and Parliament could find itself in a tussle it might well lose in the courts. Dr Jack warned that our Supreme Court has,

“not yet got its teeth into this kind of thing”,

but it might. We are on notice by the Clerk of the Commons, whose advice on this subject I tend to rate more highly than that of the Minister, Mr Harper, that if a constitutional matter were ever to reach the courts,

“the process would be in their jurisdiction and not in ours”.

That is a situation in which I do not wish to find Parliament.

I have heard the Minister say on earlier amendments that if they were withdrawn, he would take them back and give serious consideration to the views that had been expressed. The amendments tabled by the noble Lord, Lord Howarth, are similar. Perhaps they can be taken back and considered seriously, considering what my noble friend Lady Boothroyd said and what I am about to say. I hope I can give some advice to this House.

This is not about Dr Jack the individual; it is about the Clerk of the House of Commons. I have experience of previous Clerks: Sir William McKay and Sir Roger Sands. They are all people of the highest calibre. I can give the House an insight into what would happen before the Clerk of the House delivered this advice. He would not just pluck these words out and put them on paper for anyone to consider; he would take soundings from constitutional experts, get someone to be devil’s advocate and put the contrary point of view, and Speaker’s Counsel would listen to the arguments. These people would give their point of view. Therefore, the words of Dr Jack would be the collective point of view of the constitutional experts we have in the House of Commons. The amendment is the property of this House, but I think it would be good idea for the Minister to take back what has been said tonight.

There is a tendency for courts to—I do not think the right word is interfere—look at matters which they would not have looked at 30 or 40 years ago. I am glad that the Court of Human Rights is there, but many Members who were disciplined in the other place said that they would like to take their case to the Court of Human Rights. Some officers of the House, while they did not encourage them or give any view, privately said that if their case went to the Court of Human Rights, with people’s civil liberties as they are at the moment, they might have won it because of the way in which our standards commissioner conducts his affairs without representation, with hearsay evidence and with people making accusations without substantiation. Although this has not been tested, some of the disciplinary measures that were taken in the other place could well have been taken to the Court of Human Rights, and who knows what would have happened?

Pressure is put on Speakers behind the scenes. I worry about the certificate. I recall a situation—forgive me, there might be some military Members in the Chamber—in which a battalion of Royal Marines was to be moved to Afghanistan in the early days of the Afghanistan problem. The Opposition tabled a Motion to put aside the business of the day to allow that matter to be debated. I felt that the Opposition had a case, and I allowed the Motion to be debated, as was the Speaker’s right. Behind the scenes, a government Whip came in—it was always a Whip who came in with the nasty news—and said, “You had no right to do that. You shouldn’t have done that”. This is the pressure that is put on Speakers. I said, “Excuse me a minute. Why shouldn’t I have done that?”. “Because those Marines weren’t going into combat”. The point I made was that if you are moving 500 highly trained members of an elite organisation into an area where they would come to no harm, they should not have been put there. They should have been back on leave in Catterick, Plymouth or wherever they were based. This was the type of abuse—complaining, if I can put it that way—that you got behind the scenes after the event. Before the event was even worse. So what is it going to be like when there is a vote of no confidence and it is down to the Speaker to decide whether a Government have to go to the country? There will be pressure from every side.

We talked about things changing with regard to the courts. Things have changed with regard to the pressure on Speakers. We have spoken about Ted Heath, his Government and how he had to go to the country. I had the honour of having Ted Heath come up as a friend to Speaker’s House to have a private chat with my wife Mary and me. I remember him telling me stories of when he was a Chief Whip. In passing, I asked him how often he came to see the Speaker, because at that time I had to see the government Chief Whip, the opposition Chief Whip and the Liberal Chief Whip on a weekly basis. He said, “I never bothered the Speaker. The Speaker was too busy to bother with the Chief Whip”. Since that time, things have changed, and terrible pressure is put on the Speaker, so I say with the best possible intentions that this is one of those amendments that get an airing in Committee and then the Minister takes the matter back and looks at it.

I was never Speaker but I am descended from three Speakers. I have never heard of a more awful choice having to be made. If the courts are allowed to interfere, that will have a catastrophic effect on the role of the Speaker. If they are not allowed to interfere, it will have a catastrophic role on the role of the Speaker. I cannot think of anything worse than that. I do not know whether to vote enthusiastically for the amendment or to vote enthusiastically against it. Whatever we do on this amendment will be nothing short of catastrophic.

My Lords, we have heard outstanding speeches from two former Speakers of the House of Commons. I must say that I am a little timid about getting up to say a word when I am the only non-former-Speaker on these two Benches. The speeches from my noble friends Lady Boothroyd and Lord Martin have fully covered the key elements about the defence of Parliament, which is a vital element underlying this amendment, in my view.

Let us imagine ourselves in the circumstances that would be covered by this part of the Bill: that is, that the Government have lost a vote of confidence, the 14 days have gone by and this certificate is called for. Let us also imagine the position of the British public in a situation in which they read in the papers, “Government defeated”, then, “14-day period expires: it’s an election”, and the next day, “Judicial challenge: no election”. This is a critical point from the point of view of operating confidence in the system. Therefore, the amendment in the name of the noble Lord, Lord Howarth, is good, and if it cannot be done in that way we need to strengthen the way of avoiding in this Bill any form of judicial intervention in the system.

My Lords, the speeches that we have heard from the former Speakers speak very eloquently for themselves. I congratulate the noble Lord, Lord Howarth, on his amendment. I do not know whether it deals with the issue but two points strike me. Like the noble Baroness, Lady Boothroyd, I could not be here at Second Reading. One thing that concerns me enormously is that the advice of the Clerk of the House can be brushed aside in what, quite frankly, is an almost arrogant way.

Our institutions are very important, although things might have changed. I never really had a reputation in the other place as someone who was easily cowed or very respectful but I respected the Clerk of the House, the institution of the House and the Speaker’s office. For a variety of reasons, the House and the Speaker’s office have come under considerable attack, which is a great source of anxiety. In responding to this amendment, I hope that my noble friend will give us some assurance that he will look at this again because these are very serious considerations. Ministers might believe that the risk is limited but I am with the Clerk of the House and I would not take any risks with this institution. It is a very precious baby and it seems to me quite extraordinary that we have reached this pass.

The noble Lord, Lord Martin, referred to his conversations with Ted Heath about when Ted Heath was Chief Whip. In 1983, when I went to the House of Commons, my Whip was my noble friend Lord Lang. He said to me, “I am your Whip”. I said, “What does the Whip do?”. He said, “I will give you advice from time to time as to how I would like you to vote. If for any reason you feel unable to take that advice, I would be very obliged if you could just tell me in advance”. It was very polite and respectful. There is a tendency now for executives—I think the previous Government set a particular standard in this—to push through legislation without giving due consideration to perhaps well considered institutional advice.

I do not know whether this amendment will work in the way that the noble Lord, Lord Howarth, suggests, but I certainly think that this issue should be addressed. I can think of nothing worse, as the noble Lord, Lord Williamson, has said, than the courts becoming involved in whether we should have a general election. That would be a car crash of enormous implications, which is easily avoided by not making a change, particularly in the face of advice from the Clerk of the House, whose job it is to put up warning signs. I can only imagine that for the Clerk to do this, and to maintain his position, a great deal of courage is required of the kind about which the noble Lord, Lord Martin, spoke. He would not do this if he did not think that there was a real danger. It is a risk that we should not be taking.

My Lords, I very much agree with what has been said so far. We will have an opportunity later to debate this clause in its entirety, and I believe that it should be replaced by something that is much more carefully and thoughtfully drawn up. To bring the Speaker into this position would be a cardinal political sin, in my view. We have heard from two former Speakers, who were clear in their advice to this House. In doing so, they were able to speak from the experience of working with the Clerk of the House that none of us can rival, and nor can any Minister in the Government.

While the Minister in charge of this Bill in another place is an extremely able and industrious young Minister, who I am sure has a glittering future ahead of him, he is not the world’s greatest constitutional expert. This Bill is deficient in many respects. It has many aspects, some of which I will touch on later, that should give any constitutional expert real cause for alarm. However, if there is one thing above anything else that is devastating in its implications, it is the politicisation of the role of Speaker. The noble Lord, Lord Howarth, has done the House a signal service in drawing specific attention to this. The House has been singularly fortunate too to be able to hear from the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, who were able to speak from very real experience. I beg the House—although of course we will not vote on this tonight—to stand firm. I very much hope that the Minister’s response will indicate that we will not need to proceed into the Content and Not Content Lobbies on this one, but if we do we should send a real signal to the other place that this is something up with which we will not put.

My Lords, I rise with some diffidence in view of the speeches from the noble Baroness, Lady Boothroyd, the noble Lord, Lord Martin, and others that we have heard. First, I think we all believe that the notion that the courts should be able to interfere with the Speaker’s certificate when this Bill is enacted, if it is enacted in its present form or in something similar to it, is one that we would abhor. No one is suggesting that that is a desirable or acceptable outcome in any way.

In moving his amendment, the noble Lord, Lord Howarth, discussed the evidence before the Constitution Committee in some detail. I do not propose to rehearse that evidence. However, I would point out that Professor Bradley, an old friend with whom I would be hesitant to disagree, expressed the conclusion that the judiciary would surely accept that this was an area for political judgment which the courts were not qualified to make. That was the conclusion of your Lordships’ Constitution Committee.

This is not simply a matter of the evidence of Mr Harper, which has been dismissed in quite strong terms by others who have spoken. In the light of the careful note of the Clerk of the House of Commons, the Constitution Committee spent a great deal of time analysing all the evidence on this point. The conclusion to which it came was that the risk of judicial interference was very small. It went further in concluding that it was so small that it was not sufficient to warrant the rejection of Clause 2. The assessment of what risk might or might not be acceptable is a difficult area. I align myself with the view expressed by the majority of the legal evidence to the effect that the chances of interference by the courts would be so small as to be insignificant.

That is not to say that we can ever stop anyone bringing a misguided application. However, as Professor Bradley also pointed out, misguided applications can be dealt with quickly and given short shrift. That is what I believe and would expect to happen. The result is that in theory an initial challenge could be brought to the Speaker’s certificate. However, it is the judgment of the Constitution Committee, which I invite your Lordships’ House to accept as well founded, that that challenge would not lead anywhere—a judgment that was made in the face of, and on consideration of, the evidence of the Clerk of the House of Commons, to which a great deal of respect was given.

My noble friend is obviously an expert in these matters. As the argument is about the degree of risk, can he explain why it is necessary to take the risk at all?

My Lords, this is a matter we have canvassed before. My noble friends and I put forward a suggestion in an amendment as to the definition of votes of confidence which might mitigate the risk still further. One problem with the later amendment of my noble friend Lord Cormack is the complicated definition of votes of no confidence. Of course, when it is clear that there is a vote of no confidence, it is very difficult to imagine the issues for the Speaker to determine—that there has been such a vote and that there has been a lapse of 14 days—being justiciable. While I can see that part of the wider argument of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin—that it is important to avoid the Speaker being drawn into political controversy —is absolutely right, nevertheless the amendment is concerned with the question of justiciability.

The next question for your Lordships to consider is whether the words of the amendment add anything to the words of the Bill. As the noble Lord, Lord Howarth, pointed out, the words of the amendment are drawn from the wonderful and eloquent words of the Bill of Rights, which states that,

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

That is a general statement of the principle of parliamentary privilege.

The words of more recent statutes which outlaw judicial interference have been more similar to the words adopted in this Bill. The Parliament Act 1911, in dealing with certificates, uses the words “conclusive for all purposes” and,

“shall not be questioned in any court of law”.

The phrase is “shall not”, not “ought not”. I suggest that, for a modern approach to the construction of statutes, the phrase “shall not” is much more useful than “ought not”. The House of Lords Act 1999 simply uses the provision that the certificate shall be “conclusive”. In this Bill we have the words, “conclusive for all purposes”.

Taking that body of statute law as a whole, I suggest that the right conclusion is that, with the possible exception now of “ought not”, those phrases “shall be” and “shall not be”—the imperative form—are effective to provide as much protection from judicial interference as we are likely ever to be able to achieve. It is a matter for the courts, and the balance between Parliament and the courts, as to whether in any conceivable circumstances the court could, at some stage, accept an invitation to interfere with parliamentary privilege. Given the state of the statutes at the moment, this is the best guarantee that we are ever going to get. On the history of the courts’ approach to these matters, I cannot in a million years agree that the courts would interfere with such a certificate, although they cannot prevent a challenge being launched at the outset.

My Lords, this has been a powerful short debate. My noble friend Lord Howarth introduced the debate moderately and marshalled the material effectively. The speeches of the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, would make any Government stop in their tracks in relation to certification and the Speaker.

It is important to identify that two separate points are being made. First, no one engaged in the discussion of the Bill wants the courts to have anything whatever to do with challenging what goes on in Parliament. I speak only from the point of view of the courts, not from the point of the view of the Commons. For all the reasons given by the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, the courts would run a mile from giving any determination in relation to this. They would do so for legal reasons: first, this is a proceeding in Parliament and therefore protected by the Bill of Rights; secondly, it specifically involves a certificate given by the Speaker of the House of Commons as to a proceeding in the House of Commons; and, thirdly, the Bill states:

“A certificate under this section is conclusive for all purposes”.

As a matter of legal drafting, it is clear that the draftsman is trying to keep out the courts as much as possible.

Equally, for all the reasons given by the two impressive ex-Speakers, the courts do not want to be in a position where they have to say, “We know you all think there is about to be an election, but Mr Justice X has just said that there is not going to be an election”. Can you imagine the situation if a Speaker of the House of Commons had said, “I know you all think that a vote on whether or not we should go to war in Iraq is a vote of no confidence, but I have decided that it is not. Therefore, even if the vote is defeated in the House of Commons, there will be no resignation of the Prime Minister and there will be no general election”. I leave it to the House to seek the views of the two ex-Speakers as to what effect on Parliament that would have.

I was struck by the evidence of Mr Harper in comparison with what the noble Lord, Lord Martin, and the noble Baroness, Lady Boothroyd, have said. They have given graphically their opinion of what it would be like to make these decisions. However, the chairman of the Select Committee asked Mr Harper:

“But it would presumably put pressure on the Speaker if, let us say, he did not make an announcement in advance”.

Mr Harper replied:

“I think the Speaker would want to make sure that the House was clear about the nature of the debate and the vote attached to it. I am not sure that it would put pressure on him; I think there would be an expectation that he would set out clearly the nature of the debate and vote that was to take place, the consequences of the vote and what he would do as a result, so that people were clear about it. I think there would be an expectation that that is what would happen … I don’t think it’s asking the Speaker to make decisions beyond those he should make if there is an expectation. If there is a convention that certain kinds of votes, like votes on the Address, are treated as confidence votes and are treated as those by the government, for the Speaker to make that explicit, effectively, it is a convention that exists and he is simply going to be setting out the consequences of that convention. He is not really creating any new rules. He is just making it more explicit about the effect of existing conventions that are already in place” .

That was Mr Mark Harper, the Minister of State—

I make it clear that my error is in no way intended to undermine him. He is the Parliamentary Secretary responsible for political and constitutional reform. It is his view that the Government appear to take in relation to these issues. It is a matter for this House as to whether it is guided more by the views of the two ex-Speakers or by the evidence of Mr Mark Harper. Speaking entirely for myself and having heard the two ex-Speakers, I found the evidence of Mr Harper wholly unconvincing. It suggests to me that not enough thought has been given to this provision.

Mr Harper perhaps overlooks the fact that any Speaker always has at his or her side the Clerk of the House and takes their advice. I grant that it is advice and that, at the end of the day, it is the Speaker who has to make the decision. However, the Clerk of the House is always there. Here we have a situation where the Clerk of the House has taken the very serious step of giving written evidence that he is deeply concerned about this matter.

I completely understand what the noble Lord, Lord Martin of Springburn, is saying. My own view is that the courts would try to avoid getting involved, but the consequence of their not doing so is that the Speaker of the House of Commons—who, though I have never been a Member of the House of Commons, I understand should be above the party fray—would ultimately decide whether there would be a general election. Let us imagine the level of emotion that there might be in the House of Commons at that point. Is this not another illustration of the grave error in trying to prescribe in a Bill the working of a process that has previously worked by convention? I am very glad to see the noble and learned Lord, Lord Howe of Aberavon, in his place. He has always said that constitutional conventions may be better in certain circumstances. My view in relation to this part of the Bill is that the more we talk about it and the more we try to provide artificial certainty or precision—treating it as if it were a statute where you could see whether you have registered your home properly or whether certain ticks are in the boxes—the more it becomes a wholly inappropriate way to deal with the issue of whether Parliament should be dissolved and there should be a general election.

The more we debate it, the more the best solution feels like a provision that simply says that where there is a vote of no confidence there may be a general election. I do not think that my noble friend Lord Howarth would say that his amendment gives 100 per cent protection from the court; it certainly does not give the Speaker any protection from getting involved in the fray, which is so significant to their independence. I anticipate that my noble friend will say that he has put down the amendment simply in order to test the proposition. I would urge the noble and learned Lord to go back to the drawing board and see how he can construct a provision that is intended not to be a tick-box provision but instead to be a much broader constitutional provision. That will make it clear that the courts are not to be involved. Equally, it will not draw the Speaker into a political fray that could be fatal to their standing either in the House of Commons or, more damagingly, with the public at large. This is another indication that the Bill requires a lot more thought.

Has not the noble and learned Lord, Lord Falconer, actually made a speech suggesting that we should use some of the remaining powers left to us under the Parliament Act to sling this rotten Bill right out hook, line and sinker?

The noble Earl is right to identify that the Bill is not covered by the Parliament Act. The more we debate it, the more it seems an appalling mess. If major surgery is not applied to it, a point may be reached where the House might think, very unusually, that it messed up the constitution to such an extent that it should contemplate not giving it a Third Reading. I am sure that a Minister such as the noble and learned Lord, Lord Wallace of Tankerness, will persuade the Government to apply major surgery to the Bill.

I thank the noble Lord, Lord Howarth, for the amendment, which I think, by any account, has produced a very informed, worthwhile and important debate. At Second Reading, my noble friend Lord Cormack expressed the hope that we would be able to look at privilege in Committee. Our minds have been very much focused by the amendment of the noble Lord, Lord Howarth, and he has done a service to the Committee by tabling it. I thank noble Lords who have taken part in the debate, not least the two former distinguished Speakers of the other place, the noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin of Springburn, who bring to this debate many years of experience not only as Speakers but also as Deputy Speakers. They have between them many years of occupancy of the Chair, and any Government would be wise to have regard to what they have said. As I said in our earlier debate, this is a part of the Bill where I think that there is some common ground on what we are trying to achieve; that is, to ensure that we do not have fixed-term Parliaments that are absolutely fixed and, if there is to be some means of breaking out of a deadlock, to try to identify how best that is to be done. The comments that the former Speakers made, specifically with regard to the Speaker’s certificate, form part of the consideration that we want to give in trying to get it right.

A number of distinctive points arose out of the amendment and the debate. Perhaps I may be able to separate them out. The noble Baroness, Lady Boothroyd, and the noble Lord, Lord Martin, spoke about the Speaker being brought into political controversy and how that related to how motions of confidence were defined. There will be further opportunity to discuss that later in Committee when we come to the amendment of my noble friend Lord Cormack. The comments that have been made will relate to that as well.

The substance of the amendment of the noble Lord, Lord Howarth, related to parliamentary privilege and the fact that, as my noble friend Lord Marks indicated and was confirmed by other speakers, all of us would be in agreement in abhorring a position where the courts should be able to interfere with the certificate if that is what emerges from the Bill. The noble Lord, Lord Howarth, sought to add the words which, as he rightly said, ring down through many centuries and which come from Article 9 of the Bill of Rights. That states that,

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

I think that it is widely agreed that that article is of great constitutional importance and a significant plank of what we describe as a doctrine of parliamentary privilege. One of the most important aspects of privilege is that it is for Parliament to judge the lawfulness of its own proceedings, not a court or other outside body. The noble Lord, Lord Howarth, said that he wanted to reinforce that principle by inserting those words. I again confirm that the Government do not consider it appropriate for the courts or other outside bodies to scrutinise how the Speaker would exercise his or her functions under the Bill.

With specific regard to the words of the amendment, I echo some of the comments made by my noble friend Lord Marks. We do not believe it necessary to include those words to achieve the aim, as the words have their own significant pedigree. They were based on the Parliament Act 1911, where Speaker’s certificates are equally conclusive for all purposes. It follows the language used in the House of Lords Act 1999, under which the certificate of the Clerk of the Parliaments is conclusive. The effect of those words in the Bill and those Acts is to make clear that parliamentary privilege applies to the matters being certified. Accordingly, we do not believe it necessary to make further provision along the lines suggested. As ever, making further provision may cast doubt on earlier enactments which do not include those words. I do not think that any of us want to go there.

The noble Baroness, Lady Boothroyd, asked what purpose was then served by having a conclusive certificate, when we claim that the matter is already one of privilege. Again, I confirm that it is true that the subject matter of a certificate relating so closely to proceedings in Parliament would mean that privilege alone would be sufficient to prevent the courts considering it. However, making a certificate conclusive reinforces that point and is intended to enhance that certainty.

I cannot accept the assertion made by my noble friend Lord Forsyth that the Government just brushed aside the position set out by the Clerk of the Parliaments. Clearly, when the Clerk of the Parliaments makes a submission such as that, it is given considerable care and attention. My noble friend Lord Marks pointed out that the Constitution Committee of your Lordships' House received considerable evidence on that from a number of people who have great standing as academics in constitutional law. Indeed, it referred in its report to,

“the weight of the evidence we received being against the view that a Speaker’s certificate would be justiciable … The risk that the courts may intervene in any early dissolution of Parliament by questioning the Speaker’s certificate is very small. Although the political and constitutional consequences of any such intervention would be very significant, we do not consider the risk to be sufficient to warrant a rejection of clause 2 of the Bill”.

I accept my noble and learned friend's rebuke. I come from a tradition which thinks that the Clerk of the House is normally the person best qualified to advise on these matters. The way that the Minister dealt with that did not show the kind of respect that ought to be given. I hear what he says. Perhaps I am a bit daft and am missing something here, but could he explain why it is necessary to have the certification process at all?

It is necessary because, as the Bill is constructed, there are trigger mechanisms to cause an election. There has to be certainty as to what causes that election so that it has legitimacy. One of them is to certify that two-thirds voted to trigger a Dissolution. In the context of votes of no confidence, if we seek to take power away from the Executive and the Prime Minister to determine what would be a vote of no confidence, it would be self-defeating then to say that the Prime Minister himself or herself could determine what is a vote of no confidence. Therefore, we give it to the person who is recognised as being independent to certify that there has been a vote of no confidence in the Government and that 14 days have elapsed. That is factual: that there has been a vote of no confidence and that 14 days have elapsed without any vote of confidence in a new Government having been passed.

There is a distinction between a certificate that certifies a fact—hopefully, that could not bring the Speaker into any kind of controversy—and the Speaker being asked to certify or indicate what he or she would consider to be a vote of no confidence. That brings us into the territory of earlier amendments, and those to be spoken to later by the noble Lord, Lord Cormack.

Perhaps I am being stupid, but if a motion in the House of Commons states, “This House has no confidence in Her Majesty's Government”, and it is passed, why do we need a certificate to say that it has been passed? The 14-day provision is open for debate, but if the Bill says that Dissolution should happen 14 days after a motion has been passed, surely it is just a matter of counting the votes. Am I missing something?

I say again, it is not just that it is passed, it is that it is passed and that there has been no further vote of confidence in any Government. That is done for the purpose of ensuring legal certainty: that the election has legitimacy. It is quite straightforward why that is being done: that there is certainty. Otherwise, there will be a fixed-term Parliament where the law will say that the next election should be on whatever date and that to have an election not on that date, you have to be certain that the criteria laid down by law have been met. We take the view that a certificate from the Speaker makes certain beyond challenge that the criteria for